9911796707
TMI Blog2021 (2) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... ys of the date of order under appeal, but the Appellate Tribunal may entertain any appeal after the expiry of the said period of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 2. This appeal was filed in the office on December 01, 2020 with the following principle reliefs: "a) Hold that the Respondent No. 1 (The Designated Authority) incorrectly did not include the appellant in the duty table and did not recommend 'NIL' rate of duty thereof and declare the impugned corrigendum dated April 25, 2018 issued by Respondent No, 1 as issued contrary to the applicable law and well-established principles of natural justice and fairness; b) Issue an order or direction to call for, examine the records in relation to and quash the impugned corrigendum dated April 25, 2018 issued by Respondent No. 1 to the extent it affects the Appellant; and c) Issue an order or directions, directing the Respondent No. 2 (The Union of India) to issue customs notification giving effect to or acting upon the first corrigendum dated December 19, 2017 issued by Respondent No. 1." 3. To appreciate the aforesaid reliefs claimed in the appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017-Customs (ADD) dt. 12.09.2017. Pursuant to the representations made to the Respondent No. 1, first corrigendum notification dt. 19.12.2017 was issued by the Respondent No. 1 including the Applicant in the duty table and providing "NIL rate of anti-dumping duty. 5. However, the Respondent No. 2 did not give effect to the first corrigendum notification dt. 19. 12.2017; and on 25.04.2018, the Respondent No. 1 issued the impugned (second) corrigendum notification withdrawing the first corrigendum notification dated 19.12.2017, amongst other amendments to the final findings, without providing any reason. This impugned corrigendum was given effect to vide Notification No. 29/2018-Customs (ADD) dt. 25.04.2018 (should be 25.05.2018) issued by the Respondent No. 2. Thus, the Applicant continued being subjected to the residual rate of anti-dumping duty. 6. That pursuant to the issuance of customs notification giving effect to the send corrigendum notification, the Applicant's parent group, EuroChem Group AG on 26.06.2018 approached the Trade Representative of Russian Federation in India to obtain comments from the Respondent No. 1, with respect to the reasons for withdrawal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was caused as the Applicant believed that its requests will be heard appropriately and responded by the Respondent No. 1 adequately; and the same was purely bona fide and in good faith." (emphasis supplied) 7. In short, the applicant has stated that after the issue of the Customs Notification dated September 12, 2017 specifying residual duty for the appellant, a representation was submitted by the appellant which resulted in the issue of the first corrigendum dated December 19, 2017 by the Designated Authority specifying that the appellant would be subjected to 'Nil' rate of duty. However, the Central Government did not issue any Customs Notification to give effect to the said recommendation made by the Designated Authority and in fact by a second corrigendum dated April 25, 2018, the Designated Authority withdrew the first corrigendum. This resulted in the filling of another representation before the Designated Authority but the Designated Authority, by letter dated July 10, 2018, informed the appellant that the issue raised that it should be granted the same treatment as the related producer had been addressed in the final findings of the Designated Authority. Various represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing duty, as was fixed for its related producer, should have been specified for the appellant. 12. On record is a corrigendum dated December 19, 2017 issued by the Designated Authority including the appellant in the duty table and specifying 'NIL' rate of duty for the appellant. The relevant portion of the said corrigendum dated December 19, 2017 is reproduced below:- Ministry of Commerce and Industry (Department of Commerce) (Directorate General of Anti-Dumping and Allied Duties) CORRIGENDUM New Delhi, the 19th December, 2017 (Final Findings Notification) 2. In partial modification of the above mentioned Notification Sl. No. 1 in the Duty Table is modified and shall be read as under: DUTY TABLE S.No. Sub-Heading Description of Goods Country of origin Country of Export Producer Exporter Duty Amount Unit 1. 3102 Ammonium Nitrate Having density above 0.83 g/cc* Russia Switzerland Novomoskovsky Azot JSC Nevinnomyssky Azot, JSC Euro Chem Trading GMBH through Rawfert Offshore Sal, Lebanon Euro Chem Trading GMBH NIL US Dollar/Metric Ton 13. There is nothing on record to indicate that this corrigendum was considered by the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d August 01, 2017. 17. The appellant claims that thereafter further representations were sent by Euro Chem on November 07, 2019, January 20, 2020, February 20, 2020, and April 24, 2020. The relief claimed in all these representations was for re-issuance of corrigendum dated December 19, 2017 and to provide a single dumping margin for the appellant as was for its related producer but as no decision was taken, this appeal was filed under section 9C of the Tariff Act on December 1, 2020 with a prayer that it should be held that the Designated Authority should have recommended 'NIL' rate of duty for the appellant and the second corrigendum dated April 25, 2018 issued by the Designated Authority to the extent it affects the appellant should be set aside. A further prayer was made that a direction should be issued to the Union of India to issue a Customs Notification "giving effect to or acting upon the first corrigendum dated 19/12/2017' issued by the Designated Authority." 