REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL  APPEAL NO. 949 OF 2006

AUTOMOTIVE  TYRE  MANUFACTURERS ASSOCIATION

— APPELLANT  

VERSUS

THE DESIGNATED AUTHORITY &  ORS.

— RESPONDENTS

WITH

CIVIL APPEAL NO.8012 of 2010 &

CIVIL APPEAL NO.2007 OF 2006 &

CIVIL APPEAL NO.2115 OF 2006

J U D G M E N T

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 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  

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Tariff Act”) vide  Notification 36/2005-Cus dated 27th April 2005 has been  

affirmed.

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 shall refer to the facts in Civil Appeal No. 949 of 2006 as  

illustrative:

The  appellant  in  this  appeal  viz.  Automotive  Tyre  Manufacturers  

Association (for  short  “ATMA”),  is  an association 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 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 DA”) inter-alia,  praying for imposition of anti-dumping  

duty under Section 9A of the Act,  on imports of NTCF from China. In their  

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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 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 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 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  

significance to note here that the 2nd  proviso to Rule 13 of the 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.  

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4. Being  aggrieved,  one  of  the  constituent  members  of  ATMA  viz.  

Apollo Tyres Ltd. filed Writ Petition No. SCA/8747/2004 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  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,  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  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 and Ningbo  

Nylon, a Chinese exporter, requested the newly appointed DA to grant a  

fresh 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  

letter of protest to the DA, inter alia, contending that their submissions  

were not examined; the newly appointed DA had failed to grant them a  

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public hearing and some of the new submissions made by the domestic  

industry formed part of the record.

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 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 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 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.

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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. 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. 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  the  various  interests or to adjudicate or to decide upon rights of any party to  lis.”

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  available  to  the  appellant.  The  Court,  inter  alia,  

observed that:

“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 the hearing  

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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 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 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 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.

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,  

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and directing  the  parties  to  pursue  the  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  terms  of  

Notification No. 36/2005-Cus. Dealing with the main grievance of the  

appellants viz. denial of an opportunity of hearing 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 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 purely  

a legislative function; (ii) the process of imposing anti-dumping duty  

which is legislative in nature does not decide any existing dispute or  

‘lis’  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 number of other interested parties; (iii) there can  

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never be a  ‘lis’  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-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 Parliament, in its wisdom, for an impost like the anti-

dumping duty, which arises due to and has nexus with the interest of  

domestic industry, provides a mechanism 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 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 Parliament, through its agencies, as per its rules  

of business, there will be absolutely no scope for any judicial tribunal  

to examine whether any procedural irregularity was committed by not  

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consulting any particular section of the public likely to be 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  lead  to  a  finding  of  irregularity  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-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.

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  appellants,  referring  to  

various provisions of the Tariff Act and 1995 Rules strenuously urged that  

the functions discharged by the DA are quasi-judicial in nature.  Relying on  

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the  decisions  of  this  Court  in  Province  of  Bombay  Vs.  Khushaldas  S.   

Advani & Ors.1; Shri Radheshyam Khare & Anr. Vs. The State of Madhya  

Pradesh  &  Ors.2;  Shivji  Nathubhai  Vs.  Union  of  India  &  Ors.3;   

Shankarlal  Aggarwala  &  Ors.  Vs.  Shankarlal  Poddar  &  Ors.4 S.K.  

Bhargava  Vs.  Collector, Chandigarh & Ors.5, Jaswant Sugar Mills Ltd.,   

Meerut  Vs.  Lakshmi Chand & Ors.6; Sahara India (Firm), Lucknow Vs.   

