TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 514
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....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 Court on the ground that Tejas is not a domestic....
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....mporters 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 Cellular, Designated Authority and a number of other parties filed SLPs /appeals, which are pending consideration of the S....
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....e 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 Ltd., China 10. Ld. advocate for Huawei Technologies Ltd. contended that (i) the initiation of the anti-dumping investigations was bad, as the Designated Authority had not complied w....
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.... 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 envisaged in the Act. Equipment, parts, components, and software are separate and distinct products, which can not be clubbed and treated as a single product for anti-dumping investigation. (....
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....ty 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 in India, the judgement of Rajasthan High Court in the case of JK Industries Vs. Union of India, [2005 (186) ELT 3 (Raj.)] was cited in this regard. The ld. counsels for M/s. U.T. Starcom s....
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....s 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 context, it is submitted that Tejas is carrying out activities which result, in a substantial transformation of the inputs, into a distinct and different final product. The activities carried out by Tejas can b....
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....rom 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 of EC Farm Salmon from Norway and WTO Panel Report EC Fasteners. (xi) As regards, STM 256, it is submitted that the duty is on the product, and not its types. As long as the product is imported, duty can be imposed on all types of such product, pr....
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....D 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 submissions by 27.01.2016. We have considered the contentions of all sides raised during the hearing, and elaborated in the written submissions submitted by the due date. We have also perused the judicial pronouncements cited and have duly referred to them whe....
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.... 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) ELT 45 (Raj.)], Rajasthan High Court held as under: "The main thrust of the contention of learned Counsel for the petitioner is the lack of jurisdiction on the ground that the evidence available wan inadequate and inaccurate for issuing the initiation notification. Rule 5(3) (b) of the Anti-Dumping Rules requires the Designated Authority, before it initiates an ....
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....ted 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 error and has not violated any of the statutory provisions, which calls for my interference." The Rajasthan High Court had occasion to consider this issue in the case of Electrolux Kelvinator Vs. UOI, [RLW 2005 (3) Raj 1949] has held as under: "57. I carefully considered rival submissions on this point and examined the judgments referred by the respective parties. Considering the submissions....
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....ition 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 hearing that the changed circumstances review application is pending before the D.A. In any case, as pointed out by the learned Advocate Ms. Reena Khair, initiation of the anti-dumping investigation requires only a prima facie satisfaction of the D.A. regarding dumping, injury and causal link between the two. The nature of evidence required for the purpose of initiation need not be of the same quality and quantity as required for final imposition ....
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....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 more than 50% of Indian production. In fact, in our estimate, production of Tejas Networks can be as high as 75% of Indian Production". The CMAI is a trade association. Its letter clearly mentions that it does not maintain accurate information with regard to the production of different companies. In our view, the fact that it does not maintain accurate or exact figures of production of each company does not negate the fact that it was well aware that Tejas has a very large share of p....
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....cally 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 petition is supported by Measurement & Controls Ltd, one of the other producers. DA has also determined for the purposes of initiation that (i) products of the applicants constitute a major proportion in Indian production. (ii) Domestic producers expressly supporting the application account for significantly more than 50% of production of the like product produced by the domestic industry. (iii) The application has been made by or on behalf of the domestic industry. It has also satisfied itself as....
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....oducers 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 all the legal and economic aspects involved". It has been argued that Tejas is not a producer of the subject goods. The activities carried out by Tejas can be summarized as under:- "(i) Design Cycle (ii) Proto Cycle (iii) Product Verification (iv) EMS Services (v) Assembly , Testing, Loading of Software and Integration (vi) Post Shipment Support, up gradation and Bug fixes A detailed description of these activities was submitted by Tajas to Designated Authority as under:- (i) The products are designed based on c....
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.... 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 test both the Hardware and Software on the Product and after testing, approve the Product for final release for manufacturing and availability to Customer. (d) EMS Services in India and Abroad: Once the prototype is developed and thoroughly tested in Tejas Labs in India, Tejas uses services of EMS for large scale manufacturing. Tejas uses both Indian and Global EMS depending upon the delivery terms and conditions of the customers without compromising on the quality of the equipment. These EMS are mere job processors who execute the assembly line instructions given by Tejas. Tejas shares the design, specification and issues assembly line instructions with EMS. The software is provided to the EMS on ca....
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.... 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 has developed the knowhow and technology for the product in India. Based on the knowhow and technology a prototype is prepared. This prototype contains all the necessary hardware and software for SDH equipment. The prototype is tested having regard to the requirement of the customer. In order to make SDH equipment in large numbers the services of job workers are utilized in India as well as abroad. Tejas provides the software to the job workers on carrier media. It also shares the designs, specifications and assembly line instruction with them. After processing the various items are assembled at Tejas factory in Pondicherry and Bangalore. Further software is installed in the boxes so as to enable it to function as a SDH/SONET equipment. We find that the predominant activity is carried out by Tejas and is, t....
