Madras High Court
M/S.Hyundai Motors India Ltd vs Union Of India on 11 April, 2014
Author: V.Ramasubramanian
Bench: V.Ramasubramanian
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 25.8.2014 & DELIVERED ON: 12.12.2014 CORAM THE HON'BLE MR.JUSTICE V.RAMASUBRAMANIAN W.P.Nos.11683, 11684, 14567 and 14568 of 2014 & all connected pending MPs M/s.Hyundai Motors India Ltd., rep. by its Assistant Vice President Petitioner in (Taxation) ...all the WPs Vs. 1.Union of India, Ministry of Finance, through Revenue Secretary, Department of Revenue, North Block, New Delhi-110001. 2.Designated Authority, Directorate General of Anti Dumping and Allied Duties, Department of Commerce, Ministry of Commerce & Industry, Udyog Bhawan, New Delhi-110001. 3.M/s.Synergies Castings Ltd., Respondents Visakapatnam. ...in all the WPs PETITIONS under Article 226 of the Constitution of India seeking for the issue of Writs of Certiorarified Mandamus (i) to call for the records relating to the impugned preliminary finding dated 13.1.2014 issued by the second respondent, quash the same and consequently forbear the first and second respondents from proceeding any further in the investigation (WP.No.11683 of 2014); (ii) to call for the records relating to the impugned anti dumping duty notification No.15/2014 - Customs (ADD) dated April 11, 2014 issued by the first respondent, quash the same and forbear the first and second respondents from proceeding any further in the investigation (WP.No.11684 of 2014); (iii) to call for the records relating to the impugned extension notification F.No.354/241/2012-TRU dated April 30, 2014 issued by the first respondent, quash the same and consequently direct the first and second respondents to terminate the investigation in connection with imposition of anti dumping duty on import of cast aluminium alloy wheels originating in or exported from China PR, Korea RP and Thailand by the petitioner (WP.No.14567 of 2014); and (iv) to call for the records relating to the impugned letter F.No.14/7/2012-DGAD dated 8.5.2014 issued by the second respondent, quash the same and consequently direct the first and second respondents to terminate the investigation in connection with imposition of anti dumping duty on import of cast aluminium alloy wheels originating in or exported from China PR, Korea RP and Thailand by the petitioner (WP.No.14568 of 2014). ----- For Petitioner : Mr.P.S.Raman for Mr.Lakshmi Kumaran For Respondent-1 : Mrs.Mallika Srinivasan For Respondent-2 : Mr.G.Rajagopalan, ASG for Mr.P.Mahadevan, CGSC For Respondent-3 : Mr.G.Masilamani, SC for Mr.A.S.Vijayaraghavan ----- COMMON ORDER
The 3rd respondent herein, namely Synergies Castings Limited, which is involved in the manufacture of Cast aluminium alloy wheels, lodged a complaint with the Designated Authority under the Customs Tariff Act, 1975 that some of the importers such as the writ petitioner herein are importing into India, Cast Aluminium Alloy Wheels at less than its normal value and that therefore, they have incurred a liability to pay anti dumping duty. On the said complaint, the Designated Authority initiated an investigation on 10.12.2012.
2. Since the investigation was initiated on 10.12.2012, the Designated Authority was obliged to complete the investigation and record final findings on or before 09.12.2013, by virtue of the relevant rule. However, in exercise of the power conferred by the first proviso to the said rule namely Rule 17(1), the Central Government passed an order on 06.12.2013 extending the period by three months, namely, up to 09.3.2014. Thereafter, the Designated Authority recorded a preliminary finding in terms of Rule 12(1), recommending to the Government, the imposition of provisional anti dumping duty. Accepting the recommendation of the Designated Authority, the Government of India issued a notification on 11.4.2014 imposing provisional duty.
3. Challenging the preliminary findings dated 13.01.2014 of the Designated Authority and seeking a consequential mandamus to forbear the Designated Authority from proceeding any further with the investigation, the petitioner came up with a writ petition in W.P.No. 11683 of 2014. Simultaneously, the petitioner also came up with W.P. No.11684 of 2014 challenging the notification of the Government of India dated 11.4.2014, imposing provisional duty. Both these writ petitions were admitted and an interim order was passed directing the petitioner to pay 50% of the provisional duty as a condition for staying the entire demand.
4. In the meantime, the Designated Authority appears to have made a request on 03.3.2014 for one more extension of time in terms of the first proviso to Rule 17(1), as the time originally granted was to expire on 09.3.2014. However, no extension was granted.
5. After more than a month and a half, the Government of India passed an order dated 30.4.2014 granting extension of time retroactively from 09.3.2014 up to 09.6.2014, in terms of the first proviso to Rule 17(1). It appears that before the officer holding the post of Designated Authority could activate the proceedings from where they were left, he was transferred on 28.5.2014 and a new officer was appointed as the Designated Authority by a gazette notification dated 29.5.2014. On the very date of his appointment, the newly appointed Designated Authority issued an electronic mail to all the parties on 29.5.2014 calling upon the parties to appear for a personal hearing at 5 pm on 30.5.2014. But, the petitioner sent a reply on 30.5.2014 claiming that the e-mail dated 29.5.2014 fixing the date of personal hearing, was received after office hours at 6.22 pm and that the same was noticed only after the office was opened on 30.5.2014 and that therefore, the time granted was totally insufficient to reach Delhi for attending the personal hearing. Therefore, the petitioner requested postponement of the hearing at least by a day. But, by another mail allegedly received at 4.42 pm on 30.5.2014, the Designated Authority informed the petitioner that no further time could be granted and that the petitioner could file written arguments.
6. Upon receipt of the said communication, the petitioner filed two writ petitions in W.P.Nos.14567 and 14568 of 2014 challenging respectively (i) the extension notification dated 30.4.2014, and (ii) the communication of the Director of the Ministry of Commerce, informing all parties about the extension of time.
7. On 06.6.2014, the writ petitions came up before a learned Judge, for orders as to admission. While ordering notice in the writ petitions, the learned Judge passed an interim order restraining the respondents from recording any final findings in terms of Rule 17, as per the extension notification. But, the learned Judge also made it clear that eventually, the period of stay could be excluded, in the event of the dismissal of the writ petitions.
8. However, on 09.6.2014, the case was taken up upon being mentioned by the learned counsel for the third respondent on the ground that the deadline, namely 09.6.2014 cannot be extended even by the Court. Hence, the stay was vacated on 09.6.2014. It appears that the Designated Authority passed an order and kept it in a sealed cover in view of the above developments. Thereafter, the respondents filed counter affidavits in the writ petitions and they were taken up for final hearing. The sealed cover now remains as a forbidden fruit though I do not know whether it is sweet or sour.
9. I have heard Mr.P.S.Raman, learned senior counsel appearing for the petitioner, Mr.G.Rajagopalan, learned Additional Solicitor General appearing for the Government of India and Mr.G.Masilamani, learned senior counsel appearing for the third respondent.
10. As stated earlier, there are four writ petitions on hand. The first writ petition challenges the preliminary findings rendered by the Designated Authority under Rule 12(1). The second writ petition challenges the notification of the Government of India imposing a provisional anti-dumping duty. The third writ petition challenges the extension notification dated 30.4.2014, by which the time to complete the enquiry was extended up to 09.6.2014. The fourth writ petition challenges a communication of the Ministry, intimating the parties about the extension of time.
11. There are only two issues that arise for consideration in all these writ petitions. They are (i) Whether, after the expiry of the period, the Government of India was entitled to extend the period, by a notification dated 30.4.2014 retroactively from 09.3.2014, and (ii) whether the action of the Designated Authority in granting less than 24 hours notice to the parties to appear for a personal hearing and in rejecting their request for adjournment and proceeding to pass orders on the basis of written arguments, was in violation of the principles of natural justice.
12. Before proceeding to consider the questions raised in the writ petitions, I think it would be useful to have a peep into the history of anti dumping legislation, in India and the world over.
BRIEF HISTORY OF ANTI-DUMPING LAWS
13. It appears that the earliest signs of anti dumping legislation emerged in U.S. in the late 19th Century from the anti trust movement and concerns about the unfair competition in fostering the growth of monopolies. The Sherman Anti Trust Act of 1890 declared as illegal, any effort to combine or conspire to monopolise a particular market. But, Canada overtook the United States and enacted the first national anti dumping law in 1904. The Canadian law was enacted for the purpose of combating the United States dumping of steel into Canada. It was also motivated by the goal of finding an alternative to across-the-Board tariff increases being forcefully done by the Canadian producers.
