TaxTMI 
TaxTMI 
2009 (10) TMI 614
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....e originating in or exported from China P.R., on the ground that such initiation is without jurisdiction and contrary to law. The petitioners have also prayed for issuance of a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, direction or order, thereby permanently prohibiting the respondents from taking any action pursuant to Initiation Notification No. 14/18/2008-DGAD dated 17-11-2008, order dated 6-5-2009 made by respondent No. 2, the preliminary findings dated 25-5-2009 and Notification No. 73/2009-Customs dated 22-6-2009. The petitioners have further prayed for quashing and setting aside this Initiation Notification/order/preliminary findings and notification dated 22-6-2009. 4. It is the case of the petitioners that the petitioner No. 1 Company is engaged in the business of manufacture of chemicals and chemical compounds and one of its raw materials is Diethyl Thio Phosphoryl Chloride (DETPC) imported this input/raw material regularly from China. In or around August 2008, M/s. Cheminova India Limited, respondent No. 3 herein, filed an application before respondent No. 2 alleging dumping of the above material originating in or e....
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....ions raised by the petitioners about jurisdiction and decide the same within four weeks after hearing the parties, and thereupon allowing withdrawal of the petition. 6. The petitioners thereafter submitted their written submissions on 28-4-2009 and 1-5-2009 before the designated authority. The domestic industry also submitted their written submissions and the petitioners submitted their rejoinder. The respondent No. 2 thereafter issued preliminary findings about the investigation thereby recommending mere duty against import of DETPC from China. Based on the said recommendations of the designated authority, the notification under Section 9A(2) of the Customs Tariff Act read with Rules 13 & 20 of the Customs Tariff Rules, 1995 has been issued on 22-6-2009 thereby accepting recommendations of the respondent No. 2 and imposing steep rate of anti-dumping duty and provisional basis on the DETPC imported from China. 7. At this stage, the present petition is filed by the petitioners before this Court. 8. Mr. S.N. Soparkar, learned Senior Counsel appearing with Mr. Paresh M. Dave for the petitioners has raised the following issues while challenging the impugned acti....
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....and confidentiality as to findings. 9. In support of his submissions, Mr. Soparkar has relied on the decision of the Apex Court in the case of Sterlite Industries Limited, 2003 (158) E.L.T. 673 (S.C.) and in the case of Shenyang Mastsushita S. Battery Company, 2005 (181) E.L.T. 320 (S.C.) and also in the case of Reliance Industries Limited v. Designated Authority, 2006 (202) E.L.T. 23 (S.C.). 10. On behalf of the respondent No. 2, Mr. R.M. Chhaya, learned Standing Counsel appeared. An affidavit-in-reply is filed on behalf of the respondent No. 2 by Mr. D.P. Mohapatra, Director, Foreign Trade, Government of India. Based on this affidavit, Mr. Chhaya has submitted that the petition is not maintainable, more particularly, at this stage when the proceedings are pending before the respondent No. 2 who has yet to take final decision in the matter. He has further submitted that the present petition is nothing but an attempt to thwart the pending proceedings initiated under the provisions of Section 9-A of the Customs Tariff Act read with the Rules framed thereunder. The investigations have been initiated on being satisfied that the application made by the respondent No. 3 ....
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....s filed by Mr. Ajit Laxman Inamdar on behalf of respondent No. 3. He has submitted that the petition is thoroughly misconceived and not maintainable. The petition seeks to invoke the discretionary jurisdiction of this Court so as to stop the proceedings which have already been commenced before the designated authority by initiation of anti-dumping investigation concerning import of DETPC originating in or exported from China. The preliminary findings recorded by the designated authority, upon investigation are merely recommendatory in nature and it is for the Central Government to levy or not to levy any provisional duty on the basis of the findings of the designated authority. In the event of imposition of any anti-dumping duty by the Government, the petitioner would have remedy of statutory appeal in terms of the provisions of Section 9(c) of the Customs Tariff Act. Rule 21 clearly contemplates refund of duty if the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected. 12. Mr. Mihir Joshi, learned Senior Counsel appeared for respondent No. 4. An affidavit-in-reply is filed by the respondent No. ....
