TaxTMI 
TaxTMI 
2011 (8) TMI 923
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....ree appeals arise from the same final finding of facts and the consequential notification issued by the Government and therefore, these were heard together and the present common order is being passed. In all these appeals a common issue is sought to be raised regarding violation of principles of natural justice while placing reliance on the decision of the Hon'ble Supreme Court in the matter of Automotive Tyre Manufacturers Association (ATMA) vs. Designated Authority and Others reported in 2011 (236) ELT 481 (SC). It is the contention of the appellants that the Designated Authority did not give public hearing before deciding the matter inasmuch as while the hearings were given by one person in his capacity as Designated Authority, the Final Findings were delivered by another person in his capacity as Designated Authority. There is also a related issue raised in the matter that once the principles of natural justice stand violated and the period prescribed under the law for completion of the investigation expires then question of remand of the matter for further investigation and compliance of the provisions of law beyond the prescribed period under the statutory provisions does no....
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....caused to domestic industry by such dumping. 5. The anti-dumping investigation conducted by the DA in the Commerce Ministry is quite different from the adjudication of cases done by Customs and Excise Commissioners. It is common practice in , the Customs and Excise Department that if one Commissioner gets transferred after hearing a case, his successor offers a fresh hearing before adjudicating a case. It appears there was no such practice in investigating anti-dumping cases by the DA, usually an IAS officer. 6. Rule 6(6) of the Anti-dumping Rules also states that what is orally presented before the DA should be taken into consideration only when the same is subsequently reproduced in writing. Understandably so, as the anti-dumping investigations involve a whole lot of calculations (for determining normal value, export price, dumping margin, injury, price underselling, price undercutting, non-injurious price etc. etc.) and comparison of a whole lot of economic factors such as production, sales, market share, cost of raw materials, productivity, profit, return on investments, cash flow, inventories, employment, wages etc. There are a number of officials involved who assist the DA ....
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....e DA cannot take a fresh decision as the 18 month's time limit prescribed for him is long over. 11. It has been argued by the learned Advocates representing domestic industry that for no fault of theirs, if anti-dumping duty is set aside, injury to the domestic industry would continue unabated on account of dumping. It has also been argued on behalf of domestic industry and the DA that the foreign exporters and Indian importers have not demonstrated how they have been prejudiced by the new DA not granting fresh hearings when all that they have submitted in writing are on record and the same have been considered by the DA. Further, it has been submitted that the Tribunal has the power of remand and that the law cannot be interpreted in a way to render Courts Tribunals powerless and the appellants before them remediless. It has also been argued that the 18 months period prescribed for completing investigation by the DA is a limit on original investigation, not when matters are remanded by Courts / Tribunals for further consideration. 12. The questions raised before us in these numerous appeals and in several other appeals pending before the Tribunal (totally numbering about 40 appe....
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.... be said to automatically vitiate the enquiry or order passed. The complaint should be examined from the perspective of prejudice. Procedural provisions may be directory or mandatory. In the case of anti-dumping investigation, the oral hearing cannot be said to be mandatory as the same requires to be followed by written submissions, consideration of which is mandatory. (iii) Rule 6(6), 6(7), 6(8) of the Anti-dumping Rules read as under:- "6(6) : The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. 6(7) : The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. 6(8) : In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such....
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....ation of India Vs. Designated Authority - Final Order No. AD/12/2011 dated 17.6.2011. (viii) The power of the Tribunal under Section 9C(3) of the Customs Tariff Act, 1975 (CTA) reads as under:- "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." A similar provision earlier contained in the Customs Act, 1962 in respect of the powers of the Commissioner (Appeals) was interpreted by the Hon'ble Supreme Court in the case of Union of India Vs. Umesh Dhaimode - 1998 (98) ELT 584 (SC) - CUS holding that the appellate authority has the power of remand. Both provisions being pari materia, ratio of Umesh Dhaimode (supra) will be applicable for interpreting Section 9C(3) of the CTA. Hence the power of remand of the Tribunal in respect of anti-dumping cases cannot be questioned. (ix) Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 specifically provides that the Tribunal may make such orders or give such directions as may be necessary or expedient to give effect in relation to its orders or to ....