AI Drafter 
TaxTMI 
TaxTMI 
2020 (2) TMI 482
X X X X Extracts X X X X
X X X X Extracts X X X X
....2. 3. One of the raw materials used by the petitioners for manufacturing the aforesaid products is melamine. According to the petitioners, the total demand for consumption of melamine in India is approximately 60000 MT per annum, whereas, the installed production capacity of melamine is limited approximately to 15000 MT per annum. In order to bridge the gap between the production capacity and the demand, melamine is required to be imported and it is so imported from various countries included in the European Union, Indonesia, Iran, Japan and People's Republic of China (in short China) amongst others. 4. In this writ petition, the petitioners are aggrieved by the imposition of anti dumping duty (ADD) on the import of melamine from the aforesaid countries. The notification No. 14/35/2010-DGAD dated 01.02.2012 containing the final findings recommending imposition of ADD for the import of melamine from European Union, Indonesia, Iran and Japan, as well as the notification No.15/17/2014-DGAD containing the final findings sun set review recommending extension of imposition of ADD for import of melamine from China and the notification No. 7/14/2017-DGAD dated 22.09.2017 containing t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....melamine both from the countries under the European Union, Indonesia, Iran and Japan as well as that of China, were made on an application made for the purpose by the intervener Gujarat State Fertilizer Corporation (GSFC). The petitioners are aggrieved to the extent that the designated authority while arriving at the final findings submitted for the purpose had not followed the prescribed procedure under the Customs and Tariff Act, 1975 (CTA 1975) as well as the Anti-dumping Duty on Dumped Articles and for Determination of injury) Rules, 1995 (ADR 1995). 10. The provision for imposing ADD on dumped articles is provided u/s 9A of the CTA 1975, which provides that where any article is exported to India by an exporter or producer from any other country or territory, commonly referred as the exporting country, at a price less than its normal value, the Central Government may by notification in the official Gazette impose an antidumping duty not exceeding the margin of dumping in relation to such article. For the purpose, an explanation is provided that the margin of dumping means the difference between the export price and the normal price, where again export price means the price o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dance with the rules made under subsection (6); or(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6) : Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin." 11. The very provision that the ADD can be imposed only upon the condition precedent that an article is exported from an exporting country to India at a price less than its normal value, where normal value is the comparable price in the exporting country for its own domestic consumption, the most relevant requirement for imposing ADD would be to first determine the normal value of the article in the exporting country and thereupon determine the price at which such article is exported in the exporting countr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... CTA 1975 provides that in respect of a dumped article, if the Central Government after enquiry is of the opinion that there is a history of dumping which had caused injury or that the importer was or should have been aware that the exporter practices dumping and that such dumping would cause injury and the injury is caused by massive dumping of an article imported in a relatively short period of time and which in the light of the timing and volume of the imported dumped is likely to seriously undermine the remedial effect of ADD, the Central Government by notification may levy ADD retrospectively from a date prior to the imposition of the ADD under Section 9A(2), but not beyond 90 days from the date of the notification under Section 9A(2). In other words, a retrospective ADD can also be imposed in case of massive dumping in a large volume within a very short period of time so as to offset the remedial effect of ADD imposed under Section 9A(2), that is imposition of ADD on the basis of a provisional estimate. 16. Section 9A(4) provides that the ADD chargeable under Section 9A would be in addition to any other duty imposed under the CTA 1975 or any other law for the time being in....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... The provisions of Section 9A(6) are as follows:- "The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the central Government, after such inquiry as it may consider necessary and the Central government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such reles may provide for the manner in which articles liable for any antidumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty. The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6) shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer: (6A) Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... dated 13.05.2001, Notification No.1/2002-Cus. (N.T.) dated 04.01.2002, Notification No.101/2003-Cus (N.T.) dated 10.11.2003, Notification No.15/2011-Cus (N.T.) dated 01.03.2011, Notification No.86/2011-Cus (N.T.) dated 01.12.2011 and Notification No.6/2012-Cus. (N.T.) dated 19.01.2012 had framed a set of Rules called the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (which had already been referred as ADR 1995). 25. Rule 2(b) of ADR 1995 defines 'domestic industry' to mean the domestic producers as a whole engaged in the manufacture of the article concerned and any activity connected therewith, except when such producers are related to the exporters or the importers of the alleged dumped article or are themselves importers thereof and in such event the term domestic industry would refer to the rest of the producers who are either not related to the exporters or importers or are themselves not importers of the article concerned. Explanation (i) & (ii) to Rule 2(b) clarifies that a producer shall be deemed to be related to the exporters or importers if, (a) one of them directly or ind....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt of any article and thereupon to identify the article liable for ADD. (ii) To determine the normal value, export price and margin of dumping of the articles under investigation and also the injury or threat of injury to an industry established in India consequent upon such import. (iii) To recommend the amount of ADD. (iv) To review the need for continuance of ADD. 30. As defined under Sections 9A(1)(c), 9A(1)(b) and 9A(1)(c) respectively of CTA 1975, the normal value would mean the price of the article under investigation when destined for consumption in the exporting country, the export price would mean the price at which the article under investigation is being exported and the margin of dumping would mean the difference between the normal value and the export price of the article under investigation. Accordingly, while discharging its duties under Rule 4 of ADR 1995 it would be imperative for the designated authority to determine the normal value of the article under investigation in the exporting country and also the export price at which the article is exported by the exporting country and in the absence of any such proper determination, the ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cess of undertaking the review apart from being a procedural requirement, in our view would also be substantive requirement. 