Whether the Tribunal had inherent power to review under Rule 41 of CESTAT (Procedure) Rules, 1982?

PJ/Case Laws?2012-13/1156

Case:- ADVANCE PETROCHEMICALS CO. VERSUS DESIGNATED AUTHORITY
Citation: - 2012 (280) E.L.T. 56 (Tri- Del)
Issue: Whether the Tribunal had inherent power to review under Rule 41 of CESTAT (Procedure) Rules, 1982?

Brief fact: - On 11-8-2011, the Tribunal passed two similar final order vide Allied enterprises Vs Designated Authority – 2011 (273) (272) E.L.T. 127 and Huawei Tech Co. Ltd vs Designated Authority- 2011 (273) E.L.T. 293 disposing of 24 Anti-Dumping appeal just before the then Hon’ble President of the CESTAT laid down office on retirement. The Tribunal was aware, as recorded in Paragraph 12 of the order, that there were nearly 40 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 Appeal, the Hon’ble Bombay High Court has specified a strict timeline for disposal of the appeal for which, the Tribunal has to issue final order on 11-08-2011 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 order Dated 11-08-2011 vide Tejas network ltd vs. Union of India-2011 (273) E.L.T. 161 (S.C.) in paragraph 11 to 13. 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.
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 every-one 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 post- decisional hearings. It would also be fair if the respondent-domestic industry and other interested parties, if any, are allowed to participate in such post-decisional hearings. It goes without saying that any modifications made in the final findings would be considered by giving effect to the same by the government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. We think that a time' frame of six months from the date of this order will be appropriate to complete this process and that status quo should be maintained meanwhile."

"15. Accordingly we allow these appeals by remand to the DA for affording post-decisional hearing to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearing. The respondent-domestic industry and other interested parties, if any, shall also be allowed to participate in such post-decisional hearing. Any modifications made in the final findings would be considered by giving effect to the same by the Government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. This process shall be completed within 6 months from the date of this order and status quo shall be maintained meanwhile. Since we are allowing these appeals by remand, the related stay petitions, MAs and COs stand disposed off."

The present review petition No, AD/M/1037/2011 has been filed by the respondent-domestic industry RIL pursuant to the Hon'ble Supreme Court's order in their appeal against the Tribunal's aforecited order dated 11-8-2011 in the case of Allied Enterprises.
Appellant contention:- RIL argues inter alia that the Hon'ble Supreme Court vide its order dated 15-12-2011 has mandated review of the impugned final order. They also states that the Tribunal has inherent power to review its own order and they cites the Hon'ble Supreme Court's decision in the case of Sunitadevi Singhania Hospital Trust v. Union of India - 2009 (233) E.L.T. 295 (S.C.) to support her argument. They further states that the decision of the Hon'ble Supreme Court in the case of Automotive 'Tyre Manufacturers Association (ATMA) v. Designated Authority - 2011 (263) E.L.T. 481 (S.C.) is not applicable to the present case as the appellants did not ask for a fresh hearing by the successor DA. They were also non-cooperative exporters and hence not entitled to any hearing. Hence they plead that the appeal should not have been allowed by way of remand for post-decisional hearing. They further states that RIL had requested for delinking the appeal as it was allowed in the case of M/s. Huazvei. It had filed a separate appeal for enhancement of the anti-dumping duty and by not delinking the case of M/s. Advanced Petrochemical Co. (APC) from rest of the appeals and by not taking up R1L's appeal while hearing the appeal of APC, RIL has been prejudiced as it has been presented with a fait accompli and its appeal has been rendered infructuous. They also points out that, the appeal of APC was not ripe for hearing as they had not served notice on all the interested parties. The learned Senior Advocate appearing for M/s. Haldia Petrochemical (HP) states that HP has similar interest in the case as RIL being another domestic producer. He adopts the arguments of the learned counsel of RIL and further states that HP was allowed to make submissions on a future date but the appeal of APC was decided before that date causing prejudice to HP. learned Counsel appearing for M/s. Saudi Arabia Basic Indus. Corpon. challenges the review petition on various grounds :- No prejudice has been caused by the impugned order passed by the Tribunal to any of the parties as the matter has only been remanded for post-decisional hearing while continuing the anti-dumping duties, and the notification imposing anti-dumping duty has not been withdrawn (except that the Government of India in a separate action has withdrawn anti-dumping duty in respect of export from Saudi Arabia from a subsequent date which is unrelated to Tribunal's order). (ii) The appeal filed by RIL was not competent to be heard on the date the appeal of APC was taken up for hearing. APC had also filed an early hearing application and it had opted for its appeal to be taken up together with other appeals involving the same issue of the successor DA not giving a fresh hearing. (iii) The RIL was represented by another learned counsel while the Tribunal heard the entire matter over several days and also offered his arguments. (iv) The arguments against ATMA (supra) decision not being applicable in all cases were heard by the Tribunal for over two days. The learned counsel representing RIL had not objected at that time appeal of APC should not be taken up on the ground that all interested parties were not served notices. (v) The Tribunal has no power of reviewing its own order. Under the Customs Act, it has powers of rectification for which applications have to be filed within a period of six months. Under the Customs Tariff Act, 1975, the power of rectification has not been made applicable in respect of anti-dumping appeal. Rule 31A of the CESTAT (Procedure) Rules, 1982 deals with hearing of applications for rectification of mistake, but this rule has not been made a part of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996 vide Rule 7 thereof. Only Rule 20 of the CESTAT (Procedure) Rules, 1982 dealing with recall of appeals dismissed for de-fault has been made applicable under Rule 7 of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996. Hence, the Tribunal cannot review its own order.

Reasoning of Judgment: The applicant domestic industries RIL and HP are free to raise all the questions raised in their review petition and in the appeals before the Tribunal including the question of non-cooperating exporter at the time of post-decisional haring before the DA and if they are aggrieved by the final finding given by the DA thereafter, they would not be remediless as they are free to file appeals against the fresh orders passed by the DA. The review petition filed by RIL is, therefore, dismissed as not maintainable. The miscellaneous application for issue of interim direction to the DA pending the review petition does not survive and the same is also dismissed. As regards the miscellaneous application filed by the DA for seeking clarification regarding continuance of post-decisional hearing, we are of the view that there was no bar on the DA to continue the post-decisional hearing and to complete the same within the time limit specified. However, the DA appears to have entertained a doubt in this regard in view of the review petition filed by RIL before the Tribunal and also for the reason that the Government of India has subsequently revoked anti-dumping duty in respect of imports from Saudi Arabia with effect from 30-12-2011. The Principal Bench, New Delhi (CESTAT) find that the anti-dumping duty has not been revoked in respect of all the countries and further, in respect of Saudi Arabia, the anti-dumping duty has been revoked only from a subsequent date i.e. from 30- 12-2011. As such, the post-decisional hearing is required to be undertaken by the DA in respect of the anti-dumping levy for the period it was in force in respect of the exports from Saudi Arabia as well as for exports from other countries for the full period. Moreover, as stated above, the domestic industry seeking enhancement of the anti-dumping, duty is also required to be heard in respect of their claim at the post-decisional hearing. Since the six month period is already over, we extend the same by a period of another six months from the date the initial six month period has expired to enable the DA to carry out the direction contained in the final order of the Tribunal dated 11-8-2011.

Decision: -Application dismissed

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PJ/Case Laws?2012-13/1156

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