TaxTMI 
TaxTMI 
2016 (3) TMI 514
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...., DR, Ms. Reena Khair, Advocate, Mr. Rajesh Sharma, Advocate, Mr. Jitendra Singh, Advocate And Mr. Madhav Rao, Advocate ORDER Per Mr. R.K. Singh : Appeals are filed against levy of Anti-Dumping Duty on Synchronous Digital Hierarchy System (SDH) vide Notification No.125/2010-Cus, dated 16.12.2010 based on/read with the Designated Authority's 'Final Findings' with regard thereto. Background in brief: 2. On 21.04.2009, the Designated Authority in the Ministry of Commerce initiated investigations against the imports of SDH Transmission Equipment from China PR and Israel ('subject countries'). The initiation was made pursuant to an application filed by M/s. Tejas Network Ltd, ('Tejas') which claimed status as domestic industry. It was alleged in the application that the SDH product was being dumped from China PR and Israel into India and such import was causing injury to Tejas. On 07.09.2009, the Designated Authority issued preliminary findings recommending levy of provisional duty for a period of six months. M/s. Vuppalamritha Magnetic Components Ltd. (VMCL), challenged the initiation of investigations, as well as the preliminary findings before the Andhra Pradesh High C....
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....final duties. 5. Against the final findings and notification of the Central Government, the exporters and importers including M/s. Huawei Technologies Co. Ltd (Huawei), VMCL, and M/s. Prithvi Solution Ltd (Prithvi) filed appeals before CESTAT. By an order dated 11.08.2011, CESTAT allowed the appeals by way of remand as under: "15. Accordingly we allow these appeals by remand to the DA for affording post-decisional hearing to the appellants and for making such modifications to the final findings as may be necessary as a result of such post-decisional hearing. The respondent-domestic industry and other interested parties, if any, shall also be allowed to participate in such post-decisional hearing. Any modifications made in the final findings would be considered by giving effect to the same by the Government by carrying out the necessary amendments to the impugned notifications imposing anti-dumping duty. This process shall be completed within 6 months from the date of this order and status quo shall be maintained meanwhile. Since we are allowing the main appeals by remand, the MA (EH) and SPs stand disposed off". 6. Against this order of CESTAT, Huawei, VMCL, Idea Cel....
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....ad as follows: "We have heard learned counsel for the parties on the question of interim relief. Having done so, we direct that the appellants shall continue to deposit the Anti-Dumping Duty in terms of Notifications dated 16th December, 2010, 12th April, 2010, 31st December, 2007 and 7th July, 2010 in an Escrow Account to be opened in the State Bank of India, Parliament Street, New Delhi. Appropriate orders in relation to the disbursement of the amount in the said account shall be made at the time of final disposal of the appeals. It is agreed that complete details of the amount to be deposited in terms of this order shall be furnished to the Authority concerned." Rest of order dated 31-8-2012 would remain as it is." 9. In the meantime, the Designated Authority implementing the orders of CESTAT, concluded its investigations after granting opportunity of hearing to all interested parties and issued the second Final Findings dated 10.02. 2012, affirming its earlier conclusions. The appeal of Huawei has been filed against the second final findings. All the other appeals pertain to the first final findings. Arguments on behalf of Huawei Technologies Lt....
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....nd thus STM 64 was wrongly included in the investigations. (viii) Designated Authority exceeded his jurisdiction, by including STM 256, and DXC which had not been imported into India, from the subject countries, during the relevant period in-as-much-as anti-dumping duty is attracted on dumped imports, and can not cover items, which are not imported. Arguments on behalf of Alcatel-Lucent Shanghai Bell Co. Ltd 11. Ld. advocate for Alcatel-Lucent Shanghai Bell Co. Ltd., China contended that (i) the scope and extent of product under consideration had been altered in the course of investigations, which was not legally permissible. The import data considered during investigation was for SDH equipment, whereas in the final notification, SDH equipment for electrical copper medium and microwave medium is excluded. Determinations relating to injury are also not based on appropriate data, since the scope of product has been changing at every stage. (ii) Activities carried out by Tejas are not adequate for it to acquire the status of manufacturer. (iii) Under Section 9A of the Customs Tariff Act, 1975, the investigations are for "a" product, and multiple product investigation is not envi....
