TaxTMI 
TaxTMI 
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2020 (2) TMI 1213
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....ing Respondent Nos.1 and 2 their servants and agents from taking any action pursuant to initiation Notification No.14/35/2015-DGAD dated 01.06.2016 ; (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to restrain the respondents, their servants and agents from, taking any further action against the petitioners pursuant to initiation Notification No.14/35/2015-DGAD dated 01.06.2016 ; (D) An ex-parte ad-interim relief in terms of para (C) above may kindly be granted ; (E) Any other further relief as may be deemed fit in the facts and circumstances of the case may also be granted." Thus, what is essentially under challenge is the Notification No.14/35/2015-DGAD dated 01.06.2016 issued by respondent no.2, alleging that the same is without authority of law, contrary to the Act and the Rules and based on assumptions and presumptions, without any basis and without examination of preconditions of initiation of a valid investigation. 2. The facts in brief as could be gathered from the memo of the petition deserve to be set-out as under :- 2.1 The petitioner Company is engaged in the business of manufacture of various chemicals and has a fa....
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.... Rules for self imports. The respondent no.3 himself is one of the importers of the subject goods and therefore could not have claimed to be domestic industry in terms of Rule 2(b). The determination in this connection in the impugned initiation notification is in the nature of conclusion without recording reasons for the same and without recording quantum, nature and circumstances regarding such imports to exercise alleged discretion that is being claimed to be vested in respondent no.2 in some other past cases. 2.4 It was further contended by the petitioners that the fraudulent claims of support by other domestic producers were made by the respondent no.3 to mislead respondent no.2, who has, without examining details of total production in India and without seeking details of support or opposition to the application, proceeded to initiate the present investigation on unverified claims of the respondent no.3. The investigation was opposed by majority of the producers in India, despite such opposition to the application, the investigation is being continued and therefore is without jurisdiction. 2.5 It is further contended that an initiation notification similar to a show cause n....
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....dent nos.1 and 2 herein, and impugned initiation notification No.14/35/2015-DGAD dated 1st June 2016, the petitioners are constrained to approach this Court by way of present writ petition. 3. Shri Mihir Joshi, learned senior counsel for the petitioners submitted that the respondent no.2 grossly erred in initiating the impugned investigation, as the current investigation is without jurisdiction inasmuch as respondent no.3 does not have the requisite standing to file the application as they fail both the 25% and 50% tests for eligibility as mandated under Rule 5(3) of the Anti-dumping Rules and the respondent no.3 does not account for a major proportion of the total domestic production as envisaged under Rule 2(b) of the Rules. He further submitted that the respondent no.2 has failed to appreciate the fact that the impugned investigations are without jurisdiction, as the respondent no.3 could not have been considered as an eligible domestic industry in terms of Rule 2(b) of the said rules. 4. Learned counsel for the petitioners submitted that the respondent no.2 has failed to appreciate that the impugned investigations are fundamentally flawed as the initiation proposes to investi....
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....een filed by or on behalf of the producers accounting for the major proportion of the total domestic production in the country. 6. Learned counsel for the petitioners submitted that the respondent no.2 failed to appreciate that the respondent no.3 fails the mandatory 25% test also in terms of Rule 5(3). It is further submitted that the investigations ought to have been terminated forthwith once it had sufficient controvertible information that the respondent no.3 had failed both the mandatory tests of standing as well as that of Domestic industry, specifically when the respondent no.3 deliberately suppressed the information about the total production of other producers of Refined Naphthalene. The respondent no.3 brought the issue of captive consumption for the very first time only after the petitioners brought to the notice of respondent no.2 about the existence of major producers engaged in the production of Refined Naphthalene for their own consumption and with the objective of getting investigations initiated, such information was withheld by the respondent no.3 at the time of the initiation of investigation. 7. It is submitted that the respondent no.2 erred in not appre....
