2025 PLP 1025 (PTD)

JAWAD HASSAN, J.

This judgment will also decide the connected petition bearing W.P.No.3196 of 2024, as common questions of law and facts are involved in these constitutional petitions. I. PRELUDE OF THE CASE

2. The Petitioner in the instant petition and in the connected petition (hereinafter would be referred as the "Petitioners") have challenged notices of initiation of an anti-circumvention investigation dated 04.05.2024 (the "impugned notices") under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") issued under Section 63(4) of Anti-Dumping Duties Act, 2015 (the "Act") by the Respondent No.2/National Tariff Commission (the "NTC") when the "NTC" received an application under Section 63 of the "Act" read with Rules 23 and 25 of the Anti-Dumping Duties Rules, 2022 (the "Rules") on 24.03.2025 from the Respondents Nos.3 and 5, (M/s Century Paper and Board Mills Limited and Bulleh Shah Paper and Board (Pvt.) Limited, respectively) who are manufacturers of coated bleached paperboard and alleged that Chinese exporters are circumventing the anti-dumping duties through product modification, which undermined the remedial effects of the anti-dumping duties in terms of quantities and prices of the domestic like product. II. OVERTURE OF THE CASE

3. Unnecessary details apart, the "Petitioners" are importing Two Side Coated Bleach Board from their exporters which, as per their version, has duly been verified, determined by the Custom Authorities being Two Side Coated Bleach Board. On 21.12.2015, an application under Section 20 of the "Act" was moved by the Respondent No.3 before the "NTC" which initiated the anti-dumping investigation against allegedly Dumped Imports of Coated Bleached Board/One Side Coated Folding Box Board with White Back into Pakistan originating and exported from the People's Republic of China; pursuant thereto notice of initiation dated 08.02.2016 was also issued followed by notice of preliminary determination dated 28.02.2017 and report on preliminary determination dated 28.02.2017. The "NTC" vide final determination dated 10.04.2018 notified the imposition of anti-dumping duties on the investigated products for a period of five years. Subsequently, the "NTC" in terms of Section 58(2) of the "Act" issued notice of impending expiry of anti-dumping duties dated 23.11.2021 notifying the anti-dumping duties levied on dumped imports of investigated product shall terminate on 28.02.2022 unless a review under Section 58(3) of the "Act" is initiated before the date of termination of the duties. Under the Section ibid, sunset review of anti-dumping duties levied on dumped imports of investigated products was initiated and concluded by the "NTC" upon filing of application by the Respondent No.3 leading to issuance of notice of conclusion of sunset review on 25.08.2022. Thereafter, the Respondent No.3 filed complaint before the Federal Board of Revenue and the "NTC" under Section 63 of the "Act" pursuant thereto notice dated 24.05.2024 was issued, hence this petition. III. PETITIONERS SUBMISSIONS

4. Shafqat Mehmood Chohan, ASC for the Petitioners inter alia argued that the Custom Authorities are the primary authorities required to determine the status, nature as well as qualification of the goods for the purpose of declaration under the relevant heads and such requirement of classification of goods of the Petitioners is available with them as is evident from the order dated 21.01.2023 passed by the Collectorate of Customs qua clearance of the goods of the Petitioners thus issuance of impugned notice by the "NTC" and filing of applications by the Respondent No.3 are illegal, without lawful authority, unconstitutional, against the rules and fundamental rights of the Petitioners; that the declaration of the goods by the custom authorities as two sided coated bleached board is the actual determination which cannot be interfered with by the "NTC"; that the "NTC" has initiated the impugned proceedings without seeking determination verification and classification of the goods from the Custom Authorities for the purpose and justification of the goods to be considered under the alleged investigation of the anti-dumping duties; that the "NTC" has failed to verify the same and has issued the impugned notice merely on the information/documents provided by the Respondent No.3 IV. SUBMISSION OF THE "NTC"

