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TMI Blog2010 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court issued notice to the parties. The respondents No. 2, the Designated Authority, issued final findings on 27th February 2009 and recommended to the Central Government to impose anti-dumping duty on the subject goods. The applicants formally challenged the final findings as a matter of abundant caution by way of writ petition No. 8076 of 2009. The respondents No. 1 accepted the final findings on 26-5-2009 and passed the impugned final Notification imposing anti-dumping duty on the subject goods. The applicants preferred Writ Petition (C) No. 11173/2009, as a matter of abundant caution, laying the formal challenge to the legality and validity of the said final Notification. According to the applicants, the last writ petition was filed in August, 2009 and the same was within three months from the date of issuance of the final Notification. In the above-mentioned facts according to the applicants there was no delay in filing the appeal in terms of the statutory provisions, particularly, in view of pendency of writ petition wherein the party was pursuing the remedy before the Hon'ble High Court. Besides the Hon'ble High Court was pleased to record in its order dated 26-10-2010 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iberty to the petitioner to prefer an appeal within a period of three weeks and as conceded to by the learned Counsel for the respondents, they would not oppose the prayer for condonation of delay. The Tribunal is directed to condone the delay and not to throw the appeal at the threshold on the ground of limitation and decide the appeal on merits within eight weeks from the date of presentation of the appeal. It is directed that counsel for the parties shall appear before the Tribunal on 27-9-2010. The Tribunal shall proceed in accordance with law and if any noticees are required to be served, all alternative possibilities shall be adopted. It will be open to the learned Counsel for the parties to raise all possible contentions before the Tribunal. We may hasten to clarify that we have not expressed any opinion on the merits of the case". 8. The order of the Hon'ble High Court specifically records the following before issuing the above directions :- "Having heard Mr. Singh, learned Senior Counsel for the petition, and learned Counsel for the respondents at length, we are of the considered opinion that the cause of justice would be best subserved if the petition approached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before 16-11-2010 i.e. within eight weeks from the date of filing of the appeal. Exactly for the same reason, the counsel was required to appear before the Tribunal on 27-9-2010 in the said appeal. Appearance of the Counsel before the Tribunal without the appeal being filed and placed before the Bench would have served no purpose. To the specific query to the learned Advocate for the applicants by the Tribunal as to what was the purpose of directing appearance of the counsel on 26-9-2010 before the Tribunal, the learned counsel apart from saying that "I do not know" could not give any explanation. 11. The contention that the appellants could not have filed appeal unless the certified copy of the High Court order was obtained and gone through, is also devoid of substance. The appeal was expected to be filed not against the order of the High Court but against the Notification. It was against the Final Notification, copy of which was already available with the applicants. Besides, all the relevant facts in that regard were also available with the applicants. It is, therefore, difficult to believe that in the absence of availability of the order of High Court, the applicants co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t regard will have to be decided in accordance with the provisions of law applicable to the matters filed beyond the period of limitation. 15. Section 9C(2) of the Customs Tariff Act, 1975 which applies to the appeal against the Notification in question clearly provides that - "Every appeal under this section 9C shall be filed within 90 days of the date of order under appeal provided that the Appellate Tribunal may entertain any appeal after the expir of the said period of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time." 16. In the case in hand as already observed above, the initial period as prescribed under Section 9C(2) given in the notification had already expired without filing any appeal. Considering the same, the Hon'ble High Court had granted three weeks period to file appeal while recording the concession on behalf of the respondents that they would not oppose the condonation of delay if the appeal is so filed within the said period. Undoubtedly, as the Hon'ble High Court's order does not record that the period of three weeks prescribed under the order to be counted from the date of the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of such appeal and further direction to the counsel for the parties to appear on specific date before the Tribunal, ignoring all of these directions, and inspite of the absence of any cause for the delay beyond three weeks from the date of the order of the Hon'ble High Court, if we proceed to entertain the appeal on merits, it would virtually amount to make mockery of the order of Hon'ble High Court and abuse of the process of the Court at the instance of the party. 19. It was also sought to be contended that the counsel for the party cannot blame for non-appearance before the Tribunal on 27-9-2010 while adding a rider to the submission that, in fact, the Advocate for the applicants had visited the Tribunal on the said date, however, he did not find an Anti-dumping Bench having been constituted or sitting of Anti-dumping Bench on that day. It is true that to hear the anti-dumping matter, it is necessary for the President of the CESTAT to constitute an anti-dumping Bench as per law and anti-dumping Bench is always required to be comprised of President, Judicial Member and Technical Member. Equally, it is true that on 27-9-2010, no Anti-dumping Bench was constituted. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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