TMI Blog2015 (3) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... a. In its natural and ordinary sense “interested party” would have reference to a party who is interested in the investigation and the ultimate outcome of it. The petitioner was an importer of Penta from other countries such as Sweden and Germany during the period of investigation. But, in the post POI period, the petitioner had imports of Penta from Russia. In any event, the petitioner was a prospective importer of Penta from Russia. It was therefore vitally interested in the outcome of the investigation into the complaint regarding dumping of Penta from Russia. The result of the investigation would affect the petitioner, one way or the other. - it is evident that the petitioner would be an “interested party”. In fact, as pointed out by Mr Balbir Singh, even the DA considered the petitioner to be an “interested party” and treated it as such in the impugned Final Findings. We are also in agreement with the views of CESTAT in the Lubrizol case with regard to the meaning to be ascribed to the expression “interested party”. The CESTAT decisions cited by Mr Sethi are clearly distinguishable as in those cases the concerned party had not participated in the investigation conducted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia from Russia below its associated normal value resulting in dumping of the product and that, as a consequence, the domestic industry had suffered material injury in respect of the said goods. 2. The DA recommended that definitive anti-dumping duty as per the amounts specified in the table below be imposed from the date of the Notification to be issued by the Central Government on all imports of Penta originating in or exported from Russia: Duty Table S.No Heading Description of goods Specification Country of origin Country of export Producer Exporter Duty Amount Unit of measurement Currency 1 2905 42 Pentaerythritol Any grade Russia Russia Any Any 474 MT US$ 2 2905 42 Pentaerythritol Any grade Russia Any Any Any 474 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t No.3, claiming to be the sole producer of Penta in India, filed an application under the said Act and said Rules alleging dumping of Penta originating in or exported from Russia and sought imposition of anti-dumping duty on Penta. On 21.06.2013, the DA issued an Initiation Notification. As per the said initiation notification, the DA found sufficient prima facie evidence of dumping of Penta originating in or exported from Russia and injury to the domestic industry and a causal link between dumping and injury and thereby initiated an investigation into the alleged dumping, and consequent injury to the domestic industry, in terms of Rule 5 of the said Rules, to determine the existence, degree and effect of the alleged dumping and to recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the injury to the domestic industry. The period of investigation was specified as 01.01.2012 to 31.12.2012 (12 months). The injury investigation period was, however, specified to cover the periods April 2009 - March 2010, April 2010 - March 2011, April 2011 - March 2012 and the period of investigation. The Initiation Notification invited submissions from interested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision. They were requested to file their responses in the enclosed questionnaire. Importantly, they were also directed to send a written request in advance if they desired a hearing. 9. On 19.09.2013, the petitioner submitted its detailed response to the questionnaire in the prescribed format alongwith evidence to support its case that anti-dumping duty ought not to be imposed. 10. On 08.09.2014, a notice of oral hearing was issued to interested parties for a hearing scheduled to be held on 09.09.2014. The petitioner alleges that it did not receive any such notice and that it came to learn of the hearing of 09.09.2014 only from the Disclosure Statement dated 21.10.2014. It is admitted by respondent no.2 that that the notice dated 08.09.2014 was not issued to the petitioner. But, it is contended by the said respondent as also by respondent no.3 that it was not at all necessary to issue such a notice to the petitioner as it was not an interested party . It was also contended that the non-grant of a hearing to the petitioner did not, in any event, cause any prejudice to the petitioner as all of its submissions were considered by the DA in his final findings. 11. As pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closure Statement / submissions by the Interested Parties . The Response and Objections filed by the Petitioner have been mentioned by the DA under this head in Para D of the said paragraph 68. The contentions of the Petitioner have further been noted in subparas (xviii), (xx) and (xxi) of paragraph 70. It was submitted that this clearly demonstrates the fact that throughout the investigation, the DA treated and considered the petitioner to be an interested party . The learned counsel submitted that even if a party is not an importer of the subject goods during the period of investigation , such party can still be treated as an interested party in terms of Rule 2(c) of the said Rules. For persuasive value, Mr Balbir Singh referred to the following decisions of the Central Excise and Service Tax Appellate Tribunal (CESTAT):- (a) Lubrizol (India) Pvt. Ltd. v. Designated Authority: 2005 (187) ELT 402 (Tri.-Del) (para 13.3); (b) Fragrances and Flavours of India v. Designated Authority: 2011 (270) ELT 733 (Tri.-Del.) (para 11). 15. In Lubrizol (supra), CESTAT was, inter alia, considering the preliminary objection raised by the respondent therein that the appeal under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oreign producer or the importer of an article subject to investigation for being dumped in India, or a trader or business association a majority of the members of which are producers, exporters or importers of such article and therefore includes only importers of the product under consideration in India or their trade association in India. A company which is not an importer of the product under consideration from the subject country during the period of investigation fixed by the DA cannot claim the status of an interested party . It was submitted that the proposition that Rule 2(c) refers to the product under consideration from the subject country gets established by the use of the word article subject to investigation for being dumped in India . It was also submitted that Section 9A(1) refers to a specific article and a specific country of export or origin. And, the margin of dumping which is to be ascertained under section 9A(6) is also with reference to a specific article from a specific country of export or origin and in respect of the relevant period. 