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2015 (4) TMI 66 - DELHI HIGH COURT

2015 (4) TMI 66 - DELHI HIGH COURT - 2015 (322) E.L.T. 892 (Del.) - Extension of the investigation period - Anti-dumping investigations - imports of Cast Aluminium Alloy Wheels originating - whether the ex post facto extension of the investigation period granted by the Central Government on 30.04.2014 extending the period of investigation from 09.03.2014 to 09.06.2014 was valid - Held that:- Central Government can grant ex post facto extension provided it is done within the overall period of six .....

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nted during the initial period or an extended period.

Extension must not be granted within the initial period or extended period, as the case may be, otherwise the investigation will lapse automatically at the end of such period. In our view, at the end of the initial period or an extended period, if the period of eighteen months has not expired, the investigation would, in a sense, be suspended till it is revived by an ex post facto extension within the overall period of eighteen mo .....

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excluded in computing the period of eighteen months. Furthermore, under Rule 15 it is the DA who suspends the investigation, whereas the kind of suspension we are considering is not at the instance of the DA but on the happening of certain events and circumstances. Mr Balbir Singh is right when he contends that the DA, when he made his request for extension on 03.03.2014, could not presume that the Central Government would grant the extension. It is for this reason, that, on 09.03.2014, when the .....

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ple of natural justice - Opportunity of hearing not granted - Interested party - Held that:- there is no dispute that the petitioners are interested parties. There is also no dispute that all the earlier investigation (including the first oral hearing) was conducted by the earlier DA and not by the DA who took over only on 29.05.2014. In any event, it is an admitted position that the new DA had to afford an opportunity of hearing to interested parties including the petitioners. The Respondents h .....

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nt a meaningful opportunity of hearing to the interested parties and written submissions or comments are no substitute for this. This has been settled by the Supreme Court in the ATMA case [2011 (1) TMI 7 - SUPREME COURT OF INDIA].

Anti-dumping investigations are time-bound but, that does not mean that such important matters can be bull-dozed in the manner it has been done in the present case. A period of dormancy of 2 months and 18 days (from 09.03.2014 to 28.05.2014) has been follow .....

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st 20 minutes prior to 5:00 pm on 30.05.2014. The fact that the hearing could be attended by only one exporter is testimony of the lack of reasonable opportunity. Sure, the new DA was in a hurry as he had only 12 days with him but, that does not mean that he could give a go-by to the requirement of affording a reasonable opportunity of hearing to the interested parties before he submitted his Final Finding. In the light of the clear dicta in the ATMA case in the context of anti-dumping investiga .....

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our of assessee. - W.P. (C) 3022/2014, W.P.(C) 3023/2014, W.P.(C) 3250/2014, W.P.(C) 3251/2014, W.P.(C) 633/2015, W.P.(C) 634/2015 - Dated:- 27-3-2015 - Badar Durrez Ahmed And Sanjeev Sachdeva,JJ. For the Petitioner : Mr Balbir Singh with Mr Atul Gupta, Mr T. D.Satish, Mr Angad Sandhu, Mr B. Mansatta and Mr Rupinder Simhar For the Respondents : Mr Manish Mohan with Mr Gaurav Sharma, Ms Manisha Rana Singh, Ms Hina Shaheen and Ms Sidhi Arora, Mr Gopal Jain, Sr Advocate with Mr Ratheesh M. JUDGMENT .....

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setting aside the Preliminary Finding dated 13.01.2013 and the impugned Antidumping Duty Notification No.15/2014-Customs (ADD) dated 11.04.2014. Then, WP(C) 3250/2014 and WP(C) 3251/2014 were filed (one each) by the said petitioners, inter alia, seeking the quashing of the Notice bearing F.No.354/241/2012-TRU dated 30.04.2014 and the letter bearing F.No.14/7/2012- DGAD dated 08.05.2014. Finally, WP(C) 633/2015 and WP(C) 634/2015 were filed (one each) by the said petitioners, inter alia, praying .....

