Contact us   Feedback   Annual Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2015 (3) TMI 729 - DELHI HIGH COURT

2015 (3) TMI 729 - DELHI HIGH COURT - 2015 (320) E.L.T. 267 (Del.) - Levy of anti dumping duty - dumping of Pentaerythritol - only point urged on the part of the petitioner was that the petitioner, being an interested party, was not given an opportunity of oral hearing prior to the issuance of the final findings by the designated authority - Held that:- it is clear that the definition of “interested party”, being an inclusive one, cannot be regarded as an exhaustive or as a “hard and fast” defin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he like article in India or a trade and business association a majority of the members of which produce the like article in India. 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. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 the DA. - petitioner falls within the expression “interested party” as defined in Rule 2(c) of the said Rules.

DA functions as a quasijudicial authority .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

It is also clear from the Supreme Court decision that written arguments / submissions / comments are no substitute for an oral hearing. In the backdrop of the clear enunciation of law by the Supreme Court [2011 (1) TMI 7 - SUPREME COURT OF INDIA], it has to be held that it is mandatory for the DA to give an opportunity of oral hearing to an interested party.

DA has violated the principles of natural justice in not giving an opportunity of hearing to the petitioner. And, that is fatal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

GMENT Badar Durrez Ahmed, J 1. In this writ petition, the petitioner seeks, inter alia, quashing of the Final Findings of the Designated Authority notified through the Notification dated 11.12.2014 issued under F.No.14/26/2012-DGAD by the Directorate General of Anti Dumping & Allied Duties, Department of Commerce, Ministry of Commerce & Industry, Government of India. The investigation was conducted under the provisions of the Customs Tariff Act, 1975 in respect of the alleged dumping of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fied 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 MT US$ 3 2905 42 Pentaerythritol Any grade Any .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t;interested party" as defined in Rule 2(c) of the Customs Tariff (Identification, Assessment and Collection of Anti- Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [hereinafter referred to as the said Rules ]. It was contended by Mr Sandeep Sethi, the learned senior counsel appearing on behalf of the Domestic Industry, that the definition of 'interested party' is specific to the article which is subject to investigation for being dumped in India which .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

y'. 4. The learned counsel for the Central Government had also contended that while it is admitted that the petitioner was not granted an oral hearing, the submissions made by the petitioner in writing before the designated authority had been considered by the DA while issuing the final findings. 5. However, the learned counsel for the petitioner had submitted that the definition of 'interested party' given in Rule 2(c) of the said Rules is an inclusive definition and is not restrict .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

f 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 peri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

th this investigation and the domestic industry are being addressed separately to submit relevant information in the form and manner prescribed and to make their views known to the Designated Authority at the following address: The Designated Authority Ministry of Commerce & Industry Department of Commerce Directorate General of Anti-Dumping & Allied Duties (DGAD) Room No. 240, Udyog Bhavan, New Delhi-110011 Any other interested party may also make it's submissions, relevant to the i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

is received within the prescribed time limit or the submitted information is incomplete, the Designated Authority may record its findings on the basis of the facts available on record in accordance with the Rules. It may be noted that no request, whatsoever, shall be entertained for extension in the prescribed time limit. 7. On 31.07.2013 the petitioner submitted its response to the Initiation Notification to the effect that no case of imposition of antidumping duty was made out. It was, inter a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ted in participating in the investigation and, as such, providing them with an opportunity to defend their interest and in assisting the DA to arrive at a fair decision. 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 out above, the petitioner came to know that a hearing was granted, though not to the petitioner, on 09.09.2014 from the disclosure statement dated 2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n of the legal provisions and rules of natural justice. 12. On 11.12.2014, the impugned Final Findings were notified. The DA recommended that definitive anti-dumping duty as per the amounts specified in the table set out therein (and, extracted at the beginning of this judgment) 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. The petitioner is aggrieved by this. Questions 13. The following questio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

any opportunity of oral hearing by the DA. Question No.1 Submissions on behalf of the petitioner 14. Mr Balbir Singh, the learned counsel for the petitioner submitted that in terms of Rule 2(c) of the said Rules, the expression interested party includes an exporter or a foreign producer or the importer of an article subject to investigation. It was submitted that in the present case also, the Petitioner was an importer of an article subject to investigation. Furthermore, the DA in his Final Fin .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ragraph 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ng the period of investigation it had no imports and that it was not even an interested party by virtue of any post-investigation imports. On this issue, CESTAT had this to say:- 13.3 The expression interested party has an inclusive definition in Rule 2(c) and includes under sub-clause (i), inter alia, the importer of an article subject to investigation for being dumped in India. The preliminary objection is based on this definition, which takes into consideration the importer who had imported t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

h a view to detect whether the article identified was being dumped in the Indian market and the injury caused thereby to the domestic industry. The transactions during the period of investigation have evidentiary value for showing the existence of dumping, but when duty was imposed on the dumped imports, it obviously will apply to the subsequent imports to prevent injurious dumping and not on the imports that have taken place during the period of investigation. Therefore, an importer, who, like .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lity on the imports from such countries…. (underlining added) Submissions on behalf of the Respondents 16. On the other hand, Mr Sandeep Sethi, the learned counsel for Respondent No.3, submitted that interested parties have been defined under Rule 2(c) as 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 arti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 during the period .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the rights of an interested party defined under Rule 2(c). It was contended that the DA considers data for the injury period (3-4 years) and, therefore, if there were no imports by a company over the entire injury period, the information of the company is not relevant for determination of injury to the domestic industry. 18. It was also submitted that the questionnaire response and all the information filed by the petitioner made it evident that the petitioner had not imported the product under .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

