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TMI Blog2021 (2) TMI 841X X X X Extracts X X X X X X X X Extracts X X X X ..... good reason as to why the delay should be condoned on the mere asking the appellant. It needs to be noted that even after having been informed by the Designated Authority that the representation filed on behalf of the appellant for specifying Nil rate of duty could be accepted for the reason that the final findings had dealt with the issue, the appellant repeatedly filed representations. These representations were for the same relief which had been denied to the appellant by the Designated Authority and, therefore, the said explanation offered for the delay cannot be accepted. The appellant concealed material relevant facts from the Tribunal since the appellant has not stated that four Anti-Dumping Appeals had been filed to assail the Customs Notification. The appellant was impleaded as a respondent and these appeals had been dismissed by the Tribunal and the Special Leave to Appeal filed before the Supreme Court was also dismissed. The facts stated leave no manner of doubt that the appellant has not been able to satisfy the Tribunal that the appellant was prevented by sufficient cause from filing the appeal in time - The Delay Condonation Application, therefore, deserves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l findings by the Designated Authority that the Central Government issued a Customs Notification dated September 12, 2017 imposing anti-dumping duties and so far as the appellant is concerned, it was subjected to a residual rate of duty. In the first corrigendum dated December 19, 2017 issued by Designated Authority, the duty for the appellant was specified as NIL , but this corrigendum was withdrawn by the second corrigendum dated April 25, 2018 issued by the Designated Authority. The second corrigendum was notified by the Central Government by a Notification dated May 25, 2018 but this was not in connection with the duty specified for the appellant. 4. It would be seen from the aforesaid reliefs that have been claimed by the appellant in the appeal that no reliefs have been claimed for setting aside the Customs Notification dated September 12, 2017 issued by the Central Government or the final findings dated August 1, 2017 issued by the Designated Authority. The reliefs that have been sought are for quashing the second corrigendum dated April 25, 2018 and for issuance of a Customs Notification to give effect to the first corrigendum dated December 19, 2017. 5. Thus, if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant. The Respondent No. 1 replied to the letter from the Trade Representative of Russian Federation in India on 10.07.2018, However, it did not address the concern regarding such withdrawal. Instead, the Respondent No. 1 simply mentioned that the same has been addressed in the final findings dt. 01.08.2017. The last dated of filing an appeal before this Hon ble Tribunal under Section 9C of the Customs Tariff Act, 1975 was 23.08.2020. (should, be 23.08.2018 if the limitation is calculated from the date of issue of second corrigendum on 25.5.2018.) 7. As the reply from the Respondent No. 1 was received not long before the expiry of the statutory time period of filing the appeal pursuant to which the Applicant internally assessed its options, the same had resulted in the lapse of the statutory period for filing an appeal under Section 9C of the Act. 8. That after a year of refusal of EuroChem Group AG s request to provide single dumping margin to the Applicant and NAK Azot and several internal deliberations, the fact that the Applicant maintains its plans to export the PUC to India; the Applicant pursued this issue again with the Respondent No. 1 vide its letter dt. 07. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o decision was taken, the appellant preferred this appeal. 8. To be able to appreciate the grounds taken in the delay condonation applications, it would be necessary to narrate the relevant facts. 9. The records indicate that the Domestic Industry, which has been impleaded as Respondents in this appeal, had jointly filed an application before the Designated Authority for initiation of anti-dumping investigation concerning imports of Ammonium Nitrate originating in or exported from Russia, Indonesia, Georgia and Iran. The investigation was initiated by a Notification dated August 05, 2016 and the final findings of the Designated Authority were notified by a Notification dated August 01, 2017. Residual duty was specified for the appellant. The request made by the appellant for determination of individual dumping margin was not accepted for the reason that it had not exported the product under consideration during the period of investigation as a result of which individual dumping margin could not be assessed in the absence of export price. It needs to be sated that the appellant had made a request that it should have the same dumping margin (Nil) as was assessed for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 since Customs Notification was not issued by the Central Government in the Official Gazette imposing NIL rate of duty for the Appellant. 14. At this stage it needs to be noted that four appeals were filed before the Tribunal against the Customs Notification dated September 12, 2017 issued by the Central Government and the final findings dated August 01, 2017 of the Designated Authority. Three appeals were filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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:- (i) The Designated Authority had realised its mistake in not including the appellant in the duty table with its related company for imposition of NIL rate of duty and, therefore, issued the first corrigendum dated December 19, 2017, but without issuing any notice to the appellant it withdrew the first corrigendum by a second corrigendum dated April 25, 2018. The second corrigendum had, therefore, been issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal (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 Representative appearing for the Department also urged that the Delay Condonation Application should be dismissed as it has been filed with inordinate delay. Reliance has been placed upon a decision of Supreme Court in Esha Bhattacharjee v/s Managing Committee of Raghunathpur Nafar Academy and Ors. [(2013) 12 SCC 649] 23. The submissions advanced by learned counsel for the parties and the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings 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 pay the residual duty that was notified in the Customs Notification dated September 09, 2017 issued by the Central Government. 28. The appellant, however, still kept quiet and did not, at the appropriate time, take recourse to proceedings contemplated in law for either setting aside the Customs Notification dated September 12, 2017 or for implementation of the recommendation made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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 state that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party . The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation. 26. The law of limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cretion 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 legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not affect public justice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; (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 the first corrigendum issued by the Designated Authority on December 19, 2017. This does not reflect the normal behaviour of a person having all the resources to take recourse to legal proceedings. In fact, Euro Chem group, which is the parent group of the appellant, in beginning of 2018 had threatene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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