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.... 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 total production of domestic industry, mean significant or important share. Such an interpretation is clearly permissible and going by it, the share of the petitioner in the total domestic production, being more than 31%, was undoubtedly a significant or important share i.e. a major proportion thereof. The words "major proportion of total domestic production" cannot be viewed from the angle of solving a mathematical sum involving comparative measurements or size of different parts of a whole. The phrase is used in the context of the production output of domestic producers and admits of a broad interpretation so as to take in its sweep collective output that constitutes a significant or important share of the total domestic production of the article by the producers engaged in the manufacture or engaged in any activity connec....
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.... 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 constituting a major proportion of the total domestic production within the scope of Rule 2(b) of the AD Rules. In this context, the Authority notes that initially, after the initiation of investigation, apart from Prithvi and VMCL, no other so called manufacturer, as highlighted by both Prithvi and VMCL in their submissions, has come forward to claim the status of being a domestic manufacturer. Even Prithvi and VMCL, barring a claim to this effect in a narrative form, never provided any verifiable information about their manufacturing activities. Prithvi / VMCL have not filed questionnaire response in the form and manner prescribed, either as a domestic producer or an importer of the product under consideration. Even when the Authority specifically advised these companies to provide information in the form and manner prescribed, these interested parties have preferred not....
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....e 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 Prithvi and VMCL as domestic producers. 25. It was also argued by the appellants that Tejas being an importer of subject goods from China was excluded from the purview of domestic industry. While the domestic industry contended that it had not imported subject goods from China, even if such imports had been made, DA had the discretion to include or exclude a producer, who is also an importer of subject goods, from "domestic industry". DA has given a categorical finding on facts that Tejas had not imported subject goods from the subject country that is China. No material has been brought on record before us to dislodge this finding. The appellants have relied upon the US ITC Findings in the case of DRAMs from Taiwan. In that case, some producers were only making designs and had no fabrication facility in the USA. They were getting the fabrication done entirely in Taiwan (subject count....
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....tic 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 368 = 2006 (202) E.L.T. 23 (S.C.) in paragraph 48 it is clearly mentioned the object of framing this Rule. We cannot do better than to reproduce the paragraph 48 of the said report:- "The anti-dumping law is, therefore, a salutary measure which prevents destruction of our industries which were built up after independence under the guidance of our patriotic, modern-minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialisation in our country, to make India a modern, powerful, highly industrialised nation." 14. Thus it is very clear that the definition of the importer as mentioned in Rule 2(b) has to be understood in the context of protecting indigenous industry producing same material. Here we notice on fact 'of course going by the statement made in the complaint of the appellant made to the appropriate authority' that nearly 15% of its total production....
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....gations. 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 general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the said treaty, it is a legitimate aid to the construction of the provisions of such statute that are vague or ambiguous to have recourse to the terms of the treaty to resolve such ambiguity in favour of a meaning that is consistent with the provisions of the treaty. (3) In a situation where India is a signatory nation to an international treaty, and a statute is made in furtherance of such treaty, a purposive rather than a narrow literal construction of such statute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to c....
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....e" 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 contentions regarding the facts of this case. . . . . 7.47 Beyond stating that the language of Article 2.1 reveals that a determination of dumping can only be made through a comparison of "the prices of an exported product referred to as the 'product under consideration' and a 'like product'", Norway provides no analysis of the text of this provision. Moreover, Norway identifies no explicit obligation in the text of Article 2.1 to support its claim that the "product under consideration" must consist of a single, internally homogeneous, product or, alternatively, categories that are each individually "like" each other so as to constitute a single homogenous product. 7.48 We agree that Article 2.1 refers to "a product" as being dumped, but cannot agree that there is any obligation concerning the scope of that product in that provision. There is simply nothing in the text of Article 2.1 that provides any guidance whatsoever as to what the parameters of that product ....
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.... in the paragraph from the Appellate Body Report in US Softwood Lumber V, relied upon by Norway, which would indicate otherwise. Treating the product under consideration "as a whole" means that a single dumping margin is calculated for that product, however defined, but says nothing about the scope of that product. . . . . 7.56 Norway's position would, in our view, require that any difference between sub-categories, or even individual goods, within a product under consideration would mean that each must be treated individually. As noted, Article 2.6 first refers to whether goods are identical in assessing likeness. Since every article is identical to itself, each such article would have to be considered separately. There would never be occasion to move on to consideration of whether another article has "characteristics closely resembling" it. Thus, a product under consideration could not consist of any grouping of non-identical product categories. This would, in our view, be an absurd result. Norway ignores the concept of "identical" products, arguing that an investigating authority should determine, based on a series of criteria, whether products "resemble one anothe....