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f hearing by the Designated Authority before he issued the impugned Final Finding dated 09.06.2014? Background facts: 3. Before we examine these points, it would be necessary to set out the background facts. 4. Synergies Castings Ltd, a producer of Cast Aluminium Alloy Wheels or Alloy Road Wheels India, approached the Designated Authority (DA) under the Customs Tariff Act, 1975 (hereinafter referred to as 'the said Act') and the Customs Tariff (Identification, Assessment and Collection o .....

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whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand vide Notification 14/7/2012-DGAD dated 10.12.2012. 6. The DA also recommended provisional anti-dumping duty on imports of the said goods from said countries by Notification No 14/7/2012-DGAD dated 13.01.2014. And, the same was imposed by Central Government by its Notification No. 15/2014-Customs (ADD) dated 11.04.2014. As men .....

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.2014 to further extend the period of investigation. This request of the DA was accepted by the Central Government but, much later on 30.04.2014 (after the expiration of the earlier extended period on 09.03.2014) by an Office Memorandum, which was as under: F.No.354/241/2012-TRU Government of India Ministry of Finance Department of Revenue Tax Research Unit ****** New Delhi, 30th April, 2014. OFFICE MEMORANDUM Subject: Anti-Dumping Duty Investigation concerning imports of Cast Aluminum Alloy Whe .....

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of investigation by 3 months from 09.03.2014 to 09.06.2014, in the case of Cast Aluminum Alloy Wheels or Alloy Road Wheels used in Motor Vehicles, whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand. (Akshay Joshi) Under Secretary (TRU) (Shri J.S. Deepak) Additional Secretary & Designated Authority, Department of Commerce, Ministry of Commerce & Industry, Udyog Bhawan, .....

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f Cast Aluminum Alloy Wheels or Alloy Road Wheels used in Motor Vehicles, whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand Sir / Madam, Vide office Memorandum No. 354/241/2012-TRU dated 30th April, 2014 the competent authority has accorded permission for extension of time upto 9th June, 2014 for completing the subject investigation and notifying the final findings. This is f .....

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nforming them that a public hearing would be given on the very next day (30.05.2014) at 5:00 pm. Because of the short notice, several interested parties sought an adjournment immediately after receipt of the email. But, that request was turned down just 20 minutes before the scheduled start of the oral hearing on 30.05.2014. The DA proceeded with the hearing which could be attended by just one exporter. 11. On 05.06.2014 the DA circulated the disclosure statement. Interested parties were permitt .....

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which had been hitherto kept in a sealed cover, was published on 30.12.2014. The third set of writ petitions (WPC 633/2015 & WPC 634/2015) were filed by the petitioners, inter alia, challenging the Final Finding dated 09.06.2014. Point No.1 12. Mr Balbir Singh, the learned counsel for the petitioners, made the following submissions: a) The investigation was initiated on 10.12.2012. Rule 17(1) of the said Rules mandates completion of the investigation and issuance of Final Findings within one .....

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s expiring on 09.03.2014. But, the Central Government did not extend the time again before 09.03.2014 and allowed the investigation to lapse and the DA became functus officio. The ex-post facto extension granted only after 52 days on 30.04.2014 was illegal and without authority of law. Thus, after 09.03.2014, the DA did not have any jurisdiction to continue with the investigation. b) If such ex-post facto extensions were construed to be permissible it may lead to chaos as the DA may continue to .....

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provision for suspension and recommencement of investigation has been provided in Rule 15, where price undertakings are accepted. d) The term 'extend further' in the first proviso to Rule 17(1) means to prolong a time period, which is still in force. The term 'extend' means continuation of an existing thing and therefore, there can be no extension when the investigation has lapsed due to efflux of time. Reliance was placed on Tarsem Kumar v. CCE: AIR 1972 P&H 5; Provash Chand .....

