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CASE NO.: Special Leave Petition (civil)  9423-9432 of 2000

PETITIONER: Tata Chemicals Ltd

RESPONDENT: Union of India & Ors

DATE OF JUDGMENT: 24/03/2008

BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM & AFTAB ALAM

JUDGMENT: J U D G M E N T

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:

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       "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.,

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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.