TaxTMI 
TaxTMI 
2015 (3) TMI 729
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....a had been exported to India from Russia below its associated normal value resulting in dumping of the product and that, as a consequence, the domestic industry had suffered material injury in respect of the said goods. 2. The DA recommended that definitive anti-dumping duty as per the amounts specified in the table below be imposed from the date of the Notification to be issued by the Central Government on all imports of Penta originating in or exported from Russia: Duty Table S.No Heading Description of goods Specification Country of origin Country of export Producer Exporter Duty Amount Unit of measurement Currency 1 2905 42 Pentaerythritol Any grade Russia Russia Any Any 474 MT US$ 2 2905 42 Pentaerythritol Any grade Russia Any Any Any 474 MT US$ 3 2905 42 Pentaerythritol Any grade Any Russia Any Any 474 MT US$ Point in issue 3. On 13.02.2015 when this matter came up for hearing, we had noted that the only point urged on the part of the petitioner was that the petitioner, being an interested party, was not given an opportunity of ora....
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.... initiated an investigation into the alleged dumping, and consequent injury to the domestic industry, in terms of Rule 5 of the said Rules, to determine the existence, degree and effect of the alleged dumping and to recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the injury to the domestic industry. The period of investigation was specified as 01.01.2012 to 31.12.2012 (12 months). The injury investigation period was, however, specified to cover the periods April 2009 - March 2010, April 2010 - March 2011, April 2011 - March 2012 and the period of investigation. The Initiation Notification invited submissions from "interested parties" in the following manner:- "SUBMISSION OF INFORMATION 13. The exporters in the subject country, Government through the Embassy, importers in India known to be concerned with this investigation and the domestic industry are being addressed separately to submit relevant information in the form and manner prescribed and to make their views known to the Designated Authority at the following address: The Designated Authority Ministry of Commerce & Industry Department of Commerce Directorate General o....
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.... not receive any such notice and that it came to learn of the hearing of 09.09.2014 only from the Disclosure Statement dated 21.10.2014. It is admitted by respondent no.2 that that the notice dated 08.09.2014 was not issued to the petitioner. But, it is contended by the said respondent as also by respondent no.3 that it was not at all necessary to issue such a notice to the petitioner as it was not an "interested party". It was also contended that the non-grant of a hearing to the petitioner did not, in any event, cause any prejudice to the petitioner as all of its submissions were considered by the DA in his final findings. 11. As pointed out above, the petitioner came to know that a hearing was granted, though not to the petitioner, on 09.09.2014 from the disclosure statement dated 21.10.2014. Through the Disclosure Statement, respondent no.2 invited replies from interested parties in response to it. The replies/ comments were required to be sent by 27.10.2014. The petitioner submitted its response to the Disclosure Statement on 27.10.2014. The petitioner, inter alia, complained about the fact that despite being "acknowledged" as an interested party, it was not given any notic....
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....s "during the period of investigation", such party can still be treated as an "interested party" in terms of Rule 2(c) of the said Rules. For persuasive value, Mr Balbir Singh referred to the following decisions of the Central Excise and Service Tax Appellate Tribunal (CESTAT):- (a) Lubrizol (India) Pvt. Ltd. v. Designated Authority: 2005 (187) ELT 402 (Tri.-Del) (para 13.3); (b) Fragrances and Flavours of India v. Designated Authority: 2011 (270) ELT 733 (Tri.-Del.) (para 11). 15. In Lubrizol (supra), CESTAT was, inter alia, considering the preliminary objection raised by the respondent therein that the appeal under section 9C of the said Act was not maintainable as the appellant therein was not a "person aggrieved" because during the period of investigation it had no imports and that it was not even an "interested party" by virtue of any post-investigation imports. On this issue, CESTAT had this to say:- "13.3 The expression "interested party" has an inclusive definition in Rule 2(c) and includes under sub-clause (i), inter alia, the importer of an article subject to investigation for being dumped in India. The preliminary objection is based on this definition, which ....
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....he proposition that Rule 2(c) refers to the product under consideration from the subject country gets established by the use of the word "article subject to investigation for being dumped in India". It was also submitted that Section 9A(1) refers to a specific article and a specific country of export or origin. And, the margin of dumping which is to be ascertained under section 9A(6) is also with reference to a specific article from a specific country of export or origin and in respect of the relevant period. 17. Mr Sethi further submitted that Rule 22 of the said Rules entitles an exporter, who has not exported the product during the period of investigation, for a new shipper review in respect of an individual margin of dumping. He also emphasized that Annexure- I (Principles governing the determination of normal value, export price and margin of dumping) and Annexure III (Principles for determination of non-injurious price) to the said Rules have reference to the period of investigation. It was thus submitted that import of an article by an entity from other countries not under investigation does not entitle such party to acquire the rights of an interested party defined under....
