TaxTMI 
TaxTMI 
TaxTMI 
2015 (4) TMI 66
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.... Korea RP and Thailand and for setting aside the Preliminary Finding dated 13.01.2013 and the impugned Antidumping Duty Notification No.15/2014-Customs (ADD) dated 11.04.2014. Then, WP(C) 3250/2014 and WP(C) 3251/2014 were filed (one each) by the said petitioners, inter alia, seeking the quashing of the Notice bearing F.No.354/241/2012-TRU dated 30.04.2014 and the letter bearing F.No.14/7/2012- DGAD dated 08.05.2014. Finally, WP(C) 633/2015 and WP(C) 634/2015 were filed (one each) by the said petitioners, inter alia, praying for the setting aside of the Final Finding No.14/7/2012-DGAD dated 09.06.2014 of the Designated Authority. Points for consideration: 2. Essentially, two points arise for our consideration in these writ petitions: 1. Whether the ex post facto extension of the investigation period granted by the Central Government on 30.04.2014 extending the period of investigation from 09.03.2014 to 09.06.2014 was valid? 2. Whether the petitioners, who are interested parties, were given an adequate opportunity of hearing by the Designated Authority before he issued the impugned Final Finding dated 09.06.2014? Background facts: 3. Before we examine these points, it would be....
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....er or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand - reg. The undersigned is directed to refer to your D.O. Letter No. 14/7/2012-DGAD dated 03.03.2014 on the above subject. 2. In this connection, it is to inform you that the Competent Authority in the Ministry of Finance has accorded approval for extension of time for completion of investigation by 3 months from 09.03.2014 to 09.06.2014, in the case of Cast Aluminum Alloy Wheels or Alloy Road Wheels used in Motor Vehicles, whether or not attached with their accessories, of a size in diameters ranging from 12 inches to 24 inches, originating in or exported from China PR, Korea RP and Thailand. (Akshay Joshi) Under Secretary (TRU) (Shri J.S. Deepak) Additional Secretary & Designated Authority, Department of Commerce, Ministry of Commerce & Industry, Udyog Bhawan, New Delhi" 8. This was followed by a communication dated 08.05.2014 to all the interested parties as under: "F.No.14/7/2012-DGAD Government of India Ministry of Commerce and Industry Department of Commerce Directorate General of Anti-dumping and A....
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....WPC 634/2015) were filed by the petitioners, inter alia, challenging the Final Finding dated 09.06.2014. Point No.1 12. Mr Balbir Singh, the learned counsel for the petitioners, made the following submissions: a) The investigation was initiated on 10.12.2012. Rule 17(1) of the said Rules mandates completion of the investigation and issuance of Final Findings within one year from the date of initiation. Although this period of one year may be extended by the Central Government in terms of the first proviso to Rule 17(1) of the said Rules, the same has to be done before the expiry of the initial period and that, too, only when there exist "special circumstances". In the facts of the present case, the Central Government granted the first extension on 06.12.2013, prior to the expiration of the initial one year period, for a further period of three months expiring on 09.03.2014. But, the Central Government did not extend the time again before 09.03.2014 and allowed the investigation to lapse and the DA became functus officio. The ex-post facto extension granted only after 52 days on 30.04.2014 was illegal and without authority of law. Thus, after 09.03.2014, the DA did not have any j....
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....dministrative act based on exigencies of the case. A decision taken in regard to the extension of time to complete the investigation does not in any manner effect the right of the parties to the investigation. Therefore, the requirement of the respondent being hurt before granting any such extension, does not arise. 24. We notice that under the provision empowering the extension of time by the Central Government (proviso to Rule 17), there is no requirement that the concerned parties to the investigation should be heard before extending the time. We agree with the appellant that this decision in question is an administrative decision based on exigencies of the case. The statute governing the investigation into dumping by an Authority has provided an elaborate procedure and wherever the concerned parties are entitled to notice, it has specifically provided for the same. In the absence of any such requirement to issue notice in proviso to Rule 17, we are of the opinion that the contention of the respondent that it is entitled to any notice prior to the exercise of the power under the proviso to Rule 17 by the Central Government, is devoid of any merit. In the instant case, the inves....
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....on by six months:- "Provided that the Central Government may, in its discretion in special circumstances extend further the aforesaid period of one year by six months." b) The decision of the Central Government to extend the period of investigation under Rule 17, is an administrative decision based on the exigencies of a case. This provision is to ensure "continuity" and to achieve the main objective of completing the investigation. c) The Supreme Court in Haldor Topsoe (supra) (at para 25) held that:- "...under the provision empowering the extension of time by the Central Government (proviso to Rule 17), there is no requirement that the parties concerned to the investigation should be heard before extending the time. We agree with the appellant that this decision in question is an administrative decision based on exigencies of the case." 15. There is no stipulation in the said Act or the said Rules that extension must be granted prior to expiry of the first extension. Moreover, there is no bar under the Act or the Rules for the Central Government to exercise the power after expiry of the initial period of investigation but within the overall period of one year and six months.....
