HOME LIFE through Managing Partner VS NATIONAL TARIFF COMMISSION through Chairman, Islamabad, 2011 PTD-ISLAMABAD 1007 (2011)

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

----Ss. 11 & 52---National, Tariff Commission Act (VI of 1990), S.11---Constitution of Pakistan, Art. 199---Constitution petition---Imposition of Anti-Dumping Duty---Petitioners who imported tiles, had challenged proceedings whereby Anti-Dumping Duty was imposed by authorities/ Commission on the imported goods---Earlier constitutional petition filed by the petitioners was dismissed and petitioners had approached the Supreme Court---Supreme Court setting aside order passed by High Court, remanded case to the authorities/Commission to proceed afresh on the claim by the petitioners---Petitioners had filed present constitutional petition in which it was claimed that as Supreme Court had declared order of the authorities/Commission as void and coram non judice, amount paid by the petitioner as Anti-Dumping Duty was liable to be refunded back to the petitioners---Validity---Held, Supreme Court had not finally decided the case, but had remanded the case on legal ground to the authorities/Commission and Commission had been given authority to look into the matter regarding imposition of levy of Anti-Dumping Duty---Basic object of Anti-Dumping Duty was that the importers could not sell the articles on the price less than the price prevailing in the country wherefrom said articles had been imported---Such was the exclusive prerogative of the National Tariff Commission to allow or refuse the refund---Authorities/Commission had to record the evidence and pass an order on the basis of evidence---High Court, under constitutional jurisdiction, could not enter into the factual controversy or investigate the claim of the petitioners--Basic" claim of the petitioners was still pending before the Commission; and the Supreme Court had not passed any order regarding the merits of the case---Since the case was remanded to the Commission, petitioners could raise their objections before the Commission---High Court could not enter into the exercise of calculating the Anti-Dumping Duty as said matter was within the power of National Tariff Commission---Petitioners, would be at liberty to raise the claim regarding refund of duty paid by then: before authorities/Commission.

Mian Muhammad Athar and Shafqat Mahmood Chohan for Petitioners.

Salman Farooq and Shafi Muhammad Chandio, Deputy Attorney General for Respondents

Date of hearing: 27th January, 2011.

JUDGMENT

RIAZ AHMED KHAN, J.---This order is directed to dispose of Writ Petition No.2000 of 2010.

2. Facts constituting the background of the present petition are that petitioners are importers of tiles being imported from Peoples Republic of China. The government in the year 2005 initiated proceedings for imposition of Anti Dumping Duty under the Anti Dumping Ordinance, 2001, regarding tiles being imported from China. The basic object of Anti Dumping Duty is that the importers may not sell the articles on the prices less than the prices prevailing in the country wherefrom the articles have been imported. The purpose of this is to save the industry of Pakistan. In the case of difference of prices the importer has to pay the Anti Dumping Duty, which is to be determined on the basis of prices prevailing in the country wherefrom the article is imported and the prices prevailing in Pakistan. When the Government initiated the proceedings regarding levy of Anti-Dumping Duty, the petitioners along with others tiled the writ petitions' in this court, in which they claimed that initiation of investigation for imposition of Anti-Dumping Duty upon the Chinese Porcelain/Ceramics Tiles by seeking information/details from the Bureau of Foreign Trade and Economic Corporation of China as well as Foshan Ceramic Industrial, China may kindly be declared without lawful -authority, illegal, void ab initio and un-constitutional.

3. The above said writ petitions were dismissed and thereafter the present petitioners along with petitioners of the other petitions approached the Hon'ble Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan vide judgment dated 29-10-2009 held that section 11 of National Tariff Commission Act, 1990, provides that whenever inquiries or investigations are to be initiated by the Commission, these shall be initiated by the Chairman and two members together as Commission. Since in the cases of petitioners, the Commission was not properly constituted, therefore, the writ petitions were accepted, the order of this court was set aside and cases were remanded back to the Commission to proceed afresh on the complaints against the petitioners. These cases are still pending before the Commission.

4.? The petitioners then filed the present petition claiming therein that for the clearance of their consignment, they were compelled to pay Anti Dumping Duty. The amount paid by each petitioner is mentioned in the writ petition. The grievance of the petitioners is that since the Hon'ble Supreme Court of Pakistan declared the orders of Commission/respondent as void and coram non judice so the amount paid-by them as Anti Dumping Duty is liable to be refunded back to the petitioners. The petition before filing the present petition also approached the Commission for refund of the amount of duty paid but their request was turned down.

5. have heard learned counsel for the parties and have also perused the record.

6. The contention of learned counsel for the petitioners that the case of the petitioners has finally been decided by the Hon'ble Supreme Court of Pakistan is not correct. The fact of the matter is that the Hon'ble Supreme Court of Pakistan on legal ground has remanded back the cases to the Commission and the Commission has been given authority to look into the matter regarding imposition of levy of Anti Dumping Duty. In addition to that Anti Dumping Duty is levied under section 11 of Anti Dumping Duties Ordinance, 2000 and for the refund of the duty paid, section 52 of Anti Dumping Duty has been provided in the Ordinance, specific period of limitation and the grounds on the basis of which refund can be allowed are also given in the said section. As such it is the exclusive prerogative of time National Tariff Commission to allow or refuse the refund. It is also to be noted that the Commission has to record the evidence and on the basis of evidence would pass an order. This court in the constitutional jurisdiction cannot enter into the factual controversy or investigating the claim of the petitioners. Furthermore, the basic claim of the petitioners is still pending before the Commission and the Hon'ble Supreme Court of Pakistan has not passed any order regarding the merits of their case. It has never been held that the Anti Dumping Duty by itself was illegal, the order of this Court was set aside simply on the ground that the Commission was not properly constituted. Since the case was remanded back to the Commission, so the petitioners can raise their objections before the Commission. This Court also cannot enter into the exercise of calculating the Anti Dumping Duty for the reason that, if the liability has passed on to the consumer then in that case the petitioners would not be entitled to the recovery of Anti Dumping Duty. All these facts as well as other grounds for refund of Anti Dumping Duty are within the powers of National Tariff Commission. The Commission has also not turned down the claim of the petitioners. They have also given the decision that Hon'ble Supreme Court of Pakistan has not decided the cases of the petitioners on merits and since the Hon'ble Supreme Court of Pakistan has not passed any order regarding the refund of the duty, so the petitioners could not be refunded back the amount of Anti Dumping Duty. In the said circumstances, the petitioners would be at liberty to raise the claim regarding the refund before the Commission.

7. Keeping in view the above mentioned facts and circumstances, this writ petition is dismissed. However, the parties are left to bear their own costs.

H.B.T./4/Isl.???????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.