TaxTMI 
TaxTMI 
2019 (7) TMI 356
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....nnexed at Annexure - G and H hereto; and B. Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to direct Respondent No.3 not to refrain from taking any steps in furtherance of the Impugned Final Finding dated 29.01.2019 issued by it and annexed as Annexure - G and Annexure - H hereto; C. Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to direct the Respondent nos.1 to 4 to ensure that subject goods that may be cleared are duly accounted for and further the importers be notified about pendency of the present petition before this Hon'ble Court and subject to the outcome of the same; D. Ad-interim reliefs in terms of prayers (B) and (C) above; E. Ex parte ad-interim reliefs in terms of prayer (D) above; F. For cost; and G. Such other and further orders as may be considered fit and expedient in the facts of the case be passed. 3. It is contended that the petitioner No.1 is a company incorporated under the provisions of the Companies Act, 1956 and is engaged in the business of manufacturing "Paracetamol" (hereinafter be referred to as "the sub....
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....orts of subject goods. Thereafter, on the basis of the inquiry conducted by respondent No.2, a Final Finding Notification No.60/1/2000-DGAD dated 22.01.2002 was issued recommending imposition of ADD. The definitive antidumping duties in the form of benchmark were imposed by respondent No.2. It is contended that at the end of 5th year, the DI filed an application for 'sunset review" in the year 2006 whereupon investigation was initiated by respondent No.2 to examine whether the expiry of the duty would lead to continuation or recurrence of dumping and inquiry. Respondent No.3 vide its Notification No.83/2006 extended the definitive Anti-dumping Duties in terms of Section 9A(5) for a period of one year up to 05.09.2007. 3.3 It is contended by the petitioners that after conducting a detailed investigation, respondent No.2 issued final finding vide its Notification No.15/20/2006-DGAD recommending continuation of ADD. In pursuance thereof, respondent No.3 issued Notification No.99/2007-Customs (ADD) levying ADD for a further period of five years. 3.4 It is contended by the petitioners that despite imposition of ADD, the imports from China continued to enter market in dumped prices....
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....(ADD) dated 20.08.2018. It is contended that on 29.08.2018, respondent No.2 granted public / oral hearing to all the interested parties to present their views orally and on 07.09.2018, petitioner No.1 submitted a detailed written submission justifying the need for the continuation of the duty. 3.6 It is contended by the petitioners that on 15.01.2019, respondent No.2 issued Disclosure Statement under the provisions of Rule 16 of the Rules, which require disclosure of essential facts received and interpreted by it which are under consideration for the purpose of arriving at a final conclusion. According to the petitioner, therefore, it filed its comments on the disclosure statement submitting that the disclosure statement is incomplete as it has not addressed the certain major submission made by petitioner No.1 and requested the authority to disclose the essential facts before issuing the Final Finding. However, respondent No.2, without appreciating the submission made by petitioner No.1 issued impugned Final Finding vide Notification F No.7/16/2018-DGAD where DA has finally decided not to continue the ADD and thereby rejected / ignored all the submissions made on behalf of petit....
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....ures are more than 5 years old and are prior to previous extension of ADD). v. As per 145th Parliamentary Standing Committee on Commerce which assessed the impact of Chinese goods on India industry, it is clearly stated that API sector needs protection from imports and the Government of India also endeavours to revive the API sector in India. vi. Katoch Committee Report dated 24th September, 2015 on Active Pharmaceuticals Ingredients (APIs) specifically states that a long term strategy for strengthening API sector by involving Ministry of Commerce as well as other regulatory authorities is required which involves judicious and liberal use of measures like anti-dumping. vii. FICCI report February 2018 edition on "Trends and Opportunities for Indian Pharma" highlights that dependence on China for API supplies exposes the pharma industry to raw material supply disruptions and price volatility. viii. Office Memorandum dated 18th April, 2018 issued by the Government of India, Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals, constituted a Tast force to formulate a road map for enhanced production of APIs in the country as there is ....
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.... essential facts thereby violating the principles of natural justice and denying the domestic industry an opportunity to defend its interests. (b) Impugned Final Finding is a non-speaking order and does not address all the issues and concerns raised by the domestic industry in violation of the requirements of reasoned explanation under Rule 17 of the Anti-Dumping Rules. (c) Error on the part of respondent No.2 in considering import as insignificant which constituted 98% of the total import and 6% of consumption in India. (d) Conclusions arrived at by respondent No.2 are contrary to the facts showing likelihood of injury to domestic industry in the event of revocation of duty. (e) Current / continued injury to the domestic industry not a mandatory pre-condition in sunset review investigation conducted under Section 9A(%) of the Act read with Rule 23 of the Rules. (f) In an anti-dumping investigation, once the domestic industry has provided prima facie sufficient evidence of likelihood of dumping and injury and the Designated Authority has initiated investigation then the onus to show absence of likelihood of dumping and injury is on the e....
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....een left blank and therefore, this was specifically brought to the notice of the authority under the objection dated 22.1.2019. The authority without there being any decision thereon, rendered its final findings, which could be seen from the page No. 261 and 262. In view thereof the Court is of the view that as there is a prima-facie breach of principle of natural justice as the decisions have been rendered prima-facie without affording appropriate material to the concerned, the Court has issued Notice for final disposal and have been expected from the other side to file reply, if any, by the returnable date, in case if notice is served within a reasonable time from today. Learned counsel further submitted that conclusions are diametrical opposite to the final findings recorded. Direct service is permitted." Thereafter, time and again the matter has been adjourned. Today, Shri Desai, learned advocate appears for the designated authority and submitted that the anxiety expressed on behalf of the petitioner that the anti dumping duty for extended period also would come to an end by 26.04.2019 and he is yet to receive instructions and reply, if any, ....
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....t there into the requirement of issuing of notice for final disposal bearing in mind that the notification of 20.8.2018 would expire on 26.4.2019. The matter thereafter was required to be adjounred at the instance of respondent as could be seen from the order of 11.4.2019 wherein also the Court in fact had reproduced the earlier order only with a view to infuse the sense of urgency which appears to have worked but not to the fullest as though the reply has come but in a soft copy which cannot be placed on record and there is a justification on the part of the counsel for the petitioner with respect to the appropriate direction for extending the antidupming duty so that the subject matter of petiton may not be rendered infructuous and irretrivable situation may be avoided. The Court is, therefore, of the view that let there be a direction to respodnent No.1 that the antidumping duty as mentinon in Notification No.39-2018-Custom( ADD) for the product paracetamol dated 20.8.2018 at page 119 shall be extended for a further period of two months that would take care of hearing aspect as by then the pleading would be completed. The antidumping duty as mentioned in the notification dated 2....
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....ced as under:- THE IMPUGNED FINAL FINDING HAS BEEN ISSUED IN GROSS VIOLATION OF HTE PRINCIPLES OF NATURAL JUSTICE AND HAS PREVENTED THE PETITIONERS FROM EFFECTIVELY DEFENDING THEIR INTERESTS : 1. Respondent no.2 has erroneously applied Rule 7 in the present investigations, in so far as it has failed to disclose the details of the Dumping Margin calculations to the petitioners no.1 in para 52 3 (a) (b). Determination of Dumping Margin for china PR as a whole. a) Comparing the normal value and export price at exfactory level for the country as a whole, the dumping margin for the subject country is determined as below: Particulars US$/kg.Rs/kg (POI) US$/Kg Rs/kg Normal value *** *** Net Export Price *** *** Dumping Margin *** *** Dumping Margin % *** *** Range % 10-20 10-20 b. After details analysis of DGCIS transaction wise data it has been observed that out of total imports of china PR i.e *** MT *** % imports are dumped and *** % are injurious. 2. The Dumping margin is the difference between the Normal Value and export price. In the facts of the presen....
