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Judgment
Heard Dr. Ashok Saraf, learned senior counsel for the petitioner. Also heard Ms. A Gayan, learned CGC for the respondents no. 1 to 4 being the authorities under the Department of Revenue, Ministry of Financed, Government of India.
Considering the nature of the grievance raised, we also require the petitioner to implead the Commissioner of Customs NER Custom House, Shillong - 1 as the respondent no. 5.
Mr. S C Keyal, learned counsel enters appearance for the Customs Department, Government of India.
There was a sunset review investigation conducted by the Joint Secretary-cum-Designated Authority under the Directorate General of Trade Remedies, Department of Commerce, in the Ministry of Commerce and Industry, Government of India as regards the antidumping duty for imports of melamine from the Peoples of Republic of China. The final finding in respect of sunset review investigation was notified by the notification no. AD-SSR/16/2020 dated 23.08.2021.
The final findings are admittedly made under Rule 17(1)(b) of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty On Dumped Articles and For Determination of Injury) Rules, 1995.
The grievance of the petitioner is that in course of the investigation by the Designated Authority, the petitioners had submitted certain representations/questionnaires, in course of their entitlement for a hearing before the Designated Authority where sunset review investigation was being conducted. The grievance of the petitioner is that while making the recommendation by the Designated Authority as per the notification dated 23.08.2021, the representations/answers to the questionnaires made by the petitioners were not given its due consideration.
We have been told that the recommendation by the Designated Authority had in the meantime been forwarded to the authorities in the Central Government for making the final determination.
The Supreme Court in Saurashtra Chemicals Limited vs. Union of India and others reported in (2009) 17 SCC 529 had inter-alia provided that the findings/orders of the Designated Authority are purely recommendatory and therefore, no appeal or any proceeding against the same would be maintainable. The Supreme Court further provides that the final decision on the recommendation has to be made by the Central Government and the Central Government in the present case is yet to make the final determination.
We have also taken note that the Designated Authority in its final finding by notification dated 23.08.2021 in paragraph F.1.40.h had arrived at a view that the petitioner Century Ply is an importer and a consumer and therefore, was required to fill user questionnaire response and not the import questionnaire response. The very conclusion is an indication that the questionnaire submitted by the petitioners in course of their entitlement for a hearing was not taken into consideration by the Designated Authority by providing that they were required to submit the user questionnaire response and not the import questionnaire response.
We have been told that the user questionnaire response is for a consumer whereas the import questionnaire response is for an importer and it is an admitted position of the Designated Authority that the petitioner Century Ply is an importer and a consumer.
Be that as it may, as the final determination has not yet been made by the Central Government, we request the Central Government to take note of that the import questionnaire response submitted by the petitioner at the stage of sunset review investigation was not taken into consideration by the Designated Authority by stating the reason that they were required to file user questionnaire response and not the import questionnaire response in the background of the aspect that it is an admitted position of the Designated Authority that the petitioner Century Ply is both an importer and a consumer and by taking note, give a due consideration as required under the law.
If any other representation was also submitted by the petitioners before the Designated Authority at the stage of the investigation, the Central Government may also look into it, if otherwise acceptable in law. It is also stated that the petitioners had also submitted the representation before the Designated Authority at the stage when the sunset review investigation was carried out. If it is so and if any such representation is permissible in law before the Designated Authority at the stage of taking the sunset review investigation, the Central Government may also take note of the representation and give its due consideration.
Writ petition stands disposed of in the above terms.