Supreme Court of India
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATIONversusTHE DESIGNATED AUTHORITY & ORS.
- Citation
- 2011 INSC 22
- Decided
- 7 January 2011
- Disposal
- Case Partly allowed
- Bench
- D K JAIN
Holding
The Designated Authority is a quasi‑judicial body bound by natural‑justice principles, and its final order without a personal hearing is void, quashing the anti‑dumping duty notification.
Summary
The Automotive Tyre Manufacturers Association (ATMA) and its members imported Nylon Tyre Cord Fabric and sought relief from an anti‑dumping duty imposed on imports from China under the Customs Tariff Act, 1975. The Designated Authority (DA) investigated, issued provisional duty, and later, after a change of officer, recorded final findings and recommended a definitive duty without granting ATMA a personal hearing. The Customs, Excise and Service Tax Appellate Tribunal upheld the duty, holding that natural‑justice principles did not apply. The Supreme Court held that the DA performs quasi‑judicial functions and must observe the principles of natural justice; the failure to provide a personal hearing violated audi alteram partem, rendering the notification dated 27‑April‑2005 void. The Court also ruled that ATMA could not claim a refund of the duty because the burden had been passed on, invoking the doctrine of unjust enrichment.
Issues considered
- The nature of the Designated Authority's function: administrative or quasi‑judicial?
- Whether the DA's final order violated the principles of natural justice, particularly the right to a personal hearing.
- Whether importers are entitled to a refund of anti‑dumping duty on the ground of unjust enrichment.
Legislation cited
- Customs Act, 1962s. Section 129
- Customs Act, 1962 (Section 130E)
- Customs Tariff Act, 1975s. 9, s. 9A, s. 9A(3), s. 9C
- Customs Tariff (Identification, Assessment and Collection of Anti‑dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995s. Rule 10, s. Rule 11, s. Rule 12, s. Rule 13, s. Rule 15, s. Rule 17, s. Rule 18, s. Rule 20, s. Rule 21, s. Rule 4, s. Rule 5, s. Rule 6
Subjects
anti‑dumping dutynatural justiceaudi alteram partemquasi‑judicial functionDesignated Authorityrefund of dutyunjust enrichmentcustoms tariffprovisional dutyretrospective levy
Judgment
[2011) 1 S.C.R. 198
A AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION
v.
THE DESIGNATED AUTHORITY & ORS.
{CIVIL APPEAL NO. 949 OF 2006 ETC.)
JANUARY 7, 2011
B
[O.K. JAIN AND H.L. DATIU, JJ.]
Customs Tariff (Identification, Assessment and
Collection of Anti-Dumping Duty on Dumped Articles and for
C Determination of Injury) Rules, 1995:
Rules 4, 5, 6, 10 11 and 17 r/w s. 9 of Tariff Act -
Investigation and findings by Designated Authority as to
existence, degree and extent of alleged dumping,
D determination of normal value, export price and margin of
dumping and determination of injury -HELD : DA performs
quasi-judicial functions under the Tariff Act read with Rules
and is bound to act judicially -While determining the .
existence, degree and effect of the alleged dumping the DA
determines a '/is' between the persons supporting the levy of
E duty and those opposing the said levy -Customs Tariff Act,
1975 -s.9-C.
Rules 4, 5, 6, 10, 11 and 17 - Investigation as to
existence, degree and extent of alleged dumping and final
F finding thereon - Opportunity of oral hearing - HELD: In view
of the elaborate procedure prescribed in r. 6 which the DA is
obliged to adhere to, while conducting the investigation, duty
to follow the principles of natural justice is implicit in the
existence of power conferred on him 'under the Rules - The
G procedure prescribed in the Rules imposes a. duty on DA to
afford to all the parties, who have filed objectionand adduced
evidence, a personal hearing before taking a final decision
in the matter - Even written arguments are no substitute for
an oral hearing - In the instant case, the entire matter had
H 198
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION
. v. 199
DESIGNATED AUTHORITY
been collected by the predecessor of the DA, but the final A
findings in the form of an order were recorded by the
successor DA who had no occasion to hear the appellants -
The final order of the new DA offends the basic principle of
natural justice and, as such, is quashed - Consequently, the
decision of the Tribunal is set aside and the notification dated B
27.4.2006 is quashed - Administrative Law - Principles of
natural justice - Oral hearing - Doctrines - Audi alteram
~ partem.
Customs Tariff Act, 1975:
c
s.9-A - Anti dumping duty - Refund of- HELD: In view
of the fact that importers and its constituent members have
passed on the burden of levy on third persons, they cannot
claim refund of the anti-dumping duty levied - Doctrine of
_,.__
_ unjust enrichment is attracted - Customs Tariff (Identification, D
Assessment and Collection of Anti-Dumping Duty on
Dumped Articles and for Determination of Injury) Rules, 1995.
Words and Phrases:
"Natural justice" - Connotation of. E
The domestic tyre manufacturing units, represented
-"'. by the appellant (ATMA), imported Nylon Tyre Cord Fabric
(NTCF) from various countries, including China, as one
of their raw materials for manufacture of tyres. In 2003, F
respondent no. 3, the Association of Synthetic Fibre
Industry (ASFI), filed an application under the Customs
Tariff (Identification, Assessment and Collection of Anti-
Dumping Duty on Dumped Articles and for Determination
~
of Injury) Rules, 1995 before the Designated Authority G
(DA), inter alia, praying for imposition of anti-dumping
duty u/s 9A of the Customs Tariff Act, on imports of NTCF
from China. The DA issued the notification in terms of
Rules 5 and 6 of the 1995 Rules indicating the period of
investigation from 1.4.2002 to 30.6.2003. After conducting
H
200 SUPREME COURT REPORTS [2011] 1 S.C.R.
A investigation, the DA recorded preliminary findings and
issued a public notice by Notification dated 30.6.2004,
recommending imposition of provisional anti-dumping
.duty on NTCF originating in and exported from China.
Accordingly, the Central Government, by Notification
B dated 26.7.2004 imposed the provisional anti-dumping
duty. The DA granted a public hearing to all the parties
on 1.9.2004. However, on 1.11.2004 the said DA was
transferred and a new officer took over as the DA, who
sent the disclosure statement to all the parties concerned
c on 12.1.2005. The DA then issued final findings by
Notification dated 9.3.2005, recommending the imposition
of anti-dumping duty on NTCF originating from China.
The Central Government accepted the final findings of the
DA and issued Notification dated 27.4.2005 levying anti-
D dumping duty at different rates. Writ petitions were filed
before the Kerala High Court, which by its order dated
12.7.2005, disposing of the writ petitions, directed the
incumbent DA to grant hearing on the issues raised in the
writ petitions and issue orders modifying the final
findings to the extent required. The order of the High
E Court was challenged before the Supreme Court, which,
suspending the operation of the judgment of the High
Court, directed the parties to pursue the remedy before
the Customs, Excise and Service Tax Appellate Tribunal
u/s 9C of the Act. The Tribunal, ultimately, dismissed the
F appeals and confirmed the levy of anti-dumping duty in
terms of Notification dated 27.4.2005, holding that the
imposition of anti-dumping duty being legislative in
character, the principles of natural justice were not
applicable to the proceedings before the DA and,
G therefore, the persons affected had no right to be heard
before imposition of the duty.
In the instant appeals, during the course of hearing,
it was conceded that the function of DA was not
H legislative in nature and, thus, the contentions of the
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 201
DESIGNATED AUTHORITY
parties boiled down to the questions: (1) "whether the A
function of the DA is administrative or quasi-judicial in
character"; and (2) "whether or not the decision of the
DA dated 9th March, 2005, returning the final findings in
terms of Rule 17 of the 1995 Rules is in breach of the
principles of natural justice, resulting in vitiating the B
subject notification under Rule 18 of the said Rules."
Partly allowing the appeals, the Court
HELD:
c
1.1 For determining whether a power is an
administrative power or a quasi-judicial power, regard
must be had to: (i) the nature of the power conferred; (ii)
the person or persons on whom it is conferred; (iii) the
framework of the law conferring that power; (iv) the o
consequences ensuing from the exercise of that power;
and (v) the manner in which that power is expected to be
exercised. [para 49] [255-8-C]
Province of Bombay vs. Khushaldas S. Advani & Ors.
=
1950 SCR 621 1950 AIR 222; Jaswant Sugar Mills Ltd., E
Meerut Vs. Lakshmi Chand & Ors. 1963 Supp (1) SCR 242
- relied on.
A.K. Kraipak & Ors. Vs. Union of India & Ors. 1970 (1)
SCR 457 = 1969 (2) SCC 262 - referred to F
1.2 Keeping in view the scheme of the Tariff Act read
with the 1995 Rules and the principles, particularly, the
first principle enunc!:1ted in Khusa/das S. Advani's case,
this is an obvious case where the DA exercises quasi-
judicial functions and is bound to act judicially. A cursory G
look at the relevant Rules would show that the DA
determines the rights and obligations of the 'interested
parties' and by applying objective standards based on
the material/information/evidence presented by the
H
202 SUPREME COURT REPORTS [2011] 1 S.C.R. •
A exporters, foreign producers and other 'interested parties'
by applying the procedure and principles laid down in the
1995 Rules. Rule 5 of the 1995 Rules provides that the
DA shall initiate an investigation so as to determine the
existence, degree and effect of any alleged dumping
s upon the receipt of a written application by or on behalf
of the domestic industry. When the DA has decided to
initiate an investigation, Rule 6 requires that a public
notice shall be issued to all the interested parties as
mentioned in Rule 2(c), as also to industrial users of the
c product and to the representatives of the consumer
organisations in cases when the product is commonly
sold at the retail level. It is manifest that while determining
the existence, degree and effect of the alleged dumping,
the DA determines a '/is' between persons supporting the
levy of duty and those opposing the said levy. [para 52]
0
[257-E-H; 258-A-B]
1.3 Further, it is also clear from the scheme of the
Tariff Act and the 1995 Rules that the determination of
existence, effect and degree of alleged dumping is on the
E basis of criteria mentioned in the Tariff Act and 1995
Rules, and an anti-dumping duty cannot be levied unless,
on the basis of the investigation, it is established that
there is: (i) existence of dumped imports; (ii) material
inju..Y to the domestic industry and, (iii) a causal link
F between the dumped imports and the injury. Rule 10 of
the Rules lays down the criteria for the determination of
the normal value, export price and margin of dumping,
while Rule 11 deals with the determination of injury, which
according to Annexure II to the 1995 Rules, is based on
G positive evidence and involves an objective examination
of both: (a) the volume and the effect of the dumped
imports on prices in the domestic market for like
products, and (b) the consequent impact of these imports
on domestic producers of such products. It is evident
H that the determination of injury is premised on an
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 203
DESIGNATED AUTHORITY
objective examination of the material submitted by the A
parties. [para 53) [258-C-G)
'-"r
S&S Enterprise Vs. Designated Authority & Ors. 2005 (2)
SCR255 = 2005 (3 ) sec 337 - relied on
1.4 Moreover, under Rule 6(7) of the 1995 Rules, the B
•• DA is required to make available the evidence presented
to it by one party to other interested parties, participating
+ in the investigation. It is also pertinent to note that Rule
12 of the 1995 Rules which deals with the preliminary
findings, explicitly provides that such findings shall c
"contain sufficiently detailed information for the
preliminary determinations on dumping and injury and
shall refer to the matters of fact and law which have led
to arguments being accepted or rejected." A similar
stipulation is found in relation to the final findings D
recorded by the DA under Rule 17(2) of the 1995 Rules.
[para 53) [258-F-H; 259-A]
1.5 Above all, Section 9C of the Tariff Act provides for
an appeal to the Tribunal against the order of
E
determination or review thereof regarding the existence,
degree and effect of dumping in relation to imports of any
article, which order, obviously has to be based on the
determination and findings of the DA. The cumulative
effect of all these factors leads to an irresistible
conclusion that the DA performs quasi-judicial functions F
under the Tariff Act read with the 1995 Rules and is
bound to act judicially. [para 53] [259-A-C]
2.1 It is trite that rules of "natural justice" are not
embodied rules. The phrase "natural justice" is also not G
'_,....!.-
capable of a precise definition. The underlying principle
of natural justice, evolved under the com"!lon law, is to
check arbitrary exercise of power by the State or its
functionaries. Therefore, the principle implies a duty to
H
204 SUPREME COURT REPORTS [2011] 1 S.C.R.
A act fairly Le. fair play in action. [para 55] [259-E]
A.K. Kraipak & Ors. Vs. Union of India & Ors. 1970 (1)
=
SCR 457 1969 (2) SCC 262; and Mohinder Singh Gill &
Anr. Vs. The Chief Election Commissioner, New Delhi & Ors.
8
=
1978 (2) SCR 272 1978 (1) SCC 405; and Swadeshi
Cotton Mills Vs. Union of India 1981 (2) SCR 533 = 1981
(1) sec 664 - relied on.
2.2 It is well settled that unless a statutory provision, +
either specifically or by necessary implication excludes
C 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,
D 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
E administrative or quasi-judicial. It is equally trite that the
concept of natural justice can neither be put in a strait-
jacket nor is it a general rule of universal application.
Undoubtedly, there can be exceptions to the said
doctrine. The question whether the principle has to be
F 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
G consideration of these matters that the question of
application of the said principle can be properly
determined. [Para 58] [261-F-H; 262-A-C]
Union of India Vs. Col. J.N. Sinha & Anr. (1970) 2 SCC
458 - relied on
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 205
DESIGNATED AUTHORITY
2.3 In light of the legal position and the elaborate A
procedure prescribed in Rule 6 of 1995 Rules, which the
DA is obliged to adhere to while conducting
investigations, duty to follow the principles of natural
justice is implicit in the exercise of power conferred on
him under the said Rules. In so far as the instant case is B
concerned, though it was sought to be pleaded on behalf
of the respondents that the incumbent DA had issued a
-r common notice to the Advocates for ATMA and Ningbo
Nylon, for oral hearing on 9.3.2005, however, there is no
document on record indicating that pursuant to ATMA's c
letter dated 24.1.2005, notice for oral hearing was issued
to them by the incumbent DA. Moreover, the alleged
opportunity of oral hearing on 9.3.2005, being in relation
to the price undertaking offer by Ningbo Nylon, cannot
be likened to a public hearing contemplated under Rule
0
___.__ 6(6) of the 1995 Rules. [para 59] [262-D-G]
2.4 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 E
written arguments are no substitute for an oral hearing.