5. Mr. Waqas Amir, learned counsel for the Respondent/NTC by way of preliminary objection objected to maintainability of these petitions on the grounds that the Petitioners have efficacious and alternate remedy available under the "Act" and that the Petitioners are not aggrieved parties in terms of Article 199 of the "Constitution" because no adverse action or order has been passed against them as the "NTC" has only initiated the investigation, which is at preliminary stage, and once it passes the determination, the aggrieved parties will have the remedy to file an appeal before the Tribunal under Section 70 of the "Act". While defending the impugned notice, he has stated that the same has rightly been issued in accordance with Section 63 of the "Act" read with Rule 27 of the "Rules" by the "NTC" pursuant to an application filed by the domestic industry. V. SUBMISSION OF THE RESPONDENTS NOS.3 AND 5 (M/s Century Paper and Board Mills Limited and Bulleh Shah Paper and Board (Pvt.) Limited).

6. Learned counsel for the Respondents Nos.3 and 5 Saif Ullah Khan and Rais Mahmood Ali, Advocates also objected to maintainability of these petitions on the grounds that the Petitioners have efficacious and alternate remedy available under the "Act". They have argued that the application filed by the Respondents Nos.3 and 5 were fully supported with evidences along with details explanations of circumvention practices of the exporters that has to be investigated by the "NTC" and through the impugned notice, the "NTC" has only intimated all the interested parties in terms of Section 2(j) of the "Act" to register themselves as interested parties and file comments and provide evidence. He has added that the Two Side Coated Bleach Board is a slightly modified version of One Side Coated Bleach Board with minimal addition of coating on the lower side to justify classification of Two Side Coated Bleach Board. VI. DETERMINATION BY THE COURT

7. It was all started when an application under Section 20 of the "Act" was moved by the Respondent No.3 being domestic industry in terms of Section 2(d) of the "Act" upon which order of initiation was passed by the "NTC" on 04.02.2016 that was published subsequently on 08.02.2016 in the newspaper for initiation of investigation qua anti-dumping investigation against alleged dumped import of Coated Bleached Board from China. The "NTC" upon such initiation, made preliminary determination under Section 37 of the "Act" and final determination was passed under Section 39 of the "Act" and imposed definitive anti-dumping duty on dumped imports of the investigated products as per Section 50 of the "Act". A sunset review of anti-dumping duty was also conducted by the "NTC" under Section 58 of the "Act" by continuation of anti-dumping duties for further five years effective from 28.02.2022 through notice of sunset review dated 24.08.2022 and thereafter, the "NTC" received applications by the Respondents Nos.3 and 5 under Section 63 of the "Act" who alleged therein that the Chinese exporters are circumventing the anti-dumping duties through slight product modification upon which anti-circumvention investigation have been initiated by the "NTC" under Section 63(4) of the "Act". Pertinently, anti-dumping investigations and anti-circumvention proceedings are both trade remedies, but they address different issues related to unfair trade practices. Anti-dumping investigations focus on whether a foreign exporter is selling goods in a foreign market at prices below their cost of production or below a comparable price in the exporter's home market, potentially harming domestic industries. Whereas anti-circumvention proceedings, on the other hand, investigate whether measures against dumping or subsidies are being circumvented, meaning thereby the product is being imported in a way that evades the original anti-dumping or countervailing duty. In essence, the anti-dumping investigations are about preventing unfair pricing practices, while anti-circumvention proceedings are about ensuring that existing anti-dumping measures are not bypassed through various methods. Before proceeding further, it would be advantageous to reproduce the prayer made by the Petitioners which reads as: "Under the above circumstances, it is humbly prayed that the writ petition may very kindly be accepted and the application as well as issuance of impugned notice F.No.1/2024/NTC / CBB/Circumvention, dated 04.05.2024 may kindly be declared illegal, without lawful authority, unconstitutional, against the provisions of Anti Dumping Duties Act as well as Custom Laws. It is further prayed that till decision of main petition, operation of impugned notifications the F.No.1/2024/NTC/CBB / Circumvention, dated 04.05.2024, may very graciously be suspended in the interest of justice and fair play".

