TaxTMI 
TaxTMI 
2025 (5) TMI 779
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.... CAV JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Advocate Mr. Mihir Joshi with learned advocate Mr. Dhaval Shah for the petitioners, learned ASG Mr. N. Venkatraman with learned advocate Mr. Ankit Shah for respondent nos. 1 to 3 and 7, learned Senior Advocate Mr. Kamal Trivedi with learned advocate Mr. Rajesh Sharma with learned advocate Ms. Gargi Vyas with learned advocate Mr. Vinay Bairagra with learned advocate Mr. Utshav Shukla for respondent No. 4, learned Senior Advocate Mr. Balbir Singh with learned advocate Ms. Gargi Vyas for respondent No. 5 and learned Senior Advocate Mr. Pragyan Pradip Sharma with learned advocate Mr. Rajesh Sharma with learned advocate Ms. Gargi Vyas for respondent No. 6. 2. This petition was filed initially with a prayer to prohibit the respondent authorities from issuing notification levying provisional duty under Rule 13 of the Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty) Rules, 1995 (here-in-after referred to as "the Anti-Dumping Rules") and to quash and set aside preliminary findings dated 30.10.2024 issued under Rule 12 of the Anti-Dumping Rules. Thereafter through draf....
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....t nos. 4 to 6. 7. Designated Authority issued a public notice vide Notification No. 6/33/2023-DGTR dated 26.03.2024 published in the Gazette of India Extraordinary, initiating the subject investigation in accordance with section 9A of the Act read with Rule 5 of the Anti-Dumping Rules to determine existence, degree and effect of the alleged dumping of the product under consideration originating or exported from the subject countries and to recommend the amount of anti-dumping duty, which if levied, would be adequate to remove the alleged injury to the domestic industry. 8. Thereafter vide communication dated 25.04.2024, a virtual meeting was notified to be held on 30.04.2024 to consider and finalise the product in consideration and methodology. The petitioners made submissions dated 06.05.2024 in response to the meeting held on 30.04.2024 for exclusion of the specialty grades of PVC resins used by the petitioner no. 1 for manufacturing of CPVC since specialty grades mentioned in Notification dated 26.03.2024 were never produced by the domestic industry nor they were technically and commercially substitutable and interchangeable product in the domestic industry whereas special....
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..... 3 requesting for a further detailed inquiry into classification of Product Under Consideration (for short "PUC"). 12. The petitioners thereafter preferred Special Civil Application No. 15221 of 2024 challenging the notification/ communication dated 13.05.2024 raising the grievance that respondent no. 3 without dealing with reply dated 06.05.2024 unilaterally declared final scope of the PUC and the products imported by the petitioners could not have been included in PUC which is basic raw material used to manufacture CPVC by the petitioners. 13. Special Civil Application No. 15221 of 2024 was disposed off by order dated 22.10.2024 by observing as under: "13. Having heard learned advocates for the respective parties and considering the submissions canvassed before us, it is not in dispute between the parties that respondent No. 3 is in process of the investigation as contemplated under Rules 4, 5 and 6 of the Rules 1995 and the contentions raised by the petitioner is at premature stage which would jeopardize the entire process initiated by the respondent No. 3. 14. We are therefore of the opinion that we would not like to interfere at this stage on merits of....
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....l, domestic Industry and interested parties for the purpose of final determination, after providing opportunity of submissions by the interested parties and an opportunity of being heard orally." 17. On 20.11.2024 when this matter was taken up for hearing, learned advocate Mr. Ankit Shah appeared on advance copy on behalf of respondent nos. 1 to 3 whereas learned Counsel for respondent nos. 4 to 6 appeared on caveat. During the course of the said hearing, learned advocate for the petitioners submitted that the petitioners have already made an application before respondent authorities that confidentiality for details submitted by the petitioners is not claimed. Learned advocate for the respondents prayed for time to file reply and therefore, notice was issued on 20.11.2024 making it returnable on 27.11.2024. On 27.11.2024 learned advocates for the parties prayed for time and matter was adjourned to 29.11.2024. On 29.11.2024, learned advocate Mr. Ankit Shah for the respondent nos. 1 to 3 referred to the communication dated 28.11.2024 from respondent no. 2 addressed to him and submitted that the petitioners have already made a communication to the respondent authorities to the effe....