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....les, 1995 (hereinafter "Anti-dumping Rules") requires DA to identify the article liable for anti-dumping duty and so do Rules 6, 10 and 11 of the Anti-Dumping Rules. Thus, Designated Authority had erred in including within the scope of investigations more than one "article". (iii) Where multiple articles are included within the scope of an investigation, there should be a domestic industry for each of such articles, and the applicant must demonstrate that it has a major proportion, in the production in India for each of such articles. A separate dumping margin, is required to be determined for each such article. The Authority has included within the scope of investigation articles, which are unlike each other. (iv) The investigations were liable to be terminated under Rule 14 of the Anti-dumping Rules. (v) Domestic industry, as defined in Rule 2(b), does not require that the IPR in the products must reside in India, and that if the IPR is in some other country, the producer would stand excluded from domestic industry. (vi) Designated Authority failed to consider public interest, while making its determination. The levy of impugned duties has adversely impacted the telecom industry ....
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.... Domestic Industry pleaded/contended as under:- (i) Tejas Networks Ltd established in the year 2000, is a pioneering telecommunications company which has over 70% of its workforce deployed in R&D. Tejas has won many awards for excellence and innovation. (ii) Apart from Alcatel " Lucent, none of the exporters have disputed the fact of dumping, except to say that the scope of the product had not been appropriately defined, or that there was no properly constituted domestic industry. It is a settled legal position, in cases of dumping, duties must be imposed, subject to the existence of injury. (iii) Dumping is quantified as the difference between the export price to India, and the normal value for the product in China or Israel. The dumping margin in the present case, has been computed on an apple to apple comparison. The Authority has devised a Product Control Number (PCN), and compared the normal value, with the export price, for each PCN. On this basis, the Authority has found dumping margins in the range of 5% to 290%. The exports to India were indisputedly dumped. (iv) The definition clause, uses the words, "producers", "production", "manufacture" and "output". In this contex....
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....rom China are about 4% of the total cost of production of the like article, and less than 1% of total imports of the subject goods from China into India. The imports being insignificant, and the principal activity of Tejas not being one of import from China, Tejas retains its status as a producer, and the injury can not be said to be self inflicted. In this context, attention was invited to the decision of the Madras High Court, in the case of Nirma Ltd. Vs. Saint Gobain Glass India Ltd. [2012 (281) ELT 231 (Mad.)] and other decisions of the CESTAT referred to later. (ix) It is permissible for the Authority to include within the purview of the PUC, assemblies, sub-assemblies, parts and components, which if not included, would make the levy ineffective because otherwise the exporters could easily circumvent the duty by importing such items and assembling them in India (which is a simple process). In this context, reference was made to the practice in other jurisdictions, such as USA and EU (referred to later). (x) There is no legal requirement that the product under consideration, should be homogenous or alike. In this context, reliance was placed on the WTO Panel Report in the case....
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....depth and passed a speaking order. It was further submitted, that since the issuance of the notification, many cases of circumvention of duties had come to the notice of the Department, where the equipment was imported as parts, or sub-assemblies in CKD or SKD, intended for use as SDH equipment. In many of these cases, the importers had deposited the duties subsequently. It was further pointed out, that survival of the local telecom equipment manufactures was necessary in public interest, since cases of espionage had been detected in India and other countries. As regards inclusion of parts and components, it was submitted that SDH was a technology, and any part or component containing such technology was subject to the levy. He drew distinction between production and manufacture. He stated that R&D required to manufacture a product will be part of the process of production and in that manner, Tejas is rightly held to be "Domestic Industry" and not others. Revenue also stated that Huaweis presence may be inimical to India and cited news reports/articles in India and other countries. Discussions & Findings 16. After conclusion of hearings, the parties were to file written subm....
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....o justify the initiation of an investigation. Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may 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). (5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation." The scope and extent of Rule 5 has been examined in various decisions of the High Courts and CESTAT. In the case of Rajasthan Textile Mills Association Vs. DGAD [2002 (149)....
