Custom, Excise & Service Tax Tribunal
Nevinnomyssky Azot vs Designated Authority Directorate ... on 17 February, 2021
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH
ANTI DUMPING CONDONATION OF DELAY APPLICATION No. 50308 of 2020
(on behalf of the appellant)
IN
ANTI - DUMPING APPEAL No. 51217 OF 2020
(Arising out of Second Corrigendum Notification dated 25.04.2018; Customs
Notification Number 29/2018-Customs (ADD) dated 25.05.2018 passed by The
Designated Authority Directorate General of Trade Remedies, Department of
Commerce, Ministry of Commerce & Industry)
Nevinnomyssky Azot ... Appellant
357107, Stavropol Territory
Russian Federation,
Nevinnomyssk,
1 Nizyaeva Street
Versus
Designated Authority Directorate, ... Respondent
General of Anti-dumping and Allied Duties, Department of Commerce & Industry, Parliament Street, Jeevan Tara Building, 4th Floor, New Delhi-110001 AND Others APPEARANCE:
Mr. Sandeep Sethi and Mr. Ashish Chandra, Advocates for the Appellant Ms. Reena Khair and Mr. Rajesh Sharma, Advocates for the Respondent No.3 & 4 Mr. Ameet Singh, Advocate for Designated Authority Mr. Sunil Kumar, Authorised Representative for the Department CORAM : HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. RAJU, MEMBER (TECHNICAL) HON'BLE MS. RACHNA GUPTA, MEMBER (JUDICIAL) DATE OF HEARING: FEBRUARY 08, 2021 DATE OF DECISION: FEBRUARY 17, 2021 2 AD/51217/2020 FINAL ORDER NO. 51042/2021 JUSTICE DILIP GUPTA Nevinnomyssky Azot1 has filed an application for condonation of delay in filing this Anti-Dumping Appeal that has been filed under section 9C of the Customs Tariff Act 19752. Sub-
section (1) of section 9C of the Tariff Act provides that an appeal against the order of determination regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Tribunal. Sub-section (2) provides that every appeal under this section shall be filed within 90 days of the date of order under appeal, but the Appellate Tribunal may entertain any appeal after the expiry of the said period of 90 days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
2. This appeal was filed in the office on December 01, 2020 with the following principle reliefs:
"a) Hold that the Respondent No. 1 (The Designated Authority) incorrectly did not include the appellant in the duty table and did not recommend „NIL‟ rate of duty thereof and declare the impugned corrigendum dated April 25, 2018 issued by Respondent No, 1 as issued contrary to the applicable law and well-established principles of natural justice and fairness;
b) Issue an order or direction to call for, examine the records in relation to and quash the impugned corrigendum dated April 25, 2018 issued by Respondent No. 1 to the extent it affects the Appellant; and
c) Issue an order or directions, directing the Respondent No. 2 (The Union of India) to issue customs notification giving effect to or acting upon the first corrigendum dated December 19, 2017 issued by Respondent No. 1."
3. To appreciate the aforesaid reliefs claimed in the appeal, it would be necessary to state certain relevant facts. It is
1. The appellant
2. Tariff Act 3 AD/51217/2020 on the basis of the recommendations made in the final findings by the Designated Authority that the Central Government issued a Customs Notification dated September 12, 2017 imposing anti- dumping duties and so far as the appellant is concerned, it was subjected to a residual rate of duty. In the first corrigendum dated December 19, 2017 issued by Designated Authority, the duty for the appellant was specified as „NIL‟, but this corrigendum was withdrawn by the second corrigendum dated April 25, 2018 issued by the Designated Authority. The second corrigendum was notified by the Central Government by a Notification dated May 25, 2018 but this was not in connection with the duty specified for the appellant.
4. It would be seen from the aforesaid reliefs that have been claimed by the appellant in the appeal that no reliefs have been claimed for setting aside the Customs Notification dated September 12, 2017 issued by the Central Government or the final findings dated August 1, 2017 issued by the Designated Authority. The reliefs that have been sought are for quashing the second corrigendum dated April 25, 2018 and for issuance of a Customs Notification to give effect to the first corrigendum dated December 19, 2017.