A personal hearing enables the authority concerned to
"""'-1" watch the demeanour of the witnesses etc. and also clear
up his doubts during the course of the arguments.
However, as held in Gullapalli, if one person hears and F
. other decides, then personal hearing becomes an empty
formality. In the instant 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 G
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. The final order
passed by the new DA offends the basic principle of
natural justice. Thus, the impugned notification having H
206 SUPREME COURT REPORTS [2011] 1 S.C.R.
A been issued on the basis of the final findings of the DA,
who failed to follow the principles of natural justice,
cannot be sustained. Since the recommendation of the
---·
DA stands vitiated on account of non-compliance with
the basic principle of audi alteram partem, the decision
B of the Tribunal is set aside and the Notification No.36/
2005-Cus., dated 27.4. 2005, is quashed. [para 59, 61 and
64] (262-F-H; 263-A-C-E; 265-B-C]
Gul/apa/li Nageswara Rao & Ors. Vs. Andhra Pradesh
State Road Transport Corporation & Anr. AIR 1958 SC 308
c - relied on.
3.1 As regards the refund of the duty already paid and
collected, it is trite law that in~the case of indirect taxes
like central excise duties and customs duties, the tax
D collected by. the State without the authority of law, shall
not be refunded to the petitioner unless he alleges and
establishes that he has himself borne the burden of the
said duty and that he has not passed on the burden of
duty to a third party. In such a situation, the doctrine of
E unjust enrichment comes into play. (para 61] (263-E-H]
Mafatlal Industries Ltd. & Ors. Vs. Union of India & Ors.
=
1996 (10) Suppl. SCR 585 1997 (5) SCC 536 - followed.
--r·
3.2 In the instant case, the DA, during the sunset
F review (Notification No.14120/2008-DGAD dated 31.3.2009)
had recorded a clear finding to the effect that the Chinese
exporters had been underselling below the non-injurious
price to the tune of 25-20% during the period of
investigation. It is, therefore, manifest that the burden of
G anti-dumping duty had been absorbed by the exporters. -4....·
The said finding of .fact attained finality in as much as it
had not been assailed by any of the interested parties.
In the light of the fact that the importers, viz. ATMA and
its constituent members have passed on the burden of
H the levy to third person(s), it follows that members of
... AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 207
DESIGNATED AUTHORITY
ATMA cannot claim refund of the anti-dumping duty A
levied in terms of the Notification No.3612005-Cus. ATMA
and its constituent members have neither pleaded nor
adduced any evidence to show that they had not passed
on the burden of the duty to any other person. In an~·
case, the appellants cannot claim refund of duty already B
levied in as much as they have not specifically
challenged the findings of the sunset review and,
therefore, the findings in relation to the existence of
+ dumped imports, material injury to domestic industry and
causal link between dumped imports and material injury c
to domestic industry remain unchallenged. In that view
of the matter, particularly, when the existence of dumping
has not been put in issue, refund of the duty to any of
the appellants would be inconsistent with the object and
scheme of the Tariff Act and the 1995 Rules. [para 62, 63]
D
[264-D-H; 265-A-B]
Shri Radheshyam Khare & Anr. Vs. The State of Madhya
Pradesh & Ors. AIR 1959 SC 1440; Shivji Nathubhai Vs.
Union of India & Ors. 1960 SCR 775 = 1960 AIR SC 606;
Shankarlal Aggarwa/a & Ors. Vs. Shankarla/ Poddar & Ors. E
AIR 1965 SC 507; S.K. Bhargava Vs. Collector, Chandigarh
& Ors. 1998 (2) SCR 1158 =1998 (5) SCC 170; Sahara India
~ (Firm), Lucknow Vs. Commissioner of Income Tax, Central-I
& Anr. 2008 (6) SCR 427 = 2008 (14) sec 151; PTC India
Limited Vs. Central Electricity Regulatory Commission 2010 F
(3) SCR 609 = (2010) 4 SCC 603; Designated Authority (Anti-
Dumping Directorate), Ministry of Commerce Vs. Haldor
Topsoe A/S (2000) 6 SCC 626; Reliance Industries Ltd. Vs.
Designated Authority & Ors. 2006 (6) Suppl. SCR 1=2006
.__..._ (10) SCC 368 and J.K. Industries Vs. Union of India SLP (C) G
No.11061 of 2005, Tata Chemicals Limited (2) Vs. Union of
India & Ors. 2008 (5) SCR 320 = 2008 (17) SCC 180; Tata
Chemicals Limited Vs. Union of India & Ors. (2007) 15 SCC
596; State of T.N. Vs. K. Sabanayagam & Anr. 1997 (5)
~uppl. SCR 345 =1998 (1) SCC 318; and Godawat Pan H
208 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Masala Products J.P. Ltd. & Anr. Vs. Union of India & Ors.
2004 (3) Suppl. SCR 239 = 2004 (7) SCC 68; Maneka
Gandhi vs. Union of India & Anr. 1978 (2) SCR 621 = 1978
(1) SCC 248; SBP & Co. Vs. Patel Engineering Ltd. & Anr.
2005 (4) Suppl. SCR 688 =2005 (8) SCC 618; and C.B.
B Gautam Vs. Union of India & Ors. 1992 (3) Suppl. SCR
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Excise, Cochin & Ors. (1969) 3 SCC 221; Hukam Chand Etc.
Vs. Union of India & Ors. 1973 (1) SCR 896 = 1972 (2) SCC
c 601; Orissa State Electricity Board & Anr. Vs. Indian
Aluminum Co. Ltd. (1975) 2 SCC 431; Regional Transport
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Ltd. & Ors. 1981 (1) SCR 627 = 1980 (4) SCC 597; Mahabir
Vegetable Oils (P) Ltd. & Anr. Vs. State of Haryana & Ors.
D 2006 (2) SCR 1172 = 2006 (3) SCC 620; and Baku/ Cashew
Co. & Ors. Vs. Sales Tax Officer, Qui/on & Anr. 1986 (1)
SCR 610 =1986 (2) SCC 365; State of Madhya Pradesh &
Anr. Vs. Dadabhoy's New Chiri Miri Ponri Hill Colliery Co. Pvt.
Ltd. 1972 (2) SCR 609 = 1972 (1) SCC 278; Yudhishter
Vs. Ashok Kumar1987 (1) SCR 516 = 1987 (1) SCC 204;
E Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. & Ors.
2002 (4) Suppl. SCR 517 = 2003 (2) SCC 111; Shenyang
Matsushita S. Battery Co. Ltd. Vs. Exide Industries Ltd. & Ors.
2005 (2) SCR 332 =2005 (3) SCC 39; Reserve Bank of India
Vs. Peerless General Finance and Investment Co. Ltd. & Ors.
F 1987 (2) SCR 1 = 1987 (1) SCC 424; Shri Sitaram Sugar
Company Ltd. & Anr. Vs. Union of India & Ors. 1990 (1) SCR
909 = 1990 (3) SCC 223; Dalmia Cement (Bharat) Ltd. &
Anr. Vs. Union of India & Ors. 1996 (1) Suppl.
SCR 825 = 1996 (10) SCC 104, Ramesh Chandra
G Kachardas Porwa/ & Ors. Vs. State of Maharashtra & Ors.
1981 (2) SCR 866 = 1981 (2) SCC 722; Saraswati Industrial
Syndicate Ltd. & Ors. Vs. Union of India 1975 (1) SCR
956 = 1974 (2) SCC 630 and P.M. Ashwathanarayana Setty
& Ors. Vs. State of Karnataka & Ors. 1988 (3) Suppl.
H SCR 155 = 1989 (1) Suppl. SCC 696; The State of Gujarat
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 209
DESIGNATED AUTHORITY
& Anr. Vs. Shri Ambica Mills Ltd., Ahmedabad & Anr. (1974) A
4 SCC 656; Jardine Henderson Limited Vs. Workmen & Anr.
(1962) Supp 3 SCR 582; Mis. Krishnamurthi & Co. Etc. Vs.
State of Madras & Anr. 1973 SCR 54= (1973) 1 SCC 75;
Empire Industries Ltd. & Ors. Vs. Union of India & Ors. 1985
(1) Suppl. SCR 292 = 1985 (3) SCC 314; The New Prakash B
Transport Co. Ltd. Vs. The New Suwarna Transport Co. Ltd.
1957 AIR 232 = 1957 SCR 98; Haryana Financial
+ Corporation & Anr. Vs. Kai/ash Chandra Ahuja 2008 (10)
SCR 222 = 2008 (9) SCC 31; State Bank of Patia/a & Ors.
Vs. S.K. Sharma 1996 (3) SCR 972 = 1996 (3) SCC 364; c
Ossein and Gelatine Manufacturers' Association of India Vs.
Modi Alkalies and Chemicals Limited & Anr. 1989 (3)
SCR 815 = 1989 (4) SCC 264; General Manager, Eastern
Railway & Anr;. Vs. Jawala Prasad Singh 1970 (3) SCR 271 =
1970 (1) SCC 103; Madhya Pradesh Industries Ltd. Vs. D
Union of India & Ors. (1966) 1 SCR 466; J.A. Naiksatam Vs.
Prothonotary & Senior Master, High Court of Bombay & Ors.
2004 (5) Suppl. SCR 287= 2004 (8) sec 653; R Vs.
Immigration Appeal Tribunal & Anr. (1988] 2 All ER 65;
Selvarajan Vs. Race Relations Board (1976] 1 All ER 12; E
Gramophone Company of India Ltd. Vs. Birendra Bahadur
Pandey & Ors. 1984 (2) SCR 664 =1984 (2) SCC 534; Mis.
Tractoroexport, Moscow Vs. Mis Tarapore & Company & Anr..
1970 (3) SCR 53 = 1969 (3) SCC 562; Jolly George
Varghese & Anr. Vs. The Bank of Cochin 1980 (2) SCR -
913 = 1980 (2) SCC 360; Union of India Vs. Mohan Lal F
Capoor (1973) 2 SCC 836; P. Sainbamurthy & Ors. Vs. State
of Andhra Pradesh & Anr. (1987) 1 SCC 362; Union of India
Vs. K.M. Shankarappa 2000 (5) Suppl. SCR 117 = 2001
(1) SCC 582; and B.B. Rajwanshi Vs. State of U.P. & Ors.
1988 (3) SCR 469 =1988 (2) SCC 415; Jayantilal Amrit Lal G
Shodhan Vs. F.N. Rana & Ors 1964 (5) SCR 294; Managing
Director, ECIL, Hyderabad & Ors. Vs. B. · Karunakar & Ors.
1993 (2) Suppl. SCR 576 = 1993 (4) SCC 727; Union of
India & Anr. Vs. Cynamide India & Anr. 1987 (2) SCR 841 =
H
210 SUPREME COURT REPORTS [2011] 1 S.C.R. -
A 1987 (2) SCC 720; Shri Sita Ram Sugar Company Limited
& Anr. Vs. Union of India & Ors. 19~0 (1) SCR 909 = 1990 ---·
(3) SCC 223; and Viveka Nand Sethi Vs. Chairman, J&K
Bank Ltd. & Ors. 2005 (3) SCR 1095 = 2005 (5) sec 337 -
cited.
B
Case Law Reference:
1950 SCR 621 relied on para 19 and 50
+
1959 SC 1440 cited para 19
c 1960 SCR 775 cited para 19
AIR 1965 SC 507 cited para 19
1998 (2) SCR 1158 cited para 19
D [1963] Supp. 1 S.C.R. 242 relied on para 19 and 51
2008 (6) SCR 427 cited para 19
2010 (3) SCR 609 cited para 19
(2000) 6 sec 626 cited para 19
E
2006 (6) Suppl. SCR 1 cited para 20
SLP (C) No.11061 of 20Q5 cited para 20
2008 (5) SCR 320 cited para 20
F c2001) 15 sec 596 cited para 20
1997 (5) Suppl. SCR 345 cited para 20
2004 (3) Suppl. SCR 239 cited para 20
1978 (2) SCR 272 cited para 21
....._,
G
1978 (2) SCR 621 cited para 22
2005 (4j Suppl. SCR 688 cited para 22
1992 (3) Suppl. SCR 12 cited para 22
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 211
DESIGNATED AUTHORITY
·-- AIR 1958 SC 308
(1969) 3 sec 221
relied on
cited
para 23
para 24
A
1973 (1) SCR 896 cited para 24
(1975) 2 sec 431 cited para 24
B
1981 (1) SCR 627 cited para 24
__.... 2006 (2) SCR 1172 cited para 24
1986 (1) SCR610 cited para 24
para 26 and 53
c
2005 (2 ) SCR 255 relied on
1972 (2) SCR 609 cited para 27
1987 (1) SCR 516 cited para 27
2002 (4) Suppl. SCR 517 cited para 28 D
2005 (2 ) SCR 332 cited para 30
1987 ( 2) SCR 1 cited para 32
1990 (1) SCR 909 cited para 33 E
1996 (1) Suppl. SCR 825 cited para 33
_,,.. 1981 (2) SCR 866 cited para 33
/
975 ( 1) SCR 956 cited para 33
·F
1988 ( 3) Suppl. SCR 155 cited para 33
(1974) 4 sec 656 cited para 33
(1962) Supp 3 SCR 582 cited para 33
'~ G
1973 SCR 54 cited para 33
1985 ( 1 ) Suppl. SCR 292 cited para 33
1957 SCR 98 cited para 34
2008 (10 ) SCR 222 cited para 34 H
212 SUPREME COURT REPORTS (2011] 1 S.C.R.
A 1996 ( 3) SCR 972 cited para 34
1989 ( 3) SCR 815 cited para 34
1970 ( 3) SCR 271 cited para 35
(1966) 1 SCR 466 cited para 35
B
2004 (5 ) Suppl. SCR 287 cited para 35
[1988) 2 All ER 65 cited para 35
[1976] 1 All ER 12 cited para 35
c 1984 ( 2) SCR 664 cited para 35
1970 ( 3 ) SCR 53 cited para 35
~·
1980 ( 2 ) SCR 913 cited para 35
D (1973) 2 sec 836 cited para·37
(1987) 1 sec 362 cited para 38
2000 (5) Suppl. SCR 117 cited para 38
E 1988 ( 3) SCR 469 cited para 38
[1964) 5 SCR 294 cited para 38
1993 (2) Supp\ SCR 576 cited para 40
1987 (~) SCR 841 cited para 43
F
1990 (1) SCR 909 cited para 43
2005 (3 ) SCR 1095 cited para 43
1970 (1) SCR 457 referred to para 49
G 1981 ( 2) SCR 533 relied on para 57
(1970) 2 sec 458 relied on para 58
1996 (10) Suppl. SCR 585 followed para 61
H
/AUTOMOTIVE-,TYRE MANUFACTURERS ASSOCIATION v. 213
DESIGNATED AUTHORITY
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 949 A
·- of 2006.
