TaxTMI 
TaxTMI 
2019 (6) TMI 1249
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....her writ or order or direction in the nature thereof thereby quashing and setting aside the impugned Final Findings 7/18/2018-DGAD dated 01.04.2019 passed by the Respondent No.2 and be pleased to grant consequential orders; and (b) Pending the hearing and final disposal of this petition, this Honourable Court be pleased to stay the execution and implementation of the Final Findings 7/18/2018-DGAD dated 01.04.2019 and further be pleased to direct the Designated Authority Respondent No.1 herein to extend the existing anti-dumping duties by a further period of 6 months pending the outcome of this petition; and (c) Be pleased to grant ad-interim relief in terms of para-(b) hereinabove; (d) Pass any such other and further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case." Thus what is essentially under challenge is the final findings No.7/18/2018-DGAD dated 01.04.2019 passed by the respondent no.2 - Designated Authority on account of which the application of the petitioner under Rule 23 (1B) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and ....
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....respondent no.2 with a substantiated application for initiation of second sunset review investigation under Rule 23(1B) of the Rules and provided all necessary information and analysis and evidences / submissions to prove that the cessation of the existing anti-dumping duties would lead to the continuation of dumping and injury from the subject country through the application. 3.6 The respondent no.2 conducted an oral hearing on 15.05.2018 whereby the petitioner was asked to present its case and make its submissions. The petitioner appeared before the respondent no.2 and made its submissions with respect to its application for initiation of sunset review investigation. After two days of hearing, the respondent no.2 vide order dated 17.05.2018, rejected the application of the petitioner for initiation of sunset review investigation concerning imports of subject goods from the subject country. 3.7 Being aggrieved by the order dated 17.05.2018 passed by the respondent no.2, petitioner filed Special Civil Application No.12368 2018 before this Court praying for a direction to the respondent no.2 to initiate the sunset review investigation. The said petition was allowed vide judgme....
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....Findings dated 01.04.2019 recorded by the respondent no.2, the petitioner preferred the present petition. 4. Learned counsel for the petitioner placed on record brief submissions, which verbatim reproduced as under: Brief Submissions on behalf of Petitioner Date Event 24.02.2006 The respondent no.2 vide the Initiation Notification No.14/14/2005/DGAD dated 24.02.2006 initiated anti-dumping investigation with respect to the Subject Goods. 23.08.2007 The respondent issued its final findings vide Notification No.14/14/2005-DGAD dated 23.08.2007 and recommended imposition of anti-dumping duty upon the import of the Subject Goods from the Subject Country. 14.09.2007 The respondent no.1 accepted the recommendations of the respondent no.2 and imposed definitive anti-dumping duty vide Custom Notification No.103/2007 dated 14.09.2007. 07.09.2012 The respondent vide Initiation Notification No.15/1006/2012-DGAD dated 07.09.2012 initiated the first sunset review investigation concerning imports of the Subject Goods from the Subject Country. 04.09.2013 The respondent no.2 vide its final findings no.15/1006/2012-DGAD dated 04.09.2013 recommended continuat....
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....rts of the Subject Goods from the Subject Country. 09.10.2018 The respondent no.1 also complied with such directions and issued Customs Notification No.51/2018-Customs (ADD) dated 09.10.2018 extending duties by only 6 months viz. till 09.04.2019. 25.01.2019 The respondent no.2 conducted an oral hearing on 25.01.2019 whereby the petitioner was asked to present its case and make its submissions. 08/09.03.2019 The respondent no.2 visited the premises of the petitioner to conduct an on-the-spot verification of the documents and information submitted by the petitioner and issued its verification report. 19.03.2019 The respondent no.2 issued the disclosure statement in terms of Rule 16 of Anti-dumping Rules. 25.03.2019 The petitioner submitted its comments on the disclosure statement. 01.04.2019 The respondent no.2 in a perfunctory manner without even considering or addressing the submissions made by the petitioner, issued the Final Findings concluding that the continuation of the existing anti-dumping duties on the subject goods are not warranted. April 2019 Being aggrieved by the said Final Findings of the Respondent no.1, the petitioner filed ....