34. The provision of Rule 4 of ADR 1995 are as follows: "Duties of the designated authority. - (1) it shall be the duty of the designated authority in accordance to import of any articles a. to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; b. to identify the article liable for anti dumping duty; c. to submit its finding, provisional or otherwise to Central Government as to - (i) normal value, export price and the margin of dumping in relation to the article under investigation, and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. d. to recommend to the Central Government - (i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tiate an investigation pursuant to an application made under sub-rule (1) unless - (a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like produce, that the application has been made by or on behalf of the domestic industry: Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the link article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation. - for the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. The notice calling for the information would be deemed to have been received one week from the date on which it was sent by the designated authority. Furthermore, under Rule 6(5) the designated authority shall also provide opportunity to industrial users of the article under investigation and the representative consumer organizations in cases where the article is commonly shown at the retail level, to furnish information which would be relevant to the investigation regarding dumping, injury where applicable and casuality. The evidence presented by one interested party to the designated authority shall be made available to the other interested party participating in investigation and in the event an interested party refuses or otherwise does not provide the necessary information within a reasonable period or significantly impedes the investigation, the designated authority may record its findings on the basis facts available to it and make the recommendation to the Central Government. 38. The essential requirements of Rule 6 of the ADR 1995 can be culled out to be as follows: 1. There shall be public notice by the designated authority notifying the name of the coun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ne the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is bases; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views knows. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to- (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rement providing the copy of the application under Rule 5(1), Rule 6(7) which pertains to making available the evidence provided by one interested party to the other interested parties, Rule 12(2) which pertains to issuing a public notice containing the preliminary findings, Rule 15(4) which pertains to intimating the acceptance of an undertaking by any exporter and suspension of termination of the investigation and Rule 17(4) which pertains to the requirement of issuing a public notice by the designated authority containing the final findings, the copies of the applications of the domestic industry received under Rule 5(1) or any information provided to the designated authority on a confidential basis by any of the parties in course of the investigation shall, upon the designated authority being satisfied as to its confidentiality, be treated by the designated authority to be confidential and no such information upon being satisfied to be confidential be disclosed to any other party without specific authorization of the party providing such information. Rule 7(2) again requires that the Designated Authority may require the parties providing information on confidential basis to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 7(3)provides that notwithstanding the requirement of furnishing a non confidential summary, if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosures in a generalized or summary form, such information over which confidentiality is requested is to be disregarded. 43. It is a clear provision of Rule 7 of ADR 1995 read as a whole that the party requesting for confidentiality either satisfies the designated authority as regards the claim for confidentiality, for which the designated authority would be required to record its satisfaction. If such satisfaction is not arrived at by the designated authority, the information over which request for confidentiality was made would not be treated to be confidential. On the other hand, if the designated authority arrives at a satisfaction as regards the acceptance of the claim for confidentiality, the supplier of the information would be required to provide a non confidential summary in a generalized or a summary form of such information which had been accepted to be confidential. 44. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1995 are as follows: "Accuracy of the information. - Except in cases referred to in sub-rule (8) of rules 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are bases." 48. Rule 8 of the ADR 1995 provides that the designated authority in course of its investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based. 49. The provisions of Rule 6(2) of the ADR 1995 requiring the copy of the public notice to also be forwarded to the interested parties, the provisions of Rule 6(6) requiring the designated authority to allow an interested party to orally present any such information which may be relevant to the investigation and if taken into consideration to be subsequently reproduced in writing, the provisions of Rule 6(7) to make the evidence of one interested party made available to the other interested parties and the provisions of Rule 8 requiring the designated authority to satisfy itself as regards the accuracy of the information supplied by the interested parties, o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inciples set out in Annexure-2 to the ADR 1995. 53. Upon determining the normal value, export price and the margin of dumping and further upon determining the injury or threat to injury that would be caused to domestic industry, including the material retardation to the establishment of domestic industry and the casual link between the dumped imports and the injury, a preliminary finding is required to be recorded by the domestic industry under Rule 12 of the ADR 1995, which amongst others, shall contain the margins of dumping, the injury determination and the main reasons leading to such determination. Rule 12(2) further requires that the designated authority shall issue a public notice recording its preliminary findings. After recording the preliminary findings by the designated authority, the Central Government may impose a provisional duty not exceeding the margin of dumping, but such duty shall not be imposed before expiry of sixty days of the public notice by the designated authority regarding its decision to initiate the investigation, which again may be extended to nine months at the request of the exporters. 54. Rule 14 of the ADR 1995 again provides that the desi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rmination of the injury and further the main reasons leading to the determination of the normal value and the export price and also the injury caused to the domestic industry by the import of the dumped article. 57. The requirement of Rule 16 for the disclosure of the information in our view is also in conformity with the principles of natural justice. As the imposition of the ADD has a direct consequence upon the interested parties, who are also the importers of the dumped article, a disclosure of the information of the essential facts under consideration which formed the basis of the decision of the Designated Authority gives the interested parties an opportunity to present their view if any such essential facts were taken into consideration were otherwise ought not have been taken under the law or in the facts and circumstances of the case or such essential facts taken into consideration were factually incorrect. 