14. In the United States, another Act known as Clayton Act of 1914 followed, making price discrimination an illegal practice, if it reduced competition or tended to create a monopoly. There was already another legislation known as the Wilson Tariff of 1894, which made it unlawful for foreign producers to combine or conspire to monopolize the U.S. market. Taking cue from the Canadian experience, the Anti Dumping Act of 1916 was enacted in the United States making it illegal to sell imported goods at prices substantially lower than the market value in the exporting country with the intent of destroying or injuring an industry in the United States or of preventing the establishment of an industry in the United States or of monopolizing any part of trade and commerce in any such articles in the United States. Interestingly, the Anti Dumping Act of 1916 (US) is a criminal statute with criminal punishments. This Anti Dumping Act of 1916 continued to be in the statute book for 84 years until the Act was successfully challenged by European Union and Japan before the Appellate Body of W.T.O. In 2000, the Appellate Body of W.T.O. held the 1916 Act to be inconsistent with GATT 1994. Japan was forced to challenge the 1916 Act, since the provisions of the Act were sought to be invoked, to combat the import of steel from Japan.
15. Another Anti Dumping Act was enacted in 1921 in the United States, which was modelled on the Canadian statute. This 1921 Act was a deviation from the 1916 Act in the sense that the 1916 Act targeted predatory dumping, while the 1921 Act was conceived to be a protective measure for the domestic market.
16. After the Second World War, preparatory conferences were held between 1946 and 1947 for the purpose of reaching a General Agreement on Trade and Tariff, which came to be known as GATT. In the meeting of the Preparatory Committee, several countries such as Australia, Belgium, Brazil, Canada, China, Cuba, Czechoslovakia, France, India, Netherlands, New Zealand, South Africa, United Kingdom and the United States participated. In these conferences, a general agreement was reached on the need for anti dumping law along the lines proposed in the working document prepared by the United States known as 'A Suggested Charter for an International Trade Organisation of the United Nations'. The anti dumping provisions proposed in that document closely followed the 1921 Act.
17. In the Canadian Round Negotiations from 1963 to 1967, anti dumping laws attracted attention. The negotiators dealt with three problems namely (i) lack of injury test in the Canadian law; (ii) the potential for abuse through weak tests of substantive anti dumping concepts such as material injury, industry and causation; and (iii) the potential for abuse through administrative procedural delays, uncertainties and arbitrariness. Eventually, the Anti Dumping Code of 1967 was evolved and the same was adopted in Europe with an Anti Dumping Legislation of 1968.
18. After about seven years, the Tokyo Round of GATT Negotiations began in 1974. During negotiations from 1974 to 1979, the parties agreed to a new Anti Dumping Code that introduced new amendments to 1967 Code.
19. Again in 1986, Uruguay Round began. 123 countries took part in this round and the developed countries played an active role in the multi lateral negotiations that took place in this round. The Uruguay Round attempted to expand the competence of the agreement to new areas such as services, capital, intellectual property, textile and agriculture. Then came the updated version of GATT known as GATT 1994. It was by this agreement that the World Trade Organisation was created, with 75 existing members and the European communities becoming the founding members.
INDIAN PERSPECTIVE
20. With the glasnost or the opening up of the Indian economy in 1992 and the creation of W.T.O. on 1.1.1995, the Indian perspective as well as the fiscal scenario here got completely changed. The Customs Tariff Act, 1975 (of India) was amended by Customs Tariff (Second Amendment) Act, 1982 to insert Section 9-A for the first time. However, Section 9-A was re-drafted and the original provision was substituted by a new Section 9-A under the Customs Tariff (Amendment) Act 14 of 1994, to take effect from 01.01.1995, coinciding with the creation of the World Trade Organisation.
21. By Section 9-A inserted in the Customs Tariff Act, 1975, the Parliament empowered the Central Government to impose an Anti-Dumping Duty, when an article is exported by an exporter or producer from any country or territory to India, at less than its normal value. Sub-section (1-A) of Section 9-A of the Act also empowers the Central Government to extend the anti-dumping duty to such other articles, if they find upon enquiry that a circumvention of anti-dumping duty has taken place either by altering the description, or name, or composition of the article, which is subject to such anti-dumping duty. The Central Government also has the power under Sub-section (2) of Section 9-A to impose an anti-dumping duty on the basis of a provisional estimate of the value and margin, even during the pendency of the determination in accordance with the other Sub-sections of Section 9-A. However, the entire power under Section 9-A is subject to a restriction relating to time, imposed under Sub-section (5). Under this Sub-section, the anti-dumping duty imposed under Sub-section 9-A shall cease to have effect on the expiry of five years from the date of imposition, unless revoked earlier. However, the first proviso to Sub-section (5) enables the Central Government to extend the period of such imposition for a further period of five years, if the Central Government is of the opinion, after a review, that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury.
22. In exercise of the power conferred by Sub-section (6) of Section 9-A and Sub-section (2) of Section 9-B of the Act, the Central Government issued a set of rules known as Customs Tariff (Identification, Assessment and Collection of Duty or Additional Duty on Dumped Articles and for Determination of Injury) Rules, 1985. They were framed, based upon Article VI of GATT 1994. Under Rule 3 of these Rules, hereinafter referred to as the Rules, the Central Government is obliged to appoint a person not below the rank of Joint Secretary to Government, as the Designated Authority. The duties of the Designated Authority are enlisted in Rule 4. One of the duties of the Designated Authority is to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article.
23. Rule 5(1) empowers the Designated Authority to initiate an investigation, upon receipt of a written application by or on behalf of the domestic industry. Sub-rule (4) of Rule 5 enables the Designated Authority to initiate an investigation even suo motu, if it is satisfied from the information received from the Commissioner of Customs or from any other source that sufficient evidence exists as to the existence of circumstances referred to in Sub-rule (3).
24. The principles governing the investigation undertaken by the Designated Authority under Rule 5, are given in extenso in Rule 6. Rule 6 needs to be extracted, in view of the fact that the fulcrum of the dispute involved in these writ petitions, is interpretation to be given to Rule 6. Therefore, Rule 6 is extracted as follows:
"Rule 6:
Principles governing investigations. - (1) The Designated Authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following :-
(i) the name of the exporting country or countries and the article involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is based;
(v) the address to which representations by interested parties should be directed; and
(vi) the time-limits 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 therefor 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 purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the Designated Authority or transmitted to the appropriate diplomatic representative of the exporting country.
(5) The Designated Authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organisations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality.
(6) The Designated Authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the Designated Authority only when it is subsequently reproduced in writing.
(7) The Designated Authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation.
(8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the Designated Authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances."
25. Under Rule 12, the Designated Authority is entitled to record a preliminary finding, regarding the export price, normal value and margin of dumping etc. The preliminary findings are to be published by the Designated Authority in the form of a public notice.
26. One of the important obligations cast upon the Designated Authority under Rule 16, is to inform all the interested parties of the essential facts under consideration, which form the basis for its decision, even before giving its final findings. This procedure is called "disclosure of information". Rule 16 reads as follows:
"Rule 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."
In other words, before pronouncing its final findings, the Designated Authority is required by Rule 16 to put all interested parties on notice of the factual matrix that would form the basis for its final decision. Such a step is provided in the rules, perhaps on account of the fact that generally three parties are involved in the process of investigation. They are (i) the exporters or purchasers of the article in question from any country or territory into India, (ii) the importers who import such article into India, and (iii) the domestic manufacturer.
27. The manner in which and the time schedule within which the Designated Authority is obliged to render its final finding, are stipulated in detail in Rule 17. Rule 17(1) contains two stipulations, one relating to the time schedule within which the final findings are to be rendered and the second relating to the contents of such findings. Rule 17(1) reads as follows:
"Rule 17:
Final findings. - (1) The Designated Authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding
(a) as to, -
(i) the export price, normal value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;
(iii)a casual link, where applicable, between the dumped imports and injury;
(iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy :
Provided that the Central Government may, [in its discretion in special circumstances] extend further the aforesaid period of one year by six months :
Provided further that in those cases where the Designated Authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, [(b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry [after considering the principles laid down in the Annexure III to these rules.]]"
28. Under Rule 17(3), the Designated Authority should determine the margin of dumping for each known exporter or producer. Sub-Rule (4) of Rule 17 requires the Designated Authority to issue a public notice regarding its findings. Thereafter the Government may issue a notification imposing anti dumping duty in terms of Rule 18(1) and publish the same in the Official Gazette, within three months of publication of the final findings. The duty so levied shall take effect only from the date of its publication. After such imposition of duty, it is always open to the Designated Authority to review the same under Rule 23(1), if there is no justification for the continued imposition. The decision to levy anti-dumping duty, can be challenged by an aggrieved person by way of an appeal under Section 9-C, before the Customs, Excise and Service Tax Appellate Tribunal. Therefore, it is not as though the final findings recorded by the Designated Authority, would seal the fate of the aggrieved parties.