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....utside India for listing of the Appeal would have left the petitioner with no time by arguing its appeal finally. In any case, the power to grant stay is not specifically conferred. Assuming but not admitting that such power does exist, even then the same was required to be exercised before the expiry of the duty which as aforesaid was not possible in the facts of this case. ii. At the time of filing of the petition, the duties were due to expire within a week and therefore, intervention of the Court was needed to grant interim extension of the duties. However, since there is no ancillary power under Section 9C in the nature of powers under Article 226, the tribunal would not have been able to grant interim extension of the duties. In view thereof, the alternative remedy would not have been efficacious. Therefore, the judgment of Jindal Poly Films is not applicable in the facts of this case. iii. Since the duties were due to expire within a week of the issue of the impugned order by the Respondent no.2, the tribunal would not have been in a position to dispose of the matter within time. Therefore, no effective alternative remedy was available to the petitioner oth....
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.... misclassification of import item which apparently in his own words was not a like article. Despite such observations, adjustments were made to this data to reach absurd results on export price and hence the conclusion reached on the basis of such data cannot hold ground. Clearly, the analysis of the respondent no.2 was based on negligible imports in the context of domestic market and that too of dissimilar product which amounts to no imports at all leading to the situation identical to one of 2013. 7. The petitioner submitted that there was stark contradiction between the conclusion reached by the respondent no.2 in the earlier sunset review investigation and the present sunset review investigation in completely identical circumstances. The petitioner provided a comparative chart comparing the conclusion and methodology of the respondent no.2 in earlier sunset review investigation and the present sunset review investigation. This comparison clearly go to show that the impugned conclusions arrived at by respondent no.2 are arbitrary. For else of reference, the same is attached again as Appendix-A. 8. The petitioner submitted that despite submission of data with re....
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....the matter. 13. The petitioner submitted that the respondent no.2 failed to appreciate that the improvement in the economic parameters of the petitioner was only on account of the anti- dumping duties in place against the imports of the subject goods. The petitioner refuted the submission of the respondent no.2 that there was no injury being faced by the Domestic Industry. The petitioner submitted that the present case being one related to sunset review of the duties already in place, the absence of current injury becomes irrelevant. The whole argument of the respondent was based on the fact that there has been improvement in the economic parameters of the Domestic Industry. However, the same does not take into account the fact that in sunset review proceedings, likelihood of injury takes importance over current injury. Therefore, even in a situation where there is absence of current injury, the duties are required to be continued if there is a likelihood of injury in case of cessation of duties. 14. The petitioner has also substantiated that the findings are perverse in nature for aforesaid reasons and also would shock the conscience of the Court as reliance has ....
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....ng the responding producer/exporter SGPL from China, the Authority has not been able to determine the ex-factory export price for the POI and the post POI period. Present Sunset review Findings 35. The Authority notes that imports of subject goods from China during POI is to the tune of 73MT at Rs. 1,54,000 per MT. It is further noted that the price of import is abnormal, which is established by the fact that the DI is selling the subject goods at approx. Rs.*** per MT only. It is noted that the import statistics of this item points to either misclassification of the import item or it not being the like article. However, the Authority has also calculated the export price based on the available import data. Export price has been adjusted for ocean freight, marine insurance, port expenses, commission, inland freight and indirect taxes (VAT) which may have been incurred by the exporter for exporting material to India, in order to put normal value and export price at the same leveled of trade. The export price to be determined is as Rs.*** per MT. Comments In the present case, the Authority despite nothing that the price of import is abnormal and the import statics of this ....
