Judgment:
1. The three applications being aggrieved by order of the Designated Authority under the provisions of Customs Tariff Act, 1975 (for short, the Act) have filed these appeals. They have filed applications seeking stay of the aforesaid order of the Designated Authority. The applications are opposed by Designated Authority and M/s. Gujarat Apar Polymers Ltd. (for short, GAPL) on whose complaint the proceedings were initiated by the Designated Authority.
2. GAPL is engaged in manufacture of Acrylonitrile-Butadiene Rubber (for short, NBR). M/s. Nippon Zeon Co. Ltd. (NZCL) and M/s. Japan Synthetic Rubber Co. Ltd. (JSRCL) are engaged in the manufacture of NBR which is sold in domestic market in (Japan) and also exported to other countries, including India. The complaint filed by GAPL alleged, inter alia alleged that the two Japanese concerns have been exporting NBR to India at prices for below 'normal value' as defined in Explanation (C) to Sub-section (1) of Section 9A of the Act, that such export amounted to dumping and that such dumping causes injury to the established industry in India. Designated Authority issued notices to the two Japanese exporters and to the importers in India, the complainant and other interested persons. The exporters, complainant and a few others participated in the proceedings. Finally the Designated Authority passed an order recording findings to the effect that the exporters have sold NBR in India below its 'normal value' that Indian Industry has suffered material injury, that the injury has been caused by the imports from Japan and that it is necessary to impose a definitive anti-dumping duty on imports of NBR originating from Japan in order to remove the material injury to the domestic industry. Normal value, Export price (FOB) and margin of Dumping were determined as US $ 3677, US $ 1058 and US $ 2619 PMT respectively. The Authority further recommended that an anti-dumping duty of Rs. 19,306/- PMT would be sufficient to remove the extent of injury to the domestic Industry. The exporters from Japan and one of the importers have filed the present appeals and stay applications. Subsequent to the filing of the appeals, the Central Government under Section 9 A of the Act imposed anti-dumping duty by notification.
3. Shri Rakesh Tikkoo, Advocate representing the Designated Authority and Shrimati Pallavi Shroff, Advocate appearing for GAPL contended that the appeals are not maintainable and hence, the Tribunal may not pass an order of stay sought by appellants. According to them on the date on which GAPL filed complaint and the Designated Authority initiated investigation on the complaint, the Act contained no provision for filing appeal against the order or finding of the Designated Authority and such a provision for appeal was incorporated subsequently though before the impugned order and since rights of parties regarding appeal had become crystallised on the date of commencement of the proceedings and the subsequently incorporated provision did not have retrospective effect, appellants have no right of appeal against the impugned order or findings. Shri Laxmikumaran, learned Counsel for appellants rebutted these contentions and submitted that the impugned order having been passed subsequent to the incorporation of the provision for appeal, aggrieved parties have right of appeal.
4. The Act enacted in 1975 did not contain provision for imposition of Anti-Dumping duty. Sections 9A and 9B were incorporated in the Act by amending Act 52 of 1982 with effect from 2-9-1985. Section 9A provides for imposition of Anti-Dumping duty by the Central Government by way of Notification in the Official Gazette. By virtue of the Rule-making power under Section 9A(3) of the Act, the Central Government framed Rules in 1995 providing for scheme of investigation by Designated Authority, submission of preliminary and final finding by the Designated Authority to the Central Government and levy of provisional duty or Anti-Dumping duty, as the case may be. The provisions incorporated by Act 52 of 1982 did not provide right of appeal against the finding of the Designated Authority or the imposition of provisional duty or Anti-Dumping duty; Rule 23 of the Rules provides for periodical review by the Designated Authority about the need for the continued imposition of Anti-Dumping duty. By Ordinance 14 of 1994, Sections 9, 9A and 9B of the Act have been substituted and Section 9C has been incorporated. The amendments came into force on 1-1-1995. The Ordinance was subsequently replaced by Act No. 6 of 1995 also with effect from 1-1-1995.
"Section 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).
(2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any 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 appeals, 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 discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962 (52 of 1962).
(5) Every appeal under Sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two Members and shall include one judicial member and one technical member." 6. The amendments introduced by Act 52 of 1982 were evidently regarded as having a lacuna on account of the absence of a provision for an appeal against the findings of the Designated Authority. This lacuna was sought to be removed by Section 9C incorporated subsequently.
Section 9C declares that 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 this Tribunal. Appeal shall be filed within 90 days of the date of the impugned order. Provisions of Sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 shall apply to the Tribunal in regard to appeals under Section 9C. A plain reading of Section 9C shows that as long as there is an order of determination regarding the existence, degree and effect of any dumping in relation to the import of an article, an appeal lies to this Tribunal. Section 9A makes no distinction between orders passed in proceedings initiated before or after the incorporation of Section 9C of the Act. An order is appealable, whether the order was passed before or after 1-1-1995.
7. Reliance is placed on certain decisions in support of the plea of non-maintainability of the appeal. In Garikapati Veeraya v. N. Subbiah Choudhry and Ors. - AIR 1957 S.C. 540, the Supreme Court considered the forum of appeal in a suit of valuation above Rs. 10,000 and filed before the coming into force of the Constitution. On the date of the suit, appeal lay to Federal Court. With the coming into force of the Constitution, Federal Court was abolished and appeal lay to Supreme Court only in respect of suits valued at over Rs. 21,000.00. The Court held that right of appeal is a substantive right, that the institution of a suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto till the rest of the career of the suit, such a right is to be governed by the law prevailing at the date of institution of the suit and not by the law that prevails at the date of its decision or at the date of the filing of the appeal and the vested right can be taken away only by a subsequent enactment, expressly or by necessary implication. This decision is not an authority for the proposition that right of appeal cannot be conferred by legislation enacted subsequent to the institution of the proceedings.