Commissioner  of  Income  Tax,  Central-I  &  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 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 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;  

1 AIR 1950 SC 222 2 AIR 1959 SCR 1440 3 AIR 1960 SC 606 4 AIR 1965 SC 507 5 (1998) 5 SCC 170 6 [1963] Supp. 1 S.C.R. 242 7 (2008) 14 SCC 151

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(iv) evidence and information is collected, and the evidence presented by  

one 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 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 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  against.  Commending  us  to  the  decision  of  a  

Constitution  Bench  of  this  Court  in  PTC  India  Limited  Vs.  Central   

Electricity  Regulatory  Commission8,  learned  counsel  contended  that  

whenever a particular statute provides for an appeal against 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  8 (2010) 4 SCC 603

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us to two publications of the Government of India viz. “Anti-Dumping and  

Anti-Subsidy  Measures”  and  “Anti-Dumping,  A  Guide”  wherein  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  

oral  submissions.  Relying  on  the  decision  of  this  Court  in  Designated  

Authority (Anti-Dumping Directorate), Ministry of Commerce Vs. Haldor  

Topsoe A/S9, learned counsel contended that it is a settled practice that if  

during the course of investigations, the DA conducting the public hearings is  

transferred, the new DA grants a fresh hearing before making the final order.  

20. Learned counsel urged that in light of the observations made by this  

Court in  Reliance Industries Ltd.  Vs.  Designated Authority & Ors.10 and  

J.K.  Industries  Vs.  Union  of  India  (SLP  (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 & Ors.11 and  Tata Chemicals  Limited  Vs.  Union of  

India & Ors.12, this Court has also held that an appeal before the Tribunal is  

9 (2000) 6 SCC 626 10 (2006) 10 SCC 368 11 (2008) 17 SCC 180 12 (2007) 15 SCC 596

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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 nature as  

mentioned in the third category of cases highlighted in State of T.N. Vs. K.  

Sabanayagam & Anr.13 and  Godawat Pan Masala 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 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  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  be  judged by the  reasons  mentioned  

therein,  and  cannot  be  supplemented  by  fresh  reasons  in  the  form  of  

13 (1998) 1 SCC 318 14 (2004) 7 SCC 68 15 (1978) 1 SCC 405

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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 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 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 decision of the DA entails far-reaching civil  

consequences. In support, reliance was placed on the decisions of this Court  

in  Mohinder Singh Gill  (supra);  Maneka Gandhi  Vs.  Union of India &  

Anr.16 ;  Sahara India  (supra);  SBP & Co.  Vs.  Patel Engineering Ltd. &  

Anr.17 and C.B. Gautam Vs. Union of India & Ors.18.  

23. Relying heavily on the decision of a Constitution Bench of this Court  

in  Gullapalli  Nageswara  Rao  & Ors.  Vs.  Andhra  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  16 (1978) 1 SCC 248 17 (2005) 8 SCC 618 18 (1993) 1 SCC 78 19 AIR 1958 SC 308

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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 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 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 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; 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 Transport Madras (P) Ltd.  & Ors.23; Mahabir Vegetable   

20 (1969) 3 SCC 221 21 (1972) 2 SCC 601 22 (1975) 2 SCC 431 23 (1980)  4 SCC 597

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Oils (P) Ltd. & Anr. Vs. State of Haryana & Ors.24 and Bakul Cashew Co.   

& Ors. Vs. Sales Tax Officer, Quilon & Anr.25, learned counsel contended  

that if no power has been conferred upon the delegatee by the parent Act to  

levy tax or duty 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 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 has specifically provided for the same.

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  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  

24 (2006) 3 SCC 620  25 (1986) 2 SCC 365

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final notification is issued before the expiry of the 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.  

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 months, extendable by a further period of  

three months under 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  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”),  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.   

26 (2005) 3 SCC 337

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27. Learned counsel  contended that  in the  instant  case,  the  provisional  

levy was finalized and validated by paragraph 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 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 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  

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.  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,  

1

and such construction which maintains the validity of the provision should  

be  preferred.  Commending  us  to  the  decisions  of  this  Court  in  State  of   

Madhya  Pradesh  &  Anr.  Vs. Dadabhoy’s  New  Chiri  Miri  Ponri  Hill   

Colliery Co. Pvt. Ltd.27 and Yudhishter Vs. Ashok Kumar28, learned counsel  

submitted that reading down of a legislation to maintain its validity is an  

accepted principle of law.  