5. Thus, if the period of limitation is counted from September 12, 2017, which is the date when the Central Government issued the Customs Notification imposing anti- dumping duty, there would be a delay of about three years in filing the appeal since the appeal has to be filed, as contemplated under section 9C of the Tariff Act, within 90 days of the date of 4 AD/51217/2020 the order and the appeal was actually filed on December 1, 2020. However, if the limitation is to be calculated in terms of the third relief claimed by the appellant which is for acting on the first corrigendum dated December 19, 2017, then there would be a delay of about two years and nine months. If the limitation is to be calculated from the second relief, namely for quashing the second corrigendum dated April 25, 2018, then the delay would be of about two years and five months.
6. To explain the delay, the appellant has stated the following facts in the delay condonation application:
"4. ******* Meanwhile the recommended anti-dumping duty in the final findings was given effect to by the Respondent No. 2 vide Notification No. 44/2017-Customs (ADD) dt. 12.09.2017. Pursuant to the representations made to the Respondent No. 1, first corrigendum notification dt. 19.12.2017 was issued by the Respondent No. 1 including the Applicant in the duty table and providing "NIL rate of anti-dumping duty.
5. However, the Respondent No. 2 did not give effect to the first corrigendum notification dt. 19. 12.2017; and on 25.04.2018, the Respondent No. 1 issued the impugned (second) corrigendum notification withdrawing the first corrigendum notification dated 19.12.2017, amongst other amendments to the final findings, without providing any reason.
This impugned corrigendum was given effect to vide Notification No. 29/2018-Customs (ADD) dt. 25.04.2018 (should be 25.05.2018) issued by the Respondent No. 2. Thus, the Applicant continued being subjected to the residual rate of anti- dumping duty.
6. That pursuant to the issuance of customs notification giving effect to the send corrigendum notification, the Applicant‟s parent group, EuroChem Group AG on 26.06.2018 approached the Trade Representative of Russian Federation in India to obtain comments from the Respondent No. 1, with respect to the reasons for withdrawal of the first corrigendum notification dt. 19.12.2017 which provided the relief sought by the Applicant. The Respondent No. 1 replied to the letter from the Trade Representative of Russian Federation in India on 10.07.2018, However, it did not address the concern regarding such withdrawal. Instead, the Respondent No. 1 simply mentioned that the same has been addressed in the final findings dt. 01.08.2017. The last dated of filing an appeal before this Hon‟ble Tribunal under Section 9C of the Customs Tariff Act, 1975 was 23.08.2020. (should, be 23.08.2018 if the limitation is calculated from the date of issue of second corrigendum on 25.5.2018.)
7. As the reply from the Respondent No. 1 was received not long before the expiry of the statutory time period of filing the appeal pursuant to which the Applicant internally assessed its 5 AD/51217/2020 options, the same had resulted in the lapse of the statutory period for filing an appeal under Section 9C of the Act.
8. That after a year of refusal of EuroChem Group AG's request to provide single dumping margin to the Applicant and NAK Azot and several internal deliberations, the fact that the Applicant maintains its plans to export the PUC to India; the Applicant pursued this issue again with the Respondent No. 1 vide its letter dt. 07.11.2019 (filed on 11.11.2019) which highlighted that the non-issuance of a single dumping margin for NAK Azot and Nevinka- the Applicant, is inconsistent with the India‟s obligations provided under the WTO Agreement on Anti-Dumping ("ADA"), the Indian Anti-dumping laws, the Respondent No.1‟s Manual of Operating practices for Trade Remedy Investigations as well as the established past practices.
9. The Applicant filed another letter with the Respondent No. 1 dt. 20.01.2020. a reminder letter dt. 28.02.2020 and two reminder emails dt. 24.04.2020 and 10.07.2020 seeking a response to the request filed by the Applicant through its parent group on 11.11.2019. However, the no response has been received from the Respondent No. 1 till date.