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.... other stakeholders if any and place the order which may be passed on the record of this petition on or before the next date of hearing. Learned advocate Mr. Ankit Shah for the respondent is directed to communicate to the respondent Nos. 1,2 3 and 7 not to take any further action to implement impugned order till the next date of hearing. Needless to say that the petitioners and respondents shall cooperate and comply with the aforesaid directions. Stand over to 18th December, 2024." 19. On 18.12.2024 learned advocate Mr. Ankit Shah for the respondent no. 2 submitted that in compliance of order dated 29.11.2024, respondent no. 3 has passed an Addendum Notification dated 16.12.2024 - further order and placed the same on record by additional affidavit filed on behalf of the respondent nos. 2 and 3. 20. The petitioners thereafter filed Civil Application (For Amendment) No. 2 of 2024 for amendment of the petition so as to place the subsequent developments of passing of Addendum Notification dated 16.12.2024 in compliance of order dated 29.11.2024 passed by this Court and challenge the same. 21. By order dated 23.12.2024, with the consent of the learned....
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.... and the decision which may be rendered by this Court shall become infructuous and would lead to multiplicity of the proceedings. 3.2. It was therefore prayed that the respondents may be restrained from passing the final findings order till the judgment is pronounced by this Court in the Special Civil Application No. 15673 of 2024. 4.1. On the other hand, learned advocate Mr. Ankit Shah appearing for the respondent Nos. 2 and 3 submitted that the respondents have not been restrained from proceeding further with the hearing and accordingly, the respondents are bound to pass an order today i.e. on expiry of twelve months as the case was initiated on 26th March, 2024. 4.2. It was therefore submitted that unless and until appropriate order is passed by this Court, the respondents will have no option but to pass the final findings order during the course of the day. 5. Learned Senior Advocate Mr. Pragyan Pradeep Sharma for the respondent No. 6 submitted that great prejudice will be caused to the respondent No. 6 if the respondents are restrained from passing the final order as the Central Government has also not levied any provisional anti-dumping dut....
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....duct. 27. It was submitted that for the purpose of Article VI of GATT, a product is to be considered as being introduced into commerce of an importing country at less than its normal value, if the price of the product exported from one country to another is either less than the comparable price, in the ordinary course of trade, for the like product or in absence of such domestic price, is less than either the highest comparable price for the like product for export or the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit. 28. Thereafter, learned Senior Advocate Mr. Joshi referred to the agreement on implementation of Article VI of GATT, more particularly, Articles 2.1, 2.2 and 2.6 which refers to like product which means a product which is identical i.e. alike in all respects to the product under consideration, or in absence of such a product, another product which although not alike in all respects, has characteristics closely resembling those of the product under consideration. 29. It was therefore, submitted that in order to consider the like product, the respondent authority has to come to the conclusion t....
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....to duties of the Designated Authority and Rule 5 which provides for initiation of investigation of Anti-Dumping Rules are compared with the relevant Article VI of GATT to submit that it is essential for the Designated Authority to satisfy on the basis of the examination of the degree of support for, or opposition to, the application expressed by the domestic producers of the like product and not the examination of the importers. 34. It was therefore, submitted that determination of PUC is the very foundation for second stage of investigation for determination of the injury on account of the dumping suffered by the domestic industry and without identifying the product under consideration, determination of injury to the domestic industry would be a futile exercise. 35. It was therefore, submitted that foundation for initiation of investigation regarding existence, degree and effect of any alleged dumping is to determine the product under consideration being the like article liable for anti-dumping duty. 36. Learned Senior Advocate Mr. Joshi invited the attention of the Court to the application filed by respondent nos. 4 to 6 and submitted that on the basis of the contents of....
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..... It was submitted that the production details of SPVC submitted by DCW Limited during the period of investigation i.e. upto 30.09.2023, clearly shows that DCW Limited or any other domestic industry did not produce the specialty grade SPVC imported by the petitioners on commercial basis. 42. It was therefore, submitted that the Designated Authority has given a contradictory finding in para nos.17 and 18 of the impugned Addendum Notification dated 16.12.2024 by shifting the burden upon the petitioners stating that the petitioners did not approach the domestic industry or bought the subject goods from domestic industry and thereafter communicated to the domestic industry regarding deficiency, if any, in the subject goods for manufacturing of CPVC. 43. It was submitted that the submissions of the petitioners have been brushed aside by concluding that different groups of PVC Suspension resins have been used for making CPVC resins and there is no exclusive group of PVC suspension resins that is commonly used for the purpose of making CPVC Resin. It was therefore, submitted that the Designated Authority has failed to consider that the respondent nos. 4 to 6 have given an incorrect ....
