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Tata Chemicals Limited (2) v. Union Of India And Others
Factual and Procedural Background
The opinion concerns multiple connected proceedings (special leave petitions, writ petitions, a civil appeal, and transfer applications) taken up together because they involved identical issues. Earlier, a set of SLPs (C) Nos. 8203-12 of 2000 arising from a judgment and order dated 21-1-2000 of the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi (Cegat) had been dismissed by a two-Judge Bench on 11-5-2000 in Saurashtra Chemicals Ltd. v. Union of India, on the reasoning that the Designated Authority's order was recommendatory and that an appeal lay only against a “determination” to be made by the Central Government.
Subsequently, another two-Judge Bench dealing with SLPs (C) Nos. 9423-32 of 2000 noted that the challenge before Cegat was not only to the Designated Authority’s determination but also to a Customs Notification dated 27-10-1998 imposing anti-dumping duty—an aspect not apparently brought to the notice of the Bench that dismissed the earlier SLPs. Because of an apparent conflict between the dismissal order dated 11-5-2000 and the later order dated 24-8-2000 (which held the SLPs maintainable and issued notice), the matter was directed to be placed before a three-Judge Bench.
Legal Issues Presented
- Whether appeals before Cegat were maintainable when the challenge included the Customs Notification dated 27-10-1998 imposing anti-dumping duty, treated as a “determination” contemplated under Rule 18 of the 1995 Rules.
- Whether there was a real conflict between the two earlier two-Judge Bench orders (dated 11-5-2000 and 24-8-2000) regarding maintainability, and if so, how it should be resolved.
Arguments of the Parties
Respondents' Submissions (Additional Solicitor General)
- Pointed out that a two-Judge Bench had declined to entertain SLPs against the impugned Cegat order by order dated 11-5-2000.
- Submitted that, since another two-Judge Bench had later held SLPs Nos. 9423-32 of 2000 maintainable and issued notice by order dated 24-8-2000, the matter should be placed before a three-Judge Bench due to the apparent conflict.
Senior Counsel (including for Petitioner and Others)
- Other Senior Counsel, including Mr Shanti Bhushan, adopted the submission that the matters be placed before a three-Judge Bench due to the apparent conflict.
Petitioner's Submission (Senior Counsel)
- Submitted that a writ petition had already been filed and therefore the question may not be relevant.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Saurashtra Chemicals Ltd. v. Union of India (2009) 17 SCC 529, (2000) 118 ELT 305 | The order of the Designated Authority is purely recommendatory; the appeal lies against the “determination” by the Central Government; hence the Court declined Article 136 jurisdiction in that context. | The three-Judge Bench explained that the earlier dismissal occurred because the relevant aspect (challenge to the Customs Notification dated 27-10-1998) was not brought to that Bench’s notice, and therefore the earlier dismissal did not govern the later maintainability issue. |
| Order dated 24-8-2000 (2007) 15 SCC 596 | Clarified that notice was issued because the distinctive feature was a challenge to the Customs Notification dated 27-10-1998; also noted that “determination” under Rule 18 had taken place with issuance of the notification, making appeal to Cegat maintainable. | Treated as reflecting the correct position; used to conclude that the SLPs were rightly entertained and that appeals before Cegat were maintainable where the notification evidenced determination. |
Court's Reasoning and Analysis
The Court examined why two earlier two-Judge Bench orders appeared to conflict. It noted that the 11-5-2000 dismissal proceeded on the understanding that only a recommendatory order of the Designated Authority was involved and that “determination” by the Central Government had yet to be made, making an appeal premature.
However, the Court emphasized that the later set of SLPs involved a distinctive feature: a challenge to the Customs Notification dated 27-10-1998 imposing anti-dumping duty. This notification was not apparently brought to the attention of the Bench that dismissed the earlier SLPs, and the impugned Cegat order did not refer to the notification though it was challenged in the later SLPs.
The Court accepted the clarification in the 24-8-2000 order that issuance of the 27-10-1998 notification amounted to a “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. On that basis, it concluded that appeals before Cegat were maintainable where the challenge was to the determination, which was evident from the issuance of the notification.
Consequently, the Court held that the later order (24-8-2000) reflected the correct position, and that the earlier dismissal (11-5-2000) was attributable to the relevant aspects not being brought to the Bench’s notice.
Holding and Implications
DIRECTED TO BE LISTED BEFORE A TWO-JUDGE BENCH FOR MERITS: The Court held that appeals before Cegat were clearly maintainable when the challenge was to the determination as reflected by the issuance of the Customs Notification dated 27-10-1998, and ordered that the cases be placed before a Bench of two Hon'ble Judges to be dealt with on merits.
The direct implication is procedural: the connected matters were not finally adjudicated on merits by this three-Judge Bench; instead, they were sent to a two-Judge Bench for substantive consideration. The opinion indicates that this conclusion rests on the presence of the 27-10-1998 notification evidencing “determination” under Rule 18; it does not state any broader implications beyond resolving the maintainability/conflict concern in this procedural posture.
Dr. Arijit Pasayat, J.— Since the special leave petitions, writ petitions, civil appeal and the transfer applications involve identical issues, they are taken up together for disposal. When SLPs (C) Nos. 9423-32 of 2000 were listed for admission, it was noted that earlier SLPs (C) Nos. 8203-12 of 2000 (Saurashtra Chemicals Ltd. v. Union of India (2009) 17 SCC 529, (2000) 118 ELT 305) filed against the judgment and order dated 21-1-2000 of the Customs, 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 Special Leave Petitions (Civil) Nos. 9423-32 of 2000 noted that the challenge before Cegat was not only against the determination of the Designated Authority but also against the Customs Notification dated 27-10-1998 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 11-5-2000 (2009) 17 SCC 529, (2000) 118 ELT 305, and the order of Cegat itself does not refer to the Customs Notification dated 27-10-1998 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:
“It is submitted by Mr Mukul Rohatgi, learned Additional Solicitor General appearing for the respondents that against the impugned order of Cegat a two-Judge Bench of this Court by order dated 11-5-2000 (2009) 17 SCC 529, (2000) 118 ELT 305 declined to entertain the SLPs filed by another party. In respect of the same impugned order SLPs Nos. 9423-32 of 2000 filed by the petitioner, another two-Judge Bench by order dated 24-8-2000 (2007) 15 SCC 596 held that the SLPs 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. Chidambaram, the learned Senior 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 the 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 (2009) 17 SCC 529, (2000) 118 ELT 305, 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 (2007) 15 SCC 596 clarified the position as to why notice was issued notwithstanding the earlier dismissal of several SLPs. The distinctive feature was challenge to the Customs Notification dated 27-10-1998. This aspect was not apparently noted by the two-Judge Bench when the matter was taken up on 11-5-2000 (2009) 17 SCC 529, (2000) 118 ELT 305. It is also noted in the order dated 24-8-2000 (2007) 15 SCC 596 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 “the Rules”) has taken place with the issuance of the Notification dated 27-10-1998 and, therefore, the appeal could be maintainable to Cegat. The order dated 24-8-2000 (2007) 15 SCC 596 has brought out the clearly distinctive features. Since the order dated 24-8-2000 (2007) 15 SCC 596 reflects the correct position the SLPs, therefore, were rightly entertained. The dismissal of the SLPs by order dated 11-5-2000 (2009) 17 SCC 529, (2000) 118 ELT 305 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 Cegat were clearly maintainable when challenge was to the determination made is clear from the issuance of the Notification dated 27-10-1998.
6. The cases shall be placed before the Bench of two Hon'ble Judges to be dealt with on merits. Ordered accordingly.
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