58. We have taken note of that in the procedure adopted in the instant case although the designated authority had given an opportunity of hearing to the interested parties/ importers, including the present petitioners, but neither the essential facts taken into co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he dumping which is causing the injury. Rule 23(1A) provides that the designated authority shall review the need for continuing with imposition of ADD, where warranted, on its own initiative or upon a request by any interested party who submits positive information substantiating the need for such review, where a reasonable period of time had elapsed since the imposition of the ADD. But again Rule 23(1B) provides that notwithstanding anything contained in sub Rule 1 or 1A of Rule 23 the ADD levied under the Act shall require effective for a period of five years from the date of its imposition, unless the designated authority upon a review initiated before the expiry of the period of five years, either on its own initiative or a request by or on behalf of the domestic industry, comes to a conclusion that the discontinuance of the ADD at the end of the five years period would lead to a continuation or recurrence of dumping and injury to the domestic industry. 63. Rule 23 clearly provides that ordinarily the period of imposition of ADD would be five years, which can be reviewed by the designated authority prior to the expiry of five years either on its own initiative or upon a requ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....comparison be made at the same level of trade, normally at the ex factory level and in respect of sales made as merely as possible at the same time. 66. Paragraph-7 of Annexure-1 deals with the situation in the case of imports from non market economy countries, where certain countries including China, are named as the non market economy countries. Paragraph-7 provides that for the purpose of the non market economy countries the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such third country to other countries, including India. Paragraph-7 further provides that in a situation where it is not possible to determine the normal value in a non market economy country in the manner indicated above, it may be determined on any other reasonable basis, including the price actually paid or payable in India for the like product, duly adjusted if necessary to include a reasonable profit margin. In the event the designated authority selects a third country for the purpose, which again has to be done in a reasonable manner, the parties to the investigation shall be informed of such selection without any unre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the capacity of the exporter or whether the imports are entering at a price which may cause a depressing effect on the domestic prices. 69. Annexure-3 to the ADR 1995 provides for the principles for determination of the non injurious price. Annexure-3 provides that for the purpose of determining the non injurious price, the designated authority shall determine the fair selling notional price by considering the information or data relating to the cost of production for the period under investigation in respect of the producers constituting the domestic industry and further a detailed analysis or examination and reconciliation of the financial and cost records maintained by the domestic industry are required to be carried out. Annexure-3 specifically provides that the following expenses of the domestic industry shall not be considered while assessing the non injurious price: a) research and development provision other than products specific research as claimed and substantiated; b) the non injurious price is to be determined at ex factory level without including the post manufacturing expenses such as commission, discount, freight-outward etc.; c) e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he application of Article VI of the GATT 1994. It is further stated that the guidelines provided under ADA 1994 and Article 9 of the WTO Agreement assumes significance, relevance and supremacy over any other municipal rules and procedures and the guidelines are followed by the member nations in the event of there being any dispute on the scope, interpretation, understanding and application of the obligations and prohibitions in implementing the (ADD). 73. According to Dr. Saraf, under no circumstance the ADD that may be levied can exceed the margin of actual dumping and that the ADD shall remain in force only for and to the extent to counteract the dumping which is causing the injury. 74. Accordingly, it is the contention of Dr. Saraf that even Section 9A of the CTA 1975 and the provisions of ADR 1995 does not give the discretion to the respondent authorities to impose ADD in excess of what is provided strictly by following the provisions and the procedures prescribed therein. 75. Dr. A. Saraf, learned senior counsel for the petitioners raises a contention that the intervener GSFC, at whose behest the ADD had been imposed for import of melamine is in fact not a domestic in....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of Rs. 60.60 to 1 USD, an anomalous situation has arisen to the effect that when there is a downward movement in the exchange rate of INR, and the ADD is fixed at a given amount in USD per metric ton, the importers of melamine are required to pay a higher amount of ADD in terms of INR and secondly, the import price of melamine also becomes higher in terms of INR. A payment of higher amount for import necessarily implies that the margin of dumping had been reduced, but for such reduced margin of dumping the ADD required to be paid correspondingly became higher. 78. According to Dr. Saraf, learned senior counsel, the procedure that the respondent authorities had adopted in arriving at the normal value of melamine in the exporting country being China, is contrary to the procedure prescribed in the ADD Rules 1995. Dr. Saraf contends that even if China is a 'non-market economy', the criteria to be followed for determining the normal value would have to be as per the provisions of the ADD Rules 1995 and by taking the plea that such information is unavailable or not provided by the exporting country, the respondent authorities cannot adopt a method which would be without any basis and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r be a domestic industry. Similarly, Rule 2(b) of the ADR 1995 provides that the domestic industry means the domestic producers as a whole engaged in the manufacture of the like article or whose collective output of the like article constitutes a major portion of the total domestic production except when such producers are themselves importers of the like article. In other words, the domestic producers who are themselves producers of the like article do not form a part of the domestic industry. The designated authority in the final findings of the sunset review dated 05.12.2015 while accepting the factual situation that the intervener GSFC is also indulging in import of melamine, albeit from countries other than China from which the petitioners are importing, took the view that even though GSFC had imported and sold the subject goods, but the focus of GSFC has not turned to imports and the company is not behaving like an importer trader and on the other hand its focus continues to be that of a trader who does its own production. The said view taken was fortified by arriving at its satisfaction that the behavior of GSFC is even as of now is that of a producer and it has its....