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....lab reports submitted by DCW Limited are on the basis of samples drawn by itself and as such, such lab reports could not have been relied upon by the Designated Authority to compare the bulk density and porosity without independent examination or investigation. 50. Learned Senior Advocate Mr. Joshi also in support of his contention that writ petition is maintainable against preliminary findings of Designated Authority, relied on the decision in case of Nirma Ltd v. Sai Gobain Glass India Ltd. reported in 2012(281) ELT 321 (Mad) and in case of Nirma Limited v. Union of India reported in 2017 (346) ELT 328 (Guj.) Submissions of the Respondents: a) Submissions of learned Senior Advocate Mr. Kamal Trivedi for respondent No. 4: 51. Learned Senior Advocate Mr. Kamal Trivedi referred to the findings of the Designated Authority in the Addendum Notification from para nos. 12 to 20 and submitted that the Designated Authority has after considering the submissions of the petitioners and the domestic industry has come to the conclusion that specialty grade SPVC imported by the petitioners cannot be excluded from the product under consideration as the same are not found exclusive, cl....
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....ion with regard to the maintainability of the writ petition against the preliminary findings on anti-dumping investigation. Reliance was placed on decision of Delhi High Court in case of Indian Express Newspapers (Bombay) Ltd. v. Union of India reported in 2003 (157) ELT 138 (Del) to submit that petition is premature and petitioners are at liberty to raise contention before the Designated Authority who is still seized off the investigation to arrive at final finding and on basis of such findings, if the Central Government decides in favour of imposing duty, whether provisional or otherwise, the petitioners would have remedy available under the law. It was submitted that the Hon'ble Delhi High Court has taken into consideration that imposition of provisional duty is guided by the paramount consideration of protecting the domestic industry to eliminate dumping and tampering with the process midway and delay imposition of anti-dumping duty. It was therefore submitted that the petition should not be entertained. It was therefore submitted that petition deserves to be dismissed more particularly, when the Designated Authority after considering the submissions made by the petitioners pur....
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....eir audited figures for such odd period." 32. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this Court's opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. 33. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this Court with powers under Articles 226 and 32. At the same time, barring exceptional features nec....
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....onsidering the product under consideration of PVC Resins of K Value greater than 55 and less than 77 which includes SPVC of alleged specialty grade imported by the petitioners also. It was therefore, submitted that the petition may not be entertained at this stage as the petitioners would be entitled to make the submissions before the Designated Authority after the stage of Rule 16 of the Anti-Dumping Rules of disclosure of information. 63. Learned Senior Advocate Mr. Balbir Singh also referred to the history of levy of anti-dumping duty on imports of PVC Suspension Resins since 2005 to demonstrate that all the grades of SPVC were covered under the PUC since then. It was submitted that the final findings of the Designated Authority dated 26.12.2007 excluded specialty PVC Suspension Resins such as cross-linked PVC, CPVC etc. but all grades were covered under PUC. Similarly, in the year 2014, 2019 and 2023, PUC included all grades. It was also pointed out that the petitioners are consuming about 14 Grades of SPVC and 6 Grades of Mass PVC, out of which petitioners have only claimed S-65C and SG66J specialty grades of which only 15 metric tons of S-65C and 18 metric tons of SG66J we....
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....the process flow for such investigation and time-frame for completion of anti-dumping investigation. 66. It was submitted that as per the Standard Operating Practices, para No. 3.13 provides that the PUC should be defined accurately and in a manner that it is discernible in terms of technical and measurable parameters of distinguishable to the Customs Authorities at the time of importation and all nomenclature/ descriptions/known names of the product should be included in the scope of PUC. It was pointed out that PUC should have been defined in terms of physical, technical and other properties and characteristics and therefore, the test to determine the PUC is adopted by Designated Authority in accordance with the Standard Operating Practices and bulk density and porosity of 'K' value of the alleged specialty grade of SPVC imported by the petitioners is same as there is no physical and technical difference and the chemical composition is also same. It was pointed out that respondent No. 6 DCW Limited is manufacturing SPVC and being a domestic industry is suffering losses because of the lesser value of the imported materials and when the Designated Authority has arrived at findin....