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....ication and further says in its order, that based on the confidential and non-confidential evidence produced before it, the matter requires to be examined. This opinion requires to be framed by the designated authority based on the evidence made available and produced before it by the applicants. This Court normally in exercise of its judicial review would not disturb the opinion of the designated authority or the Central Government. This Court only looks into whether the opinion formed by the designated authority is in consonance with the provisions of the Act and the Rules framed thereunder. This Court also will not interfere with the opinion formed by designated authority or the Central Government unless that opinion is either wholly arbitrary or unreasonable or no reasonable person would come to such a conclusion or if it is in violation of statutory provisions. In my opinion, in the instant case, the designated authority rightly and correctly understanding the scope of Secs. 9A and 9B and also Rule 5(1) to 5(5) of the Rules, has initiated investigation proceedings on the application filed by the domestic industries. In my opinion the designated authority has not committed any ....
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....on. The resolution of questions of fact such as this should, we think, be best left to the fact finding authorities constituted under the relevant statue. The High Court should not have interfered, in a writ petition, at the stage of show cause notice to take over that fact finding investigation." 60. The same view has been taken by the Hon'ble Supreme Court in the case of CCE Vs. Charminar (supra) the at the writ petition against the show cause notice is not maintainable. 61. I am fully convinced with the submissions made on behalf of the respondents that it is a mere initiation notification, which is nothing but in the nature of show cause notice. In the case of Automotive Tyre Manufacturers Association Vs. Designated Authority, [2011 (270) ELT 727 (T)], CESTAT held as under:- "As regards the challenge to the sufficiency of information for initiation of the anti-dumping investigation raised by the appellants, firstly it is rather too late to challenge the initiation when the final findings have been rendered, the same has been accepted by the Government and anti-dumping duty has been notified and further, we were also told during the course of h....
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.... the existence of all the elements necessary to levy a duty is reached gradually as the investigations move forward. The evidence to be furnished for the purposes of initiation is that which is reasonably available to the applicants. The nature of evidence at the stage of initiation need not be of the same quality and quantity as required for final imposition of the Anti-Dumping duty. We find that the domestic industry submitted a detailed petition containing evidence regarding dumping, injury and causal link, a copy of which was submitted to us in the course of hearing. The petition mentions that there are 4 producers in India:- (i) Tejas Networks Ltd (ii) ORDYN Technologies Pvt Ltd (iii) Measurement and Controls Ltd and (iv) Bharat Electronics Ltd The share of Tejas during the POI has been given as 84.7%. CMAI (Communication Multimedia and Infrastructure) has given a letter to the Designated Authority stating as under: "While the association does not maintain accurate information, with regard to production or supply by different companies or demand in India. We are confident that production of Tejas Networks Ltd is certainly far ....
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....or determination of normal value in the Final Findings, whereas in the present case, a journal has been used only for prima facie satisfaction, for the purposes of initiation. DA has also dealt with this issue as under in the Second Final Findings: "42.The reasoning of the CESTAT in Dye Stuff Manufacturers Association vs. Designated Authority is not applicable to the present case. In the matter of Dye Stuff Manufacturers Association vs. Designated Authority, the magazine was not periodically reporting the price of Aniline. Instead the magazine had carried an article on Aniline and mentioned the price of Aniline in the market. In the instant case, however, the interested party agreed that Voice and Data magazine regularly mentions the relevant information. Further, the credibility of voice and data magazine gets established if information contained in the journal with regard to operations of Tejas are compared with the actual operations of Tejas." 20. Regarding this issue, the notice of initiation states that the application has been filed by Tejas, who is a major producer of the product in India. It further states that there are four other producers in India, and the pe....
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....as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term domestic industry may be construed as referring to the rest of the producers only. 46. Thus, Rule 2(b) of the AD Rules provides that domestic producers which are related to the exporters or importers or which are themselves importers of the allegedly dumped articles may be excluded when determining the domestic industry in certain situations. As the use of the word "may" in Rule 2(b) suggests, the two types of producers in question, i.e. related producers and producers importing the alleged dumped product, are not automatically excluded from being part of the domestic industry. Rather, it is the consistent practice of the investigating authorities that the exclusion of such producers must be decided on a case-by case basis, on reasonable and equitable grounds, and by taking into consideration ....