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lusion to impose the ADD. But at the same time, even the information provided by the intervener GSFC as regards the normal value of melamine in China had not been revealed by the authorities by taking recourse to Rule-7 of the ADR 1995 which provides for confidentiality as regards the information provided by any party. According to the petitioners, if the ADD had been imposed by accepting the information provided by the domestic industry for arriving at the normal value of the exporting country, the value arrived at cannot remain confidential and be not revealed to the importers who incur the liability to pay the ADD. Such non disclosure of the normal value arrived at by the designated authority would also be arbitrary inasmuch as, the value may be arrived at on a random basis. Secondly, even if it is construed that by invoking the provisions of Clause-7 of Annexure-I the price actually paid or payable in India of the like article is made the basis for arriving at the normal value of a non-market economy country and accept it to be the price of melamine in China, the same cannot be confidential in any manner as the price of melamine in India would be a figure which has to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the effect that it may have on the downstream industries who utilize such article as a raw material. If the domestic industry is enabled to earn a super normal profit by raising the cost of the item in the domestic economy in the guise of availing a protection from imports of item at a price lower than its normal value in the country of export, the same may unduly benefit the domestic industry, but its overall impact on the economy would be detrimental as the downstream consumer industries using the item a raw material would also correspondingly have to the raise the price of its product. Again, ADD is only for the purpose of protecting a domestic industry from an unfair competition due to import at a price less than its normal value and it cannot be a mechanism to prevent the import of such items for giving a monopoly to the domestic industry. If the purpose to impose ADD is to prevent the import of the article concerned, the remedy thereof would be to increase the import duty by invoking the powers under Sections 8A or imposing safeguard duty under Section 8B or imposing countervailing duty under Section 9 of CTA 1975. (d) In the aforesaid circumstance of there ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that the designated authority while arriving at its decision as regards the necessity of imposing ADD merely issues a notice to the importers informing them about the hearing to be taken place, but without providing even the essential facts which were determined and concluded by the authority in course of its investigation and as well as the relevant data thereto along with the facts and figures. In the absence of such information, the importers are unable to give any effective reply resulting in a virtual non-compliance of the principles of natural justice, although in paper, it can be shown that an opportunity of hearing was given to the stakeholders. (g) The petitioners also raise an issue that the mechanism of ADD is to be applied only to mitigate the effects of injurious dumping and not for conferring any superlative gain to the domestic industry by resorting to price fixation and that too by remaining oblivious to the fluctuation in international pricing. Such artificial price fixation resulting in the superlative profit instead of being an anti dumping measure falls within the mischief of unfair competition as provided under the Competition Act, 2002. 81. Per Con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....95 and as such, neither there is any illegality nor there is any arbitrariness in arriving at the normal value of melamine in China. On being asked as to what was the normal value of melamine in China as accepted by the designated authority, and also as to what was the non-injurious price of melamine for the domestic industry, the reply given both by Mr. Rajiv Arora Additional Director General, Foreign Trade Government of India as well as by Mr. B. Sarma, learned standing counsel for the Customs Department is that such information are confidential in nature and are protected under Rule 7 of ADR 1995 and in view of such confidentiality it cannot be disclosed even to the Court. 82. Mr. B. Sarma, learned standing counsel for the Customs Department has also raised a contention that although the intervener GSFC is also involved in import of melamine from some other countries, but as it does not import from it from China, which is the subject country for the purpose of investigation in the notification dated 05.12.2015, therefore, under Rule 2(b) of ADR 1995, it continues to remain a domestic industry irrespective of such import. 83. Mr. A.K. Roy, learned counsel appearing for t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....and effect of dumping of melamine, the writ petition itself is not maintainable and it was for the writ petitioner to avail the benefit of the appellate provision. In this respect it is the further submission of Mr. B. Sharma that section 9C (2) having provided for a period of 90 days within which the appeal referred above can be filed and in the present case all the notifications under challenge in the writ petition being beyond the period of 90 days, the writ petition is not maintainable and secondly, by preferring it the petitioners seek to circumvent its earlier laches in not preferring the appeal within proper time. For the purpose, Mr. B. Sharma refers to the pronouncement of the Supreme Court in NITCO Tiles Ltd. vs. Gujarat Ceramic Floor Tiles Mfg. Assn. and Ors. reported in 2005 (12) SCC 454 wherein while entertaining an appeal against an interim order of the High Court of Gujarat, in paragraphs 3 and 4, it was held that the reason for the High Court to entertain a writ petition against the final findings of the designated authority on the ground that the question raised therein is not only important but also sensitive and affecting the people of the country at lar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....intainable. (b) Mr. B Sarma, learned standing counsel for the Department submits that the non-injurious price arrived at by the designated authority as well as the normal value of melamine in the exporting country China were all arrived at on the basis of the application made by the intervener GSFC under Rule 5(1) of the ADR 1995 and as the information provided therein are confidential information under Rule 7 therefore, such information cannot be provided to the petitioners. According to the learned standing counsel due to the expressed provisions of Rule 7 of the ADR 1995 to keep confidential all such information provided by the domestic industry, i.e., the intervener GSFC, the issue raised by the writ petitioners that the designated authority did not have the required factual materials before it to arrive at the normal value of melamine in the exporting country China as well as the non-injurious price applicable to the intervener domestic industry GSFC, cannot be answered by the Department as well as by the designated authority as the provisions of Rule 7 has an overriding effect and such information cannot be provided even to the Court for its verification as to whethe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s of the CESTAT, as well as the various amendments providing for the