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....r 2012-13 to 114 (Indexed) in the POI; profit per unit declined from negative 1579 (Indexed) in the year 2012-13 to negative 332 (Indexed) in the POI; cash losses of negative 102 (Indexed) turned to significant cash profit of 49 (Indexed) in the POI; PBIT of negative 129 (Indexed) turned significantly positive of 64 (Indexed) in the POI and ROCE of negative 162 (Indexed) turned significantly positive of 55 (Indexed) in the POI. 9. It is further submitted that the respondent no.2 failed to adhere to the basic principles of natural justice inasmuch as it failed to provide the petitioners with the complete details of the application in the format issued by respondent no.2 which included soft copy of the Transaction- wise import data in MS Excel format; purchase policy, sales policy, store accounting policy, quality control policy; qualities of captive consumption for the POI and 2011-12 and quantitative injury information separately of Crude and Refined Naphthalene. 10. Learned counsel for the petitioners further submitted that the respondent no.2 failed to decide the basic issues of jurisdiction upfront despite repeated reminders particularly in view of the fact that there are evid....
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....on, can prefer an appeal against the notification of Central Government in Anti- Dumping matters lies before CESTAT the appellate tribunal as provided under the Act. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone. C. The Hon'ble Supreme Court of India in case of Nivedita Sharma Vs. Cellular Operators Association of India and others, (2011) 14 SCC 337, has been pleased to noticed that when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. The Hon'ble Supreme Court further noticed the previous decisions of the Hon'ble Supreme Courts wherein the Hon'ble Court adverted to the rule of self- restraint that writ petition will not be entertained if an effective remedy is available to the aggrieved person. D. The Hon'ble Apex Court recently in case of Union of India Vs. Shri Kant Sharma, reported in 2015 (0) AIJEL-SC 56294 (2015 (6) SCC 773) has been pleased to consider the said judgment of Nivedita Sharma along with the other such judgments and has been pleased to observe as under :- "34. T....
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....and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995. Initiation notification is merely the commencement of the process to inquire into the factual position so as to enable the respondent no.2 to gather essential facts for the purpose to ultimately deciding whether or to impose nor not definitive measures. G. It is submitted that all contentions raised by the petitioner no.1 before the respondent no.2 including with respect to its jurisdiction and the status of the Domestic Industry, are yet to be decided. The respondent no.2 is yet to issue a Disclosure Statement under Rule 16 of the said Rules, which would contain the essential facts for the interested parties to offer their comments and thereafter Final Findings under Rule 17 of the said Rules, recommending either imposition of duty or terminating the investigation by accepting the contentions of the petitioner no.1 and other interested parties. H. In the circumstances, there is no basis for the petitioners to challenge the Initiation Notification without awaiting the outcome of its submissions. It is therefore submitted that ongoing investigation/ enquiry permitted to be concluded....
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....s, has characteristics closely resembling those of the articles under investigation, which implies competition between a product sold and a product not sold. Unless a product is sold, it cannot be ascertained whether it has characteristics identical or closely resembling to the product under consideration. Thus, when the petitioner has not admittedly sold the product, it has not established that its product is like article to the imported product under consideration. Establishment of like article is a first pre-requisite under Rule 2(b), which provides that "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term 'domestic industry' may be construed as referring to the rest of the producers." Thus, on no occasion, the petitioner established that its product is a like article to the imported product under....
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....pport were in fact duly received by it. The respondent no.2 is seized of the matter and would have to decide whether or not the explanation given by the domestic industry merits acceptance. In such scenario, there is no justification for the petitioner to seek to scuttle such a process of enquiry and seek the determination these disputed issues by this Hon'ble Court under Article 226 of the Constitution of India. O. It is further submitted that the case was initiated on 1st June 2016. The last date of 31st May 2017 has been extended by three months till 31st August 2017. Before the final recommendations the Authority has to issue a disclosure statement as per Rule 16 of AD Rules, on which all concerned interested parties including the petitioner would have the opportunity to submit their points/concerns. Therefore, there is no denial of natural justice or a prejudice as the petitioners will have ample opportunity to submit their concerns before respondent no.2. 14. Further the respondent no.1 denied each and every allegations made by the petitioners in this petition and submitted that as per Section 9C of the Customs Tariff Act, 1975 an appeal against the notification of Cent....
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....ia. As regards the averments made in paragraph 4 (C) and (D) it is submitted that the decisions cited by the respondent no.1 are completely on different facts and also on completely different question of law and therefore, the law laid down by the Supreme Court in the said judgments are not at all relevant and have no bearing to the facts of the present case. It is denied that no prejudice caused to the petitioners on account of issuance of initiation notification. It is submitted that the law has contemplated initiation of investigation into levy of anti-dumping duty only if certain parameters are fulfilled. Unless such parameters and preconditions are satisfied, the initiation of the proceedings would be clearly without jurisdiction and hence the petitioners have every right to question the jurisdiction of initiation of the proceeding. The petitioners deny that the present petition is premature and is filed with the motive of stalling a statutory investigation. Though the petitioners have raise such preliminary issues of jurisdiction, the respondents have for the reasons best known to them, refrained from deciding such important issues and illegally proceeded further in the inves....
