2022 PLP 399 (PTD)

JAWAD HASSAN, J.

Through this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged the validity of final determination dated 17.03.2020 and instructions dated 01.07.2020 issued by the National Tariff Commission (the "NTC") on dumped imports of cold rolled coils/sheets/ strips in Pakistan.

2. Learned counsel for the Petitioner submits that the Petitioner imports cold rolled coils/sheets/strips being raw material and due to the Impugned instructions he will suffer an injury as well as irreparable loss in its business. He further submits that the NTC functions under the Anti-Dumping Duties Act, 2015 (the "Act") and imposes anti-dumping duties under the Act. He pleads that the anti-dumping duties are levied under Section 3 of the Act and the NTC has to follow the mechanism provided in Section 20 of the Act while deciding application of any domestic industry, which is defined in Section 2(d) of the Act. Adds that the NTC will first give notice of hearing to the aggrieved parties and then start investigation on application of the domestic industry but in this case, no notice of hearing was issued to Petitioner, which is also violation of Article 10-A of the Constitution. He has drawn attention of the Court towards the provisions of Article 4 of the Constitution, which provides that it is an inalienable right of every citizen to be treated in accordance with law and no action detrimental to his/her life, liberty, reputation or property shall be taken except as per law.

3. Learned Deputy Attorney General has objected to the maintainability of this petition by stating that the final determination has been made by the NTC and the Petitioner may challenge the Impugned Instructions before the Anti-Dumping Appellate Tribunal.

4. Mr. Waqas Amir, Advocate for NTC submits that the final determination and impugned instructions of the NTC is appealable under Section 70(1)(ii) of the Act. He objected to the maintainability of this Writ Petition because the appeal of the Petitioner is already pending with the Anti-Dumping Appellate Tribunal (the "Tribunal"), which is fully functioning, therefore, this Court has no jurisdiction to entertain the matter. He objected to the territorial jurisdiction of this Court as well.

5. When confronted, learned counsel for the Petitioner concedes that the Petitioner has already filed appeal along with stay applications before the Tribunal. But Respondents are going to take coercive measures against the Petitioner under the garb of impugned notices due to which fundamental rights of trade and business guaranteed under Article 18 of the Constitution will be infringed. He maintains that under the Doctrine of Ripeness, the matter before the Tribunal has not been ripened because entire machinery and procedure is provided for adjudication of disputes before the appellate forum. Next contended that under Section 70(3) of the Act the Appellate Tribunal shall handle such an appeal as a priority and shall issue its decision on the appeal within thirty days of its filing. The counsel submits that it is settled law that unless the matter is decided by at least one independent forum outside the revenue hierarchy, the recovery of disputed amount cannot be made. He relied on Shell Pakistan Limited v. Government of Punjab and others (2020 PTD 1607), Messrs Pak Saudi Fertilizers Ltd. v. Federation of Pakistan and others (2002 PTD 679), Z.N. Exports (Pvt.) Ltd. v. Collector Sales Tax and others (2003 PTD 1746), "Messrs Pearl Continental Hotel, Lahore through Director Finance and another v. Customs, Excise and Sales Tax Appellate Tribunal, Lahore and another" (2005 PTD 1368), "Sun-Rise Bottling Company (Pvt.) Limited v. Federation of Pakistan and 4 others" (2006 PTD 535), "Karachi Shipyard and Engineering Works Limited, Karachi v. Additional Collector, Customs, Excise and Sales Tax (Adjudication-III), Government of Pakistan, Karachi and 2 others" (2006 PTD 2207), "Pak Suzuki Motors Co. Ltd. through Senior General Manager (Corporate Planning and Logistics), Karachi v. Collector of Customs through Assistant Collector (Processing), Karachi" (2006 PTD 2237) and "Mari Petroleum Company Ltd. v. Appellate Tribunal Inland Revenue and others" (2016 PTD 2406) wherein direction was issued to the authorities to decide the appeal and granted temporary relief as stopgap measures. He further adds that the appeals pending before the Tribunal have not been decided and if any recovery is made before decision of matter, the Petitioner shall suffer irreparable loss and injury. He lastly submits, that the Petitioner would be satisfied, if direction be given to the Appellate Tribunal to decide the appeals within an appropriate period. He also requests that interim relief may be granted to the Petitioner till the decision of appeal or stay application.

6. Since the appeals of the Petitioner is pending before the Tribunal which is established for this purpose under Section 64 of the Act with the procedure provided under Section 70 of the Act in which the contention of the Petitioner will be heard as per Section 70 of the Act. It is to be noted that Section 73 of the Act clearly states that the Tribunal shall handle appeals as priority and issue decision within 30 days by giving day to day hearing as per Section 70(6) of the Act. Moreover, the Tribunal may pass order if thinks fit while examining appeal under Section 70(7) and shall give decision in writing detailing the issue raised in the appeal with the reasons as provided under Section 70(10) of the Act. Then after decision on the stay application as well as the Appeal the Tribunal shall provide copy of the order, which is appealable under Section 70(13) of the Act before this Court within 90 days.

7. In view of above, I am inclined to grant, as a stop gap arrangement temporary relief to the Petitioner by directing Appellate Tribunal to decide the appeal of the Petitioner in accordance with law, within a period specified under the Act. The learned Tribunal is also directed to decide the interim relief application of the Petitioner (if pending), at the first instance strictly in accordance with law expeditiously preferably within a period of one (01) week from the date of receipt of certified copy of this order. Till the decision of application for interim relief by the Appellate Tribunal, no coercive measure shall be taken against the petitioner.

8. Disposed off. SA/M-171/L Order accordingl