concept of domestic industry, a domestic producer does not lose its status of being a domestic industry merely because it may involve itself in some bit of import of the article concerned to augment the domestic production. For the purpose, the following submissions are being made: (a) Mr. AK Roy, learned counsel for the intervener, GSFC by referring to the definition of domestic industry as defined under Rule 2(b) of ADR 1995 submits that the definition of domestic industry prior to the amendment dated 15.07.1999 was as follows: 2(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like articles and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers shall be deemed not to form part of the domestic industry. Subsequently by the notification No.44/1999 dated 15.07.1999, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ring to paragraphs 58 & 62 of Nirma Ltd. (supra) submits that the High Court of Madras had held that the term domestic industry as amended on 27.02.2010 had not taken away the discretionary power of the designated authority. (c) Mr. AK Roy, learned counsel for the intervener, GSFC also refers to the final findings by the designated authority dated 17.02.2012 in respect of import of soda ash from various countries including China wherein in paragraph 44 the following view was taken: i. One of the important factors in this regard is the balance of business of the domestic producer between manufacturing and importing. If the company predominantly manufactures the product in India, it should be included. However, if the domestic producer closes or reduces its production and instead imports the product or the general emphasis of its business shifts from production to imports, it should be excluded. ii. If a domestic producer has shielded itself from the effect of dumping by resorting to imports from or exports to a related party, the company must be excluded. iii. If a domestic producer has participated in some way in the dumping practices or has othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ical meaning should be the person who is carrying all the business of import exclusively for trading purpose is the importer under the said Rule. (f) Based on the aforesaid pronouncements as referred above, it is the submission of Mr. AK Roy, learned counsel for the intervener GSFC that although the GSFC is primarily a domestic producer but on a given circumstance they are required to import some amount of melamine to meet their market requirements and further it is already in the process to expand its production capacity and hence GSFC is a domestic industry inspite of some amount of melamine being imported by it. 87. Based upon the aforesaid submissions of the rival parties and also upon considering the materials that the Court had been taken through, the following core issues are discernible which requires adjudication:- A) Whether the writ petition is maintainable in view of the provisions for appeal under Section 9C of the CTA 1975. B) Whether the information provided by the intervener GSFC in their application under Rule 5(1) of ADR 1995 and at other stages would be held to be confidential under Rule 7 to the extent that even the normal price, ex....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ir views known within the prescribed time limit. The final reports indicate that the known exporters and known importers were provided with the questionnaire on the basis of the names and addresses given by the intervener GSFC in their applications. The final findings dated 05.12.2015 in respect of China also provides that a copy of the non-confidential version of the application on behalf of the intervener GSFC was made available to the known exporters and Embassies/Trade representatives of the exporting countries in accordance with Rule 6.3. 90. The final findings in respect of both European Union and others and China shows that the designated authority provided an opportunity to all the interested parties to present their views orally in a public hearing held on 06.03.2012 in respect of European Union and others and on 28.09.2015 in respect of China. It was further provided that the submissions made by the interested parties were given a consideration by the designated authority wherever found relevant. 91. The period of investigation in respect of the final finding dated 01.06.2012 pertaining to the European Union and others was from 01.04.2009 to 30.06.2010 (for fifteen ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e without any significant profits where the verification of the records showed that there were a marginal profit. 92. In such manner the designated authority by referring to the amended Rule 2(b) of the ADR 1995 as interpreted by the Madras High Court in Nirma Ltd. Vs. St. Gobain Glass India Ltd., arrived at a conclusion that the discretionary power of the designated authority had not been taken away. 93. Accordingly, by taking into consideration the circumstance that the intervener GSFC had not filed the bills of entry for home consumption but had filed it for the purpose of warehousing and that the bills of entry for home consumption were directly filed by its small customers, who are referred as consumers, the designated authority by exercising its discretionary power had arrived at a conclusion that even though the intervener GSFC had imported and sold the subject articles, its focus had not turned to imports and the company is not behaving like an importer trader and its focus continues to be that of a producer engaged in its own production. Accordingly a conclusion was arrived that the intervener GSFC is a domestic industry within the meaning of Rule 2(b) of the ADR ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... provided to the interested parties, including the petitioner No.1, but such opportunity given was ineffective, as well as futile and that the object of Rule 6(6) of giving an effective hearing was not achieved. In the oral hearing so given, the interested parties including the petitioner No.1, were not provided with the information as to the normal value of melamine in the exporting country as arrived at by the designated authority and also the non-injurious price arrived at in respect of the domestic industry, let alone the information in detail as regards the material inputs relied upon by the designated authority to arrive at the normal value and the non-injurious price. The petitioners contend that affording an opportunity of hearing in such manner amounts to requiring a person to give an answer without even putting forth the question which has to be answered. 99. In the Notification dated 01.06.2012, the views of the domestic industry, the views of the exporters, importers and interested parties as well as the result of the examination by the designated authority of such views are stated. a. Some of the relevant views expressed by the domestic industry are as f....