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  

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  

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  

27 (1972) 1 SCC 298 28 (1987) 1 SCC 204 29 (2003) 2 SCC 111

2

that Section 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.  

29. Learned counsel urged that Section 9A(5) of the Tariff Act does not  

have any application in the instant case as the anti-dumping duty referred to  

in that Section is the final duty, 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 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  counsel  

contended that the outer limit for the levy of provisional duty cannot be set  

at naught by an alleged theory 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.  &  

2

Ors.30,  the  DA  is  required  to  construct  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 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  

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, in  

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 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.  

31. Ms. Meenakshi Arora, learned counsel appearing on behalf of Ningbo  

Nylon  adopting  the  same  line  of  arguments,  submitted  that  the  second  

30 (2005) 3 SCC 39

2

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 equated with the public hearing envisaged under Rule 6(6) of the  

1995 Rules, in as much as: (i) Section 9B(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 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 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  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.  

Submissions made on behalf of the Respondents:

2

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  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 interpreting a legislation, the Courts  

should have regard to both 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.

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 (Bharat) Ltd. & Anr. Vs. Union of India & Ors.33, learned  

counsel stressed that it is a settled principle that price fixation is a legislative  

31 (1987) 1 SCC 424 32 (1990) 3 SCC 223 33 (1996) 10 SCC 104

2

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 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. & Ors. Vs. Union of India35 and P.M.  

Ashwathanarayana  Setty  &  Ors.  Vs.  State  of  Karnataka  &  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., 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 Henderson Limited Vs. Workmen & Anr.38 Learned  

counsel  further  contended  that  competence  to  legislate  encompasses  the  

competence to legislate both prospectively and retrospectively as was held in  

M/s. Krishnamurthi & Co. Etc. Vs. State of Madras & Anr.39 and Empire  

34 (1981) 2 SCC 722 35 (1974) 2 SCC 630 36 (1989) Supp (1) SCC 696 37 (1974) 4 SCC 656 38 (1962) Supp (3 SCR 582 39 (1973) 1 SCC 75

2

Industries Ltd. & Ors. Vs. Union of India & Ors.40. Commending us to the  

decision of this Court in Haridas Exports (supra), learned counsel urged that  

since  in  an  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  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 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 Suwarna Transport Co.   

Ltd.41 and  Haryana Financial Corporation & Anr.  Vs.  Kailash 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 opportunity  

of hearing to the appellants on 7th March, 2005, which they failed to avail of.  

40 (1985) 3 SCC 314 41 AIR 1957 SC 232 42 (2008) 9 SCC 31

2

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 prejudice  had been caused  to  them because  of  lack  of  proper  oral  

hearing.  In support of the argument, reliance was placed on the decision of  

this Court in State Bank of Patiala & 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  

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 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 that having regard to the object of the legislation,  

this Court should prefer an interpretation that would save the proceedings of  

the  DA.  Distinguishing  the  decision  in  PTC  India  Ltd.  (supra),  learned  

43 (1996) 3 SCC 364 44 (1989) 4 SCC 264

2

counsel submitted that reliance on the said decision by the appellants was  

misplaced in as much as in the said 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.  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 are merely  

recommendatory; while the interests of various groups have to be examined  

in proceedings under the 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.

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  

2

decided keeping in view the nature and object of the Tariff Act and the 1995  

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 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 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  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.  Prothonotary  &  Senior   

Master,  High  Court  of  Bombay  &  Ors.47;  R  Vs.  Immigration  Appeal  

45 (1970) 1 SCC 103 46 (1966) 1 SCR 466 47 (2004) 8 SCC 653

2

Tribunal  &  Anr.48and  Selvarajan  Vs.  Race  Relations  Board49,  learned  

counsel  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 Bahadur Pandey & Ors.50; M/s. Tractoroexport,   

Moscow  Vs.  M/s  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 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 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 Gullapalli (supra) are  

48 [1988] 2 All ER 65 49 [1976] 1 All ER 12 50 (1984) 2 SCC 534 51 (1969) 3 SCC 562 52 (1980) 2 SCC 360

3

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 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-alia, holding that  

whenever an appeal is provided against an order, the determination becomes  

quasi-judicial, it was 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 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 in Union of India  

Vs.  Mohan Lal Capoor.53, which is the case here, as the role of the DA is  

53 (1973) 2 SCC 836

3

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. Sambamurthy & Ors. Vs.   

