TMI Blog2015 (1) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... corded, since in such cases a right accrues. 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 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4567 and 14568 of 2014 - - - Dated:- 12-12-2014 - V. Ramasubramanian,JJ. For the Petitioner : Mr. P S Raman for Mr.Lakshmi Kumaran For the Respondents : Mrs. Mallika Srinivasan, Mr G Rajagopalan, ASG, Mr P Mahadevan, CGSC, Mr G Masilamani, SC and Mr A S Vijayaraghavan 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amani, 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion 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 rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zed, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 Designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eel. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ardly 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thing 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... journment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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