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.... by the respondent as the entire averment in the said paragraph proceeds on the presumption that such support was subsequently withdrawn which is in fact contrary to the affidavits and letters submitted by the petitioners which are on record of the case. It is submitted that it is an undisputed fact that the petitioners are producer of product under consideration and so are other producers, who have placed opposition to the investigation. If the total production of product under consideration is taken into account, the preconditions of Rule 2(b) and Rule 5(3) will fail and so would the initiation of the investigation. The respondent no.3 did not fulfill the criteria of being called a domestic industry and therefore, the initiation of the notification was illegal and bad in law. The respondent have incorrectly considered two separate products as one which is not envisaged under the scheme and also in violation of the specific exclusion provided under the Rules. It is stated that imports made by the petitioners is not a material fact as the petitioners are not claiming itself to be the domestic industry. The exclusion of the importer is only relevant in context of Rule 2(b) which pro....
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.... other products. It is further submitted that from a report of 2nd Quarter of FY 2017 available on petitioner no.1's website, it is apparent that Naphthalene is a raw material and not a finished good. It is submitted that a letter dated 24th April 2016 issued by Ministry of Environment, Forest & Climate Change gives details of the products of the petitioner no.1 for environmental clearance and expansion, does not include product under consideration as one of the products. This clearly establishes that the petitioner has not been allowed to consider product under consideration as a product that can be produced and sold by the company. The petitioner no.1 has not established that even the production of the product under consideration allegedly being claimed as production for captive consumption is available to the petitioner as a saleable product. The use of the refined Naphthalene as a raw material cannot bring the petitioner no.1 within the scope of the domestic industry under Rule 2(b). It is submitted that contention of the petitioners that the respondent no.1 has wrongly initiated the investigation since the two supporting parties have withdrawn support is baseless. It is s....
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....l be issued is not known. It is denied that in the facts of the present case, there is any stage prior to issuance of Disclosure Statement to decide the issue of jurisdiction. The same would be decided either under Rule 16 or under Rule 17. If the petitioners' say is accepted, the respondent no.2 would terminate the investigation. If rejected, the respondent no.2 would either recommend duty or termination on the ground that no dumping or injury or injury margin is evident. It is however premature and in the realm of conjecture to conclude what the respondent no.2 is likely to conclude. 17. As against this, learned counsel for the petitioners filed affidavit-in-rejoinder, which could be summarized as under :- It is submitted that this Court would have the territorial jurisdiction to decide the issues canvassed by the petitioners and the petition is appropriately filed before this Court. It is further submitted that the law has contemplated initiation of investigation into levy of anti-dumping duty only if certain parameters are fulfilled. Unless such parameters and preconditions are satisfied, the initiation of the proceeding would be clearly without jurisdiction. Therefore, i....
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....ting to their rival contentions, it would be most appropriate to set out indisputable facts emerging therefrom as under: (a) The respondent no.3 filed an application dated 17.12.2015 before the Designated Authority under the provisions of Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of injury) Rules 1995 (hereinafter referred to as 'the Anti Dumping Rules' for the sake of brevity) for initiation of anti-dumping investigation and imposition of Anti Dumping Duty in respect of imports of Crude and Refined Naphthalene. (b) The Crude Naphthalene originating in or imported from China PR, European Union, Russia, Iran and Japan, whereas the Refined Naphthalene Originating in or exported from China PR, European Union and Taiwan. Thus the product is bifurcated into two forms namely Crude Naphthalene and Refined Naphthalene and the countries for imports are in two sets mentioned hereinabove. (c) On 01.06.2016, the Respondent No.2 issued Initiation Notification commencing Anti Dumping investigation concerning imports of "Naphthalene in both of its forms" - Crude Naphthalene originating in or exported from China PR....
