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TMI Blog2011 (8) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Shri Rajesh Sharma, Advocates. Shri S K Bagaria, Shri Arun Gulati and Shri Sparsh Bhargava, Advocates. Respondents by: Shri Amit Singh and Ms Pooja Sharma, Advocates. Interested Party: Shri J Velapally, Shri K Venugopal, Sr. Advocates.., Ms Reena Khair and Shri Rajesh Sharma, Advocates.. Shri S K Bagaria, Shri Arun Gulati and Shri Sparsh Bhargava, Advocates. Respondents by: Shri Amit Singh and Ms Pooja Sharma, Advocates. Interested Party: Shri J Velapally, Shri K Venugopal, Sr. Advocates., Ms Reena Khair and Shri Rajesh Sharma, Advocates. Per: Chittaranjan Satapathy: 1. All the above three appeals arise from the same final finding of facts and the consequential notification issued by the Government and therefore, these were heard together and the present common order is being passed. In all these appeals a common issue is sought to be raised regarding violation of principles of natural justice while placing reliance on the decision of the Hon'ble Supreme Court in the matter of Automotive Tyre Manufacturers Association (ATMA) vs. Designated Authority and Others reported in 2011 (236) ELT 481 (SC). It is the contention of the appellants that the Desi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and other interested parties for hearing of this appeal on 2.8.2011. The hearing could not conclude during the week ending 5.8.2011 and was resumed this week. 3. These appeals are against the Final Findings of the Designated Authority (DA) issued pursuant to anti-dumping investigations. The consequent anti-dumping duties notified by the Finance Ministry are also under challenge. 4. Anti-dumping duties are meant to protect domestic industry against unfair trade practices resorted to by foreign exporters. Such duties can be levied if anti-dumping investigations establish (i) dumping by foreign exporters and (ii) injury caused to domestic industry by such dumping. 5. The anti-dumping investigation conducted by the DA in the Commerce Ministry is quite different from the adjudication of cases done by Customs and Excise Commissioners. It is common practice in , the Customs and Excise Department that if one Commissioner gets transferred after hearing a case, his successor offers a fresh hearing before adjudicating a case. It appears there was no such practice in investigating anti-dumping cases by the DA, usually an IAS officer. 6. Rule 6(6) of the Anti-dumping Rules also states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATMA (supra). As per this judgment, the successor DA has to give a fresh hearing. 10. The Final Findings impugned in these appeals predate the before cited decision of the Hon'ble Supreme Court in the case of ATMA (supra). The learned Advocates representing the foreign exporters and Indian importers have argued vehemently before us that the impugned final findings and consequent notifications imposing anti-dumping duty must be set aside in view of ATMA as the successor DA has not held fresh hearing. They also argue that the matter cannot be remanded back to the DA as firstly the Tribunal has no power to remand and secondly the DA cannot take a fresh decision as the 18 month s time limit prescribed for him is long over. 11. It has been argued by the learned Advocates representing domestic industry that for no fault of theirs, if anti-dumping duty is set aside, injury to the domestic industry would continue unabated on account of dumping. It has also been argued on behalf of domestic industry and the DA that the foreign exporters and Indian importers have not demonstrated how they have been prejudiced by the new DA not granting fresh hearings when all that they have submitted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te this process and that status quo should be maintained meanwhile. 14. While coming to the above conclusion, we have kept in view the following:- (i) It has been held in United Planters Association of Southern India Vs. K.G. Sangameswaran - AIR 1997 Supreme Court 1300 that natural justice depends on the facts of each case and that in the case of Mrs. Menka Gandhi Vs. UOI and Liberty Oils Mills, a post-decisional hearing has been held to be a sufficient compliance. (ii) In State Bank of Patiala and Ors. Vs. S.K. Sharma reported in AIR 1996 (SC) 1669-SC, it has been held that violation of any and every procedural provision cannot be said to automatically vitiate the enquiry or order passed. The complaint should be examined from the perspective of prejudice. Procedural provisions may be directory or mandatory. In the case of anti-dumping investigation, the oral hearing cannot be said to be mandatory as the same requires to be followed by written submissions, consideration of which is mandatory. (iii) Rule 6(6), 6(7), 6(8) of the Anti-dumping Rules read as under:- "6(6) : The designated authority may allow an interested party or its representative to present the information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be a legislative act pursuant to the exercise of powers under the Customs Tariff Act, 1975. (vi) It has been held in Sterlite Industries (India) Ltd. Vs. Designated Authority - 2003 (159) ELT 673 (SC) that the Tribunal cannot quash an anti-dumping investigation, if there is dumping. (vii) The Tribunal has exercised powers of remand in the following anti-dumping cases:- (a) H R Johnson ( India ) Ltd. Vs. Designated Authority - 2005 (185) ELT 125 (b) PT Polysindo Eka Parkasa Vs. Designated Authority - 2005 (185) ELT 358 (c) Basf South East Asia Pte. Ltd. Vs. Designated Authority - 2010 (253) ELT 554 (d) Fragrances and Flavours Association of India Vs. Designated Authority - Final Order No. AD/12/2011 dated 17.6.2011. (viii) The power of the Tribunal under Section 9C(3) of the Customs Tariff Act, 1975 (CTA) reads as under:- "The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against." A similar provision earlier contained in the Customs Act, 1962 in respect of the powers of the Commissioner (Appeals) was interpreted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion cannot be prescribed by the Rules, since the Rules are subordinate to the Act. There is no time-limit prescribed under the Act for the Tribunal to decide an appeal or to remand an appeal within the 18 months period, which is prescribed for completion of investigation by the DA under the Rules only. (xii) The anti-dumping laws in India are based on the WTO Anti-dumping Agreement to which among others India, US, EC are signatories. It has been held in the EC and US jurisdictions that for implementation of a judgment of a higher appellate forum or Court, the time-limit given for original anti-dumping investigation would not be relevant. 15. Accordingly we allow these appeals by remand to the DA for affording post-decisional hearing to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearing. The respondent-domestic industry and other interested parties, if any, shall also be allowed to participate in such post-decisional hearing. Any modifications made in the final findings would be considered by giving effect to the same by the Government by carrying out the necessary amendments to the impugned not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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