From the Judgment & Order dated 9.9.2005 of the
Customs, Excise and Service Tax Appellate Tribunal, New Delhi
in Appeal No. C/601/05-AD and final Order No. 19/05-AD. B
WITH
C.A. No. 8012 of 2010 .
.:
C.A. No. 2007 of 2006. c
C.A. No. 2115 of 2006.
H.P. Raval, Ld. ASG, S.K. Bagaria, V. Shekhar and Harish
Chandra, Meenakshi Arora, Sharad Bhansali, Jitendra Singh,
Saurabh S. Sinha, Poli Kataki, Nitya Bagaria, P.K. Manohar, D
Shalinder Saini, Shweta Verma, Anriudh Sharma, A.K. Sharma,
Anil Katiyar, G. Umapathy, Rajesh Sharma, Rakesh K. Sharma,
Rashmi Malhotra, Sunita Rani Singh and B.K. Prasad for the
Respondents.
E
The Judgment of the Court was delivered by
D.K. JAIN, J. 1. This batch of civil appeals under Section
~ 130E of the Customs Act, 1962 (for short "the Act") arises out
of a common judgment and order, dated 9th September 2005,
passed by the Customs, Excise and Service Tax Appellate F
Tribunal (for short "the Tribunal) whereby the appeals filed by
the appellants herein, have been dismissed and the levy of anti-
dumping duty, imposed under Section 9A of the Customs Tariff
Act, 1975 (for short "the Tariff Act") vide Notification 36/2005-
Cus dated 27th April 2005 has been affirmed. G
u-
2. As common questions of law are involved in all the
appeals and even the background facts are identical, these are
being disposed of by this common judgment. However, to
appreciate the controversy and the rival stands thereon, we
H
214 SUPREME COURT REPORTS [2011] 1 S.C.R.
A shall refer to the facts in Civil Appeal No. 949 of 2006 as
illustrative: r'
The appellant in this appeal viz. Automotive Tyre
Manufacturers Association (for short "ATMA"), is an association
8 representing domestic tyre manufacturing units, who import
Nylon Tyre Cord Fabric (for short "NTCF") from various
· countries, including China, as one of their basic raw materials
for manufacture of tyres.
Sometime in 2003, the Association of Synthetic Fibre
C Industry (for short "ASFI"), respondent No. 3 herein, filed an
application under the Customs Tariff (Identification, Assessment
& Collection of Anti-Dumping Duty on Dumped Articles & for
Determination of Injury) Rules, 1995 (for short "the 1995 Rules")
before the Designated Authority (hereinafter referred to as "the
D DA") inter-alia, praying for imposition of anti-dumping duty
under Section 9A of the Act, on imports of NTCF from China.
In their application, ASFI had specifically contended that China
being a non-market economy country, normal value of the export
price from that country had to be determined as per the
E principle contemplated in para 7 of Annexure I to the 1995
Rules.
3. Taking cognizance of the application, on 29th October
2003, the DA initiated investigation by issuing notification in
F terms of Rules 5 and 6 of the 1995 Rules, indicating the period
of investigation from 1st April 2002 to 30th June 2003. After
conducting investigations, the DA recorded preliminary findings
and issued public notice in that behalf on 30th June 2004, vide
Notification No. 14/20/2003-DGAD, recommending imposition
of provisional anti-dumping duty at the rate of US $ 0.69 per
G Kg on NTCF originating in and exported from China. The ~
recommendations made in the preliminary findings were
accepted by the Central Government, and provisional anti-
dumping duty was, accordingly, imposed vide Notification No.
72/2004-Cus, published on 26th July 2004. It would be of some
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 215
DESIGNATED AUTHORITY [D.K. JAIN, J.]
significance to note here that the 2nd proviso to Rule 13 of the A
·~ 1995 Rules postulates that the levy of provisional duty, in the
first instance, can be for a period of six months, which may be
extended by a further period of three months on the request of
exporters representing a significant percentage of the trade
involved. B
4. Being aggrieved, one of the constituent members of
ATMA viz. Apollo Tyres Ltd. filed Writ Petition No. SCN8747/
2004 before the Gujarat High Court, challenging the preliminary
findings mainly on the ground that the investigation proceedings
were in violation of the principles of natural justice and the
c
procedure prescribed by the 1995 Rules. The said writ petition
was dismissed by the High Court on 20th July 2004, observing
thus:
"we do not think it fit to entertain this petition at this stage, D
when the interested parties including exporters and
importers are provided an opportunity to submit their views
and are also assured of oral hearing."
5. The DA granted a public hearing to all the parties on
E
1st September 2004. However, on 1st November 2004, the
officer functioning as the DA, who had conducted the
-...- investigations in the instant case was transferred, and a new
officer took over as the DA. On 6th January 2005, the appellants
herein, in particular ATMA an.d Ningbo Nylon, a Chinese
exporter, requested the newly appointed DA to grant a fresh F
public hearing, before finalizing his report/recommendations.
6. On 12th January 2005, the DA sent the disclosure
statement to all the parties concerned. On 17th January 2005,
....... the appellants wrote a l13tter of protest to the DA, inter alia, G
contending that their submissions were not examined; the newly
appointed DA had failed to grant them a public hearing and
some of the new submissions made by the domestic industry
formed part of the record.
H
216 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 7. One of the constituent members of ATMA viz. J.K.
..,.._,
Industries Ltd. filed a Civil Writ Petition (No.548 of 2005) before
the High Court of Rajasthan at Jodhpur challenging the
investigation proceedings, preliminary findings and the
disclosure statement. On 25th January 2005, the High Court
B admitted the said writ petition and granted ad-interim stay
restraining the DA from issuing final findings in terms of the
disclosure statement.
8. Thereafter, on 16th February 2005, the High Court
modified the earlier interim stay order dated 25th January 2005
c to the extent that the DA was allowed to proceed to record the
final findings but the same had to be placed in a sealed cover.
9. On 9th March 2005, the DA issued final findings, vide
notification· No. 14/20/2003-DGAD, recommending the
D imposition of anti-dumping duty on NTCF originating from China
at the rate of US $ 0.54 per Kg to US $ 0.81 per Kg.
10. AFSI, respondent no. 3 herein, filed SLP (C) No. 6878-
6879 of 2005 challenging the orders of the High Court of
Rajasthan dated 25th January 2005 and 16th February 2005.
E
This Court granted leave in the said SLP, and set aside the
said interim orders.
11. Ultimately, on 21st April, 2005, the High Court of
Rajasthan dismissed the writ petition filed by JK Industries Ltd.
F observing that:
"such findings are not reached by the Designated Authority
in exercise of any legislative power vested in it for the
purpose of deciding any litigatious contentions between
G
the various interests or to adjudicate or to decide upon ...._,..
rights of any party to fis."
Aggrieved by the said order, JK Industries preferred SLP
(C) 11061 of 2005 before this Court. The said SLP was
dismissed on 13th May 2005 in view of the alternative remedy
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 217
DESIGNATED AUTHORITY [D.K. JAIN, J.]
!
available to the appellant. The Court, inter a/ia, observed that: A
,_
"However, we clarify that the following observations made
in the impugned judgment by the Division Bench of the
High Court- "investigation by the Designated Authority is
in aid of legislative function" -shall not come in the way of B
the hearing by the Appellate Authority of any judicial review
sought for thereafter by either party."
12. The Central Government accepted the final findings of
the DA, and issued Notification No. 36/2005-Cus dated 27th
April 2005 levying anti-dumping duty at different rates varying c
from US $ 0.54 per Kg to US $ 0.81 per Kg on NTCF w.e.f.
26th July 2004.
13. M/s. Apollo Tyres filed W.P. No. 19896 of 2005 before
the High Court of Kerala for quashing the final findings of the D
DA. The High Court observed that since the petitioners had
been represented by ATMA before the DA, ATMA should
approach the High Court. Thereafter, ATMA filed W.P.
No.20587 of 2005 before the High Court.
14. By a common order dated 12th July 2005, the High E
Court of Kerala disposed of both the writ petitions, directing
the incumbent DA to grant hearing on the issues raised in the
--.....- writ petition, and issue orders modifying the final findings to the
extent required.
F
15. ASFI filed S.L.P. (C) No. 15704-15705 of 2005 before.
this Court challenging the said order of the High Court of
Kerala. This Court disposed of the SLP vide order dated 12th
August 2005, suspending the operation of the judgment of the
High Court of Kerala, and directing the parties to pursue the G
~--t
remedy before the Tribunal under Section 9C of the Act.
16. As afore-mentioned, the Tribunal has dismissed the
appeals, preferred by ATMA, Apollo Tyres, J.K. Tyres, ASFI and
Ningbo Nylon and confirmed the levy of anti-dumping duty in
H
218 SUPREME COURT REPORTS [2011] 1 S.C.R.
A terms of Notification No. 36/2005-Cus. Dealing with the main
grievance of the appellants viz. denial of an opportunity of
he~ring and thus, violation of the principles of natural justice,
the Tribunal has held that:- (i) an anti-dumping duty has all the
characteristics of a tax as it is imposed under statutory power
B without the tax-payers consent, and its payment is enforced by
law, therefore, issuance of the notification by the Central
Government in the Official Gazette under Rule 18 of the 1995
Rules read with Section 9A(1) of the Tariff Act imposing anti-
dumping duty upon importation of the subject article in India is +
c purely a legislative function; (ii) the process of imposing anti-
dumping duty which is legislative in nature does not decide any
existing dispute or '/is' inter-parties; it only determines whether
imposition of anti-dumping duty is called for in relation to
dumped imports and if so, at what rate, on the basis of the
information collected from the exporters-importers and a large
0
number of other interested parties; (iii) there can never be a
'/is' between the State and its citizens in the matter of exercise
of legislative power to impose tax as there is no "right-duty"
relationship between the Central Government imposing anti-
E dumping duty under the Tariff Act and the 1995 Rules, and the
exporters or importers who are given an opportunity to give
information under the Rules and that the principles of natural
justice are not applicable to a legislative process for enactment
of law and the persons affected have. no right to an opportunity
to be heard before the enactment; (iv) if, however, the
F Parliament, in its wisdom, for an impo~t l.i~e the anti-dumping
duty, which arises due to and has nexu$' ~ith the interest of
domestic industry, provides a mechaniSin for taking into
consideration the views of those who will be affected and the
other interested parties, that will not amount to vesting in them
G a right to be heard personally, arising as a consequence of the
principles of natural justice, against taking legislative action of
imposing anti-dumping duty and fixing its rate for the subject
article and (v) in cases where investigative procedure leading
to determination of the rates of taxes is undertaken by the
H Parliament, through its agencies, as per its rules of business,
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 219
DESIGNATED AUTHORITY [D.K. JAIN, J.]
·- there will be absolutely no scope for any judicial tribunal to
examine whether any procedural irregularity was committed by
not consulting any particular section of the public likely to be
A
adversely affected by such law. This is precisely why legislative
enactments are not generally made subject to the principles of
natural justice, as doing so may !ead to a finding of irregularity B
of procedure which is prohibited by the constitutional scheme
· of law making. It is settled law that there is no right to be heard
-+ before the making of legislation, whether primary or delegated,
unless specifically provided by the Statute.
17. Thus, the Tribunal held that the imposition of anti-
c
dumping duty being legislative in character, the principles of
natural justice were not applicable to the proceedings before
the DA and, therefore, persons affected had no right to be heard
before the imposition of duty.
........... D
18. Hence the present appeals.
Submissions made on behalf of the appellants:
19. Mr. S.K. Bagaria, learned senior counsel appearing
on behalf of ATMA, piloting the arguments on behalf of the E
appellants, referring to various provisions of the Tariff Act and
.--y 1995 Rules strenuously urged that the functions discharged by
the DA are quasi-judicial in nature. Relying on the decisions of
this Court in Province of Bombay Vs. Khushaldas S. Advani
& Ors. 1; Shri Radheshyam Khare & Anr. Vs. The State of F
Madhya Pradesh & Ors. 2; Shivji Nathubhai Vs. Union of India
& Ors. 3; Shankarla/ Aggarwala & Ors. Vs. Shankarlal Poddar
& Ors4 • S.K. Bhargava Vs. Collector, Chandigarh & Ors. 5 ,
Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmi Chand & Ors. 6;
4-· 1. AIR 1950 SC 222. G
2. AIR 1959 SCR 1440.
3. AIR 1960 SC 606.
4. AIR 1965 SC 507.
5. AIR (1998) 5 sec 110.
6. [1963] Supp. 1 S.C.R. 242. H
220 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Sahara India (Firm), Lucknow Vs. Commissioner of Income
Tax, Central-/ & Anr. 7, learned counsel contended that if a
statute empowers an authority, not being a Court in the ordinary
sense, to decide disputes arising out of a claim made by one
party and disputed by another, on the basis of some objective
B standards, and is required by the terms of the statute to act
judicially, then such authority discharges quasi-judicial functions.
