2012 (12) TMI 512 - AT - Customs

Review of order of anti-dumping duty - appeal against the order of Tribunal - Held that - The Tribunal has no power to review its own order. Rectification of mistake can be done only with in a period of six months from the date of order. In the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible. As decided in case of SUPREME COURT OF INDIA COMMISSIONER OF C. EX., MUMBAI Versus OSWAL PETROCHEMICALS LTD 2010 (7) TMI 292 Court has categorically held that the statute does not provide any remedy by way of review. Tribunal cannot exercise review powers and only rectification of mistake can be made when it is not time barred. Miscellaneous application filed before Designated Authority (DA) for seeking clarification regarding continuance of post-decisional hearing - Held that - Anti-dumping duty has not been revoked in respect of all the countries and in respect of Saudi Arabia, the anti-dumping duty has been revoked only from a subsequent date i.e. from 30-12-2011. As such, the post-decisional hearing is required to be undertaken by the DA in respect of the anti-dumping levy for the period it was in force in respect of the exports from Saudi Arabia as well as for exports from other countries for the full period. Since the six month period is already over the same will be extended by a period of another six months from the date the initial six month period has expired to enable the DA to carry out the direction contained in the final order of the Tribunal dated 11-8-2011.

Issues Involved:
1. Interim directions to stay proceedings before the Designated Authority (DA).
2. Clarification on whether the DA should continue with post-decisional hearing.
3. Review of Tribunal's Final Order dated 11-8-2011.
4. Tribunal's power to review its own order.
5. Applicability of the Supreme Court's decision in the case of Automotive Tyre Manufacturers Association (ATMA).
6. Prejudice against RIL and HP due to the Tribunal's order.
7. Procedural aspects regarding the hearing of appeals and issuance of notices.

Issue-wise Detailed Analysis:

1. Interim Directions to Stay Proceedings Before the Designated Authority (DA):
The Tribunal considered Miscellaneous Application No. AD/M/1001/2011 filed by M/s. Reliance Industries Ltd. (RIL) seeking interim directions to stay the proceedings before the DA pending the decision in Review Application No. AD/M/1037/2011. The Tribunal noted that the Supreme Court had directed the DA to implement the orders passed by the CESTAT dated 11-8-2011, which involved post-decisional hearings. As such, the Tribunal found no reason to stay the proceedings.

2. Clarification on Whether the DA Should Continue with Post-decisional Hearing:
The Tribunal addressed Miscellaneous Application No. AD/M/169/2012 filed by the DA seeking clarification on whether it should continue with the post-decisional hearing. The Tribunal clarified that there was no bar on the DA to continue and complete the post-decisional hearing within the specified time limit, despite the review petition filed by RIL. The Tribunal extended the time for the DA to complete the post-decisional hearing by another six months.

3. Review of Tribunal's Final Order Dated 11-8-2011:
The review petition No. AD/M/1037/2011 was filed by RIL pursuant to the Supreme Court's order permitting them to file a review petition before the Tribunal. The Tribunal examined whether it had the power to review its own order and concluded that it did not possess such power. The Tribunal cited several Supreme Court decisions, including Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd., which held that the power of review is not inherent and must be expressly granted by statute.

4. Tribunal's Power to Review Its Own Order:
The Tribunal noted that the Customs Tariff Act, 1975, did not provide any express power of review to the Tribunal. The Tribunal referred to the Supreme Court's decision in Kalabharati Advertising v. Hemant Vimalnath Narichania, which held that in the absence of statutory provisions, a review application is not maintainable. The Tribunal concluded that it could not review its own order and dismissed the review petition filed by RIL as not maintainable.

5. Applicability of the Supreme Court's Decision in the Case of Automotive Tyre Manufacturers Association (ATMA):
RIL argued that the decision in ATMA was not applicable as the appellants in the present case did not ask for a fresh hearing by the successor DA. The Tribunal, however, found that all arguments, including those concerning the applicability of ATMA, were duly considered during the hearing of the appeals. The Tribunal maintained that the right course for the applicants, if aggrieved by the Tribunal's decision, was to appeal to a higher judicial forum.

6. Prejudice Against RIL and HP Due to the Tribunal's Order:
RIL and HP contended that they were prejudiced by the Tribunal's order which remanded the matter for post-decisional hearing. The Tribunal held that no prejudice was caused to the domestic industry as the anti-dumping duties remained in force and the domestic industry was allowed to participate in the post-decisional hearing. The Tribunal emphasized that the interests of the domestic industry were protected by the final order.

7. Procedural Aspects Regarding the Hearing of Appeals and Issuance of Notices:
RIL argued that their appeal was not ripe for hearing when the appeal of APC was taken up as notices were not served on all interested parties. The Tribunal acknowledged that procedural aspects concerning the hearing of appeals and issuance of notices were considered and that all advocates, including RIL's, were heard on these issues. The Tribunal found that the correct procedural course was followed and any grievances should be addressed through an appeal to a higher judicial forum.

Conclusion:
The Tribunal dismissed the review petition filed by RIL as not maintainable and clarified that the DA should continue with the post-decisional hearing within the extended time frame. The Tribunal reiterated that it did not have the statutory power to review its own orders and emphasized that the interests of the domestic industry were safeguarded by the continuation of anti-dumping duties during the post-decisional hearing process.

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