CESTAT, NEW DELHI BENCH
Advance Petrochemical Co.
MISC. ORDER NOS. AD/M/2-4/2012(PB)
APPLICATION NOS. AD/M/1001 & 1037 OF 2011 AND AD/M/169 OF 2012
APPEAL NO. AD/1 OF 2011
Date of Pronouncement – 14.05.2012
Dr. Chittaranjan Satapathy, Technical Member
Miscellaneous Application No. AD/M/1001/2011 filed by M/s. Reliance Industries Ltd. (RIL) seeks interim directions to stay the proceedings before the Designated Authority (DA) pending decision in Review Application No. AD/M/1037/2011 filed by them on the same date in respect of Tribunal’s Final Order No. AD/31 to 51/2011 dated 11-8-2011 Allied Enterprises v. Designated Authority [2011 (272) ELT 127 (Tri.- Delhi)]. Miscellaneous Application No. AD/M/169/2012 has been filed by the DA on 9-2-2012 seeking clarification as to whether it should continue with the post-decisional hearing directed under the said Final Order dated 11-8-2011.
2. The brief facts of the case are that on 11-8-2011, the Tribunal passed two similar Final Orders vide Allied Enterprises (supra) and Huawei Tech Co. Ltd. v. Designated Authority 2011 (273) ELT 293 (Tri. – Delhi) disposing of 24 anti-dumping appeals just before the then Hon’ble President of the CESTAT laid down office on his retirement. The Tribunal was aware, as recorded in paragraph 12 of the order, that there were nearly 40 similar anti-dumping appeals before the Tribunal including the ones which were decided which involved similar issue where the successor DA had not given a fresh hearing before recording the final finding. In one of the appeals, the Hon’ble Bombay High Court had specified a strict time-line for disposal of the appeal for which, the Tribunal had to issue the Final Order on 11-8-2011 before the retirement of the then Hon’ble President. This fact has been taken note of by the Hon’ble Supreme Court while considering the Tribunal’s Order dated 11-8-2011 vide Tejas Networks Ltd. v. Union of India 2011 (273) ELT 161 (SC) in paragraphs 11 to 13 which is reproduced below :-
“11. During the pendency of this appeal, the Designated Authority has passed its final findings also. Those final findings were questioned before the CESTAT by the parties to this lis. The CESTAT, though the special leave petition was pending before this Court, may be because of the directions issued by the Bombay High Court, has disposed of the appeal by reminding the matter to the Designated Authority.
12. In view of these developments, in our opinion, it may not be necessary for this Court to go into the issues raised by the appellant herein. All those issues can be agitated by the parties before the Designated Authority itself.
13. In view of the above, the appeal is disposed of as having become infructuous. The Designated Authority now will implement the orders passed by the CESTAT dated 11-8-2011 within the time granted. While doing so, the Designated Authority will not be influenced by any of the observations made by the Andhra Pradesh High Court in Writ Petition No. 22155 of 2009 dated 22-1-2010.”
The Hon’ble Supreme Court has also reproduced paragraph 15 of the Tribunal’s order in paragraph 6 of its order by which the appeals were remanded to the DA for affording post-decisional hearing to the appellants. The respondent-domestic industry and other interested parties were also allowed to participate in such post-decisional hearing and all the connected miscellaneous applications and stay petitions were disposed of since the main appeals were remanded.
3. For completeness sake, we reproduce below paragraphs 12, 13 and 15 of the Tribunal’s order in the case of Allied Enterprises (supra) :-
“12. The questions raised before us in these numerous appeals and in several other appeals pending before the Tribunal (totally numbering about 40 appeals) involve serious economic consequences. In all the cases relating to these appeals, the successor DA has not given a fresh hearing as per the prevailing practice in the Ministry of Commerce. Now the Hon’ble Supreme Court in ATMA (supra) disapproves such a practice. We are sure, in the future, the successor DA would adhere to the law laid down by the Hon’ble Supreme Court and grant fresh hearings. But should the domestic-industry be left to suffer irreparable injury caused by dumping for no fault attributed to it which would be the outcome if the prayers in these and similar pending appeals are granted by merely setting aside the final findings and consequently removing the anti-dumping duties imposed by the Government based on such findings in regard to dumping and injury caused by such dumping.
13. We do not think such an outcome will be just for the domestic industry which is not at fault nor it will be in the public or economic interest of the country as a whole. We think it would be just and fair for everyone if the appeals are allowed by way of remand to the DA for affording post-decisional hearings to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearings. It would also be fair if the respondent-domestic industry and other interested parties, if any, are allowed to participate in such post-decisional hearings. It goes without saying that any modifications made in the final findings would be considered by giving effect to the same by the government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. We think that a time-frame of six months from the date of this order will be appropriate to complete this process and that status quo should be maintained meanwhile.”