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of the imported product during the period of investigation. v) In a situation where the domestic industry is producing several items the designated authority is required to consider only the cost and price of the product under consideration and the cost and price of the other products produced by the domestic industry company should not be taken into consideration. b. Some of the relevant views expressed by the exporter/importer and other interested parties are as follows:- i) The non-injurious price had been arrived on a hypothetical basis without there being any nexus to the actual incidents. ii) The domestic industry is unable to meet the demand for melamine in the country and the gap between the demand and supply of melamine is wide and therefore the gap is required to be filled up. iii) The importers of melamine had not suppressed the actual price of import nor there is a downward trend in the price of melamine in the country because of the imports and, therefore neither any injury is caused to the domestic industry nor the domestic industry is unable to sell its products because of the product being available in the market at a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....owing the dumped imports would be that the GSFC upon producing as per the enhanced production capacity would not find a market due to the dumped imports and it would be unviable for the domestic industry to increase its production if the prices of the product remain unreasonably low. iii) As regards the stand of the exporters, importers and interested parties that the non confidential version of the application is not same as that of the confidential version, the designated authority was of the view that there are lots of steps and discussions involved since filing of the application till the initiation of the investigation and all the relevant information is available on record in the official file. The authority only after considering all the relevant information and after prima facie satisfying itself as to the existence of dumping, injury and a casual link with the import had initiated the investigation. The domestic industry had provided the detailed information regarding the imports made by it and the justification for still considering it as a domestic Industry. iv) As regards the argument that the domestic industry had generated huge profit, the designated....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the constructed normal value of melamine in China at ex-factory level was determined as USD*** per MT (Rs.*** per MT) and that the export price from China was determined as USD*** per MT(Rs.***per MT). 101. From the above, it is determinable that the designated authority had followed a procedure for determining the normal value of melamine in the exporting country China, as well as the non-injurious price of melamine for the domestic industry in India, but the procedure so adopted and also the normal value and non-injurious price would remain confidential and would not be made available. The reason for keeping the normal value and the non-injurious price confidential is that they were arrived at on the basis of the information provided by the domestic industry and therefore, it is confidential under Rule-7 of the ADR 1995. 102. On a pointed query being put to the learned standing counsel for the Customs Department, as well as to Mr. Rajiv Arora, Additional Director General, Foreign Trade, Government of India, who also appeared in person before the Court, it is replied that the normal value of melamine in the exporting countries and its non-injurious price of the domestic i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits." ii) In ABL International Ltd. and Another -vs- Export Credit Guarantee Corporation of India Ltd. and Others reported in (2004) 3 SCC 553 in paragraph-28 it had been held that " However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. ..... And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....elect whether it will proceed with the alternative remedy or with the application under Article 226. .... The pleadings were also complete before the High Court." v) In Himmatlal Harilal Mehta -vs- State of M.P. and Two Others reported in AIR 1954 SC 403 in paragraph-9 & 10 it had been held as follows:- "9. There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226. 10. For the reasons given above, we are of the opinion that the High Court having held that the Explanation II to Section 2(g) of the Act was ultra vires, was in error in dismissing the application on the ground that it was not entitled to relief under the provisions of Article 226 of the Constitution." vi) In State of U.P. -Vs- Mohammad Nooh reported in AIR 1958 SC 86 in paragraph- 10 & 11 it had been held that: "10. ....But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of an inferior court or tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e.g. b furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision? The case of In re Authers referred to in Janardan Reddy case furnishes the answer. 11. On the authorities referred to above it appears to us that there may conceivably be cases- and the instant case is in point- where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it le....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nterference can still be made in favour of the petitioner who had allowed the time to appeal to expire or had not perfected his appeal by not furnishing security etc., as may be required by the statute. iii. Entertainment of an application under Article 226 would also be permissible under the situation where the error, irregularity or illegality touching jurisdiction or the procedure adopted by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision or where the inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conduct the proceeding in a manner which is contrary to the rules of natural justice and all accepted rules of procedure which may offend the sense of fair play of the superior court, even where provisions for appeal or revision may be available. iv. if the High Court is in a position under Article 226 to deal with the matter itself on the basis of the affidavits filed, in a situation where the pleadings were also complete, i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l justice before his application was rejected by the Minister. By virtue of sections 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity. " 110. From the said proposition it can be culled out that if the person who is being subjected to an opportunity of hearing in pursuance of compliance of the principles of natural justice, is not informed about the grounds upon which the proposed action is to be taken upon him, a hearing which may or may not be given to him would not on its own constitute the compliance of principles of natural justice. If the person who is required to answer in course of the opportunity of hearing being given to him is not made known of the reasons which may form the basis of the decision that may be made against him or is not provided with the materials upon which such reasons had been formulated, in our view it would be a futile exercise to merely provide....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 114. When we look at the final findings dated 01.06.2012, 15.12.2015 and 06.10.2017(interim final finding) we notice that in paragraphs 28 & 30 of the final findings dated 01.06.2012, the normal value and the margin of dumping had been shown as "***". Again in paragraph-44(ii) of the said final findings it had been provided that "the normal value has been held confidential for the reason that some of the elements of construction constructed normal value have been taken from the confidential information made available by the domestic industry and therefore, this information have been kept confidential." 115. Similarly in the final findings dated 05.12.2015 in respect of China, in paragraphs-52 and 54, the net selling price and price under cutting as well as the non-injurious price had been shown as "***". In paragraph 32 of the said final findings, the constructed normal value of melamine in the exporting country computed as ex factory level was determined as "US$*** per MT (Rs.*** Per MT)" and in paragraph-34 the net export price was also determined as "US$*** per MT (Rs.*** Per MT)". Consequently, the margin of dumping was also determined in paragraph-35 by showing it as "....