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....issues. We are, however, primarily concerned to decide as to whether the present petition is maintainable at this stage and if yes, to what extent? Whether any relief can be granted to the petitioners in this petition. 15. The first and foremost issue is in relation to maintainability of petition at this interim stage. The main challenge is against levy of provisional anti-dumping duty which, inter alia, affects the petitioners. It is true that it is not a stage at which Court could go into validity of preliminary findings/imposition of duty. If final duty is not levied, the petitioners will be entitled to refund of anti-dumping duty already paid and if it is imposed, they could appeal to CESTAT or approach this Court or Hon'ble Supreme Court. The moot question still remains as to whether in a given case, grievance against judicial, quasi-judicial or administrative function may itself give rise to cause of action as the very initiation of proceedings under any law or in exercise of public duty aimed at bringing civil consequences for a person against whom such action is initiated, itself becomes cause of action abundantly affecting petitioners' interests. Mr. Thakore's argu....
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.... 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 Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962. Section 9A(2) of the Act states that 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-dumping 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. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says that 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 ....
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....sceptible of summary, such party may submit to the designated authority a statement of reasons why summarisation is not possible. (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 authorise its disclosure in a generalised or summary form, it may disregard such information." 19. Based on this Rule 7, the respondent No. 2, in his affidavit in reply has stated that in any petition, there will be non-confidentiality as well as confidentiality version that considering the reasons given by the domestic industry in respect of the confidentiality version contained in the application, the Designated Authority has been satisfied with such information as to be treated as confidential and it shall not be disclosed to any other party, more particularly, since the party disclosing or providing such information has not specifically authorized the disclosure thereof under the circumstances, it is contended that it is not open for the petitioners to challenge subjective sati....
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....ly sensitive. Mr. Chhaya also refers to WTO Agreement (ADA) which provides as under :- "6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 6.5.1 The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided. 6.5.2 If the autho....
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....ty of that material. Even if the material is confidential, the Designated Authority has to ask the parties providing information, on confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarization is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases, there is need for confidentiality as otherwise trade competitors would obtain confidential information which they cannot otherwise get. But whether information supplied is required to be kept confidential has to be considered on a case to case basis. It is for the Designated Authority to decided whether a particular material is required to be kept confidential." 25. While....
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....y cost, excluded interest and while constructing normal value, kept the figure of cost of raw materials, conversion cost, S.G. Expenses and finance cost, profit margin and constructed normal value as blank. Again in paragraph 23, while determining export price, figures of export volume, CIF export price per unit, price adjustments, ocean freight, insurance, commission, inland freight, other auxiliary fees, credit cost, bank charges, VAT differential, total adjustment, ex-factory cost of different importers are kept blank. Even while determining dumping margin in paragraph 25, the figures of normal value, export price, dumping margin and dumping margin percentage of different exporters are kept blank. While determining price effect of the dumped imports on the domestic industry, in paragraph 35, figures of selling price, price under cutting and cost of sales for the years 2004-05, 2005-06, 2006-07 and 2007-08 (period of investigation) are kept blank. While determining price under selling in paragraph 37, figures of non-injurious price and price underselling are kept blank. While discussing about the return of capital employed in paragraph 41, figures of return on capital employed an....
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....n to jeopardy. We, therefore, do not endorse the view taken by the designated authority so far as the confidentiality as to finding is concerned. The levy of provisional anti-dumping duty based on this preliminary finding cannot, therefore, be enforced against the petitioners. 29. We, therefore, while not expressing any opinion on other issues decided by the designated authority in the impugned notification and reserving the petitioners' right to challenge at the time of final finding, we disapprove the preliminary finding of the designated authority on the issue of confidentiality and direct the designated authority to provide all necessary details of findings which are kept blank while recording his preliminary findings and permit the petitioners to raise their objections in this regard and while recording the final finding, the designated authority shall take into consideration such objections and submissions that may be made in this regard. Not only this, the designated authority shall take into consideration the issues raised by the petitioners with regard to the respondent No. 4 and to decide as to whether they or their allied concerns have made any import of subject ....