2019 (8) TMI 1689 - AT - Customs

Tribunal dismisses appeal by Alok Industries Limited for delay in filing - Section 9C Customs Tariff Act

Alok Industries Limited Versus Designated Authority, Directorate General of Antidumping & Allied Duties

The Tribunal rejected the appeal filed by Alok Industries Limited challenging the Designated Authority's Final Findings due to the appellant's failure to ... Application for condoning the delay in filing the appeal - time limitation as per Section 9C of the Customs Tariff Act, 1975 - HELD THAT:- It is true that this Tribunal in M/S PANASONIC ENERGY INDIA CO. LTD., M/S ASSOCIATION OF INDIAN DRY CELL MANUFACTURERS, M/S EVEREADY INDUSTRIES LIMITED AND M/S INDO NATIONAL LTD. VERSUS UNION OF INDIA/DA [2017 (9) TMI 63 - CESTAT NEW DELHI] held that an appeal cannot be filed before the Tribunal against a negative determination by the Designated Authority, but in such a situation when the view of the Tribunal was very clear, nothing prevented the Appellant from filing a Writ Petition before the High Court to challenge the determination by the Designated Authority, if it felt aggrieved. However, the Appellant neither availed the remedy of filing a Writ Petition in the High Court nor did it file an appeal before this Tribunal within the stipulated time - Mere filing of a Writ Petition by another party or its pendency, cannot be said to be a good reason for the Appellant to not to file a Writ Petition before the appropriate High Court or an Appeal before the Tribunal within the time provided for. The Appellant had to itself avail the remedy. There was no reason for the Appellant to await the decision of a Writ Petition filed by some other party and that too not against the determination made by the Designated Authority on 25 January, 2018. If the Appellant was really aggrieved by the negative determination by the Designated Authority, it could have also filed a Writ petition before appropriate High Court. The present appeal was filed beyond 12 days from the time granted by the Bombay High Court in Writ Petition filed by another Domestic Industry - the explanation offered by the Appellant for condoning the delay is not satisfying - application dismissed. Issues:Delay in filing appeal before the Tribunal under Section 9C of the Customs Tariff Act, 1975.Analysis:The appeal was filed by Alok Industries Limited to challenge the Final Findings of the Designated Authority dated 25 January, 2018. The appeal was filed on 05 December, 2018, well beyond the 90-day period stipulated under Section 9C of the Customs Tariff Act. The Appellant sought to condone the delay in filing the appeal based on various reasons provided in their application.The Applicant/Appellant argued that they were under the impression that no appeal could be filed against a negative determination by the Designated Authority, citing a previous Tribunal decision. They waited for the Delhi High Court's judgment on the maintainability of a Writ Petition against the negative determination, which was delivered on 20 September, 2018. Subsequently, another constituent of the domestic industry filed a Writ Petition before the Bombay High Court, which granted them three weeks to file an appeal before the Tribunal. Based on this, the Appellant filed the present appeal on 05 December, 2018, beyond the time granted by the Bombay High Court.The Respondents objected to the application for condonation of delay, arguing that the delay was not bona fide as the Appellant waited for external judgments before filing the appeal. They contended that the Appellant only acted after the Bombay High Court granted time to another party to file an appeal. The Tribunal considered both parties' submissions and found that the Appellant did not take timely action to challenge the negative determination by the Designated Authority. The Tribunal noted that the Appellant could have filed a Writ Petition or an appeal within the stipulated time but chose to wait for decisions by other parties.The Tribunal held that the Appellant's reasons for delay were not satisfactory. It emphasized that the Appellant should have availed the remedy of filing a Writ Petition or an appeal within the prescribed period instead of waiting for judgments in unrelated cases. Consequently, the Tribunal rejected the application for condonation of delay and dismissed the appeal.In conclusion, the Tribunal's decision was based on the Appellant's failure to take prompt action to challenge the Designated Authority's negative determination within the statutory period. The Tribunal emphasized the importance of timely legal recourse and rejected the appeal due to the unsatisfactory explanation provided for the delay.