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....ic implementation using hardware descriptive language and does design, coding, testing, simulation of the same. (iii) Embedded Software team does designing, coding, simulation, target testing, and regression of node software which is the integral part of the equipment for its functioning as various features offered in the products are captured here. (iv) Mechanical team does Mechanical design, development, simulation and proto testing of the products and modules. (v) Manufacturing team designs, develops the software, test-jigs used to test the product during mass production. (vi) Network Management System team does designing, coding, simulation, testing, regression of Element management system software (EMS) and Network management system software (NMS) which is used for managing SDH equipment centrally from a single terminal through Point and Click Provisioning by Graphical User Interface. A prototype of the SDH Equipment is produced in India, containing all required hardware and software. (c) Product Verification (In-House in Bangalore India) A core team of Product Verification personnel t....
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....se products and modules to deliver FCAPS (Fault Management, Configuration Management, Administration Management, Performance management and Security Management) at Network layer centrally in India. (v) After completion of Testing, the boxes are packed and shipped to respective locations as specified by the Customer from India. (vi) On occasions, customers also visits the Tejas manufacturing facility for the testing and Acceptance of the boxes at the manufacturing facility in India. (f) Post Shipment Support, upgradation and Bug fixes Process (In-House in Bangalore and other customer support centers in India): Tejas as part of its process has made all efforts to provide full and comprehensive post shipment support to the Customers from India". 23. The above process flow clearly shows that substantial activities are being carried out by Tejas or by job workers on its behalf both in India and outside India. SDH is a technology product where the value arises on account of the knowhow contained in the product. This is evident from the fact that more than 70% of the cost is on account of Research, Design and Development expenses. Tejas h....
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....form part of domestic industry." As is evident from the above definition, the word producer has connotation wider than a mere manufacturer and includes even those engaged in any connected activity. Therefore, as argued by ld. Departmental Representative with the substantial activities undertaken by Tejas, it is clearly covered within the scope of "producer". 24. The second requirement under Rule 2(b) of the Anti-Dumping Rules is that the applicant must have a major proportion in the Indian production. CESTAT, in its judgement in the case of Lubrizol India Pvt. Ltd. Vs. Designated Authority [2005(187) ELT 402 (Tri - Del)], has dealt with the term "major proportion" as under: "15.1 We may note here that the words "major proportion of the total production" in Rule 2(b) defining the "domestic industry" are also capable of being construed so as to mean significant proportion or important part of the total production which may not necessarily exceed 50%. The word "major", as per the Oxford Dictionary, means "important, serious or significant". The word "proportion", in the context, would mean share. Therefore, the expression "major proportion" would, in the context, of t....
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.... about their workforce, balance sheet, inputs, R&D etc. Both of them have also not provided any information on imports made by them although an importer's questionnaire should have been filed by them (Questionnaire is available on the official website of Department of Commerce). Further they have admitted having imported components but have been silent on the issue of complete equipment as well, which came to the notice of the Authority during the verification of data of one of the responding exporters from China PR. To sum up, apart from seeking extension in time to file a response to the information sought by the Authority, which was allowed by the Authority, nothing of substance was provided to the Authority except repetition of what had been stated by them earlier from time to time. The Authority holds that all the issues raised by them earlier and repeated in their submissions dated 6th August have already been addressed in the paragraphs here-in before and need not be repeated." Extract of Second Final Findings "32. It has been alleged that although there are a number of other manufacturers, Tejas has been considered to have the necessary standing of constit....
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....f those operations may not amount to manufacture (but for such legal fictions). For example, Note 6 to Section XVI, covering products of Chapter 84 and 85 of the Tariff, reads as under: "In respect of goods covered by this Section, conversion of an article which is incomplete or unfinished but having the essential character of the complete or finished article (including "blank", that is an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exceptional cases, for completion into a finished article or a part), into complete or finished article shall amount to "manufacture"." Thus, mere fact of payment of excise duty would not entitle Prithvi and VMCL to sustain their claim for grant of status as domestic producer. No material was furnished by them to demonstrate the nature of activities carried out by them. They neither filed "importer response" nor "domestic industry response" in the prescribed format. They also did not respond to the specific request of DA for information in this regard. In these circumstances, Designated Authority cannot be faulted for not treating ....