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....ducts are dumped. Norway gives, as an example, in investigation in which cars and bicycles are treated as one product under investigation. We are not persuaded by Norway's extreme example. Any grouping of products into a single product under consideration will have repercussions throughout the investigation, and the broader such a grouping is, the more serious those repercussions might be, complicating the investigating authority's task of collecting and evaluating relevant information and making determinations consistent with the AD Agreement. Thus, it seems to us that the possibility of an erroneous determination of dumping based on an overly broad product under consideration is remote. That possibility is certainly not enough to persuade us to read obligations into the AD Agreement for which we can find no basis in the text of the Agreement. 7.59 Moreover, Norway's position would result in the absurd situation of requiring fragmentation of the product under consideration, and a consequent fragmentation of the like product, and ultimately the domestic industry, which would render the possibility of imposing dumping duties consistent with the AD Agreement a nullity. ....
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....ation has been defined, the domestic like product has been determined pursuant to Article 2.6, and the relevant domestic industry has been determined pursuant to Article 4.1, which defines "domestic industry" for the purposes of the AD Agreement. Article 4.1 makes clear that the starting point for the identification of the domestic industry is the "like product". Norway's argument, on the other hand, would entail a consideration of the production activities of the domestic industry in the definition of the like product, and of the product under consideration, introducing a circularity into the analysis which is untenable. Thus, we consider, Norway's reliance on Article 3.6 to be misplaced and unpersuasive. . . . . . 7.70 The most significant discussion of the issue of product under consideration was in the US Softwood Lumber V dispute, which involved facts and arguments very similar to those in the case at hand. In the underlying investigation, the US Department of Commerce (USDOC) had identified the "product under consideration" as all "softwood lumber, flooring and siding (softwood lumber products)", comprising numerous types of softwood lumber products, includi....
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.... reject, arguments by the parties, concerning the scope of the product under consideration. 7.263 Beyond noting that Article 2.1 requires that the comparison that must be made to determine whether there is dumping must be carried out between the export price of a product and the price for the "like product ... in the exporting country", China does not address this provision in its arguments. We agree that Article 2.1 refers to "a product" as being dumped, but cannot see that it establishes any specific obligation concerning the scope of that product. Nothing in the text of Article 2.1 provides any guidance as to what the parameters of "a product" with respect to which a determination of dumping is made should be. The mere fact that a dumping determination is ultimately made with respect to "a product" says nothing about the scope of that product. There is certainly nothing in the text of Article 2.1 that can be understood to require any consideration of "likeness" in the scope of the exported product investigated, contrary to China's argument 7.267 It is clear to us that the subject of Article 2.6 is not the scope of the product that is the subject of an anti-dumping invest....
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....ld nonetheless be imposed on both apples and tomatoes, which would be an unfair result. 7.271 Moreover, we consider it noteworthy that, while the AD Agreement specifically defines "like product" by requiring a comparison between domestically-produced or foreign goods and the imported goods that are the product under consideration, there is no specific definition of "product under consideration". In our view, the very fact that there is a definition of like product in the AD Agreement indicates that Members were well able to define terms carefully and precisely when they considered it necessary. Their failure to provide any definition of product under consideration, much less to require that the scope of that product be determined on the basis of the concept of likeness set out in Article 2.6, indicates that they did not intend to do so. This implies to us that the Members intended to allow investigating authorities wide discretion to determine a product under consideration.574 In our view, this supports the conclusion that it would be absurd to impose the definition of like product from Article 2.6 onto the undefined term product under consideration. We simply see no basis in the....
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....sed on their import. Ld. advocate for the domestic industry contended that (i) the course of production of SDH Equipment by Tejas, various parts, components and sub-assemblies come into existence. Tejas is a producer of all the items, which arise in the manufacturing process, even though these items are not produced for sale, but for captive consumption. (ii) DA has devised a PCN system, which enables determination of the dumping and injury margin, for each part, component, or type separately, to the extent information has been made available by the exporters. (iii) As regards injury to the domestic industry, Rule 2(b), 11 and Annexure II of the Anti-dumping Rules and WTO decisions were referred to. (iv) It is evident that the Designated Authority is required to determine injury to the domestic industry engaged in manufacturing like article. Such being the case, injury to the domestic industry is required to be seen in respect of the article under investigation. 29. In our view it is permissible for the Authority to include within the purview of the PUC, parts and components, which if not included, would make the levy ineffective. The coverage of the product for levy of duty shoul....
