TaxTMI 
TaxTMI 
2020 (2) TMI 1213
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.... or direction thereby completely and permanently prohibiting 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....
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.... have been initiated without appropriately testing the preconditions of Rule 2(b) of the 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 jurisdicti....
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....led principles of law. 2.9 Being aggrieved and dissatisfied by the unauthorized actions of respondent 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 ap....
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....out one third of the production as compared to those opposing the application, it cannot be said to have been 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 ....
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.... in the year 2012-13 to 119 (Indexed) in the POI; selling price per unit increased from 112 (Indexed) in the year 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 ....
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....lternative remedy provided under Section 9C of the Customs Tariff Act, 1975. The petitioner if at all aggrieved with the impugned notification, 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 p....
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....was further submit that present petition is premature and filed with the 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. 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 ....
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.... is identical or alike in all respects to the article under investigation for being dumped in India or in the absence of such an article, another article which although not alike in all respects, 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 'dome....
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.... fact, inter alia pertaining to support to the investigation. In respect of the issues so raised before the respondent no.2, the Domestic Industry has filed its affidavit stating that the letters of support 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 t....
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....f. It is submitted that now, it is a well settled law by virtue of various judgments of the Supreme Court and this Court that an action initiated without jurisdiction can be challenged before the Court of law under Article 226 of the Constitution of India. 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 stall....
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....teria is without any basis or justification. It is further submitted in the rejoinder that the supporting affidavit submitted by the respondent no.3 were not based on legal consent and were submitted fraudulently. These facts have been completely overlooked 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 excl....
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.... filed on behalf of the petitioner no.1 as being an importer and not a manufacturer and therefore, it is apparent that the petitioner no.1 does not substantiate its claim as Domestic producer in India and appears to be using imported refined Naphthalene manufacture 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 pet....
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....enied that the respondent no.2 is at the stage of issuance of final findings under Rule 17 of the Rules. The respondent no.2 is yet to issue a Disclosure Statement under Rule 16. The basis of the apprehension of the petitioners that final findings recommending duty will 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 submitte....
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....s submitted that the issues raised by the petitioners are required to be decided as preliminary issue as it goes to the root of very initiation. It is incorrect to say that such issues can be decided at a later stage. 18. Heard learned counsels for the parties. Before adverting 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 countr....
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....y the respondent no.3. Copy is produced at Annexure-E at page-78. The relevant extract whereof are set out as under: "Initiation of Investigation is without Jurisdiction: 1. At the very outset, we humbly submit that the current investigation is without jurisdiction, and accordingly, should be terminated immediately on account of the following reasons. a) It is impermissible to have different sets of "subject countries" 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....
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.... 50% plus is considered to be important as any figure less than this amount will necessitate that the Authority examines the support and opposition by other parties prior to initiation itself. 13. In the instant case, in order to satisfy the standing criteria the applicant has enclosed the copy of the support letters from two producers of Crude and Refined Naphthalene i.e. M/s Supreme Petro Synth Specialities and M/s Indian Petro-Coal Products. It is now a matter of record that the applicant had misguided the so called 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 ac....
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.... 100% • Since, the production of the Indian producers opposing the application (81%) is significantly more than the producers supporting the application (19%) the applicant fails to establish the 'standing'. The applicant also fails the 25% test being only 17% of the total actual Indian production. *These are those producers whose support has been taken by misguiding them and who had withdrawn their support by filing letter of opposition to the Authority immediately after getting the information public that the Authority had initiated the anti-dumping investigation. 19. The above table establishes beyond any doubt that: a. Applicant fails the 50% test: It can be 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 wit....
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....hok Kajaria (CMD) admitted that they themselves make 98% of their products and rest 2% constitutes the imports. Copy of web page detailing the relevant extracts of the interview of Mr. Ashok Kajaria is enclosed as Annexure 6. Accordingly, from the above it is clear that in the case of Vitrified Tiles, the Authority has considered even 2% as the significant volumes while considering M/s Kajaria as ineligible domestic producer. Incorrect & Inappropriate Injury Investigation Period 10. It is also submitted that the period of injury considered by the applicant for the purpose of injury assessment of Crude Naphthalene is 57 months while the period of injury considered by the domestic producer for the purpose of injury assessment of Refined Naphthalene is in any case cannot be more than 21 months as the applicant commenced 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....
