Customs, Excise and Gold Tribunal - Delhi
Ahimsa Mines And Minerals Ltd. vs Designated Authority on 4 March, 2002
Equivalent citations: 2002(142)ELT71(TRI-DEL)
ORDER
K.K. Usha, J. (President)
1. The appeal and the cross-objection relate to the final finding of the Designated Authority on antidumping investigation concerning imports of Theophylline and Caffeine from European Union under Notification dated 26-6-2001 read with Notification No. 82/2001-CuS., dated 30-7-2001 issued by the Central Government imposing anti-dumping duty on Theophylline and Caffeine originating in and exported from the European Union and when imported into India at the rate specified in the notification.
2. When the appeal came up for hearing on the first occasion on 19-11-2001 a preliminary objection was raised by the learned Counsel on behalf of the Designated Authority that the appeal at the instance of M/s. Ahimsa Mines and Minerals Ltd. is not maintainable as it is not aggrieved by the impugned finding and notification. The same objection was raised before us when the matter came on subsequent dates also.
3. It is the contention of the Designated Authority that the appellant is in no way affected by the imposition of anti-dumping duty on European Union in the matter of export of Theophylline and Caffeine to India. The appellant is a 100% Export Oriented Unit (EOU). Customs Notification No. 5/18-1-94 issued by the Central Government exempts goods falling under 1st Schedule to the Customs Tariff Act, 1975 when imported into India by 100% EOU or a unit working in a Free Trade Zone and when such goods are wholly exempted from duty of Customs specified in the said 1st Schedule to the CTA, 1975 by virtue of any notification of the Govt. of India from the whole of additional duty leviable thereon under Section 9A of the Customs Tariff Act. Therefore, there will be no impact of the anti-dumping duty on the appellant. The above being the factual position it is contended that no appeal would lie against the notification imposing anti-dumping duty at the instance of the appellant herein.
4. Appellant on the other hand contented that it has participated in the proceedings which ended in the notification imposing anti-dumping duty. A copy of the order had been served on it and that it is an interested party. According to the appellant, so long as it is ah interested party, appeal at its instance will be maintainable irrespective of the question whether it is aggrieved by the notification at this stage. It is further contended that the appellant has right of de-bonding under the rules and in future if it exercises that right it will be adversely affected by the notification imposing antidumping duty. In support of its contention that any interested party can maintain an appeal, the appellant places reliance on the decision of the Delhi High Court in Hindustan Photo Films Manufacturing Co. Ltd. v. CEGAT - 1990 (50) E.L.T. 234 (Del.).
5. It is contended by the learned Counsel for the Designated Authority that the decision relied upon by the appellant was reversed by the Apex Court in Northern Plastics Ltd. v. Hindustan Photo Films Manufacturing Co. ltd. 1997 (91) E.L.T. 502 (S.C.). The scope of the term 'person aggrieved' referred in Section 129A of the Customs Act, 1962 was considered in detail and it was held that the right of appeal is confined only to parties to the proceedings before the adjudicating authority. A person aggrieved must be one who has suffered a legal grievance against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully affected his title to something. Reference was also made to a decision of Constitution Bench in Adi Pherozshah Gandhi v. HM Seervai, Advocate General of Maharasthra - 1970 (2) SCC 484. The question that came up before the Constitution Bench was as to whether Advocate General of the High Court who was to be issued a notice in disciplinary proceedings by the Bar Council as per the provisions of Section 35(2) of the Advocates Act, 1961 had locus standi to prefer an appeal against the order of the disciplinary authority under Section 37 of the Advocates Act before Bar Council of India. The majority of the Constitution Bench took the view that the Advocate General had no such locus standi and that he could not be said to be an 'person aggrieved' by the decision of the disciplinary authority'exonerating the concerned delinquent advocate.
6. By applying the same principle; we are inclined to hold that even if the appellant is to be treated as an interested party he is not an 'aggrieved person' at whose instance the appeal can be maintained. Even on the issue whether he is an interested person dispute is raised by the learned Counsel for the Designated Authority. By referring to Para 5 of the final finding it was pointed out that the Designated Authority had not accepted the claim of the appellant that it is an interested party as defined under Rule 2(c) of the Anti Dumping Rules. In any view of the matter, since we take the view that the appellant is not aggrieved by the order impugned, the appeal at its instance is not maintainable, it is not necessary for us to go into the issue whether it is an interested party. We, therefore, dismiss the appeal as not maintainable at the instance of the appellant.
7. Now we consider the cross-objection filed by one of the importers. We may observe that apart from filing cross-objection on 1-1-2002 there is no representation before us on behalf of the party who filed the cross-objection when the matter was taken up for hearing. No provision of law is shown in the cross-objection under which it is claimed to be filed. On going through the provisions of Section 9C of the Customs Tariff Act, 1975, as amended by Act 6 of 1975, we do not find any provision indicating a provision to file cross-objection, as the one which is available in Sub-section (4) of Section 129A of the Customs Act, 1962. Rule 7 of the CEGAT (Countervailing Duty and Anti Dumping Duty) Procedure Rules, 1996 provides that the provisions of certain Rules including Rule 15 of CEGAT (Procedure) Rules, 1982 shall be deemed to be a part of these Rules. Rule 15 provides that every memorandum of cross-objections filed and every application made under the provisions of the Act shall be registered and numbered, and the provisions of those Rules relating to appeals shall, so far as may be, applied to such memorandum or application. The word 'Act' in Rule 15 has been defined to mean Customs Act, Central Excise Act and Gold (Control) Act. Therefore, Rule 15 applies only to cross-objection filed under the provisions of the above mentioned three Acts, even if Rule 15 is made part of CEGAT (Countervailing Duty and Anti Dumping Duty) Procedure Rules, 1996. So long as Section 9C of the Customs Tariff Act does not provide for cross-objection, the application of Rule 15 by itself will not assist a party to maintain the cross-objection. For the above reason, we are inclined to dismiss the cross-objection as not maintainable. We may also note that as mentioned earlier the party who has filed the cross-objection has neither appeared before us nor taken any steps to contend that the cross-objection is maintainable.
8. In the light of the above discussion, we dismiss both the appeal as well as the cross-objection.