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....of knives fixed to a plate (known as a plug aerator), a series of discs with protruding spikes (a "spike aerator"), or any other configuration, that are designed to create holes or cavities in a lawn or turf surface. Dethatchers consist of a frame, as well as a series of tines designed to remove material (e.g., dead grass or leaves) or other debris from the lawn or turf. The dethatcher tines are attached to and suspended from the frame. Lawn spreaders consist of a frame, as well as a hopper (i.e., a container of any size, shape, or material) that holds a media to be spread on the lawn or turf. The media can be distributed by means of a rotating spreader plate that broadcasts the media ("broadcast spreader"), a rotating agitator that allows the media to be released at a consistent rate ("drop spreader"), or any other configuration. Lawn dethatchers with a net fully-assembled weight (i.e., without packing, additional weights, or accessories) of 100 pounds or less are covered by the scope of the investigation. Other lawn groomers- sweepers, aerators, and spreaders-with a net fully assembled weight (i.e., without packing, additional weights, or accessories) of 200 pounds or less ar....
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....thereof, regardless of specification or size, except as specifically excluded below. " C. Gray Portland Cement and Cement Clinker from Japan; The products covered are cement and cement clinker. Cement is a hydraulic cement and the primary component of concrete. Cement Clinker, an intermediate material produced when manufacturing cement, has no use other than grinding into finished cement. d. Hand Trucks and Certain Parts Thereof From China: The product covers hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use, and certain parts thereof, namely the vertical frame, the handling area and the projecting edges or toe plate, and any combination thereof. e. Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, From Japan: "The products covered in these investigation are large newspaper printing presses, including press systems, press additions and components, whether assembled or unassembled, whether complete or incomplete, that are capable of printing or otherwise manipulating a roll or paper more than two pages across." Further, the following European Commission dec....
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....ort markets, the product type cannot be excluded, as the fact of like article produced by the domestic industry gets established (the Authority notes that rule 2(b) read with 2(d) implies that the domestic industry should have manufactured like article. It is unnecessary to require that the domestic industry should have sold like article in domestic market). On the spot verification conducted at the premises of the petitioner, in fact, showed production of STM-64 in commercial volumes, i.e., also for Quiktel. iii. STM-256 - Admittedly, STM-256 was neither imported during the investigation period nor supplied by the domestic industry. The responding exporter from China claimed that STM-256 was not deployed in China also (which means that this was not sold in China as well). The responding exporter also claimed that deployment of STM-256 in India is not even feasible so far, as necessary permission for its deployment have not been given by the competent Govt. of India authority. Investigation conducted at the premises of the petitioner and foreign producers clearly showed that STM-256 can be described as the new generation SDH equipment. The investigation has not shown that if STM-....
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....KD/CKD form of SDH is rightly within the scope of the product under consideration. As is seen from the production process, the product is an assembly of a number of cards, components, assemblies and sub-assemblies. It is quite possible that the product is transported in its SKD/CKD form. In fact, the product is in general invoiced in SKD/CKD form only. The producers do not raise invoice for fully functional and operational SDH equipment. The production process from SKD/CKD form is a very insignificant assembly line operation requiring only screw driver technology. In fact, it is possible (and in fact is a practice largely adopted) to first produce the complete equipment, including necessary testing etc. and instead of transporting in a finished form, it is dispatched after dismantling in a SKD/CKD form. Exports of such SKD/CKD, thus, tantamount to exports of the product under consideration itself. In fact, the product has been shipped from China in SKD/CKD form as well. The Authority, therefore, confirms that the scope of the product under consideration includes SKD/CKD form of the product. vi. Assemblies and Sub-assemblies The verification of the records of various expor....
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....ority has taken note of the fact that parts and components are not manufactured by the Domestic Industry, and the domestic industry for parts and components is not before the Authority. The Authority further notes that parts and components used in SDH equipment have multiple usages and do not have a dedicated usage in SDH equipment alone. The Authority, after going into the details of usage of parts and components, is of the view that including parts and components, when imported on a standalone basis is going to put the whole consumer durable industry to hardship. ix. SDH equipment as part of another equipment - The Authority notes that the product under consideration eventually forms part of Broadband or Cellular equipment. It is quite possible to import SDH equipment as part of such Broadband or Cellular equipment. If the scope of the product under consideration is not kept to include imports of SDH equipment forming part of such Broadband or Cellular equipment, the entire process of undertaking present investigations and proposed measures can be defeated. Further, no justified grounds have been brought out by any interested party as to why such import should not be chargeable....