“15. Accordingly we allow these appeals by remand to the DA for affording post-decisional hearing to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearing. The respondent-domestic industry and other interested parties, if any, shall also be allowed to participate in such post-decisional hearing. Any modifications made in the final findings would be considered by giving effect to the same by the Government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. This process shall be completed within 6 months from the date of this order and status quo shall be maintained meanwhile. Since we are allowing these appeals by remand, the related stay petitions, MAs and COs stand disposed off.”
4. The present review petition No. AD/M/1037/2011 has been filed by the respondent-domestic industry RIL pursuant to the Hon’ble Supreme Court’s order in their appeal against the Tribunal’s aforecited order dated 11-8-2011 in the case of Allied Enterprises (supra). The Hon’ble Supreme Court’s order dated 15-12-2011 is reproduced below :-
“Learned senior counsel Sh. P.P. Rao, seeks permission to withdraw this appeal with the liberty to file an appropriate review petition before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), New Delhi within 15 days from today. Learned senior counsel also submits that, if such a petition is made, the Tribunal may be directed to dispose of the same in accordance with law.
Permission sought for is granted. Civil appeal is disposed of as withdrawn. Liberty is granted to the appellant, if it so desires, to file an appropriate review petition within 15 days from today. If such a petition is filed, Tribunal is directed to dispose of the same within a month’s time thereafter.”Online GST Certification Course by TaxGuru & MSME- Click here to Join
5. As per the provision of sub-section (5) of section 9C of the Customs Tariff Act, 1975, anti-dumping appeal can only be heard by a Bench of the Tribunal headed by the Hon’ble President and since the post of the Hon’ble President was vacant for several months, the miscellaneous application for review filed by RIL on 17-12-2011 could not be heard earlier in the absence of the Anti-Dumping Bench.
6. Ms. Meenakshi Arora, learned Advocate appearing for RIL argues inter alia that the Hon’ble Supreme Court vide its order dated 15-12-2011 has mandated review of the impugned final order. She also states that the Tribunal has inherent power to review its own order and she cites the Hon’ble Supreme Court’s decision in the case of Sunitadevi Singhania Hospital Trust v. Union of India 2009 (233) ELT 295 (SC) to support her argument.
7. She further states that the decision of the Hon’ble Supreme Court in the case of Automotive Tyre Manufacturers Association (ATMA) v. Designated Authority 2011 (263) ELT 481 (SC) is not applicable to the present case as the appellants did not ask for a fresh hearing by the successor DA. They were also non-cooperative exporters and hence not entitled to any hearing. Hence she pleads that the appeal should not have been allowed by way of remand for post-decisional hearing. She further states that RIL had requested for delinking the appeal as it was allowed in the case of Huawei Tech Co. Ltd. (supra). It had filed a separate appeal for enhancement of the anti-dumping duty and by not delinking the case of Advanced Petrochemical Co. (APC) from rest of the appeals and by not taking up RIL’s appeal while hearing the appeal of APC, RIL has been prejudiced as it has been presented with a fait accompli and its appeal has been rendered infructuous.
8. She also fairly states that the appeal filed by RIL was not ripe for hearing when the appeal of APC was taken up as the notices were not served on all the interested parties as required under the Rules. She also points out that for the same reason, the appeal of APC was not ripe for hearing as they had not served notice on all the interested parties.
9. Shri R.S. Suri, learned Senior Advocate appearing for M/s. Haldia Petrochemical (HP) states that HP has similar interest in the case as RIL being another domestic producer. He adopts the arguments of the learned counsel of RIL and further states that HP was allowed to make submissions on a future date but the appeal of APC was decided before that date causing prejudice to HP.
10. Shri Atul Gupta, learned Counsel appearing for M/s. Saudi Arabia Basic Indus. Corpon. challenges the review petition on various grounds :-
(i) No prejudice has been caused by the impugned order passed by the Tribunal to any of the parties as the matter has only been remanded for post-decisional hearing while continuing the anti-dumping duties, and the notification imposing anti-dumping duty has not been withdrawn (except that the Government of India in a separate action has withdrawn anti-dumping duty in respect of export from Saudi Arabia from a subsequent date which is unrelated to Tribunal’s order).
(ii) The appeal filed by RIL was not competent to be heard on the date the appeal of APC was taken up for hearing. APC had also filed an early hearing application and it had opted for its appeal to be taken up together with other appeals involving the same issue of the successor DA not giving a fresh hearing.
(iii) The RIL was represented by another learned counsel while the Tribunal heard the entire matter over several days and also offered his arguments.