193) E.L.T. 558 (Tri. -Del.) (para 3 and 4). 20. It was contended that the petitioner s reference to the decision in Lubrizol (supra) was misplaced for the reason that in the stated decision, the status of the party as an interested party was not in dispute and the only issue was whether the party was entitled to file an appeal before CESTAT. The Tribunal held that the party was entitled to file an appeal as a party aggrieved by the order of the DA. It was submitted that in the present case, how .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

appellants therein were not importing the goods either before the investigation or during the period of investigation and they had also not participated in the proceedings before the DA. Whereas, in the present case, the Petitioner has actively participated in the Antidumping investigation. It has submitted responses, comments and answered the detailed questionnaire. 23. It was also submitted that the submissions made by the Respondents so as to suggest that, as during the period of investigatio .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

eriod of investigation but also data for the period post the period of investigation. One instance cited by the learned counsel for the petitioner was the Final Finding dated 24.12.2009 in respect of imports of Carbon Black used in rubber applications originating in or exported from Australia, China PR, Iran, Malaysia, Russia and Thailand. A specific reference was made to paragraph 134 of the said final findings wherein it was stated as under:- As regards consideration of post POI data, the Auth .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

based in Russia, which is not exporter specific and, therefore, the plea taken by the Respondents that the antidumping duty is producer/ exporter specific is not tenable in the facts of the present case. With regard to Annexures I and III, it was submitted that these annexures do not specifically provide for anti-dumping investigation to be period specific and producer/exporter specific. It was further submitted that the proposition with respect to New Shipper s Review as put forth by the Respon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ludes - (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 t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

2007) 2 SCC (L&S) 82 : (2007) 5 Scale 57] this Court has held that when the word includes is used in the definition, as is the case under Section 2(g) of the 1994 Act, the legislature does not intend to restrict the definition; it makes the definition enumerative and not exhaustive, that is to say, the term defined will retain its ordinary meaning but its scope would be extended to bring within the term certain matters which in its ordinary meaning it may or may not comprise. Applying the ab .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

) is to include consumables. Fryums in the present case at the relevant time were not directly consumable. They were undercooked items. They were semi-cooked items. They required further process of frying and addition of preservatives to make them consumables even after the specified time. But for the preservatives, the items would have become stale. (underlining added) 26. In Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union: (2007) 4 SCC 685 (at page 695) the Supreme Court pointed out the dif .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

an 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 ordina .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tly, 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 clause declares that they shall include. Thus, where a definition uses the word includes , as contrasted from means , the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning (see S.K. Gupta v. K.P. Jain [(1979) 3 SCC 54 : AIR 1979 SC 734] following Dil .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r entities which are stated to be included, namely, 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; the government of the exporting country; and 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. In its natur .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

categories of persons/parties specified in the includes part of the definition. The contention of the respondents that only those importers who imported Penta from Russia during the period of investigation would be covered by the expression interested party , cannot be accepted as that would ascribe a very restrictive meaning to the said expression when the law suggests that such a definition is not a restrictive one. The petitioner was an importer of Penta from other countries such as Sweden a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t 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 agre .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

mitted by Mr Balbir Singh that the Final Findings dated 11.12.2014 have been arrived at in complete violation of principles of natural justice and the law laid down by the Supreme Court. He submitted that public hearing under Rule 6(6) of the said Rules was held on 09.09.2014 and was attended by the domestic industry alone. Apart from the fact that notice for the hearing was issued to some parties (almost all of whom were outstation parties) only on 08.09.2014, which was too short a notice, it i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ndents acknowledged that Rule 6(6) of the Rules provides for an opportunity to an interested party to present information orally before the DA and that principles of natural justice also require that the DA grants hearing to the interested parties before giving his Final Findings. But, it was contended that as the petitioner was not an interested party , no rule or principle of natural justice had been violated by the DA not having given a hearing to the petitioner. In view of our decision on qu .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

observed as under:- 68. ….A cursory look at the relevant Rules would show that the DA determines the rights and 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 dumpi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecessary 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, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespect .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

wer; the nature of the power conferred and the purpose for which the power is conferred and the final effect of the exercise of that power. It is only upon a consideration of these matters that the question of application of the said principle can be properly determined. (See Union of India v. Col. J.N. Sinha [(1970) 2 SCC 458] .) 82. In the light of the aforenoted legal position and the elaborate procedure prescribed in Rule 6 of the 1995 Rules, which the DA is obliged to adhere to while conduc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

notice for oral hearing was issued to them by the incumbent DA. Moreover, the alleged opportunity of oral hearing on 9-3-2005, being in relation to the price undertaking offer by Ningbo Nylon, cannot be likened to a public hearing contemplated under Rule 6(6) of the 1995 Rules. 83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

terested 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version