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....est the same for production of CPVC as compared to the usage of imported SPVC by the petitioners and no difference was shown by the petitioners before the Designated Authority and as such, the petitioners now cannot complain that the domestic industries are not able to produce specialty grade of SPVC which is imported by the petitioners. It was therefore, submitted that when Designated Authority has fulfilled the procedure to come to the conclusion that the products imported by the petitioners are not required to be excluded from the scope of investigation of product under consideration, no interference be made in the impugned order passed by the Designated Authority. e) Rejoinder of learned Senior Advocate Mr. Mihir Joshi 70. Learned Senior Advocate Mr. Mihir Joshi in rejoinder submitted that the writ petition is maintainable and should be entertained as there is no alternative remedy for the petitioners to challenge the preliminary findings considering the specialty grade SPVC imported by the petitioners as part of the PUC. 71. It was submitted that the Designated Authority did not examine the submissions and materials provided by the petitioners to come to the conclusio....
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....erage Selling Price Per unit 8a Domestic Rs./MT *** *** *** *** *** 8b Exports Rs./MT *** *** *** *** *** 9a No of employees Nos *** *** *** *** *** 9b Salaries and Wages Rs. Lacs *** *** *** *** *** 9c Productivity Per day MT/Days *** *** *** *** *** 9d Productivity Per employee MT/Nos *** *** *** *** *** 9e Productivity Per day per employee MT/Days *** *** *** *** *** 10a Opening Inventory MT *** *** *** *** *** 10b Closing Inventory MT *** *** *** *** *** 10 Average Inventory MT *** *** *** *** *** 10c Average Inventory as no. of days of production MT/Days *** *** *** *** *** 10d Average Inventory as no of days of Sales MT/Days *** *** *** *** *** 11 Cost and Profits for Domestic Operations a Cost of Sales (ex-factory) Rs. Lacs *** *** *** *** *** ....
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....ht provides excellent processing characteristics in both single and multi-screw extruders. Typical Applications include irrigation, foam core, potable water, DWV/sewer pipe, electrical conduit and rigid profiles. Resin Properties Specification Range Test Method Inherent Viscosity (dl/g) 0.880-0.920 OxyVinyls 1386 Relative Viscosity 2.12-2.19 Correlation K Value 64-65 Correlation Volatiles (%) 0.24 Max. OxyVinyls 1242 Malvern Particle Size % Retained on 40 mesh 0.5 Max OxyVinyls 1505 % Retained on 60 mesh 7.0 Max OxyVinyls 1502 % Retained on 200 mesh 15.0 Max % Retained on Pan 5.0 Max Residual Monomer (ppm) 3.2 Max OxyVinyls 1005 Apparent Bulk Density (g/cc) 0.515-0.575 OxyVinyls 1501 STM Cell Classification GP4-16040 ASTM D 1755 CAS Number 9002-86-2 (iv) (Page 376/143 of the paper book) Dated: 21- 06-2024 Our Ref:MDBO/CM/L 6900117213 Subject: Grant of BIS Certification Marks Licence No 6900117213 as per IS 17988:2022. M/S DCW LIMITED SAHUPURAM,,ARUMUGANERI,THOOTHUKUDI, TAMIL NADU....
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....he time of the second and subsequent renewals. In case the licence expires, the entire production marked till the expiry date shall be taken into account for calculating the marking fee payable. NON-CONFIDENTIAL 6. The Scheme of Testing and Inspection submitted by you and agreed by BIS or the Scheme of Testing and Inspection as specified by BIS will have to be implemented by your organization strictly and completely. This supervision of the operation of the Scheme shall be done by a person responsible for the quality control function in your organization. Kindly inform us the name and designation of the person who will be held responsible for the operation and maintenance of the Scheme. Any future change in this respect will have to be communicated by you to us as and when these take place. 7. We are enclosing a sheet giving the preferred dimensions of the Standard Mark to enable you to prepare the designs of the Standard Mark for marking the above product Photographic reduction in any size is permissible. This will ensure the relative proportions of the different dimensions maintained. Preferred dimensions be used as far as possible. 8. On commencemen....