X X X X Extracts X X X X
X X X X Extracts X X X X
....3, 44 and 45 hereinabove. The conclusion of such interpretation is that the provision of Rule 7(1) is not declaratory in nature and on the other hand it is an enabling provision by which any information provided by the domestic industry in their application under Rule 5(1) or by any other interested parties can be claimed to be confidential, subject to the satisfaction and acceptance of such confidentiality by the designated authority. Rule 7(1) does not provide that the entire application of the domestic industry under Rule 5(1) and the information contained therein straightway becomes confidential information merely because the provision of Rule 7(1) had been invoked. Only such portion of the information, which the designated authority is satisfied to be confidential are to be treated as such. Further Rule 7(2) provides that the designated authority may require the party providing the information on confidential basis to furnish a non confidential summary thereof, meaning thereby of such confidential information. Again Rule 7(3) provides that notwithstanding anything contained in Sub Rule 2 i.e. the requirement of providing a non confidential summary of the confidential informati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....value, export price, margin of dumping and the non injurious price of the domestic industry. If we again look at the provisions of Section 9A(1) of the CTA 1975, the very jurisdiction and authority to impose ADD would be available when an article is exported by an exporter or producer from any country or territory to India at a price less than its normal value and such ADD shall not exceed the margin of dumping, where margin of dumping means the difference between the normal value and the export price. Therefore, in order to impose ADD all the three parameters i.e. normal value, export price and margin of dumping would have to be determined and such determination be disclosed to the interested parties. The whole requirement of disclosing the normal value, export price, margin of dumping and the non injurious price to the interested parties before the submission of the final findings would be that the interested parties upon such disclosure may express their views as to whether the determination by the designated authority was done in a correct manner. 122. We again take note that Rule 7(1) does not begin with the non obstante clause with regard to Rule 16, meaning thereby, that ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of the writ petition, contentions were raised by the writ petitioners that all the material facts that were made available in course of the investigation by the designated authority for arriving at the normal value of melamine in the exporting country, particularly China, were not taken into consideration. In reply to such contention, Mr. Rajiv Arora, Additional Director General, Foreign Trade, Govt. of India had made a statement that the authorities in China were highly uncooperative in providing any kind of information as regards the normal value of melamine in that country and, therefore, the normal price of melamine in India was accepted to be the normal value of melamine in China and such procedure adopted is an accepted procedure under paragraph 7 Annexure-1 to the ADR 1995. To the statement of Mr. Rajiv Arora, Dr. A Saraf, learned senior counsel for the petitioner by referring to provisions of Rule 6(8) of the ADR 1995 contended that such procedure to rely upon the normal price in India can be resorted to only when the interested parties, which also includes the importers, refuses to provide the necessary information within a reasonable period of time. 127. Accordingly by....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is for finding out the normal value. 15. With respect, we are unable to accept this finding of the Tribunal. From a careful reading of Section 9A of the Tariff Act and Rule 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the Investigating Authority. On the contrary, a perusal of the said provisions clearly shows the 'normal value' will have to be determined with reference to comparable price, the word "comparable price" in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. By holding anti-dumping duty to be exporter specific, the tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute. It is to be noticed that the statute has given much wider power to the Investigating Authority than what is understood by the Tribunal which is evidence from the language of Section 9A(1)(C)(i) of the Tariff Act and Rule 6(8) of the Rules. As noticed hereinabove, Rule 6(....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he exporting country is computed as per Section 9A(1)(c) of the CTA 1975 and this normal value is exporters' specific and is based on the data provided by them in accordance to the requirements of ADR 1995. It was further stated that any other interested party cannot proxy or file data on behalf of any producer/exporter for arriving at a specific normal value for that exporter and therefore, the writ petitioners in the instant case, have no locus standi for claiming a normal value of a non-cooperative exporter and further that a mere participation of one or many importers without there being any cooperation from the producers/exporters of the exporting countries, does not preclude the respondent authorities to apply the provision of Rule 6(8). It is the further stand in the affidavit that if the plea of the petitioners is accepted then a mere participation of one of the interested parties will preclude the respondent authorities from applying the best facts under Rule 6(8) and thereby make the Rule otiose. 132. For the purpose of convenience, paragraph 8 of the affidavit dated 04.10.2018 is quoted below: "8. The locus standi of various interested parties is different....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... 134. The Supreme Court in paragraph 15 of the judgment in M/s. Haldor Topsoe (supra) disagreed with the finding of the Tribunal and arrived at a conclusion that under Section 9A of CTA 1975 and Rule 6 of ADR 1995, there is no such restriction on the designated authority and further that the said provisions shows that the normal value will have to be determined with reference to comparable price of similar articles sold under similar circumstances. Accordingly, the Supreme Court took the view that by holding anti-dumping duty to be exporters' specific, the Tribunal could not have restricted the scope of the investigation only to the materials to be produced by a party against whom an investigation is being conducted. A further finding of the Supreme Court is that Rule 6(8) of the Rules specifically empowers the designated authority to record its findings on the basis of facts available to it in cases where an interested party refuses access or otherwise does not provide the necessary information to it. 135. In Shenyang Mastsushita S Battery Co.Ltd. (supra) in paragraph 7, it was held that paragraph 7 of Annexure-1 to ADR 1995, provides for the determination of normal value w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....first method of obtaining the information from the selected third country and straightway resort to the method of determining the normal value in the exporting country on the basis of the price paid for the like article in India. 138. Consequent thereof, the stand of the respondents in the affidavit dated 04.10.2018 in paragraph 8 that the normal value is exporters' specific to be based on the data provided by the exporters/producers from the exporting country and any other interested party cannot proxy or file data on behalf of any producer/exporter for the purpose of determining the normal value for the exporter is unacceptable. Consequently, the stand of the respondents that the petitioners in the present petition have no locus standi to provide for any information is also incorrect. 139. The said view is further fortified from the provisions of Rule 8 of the ADR which provides that except in cases referred in Rule 6(8) i.e., where an interested party refuses excess or otherwise does not provide the necessary information within a reasonable period, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplie....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the exporting country or the exporter, which in fact is the requirement of ADR 1995. 