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....E IMPUGNED FINAL FINDING IS BAD IN LAW AND PERVERSE AND BASED ON EXTRANEOUS FACTORS: 7. The present case being a sunset review investigation, the respondent no. 2 was required to examine the likelihood of continuation or recurrence of dumping or injury, as provided under proviso to Section 9A(5), extracted herein below: "(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. 8. Respondent no. 2 has acted in violation of the provisions of section 9A (5) of the Act read with Rule 23 of the Rules in as much as it has lent unwarranted weightage to the fact that the petitioner No.1/Domestic Industry is allegedly not suffering injury during the current period. While issuing the impugned final f....
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....njurious imports. c) M/s Lianyungang Kangle Pharmaceuticals Co. Ltd. Total exports to India by the said producer of the subject goods through its exporters is *** MT out which dumped imports constitute*** MT. No injurious imports were found for the said producer through its exporter d) M/s Hebei Jiheng (group) Pharmaceutical Co. Ltd. Total exports to India by the said producer of he subject goods is *** MT. All imports of the said producer are dumped and *** MT are injurious. [para no. 85-87 (page no. 273- 274). SUBMISSION Respondent no. 2 erred in considering import as insignificant which constituted 98% of the total import and 6% of consumption in India (more than insignificant as define in Rule 14(d), Even otherwise Rule 14 of the Rules dealing with the termination of investigation on the basis of insignificant imports is explicitly excluded from Rule 23(3) and therefore issuance of the impugned final findings by respondent no. 2 in the present case on the basis of the volume of insignificant import are contrary to the mandate of law. * Imports are 5.84% (above diminimus level) (paragraph no.62 table at page no.265); and * Rule....
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....cals Co. Ltd. 50000 8. Lianoyuan City Baikang Pharmaceutical 500 9. Total capacity of non - cooperative entitles 99000 10. Total capacity of cooperative producers 7500 0 11. Total capacity of China PR 00 12. Indian demand 51069 c. However, it is observed from the analysis of the cooperating producers that the trading companies do not have their own production facilities and they quote the capacity of the producers on their websites. d. Considering the capacity utilisation and export orientation of the responding producers and evidence provided by the domestic industry, it is evident that there are surplus capacities in China and the Chinese producers are export oriented. (C) Inventories of the article being investigated 90. The questionnaire response filed by the Chinese producer's shows that level of inventories with the cooperative producers / exporters is quite significant. Producer Uni ts 2 01 5 2 016 2017 Poi M/s.Anqi u Lu An Pharmac eutical Co. Ltd. MT *** *** *** *** Lianyun gang Kangle Pharmac eutical Co. Ltd. MT *** *** *** *** ....
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....ed volt face without any basis that there is inadequate evidence submitted by the domestic industry to substantiate the likelihood of injury. 3. The ADD was in force since September'2001 and the condition of domestic industry has improved. Therefore, the ADD has served its intended purpose. [paragraph 126(6) (page no.281)] SUBMISSION: Duration of levy of anti-dumping is not a relevant parameter. Anti-dumping duty is required to be imposed so long as the investigation shows that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury. The Act and the Rules do not prescribe any time limit beyond which the Anti-dumping duty cannot be extended. 9.1 Learned advocate for the petitioners has relied upon the following decisions. 1. In the case of Nirma Limited Vs. Union of India, reported in 2017 (358) E.L.T. 146 (Gujarat). 2. In the case of Reliance Industries Limited Vs. Designated Authority and others reported in (2006) 10 SCC 368; 3. In the case of Union of India and another Vs. Meghmani Organics Limited reported in (2016) 10 SCC 28; 4. In the case of DCW Limited Vs. Union of India, rende....
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....writ jurisdiction of this Hon'ble Court ought not to have been invoked by the Petitioner, in light of an alternative remedy available to the Petitioner under the provisions of the Custom Tariff Act, 1975. It is respectfully submitted that the appeal against the findings of the designated authority viz. Directorate General of Trade Remedies lies with the CESTAT under Section 9C of the Customs Tariff Act, 1975. Section 9C of the Custom Tariff Act, 1975 is reproduced below for ease of reference of this Court: "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 (hereafter referred to as the Appellate Tribunal). (1A)...... (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-section (1), (2), (5) and (6) or section 129C o....
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....ement before the CESTAT is unable to be discerned from the above passage. If the Final Finding can be appealed against before the CESTA 7; there is no reason why the CESTA T cannot examine the correctness of the assertions made in the disclosure statement which constitutes the very foundation of the entire exercise leading up to the Final Finding by the DA. 7. The relevant portion of Section 9 C of the CTA reads thus: 8. Given the scope of the appellate power of the CESTA T as spelt out Section 9 C of the CTA, there is nothing to indicate that the CESTAT would be precluded from examining the validity of the disclosure statement issued under Rule 16 of the Rules. It is like saying that an appellate Court which Is in exercise of its powers under Section 96 of the Code of 0W Procedure 1908 (0°C) judicially reviewing a decree and judgment in a suit would be precluded ham examining the correctness of the assertions made in a plaint or a written statement. In the context of the proceedings before the DA, the disclosure statement would be comparable to a plaint. Consequently, the Court is not persuaded that the grounds urged in the writ petition cannot be urged befor....
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....ed that given the highly specialized nature of the subject, the statutory remedy would be a more appropriate course of action for an aggrieved party, and the Hon'ble High Court under their writ jurisdiction cannot don the mantle of an economic analyst to decide whether the DA adopted the correct approach; and therefore, as long as the final findings are in accordance with law, this Hon'ble High Court ought not to interfere under Article 226 of the Constitution. Re: The Central Government is not empowered to review its own order / notifications 11. The Petitioner herein while challenging the Disclosure Statement and the Final Finding before this Hon'ble Court has failed to appreciate that the notification No. 35/2018Cus (ADD) dated 20.8.2018 was rescinded by way of the notification No. 19/2019-Cus (ADD) dated 16.4.2019 (Rescinding Notification). The said rescinding was undertaken after obtaining the approval of the Finance Minister,' whereby the final finding of the DA was upheld. 12. Without prejudice to the aforementioned submissions, it is respectfully submitted that in view of the fact that Anti Dumping Duty on the 'paracetamol' has come to an end,....
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....laced on the judgment of the Hon'bie Supreme Court in the case of Union of lndia (U01) and Ors. V Kumho Petrochemicals Company Limited and Ors. [AIR 2017 SC 3357] in this regard. 15. In any event, if it is the case of the Petitioner that the Final Findings need to be set aside for reasons, inter alia, that there Is a violations of principles of natural justice, in that event also, the matter ought to be remanded to the DA to cure the alleged defect, and it is not open to this Hon'ble High Court to extend the notification to impose Anti-Dumping Duty and/or suspend the rescinding notification of the Central Government. The aforesaid submission is without prejudice to the legal assertion that principles of natural justice as applicable to investigation/inquiries against individuals, may not have a strict application to the investigation under the Anti-dumping Rules, 1995, and therefore the assertions of the Petitioner qua alleged non-compliance of the rules of natural justice by the DA are liable to be rejected. In any case, the Petitioner has failed to show how any prejudice has been caused to him due to the alleged non-compliance of the rules of natural justice by the DA, a....