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....event of cessation of anti dumping duty, particularly in a situation where a significant part of these exports are at dumped prices and are likely to cause injury to the domestic industry. Thus, any determination made on the basis of weighted average price of exports could be highly misleading. The facts of the present case in fact have established that even when weighted average price of exports is above normal value, a significant portion of these exports are at dumped and injurious price. The Authority thus considers to take into account the average export price of dumped and injurious transactions from China to all countries (other than India). Present Sunset review Findings No such examination. Comments Likely export price from China has not been computed in the impugned Final Findings despite information the regarding the same submitted by the petitioner. Likely export price in the absence of imports 1st (earlier) Sunset review Findings 73. The Authority considers it appropriate to take into account the average export price of dumped and injuries transactions from China to all countries (other than India) based on the transaction-wise exports data submitt....
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....edure is followed in impugned Final Findings. Surplus capacities in China 1st (earlier) Sunset review Findings 76. From the data/information available with the Authority, it is noted that the total volume of exports from China PR to other countries during the POI was 4,88,530 MT at an average FOB price of Rs. 39,196 per MT, out of which 1,13,641 MT (23%) was at dumped prices as well as at prices which are lower than the non-injurious price of the Domestic Industry. The demand of the subject goods in India during the POI was 6,64,628 MT. This 23% of the total exports from China which are at dumped as well as injurious prices constitute 17% of the total demand in India. This 17% is substantial volume and assumes great significance considering the fact that there is huge capacity available in China; none of the major producers/exporters from China as well as importers in India have responded to the investigation and if the total demand in India is seen, there is every likelihood that if the anti-dumping duties are revoked, the percentage of dumped as well as injurious exports to India are likely to increase and take away major portion of the India demand. Further, even if the....
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....n the context of Surplus Capacity in earlier Final Findings are not followed in impugned Final Findings. In fact, a diagonally opposite stance has been taken by the Designated Authority despite exactly similar information being on record. Likelihood of dumping and injury 1st (earlier) Sunset review Findings 79. Considering the facts available on record with regard to the likely prices to India and the fact that there are huge production capacities in China and that none of the major producers/exporters from China as well as importers in India have responded to the investigation, the Authority determines that if the existing duties are removed, there is every likelihood of the subject goods coming to India at dumped prices which are further likely to cause injury to the domestic industry. Present Sunset review Findings No such examination. Comments Despite similar facts and circumstances, a contradictory approach taken by the Authority in the impugned Final Findings. Likely price undercutting and price underselling 1st (earlier) Sunset review Findings 80. Having regard to the contentions raised, information provided and submissions made by the intereste....
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.... in Special Civil Application No. 12368 of 2018. 6. Learned counsel for the respondents mainly contended that in terms of Section 9(C) of the Customs Tariff Act, 1975, the alternative remedy in form of Appeal to CISTAT is available and therefore, this Court may not go into the nitty- grity of the facts incorporated in the Final Findings and that the Final Findings is rendered by the respondent no. 2 - Designated Authority after affording full opportunity and in consonance with the provisions of Customs Tariff Act and Rules applicable, therefore, this Court may not interfere therewith. The gist of submissions is tendered by the respondents, which needs to be verbatim set out hereunder for ready reference: "BRIEF Written submissions on behalf of the respondents "1. The present petition is not maintainable and this Hon'ble Court may not entertain present petition as the petitioner has alternative and efficacious alternative remedy provided by statute of preferring an appeal before Division Bench of CISTAT as provided u/s.9(c) of Customs Tariff Act, 1975. 2. The petitioner has not stated in the petition as to how the petitioner is not left with any other opt....