18. The relevant facts have been stated and so the submissions advanced on behalf of the parties can be now considered. 19. Shri Sandeep Sethi, learned Counsel for the Appellant made the following submissions:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance upon a decision of the Supreme Court in Balwant Singh v/s Jagdish Singh and Others [(2010) 8 Supreme Court Cases 685]; (ii) In fact four appeals were filed to assail the Notification dated September 12, 2017 and the final findings dated August 01, 2017 in which the appellant was also impleaded as a respondent. All these appeals were dismissed by the Tribunal and the Special Leave to Appeal (Civil Appeal No. 19899 of 2018) filed to assail the order passed by the Tribunal was also dismissed by the Supreme Court; and (iii) No satisfactory explanation has been offered by the appellant for the inordinate delay in filing the appeal. 21. Shri Ameet Singh, learned counsel appearing for the Designated Authority also submitted that the appellant has failed to furnish any satisfactory explanation for the inordinate delay in filing the appeal. Learned counsel submitted that the appellant was well aware of the remedies available to it for challenging the Customs Notification dated September 12, 2017 and the final findings dated August 01, 2017 of the Designated Authority but still it waited for over three years to file this appeal. 22. Shri Sunil Kumar, learned Authorized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g individual rate for the appellant, namely 'NIL' rate of duty which was the rate of duty specified for the related producer. 27. It is doubtful whether the Designated Authority could have modified the duty for the appellant specified in its final findings, because it was not a typographical mistake as a categorical finding had been recorded by the Designated Authority in the final findings that the request made by the appellant for determination of individual dumping margin could not be accepted for the reason that it had not exported the product under consideration during the period of investigation as a result of which the export price could not be assessed. The Designated Authority also held that it was not desirable to consider the request of the appellant that the same dumping margin should be specified as was assessed for the related producer. Even otherwise, the Central Government did not issue a Customs Notification in the Official Gazette accepting the recommendations of the Designated Authority. Thus, for all the practical purposes, the first corrigendum issued by the Designated Authority did not result in any benefit to the appellant, and it should have continued to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese representations, therefore, cannot enure to the benefit of the appellant for explaining this long delay in filing the appeal on December 01, 2020. 33. Learned Counsel for the appellant has placed reliance upon a decision of this Tribunal in Greenply Industries Ltd., which is also in connection with anti-dumping appeal. The Bench noted that though the grounds mentioned for explaining the delay were not substantial, but considering the larger issue on the merits of the case, if any, the delay was condoned. This cannot mean that in all cases where merit is to be considered, the delay should be condoned. Each case has to be examined on its own facts. In fact the Bench itself was conscious of this fact and treated the views to have been expressed by it 'as a special case'. 34. Learned counsel for the Domestic Industry has, however, placed reliance on a decision of the Supreme Court in Balwant Singh. While examining the provisions of order 22 rule 9(2) and (3) of the Code of Civil Procedure 1908 in a case when there was a delay of 778 days in filing an application for bringing on record the legal representative of the deceased appellant, the Supreme Court observed:- 25. We may s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. 38. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;" (emphasis supplied) 36. In Esha Bhattacharjee, which decision has been relied upon by the learned Authorized Representative of the Department, reference has been made to the decision of the Supreme Court in Balwant Singh. The Supreme court culled out the following principles:- "From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... when the delay is directly as a result of negligence, default or inaction of that party; (ii) The explanation has to be reasonable or plausible so as to persuade the Court to believe that the explanation rendered is not only true but is worthy of exercising judicial discretion in favour of the applicant; (iii) If the explanation is bona fide and also reflects the normal behaviour of a common prudent person, the judicial discretion would tilt in the favour of such an applicant; (iv) The explained delay should be clearly understood in contradistinction to inordinate unexplained delay; (v) Substantial justice being paramount and pivotal, the technical consideration should not be given undue and uncalled for emphasis; and (vi) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. 38. The factual position has been narrated above. It clearly demonstrates that the appellant, for no justifiable reason, did not challenge the Customs Notification dated September 12, 2017 within the time stipulated in section 9C of the Tariff Act nor did the appellant take immediate steps for implementation for th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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