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Steel Authority of India Ltd. Versus Designated Authority, Directorate General of Anti-Dumping & Allied Duties & Others

2017 (4) TMI 881 - SUPREME COURT

Appellate Jurisdiction - maintainability of appeal - levy of anti-dumping duty (ADD) upon the import of graphite electrodes - Held that: - There was a power of suo motu revision with the Board as well as a revisional jurisdiction to be exercised on an application by an aggrieved person. The Central Government under Section 131 (originally enacted) and under Section 129DD (Substituted by Act 21 of 1984) was also vested with a revisional jurisdiction - under the CA, 1962, (as amended), against an .....

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ity nor from the alleged non-consideration of any of the grounds urged on behalf of the appellant. The tribunal further held that the Designated Authority had followed an acceptable method of determining the normal value of electrodes within China by comparing individual work undertaken by an exporter vis-à-vis the export price imposed and that there was no infirmity in the matter of such determination. - The findings recorded by the learned appellate tribunal on the basis of which the appea .....

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)of the Customs Act, 1962 (as amended). The language of the above provision of the Act having indicated a very broad and expansive appellate jurisdiction, the precise contours thereof were felt necessary to be determined and the admissibility of the present appeal tested on the aforesaid basis. 2. It may be worthwhile at the very outset to delve into the history of the taxation regime under the Act to notice the changes that had occurred from time to time. 3. Against the assessment of customs du .....

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overnment under Section 131 (originally enacted) and under Section 129DD (Substituted by Act 21 of 1984) was also vested with a revisional jurisdiction. 4. By the Finance Act No.2 of 1980, a quasijudicial authority, namely, Customs Excise and Gold (Control) Appellate Tribunal (CEGAT) was constituted to hear appeals against orders of the Collector as well as the orders of the Board. The said Tribunal came to be known as Customs, Excise and Service Tax Appellate Tribunal (CESTAT), with the introdu .....

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rate of duty of customs or to the value of the goods for the purpose of assessment. Under Section 130A, introduced by the Finance Act, 1980, a Reference jurisdiction was also conferred in the Supreme Court in case the Appellate Tribunal was of the opinion that on account of a conflict in the decisions of the High Courts on the same question of law, a reference to the Supreme Court is necessary. Under Section 130E(a) an appeal was provided to the Supreme Court from any judgment of the High Court .....

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908 relating to appeals to the Supreme Court shall, so far as may be, apply in the case of appeals under Section 130 as they apply in the case of appeals from decrees of a High Court. 5. An amendment though not of any significant consequence, made in the year 1999 may also be noticed. The reference jurisdiction of the High Court under Section 130 which was to be exercised at the instance of the Appellate Tribunal was continued in respect of orders passed, under Section 129B, by the Appellate Tri .....

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ion to the rate of duty of customs or to the value of goods for purposes of assessment) an appeal was provided to the High Court if the High Court is to be satisfied that the case involves a substantial question of law. Simultaneously, under Section 130A, the Reference Jurisdiction of the High Court was continued in respect of orders passed by the Tribunal on or before 1.7.2003. Such reference jurisdiction remained circumscribed as before, as already noticed. 7. Under the 2003 Amendment, as agai .....

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8. By the National Tax Tribunal Act, 2005, a National Tax Tribunal was constituted under Section 5 thereof to hear appeals from every order passed in appeal by the Income Tax Appellate Tribunal and the Central Excise and Service Tax Appellate Tribunal if the National Tax Tribunal is satisfied that the case involves substantial question of law (Section 15). Under Section 23 of the National Tax Tribunal Act, 2005 on and from the notified date all proceedings including appeals and references under .....

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e form. 9. However, the aforesaid repeal effected by the National Tax Tribunal Act, 2005 would not be very relevant for the present inasmuch as the National Tax Tribunal Act, 2005 has been invalidated by this Court in the case of Madras Bar Association Vs. Union of India and Another (2014) 10 SCC 1. Therefore, it is, the provisions of the Customs Act, 1962 as prevailing prior to the enactment of the National Tax Tribunal, 2005 which is presently holding the field. 10. What is required to be noti .....

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appeal to the Supreme Court against an order of the appellate tribunal on a question relating to the rate of duty or classification of goods has also been provided for. No conditions, restrictions or limitations on the availability of the appellate remedy before the Supreme Court is envisaged in the main Section [130E(b)] though under Section 130F conditions to the exercise of the appellate power seem to have been imposed, the precise application of which is the determination i.e. required to b .....

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ds for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) Commissioner of Customs or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Customs or the other party; (b) accompanied by a fee of two hun .....

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ny case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such quest .....

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e High Court, it shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges. (8) Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who .....

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0 by the Appellate Tribunal before the 1st day of July, 2003; (iii)on a reference made under section 130A, in any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) any order passed before the establishment of the National Tax Tribunal by the Appellate Tribunal relating, among other things, to the determination of any questi .....

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(1) of section 130D or section 131. (2) The costs of the appeal shall be in the discretion of the Supreme Court. (3) Where the judgment of the High Court is varied or reversed in the appeal, effect shall be given to the order of the Supreme Court in the manner provided in section 130D in the case of a judgment of the High Court. 12. The history of the customs duty regime traced out above would go to show that after constitution of the Appellate Tribunal, the proceedings of which were/are deemed .....

