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TMI Blog2012 (10) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... . Hava for Singhi Co., for the Respondent. [Judgment per : Akil Kureshi, J. (Oral)]. - The petitioners, who are importers of certain chemicals/intermediaries used for production of Pesticides, have in the present petition, challenged the orders passed by the Designated Authority under the Customs Tariff (Identification, Assessment Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as, the said Rules ) as also the Notifications issued by the Government deciding to levy Anti-Dumping Duty on import of such products. The petitioners have prayed that the preliminary findings dated 25th May 2009; the consequential Notification No. 73/2009 issued by the Government dated 22nd June 2009 as well as Final Findings dated 6th May 2010 and the consequential Notification issued by the Government on 7th July 2010 be quashed and set aside. 2. The litigation has a chequered history. Facts, in brief, may be noted at the outset. 2.1 Respondent No. 3 herein filed an Application before the Designated Authority in August 2008 alleging dumping in case of import of Diethyl Thio Phosphoryl Chloride (hereinafter to be refe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated authority shall take into consideration the issues raised by the petitioners with regard to the respondent no. 4 and to decide as to whether they or their allied concerns have made any import of subject goods from China. The details as to finding recoded by the D.A shall be provided to the petitioners. Till such exercise is undertaken by the designated authority and final finding is arrived at the petitioners shall not be saddled with the levy of provisional anti-dumping duty on an import of subject goods from China on condition that the petitioners shall file an undertaking within one week from today before the designated authority that in the event they are held to be liable to pay anti-dumping duty on the import of subject goods that may be made, hereinafter from China, while recording final finding on this issue, they will pay such anti-dumping duty subject to their right to appeal and obtaining stay against such duty from any competent Court or Tribunal. 2.5 It appears that the judgment of the High Court dated 9th October 2009 gave rise to three separate appeals before the Hon ble Supreme Court. The private respondents herein i.e., the domestic industry challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. It is not in dispute that no fresh public hearing was wanted. The newly appointed Designated Authority, on the basis of previously recorded proceedings, notings made by the earlier Designated Authority and the reports and other materials available, submitted his Final Findings. It is this procedure which has been at the center of the controversy in this petition and been the focal point of arguments from both the sides. 3. In response to the notice issued by us, the respondents have filed detailed replies. 3.1 The Union of India has preliminary contended that detailed procedure has been followed, as laid down under the Rules. The recommendations made by the Designated Authority have been examined and accepted. It is also contended that the entire exercise is time bound and ample opportunities were given to all the interested parties. 3.2 On behalf of private respondents also, detail replies have been filed to oppose the petition, mainly contending that the proper procedure was followed and that, even otherwise, alternative remedy is available to the petitioners. 3.3 Learned counsel appearing for both the sides requested us to take up the petition for final disposal at th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure was in violation of the principles of natural justice. 4.5 With respect to availability of alternative remedy, reliance was placed on the decision in the case of Whrilpool Corporation v. Registrar of Trade Marks, Mumbai Ors. reported in AIR 1999 SC 22, wherein, the Apex Court held and observed as under :- 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 4.8 Reliance was also placed on the decision in the case of Star Paper Mills Limited v. State of U.P Ors. reported in [(2006) 10 SCC 201] in which, same view was reiterated. 4.9 Reference was made to judgment in case of Popcorn Entertainment Anr. v. City Industrial Development Corporation . Anr. reported in [(2007) 9 SCC 593], wherein, the Apex Court observed as under :- We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6th May 2010. 6.2 Counsel relied on the following decisions of the Apex Court in the cases of (i) NITCO Tiles Limited v. Gujarat Ceramics Floor Tiles Mfg. Association Ors. reported in [(2005) 12 SCC 454 = 2006 (199) E.L.T. 198 (S.C.)], wherein, the Apex Court did not approve the High Court entertaining a writ petition, ignoring availability of alternative remedy (ii) In case of Titaghur Paper Mills Company Limited Ors. v. State of Orissa Ors. reported in [(1983) 2 SCC 433], wherein, in the background of the State Sales Tax Act, the Apex Court found that the assessee had adequate redress against the wrongful acts of the Department. (iii) In the case of Champalal Binani v. The Commissioner of Income-Tax, West Bengal Ors. reported in [1971 (3) SCC 20] wherein also, the Apex Court held that assessee should prefer appeal before the appellate authority to redress the grievance raised. (iv) In case of City Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala Ors. reported in [(2009) 1 SCC 168], wherein, the Apex Court observed as under :- 30. The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether : (a) adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in [(2004) 6 SCC 299]. 7.1 Relying on the case of Bhaskar alia Prabhaskar Ors. v. State, represented by Inspector of Police, Vellore Taluk Polic Station, Vellore reported in [(1999) 9 SCC 551], it was contended that after the verdict of the Constitution Bench of the Apex Court in Gullapalli Nageswara Rao v. A.P. State Road Transport Corporation s case reported in [1959 Suppl (1) SCR 319] that one who hears, must decide has under gone a considerable change. 