ORDER
K. Sreedharan, J. (President)
1. This appeal is at the instance of Altek Lammertz Needles Ltd., a company incorporated under the Companies Act, 1956. They are engaged in the manufacture of Industrial Sewing Machine Needles. The company entered into a joint venture with M/s. Lammertz Industrial GmbH. As per that agreement, Lammertz would hold 26% of the equity. Lammertz and Mr. Ganesh, the promoter of the company were to have parity of voting rights. Chairman of the Board of the company was to be appointed by Lammertz who has a casting vote. The company was to carry on business under the general guidance and supervision of Lammertz. Alleging that Industrial Sewing Machine Needles are being dumped into the Indian market by manufacturers from Japan, Korea, China, Czech Republic and Germany appellant filed an application before the Designated Authority to consider and recommend anti-dumping duties on eight systems of needles locally manufactured. After a preliminary investigation, Designated Authority recommended anti-dumping duties. As per the preliminary finding rendered by it, Ministry of Finance imposed anti-dumping duties on needles vide Notification No. 106/98, dated 24-12-1998. Thereafter, Designated Authority invited interested parties to submit their objections. Concerned parties filed their objections and Designated Authority passed its final order dated 12-4-1996. By that order, petitioner before the Designated Authority, namely, the appellant company was held to be related to an exporter and cannot be Adeemed to form part of the domestic industry within the meaning of that term as defined in the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules). Consequent on the above finding, the Designated Authority took the view that no proceedings are called for pursuant to the application put in by the present appellant. The provisional recommendation made earlier on the basis of which Government issued notification imposing duty was withdrawn. Aggrieved by this procedure adopted by the Designated Authority, this appeal has been preferred.
2. Learned Counsel appearing on behalf of the respondents raised a preliminary contention regarding the maintainability of the appeal. According to Counsel representing the respondents, the order passed by the Designated Authority is one rejecting the application filed by the appellant company without determining existence, degree and effect of any subsidy or dumping in relation to import of any article. In the absence of such a determination by the Designated Authority on the ground of non-maintainability of the application the order passed by it cannot be appealed against before this Tribunal. Section 9C of the Customs Tariff Act, as amended by Act 6 of 1995 which confers appellate power on this Tribunal, does not take within its ambit rejection of an application by the Designated Authority on the ground of non-maintainability.
3. The preliminary objection raised by Counsel representing the respondents was countered by learned Counsel of the appellant stating that the rejection of the appellant’s application on the ground of non-maintainability has the effect of deciding non-existence of dumping in relation to the articles mentioned in the application filed before Designated Authority and so it must be treated as one falling within the four corners of Section 9C of the Act.
4. We heard Counsel appearing on either side on the issue relating to the maintainability of this appeal. Advocate, Shri Lakshmi Kumaran wanted to submit his views on the issue. We allowed him to place his submissions as well. We proceed to deal with the preliminary objection regarding the maintainability of the appeal herein below.
5. Section 9A provides for imposition of anti-dumping duty when any article is exported from any country to India at less than its normal value. Central Government is to impose on the importation of such article anti-dumping duty. This anti-dumping duty can be imposed in accordance with the provisions of the Act and the Rules made thereunder regarding the normal value and the margin of dumping. Such duty may be based on a provisional estimate, subject to variation after final determination in terms of the provisions contained in the Act and the Rules. On the basis of the final determination if it is found that excess amount has been collected by way of anti-dumping duty, the excess must be refunded. Section further states that the margin of dumping must be ascertained and determined from time to time after making such enquiry as is provided by the Rules framed thereunder. Section 9B, inter alia, states that unless a determination has been made in accordance with the rules on the question of injury to Indian industry consequent on import of articles into India, the Central Govt. should not levy any countervailing duty or anti-dumping duty. Central Govt. is enjoined by these provisions of the Act to make rules providing for the manner in which any investigation may be made for the purpose of giving effect to the provisions contained in the Sections. Section 9C provides for appeal to CEGAT. Clause (1) of that Section which is relevant for our purpose reads :-
“9C(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 (hereinafter referred to as the Appellate Tribunal).”
6. Subject to the provisions contained in the above mentioned Sections of the Customs Tariff Act, Rules have been framed. Rule 2 of the Rules defines various terms used therein. Clause (b) defines domestic industry. As per that definition, producers who are related to exporters or importers of the alleged dumped articles and those who themselves import such articles are not to form part of domestic industry. Rule 3 provides for appointment of designated authority. Rule 4 which deals with duties of the designated authority, inter alia, provides for submitting of findings to the Central Govt. as to normal value, export and the margin of dumping in relation to the article under investigation and the injury or threat of an injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. The said finding may be either provisional or otherwise. Clause (1) of Rule 5 deals with the initiation of investigation by the designated authority. Except where the initiation is under Sub-rule (4), i.e., suo moto, the proceedings can be initiated only upon receipt of a written application by or on behalf of the domestic industry. Sub-clause (a) of clause (3) of Rule 5 is to the effect that the designated authority shall not initiate an investigation pursuant to an application made under Sub-rule (1) unless :
“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.”
The proviso to this states that no investigation shall be initiated if domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry.
7. From the above provisions of the Act and the Rules, it is seen that Designated Authority has to initiate 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, where it is not initiating investigation suo moto. If the application by the domestic industry is not supported by more than 25% of the domestic producers, then the investigation should not be initiated.