10. That since the Applicant has not received any response from the Respondent No. 1 to the repeated requests filed by its parent group with respect to granting single dumping margin and individual rate of anti-dumping duty for the Applicant or the reasons for not granting such request, the Applicant has preferred the instant appeal with a delay of 2 years. Such delay was caused as the Applicant believed that its requests will be heard appropriately and responded by the Respondent No. 1 adequately; and the same was purely bona fide and in good faith."
(emphasis supplied)
7. In short, the applicant has stated that after the issue of the Customs Notification dated September 12, 2017 specifying residual duty for the appellant, a representation was submitted by the appellant which resulted in the issue of the first corrigendum dated December 19, 2017 by the Designated Authority specifying that the appellant would be subjected to „Nil‟ rate of duty. However, the Central Government did not issue any Customs Notification to give effect to the said recommendation made by the Designated Authority and in fact by a second corrigendum dated April 25, 2018, the Designated Authority withdrew the first corrigendum. This resulted in the filling of another representation before the Designated Authority but the Designated Authority, by letter dated July 10, 2018, informed the appellant that the issue 6 AD/51217/2020 raised that it should be granted the same treatment as the related producer had been addressed in the final findings of the Designated Authority. Various representations were again submitted for the same relief but since no decision was taken, the appellant preferred this appeal.
8. To be able to appreciate the grounds taken in the delay condonation applications, it would be necessary to narrate the relevant facts.
9. The records indicate that the Domestic Industry, which has been impleaded as Respondents in this appeal, had jointly filed an application before the Designated Authority for initiation of anti-dumping investigation concerning imports of "Ammonium Nitrate" originating in or exported from Russia, Indonesia, Georgia and Iran. The investigation was initiated by a Notification dated August 05, 2016 and the final findings of the Designated Authority were notified by a Notification dated August 01, 2017. Residual duty was specified for the appellant. The request made by the appellant for determination of individual dumping margin was not accepted for the reason that it had not exported the product under consideration during the period of investigation as a result of which individual dumping margin could not be assessed in the absence of export price. It needs to be sated that the appellant had made a request that it should have the same dumping margin (Nil) as was assessed for the related producer namely Novomoskovskaya (NakAzot).
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AD/51217/2020
10. The recommendation made by the Designated Authority for imposition of definitive anti-dumping duty on the imports of subject goods was considered by the Central Government and a Customs Notification dated September 12, 2017 was issued imposing anti-dumping duty at the rate specified in the corresponding entry in Column No. 8. The portion of the Notification relevant for the purpose of this appeal is reproduced below:-
S.No Tariff Description Country Country of Producer Exporter Duty Unit Item of goods of origin exports amount (1) (2) (3) (4) (5) (6) (7) (8) (9)
1. 31023 "Ammonium Russia Switzerland Novomos Euro NIL US nitrate" kovskaya Chem Dollar/ 0 00 whether (NakAzot) Trading Metric prilled, GMBH Ton granular, or Through in other solid Rawfert form, with or Offshore without Sal additives or coating, and having bulk density in excess of 0.83 g/cc
11. The appellant made a representation before the Designated Authority that the appellant should not have been subjected to a residual rate of duty and „NIL‟ rate of anti-dumping duty, as was fixed for its related producer, should have been specified for the appellant.
12. On record is a corrigendum dated December 19, 2017 issued by the Designated Authority including the appellant in the duty table and specifying „NIL‟ rate of duty for the appellant. The relevant portion of the said corrigendum dated December 19, 8 AD/51217/2020 2017 is reproduced below:-
Ministry of Commerce and Industry (Department of Commerce) (Directorate General of Anti-Dumping and Allied Duties) CORRIGENDUM New Delhi, the 19th December, 2017 (Final Findings Notification)
2. In partial modification of the above mentioned Notification Sl.
No. 1 in the Duty Table is modified and shall be read as under:
DUTY TABLE S.No. Sub- Description Country of Country of Producer Exporter Duty Unit Heading of Goods origin Export Amount
1. 3102 Ammonium Russia Switzerland Novomosko Euro Chem NIL US Nitrate vsky Azot Trading Dollar/Met Having JSC GMBH ric Ton density Nevinnomys through above 0.83 sky Azot, Rawfert g/cc* JSC Offshore Sal, Lebanon Euro Chem Trading GMBH
13. There is nothing on record to indicate that this corrigendum was considered by the Central Government since Customs Notification was not issued by the Central Government in the Official Gazette imposing „NIL‟ rate of duty for the Appellant.
