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TMI Blog2012 (12) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing directed under the said Final Order dated 11-8-2011. 2. The brief facts of the case are that on 11-8-2011, the Tribunal passed two similar Final Orders vide Allied Enterprises v. Designated Authority - 2011 (272) E.L.T. 127 and Huawei Tech Co. Ltd. v. Designated Authority - 2011 (273) E.L.T. 293 disposing of 24 anti-dumping appeals just before the then Hon'ble President of the CESTAT laid down office on his retirement. The Tribunal was aware, as recorded in paragraph 12 of the order, that there were nearly 40 similar anti-dumping appeals before the Tribunal including the ones which were decided which involved similar issue where the successor DA had not given a fresh hearing before recording the final finding. In one of the appeals, the Hon'ble Bombay High Court had specified a strict time line for disposal of the appeal for which, the Tribunal had to issue the Final Order on 11-8-2011 before the retirement of the then Hon'ble President. This fact has been taken note of by the Hon'ble Supreme Court while considering the Tribunal's Order dated 11-8-2011 vide Tejas Networks Ltd. v. Union of India - 2011 (273) E.L.T. 161 (S.C.) in paragraphs 11 to 13 which is reproduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding appeals are granted by merely setting aside the final findings and consequently removing the anti-dumping duties imposed by the Government based 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 fair for everyone if the appeals are allowed by way of remand to the DA for affording post-decisional hearings to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearings. It would also be fair if the respondent-domestic industry and other interested parties, if any, are allowed to participate in such post-decisional hearings. It goes without saying that 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 notifications imposing anti-dumping duty. We think that a time-frame of six months from the date of this order will be appropriate to complete this process and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lia that the Hon'ble Supreme Court vide its order dated 15-12-2011 has mandated review of the impugned final order. She also states that the Tribunal has inherent power to review its own order and she cites the Hon'ble Supreme Court's decision in the case of Sunitadevi Singhania Hospital Trust v. Union of India - 2009 (233) E.L.T. 295 (S.C.) to support her argument. 7. She further states that the decision of the Hon'ble Supreme Court in the case of Automotive Tyre Manufacturers Association (ATMA) v. Designated Authority - 2011 (263) E.L.T. 481 (S.C.) is not applicable to the present case as the appellants did not ask for a fresh hearing by the successor DA. They were also non- cooperative exporters and hence not entitled to any hearing. Hence she pleads that the appeal should not have been allowed by way of remand for post-decisional hearing. She further states that RIL had requested for delinking the appeal as it was allowed in the case of M/s. Huawei. It had filed a separate appeal for enhancement of the anti-dumping duty and by not delinking the case of M/s. Advanced Petrochemical Co. (APC) from rest of the appeals and by not taking up RIL's appeal while hearing the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its own order. Under the Customs Act, it has powers of rectification for which applications have to be filed within a period of six months. Under the Customs Tariff Act, 1975, the power of rectification has not been made applicable in respect of anti-dumping appeal. Rule 31A of the CESTAT (Procedure) Rules, 1982 deals with hearing of applications for rectification of mistake, but this rule has not been made a part of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996 vide Rule 7 thereof. Only Rule 20 of the CESTAT (Procedure) Rules, 1982 dealing with recall of appeals dismissed for default has been made applicable under Rule 7 of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996. Hence, the Tribunal cannot review its own order. 11. He cites the decision of the Hon'ble Supreme Court in the case of Commissioner of Central Excise, Vadodara v. Steelco Gujarat Ltd. - 2004 (163) E.L.T. 403 (S.C.) to the effect that power of review is not an inherent power and it must be expressly granted and that no such express power has been granted to the CESTAT, only limited power has been given for rectification of mistake. 12. Subsequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51) E.L.T. 459 has held that the decision in the case of Sunitadevi Singhania (supra) has been rendered invoking the extraordinary jurisdiction under Article 142 of the Constitution of India to direct the Tribunal to hear the matter afresh on merit and that it cannot be said to be the ratio laid down by the Hon'ble Supreme Court to be followed as a precedence. The Tribunal proceeded in that case to follow the ratio of the Larger Bench decision in the case of Commissioner v. Hongo India (P) Ltd. - 2009 (236) E.L.T. 417 (S.C.) in regard to extension of time-limit provided in the statute. On the other hand, we find that in the case of C.C.E. v. Oswal Petrochemicals Ltd. - 2010 (256) E.L.T. 190 (S.C.), the Hon'ble Supreme Court has held as follows in paragraph 7 of its order :- "The appellant filed an appeal before this court as against the initial order of the Tribunal and the said appeal was withdrawn on the ground that a review would be filed. The statute does not provide any remedy by way of review, and therefore, as against such order no review was permissible, and the appellant rightly filed an application seeking for rectification of mistake." This decision of the Hon'ble Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the domestic industry for enhancement of anti-dumping duty can also be very well taken up at the time of post-decisional hearing and no prejudice can be said to have been caused by remanding the matter on the ground of violation of principles of natural justice before deciding those appeals seeking enhancement of duty. 16. Further, all advocates including the learned advocate for RIL were heard on the issue of applicability of ATMA (supra) and the arguments were duly taken into account by the Tribunal. In case, the applicants are aggrieved by the impugned final decision of the Tribunal, the right course is to appeal to the next higher judicial forum and not to seek a different decision from the Tribunal which has no power to review its own order. 17. The learned counsel representing RIL has argued that delinking was not allowed as was done in the case of the appeal of M/s. Huawei. It may be pointed out in this regard that the appeal of M/s. Huawei was also decided on the very same date on which the impugned order was passed. The background of disposing of a number of appeals involving a similar issue has already been given while recapitulating above the brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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