8. The prayer made by the Petitioners clearly indicates that these petitions were filed against notice of initiation of anti-circumvention investigation of anti-dumping duties. Relevant part thereof reads as under: "All interested parties are invited to make their views/comments known to the Commission, and to submit information and documents (if any) not later than 45 days of the date of publication of this notice in the press in Pakistan. All data and information regarding this investigation should be submitted to the Secretary of the Commission".

9. Bare reading of above said notice makes it clear that only the interested parties were invited to make comments known to the "NTC" and to submit any information or documents and so far "NTC" has not imposed any anti-dumping duty rather initiated the investigation of circumvention against the exporters on dumped imports of one side coated bleached paper board through slight modification of the product by applying coating of less than 20 gsm of any substance such as starch, clay or calcium carbonate etc on the other side and declaring it as two side coated bleached paper board. When confronted to former, how writ is maintainable and how the Petitioners are aggrieved of issuance of the impugned notice rather the "NTC" is giving chances of hearing to the interested parties before passing of any order, he could not tender satisfactory reply rather reiterated the grounds of this petition. Record is indicative of the fact that the Respondents Nos.3 and 5 being a domestic industry in terms of Section 2(d) of the "Act" submitted applications before the "NTC" alleging therein that Chinese exporters were circumventing the anti-dumping duties through product modification upon which the "NTC" has determined that the Chinese exporters are prima facie, circumventing antidumping duties imposed on dumped imports of one-side coated bleached paperboard through slight modification of the product by applying coating of less than 20 gsm of any substance such as starch, clay or calcium carbonate etc. on the other side and declaring it as two-side coated bleached paperboard. From the literal standpoint, the word anti-circumvention has been defined in Blacks'Law Dictionary, as "Any act of fraud whereby a person is reduced to a deed by decreet" whereas anti-circumvention measures have been defined under Section 63 of the "Act" which deals with the mechanism for final review of anti-dumping duties and outlines the procedure for handling the termination of anti-dumping duties; object whereof is to empower the "NTC" to investigate and address practices where exporters or importers attempt to evade imposed anti-dumping duties and includes actions such as change in pattern of trade, process or work for which there is insufficient due cause or economic justification e.g. slight modifications of products, misclassification or routing goods through third countries to avoid imposed duties. During course of arguments, learned counsel for the Petitioners stated that during review application, the "NTC", after adjudicating upon the matter through its initial memo, has failed to justify the claim of circumvention of the anti-dumping duties through documentary evidence thus, the application and impugned notice are without lawful authority. While learned counsel for the Respondent representing the "NTC" argued that this issue was though earlier raised by the Respondents Nos.3 and 5 in their applications of sunset review yet was not decided as no data or complete information was provided before the "NTC" at that time and such observation pertaining to different period of data/information does not bar the Respondents Nos.3 and 5 to file present application which contains data and complete information for seven years from 01.01.2017 to 13.12.2023 along with evidence of circumvention of anti-dumping duties and resultantly the "NTC" prima facie, held that the circumvention investigation of the anti-dumping duties imposed on dumped imports of one-side coated bleached paperboard originated and/or exported from China may be initiated under Section 63(4) of the Act and Rule 26 of the "Rules".