144. From the procedure adopted by the designated authority as well as the stand of the respondents in the affidavit dated 04.10.2018 and also from the oral submissions made on behalf of the respondents, it can be inferred that according to the respondent authorities the concept of imposing ADD is a beneficial provision made in favour of the domestic industry and therefore, the requirement of levying the ADD has to be looked into only from the perspective of the domestic industry and all such information that the interested party may provide would have to be looked with a suspicion as if such information had been provided only with the intention to avoid imposition of the ADD. In paragraph 17 of the final findings dated 05.12.2015, it was provided that the domestic industry requested that the price as per the China customs or the price of imports under advance license be adopted and to support their argument the domestic industry relied upon an alert circular of the DRI wherein, it was provided that certain trader importers were declaring a higher value than the actual import value. It is a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bitrary against the interested party importers. 147. Without a proper satisfaction being arrived at as to the correctness of the information provided by the domestic industry and the interested party and accepting the information provided by the domestic industry to make it the basis to arrive at the normal value, export price and the margin of dumping as well as the non-injurious price, a decision to impose ADD would be counter-productive and it may not satisfy the existence of the basic ingredients for imposing the ADD as provided under Section 9A of the CTA 1975. 148. Considering the procedure adopted by the designated authority in not making all the possible efforts to arrive at a correct determination as regards the normal value, export price and the margin of dumping as well as the non-injurious price, more particularly, in discarding such information that may be provided by the interested parties without even arriving at a satisfaction as to its correctness, we are of the view that the procedure adopted would not only be contrary to the provisions of Rules 6(8) and 8 of the ADR 1995, but would also be discriminatory and arbitrary. F) Whether the intervener GSFC in v....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hemselves importers of such article. In the instant case it is the contention of the petitioners that the intervener GSFC, for the purpose of marketing of melamine, also does import a part thereof apart from producing it by itself. Accordingly, as the intervener GSFC also indulges in import of melamine, therefore, according to the petitioners, as far the definition of domestic industry under Rule 2(b) of ADR 1995, the intervener GSFC is not a domestic industry. If the intervener GSFC is not a domestic industry, no initiation of a proceeding at its behest can be initiated under Rule 5(1), nor can it suffer any injury for the purpose of determining the non-injurious price. 151. The respondents, including the intervener GSFC, on the other hand, takes a stand that its primary activity, amongst others, is production of melamine but in order to meet the shortfall in its production so as to satisfy the demand of its customers, import of some amount of melamine at times is also being indulged upon. It is the further contention that almost Rs. 7000 crores had been invested by the intervener GSFC to increase its production capacity and till such increase in the capacity do materialize, so....
X X X X Extracts X X X X
X X X X Extracts X X X X
....C had provided the service of its warehousing facility to facilitate the imports made by its consumers and therefore, it had filed the bills of entry only for the purpose of warehousing and for the purpose of home consumption the bills of entry had directly been filed by the consumers for whom the imports were made. The other inference that can be drawn is that as the intervener GSFC had not imported the subject goods from the subject countries, meaning thereby it had imported the subject goods from some other country, therefore, it is not an import. 157. With regard to the first reasoning that the bills of entry for home consumption were filed by the consumers directly and therefore, it is not an import by the intervener GSFC, we are of the view that such a stand is a little fallacious. If the consumers by virtue of directly filing the bills of entry for the home consumption are to be construed as individual and separate imports unconnected with the intervener GSFC, we can accept that GSFC is not indulging in any import and therefore, by virtue of its production of the article concerned continues to be a domestic industry for the purpose. But in such event the imports made by t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t country alone. 161. In this respect as to whether the designated authority has a discretion even to include a domestic producer indulging in imports to be included as a domestic industry, the respondent GSFC relies upon a decision of the High Court of Madras rendered in Nirma Limited -Vs.- Saint Gobain Glass India Limited and others reported in 2012 SCC Online Mad 1751. After discussing the various provisions of the law the Madras High Court had arrived at a conclusion that the various amendments to the term domestic industry had not taken away the discretionary power of the designated authority. 162. We are not taking a view different from the Madras High Court as regards the discretionary power of the designated authority. But again when we refer to a discretionary power, the same again has to be an exercise of a discretion and exercise of a discretion cannot to be an extent that the result thereof be either arbitrary or it would violate the provisions of Article 14 of the Constitution of India. 163. Accordingly, in the facts and circumstance of the present case whether the intervener GSFC would continue to remain a domestic industry in spite of being indulging in impo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the CTA 1975. H) On the question of maintainability of the writ petition 166. In paragraph 108 herein above, the propositions as regards the maintainability of the writ petition in a situation where an alternative remedy is available in the form of an appeal had been culled out. Amongst the relevant circumstances whose presence may justify the entertainment of a writ petition under Article 226 of the Constitution of India in spite of the existence the provision for an appeal, are violation of the principles of natural justice, procedure adopted by the authorities is discriminatory and arbitrary, the question of law requires an interpretation, a constitutional issue is also involved and the pleadings are complete and the issues raised can be decided on the basis of affidavits, etc. 167. In the instant case as concluded herein above, the procedure adopted by the respondent authorities including the designated authority did also include the question of violation of the principles of natural justice, it being discriminatory and arbitrary, there is also a question of violation of Article 14 of the Constitution, as well as interpretation of the relevant provisions of Rules 7....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rmal value or the export price or the margin of dumping or even the noninjurious price of the domestic industry shall remain confidential to the extent that it will not be revealed at all to any one at any stage, but the ADD would be imposed. As already interpreted Clause 16 requires that the designated authority before giving its final findings to inform all interested parties of the essential facts under consideration which form the basis of its decision. The essential facts in our view would constitute those facts which forms the basis of the decision that the designated authority may arrive at, where such decision would also include the decision to impose the ADD and the determination of the essential parameters thereof i.e. the normal value, export value and margin of dumping or even the non-injurious price. We may again add that the requirement of Rule 16 are not subjected to the confidentiality clause of Rule 7, where although Rule 7 begins with a non obstante clause, but such provision of it being not notwithstanding to relate only to Rules 6(2), 6(3), 6(7), 12(2), 14(4) and 17(4) and the non obstante provision does not include Rule 16. 170. It had also been brough....