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....e petition may not be entertained, the respondents are relying upon following judgments. 1. 2018 (362) ELT 994 (DEL) Jindal Polyfilms Ltd. V/s. Designated Authority. Para 35 to 42 are relied on by the respondent. 2. UTOKUMPU OYJ. Vs. Union of India Para 15 to 23 are relied on by the respondent. In view of aforesaid judgments a petition under article 226 is not maintainable and the petitioner should be relegated to alternative remedy. Arguments on Merit. 1. The Designated authority has passed the order by following the procedure as mentioned in the rules. There is no procedural laps and therefore, the impugned order is just, legal and proper. 2. As per the view taken in case of OCTOCOMPU OYJ, (208 (362) ELT 994 (DEL)) that is distinction between lake of jurisdiction and alleged error in exercise of jurisdiction. It is not the case of the petitioner that the designated authority who has issued the final findings lakes the jurisdiction. But the case of the petitioner is that the final findings are erroneous and hence such facts cannot be examined under article 226 of the Constitution of India. 3. The petitioner has partici....
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....round 34 producers in China PR is around 72,70,000 MT. This is more than 3 times the capacity of the domestic industry in India and 4.6 times and 4.2 times the demand and production of the subject goods in India. If such quantities are diverted to India at the likely prices, injury to the domestic industry is imminent. The legal requirement in this regard is to only establish the likelihood or preponderance of probability that the surplus goods are likely to come into the country. 25. Respondent no.2 submits that it has given due consideration to the aforesaid submissions by the applicants in its examination of the export prices of the subject goods from China PR to third countries. In its consideration of the likelihood of continuation or recurrence of dumping and injury, Respondent no.2 arrived at the following findings. a. Present and continued imports During the P01, the import of the subject goods was a mere 73 MT. As per the domestic industry itself, in the post-POI period, there was no "likelihood" of importation of subject goods as no Chinese producer/exporter was understood to have participated in any contract for supply of the subject goods. Thu....
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....ve years. At the time of the impugned sunset review investigation, anti-dumping duty was in force for more than 10 years. This would have greatly reduced the proclivity for exporters from China PR to export the subject goods to India. b. Secondly, in the previous sunset review investigation, the economic parameters of the domestic industry had not improved, were weak. However, in the current sunset review investigation, the economic performance of the domestic industry had improved. c. For ease of comparison, the respondent no.2 has reproduced the comparable economic parameters from the previous SSR investigation and the impugned SSR investigation in the table which is produced on page 368 of Affidavit in reply filed by the respondent (internal page 26 of the reply). Which may be seen to understand the difference in the economic performance in the two injury periods. d. As can be seen from the date produced on page 368 of the Affidavit in Reply (internal page 26), in the previous sunset review, the domestic industry, was incurring losses, faced declining cash profits, low return on investment and had high levels of accumulated inventory. Contrary to the e....
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....ew investigation under Rule 23(1B) of the Rules. (vii) The petitioner further submitted additional evidences/submissions on 14.05.2019 to prove that the cessation of the existing anti-dumping duties would lead to the continuation/recurrence of dumping and injury from the subject country. (viii) The details of the submissions, as gathered from the written submission dated 1.2.2019, starting from page 240, deserves to be extracted herebelow : ...... "C. Likelihood of likely to lead to continuation or recurrence of dumping and injury: 14. The Domestic Industry humbly submits that the fact that there have been no exports from China proves that the Chinese exports cannot compete with the Indian producers unless they indulge in dumping activities. However, it may be added that there is every likely hood of huge potential imports if the duties are not extended. Detailed reasons for this have already been explained in Annexure 11 of the application filed with the Authority. Briefly, we would like to submit as under: a. Domestic Industry has procured transaction-wise import data (attached as Annexure 2) indicating expor....
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....d that at these prices, if the excess capacity is diverted to India, injury to Domestic Industry is imminent. 16. In view of the above, it is amply clear that the dumping margin as well as the injury margin are likely to be positive without any doubt if the anti-dumping duties are not extended. In such a scenario, withdrawal of anti-dumping duties will certainly allow the manufacturers and exporters of the subject goods from China to freely dump the subject goods to the detriment of the Indian industry." (ix) On 15.05.2018, the respondent conducted an oral hearing, whereby, the petitioner was asked to present its case and make its submissions. (x) The respondent no.1 vide its order dated 17.05.2018 rejected the application of the petitioner for initiation of sunset review investigation concerning imports of subject goods from subject country. (xi) Being aggrieved by the decision of respondent no. 1, the petitioner filed Special Civil Application No. 12368 of 2018 before this Court praying for a direction to the respondent no. 2 to initiate the sunset review investigation and this Court vide judgment and order dated 26.09.2018 allowed the petition....
