ELLECOT SPINNING MILLS LTD. VS FEDERATION OF PAKISTAN through Secretary, Ministry of Trade and Commerce, Islamabad, 2016 PTD-KARACHI-HIGH-COURT-SINDH 1334 (2016)

(a) Anti-Dumping Duties Act (XIV of 2015)---

----Ss. 37, 23, 2 (d) & 2 (j) (v)----Customs Act (IV of 1969), S. 31-A---Civil Procedure Code (V of 1908), O. XXXIX, Rr.1 & 2---Application under O.XXIX, Rr. 1 & 2 for temporary injunction---Anti-Dumping duty, validity of---Effective rate of duty---Applicability---National Tariff Commission issued notice to the plaintiff whereby Anti-Dumping Duty had been preliminary determined under S. 37 of Anti-Dumping Duties Act, 2015 on prices of Polyester Staple Fiber---Plaintiff challenged said notice on ground that as the plaintiff had entered into a binding contract by establishing a Letter of Credit, the Anti-Dumping Duty could not be levied on the goods being imported under said Letter of Credit---High Court had already allowed release of consignment pending adjudication of the suit subject to furnishing post-dated cheques in the Court for disputed amount of the duty---Plaintiff, contended that no duty having been levied prior to impugned notice, the plaintiff had acquired vested right, and that no Anti-Dumping duty, therefore, was to be paid---Validity---Matter in question was not a case of any vested rights, which might have accrued to the plaintiff for the reason that the investigation with regard to imposition of the Anti-Dumping Duty had been initiated by the defendant authority in terms of S. 23 of Anti-Dumping Duties Act, 2015 when the plaintiff had not established the Letter of Credit---Pursuant to initiation of the investigation, notices had been issued to the respective suppliers and exporters/producers had responded to the request of the defendant for providing information and data for the purpose of the investigation---Plaintiff's plea as to accrual of any vested right was misconceived and factually incorrect, as the Anti-Dumping Duty had been levied on the exporters/producers, who had apparently participated in the investigation proceedings---Applicant/interveners were parties before the authorities in the final determination of levy of the impugned Anti-Dumping Duties---Impugned notice reflected that the investigation under S. 23 of Anti-Dumping Duties Act, 2015 had been initiated by the authorities on the application made by the applicant/interveners---Object of the Anti-Dumping Duties Act, 2015 was to protect the local industry against dumping prices of foreign origin goods--Applicant/interveners, if not necessary party, were proper party, and to implead them in present matter would be in the fairness of things---Presence of the interveners would facilitates in the proper adjudication of the dispute in question and no prejudice would be caused to the plaintiff---High Court directed Court Nazir to get encashment of the cheques and pay the amount to the authorities and directed the plaintiff to amend title of the plaint impleading the applicant/interveners---Application for temporary injunction was dismissed, whereas the other applications by the interveners were allowed, in circumstances.

Al-Samreiz Enterprises v. Federation of Pakistan 1986 SCMR 1917; Muhammad Anwar v. Federation of Pakistan and others 2013 PTD 1568 and Messrs Fazal Din and Sons (Pvt.) Ltd. v. Federal Board of Revenue, Islamabad and others 2009 SCMR 973 ref.

S.M. Ilyas and another v. Karachi Building Control Authority and another PLD 2001 Kar. 85 ref.

Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1975 SC 463; Syed Ahmed Kirmani v. Punjab Province and others 1982 CLC 590 and Naseem Abdul Sattar v. Federation of Pakistan and others PLD 2013 Sindh 357 distinguished.

Muhammad Anas Makhdoom for Plaintiff.

Waqas for Defendants No.2.

Ameen Abbasi and Kafeel Ahmed Abbasi for Defendants Nos. 5

Salman Zaheer for Intervener.

Date of hearing: 4th February, 2016.

ORDER

Through this suit the plaintiff has impugned Notice dated 3-10-2015 issued by the National Tariff Commission, whereby, Anti-Dumping Duty has been preliminary determined under section 37 of the Anti Dumping Duties Act, 2015, ("Act, 2015") on prices of Polyester Staple Fiber on the ground that the plaintiff had entered-into a binding contract by establishing a Letter of Credit dated 18-09-2015, hence such Anti-Dumping Duty cannot be levied on the goods being imported under the said Letter of Credit. Along with the plaint listed application bearing CMA No.15962/15 has been filed, whereby, release of consignment has been sought pending final decision of instant Suit. By way of an interim order dated 7-11-2015, such release was allowed on furnishing Post dated cheques to the Nazir of this Court for the disputed amount of duty. Counsel for the plaintiff submits that when the plaintiff had established the Letter of Credit there was no Anti-Dumping duty imposed on the product in question. He further submits that since no duty was levied prior to the impugned notice, the plaintiff acquired a vested right and therefore no Anti-Dumping Duty is to be paid by the plaintiff. He further submits that since there is no corresponding provision in the Act, 2015, such as section 31A in the Customs Act, 1969, therefore, the principle laid down by the Hoon'ble Supreme Court in the case of Al-Samreiz Enterprises v. Federation of Pakistan (1986 SCMR 1917) still holds field insofar as the Letter of Credit in question is concerned. In support of his contention he has relied upon the cases of Muhammad Anwar v. Federation of Pakistan and others (2013 PTD 1568) and Messrs Fazal Din and Sons (Pvt.) Ltd. v. Federal Board of Revenue, Islamabad and others (2009 SCMR 973).

