Customs, Excise and Gold Tribunal - Delhi
Geeta Vinay Impex vs Designated Authority Ministry Of ... on 2 December, 2005
JUDGMENT K.C. Mamgain, Member (T)
Page 265
1. The appellants, M/s, Geeta Vinay Impex had imported measuring tapes and cleared the same under bill of entry No. 306336 dated 22nd April, 2003. Subsequently, they received a show cause notice dated 8th August, 2003 from the Dy. Commissioner of Customs, ICD, New Delhi demanding duty of Rs. 14,54,676 as anti-dumping duty. The appellants, therefore, filed appeal challenging the show cause notice and the notification No. 147/2003-Cus dated 7th October, 2003 and the final findings of the designated authority notified on 1st September, 2004 under notification No. 14/31/2002-DGAD-dated 1st September, 2003. They also filed misc. application and stay application.
2. Their application and the appeal was opposed by the domestic industry on the ground that they have no locus standi for filing this appeal.
3. The appellants pleaded that they are the aggrieved person and, therefore, they have right to appeal under Section 129A of the Customs Act and Section 9C of the Customs Tariff Act. It was contended on behalf of the appellants that this tribunal in case of Lubrizol (India) Private Limited v. Designated Authority has held that "the expression "person aggrieved" is not confined only to persons, who can establish that they have a legal interest at stake in the making of the decision, it would cover a person, who can show a grievance, which will be suffered as a result of the decision complained of, because the decision directly affects the existing or future legal rights of such person. The decision may affect the person in the conduct of business or may affect his right against third parties". It was, therefore, pleaded that since they are importer, Page 266 they are the interested party and by imposition of anti-dumping duty, their businesses are affected.
4. The domestic industry opposed the plea of the appellants on the ground that they were not importing the goods either before the investigation or during the period of investigation. They have neither participated in the investigation nor appeared for public hearing nor they submitted any reply to any questionnaire. They had not taken part in the proceedings initiated for anti-dumping duty at any stage till the issue of final notification imposing anti-dumping duty. Therefore, they are not liable to file the appeal and their appeal should be rejected. Reliance was placed on the decision of this tribunal in case of Linear Technologies India Pvt. Ltd. v. Designated Authority , where it was held that, "the appellants in response to specific query made by the Bench could not produce any evidence to show that they made any import prior to the period of the investigation or during the period of investigation and even after investigation of the articles in question. In these circumstances, as the appellant is neither importer nor producer of articles in question, hence, cannot be considered as interested party and had also not participated in the proceedings before the designated authority, hence preliminary objection raised by the domestic industry has merit and the appellant is neither the interested party nor aggrieved by the imposition of duties on Articles in question". It was also pleaded that in case of Lubrizol (India) Pvt. Ltd.. (supra), the appellants in that case had participated in the proceedings before the designated authority and, therefore, this case is distinguishable from the present case.
5. On behalf of the designated authority, it was confirmed that the appellants have not participated in the investigation at any stage.
6. We have heard the appellants on other issues and also the domestic industry. We find that other contentions raised by the appellants are not tenable.
7. We find that the appellants have also challenged the show cause notice issued by the Dy. Commissioner of Customs. Challenging a show cause notice under Customs Act is not permissible before the Appellate Tribunal as no order has been passed on the show cause notice. If any order is passed on the show cause notice, the appellants can file an appeal before the appropriate authority under the Customs Act. As far as the appeal under Section 9C of the Customs Tariff Act is concerned, we find that he appellants have not participated at any stage, before the designated authority. Therefore, they cannot be considered as an interested party as during the period of investigation, the appellants had not imported any consignment. Therefore, we do not find the appellants to be the aggrieved party by final findings of the designated authority and the Page 267 notification No. 147/2003 dated 7th October, 2003 issued by the Central Government determining the anti-dumping duty imposed on measuring tapes. The appeal along with the misc. application is, therefore, dismissed.
Order dictated and pronounced in open Court on 2nd December, 2005.