TaxTMI 
TaxTMI 
2012 (10) TMI 761
X X X X Extracts X X X X
X X X X Extracts X X X X
....ication No. 73/2009 issued by the Government dated 22nd June 2009 as well as Final Findings dated 6th May 2010 and the consequential Notification issued by the Government on 7th July 2010 be quashed and set aside. 2. The litigation has a chequered history. Facts, in brief, may be noted at the outset. 2.1 Respondent No. 3 herein filed an Application before the Designated Authority in August 2008 alleging dumping in case of import of Diethyl Thio Phosphoryl Chloride (hereinafter to be referred to as, "the said Chemical") originating in or exported from China. The Directorate General of Anti-Dumping & Allied Duties-the respondent no. 2 herein issued a Public Notice dated 17th November 2008 initiating investigation into the such allegations. 2.2 The present petitioners filed Special Civil Application No. 2201 of 2009 challenging such initiation of Anti-dumping investigation. Such petition was, however, disposed of as withdrawn on 8th April 2009 in light of the statement made by the respondent no. 2 that the preliminary objections raised by the petitioners as to the jurisdiction shall be dealt with and decided by the Designated Authority within four weeks, after hearin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to be liable to pay anti-dumping duty on the import of subject goods that may be made, hereinafter from China, while recording final finding on this issue, they will pay such anti-dumping duty subject to their right to appeal and obtaining stay against such duty from any competent Court or Tribunal." 2.5 It appears that the judgment of the High Court dated 9th October 2009 gave rise to three separate appeals before the Hon'ble Supreme Court. The private respondents herein i.e., the domestic industry challenged the judgment. Such judgment was independently challenged by the Union of India also. Even the petitioners to the extent that their contentions were not accepted by the High Court, approached the Supreme Court against this very judgment. 2.6 It appears that the judgment of the High Court was stayed by the Apex Court. Imposition of provisional Anti-dumping Duty was thus restored. During the pendency of such proceedings, the Designated Authority held a Public Hearing on 15th October 2009 and submitted its final findings and Union of India issued Notification dated 7th July 2010 imposing Anti-dumping duty in terms of such recommendations. 2.7 In view of these ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ations made by the Designated Authority have been examined and accepted. It is also contended that the entire exercise is time bound and ample opportunities were given to all the interested parties. 3.2 On behalf of private respondents also, detail replies have been filed to oppose the petition, mainly contending that the proper procedure was followed and that, even otherwise, alternative remedy is available to the petitioners. 3.3 Learned counsel appearing for both the sides requested us to take up the petition for final disposal at this stage. We have accordingly heard learned counsel for both sides at considerable length. 4. Learned Sr. counsel Mr. S.N Soparkar appearing with Shri Paresh Dave vehemently contended that the entire procedure was illegal. The newly appointed Designated Authority was duty bound to give fresh personal hearing to the petitioners and other interested parties; that he could not have relied on the personal hearing granted by the previous Designated Authority. Heavy reliance was placed on Rule 6(6) of the Rules as well as other statutory provisions contained in the said Rules. Reliance was also placed on the decision of the Apex Court in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lable, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principles of natural justice or where the order of proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point put to cut down this circle of forensic Whirlpool, we would reply on some old decisions of the evolutionary era of the constitutional law as they still hold the field." "20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction with....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rit petition." 4.8 Reliance was also placed on the decision in the case of Star Paper Mills Limited v. State of U.P & Ors. reported in [(2006) 10 SCC 201] in which, same view was reiterated. 4.9 Reference was made to judgment in case of Popcorn Entertainment & Anr. v. City Industrial Development Corporation &. Anr. reported in [(2007) 9 SCC 593], wherein, the Apex Court observed as under :- "We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong of the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corporation have been made out and accordingly the writ petition was cle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d of the State Sales Tax Act, the Apex Court found that the assessee had adequate redress against the wrongful acts of the Department. (iii) In the case of Champalal Binani v. The Commissioner of Income-Tax, West Bengal & Ors. reported in [1971 (3) SCC 20] wherein also, the Apex Court held that assessee should prefer appeal before the appellate authority to redress the grievance raised. (iv) In case of City & Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala & Ors. reported in [(2009) 1 SCC 168], wherein, the Apex Court observed as under :- "30. The Court while exercising its jurisdiction under Article 226 is duty bound to consider whether : (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or efficacious remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation;....
