Full Judgment Text & Judicial Ruling

2025 P T D 1025 [Lahore High Court (Rawalpindi Bench)] Before Jawad Hassan, J Messrs EJAZ BROTHERS Versus FEDERATION OF PAKISTAN, NATIONAL TARIFF COMMISSION and others Writ Petitions Nos.1695 and 3196 of 2024, decided on 6th May, 2025. (a) Anti-Dumping Duties Act (XIV of 2015)--- ----S. 63---Anti-circumvention investigation and anti-dumping investigations---Distinction---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---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 S. 63 of the Anti-Dumping Duties Act, 2015 ('the Act, 2015') 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 National Tariff Commission (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. (b) Anti-Dumping Duties Act (XIV of 2015)--- ----S. 63(4)---Anti-circumvention investigation, initiation of---Issuance of notice, assailing of---Petitioners (importers of two side coated bleach board) assailed notices regarding initiation of an anti-circumvention investigation by the National Tariff Commission (NTC/ Respondent) on an application from Paper and Board Mills /Respondents being manufacturers of coated bleached paperboard---Allegation levelled by Paper and Board Mills /Respondents ('domestic industry') was that Chinese exporters were 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--- Validity---Contents of the impugned notice made 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 had 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 grm 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---Through the impugned notice, a chance had been given to the interested parties to appear and produce evidence / material and no adverse order had been passed---Constitutional petition, filed by importers, was dismissed, in circumstances. (c) Anti-Dumping Duties Act (XIV of 2015)--- ----S. 63---Constitution of Pakistan, Art. 199---Initiation of anti-circumvention investigation, assailing of---Constitutional jurisdiction of the High Court, invoking of---Scope---Petitioners (importers of two side coated bleach board) filed constitutional petition assailing Notices regarding initiation of an anti-circumvention investigation by the National Tariff Commission (NTC / Respondent) on an application from Paper and Board Mills / Respondents being manufacturers of coated bleached paperboard---Allegation levelled by Paper and Board Mills /Respondents ('domestic industry') was that Chinese exporters were 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---Validity---Petitioners had raised disputed question of facts and factual controversy which could not be decided in the constitutional jurisdiction as this/High Court could not enter into factual realm or embark upon an exercise to determine the controvertial questions of facts---The resolution of such like issues was left to be decided by the proper forum prescribed by a law i.e. NTC which had 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---High Court is not to resolve disputed questions of fact in exercise of constitutional jurisdiction under Art. 199 of the Constitution---Since through the impugned notice, a chance had been given to the interested parties to appear and produce evidence / material and no adverse order had been passed, therefore, constitutional petition, being non-maintainable, was dismissed, in circumstances. 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 ref. (d) Anti-Dumping Duties Act (XIV of 2015)--- ----Ss. 63 (4) & 70---Anti-Dumping Duties Rules, 2022, R. 30---Constitution of Pakistan, Art. 199---Initiation of anti-circumvention investigation, assailing of---Right of appeal, availability of---Constitutional petition---Maintainability---Petitioners (importers of two side coated bleach board) filed constitutional petition assailing Notices regarding initiation of an anti-circumvention investigation by the National Tariff Commission (NTC/ Respondent) on an application from Paper and Board Mills /Respondents being manufacturers of coated bleached paperboard---Allegation levelled by Paper and Board Mills / Respondents ('domestic industry') was that Chinese exporters were 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---Validity---Present investigation was at a preliminary stage and the NTC had only determined on prima facie basis that circumvention was being done---Once the NTC passed the determination, the aggrieved parties would have the remedy to file an appeal before the Tribunal under S. 70 of the Anti-Dumping Duties Rules, 2022 ('the Rules, 2022')---Furthermore, the investigation was under process and the NTC had not reached to any conclusion---If the petitioners think that the Respondents (domestic industry) had mala fide intentions, they may submit their views/comments with evidence before the NTC during the investigation---Since through the impugned notice, a chance had been given to the interested parties to appear and produce evidence / material and no adverse order had been passed, therefore, constitutional petition, being non-maintainable, was dismissed, in circumstances. Messrs Sadiq Poultary (Pvt.) Ltd. v. Federation of Pakistan and others PLD 2025 Lah. 57 ref. (e) Anti-Dumping Duties Act (XIV of 2015)--- ----Ss. 63(4)---Anti-Dumping Duties Rules, 2022, Rr. 23 & 25---Constitution of Pakistan, Art. 199---Anti-circumvention investigation---Show-Cause Notice, challenging of---Constitutional petition---Principles regarding challenging of show-cause notices in writ jurisdiction of the High Court stated. 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 Art. 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 is to be made to uphold the sanctity of the legislative intent rather defeating it. Strategic Plans Division and another v. Punjab Revenue Authority and others PLD 2024 Lah. 545 ref. (f) ----Ss.2(d) & 63 (4)---Anti-Dumping Duties Rules, 2022, Rr. 23 & 25---Anti-circumvention investigation , initiation of---Scope---Domestic industry , rights of---Petitioners (importers of two side coated bleach board) assailed notices regarding initiation of an anti-circumvention investigation by the National Tariff Commission (NTC/ Respondent) on an application from Paper and Board Mills / Respondents being manufacturers of coated bleached paperboard---Allegation levelled by Paper and Board Mills /Respondents ('domestic industry') was that Chinese exporters were 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---Validity---Impugned notice was neither issued against the petitioners nor any of the Association rather it was a general notice issued by the NTC under S. 63 of the Anti-Dumping Duties Act, 2015, ('the Act, 2015') for initiation of investigation for the protection of manufacturing industry---Pertinently, the impugned notice issued by the NTC being a 'Regulator' clearly mentioned 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, i.e. coating both sides and labeling it as a different product and despite this modification the product's core characteristics and use remained the same---Said tactic appeared to undermine the intended impact of the anti-dumping duties, prompting the NTC to launch an anti-circumvention investigation under S. 63 of the Act 2015---The word prima facie used in the impugned notice did not mean that the NTC was pinpointing the Petitioners who were neither a domestic industry in terms of S. 2(d) of the Act, 2015 nor they had locus standi to challenge the same at present stage---Furthermore NTC was only inviting the interested parties to present their views/comments on such anti-dumping circumvention that were known to the NTC---Since through the impugned notice, a chance had been given to the interested parties to appear and produce evidence / material and no adverse order had been passed, therefore, constitutional petition was dismissed, in circumstances. Shaheen Merchant v. Federation of Pakistan/National Tariff Commission and others 2021 PTD 2126; Tasneem Enterprises (Private) Limited v. National Tariff Commission and 4 others (Constitution Petition No.D-4261 of 2024) and Niaz Ahmad v. Federation of Pakistan through Secretary Commerce and Industry, Islamabad and others (W.P.No.3396-P of 2024) ref. Shafqat Mehmood Chohan, Advocate Supreme Court with Wasi Ullah Surrani for Petitioner. Barrister Zain Mansoor and Naila Rubbab, Assistant Attorney Generals on behalf of Respondent No.1. Barrister Raja Hashim Javed, Assistant Advocate General with Ms. Talat Nisar for the Federation. Waqas Amir and Azfar Naeem for Respondent No.2. Saif Ullah Khan and Rais Mahmood Ali for Respondents Nos.3 and 5. Dates of hearing: 16th January, 11th, 19th, 25th February, 6th, 26th March, 24th, 30th April and 6th May, 2025. JUDGMENT 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…

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