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..... Designated Authority and Additional Secretary, reported in (2006) 4 SCC 303; 2. Indian Metal and Ferro Alloys Ltd. Vs. Designated Authority, Ministry, reported in (2008) 224 ELT 375; 3. M/s. Kanoria Chemicals and Industries Ltd Vs. Designated Authority, Directorate General of Allied Duties and others, reported in 2015 SCC Online CESTAT 284; 4. In the case of Designated Authority Vs. Sandisk International Ltd., reported in (2018) 13 SCC 402; 5. Jindal Poly Film Ltd. Vs. Designated Authority and others, reported in 2018 (362) ELT 994; 6. Suncity Sheets Pvt. Ltd. Vs. Designated Authority, reported in 2017 SCC Online Del 9412; 7. Spacewood Furnishers Vs. Designated Authority and others, reported in 2010 (112) Bom L.R. 2045; 8. Shew Kumar Agarwal and Others Vs. Union of India, reported in (2002) 1 CALLT 588 HC; 9. Union of India (UOI) and others Vs. Kumho Petrochemicals Company Limited and others, reported in AIR 2017 SC 3357; 10. Eveready Industries India Ltd. Vs. Union of India, reported in 2019 SCC Online Del 7865; 11. Sterlite Industries (India) Ltd. Vs. Designated Authority, reported in 2003....
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....that equal treatments have been given to everybody and any other confidential facts has not disclosure, however, the facts which are confidential for the petitioner itself are supplied to him. 11.1 While referring the Rules 16 and 17 of the Rules, Mr.Desai, learned advocate has submitted that the Final Finding be always based on the observation made in Disclosure Statement and there is hardly any further inquiry needed after disclosure statement and, therefore, it could be assailed on the ground of similarity in the Disclosure Statement and Final Finding. He has contended that the Disclosure Statement is always based on data and there is no any exercise is taken during the period between the Disclosure Statement and Final Finding. According to him, on the basis of the informations, after conclusion of the Disclosure Statement, the question remain is only regarding evaluation of the data, which is being carried out and on that basis, the Final Finding could be arrived at. He has submitted that there is no breach of any natural justice and there is no allegation in the pleadings of the petitioners as to perversity in the action of the DA. 11.2 Regarding maintainability of the p....
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....s submitted that there is no bar to the High Court to entertain the writ petition under Article 226 of the Constitution of India considering the fact that there is non-compliance on the part of the Designated Authority in providing the informations to the petitioners and considering the fact that the conclusion arrived at in Final Finding is diametrically opposed to the reasons given in report itself as well as in the disclosure statement, this Court has jurisdiction to entertain the petition and pass necessary order. He has prayed to allow the petition. 13. The Court has heard learned counsels for the parties and perused the pleadings. Before adverting to the rival contentions of learned advocates for the parties, it would be most appropriate to set out hereinbelow few indisputable aspects emerging therefrom - (i) This petition is in respect of the goods imports of paracetamol originating in or exported from China PR. (ii) On 22.01.2002, respondent No.2, on the basis of the inquiry conducted, issued the Final Finding Notification No.60/1/2000- DGAD recommending imposition of Anti - Dumping Duty on paracetamol from China PR. (iii) On 27.03.2002, respon....
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.... Notification No.39/2018-Customs (ADD). (xvii) On 29.08.2018, respondent No.2 granted public / oral hearing to all the interested parties. (xviii) On 07.09.2018, petitioner No.1 filed a detailed written submission. (xix) On 15.01.2019, respondent No.2 issued Disclosure Statement under the provisions of Rule 16 of the Rules as mentioned in pages starting from page No.187 to 226. The relevant extract thereof is reproduced hereinbelow. 27. Submissions made by the interested parties with regard to confidentiality and considered relevant by the Authority are examined and addressed accordingly. Information provided by the interested parties on confidential basis was examined with regard to the need for treating them as confidential. On being satisfied, the Authority has accepted the confidentiality claims of all the parties and accordingly not disclosed such information to other interested parties. Wherever possible, parties providing information on confidential basis were directed to provide non-confidential summary of the information filed on confidential basis. The Authority made available the non-confidential version of the evidence submit....
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....na PR in the current investigation may please be determined on the basis of their domestic sales and the cost of the subject goods. iii. It is in view of the fact that the period of 15 years for disregarding the domestic prices or costs of Chinese producers not being on market economy conditions as provided in para 15(a)(ii) of the Protocol of Accession of the People's Republic of China to WTO, has expired on 11th December 2016 in terms of para 15(d) and has become non-operational. iv. At present, no provisions which enable the Hon'ble Authority for considering Chinese producers as operating on non-market economy principles for disregarding their domestic prices and costs and the normal value for China may be determined on the basis of their domestic prices and cost of the subject goods. v. Any other methodology used for the determination of normal value for Chinese exporters would be in violation of the obligations of India under the WTO. vi. Without prejudice to above submission it is submitted that determination of normal value for Chinese exporters on the basis of their records without following any additional procedure, domestic industry has....
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....normal value. The Authority sent copies of the Supplementary questionnaire to all the known producers / exporters for rebutting presumption of non-market economy in accordance with criteria laid down in Para 8(3) of Annexure-I to the AD Rules. The Authority also requested Government of China to advise the producers / exporters in their country to provide the relevant information. However, none of the Chinese producers filed any response to the Supplementary questionnaire issued by the Authority. 44. Accordingly, the normal value and export price for the all the producers / exporters from the subject country have been determined as below. a. Determination of Normal Value for producers and exporters in China PR 45. As none of the producers from China PR have filed the Supplementary Questionnaire response, the normal value has been determined in accordance with Para 7 of Annexure - I of Anti-Dumping Rules. In the absence of sufficient information on record regarding the other methods as are enshrined in Para 7 of Annexure I of the AD rules, the Authority has determined the normal value by adopting the method "any other reasonable basis". 46. The Aut....
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....al Co., Ltd. 50. The Authority notes that M/s.Lianyungang Kangle Pharmaceutical Co., has exported *** MT through its trader namely M/s. Zhejiang Kangle Pharmaceutical Co., Ltd. They have claimed price adjustments on account of inland freight, ocean freight, marine insurance, credit cost, port expenses and VAT. After adjustment of the expenses claimed by the producer / trader, the authority has determined the ex-factory export price as US$***/MT. M/s.Hebei Jiheng (group) Pharmaceutical Co. Ltd. (producer) 51. The Authority notes that M/s.Hebei Jiheng (group) Pharmaceutical Co. Ltd have exported *** MT directly to India. The exporters have claimed price adjustments on account of inland freight, ocean freight, marine insurance, credit cost, port expenses and VAT. After adjustment of the expenses claimed by the producer / trader accordingly, the authority has determined the ex-factory export price as ***US$/MT. c. Determination of Dumping Margin Name of company (Producer) (POI) Name of the company (Exporter) CNV US$/ MT NEP US$/ MT Dumping margin US$/MT DM% Range M/s.Anqiu Lu An Pharmaceutical Co., Ltd. M/s.A.H.A. Internati....