(iv) The arguments against Automotive Tyre Manufactures Assocaition (supra) decision not being applicable in all cases were heard by the Tribunal for over two days. ‘The learned counsel representing RIL had not objected at that time appeal of APC should not be taken up on the ground that all interested parties were not served notices.
(v) The Tribunal has no power of reviewing its own order. Under the Customs Act, it has powers of rectification for which applications have to be filed within a period of six months. Under the Customs Tariff Act, 1975, the power of rectification has not been made applicable in respect of anti-dumping appeal. Rule 31A of the CESTAT (Procedure) Rules, T982 deals with hearing of applications for rectification of mistake, but this rule has not been made a part of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996 vide Rule 7 thereof. Only Rule 20 of the CESTAT (Procedure) Rules, 1982 dealing with recall of appeals dismissed for default has been made applicable under Rule 7 of the CESTAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rules, 1996. Hence, the Tribunal cannot review its own order.
11. He cites the decision of the Hon’ble Supreme Court in the case of CCE v. Steelco Gujarat Ltd. 2004 (163) ELT 403 to the effect that power of review is not an inherent power and it must be expressly granted and that no such express power has been granted to the CESTAT, only limited power has been given for rectification of mistake.
12. Subsequently, the next day Shri Atul Gupta has submitted a copy of the decision of the Hon’ble Supreme Court in the case of Kalabharati Advertising v. Hemant Vimalnath Narichania  9 SCC 437, which has held as follows :-
“Review in absence of statutory provisions
12. It is settled legal proposition that unless the statute/rules so permit, the review application is not maintainable in case of judicial/quasi-judicial orders. In the absence of any provision in the Act granting an express power of review, it is manifest that a review could not be made and the order in review, if passed, is ultra vires, illegal and without jurisdiction (Vide Patel Chunibhai Dajibha v. Narayanrao Khandeao Jambekar and Harbhajan Singh v. Karam Singh)
13. In Patel Narshi Thakershi v. Pradyuman Singhji Arjunsinghji, Major Chandra Bhan Singh v. Latafat Ullah Khan, Kuntesh Gupta (Dr.) v. Hindu Kanya Mahavidyalaya, State of Orissa v. Commr. of Land Records and Settlement and Sunita Jain v. Pawan Kumar Join, this Court held that the power to review is not an inherent power. It must be conferred by law either expressly/specifically or by necessary implication and in the absence of any provision in the Act/Rules, review of an earlier order is impermissible as review is a creation of statute. Jurisdiction of review can be derived only from the statute and thus, any order of review in the absence of any statutory provision for the same is a nullity, being without jurisdiction.
14. Therefore, in view of the above, the law on the point can be summarised to the effect that in the absence of any statutory provision providing for review, entertaining an application for review or under the garb of clarification/modification/correction is not permissible.”
13. We have considered the submissions made before us, the case records and the cited decisions. It has been argued before us that the Tribunal has inherent power to review and that Rule 41 of the CESTAT (Procedure) Rules, 1982 allows the Tribunal to make such orders to secure the ends of justice. The decision of the Hon’ble Supreme Court in the case of Sunitadevi SinghaniaHospital Trust (supra) has also been cited by the learned counsel of RIL to argue that the Tribunal has power to review and recall its final order. However, we find that the Tribunal in the case of Sri Chamundeshwari Sugars Ltd. v. C.C.E 2010 (251) ELT 459 (Tri-Bang.) has held that the decision in the case of Sunitadevi Singhania Hospital Trust (supra) has been rendered invoking the extraordinary jurisdiction under Article 142 of the Constitution of India to direct the Tribunal to hear the matter afresh on merit and that it cannot be said to be the ratio laid clown by the Hon’ble Supreme Court to be followed as a precedence. The Tribunal proceeded in that case to follow the ratio of the Larger Bench decision in the case of CC & CE v. Hongo India (P.) Ltd. 2009 (236) ELT 417 (SC) in regard to extension of time-limit provided in the statute. On the other hand, we find that in the case of CCE v. Oswal Petrochemicals Ltd. 2010 (256) ELT 190 (SC), the Hon’ble Supreme Court has held as follows in paragraph 7 of its order :-
“The appellant filed an appeal before this court as against the initial order of the Tribunal and the said appeal was withdrawn on the ground that a review would be filed. The statute does not provide any remedy by way of review, and therefore, as against such order no review was permissible, and the appellant rightly filed an application seeking for rectification of mistake.”
