AHMAD NADEEM ARSHAD, JUSTICE:--

Through this Constitutional Petition, filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioners have called into question the vires, validity and legality of conclusion of sunset review dated 30.08.2022 and notice dated 31.08.2022 whereby the National Tariff Commission (The Commission) while deciding the review decided to continue definitive Anti-Dumping Duties for another period of 05-years w.e.f. February 08, 2022.

2. Facts in brevity are that an application under Sections 20 and 24 of the Anti-Dumping Duties Act, 2015 (The Act) was received by the Commission on 29.06.2015 from M/s International Steel Limited, Karachi, with the allegation that galvanized coils and sheets are being imported to Pakistan at dumped prices from the People Republic of China and said import has caused and is threatening to cause material injury to the domestic industry. After receipt of the said application, notice of initiating of Anti-Dumping Investigation of galvanized coils and sheets was issued on 11.08.2015; that the Commission after conducting the Anti-Dumping Investigation, issued a final determination notice dated 08.02.2017 for imposition of definitive Anti-Dumping Duty on dumped imports of galvanized coils and sheets; that the Commission issued notice dated 25.10.2021 with regard to impending expiry of Anti-Dumping Duties by notifying that the Definitive Anti-Dumping Duties levied on dumped import of galvanized coils and sheets shall be terminated on 08.02.2022; that an application under Section 58(3) of the Act was moved to the Commission on 15.12.2021 from M/s. International Steel Limited, Karachi and M/s. Ayesha Steel Mills, Karachi for sunset review of Anti-Dumping Duties levied on dumped import of galvanized coils and sheets into Pakistan; that the Commission conducted the proceedings of the sunset review and vide order dated 30.08.2022 decided that there is a need to continue imposition of Definitive Anti-Dumping Duties on dumped imports of product under review from China as per specific rates mentioned in the decision for another period of 05 years w.e.f. 08.02.2022; that in this regard a notice dated 31.08.2022 was also issued. Being dissatisfied, petitioners have filed instant Constitutional Petition by challenging the decision of said sunset review and notice.

3. Preliminary arguments are heard. Record perused.

4. The main objection raised by the learned counsel for the petitioners is with regard to the constitution of the Commission who decided the said review. He maintains that as per Section 4 of the National Tariff Commission Act, 2015, it is provided that the Commission shall comprise of five members, appointed by the Federal Government in the prescribed manner but the impugned decision of sun set review is passed by a three Member Commission, hence, the same is not sustainable in the eyes of law. For ease Section 4 of the Act ibid is reproduced as under:-

�4. Constitution of the Commission.--(1) The Commission shall comprise five members, appointed by the Federal Government in the prescribed manner. The Federal Government shall appoint one of the members to be Chairman of the Commission.

(2) The Commission shall be body corporate having perpetual succession and a common seal. It shall have the authority and duty to exercise the functions assigned to it by or pursuant to this Act or any other law for the time being in force, shall have the power and authority to acquire, hold and dispose of property, both movable and immovable, in its own name, shall have the power and authority to open a personal ledger account in its own name and may sue and be sued in its own name.

(3) The head office of the Commission shall be at Islamabad and the Commission may establish offices at such places as it may deem necessary.

(4) No act, proceedings or decision of the Commission shall be invalid by reason only of the existence of a vacancy or defect in the Constitution of Commission.

In this regard, it is observed that subsection (04) of the Section 04 of the Act ibid reflects that no act, proceeding or decision of the Commission shall be invalidated by reason of only of the existence of a vacancy or defect in the Constitution of the Commission. In this view of the matter, this objection taken by the learned counsel for the petitioners is not tenable.

5. It is observed that the statute has provided a remedy of appeal under Section 70 of the Anti Dumping Duties Act, 2015. Before further discussion, it is better to see Section 70 of the Act ibid which reads as under:

70. Appellate procedures.--(1) Any interested party may prefer an appeal to the Appellate Tribunal against--

(1) the initiation of an investigation or a preliminary determination, where it is alleged that it does not satisfy the requirements laid down in sections 23 and 37 respectively;

(ii) an affirmative or negative final determination by the Commission under section 39�

(iii) any final determination pursuant to a review�

(iv) an order of the Commission for termination of investigation under Section 41; or

(v) a determination of the Commission under section 52.

