9911796707
TMI Blog2015 (4) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... e granted within the initial period or extended period, as the case may be, otherwise the investigation will lapse automatically at the end of such period. In our view, at the end of the initial period or an extended period, if the period of eighteen months has not expired, the investigation would, in a sense, be suspended till it is revived by an ex post facto extension within the overall period of eighteen months. In the case of a suspension of investigation under Rule 15, when it is subsequently resumed by the DA, the period for which investigation was kept under suspension shall not be taken into account while calculating the said period of one year. This would not be so where suspension of investigation operates because the extension order from the central government is awaited. The clock, in such a case, would continue to run and the time taken by the Central Government would not be excluded in computing the period of eighteen months. Furthermore, under Rule 15 it is the DA who suspends the investigation, whereas the kind of suspension we are considering is not at the instance of the DA but on the happening of certain events and circumstances. Mr Balbir Singh is right whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erested parties were informed by email at 6.22 pm on 29.05.2014 that the hearing would be granted at 5:00 p.m. the next day (30.05.2014). Requests by interested parties for giving another date so that they are able to avail of the opportunity was rejected by the DA and, that too, just 20 minutes prior to 5:00 pm on 30.05.2014. The fact that the hearing could be attended by only one exporter is testimony of the lack of reasonable opportunity. Sure, the new DA was in a hurry as he had only 12 days with him but, that does not mean that he could give a go-by to the requirement of affording a reasonable opportunity of hearing to the interested parties before he submitted his Final Finding. In the light of the clear dicta in the ATMA case in the context of anti-dumping investigations, the decisions in Swadeshi Cotton Mills (1981 (1) TMI 250 - SUPREME COURT OF INDIA) would not come to the aid of the respondents. Petitioners, who are interested parties, were not given an adequate opportunity of hearing by the DA before he issued the impugned Final Finding dated 09.06.2014. - Consequently, the impugned Final Finding dated 09.06.2014 having been rendered in violation of the principles of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heels or Alloy Road Wheels India, approached the Designated Authority (DA) under the Customs Tariff Act, 1975 (hereinafter referred to as 'the said Act') and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as 'the said Rules') alleging material injury on account of dumping of the said goods from China PR, Korea RP and Thailand. 5. The DA after being, prima facie, satisfied of the alleged dumping and consequent material injury to the domestic industry initiated an anti-dumping investigation concerning imports of Cast Aluminium Alloy Wheels or Alloy Road Wheels used in Motor Vehicles, whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand vide Notification 14/7/2012-DGAD dated 10.12.2012. 6. The DA also recommended provisional anti-dumping duty on imports of the said goods from said countries by Notification No 14/7/2012-DGAD dated 13.01.2014. And, the same was imposed by Central Government by its Notification No. 15/2014-Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11 Dated the 8th May, 2014. To All Interested Parties (Domestic Industry/Exporters/Producers/Importers/User Industries) Subject: Extension of time period of anti-dumping investigation concerning imports of Cast Aluminum Alloy Wheels or Alloy Road Wheels used in Motor Vehicles, whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand Sir / Madam, Vide office Memorandum No. 354/241/2012-TRU dated 30th April, 2014 the competent authority has accorded permission for extension of time upto 9th June, 2014 for completing the subject investigation and notifying the final findings. This is for information of all the interested parties in this investigation. Yours Faithfully, (D.P. Mohapatra) Director Room No. 216-A Tel. Fax. No. 23061845 e-mail:[email protected] Encl: As stated above. 9. The OM dated 30.04.2014 and the letter dated 08.05.2014 became the subject matter of the second set of writ petitions (WPC 3250/2014 WPC 3251/2014). 