10. Be that as it may, arguments and pleadings of the parties have raised disputed question of facts and factual controversy which cannot be decided in the constitutional jurisdiction as this Court cannot enter into factual realm or embark upon an exercise to determine the controverted questions of facts. The resolution of such like issues is left to be decided by the proper forum prescribed by a law i.e. "NTC" which has only invited all interested parties to submit their reply/comments or evidence. Indulgence in such exercise would have effect of preempting and enforcing upon jurisdiction lawfully vested in the competent Courts. It is well settled by way of plethora of case law laid down by the superior Courts that the High Court is not to resolve the disputed question of fact in exercise of constitutional jurisdiction under Article 199 of the Constitution. Reliance is placed on "Raja Tanveer Safdar v. Mrs. Tehmina Yasmeen and others" (2024 PLC (C.S.) 957) and "Waqar Ahmed and others v. The Federation of Pakistan through Cabinet Secretariat, Establishment Division, Islamabad and others" (2024 SCMR 1877). Furthermore, the present investigation is at a preliminary stage and the "NTC" has only determined on prima facie basis that circumvention is being done. Once the "NTC" passes the determination, the aggrieved parties will have the remedy to file an appeal before the Tribunal under Section 70 of the "Act" read with Rule 30 (7) of the "Rules". Furthermore, the investigation is under process and the "NTC" has not reached to any conclusion. If the Petitioners thinks that the Respondents Nos.3 and 5 have mala fide intentions, they he may submit their views/comments with evidence before the "NTC" during the investigation. This Court in the case of "M/s Sadiq Poultary (Pvt.) Ltd. v. Federation of Pakistan and others" (PLD 2025 Lahore 57) while explaining the scope of show cause notice, has held that mere issuance of show cause notice is not an adverse order and writ petition against it is not maintainable. It has further been held in the said judgment that "the Petitioners should have responded to the show-cause notice before seeking intervention, as this practice undermines the department's ability to proceed with cases effectively". Further this Court in "Strategic Plans Division and another v. Punjab Revenue Authority and others" (PLD 2024 Lah. 545) has settled following principles in challenging show-cause notice in writ jurisdiction. i. Show-cause notice is not an adverse order unless it could be clearly shown to the satisfaction of the Court that it has been issued by an authority not vested with jurisdiction or it was issued for mala fide reasons. ii. The exception relating to want of jurisdiction does not include every jurisdictional error. A wrong exercise of jurisdiction or interpretation of the law cannot be treated as want of jurisdiction. iii. Constitutional jurisdiction is exercised if the Court is satisfied that the person is an 'aggrieved party' within the context of Article 199 of the Constitution and no adequate remedy is provided by law. If adequate statutory remedies are provided under the relevant statute, it is to be taken into consideration while exercising discretion under Article 199 of the Constitution. iv. By passing or circumventing statutory forums is to be discouraged. v. The approach should be to advance the object and purpose of a statute and every effort made to uphold the sanctity of the legislative intent rather defeating it.

11. Evidently, the prayer made by the Petitioners is to declare the impugned notice dated 04.05.2024 as illegal and without legal authority. It is to be noted that the impugned notice was neither issued against the Petitioners nor any of the Association rather it is a general notice issued by the "NTC" under Section 63 of the "Act" for initiation of investigation for the protection of manufacturing industry. Pertinently, the impugned notice issued by the "NTC" being a 'Regulator' clearly mentions the initiation of investigation as it was prima facie established that Chinese exporters were evading anti-dumping duties on one-side coated bleached paperboard by making minor changes, coating both sides and labeling it as a different product and despite this modification, the product's core characteristics and use remain the same. This tactic appears to undermine the intended impact of the anti-dumping duties, prompting the "NTC" to launch an anti-circumvention investigation under Section 63 of the "Act". The word prima facie used in the impugned notice does not mean that the "NTC" is pinpointing the Petitioners who are neither a domestic industry in terms of Section 2(d) of the "Act" nor they have locus standi to challenge the same at this stage. Even the "NTC" is only inviting the interested parties to present their views/comments on such anti-dumping circumvention that are known to the "NTC". This Court in "Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others" (2021 PTD 2126 Lahore) has already declared the "NTC" as a Regulator and observed as under "7 The NTC is an autonomous investigation authority of Government of Pakistan established under Section 3 of the National Tariff Commission Act, 2015. The functions of the Commission provided under Section 8 of the Act is to advise the Federal Government on:- (a) tariff and other trade measures to provide assistance to the domestic industry; and to improve the competitiveness of the domestic of the domestic industry; (b) trade remedy actions being faced by domestic producers and exporters; (c) rationalization of tariff and proposals for tariff reform; (d) removal of tariff anomalies; and (e) any other matter relating to tariff or trade measures that the Federal Government may refer to the Commission. The Commission under Section 8(2) of the Act also mandated to perform such other functions with respect to international trade and other matters that may be assigned to it by the trade remedy laws or any other law for the time being in force.

