As per the judgement of Lahore High Court (LHC), National Tariff Commission (NTC) is bound to immediately appoint Member fully qualified as per requirements of the National Tariff Commission Act, 2015 for completing ongoing anti-dumping investigations of different sectors.
The LHC has issued a detailed judgement on a petition of importer against the NTC and directed the commission that as an immediate measure, the existing NTC must comply with the requirement of section 5 of the NTC Act and ensure that the qualification and eligibility of the Members is strictly in accordance with the said provision of law.
The LHC while disposing of one of the writ petitions of importers, ruled that the qualification of one of the members did not meet the requirements of new NTC laws and therefore NTC is not validly constituted after promulgation of new NTC laws. The LHC has upheld all initiation notices however the proceedings have been held in abeyance till the replacement of the one of the members of the NTC. The Lahore high Court has directed the Federal Government to appoint one member of the NTC within one month and directed NTC to continue pending investigations only after the appointment of its member by the Federal government.
the court said that one of the Members did not meet the qualification requirement provided under section 5 (2) (a) of the Act, therefore, the matter is placed before the Federal Government and NTC to ensure that NTC complies with the requirement of section 5 (2) (a) of the Act within a period of one month from the receipt of this order", which will require fresh induction of one Member.
The judgement has decided the instant petition, as well as, connected Writ Petitions No.3850/2016, 4213/2016 and 4206/2016 as all these cases raise common questions of law and facts.
According to the judgement, section 4 of the Act does not give any timeframe, however, the new NTC envisaged under the law is a five member Commission which has its own institutional importance and cannot be taken lightly. This provision must also be complied with but can be done after sections 3 and 5 have been given effect to. Therefore, the Federal Government, as well as, NTC will ensure that NTC is upgraded in terms of section 4 of the Act within three months from the receipt of this order.
Till such time the NTC complies with the requirement of sections 3 and 5 of the Act, the impugned Notice of Initiation shall be held in abeyance and as soon as NTC is functional in terms of sections 3 and 5, it may proceed further with the said notice strictly in accordance with law.
Once the requirement of section 4 of the Act is complied with within a period of three months from the receipt of this order, the proceedings pending before the three Members, NTC shall automatically be taken over by the new Commission comprising five Members in order to ensure continuity.
Non-compliance of sections 3, 4 and 5 is not a fault of the private parties agitating their matters before NTC, therefore, the timeframe given in the said order for compliance of the law cannot adversely affect the interest of private parties. Therefore, Notice of Initiation already issued will remain intact and NTC will proceed further with the said Notice after complying with the aforementioned provisions in the above terms, LHC order added.
The LHC stated that the provisions of sections 3, 4 and 5 of the Act can be reconciled keeping in view the challenges of international trade and economy which are ongoing and cannot be kept on a hold. The Act provides protection to the local industry, as well as, an economic corridor for international trade by foreign parties. This equilibrium has to be maintained. The above provisions of the Act have to be fashioned so that continuity and functionality of NTC is not disturbed in the larger interest of the economy and international trade.
Harmonisation of sections 3, 4 and 5 of the Act can be achieved by placing the objectives under sections 3 and 5 and section 4 on two different time planes. One of the Members does not meet the qualification requirement provided under section 5 (2) (a) of the Act, therefore, the matter is placed before the Federal Government and NTC to ensure that NTC complies with the requirement of section 5 (2) (a) of the Act within a period of one month from the receipt of this order", which will require fresh induction of one Member, court added.
According to sources, it has been urged that the Federal Government should appoint the member without delay and remove this infirmity on immediate basis so that investigations against unfair trade practices of foreign exporters may not get affected and domestic industry gets timely relief against unfair trade practices. It is a known fact that the investigations of different sectors could not be completed due to one or the other technical reasons for the past six years. The new laws of NTC provide protection to the local industry against foreign products. However, to ensure continuity and functionality of NTC, immediate compliance is needed. The appointment of the member in NTC is also crucial as the antidumping investigations are time bound and on the other hand the domestic industry is continuously suffering from severe injury in the hands of dumped imports. In the present regime of WTO, tariff measures like anti-dumping and countervailing duties are the only recourse available to the domestic industry against unfair trade practices therefore the government should make every effort to save its industry from collapse by keeping the National Tariff Commission fully functional at all times as already the making of an application under these laws is a cumbersome and lengthy process, they added.