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.... for the very same "Product under Consideration". b) Applicant does not account for major proportion of the total domestic production in terms Rule 5(3) of the Anti-dumping Rules. c) Applicant is a regular importer of the subject goods from the subject countries and should not be considered as an eligible domestic industry in terms of Rule 2(b) of the Anti-dumping Rules " "6. It is further submitted that the subject countries covered under the investigations are as follows: SI. No Product Subject Countries 1. Crude Naphthalene China PR, European Union, Russia, Iran, & Japan 2. Refined Naphthalene China PR, European Union and Taiwan 8. With respect, it is submitted that the entire initiation is flawed inasmuch as the Rules do not permit investigation against different countries for different forms of the very same product. Kind attention of the authority is invited to Para iii of Annexure II to the Anti-dumping Rules which reads as under: "(iii) In case where imports of a product from more than one country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when i....
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....d supporters and enclosed the support letters without their consent to file the application for the imposition of anti-dumping duty against imports of Naphthalene. Accordingly, immediately after getting the information public that the Authority initiated the anti- dumping investigation, the so-called supporters immediately filed letters with the Authority stating that they have been misguided by the applicant and they do not favour imposition of anti-dumping duty against imports of Naphthalene. Copies of the letter filed with the Authority are enclosed as Annexure 1 and 2. 15. In addition to the above, we humbly submit that Authority has taken into account only the total production of the applicant for calculating the standing of the applicant for filing the application. However, it is clear that the production of some of the major producers of Refined Naphthalene has not been taken into consideration while examining the eligibility of the applicant to file the application in terms of Rule 5(3) of the Anti- dumping Rules, 1995. In this context, it is submitted that the applicant has willfully not disclosed the production details of the other major producers of Refined Naphthalene....
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.... further seen that the applicant accounts for 2,666 MT (19%) of the actual total Indian production (13,732 MT) of those producers who are either supporting or opposing the application. Since the Applicant clearly accounts for significantly less than 50% of the total Indian production of those producers who are either supporting or opposing the application, it cannot be said to have been filed by or on behalf of the Domestic Industry in terms of Rule 5(3)(a) read with Explanation to the Rule. b. applicant fails the 25% test also: As can be seen from the table above that the applicant accounts for a meager 2,666 MT (17%) of the total actual Indian production of 15,798 MT. Since the Applicant clearly accounts for less than 25% of the total actual Indian production, it fails the mandatory 25% test in terms of proviso to Rule 5(3)(a) also. c. In view of the aforesaid, the only consequence that follows is that the Authority should immediately terminate the investigations for the reason of failure to pass the mandatory requirements of Rule 5(3)(a). Application is a regular importer 6. It is humbly submitted that the initiation of the investigation in this case itself is without ju....
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....mmenced the production only in the year 2014-15. Accordingly, due to the significant difference in the period of injury of the two forms of Naphthalene cumulative assessment of the injury of Crude and Refined Naphthalene will lead to absurdity. This again is by itself a sufficient ground for immediate termination of the investigations. 11. Injury period of five years is in violation of Trade Notice 2/2004 dated 12th May, 2004: In addition to the above, it is submitted that the injury period of five years taken by the Authority is in violation of Trade Notice 2/2004 dated 12th May, 2004 and the consistent practice of the Authority. Kind attention is invited to Trade Notice 2/2004 dated 12th May, 2004 wherein it is categorically mentioned that "Petition should invariably contain information and data relating to the proposed period of investigation (POI) and previous three financial years." Accordingly, it is submitted that considering five years as the period of injury is against the principles laid down by the Authority which needs to be invariably followed in all cases as well as the consistent practice of the Authority. 17. No injury to the so-called domestic Industry: There i....
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....thalene. Our raw material is Hot pressed naphthalene. Heavy benzol, Drain Naphthalene oil (D.N.O.) which are the by-product of the Bhilai steel plant (SAIL). We do not support anti dumping duty being imposed on Naphthalene. Now we are withdrawing our name from the Notification. Once again we state that we are not in favor of imposing antidumping duty on naphthalene. Thanking you, Yours faithfully." (h) The petitioners have produced on record a Communication received from Indian Petro-Coal Products at page 95, which also deserves to be reproduced as under: "To, GOVT. of India Department of commerce Directorate of Anti Dumping & Allied Duties, Ministry of Commerce & Industry, 4th Floor, Jeevan Tara Building, 5, Parliament Street, New Delhi. Sub.: Dumping of (I) Crude Naphthalene and (ii) Refined Naphthalene in India Sir, With reference to out letter Dt.28.03.2016 we are to inform you that we have been Misguided by some party, but now we are withdrawing our name from the notification. We are not in favour to impose anit dumping duty on import of Naphthalene. We regret for inconvenience. Thanking you" (i) The petitioners have also addressed a Communication d....
