By TIOL News Service

NEW DELHI, JAN 23, 2017: THE brief facts are that pursuant to an anti-dumping complaint, investigations were carried out and which resulted in findings recorded on 11.01.2015 by the designated authority. On 07.04.2015, Notification No. 09/2015-Customs (ADD) was issued, imposing the duty recommended.

The first set of writ petitions challenged the findings; the second set challenged the anti-dumping duty levy. These writ petitions filed by other parties are pending.

Claiming to be partly aggrieved by the final findings and the notification, the present petitioner preferred an appeal before the CESTAT. When the appeal was listed before the CESTAT, it was informed that the petitions filed by other parties challenging the order of the designated authority and the anti dumping duty notification issued by the Central Government are pending.

Taking note of that fact, the CESTAT, dismissed the appeal (by the present petitioner who had not filed any writ petition questioning the anti-dumping duty or challenging the findings of the designated authority), stating that:

"2. In view of the above, the liberty is granted to the appellant to come again after having final verdict from the Hon'ble High Court, if need be, within the prescribed time. With the aforesaid liberty, the appeal is disposed of."

The petitioner urges that the CESTAT could not have dismissed the appeal in the manner that it did by the impugned order, on the ground that third parties had approached this court in writ petitions.

It was further urged that existence of an alternative remedy is a ground for refusal for exercising writ jurisdiction; that pendency of a writ petition cannot ever be a ground to deny appellate remedy, which is created specifically by the statute and exists as of right. Inasmuch as the CESTAT should have heard and disposed of the appeal on merits, the petitioner emphasised.

After extracting the decision of the Supreme Court delivered in Kranti Asso. Pvt. Ltd. & Anr vs Masood Ahmed Khan & Ors (2010) 9 SCC 496, the High Court observed that there is no doubt that the provision empowering CESTAT to act as an appellate forum is an appeal of right.

Adverting to section 9C of the Customs Tariff Act, 1975, the High Court concluded thus -

+ Parliamentary intent in the creation of an appellate forum in respect of findings by the designated authority was to provide meaningful redress by a competent appellate body.

+ The order impugned is not only cryptic but mistaken in its assumption that the pending writ petitions (of others) can provide adequate redress to the petitioner- an entirely erroneous assumption, because those writ petitions are merely pending and depend upon exercise of discretion.

+ The availability of an appellate remedy in this case, is conferment of a right to approach the higher forum for correction, on facts and law, whereas exercise of judicial review is within a restricted canvas.

+ The CESTAT has in essence, treated an appellate remedy (otherwise a compulsive jurisdiction) to be alternative and discretionary, robbing it of substantial content.

Accordingly, a direction was issued to the CESTAT President to constitute a Bench to issue a notice of hearing within six weeks and issue final orders within three months of conclusion of hearing.

The writ petition was allowed.

(See 2017-TIOL-154-HC-DEL-CUS)