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....and GATT may not be the absolute and only source for interpreting the Indian Law, so long as there is no contradiction between the definition of the agreement in the international law and the terms of the Indian Law, there is absolutely no prohibition for this Court to take note of the terms of the international agreements for the purpose of better appreciation of the term. 58. We, therefore, hold that the term "domestic industry", as it was amended on 27-2-2010, has not taken away the discretionary power of the Designated Authority and the Designated Authority is entitled to proceed further." The Calcutta High Court in the case of State of Gujarat Fertiliser & Chem. Ltd. Vs. Addl. Secretary & D. A., [2012 (286) ELT 348 (Cal.)] held as under: - "13. Bearing aforesaid legal position it is incumbent for this Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the said Rule. The Supreme Court has explained why the aforesaid rule has been framed by the legislature. In case of Reliance Industries Ltd. v. Designated Authority and Others reported in (2006) 10 SCC ....
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..... advocate for domestic industry on the other hand argued that all the equipment operate on SDH technology, and the equipment of higher numbers are having greater capacity and speed of transmission of voice and data signals. Therefore, grouping of SDH equipment of different configurations / capacities is appropriate and permissible under the Act and the international agreements. 27. Before dealing with the arguments and counter arguments, we note that the Supreme Court, in its recent decision in the case of G M Exports [2015 (324) ELT 209 (SC)] elucidating the broad principles of interpretation of a statute made to enforce a treaty obligation, held as under: "23. A conspectus of the aforesaid authorities would lead to the following conclusions: (1) ?Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or....
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.... constituting a single homogenous "product under consideration"; and second, that the facts that were before the investigating authority during the investigation in dispute show that the "product under consideration" investigated by the EC was made up of a broad range of goods that do not constitute a single homogenous "product" because they were not all "like" each other. 7.45 According to Norway, the obligation to ensure that all categories making up the product under consideration are "like" each other follows "as a logical consequence" from what it argues is a requirement under Articles 2.1 and 2.6 for investigating authorities to ensure that any product category making up the "like product" must be individually "like" each and every separate product category making up the product under consideration. Thus, a threshold question for us is whether Norway's premise, that Articles 2.1 and 2.6 require all product categories making up the "like product" to be each individually "like" each and every separate product category making up the product under consideration, is correct. If it is not, then Norway's legal argument is incorrect, and we need not consider its cont....
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....product as a whole. These considerations lead us to conclude that, while Article 2.1 establishes that a dumping determination is to be made for a single product under consideration, there is no guidance for determining the parameters of that product, and certainly no requirement of internal homogeneity of that product, in that Article. . . . . . 7.53 In our view, even assuming Article 2.6 requires an assessment of likeness with respect to the product under consideration "as a whole" in determining like product, an issue which is not before us and which we do not address, this would not mean that an assessment of "likeness" between categories of goods comprising the product under consideration is required to delineate the scope of the product under consideration. Merely to say that the product under consideration must be treated "as a whole" in addressing the question of like product does not entail the conclusion that the product under consideration must itself be an internally homogenous product. We can see nothing in the paragraph from the Appellate Body Report in US Softwood Lumber V, relied upon by Norway, which would indicate otherwise. Treating the pro....
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....e AD Agreement, but asserts that there must be an active step of making a finding. Norway further asserts that specific criteria govern this determination, although, again, there is no specific identification of any relevant criteria in the AD Agreement. While it seems self-evident to us that an investigating authority must, at the time it initiates an anti-dumping investigation, make a decision as to the scope of that investigation, and give notice of the "product involved", we are not persuaded that either Article 2.1 or Article 2.6 of the AD Agreement establish a requirement for making an elaborated determination in that regard. 7.58 Essentially, Norway's argument raises an issue of policy, suggesting that the absence of limits on the scope of the product under consideration might result in erroneous dumping determinations by investigating authorities. Norway argues that, if products that are not "like" are treated as the product under consideration in a single investigation, a dumping determination cannot reveal whether some or all of those products are dumped. Norway gives, as an example, in investigation in which cars and bicycles are treated as one product under....