8. In the instant case, the Designated Authority came to the conclusion that the appellant herein, who was the applicant before it, does not come within the definition of domestic industry. As a result of that, the Designated Authority did not enter a finding as to the normal value, export value and the margin of dumping in relation to the article under investigation and injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent on the import of the article mentioned by them from the countries specified in the application. In other words, on the conclusions reached on the question of non-maintainability of the petition, the Designated Authority did not initiate the investigation as contemplated by the Rules. It is true that on receipt of the petition, it passed a provisional order and pursuant thereto Central Govt. issued notification levying anti-dumping duty. The said finding and the consequent notification cannot have any relevance now because of the conclusion reached by the Designated Authority that application is not maintainable, inasmuch as the applicant is not satisfying the definition of domestic industry.
9. This Tribunal has been constituted as an Appellate Tribunal to judicially review the final determination or review of such determination made by the competent authority. As per clause (1) of Section 9C of the Act, an appeal against the order of determination regarding the existence, degree and effect of any subsidy or dumping in relation to import of an article shall lie to this Tribunal. So also an appeal against the order of review regarding the existence, degree and effect of any subsidy or dumping in relation to import of an article lies to this Tribunal. Only these two categories of orders are appealable before this Tribunal. An order of the Designated Authority rejecting an application seeking initiation of proceedings under the Anti-dumping and Countervailing provisions cannot be treated as one falling in any of the above mentioned two categories. According to the learned Counsel representing the respondents, an order determining the matters mentioned above is an appealable order. So also an order reviewing the existence, degree and effect of any subsidy or dumping in relation to import of any article is open to challenge in an appeal. The finding arrived at by the Designated Authority may be in the affirmative or in the negative. Designated Authority may find the existence, degree and effect of any subsidy or dumping in relation to an article imported. It may also render a finding in the negative i.e. non-existence of any impact on the Indian industry. In either case, the orders will fall within the purview of clause (1) of Section 9C. But if the Designated Authority refuses to entertain an application on the ground of non-maintainability, there is no finding either in the affirmative or in the negative of the circumstances contemplated in Section 9C. Such order cannot, under any circumstance, fall within the purview of Section 9C as an.appealable one.
10. Learned Counsel representing the appellant advanced an argument that Designated Authority’s finding can either be in the affirmative or in the negative. There cannot be a third category in regard to determination by the Designated Authority. According to learned Counsel, when the Designated Authority dismisses an application by refusing to initiate proceedings on the ground of non-maintainability, it may fall in the category of a negative finding. In other words, such an order must be deemed to have the force of a finding that there is no existence, degree or effect of any subsidy or dumping in relation to the import of the article. Viewed in this light it was contended that such an order must also be treated as an appealable order. We find it difficult to agree with this contention. An affirmative finding or a negative finding can be arrived at only in proceedings, which are initiated properly by a competent body under the Rules. If the application itself is rejected on the ground of non-maintainability, there is no initiation of investigation by the Designated Authority. In the absence of such an initiation of investigation, we do not find any ground to take the view that an order dismissing the application as non-maintainable will fall within the scope of Section 9C of the Act.
11. Learned Counsel representing the appellant submitted that the Designated Authority has wrongly refused to exercise its jurisdiction to go into the issue raised in the petition. When such an error is committed by the Designated Authority, this Tribunal should interfere in exercise of the appellate jurisdiction. This argument also cannot be accepted. Power of appeal is given to this Tribunal by virtue of Section 9C of the Customs Tariff Act. The powers of this Tribunal are circumscribed by the provisions contained in Section 9C. Even all the powers conferred on mis Tribunal under Section 129C of the Customs Act, 1962 are not extended. The provisions contained in Sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act, 1962 alone are extended to this Tribunal while dealing with appeals under Section 9C. The limited powers so conferred on this Tribunal cannot be used in a manner enlarging the appellate jurisdiction. It is settled law that unless a right of appeal is specifically given by the statute, no appellate power can be assumed or exercised by the Tribunal. The right of appeal conferred on this Tribunal is circumscribed by the provisions contained in Section 9C of the Customs Tariff Act. This Tribunal cannot go into the question whether the remedy of appeal granted to this Tribunal is adequate or effective. This Tribunal we are clear, cannot assume wider jurisdiction to entertain appeals falling outside the parameters mentioned in Section 9C.
12. Learned Counsel, Shri Lakshmi Kumaran brought to our notice the decision of the Supreme Court in O.P. Jain v. Gian Chand, AIR 1959 SC 837 in support of his argument that the decision of the Designated Authority that the petition before it is not maintainable has the effect of finally disposing of that application and so is appealable under Section 9C of the Act. In that case, their Lordships were concerned with an argument whether an order of dismissal of an election petition by the Election Tribunal under Section 90(3) of the Representation of People Act, 1951 is appealable like an order under Section 98 of the Act. On the facts of that case, the Tribunal recorded evidence on all issues raised for trial. When the case was to be taken up for arguments, an application was filed for dismissal of the main petition on the ground of violation of the provisions contained in Section 117 regarding deposit of Rs. 1000.00 in favour of the Secretary to the Election Commission. The Tribunal dismissed the main petition, on the ground that payment was not in conformity with Section 117 by invoking the powers under Section 90(3) without deciding the issues raised for trial. On this set of facts, their Lordships observed :-
“When it (Election Tribunal) passes an order which closes the proceedings before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the conclusion of such trial.”
In this view, it was held that the order, though purporting to be passed under Section 90(3), is to be treated as an appealable order. This decision cannot, in any way, help the appellant herein. The Designated Authority did not initiate the investigation as contemplated by the Rules on the ground that the application is not by the domestic industry. When there was no initiation of investigation as per the Act and Rules, the dismissal of the application cannot be taken as a negative finding reached by the Designated Authority. Consequently, we hold that the impugned order does not fall within the four corners of Section 9C of the Act.
13. In view of what has been stated above, we uphold the preliminary objection raised by the respondents and hold that the appeal is not maintainable. Without examining the issues sought to be raised by the appellant in this appeal, the appeal is dismissed as not maintainable.