Learned counsel submitted that such attributes are in-built in
the scheme of the Tariff Act and the 1995 Rules, in as much +-
- as:-(i) there are interested parties, some opposing the levy and
c some supporting the levy; (ii) there is a lis between these
interested parties; (iii) Rule 6(1) of the 1995 Rules mandates
that the DA has to issue a public notice to all interested parties,
and their responses to the same are elicited; (iv) evidence and
information is collected, and the evidence presented by one
D interested party is made available to the other interested
parties in terms of Rule 6; (v) a public hearing is conducted,
and all the information presented orally has to be subsequently
reduced into writing as per Rule 6(6); (vi) Rule 12 and 17
provide that the DA is required to determine all matters Of facts
and law by adjudicating on the material placed before the said
E authority and record reasons leading to the final determination
on the existence, degree and effect of dumping and (vii)
Section 9C of the Tariff Act contemplates an appeal to the
Tribunal on all aspects of the determination by the DA viz. the
existence, degree and effect of dumping. Learned counsel then
F urged that since the said Section provides for a remedy of
appeal on all the facets of determination, the Tribunal has no
option but to examine all aspects viz. existence, degree and
effect of dumping on the basis of the material placed before
the DA, in order to confirm, modify or annul the orders appealed
G against. Commending us to the decision of a Constitution
Bench of this Court in PTC India Limited Vs. Central Electricity
Regulatory Commission 8, learned counsel contended that
1. c2008) 14 sec 1s1.
H 8. c2010) 4 sec 603.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 221
DESIGNATED AUTHORITY [D.K. JAIN, J.]
whenever a particular statute provides for an appeal against A
~--.-·
the decision of an authority, then orders/decisions of that
authority are quasi-judicial in nature. In order to buttress the
argument, learned counsel also commended us to two
publications of the Government of India viz. "Anti-Dumping and
Anti-Subsidy Measures" and "Anti-Dumping, A Guide" wherein B
the Government has accepted that the functions of the DA are
quasi-judicial in nature. Learned counsel argued that even the
-+ procedure adopted by the DA leads to the inescapable
conclusion that it discharges quasi-judicial functions in as much
as the DA grants all interested persons an opportunity to make c
oral submissions. Relying on the decision of this Court in
Designated Authority (Anti-Dumping Directorate), Ministry of
Commerce Vs. Haldor Topsoe A/S 9 , learned counsel
contended that it is a settled practice that if during the course
of investigations, the DA conducting the public hearings is D
transferred, the new DA grants a fresh hearing before making
I the final order.
20. Learned counsel urged that in light of the observations
made by this Court in Reliance Industries Ltd. Vs. Designated
Authority & Ors10• and J.K. Industries Vs. Union of India (SLP E
(C) No.11061 of 2005), it is fallacious to contend that the
functions discharged by the DA are legislative in nature.
-~
Learned counsel submitted that in Tata Chemicals Limited (2)
Vs. Union of India & Ors11 . and Tata Chemicals Limited Vs.
Union of India & Ors. 12 , this Court has also held that an appeal F
before the Tribunal is maintainable against the determination
by the DA together with the Customs Notification. Learned
counsel contended that even if the DA's functions are held to
be in exercise of conditional legislation, it would be of the
•--r nature as mentioned in the third category of cases highlighted G
9. c2000) 6 sec 626.
10. (2006) 10 sec 368.
11. (2008) 11sec180.
12. (2001) 15 sec 596. H
''
222 SUPREME COURT REPORTS [2011) 1 S.C.R.
A in State of T.N. Vs. K. Sabanayagam & Anr13. and Godawat
Pan Mas ala Products I. P. Ltd. & Anr. Vs. Union of India &
Ors. 14 , in as much as the levy of duty would depend on the
-·
satisfaction of the DA on objective facts placed by one party
seeking benefits, and even in such a situation principles of
B natural justice are required to be complied with.
21. Learned counsel urged that at this stage the
respondents cannot be allowed to contend that no prejudice
was caused to the appellants due to non-grant of hearing, as +-
C the DA did not take this stand either in the disclosure statement
or in the final findings. Further, the respondents have not
submitted any counter-affidavit in this behalf. Commending us
to the decision of this Court in Mohinder Singh Gill & Anr. Vs.
The Chief Election Commissioner, New Delhi & Ors. 15 ,
learned counsel contended that the validity of an order has to
D be judged by the reasons mentioned therein, and cannot be
supplemented by fresh reasons in the form of affidavits or
otherwise. Learned counsel contended that despite several
requests, the incumbent DA did not grant hearing to ATMA.
Learned counsel complained that after the issuance of
E disclosure statement, a specific request for personal hearing
was made vide letter dated 24th January, 2005 but the DA did
not even make a reference to the said request in his final order.
According to the learned counsel, non-consideration of the
request for hearing by itself has caused grave and serious
F prejudice to the appellants.
22. Learned counsel asserted that even if it is held that the
functions of the DA are administrative in nature, the principles
of natural justice would still have to be complied with as the
G decision of the DA entails tar-reaching civil consequences. In
support, reliance was placed on the decisions of this Court in
Mohinder Singh Gill (supra); Maneka Gandhi Vs. Union of
13. (1998) 1 sec 318.
14. (2004) 1 sec 68.
H 1s. (1978) 1 sec 406
-
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION 223
v. DESIGNATED AUTHORITY [D.K. JAIN, J.]
India & Anr. 16 ; Sahara India (supra); SBP & Co. Vs. Patel A
·-- Engineering Ltd. & Anr11 • and C.B. Gautam Vs. Union of India
& Ors.1s.
23. Relying heavily on t~e decision of a Constitution Bench
of this Court in Gullapal/i Nageswara Rao & Ors. Vs. Andhra
B
Pradesh State Road Transport Corporation & Anr. 19 , learned
counsel contended that the final determination by the new DA
without granting a hearing to the appellants is bad in law in as
-+ much as it is well settled that the principles of natural justice
mandate that the authority who hears, must also decide.
Learned counsel urged that the hearing granted by the new DA
c
to the Advocates of Ningbo Nylon, the Chinese Exporter, is of
no consequence in so far as the Indian Tyre Manufacturers
were concerned, particularly when the hearing granted to
Ningbo Nylon was confined to their offer of price undertaking,
which otherwise is a confidential hearing not akin to the public D
-~
hearing, which was requested by ATMA.
24. In relation to the levy of anti-dumping duty during the
interregnum period between 26th January, 2005 to 26th April,
2005, Mr. Bagaria contended that the provisions of the Tariff E
Act or the Rules made thereunder· do not contemplate the
power to levy duty retrospectively, save and except as provided
-.,.- ' in· Section 9A(3) of the Tariff Act. Relying on the decisions of
this Court in The Cannanore Spinning and Weaving Mills Ltd.
Vs. Collector of Customs and Central Excise, Cochin & Ors. 20; F
Hukam Chand Etc. Vs. Union of India & Ors. 21 ; Orissa State
Electricity Board & Anr. Vs. Indian Aluminum Co. Ltd. 22;
Regional Transport Officer, Chittoor & Ors. Vs. Associated
16. (1978) 1 sec 248.
11. (2005) 8 sec 618. G
'--r-
18. (1993) 1 sec 78.
19. AIR 1958 SC 308.
20. (1969) 3 sec 221.
21. (1972) 2 sec 601.
22. (1975) 2 sec 431. H
224 SUPREME COURT REPORTS [2011) 1 S.C.R.
A Transport Madras (P) Ltd. & Ors. 23; Mahabir Vegetable Oils
(P) Ltd. & Anr. Vs. State of Haryana & Ors. 24 and Baku/ Cashew
Co. & Ors. Vs. Sales Tax Officer, Qui/on & Anr. 25 , learned
counsel contended that if no power has been conferred upon
the delegatee by the parent Act to levy tax or duty
B retrospectively, the delegatee cannot confer upon itself any such
power by making any such Rule nor can it exercise any such
power or levy duty or tax retrospectively. Section 9A(3) of the
Tariff Act only provides for the levy of duty retrospectively prior +-
to the date of issuance of notification levying provisional duty
c and the instant case, is therefore, not covered under Section
9A(3). Learned counsel urged that Section 9A (3) makes it
manifest that wherever the legislature intended to confer the
power to levy duty retrospectively, it ha$ specifically provided
for the tame.
D 25. Learned counsel then contended that the submission
of the respondents that the levy of anti-dumping duty is in
continuation for the period of five years commencing from the
levy of provisional duty is contrary to the scheme and provisions
of the Tariff Act. It was submitted that it is manifest from the plain
E language of Section 9A, the charging provision, that the levy
of anti-dumping duty is not automatic. Therefore, the continuity
of the levy, in terms of the Section itself, is only for the period
of notification and nothing more and there could be continuity
only when the final notification is issued before the expiry of the
F provisional duty covered under the provisional notification.
However, if the Government allows the period of levy of the
provisional duty to expire, and issues the final notification
thereafter, there can be no levy during the interregnum period.
G 26. Emphasising that provisional anti-dumping duty being
a short-term measure, which in terms of Rule 13 of the 1995
Rules can remain in force only for a period not exceeding six
23. (1980) 4 sec 597.
24. (2006) 3 sec 620.
H 25. (1986) 2 sec 365.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 225
DESIGNATED AUTHORITY [D.K. JAIN, J.]
months, extendable by a further period of three months under A
the circumstances mentioned in the said Rule, learned counsel
·--- pointed out that since in the instant case, there was no such
extension, the period for levy of provisional duty expired on 25th
January, 2005. Furthermore, in S&S Enterprise Vs. Designated
Authority & Ors. 26 , this Court had observed that the imposition B
of anti-dumping duty under Section 9A of the Tariff Act, is the
result of the General Agreement on Tariff and Trade and,
therefore, the levy of provisional duty should be in accordance
with Rule 13 of the 1995 Rules and Article 7.4 of the agreement
on Tariffs and Trade, 1994 (for short "the WTO Agreement"), c
which contemplates that the provisional duty shall be limited to
as short a period as possible, and, in fact, provides for the outer
limit for the imposition of provisional duty.
27. Learned counsel contended that in the instant case,
the provisional levy was finalized and validated by paragraph D
2 of the final anti-dumping duty notification dated 27th April,
2005, and by virtue of the said paragraph the provisional duty
was merely replaced by the final duty. Rule 20(2)(a) of the 1995
Rules uses the expression "where a provisional duty has been
levied" and "in absence of provisional duty", thereby making it E
clear that the final measure merely validates the provisional duty
already levied. The use of the said expression also establishes
~
that Rule 20(2)(a) applies only when the provisional duty had
in fact been levied, and therefore the said Rule has no
application to the interregnum period. This position is also F
clarified by Rule 21 of the 1995 Rules which provides that if
final duty is higher than the provisional duty already imposed
and collected, the differential shall not be collected from the
importer, and if it is lower, the differential shall be refunded to
the importer, argued the learned counsel. Learned counsel G
"--;-- asserted that the scheme of Rules 20 and 21 also makes it
clear that no additional liability can be fastened for the periods
prior to the date of final levy over and above the provisional duty
for the period during which such provisional levy was in force.
2a. c2oos) 3 sec 337. H
~.
226 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Learned counsel thus, argued that if Rule 20(2){a} is construed
. as conferring any power on the Central Government to levy duty
retrospectively, the Rule itself would become ultra vires the Act,
and such construction which maintains the validity of the
provision should be preferred. Commending us to the decisions
B of this Court in State of Madhya Pradesh & Anr. Vs.
Dadabhoy's New Chiri Miri Ponri Hill Colliery Co. Pvt. Ltd. 21
and Yudhishter Vs. Ashok Kumaf 8 , learned counsel submitted
that reading down of a legislation to maintain its validity is an
accepted principle of law.
c 28. Learned counsel then submitted that even if it is
assumed that the Government has the power to levy anti-
dumping duty retrospectively, even then the conditions
precedent for making such retrospective levy as mentioned in
Rule 17{1)(a) and Rule 20{2)(a), which respectively require the
D DA, to record: {i) a finding as to whether retrospective levy is
called for and if so, the reasons thereof and the date of
commencement of such levy and (ii) a specific finding to the
effect that the dumped imports would have, in the absence of
the provisional duty, led to injury, were not satisfied. Relying on
E the decision of this Court in Bhavnagar University Vs. Palitana
Sugar Mill (P) Ltd. & Ors. 29• Mr. Bagaria submitted that when
a statutory authority is required to discharge its functions in a
particular manner, such functions must be discharged in that
manner alone or not at all. Learned counsel urged that Section
F 9A which is the charging Section must be construed strictly, and
when the said Section itself makes the levy of duty contingent
upon the existence of notification, there can be no scope for
invoking any concept of continuity in the absence of a
notification.
G
29. Learned counsel urged that Section 9A{5) of the Tariff
Act does not have any application in the instant case as the
21. (1972) 1 sec 298.
28. (1987) 1 sec 204.
H 29. c2003) 2 sec 111.
.-:
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 227
DESIGNATED AUTHORITY [D.K. JAIN, J.]
anti-dumping duty referred to in that Section is the final duty, A
and not the provisional duty. The position is also clarified by
·--- the first and second proviso to the said sub-Section, in as much
as the first proviso refers to the extension of "such imposition"
by five years, and such extension can only be in relation to the
final levy, while second proviso relates to the extension of final B
levy for a further period of one year when the review is initiated
before the expiry of five years. Learned counsel urged that the
fact that the outer time limit of five years is only contemplated
in relation to the final duty and not the provisional duty is also
evident from Article 11.3 of the WTO Agreement. Learned c
counsel contended that the outer limit for the levy of provisional
duty cannot be set at naught by an alleged the~ry of continuity.
30. Learned counsel contended that in light of the decision
of this Court in Shenyang Matsushita S. Battery Co. Ltd. Vs.
Exide Industries Ltd. & Ors. 30 , the DA is required to construct D
normal value after sequentially applying the different methods
mentioned in paragraph 7 of Annexure I of the 1995 Rules, and
only if construction by the first two methods is not possible,
reliance can be placed on the third method. Learned counsel
contended that in the instant case, the domestic industry had E
premised their application on the assumption that normal value
can be constructed on the basis of any of the methods, and
therefore, it resorted to the last method viz. the price paid or
~
payable in India. This erroneous approach was adopted by the
DA in the Initiation Notification dated 29th October, 2003. The F
appellants objected to the same in their submissions before the
DA, and the same was ignored by the DA in its preliminary
findings, and thereafter, iri the disclosure statement. Learned
counsel contended that the method followed by the DA is
._,,, clearly in violation of the requirements of paragraph 7 of the
Annexure I of the 1995 Rules in as much as it did not undertake
G
any selection process for selecting market economy third
country, it did not invite any comments and it did not give any
opportunity to the parties in that regard.