14. At this stage it needs to be noted that four appeals were filed before the Tribunal against the Customs Notification dated September 12, 2017 issued by the Central Government and the final findings dated August 01, 2017 of the Designated Authority. Three appeals were filed by the partners/ user of the subject goods, while the fourth appeal was filed by the exporter of such goods. All the four appeals were dismissed by the Tribunal by order dated March 16, 2018. The Special Leave to Appeal 9 AD/51217/2020 against the order of the Tribunal was also dismissed by the Supreme Court.
15. It also transpires from the record that the Designated Authority issued a second corrigendum dated April 25, 2018 withdrawing the first corrigendum dated December 19, 2017 and also correcting certain typographical errors in the final findings. The Central Government, being satisfied that it was necessary in the public interest to do so, made an amendment in the Customs Notification dated September 12, 2017 to the following effect:-
"In the said notification, in the TABLE, against serial number 1, in column (7), the entry "Euro Chem Trading GMBH through Rawfert Offshore Sal, Lebanon" shall be substituted."
16. Thus, the appellant continued to be subjected to the residual rate of anti-dumping duty. It is stated that the parent group of the Appellant, namely Euro Chem Group, thereafter approached the Trade Representative of the Russian Federation in India. After pointing out the aforesaid facts, it was stated in the aforesaid letter that Euro Chem would be forced to approach Courts to eliminate the imposition of anti-dumping duty and to seek reason from the Designated Authority for cancellation of the first corrigendum dated December 19, 2017. The Trade Representative of the Russian Federation in India, accordingly, sent a letter dated July 02, 2018 to the Designated Authority. In response to the said letter, the Designated Authority sent a communication dated July 10, 2018 to the Trade Representative of the Russian Federation in India informing them that based on the final findings dated August 01, 2017, the Central Government had issued the Customs Notification dated September 12, 2017 10 AD/51217/2020 and the issue raised had been addressed in the final findings dated August 01, 2017.
17. The appellant claims that thereafter further representations were sent by Euro Chem on November 07, 2019, January 20, 2020, February 20, 2020, and April 24, 2020. The relief claimed in all these representations was for re-issuance of corrigendum dated December 19, 2017 and to provide a single dumping margin for the appellant as was for its related producer but as no decision was taken, this appeal was filed under section 9C of the Tariff Act on December 1, 2020 with a prayer that it should be held that the Designated Authority should have recommended „NIL‟ rate of duty for the appellant and the second corrigendum dated April 25, 2018 issued by the Designated Authority to the extent it affects the appellant should be set aside. A further prayer was made that a direction should be issued to the Union of India to issue a Customs Notification "giving effect to or acting upon the first corrigendum dated 19/12/2017‟ issued by the Designated Authority."
18. The relevant facts have been stated and so the submissions advanced on behalf of the parties can be now considered.
19. Shri Sandeep Sethi, learned Counsel for the Appellant made the following submissions:-
(i) The Designated Authority had realised its mistake in not including the appellant in the duty table with its related company for imposition of „NIL‟ rate of duty and, therefore, issued the first corrigendum dated December 19, 2017, but without issuing any notice to the appellant it withdrew the 11 AD/51217/2020 first corrigendum by a second corrigendum dated April 25, 2018. The second corrigendum had, therefore, been issued in violation of principles of natural justice as no opportunity was provided to the appellant;
(ii) The parent company of the appellant had represented against the issue of second corrigendum but the Designated Authority informed the parent company, by letter dated July 10, 2018, that the issues raised by the Trade Representatives of the Russian Federation had already been addressed in the final finding dated August 01, 2017.
