AYESHA A. MALIK, J. --- Through this petition, the Petitioner has challenged the Notice of Preliminary Determination dated 12.05.2017 and Final Determination dated 29.07.2017.
2. The grounds for challenge essentially are that the Notice of Initiation passed on 30.01.2016 was issued by the National Tariff Commission ("Commission") which had not been constituted as per law. Subsequent thereof the appointment of the Members and Chairman of the Commission was declared illegal and a new Commission was notified vide notification dated 05.09.2016. The new appointments were also challenged in several petitions and during the pendency of the same, Notice of Preliminary Determination was issued on 12.05.2017 and Notice of Final Determination was issued on 29.07.2017.
3. Learned counsel for the Petitioner argued that this Court vide judgment dated 18.04.2017 passed in W.P. No, 39536/2016 held that the Members and Chairman were duly qualified hence upheld the constitution of the Commission and the eligibility of its members. Subsequent thereof on the same issue Peshawar High Court through its judgment dated 28.11.2017 set aside the-appointment of the Chairman of the Commission holding that he was not eligible for the post. Learned counsel further argued that this petition has been filed subsequent to the orders of the Peshawar High Court, which gives a fresh cause of action to the Petitioner to challenge the constitution and the eligibility of the Commission. He further argued that an appeal has been filed by the Petitioner against the Notice of Final Determination, however since the Commission is disfunctional, hence the appeal cannot proceed.
4. On behalf of Respondent No, 3, Mr. Muhammad Azeem Daniyal, Advocate appeared on watching brief. He raised objections on the maintainability of the instant Writ Petition arguing that the Petitioner is not entitled to the relief claimed as the issues raised by the Petitioner have already been decided by this Court and upheld by the august Supreme Court of Pakistan and as such no fresh cause of action has arisen in favour of the Petitioner. He further argued that the Petitioner has not disclosed the true facts and has misinterpreted the orders of the august Supreme Court of Pakistan. Learned counsel explained that against the decision of this Court dated 15.03.2016 passed in W.P. Nos, 3850, 4735, 4206 and 4213 of 2016, the august Supreme Court of Pakistan vide its order dated 06.04.2017 upheld the orders of this Court and dismissed the petitions on the ground that the Notice of. Initiation was protected under the de facto doctrine and that the newly constituted Commission can examine the initiation of proceedings. Therefore the Notice of Initiation is no longer open to challenge in a writ petition. He further stated that the Appellate Tribunal is functioning and has issued notices on 03.01.2018 for hearing in the matters pending before it. Copy of the said notice has been placed on record.
5. The basic grievance of the Petitioner is against the Notice of Preliminary Determination dated 12.05.2017 and Final Determination dated 29.07.2017. The same two notices were previously challenged by the Petitioner before this Court wherein vide order dated 31.05.2017 in W.P. No, 6062/17 alongwith connected petitions, the petitions were dismissed. Against the said order Civil Petitions No, 1914-L, 1915-L, 2012-L to 2030-L and 2033-L to 2036-L of 2017 were filed and on 16.11.2017 and leave was granted to consider the constitution of the Commission; the eligibility of the Chairman and its members; whether the issuance of notice of initiation was without jurisdiction. In the said order the Petitioner alongwith others sought interim relief from the august Supreme Court of Pakistan, however the application seeking interim relief was dismissed. It is also noted that in the earlier order of 06.04.2017, the august Supreme Court of Pakistan upheld the decision of this Court and maintained the Notices of Initiation requiring the newly constituted Commission to look into the matter, therefore to the extent of the challenge to the Notice of Initiation, Preliminary Determination Notice and Final Determination, the august Supreme Court of Pakistan did not set aside the Notice of Initiation in its order dated 06.04.2017 nor did it grant any interim relief in its order dated 16.11.2017. Since the Petitioner is already before the august Supreme Court of Pakistan on these matters it cannot agitate the same before this Court and cannot raise these issues again simply on account of the fact that a Division Bench of the Peshawar High Court has set aside the appointment of Respondent No,
2. In terms of the orders of the august Supreme Court of Pakistan produced before this Court the constitution and eligibility of the Chairman and Members is pending before the august Supreme Court of Pakistan and any grievance that. the Petitioner may have should be taken up in the petitions pending before the august Supreme Court of Pakistan.
Even otherwise it is noted that against the Notice of Final Determination issued under Section 139 of the Anti-Dumping Duties Act, 2015, an appeal lies under Section 70 against an affirmative or negative final determination made by the Commissioner/under Section 39. Under the circumstances the Petitioner can urge its grounds on merits once an affirmative or negative determination is made.
6. In view of the aforesaid the Petitioner is not entitled to the relief sought for. Petition is dismissed in limine.