10. On 29.05.2014 a new Designated Authority was appointed. On that day itself, the new DA sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinue with the investigation. b) If such ex-post facto extensions were construed to be permissible it may lead to chaos as the DA may continue to act with the expectation that approval of extension would be granted in due course. In case such an extension is not granted then, obviously, all the actions of the DA would be without any authority of law. Furthermore, take a case where an ex-post facto approval is granted on the last day of the total permissible period of one year and six months. In such eventuality, the DA would not be able to complete the investigation even if such extension is granted by the Central Government. c) The only provision for suspension and recommencement of investigation has been provided in Rule 15, where price undertakings are accepted. d) The term 'extend further' in the first proviso to Rule 17(1) means to prolong a time period, which is still in force. The term 'extend' means continuation of an existing thing and therefore, there can be no extension when the investigation has lapsed due to efflux of time. Reliance was placed on Tarsem Kumar v. CCE: AIR 1972 P H 5; Provash Chandra Dalui Anr v. Biswanath Banerjee Anr: 1989 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation was completed within the stipulated period after obtaining the necessary extension from the Central Government. The decisions relied upon by the respondent, in our opinion, have no bearing on the facts of this case since in those cases the proceedings were quasicriminal in nature where application of principles of natural justice was inherent, unlike the present case where the application of principles of natural justice is limited to the provisions already made in the statute. Further, apart from the fact the respondent is not entitled to any notice before extending the time for concluding the investigation under Rule 17, we also notice that the respondent has not established any prejudice suffered by it whatsoever. Here we notice with approval the observations of the Tribunal to the effect that the respondent, though, was aware of the extension granted to the Authority by the Central Government, did not object to the same when the proceedings before the Authority continued after the extension of time and having suffered an adverse order cannot be permitted to raise this question subsequently at an appellate stage. Accordingly, this objection of the respondent also fails a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d six months. 16. Moreover, in Haldor Topsoe's case, the Central Government had, in fact, granted an extension on 13.10.1997, which was after expiry of the 1 year period of investigation on 05.09.1997. This was upheld by the Supreme Court. 17. Accordingly, there is no infirmity in the Final Findings as the extension has been validly granted by the Central Government in exercise of power conferred under the said Rules. The Final Findings have been issued before the expiry of the 2nd extension on 09.06.2014. 18. Ms Meenakshi Arora, the learned senior counsel for the intervener contended as under: a) Rule 17 must be read in context of the larger object and purpose of the law regulating anti-dumping measures in India, which has been stated by the Supreme Court in case of Reliance Industries Ltd. v. Designated Authority: (2006) 10 SCC 368:- 11. The result was that an industrial base was created in India after independence and this has definitely resulted in some progress. The purpose of Section 9A can, therefore, easily be seen. The purpose was that our industries which had been built up after independence with great difficulties must not be allowed to be destroyed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly allows for the extension of time under special circumstances which may even arise on the last day of the oneyear period. The interpretation sought to be placed by the petitioners on the proviso to Rule 17(1) would not allow extension of period despite the existence of special circumstances. e) If the investigation is allowed to lapse, despite existence of special circumstances necessitating extension of period of one year, it would cause serious hardship to the domestic industry. If the domestic industry requests for a fresh investigation, the whole procedure would have to start all over again with a new period of investigation. To avoid this hardship in special circumstances , the Central Government is given the power to extend the time period by six months. 19. Mr Balbir Singh, in rejoinder, submitted:- a) The judgment in Haldor Topsoe (supra) is not applicable because (i) the only issue raised was that before extension hearing was not granted by the Central Government , that is not the issue in present writ petition; (ii) the issue that investigation terminates and the DA becomes functus officio on expiry of the period was not raised, discussed or decided. Fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its discretion in special circumstances, by six months. It is therefore mandatory that the Final Finding is submitted to the Central Government within the period of one year or the extended period or periods, as the case may be. If the Final Finding is not submitted within the stipulated period, the investigation shall terminate or lapse. 22. The question, however, is whether the investigation would lapse ipso facto at the end of one year in case no extension is granted by the Central Government within that period. Or would the investigation be, in a way, suspended till the additional period of six months available to the central government elapses? There is, of course, no doubt that if the Final Finding, for whatever reason, is not submitted by the end of the period of one year and six months, the investigation shall terminate or lapse. 