Thereafter, various representations were submitted on behalf of the appellant before the Designated Authority for re-issue of the first corrigendum and for acting upon it. The delay in filing this appeal has occurred because the appellant genuinely believed that the prayer made in the representations would be accepted and a corrigendum would be issued by the Designated Authority, followed by a Customs Notification by the Central Government. In such circumstances the delay is not deliberate and deserves to be condoned; and
(iii) The appellant has a good case on merits and if the delay is not condoned, great prejudice would be caused to the appellant as it would have to pay the residual duty as against „NIL‟ duty. In support of this submission learned counsel placed reliance upon a decision of the Tribunal in M/s Greenply Industries Ltd. v/s Union of India and others3.
3. Anti-Dumping Appeal No. 52357 of 2016 decided on September 15, 2016 12 AD/51217/2020
20. Mrs. Reena Khair, learned Counsel for the Domestic Industry opposed the Delay Condonation Application and made the following submissions:
(i) The only course open to the appellant was to have assailed the Customs Notification dated September 12, 2017 issued by the Central Government after considering the final findings dated August 01, 2017 of the Designated Authority and so this appeal has been filed with inordinate delay of more than three years as the time prescribed for filling an appeal under section 9C of the Traffic Act is only 90 days. In support of this contention learned counsel placed reliance upon a decision of the Supreme Court in Balwant Singh v/s Jagdish Singh and Others4;
(ii) In fact four appeals were filed to assail the Notification dated September 12, 2017 and the final findings dated August 01, 2017 in which the appellant was also impleaded as a respondent. All these appeals were dismissed by the Tribunal and the Special Leave to Appeal (Civil Appeal No. 19899 of 2018) filed to assail the order passed by the Tribunal was also dismissed by the Supreme Court; and
(iii) No satisfactory explanation has been offered by the appellant for the inordinate delay in filing the appeal.
21. Shri Ameet Singh, learned counsel appearing for the Designated Authority also submitted that the appellant has failed to furnish any satisfactory explanation for the inordinate delay in filing the appeal. Learned counsel submitted that the appellant
4. (2010) 8 Supreme Court Cases 685 13 AD/51217/2020 was well aware of the remedies available to it for challenging the Customs Notification dated September 12, 2017 and the final findings dated August 01, 2017 of the Designated Authority but still it waited for over three years to file this appeal.
22. Shri Sunil Kumar, learned Authorized Representative appearing for the Department also urged that the Delay Condonation Application should be dismissed as it has been filed with inordinate delay. Reliance has been placed upon a decision of Supreme Court in Esha Bhattacharjee v/s Managing 5 Committee of Raghunathpur Nafar Academy and Ors.
23. The submissions advanced by learned counsel for the parties and the learned Authorized Representative of the Department have been considered.
24. The appellant is actually aggrieved by the Customs Notification dated September 12, 2017 as the appellant was subjected to a residual rate of duty even though according to the appellant it should have been subjected to „NIL‟ rate of anti- dumping duty like its related producer. The appellant clearly had a remedy available under section 9C of the Tariff Act of filing an appeal within a period of 90 days from the date of the Customs Notification. The appellant did not file the appeal within the aforesaid period of 90 days even though four appeals were filed before the Tribunal by different parties against the aforesaid final findings and the Customs Notification. It needs to be noted that the appellant was impleaded as a Respondent in the appeals. All the four appeals were ultimately dismissed by the Tribunal on
5. (2013) 12 SCC 649 14 AD/51217/2020 March 16, 2018 and the Special Leave to Appeal was dismissed by the Supreme Court.
25. The appellant has concealed essential material facts in this application filed for condonation of delay in as much as no statement has been made that four appeals were filed by other interested parties before the Tribunal to challenge the Customs Notification dated September 12, 2017 issued by the Central Government imposing anti-dumping duty on the basis of the recommendation dated August 01, 2017 made by the Designated Authority, particularly when the appellant was impleaded as a Respondent in the said appeals. This fact alone disentitles the appellant to seek any discretion in a matter where there is a delay of about three years in filing the appeal. The fact regarding filing of four appeals was brought to the notice of the Bench only by the learned counsel appearing for the Domestic Industry.