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....mbly submits that it is clearly evidenced form the information provided on page no. 37 of the application that the applicant has included the self imports for the calculation of the demand. We also apprehend that the import from the subject countries also includes the imports made by the applicant. In such case, the injury claimed on the following parameters is flawed..." (g) The petitioners have produced on record the communication by Supreme Petro-Synth Specialities at page 94, dated 13.06.2016 addressed to the Designated Authority, which deserves to be reproduced as under: "To Mr. A.K.BHALLA Additional Secretary and Designated Authority, Directorate General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry, Department of Commerce, 4th Floor, Jeevan Tara Building, 5 Parliament Street, New Delhi 110001. Dear Sir, We are Bhilai, Chattisgarh based SSI unit producing refined naphthalene. 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 Napht....
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....of the authority with regard to their 'standing' is based on the assertion of the petitioner. It is apparent that neither the petitioner nor the Hon'ble Authority has considered our production data while calculating the total production in India for the purpose of determining the standing of the petitioner. We submit our production details for the year April, 2013 to March, 2014, April, 2014 to March 2015 and POI (1st January, 2015 to 31st December, 2015). Particulars Unit 2013-14 2014-15 Jan 2015 - Dec 2015 Production MT ---- ---- ---- Consumption MT ---- ---- ---- We submit that we are not related to any exporter or producer of the said product in the subject countries. It is also clarified that we are also not related to any importer of the subject goods. The Authority may kindly note that we as a significant domestic producer of the subject goods in India, oppose the present petition for imposition of Anti Dumping duties as it is not in the overall interest of the domestic producers or the user industry. We are of considered view that in absence of proper support from the relevant ....
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....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 articles produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application." (m) The petitioners have produced on record, Rejoinder dated 20.04.2017 at Page 169 to the Written Submission relevant extract therefrom are set out as under: Flawed determination of the "Product under Consideration" and Sub-categorization of "Subject Countries" for single "Product under Consideration" 8. At the very outset, it is submitted that the contention of the applicant industry that there is a single "Product under Consideration" is vehemently denied. It may be seen that the applicant industry has merely made statements without making out a case as to why the two forms of Naphtalene should be con....
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.... the alleged injury to the applicants could be attributed to one set of countries and the other part to another set of countries." (n) The petitioners have produced at Page 181, Annexure-'I' i.e. Affidavit of concerned officer of M/s. Supreme Petro Synth. Specialities, indicating that the industry has not supported the proposal. The type copy of the same is produced at Page 182. (o) The Affidavit-in-Reply is filed on behalf of Respondent No.3, which is at page 182. The requisite averments therefrom deserves to be set out as under: ".....I submit that the Initiation Notification dated 1.6.2016 was issued by the Respondent no.2 at New Delhi. The Answering Respondent has its Registered Office as well as Manufacturing unit in the State of West Bengal. The Initiation Notification does not either create or negate any right in favour of the Petitioners or impose any duty or cause any prejudice that gives rise to cause of action within the State of Gujarat. It is submitted that the averments made in Paragraph no.4 of the subject Petition do not give any basis for the territorial jurisdiction being available in the State of Gujarat. I submit that an anticipatory event cannot ....
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....eged or at all, though it is true that the same is like a show cause notice and does not give rise to any cause of action. The application for Initiation of investigation filed by the Answering Respondent was for Naphthalene in both its form from the subject countries. Thus, the product under consideration is Naphthalene in both its form and separating the subject countries on type-wise imports of product does not vitiate the proceedings. It is now well settled that "a mere wrong description of the source of power - a mere wrong label - cannot invalidate the action of an authority, if it is otherwise within its power" as held in Titagarh Paper Mills Ltd., Vs. Orissa SEB, (1975) 2 SCC 436, Para.9). Relevant para are reproduced below : "9. when an authority takes an action which is within its competence, it cannot be held to be invalid, merely because it purports to be made under a wrong provision, if it can be shown to be within its power under any other provision. A mere wrong description of the source of power - a mere wrong label - cannot invalidate the action of an authority, if it is otherwise within its power " (p) The Respondent No.2 has filed affidavit-in-Reply, ....
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....ut there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ...The remedy provided by the statute must be pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville Vs. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago Vs. Gordon Grant and Co. Ltd., and Secy. Of State Vs. Mask and Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High court was therefore, justified in dismissing the writ petitions in limine." 14. In Mafatlal Industries Ltd., Vs. Union of India B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed : (SCC p.607, para 77). "77. ... So far as the jurisdiction of the High Court under Article 226 or for that matter, the jurisdiction of this Court under Article 32 is concerned, it is obvious that the provisions of....
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.... their jurisdiction consistent with the provisions of the Act. (Refer : Mafat Industries Ltd.). (iii) When a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. (Refer : Nivedita Sharma). (iv) 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 grievances. (Refer : Nivedita Sharma). That in view of the afore referred settled principle of law, the present petition deserves to be dismissed on the ground of alternative remedy alone as the petitioner is having effective, efficacious alternative remedy to prefer an appeal U/s. Section 9C of the Customs Tariff Act, 1975. K. I further submit that the contention of the petitioners that the Respondent No.1 has wrongly initiate the investigation since the two supporting parties have withdrawn support is baseless. The Applicant submits that at the time of filing of application before Designated Authority app....
