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TMI Blog2015 (9) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... the Designated Authority nor the non confidential summary thereof was not supplied to the petitioners despite the same being demanded on the ground of confidentiality. The DA, in not providing the information/material considered by him, has violated the principles of natural justice and the same is fatal to the Final Findings rendered. Consequently, the Final Findings, having been rendered in violation of the principles of natural justice, stand vitiated and cannot be sustained. As a result, the impugned Final Findings are quashed. - Decided in favor of appellants. There is no merit in the contention of the respondent that since, the Final Finding are only recommendatory in nature, the petition is premature. It is no longer res-integra that this court in exercise of powers under Article 226 of the Constitution of India is empowered to entertain a petition challenging the Final Findings even prior to the same being accepted by the central government more so in a case where the principles of natural justice have not been complied with. The fact that the Rules prescribe that if the Designated Authority is satisfied that the request for confidentiality is not warranted or the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and for the first time, at the fag-end of the investigative proceedings, the petitioner came to know on receipt of the disclosure statement on the evening of 05.12.2014 that the Designated Authority had relied on the transactions-by-transactions imports statistics obtained by him from the Directorate General of Commercial Intelligence and Statistics (respondent No.4). It is contended that the respondent No.4 makes available to the public the imports statistics in excel format after removing the importers/exporters name, address and IEC etc. which is kept confidential. 6. It is submitted that the petitioner immediately on 08.12.2014 requested the Designated Authority for supplying the new evidence relied upon in the disclosure statement i.e. the data sourced by the Designated Authority from the respondent No.4 after deleting the columns containing the confidential data of the importers/exporters. The petitioner also sought the disclosure of the methodology which was used by the Designated Authority to arrive at a final figure of the volume and value of imports. The Designated Authority in response stated that it was not obligatory on the part of the Authority to provide relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 China PR Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 352.35 315.28 253.44 234.46 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NIP Rs/Pc NAND Based 1 GB *** 2 GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** COB Based 4 GB *** 8 GB *** Table-2(a) Landed Value China PR Grade/Type Landed Value Rs/Pc NAND Based 1 GB *** 2 GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** Others *** COB Based 2GB *** 4 GB *** 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port volumes of all grades/GBs from the relevant subject country. 9. Learned counsel for the petitioner further contended that throughout the course of investigation spread over a period of 17 months, the investigation had continued on the basis of the data furnished by the respondent No.5, which data was rejected by the Designated Authority at the very last minute and the data sourced by the Designated Authority from the respondent No.4 was introduced in the investigation, for the first time, by virtue of the disclosure statement dated 05.12.2014, much after the hearing was over. The data introduced at the fag end of the investigation was neither furnished to the petitioner nor was an opportunity granted to the petitioner to verify or to comment on the reliability or admissibility of the said data. 10. Learned counsel for the petitioner relied on the decision of the Supreme Court in Automotive Tyre Manufacturers Association vs. the Designated Authority Others: (2011) 2 SCC 258 to contend that the DA exercises quasi judicial function and is to act judicially and there is a duty cast upon the DA to afford to all the parties, who have filed objections and adduced evidence, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made to the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules ) with regard to the relevant principles governing investigation by the Designated Authority. 5. Initiation of investigation. - (1) Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. (2) An application under sub-rule (1) shall be in the form as maybe specified by the designated authority and the application shall be supported by evidence of (a) dumping (b) injury, where applicable, and (c) where applicable, a causal link between such dumped imports and alleged injury. (3) The designated authority shall not initiate an investigation pursuant to an application made under subrule (1) unless (a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries : Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefore in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation : For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designated authority a statement of reasons why summarisation is not possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disregard such information. 8. Accuracy of the information. - Except in cases referred to in sub-rule (8) of rule 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based. Xxxxx xxxxx xxxxx xxxxx 16. Disclosure of information. - The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. 17. Final findings. - (1) The designated authority shall, within one year from the date of initiation of an investigation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermination 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. 16. Rule 5 dealing with Initiation of investigation, stipulates that the designated authority shall initiate an investigation to determine the existence, degree and effect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eign producers and other interested parties. Under sub rule (5), the designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information relevant to the investigation regarding dumping, injury where applicable and causality. Under sub rule (6) the designated authority may allow an interested party or its representative to present the information relevant to the investigation orally provided that the same is subsequently reproduced in writing. Under sub rule (7), it is stipulated that the designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. 