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....methodology for calculating the margin of dumping set out in Article 2.4.2 (weighted average normal value to weighted average export price) confirms that "the group of products under investigation must all be alike". According to Norway, while it is possible under this methodology to sub-divide the product under consideration into segments for the purpose of making the comparison (i.e., "multiple averaging"), all such segments must belong to a group of products meeting the definition of likeness, citing in this respect, a statement by the Appellate Body in EC Bed Linen . . . . 7.64 Article 3.6 is a provision about what information an investigating authority may evaluate in considering the effects of dumped imports for the purpose of determining injury to a domestic industry.244 It simply has no bearing on the question of product under consideration. Article 3.6 addresses a particular question about the data to be considered in an investigating authority's inquiry into the effects of dumping. This happens, in every investigation, after the product under consideration has been defined, the domestic like product has been determined pursuant to Article 2.6, ....
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....uts or washers, but excluding screws turned from bars, rods, profiles or wire, of solid section, of a shank thickness not exceeding 6 mm and excluding screws and bolts for fixing railway track construction material), and washers, originating in the People's Republic of China (all together hereinafter referred to as fasteners or product concerned). The product concerned is normally declared within CN codes 7318 12 90, 7318 14 91, 7318 14 99, 7318 15 59, 7318 15 69, 7318 15 81, 7318 15 89, ex 7318 15 90, ex 7318 21 00 and ex 7318 22 00. Fasteners are used to mechanically join two or more elements in construction, engineering, etc., and are used in a wide variety of industrial sectors, as well as by consumers. Based on their basic physical and technical characteristics and end uses, all fasteners are considered to constitute a single product for the purpose of the proceeding. Within the same national or international standards, fasteners should comply with the same basic physical and technical characteristics including notably strength, tolerance, finishing and coating. The Commission went on to consider, and reject, arguments by the parties, concerning the scope of the product u....
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....ed product under consideration, and correspondingly fragmented like products, would result in the definition of, and determination of injury to, multiple, narrowly defined "industries" which may bear little if any resemblance to the economic realities of the production of those goods in the importing country. 7.269 Essentially, China's argument raises an issue of policy, suggesting that the absence of limits on the scope of the product under consideration might result in erroneous dumping determinations by investigating authorities. China argues that, if products that are not "like" are treated as the product under consideration in a single investigation, a dumping determination would not reflect a comparison between a product's export price and the domestic price of its like product. China gives, as an example, an investigation in which apples and tomatoes are treated as one product under investigation. China argues that the investigating authority could compare the prices of the apples and find they are dumped, and could compare the prices of the tomatoes and find they are not dumped, but an anti-dumping duty would nonetheless be imposed on both apples and tomato....
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....les 2.1 and 2.6 of the AD Agreement." The above WTO Panel reports make it amply clear that it is not necessary that all types covered by PUC must be alike to each other or even necessarily constitute a homogenous group. In the present case, the various STMs, are all having SDH technology and are upgradations of the models having lower numerical value. They are different types of SDH Equipment, which is the product under consideration. Thus, in our view, the determination of product scope by Designated Authority is sustainable. Regarding the contention that the scope of PUC has been altered during the course of investigations, Designated Authority is required to come to a final determination only after consideration of the contentions of all interested parties and in the process, the scope of PUC may get altered but that would not vitiate the proceedings so long as the principles of natural justice are complied with in respect of the interested parties which has been done in this case. 28. As regards the parts and components, it is contended by the appellants that there is no domestic industry for the part and components, and hence no duty can be imposed on their import. Ld. a....
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....d in the scope of this investigation, even if the lawn groomer is designed to perform additional non-subject functions (e.g., mowing). All lawn groomers are designed to incorporate a hitch, of any configuration, which allows the product to be towed behind a vehicle. Lawn groomers that are designed to incorporate both a hitch and a push handle, of any type, are also covered by the scope of this investigation. The hitch and handle may be permanently attached or removable, and they may be attached on opposite sides or on the same side of the lawn groomer. Lawn groomers designed to incorporate a hitch, but where the hitch is not attached to the lawn groomer, are also included in the scope of the investigation. Lawn sweepers consist of a frame, as well as a series of brushes attached to an axle or shaft which allows the brushing component to rotate. Lawn sweepers also include a container (which is a receptacle into which debris swept from the lawn or turf is deposited) supported by the frame. Aerators consist of a frame, as well as an aerating component that is attached to an axle or shaft, which allows the aerating component to rotate. The aerating component is made u....