8. The NTC also conducts safeguard investigations against surge in imports. All such proceedings are carried out in conformity with a rule-based international trading system. The NTC advises the Government on issues related to Pakistan's industry competitiveness, promotion of exports and customs tariff rationalization".

12. The Court is also mindful of the fact that in somewhat similar circumstances, the Sindh High Court in Constitution Petition No.D-4261 of 2024 titled "Tasneem Enterprises (Private) Limited v. National Tariff Commission and 4 others" decided on 28.01.2025 has held as under: "

9. It is now a well-understood principle that before an aggrieved person triggers judicial review, the Constitutional Court must, at the proverbial doorsteps of judicial review, satisfy itself that "no adequate remedy is provided by law" to the petitioner. Section 33 of the Anti-Dumping Duties ("ADD") Act, 2015 requires NTC to provide an opportunity to all interested parties to see the information submitted to it. The NTC has already invited all interested parties to make their views/comments known to it and to submit information and documents (if any) not later than 45 days from the date of publication of this notice in the press in Pakistan. Section 35 of the ADD Act 2015 requires NTC to solicit, gather, obtain, accept and reject information for the purpose of an investigation. Any party as defined as an interested party under Section 2(j) of the ADD Act, 2015, if it so wishes, may send a written request for a hearing in accordance with Rule 14 of the Anti-Dumping Rules ("ADR"), 2022 within 30 days of publication of this notice to the Secretary of NTC. Section 38 also allows any interested party to submit written arguments. The petitioner should have engaged the machinery provided under the ADD Act, 2015, as discussed above. In view of the foregoing, it is expected that the petitioner should first exhaust the adequate remedy provided under the ADD Act, 2015, which remedy the petitioner has attempted to side-step and managed to frog-leap its way to the High Court by filing this constitutional petition. The present action/filing on the part of the petitioner to immediately approach the High Court is to be discouraged, which view has been consistently articulated by the Superior Courts of Pakistan in several judgments and, most recently by the Supreme Court of Pakistan in the Mian Azam Waheed case: "[t[he writ jurisdiction of the High Court cannot be exploited as the sole solution or remedy for ventilating all miseries, distresses and plights regardless of having equally efficacious, alternate and adequate remedy provided under the law which cannot be bypassed to attract the writ jurisdiction. The doctrine of exhaustion of remedies stops a litigant from pursuing a remedy in a new court or jurisdiction until the remedy already provided under the law is exhausted. The profound rationale accentuated in this doctrine is that the litigant should not be encourage to circumvent or bypass the provisions assimilated in the relevant statute paving the way for availing remedies with precise procedure to challenge the impugned action...."

10. In view of the above, the petitioner should have exercised recourse to the machinery provided under the ADD Act, 2015, read with the ADR Rules, 2022, and challenged the "Initiation Notice of Anti-Circumvention" investigation within the framework of the special law instead of filing this petition against the said investigation".

13. Likewise, the Peshawar High Court, Peshawar in (W.P.No.3396-P/2024) titled "Niaz Ahmad v. Federation of Pakistan through Secretary Commerce and Industry, Islamabad and others" decided on 12.03.2025, have already dismissed the cases wherein notices under Section 63 of the "Act" were issued.

14. Since through the impugned notice, a chance has been given to the interested parties to appear and produce evidence/material and no adverse order has been passed therefore, at this stage, this writ is not maintainable being premature which is accordingly dismissed. However, the Petitioners, if so advised, may file reply to the impugned notice taking all the objections therein. MQ/E-4/L Petitions dismissed.