18. Rule 7 stipulates that where the copies of applications received under sub rule (1) of Rule 5, or any other information is provided to the designated authority on a confidential basis by any party in the course of investigation, the designated authority upon being satisfied as to its confidentiality, shall treat the same as such and no such information sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le (3) the designated authority is required to determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation and where the number of exporters, producers, 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. 22. The scope and procedure for investigation and the evidence to considered by the designated authority as laid down by the said Rules clearly establishes that all the evidence and material being considered by the designated authority has to be shared with the interested parties so as to provide an effective opportunity of being heard. In case any evidence is being considered by the designated authority in respect of which confidentially has been claimed by the party supplying the evidence, then non confidential summary of the evidence has to be shared with the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated Authority has to ask the parties providing information, on confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarisation is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases there is need for confidentiality as otherwise trade competitors would obtain confidential information, which they cannot otherwise get. But whether information supplied is required to be kept confidential has to be considered on a case-to-case basis. It is for the Designated Authority to decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the Appellate Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports on domestic producers of such products. It is evident that the determination of injury is premised on an objective examination of the material submitted by the parties. Moreover, under Rule 6(7) of the 1995 Rules, the DA is required to make available the evidence presented to it by one party to other interested parties, participating in the investigation. 26. The Supreme Court further laid down that the DA is obliged to adhere to the Rules while conducting investigations and the duty of the Designated Authority to follow the principles of natural justice is implicit in the exercise of power conferred on him under the said Rules and the Rules further impose 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. It has been held that 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. 27. This court in Bharat Solvent Chemical Corporation Versus Union of India Others, W.P. (C) 401 of 2015 by judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be an effective opportunity of a hearing. Non-sharing of information mandatorily required to be shared under the Rules vitiates the findings. Failure to supply the data (subject to the rules of confidentiality) has curtailed the rights of and amounted to denial of an opportunity of effective participation to the petitioner and violates the principles of natural justice. The Final Findings dated 19.12.2014 rendered in violation of the principles of natural justice are thus liable to be quashed. 31. There is no merit in the contention of the respondent that since, the Final Finding are only recommendatory in nature, the petition is premature. It is no longer res-integra that this court in exercise of powers under Article 226 of the Constitution of India is empowered to entertain a petition challenging the Final Findings even prior to the same being accepted by the central government more so in a case where the principles of natural justice have not been complied with. 32. Further contention raised that the petitioner itself had supplied data by scoring out of confidential information and thus could not raise a grievance with regard to the non supply of data to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gold Service Tax Appellate Tribunal. Sub section (3) lays down that 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. 36. As noted hereinabove under Rule 17 it is mandatory on the Designated Authority to determine within one year from the date of initiation of an investigation, as to whether or not the article under investigation is being dumped in India and submit its Final Findings to the Central Government. The Central Government in special circumstances has been empowered to extend the aforesaid period of one year by six months. Provided that in cases where the Designated Authority has suspended the investigation on the acceptance of a price undertaking of the exporter of the article in question and subsequently the investigation is resumed on the violation of the terms of the undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of one year. 37. Rule 18 also lays down a time limit for the central government to impose the anti dumping duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case. 41. The judgments of the Tribunal relied upon by the respondents are also not applicable as the said judgments firstly are not binding upon us and secondly do not as a proposition of law consider or deal with the principle that where the final findings are vitiated on account of violation of principles of natural justice, the matter has to be remanded for a reconsideration or a post decisional hearing. We have already held that the statutory periods have to be strictly complied with for completing the investigations and for the Central Government to impose the anti dumping duty and as the statutory period is over, the matter cannot be remanded to the Designated Authority for a fresh consideration. 42. In view of the above, we hold that the DA, in not providing the information/material considered by him, has violated the principles of natural justice and the same is fatal to the Final Findings rendered. Consequently, the Final Findings, having been rendered in violation of the principles of natural justice, stand vitiated and cannot be sustained. As a result, the impugned Final Findings are quashed. The writ petition is allowed to this extent. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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