23. In Haldor Topsoe (supra), the Supreme Court clearly held the Central Government's decision to grant extension to be purely administrative in nature. It is also true that the Supreme Court had observed that in that case the investigation was completed within the stipulated period after obtaining the necessary extension from the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a difference. In the case of a suspension of investigation under Rule 15, when it is subsequently resumed by the DA, the period for which investigation was kept under suspension shall not be taken into account while calculating the said period of one year. This would not be so where suspension of investigation operates because the extension order from the central government is awaited. The clock, in such a case, would continue to run and the time taken by the Central Government would not be excluded in computing the period of eighteen months. Furthermore, under Rule 15 it is the DA who suspends the investigation, whereas the kind of suspension we are considering is not at the instance of the DA but on the happening of certain events and circumstances. Mr Balbir Singh is right when he contends that the DA, when he made his request for extension on 03.03.2014, could not presume that the Central Government would grant the extension. It is for this reason, that, on 09.03.2014, when the first period of extension expired and the grant of further extension was awaited by the DA, his mandate to investigate got suspended. The DA's mandate was revived on 30.04.2014 when the extension wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples of natural justice. d) The hearing required should not be an empty formality. The High Court is empowered to entertain a Writ Petition challenging the Final Findings on ground of violation of principles of natural justice and/or jurisdictional defects even prior to same being acted upon by the Central Government. Reliance was placed on a recent decision of this bench in WP(C) 744/2015: SanDisk International v. The Designated Authority Others decided on 18.03.2015. e) The DA functions as quasi-judicial authority and is required to grant hearing to all the parties, who have filed objections and adduced evidence. Reliance was placed on a decision of this bench in WP(C) 401/2015: Bharat Solvent Chemical Corporation v. Union of India Others decided on 09.03.2015. 27. On behalf of the DA it was submitted: a) The DA was changed on 29.05.2014 when the last date to conclude the investigation was 09.06.2014 which left the new DA only with 12 days to conclude the remaining procedures in the investigation along with a second public hearing as mandated in the ATMA case. The procedures followed between 29.5.2014 and 9.6.2014 by the new DA was as follows: 29.05.2014 (Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 29.05.2014, had 12 days to complete the investigation and issue the final findings (i.e., from 29.05.2014 to 09.06.2014). c) After the appointment of the new DA, the only procedure remaining for compliance, prior to issuing the final findings, was issuing the Disclosure Statement and receiving comments on the Disclosure Statement. The interested parties had already given their written submissions, which were in the record before the new DA. d) The disclosure statement issued by the DA on 05.06.2014 records the written submissions of the interested parties and their comments on the provisional finding (which forms the bulk of the statement). The information is collected in prescribed formats, i.e. exporter / importer questionnaire and application proforma for domestic industry. e) The examination by the DA records inter alia that:- the comments / submissions made by the interested parties after the issue of the preliminary findings are mostly reiterations of their earlier submissions, which have been appropriately and adequately addressed in this disclosure statement. The post PF submissions considered relevant are addressed below: The Authority, thereafter, ana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said levy. The Supreme Court, inter alia, held as under: 80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait jacket 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly. (underlining added) 32. After noting the observations of the Supreme Court in the ATMA case, this court in Bharat Solvent (supra) held that the DA functions as a quasi-judicial authority and decides a lis between persons supporting the levy of duty and those opposing the levy. Furthermore, the DA is bound to follow the principles of natural justice and to give an opportunity of hearing to all interested parties, in fact, to all the parties, who have filed objections and adduced evidence . 33. In the present case, there is no dispute that the petitioners are interested parties. There is also no dispute that all the earlier investigation (including the first oral hearing) was conducted by the earlier DA and not by the DA who took over only on 29.05.2014. In any event, it is an admitted position that the new DA had to afford an opportunity of hearing to interested parties including the petitioners. The Respondents have taken the plea that the new DA had only 12 days to complete the investigation and submit the Final Finding and the manner in which he conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