State of Andhra Pradesh & Anr.54; Union of India Vs. K.M. Shankarappa55  

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 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 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 & Ors.57    

39. Learned counsel contended that there are certain peculiar  features of  

the investigation conducted by the DA which 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  54 (1987) 1 SCC 362 55 (2001) 1 SCC 582 56 (1988) 2 SCC 415 57 [1964] 5 SCR 294

3

involved in an anti-dumping investigation, it is fallacious to assume that the  

proceedings are in the nature of a simple lis between two 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 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  empowers  the  DA  to  take  into  account  unverified  

information, which procedure is inconsistent with the DA being classified as  

a quasi-judicial authority. Fifthly, the procedure of “sampling” contemplated  

under Rule 17(3) allows the 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 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 principles of natural are held to  

be applicable to the proceedings before it, still it is not sufficient to merely  

3

allege breach of natural justice, and actual prejudice must be demonstrated,  

as  was  held  in  Haryana  Financial  Corporation  (supra)  and  Managing  

Director,  ECIL, Hyderabad & Ors.  Vs.  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.

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 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  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 sub-section (3) of Section 9A of  

the  Tariff  Act  is  misconceived  as  an  anti-dumping  investigation  always  

58 (1993) 4 SCC 727

3

relates to a past period known as the “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 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.

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 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  

Chandra Kachardas Porwal (supra); Union of India & Anr. Vs. Cynamide  

India & Anr.59; Shri Sita Ram Sugar Company Limited & Anr. Vs. Union  

59 (1987) 2 SCC 720

3

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 straight jacket formula to apply the principles of natural justice, 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 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.

44. Commending  us  to  the  definition  of  the  term  “determination”  as  

contained in the Webster’s Dictionary and the Oxford Dictionary, learned  

counsel submitted 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  appealable,  and  not  the  notification  levying  anti-dumping  duty.  

Therefore, it is manifest that the imposition of duty is legislative in nature.

60 (1990) 3 SCC 223 61 (2005) 5 SCC 337  

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Discussion:

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-dumping duty on  

dumped articles. It reads as follows:

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  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,-

(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 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  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);

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(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 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 territory, or when because of the  particular market situation or low volume of the sales  in  the  domestic  market  of  the  exporting  country  or  territory,  such  sales  do  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  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 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 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 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 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:-

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(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  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 (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.

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-section (1)  of section 3 of the Central Excise Act, 1944.

(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 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  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 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  

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notwithstanding anything contained in any law for the  time being in force, such duty shall be payable at such  rate  and from such date 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.

(5) The anti-dumping duty imposed under this section shall,  unless revoked earlier, cease to have effect on the expiry  of five years from the date of such imposition:

Provided that if the Central Government, in a review, is  of 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:

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.

(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  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  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.

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(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)  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.”

46. Section 9C of the Tariff Act provides for an appeal against the  

order passed under Section 9A thereof and reads thus:

“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  referred  to  as  the  Appellate  Tribunal).

(1A) An appeal under sub-section (1) shall be accompanied by  a fee of fifteen thousand rupees

(1B)  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  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:

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Provided that the Appellate Tribunal may entertain any appeal  after the expiry of the said period of ninety days, if 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  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 129C of the Customs Act, 1962 (52 of 1962) shall apply  to the Appellate Tribunal in the such Bench shall 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  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-

(a) to investigate as to the existence, degree and effect of any  alleged dumping in relation to import of any article;

(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  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  

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the  establishment  of  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  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 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  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 evidence of –

(a) dumping (b) injury, where applicable, and  (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 sub- rule (1) unless –

(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  or on behalf of the domestic industry:

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  

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(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, (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.