30. (2005) 3 sec. H
228 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 31. Ms. Meenakshi Arora, learned counsel appearing on
behalf of Ningbo Nylon adopting the same line of arguments,
submitted that the second hearing granted to Ningbo Nylon by
the new DA on 9th March 2005, was only for the purpose of
Ningbo Nylon's price undertaking, and the same cannot be
B equated with the public hearing envisaged under Rule 6(6) of
the 1995 Rules, in as much as: (i) Section 98(1)(c)(iii) makes
it clear that the price undertaking is in the nature of an
agreement between a specific exporter and the Central
Government wherein the exporter agrees to revise its price in
c a manner that the injurious effect of dumping is eliminated; (ii)
confidential information has to be considered to ascertain the
injurious effect of dumping and (iii) in terms of Rule 7, the
hearing relating to price undertaking is confidential, and the
same does not relate to all the aspects of investigation or to
D all the parties before the DA. Learned counsel thus, urged that
even if it is assumed that the second hearing granted to counsel
for Ningbo Nylon was in the nature of a public hearing in terms
of Rule 6(6), the same cannot be considered as an effective
opportunity as it is inconceivable for any counsel to participate
in any meaningful discussion unless accompanied by the
E representative of the concerned exporter. Furthermore, the
notice for hearing on 9th March 2005, given on 7th March, 2005
could not be considered as an adequate opportunity keeping
in view the time difference between India and China.
!
F Submissions made on behalf of the Respondents:
32. Mr. Harin P. Raval, learned Additional Solicitor >
General, appearing ,on behalf of the DA, defending the decision '
of the Tribunal, contended that since the 1995 Rules were in
G the nature of a "super special legislation", having economic
policy overtones, this Court should adopt a policy of judicial
deference. Commending us to the decision of this Court in
Reserve Bank of India Vs. Peerless General Finance and
Investment Co. Ltd. & Ors. 31 , learned counsel urged that while
H 31. (1987) 1 sec 424.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 229
DESIGNATED AUTHORITY [D.K. JAIN, J.]
interpreting a legislation, the Courts should have regard to both A
,_
the text and context of the legislation, and in light of the fact that
the 1995 Rules contemplate adjustment of India's international
trade policy measures, allowing a great deal of leeway in terms
of policy operation, any judicial interpretation of the 1995 Rules
must accord with this object of these Rules. B
33. To start with, learned counsel strenuously urged that the
levy of anti-dumping duty as per the procedure laid down in
1995 Rules constitutes a legislative act. Drawing support from
the decisions of this Court in Shri Sitaram Sugar Company
Ltd. & Anr. Vs. Union of India & Ors. 32 and Dalmia Cement
c
(Bharat) Ltd. & Anr. Vs. Union of/ndia & Ors. 33 , learned counsel
stressed that it is a settled principle that price fixation is a
legislative function, and the legislature is competent to delegate
its power to its agent and authorize it to adjudicate and arrive
at findings of fact, which would be conclusive. Learned counsel D
·---- pleaded that it is again a settled principle of law that principles
of natural justice do not apply in case of legislative acts. In
support, reliance was placed on the decisions of this Court in
Ramesh Chandra Kachardas Porwal & Ors. Vs. State of
Maharashtra & Ors. 34; Saraswati Industrial Syndicate Ltd. & E
Ors. Vs. Union of lndia 35 and P.M. Ashwathanarayana Setty
& Ors. Vs. State of Kamataka & Ors. 36 • Moreover, in relation
-~
to the cases involving economic regulation, the Courts have
usually adopted a policy of deference as was held by this Court
in the The State of Gujarat & Anr. Vs. Shri Ambica Mills Ltd., F
Ahmedabad & Anr. 37 , asserted the learned counsel. In relation
to taxing statutes in particular, larger discretion is accorded in
light of their inherent complexity as was held in Jardine
h-+ 32. (1990) 3 sec 223. G
33. (1996) 10 sec 104.
34. (1981) 2 sec 630.
. 35. (1989) Supp (1) sec 696.
36. (1989) Supp (1) sec 696.
37. (1974) 4 sec 656. H
230 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Henderson Limited Vs. Workmen & Anr8 • Learned counsel
further contended that competence to legislate encompasses _._,
the competence to legislate both prospectively and
retrospectively as was held in Mis. Krishnamurthi & Co. Etc.
Vs. State of Madras & Anr. 39 and Empire Industries Ltd. & Ors.
B Vs. Union of India & Ors. 40 • Commending us to the decision
of this Court in Haridas Exports (supra), learned counsel urged
that since 'in ~n anti-dumping proceeding, no interest group
other than the domestic producers have full legal standing, it is
evident that the said proceedings are not adversarial, judicial
c or quasi-judicial in nature. However, at a later stage of his
arguments, the learned counsel candidly conceded that at best
the proceedings before the DA could be considered as
administrative in nature.
34. Learned counsel urged that it is also well settled that
D the principles of natural justice will take their color from the
context of the statutory provisions under which the issue is to
be adjudicated as has been observed in The New Prakash
Transport Co. Ltd. Vs. The New Suwama Transport Co. Ltd. 41
and Haryana Financial Corporation & Anr. Vs. Kai/ash
E Chandra Ahuja42 • Learned counsel submitted that the alleged
breach of natural justice principles has to be judged in light of
the prejudice caused to the party, and public interest, and not
merely on technicalities. Learned counsel asserted that in any +-
event in the instant case, the new DA had afforded an
F opportunity of hearing to the appellants on 7th March, 2005,
which they failed to avail of. Learned counsel submitted that at
the most the present case may be considered as one in which
only a "partial hearing" was granted, and, therefore, in such a
situation, the appellants were obliged to establish that some
G --r~
38. (1962) Supp (3 SCR 582).
39. (1973) 1 sec 15.
40. (1985) 3 sec 314.
41. AIR 1957 SC 232.
H 42. (2008) 9 sec 31.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 231
DESIGNATED AUTHORITY [D.K. JAIN, J.]
prejudice had been caused to them because of lack of proper A
•
,__. oral hearing. In support of the argument, reliance was placed
on the decision of this Court in State Bank of Patiafa & Ors.
Vs. S.K. Sharma43 • Controverting the stand of the appellants
that the recommendation of the DA was vitiated because the
incumbent DA had not heard the appellants, learned counsel B
placed heavy reliance on the decision in Ossein and Gelatine
Manufacturers' Association of India Vs. Modi Alkalies and
-+ Chemicals Limited & Anr. 44 , wherein despite the fact that
hearing was conducted by one authority, and the decision was
rendered by another, this Court did not set aside the said c
decision. Learned counsel emphasised that since in the instant
case the appellants have neither established prejudice, nor
have they challenged the findings of the DA on injury or in the
sunset review, there is no merit in these appeals. Relying on
P.M. Aswathanarayana Setty (supra), learned counsel pleaded D
--~ that having regard to the object of the legislation, this Court
should prefer an interpretation that would save the proeeedings
of the DA. Distinguishing the decision in PTC India Ltd. (supra),
learned counsel submitted that reliance on the said decision
by the appellants was misplaced in as much as in the said
E
judgment, the Court itself clarified that its findings shall not be
construed as a general principle of law applicable to other ·
enactments and Tribunals. Moreover, the proceedings under
Section 62 of the Electricity Act, 2003 are adversarial in nature,
and therefore they cannot be likened to an anti-dumping
investigation in which the only consideration is fairness in trade. F
Learned counsel asserted that while the proceedings under the
Electricity Act relate to regulation of electricity within the territory
of India, anti-dumping investigations, by their very nature, have
an international perspective; the decision of the Commission
·-~ under Electricity Act is binding whereas the findings of the DA G
are merely recommendatory; while the interests of various
groups have to be examined in proceedings under the
43. (1996) 3 sec 364.
44. (1989) 4 sec 264. H
232 SUPREME COURTREPORTS [2011] 1 S.C.R.
A Electricity Act, no interest group other than the domestic industry
has full legal standing in an anti-dumping investigation and that ~)
proceedings under the Electricity Act are held by a court of law,
but anti-dumping investigation is conducted by governmental
agencies through administrative procedures.
B
35. Mr. Krishnan Venugopal, learned senior counsel
appearing on behalf of the ASFI contended that the exact
scope and ambit of the principles of natural justice, including
the nature of hearing to be accorded must be decided keeping +-
in view the nature and object of the Tariff Act and the 1995
c Rules, and therefore, the question as to whether the hearing
contemplated under the 1995 Rules is oral or by written
representation will have an important bearing on the issue as
to whether the new DA was required to conduct a fresh public
hearing. According to the learned counsel even if the functions
D of the DA are held to be quasi-judicial in nature, the new DA is
not required to hold a fresh public hearing as under Rule 6(6)
of the 1995 Rules while interested parties are allowed to
present information orally, but the DA can take into
consideration only that information which is subsequently
E reproduced in writing and, therefore, the principles enunciated
in Gullapalli (supra) are not applicable in the instant case. In
that case, the oral hearing was preceded by written objections
and representations, while under the Tariff Act and Rules, the
sequence is reversed in as much as in proceedings before the
F DA, parties present oral information followed by reproduction
of that information in writing, argued the learned counsel.
Commending us to the decisions in General Manager, Eastern
Railway & Anr. Vs. Jawala Prosad Singh45; Madhya Pradesh
Industries Ltd. Vs. Union of India & Ors. 46; J.A. Naiksatam Vs.
G Prothonotary & Senior Master, High Court of Bombay &
Ors. 47 ; R Vs. Immigration Appeal Tribunal & Anr48 • and
45. (1970) 1 sec 103.
46. (1966) 1 SCR ~66.
47. (2004) 8 sec 653.
H 48. [1988] 2 All ER 65.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 233
DESIGNATED AUTHORITY [D.K. JAIN, J.]
Selvarajan Vs. Race Relations Board49 , learned counsel A
,......._
contended that as per the prescribed procedure an opportunity
to place the relevant information on record in writing is sufficient
compliance with the principles of audi alteram partem. To
buttress his stand, reliance was placed on the decisions of this
Court in Gramophone Company of India Ltd. Vs. Birendra B
Bahadur Pandey & Ors. 50; Mis. Tractoroexport, Moscow Vs.
Mis Tarapore & Company & Anr. 51 • and Jolly George
-+ Varghese & Anr. Vs. The Bank of Cochin. 52 • It was also
contended that since Sections 9A to 9C were introduced in the
Tariff Act in order to comply with India's WTO obligations, the c
interpretation of these provisions should be consistent with the
provisions of the treaty. It was urged that having submitted
written submissions on 10th September, 2004 pursuant to the
public hearing on 1st September, 2004, as also the rejoinder,
the appellants cannot complain of violation of the principles of
D
natural justice, more so when the DA had also afforded
opportunities to counsel of the appellants on two occasions i.e.
25th January, 2005 and 7th March, 2005, to appear before him
but the appellants failed to appear on both the occasions. It was
asserted that in any event the principles enunciated in Gul/apal/i
E
{supra) are not applicable to the instant case, in as much as
the role of the DA is merely recommendatory.
36. It was argued that the decision of a two judge Bench
in Reliance Industries {supra), relied upon on behalf of the
appellants, is per incuriam in light of the decision of the three F
judge Bench decision in Haridas Exports {supra), which was
not even noticed in Reliance Industries {supra).
37. As regards the decision in PTC India {supra), inter-
~·
a/ia, holding that whenever an appeal is provided against an
G
order, the determination becomes quasi-judicial, it was
49. (1976] 1 All ER 12.
50. (1984) 2 sec 534.
51. (1969) 3 sec 562.
52. (1980) 2 sec 360. H
234 SUPREME COURT REPORTS [2011] 1 S.C.R.
A submitted that as the said observations were made in the
context of the Electricity Act, which is entirely different in purport
and scope from the Tariff Act read with the 1995 Rules, the ratio
of the said decision has no bearing on the facts of the present
case. Learned counsel stressed that one of the attributes of a
B quasi-judicial authority is that it must render a binding decision,
and if its decision is merely advisory, deliberative, investigatory
or conciliatory in character, which has to be confirmed by
another authority before it becomes binding, then such a body
is administrative in character, as was observed by this Court
c in Union of India Vs. Mohan Lal Capoor. 53 , which is the case
here, as the role of the DA is merely recommendatory. In
support, reliance was placed on the decision of this Court in
Tata Chemicals (2) (supra).
38. Relying on the decisions of .this Court in P.
D Sambamurthy & Ors. Vs. State of Andhra Pradesh & Anr. 54;
Union of India Vs. K.M. Shankarappa 55 and B.B. Rajwanshi
Vs. State of U.P. & Ors. 56 , learned counsel urged that it is a
settled principle of law that the executive cannot sit in judgment
over the decision of a quasi-judicial body, and since the Central
E Government has the power to alter or annul the
recommendations of the DA, even logically the DA cannot be
held to be a quasi-judicial authority. Learned counsel pleaded
that a rigid application of the principles of natural justice in such
a situation would defeat the purpose of the administrative
F enquiry conducted by the DA which is conducted with a view
to elicit information from a broad spectrum of interested
persons, as was held in Jayantilal Amrit Lal Shodhan Vs. F.N.
Rana & Ors57 •
39. Learned counsel contended that there are certain
G
53. (1973) 2 sec 836.
54. (1987) 1 sec 362.
55. (2001) 1 sec 582.
56. (1988) 2 sec 415.
H 57. [1964] 5 SCR 294.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 235
DESIGNATED AUTHORITY [D.K. JAIN, J.]
peculiar features of the investigation conducted by the DA which A
make it manifest that the DA is not a quasi-judicial authority.
Firstly, in light of the fact that there are numerous interested
parties and many competing economic interests are involved
in an anti-dumping investigation, it is fallacious to assume that
the proceedings are in the nature of a simple /is between two B
parties. Secondly, the suo motu power invested in the DA to
conduct investigations is in furtherance of his policy-making role
"-+ in the nation's international trade regime. Thirdly, under Rule
7, the DA is required to keep certain information confidential,
and this procedure whereby the parties do not know what c
information is being taken into account by the DA while making
the determination is alien to quasi-judicial proceedings.