29. Keeping these aspects in mind, let us now come back to the case on hand. As I have pointed out earlier, 2 questions arise for consideration. They are (i) whether, after the expiry of the period, the Government of India was entitled to extend the period, by a notification dated 30.4.2014 retroactively from 09.3.2014, and (ii) whether the action of the Designated Authority in granting less than 24 hours notice to the parties to appear for a personal hearing and in rejecting their request for adjournment and proceeding to pass orders on the basis of written arguments, was in violation of the principles of natural justice.
Issue No.(i):
30. The first contention of Mr.P.S.Raman, learned Senior Counsel for the petitioner is that Rule 17(1) obliges the Designated Authority to make a final determination within one year from the date of initiation of an investigation. The first proviso to Sub-Rule (1) of Rule 17 enables the Central Government, in its discretion, to extend the period by six months. The word "extend" appearing in the first proviso, is an indication that any order extending the period should also be passed before the expiry of the period. In other words, the contention of the learned senior counsel for the petitioner is that for "extending" something, the thing should be alive on the date of the grant of extension. In support of the above contention, the learned Senior Counsel for the petitioner relies upon a few decisions, which I shall consider at the appropriate stage.
31. In response to the above contention, Mr.G.Rajagopalan, learned Additional Solicitor General submitted that a period of limitation indicated for mere procedural purposes, shall not take away the substantial right that the Government of India has. In this regard, he relies upon a decision of a Division Bench of this Court in Dharmalinga Odayar v. Sundararajan [1998 (1) LW 386]. Also relying upon the decisions of the Supreme Court in U.P. Avas Evam Vikas Parishad v. Friends Co-op. Housing Society Ltd. [1995 Supp. (3) SCC 456] and Ashok Kumar Das v. University of Burdwan [(2010) 3 SCC 616], the learned Additional Solicitor General submitted that just as there is always a distinction between approval and prior approval and that a post facto approval is sufficient to validate an Act, an extension granted within the overall period prescribed by law, is also valid.
32. Similarly, Mr.G.Masilamani, learned senior counsel appearing for the third respondent contended, relying upon the decision of the Constitution Bench of the Supreme Court in Life Insurance Corporation of India v. Escorts Ltd. [(1986) 1 SCC 264] that in the absence of expressions such as "prior" or "previous", it cannot be contended that extension ought to have been granted before the expiry of the original period. Relying upon the observations made by the Constitution Bench in paragraph 63 of the decision, the learned senior counsel submitted that when a statute enacted in the national economic interest comes up for consideration, the traditional norms of statutory interpretation must yield to broader notions of national interest and that therefore, the Court has to interpret the statute in tune with the national interest that the statute sought to sub-serve.
33. In Nirma Limited v. Saint Gobain Glass India Ltd. [2012 (281) ELT 321 (Mad.)] relied upon by Mr.G.Masilamani, learned senior counsel for the third respondent, a Division Bench of this Court also held that while a fiscal statute is to be construed strictly, an economic legislation is to be construed with the intention of developing domestic industry.
34. I have carefully considered the rival submissions with reference to the statutory provisions.
35. As I have already indicated, it is only Section 9-A(1) of the Customs Tariff Act, 1975 that empowers the Central Government to impose an anti-dumping duty. The requirement to hold an enquiry, before imposing a duty under Sub-section (1), is provided by Sub-section (2). A careful look at all the eight Sub-sections of Section 9-A would show that the requirement to hold an enquiry is spelt out in Sub-section (1-A), Sub-section (2), Sub-section (6) and Sub-section (6-A). The nature of the enquiry contemplated under each of these Sub-sections, differ from one another. This can be best appreciated by having a close look at Section 9-A as it now stands, which reads as follows:
"9-A. Anti-dumping duty on dumped articles (1) Where any article is exported by an exporter or producer from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.
Explanation: For the purposes of this section, -
(a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value;
(b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6);
(c) "normal value", in relation to an article, means-
(i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or
(ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either-
(a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or
(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6);
PROVIDED that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is no produced in the country of export or there is not comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.
(1A) Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti-dumping duty imposed under sub-section (1) has taken place, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case may be.
(2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined:-
(a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and
(b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of anti-dumping duty as so reduced.
(2A) Notwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under sub-section (2), shall not apply to articles imported by a hundred per cent export-oriented undertaking unless,-
(i) specifically made applicable in such notifications or such impositions, as the case may be; or
(ii) the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India.
Explanation: For the purposes of this sub-section, the expression "hundred per cent export-oriented undertaking" shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944.
(3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that -
(i) there is a history of dumping which caused inquiry or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and
(ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force.
(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:
PROVIDED that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension:
PROVIDED FURTHER that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty.
(6A) The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6) shall be determined on the basis of records, concerning normal value and export price maintained, and information provided, by such exporter or producer.
PROVIDED that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.
(7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament.
(8) The provisions of the Customs Act, 1962 and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act."
36. What is contemplated in Sub-section (1-A), is an enquiry to find out whether there was circumvention of anti-dumping duty imposed under Sub-section (1), either by altering the description or the composition of the article, or by the import of such article in an unassembled or disassembled form. The nature of the enquiry contemplated under Sub-section (2) is to arrive at the provisional estimate of the normal value and margin, pending final determination. What is contemplated in Sub-sections (6) and (6-A), is an enquiry regarding the margin of dumping.
37. Since the nature of the enquiry contemplated under different Sub-sections of Section 9-A are different, no time limit is prescribed by the Act, either for the initiation or for the conclusion of an enquiry, under any of the Sub-sections. The only time limit stipulated in Section 9-A, is in Sub-section (5) and the two provisos under Sub-section (5) of Section 9-A. Though the first proviso to Sub-section (5) speaks about extension beyond the period of five years, which has come to be known as "sunset review", the second proviso steers clear any air of suspicion, by holding that once a review is initiated before the expiry of five years, the anti-dumping duty will continue to remain in force for a further period of one more year, pending the outcome of the review.
38. Keeping the above scheme of Section 9-A in mind, if we come to the Rules, it could be seen that the Rules were issued in exercise of the powers conferred by Sub-section (6) of Section 9-A read with Sub-section (2) of Section 9-B. It is only in the Rules that a time limit is prescribed for the determination of two things, namely (a) whether or not the article under investigation is being dumped in India, and (b) the amount of duty that is required to be levied for the purpose of removing the injury, where applicable to the domestic industry.
39. In other words, the Parent Act or the superior legislation does not prescribe any time limit for the conclusion of an enquiry. It is only the subordinate legislation, namely the Rules, that stipulates a time limit for the completion of the investigation and for the recording of the final findings. In this background, let me look at the ratio laid down in the decisions relied upon by the learned senior counsel for the petitioner.
40. In Tarsem Kumar vs. Collector, Central Excise [AIR 1972 Punjab & Haryana 444], certain articles and a car were seized by the Customs Officials and a seizure was ordered under Section 115. But, a notice under Section 124(a) of the Customs Act was not issued on or before the expiry of six months. An order granting extension of time was passed after the expiry of the original period. The Punjab and Haryana High Court held that once the period of six months expires without being extended before its expiry and a break occurs in the continuity of lawful possession of the Customs Authorities, the right of the owner of the seized goods to claim their return accrues at once and that it cannot be defeated by extending the time after the expiry of the period. The Court held that the word 'extension' signifies that what is to be extended, should be in existence on the date of extension. The Court also held that once the period stipulated expires, a vested right accrues to the party and that the said vested right cannot be taken away by the extension of time granted after the expiry.
41. But, the decision in Tarsem Kumar, may not be of any assistance to the petitioner, in view of the fact that under Section 110(1) of the Customs Act read with Section 124, a liability is imposed upon the Customs Officer to return the article that was seized, to the person from whom it was seized. In other words, the immediate consequence of the expiry of the period of six months is indicated in the statutory provision itself and hence, the Punjab and Haryana High Court interpreted the said provision as aforesaid.
42. In National Industrial Corporation Limited v. Registrar of Companies [AIR 1963 Punjab 239], the Punjab High Court was concerned with a challenge to the order of the Registrar of Companies refusing to accept the change of address of the registered office of the company, on the ground that the period stipulated under Section 18 of the Companies Act, 1956 had expired. The Court pointed out that the word 'extension' imports continuance of an existing thing. But, with great respect, the Punjab High Court did not interpret Section 18(4) of the Companies Act, to its true letter and spirit.