26. The appellant did pursue the matter with the Designated Authority and a corrigendum dated December 19, 2017 was issued by the Designated Authority modifying the duty table in the final findings by specifying individual rate for the appellant, namely „NIL‟ rate of duty which was the rate of duty specified for the related producer.
27. It is doubtful whether the Designated Authority could have modified the duty for the appellant specified in its final findings, because it was not a typographical mistake as a categorical finding had been recorded by the Designated Authority in the final findings that the request made by the appellant for determination of individual dumping margin could not be accepted for the reason that it had not exported the product under 15 AD/51217/2020 consideration during the period of investigation as a result of which the export price could not be assessed. The Designated Authority also held that it was not desirable to consider the request of the appellant that the same dumping margin should be specified as was assessed for the related producer. Even otherwise, the Central Government did not issue a Customs Notification in the Official Gazette accepting the recommendations of the Designated Authority. Thus, for all the practical purposes, the first corrigendum issued by the Designated Authority did not result in any benefit to the appellant, and it should have continued to pay the residual duty that was notified in the Customs Notification dated September 09, 2017 issued by the Central Government.
28. The appellant, however, still kept quiet and did not, at the appropriate time, take recourse to proceedings contemplated in law for either setting aside the Customs Notification dated September 12, 2017 or for implementation of the recommendation made by the Designated Authority in the first corrigendum by issuance of a Customs Notification by the Central Government. It is only in this appeal filed on December 1, 2020 that a prayer has now been made that the Central Government may issue such a Customs Notification.
29. The Designated Authority ultimately, withdrew the first corrigendum dated December 19, 2017 by a subsequent corrigendum dated April 25, 2018.
30. On behalf of the appellant a representation was thereafter made to the Designated Authority for specifying an individual rate for the appellant but the Designated Authority 16 AD/51217/2020 made it clear to the appellant, by a letter dated July 10, 2018, that such a request cannot be accepted for the reason that this issue had already been addressed by the Designated Authority in the final findings.
31. Though, as stated above, the cause of action actually arose when the Central Government issued the Customs Notification dated September 12, 2017 specifying the duty on the basis of the final findings recommended by the Designated Authority and even if it is assumed that the appellant believed that its grievance would be addressed by the Central Government when the first corrigendum dated December 19, 2017 was issued by the Designated Authority, but still the appellant could not have waited endlessly and should have immediately taken recourse to legal proceeding when the recommendations made by the Designated Authority in the first corrigendum were not considered by the Central Government nor any Customs Notification was issued by the Central Government for accepting such a recommendation made by the Designated Authority.
32. However, the appellant did not approach the Tribunal or took recourse to any other proceedings and continued to make several representations, even though the Designated Authority had specifically informed the appellant that it would not consider the issue raised on behalf of the appellant since it had been decided in the final findings of the Designated Authority. These representations, therefore, cannot enure to the benefit of the appellant for explaining this long delay in filing the appeal on December 01, 2020.
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AD/51217/2020
33. Learned Counsel for the appellant has placed reliance upon a decision of this Tribunal in Greenply Industries Ltd., which is also in connection with anti-dumping appeal. The Bench noted that though the grounds mentioned for explaining the delay were not substantial, but considering the larger issue on the merits of the case, if any, the delay was condoned. This cannot mean that in all cases where merit is to be considered, the delay should be condoned. Each case has to be examined on its own facts. In fact the Bench itself was conscious of this fact and treated the views to have been expressed by it „as a special case'.
34. Learned counsel for the Domestic Industry has, however, placed reliance on a decision of the Supreme Court in Balwant Singh. While examining the provisions of order 22 rule 9(2) and (3) of the Code of Civil Procedure 1908 in a case when there was a delay of 778 days in filing an application for bringing on record the legal representative of the deceased appellant, the Supreme Court observed:-
25. We may state that even if the term `sufficient cause' has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of `reasonableness' as it is understood in its general connotation.