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....entire investigation into dumping, a futile exercise. The interpretation proposed by the petitioner would be contrary to the object and purpose of the provisions and would wreak havoc. b) The decision under the first proviso to Rule 17(1) to extend time is an administrative decision as held in Haldor Topsoe (supra). c) The contention of the petitioners that once the period of 12 months expire, the Central Government cannot grant any extension is not tenable, since such an interpretation is not borne out from a plain reading of the first proviso to Rule 17(1) of the said Rules. The Rule only stipulates a period of 12 months for the period of investigation and further period of 6 months for which Central Government may grant extension. The Rules are silent as to whether such an extension must be granted before the expiry of 12 months or after the expiry of 12 months. In other words there is nothing in the Rules that prevents the Central Government from extending the period by six months after the expiry of the period of one year. d) While the use of the word "shall" in Rule 17 makes the time period mandatory. But, at the same time, the proviso clearly allows for the extension of t....
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....stry in India; (iii) a casual link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy: Provided that the Central Government may, in its discretion in special circumstances extend further the aforesaid period of one year by six months: Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year. xxxxx xxxxx xxxxx xxxxx" (emphasis supplied) 21. A plain reading of Rule 17(1) makes it clear that the DA is required to submit the Final Finding to the Central Government within one year from the date of initiation of an investigation. By virtue of the first proviso to Rule 17(1)(a), this period of one year can, however, be extended by the Central Government, in its discretion in special circumstances, by six months. It is the....
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....e we do not see any bar or prohibition in the said Rule 17 which would prevent the Central Government from extending the period of investigation even after the initial period of one year or the extended period has expired provided it is granted within the overall period of eighteen months. It is not stipulated in the first proviso to Rule 17(1)(a) that the extension must be granted during the initial period or an extended period. And, we cannot read any such stipulation. We, therefore, do not agree with Mr Balbir Singh that the extension must be granted within the initial period or extended period, as the case may be, otherwise the investigation will lapse automatically at the end of such period. In our view, at the end of the initial period or an extended period, if the period of eighteen months has not expired, the investigation would, in a sense, be suspended till it is revived by an ex post facto extension within the overall period of eighteen months. We are mindful of the argument of Mr Balbir Singh that suspension is contemplated only the circumstances stipulated in Rule 15 of the said Rules. But, there is a difference. In the case of a suspension of investigation under Rule ....
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.... and (ii) written submissions cannot substitute oral hearings. Reliance was placed on Automotive Tyre Manufacturers Association v. the Designated Authority & Others:(2011) 2 SCC 258. (hereinafter referred to at the ATMA case). c) Furthermore, comments to the disclosure statement issued by the DA on 05.06.2014 were required to be filed on or before 10:30 a.m. on 09.06.2014 (Monday), that is, on the terminal date for issuance of the Final Finding. The petitioner filed its elaborate comments on 09.06.2014, but many of the issues were either not considered in the final findings or were incorrectly addressed in the Final Finding because the DA could not have issued the impugned Final Finding of 91 pages within a matter of hours after considering/understanding the comments of all the interested parties and recording the reasons for accepting/rejecting submissions and then typing/ proof reading and preparing the non-confidential version of the final finding. If the Final Finding was already ready and receipt of replies/submissions were left only as a formality, then the Final Finding is in violation of principles of natural justice. d) The hearing required should not be an empty formali....
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....le of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise." 28. In the present case, the DA, on 29.05.2014, scheduled the 2nd oral hearing for the 30.05.2014, in the light of the ATMA case, considering the limited time available with the DA to conclude investigation by 09.06.2014 in terms of Rule 17 of the said Rules. 29. Mr Gopal Jain, senior advocate, appearing for Synergies Castings Ltd submitted as follows:- a) The DA followed the entire procedure prescribed under the said Act as well as the said Rules. b) After appointment of the new DA, a second oral hearing was conducted in compliance with the decision of the Supreme Court in the ATMA case. The new DA, who was appointed on 29.05.2014, had 12 days to complete the investigation and issue the final findings (i.e., from 29.05.2014 to 09.....
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....ase." Again, in Manohar Lal Sharma v. The Principal Secretary: (2014) 9 SCC 614, the Supreme Court held that:- "The principles of natural justice, though universal, must be realistically and pragmatically applied." g) The approach of the DA was a careful balancing act between following the prescribed procedure and ensuring that the entire data driven / fact finding investigation does not lapse with the expiry of the extension granted under Rule 17. In this manner, the available period was used in a fair and reasonable manner, and the integrity of the decision making process was maintained. 30. Ms Meenakshi Arora, the learned senior counsel for the intervener, endorsed the submissions of the respondents. Discussion: 31. It has been settled by the Supreme Court in the ATMA case that the DA carries out a quasi-judicial function and that he must give a reasonable opportunity of hearing to interested parties before he arrives at the Final Finding. In fact, the DA determines a "lis" between persons supporting the levy of duty and those opposing the said levy. The Supreme Court, inter alia, held as under: "80. It is thus, well settled that unless a statutory provision, either speci....
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....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 [AIR 1959 SC 308], if one person hears and other decides, then personal hearing becomes an empty formality. 84. In the present case, admittedly, the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA, who had no occasion to hear the appellants herein. In our opinion, the final order passed by the new DA offends the basic principle of natural justice. Thus, the impugned notification having been issued on the basis of the final findings of the DA, who failed to follow the principles of natural justice, cannot be sustained. It is quashed accordingly." (underlining added) 32. After....