43. In Provash Chandra Dalui v. Biswanath Banerjee [1989 Supp. (1) SCC 487], the Supreme Court was concerned with an appeal arising out of a suit for ejectment, possession and mesne profits. The suit for ejectment was filed on the ground that the option for extension of lease was not exercised by the lessee before the expiry of the period of lease. When the matter went to the Supreme Court, one of the questions that was taken up for consideration was as to whether the lessees had acquired the status of what was known as 'Thika Tenants' with reference to an ordinance known as Calcutta Thika Tenancy Ordinance. The Ordinance prescribed a period of not less than 12 years, as the duration of the lease, for a person to claim the benefit of the status. Therefore, the question that arose was as to whether the extension sought after the expiry of the period of lease, would enable them to claim that status or not. It is in that context the Supreme Court drew a distinction between the words 'extension' and 'renewal'. It was stated in paragraph 14 as follows :
"It is pertinent to note that the word used is 'extension' and not 'renewal'. To extend means to enlarge, expand, lengthen, prolong, to carry out further than its original limit. Extension, according to Black's Law Dictionary, means enlargement of the main body; addition of something smaller than that to which it is attached; to lengthen or prolong. Thus extension ordinarily implies the continued existence of something to be extended. The distinction between 'extension' and 'renewal' is chiefly that in the case of renewal, a new lease is required, while in the case of extension the same lease continues in force during additional period by the performance of the stipulated act. In other words, the word 'extension' when used in its proper and usual sense in connection with a lease means a prolongation of the lease. Construction of this stipulation in the lease in the above manner will also be consistent when the lease is taken as a whole. The purposes of the lease were not expected to last for only 10 years and as Mr.A.K.Sen rightly pointed out the schedule specifically mentioned the lease as 'for a stipulated period of 20 years'. As these words are very clear, there is very little for the court to do about it."
44. But, the ratio laid down in this case also may not be of any assistance to the petitioner. This is in view of the fact that upon the expiry of the prescribed period, a statutory right was conferred upon the party and hence, the Court felt that nothing could be done to divest the party of such a right, post facto.
45. In Kumho Petrochemicals Co. Ltd. v. Union of India [W.P.(C).No.1851 of 2014, C.M.Nos.3866 and 3877 of 2014 etc. cases dated 11.7.2014], a Division Bench of the Delhi High Court was concerned with the validity of the Central Government's decision to initiate anti dumping duty extension proceedings under Section 9A of the Customs Tariff Act, 1975. The challenge to the Notification was made on the ground that an extension ought to have been notified in the Official Gazette and published before the expiry of the five year period from the date of original Notification, so as to enable the Government to invoke the sunset review clause. The contention was upheld by the Division Bench on the ground that but for the Second Proviso to Section 9A (5), there can be no legal extraction during the sunset review.
46. But, the provisos to Sub-section (5) of Section 9A stand on a completely different footing than the rule, with which we are now concerned. Sub-Section (5) of Section 9A provided for an automatic expiry of the anti dumping duty upon completion of the period of five years from the date of imposition. The First Proviso to Sub-Section (5), which enables the Central Government to extend the period of imposition, made it clear that the extended period would commence only from the date of the order of extension. An exception was carved out to this rule under the Second Proviso, which enables the anti dumping duty to continue for a period not exceeding one year, if a review, initiated before the expiry of the initial period of five years could not be completed before the expiry. Therefore, the interpretation given by the Division Bench of the Delhi High Court to the word 'extension' appearing in the provisos to Sub-Section (5) of Section 9A cannot be blindly applied to cases of this nature. As I have pointed out earlier, the Division Bench of the Delhi High Court was concerned with the prescription contained in the Parent Act itself and not the one contained in the subordinate legislation.
47. In Brooke v. William Clarke [(1818) 1 Barnewall and Alderson 396], the Court was concerned with the interpretation of a statutory provision, which entitled the authors of works of literature to an extension of their copyright in the literature. It is in that connection the Court held that the word 'extension' is a term properly used for the purpose of enlarging or giving further duration to any existing right, but does not import the re-vesting of an expired right. The Court pointed out that the re-vesting of an expired right would not be an extension, but only to be a recreation. Lord Ellenborough, C.J., pointed out that the word 'extension' imports the continuance of an existing thing and that a great public injury would be effected by calling back a right that by lapse of time had become extinct. But, the said decision is also of no use to the petitioner, since the word 'extension' occurred in the 8th Section, which was connected with the 9th Section. Moreover, certain rights such as copyrights are proprietary in nature and once the products, in respect of which, such rights are enjoyed, come into public domain, the clock cannot be put back.
48. In Ambali Karthikeyan v. Collector of Customs [2000 (125) ELT 50 (Ker.)], the Kerala High Court was concerned with the interpretation of Section 110(2) of the Customs Act, 1962, under which, the goods, which are seized, are liable to be returned to the person, from whom they are seized, if no notice is given under Section 124(a). The proviso to Section 110(2) enabled the Collector of Customs to extend the period of six months by another period not exceeding six months. It is in that context that the Kerala High Court held that the extension contemplated under the proviso to Section 110(2) should have been ordered before the expiry of the original period.
49. In Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422], the Supreme Court was concerned with a case arising out of very interesting and peculiar circumstances. The Bar Council of Kerala, which was constituted on 28.01.1992 for a term of five years, approached the Bar Council of India for extension of its term by six months, to enable it to hold elections. Since the term was to expire on 27.01.1997, the State Bar Council moved the Bar Council of India on 31.12.1996 itself. But, unfortunately, a resolution was passed by the Bar Council of India only on 08.02.1997. During the extended term of office, elections were held and a new State Bar Council for Kerala was constituted. The elections were challenged on various grounds, one of which was that the term of the elected Council having expired on 27.01.1997, the State Council ceased to have any jurisdiction to conduct the elections. The High Court rejected the challenge on the ground that the term of the Kerala Bar Council should be treated to have been extended by the Bar Council of India, in view of the resolution passed on 08.02.1997. When the matter landed up in the Supreme Court, the Supreme Court considered the scope of the expression "extend" appearing in the proviso to Section 8 of the Advocates Act, 1961 and held in paragraph 12 that extension ought to have been granted before the expiry of the original term, so as to maintain continuity of office.
50. But, a careful look at the discussion in paragraphs 17 to 30 of the decision in Babu Verghese would show that the focal point of debate before the Supreme Court was about the validity of the resolution passed by the Bar Council of India by a process of circulation, as provided in Rule 6 of the Bar Council of India Rules. On facts, the Supreme Court found that the resolution passed by circulation did not speak about confirmation of an action taken by the Bar Council. Eventually, the Supreme Court held in paragraph 30 that all the requirements of Rule 6 were not satisfied. Therefore, the focus in Babu Verghese was actually not on extension and what was indicated in paragraph 12 of the decision was only by way of obiter.
51. In Kolammal v. State of Tamil Nadu [AIR 2007 Mad. 258], a Division Bench of this Court held that an award passed beyond the prescribed period, without the prior approval of the Government or the prescribed authority, vitiated the entire acquisition proceedings. No inspiration can be drawn even from this case, since valuable rights to immovable property, protected by Article 300-A of the Constitution, were involved in the case.
52. I agree with Mr.P.S.Raman, learned senior counsel for the petitioner that the Customs Tariff Act, 1975, is both an economic as well as fiscal legislation. The primary object of this legislation is to levy additional duties upon articles of import. Sections 9-A, 9-B and 9-C were inserted, with a view to neutralise the effect of articles of foreign origin being brought into India at less than their normal value. The only prescription with regard to any time limit, contemplated by the Act, is to be found in Sub-section (5) of Section 9-A. No time limit is prescribed therein either for the initiation of an investigation or for the recording of final findings. As a matter of fact, any delay in the recording of final findings, actually enures to the benefit of the person on whom anti-dumping duty is levied, since the levy comes into effect only from the date of issue of the notification. If we keep this fundamental aspect in mind, it will be clear that the time limit of one year prescribed under Rule 17(1) and the procedure prescribed in the first proviso thereto, is not intended to confer any benefit upon the importer in India or the exporter from outside the territory of India.
53. No right is created or gets vested in the importer, upon the expiry of the period stipulated in Rule 17(1). Similarly, no right which is vested in the importer is taken away by the extension of the period for conclusion of investigation. If a right is created in the importer, upon the expiry of the period of one year stipulated in Rule 17(1), then the extension of the period granted post facto, may infringe upon such a right. An inconclusive investigation, will never confer any right upon the person against whom the investigation is made. It will be a different story if the investigation is concluded and a finding in favour of the importer is recorded, since in such cases a right accrues.
54. If we analyse carefully, all the decisions relied upon by the learned senior counsel for the petitioner, it will be clear that in all those cases, either a right accrued in favour of the person concerned, upon the expiry of the period stipulated, or the extension granted post facto, had the effect of taking away a right already vested in him.