Fourthly, the information collected by the DA is not required to
be sworn on affidavit or otherwise and the witnesses do not
testify on oath. Moreover, Rule 6(8) of the 1995 Rules
D
~ empowers the DA to take into account unverified information,
which procedure is inconsistent with the DA being classified
lilt
as a quasi-judicial authority. Fifthly, the procedure of "sampling"
contemplated under Rule 17(3) allows ihe DA to limit its findings
,,
to a reasonable number of interested parties or to articles using
a statistically valid sample, and based on this, the DA can fix E
a country-wise margin of dumping which will apply to all
--- exporters, a procedure unknown to quasi-judicial proceedings.
40. Learned counsel contended that even if it is assumed
that the DA discharges quasi-judicial functions and the F
principles of natural are held to be applicable to the
proceedings before it, still it is not sufficient to merely allege
breach of natural justice, and actual prejudice must be
demonstrated, as was held in Haryana Financial Corporation
,...... (supra) and Managing Director, EC/L, Hyderabad & Ors. Vs. G
B. Karunakar & Ors. 58• It was asserted that in the present case,
the appellants have failed to demonstrate any prejudice to them
with reference to any material placed by them before the DA.
sa. (1993) 4 sec 121. H
ii: •
~
236 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A 41. In response to the challenge against the retrospective
~
levy of anti-dumping duty during the interregnum period
between 26th January, 2005 to 27th April, 2005, Mr. Venugopal
submitted that in absence of the stay granted by the Rajasthan
High Court on 25th January, 2005, the Central Government
B could have, under the second proviso to Rule 13, extended the
provisional duty for a further period of nine months from 25th
January, 2005. Learned counsel further urged that under Rule
20(2)(a), the DA after recording a finding of actual injury, was +-'
empowered to recommend imposition of anti-dumping duty
c from the date of the imposition of the provisional duty. Learned
counsel submitted that the appellant's contention that Rule
20(2)(b) is ultra vires the Tariff Act as the power to levy anti-
dumping duty retrospectively is found in su.b-section (3) of
Section 9A of the Tariff Act is misconceived as an anti-dumping
investigation always relates to a past period known as the
D
"period of investigation", and therefore, there is no question of ~-
retrospectivity. ).
42. Mr. Venugopal also pleaded that the present appeals
had in fact been rendered infructuous as the original final
,.
E findings by the DA are no longer in existence in view of the fact
that a sunset review has been conducted by the DA, pursuant
to which the Central Government has revised the levy of duty
vide its notification dated 31st March, 2009, which has not been
put in issue by the appellants.
F
43. Mr.C.S. Vaidyanathan, learned senior counsel
appearing on behalf of ASFI, urged that the 1995 Rules are a
complete code in themselves; Rule 6 provides the framework
within which the DA has to operate, and therefore, the
applicability of principles of natural justice is limited to those .....-4
G
areas that are provided under the 1995 Rules. Learned counsel
contended that anti-dumping investigation conducted by the DA
is administrative in nature, whereas the imposition of anti-
dumping duty is legislative in character. Relying on the
decisions of this Court in Keshav Mills (supra); Ramesh
H ' .
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 237
DESIGNATED AUTHORITY [D.K JAIN, J.]
Chandra Kachardas Porwal (supra); Union of India & Anr. Vs. A
Cynamide India & Anr. 59; Shri Sita Ram Sugar Company
Limited & Anr. Vs. Union of India & Ors. 60; State Bank of
Patiala (supra) and Viveka Nand Sethi Vs. Chairman, J&K
Bank Ltd. & Ors. 61 , learned counsel submitted that there is no
$traight jacket formula to apply the principles of natural justice, B
and the effect of the alleged breach of natural justice has to be
considered while determining the remedial action. It was
·-+.- asserted that there was no prejudice caused to the appellants
due to the alleged breach of natural justice, and therefore, there
was no merit in the appellants' claim. It was urged that if this c
Court were to conclude that there has been a violation of the
principles of natural justice, it would be appropriate to remand
the matter back to the DA for de novo adjudication from the
stage the procedural irregularity had intervened.
.-k 44. Commending us to the definition of the term D
"determination" as contained in the Webster's Dictionary and
the Oxford Dictionary, learned counsel submi~ed that the use
of the said term in Section 9C of the Tariff Act, when understood
in the context of the 1995 Rules, leads to the incontrovertible
conclusion that it is the determination by the DA that is made E
appealable, and not the notification levying anti-dumping duty.
... ~
Therefore, it is manifest that the imposition of duty is legislative
in nature.
Discussion: F
45. Before addressing the contentions advanced on behalf
of the parties, it will be necessary and expedient to survey the
relevant statutory provisions under which the levy, questioned
in these appeals, has been imposed. Section 9A of the Tariff
~ .... Act contemplates levy of anti-clumping duty on dumped articles. G
It reads as follows:
59. (1987) 32 sec 120.
60. (1990) 3 sec 223.
61. (2005) 5 sec 337. H
238 SUPREME COURT REPORTS [2011] 1 S.C.R.
A 9A Anti-dumping duty on dumped articles.- (1) Where _....,_
any article is exported from any country or territory
(hereinafter in this section referred to as the exporting
country or territory) to India at less than its normal value,
then, upon the importation of such article into India, the
B Central Government may, by notification in the Official
Gazette, impose an anti-dumping duty not exceeding the
margin of dumping in relation to such article.
-+-
Explanation.- For the purposes of this section,-
c {a) "margin of dumping", in relation to an article, means the -
difference between its export price and its normal value;
(b) "export price", in relation to an article, means the price
of the article exported from the exporting country or territory
D and in cases where there is no export price or where the
-~
export price is unreliable because of association or a
compensatory arrangement between the exporter and the
importer or a third party, the export price may be
constructed on the basis of the price at which the imported
articles are first resold to an independent buyer or if the
E
article is not resold to an independent buyer, or not resold
in the condition as imported, on such reasonable basis as
may be determined in accordance with the rules made __,
under sub-section (6);
F (c) "normal value", in relation to an article, means -
(i) the comparable price, in the ordinary course of trade,
for the like article when meant for consumption in the
exporting country or territory as determined in accordance
G with the rules made under sub-section (6); or ....
(ii) when there are no sales of the like article in the ordinary
course of trade in the domestic- market of the exporting
country or .'erritory, or when because of the particular
market situation or low volume of the sales in the domestic
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 239
DESIGNATED AUTHORITY [D.K. JAIN, J.]
market of the exporting country or territory, such sales do A
,_...,.._ not permit a proper comparison, the normal value shall be
either-
(a) comparable representative price of the like article
when exported from the exporting country or territory
B
to an appropriate third country as determined in
accordance with the rules made under sub-section
(6); or
.. -+
(b) the cost of production of the said article in the
country of origin along with reasonable addition for c
administrative, selling and general costs, and for
profits, as determined in accordance with the rules
made under sub-section (6):
Provided that in the case of import of the article from a D
country other than the country of origin and where the article
has been merely transshipped through the country of export
or such article is not produced in the country of export or
there is no comparable price in the country of export, the
normal value shall be determined with reference to its
E
price in the country of origin.
_ .. - (2) The Central Government may, pending the
determination in accordance with the provisions of this
section and the rules made thereunder of the normal value
and the margin of dumping in relation to any article, impose F
on the importation of such article into India an anti-dump
ing duty on the basis of a provisional estimate of such value
and margin and if such anti-dumping duty exceeds the
margin as so determined:-
~ > G
(a) the Central Government shall, having regard to such
determination and as soon as may be after such
determination, reduce such anti-dumping duty; and
(b) refund shall be made of so much of the anti-dumping
H
240 SUPREME COURT REPORTS [2011] 1 S.C.R.
A duty which has been collected as is in excess of the anti-
dumping duty as so reduced. ....__
(2A) Notwithstanding anything contained in sub-section (1)
and sub-section (2), a notification issued under sub-section
(1) or any anti-dumping duty imposed under sub-section
B
(2), unless specifically made applicable in such notification
or such imposition, as the case may be, shall not apply to
articles imported by a hundred per cent. Export-oriented
.+-..
undertaking or a unit in a free trade zone or in a special
economic zone.
c
Explanation.-For the purposes of this sub-section, the
expression "hundred per cent export-oriented undertaking",
"free trade zone" and "special economic zone" shall have
the meanings assigned to them in Explanation 2 to sub-
D section (1) of section 3 of the Central Excise Act, 1944.
4-.
(3) If the Central Government, in respect of the dumped
article under inquiry, is of the opinion that -
(i) there is a history of dumping which caused injury or that
E the importer was, or should have been, aware that the
exporter practices dumping and that such dumping would
cause injury; and
(ii) the injury is caused by massive dumping of an article
F imported in a relatively short time which in the light of the
timing and the volume of imported article dumped and
other circumstances is likely to seriously undermine the
remedial effect of the anti-dumping duty liable to be levied,
· the Central Government may, by notification in the Official
Gazette, levy anti-dumping duty retrospectively from a date
G
prior to the date of imposition of anti-dumping duty under
sub-section (2) but not beyond ninety days from the date
of notification under that sub-section, and notwithstanding
anything contained in any law for the time being in force,
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION 241
v. DESIGNATED AUTHORITY [D.K. JAIN, J.]
such duty shall be payable at such rate and from such date A
·~~
as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section
shall be in addition to any other duty imposed under this
Act or any other law for the time being in force. B
(5) The anti-dumping duty imposed under this section shall,
unless revoked earlier, cease to have effect on the expiry
·1~ of five years from the date of such imposition:
Provided that if the Central Government, in a review, is of c
the opinion that the cessation of such duty is likely to lead
to continuation or recurrence of dumping and injury, it may,
from time to time, extend the period of such imposition for
a further period of five years and such further period shall
commence from the date of order of such extension: D
Provided further that where a review initiated before the
expiry of the aforesaid period of five years has not come
to a conclusion before such expiry, the anti-dumping duty
may continue to remain in force pending the outcome of
such a review for a further period not exceeding one year. E
(6) The margin of dumping as referred to in sub-section
-..- (1) or sub-section (2) shall, from time to time, be
ascertained and determined by the Central Government,
after such inquiry as it may consider necessary and the F
Central Government may, by notification in the Official
Gazette, make rules for the purposes of this section, and
without prejudice to the generality of the foregoing, such
rules may provide for the manner in which articles liable
for any anti-dumping duty under this section may be G
identified, and for the manner in which the export price and
• ""' the normal value of, and the margin of dumping in relation
to, such articles may be determined and for the
assessment and collection of such anti-dumping duty.
H
242 SUPREME COURT REPORTS [2011] 1 S.C.R.
A (7) Every notification issued under this section shall, as
soon ·as may be after it is issued, be laid before each
House of Parliament.
(8) The provisions of the Customs Act, 1962 (52 of 1962)
B and the rules and regulations made thereunder, relating
to the date for determination of rate of duty, non-levy,
short levy, refunds, interest, appeals,. offences, and
penalties shall, as far as may be, apply to the duty
chargeable under this section as they apply in relation to
duties leviable under that Act."
c
46. Section 9C of the Tariff Act provides for an appeal
against the order passed under Section 9A thereof and reads
thus:
D "9C. Appeal.-(1) An appeal against the order of
determination or review thereof regarding the existence,
degree and effect of any subsidy or dumping in relation to
import of any article shall lie to the Customs, Excise and
Gold (Control) Appellate Tribunal constituted under section
129 of the Customs Act, 1962 (52 of 1962) (hereinafter
E
referred to as the Appellate Tribunal).
(1A) An appeal under sub-section (1) shall be
accompanied by a fee of fifteen thousand rupees --r- •
F ·(1 B) Every application made before the Appellate Tribunal-
(a) in an appeal under sub-section (1 ), for grant of stay or
for rectification of mistake or for any other purpose; or
(b) for restoration of an appeal or an application, shall be
G accompanied by a fee of five hundred rupees. ~ ~
(2) Every appeal under this section shall be filed within
ninety days of the date of order under appeal:
Provided that the Appellate Tribunal may entertain any
H
... AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION
v. DESIGNATED AUTHORITY [D.K. JAIN, J.)
243
appeal after the expiry of the said period of ninety days, if A
it is satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time.
(3) The Appellate Tribunal may, after giving the parties to
the appeal, an opportunity of being heard, pass such
8
orders thereon as it thinks fit, confirming, modifying or
annulling the order appealed against.
(4) The provisions of sub-sections (1 ), .(2), (5) and (6) of
section 129G of the Customs Act, 1962 (52 of 1962) shall
apply to the Appellate Tribunal in the such Bench shall C
consist of the President and not less than two members
and shall include one judicial member and one technical
member.
47. The 1995 Rules lay down a comprehensive procedure D
for identification, assessment and collection of anti-dumping
duty on dumped articles. The Rules, relevant for these appeals,
read as under: ·
4. Duties of the designated authority.-(1) It shall be the duty
of the designated authority in accordance with these rules- E
(a) to investigate as to the existence, degree and
effect of any alleged dumping in relation to import
of any article;
F
(b) to identify the article liable for anti-dumping duty;
(c) to submit its findings, provisional or otherwise to
Central Government as to-
(i) normal value, export price and the margin of G
dumping in relation to the article under
investigation, and
(ii) the injury or threat of injury to an industry
established in India or material retardation to
H
244 SUPREME COURT j'EPORTS [2011] 1 S.C.R.
A the establishment o'f an industry in India
consequent upon the import of such article
from the specified countries.
(d) to recommend the amount of anti-dumping duty
equal to the margin of dumping or less, which if
B
levied, would remove the injury to the domestic
industry, and the date of commencement of such
duty; and
(e} to review the need for continuance of anti-dumping
c duty.
5. Initiation of investigation.- (1) Except as provided in sub-
rule (4), the designated authority shall initiate an
investigation to determine the existence, degree and effect
D of any alleged dumping only upon receipt of a written
application by or on behalf of the domestic industry.
(2) An application under sub-rule (1) shall be in the
form as may be specified by the designated
authority and the application shall be supported by
E evidence of -
(a} dumping
(b} injury, where applicable, and
F (c} where applicable, a causal link between such
dumped imports and alleged injury.