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.... "interested party" within the meaning of Rule 2(c) of the said Rules and was therefore not entitled to an oral hearing. It was also contended that, in any event, all the responses and comments of the petitioner were considered by the DA before he arrived at his concluding recommendations in the Final Findings. Submissions in rejoinder on behalf of the petitioner 22. In rejoinder, Mr Balbir Singh submitted that the decisions in Geeta Vinay Impex (supra) and Linear Technologies (India) Pvt. Ltd (supra) are not applicable to the facts of the present case inasmuch as the appellants therein were not importing the goods either before the investigation or during the period of investigation and they had also not participated in the proceedings before the DA. Whereas, in the present case, the Petitioner has actively participated in the Antidumping investigation. It has submitted responses, comments and answered the detailed questionnaire. 23. It was also submitted that the submissions made by the Respondents so as to suggest that, as during the period of investigation, the Petitioner had no imports from Russia and, therefore, they had not qualified as an "interested party", is not co....
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....interested party" includes - (i) an exporter or a foreign producer or the importer of an article subject to investigation for being dumped in India, or a trader or business association a majority of the members of which are producers, exporters or importers of such an article; (ii) the government of the exporting country; and (iii) a producer of the like article in India or a trade and business association a majority of the members of which produce the like article in India; xxxx xxxx xxxx xxxx xxxx" It is apparent that the definition is an "includes" definition and, therefore, it cannot be regarded as having a restrictive meaning. Such a definition not only refers to the normal, natural and ordinary meaning of the expression sought to be defined but also to other things which may not have otherwise fallen within the expression. In CCT v. T.T.K. Health Care Ltd: (2007) 11 SCC 796 (at page 799) the Supreme Court observed as under:- "13. In Bharat Coop. Bank (Mumbai) Ltd. v. Employees Union [(2007) 4 SCC 685 : (2007) 2 SCC (L&S) 82 : (2007) 5 Scale 57] this Court has held that when the word "includes" is used in the definition, as is the case under Section 2(g) o....
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....e...." (underlining added) 27. The same view has been expressed by the Supreme Court in Ramanlal Bhailal Patel v. State of Gujarat: (2008) 5 SCC 449 (at page 461) as follows: "23. The word "person" is defined in the Act, but it is an inclusive definition, that is, "a person includes a joint family". Where the definition is an inclusive definition, the use of the word "includes" indicates an intention to enlarge the meaning of the word used in the statute. Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word "includes", as contrasted from "means", the word defined not only bears its ordinary, popular and natural meaning, but in addition also bears the extended statutory meaning (see S.K. Gupta v. K.P. Jain [(1979) 3 SCC 54 : AIR 1979 SC 734] following Dilworth v. Commr. of Stamps [1899 AC 99 : (1895-99) All ER Rep Ext 1576 : 79 LT 473] and Jobbins v. Middlesex Country Council [(1949) 1 KB 142 : (1948) 2 All ER 610 (CA)] )." (underlining added) 28. Viewed in this li....
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....ed" within the contemplation of the proviso is, whether he is likely to be affected by the decision or the result of the proceedings." 29. Applying this test, it is evident that the petitioner would be an "interested party". In fact, as pointed out by Mr Balbir Singh, even the DA considered the petitioner to be an "interested party" and treated it as such in the impugned Final Findings. We are also in agreement with the views of CESTAT in the Lubrizol case with regard to the meaning to be ascribed to the expression "interested party". The CESTAT decisions cited by Mr Sethi are clearly distinguishable as in those cases the concerned party had not participated in the investigation conducted by the DA. Therefore, the answer to question no.1 is that the petitioner falls within the expression "interested party" as defined in Rule 2(c) of the said Rules. Question No.2 Submissions of parties 30. It was submitted by Mr Balbir Singh that the Final Findings dated 11.12.2014 have been arrived at in complete violation of principles of natural justice and the law laid down by the Supreme Court. He submitted that public hearing under Rule 6(6) of the said Rules was held on 09.09.2014....
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....eme Court was whether or not the decision of the DA in that case was in breach of the principles of natural justice, resulting in vitiating the subject notification under Rule 18 of the said Rules? In this context the Supreme Court held as under:- "80. It is thus, well settled that unless a statutory provision, either specifically or by necessary implication excludes the application of principles of natural justice, because in that event the court would not ignore the legislative mandate, the requirement of giving reasonable opportunity of being heard before an order is made, is generally read into the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative 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 p....