TaxTMI 
TaxTMI 
2015 (9) TMI 402
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....grievance raised by the petitioner is that the Designated Authority has relied upon the transactions-wise imports data as new evidence at the fag-end of the investigation without supplying a copy thereof and providing a reasonable period of time to the parties to review and comment upon the new evidence. It is contended that failure to supply the data amounts to denial of a hearing and, as such, the final findings rendered are liable to be quashed. 4. As per the petitioner, the respondent No.5 in its application seeking initiation of inquiry had relied upon the transaction-bytransaction import statistics sourced from M/s. Cybex Exim Solutions (P.) Ltd. which collects data from custom authorities and the said import statistics was raw data and in substantial quantity included data with regard to non-subject goods and, as such, was liable to be rejected/ignored by the competent authority. 5. As per the petitioner, the data furnished by the respondent No. 5 was ultimately rejected and for the first time, at the fag-end of the investigative proceedings, the petitioner came to know on receipt of the disclosure statement on the evening of 05.12.2014 that the Designated Authority ha....
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.... our attention to the following tables as extracted in the Final Findings:- "Price Undercutting 128. Price undercutting has been assessed by comparing the export price with the domestic selling price in India of the subject goods, during the period of investigation. It would be seen that the landed price of imports is lower than the selling price of the domestic industry for almost all storage capacities of USB flash drives, thus resulting in overall price undercutting. Subject Countries Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 358.40 317.20 255.17 231.24 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 China PR Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 352.35 315.28 253.44 234.46 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutt....
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....NAND Based 1 GB *** 2 GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** Others *** COB Based 2GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** The weighted average analysis of NIP and Landed Value, based on the GB wise NIP and Landed Value mentioned in the Table 1 and Table 2(a) & 2(b) above, the Authority notes that the landed value of imports of the subject goods, originating in or exported from the subject countries, was below the non-injurious price of the domestic industry as can be seen in the table below. The Authority further notes that imports from the subject countries individually as well as cumulatively is having underselling effect on the prices of domestic industry. Particulars Unit China Taiwan Subject Countries Non-injurious price** Rs./No. *** *** *** Landed Price (POI) Rs./No. 234.46 226.66 231.24 Price underselling Rs./No. *** *** *** Underselling % *** *** *** Underselling % Range 75-85 80-90 80-90 Note:- *Weighted average Non-injurious price have been determined based on....
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....y was confidential data with the respondent No.4 and, as such, could not be shared with the petitioner. He further contended that the petitioner itself had supplied incomplete data by scoring out/omitting various information in the same. 14. Learned Senior Counsel for the respondent alternatively contented that in case this court were to hold that there was violation of the principles of natural justice, then the matter could be remanded to the Designated Authority to cure the alleged defect. In support he referred to the following decisions: (i) Sterlite Industries (India) Ltd. Versus Designated Authority 2003 (158) E.L.T. 673 (SC); Tribunal Decisions (ii) Kumho Petrochemicals Co. Ltd. Versus National Organic Chemical Industries Ltd. Final Order No. AD/A/54808-5- 4810/2014-CU[DB dated 27/08/2014]; (iii) Fragrances Flavours Association of India versus Designated Authority [2011 (270) E.L.T. 733 (T)]; (iv) Huawei Tech. Co. Ltd .. Versus Designated Authority[ 2011 (273) E.L.T. 293 (Tri.- Del.)]; (v) Leather Cloth & Plastic Mfr. Association Versus Union of India 2012 (282) E.L.T. 438 (Tri. - Del.) 15. To examine the scope of the investigation in an inquiry, ref....
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....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; (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 kn....
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....on, 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 subrule (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. (3) Notwith....
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....umstances 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; (iv) Considerations relevant to the injury determ....
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....a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. The designated authority has also been empowered to initiate an investigation suo moto 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). 17. Rule 6 stipulates that after the designated authority has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article it shall issue a public notice notifying its decision. The Public notice should inter alia, contain adequate information on, amongst other, the basis on which dumping is alleged in the application and a summary of the factors on which the allegation of injury is based. A copy of the public notice is to 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. The designated authority is required to pr....
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....rule (8) of Rule 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based. 20. Rule 16 mandates that before giving its final findings, the designated authority shall, inform all interested parties of the essential facts under consideration which form the basis for its decision. 21. Rule 17, dealing with final findings, stipulates 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 its final findings to the Central Government amongst others as to the export price, normal value and the margin of dumping of the said article and recommend the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry. The Central Government may in its discretion in special circumstances extend the aforesaid period of one year by six months. Under sub rule (2), the final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have l....
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....xxxx xxxxx xxxxx xxxxx xxxxx 40. In the present case, NIP computed by the DA was much lower than that computed by the appellant, and the reasons for such variance and detailed calculations were not disclosed by the DA to the appellant. No good reasons were given for reducing the cost price of electricity supplied by the appellant produced in its captive power plant. This was clearly illegal. xxxxx &....
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....annot 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 decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the Appellate Authority, namely, CEGAT to look into the relevant files." (underlining supplied) 24. In Reliance Industries case (Supra), the Supreme Court has laid down that the nature of the proceedings before the DA are quasijudicial, and a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the Authority in that decision. Where reasons for variance and detailed calculations for computing the Non Injurious Price are not disclosed, it would be illegal. Under Rule 7, the Designated Authority has to be satisfied as to the confidentiality 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 t....
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....o substitute for an oral hearing. It has been held that 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. 27. This court in Bharat Solvent & Chemical Corporation Versus Union of India & Others, W.P. (C) 401 of 2015 by judgment dated 09.03.2015, following the decision of the Supreme Court in Automotive Tyre Manufactures Association held that the DA functions as a quasi-judicial authority and decides a "lis" between persons supporting the levy of duty and those opposing the levy. Furthermore, the DA is bound to follow the principles of natural justice and to give an opportunity of hearing to all interested parties, in fact, "to all the parties, who have filed objections and adduced evidence". 28. In the present case, the Designated Authority has disregarded the transaction-by-transaction import statistics submitted by the domestic industry alongwith the application seeking initiation and introduced fresh data and relied on the transactions-by-transactions imports statistics obtained by him from the respondent No.4 at the very fag end of the investigation. The data was....
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....he same being accepted by the central government more so in a case where the principles of natural justice have not been complied with. 32. Further contention raised that the petitioner itself had supplied data by scoring out of confidential information and thus could not raise a grievance with regard to the non supply of data to the petitioner also does not have any merit. The Designated Authority has accepted the claim of confidentiality of the petitioner and the said upholding of claim has not been challenged by the respondent domestic industry. If the Designated Authority is not satisfied with the claim of confidentiality by one of the parties, the Designated Authority is empowered by the Rules to disregard and refuse to take into consideration the data furnished by that party but the Designated Authority cannot refuse to supply data furnished by others to the said party. The fact that the Rules prescribe that 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 i....
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.... question and subsequently the investigation is resumed on the violation of the terms of the undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of one year. 37. Rule 18 also lays down a time limit for the central government to impose the anti dumping duty i.e. a period of three months of the date of the publication of the final findings by the Designated Authority. 38. Rule 23 mandates the Designated Authority to review from time to time the need for the continued imposition of the anti-dumping duty and lays down that any review initiated shall be concluded within a period of twelve months from the date of initiation of the review. 39. Reading of the Rules and the statutory provisions make it clear that the timelines have to be strictly followed and the investigation and the review as the case may be have to be completed within the respective statutory periods. In case the same are not completed with the respective statutory periods the proceedings would be vitiated. In the present case the investigation commenced on 21.06.2013. Under Rule 17, the period would have expired on 20.06.2014. Th....