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....nce of proper support from the relevant domestic producers (in fact, there is explicit opposition), this investigation is illegal and without authority of law in terms of the Rules. In view thereof, we humbly request the Authority to terminate the investigation at the earliest..... (emphasis supplied) (j) The contention is taken on behalf of the petitioners that the Designated Authority usually considered the domestic industry if they are also importing the same material or they have relationship with importer and exporter on the subject goods. (k) The petitioners have produced at page 103 relevant documents which purported to have been Annual Report of Financial Year 2015 for respondent no.3 at page 102 and 103 in which it is claimed that 'The Company strategically imports raw materials based on prevalent global, economical and demand-supply dynamics, thereby optimizing costs.' (l) The petitioners have produced on record at Page 104 the Written Submissions on Public Hearing Dated 10.02.2017, relevant extracts whereof are set out as under: "Exclusion of the Domestic Producers with captive production is bad I law and inconsistent with Articles 3 and 4 of ADA 25. It was ment....
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....ed that the applicant industry has not answered any of the issues that had been raised by us in our letter dated 21.11.2016 and subsequent reminders dated 26.12.2017 and 27.12.2017. Briefly, the issues which remain unanswered till date are : (i) Cumulation permitted only if the imports of the subject goods in question are from the same sources. (ii) If the subject countries for the two different forms of the very same Product under Consideration are allowed to be different, then the test of de-minimis will also become unworkable. It is for this reason also that the Authority never considers two different sets of countries for two sub-sets of the same PUC as has been done in this case. (iii) Crude Naphthalene and Refined Naphthalene are not only classifiable under different Chapter headings but are classified under two entirely different Chapters of the Customs classification. These two are, therefore, clearly two different products not amenable to anti- dumping investigation together. (iv) Subject countries are different for C and R which can happen only if the two are considered to be separate products. (v) Crude Naphthalene and Refined Naphthalene are produced by differ....
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.... trade, nor any unauthorised imposition of tax nor is the petitioners' right to any property jeopardized by the Initiation Notification. B) I submit that present Petition is premature and filed with the oblique motive of stalling a statutory investigation under the provisions of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules 1995 (hereinafter referred to as 'the said Rules'). I submit that an Initiation of investigation does not accord any right or benefit to the Respondent no.3, who was the applicant before the Respondent no.2. Such notification is merely the commencement of the process to inquire into the factual position so as to enable the Respondent no.2 to gather essential facts for the purpose to ultimately deciding whether or not impose definitive measures. ....... .... C) I submit that the subject Petition suffers from the vice of delay, latches and acquiescence. It is submitted that the Initiation Notification was issued on 1.6.2016 pursuant to an application dated 17.12.2015. It is thus apparent that the respondent no.2 has considered all aspects and applied its mind....
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....ion would demonstrate that the petitioner is not entitled to any discretionary relief and the present petition deserves to be dismissed on the following grounds; A. That present petition as titled Under Article 226 of the Constitution of India challenging the Notification No.14/35/2016 - DGAD dated 01.06.2016 is not maintainable and deserves to be dismissed as the same is neither arbitrary nor is contrary to any of the provisions of existing law nor is without jurisdiction. B. The present petition is not maintainable and deserves to be dismissed as the petitioner is having effective, efficacious alternative remedy provided under Section 9C of the Customs Tariff Act, 1975. The petitioner if at all aggrieved with impugned notification, can prefer an appeal against the notification of Central Government in Anti-Dumping matters lies before CESTAT the appellant tribunal as provided under the Act. Therefore, the present petition is not maintainable and the same deserves to be dismissed on the ground of alternative remedy alone. C. The Hon'ble Supreme Court of India in case of Nivedita Sharma Vs. Celluar Operators Association of India and others, (2011) 14 SCC 337, has been plea....