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....** Indexed 100 114 108 110 Imports from MT China MT 4,356 1,930 2,205 2,969 Other Countries MT 79 115 30 65 Total Demand 48,251 50,295 49,603 50,770 61. The Authority notes that the demand has shown increase over the injury period, even though it had marginally declined in 2016-17 as compared to the preceding year. The demand increased once again in the period of investigation as compared to both the preceding year and base year. (ii) Volume Effect of Dumped Imports and impact on Domestic Industry: Import volume and Market Share. 62. With regard to volume of the dumped imports, the Authority is required to consider whether there has been a significant increase in dumped imports either in absolute terms or relative to production or consumption in India. The table below summarizes the factual position with regard to import volumes and market share :- Particulars Units 2014-15 2015-16 2016-17 POI China MT 4,356 1,930 2,205 2,969 Other Countries MT 79 115 30 65 Total import....
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....osts and prices over the injury period. The position is shown as per the table below :- Particulars Units 2014-15 2015-16 2016-17 POI Cost of sales Rs./Kg *** *** *** *** Trend 100 89 87 99 Selling price Rs./Kg *** *** *** *** Trend 100 93 89 103 Landed price of imports Rs./Kg 265 266 238 250 Trend 100 102 87 94 67. The Authority notes that whereas the selling price has increased in the POI as compared to the base year, the cost of sales has marginally declined in POI. The landed value of imports from subject country has declined in POI as compared to the base year. The Authority notes that the domestic industry increased its selling price in proportion to increase in cost of sales throughout the injury period. Therefore, there is no price suppression or depression. 69. Accordingly, various economic parameters of the Domestic Industry are analyzed herein below :- a) Production, Capacity, Capacity Utilization and Sales Volume 70. Production, sales, capacity & capacity utilization details are as follows ....
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....ty, cash profits and return on investments have increased in the POI when compared to he base year/. 80. The Non-injuries price of the subject goods produced by the domestic industry as determined by the Authority in terms of Annexure III to the AD Rules has been compared with the landed value of the exports from the subject country for determination of injury margin during the POI and the injury margin so worked out is as under. SN Particular UOM China (POI) 1 Import Volume MT 2969 2 Non Injurious Price Rs./KG *** 3 Landed Price Rs./KG *** 4 Injury Margin Rs./KG (***) 5 Injury Margin % (***) Injury Margin RANGE 0-(10) J. LIKELIHOOD OF CONSTINUATION OR RECURRENCE OF DUMPING AND INJURY J.1 Submissions by the Domestic Industry 82. Following are the submissions made by the Domestic Industry with regard to likelihood of continuation of dumping and consequent recurrence of injury - i. A perusal of Article 11.1 of AD Agreement and Section 9A(5) of the Customs Tariff Act, clearly suggests that the main intent behind the legislation of Sunset Review....
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.... in the country namely :- * M/s.Triton Labratories Ltd. * M/s.Vamsi Labs Ltd. * M/s.Srinivasa Agro Industries & Drugs Ltd. * M/s. Pan Drug * M/s.Alpha Drug * M/s.Glaxosmithkline Pharmaceuticals Ltd. * M/s.Thexa Pharma Pvt. Ltd. * M/s.Vani Pharma Labs Ltd. * Rohini Chemical * Fortune Chemical * Dinesh Pharmaceutical * Dr. Jain's Company * Saboo Medichem ix. The production of product under consideration is quite limited globally. About 86% of global production is in India and China. 62% of the production is in China alone, while India commands 24%. Thus, any sickness in this industry would leave the global demand at the mercy of the Chinese producers. x. The questionnaire responses filed by the exporters, establish that there is import of subject goods from subject country at dumped price. xi. The domestic industry in the present scenario is still reeling from the adverse effects of the dumping and has shown marginal growth in terms of its economic parameters. The same growth would be reversed if the Anti-dumping duty is ceased by the Authori....
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....xporters 83. There is no likelihood of recurrence of injury as per Article 9A(5) of the Customs and Tariffs Act. i. The petitioners have not given the details of excessive capacity available with the Chinese producers and their likelihood of being exported to India, the petitioners have failed to make out a case of likelihood of dumping. ii. This clearly indicates that there is no likelihood of injury to the domestic industry in the current investigation and the present investigation deserves termination. J.3 Examination by the Authority 84. The Authority examined the likelihood of continuation or recurrence of injury considering the parameters relating to the threat of material injury in terms of Annexure II (vii) of the Anti-dumping Rules. The domestic industry has submitted the details of exports of China to third countries as per China customs which shows that ***% volume of exports to third countries are at a price lower than price at which China exports to India and ***% of the volume of exports to third countries are at a price above than price at which China exports to India. 85. The Authority has taken into consideratio....
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....or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to India markets, taking into account the availability of other export markets to absorb any additional export. 89. The Authority evaluated the existing surplus capacities, capacity addition, if any, with the responding exporters, possibility of trade diversion from third countries to India, freely disposable production capacities with the responding exporters. The analysis shows as follows: a. Capacity, production, surplus capacities, exports to India and rest of the world, volume of exports to India. Name of Producer Units Anqiu Lu An Pharmaceutical Co. Ltd. Lianyungang Kangle Pharmaceutical Co., Ltd. Hebei Jiheng (group) Pharmaceutic al Co., Ltd. Total Capacity MT *** *** *** *** Production (POI) MT *** *** *** *** Capacity utilisation % *** *** *** *** Domestic Consumption MT *** *** *** *** Exports to India MT *** *** *** *** Exports to ROW MT *** *** *** *** Total Exports MT *** *** *** ....
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....: Country Quantity Value Price India (IN) *** *** *** Congo, DR *** *** *** Cuba (CU) *** *** *** Kenya (KE) *** *** *** Mauritius (MU) *** *** *** Indonesia (ID) *** *** *** S. Africa (ZA) *** *** *** Iraw (IQ) *** *** *** Zambia (ZM) *** *** *** Russia (RU) *** *** *** Iran (IR) *** *** *** Syrian (SY) *** *** *** Benin (BJ) *** *** *** Mozambique (MZ) *** *** *** United Arab Emirates (AE) *** *** *** Tanzania (TZ) *** *** *** Lithuania (LT) *** *** *** 92. The Authority notes that ***% total volume of exports to third countries is at a price lower than the price at which China export to India. Whereas ***% of the total exports are exported are above at price at which China exports the subject goods to India. (E) Export Orientation of China PR 93. As per the data of China Customs and other evidence filed by the Domestic Industry, the Authority notes that the producers in China are oriented toward exports globally. ....
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.... disallowed for the purpose of NIP computation, optimization of raw materials, utilities and overhead expenses in case the Designated Authority found that there were some inefficiencies in the same. This is all the more important, as (i) it appears that the NIP determined is unduly low, (ii) there appears an assumption with regard utilization of raw materials, utilities and production capacities. g Actual data in injury assessment:- Since this data pertains to the domestic industry, petitioners request disclosure of this data to the petitioners on actual basis. 2. The above is vital for the domestic industry to offer their meaningful comments on the disclosure statement. However, pending such disclosure, the domestic industry hereunder makes following preliminary submissions to the Disclosure Statement. The domestic industry craves leave to make further submissions, as and when the above essential facts are disclosed. B. Emerging essential facts flowing from the Disclosure Statement issued are as follows: 3. Following are the emerging essential facts flowing from the Disclosure Statement. Petitioner believes that the Authority has concluded the f....