55. But, in the case on hand, no right got created or accrued in favour of the petitioner, upon the expiry of either the original period, namely 09.12.2013, or upon the expiry of the period of first extension, namely 09.3.2014. This is also not a case where the retroactive extension (to borrow the very same expression used by the petitioner) ordered on 30.4.2014, sought to take away any vested right created in favour of the petitioner during the period from 09.3.2014 to 30.4.2014. If an order of extension does not either take away any vested right or extinguish any right sought to be created by efflux of time, such an extension cannot be assailed, on the sole ground that it was not granted, during the life of the thing itself. If the initiation of any investigation does not infringe upon any right, the continuance of the same also cannot. As a corollary, the abrupt termination of an investigation would not create any right that may get defeated upon the resumption of the investigation.
56. Generally, time limits prescribed, especially in subordinate legislation, can be taken only to be directory and not mandatory. Otherwise, a subordinate legislation may even destroy the Parent legislation, by default.
57. In Raza Buland Sugar Co. Ltd v. The Municipal Board [AIR 1965 SC 895], a Constitution Bench of the Supreme Court held that the question whether a particular provision is mandatory or directory, cannot be resolved by laying down any general rule and that it would depend upon the facts of each case. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision. The said decision of the Constitution Bench was followed in Salem Advocate Bar vs. Union of India [2005 (6) SCC 344]. While doing so, the Supreme Court pointed out therein that our laws on procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their back, that proceedings that affect their lives and properties should not continue in their absence and that they should not be precluded from participating in them.
58. In Sharif-Ud-Din vs. Abdul Gani Lone [AIR 1980 SC 303], the Supreme Court indicated that the question whether a provision of law is mandatory or not depends upon its language, the context in which it is enacted and its object. The Court made an important observation, which will resolve the problem for us and hence it is extracted as follows:-
"In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. "
59. Therefore, it is clear that if the condition imposed by the provision of law to do a certain thing within a time frame is upon an authority (such as the Designated Authority in this case) and the consequences of the failure of that authority to comply with the condition, is to fall upon someone else (such as the persons in the domestic market) who have no control over the authority which is to perform the duty, then the provision of law cannot be construed as mandatory, but only directory.
60. In Commissioner of Income Tax v. Ajanta Electricals [(1995) 81 Taxman 166 (SC)], the Supreme Court was concerned with a case where notices under Section 139(2) of the Income Tax Act, 1969 were served on a partnership firm and its partners in respect of the assessment year 1966-67, calling upon them to furnish returns of their income within 30 days from the date of service of notice. All the partners submitted their returns. At the time of completing the assessment, the Income Tax Officer also initiated proceedings under Section 271(1)(a) for levy of penalty, on the ground that there was delay in filing the returns without reasonable cause. But, the assessees contended that they had made applications for extension of time. The Income Tax Officer rejected the contention on the ground that the application for extension of time ought to have been made before the expiry of the due date for the filing of returns. He also levied penalty. The Appellate Authority set aside the order of penalty, forcing the revenue to prefer appeals to the Tribunal. The Tribunal restored the orders of the Income Tax Officer and a reference was made to the High Court. Having regard to the proviso to Section 139(2), which did not contain any limitation to the effect that an application for extension should be filed within the stipulated time, the High Court held that an application for extension of time can be made even after the expiry of that period. The view taken by the High Court in the tax case reference was upheld by the Supreme Court in Ajanta Electricals. While doing so, the Supreme Court pointed out that there is no scope for interpreting the word "extend" appearing in the proviso to Section 139(2) to mean that at the time of making the application, the time originally allowed should not have expired. To come to the said conclusion in paragraph 10 of its decision, the Supreme Court drew analogy from Section 148 of the Code of Civil Procedure. Therefore, it is clear that where the word "extend" or "extension" is used in a statute, without any fetters being placed on the manner in which the power to extend is to be exercised, it cannot be contended that such extension ought to be granted before the expiry of the original term.
61. However, Mr.P.S.Raman, learned senior counsel for the petitioner attempted to distinguish the decision in Ajanta Electricals, by contending that cases where the statute prescribes a time limit and also confers power upon some authority to extend the time, would stand on a different footing than cases where an authority is conferred with a power both for fixation of time and for extension of time. According to the learned senior counsel, a power conferred upon an authority to fix a time limit for doing something would include a power to extend the same also. In such cases, according to the learned senior counsel, there are no fetters upon the manner of exercise of such a power.
62. But, a careful look at Section 139(2) of the Income Tax Act, 1961, would show that the period of 30 days within which a return of income should be filed upon service of notice by the Assessing Officer, is fixed by the statute itself. The proviso to Sub-section (2) confers power upon the Assessing Officer to extend the date for furnishing of the return. In other words, Ajanta Electricals is also a case where the statute prescribes a time limit within which an act is to be performed and the Assessing Officer is conferred with a power to grant extension of time. Therefore, the contention of Mr.P.S.Raman, learned senior counsel for the petitioner may hold good in respect of the prescription contained in Section 148 of the Code of Civil Procedure and the decisions arising out of the same. It may not be wholly correct insofar as cases arising under Section 139(2) of the Income Tax Act are concerned.
63. Another simple test to determine whether a time limit stipulated in a rule is directory or mandatory, is to see whether there is any indication in the Rule itself about the consequences of non compliance with the same. If a statutory provision contains a prescription and also stipulates the consequences of non compliance with the condition, it would normally be taken to be mandatory. If the consequences of non compliance are not indicated, then, the provision has to be seen only as directory.
64. This test can be applied as a litmus test in the very case on hand. Section 9-A(5) prescribes a period of five years as the period of validity of anti-dumping duty imposed under this provision. The first proviso to Sub-section (5) which enables the Central Government to extend the period of validity, makes it clear that such extension would commence only from the date of the order of extension. If the expression "extension" used in the first proviso to Sub-section (5) of Section 9-A is to be given the very same meaning as the petitioner wants me to give, there is no necessity for the Parliament to state in the last line of the first proviso that "such further period shall commence from the date of the order of such extension". If an extension, to be valid, has to be ordered before the expiry of the original period, the commencement of the extended period, will be the day following the date of expiry of the first period. Therefore, if the word "extension" had been used in the provisos to Sub-section (5) of Section 9-A, in the sense as projected by the petitioner, the last line of the first proviso would become otiose. The very fact that the last line of the first proviso to Sub-section (5) of Section 9-A speaks about the date of commencement of the order of extension, shows that the Parliament understood and used the expression "extension", in a manner diametrically opposite to what is pleaded before me by the petitioner.
65. If the Parent legislation uses a word or expression, to mean something, the subordinate legislation cannot be taken to use the very same word or expression, to mean a different thing. The word "extension" used in the first proviso to Section 9-A(5), gives an indication that if an order of extension is passed after sunset review, the extended period will commence only from the date of the order of extension. By specifically providing for a situation, under the second proviso, where a sunset review commences "before the expiry of the period of five years", but fails to conclude before the said date, the interpretation to be given to the word extension is made as clear as a crystal. Therefore, I am of the view, on the first issue that the extension granted under the first proviso to Rule 17(1), after the expiry of the original period, was perfectly valid.
Issue No.(ii):
66. The second issue that arises for consideration is as to whether the final order passed by the Designated Authority on 09.06.2014 which is kept in the sealed cover, is in violation of the principles of natural justice or not.
67. The contention regarding violation of principles of natural justice, lies in a very narrow compass. As I have stated earlier, the investigation was initiated on 10.12.2012. Public Notices were issued in terms of Rule 6 and Foreign Exporters, Domestic Manufacturers and Domestic Importers were given an opportunity to present their perspective. Even evidence was recorded and oral hearing was completed before the Designated Authority. The Designated Authority also recorded a provisional finding on 13.01.2014.
68. But, by 09.03.2014 the first extension granted on 06.12.2013 was to expire. Therefore, the Designated Authority sought time for a second extension. The order granting second extension was issued only on 30.04.2014.
69. On 28.5.2014, the Designated Authority was transferred and a new person assumed office. The new officer issued a notice on 29.5.2014 inviting all the parties to attend the personal hearing at New Delhi on the very next day namely 30.5.2014 at 5.00 pm. Since this e-mail was sent only at 6.22 pm on 29.5.2014, all the parties had less than 24 hours time to travel to Delhi to attend to the personal hearing. Therefore, the petitioner sent a letter requesting for postponement of the hearing. But, the request was turned down and the petitioner was directed to send written submissions. Therefore, the contention of the petitioner is that the newly appointed Designated Authority did not give an opportunity of personal hearing to any of the parties but proceeded to pass orders on the basis of the evidence recorded, materials produced and written arguments submitted to his predecessor, apart from taking into account the written submissions made by other persons. This, according to the petitioner, vitiated the whole proceedings.