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....POI. xi. The Authority kept a non-confidential version of the petition and other submissions presented by various interested parties from time to time in the form of a public file maintained by the Authority and kept the same open for inspection by the interested parties as per Rule 6(7) of the Rules. xii. Information provided by interested parties on confidential basis was examined with regard to sufficiency of the confidentiality claim. On being satisfied, the Authority has accepted the confidentiality claims, wherever warranted and such information has been considered confidential and not disclosed to other interested parties. Wherever possible, parties providing information non confidential basis were directed to provide sufficient non confidential version of the information filed on confidential basis. xiii. Exporters, producers and other interested parties who have not responded to the Authority, nor supplied information relevant to this investigation have been treated as non-cooperating interested parties by the Authority. C. Product Under Consideration and the Like Article Submission by the Domestic Industry 12. The following sub....
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....oked and for this purpose all the relevant information is to be examined. 25. The Authority notes that each relevant issue raised in the submissions of the Domestic Industry will be dealt with at appropriate places in this disclosure statement. E. Methodology and Determination of Normal Value, Export Price & Dumping Margin Likelihood of Dumping Submission relating to Normal Value Submissions made by the Domestic Industry 26. The Domestic Industry has made the following submissions: (i) Normal value for China PR has to be determined in terms of the provisions for non-market economy countries. (ii) Since no producer / exporter from China has responded to the notices issued by the Authority, Para 7 of the Annexure I of the AD Rules should be followed by the Authority for the determination of Normal Value. Normal Value cannot be determined on the basis of price or constructed value in a market economy third country for the reason that the relevant information is not publicly available. In order to arrive at Normal Value on this basis, the Authority shall require complete and exhaustive verifiable information on all domestic....
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....e Examination by the Authority : 34. The Authority notes that imports of subject goods from China during POI is to the tune of 73 MT at Rs. 1,54000 per MT. It is further noted that the price of import is abnormal, which is established by the fact that the DI is selling the subject goods at approx. Rs.*** per MT only. It is noted that the import statistics of this item points to either mis-classification of the import item or it not being the like article. However, the Authority has also calculated the export price based on the available import data. Export price has been adjusted for ocean freight, marine insurance, port expenses, commission, inland freight and indirect taxes (VAT) which may have been incurred by the exporter for exporting material to India, in order to put normal value and export price at the same level of trade. The export price to be determined is as Rs. 1,19,895 per MT. Particulars Unit To India Constructed Norma Value Rs/MT *** Ex-factory export price Rs/MT 119895 Dumping margin Rs/MT *** Dumping margin % *** Dumping margin Range (75) - (65) G. Assessment of Injury and Examination....
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....omplete questionnaire responses. SGPL has submitted part information. However, the company is not a major exporter of the product under consideration from China. In the absence of cooperation from the Chinese exporters/producers, it would not be appropriate to take cognizance of the part information supplied by the sole respondent, namely, SGPL. The Authority, there- fore, determines the normal value in accordance with para 7 of Annexure 1 to the Rules. .... 36. The Authority has relied on the international prices of major raw material along with the consumption norms, conversion cost and SGA of the most efficient domestic producer. Profit @ 5% on the cost of production has been added to arrive at the constructed normal value. By adopting this method, the constructed normal value is determined as US$*** per MT...... Export Price 37. The Authority notes that there are no ex- ports of the subject goods to India from the subject country in the entire injury investigation period including the POI and the post POI. In the absence of exports to India by any of the Chinese exporters including the responding producer/exporter SGPL from China, the Authority has no....