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has been indicated for the grant of the extension. 13. The learned counsel for the DA submitted as under:- a) The order granting extension is administrative in nature as held by the Supreme Court in Designated Authority (Anti-Dumping Directorate), Ministry of Commerce v. Haldor Topsoe A/S: (2000) 6 SCC 626. A similar extension was apparent in the Haldor Topsoe case even though the dates of extension as such were not a matter of consideration. However, the Supreme Court, in paragraph 24, observe .....

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ore, the requirement of the respondent being hurt before granting any such extension, does not arise. 24. We notice that under the provision empowering the extension of time by the Central Government (proviso to Rule 17), there is no requirement that the concerned parties to the investigation should be heard before extending the time. We agree with the appellant that this decision in question is an administrative decision based on exigencies of the case. The statute governing the investigation i .....

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leted within the stipulated period after obtaining the necessary extension from the Central Government. The decisions relied upon by the respondent, in our opinion, have no bearing on the facts of this case since in those cases the proceedings were quasicriminal in nature where application of principles of natural justice was inherent, unlike the present case where the application of principles of natural justice is limited to the provisions already made in the statute. Further, apart from the f .....

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n of time and having suffered an adverse order cannot be permitted to raise this question subsequently at an appellate stage. Accordingly, this objection of the respondent also fails and the same is rejected". b) The first proviso to Rule 17 provides that the Central Government may, in its discretion in special circumstances, extend further the duration of one year by six months. The DA demonstrated the existence of special circumstances which warranted further extension and its inability t .....

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hin the overall 18 months period. Thus, what is important is the outer limit of 18 months and the extensions within that limit should be seen as made appropriately. 14. Mr Gopal Jain, senior advocate, appearing for Synergies Castings Ltd submitted as follows:- a) The first proviso to Rule 17(1) (a) of the said Rules empowers the Central Government to extend the period of investigation by six months:- "Provided that the Central Government may, in its discretion in special circumstances exten .....

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nment (proviso to Rule 17), there is no requirement that the parties concerned to the investigation should be heard before extending the time. We agree with the appellant that this decision in question is an administrative decision based on exigencies of the case." 15. There is no stipulation in the said Act or the said Rules that extension must be granted prior to expiry of the first extension. Moreover, there is no bar under the Act or the Rules for the Central Government to exercise the .....

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erred under the said Rules. The Final Findings have been issued before the expiry of the 2nd extension on 09.06.2014. 18. Ms Meenakshi Arora, the learned senior counsel for the intervener contended as under: a) Rule 17 must be read in context of the larger object and purpose of the law regulating anti-dumping measures in India, which has been stated by the Supreme Court in case of Reliance Industries Ltd. v. Designated Authority: (2006) 10 SCC 368:- "11. The result was that an industrial ba .....

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so that the domestic industries cannot compete and are thereby destroyed, and after such destruction has taken place, prices are again raised. 12. The purpose of Section 9A is, therefore, to maintain a level-playing field and prevent dumping, while allowing for healthy competition. The purpose is not protectionism in the classical sense (as proposed by the German economist Friedrich List in his famous book 'National System of Political Economy' published in 1841) but to prevent unfair tr .....

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ner so as to render the entire investigation into dumping, a futile exercise. The interpretation proposed by the petitioner would be contrary to the object and purpose of the provisions and would wreak havoc. b) The decision under the first proviso to Rule 17(1) to extend time is an administrative decision as held in Haldor Topsoe (supra). c) The contention of the petitioners that once the period of 12 months expire, the Central Government cannot grant any extension is not tenable, since such an .....

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he period by six months after the expiry of the period of one year. d) While the use of the word "shall" in Rule 17 makes the time period mandatory. But, at the same time, the proviso clearly allows for the extension of time under special circumstances which may even arise on the last day of the oneyear period. The interpretation sought to be placed by the petitioners on the proviso to Rule 17(1) would not allow extension of period despite the existence of special circumstances. e) If .....

