Misc. Order Nos. AD/M/2-4/2012(PB) in Application Nos. AD/M/1001 & 1037/2011 and AD/M/169/2012 in Appeal No. AD/1/2011. Case: Advance Petrochemical Co. Vs Designated Authority. CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal)
| Case Number | Misc. Order Nos. AD/M/2-4/2012(PB) in Application Nos. AD/M/1001 & 1037/2011 and AD/M/169/2012 in Appeal No. AD/1/2011 |
| Counsel | For Appellant: Shri R.S. Suri, Senior Advocate, Saurabh S. Sinha, Ms. Meenakshi Arora, Ms. Amrita, Ameet Singh, Ms. Pooja Sharma, Pramod Kumar Rai, Ms. Reena Khair, Ms. Anusuya Sinha, Atul Gupta, Ashish Gupta and Ajay Garg, Advocates |
| Judges | Ajit Bharihoke, President, Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) |
| Issue | CESTAT (Procedure) Rules, 1982 - Rule 41; Customs Act, 1962 - Section 129B |
| Citation | 2012 (280) ELT 56 (Tri. - Del.) |
| Judgement Date | May 14, 2012 |
| Court | CEGAT (Customs, Excise & Gold (Control) Appellate Tribunal) & CESTAT (Customs, Excise and Service Tax Appellate Tribunal) |
Order:
Chittaranjan Satapathy, Member (T)
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Miscellaneous Application No. AD/M/1001/2011 filed by M/s. Reliance Industries Ltd. (RIL) seeks interim directions to stay the proceedings before the Designated Authority (DA) pending decision in Review Application No. AD/M/1037/2011 filed by them on the same date in respect of Tribunal''s Final Order No. AD/31 to 51/2011 dated 11-8-2011 [2011 (272) ELT 127 (Tri.)]. Miscellaneous Application No. AD/M/169/2012 has been filed by the DA on 9-2-2012 seeking clarification as to whether it should continue with the post-decisional hearing directed under the said Final Order dated 11-8-2011.
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The brief facts of the case are that on 11-8-2011, the Tribunal passed two similar Final Orders vide Allied Enterprises v. Designated Authority - 2011 (272) ELT 127 and Huawei Tech Co. Ltd. v. Designated Authority - 2011 (273) ELT 293 disposing of 24 anti-dumping appeals just before the then Hon''ble President of the CESTAT laid down office on his retirement. The Tribunal was aware, as recorded in paragraph 12 of the order, that there were nearly 40 similar anti-dumping appeals before the Tribunal including the ones which were decided which involved similar issue where the successor DA had not given a fresh hearing before recording the final finding. In one of the appeals, the Hon''ble Bombay High Court had specified a strict time line for disposal of the appeal for which, the Tribunal had to issue the Final Order on 11-8-2011 before the retirement of the then Hon''ble President. This fact has been taken note of by the Hon''ble Supreme Court while considering the Tribunal''s Order dated 11-8-2011 vide Tejas Networks Ltd. v. Union of India - 2011 (273) ELT 161 (SC) in paragraphs 11 to 13 which is reproduced below:-
11. During the pendency of this appeal, the Designated Authority has passed its final findings also. Those final findings were questioned before the CESTAT by the parties to this lis. The CESTAT, though the special leave petition was pending before this Court, maybe because of the directions issued by the Bombay High Court, has disposed of the appeal by remanding the matter to the Designated Authority.
12. In view of these developments, in our opinion, it may not be necessary for this Court to go into the issues raised by the appellant herein. All those issues can be agitated by the parties before the Designated Authority itself.
13. In view of the above, the appeal is disposed of as having become infructuous. The Designated Authority now will implement the orders passed by the CESTAT dated 11-8-2011 within the time granted. While doing so, the Designated Authority will not be influenced by any of the observations made by the Andhra Pradesh High Court in Writ Petition No. 22155 of 2009 dated 22-1-2010.
The Hon''ble Supreme Court has also reproduced paragraph 15 of the Tribunal''s order in paragraph 6 of its order by which the appeals were remanded to the DA for affording post-decisional hearing to the appellants. The respondent-domestic industry and other interested parties were also allowed to participate in such post-decisional hearing and all the connected miscellaneous applications and stay petitions were disposed of since the main appeals were remanded.
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For completeness sake, we reproduce below paragraphs 12, 13 and 15 of the Tribunal''s order in the case of Allied Enterprises (supra):-
12. The questions raised before us in these numerous appeals and in several other appeals pending before the Tribunal (totally numbering about 40 appeals) involve serious economic consequences. In all the cases relating to these appeals, the successor DA has not given a fresh hearing as per the prevailing practice in the Ministry of Commerce. Now the Hon''ble Supreme Court in ATMA (supra) disapproves such a practice. We are sure, in the future, the successor DA would adhere to the law laid down by the Hon''ble Supreme Court and grant fresh hearings. But should the domestic industry be left to suffer irreparable injury caused by dumping for no fault attributed to it which would be the outcome if the prayers in these and similar pending appeals are granted by merely setting aside the final findings and consequently removing the anti-dumping duties imposed by the Government based on such findings in regard to dumping and injury caused by such dumping.
13. We do not think such an outcome will be just for the domestic industry which is not at fault nor it will be in the public or economic interest of the country as a whole. We think it would be just and fair for everyone if the appeals are allowed by way of remand to the DA for affording post-decisional hearings to the appellants and for making such modifications to the final findings as may be necessary as a result of such...
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