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....country, which was primarily in the last two decades (all these closures are more than 5 years old and are prior to previous extensions of ADD). iii As per 145th Parliamentary standing committee on commerce which assessed the impact of Chinese goods on Indian industry, it is clearly stated that API sector needs protection from import and the government of India also endeavors to revive the API sector in India. iv Katoch Committee Report dated 24 September, 2015 on Active Pharmaceuticals Ingredients (APIs) specifically states that a long term strategy for strengthening API sector by involving Ministry of Commerce as well as other regulator authorities is required which involved judicious and liberal use of measures like anti-dumping. v FICCI report February 2018 edition on "Trends and Opportunities for Indian Pharama" highlights that dependence on China for API supplies exposes the pharma industry to raw material supply disruptions and price volatility. vi Office Memorandum dated 18th April, 2018 issued by the Government of India, Ministry of Chemicals and Fertilizers, Department of Pharmaceuticals, constituted a Task Force to formulate a road map....
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....racetamol. 7 Paracetamol is also known as "acetaminophen" which is classified under Customs sub heading No 29222933 under chapter 29 of the Customs Tariff Act, 1975 and the same is however indicative only and not binding on the scope of the present investigation. Designated Authority has also correctly held that the goods produced by the domestic: industry are comparable to the PUC in terms of physical characteristics, manufacturing process & technology, functions & uses, product specifications and tariff classification of the goods. The two are technically and commercially substitutable since they are being used interchangeably by the consumers. Therefore, the goods produced by the Domestic industry and imported from the subject country are like articles in terms of the Rule 2(d) of the Anti-Dumping Rules. E. Scope of the Domestic Industry & standing 8. With regard to the scope of the Domestic industry & Standing the Designated Authority has rightly at Para. 23 have noted that the petitioner companies are eligible domestic industry in terms of AD Rules. Further. production of the petitioner companies namely M/s Farmson Pharmaceuticals Gujarat Private Lim....
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....d to consider weighted average normal value and compare with individual export price and in all those import transactions where the dumping margin is negative, the same are required to be excluded for determination of dumping margin. 13. It is further submitted that the determination of export price by the in the present case is not consistent with the SOP manual issued which state as follows: " 12. 23.2 Alternatively, if it is established that the producer has exported through an unrelated exporter, then take the sale price of the subject goods from producer to first exporter and adjusted for ex-factory expenses to arrive at NEP. In this case it should be unrelated exporter should have made the exports at profits. In case exporter has posted losses (as verifies from appendix 5&9) then a reasonable profit has to be deducted for computation of ex factory export price" 14. Therefore in a case like present where the producers have exported the goods through unrelated trader and where it does not appear a case that the traders have made losses, the export price should be determined considering the selling price of the producer. 15. Even otherwise, th....
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.... 22. The Designated Authority has noted as follows with regard to various economic parameters: i At 71 of the Disclosure Statement Designated Authority note the fact that the production, sales and capacity utilization of the Domestic Industry has increased over the injury period. This however only shows absence of current injury and in itself insufficient to hold absence of likelihood. ii At Para 75 of the Disclosure Statement Designated Authority has noted that profitability, cash profits and return on investments have increased in the POI when compared to base year. The Designated Authority is requested to consider the fact this improvement is due to anti-dumping duty in force. Further, this only shows absence of current injury and in itself insufficient to hold absence of likelihood. iii At Para 77 of the Disclosure Statement Designated Authority has rightly noted that the average inventory level of the subject goods has shown an increasing trend. Injury Margin 23. Without prejudice, it is submitted that injury margin is not germane to likelihood of dumping and injury analysis. NIP is determined only for the purpose of quantification ....
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....at a decision as to whether or not determinative measures are required to be applied. It is only after coming to the conclusion that there is injury necessitating imposition of or continuance of anti-dumping duty, that the designated authority is required to determine the injury margin, for which purpose it has to determine the non-injurious price as per the principles laid down in Annexure Ill to the rules for the purpose of fixing the quantum of anti-dumping duty to be imposed." 25. It is submitted that the Designated Authority is required to determine injury margin only in those cases where the Authority finds that the imports are causing injury. However, if the Designated Authority does not find injury to the domestic industry, like in the present case, the Designated Authority is not required to and should not determine injury margin. In fact, when there is no injury, there can be no need for determining injury margin. And, a negative injury margin only shows that the domestic industry is not suffering current injury. Therefore, in a situation where the Designated Authority finds absence of injury, the Designated Authority is not required to determine injury margin an....
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....uthority has examined the likelihood of continuation or recurrence of injury considering the parameters relating to the threat of material injury in terms of Annexure II (vii) of the Anti-Dumping Rules at Para. 86-93 of the Disclosure statement. 29. The Designated Authority has noted as follows With regard to likelihood of injury in the present case i For Cooperating exporter / producer Authority at Para. 89(d) has rightly noted that "Considering the capacity utilization and export orientation of the responding producers and evidence provided by the domestic industry, it is evident that there are surplus capacities in China and the Chinese producers are export oriented. ii Capacities of the following Non-cooperative exporters/producers: Further at Para. 89(c) the Authority has noted that on the basis of analysis of the Co- operating producers that the trading companies do not have their own production facilities and they quote the capacity of the producers on their websites. iii Authority at Para. 90 have noted that on the basis of "the questionnaire response filed by the Chinese producer's shows that level of inventories with the cooperative pro....
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.... existence of a causal link between the likely dumping and likely injury. As observed by the Appellate Body in the case of United States Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico [WT/DS282/AB/R], in a review investigation, it is determined whether expiry of duty is likely to lead to a continuation or recurrence of dumping or injury, and "it is reasonable to assume that, where dumping and injury continues or recurs. the causal link between dumping and injury, established in the original investigation, would exist and need not be established anew." "Therefore, what is essential for an affirmative determination under Article 11.3 is proof of likelihood of continuation or recurrence of dumping and injury, if the duty expires" and there is no requirement to establish a causal link between the likely dumping and the likely injury to the domestic industry. K. NIP determined is too low leading to insufficient injury margin 34. The non injurious price determined is too low resulting into negative injury margin. The non injurious price has been reduced on account of number of factors. The domestic industry requests the authority to kindly conside....
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....till in Force) China 12/2/2003 15 14 4 Sodium Nitrite (Still in force) China 4/6/200 18 80 5 Nylon Tyre Cord Fabric (NTCF) (Still in force) China 6/30/2004 14 56 6 Narrow Woven Fabrics (Still in force) China Taiwan 6/9/2004 14 62 Illustrative list of cases where Anti-dumping duties have been extended by global authorities even beyond 20-30 years 86. Table below shows statement of cases wherein USA has imposed Anti dumping duty pursuant to third sunset reviews also. It would be seen that Anti-dumping duties have been in operation in USA for much longer period. SN Product Country Duty since Time period SN Product Country Duty since Time period Year Days 1 Stainless Steel Bar India 2/21/1995 23 92 2 Sulfanitic Acid India 3/2/1993 35 90 3 Pressure Sensitive Plastic Tape Italy 10/21/1977 41 27 4 Prestressed Concrete Steel Wire Japan 12/8/1978 40 14 5 Silico manganese Ukraine 10/31/1994 24 24 6 Circular Welded Non-alloy steel Pipe Korea 11/2/1992 2....