X X X X Extracts X X X X
X X X X Extracts X X X X
....orted in [1959 Suppl (1) SCR 319] that "one who hears, must decide'' has under gone a considerable change. 7.2 Reliance was also placed on the decision in the case of Pradyat Kumar Bose v. The Hon'ble the Chief Justice of Calcutta High Court reported in [(1955) 2 SCR 1331], wherein, the Apex Court upheld the decision of the Chief Justice of the High Court to dismiss a Judge of a subordinate Court on the basis of an inquiry conducted by some one else. 7.3 In case of Ossein & Gelatine Manufacturers' Association of India v. Modi Alkalies & Chemicals Limited & Anr., reported in [(1989) 4 SCC 264], wherein, it was observed that, "...Here the issue is one of grant of approval by the government and not any particular officer statutorily designated. It is also perfectly clear on the records that the officer who passed the order has taken full note of all the objections put forward by the petitioners. We are fully satisfied, therefore, that the requirements of natural justice have been fulfilled in the present case." 7.4 In case of an unreported judgment of the Bombay High Court in the matter of M/s. Huawei Technologies Company Limited v. Designated Authority, Director Gen....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e the injury to any industrial establishment in India on account of such alleged dumping. Rule 12 pertains to preliminary findings which the Designated Authority, upon conduct of investigation, has to submit on the basis of such preliminary findings. Under Rule 13, the Central Government is empowered to impose provisional duty. Rule 14 of the Rules pertains to termination of investigation by the Designated Authority under certain circumstances. Rule 15, on the other hand, permits the Designated Authority either to suspend or terminate an investigation. Rule 16 of the Rules pertains to disclosure of information and reads as under :- "Rule 16. Disclosure of Information. - The designated authority shall, before giving its final findings, inform all interested parties to the essential facts under consideration which form the basis of its decision." Rule 17 pertains to Final findings that the Designated Authority has to submit. The said Rule 17 reads as under :-. "RULE 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 sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....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 timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 10.2 From the above, it can be seen that within one year of the date of initiation of an investigation, the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the predecessor Designated Authority, there was a clear breach of principles of natural justice. 13. On the other hand, counsel for the respondents vehemently contended before us that the petitioners have no right to personal hearing at the stage, after the Designated Authority had informed all the interested parties of the essential facts under consideration which formed the basis of its decision, as provided under Rule 16 of the Rules. It was contended that though no such hearing was necessary, the previous Designated Authority had granted such personal hearing. It was, therefore, contended that in absence of any statutory right to personal hearing, the principle that "one who hears must decide" cannot be pressed in service. 14. We are of the view that the issue is no longer res integra. The decision of the Apex Court in the case of Automotive Tyre Manufacturers' Association (supra) squarely covers the present position. Before the Apex Court, in the said case, primarily two issues were debated. Firstly, the contention of the authorities was with respect to the nature of powers being exercised under the said Rules. The Tribunal held that the imposition of anti-dumpi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nistrative or quasi judicial. It is equally trite that the concept of natural justice can neither be put in a straitjacket nor 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 question of application of the said principle can be properly determined. 83. The procedure prescribed in the 1995 Rules imposes a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. A personal hearing enables the authority concerned to watch the demeanour of the witnesses, etc., and also clear up his doubts during the course of the arguments. Moreover, it was also observed in Gullapalli, if ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nore availability of alternative remedy and entertain the writ petition. Such circumstances are (a) breach of fundamental rights; (b) violation of principles of natural justice; or (c) if it is found that the order or action of the authority inherently lacks jurisdiction. This has been discussed and laid down by the Apex Court in number of decisions, in particular in case of Whrilphool Corporation (supra). It is, therefore, not necessary to refer to series of judgments of the Apex Court on the issue. Even otherwise, we fail to see what different view the CESTAT could take in light of the decision of the Apex Court in the case of Automotive Tyre Manufacturers' Association (supra). 16.1 The next contention pertains to conduct of the petitioners. As noted, it was vehemently contended before us that the petitioners belatedly demanded hearing knowing fully well that the proceedings were rigidly time-bound. We may recall that the previous Designated Authority was changed on 4th January 2010. The petitioners wrote their first letter requesting for a fresh personal hearing on 7th April 2010, followed by a detailed representation vide communication dated 20th April 2010. We are unable....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onal hearing, after change of the Designated Authority. We are also informed that to the newly appointed Designated Authority it was pointed out that on account of non-hearing, the number of issues have arisen. They had pointed out that in the Disclosure Statement there are omissions and lacunae. Their contentions have not been taken into account. We have not gone into details of these contentions. We, therefore, do not express any final opinion on these averments of the petitioner. We have only recorded such grievances to note that the petitioners have been urging that hearing by the new Designated Authority is not an empty formality. To our mind, it cannot be said that the petitioners suffered no prejudice. We have also noticed that the question of prejudice and need to establish such prejudice was also agitated before the Supreme Court in the case of Automotive Tyre Manufacturers' Association (supra). Despite such contentions, the Apex Court was pleased to strike down the final findings and the Notification imposing the anti-dumping duty. With respect to the refund claim of the appellants, however, the Apex Court declined the same on certain grounds, with which we are not concer....