The Islamabad High Court (IHC) has granted stay against the National Tariff Commission (NTC) order for imposition of anti-dumping duties on the alleged dumped import of electrolytic tinplate into Pakistan. In this regard, the IHC has directed the NTC to maintain status quo till the next date of hearing, which is March 31, 2020.
The IHC has issued an order in writ petition 605 of 2020 in the matter of Pakistan Vanaspati Manufacturers Association (PVMA) versus NTC. According to the IHC order, the petitioners (PVMA and its chairman) have assailed order dated January 29, 2020 passed by the Anti-Dumping Appellate Tribunal (ADAT).
The counsel has, contended that the ground whereupon the appeal has been adjourned is not tenable under the law. The IHC had directed the ADAT to decide the appeal on merit. The IHC has issued notices to the NTC and the local manufacturer to submit report and para-wise comments.
The IHC has also issued notice to the Anti-Dumping Appellate Tribunal (tribunal). "Till the next date fixed, status quo shall be maintained," the IHC order added. According to the petitioners, they are engaged in the business of production and manufacture of edible oil and vegetable ghee.
Furthermore, for manufacturing packaging cans of its products i.e. edible oil and vegetable ghee, the petitioners import electrolytic tin plates (the ET plates/investigated product), from United States of America, China, European Union including United Kingdom (UK), and Republic of South Africa (exporting countries).
The NTC is empowered to impose anti-dumping measures on products imported into Pakistan pursuant to an investigation initiated and conducted in accordance with the provisions of the Anti-Dumping Duties Act, 2015 (the ADD Act).
The special Appellate Tribunal established under the ADD Act mandated to adjudicate upon appeals arising out of determinations rendered by the NTC.
The domestic manufacturer had filed an application with the NTC to initiate an investigation against the alleged dumped import of electrolytic tinplate into Pakistan, which caused material injury to the domestic industry.
The domestic industry also requested the NTC to impose anti-dumping duties on the alleged dumped import of investigated product into Pakistan as it was causing material injury, who was producing and manufacturing similar electrolytic tinplate, but of primary quality in Pakistan.
The domestic industry alleged that the investigated product was being dumped from exporting countries at a price below the normal value of the investigated product, therefore, it caused material injury to the domestic industry as it impacted the business profitability and production in an adverse manner.
The NTC had issued a Notice of Initiation of Investigation on 20 August 2018 and initiated an investigation into the alleged dumping of the investigated product into Pakistan from the exporting countries.
In its comments, the PVMA contested that the local manufacturer was itself an importer of the investigated product and, therefore, excluded from the definition of "domestic industry", as defined in the ADD Act.
The association further contended that no material injury was being caused to the domestic industry for the investigated product. Moreover, there was no causal link between the alleged dumped imports and any alleged injury to domestic industry.
The petitioners submitted that the investigated product and the alleged domestic-like product are different in nature as the investigated product is of secondary quality, while the like product or domestic-like product is of primary quality. Therefore, the same are different in nature and hence the prices of the two products vary and cannot be compared with for the purposes of calculating dumping margins.
Consequently, the investigated product is neither a like product nor a domestic-like product. The NTC, after inviting comments from interested parties, determined that the period of investigation for the determination of dumping will be from 1st July, 2017 to 30th June, 2018, and for the determination of injury, shall be from 1st July, 2015 to 30th June, 2018 (the period of investigation/POI).
Later, the NTC imposed provisional anti-dumping duties on the alleged dumped imports of the investigated product from the exporting countries for a period of four months effective from 29th January, 2019.
The petitioners approached the IHC in writ petition no. 563 of 2019 challenging the imposition of the Provisional Anti-Dumping Duty by the NTC. The IHC vide its order dated March 11, 2019 (the first IHC order) disposed of the Writ Petition of the PVMA by observing that the tribunal constituted under the ADD Act is the competent forum for such questions.
The petitioners approached the tribunal in Appeal No. 321 of 2019 wherein the petitioners impugned the preliminary determination of NTC (the Preliminary Determination Appeal).
The petitioners in the preliminary determination judgment raised, among other contentions, the issue of "domestic industry". The tribunal directed the NTC that while partially accepting the appeal to the extent of definition of "domestic industry", the matter is remanded to the commission with the direction to take necessary action in view of the aforementioned observations while making final determination report.
The NTC issued the final determination on May 29, 2019 and relied upon "best information available" in compliance with the ADD Act. The NTC had imposed the definitive anti-dumping duty rates for a period of three years effective from date of publication of notice of preliminary determination in the official gazette i.e. January 30, 2019.
The PVMA impugned the final determination before the tribunal on the grounds that the NTC had grossly erred in rendering impugned final determination and that the same is patently without jurisdiction, ultra vires and without any legal effect.
The petitioners are aggrieved of the refusal of the tribunal to exercise jurisdiction vested in the same under the law, the impugned order, impugned final determination, impugned preliminary determination and impugned notice of investigation, and having no alternate remedy, seek interference of the IHC in exercise of its Constitutional Jurisdiction under Article 199 of the Constitution to declare the impugned order, impugned final determination, impugned preliminary determination and impugned notice of investigation as illegal.
The data and evidence relied upon by the NTC in arriving at the conclusions in the impugned final determination and impugned preliminary determination have been supplied by domestic unit, who is itself an importer of the investigated product, and hence, ineligible to file the application before the NTC.
The PVMA is suffering irreparable loss in the form of levy of anti-dumping duties, which have been imposed on the petitioners by way of impugned final determination.
It is submitted that since the impugned actions are patently without jurisdiction, the levy of or imposition of anti-dumping duties pursuant to such impugned actions directly impacts and infringes upon the fundamental rights of the petitioners guaranteed under articles 18, 23 and 24 of the Constitution.
The petitioners have requested the IHC that the writ petition may be allowed and the impugned order, impugned final determination, the impugned preliminary determination and the impugned notice of investigation be set aside as illegal, unlawful, without jurisdiction and of no legal effect.
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