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....bags of jute India 2/10/1992 26 96 8. Phenol USA 16/10/2002 16 27 9. Polyvinyl chloride resins USA 30/12/1992 26 7 10. Ethylene Glycol USA 11/10/200 14 20 89. It is further submitted that Domestic industry is vulnerable to injury from dumped imports at present. Current levels of import volumes and dumping margins from the subject country clearly shows that expiry of duty will result in intensified dumping of subject goods from the subject country. As earlier requested Authority should also consider followings a. Limited production of the product globally : As earlier submitted petitioner again requests the Authority to consider that the production of product under consideration is quite limited globally. As, about 86% of global production is in India and China only and out of which 62% of the production is in China alone, while India commands the remaining 24%. Thus, any sickness in this industry would |eave the global demand only at the mercy and monopoly of the Chinese producers. b. Large scale production suspension in India: As already submitted petitioner again requests the Authority to....
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....ted please, (A.K. Gupta) For the Domestic Industry (xxi) On 29.01.2019, respondent No.2 issued impugned Final Findings vide Notification F. No. 7/16/2018-DGAD whereby it has decided to discontinue the Anti-Dumping Duty rejecting / ignoring all the submissions on behalf of the petitioners. The relevant extract from the Final Findings set out hereinbelow. C. LIKE ARTICLE C.1 Submissions by the Domestic industry 15. The domestic industry has claimed that there is no known difference in subject goods exported from subject country and that produced by the Indian industry. Both the products have comparable characteristics in terms of parameters such as physical & chemical characteristics, manufacturing process & technology, functions & uses, product specifications and tariff classification etc. C.2 Submissions by the exporters/importers/other interested parties 16. None of the interested patties have disputed the claims made by the domestic industry in this regard. C.3 Examination by Authority l7. The Authority notes from the information available on record that the product under consideration produced by th....
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....GCI&S has not been provided. c. The import data has not been provided for the whole POI and has been provided only for the 9 months. d. The item-wise details of constructed normal value have been kept as confidential, e. Company-wise production details of the petitioners, supporting producers and the domestic producers have been kept as confidential. f. The annual repent 0f the companies for the P01 and the previous three years have not been provided. The domestic industry has simply stated that the same may be seen from the website of the petitioners. However, it may be seen that there are no annual reports available on the website of the petitioners. g. In the application, it has been mentioned that Sri Krishna Pharmaceuticals Ltd. has imported the subject goods. However,the reasons have not been provided by the domestic industry. h. The domestic industry has claimed adjustment from export price for ocean freight, marine insurance, port expenses, bank charges, inland transportation, commission and VAT adjustment. However, no evidence with regard to the aforesaid adjustments claimed have been provided by the domestic industry ....
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....y of the information filed on confidential basis. The Authority made available the non-confidential version of the evidence submitted by various interested parties in the form of public file. G. NORMAL VALUE EXPORT PRICE AND DETERMINATION OF DUMPING MARGIN 39. The Authority sent questionnaire to known exporters from subject country, advising them to provide information in the form and manner prescribed. The following producers and exporters front the subject country tiled the questionnaire response: i. M/s Anqiu Lu An Pharmaceutical Co., Ltd. ii. M/s A.H.A lntemational Co., Ltd. iii China Sinophamt International Corporation iv. Zhejiang Chemicals Import and Export Corporation. v. Lianyungang Kangle Pharmaceutical Co., Ltd. vi. Zhejiang Kangle Pharmaceutical Co., Ltd. vii. Hebei Jiheng (group) Pharmaceutical Co. Ltd. 40. According to Section 9A (1) (c) of the Customs Tariff Act, 1975 'Normal Value' in relation to an article means:- "comparable price, in the ordinary course of trade. for the like article when meant for consumption in the exporting county or territory as determined in ac....
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....enomenon of POI, but extends to the entire injury period, v. It is a fit case where weighted average normal value cannot be compared wit weighted average export price. The Designated Authority is, therefore, requested to compute the weighted average normal value and compare the same with individual export price and in all those import transactions where the dumping margin is negative, the same are required to be excluded for determination of dumping margin. vi. There can be no plausible reason / justification for such significant difference in the prices in respect of imports being reported at the same time. G.2 Views of the interested parties 42. The submissions made by the producers/exporters/importers/other interested parties are as follows:- i. Determination of the normal value for subject country in the current investigation as computed by the domestic industry is not in accordance with the legal provisions and therefore, the determination of dumping margin in the current investigation by the petitioners is flawed. ii. Normal value for the companies in China PR in the current investigation may please be determined on the ba....
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....ortunity to respond to the same. xi. Mandatory procedure prescribed by the law has not been followed, as the interested parties have not been put to notice about selection of the third country. Nor have the interested parties been requested to suggest and make necessary information available about the third country. xii. In the absence of following the mandatory procedure, the present proceeding cannot continue in view of the decision of the Hon'ble Supreme Court in the case of Shenyang Matsushita 2005 (181) ELT 320 (SC). xiii. The failure to follow the mandatory procedure of Para 7 has substantive implications on the determination of the normal value and resultantly the dumping margin. xiv. Therefore, the Hon'ble Authority is requested to follow the procedure prescribed in Para 7 of the Annexure I in the current investigation. G.3 Examination by the Authority a. Normal Value in China 43. Upon initiation, the Authority advised the producers/exporters in China to respond to the notice of initiation and provide information relevant to determination of normal value. The Authority sent copies of the Supplementary questionna....
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....nqiu Lu An Pharmaceutical Co., Ltd. has exported *** MT of the subject goods directly to India and *** MT through it traders M/s A.H.A International Co., Ltd., China Sinopharm International Corporation and Zhejiang Chemicals Import and Export Corporation. The Authority notes that whereas Anqiu Lu An Pharmaceutical Co has reported an export price of US$ ***/MT and A.H.A international Co., Ltd., China Sinopharm International Corporation and Zhejiang Chemicals Import and Export Corporation have reported net export price of US$ ***, US$ ***/MT and US$***/MT respectively. 49. The producers-exporters have claimed price adjustments on account of inland freight, ocean freight, and marine insurance, credit cost, port expenses and VAT. Ex-factory export price has been determined for each producer/exporter. Weighted average export price of the said producer and its respective traders have thereafter been determined as US$ *** /MT considering the total volume of exports made by the said exporter. M/s Lianyungang Kangle Pharmaceutical Co., Ltd. (produder) and M/s Zhejiang Kangle Pharmaceutical Co., Ltd. 50. The Authority notes that M/s Lianyungang Kangle Pharmaceutica....
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....estic Sales for PUC MT *** *** *** *** Trend Indexed 100 113 116 117 From the above information, the Authority notes the following:- a) Capacity of the domestic industry has remained constant over the period. b) The production, sales and capacity utilization of the Domestic Industry has increased over the injury period. Demand Unit 2014-15 2015-16 2016-17 POI Sales of Domestic Industry MT *** *** *** *** Indexed 100 104 108 108 Sales of Other Indian Producers MT *** *** *** *** Indexed 100 114 108 110 Imports from China MT 4,356 1,930 2205 296 9 Others MT 79 115 30 65 Total Demand MT 48,251 50,295 49,603 50,7 70 71. From the above information it is noted that i) Sales of DI and other Indian producers have increased from the base year. ii) Imports from China PR and others countries have declined from the base year despite increase in total demand during the same period. c) Market S....