(3) The designated authority shall not initiate an
investigation pursuant to an application made under
G sub-rule (1) unless -
--4 .
(a} it determines, on the basis of an examination
of the degree of support for, or opposition to the
application expressed by domestic producers of the
like product, that the application has been made by
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 245
DESIGNATED AUTHORITY [D.K. JAIN, J.]
or on behalf of the domestic industry: A
Provided that no investigation shall be initiated if domestic
producers expressly supporting the application account for
less than twenty five per cent of the total production of the
like article by the domestic industry, and 8
(b) it examines the accuracy and adequacy of the evidence
provided in the application and satisfies itself that there is
sufficient evidence regarding -
(i) dumping, c
{ii) injury, where applicable; and
(iii) where applicable, a causal link between such dumped
imports and the alleged injury, to justify the initiation of an
investigation. D
Explanation. - For the purpose of this rule the
application shall be deemed to have been made by or on
behalf of the domestic industry, if it is supported by those
domestic producers whose collective output constitute E
more than fifty per cent of the total production of the like
article produced by that portion of the domestic industry
expressing either support for or opposition, as the case
may be, to the application.
(4) Notwithstanding anything contained in sub-rule (1) F
the designated authority may initiate an
investigation suo motu if it is satisfied from the
information received from the Commissioner of
Customs appointed under the Customs Act, 1962
{52 of 1962) or from any other source that sufficient G
evidence exists as to the existence of the
circumstances referred to in clause (b) of sub-rule
(3).
(5) The designated authority shall notify the government H
246 SUPREME COURT REPORTS [2011) 1 S.C.R. •
A of the exporting country before proceeding to
initiate an investigation.
6. Principles governing investigations.- (1) The
designated authority shall, after it has decided to initiate
investigation to determine the existence, degree and effect
B
of any alleged dumping of any article, issue a public notice
notifying its decision and such public notice shall, inter alia,
contain adequate information on the following:-
.· (i) · the name of the exporting country or countries and
c the article involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the
application;
D
(iv) a summary of the factors on which the allegation of
injury is based;
(v) the address to which representations by interested
E parties should be directed; and
(vi) the time-limits allowed to interested parties for
making their views known.
(2) A copy of the public notice shall be forwarded by
F the designated authority to the known exporters of
the article alleged to have been dumped, the
Governments of the exporting countries concerned
and other interested parties.
(3) The designated authority shall also provide a copy
G
of the application referred to in sub-rule (1) of Rule
5 to-
(i) the known exporters or to the concerned trade
association where the number of exporters is large,
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 247
DESIGNATED AUTHORITY [D.K. JAIN, J.]
and A
(ii) the governments of the exporting countries:
Provided that the designated authority shall also make
available a copy of the application to any other interested
party who makes a request therefor in writing. B
(4) The designated authority may issue a notice calling for
~ -'/-
any information, in such form as may be specified by it,
from the exporters, foreign producers and other interested
parties and such information shall be furnished by such c
persons in writing within thirty days from the date of receipt
of the notice or within such extended period as the
designated authority may allow on sufficient cause being
shown.
Explanation: For the purpose of this sub-rule, the notice D
calling for information and other documents shall be
deemed to have been received one week from the date
on which it was sent by the designated authority or
transmitted to the appropriate diplomatic representative of
the exporting country. E
(5) The de$ignated authority shall also provide opportunity
~ ~
to the industrial users of the article under inv~tigation, and
to representative consumer organizations in cases where
the article is commonly sold at the retail level, to furnish F
information which is relevant to the investigation regarding
dumping, injury where applicable, and causality.
(6) The designated authority may allow an interested party
or its representative to present information relevant to the
investigation orally but such oral information shall be taken G
into consideration by the designated authority only when
it is subsequently reproduced in writing.
(7) The designated authority shall make available the
evidence presented to it by one interested party to the H
-··-----
248 SUPREME COURT REPORTS [2011] 1 S.C.R. •
A other interested parties, participating in the investigation.
+-•
(8) In a case where an interested party refuses access to,
or· otherwise does not provide necessary information
within a reasonable period, or significantly impedes the
investigation, the designated authority may record its
B
findings on the basis of the facts available to it and make
such recommendations to the Central Government as it
deems fit under such circumstances.
7. Confidential information- (1) Notwithstanding anything
c contained in sub-rules (2), (3)and (7) of rule 6, sub-rule (2)
of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule
17,the copies of applications received under sub-rule (1)
of rule 5, or any other information provided to the
designated authority on a confidential basis by any party
D in the course of investigation, shall, upon the designated
authority being satisfi~d as to its confidentiality, be treated
as such by it and no such information shall be disclosed
to any other party without specific authorization of the party
providing such information.
E
(2) The designated authority may require the parties
providing information on confidential basis to furnish non-
confidential summary thereof and if, in the opinion of a
party providing such information, such information is not
susceptible of summary, such party may submit to the
F designated authority a statement of reasons why
summarisation is not possible.
(3) Notwithstanding anything contained in sub-rule (2), if the
designated authority is satisfied that the request for
G confidentiality is not warranted or the supplier of the
information is either unwilling to make the information
public or to authorize its disclosure in a generalized or
summary form, it may disregard such information. '
10. Determination of normal value, export price and
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 249
DESIGNATED AUTHORITY [D.K. JAIN, J.)
margin of dumping. - An article shall be considered as A
being dumped if it is exported from a country or territory
to India at a price less than its normal value and in such
circumstances the designated authority shall determine the
normal value, export price and the margin of dumping
taking into account, inter alia, the principles laid down in B
Annexure I to these rules.
11. Determination of injury. - (1) In the case of imports
from specified countries, the designated authority shall
record a further finding that import of such article into India C
causes or threatens material injury to any established
industry in India or materially retards the establishment of
any industry in India.
(2) The designated authority shall determine the injury to·
domestic industry, threat of injury to domestic industry, D
material retardation to establishment of domestic industry
and a causal link between dumped imports and injury,
taking into account all relevant facts, including the volume
of dumped imports, their effect on price in the domestic
market for like articles and the consequent effect of such .E
imports on domestic producers of such articles and iA'
accordance with the principles set out in Annexure II to
'r these rules.
(3) The designated authority may, in exceptional cases,
F
give a finding as to the existence of injury even where a
substantial portion of the dolJlestic industry is not injured,
if-
(i) there is a concentration of dumped imports into an
isolated market, and G
(ii) the dumped articles are causing injury to the
producers of all or almost all of the production within
such market.
H
250 SUPREME COURT REPORTS [2011) 1 S.C.R.
A 12. Preliminary findings. - (1) The designated authority
shall proceed expeditiously with the conduct of the
investigation and shall, in appropriate cases, record a
preliminary finding regarding export price, normal value
and margin of dumping, and in respect of imports from
B specified countries, it shall also record a further finding
regarding injury to the domestic industry and such finding
shall contain sufficiently detailed information for the
preliminary determinations on dumping and injury and shall
refer to the matters of fact and law which have led to
c arguments being accepted or rejected. It will also contain:-
(i) the names of th,e suppliers, or when this is
impracticable, the supplying countries involved;
(ii) a description of the article which is sufficient for
D custbms purposes;
(iii)' the margins of dumping established and a full
explanation of the reasons for the methodology
used in the establishment and comparison of the
export price and the normal value;
E
(iv) considerations relevant to the injury determination;
(v)
and
the main reasons leading to the determination.
·-.
F
2. The designated authority shall issue a public notice
recording its preliminary findings.
16. Disclosure of information. - The designated authority
shall, before giving its final findings, inform all interested
G parties of the essential facts under consideration which
form the basis for its decision.
17. Final findings. - (1) The designated authority shall,
within one year from the date of initiation of an
H investigation, determine as to whether or not the article
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 251
DESIGNATED AUTHORITY [D.K. JAIN, J.]
under investigation is being dumped in India and submit A
to the Central Government its .final finding -
(a) as to, -
(i) the export price, normal value and the margin of
dumping of the said article; B
(ii) whether import of the said article into India, in the
case of imports from specified countries, causes
or threatens material injury. to any industry
established in India or materially retards the c
establishment of any industry 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, D
___.._~
the r~asons 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 E
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 F
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,
(b) recommending the amount of duty which, if levied, G
, _>
would remove the injury where applicable, to the
domestic industry.
(2) The final finding, if affirmative, shall contain all
....,. information on the matter of facts and law and
H
252 SUPREME COURT REPORTS [2011] 1 S.C.R.
A reasons which have led to the conclusion and shall
also contain information regarding- ~~
(i) the names of the suppliers, or when this is
impracticable, the supplying countries involved;
B (ii) a description of the product which is sufficient for
customs purposes;
,_
(iii) the margins of dumping established and a full +
_explanation of the reasons for the methodology
c used in the establishment and comparison Qf the
export price and the normal value;
(iv) Considerations relevant to the injury determination;
and
D (v) the main reasons leading to the determination.
.__.____
(3) The designated authority shall determine an
individual margin of dumping for each known
exporter or producer concerned of tha article under
E investigation:
Provided that in casks where the number of exporters,
producers, importers or types of articles involved are so
large as to make such determination impracticable, it may ~~
limit its findings either to a reasonable number of interested
F 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:
_..._
H Provided further that the designated authority shall,
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 253
DESIGNATED AUTHORITY [D.K. JAIN, J.]
determine an individual margin of dumping for any exporter A
--·~ 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. B
(4) The designated authority shall issue a public notice
,,,._ recording its final findings.
20. Commencement of duty. - (1) The anti-dumping duty
levied under rule 13 and rule 18 shall take effect from the c
date of its publication in the Official Gazette.
(2) Notwithstanding anything contained in sub-rule (1)-
(a) where a provisional duty has been levied and where
D
/j,_, the designated authority has recorded a final finding of
injury or where the designated authority has recorded a
final finding of threat of injury and a further finding that the
effect of dumped imports in the absence of provisional
duty would have led to injury, the anti-dumping duty may
be levied from the date of imposition of provisional duty; E
(b) in the circumstances referred to in sub-section (3) of
-···..,...- section 9A of the Act, the anti-dumping duty may be levied
retrospectively from the date commencing ninety days
prior to the imposition of such provisional duty: F
Provided that no duty shall be levied retrospectively on
imports entered for home consumption before initiation of
the investigation:
> Provided further that in the cases of violation of price G
'
undertaking referred to in sub-rule (6) of rule 15, no duty
shall be levied retrospectively on the imports which have
entered for home consumption before the violation of the
terms of such undertaking.
H
254 SUPREME COURT REPORTS [2011] 1 S.C.R.
A Provided also that notwithstanding anything contained in
the foregoing proviso, in case of violation of such
undertaking, the provisional duty shall be deemed to have
been levied from the date of violation of the undertaking
or such date as the Central Government may specify in
B each case.
21. Refund of duty. - (1) If the anti-dumping duty
imposed by the Central Government on the basis
of the final finding~ of the ·investigation conducted
by the designated authority is higher than the
c provisional duty already imposed and collected, the
differential shall not be collected from the importer.
. (2) If, the anti-dumping duty fixed after the conclusion
of the investigation is lower than the provisional duty
D already imposed and collected, the differential shall
be refunded to tt:ie importer.
(3) If the provisional duty imposed by the Central
Government is withdrawn in accordance with the
provisions of sub-rule (4) of rule 18, the provisional
E
duty already imposed and collected, if any, shall be
refunded to the importer."
48. Thus, the first and foremost question for adjudication
is the nature of proceedings before the DA appointed by the
F Central Government under Rule 3 of the 1995 Rules for
conducting investigations for the purpose of levy of anti-
dumping duty in terms of Section 9A of the Act. To put it
differently, the question is whether the decision of the DA is
legislative, administrative or quasi-judicial in character?
G However, for the purpose of the present case, we shall confine
our discussion only to the question as to whether the function
of the DA is administrative or quasi-judicial in character as Mr.
·Rawal, learned counsel appearing for the DA had finally
conceded before us that it is not legislative in nature.
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 255
DESIGNATED AUTHORITY [D.K. JAIN, J.)
49. More often than not, it is not easy to draw a line A
demarcating an administrative decision from a quasi-judicial
decision. Nevertheles~. the aim of both a quasi-judicial function
as well as an administrative function is to arrive at a just
decision. In AK. Kraipak & Ors. Vs. Union of India & Ors. 62,
this Court had observed that the dividing line between an B
administrative power and a quasi-judicial power is quite thin
and is being gradually obliterated. For determining whether a
power is an administrative power or a quasi-judicial power,
regard must be had to: (i) the nature of the power conferred;
(ii) the person or persons on whom it is conferred; (iii) the c
framework of the law conferring that power; (iv) the
consequences ensuing from the exercise of that power and (v)
the manner in which that power is expected to be exercised.
50. The first leading case decided by this Court on the
point was Khushaldas S. Advani (supra). In that case, while D
dealing with the question whether the governmental function of
requisitioning property under Section 3 of the Bombay Land
Requisition Ordinance, 1947 was an administrative or quasi-
judicial function, Das J. (as His Lordship then was), while
concurring with the majority, in his separate judgment, upon E
reference to a long line of cases expressing divergent views,
deduced the following principles, which could be. applied for
determining the question posed in para 48 supra:
"(i) that if a statute empowers an authority, not being a F
Court in the ordinary sense, to decide disputes arising out
of a claim made by one party under the statute which claim
is opposed by another party and to determine the
respective rights of the contesting parties who are
opposed to each other, there is a lis and prima facie, and G
in the absence of anything in the statute to the contrary it
is the duty of the authority to act judicially and the decision
of the authority is a quasi-judicial act; and
62. (1969) 2 sec 262. H
256 SUPREME COURT REPORTS (2011] 1 S.C.R.
A (ii) that if a statutory authority has power to do any act which
will prejudicially affect the subject, then, although there are
not two parties apart from the authority and the contest is
between the authority proposing to do the act and the
subject opposing it, the final determination of the authority
8 will yet be a quasi-judicial act provided the authority is
required by the statute to act judicially."
51. In Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmi
Chand & Ors. 63 , a Constitution Bench of this Court had
observed that:
c
"Often the line of distinction between decisions judicial and
administrative is thin: but the principles for ascertaining the
true character of the decisions are well-settled. A judicial
decision is not always the act of a judge or a tribunal
D invested with power to determine questions of law or fact:
it must however be the act of a body or authority invested
by law with authority to determine questions or disputes .
affecting the rights of citizens and under a duty to act
judicially. A judicial decision always postulates the
E existence of a duty laid upon the authority to act judicially.
