TMI Blog2017 (4) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... ending appeals of the Domestic Industry, the Court is of the view that the case be remanded back to be heard and disposed off on its merits - appeal allowed by way of remand. - W.P.(C) No. 2540/2017 & CM Nos. 10959-60/2017 - - - Dated:- 20-3-2017 - MR. S. RAVINDRA BHAT MR. NAJMI WAZIRI JJ. Petitioners Through: Mr. Balbir Singh, Senior Advocate with Ms.Rubal Maini and Ms. Pramila Viswanathan, Advocates. Respondents Through: Mr. Anurag Ahluwalia, CGSC. NAJMI WAZIRI, J.:- CM No. 10959/2017 (for exemption) 1. Allowed, subject to all just exceptions. 2. The application stands disposed off. W.P.(C) No.2540/2017 CM No. 10960/2017 3. Issue notice. Mr. Anurag Ahluwalia, CGSC accepts notice on behalf of the respondents. 4. With the consent of the parties, the petition is taken up for final hearing. 5. The petitioner seeks quashing of the final order dated 25.01.2017 passed by the Customs Excise Service Tax Appellate Tribunal (CESTAT) in the petitioner s appeal, as well as the quashing of the Custom Notification dated 07.06.2016. 6. The facts of the case are that anti-dumping duties had been imposed against import of the Vitrified/Por ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tence from the year 2000 onwards as per information gathered from the website, and that it had several related companies, which were involved in the production and sale of the subject goods. A conclusion was also drawn of the relationship between petitioner nos. 1 to 4 on the basis that petitioner no.4 (the exporter) was being operated from the office of one M/s Swift Secretariat Services, a company which was owned by the Company Secretary. However, this by itself would not, in the absence of documentary evidence, show that the realization of export proceeds was from its related buyers. The petitioner nos. 1 to 4 contend that they made no exports during the earlier period, hence the observations of the DA with respect to either the exports to India or to the related companies were unfounded and irrelevant to the aspect of dumping and injury. 8. The petitioners contend that without considering or examining the relevant facts, the DA nevertheless issued Final Findings on 28.03.2016 recommending imposition of anti-dumping duty on all the imports made through petitioner nos. 1 to 4 on the ground that they could not be treated as New Shippers under Rule 22 of the Rules. Subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal Representative were taken into consideration for the purposes of the impugned order (para 7). The reasoning of the CESTAT is contained in para 9 to 12, which read as follows:- 9. We note that the DA has examined the status of the appellants for a claim of New Shipper Review under the said Rules. It is seen that the appellant No.1 and 2, who are related producers were not new players in the business but were actually in existence, in different names, earlier. The on the spot verification conducted by the DA revealed the said fact. In fact appellant No.2, though declared to have been set up in 2009, was in fact, in existence from 2001. This fact was not disclosed in the declaration filed by the appellant. Similarly, it was also recorded that these Producers have a much wider relationship network than what was declared by them. This puts the whole claim and basis of New Shipper Review under jeopardy. Further, the appellant No.3 is actually exporter of subject goods and realised export proceeds directly from the Indian buyers. There is no supporting evidence to their sale transaction with appellant no. 4. 10. After careful consideration of the relationship and commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Findings of the DA which had concluded that producers had a much wider relationship network than what was declared by them in this regard; that the petitioners did not appear for oral hearing when the case was posted. It also records that the petitioner neither cooperated in the proceedings nor in the on-the-spot verification and that the petitioners had failed to submit the relevant documents to make full and complete declaration regarding their period of existence and the relationship between them and the related companies. However, the said conclusion of the Tribunal is not supported by any reasoning except for mere reference to paras 25 to 27 of the Final Findings. Indeed, there is no reference to the contentions of the petitioners. For example, in para 5 of their Appeal before the Tribunal, the petitioners had pleaded that they had not exported during the earlier investigation period and were not related to any of the companies/producers, which had exported the subject goods to India during the investigation period. 12. Mr. Balbir Singh, the learned Senior Advocate for the petitioners contends that the CESTAT s Final Findings ought to have been concluded within one year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. (3) The designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned: Provided further that the designated authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. (2) The Central Government shall not levy antidumping duties under sub-section (1) of section 9A of the Act on imports from such exporters or producers during the period of review as referred to in sub-rule (1) of this rule: Provided that the Central Government may resort to provisional assessment and may ask a guarantee from the importer if the designated authority so recommends and if such a review results in a determination of dumping in respect of such products or exporters, it may levy duty in such cases retrospectively from the date of the initiation of the review. 15. The learned counsel for the respondents submits that since appeals of the Domestic Industry against the aforesaid Final Findings and the Customs Notification are pending before the CESTAT, therefore, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich might have momentous consequences to those affected by it, is incapable of redress; its sphinx like inscrutability would likely mask untenable reasons and considerations that lay buried forever in the mind of the maker. Unlike the executive and legislative branches whose functioning does not always mandate open scrutiny, courts are always obliged to dispense justice in the public gaze. Rather than ply this order with a surfeit of judgments and past wisdom, this court prefers to quote one decision, apt under the circumstances, of the Supreme Court, M/S Kranti Asso. Pvt. Ltd. Anr vs Masood Ahmed Khan Ors (2010) 9 SCC 496, which observed as follows, after considering a welter of previous authorities: 47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal). (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962) shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962 (52 of 1962). (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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