I have heard the counsel for the plaintiff and perused the record. Though the counsel for the plaintiff has advanced his arguments on the premise that since vested rights have accrued to the plaintiff, and therefore, insofar as the goods imported through subject Letter of Credit are concerned, no Anti-Dumping Duty can be imposed as the principle laid down in the case of Al-Samrez Enterprises (Supra); and the provisions of section 31-A of the Customs Act would not come in the way of the plaintiff as there is no corresponding provision under the Act, 2015. However, on perusal of the facts of instant case as well as the impugned Notice, it appears that instant matter is not a case of any vested rights, which may have accrued to the plaintiff for the simple reason that the investigation with regard to imposition of preliminary Anti-Dumping Duty was initiated by defendant No.2 admittedly on 24-04-2015 in terms of section 23 of the Anti-Dumping Ordinance, 2015 (now enacted as Act, 2015) when the plaintiff had not established the Letter of Credit in question. It further appears to be an admitted position that pursuant to initiation of the investigation on 24-4-2015 notices were issued to the respective suppliers in China and at-least 9 exporters/producers have responded to the request of defendant No.2 for providing information/data for the purpose of investigation. Therefore, since the Anti-Dumping Duty is levied on the Exporters/Producers who have apparently participated in the investigation proceedings, such plea raised by the learned counsel for the plaintiff with regard to accrual of any vested right is misconceived and factually incorrect. In the circumstances, I am not inclined to dilate upon the proposition advanced at the bar by the Court for the plaintiff with regard to the dicta laid down by the Hon'ble Supreme Court in the case of Al-Samrez Enterprises (Supra) and the effect of the provisions of section 31-A of the Customs Act, 1969 vis- -vis the Act, 2015, and leave it open for discussion in an appropriate case as and when brought before this Court. Accordingly, in view of such position, the listed application was dismissed by means of a short order on 4-2-2016 and these are the reasons thereof. The Nazir is directed to seek encashment of Post dated cheques, furnished if any, pursuant to order dated 7.113.2015 and shall pay the same to Defendant No.5 forthwith by proceeding in accordance with law.

Order on CMA Nos.16167 and 17321 of 2015 under order 1 Rule 10, C.P.C.

These two applications have been filed by the applicants/interveners, who are manufacturers of Polyester Staple Fiber in Pakistan. Learned counsel appearing for the applicants/interveners submits that the applicants have in fact approached defendant No.2 under section 20 of the Act, 2015 for taking remedial measures with regard to the injury being caused to the local producers of Polyester Staple Fiber by dumping prices of Chinese goods. He further submits that under section 2(d) of the Act, 2015, the applicants/Interveners are proper parties to the instant proceedings. In support of his contention he has relied upon the case of S.M. Ilyas and another v. Karachi Building Control Authority and another reported as PLD 2001 Karachi 85.

Mr. Waqas, Counsel for defendant No.2, has supported the applicants/interveners' applications.

On the other hand counsel for the plaintiff has opposed the listed applicants on the ground that the applicants/interveners are not proper parties and since only a legal issue has been raised on behalf of the plaintiff that vested rights have accrued in respect of letter of Credit established on 18-09-2015, therefore, no prejudice would be caused to the applicants/interveners, if listed applications are dismissed. In support of his contention he has relied upon the cases of Islamic Republic of Pakistan v. Abdul Wali Khan reported as PLD 1975 Supreme Court 463, Syed Ahmed Kirmani v. Punjab Province and others reported as (1982 CLC 590) and Naseem Abdul Sattar v. Federation of Pakistan and others reported as PLD 2013 Sindh 357.

I have heard all the learned counsel and perused the record. The present proceedings are governed by the Act, 2015, wherein, section 2(d) defines "Domestic industry" and section 2(j) defines "interested party". Section 2(d) states that Domestic Industry means the domestic producer as whole of a domestic product or those means collective output of that produce; whereas, section 2(j)(v) provides that any producer of domestic like product in Pakistan is an interested party. Moreover, the impugned Notice reflects that the investigation initiated by defendant No.2 under section 23 of Act, 2015 was done on the application made by the applicants/interveners. It would not be out of place to mention that the object and intention behind enacting the Act, 2015, is to protect the local Industry against dumping prices of Foreign Origin goods.

In the circumstances, it appears that the applicants/interveners are proper parties, if not necessary parties, and it would be in the fairness of things to implead them as defendants in the instant matter. Their presence would facilitate in proper adjudication of the dispute in hand, whereas, no prejudice whatsoever would be caused to the plaintiff as admittedly these applicants/interveners are parties before defendant No.2 in final determination of the levy of impugned Anti-Dumping Duties. The case law relied upon by the counsel for the plaintiff being based on entirely different facts is not relevant, hence of no assistance. Accordingly, in view of hereinabove facts and circumstances, both the listed applications were allowed by means of a short Order dated 04.02.2016 by directing the plaintiff to file amended title within fifteen days and these are the reasons thereof.

SL/E-2/SindhOrder accordingly.