70. In support of their contention that the failure of the newly appointed Designated Authority to grant an opportunity of personal hearing is in violation of the principles of natural justice vitiating the whole proceedings, the learned Senior Counsel for the petitioner placed strong reliance upon a decision of the Supreme Court in Automotive Tyre Manufacturers Association v. The Designated Authority [(2011) 2 SCC 258].
71. The circumstances leading to the decision of the Supreme Court in Automotive Tyre Manufacturers Association, are almost identical to the circumstances leading to the cases on hand. In the case before the Supreme Court also, the Designated Authority initiated investigation on 29.10.2003. A public hearing was granted to all parties on 01.9.2004. But, on 01.11.2004, the officer functioning as the Designated Authority got transferred and a new officer took over. On 06.01.2005, the parties requested the newly appointed Designated Authority to grant a fresh public hearing. But, the Designated Authority proceeded to send a disclosure statement on 12.5.2005. Subsequently, the Designated Authority also recorded final finding. Holding that the refusal of the newly appointed Designated Authority to grant a personal hearing vitiated the proceedings, the Supreme Court observed as follows in paragraphs 83 and 84 of the said decision:
"83. The procedure prescribed in the 1995 Rules imposes 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. 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. Moreover, it was also observed in (Gullapalli Nageswara Rao v. A.P.SRTC, AIR 1959 SC 308), if one person heaqrs and other decides, then personal hearing becomes an empty formality.
84. In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly."
72. The decision rendered in Automotive Tyre Manufacturer Association was recently cited with approval by a three member Bench in Union of India v. Shiv Raj [(2014) 6 SCC 564]. After recording the contention of the parties in paragraph 2.C to the effect that in case an authority hears the objectors and demits office or stands transferred, his successors should hear the parties afresh, the Supreme Court indicated in paragraph 14, as follows:-
"14. A similar view has been re-iterated by this Court in Automotive Tyre Manufacturers Association v. Designated Authority and Ors. MANU/SC/0022/2011: (2011) 2 SCC 258, wherein this Court dealt with a case wherein the Designated Authority (DA) under the relevant Statute passed the final order on the material collected by his predecessor in office who had also accorded the hearing to the parties concerned. This Court held that the order stood vitiated as it offended the basic principles of natural justice."
73. In response to this seemingly formidable contention, it is submitted by Mr.G.Masilamani, learned senior counsel for the third respondent that what is required to be given is only a reasonable opportunity of hearing and that what is reasonable, depends upon the facts and circumstances of each case. The learned senior counsel submitted that in the oral hearing, there were four sets of persons who participated. One set of persons was the complainants from the Domestic Industry. The second set of persons was the other Indian Producers. The third set of persons was Exporters from outside the Territory of India, such as China and Korea. The fourth set of persons was the Importers, including the petitioner herein. The list of persons who participated in the proceedings and the persons/Solicitors who represented them, according to Mr.G.Masilamani, learned senior counsel are as follows:-
"1. Domestic Industry - Synergies Castings Ltd. represented by M.S.Pothai & Associates.
2. Other Indian Producers
(a) Ekei Wheels (India) Ltd.
(b) Neo Wheels Ltd.
(c) Deltronics India Ltd.
(d) Kosei Minda Aluminum Co. Ltd.
3. Exporters:
China PR i. CITIC Dicastal Co. Ltd. represented by Lakshmikumaran & Sridhran (having office at Delhi) ii. Zhejiang Yueling Co.Ltd. represented by World Trade Consultants.
iii. Zhejiang Buyang Auto Wheel Co.Ltd. represented by World Trade Consultants (having office at Delhi) iv. Zhejiang Autom Aluminum Wheels Co.Ltd. represented by World Trade Consultants (having office at Delhi) v. Baoding Lizhong Wheels Manufacturing Co.Ltd. along with MET response of the related companies namely Hebei Lizhong Non-ferrous Metals Group Co.Ltd. (related raw material supplier), Qinhuangdao Dicamry Wheel Co.Ltd. Tiaanjin Dicastal Wheel ManufacturingCo.Ltd. and Tianjin Lizhong Wheel Co.Ltd. represented by World Trade Consultants (having office at Delhi) Korea RP vi. Artisan Spirit & Alloy Co.Ltd. (producer)-represented by APJ SLG Law office.
vii. GM Korea Company (exporter)- represented by APJ SLG Law office.
viii.Hands Corporation (producer)-represented by World Trade Consultants (having office at Delhi).
ix. Hyundai Glovis Co.Ltd. (exporter)-represented by World Trade Consultants (having office at Delhi)
4. Importers x. Hyundai Motors India Ltd. - represented by World Trade Consultants (having office at Delhi) xi. General Motors India Private Limited- Lakshmikumaran & Sridhran (having office at Delhi) xii. Chevrolet Sales India Pvt. Ltd. -Lakshmikumaran & Sridhran (having office at Delhi) xiii. Auto Dynamic Corporation - Lakshmikumaran & Sridhran.
xiv. Perfect Importers & Distributors (I) Pvt.Ltd.- Lakshmikumaran & Sridhran.
xv. Ford India Pvt. Ltd.-Lakshmikumaran & Sridhran (having office at Delhi) xvi. Mahindra & Mahindra Ltd.-Lakshmikumaran & Sridhran (having office at Delhi) xvii. Volkswagen India Pvt. Ltd.-Lakshmikumaran & Sridhran (having office at Delhi) xviii. TVS Motor Company Ltd.-Lakshmikumaran & Sridhran (having office at Delhi) xix. China Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME) - Lakshmikumaran & Sridhran (having office at Delhi) xx. BMW Group, India.
xxi. Maruti Suzuki India Ltd.
xxii. Hindustan Motors India Ltd.
xxiii. Endurance Technologies Pvt. Ltd.
xxiv. Sheromani Traders Pvt.Ltd.
xxv. Rockford Wheels.
xxvi. Focus Tradex Pvt. Ltd.
xxvii. Sukhmani Wheels xxviii. Sukhadata Enterprises xxix. Fast Track Distributors Pvt. Ltd.
xxx. Zhejilang Wanfeng Auto Wheel Co. Ltd. China PR xxxi. Society of India Automobile Manufacturers (SIAM)"
74. Thus, there were actually 31 parties, who participated in the investigation. All of them were represented by a set of solicitors/ consultants. According to the learned senior counsel for the third respondent, the following parties/legal representatives appeared before the Designated Authority for the first hearing.
1. M.S.Pothal & Associates
2. Lakshmikumaran & Sridhran (having office at Delhi)
3. APJ SLG Law house
4. World Trade Consultants (having office at Delhi)
5. GM India
6. Perfect Importers & Distributors (I) Pvt. Ltd.
7. Hyundai Motors
8. CITIC Dicastal
9. CCCME
10. Chinese Embassy in India
11. Mahindra & Mahindra
12. Volkswagen India Pvt. Ltd.
75. For the second hearing the following persons/legal representatives appeared.
1. M.S.Pothal & Associates
2. Deltronixs India Ltd.
3. Chinese Embassy in India
4. Maruti Suzuki Ltd.
5. Lakshmikumaran & Sridhran (having office at Delhi) on behalf of CITIC Dicastal."
76. Therefore, based upon the factual situation that there were any number of parties before the Designated Authority and that many of them were represented by the very same Consultants/Solicitors practising at Delhi, it is contended by Mr.G.Masilamani, learned senior counsel for the third respondent that the petitioner cannot complain of violation of principles of natural justice. In support of his contention, the learned senior counsel relied upon the decision of the Supreme Court in Sohan Lal Gupta v. Asha Devi Gupta [(2003) 7 SCC 492], where the Supreme Court indicated the conditions required to be observed for constituting a reasonable opportunity in paragraph 23 as follows:-
"23. For constituting a reasonable opportunity, the following conditions are required to be observed:
1. Each party must have notice that the hearing is to take place.
2. Each party must have a reasonable opportunity to be present at the hearing, together with his advisers and witnesses.
3. Each party must have the opportunity to be present throughout the hearing.
4. Each party must have a reasonable opportunity to present evidence and argument in support of his own case.
5. Each party must have a reasonable opportunity to test his opponent's case by cross-examining his witnesses, presenting rebutting evidence and addressing oral argument.