(2) An appeal under clause (i) of subsection (1) shall be filed within thirty days of the publication of notice of initiation or notice preliminary determination, as the case may be.

(3) The Appellate Tribunal shall handle such an appeal as a priority and shall issue its decision on the appeal within thirty days of the filing of an appeal with the Appellate Tribunal:

Provided that the filing of an appeal under clause (i) of subsection (1) shall have no effect on the Commission�s conduct of investigation.

(4) All appeals under clauses (ii), (iii), (iv) and (v) of subsection (1) shall be filed within forty-five days from the date of publication in newspapers of a public notice or as the case may be, date of the decision of the Commission of any affirmative or negative final decision or determination or termination of investigation by the Commission, and shall be in such form and contain such information as may be prescribed.

(5) Such an appeal shall be disposed of and the decision of the Appellate Tribunal pronounced, as expeditiously as possible as but not later than forty-five days from the date of receipt of an appeal compliant with the requirements contained in this Act.

(6) The Appellate Tribunal shall hear the appeal from day-to- day.

(7) In examining an appeal under subsection (1), the Appellate Tribunal may make such further inquiry as it may consider necessary, and after giving the Commission and an appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a determination of the Commission appealed against:

Provided that in case the Appellate Tribunal decision requires action by the Commission, it shall remand the case to the Commission.

(8) After examining the appeal, the Appellate tribunal shall assess the facts related to the impugned determination of the Commission. The Appellate Tribunal shall determine whether the establishment of the facts of the Commission was proper and whether the commission�s evaluation of those facts was unbiased and objective. The Appellate tribunal shall base this determination on the official record maintained by the Commission or any other documents relied upon by the Commission in reaching the determination being appealed.

(9) Where the Appellate Tribunal determines that the Commission�s establishment of the facts was proper and its evaluation was unbiased and objective, it shall confirm the appealed determination of the Commission provided that the Appellate Tribunal is satisfied that in reaching its determination, the Commission complied with the relevant provisions of this Act.

(10) The decision of the Appellate Tribunal shall be in writing, detailing the issues raised in the appeal and the arguments adopted by the appellant and the Commission. The Appellate tribunal shall also provide reasons for reaching its decision with reference to the provisions of this Act and the facts of the case.

(11) The Appellate Tribunal shall provide copies of its decision to all the appellants and the respondents including the Commission no later than five days from the date of rendering its decision.

(12) The Appellate Tribunal may, if it deems necessary, require an appellant to provide security in such form as may be prescribed, at the time of filing of an appeal.

(13) The decision of the Appellate Tribunal shall be appealable in the High Court. The High Court shall render a decision within ninety days of receiving an appeal from the decision of the Appellate Tribunal:

Provided that the High Court shall not make an interim order against the conduct of investigation by the Commission unless the Commission has been given notice of the application and has had an opportunity of being heard and the High Court, for reasons to be recorded in writing, is satisfied that the interim order would not have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest [or State property] or of impeding the assessment or collection of public revenues:

Provided further that The Appellate Tribunal may, if it thinks fit, accept an application from any party to an appeal in which the Appellate Tribunal has rendered its decision, for a clarification of any of the issues raised by the Appellate Tribunal in its decision:

Provided also that such application shall specify the precise issue in respect of which a clarification is sought and give reasons as to why a clarification is necessary:

(14) The Appellate Tribunal shall only accept such application if it is satisfied that a material issue discussed in its decision requires further clarification or elaboration. The party likely to be adversely affected by such clarification shall also be given a notice by the Appellate Tribunal:

Provided that no application under this subsection shall be accepted by the Appellate Tribunal later than thirty days of its decision.

(15) The Appellate Tribunal shall perform its functions under this Act in accordance with such procedures as may be prescribed.

(16) A determination of the Commission shall be given full force and effect during the pendency of any appeal of such determination.

TO BE CONTINUEDï