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gh, in rejoinder, submitted:- a) The judgment in Haldor Topsoe (supra) is not applicable because (i) the only issue raised was that "before extension hearing was not granted by the Central Government", that is not the issue in present writ petition; (ii) the issue that investigation terminates and the DA becomes functus officio on expiry of the period was not raised, discussed or decided. Further, in the present case, the objection about such alleged illegal extension was not only rais .....

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aid Rules, to the extent relevant, is set out hereinbelow:- 17. Final findings. - (1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding- (a) as to,- (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from .....

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year by six months: Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year. xxxxx xxxxx xxxxx xxxxx (emphasis supplied) 21. A plain reading of Rule 17(1) makes it clea .....

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e. If the Final Finding is not submitted within the stipulated period, the investigation shall terminate or lapse. 22. The question, however, is whether the investigation would lapse ipso facto at the end of one year in case no extension is granted by the Central Government within that period. Or would the investigation be, in a way, suspended till the additional period of six months available to the central government elapses? There is, of course, no doubt that if the Final Finding, for whateve .....

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point of fact, in that case the extension was granted by the Central Government after the initial period of one year had expired but before the additional period of six months had expired. So, it has been argued by the learned counsel for the respondents and the intervener that the Supreme Court has recognised the fact that ex post facto extension can be granted by the Central Government under the scheme of the said Rule 17. But, to be fair to Mr Balbir Singh, it must also be noted that the que .....

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of the view that the Central Government can grant ex post facto extension provided it is done within the overall period of six months beyond one year and the extension does not spill over beyond the eighteen-month period. We take this view because we do not see any bar or prohibition in the said Rule 17 which would prevent the Central Government from extending the period of investigation even after the initial period of one year or the extended period has expired provided it is granted within th .....

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an extended period, if the period of eighteen months has not expired, the investigation would, in a sense, be suspended till it is revived by an ex post facto extension within the overall period of eighteen months. We are mindful of the argument of Mr Balbir Singh that suspension is contemplated only the circumstances stipulated in Rule 15 of the said Rules. But, there is a difference. In the case of a suspension of investigation under Rule 15, when it is subsequently resumed by the DA, the per .....

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reas the kind of suspension we are considering is not at the instance of the DA but on the happening of certain events and circumstances. Mr Balbir Singh is right when he contends that the DA, when he made his request for extension on 03.03.2014, could not presume that the Central Government would grant the extension. It is for this reason, that, on 09.03.2014, when the first period of extension expired and the grant of further extension was awaited by the DA, his mandate to investigate got susp .....

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es of natural justice as no effective opportunity of hearing was provided by the Designated Authority who passed the Final Finding. The DA on 29.05.2014 at 6:22 p.m. sent an unexpected email scheduling oral to be held on 30.05.2014 at 5PM to various interested parties situated in different parts of the country/ world. Though adjournment was sought soon after receipt of email, the request was turned down only 20 minutes before the scheduled start of oral hearing. b) It was also suggested by the o .....

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mp; Others:(2011) 2 SCC 258. (hereinafter referred to at the ATMA case). c) Furthermore, comments to the disclosure statement issued by the DA on 05.06.2014 were required to be filed on or before 10:30 a.m. on 09.06.2014 (Monday), that is, on the terminal date for issuance of the Final Finding. The petitioner filed its elaborate comments on 09.06.2014, but many of the issues were either not considered in the final findings or were incorrectly addressed in the Final Finding because the DA could n .....

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ring required should not be an empty formality. The High Court is empowered to entertain a Writ Petition challenging the Final Findings on ground of violation of principles of natural justice and/or jurisdictional defects even prior to same being acted upon by the Central Government. Reliance was placed on a recent decision of this bench in WP(C) 744/2015: SanDisk International v. The Designated Authority & Others decided on 18.03.2015. e) The DA functions as quasi-judicial authority and is .....