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....n is ignored. Thus, the domestic industry is having a major proportion and individually satisfied the standing criteria in terms of Rule 5, even in the absence of any supporter. It is also relevant to note that the product under consideration is one, i.e., "Naphthalene in both its forms". Thus the standing is required to be seen with reference to the like article to the product under consideration only and not in respect of both the forms separately." (q) The Rejoinders are filed on behalf of the petitioners at Page 334 and 343 in respect of reply of Respondent No.1 and Respondent No.3 respectively. 19. Against the aforesaid factual backdrop, the rival contentions of the learned counsels for the parties are required to be examined in light of the relevant provisions of law touching upon the aspect of this matter. Therefore, the same also deserves to be set out as under for the sake of convenience and ready reference: Section 9A. Anti-dumping duty on dumped articles - (1) Where any article is exported by an exporter or producer from any country or territory (hereafter in this section referred to as the exporting country or territory) to India at less than its normal v....
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....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. [1A] Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that circumvention of anti- dumping duty imposed under sub-section [1] has taken place, either by altering the description or name or composition of the article subject to such anti-dumping duty or by import of such article in an unassembled or disassembled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case may be.] [2] The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and ....
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.... may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti- dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. (6) 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....
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.... more competitive markets and the producers within each of such market a separate industry, if - (i) the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - For the purposes of this clause,- (I) producers shall be deemed to be related to exporters or importers only if,- (a) one of them directly or indirectly controls the other; or (b) both of them are directly or indirectly controlled by a third person; or (c) together they directly or indirectly control a third person subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers. (ii) a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restraint or direction over the latter. Rule 5 - Initiation of investigation. - (3) The des....
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.... (e) it determines that the injury where applicable, is negligible." 20. The petitioners have essentially challenged the Notification dated 01.06.2016, whereunder the respondent no.2 at the behest of respondent no.3 initiated investigation in respect of product called Naphthalene in both its forms namely Crude and Refined Naphthalene being imported from the countries mentioned in the Notification. The respondent no.3 did not fulfill the requisite criterion for being characterized the domestic industries so as to be eligible to seek initiation of investigation in respect of product in question. 21. The petitioners have also contended in support of their contention that the respondent no.3 was not only fulfilling the criterion of eligible domestic industry, as defined under Rule 2(b), but it has also not supported its application on account of the provision of Rule 5(3) of the Rules and the petitioners have laid elaborate material in support of this submission. 22. As against this, the respondent no.3 has contended that the investigation ordered by respondent no.2 vide Notification dated 01.06.2016 does not either create or negate any right of the petitioners or sim....
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....respondent no.2 was yet to issue the Disclosure Statement under Rule 16 of the said Rules, which would contain essential facts for the interested parties to offer their comments and thereafter final finding under Rule 17. In view of this, it was pleaded that there is no bias whatsoever to the petitioners and other similarly situated persons. 26. The respondent no.2 has further submitted that the petitioners have approached the Court belatedly, as the Initiation Notification was issued on 01.06.2016 pursuant to an application of the respondent no.3 dated 17.12.2015. The petitioners have participated in the investigation by filing the questionnaire response in capacity of an importer/user. The subject petition is filed after 11 months of the issuance of Initiation Notification at the fag-end of investigation. The delay has not been explained by the petitioners. 27. The rival contentions of the parties are to be viewed in the backdrop of the fact that the present petition is filed only against the notification of 01.06.2016, whereunder the concerned respondent has initiated the initiation of anti dumping investigation and concerning imports of crude and refine naphthalene and th....
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.... only and not against the investigation. But the Court need not loose sight of the fact that mere initiation can be said to be a prejudicial in a given facts of case where the petitioner also participated initially and put-up its elaborate submissions and when the respondents have clearly contended before this Court with due emphasis that the petitioner's participation has to be viewed appropriately, as the petitioner did put up his submission, the same also is required to be considered for its appropriate light and prospective. 31. The Court is of the view that the petition is filed when challenging the only initiation and when the authority has not concluded, as could be seen from the notification impugned before this Court, the Court would be slow in interfering therewith, as it would rather require embarking upon further probing which may not be appropriate at this stage under the provisions of Article 226 of the Constitution of India. 32. The Court is also of the view that the Court's power under Article 226 are not curtail on account of the existence of remedy of notice, even if one exists. However, the fine principles of law laid down time and again by the Apex....