Administrative authorities are often invested with authority
or power to determine questions, which affect the rights
of citizens. The authority may have to invite objections to
the course of action proposed by him, he may be under a
duty to hear the objectors, and his decision may seriously
F
affect the rights of citizens but unless in arriving at his
decision he is required to act judicially, his decision will
be executive or administrative. Legal authority to
determine questions affecting the rights of citizens, does
not make the determination judicial: it is the duty to act
G
judicially which invests it with that
character............................................................... .
........ ~ ...................................................................To
H 63. 1963 Supp (1) SCR 242.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 257
DESIGNATED AUTHORITY [D.K. JAIN, J.]
make a decision or an act judicial, the following criteria A
-:-..............
must be satisfied:
( 1) it is in substance a determination upon investigation
•
of a question by the application of objective standards to
facts found in the light of pre-existing legal rule; B
. ,,,_ (2) it declares rights or imposes upon parties obligations
affecting their civil rights; and
(3) that the investigation is subject to certain procedural
attributes contemplating an opportunity of presenting its c
case to a party, ascertainment of facts by means of
evidence if a dispute be on questions of fact, and if the
dispute be on question of law on the presentation of legal
argument, and a decision resulting in the disposal of the
matter on findings based upon those questions of law and D
/~,
fact."
52. Having examined the scheme of the Tariff Act read with
the 1995 Rules on the touchstone of the aforenoted principles,
particularly the first principle enunciated in Khusha/das S.
Advani (supra), we have no hesitation in coming to the E
conclusion that this is an obvious case where the DA exercises
quasi-judicial functions and is bound to act judicially. A cursory
-· -oor-
look at the relevant Rules would show that the DA determines
the rights and obligations of the 'interested parties' by applying
objective standards based on the material/infcnnation/evidence F
presented by the exporters, foreign producers and other
'interested parties' by applying the procedure arid principles
laid down in the 1995 Rules. Rule 5 of the 1995 Rules provides
that the DA shall initiate an investigation so as to determine
/ ~· the existence, degree and effect of any alleged dumping upon G
the receipt of a written application by or on behalf of the
domestic industry; sub-rule (4) thereof empowers the DA to
initiate an investigation suo motu on the basis of information
received from the Commissioner of Customs or from any other
source. When the DA has decided to initiate an investigation, H
258 SUPREME COURT REPORTS [2011) 1 S.C.R.
•
A Rule 6 requires that a public notice shall be issued to all the
interested parties as mentioned in Rule 2(c) of the 1995 Rules, --.-
as also to industrial users of the product, and to the
representatives of the consumer organizations in cases when
the product is commonly sold at the retail level. It is manifest
B that while determining the existence, degree and effect of the
alleged dumping, the DA determines a '/is' between persons
supporting the levy of duty and those opposing the said levy.
-i..
53. Further, it is also clear from the scheme of the Tariff
Act and the 1995 Rules that the determination of existence,
c effect and degree of alleged dumping is on the basis of criteria
mentioned in the Tariff Act and 1995 Rules, and an anti-
dumping duty cannot be levied unless, on the basis of the
investigation, it is established that there is: (i) existence of
dumped imports; (ii) material injury to the domestic industry and,
D (iii) a causal link between the dumped imports and the injury.
_._ __
Rule 10 of the said Rules lays down the criteria for the
determination of i.he normal value, export price and margin of
dumping, while Rule 11 deals with the determination of injury
which according to Annexure II to the 1995 Rules is based on
E positive evidence and involves an objective examination of both:
(a) the volume and the effect of the dumped imports on prices
in the domestic market for like products, and{b) the consequent
impact of these imports on domestic producers of such
-_,,_. -.
products. (See: S&S Enterprise Vs. Designated Authority &
F Ors. 64). It is evident that the determination of injury is premised
on an objective examination of the material submitted by the
parties. Moreover, under Rufe 6(7) of the 1995 Rules, the DA
is required to make available the evidence presented to it by
one party to other interested parties, participating in the
G investigation. It is also pertinent to note that Rule 12 of the 1995 -...(
Rules which deals with the preliminary findings, explicitly
provides that such findings shall "contain sufficiently detailed
information for the preliminary determinations on dumping and
injury and shall refer to the matters of fact and law which have
H 64. c2oos) 3 sec 337.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 259
DESIGNATED AUTHORITY [D.K. JAIN, J.]
,_,,.._ led to arguments being accepted or rejected." A similar A
stipulation is found in relation to the final findings recorded by
the DA under Rule 17(2) of the 1995 Rules. Above all, Section
9C of the Tariff Act provides for an appeal to the Tribunal
against the order of determination or review thereof regarding
the existence, degree and effect of dumping in relation to B
imports of ~ny article, which order, obviously has to be based
,,,,_ on the de~ermination and findings of the DA. The cumulative
effect of all these factors leads us to an irresistible conclusion
that the DA performs quasi-judicial functions under the Tariff Act
read with the 1995 Rules. c
54. Having come to the conclusion that the DA is entrusted
with a quasi-judicial function, the next question for consideration
is whether or not the decision of the DA dated 9th March 2005,
returning the final findings in terms of Rule 17 of th~ 1995 Rules
is in breach of the principles of natural justice, resulting in D
--~-
vitiating the subject notification under Rule 18 of the. said Rules?
55. It is trite that rules of "natural justice" are not embodied
rules. The phrase "natural justice" is also not capable of a
precise definition. The underlying principle of natural justice, E
evolved under the common law, is to check arbitrary exercise
of power by the State or its functionaries. Therefore, the principle
-~ implies a duty to act fairly i.e. fair play in action. In A.K. Kraipak
(supra), it was observed that the aim of rules of natural justice
is to secure justice or to put it negatively to prevent miscarriage F
of justice.
56. In Mohinder Singh Gill (supra), upon consideration of
several cases, Krishna Iyer, J. in his inimitable style observed
thus:
~
G
"48. Once we understand the soul of the rule as fairplay in
action - and it is so - we must hold that it extends to
both the fields. After all, administrative power in a
democratic set-up is not allergic to fairness in action and
discretionary executive justice cannot degenerate into H
260 SUPREME COURT REPORTS [2011] 1 S.C.R. •
A unilateral injustice. Nor is there ground to be frightened of
delay, inconvenience and expense, if natural justice gains
access. For fairness itself is a flexible, pragmatic and
relative concept, not a rigid, ritualistic or sophisticated
abstraction. It is not a bull in a china shop, nor a bee in
B one's bonnet. Its essence is good conscience in a given
situation: nothing more - but nothing less. The
'exceptions' to the rules of natural justice are a misnomer
or rather are but a shorthand form of expressing the idea
that in those exclusionary cases nothing unfair can be
c inferred by not affording an opportunity to present or meet
a case. Text-book excerpts and ratios from rulings can be
heaped, but they all converge to the same point that audi
a/teram partem is the justice of the law, without, of course,
making law lifeless, absurd, stultifying, self-defeating or
plainly contrary to the common sense of the situation."
D
. 57. In Swadeshi Cotton Mills Vs. Union of lndia65 , R.S.
Sarkaria, J., speaking for the majority in a three-Judge Bench,
lucidly explained the meaning and scope of the concept of
"natural justice". Referring to several decisions, His Lordship
E observed thus:
"Rules of natural justice are not embodied rules. Being
means to an end and not an end in themselves, it is not
possible to make an exhaustive catalogue of such rules.
F But there are two fundamental maxims of natural justice viz.
(i) audi alteram partem and (ii) nemo judex in re sua. The
audi alteram partem rule has many facets, two of them
being (a) notice of the case to be met; and (b) opportunity
to explain. This rule cannot be sacrificed at the altar of
administrative convenience or celerity. The general
G principle-as distinguished from an absolute rule of
uniform application-seems to be that where a statute
does not, in terms, exclude this rule of prior hearing but
contemplates a post-decisional hearing amounting to a full
H 65. (1981) 1 sec 664.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 261
DESIGNATED AUTHORITY [D.K. JAIN, J.]
review of the original order on merits, then such a statute A
. >-.Jo...
would be construed as excluding the audi alteram partem
rule at the pre-decisional stage. Conversely if the statute
conferring the power is silent with regard to the giving of
a pre-decisional hearing to the person affected and the
administrative decision taken by the authority involves civil ·s
consequences of a grave nature, and no full review or
appeal on merits against that decision is provided, courts
._._ will be extremely reluctant to construe such a statute as
excluding the duty of affording even a minimal hearing,
shorn of all its formal trappings and dilatory features at the c
pre-decisional stage, unless, viewed pragmatically, it
would paralyse the administrative process or frustrate the
need for utmost promptitude. In short, this rule of fair play
must not be jettisoned save in very exceptional
circumstances where compulsive necessity so demands.
D
-~- 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 E
exercise. n
. ·..,.-
(Emphasis supplied by us)
58. It is thus, well settled that unless a statutory provision,
F
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
G
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
H
262 SUPREME COURT REPORTS [2011] 1 S.C.R.
•
A quasi-judicial. It is equally trite that the concept of natural justice
can neither be put in a strait-jacket nor is it a general rule of
universal application. Undoubtettly, 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
B 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
C of the said principle can be properly determined. (See: Union
of India Vs. Col. J.N. Sinha & Anr. 66 .)
59. In light of the aforenoted legal position and the
elaborate procedure prescribed in Rule 6 of 1995 Rules, which
the DA is obliged to adhere to while conducting investigations,
D we are convinced that duty to follow the principles of natural
justice is implicit in the exercise of power conferred on him
under the said Rules. In so far as the instant case is concerned,
though it was sought to be pleaded on behalf of the
respondents that the incumbent DA had issued a common
E notice to the Advocates for ATMA and Ningbo Nylon, for oral
hearing on 9th March 2005, however, there is no document on
record indicating that pursuant to ATMA's letter dated 24th
January 2005, notice for oral hearing was issued to them by
the incumbent DA. Moreover, the alleged opportunity of oral
F hearing on 9th March, 2005, being in relation to the price
undertaking offer by Ningbo Nylon, cannot be likened to a
public hearing contemplated under Rule 6(6) of the 1995 Rules.
The procedure prescribed in the 1995 Rules imposes a duty
on the DA to afford to all the parties, who have filed objections
G 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
H 66. (1970) 2 sec 458.
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 263
DESIGNATED AUTHORITY [D.K. JAIN, J.]
also clear up his doubts during the course of the arguments. A
- ~_),.. Moreover, it was also observed in Gul/apal/i (supra), if one
person hears and other decides, then personal hearing
becomes an empty formality. 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 B
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
c
of the final findings of the DA, who failed to follow the principles
of natural justice, cannot be sustained. It is quashed
accordingly.
60. For the view we have taken above, we deem it D
.~
unnecessary to deal with the other contentions urged on behalf
of the parties on the merits of the levy.
61. This brings us to the question of relief. In view of our
finding that the recommendation of the DA stands vitiated on E
account of non-compliance with the basic principle of audi
alteram partem, the appeals must succeed. However, the
. -~
question for consideration is whether the appellants will be
entitled to the refund of the duty already paid and coll~cted. It
is trite law that in the case of indirect taxes like centralexcise
F
duties and customs duties, the tax collected by the State without
the authority of law, shall not be refunded to the petitioner unless
he alleges and establishcc; that he has himself borne the burden
of the said duty and that he has not passed on the burden of
duty to a third party. In such a situation, the doctrine of unjust
G
>- enrichment comes into play. On the doctrine of unjust
enrichment, in Mafatlal Industries Ltd. & Ors. Vs. Union of India
& Ors. 67 , a decision by a bench comprising of nine learned
a1. (1997) s sec 536. H
264 SUPREME COURT REPORTS (2011) 1 S.C.R. •
A Judges of this Court, B.P. Jeevan Reddy, J., speaking for the
majority, had observed thus: -"""--·-
"The doctrine of unjust enrichment is a just and salutary
doctrine. No person can seek to collect the duty from both
ends. In other words, he cannot collect the duty from his
B purchaser at one end and also collect the same duty from
the State on the ground that it has been collected from him
contrary to law. The power of the court is not meant to be
~
exercised for unjustly enriching a person. The doctrine of
unjust enrichment is, however, inapplicable to the State.
c State represents the people of the country. No one can
speak of the people being unjustly enriched."
62. In the instant case, the DA, during the Sunset Review
(Notification No.14/20/2008-DGAD dated 31st March, 2009)
D had recorded a clear finding to the effect that the Chinese
exporters had been underselling below the non-injurious price ~--
to the tune of 25-20% during the period of investigation. It is,
therefore, manifest that the burden of anti-dumping duty had
been absorbed by the exporters. The said finding of fact
E attained finality in as much as it had not been assailed by any
of the interested parties. In light of the fact that the importers
viz. ATMA and its constituent members have passed on the
burden of the levy to third person(s), it follows that members of ...,, -
ATMA cannot claim refund of the anti-dumping duty levied in
terms of the Notification No.36/2005-Cus. In any event, ATMA
F
and its constituent members have neither pleaded nor adduced
any evidence to show that °they had not passed on the burden
of the duty to any other person.
63. In any case, we are of the opinion that the appellants
G cannot claim refund of duty already levied in as much as they -4..
have not specifically chall~nged the findings of the sunset
review, and therefore, the findings in relation to the existence
of dumped imports, material injury to domestic industry and
causal link between dumped imports and material injury to
H
AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION v. 265
DESIGNATED AUTHORITY [D.K. JAIN, J.]
domestic industry remain unchallenged. In that view of the A
· ·~ matter, particularly when the existence of dumping has not been
put in issue, we are of the opinion that refund of the duty to any
of the appellants would be inconsistent with the object and
scheme of the Tariff Act and the 1995 Rules.
B
64. In the result, the appeals are allowed to the extent
mentioned above; the decision of the Tribunal is set aside and
Notification No.36/2005-Cus., dated 27th April 2005, is
..
I
quashed. However, considering the facts and circumstances of
the case, the parties are left to bear their own costs.
c
R.P. Appeals partly allowed.
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