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....nvestigation of PUC, failing which, the petitioners would suffer losses which cannot be compensated and on the other hand, respondent No. 6 would be given an advantage to establish monopoly market in India compelling the petitioners to purchase the similar product which is yet to be manufactured and tested to manufacture CPVC for pipes for drinking water. It was therefore, submitted that if the anti-dumping duty is levied on specialty grade SPVC imported by the petitioners to be levied as per the preliminary findings arrived at by Designated Authority, the petitioners would suffer which is contrary to the Trade Remedies and there will be no levelling field giving advantage to the domestic industry contrary to the basic intention of levy of anti-dumping duty on the like products by determining the injury caused to the domestic industry. DISCUSSION AND FINDINGS: 75. Having heard the learned advocates for the respective parties and having considered the material placed on record, the short question which arises for consideration is, whether respondent no. 3 Designated Authority was justified in rejecting the prayer of the petitioners to exclude specialty grades of SPVC i.e.S65C ....
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.... "Section 9C. Appeal.- (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereafter referred to as the Appellate Tribunal). (1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose: or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees. (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, afte....
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....ng the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty, (e) to review the need for continuance of anti-dumping duty." 81. On plain reading of above rule 4 of the Anti-Dumping Rules, the Designated Authority is empowered to investigate, identify and submit its findings provisionally or otherwise to the Central Government as to normal value and injury, apart from recommending to the Central Government about the amount of anti-dumping duty and the date of commencement of the duty. 82. Respondent no. 3 Designated Authority in the facts of the case has recorded the preliminary findings after preliminary investigation by impugned notification dated 30.10.2024 as per Rule 12 of the Anti-Dumping Rules regarding export price, normal value and margin of dumping resulting into injury to the domestic industry to arrive at preliminary determination on dumping and injury to the domestic industry. 83. On basis of such preliminary findings, the Central Government is to impose levy of provisional duty and on further investigation, Designated Authority as per Rule 16 of the Anti-Dumping Rules is to arrive at final fin....
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....CESTAT. We are not much impressed by this argument. Section 9C deals with appeal which says that an appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962. Section 9A(2) of the Act states that 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 margin and if such anti-dumping duty exceeds the margin as so determined. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says that the Designated Authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in ....
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..... 88. Respondent no. 3 thereafter pursuant to the directions issued by this Court has granted further opportunity to the petitioners and respondents to file written submissions and oral hearing was also conducted and thereafter considering the submissions and oral hearing, Addendum Notification dated 16.12.2024 is passed rejecting the claim of the petitioners to exclude the specialized grade SPVC Resin from scope of investigation for product under consideration. 89. On perusal of the findings of Designated Authority after examination of various submissions of the parties for the purpose of determining whether claim of the petitioners for exclusion of specialized grades is tenable under Rule 2 (d) of the Anti-Dumping Rules or not, it would be necessary to refer to Rule 2 (d) which reads as under: 2 (d) "like article" means an article which 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." 90. On perusal of the above Rule which defines like a....
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....o specialty grades for manufacture of CPVC as it is manufacturing CPVC using its own PVC Suspension Resins. 94. With regard to the contention of the petitioners that DCW Limited domestic industry which makes both PVC Resin and CPVC Resin has not used its own SPVC Resins for making CPVC Resins, Designated Authority considered the material placed on record by DCW in order to show that DCW has produced CPVC using captively produced SPVC Resins as well as imported PVC Suspension Resins as under : SN Grade Name MT Prior to 30-09-12023 Post 30-9-23 Remarks 1 DCW Pipe Grade 1,498 76 1,422 DCW PR 065 2 DCW Fitting Grade 742 10 732 DCW PR 057 3 Oxychem 225p 2,354 517 1837 Market 4 P 1000 1,051 541 510 MPVC 5 Hanwha P 1000 SB 553 143 410 Market 6 Westlake 1230p 66 8 58 Market 7 Westlake 1091 8 8 - Market 8 Tpe Sg 66j 933 273 660 MK Industries 9 Tpe Sf58s 108 9 99 MK Industries 10 Formosa B 57 226 116 110 MPVC 11 Formosa B 57 C 118 - 118 MPVC Direct Import 12 Formosa B 65....
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.... Authority could not have shifted the burden on the petitioners to prove that specialty grades of SPVC Resin as required by the petitioners are not available in India and not manufactured by the domestic industry. It was for the domestic industry to prove that like article as would include the specialty grade SPVC Resin which are sought to be excluded by the petitioners from the scope of product under consideration are manufactured in India and are suitable to manufacture CPVC Resins required for production of pipes for water supply. Designated Authority therefore, has failed to take into consideration the basic standard of proof to be applied for arriving at conclusion that the articles which are imported by the petitioners being specialty grade SPVC cannot be considered as "like article" manufactured by the domestic industry. 96. On a specific query to the learned ASG as to whether there is any authority on the proposition that domestic industry must in the first place has to be approached by the petitioners before the petitioners can source the product through import is the "acid test", the learned ASG submitted that the proposition is so basic and ingrained in the concept of....
