Tata Chemicals Ltd Vs.
Union of India & Ors [2008] INSC 493 (24 March 2008)
Dr. Arijit Pasayat & P.
Sathasivam & Aftab Alam
SPECIAL LEAVE PETITION (C) Nos.9423-9432 of 2000 With SLP (C) No.20463 of
2000 SLP (C) No.20464 of 2000 T.C. (C) Nos. 44 & 45 of 2002 W.P. (C) No.23
of 2003 W.P. (C) No.558 of 2000 T.C. (C) No. 6 of 2001 Civil Appeal No.7189 of
2005 S.L.P. (C) Nos.9781-9790 of 2000 Dr. ARIJIT PASAYAT, J.
1. Since the Special Leave Petitions, Writ Petitions, Civil Appeal and the
Transfer Applications involve identical issues, they are taken up together for
disposal. When SLP (C) Nos.9423-9432 of 2000 were listed for admission, it was
noted that earlier SLP (C) Nos.8203-8212 of 2000 (M/s Saurashtra Chemicals Ltd.
v. Union of India & Ors.) filed against the judgment and order dated 21st
January, 2000 of Central Excise and Gold Control Appellate Tribunal, New Delhi
(in short 'CEGAT') were dismissed with the observations that the orders of the
Designated Authority, Ministry of Commerce, New Delhi, were recommendatory; and
that an appeal lies against determination; and that determination had yet to be
made by the Central Government.
2. A two-Judge Bench hearing the Special Leave Petitions (Civil) Nos.
9423-9432 of 2000 noted that the challenge before the CEGAT was not only
against the determination of the Designated Authority but also against the
Customs Notification dated 27th October, 1998 whereby anti-dumping duty was
imposed. The Bench noted that this aspect was not apparently brought to the
notice of the Bench when it passed the order dated 11th May, 2000, and the
order of CEGAT itself does not refer to the Customs Notification dated 27th
October, 1998 which was impugned in the present Special Leave Petitions. The
Bench observed that because of the same probably the Court was led to believe
that the appeal had been filed before the issuance of the notification of
determination.
Therefore, the notice was issued in the SLPs. When the matter was heard by a
two-Judge Bench on 5.3.2002, the following order was passed:
"It is submitted by Mr. Mukul Rohtagi, learned Additional Solicitor
General appearing for the respondents that against the impugned order of the
CEGAT a two Judge Bench of this Court by order dated May 11, 2000 declined to
entertain the S.L.Ps. filed by another party. In respect of the same impugned
order S.L.Ps.
Nos.9423-9432/2000 filed by the petitioner, another two Judge Bench by Order
dated August 24, 2000 held that the S.L.Ps. would be maintainable and ordered
notice. In view of this apparent conflict, submits the learned Additional
Solicitor General, the cases may be placed before a three Judge Bench. Mr.
Shanti Bhushan, learned senior counsel and the other senior counsel also
adopted the same submission. Mr. P. Chidambram, the learned seniors counsel
appearing for the petitioner submits that a writ petition is already filed
therefore this question may not be relevant. In view of the importance of the
question involved in these cases we think that it would be appropriate to place
the cases before a three Judge Bench. The Registry, is directed to seek orders
from Hon'ble the Chief Justice of India and place the cases before a three
Judge Bench preferably at an early date."
3. The Bench felt that there was conflict in the two orders.
The order dated 11.5.2000, referred to above reads as follows:
"We see no reason whatsoever to entertain these special leave
petitions. It is perfectly clear now that we have seen the provisions of the
Act that the order of the Designated Authority is purely recommendatory. The
appeal that lies is against the determination and that determination has to be
made by the Central Government. For this reason, we decline to exercise
jurisdiction under Article 136 of the Constitution of India and dismiss the
special leave petitions."
The matter was accordingly referred to a three-Judge Bench and that is how
the matter is posted before us.
4. The order dated 24.8.2000 clarified the position as to why notice was
issued notwithstanding the earlier dismissal of several S.L.Ps. The distinctive
feature was challenge to the Customs Notification dated 27th October, 1998. This aspect was not apparently noted by the two-Judge Bench when the matter was
taken up on 11.5.2000. It is also noted in the order dated 24.8.2000 that
determination as contemplated by Rule 18 of the Customs Tariff (Identification,
Assessment and Collection of Anti-Dumping Duty on dumped articles and for
determination of injury) Rules, 1995 (in short 'Rules') has taken place with
the issuance of the Notification dated 27th October, 1998 and, therefore, the
appeal could be maintainable to CEGAT. The order dated 24.8.2000 has brought
out the clearly distinctive features. Since the order dated 24.8.2000 reflects
the correct position the SLPs., therefore, were rightly entertained. The
dismissal of the SLPs. by order dated 11.5.2000 was on account of the fact that the relevant
aspects were not brought to the notice of the Bench.
5. That being so, we are of the view that the appeals before the CEGAT were
clearly maintainable when challenge was to the determination made is clear from
the issuance of the Notification dated 27th October, 1998.
6. The cases shall be placed before the Bench of two Hon'ble Judges to be
dealt with on merits. Ordered accordingly.
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