7.2 Reliance was also placed on the decision in the case of Pradyat Kumar Bose v. The Hon ble the Chief Justice of Calcutta High Court reported in [(1955) 2 SCR 1331], wherein, the Apex Court upheld the decision of the Chief Justice of the High Court to dismiss a Judge of a subordinate Court on the basis of an inquiry conducted by some one else. 7.3 In case of Ossein Gelatine Manufacturers Association of India v. Modi Alkalies Chemicals Limited Anr., reported in [(1989) 4 SCC 264], wherein, it was observed that, ...Here the issue is one of grant of approval by the government and not any particular officer statutorily designated. It is also perfectly clear on the records that the officer who passed the order ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnated authority may allow an interest party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. 10.1 Under Rule 11, the Designated Authority has to determine the injury to any industrial establishment in India on account of such alleged dumping. Rule 12 pertains to preliminary findings which the Designated Authority, upon conduct of investigation, has to submit on the basis of such preliminary findings. Under Rule 13, the Central Government is empowered to impose provisional duty. Rule 14 of the Rules pertains to termination of investigation by the Designated Authority under certain circumstances. Rule 15, on the other hand, permits the Designated Authority either to suspend or terminate an investigation. Rule 16 of the Rules pertains to disclosure of information and reads as under :- Rule 16. Disclosure of Information. - The designated authority shall, before giving its final findings, inform all interested parties to the essential facts under consideration which form the basis of its decision. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned. Provided further that the Designated Authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 10.2 From the above, it can be seen that within one year of the date of initiation of an investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessor Designated Authority, there was a clear breach of principles of natural justice. 13. On the other hand, counsel for the respondents vehemently contended before us that the petitioners have no right to personal hearing at the stage, after the Designated Authority had informed all the interested parties of the essential facts under consideration which formed the basis of its decision, as provided under Rule 16 of the Rules. It was contended that though no such hearing was necessary, the previous Designated Authority had granted such personal hearing. It was, therefore, contended that in absence of any statutory right to personal hearing, the principle that one who hears must decide cannot be pressed in service. 14. We are of the view that the issue is no longer res integra. The decision of the Apex Court in the case of Automotive Tyre Manufacturers Association (supra) squarely covers the present position. Before the Apex Court, in the said case, primarily two issues were debated. Firstly, the contention of the authorities was with respect to the nature of powers being exercised under the said Rules. The Tribunal held that the imposition of anti-dumping duty being legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is equally trite that the concept of natural justice can neither be put in a straitjacket nor is it a general rule of universal application. 81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters, that the question of application of the said principle can be properly determined. 83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses, etc., and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli, if one person hears and other decides, then ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the writ petition. Such circumstances are (a) breach of fundamental rights; (b) violation of principles of natural justice; or (c) if it is found that the order or action of the authority inherently lacks jurisdiction. This has been discussed and laid down by the Apex Court in number of decisions, in particular in case of Whrilphool Corporation (supra). It is, therefore, not necessary to refer to series of judgments of the Apex Court on the issue. Even otherwise, we fail to see what different view the CESTAT could take in light of the decision of the Apex Court in the case of Automotive Tyre Manufacturers Association (supra). 16.1 The next contention pertains to conduct of the petitioners. As noted, it was vehemently contended before us that the petitioners belatedly demanded hearing knowing fully well that the proceedings were rigidly time-bound. We may recall that the previous Designated Authority was changed on 4th January 2010. The petitioners wrote their first letter requesting for a fresh personal hearing on 7th April 2010, followed by a detailed representation vide communication dated 20th April 2010. We are unable to see how the petitioners conduct would disentitle th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso informed that to the newly appointed Designated Authority it was pointed out that on account of non-hearing, the number of issues have arisen. They had pointed out that in the Disclosure Statement there are omissions and lacunae. Their contentions have not been taken into account. We have not gone into details of these contentions. We, therefore, do not express any final opinion on these averments of the petitioner. We have only recorded such grievances to note that the petitioners have been urging that hearing by the new Designated Authority is not an empty formality. To our mind, it cannot be said that the petitioners suffered no prejudice. We have also noticed that the question of prejudice and need to establish such prejudice was also agitated before the Supreme Court in the case of Automotive Tyre Manufacturers Association (supra). Despite such contentions, the Apex Court was pleased to strike down the final findings and the Notification imposing the anti-dumping duty. With respect to the refund claim of the appellants, however, the Apex Court declined the same on certain grounds, with which we are not concerned in the present petition. 18. In addition to the above prin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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