8. In Mrs. Nirmaljit Arora v. Bharat Steel Tubes Ltd. - AIR 1991 Delhi 160, the High Court of Delhi was required to consider the amendments introduced in the Delhi Rent Control Act, 1958 by amending the Act of 1988. Section 3(c) of the parent Act introduced by amendment took premises whose monthly rent exceeds Rs. 3,500/- out of the jurisdiction of the Rent Controller. The amending Act did not provide any retrospective effect to this provision. It was, therefore, held that an application filed with reference to building with rent exceeding Rs. 3,500/- as also appeal against the decision would not be governed by the amended provision and would have to be decided in accordance with the original provision.Nathoo Lal v. Durga Prasad - AIR 1954 S.C. 355 is more apposite. In that case a suit was filed in 1945 under the Code of Civil Procedure before the Jaipur High Court. The High Court passed a decree in 1949 which was reviewed on 5-4-1950 after the establishment of High Court of Rajasthan and after coming into force of the Constitution of India. The provisions of Jaipur C.P.C. attached finality to such decrees of the High Court. The question was whether an appeal could be filed against the decree passed on 5-4-1950 before the Supreme Court under Article 133 of the Constitution. It was held that since decree was passed after coming into force of the Constitution, parties could invoke Article 133 of the Constitution and file an appeal if other conditions prescribed are satisfied. It may be useful also to refer to the decision of the Supreme Court in Moti Ram v. Suraj Bhan and Ors. - AIR 1960 SC 655. An eviction petition was filed under the Rent Control Act on 28-8-1956 on several grounds. On dismissal of eviction petition, the landlord filed appeal before District Court, which was also dismissed. He filed revision before the High Court which allowed eviction only on one of the grounds. Tenant came up in appeal before the Supreme Court. On 24-9-1956 Rent Control Act was amended. As Section 15 stood at the time of eviction application, the decree passed by the District Court would be final. Under the amendment introduced in the Act with effect from 24-9-1956, revision would lie to the High Court against decrees passed by the District Court. It was held that since on the date District Court passed the decree the right of revision was provided, appeal would lie.Indira Sohanlal v. Custodian of Evacuee Property, Delhi and Ors. - AIR 1956 S.C. 77. On the date when an application was made under East Punjab Evacuees' (Administration of Property) Act, 1947, the order of the Custodian or Additional Custodian would be final. Before the Additional Custodian passed the order Central Act 31 of 1950 was enacted providing exercise of revision power by Custodian General against orders passed by Custodian or Additional Custodian. It was held that since this provision was in existence on the date of the order, revision would lie.
11. The aforesaid decisions of the Supreme Court would make it clear that in a case like the present one where on the date of passing of the impugned order there was provision for appeal against the impugned order, appeal would lie. The objection regarding maintainability of appeals has to be decided on the language of Section 90 of the Act.
Section 90 of the Act declares that an appeal against the order of determination of review thereof regarding the existence, degree and effect of any dumping in relation to import of any article shall lie to the Tribunal. The right vested in the litigant on the date of commencement of the litigation cannot be taken away without an express provision to that effect or without provisions giving rise to such necessary implication; but the same cannot be said of finality of orders! There could not be any vested right in relation to finality of orders of decrees. As the Supreme Court has observed in Indira Sohanlal v. Custodian of Evacuee Property "However this may be, it appears to be clear that while a right of appeal in respect of a pending action may conceivably be treated as a substantive right vesting in the litigant on the commencement of the action - though we do not so decide - no such vested right to obtain a determination with the attribute of finality can be predicated in favour of a litigant on the institution of the action." On the language of Section 9C whenever there is an order passed by Designated Authority in relation to import of any article covered by Section 9A appeal would like to the Tribunal. It appears to us that Section 9C was incorporated to remedy the mischief of failure to provide right of appeal under the amendments introduced by the Act 52 of 1982. Viewed in this light also, it must be said that under Rule 9C [Reference seems to Section 9C of the Customs Tariff Act, 1975: Ed.] appeals could be filed against all orders of Designated Authority of the nature prescribed therein. We, therefore, hold that .appeals are maintainable.
12. Learned Counsel appearing for the Designated Authority raised another preliminary objection to the effect that the Tribunal has no jurisdiction to grant stay in a matter like this since the Act does not confer any such power of stay. The answer of the learned counsel of the appellant that in the absence of statutory provisions inherent right of the Tribunal to pass appropriate orders to do justice between the parties has been recognised. After some discussion at the Bar the Learned Counsel submitted that the appellant would not press for stay if the appeals could be heard early and disposed of. Learned Counsel for both sides agreed for an early hearing of the appeals. These are probably the earliest appeals under Section 9C of the Act. The appeals relate to a new variety of duty having International ramifications. We are, therefore, satisfied that expeditious hearing would be necessary in the interests of justice. Appeals will be posted for hearing on 16-1-1997 and 17-1-1997, as agreed to by all the parties.