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.... in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment." 15. In the judgments relied upon by Shri Vaidyanathan, which, by and large, reiterate the proposition laid down in Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad, it has been held that an alternative remedy is not a bar to the entertaining of writ petition filed for the enforcement of any of the fundamental rights or where there has been a violation of the principles of natural justice or where the order under challenge is wholly without jurisdiction or the vires of the statute under challenge. 16. It can, thus, be said that this Court has recognised some exceptions to the rule of alternative remedy. However, the proposition laid down in Thansingh Nathmal Vs. Supt. of Taxes and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field." D. The Hon'ble Apex Court recently in cas....
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....uct under consideration is one, i.e., "Naphthalene in both its forms". Thus the standing is required to be seen with reference to the product under consideration only in respect of both its forms or product types separately. L. I further submit that the standing of the application is required to be determined under Rule 5 prior to initiation. Once the Designated Authority has validly determined standing and initiated the investigations, the petition recedes in the background and Rule 6 comes in play. Under Rule 6 and thereafter from Rule 7 to Rule 17, the Designated Authority is not required to re-determine the standing of the application. The Designated Authority is required to merely re-determine the standing of the application. The Designated Authority is required to merely re-determine the scope of the domestic industry at the next stage of the investigations if necessitated. The petitioner is therefore required to establish before the Designated Authority or this Court relevance and importance of subsequent opposition to the application by a party who had validly and admittedly supported the petition prior to initiation. N. Without prejudice to the preliminary objections, ....
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....rticle, means the difference between its export price and its normal value; (b) export price, in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); c. normal value, in relation to an article, means- [i] the comparable price, in the ordinary course of trade, for the like article when [destined for consumption] in the exporting country or territory as determined in accordance with the rules made under sub- section (6); or [ii] when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market ....
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....ng anything contained in subsection (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under subsection (2),, shall not apply to articles imported by a hundred per cent, export- oriented undertaking unless,- [i] Specifically made applicable in such notification or such impositions, as the case may be; or [ii] the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation. - For the purpose of this sub- section, the expression hindered per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). (3) if the Central Government, in respect of the dumped article under inquiry, is of the opinion that- (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exported practices dumping and that such dum....
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....les may be determined and for the assessment and collection of such anti- dumping duty. (6A) 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 : Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.] (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." 2. Definitions.- In these rules, unless the context otherwise requires- (b) "domestic indust....
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....curacy 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 the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. Rule - 14:- Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if - (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify t....
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....that the product under consideration is Naphthalene in both its form separating the subject countries on type-wise imports of product would not vitiate the proceedings; and it was contended that a mere wrong description of the source of power, a mere wrong label, cannot invalidate the action of the authority, if it is otherwise within the power of the authority. The respondents have relied upon the decision of the Supreme Court in case of Titagarh Paper Mills Ltd. Vs. Orissa SEB, reported in (1975) 2 SCC 46. 24. The respondent no.2 - Designated Authority, has filed detail Affidavit, extracts whereof is reproduced hereinabove, interalia contending that the petition filed by the petitioners under Article 226 is not maintainable. It was further argued on behalf of the respondent no.2 that the petitioners have effective efficacious alternative remedy under Section 9-C of the Customs Tariff Act, 1975. The appeal would lie to the CESTAT. The reliance is placed upon the decision of Supreme Court in case of Nivedita Sharma Vs. Cellular Operators Association of India and Ors., reported in (2011) 14 SCC 337, and submit that when statutory forum is created by law for redressal of grievances,....
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....ing to be a domestic industry being subject matter of investigation, initiation itself cannot be subject matter of challenge under Article 226 of the Constitution of India. The respondent nos.1 and 2 have also contended that the initiation is not subject matter of any scrutiny as the same is based upon the satisfaction of the authority and there is availability of appeal under Section 9-C of the Customs Tariff Act, 1975. 28. The counsel for the petitioners has indicated elaborately that so called supporter of the respondent no.3 have said to have withdrawn their support and therefore on that count also the initiation itself goes into the root of the matter. 29. This Court is of the view that the domestic industry for classifying to be a domestic industry has to fulfill the requirement of Rule 2(b) of the Rules and has also to satisfy requirement of Rule 5(3) for seeking initiation. It cannot be disputed that the two supporters who have been named as supporters by the respondent no.3 had subsequently withdrawn their support, but a fine question which is arising for consideration is whether the mere initiation of the investigation can be said to be in any manner prejudicial to the ....