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TMI Blog2011 (8) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... xmikumaran, B.L. Narasimhan, Jitender Singh, Sharad Bhansali, Rajesh Sharma, S. Seetharaman, Sagnik Sinha and Atul Gupta, Advocates, S/Shri Shalinder Saini, L.P. Asthana, Amit Singh, Ms. Pooja Sharma, Ms. Reena Khair and Rajesh Kumar, Advocates, for the Appearing Parties. [Order per : Chittaranjan Satapathy, Member (T)]. 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) v. Designated Authority and Others reported in 2011 (263) E.L.T 481 (S.C.). It is the contention of the appellants that the Designated Authority did not give public hearing before deciding the matter inasmuch as while the hearings were given by one person in his capacity as Designated Authority, the Final Findings were delivered by another person in his capacity as Designated Authority. There is also a related issue raised in the matter that once the principles of natural justice stand violated and the period prescribed under the law for completion of the investigation expires then question of remand of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share, cost of raw materials, productivity, profit, return on investments, cash flow, inventories, employment, wages etc. There are a number of officials involved who assist the DA in this work including verification abroad, where the exports come from. The DA has to take into account all the written submissions made and all the calculations done before he can give his findings and recommend imposition of anti-dumping duty to the Government. He has 18 months to do it, this cannot be extended and usually the whole work gets done not much before the deadline. 7. A judge or an adjudicator has to give a hearing before deciding a case against an accused. Apart from the facts of the case and the legal provisions, an assessment of the demeanour and countenance of an accused or a witness helps him in his decision making, and in determining penalties. Levy of anti-dumping duty requires cold calculations, as it equals the injury margin. However, there is a provision of public hearing provided in Rule 6(6) of the Anti-dumping Rules. By all accounts, such a hearing is usually crowded, not perhaps by the exporters and importers - but by their representatives, accountants and lawyers and also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als for further consideration. 12. The questions raised before us in these numerous appeals and in several other appeals pending before the Tribunal (totally numbering about 40 appeals) involve serious economic consequences. In all the cases relating to these appeals, the successor DA has not given a fresh hearing as per the prevailing practice in the Ministry of Commerce. Now the Hon ble Supreme Court in ATMA (supra) disapproves such a practice. We are sure, in the future, the successor DA would adhere to the law laid down by the Hon ble Supreme Court and grant fresh hearings. But should the domestic industry be left to suffer irreparable injury caused by dumping for no fault attributed to it which would be the outcome if the prayers in these and similar pending appeals are granted by merely setting aside the final findings and consequently removing the anti-dumping duties imposed by the Government baaed on such findings in regard to dumping and injury caused by such dumping. 13. We do not think such an outcome will be just for the domestic industry which is not at fault nor it will be in the public or economic interest of the country as a whole. We think it would be just and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances. These rules permit the DA to take into consideration submissions made in writing and to record its findings on the basis of facts available if any interested party refuses access to, or does not provide necessary information, or impedes the investigation. (iv) The Hon ble Supreme Court in the case of M/s. Kranti Associates v. Sh. Masood Khan in SLP (C) No. 12766 of 2008, decided on 8-9-2010, has held that in India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. The requirement to record reasons emantes from the broad doctrine of fairness in decision making. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. Recording of reasons also operates as a valid restraint on any possible arbitrary exerci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng cases cannot be questioned. (ix) Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 specifically provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect in relation to its orders or to prevent abuse of its process or to secure the ends of justice. The words secure the ends of justice are wide enough to clothe the Tribunal with powers to pass order of remand as it may deem fit in the facts and circumstances of the case. In addition to this, the power of Appellate Tribunal to confirm, modify or annul the decision or order appealed against also takes in its fold to pass such orders as are necessary in order to aid the main relief sought for in the appeal following the ratio laid down in the case of Collector of Customs, Madras v. Madras Electro Castings P. Ltd. - 1994 (71) E.L.T. 646 (Mad.). It has been settled by the Apex Court in the case of ITO, Cannanore v. M.K. Mohammed Kunhi reported in AIR 1969 SC 430 that powers incidental or ancillary are to render justice. (x) In the case of Commissioner of Income Tax, Central, Calcutta v. National Taj Traders - (1980) 1 Su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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