Adarsh Kumar Goel, J. - (1.) THIS petition seeks quashing of preliminary findings recorded by the designated authority under the provisions of the Customs Tariff Act, 1975 (for short, "the Act") read with the Customs Tariff (Identification, Assessment and Collection of Anti -dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short, "the Rules") recommending imposition of provisional anti -dumping duty on imports of PVC flex films and other related products into India and consequential Customs Notification No. , dated July 30, 2010, annexure P4, imposing provisional anti -dumping duty. Direction has also been sought for fixing anti -dumping duty on the basis of reference price. The case of the petitioner is that it is an Indian company engaged in the business of import of PVC flex films for sale in India. Respondent No. 4 is engaged in the production by using domestic and imported raw material. Vide the notice dated February 1, 2010, anti -dumping investigations concerning import of PVC flex films originating in or exported from China PR were initiated on the basis of application of respondent No. 4. Response was sought from all concerned and thereafter, preliminary findings were recorded by the designated authority vide the notification dated June 22, 2010, annexure P2, followed by the corrigendum dated July 7, 2010, annexure P3. Thereafter, the impugned notification dated July 30, 2010, annexure P4 was issued by the Central Government under section 9A(2) of the Act read with rule 13 of the Rules. The said notification was followed by the corrigendum dated October 19, 2010, annexure P5. The petitioner gave a reminder dated November. 18, 2010, annexure P6, to the designated authority seeking levy of anti -dumping duty based on reference price. Finding no response, this petition has been filed.
(2.) WE have heard learned counsel for the petitioner. Contentions raised on behalf of the petitioner are: (i) Investigation under rule 5(1) of the Rules can be initiated at the instance of the domestic industry, as defined under rule 2(b). Respondent No. 4 was not covered by the said definition and thus, on the application of respondent No. 4, investigation could not be initiated to determine the requirement of anti -dumping duty. Reliance has been placed on the judgment of the Andhra Pradesh High Court in Vuppalamritha Magnetic Components Ltd. v. Union of India : [2010] 256 ELT 487 (AP). (ii) Basis of anti -dumping duty could be only margin of dumping, as determined under rule 11 of the Rules on the basis of price in domestic market and the price at which the goods were exported which having not been properly determined, the levy was illegal.
(3.) ADMITTEDLY , the remedy of appeal is available to the petitioner under section 96 of the Act before the Tribunal against levy of provisional duty under section 9A(2) of the Act read with rule 13 of the Rules. The provisional duty is only operative till the normal value and margin of dumping is determined and is based on provisional estimate of value and margin. As per the impugned notification, annexure P4, the levy of provisional duty is effective only up to January 29, 2011. The impugned notification, annexure P4, is based on the preliminary findings recorded by the designated authority that the goods were exported to India from the said country below the normal value, resulting in material injury to the domestic industry. No doubt in an appropriate case, the matter may be gone into in writ jurisdiction irrespective of alternative remedy if there was patent error. In the present case, the findings are based on the evidence collected after following due procedure. It was noted that the responses from Chinese exporters were deficient which required further investigation. The designated authority made a comparison between the export price and normal value and also noticed that the imports from China were increasing, resulting in retarding of domestic industry. In view of the said findings, the impugned notification levying anti -dumping duty, cannot be held to be perverse or arbitrary so as to call for interference by this court, at this stage, ignoring the alternative statutory remedies available to the petitioner. Accordingly, the writ petition is dismissed. It is made clear that the observations made hereinabove are only to consider whether the alternative remedy should be treated as a bar to interfere at this stage and will not be treated as expression of final opinion on the merits. This order will not affect the statutory remedy of appeal in accordance with law. - - - - - - - - - - - - - - - - The Supreme Court has dismissed the appeal from this judgment - -"appeal is disposed of as having become infructuous" - -by judgment dated November 20, 2011.;