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.... Lawn groomers, assembled or unassembled, are covered by this investigation. For purposes of this investigation, "unassembled lawn groomers" consist of either 1) all parts necessary to make a fully assembled lawn groomer, or 2) any combination of parts, constituting a less than complete, unassembled lawn groomer, with a minimum of two of the following "major components"-: 1) an assembled or unassembled brush housing designed to be used in a lawn sweeper, where a brush housing is defined as a component housing the brush assembly, and consisting of a wrapper which covers the brush assembly and two end plates attached to the wrapper; 2) a sweeper brush; 3) an aerator or dethatcher weight tray, or similar component designed to allow weights of any sort to be added to the unit; 4) a spreader hopper; 5) a rotating spreader plate or agitator, or other component designed for distributing media in a lawn spreader; 6) dethatcher tines; 7) aerator spikes, plugs, or other aerating component; or 8) a hitch." b. Diamond Sawblades and Parts Thereof From China and Korea "All finished circular sawblades, whet....
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....ct under consideration as "tube and pipe fittings of iron or steel", which comprised of elbows, tees, reducers and caps. It is a matter of common knowledge that elbows, tees, reducers and caps can never be interchangeable. However, the Investigating Authority has held "tube and pipe fittings" as one like product." The DA has dealt with the contentions of the appellants in the second Final Finding as under:- "18. The investigation has shown that following types of SDH equipment were either in use or in development during the investigation period. The Authority considered the arguments of the interested parties on exclusion of some of these types and holds as follows in this regard: "i. STM-1, 4, 16 - There is no dispute that these products are rightly included within the scope of the product under consideration; ii. STM-64 - The interested parties argued that the petitioner has not offered STM-64 in commercial volumes. It has also been argued that largest Public Sector Company operator (BSNL) has not bought STM-64 from the petitioner. The Authority, however, holds that STM-64 is rightly within the scope of the product under consideration for the f....
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....me. No consumer in India has given any order to the domestic industry for supply of SDH-256. iv. Digital Cross Connects The interested parties repeatedly argued for exclusion of digital cross connect. The investigation has shown that digital cross connect are actually the equipment used in telecommunications networks, that allows lower- level signals to be rearranged and interconnected amongst higher-level signals. Digital cross connect can be produced in SDH technology and other technologies. Digital cross connect equipment of SDH technology is clearly SDH equipment. Record verified by the investigating team establishes that Digital Cross Connect of SDH technology has been produced and supplied by the petitioner during the investigation period. The cost and price information included in the injury information and injury margin assessment includes the production and sale of digital cross connect of SDH technology. The Authority, therefore, holds that digital cross connect of SDH technology are rightly within the scope of the product under consideration. However, since digital cross connects are produced in other technology as well, it is clarified as a matter of abun....
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....roduct under consideration only if such PCBs or cards are meant for production of SDH equipment. viii. Parts and Components Interested parties have heavily opposed inclusion of parts and components within the scope of the product under consideration. The interested parties have argued, inter-alia, that (i) parts/components are different products, (ii) parts & components have not been offered by domestic industry, (iii) production from the stage of parts/components is quite significant and, in fact, constitutes production, (iv) imposition of anti-dumping duties on parts/components is inoperable or may even lead to harassment at the stage of implementation or might lead to demand for collection of duty even when the same may not be justified. The domestic industry on the contrary has sought inclusion of parts and components on the premise that their exclusion will leave a big scope for circumvention. They have pleaded that imports of components as "raw material" or "inputs" must be distinguished and differentiated with imports of SDH in component form (with IPR being supplied without customs check/control/clearance). They have further submitted that the domestic indust....