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ng with a second public hearing as mandated in the ATMA case. The procedures followed between 29.5.2014 and 9.6.2014 by the new DA was as follows: 29.05.2014 (Thursday) - New DA took charge of the Office. Same day an intimation for second oral hearing was issued. 30.05.2014(Friday) - Second oral hearing was convened 02.06.2014 (Monday)- Time to file written submissions. 04.06.2014 (Wednesday) - Time to file rejoinder submissions. 05.06.2014 (Thursday) - DA issued Disclosure statement 09.06.2014 .....

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r them to reach Delhi in 24 hours time. However, the petitioners had filed letters authorising their advocates/consultants to appear before the DA and also to make their submissions. c) The principles of natural justice are immutable principles widely held to be indispensable to a fair trial or valid decision in any legal system. In the Indian context, this was explained in Swadeshi Cotton Mills v. Union of India: (1981) 1 SCC 664: "This rule of fair play must not be jettisoned save in very .....

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5.2014, in the light of the ATMA case, considering the limited time available with the DA to conclude investigation by 09.06.2014 in terms of Rule 17 of the said Rules. 29. Mr Gopal Jain, senior advocate, appearing for Synergies Castings Ltd submitted as follows:- a) The DA followed the entire procedure prescribed under the said Act as well as the said Rules. b) After appointment of the new DA, a second oral hearing was conducted in compliance with the decision of the Supreme Court in the ATMA c .....

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statement issued by the DA on 05.06.2014 records the written submissions of the interested parties and their comments on the provisional finding (which forms the bulk of the statement). The information is collected in prescribed formats, i.e. exporter / importer questionnaire and application proforma for domestic industry. e) The examination by the DA records inter alia that:- "…the comments / submissions made by the interested parties after the issue of the preliminary findings are .....

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uing the Disclosure Statement as well as the comments received on 09.06.2014. Therefore, on 09.06.2014, the DA only had to examine the comments on the Disclosure Statement, which have been adequately considered. f) The DA has adopted a pragmatic and practical approach in line with the letter and spirit of the Rules to meet the exigencies of the situation. The Supreme Court in Swadeshi Cotton Mills v. Union of India: (1981) 1 SCC 664 (in para 78 at page 704) held that:- "The audi alteram par .....

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y, evident from the facts and circumstances of the particular case." Again, in Manohar Lal Sharma v. The Principal Secretary: (2014) 9 SCC 614, the Supreme Court held that:- "The principles of natural justice, though universal, must be realistically and pragmatically applied." g) The approach of the DA was a careful balancing act between following the prescribed procedure and ensuring that the entire data driven / fact finding investigation does not lapse with the expiry of the ex .....

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e he arrives at the Final Finding. In fact, the DA determines a "lis" between persons supporting the levy of duty and those opposing the said levy. The Supreme Court, inter alia, 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 opportun .....

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or is it a general rule of universal application. 81. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or not is to be considered bearing in mind the express language and the basic scheme of the provision conferring the power; 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 .....

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concerned, though it was sought to be pleaded on behalf of the respondents that the incumbent DA had issued a common notice to the advocates for ATMA and Ningbo Nylon, for oral hearing on 9-3- 2005, however, there is no document on record indicating that pursuant to ATMA's letter dated 24-1-2005, 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, canno .....

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e 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 .....

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DA functions as a quasi-judicial 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 parties, in fact, "to all the parties, who have filed objections and adduced evidence". 33. In the present case, there is no dispute that the petitioners are interested parties. There is also no dispute that all the .....

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short time available. But, we are afraid that this is not good enough. The opportunity of hearing must not be illusory. Just because there was paucity of time (for no fault on the part of the interested parties), the DA cannot ride roughshod over the principles of natural justice. The DA is bound to grant a meaningful opportunity of hearing to the interested parties and written submissions or comments are no substitute for this. This has been settled by the Supreme Court in the ATMA case. 34. T .....

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