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..... iii. There is a long history of dumping of subject goods from China in domestic market as well as in other countries such as South Africa and Indonesia. iv. The continued dumping was only reduced after the last concluded sunset review investigation. Prior to that, the domestic industry was suffering continued injury on account of significant dumped imports, as stated by the Authority in the final findings earlier notified in the review cases. v. The significant level of these imports only started declining since 2015-16. However, it is pertinent to note that the domestic industry is still healing from the past injurious effects of dumping and thus is in a vulnerable state. Cessation of anti-dumping duties is likely to cause intensified injury to the domestic industry. vi. It would appear that the domestic industry has enjoyed anti-dumping duty protection for the last 15 years, the fact is that the domestic industry has been effectively protected for only last the years. The Chinese producers continued dumping and the same caused injury to the domestic industry for one decade, despite the ADD being in force. vii. The change in the form ....
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....lt up capacities in excess of the demand in the subject country out of 1 lac MT production, about 80% are meant for exports. xiv. The exporters have not only been dumping in India, but also in other countries. Further, the prices at which the goods have been supplied to these countries are lower than the non-injurious price. It is therefore, reasonable to conclude that the exporters are likely to sell at dumped and injurious prices in India as well in case the duty is revoked. xv. The export price from subject country to various countries globally are far lower than the export price to India in respect of significant proportion of exports from subject country to various countries globally. The dumping margin and injury margin in these third countries exports are higher than the dumping margin and injury margin in respect of exports to India. xvi. Since India is a more price attractive market as compared to third countries, the exporters would prefer to divert their goods from other countries to India in case of revocation of duty, in order to increase their profits and capture the market. Considering that the exporters have no commitments in these third c....
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.... d. Inventories of the article being investigated. 86. A significant rate of increase of dumped imports into India indicating the likelihood of Substantially increased importation. Particulars Units 2014-15 2015-16 2016-17 POI China MT 4356 1930 2205 2969 Others MT 79 115 30 65 Total Imports MT 4434 2045 2235 3034 * April 17 to March 18 87. The Authority notes that there was a consistent decline in the volume of imports compared to base year. 88. An analysis of transaction wise date of the cooperative producers with their respective exporters so as to arrive at dumped and injurious imports of the cooperative producer of the present investigation is as follows:- a) M/s Anqiu Lu An Pharmaceutical Co., Ltd. The total exports to India by the said producer with trade of the subject goods are *** MT out which *** MT are dumped imports and *** MT are injurious imports. b) M/s Lianyungang Kangle Pharmaceutical Co. Ltd. Total exports to India by the said producer of the subject goods through its exporters is *** MT out which dumped imports constitu....
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....ucers/exporters is quite significant. Producer Units 2015 2016 2017 POI M/s. Anqiu Lu An Pharmaceutical Co. Ltd. MT *** *** *** *** Lianyungang Kangle Pharmaceutical Co., Ltd MT *** *** *** *** Hebei Jiheng (group) pharmaceutical Co. Ltd. MT *** *** *** *** Total MT *** *** *** *** (D) Price attractiveness of Indian market 91. Analysis of the China PR Custom data with regard to export from China PR to the rest of the world indicate that with the revocation of ADD, the Indian prices would be attractive for the Chinese producers/exporters to increase their exports to India and the same can be deduced from the table given below: Country Quantity (Kg) Value (USD) Price USD/kg India (IN) *** *** *** Congo, DR *** *** *** Cuba (CU) *** *** *** Kenya (KE) *** *** *** Mauritius (MU) *** *** *** Indonesia (ID) *** *** *** S. Africa (ZA) *** *** *** Iraw (IQ) *** *** *** Zambia (ZM) *** *** *** Russia (RU) *** *** *** Iran (IR) *** *** **....
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....5.2019, this Court directed the respondents to comply with the aforesaid order and directed issuance of extension of Notification extending the Anti-Dumping Duty as referred to above in initial part of the order. (xxx) On 10.06.2019, Respondents No.1 to 3 have issued Notification No.22/2019-Customs (ADD) extending the Anti-Dumping Duty upto 24.06.2019. (xxxi) On 11.06.2019, the petitioners did not press I.A. No.2 of 2019. (xxxii) On 20.06.2019, a final hearing was conducted and this Court has passed order for issuance of Notification for extension of Anti-Dumping Duty till 09.07.2019. 14. The Court is called-upon to examine the rival contentions of the parties, which needs to be examined in light of the aforesaid indisputable aspects set-out hereinabove. The position of law in respect of the remedies on final findings is now clear. The respondents have relied on the following decisions for their contentions that the alternative remedy in terms of Section 9C of the Act may persuade this Court in not interfering with the final findings. 1. Designated Authority Vs. Sandisk International Ltd, (2018) 13 SCC 402 - the Supreme Court set aside the jud....
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....id period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962) shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962 (52 of 1962). (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member. The counsel for the petitioner contended that sub-Section-3 of Section-9C of the Act does not provide any express authority and power or jurisdiction in the tribunal to issue direction to the Union of India for issuing notification extend....
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....ding anti dumping duty would be viewed as fatal and therefore, in order to provide full opportunity and for compliance with the principle of natural justice, the Court is under obligation to issue appropriate direction at times interim direction for preventing any irretrievable situation jeopardizing the entire matter without adjudication. If one looks at from this angle, then one will have no other alternative but to accept the submission of learned counsel for the petitioner that the alternative remedy of appeal u/s.9C of the Act at-least in facts of the present case cannot be said to be so efficacious as to dissuade this Court from entertaining the petition and relegating the parties to the appellate forum. 15. In the case of Designated Authority Vs. Sandisk International Limited reported in (2018) 3 SCC 402, the Supreme Court has held and observed in para-6 as under:- "6. Though we would not deem it appropriate to lay down any inflexible proposition of law that in no case the final findings of the Designated Authority can be subject to challenge under Article 226 of the Constitution of India, we are of the view that in the facts of the present case the High Co....
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....clusions on the basis of the essential facts are to be recorded in the final findings, viz., whether or not on the basis of such facts definitive measures are required to be applied. The contention that the disclosure statement is in the nature of a draft order, therefore, does not merit acceptance, inasmuch as, a draft order would also contain conclusions on whether or not definitive measures are required to be applied. 32. The next question that arises for consideration is whether or not the essential facts have been disclosed in the disclosure statement. 32.11 Thus, the designated authority has taken into consideration the aforesaid factors while coming to the conclusion as to whether or not definitive measures are required to be applied. In this regard, it may be noted that the designated authority has not disclosed the details of dumping margin calculations to the petitioner, viz., the difference between the Export Price and Normal Value. The designated authority has not disclosed the basis for determining Normal Value and Export Price and has also not disclosed the methodology and computation. The designated authority has considered the value of Cost of Sale....
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....a the table contains asterisks which would indicate that such information is confidential. While it is true that the such information being confidential in nature, cannot be disclosed in the disclosure statement itself, it appears to be the general practice to provide the same to the parties separately. However, in the facts of the present case, despite the fact that the information has been furnished by the domestic industry itself, the computation of the various factors referred to hereinabove, has not been furnished to the domestic industry. In the opinion of this court, it was incumbent upon the designated authority to furnish the relevant facts which have been used by it as the basis for arriving at its conclusion on the essential facts necessary for the purpose of arriving at a decision as to whether or not the definitive measures are required to be applied. Non-disclosure of the essential facts is, therefore, clearly in breach of the principles of natural justice. 33.7 Thus, though most of the factors which are required to be taken into consideration for the purpose of determination of injury, namely, increase in volume, increase in dumping, increase in margin of du....