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....cope of the product under consideration rightly includes the software and the Authority confirms the same. xi. DWDM - Lot of interested parties have sought exclusion of DWDM. DWDM is different technology transmission equipment. It is not SDH technology equipment. Since DWDM is not an SDH technology equipment, the same was beyond the scope of present investigation and proposed measures. However, in view of the repeated arguments of the interested parties and their claim of possible demands of antidumping duties in future by Customs Port Authorities, it is clarified that DWDM transmission equipment are beyond the scope of product under consideration." 30. The appellants argued that the domestic industry has not offered STM-64, and therefore, it should be excluded from the scope of PUC, as the largest Public Sector Company (BSNL) has not bought STM-64 from Tejas. We note that the DA has found that Tejas has produced and sold STM-64 in Indian and overseas markets including to QuickTel, which is an Egyptian Telecom Company. The argument of the appellant that Quicktel is nonexistent is without basis as copies of the purchase order of Quicktel, as well as extracts from media r....
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....0 x 1000 mm tiles will not be the price of four tiles of 500 x 500 mm. It would be lesser then the price of the four tiles of smaller size. Hence technically and commercially the dumped imports of different sizes may substitute the vitrified/porcelain tiles manufactured by D.I., even though the D.I. may not manufacture the particular size of tile which is dumped." As held in the above decision, it is not necessary that tiles of every size or dimension are imported into India for levy of duty. There may be many types / sizes / dimensions, which may be manufactured in China and not exported to India. As long as such types form part of PUC are in commercial competition with like article and can cause injury to the domestic producer they can be covered by the scope of levy. The decision in the case of Andhra Petrochemicals Ltd. Vs. Designated Authority (supra) relied upon by the appellants is distinguishable on facts. In that case, CESTAT found that the product under consideration or article, had not been correctly defined, and that each Acyclic Oxo-alcohol was a separate article, for which separate dumping and injury was required to be examined. It is in that context that CESTAT he....
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.... in all sorts of such situations exists in the form of Customs Valuation Rules and therefore the ratio of the Supreme Court judgement in the case of C.I.T., Bangalore vs. B.C. Srinivasa Setty (supra) does not adversely impinge in this case. Thus this contention of the appellants is not sustainable. Under Section 9A of the Customs Tariff Act, 1975, the Central Government is fully empowered to levy the duty in the manner it considers fit. It can prescribe a method for identifying the product subject to levy. In the instant notification, the duty is to be applied on the % of CIF Value of Imports, as is indicated in Column 9 of the Notification. The exporter can declare the transaction value for the SDH Equipment separately. If such declaration is not found to be true or the transaction value is simply not available, the Customs Authorities can/would resort to the Customs Valuation Rules for the item subject to levy of anti-dumping duty. We do not therefore, find any merit in the contention of the appellants. D. Other issues:- 33. The appellants also pleaded that the post decisional hearing was a mere formality and in violation of the direction of the Tribunal. In this....
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....tion of price undertaking without affording an opportunity to comment on the reasons for rejection was inconsistent with obligations under Article 8.3. We find that this aspect has been examined in Paragraph 111-114 and 186 of the First Final Findings as under: "111. Huawei Technologies has revised its export sales statement a number of times. The company also pleaded that the systems followed by the company are different from the PCN system followed by the Authority and argued that the company would have faced no difficulties in providing export sales information had the company followed companys internal product coding systems. The company revised its export sales statement a number of times. As brought out in the verification report sent to the company, the export sales information of the company remained un-verified. The Authority is unable to accept the argument that the product coding system followed by the Authority was too complicated and prevented the company from providing the desired information. Indeed, a number of producers in subject countries have participated in the present investigations and have 69 provided information without expressing the kind of diff....
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....olds that claim on export sales to India remained unverified in spite of reasonable and adequate opportunity having been provided to them. The Authority is therefore unable to determine individual Export Price and NEP for determination of either individual DM or Injury Margin in respect of the subject producer exporter. - 186. The Authority also takes note of the submissions made by Huawei Technologies, proposing a price undertaking and seeking information on export price, normal value, dumping and injury margins so as to enable them to submit a suitable undertaking. The Authority notes that the details about non-determination of export price in respect of the subject exporter have already been explained in the disclosure statement as well as in these findings. Consequently it has also not been possible for the Authority to determine the individual DM and IM for the subject exporter. Moreover, the product under consideration is not a simple homogeneous product but a complex one with a number of variants. Therefore the Authority holds that such an undertaking, proposed by them is impractical; Rule 15(3)) refers." Given such non-cooperation on the part of Huawei ....