Fair disclosure in anti-dumping reviews requires full non-injurious price workings before final findings and meaningful response

Detailed disclosure of the non-injurious price methodology is required before final anti-dumping findings are made, because that computation directly affects the dumping margin and injury assessment. Where only a bare format is disclosed and the interested party is denied a meaningful chance to comment, the defect is not cured by a later disclosure and the assessment is vitiated for breach of fair hearing. The text also notes that exclusion of semi-finished ophthalmic lenses with refractive index above 1.60 was upheld because they were not shown to be produced by the domestic industry and were not technically or commercially substitutable.

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Issues: (i) Whether the final findings were vitiated for non-disclosure of detailed non-injurious price workings before the disclosure statement was finalized. (ii) Whether exclusion of semi-finished ophthalmic lenses having refractive index above 1.60 from the product under consideration was justified.

Issue (i): Whether the final findings were vitiated for non-disclosure of detailed non-injurious price workings before the disclosure statement was finalized.

Analysis: Rule 16 of the 1995 Rules and Article 6.9 of the anti-dumping agreement require disclosure of the essential facts forming the basis of the final decision in sufficient time to enable an effective response. The non-injurious price had a direct bearing on the normal value, dumping margin and injury margin. The disclosure supplied only Format "L" and did not furnish the detailed basis or methodology of optimisation and cost adjustments in time for meaningful comments. The later disclosure could not cure the prejudice caused by the earlier omission.

Conclusion: The non-disclosure of detailed non-injurious price workings violated the requirement of fair disclosure and vitiated the final findings to that extent. The matter was required to be remanded for fresh determination of non-injurious price after giving a reasonable opportunity to respond.

Issue (ii): Whether exclusion of semi-finished ophthalmic lenses having refractive index above 1.60 from the product under consideration was justified.

Analysis: The excluded lenses were not shown to be manufactured by the domestic industry, and the materials before the Tribunal indicated that lenses below and above 1.60 were not technically or commercially substitutable. An item not produced by the domestic industry cannot ordinarily be treated as causing injury to it merely because it may be capable of production in theory.

Conclusion: The exclusion of semi-finished ophthalmic lenses having refractive index above 1.60 was upheld.

Final Conclusion: The appeal succeeded only to the extent that the nil anti-dumping duty determination based on the impugned non-injurious price assessment was set aside and the matter was remitted for fresh consideration, while the challenge to the product exclusion failed.

Ratio Decidendi: Where the non-injurious price forms the basis of the dumping and injury determination, detailed disclosure of its computation must be furnished before final findings are made so that the interested party can meaningfully respond; failure to do so violates natural justice and warrants remand.

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