Page 58 - Annual Report 2019

empowers the Central Government to frame necessary Landmark Judgments
Rules for the conduct of the investigation including
reviews at Section 8 (5). The Safeguard investigations There are many instances where provisions have been
in India are conducted by the DGTR which is a quasi- interpreted extensively by the Appellate Courts to
judicial authority whose findings are recommendatory bring clarity to the law in force. The following are some
in nature. The decisions whether or not to impose the of the important decisions of the Appellate Courts
duties so recommended are taken by the Central during the current year that have laid down the
Government acting through the standing board of jurisprudence of trade remedy investigation.
safeguards, headed by Secretary, Commerce.
1. Case Name: Jindal Poly Film Limited v.
Quantitative Restrictions: Legislative and
Designated Authority and Others, 2018 (362) ELT
procedural framework 994 (Del.)

The legislative framework for Safeguard Measures by Issues:
way of Quantitative Restrictions is contained in the
Foreign Trade (Development and Regulation) Act, 1.1 Whether the appellate remedy under Section 9C of
1992, amended in 2010, and the Safeguard Measures the Customs Tariff Act, 1975 can be invoked against
(Quantitative Restrictions) Rules, 2012. the “negative findings” of the Designated Authority?

Appeal Remedy Observations:

The Act also provides for statutory appeal under 1.2 The Hon’ble Delhi High Court held that in cases of
Section 9C which says “An appeal against the order of “negative” final findings of the Designated Authority,
determination or review thereof lies before the the parties shall have the right to approach the
Customs, Excise and Service Tax Appellate Tribunal Appellate Tribunal i.e. CESTAT. Thereby the
(CESTAT) constituted under Section 129 of Customs Appellate Court overruled the order laid down by
Act, 1962”. It has been held by the Hon’ble Delhi High CESTAT in M/s Panasonic Energy India Co. Ltd., v.
Court in the matter M/s Jindal Poly Film Ltd. v. Union of India (2017).
Designated Authority that Section 9C of the Act shall
also be available in case of negative findings issued by Implications:
the authority.
1.3 The judgment provides the domestic industry with
Apart from the statutory appeal provided in the Act, a suitable “appellate” remedy rather than a highly
the aggrieved party may also resort to invoking Writ limited “writ” remedy.
Jurisdiction under Article 226 of the Constitution of
India before the High Court with appropriate 1.4 It ensures that the appeals arising from “positive”
jurisdiction. The aggrieved party may file an appeal recommendations and “negative” recommendations
before the Supreme Court against the decisions of are treated at par and follow the same appellate
CESTAT or High Court in the form of Special Leave procedure.
Petitions/ Special Leave Appeals.
1.5 It ensures that the domestic industry aggrieved by
There is no provision for statutory appeal under the the “negative” findings of the Designated Authority
Act in case of Safeguard duty. However, the interested would be able to approach the CESTAT to get the
parties can approach the High Court with appropriate matters adjudicated.
jurisdiction in Writ Petition concerning the Safeguard
investigations. The decisions of the High Court shall 2. Case Name: Forech India Ltd. and Others. v.
be amenable to review by the Hon’ble Supreme Court The Designated Authority and Others W.P (Civil)
No. 4810, 4886/2014 & 1749/2017
in Special Leave Appeal/Petition.
Issues:
Accordingly, there are several cases in various Courts
and Tribunal against the actions of DGTR emanating
2.1 The main issues before the Hon’ble Court for its
from the issuance of final finding notification
consideration were:
recommending/ refusing imposition of AD/CVD/SG
Duty. The action of initiation and non-initiation of the
i. Whether there is an automatic extension of ADD
investigation by the Authority has also been
for the SSR period provided the initiation of the SSR
challenged.
investigation is before the expiry of the five-year levy?
The list of ongoing court cases is at Annexure I.
ii. Whether a separate notification is required for

DGTR | Annual Report 2018-19 | 50