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order or the judgment of the High Court either in exercise of the appellate or reference jurisdiction [Section 130E(a)]. At the same time, a direct appeal lies to the Supreme Court against an order passed by the appellate tribunal relating to the question of duty or classification of goods [Section 130E(b)]. Section 130F has weathered all amendments and make the provisions of the Code of Civil Procedure relating to an appeal to the Supreme Court applicable to appeals under Section 130 of the Ac .....

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earing an appeal against the order of the appellate tribunal has been same and has remained unchanged throughout the legislative history of Chapter XV of the Act (dealing with appeals) commencing with the amendment brought about by the Finance Act of 1980. The provisions of the Civil Procedure Code 1908 relating to appeals to the Supreme Court from a decree of a High Court, as far as may be, has been made applicable to all appeals to the Supreme Court under Section 130E of the Act. Section 130F .....

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tion 130E(a) against the order of the High Court. 14. The provisions of the Civil Procedure Code relating to the appeals to the Supreme Court against decrees of the High Court are contained in Section 109 of the Civil Procedure Code which is in the following terms: 109. When appeals lie to the Supreme Court.- Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India, and .....

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appeals to the Supreme Court from any judgment or decree or final order of the High Court in exercise of its civil, criminal or any other jurisdiction provided the High Court certifies that the case involves (i) a substantial question of law as to the interpretation of the Constitution, (ii) a substantial question of law of general importance which in the opinion of the High Court needs to be decided by the Supreme Court. 16. Chapter IV of Part V of the Constitution expressly limits the appellat .....

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greement confer, subject to enactment of a law to such effect by the Union Parliament. It is under the provisions of Article 138 that the statutory power of appeal under different statutory regimes has been conferred on the Supreme Court of India. Article 138 of the Constitution could not and does not deal with the scope of the appellate power that a statutory enactment made by the Union Parliament may confer on the Supreme Court. Rather, it deals with the range of the subjects to which the juri .....

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expressly limit the appellate power of the Supreme Court to determination of substantial questions of law (Section 100 CPC). To our minds the position should be no different in construing the provisions of Section 130E(b) of the Act though it omits to specifically mention any such limitation. 17. Section 130E(b) of the Act provides for a direct appeal to the Supreme Court against an Order of the appellate tribunal, broadly speaking, on a question involving government revenue. This seems to be in .....

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rt of a laid down meaning of the Constitutional provisions that may come into focus in a given case. It is only such questions of importance, alone, that are required to be decided by the Supreme Court and by the very nature of the questions raised or arising, the same necessarily have to involve issues of law going beyond the inter partes rights and extending to a class or category of assessees as a whole. This is the limitation that has to be understood to be inbuilt in Section 130E(b) of the .....

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the case of Navin Chemicals Mfg. and Trading Co. Ltd. vs. Collector of Customs (1993) 4 SCC 320 , where this Court has taken the view that the expression determination of any question having a relation to the rate of duty of customs or, value of goods for purposes of assessment must be read as meaning a direct and proximate relationship to the rate of duty and to the value of goods for purposes of assessment. The other is the decision of this Court in Collector of Customs, Bombay vs. Swastic Wo .....

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act. The decision of such a question of fact must be arrived at without ignoring the material and relevant facts and bearing in mind the correct legal principles. Judged by these yardsticks the finding of the Tribunal in this case is unassailable. We are, however, of the view that if a fact finding authority comes to a conclusion within the above parameters honestly and bona fide, the fact that another authority be it the Supreme Court or the High Court may have a different perspective of that q .....

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t Court of law is no ground for interference under Section 130-E of the Act though in relation to the rate of duty of customs or to the value of goods for purposes of assessment, the amplitude of appeal is unlimited. But because the jurisdiction is unlimited, there is inherent limitation imposed in such appeals. The Tribunal has not deviated from the path of correct principle and has considered all the relevant factors. If the Tribunal has acted bona fide with the natural justice by a speaking o .....

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ation of the applicable rate of duty or to the determination of the value of the goods for the purposes of assessment of duty. This is a sine qua non for the admission of the appeal before this Court under Section 130E(b) of the Act. (ii) The question raised must involve a substantial question of law which has not been answered or, on which, there is a conflict of decisions necessitating a resolution. (iii) If the tribunal, on consideration of the material and relevant facts, had arrived at a co .....

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her this appeal deserves to be admitted. 21. The appellant which is a public sector undertaking is engaged in the manufacture of steel in the regular course of its business. The appellant uses graphite electrodes which it gets imported from China. Against such imports from China, on the basis of the final report of the Designated Authority acting under the Anti Dumping Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Det .....

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ectrodes within China in an impermissible manner and that there has been application of excessive confidentiality in the report of the Designated Authority. No challenge to the validity of any provision of the Anti Dumping Rules which sets out the procedure for determination of the margin of dumping was laid before the Appellate Tribunal. 22. The learned Tribunal, on due consideration, came to the conclusion that the report of the Designated Authority neither suffers from any excessive impositio .....

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