17. Mr Sethi further submitted that Rule 22 of the said Rules entitles an exporter, who has not exported the product duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the petitioner had raised some concerns opposing the request of the domestic industry for imposition of anti-dumping duty, the DA considered and appropriately dealt with the same in the Final Findings. Thus, even though the petitioner was not an interested party, the DA, in fact, has gone ahead and has addressed all the contentions of the petitioner. It was, therefore, submitted that the writ petition be dismissed. 21. The learned counsel for respondent nos. 1 2 endorsed these submissions of Mr Sethi and reiterated that the petitioner was not an interested party within the meaning of Rule 2(c) of the said Rules and was therefore not entitled to an oral hearing. It was also contended that, in any event, all the responses and comments of the petitioner were considered by the DA before he arrived at his concluding recommendations in the Final Findings. Submissions in rejoinder on behalf of the petitioner 22. In rejoinder, Mr Balbir Singh submitted that the decisions in Geeta Vinay Impex (supra) and Linear Technologies (India) Pvt. Ltd (supra) are not applicable to the facts of the present case inasmuch as the appellants therein were not importing the goods either before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect to New Shipper s Review as put forth by the Respondents would not apply to the present case inasmuch as the provisions relating to New Shipper Review are applicable only to the exporters in the exporting country and not to the importers, such as the petitioner, based in India. Discussion 25. At this juncture, it would be appropriate to set out the definition of interested party as appearing in Rule 2(c) of the said Rules:- 2. Definitions.- In these rules, unless the context otherwise requires, - xxxx xxxx xxxx xxxx xxxx (c) interested party includes - (i) an exporter or a foreign producer or the importer of an article subject to investigation for being dumped in India, or a trader or business association a majority of the members of which are producers, exporters or importers of such an article; (ii) the government of the exporting country; and (iii) a producer of the like article in India or a trade and business association a majority of the members of which produce the like article in India; xxxx xxxx xxxx xxxx xxxx It is apparent that the definition is an includes definition and, therefore, it cannot be regarded as having a restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no meaning other than that which is put in the definition can be assigned to the same. (Also see P. Kasilingam v. P.S.G. College of Technology [1995 Supp (2) SCC 348 : AIR 1995 SC 1395] .) On the other hand, when the word includes is used in the definition, the legislature does not intend to restrict the definition: it makes the definition enumerative but not exhaustive. That is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within it matters, which in its ordinary meaning may or may not comprise . (underlining added) 27. The same view has been expressed by the Supreme Court in Ramanlal Bhailal Patel v. State of Gujarat: (2008) 5 SCC 449 (at page 461) as follows: 23. The word person is defined in the Act, but it is an inclusive definition, that is, a person includes a joint family . Where the definition is an inclusive definition, the use of the word includes indicates an intention to enlarge the meaning of the word used in the statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, in the post POI period, the petitioner had imports of Penta from Russia. In any event, the petitioner was a prospective importer of Penta from Russia. It was therefore vitally interested in the outcome of the investigation into the complaint regarding dumping of Penta from Russia. The result of the investigation would affect the petitioner, one way or the other. In Swaran Singh v. State of Punjab: (1994) 3 SCC 544 (at page 549) the Supreme Court held that:- 9. The test for determining whether or not a particular person is a party interested within the contemplation of the proviso is, whether he is likely to be affected by the decision or the result of the proceedings. 29. Applying this test, it is evident that the petitioner would be an interested party . In fact, as pointed out by Mr Balbir Singh, even the DA considered the petitioner to be an interested party and treated it as such in the impugned Final Findings. We are also in agreement with the views of CESTAT in the Lubrizol case with regard to the meaning to be ascribed to the expression interested party . The CESTAT decisions cited by Mr Sethi are clearly distinguishable as in those cases the concerned party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations of the interested parties by applying the objective standards based on the material/ information/ evidence presented by the exporters, foreign producers and other interested parties by applying the procedure and principles laid down in the 1995 Rules. And, again- 70. . It is manifest that while determining the existence, degree and effect of the alleged dumping, the DA determines a lis between persons supporting the levy of duty and those opposing the said levy. 33. The next question for consideration before the Supreme Court was whether or not the decision of the DA in that case was in breach of the principles of natural justice, resulting in vitiating the subject notification under Rule 18 of the said Rules? In this context the Supreme Court held as under:- 80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of the arguments. Moreover, it was also observed in Gullapalli [AIR 1959 SC 308] , if one person hears 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. (underlining added) 34. From the above decision, it is evident that the DA functions as a quasijudicial authority and decides a lis between persons supporting the levy of duty and those opposing the levy. Furthermore, the DA is bound to follow the principles of natural justice and to give an opportunity of hearing to all interested p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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