6. The hearing must, unless the contrary is expressly agreed, be the occasion on which the parties present the whole of their evidence and argument. "
77. In para 29 of the same decision, after pointing out that the principles of natural justice cannot be put in a straitjacket formula, the Supreme Court extracted the oft quoted passage from the decision in Chairman, Board of Mining Examination v. Ramjee [(1977) 2 SCC 256]. In other words, the learned senior counsel contended that there cannot be an unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case. The learned senior counsel contended that unless a party complaining of violation of natural justice establishes prejudice caused to him, the Court cannot hold the proceedings to be bad in law on that ground.
78. Mr.G.Rajagopalan, learned Additional Solicitor General contended that this was a case where all parties were heard and all opportunities had been given and that the newly appointed Designated Authority hardly had 10 days time to complete the whole process. Therefore, the learned Additional Solicitor General contended that the Doctrine of Necessity would apply.
79. I have carefully considered the submissions on both sides. At the outset, there can be no two opinions about the fact that the notice of personal hearing granted by the Designated Authority to the petitioner as well as others, was completely insufficient. The notice for personal hearing was admittedly issued by electronic mail on 29.5.2014, calling upon the parties to appear on 30.5.2014, which happened to be a Friday. The Designated Authority could have, in his discretion (which is the better part of valour), adjourned the personal hearing to Monday, namely 02.6.2014. Yet, he did not do so.
80. Therefore, the reliance placed by Mr.P.S.Raman, learned senior counsel for the petitioner, upon the decision of the Supreme Court in Sona Builders v. Union of India [(2001) 10 SCC 280], cannot be easily overcome. In that case, the Supreme Court found fault with the Appropriate Authority, for not granting sufficient time to the party at Jaipur to attend a personal hearing.
81. But, before jumping to the conclusion that the proceedings are vitiated for violation of the principles of natural justice, we may have to take a look at what the petitioner, as part of a large group, is entitled to. The principles of natural justice have, today become so elastic, that it is impossible to jump to any conclusion, without carefully analysing the fact situation.
82. It is true that the decision of the Supreme Court in Automotive Tyre Manufacturers' Association arose out of an identical fact situation and it is almost next to impossibility, to overcome the ratio laid down therein. If at all one can fish out any distinction between the facts out of which the aforesaid decision arose and the facts out of which the case on hand arose, it is only in one fact. However insufficient the time granted in this case may be, a notice of personal hearing was nevertheless issued in this case. But, in the case before the Supreme Court, no opportunity of hearing was granted by the newly appointed Designated Authority. Except this one difference on facts, which distinguishes the case on hand only by a hair's breadth, the decision of the Supreme Court appears to apply to the case on hand, on all fours.
83. But, it appears that a very crucial distinction has been lost sight of at all levels. An investigation by a Designated Authority under the Rules in question, is not like (i) a criminal charge, (ii) a domestic enquiry against an employee, or (iii) a quasi judicial proceeding where what is at stake is individualistic. An investigation by a Designated Authority, as seen from (a) GATT 1994, (b) the amended provisions of the Customs Tariff Act, 1975, and (c) the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, is in the nature of a multi-party assessment of the socio economic conditions that come to the fore when a product is imported into India.
84. This is why Rule 6 speaks repeatedly about "public notice" and "public hearing". What is contemplated by Rule 6 is not that kind of an opportunity of oral/personal hearing, where two adversaries or a potential victim is required to be given full opportunities. A careful look at Rule 6 would show that what is stipulated therein, in the first instance, is more of an investigation than of an enquiry and more of collection of information than of holding something against someone.
85. Let us take for instance a public hearing contemplated under the Environment Impact Assessment Notifications. Though one or more parties may become aggrieved by the ultimate outcome of such public hearings, these hearings cannot be equated always to personal enquiries held with individualistic overtones.
86. I have already extracted Rule 6 in full. Sub-rule (1) of Rule 6 obliges the Designated Authority to issue a public notice, not only containing the particulars of the articles involved, but also containing the name of the exporting country, the date of initiation of investigation, the basis on which dumping is alleged and a summary of factors on which the allegation of injury is based.
87. Under Sub-rules (2) and (3) of Rule 6, the Designated Authority is obliged to forward the copies of the public notice to the known exporters of the article in question, the Governments of the exporting countries, the Trade Association and other interested parties. Apart from forwarding copies of the public notice to these parties, the Designated Authority should also call for information, under Sub-rule (4) from the exporters, foreign producers and other interested parties. Even the industrial users of the article under investigation as well as the consumer organisations, are to be provided an opportunity under Sub-rule (5), to furnish requisite information. Sub-rule (6) lays stress more upon written information than upon oral information.
88. Sub-rule (7) of Rule 6 read with Rule 7, clearly shows the extent to which, the principles of natural justice could be imported into the investigation. Under Rule 6(7), the Designated Authority is obliged to make available, the evidence presented to it by one interested party, to the other interested parties participating in the investigation. But, under Rule 7(1), the Designated Authority, upon being requested to do so, can treat the information furnished to it, as confidential. This is notwithstanding anything contained in Rule 6(7).
89. Therefore, it is clear that all the normal rules that cumulatively constitute the principles of natural justice, do not apply to an investigation under these Rules. In a case of routine nature, all information furnished by a party and all documents relied upon by him, ought to be supplied to the opposite party, to enable the opposite party to effectively meet the same. In fact, the Courts have gone to the extent of saying that an Inquiring Authority cannot even look into any information collected behind the back of the person against whom an inquiry is conducted. This principle is recognised as an essential and indispensable part of the principles of natural justice. But, Rule 7(1) of the Rules, makes a complete departure from this most fundamental aspect of the principles of natural justice.
90. In brief, what is provided for in the anti-dumping rules is (i) a public notice and a public hearing, just as the ones contemplated for environment impact assessment, in contrast to an inquiry that is individualistic and adversarial, (ii) the participation of various sections of the international (not just national) community, including the foreign governments, foreign exporters, domestic industrial houses, domestic importers and consumer organisations, (iii) the collection of information rather than of evidence in the strict sense of the term, (iv) the maintenance of confidentiality of the information furnished by the participants, if they wish to have such confidentiality, and (v) even the circulation of information known as "disclosure of information" under Rule 16, so that the participants in the investigation are informed in advance of the essential facts that would form the basis for the ultimate decision. Therefore, there is no use in contending that the newly appointed Designated Authority ought to have given a personal hearing.
91. If we have a careful look at the manner in which the principles of natural justice got imported into our system, we would realise that by and large we followed English precedents. In Barnard v. National Dock Labour Board [(1953) 2 QB 18], the Queen's Bench held that though an administrative function can be delegated, a judicial function can rarely be. In G.Nageswar Rao v. Andhra Pradesh State Transport Corporation [AIR 1959 SC 308], the Supreme Court pointed out that if one person hears and another decides the case, then that personal hearing becomes an empty formality and a mere farce.
92. In Goldberg v. Kelly [(1970) 397 US 254], the U.S. Supreme Court brought out the deficiencies in written submission vis-a-vis oral presentation in hearing. But, the Court pointed out that written submissions were not a helpful option for most parties who lack knowledge necessary to write an effective reply and who are unable to obtain professional assistance in the matter. Written submissions do not have the flexibility of oral presentation in moulding the arguments to the issues which may be regarded by the decision makers as important. Thus, the opportunity of being heard "must be tailored to the capacities and circumstances of those who are to be heard".
93. There are exclusions to the application of the rule of hearing or affording an opportunity of hearing, to cases where nothing unfair can be inferred by not affording an opportunity of hearing to a person to meet the case. As pointed out by the Supreme Court in Union of India v. W.N.Chadha [(1993) Supp. 4 SCC 260], the rule of hearing cannot be applied to defeat the ends of justice or make the law "lifeless, absurd, stultified, self-defeating or plainly contrary to the common sense of the situation". The Court pointed out that the rule may be jettisoned in exceptional circumstances where compulsive necessity so demands.
94. In Automotive Tyre Manufacturers Association, the Supreme Court went by the orthodox view that a person who hears should decide. But, in my considered view, the Supreme Court did not consider the fine distinction between an opportunity of hearing to be provided to a large number of persons, in cases requiring a public hearing (in contra distinction to a hearing in public) and an opportunity of personal hearing or oral hearing granted to the aggrieved persons in individual cases. What is contemplated by the Custom Tariff (Identification, Assessment and Collection of Duty or Additional Duty on Dumped Articles and for Determination of Injury) Rules, 1985, is actually the publication of public notice and the hearing of a large number or body of persons, such as the local industries, the local importers, the exporters from foreign countries and the consumers. The opportunity of hearing contemplated by these rules is akin to a public hearing by an Environment Impact Association Authority, in which several stakeholders participate in respect of a public cause. Though the individual or personal cause of the importers is also intertwined with the larger public cause in such hearings, they stand apart from cases where enquiries are held against individuals on purely personal causes.