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.... the product, and not the types of the product. We agree with the counsel for the domestic industry that as long as the product is imported duty can be imposed on all types of such product provided such type is in commercial competition with the like article made in India and can cause injury on its import. STM 256 is a higher version of STM 64. STM256 if offered at a lower price can substitute for STM64 and cause injury to Tejas qua its market for STM64 in India. In the case of Kajaria Ceramics Vs. Designated Authority (supra) this view was supported, para 6.6 of the said judgement is reproduced below:- "6.6 under the scheme of the imposition of Anti-Dumping Duty, the Designated Authority is required to determine whether the dumped products caused injury to the Domestic Industry. In this case it is evident that the products imported by the appellants can be substituted for the products manufactured by the Domestic Industries. The imported products viz. 2 x 2 vitrified/porcelain tiles can definitely replace the 1- x 1- vitrified/porcelain tiles manufactured by the Domestic Industry, inasmuch as the user will prefer to use the dumped low cost imported tiles of a bigger size to s....
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....at is PUC. 32. The appellants also contended that Section 12/14 ibid deal with the levy of duty and valuation of "goods" imported and not with the parts/components constituting those goods and therefore levy of anti-dumping duty would fail in respect of goods not imported (e.g. STM 256) or SDH equipment which came embedded in the goods imported. In this regard, it is pertinent to note that duty on STM 256 will be levied only when it is imported and not otherwise and whenever the same is imported, its value will be determined under the provisions of Section 14 of Customs Act, 1962 and the Customs Valuation (Determination of Value of Imported Goods) Rules framed thereunder. As regard the contention that provision of Sections 12/14 of the Customs Act, 1962 are applicable only with reference to goods imported and therefore, the levy of anti-dumping duty would fail on PUC when imported as a part embedded in the goods imported for want of availability of the machinery provisions and cited the Supreme Court judgement in the case of C.I.T., Bangalore vs. B.C. Srinivasa Setty [(1981) 2 SCC 460]. In this regard, we note that Section 12 Customs Act, 1962 has no applicability or relevance to....
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....signated Authority is to be taken into consideration only when the same is subsequently reproduced in writing. We find that the arguments raised in the original proceedings as well as in the remand proceedings were essentially the same. None of the appellants brought to our notice any new facts or grounds presented in the second round which were not presented in the first round. DA examined all the issues afresh in the light of the submissions made. The conclusions of DA in the second round on the issue dumping, injury, causal link between the dumped imports and injury to the domestic industry and other legal issues raised by the parties have remained unchanged and consequently no modification of the notification was warranted in the wake of the remand order of CESTAT. DA having considered the pleas raised before it in the remand proceedings after granting due opportunity of hearing to all interested parties passed the impugned second Final Findings. Thus, there has been no infirmity in the procedure followed by Designated Authority while passing the second Final Findings. 34. It was contended by the appellants in the written submissions filed after conclusion of the hearing that ....
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....me. In any case, nothing prevented the exporter from providing information on both the basis - the product coding system followed by the Authority and product coding system followed by the company. 112. The product under consideration is essentially an assembly of a number of electronic cards and sub-assemblies. In fact, the producers tend to invoice the sales in terms of SKD/CKD/cards/sub-assemblies of the product. Investigation has shown that all the companies follow some system for design and development of the product, for which some product coding system is followed. It is noted that the export sales information has been so drastically revised by the company that even sub-assemblies/cards composition has also been altered in different responses. 113. As per response filed with the Authority, they had claimed to have exported *** PCN Variants to India during POI, comprising of *** Nos. Out of these *** PCNs were cards. No quantity had been mentioned in respect of these *** PCNs and therefore these were excluded for the purpose of determination of NEP for preliminary determination. These PCNs were basically extracted from POs executed with different customers in India.....
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....tes that, the company, during the course of verification submitted that the decision making is not affected or influenced by the government nominees on the Board. However the Authority also notes that the company has, since inception, significant Govt. presence through share holdings by State departments. Over a period of time, the govt. shareholding pattern remained ***% being Government Owned. Presently, the board of directors also has ***% (*** nominees) nominees of State departments including the *** having a casting vote. In view of the above, with this significant state participation, the state interference cannot be ruled out and therefore the Authority holds that the Company cannot be granted market economy status." No new material has been brought on record to dislodge the above findings of Designated Authority and therefore we do not find any unreasonableness in the findings on this aspect and the Authority was not irrational not to adopt the information provided by ECI China for determination of normal value of Alcatel-Lucent because if this information was taken into consideration, it would/may incentivise exporters not to reply to the questionnaire, if they consider t....