26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.18
AD/51217/2020
27. The application filed by the applicants lack in details. Even the averments made are not correct and ex-facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflect normal behaviour of a common prudent person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party.
28. xxxxxxxx
35. The expression `sufficient cause' implies the presence of legal and adequate reasons. The word `sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plentitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated.
38. Above are the principles which should control the exercise of judicial discretion vested in the Court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the Court. In addition to this, the Court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger benches as well as equi-benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the above stated ingredients; then alone the Court would be inclined to condone the delay in the filing of such applications."
(emphasis supplied) 19 AD/51217/2020
35. It would also be necessary to refer to the decision of the Supreme Court in Ramlal v.Rewa Coalfields Ltd.6 The observation are as follows:-
"7. In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269.
12. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration;"
(emphasis supplied)
36. In Esha Bhattacharjee, which decision has been relied upon by the learned Authorized Representative of the Department, reference has been made to the decision of the Supreme Court in Balwant Singh. The Supreme court culled out the following principles:-
"From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justice-oriented, non-
pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
6. AIR 1962 SC 361 20 AD/51217/2020
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
(emphasis supplied)
37. The following principles follow from the aforesaid decisions of the Supreme Court:-
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(i) The law of limitation is a substantive law and once a valuable right has accrued to a party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away this right on the mere asking of the applicant, particularly when the delay is directly as a result of negligence, default or inaction of that party;
(ii) The explanation has to be reasonable or plausible so as to persuade the Court to believe that the explanation rendered is not only true but is worthy of exercising judicial discretion in favour of the applicant;
(iii) If the explanation is bona fide and also reflects the normal behaviour of a common prudent person, the judicial discretion would tilt in the favour of such an applicant;
(iv) The explained delay should be clearly understood in contradistinction to inordinate unexplained delay;
(v) Substantial justice being paramount and pivotal, the technical consideration should not be given undue and uncalled for emphasis; and
(vi) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration.
38. The factual position has been narrated above. It clearly demonstrates that the appellant, for no justifiable reason, did not challenge the Customs Notification dated September 12, 2017 within the time stipulated in section 9C of the Tariff Act nor did the appellant take immediate steps for implementation for the first corrigendum issued by the Designated Authority on 22 AD/51217/2020 December 19, 2017. This does not reflect the normal behaviour of a person having all the resources to take recourse to legal proceedings. In fact, Euro Chem group, which is the parent group of the appellant, in beginning of 2018 had threatened going to Court for elimination of the anti-dumping duty, but still for a long period of two years, the appellant kept quiet. The appellant has been thoroughly negligent and there is no good reason as to why the delay should be condoned on the mere asking the appellant. It needs to be noted that even after having been informed by the Designated Authority that the representation filed on behalf of the appellant for specifying „Nil‟ rate of duty could be accepted for the reason that the final findings had dealt with the issue, the appellant repeatedly filed representations. These representations were for the same relief which had been denied to the appellant by the Designated Authority and, therefore, the said explanation offered for the delay cannot be accepted. Above all, the appellant concealed material relevant facts from the Tribunal since the appellant has not stated that four Anti-Dumping Appeals had been filed to assail the Customs Notification. The appellant was impleaded as a respondent and these appeals had been dismissed by the Tribunal and the Special Leave to Appeal filed before the Supreme Court was also dismissed.
39. The facts stated above leave no manner of doubt that the appellant has not been able to satisfy the Tribunal that the appellant was prevented by sufficient cause from filing the appeal in time. The Delay Condonation Application, therefore, deserves to be rejected and is rejected.
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40. As the delay condonation application has been rejected, the appeal stands dismissed.
(Order pronounced on February 17, 2021) (JUSTICE DILIP GUPTA) PRESIDENT (RAJU) MEMBER (TECHNICAL) (RACHNA GUPTA) MEMBER (JUDICIAL) Rekha/Shreya/JB