95. Keeping the above distinction in mind, if we take a look at how such cases have been viewed by Supreme Court, it is seen from the decision of the Supreme Court in Bihar School Examination Board v. Subhas Chandra Sinha [AIR 1970 SC 1269] that what is necessary in such cases is not the strict compliance with the rules of personal hearing in respect of each individual before the adjudicating authority. It is only the opportunity given on an overall basis to a large group of individuals or persons that would determine whether the principles of natural justice had been complied with or not in such cases. In Bihar School Examination Board case, the Secondary School Examination conducted in one particular centre was cancelled in total by the Chairman of the Board of Secondary School Examination, on allegations of large scale malpractices. When the examinees affected by the decision challenged the same on the ground of violation of the principles of natural justice, the Supreme Court held that there was no need to give the examinees an opportunity to contest the conclusion. So long as the Board did not charge individual examinees with any specific act of unfair practice, the Supreme Court held that it was not necessary even to put them on notice. This decision of the Supreme Court in Bihar School Examination Board carved out an exception to the general rule, as applicable to individual cases.
96. In Thervoy Gramam Munnetra Nala Sangam v. Union of India [W.P.No.9319 of 2009 dated 16.9.2009], an association of villagers challenged a Government order transferring/assigning certain lands in their village to the State Industries Promotion Corporation of Tamil Nadu for the development of an industrial park. The challenge was on the ground that under an agreement entered into between the Department of Forests and the Panchayat, the land was put to use by the community at large for an afforestation program. Therefore, the association contended that the conversion of such a land intended for the purpose of afforestation to industrial purpose was unlawful, especially when it was also done in violation of the principles of natural justice. Rejecting the contention regarding violation of natural justice, a Division Bench of this Court held in the said decision that in view of the publication of a notice in the village and in view of the participation of a number of members of the public, the argument relating to violation of natural justice cannot be sustained. Though the Division Bench did not directly deal with the distinction between cases which require a public notice and a public hearing and cases where individual notice and individual hearing are warranted, the Division Bench indicated that in cases of this nature, there must be a compliance of broad parameters.
97. In the case on hand, as rightly pointed out by Mr.G.Masilamani, learned senior counsel appearing for the third respondent, public notices were issued in terms of Rule 6 and an opportunity of hearing was granted to several persons. Most of those persons were represented either by consultants or by eminent lawyers at Delhi. I have already furnished the list of persons who participated in the proceedings and the consultants/solicitors who represented them before the Designated Authority. Except the petitioner herein, none other participant in the public hearing has complained about the denial of an opportunity of hearing. The grant of a request for adjournment need not necessarily form part of the principles of natural justice. If an adjournment could prove fatal to a case, a quasi judicial authority can always deny the request for adjournment. If the adjournment of a case by one day would make the case infructuous and make one party the winner by default, the adjudicating authority should reject such request. Such rejection would not be a violation of the principles of natural justice. Therefore, I am unable to accept the contention that there was a violation of the opportunity of hearing in this case.
98. As I have pointed earlier, the Scheme of The Customs Tariff Act, 1975, especially sections 9-A, 9-B and 9-C and the Scheme of the Anti-Dumping Rules of 1995 have to be interpreted only in the context of GATT. Article VI of GATT 1947 provided for anti-dumping and countervailing duties. For the purpose of implementation of Article VI of GATT, the World Trade Organisation also came up with an "Agreement on Implementation of Article VI of GATT 1994". As seen from Article 1 of this Agreement, all investigations for the imposition of anti-dumping measure should be initiated and conducted only in accordance with the said Agreement. Article 2 of the said Agreement contained detailed provisions for "determination of dumping". Article 3 contained provisions for "determination of injury". Article 4 contained provisions relating to the definition of the term "domestic industry". Article 5 contained provisions relating to "initiation and subsequent investigation". Article 6 dealt with evidence, Article 7 listed out the provisional measures, Article 8 dealt with price undertakings, Article 9 provided for imposition and collection of anti-dumping duties, Article 10 provided for retro activity, Article 11 provided for duration and review of duties, Article 12 dealt with public notice and explanation of determinations, Article 13 provided for judicial review, Article 14 contained provisions for anti-dumping action on behalf of a third country, Article 15 contained provisions for developing country members, Article 16 spoke about Committee on anti-dumping practices, Article 17 dealt with consultation and dispute resolution and Article 18 contained final provisions.
99. A careful look at the Scheme of Article 6 of the said Agreement, formulated for implementation of Article VI of GATT 1994, would show (i) that what was contemplated was only a participation of a large group of persons in an investigation that was intended to be public and (ii) that oral submissions were made subordinate to written submissions. Paragraphs 6.2 and 6.3 of Article 6 make this amply clear and hence, they are extracted as follows:
"6.2. Throughout the anti-dumping investigation all interested parties shall have a full opportunity for the defence of their interests. To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that opposing views may be presented and rebuttal arguments offered. Provision of such opportunities must take account of the need to preserve confidentiality and of the convenience to the parties. There shall be no obligation on any party to attend a meeting, and failure to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally.
6.3. Oral information provided under paragraph 2 shall be taken into account by the authorities only in so far as it is subsequently reproduced in writing and made available to other interested parties, as provided for in subparagraph 1.2."
100. As a matter of fact, where the size of the body of exporters, producers, etc. involved in the investigation is so large, the investigating authority is not even obliged to examine all of them. This is made clear by paragraph 6.10, which reads as follows:
"6.10. The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question, which can reasonably be investigated.
6.10.1. Any selection of exporters, producers, importers or types of products made under this paragraph shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers concerned.
6.10.2. In cases where the authorities have limited their examination, as provided for in this paragraph, they shall nevertheless determine an individual margin of dumping for any exporter or producer not initially selected who submits the necessary information in time for that information to be considered during the course of the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome to the authorities and prevent the timely completion of the investigation. Voluntary responses shall not be discouraged."
101. Even in respect of notices to be issued for the hearing by the Designated Authority, Article 12 of the aforesaid Agreement contains detailed provisions. These provisions also make it abundantly clear that what is contemplated is not an oral hearing, in the strict sense of the term. Therefore, the entire Scheme of GATT 1994 and the provisions of the Act and the Rules, focus on (i) public notices, (ii) collection of information, (iii) interpretation of the information, and (iv) the recording of findings regarding dumping. Hence, the principles of natural justice as applicable to investigation/inquiries against individuals, may not have a strict application to the investigation under the Anti-dumping Rules.
102. The above interpretation is also fortified by the fact that all the information collected by the Designated Authority in the course of investigation, cannot and need not be shared with all the parties to the investigation. Whenever a party to an investigation claims confidentiality, the Designated Authority is obliged to accede to the same. The other parties cannot claim that there was violation of natural justice. Therefore, the dosage of the medicine of natural justice, to be administered to different patients, vary from case to case. In the case on hand, the dosage was adequate and the petitioner cannot ask for more. Hence the second contention of the petitioner is also liable to be rejected.
103. As I have pointed out in paragraphs 3 and 6, the first writ petition challenges the preliminary findings recorded on 13.01.2014 and the second writ petition challenges the notification imposing provisional duty. The third and fourth writ petitions challenge the notification for extension of time to complete the investigation and the communication of the Director of the Ministry of Commerce informing the parties about the extension of time.
104. In view of my finding on both the questions arising for consideration, the third and fourth writ petitions are liable to be dismissed outright. Accordingly, W.P.Nos.14567 and 14568 of 2014 are dismissed.
105. Insofar as the first two writ petitions are concerned, they relate to preliminary findings and the imposition of provisional duty. Their fate depends upon what the final order of the Designated Authority is going to be. The preliminary finding and the imposition of provisional duty will ultimately merge with the final findings, which have now been recorded by the Designated Authority and kept in a sealed cover. The moment the sealed cover is opened, the first two writ petitions will automatically become infructuous, in whichever way the final finding has gone. Therefore, the first two writ petitions are dismissed with the observation that the preliminary finding and the provisional duty challenged in those writ petitions will merge with the final findings. No costs. Consequently, connected M.Ps. are also dismissed.
Index : Yes 12.12.2014.
Internet : Yes
kpl/RS/gr
To
1. The Secretary to Union of India
Ministry of Finance
Department of Revenue
North Block, New Delhi-110001.
2. The Designated Authority
Directorate General of Anti Dumping and Allied Duties
Department of Commerce
Ministry of Commerce & Industry
Udyog Bhawan, New Delhi-110001.
V.RAMASUBRAMANIAN,J.
kpl/RS/gr
Order in
WP.Nos.11683, 11684,
14567 & 14568 of 2014
& all contd. pending MPs
12.12.2014.