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....d to Manual of Operating Practices for Trade Remedy Investigation more particularly, Chapter 3 and 4 which refers to product under consideration and like articles as well as relevant paragraphs of the said the Standard Operating Practices, it would be necessary to refer the same as under: "3.1. In the ADA there is no specific definition of 'Product'. However, Article 2.1 of the ADA provides as follows: "For the purpose of this Agreement, a product is to be considered as being dumped, i.e., introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country'". xxxx 3.4. The very first stage of an investigation is the identification of the PUC and its scope. The standing of the DI for the application, determination of "injury" and "causal link" are all contingent on the PUC. Once the PUC is precisely and properly identified, the "like article" produced by the DI is decided in terms of Rule 2 (d) of the Rules befor....
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....regarding exclusions of some part, then this should be finalized within 3 months from the date of initiation. The changes could be made at the stage of the oral hearing, after receipt of written submissions and rejoinders with the specific approval of DG. No change should be done after this stage. xxxx 3.15. The different grades/form/types/strengths/sizes of product may not mean different products. They are subsets of one product that is proposed to be investigated and hence is alike as far as their essential physical & technical characteristics are concerned, at best they can constitute PCNs (discussed in paragraphs below). xxxx 3.18. The scope of the PUC can be modified based on the information received by the Authority. However, the amended PUC should be the basis for determining the standing of the DI, dumping margin, injury margin etc. xxxx 3.22. PCNs should be defined taking into account the relevance and economic significance of respective PCNs. This is done with a view to have specific information on product types and to enable the Authority to do a fair comparison (apple to apple comparison). xxxx Trea....
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.... xxxxx 3.45. To define the 'like article', the first step is to look for identical articles. In the absence of such identical features, the goods with characteristics closely resembling those of the PUC should be seen. Only if the goods produced by the DI are found to be not identical, then other factors such as channels of distribution, market segmentation, the process of manufacturing, etc., should be considered in determining the 'like articles'. Physical Similarity. xxxxx 3.46.1. Similarity of physical characteristics like size, shape, content, weight, appearance, taste, grade, standards, age, strength, purity and chemical composition. 3.46.2. Verify whether the goods are classified under the same or matching tariff classification. Technical Substitutability: 3.46.3. Technical specifications/ standards 3.46.4. Grades, purity, etc. Commercial Substitutability 3.46.5. Commercial substitutability refers to attributes identifiable from following market behavior: (i) Are the goods directly competitive in the market? Do the goods compete in the same market sector? Within this ....
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....facture similar? A similarity in the cost of manufacture may be an indicator of likeness but is not determinative. (iv) Are there any patented processes or inputs involved? 3.47. Production substitutability may also be examined. It would mean that producers/manufacturers can interchangeably produce the products within the same facility then they should be considered like article, as was held in the case of aluminum radiators22 wherein the product variants as such were nor substitutable by the end user/consumer but they were being produced by all the producers interchangeably. 3.48. The quality of the PUC cannot be claimed to be a valid ground for claiming product differentiation as there could be a substantial element of subjectivity in such assessment. However, if the issue of quality is such that it can be demonstrated to lead to technical implications, it should be appropriately examined. xxxx 3.50. The 'like articles' have to be determined in the context of the applicant DI only. It is pertinent that if a product is considered as 'like article' then the industry producing that particular like article must necessarily ....
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.... under consideration" or not for arriving at such findings. We have not gone into the technical aspects of examination whether specialty grades of SPVC Resin imported by the petitioners is a "like article" or not but have examined the procedure and process of analysis adopted by the Designated Authority to come to the conclusion that specialty grade SPVC Resins imported by the petitioners are being produced by the domestic industry, relying upon the material that SPVC Resins are capable of being used for general purpose, contrary to the Manual of Operating Practices for Trade Remedy Investigations placed on record which also stipulates that scope of PUC can be modified based on information received by the authority. 103. It is apparent from the impugned Addendum Notification that Designated Authority has accepted what is provided by the domestic industry without any further investigation to clearly and accurately define and describe the scope of the PUC to arrive at the conclusion that the specialty grade SPVC Resins are technically and commercially substitutable and the subject goods produced by the domestic industry are "like articles" to product under consideration imported f....