FORTE TILES through Proprietor VS NATIONAL TARIFF COMMISSION through Secretary, Islamabad, 2008 PTD-LAHORE-HIGH-COURT-LAHORE 1276 (2008)

Anti-Dumping Duties Ordinance (LXV of 2000)---

---Ss. 23, 27, 37, 49, 54, 55 & 56---Constitution of Pakistan (1973), Art.199---Constitutional petition---Imposition of anti-dumping duty---Petitioners imported the ceramics porcelain tiles and filed bill of entries prior to the notification dated 30-11-2006 whereby, provisional anti-dumping duties on dumped imports of tiles was imposed---Validity---Provisions of S.56, Anti-Dumping Duties Ordinance, 2000 provided that provisional measures and definitive anti-dumping duties could only be applied to products which entered into Pakistan for consumption on or after the date of publication of notice of affirmative preliminary or final determination in an investigation, save as provided under Ss.49, 54 & 55 of Anti-Dumping Duties Ordinance, 2000---Combined reading of Ss.49, 54 & 55 of Anti-Dumping Duties Ordinance, 2000, made it abundantly clear that products which entered into Pakistan for consumption on or before the date of publication of notice could be subjected to. duty---Disputed duty, in circumstances could not be levied/imposed on the products which entered into Pakistan before 30-11-2006, when the notification was issued---Petitioner submitted application to Authority with the request that duties upon the tiles under consideration could not be charged being imported prior to the issuance of notification dated 30-11-2006, and the Authority was illegally charging the anti-dumping duties upon the tiles--Authorities without considering the material irregularities pointed out to them by number of petitioners, issued the impugned notification---Constitutional petition was allowed holding that impugned notification issued on 30-11-2006 was not applicable upon the transactions of imports made by the petitioner.

Shafqat Mehmood Chohan for Petitioner.

Muhammad Akram Sheikh and Muhammad Kamran Shoaib for Respondents.

Mazhar Bangash with Sheraz Ahmad, Legal Officer NTC.

ORDER

SAYED ZAHID HUSSAIN, C.J.---This constitutional petition has been filed by Messrs Fort Tiles (Pvt.) Ltd., contending therein that certain kind of commodities relating to the ceramics porcelain tiles glazed or un-glazed etc. in different sizes, are mainly being imported by the importers of Pakistan from China to meet the requirement of the country. Petitioner is one of the major and prominent importer of porcelain ceramics tiles and sanitary wares, being imported from abroad including China. The respondent issued notice under section 27-Anti Dumping Ordinance, 2000, on 27-2-2006 on the basis of so-called order, dated 14-3-2006 that the petitioner imported tiles and filed bill of entry with respondent No.3 detailed in para (d) of the petition, due to non-availability of funds, it requested respondent No.3 to transfer the goods in bond after payment of 1% charges of duties and taxes payable by the petitioner prior to the issuance of notification of Anti-Dumping, dated 30-11-2006; that respondents Nos.2 and 3 without complying the orders of High Court as well as without considering the material irregularities pointed out to the respondents by number of petitioners, issued the impugned Notification, dated 30-11-2006. The petitioner filed letter on 12-12-2006 with respondent No.3 for release of tiles without payment of Anti-Dumping duties, as the bills of entries were filed prior to the imposition of Anti-Dumping duties but to no avail. Petitioner also submitted application to respondent No.2 on 19-12-2006 with the request that the duties upon the tiles under consideration cannot be charged being imported prior to the issuance of Notification dated 30-11-2006 but respondent No.2 is illegally charging the Anti-Dumping duties upon the tiles hence, the petitioner, through the instant Writ Petition, invoked the constitutional jurisdiction of this Court.

2. Notices were issued to the respondent with a direction to file report and parawise comments, in response thereof, respondents Nos.1 and 2 have filed their parawise comments, according to which, the issue in the instant writ petition has been contested before the High Court and Supreme Court in four rounds of litigation. Writ Petitions Nos.708, 707, 706, 748, 749, 750, 751 and 582 of 2006 were filed in the Lahore High Court and were dismissed vide order, dated 20-3-2006. In second round writ petitions detailed in para. 1 were filed which were dismissed. The appeal filed before the Supreme Court met dismissal, therefore, the instant writ petition is not maintainable. It is added that commission's preliminary determination is strictly in accordance with the provisions of the Ordinance; that the commission imposed provisional Anti-Dumping duties on dumped imports of tiles from China on 30-11-2006; that notice of Preliminary determination was published in official gazette on 30-11-2006 and in term of section 37 of the Ordinance, a copy of the same was also sent directly to all known interested parties including the importers.

3. Learned counsel contended that notification for interim Anti-Dumping duties issued on 30-11-2006 cannot be made applicable upon the imports of goods prior to the said date and Anti-Dumping duties, thus, cannot be charged upon the tiles; that action of the respondents is violative of the provisions of section 23 of the Ordinance as well as opposed to the principle enunciated in Articles 4 and 25 of the Constitution and that requirement of sections 20 and 24 of the Ordinance, have not been complied with and collection of Anti-Dumping duties without publication of the notification in the official gazette is unconstitutional.

4. Learned counsel for the respondents argued that an investigated product shall be considered to be dumped, if, it is introduced into the commerce of Pakistan at a price which is less than its normal value and that the petitioners were aware of the investigation being conducted by the commission.

5. Heard. Record perused.

6. Petitioner imported the products and filed bill of entries prior to the publication of notification, dated 30-11-2006. Whether a duty can be levied under the Ordinance? Section 56 is relevant on the subject which is re-produced below:---

"56. Circumstances in which provisional measures and anti-dumping duties shall apply save as provided for in sections 49, 54 and 55, provisional measures and definitive anti-dumping duties shall only be applied to products which enter into Pakistan for con sumption on or after the date of publication of a notice of affirmative preliminary or final determination in an investigation."

7. From its bare reading it is manifest that provisional measures and definitive Anti-Dumping duties shall only be applied to products which enter into Pakistan for consumption on or after the date of publication of notice of affirmative preliminary or final determination in an investigation, save as provided under sections 49, 54 and 55. Under section 49, if the price undertaking is violated or deemed to be violated, the Commission may, subject to the provision of this Ordinance take expeditious action, which may include immediate application of provisional measures using the best information available. In such cases definitive duties may be levied in accordance with the provisions of this Ordinance on products imported for consumption not more than 90 days before the application of such provisional measures.

8. Retroactive assessment shall not apply to the imports entered before such violation of the price undertaking. Section 54 deals with retroactive applications and provides levy of duty on products which were imported for consumption not more than 90 days prior to the date of application of provisional measures if, the Commission determines, for a dumped product in question on two conditions; Firstly, that there is history of dumping which caused injury or that the importer was, or should have been aware that the exporter practices dumping and that such dumping would cause injury; and secondly, that injury is caused by massive dumped imports of a product in a relatively short time which is likely to seriously undermine the remedial effects of the definitive anti dumping duty to be applied. Combined reading of sections 49, 54, 55 and 56 makes its abundantly clear that products which enter into Pakistan for consumption on or after the date of publication of notice, can be levied with duty. Duty thus cannot he levied on the products entered into Pakistan before 30-11-2006 when notification was issued.

9. For what has been discussed above, this petition is allowed and it is held that notification, dated 30-11-2006 is not applicable upon the transaction of imports made by the petitioner detailed in para. 3(d) of the petition.

H.B.T./F-10/LPetition allowed.