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....into consideration the capacity of production of the domestic industry; and instead of taking into consideration the existence of inventories of the dumped imports that could meet any increase or future demand for the imports, has taken into consideration the inventories of the domestic industry. Evidently therefore, the designated authority has failed to follow the procedure laid down under clause (vii) of Annexure-II to the rules for the purpose of determination of threat of material injury in the manner prescribed thereunder. 17.1 In the case of Reliance Industries Limited Vs. Designated Authority (supra), the Supreme Court has held and observed in paras-41, 43, 44 and 45 as under:- "41. The DA claimed confidentiality from the appellant about its finding on the data supplied by the appellant itself. In our opinion, there was nothing confidential in the mater, and hence reasons for not accepting the appellant's version should have been stated in the order of the DA. 43. In our opinion, Rule 7 does not contemplate any right in the DA to claim confidentiality. Rule 7 specifically provides that the right of confidentiality is restricted to the party who has supp....
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....ied is required to be kept confidential has to be considered on a case-to-case basis. It is for the Designated Authority to decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the Appellate Authority, namely CEGAT to look into the relevant files." 45. In our opinion, excessive and unwarranted claim of confidentiality defeats the right to appeal. In the absence of knowledge of the consequences, grounds, reasoning and methodology by which the DA has arrived at its decision and made its recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or this Court. This is contrary to the view taken by the Constitution Bench of this Court in S. N. Mukherjee case. 17.2 In the case of Union of India Vs. Meghmani Organics Limited (supra), the Supreme Court has held and observed in paras-14, 15, 16 and 19 as under:- 14. Elaborating his points further, learned senior counsel for the Union of India submitted that the very opening sentence of above quoted para 43 lays down an incorrect proposition of law that Rule 7 does not ....
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....ignificant advantage to a competitor or would have significant adverse effect upon the person supplying the information or his resource person from whom he acquired the information. The submission that DA is entitled to presume such effects without any claim being made by the party supplying the information is, however, not acceptable for reasons more than one. The examples are clearly meant to be only a guiding factor for the DA who cannot by exercise of discretion presume confidentiality and thereby restrict the rights of the interested parties to see relevant informations that may be used by the DA for the investigation. The DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of Rule 7 and to claim as well as accept on information to be confidential. 16. The other reason is provision of appeal under Section 9C of the Act. The appeal provided is 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. It is one thing to use confidential information for the purpose of investigation on account of statutory provisions and not c....
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....gs based upon information supplied by the same party who was aggrieved by non-supply of the findings. The observations in Reliance Industries case must be understood in the fact situation of that case in view of well established proposition of law that the ratio decidendi consists in the reasons formulated by the court for resolving an issue arising for determination and not in what may logically appear to flow from observations on non issues. Reference in this regard may be made to law enunciated on this point by a Constitution Bench, in paragraph 20 of the judgment in the case of Krishena Kumar v. Union of India & Ors. [7] In the given facts, the observations in paragraph 43 in the case of Reliance Industries are fully justified and do not require any review. We are in agreement that Rule 7 does not postulate that the DA can claim confidentiality and that too not in respect of any information supplied by a party but in respect of its reasons or findings derived from information supplied by the same very party. 17. Considering the matter on merits, it is required to be noted, at this stage, that the submissions advanced on behalf of the petitioners, which have been set ou....
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....e volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, collectively account for more than seven per cent of the import of the like product; or (e) xxxx xxxx xxxx Thus, according to Rule 14(d), the percentage has been given in the import of the like product. Now, admittedly, in view of para-62 at page No.265, the imports are 5.84% which is above the insignificant import as per Rule 14(d). Thus, the observations made by the DA is misreading of the facts and the DA has not properly appreciated this very observation while reaching in the conclusion in Final Finding and this fact is corroborated from the Final Finding itself. 19. It also appears from the record that the authority has made observations regarding likelihood of substantially increased dumped exports to Indian market, taking into account the availability of other export markets to absorb any additional exports from paragraph Nos.85, 90, 91, 92 and 93 at page Nos.273 to 277 and has specifically observed therein that - (I) Considering the capacity utilization and export orientation of the responding produc....
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....x xxxx (di) it determines the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, collectively account for more than seven per cent of the import of the like product; or (e) xxxx xxxx xxxx Thus, according to Rule 14(d), the percentage has been given in the import of the like product. Now, admittedly, in view of para-62 at page No.265, the imports are 5.84% which is above the insignificant import as per Rule 14(d). Thus, the observations made by the DA is misreading of the facts and the DA has not properly appreciated this very observation while reaching in the conclusion in Final Finding and this fact is corroborated from the Final Finding itself. 21. It also appears from the record that the authority has made observations regarding likelihood of substantially increased dumped exports to Indian market, taking into account the availability of other export markets to absorb any additional exports from paragraph Nos.85, 90, 91, 92 and 93 at page Nos.273 to 277 and has specifically observed therein that - (I) Considering the capacity utilization and export....
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....jury if ADD is not extended. The ADD is required to be imposed so long as the investigation shows that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury. 24. The submission of Mr.Desai, learned advocate for respondent No.2 so far as it relates to the stand that DGCIS is not a public domain and everybody cannot have accessed to its data is concerned, the same is devoid of merits. Even if there is fee for charge is recovered, the persons who access such site of DGCIS then in that case also, it cannot be treated as a private or confidential data. Whenever any information is made available on website by any particular entity then it will amount to available on public domain which has been recorded by the DA from the data of DGCIS is also a breach of Rules and there is detailed information given to the petitioners herein. 25. It appears from the record that after Disclosure Statement, the petitioners herein have sought certain informations which are not confidential in nature, which have not been supplied by the DA to the petitioners and thus, there is also breach of principles of natural justice. Considering the facts narrated in the....
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....the Final Findings. This submission is devoid of merits. Had there been real intention of the legislature that nothing is required to be done after passing the Disclosure Statement, then the Act and Rules might have provided that the same may be treated as Final Findings. It is an admitted fact that after Disclosure Statement, the concerned parties are invited to submit their submissions and, thereafter, the Final Finding has to be arrived at. It shows that it is the duty of the concerned authority to eventuate, examine and appreciate the material placed by the concerned parties, which have been submitted by them after Disclosure Statement, in its proper perspective and, thereafter, the authority has to pass final finding order. This course has to be adopted with a view to afford proper opportunity to all the parties and to evaluate, examine and appreciate the material supplied by the concerned parties to the DA regarding Disclosure Statement and after making such exercise by DA, necessary Final Finding may be arrived at by DA either to positive opinion or negative one continuation. 28. The law in respect of the final findings and its justiciability is no more res-integra and on....
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.... are rendered. 31. In view of the aforesaid discussion, the petition is allowed. The impugned final findings dated 29.01.2019 are hereby quashed and set aside. ============= Document 1 Name of Name company (Producer) company (Exporter) (POI) of the CNV NEP Dumping DM % Range US$/ US$/ margin MT MT US$/MT M/s.Anqiu Lu An|M/s.A.H.A. Pharmaceutical Co., Ltd. International Co., Lianyungang Kangle Pharmaceutical Co., Ltd. Ltd. China Sinopharm International Corporation Zhejiang Chemicals Import and Export Corporation Zhejiang Kangle Pharmaceutical Co., Ltd. Jiheng Hebei (group) Pharmaceutical Co., Ltd. *okok жово жорож 0-10 жоро жорож 0-(10) *okok жож *ook kokk 10-20 52. The dumping margin during the POI for all exporters/producers from the subject country has been determined as provided in the table below:- Determination of Dumping Margin a) Comparing the normal value and export price at ex-factory level for the country as a whole, the dumping margin for ....