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 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)  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 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 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 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 the  article involved;

(ii) the date of initiation of the investigation;

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(iii) the  basis  on  which  dumping  is  alleged  in  the  application;

(iv) a summary of the factors on which the allegation of  injury is based;  

(v) the  address  to  which  representations  by  interested  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 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 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,  and

(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.

(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 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 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.

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(5)   The designated authority shall also provide opportunity to  the  industrial  users  of  the  article  under  investigation,  and to  representative consumer organizations in cases where the article  is  commonly  sold  at  the  retail  level,  to  furnish  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 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  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 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  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 in the course of investigation,  shall,  upon  the  designated  authority  being  satisfied  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.

(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 designated authority  a statement of reasons why summarisation is not possible.

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(3) Notwithstanding anything contained in sub-rule (2), if the  designated  authority  is  satisfied  that  the  request  for  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  margin of dumping. -  An article shall be considered as 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 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 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,  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 imports on domestic  producers of such articles and in accordance with the principles  set out in Annexure II to these rules.

(3) The designated authority may, in exceptional cases, give  a finding as to the existence of injury even where a substantial  portion of the domestic industry is not injured, if-

(i) there  is  a  concentration  of  dumped  imports  into  an  isolated market, and

(ii) the dumped articles are causing injury to the producers of  all or almost all of the production within such market.

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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 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  arguments  being  accepted  or  rejected.  It  will  also  contain:-

(i) the names of the suppliers, or when this is impracticable,  the supplying countries involved;

(ii) a description of the article which is sufficient for customs  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;

(iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination.

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  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  investigation,  determine as to whether or not the article under investigation is  being dumped in India and submit 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;

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(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  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, the  reasons  therefor  and  date  of  commencement  of  such  retrospective levy:

Provided that the Central Government may, in its discretion in  special  circumstances  extend further  the aforesaid  period of  one year by six months:  Provided  further  that  in  those  cases  where  the  designated  authority has suspended the investigation on the acceptance of a  price  undertaking  as  provided  in  rule  15  and  subsequently  resumes  the  same  on  violation  of  the  terms  of  the  said  undertaking, the period for which investigation was kept under  suspension shall not be taken into account while calculating the  period of said one year,  

(b) recommending  the  amount of  duty  which,  if  levied,  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 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;

(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  used in the establishment and comparison of the  export price and the normal value;

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(iv) Considerations  relevant  to  the  injury  determination; and

(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 the article under investigation:

Provided  that  in  cases  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 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 :

Provided further that the designated authority shall, determine  an individual margin of dumping for any exporter 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.

(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 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 the  designated authority has recorded a final finding of injury or  where the designated authority has recorded a final finding of  

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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;

(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:

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  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.

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 each  case.

21. Refund of duty. - (1) If the anti-dumping duty imposed  by  the  Central  Government  on  the  basis  of  the  final  findings of the investigation conducted by the designated  authority  is  higher  than  the  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 already  imposed and collected, the differential shall be refunded  to the importer.

(3) If  the  provisional  duty  imposed  by  the  Central  Government  is  withdrawn  in  accordance  with  the  

5

provisions of sub-rule (4) of rule 18, the provisional 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 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?  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.

49. More  often  than not,  it  is  not  easy to  draw a line  demarcating an  

administrative  decision  from a  quasi-judicial  decision.   Nevertheless,  the  

aim of both a quasi-judicial function as well as an administrative function is  

to arrive at a just decision.  In A.K. Kraipak & Ors. Vs. Union of India &  

Ors.62,  this  Court  had  observed  that  the  dividing  line  between  an  

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  62 (1969) 2 SCC 262

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power conferred; (ii) the person or persons on whom it is conferred; (iii) the  

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 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 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 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 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

(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 will yet be a quasi-

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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:

“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 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 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 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  judicially  which  invests  it  with  that  character……………………………………………………….  …………………………………………………………………. To make a  decision  or  an  act  judicial,  the  following criteria  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; (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 case to  

63 1963 Supp (1) SCR 242

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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 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  Khushaldas S.  Advani  (supra),  we  

have no hesitation in coming to the conclusion that this is an obvious  

case where the DA exercises quasi-judicial functions and is bound to  

act judicially.  A cursory 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/information/evidence  presented  by  the  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  upon 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  

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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) 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 that while  

determining the existence, degree and effect of the alleged dumping,  

the DA determines a ‘lis’ between persons supporting the levy of duty  

and those opposing the said levy.  

53. 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 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, (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  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  positive  

evidence  and  involves  an  objective  examination  of  both:  (a)  the  

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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 & 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 Rule 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 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  led to  arguments  being  

accepted or rejected.” A similar 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  

imports of any article, which order, obviously has to be based on the  

determination and findings of the DA.  The cumulative effect of all  64 (2005) 3 SCC 337

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these  factors  leads  us  to  an  irresistible  conclusion  that  the  DA  

performs quasi-judicial functions under the Tariff Act read with the  

1995 Rules.  

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 the 1995 Rules is in breach of the  

principles  of  natural  justice,  resulting  in  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,  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 of justice.

56. In Mohinder Singh Gill (supra), upon consideration of several  

cases, Krishna Iyer, J. in his inimitable style observed thus:

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“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 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 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  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 alteram 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.”

57. In Swadeshi Cotton Mills  Vs.  Union of India65, 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 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.  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 principle—as distinguished from an absolute rule  

65 (1981) 1 SCC 664

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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  review of the original order on merits, then such a statute 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 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  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.   The  court must make every effort to salvage this cardinal rule to the  maximum extent possible, with situational modifications.  But,  the core of it must, however, remain, namely, that the person  affected must have reasonable opportunity of being heard and  the hearing must be a genuine hearing and not an empty public  relations exercise.”

(Emphasis supplied by us)

58. It  is  thus,  well  settled  that  unless  a  statutory  provision,  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  of  a  statute,  particularly  when  the  order  has  adverse  civil  

consequences which obviously cover infraction of property, personal rights  

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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  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.   As  stated  above,  the  question  whether  the  principle  has  to  be  

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 consideration of  

these matters that the question of application 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, 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 notice to the Advocates for ATMA and Ningbo  

Nylon, for oral hearing on 9th March 2005, however, there is no document on  66 (1970) 2 SCC 458

6

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 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  and  adduced  evidence,  a  

personal hearing before taking a final decision in the matter.  Even written  

arguments are no substitute for an oral hearing.  A personal hearing enables  

the authority concerned to watch the demeanour of the witnesses etc. and  

also clear up his doubts during the course of the arguments.  Moreover, it  

was  also  observed  in  Gullapalli  (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 representatives to  

present the relevant information before him in terms of Rule 6(6) but the  

final findings in the form of an order were recorded by the successor DA,  

who had no occasion to hear the appellants herein.  In our opinion, the final  

order passed by the new DA offends the basic principle of natural justice.  

Thus, the impugned notification having been issued on the basis of the final  

6

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 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 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 collected.  It is trite law  

that  in  the  case  of  indirect  taxes  like  central  excise  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 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 unjust  

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 Judges of this Court, B.P. Jeevan Reddy,  

J., speaking for the majority, had observed thus:

67 (1997) 5 SCC 536

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“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 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. 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) 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 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 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.   

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63. In any case, we are of the opinion that the appellants cannot claim  

refund  of  duty  already  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  to  

domestic  industry  remain  unchallenged.  In  that  view  of  the  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.  

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  quashed.  However,  considering  the  facts  and  

circumstances of the case, the parties are left to bear their own costs.

.……………………………………               (D.K. JAIN, J.)  

                             .…………………………………….              (H.L. DATTU, J.)

NEW DELHI;

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JANUARY 7, 2011. (ARS)

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