This decision of the Hon’ble Supreme Court squarely applies to the present review petition which has also been filed after withdrawing an appeal from the Hon’ble Supreme Court. In the case of Oswal Petrochemicals Ltd. (supra), the Hon’ble Supreme Court has categorically held that the statute does not provide any remedy by way of review. There are other decisions of the Hon’ble Supreme Court to the effect that in the absence of specific statutory provision. Tribunal cannot exercise review powers and only rectification of mistake can be made when such mistake is apparent on the face of the record which must be an obvious mistake and not something which has to be established by a long drawn process of reasoning or where two opinions are possible :-
(i) CCE v. A.S.C.U. Ltd. 2003 (151) ELT 481 (SC)
(ii) Steelco Gujarat Ltd. (supra)
(iii) CCE v. RDC Concrete (India) (P.) Ltd.  32 STT 426 (SC)
(iv) Kalabharati Advertising (supra)
It was also held in Patel Narshi Thakershi v. Pradyumansinghji AIR 1970 SC 1273 that power to review is not an inherent power, it must be conferred by law specifically.
14. In view of the above, the review petition filed by RIL is not maintainable. Moreover, the question of invoking Rule 41 of the CESTAT (Procedure) Rules, 1982 to secure the ends of justice does not arise in this case as no prejudice has been caused to both the domestic industry applicants RIL and HP inasmuch as the impugned final order passed by the Tribunal fully protects the interest of the domestic industry by continuing the levy of anti-dumping duty while ordering post-decisional hearing. Para 12 of the impugned order clearly shows that the Tribunal was concerned that the domestic industry should not be left to suffer irreparable injury caused by dumping if the appeals under decision and similar pending appeals were to be granted by merely setting aside the final findings and consequently removing the anti-dumping duties. The final order also took note of the fact that there were other pending appeals in the Tribunal as stated earlier and it has specifically directed the DA to allow the respondent-domestic industry and all other interested parties to participate in the post-decisional hearing ordered by the Tribunal as is evident from para 15 of the said order.
15. The case of the domestic industry for enhancement of anti-dumping duty can also be very well taken up at the time of post-decisional hearing and no prejudice can be said to have been caused by remanding the matter on the ground of violation of principles of natural justice before deciding those appeals seeking enhancement of duty.
16. Further, all advocates including the learned advocate for RIL were heard on the issue of applicability of Automotive Tyre Manufacturers Association ATMA (supra) and the arguments were duly taken into account by the Tribunal. In case, the applicants are aggrieved by the impugned final decision of the Tribunal, the right course is to appeal to the next higher judicial forum and not to seek a different decision from the Tribunal which has no power to review its own order.
17. The learned counsel representing RIL has argued that delinking was not allowed as was done in the case of the appeal of M/s. Huawei. It may be pointed out in this regard that the appeal of M/s. Huawei was also decided on the very same date on which the impugned order was passed. The background of disposing of a number of appeals involving a similar issue has already been given while recapitulating above the brief facts of, the case. It has also been mentioned therein that the Hon’ble Supreme Court has taken note of the orders passed on 11-8-2011 while holding the writ petitions pending before it to be infructuous and it has also directed in paragraph 13 of its order in the case of Tejas Networks Ltd. (supra) that the DA will implement the orders passed by the CESTAT on 11-8-2011.
18. The applicant domestic industries KIL and HP are free to raise all the questions raised in their review petition and in the appeals before the Tribunal including the question of non-cooperating exporter at the time of post-decisional baring before the DA and if they are aggrieved by the final finding given by the DA thereafter, they would not be remediless as they are free to file appeals against the fresh orders passed by the DA.
19. The review petition filed by R1L is, therefore, dismissed as not maintainable. It be miscellaneous application for issue of interim direction to the DA pending the review petition does not survive and the same is also dismissed.
20. As regards the miscellaneous application filed by the DA for seeking clarification regarding continuance of post-decisional hearing, we are of the view that there was no bar on the DA to continue the post-decisional hearing and to complete the same within the time-limit specified. However, the DA appears to have entertained a doubt in this regard in view of the review petition filed by RIL before the Tribunal and also for the reason that the Government of India has subsequently revoked anti-dumping duty in respect of imports from Saudi Arabia with effect from 30-12-2011. We find that the anti-dumping duty has not been revoked in respect of all the countries and further, in respect of Saudi Arabia, the anti-dumping duty has been revoked only from a subsequent date i.e. from 30-12-2011. As such, the post-decisional hearing is required to be undertaken by the DA in respect of the anti-dumping levy for the period it was in force in respect of the exports from Saudi Arabia as well as for exports from other countries for the lull period. Moreover, as stated above, the domestic industry seeking enhancement of the anti-dumping, duty is also required to be heard in respect of their claim at the post-decisional hearing. Since the six month period is already over, we extend the same by a period of another six months from the date the initial six month period has expired to enable the DA to carry out the direction contained in the final order of the Tribunal dated 11-8-2011.