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....to estimate the likely export price to India in view of the fact that there have been no imports reported to India either as per the DGCI&S data or in the import data from secondary sources. They have submitted that export price to Saudi Arabia may be considered as the most appropriate by the Authority as China ex- ports 32% of D I Pipes to Saudi Arabia and the significance of water distribution is similar in the two countries. The Authority does not find any merit in this submission made by the Domestic Industry and considers exports to worlds as per the transaction wise data of HS International Inc. (impexpl.com) - Sydney, Australia. As regards the submission of SGPL that only the weighted average price to rest of the world should be taken into consideration for the purpose of estimating the likely export price to India, the Authority notes that even if weighted average price of exports from China to globally is above normal value, the same does not mean that dumping from China is unlikely in the event of cessation of anti dumping duty, particularly in a situation where a significant part of these ex- ports are at dumped prices and are likely to cause injury to the domestic indus....
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....production capacities. These capacities are in themselves more than the total production capacity of the domestic industry. The importance of such huge production capacities and exports by the Chinese producers/exporters cannot be ignored. 80. Having regard to the contentions raised, information provided and submissions made by the interested parties and facts available before the Authority and on the basis of above analysis including analysis of likelihood of continuation of dumping and injury, the Authority determines that: i. The constructed Normal Value and the likely net export price to India clearly indicate the likelihood of dumping from China PR if the existing duties are allowed to be revoked. (ii) The likely export prices from China PR clearly indicate the likelihood of injury to the Domestic Industry in the form of price undercutting as shown below. Likely Under Cutting During POI US$ (per MT) NSR *** Landed Value (Likely) *** Likely Under Cutting Margin *** Likely Under Cutting Margin % *** Likely Under Cutting Margin % Range 5-15 (iii) The likely export prices from China also clearly indi....
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....g the existence, degree and effect of any dumping in relation to import of any article and hence, it may not have to await the formal order by the Central Government of accepting the same and issuing notification based thereupon. The learned counsel for the petitioner resisted the submission qua alternative remedy by inviting court's attention to the provision of Section-9C of the Act, which reads as under. SECTION 9C. Appeal. - (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal). (1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of f....
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....ase, looking to the time factors and the authorities reluctance in issuing even the requisite notification for commencing the sunset review and the fact that the anti dumping duty extension was come to an end on 09.04.2018 and the impugned final findings were rendered on 01.04.2019 leaving only 7 to 8 days' time for availing the remedy in itself would be an indication that the appellate remedy as sought to be canvassed under Section-9C cannot be said to be efficacious remedy. 11. This Court is of the view that the Court at this stage need not go into the aspect of the tribunal's power to issue direction to the Central Government in exercise of the power u/s.9C(3) for extending the anti dumping duty notification. The vital facts and time-line of the instant case are itself sufficient to indicate that the remedy of appeal in a present case could not have been said to be an efficacious remedy so as to give sufficient opportunity to the petitioner for seeking appropriate relief after availing the opportunity of putting forward their case. The Tribunal's jurisdiction is required to be viewed wherein there is no express indication and provision for enabling the tribunal to grant a....
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....7, 8, 10, 11. The petitioner's counsel has successfully demonstrated that the designated authority has failed in clearly indicating that how determination of normal value is arrived at. The likelihood of dumping and injury have not been dealt with. The surplus capacity in China has not been adverted to at all and the confidentiality though not claimed has affected the entire process. The counsel for the petitioner successfully established that the non-advertence to the requisite material placed on record and not taken into consideration the facts recorded earlier and merely changing the conclusion in final finding, has rendered the final findings untenable in eye of law as the final findings suffering from the aforesaid omissions would require to be held as perverse so as to render it unsustainable in eye of law. 14. The law in respect of the final findings and its justiciability is no more res-integra and one can say that under Article 226 of the Constitution of India when final findings are assailed on the grounds mentioned in the submissions viz. omissions on the part of the authority in considering the detail put forward by the petitioner. The omission by the designated ....