TaxTMI 
TaxTMI 
2002 (5) TMI 70
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....nafter called the Act). Anti-dumping duty on dumped articles. -Section 9A. Where any article is exported from any country or territory(1) (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Section 9B. (1) ……. The Central Government may, by notification in the Official Gazette make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which any investigation maybe made for the purposes of this section, the factors to which regard shall be at in any such investigation and for all matters connected with such investigation. 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 Gold (Control) Appellate Tribunal constituted under section 1....
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....gnated authority enjoins such authority, (a) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; (b) to identify the article liable for anti-dumping duty; (c) to submit its findings, provisional or otherwise to Central Government as to - (i) normal value, export price and the margin of dumping in relation to the article under investigation; and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. (d) to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, and the date of commencement of such duty; and (e) to review the need for continuance of anti-dumping duty. R....
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....ndustry expressing either support for or opposition, as the case may be, to the application. Notwithstanding(4) anything contained in sub-rule (1) designated authority may initiate an investigation suo motu if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation. Principles governing investigations. - (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following : - (i) the name of the exporting country or countries and the article involved; (ii) the late of initiation of the investigation; (iii) &nbs....
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....ent the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. In(8) a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances. 4.Validity of Rule 7 being in dispute, is quoted hereunder :- Confidential7. Information. - (1) Notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 7, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon t....
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....The(2) designated authority shall issue a public notice recording its preliminary findings. Rule 13 contemplates levy of provisional duty by the Central Government on the basis of the preliminary findings recorded by the designated authority. Rule 14 empowers the designated authority to terminate the investigation immediately depending upon certain circumstances enumerated in clauses (a) to (e) of Rule 14. Rule 16 mandates the designated authority to inform all interested parties of the essential facts under consideration which forms the basis for its decision before giving its final findings as contemplated under Rule 17. Rule 18 empowers the Central Government to levy duty within three months of the date of publication of final findings by the designated authority. Rule 21 relates to refund of duty which is of some relevance, being extracted hereunder :- Refund of duty.21. - (1) If the anti-dumping duty imposed by the Central Government on the basis of the final findings of the investigation conducted by the designated authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. If,(2) the anti-dum....
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....ar all the contesting parties and any other persons, who may file their objections before him. IV. The first respondent, Designated Authority shall communicate its orders on the preliminary issue to all the parties and thereafter would give a respite to his proceedings for a period of 15 days. V. All the contentions of both the parties are left open. Ordered accordingly. Subsequently public hearing was held by the respondents on 25-9-2001 and order was passed on 15-10-2001 by the first respondent upholding its jurisdiction. Operative portion of the "decision" is extracted hereunder : Decision From the above, it93. is clear that the allegations made are not based on facts and correct interpretation of anti-dumping laws and procedures. It appears that most of the allegations are based only on the non copy of the application. The assumptions made by the parties challenging the initiation notification are based on incomplete facts resulting in incorrect averments and conclusions. The averments are based on mere conjectures as they are devoid of facts and the law on the subject appears to have not been pr....
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....ot disputed that writ petitions have been filed before Rajasthan High Court challenging the initiation notification and the order dated 15-10-2001. While the matter stood thus, the present writ petitions have been filed in this Court. 9.Petitioners have contended that after passing the order dated 15-10-2001 upholding its jurisdiction to initiate investigation, the respondent No. 1 has proceeded to render a preliminary finding as contemplated under Rule 12 without complying with the mandatory provisions contained in Rule 6 and without giving any further opportunity of being heard to the present petitioners (who are interested parties). It is contended that the decision dated 16-1-2002 having been passed without following the mandatory provisions of Rule 6 and the principles of natural justice, should be quashed. In this context, it is also prayed that Rule 7 may be declared as illegal and ultra vires as it has given unbridled and unguided power to the designated authority to withhold any relevant information. 10.In the counter affidavit filed by the respondent No. 1 and by the respondent Nos. 6 and 7, the contentions raised by the petitioners have been refuted. It has been submit....
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.... contended that even assuming that respondent No. 1 did not issue any fresh notice as contemplated under Rule 6(1) and forwarded the copy of the public notice to the interested parties as contemplated under Rule 6(2), it should have given opportunity to the interested parties, such as petitioners, to present information to the investigation orally as contemplated under Rule 6(6). It has been submitted that public hearing which had been given was on 25-9-2001, prior to the decision of the respondent No. 1 to initiate investigation, but the principles contained in Rule 6 indicate that he is required to give opportunity of hearing under Rule 6(6) and required to observe other formalities contained in Rule 6(1) and (2) after deciding to initiate investigation and not before deciding to initiate investigation. 13.The aforesaid submissions made by Sri P. Chidambaram, learned Senior Counsel and supported by Sri. Habibullah Badsha, though prima facie attractive do not bear closer scrutiny. Notification dated 25-6-2001 purports to be the public notice as contemplated under Rule 6(1) indicating that the designated authority has decided to initiate investigation. It is no doubt true that the....
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....me of decision of the High Court if the initiation was found to be within jurisdiction. It is not disputed that subsequently the designated authority by the order dated 15-10-2001 has concluded that initiation was justified. Having reached this conclusion, it was not necessary for the respondent No. 1 to retrace the steps already covered and it was free to proceed from that stage onwards. From the records it is apparent that the designated authority had already issued public notice and had already complied with Rule 6(1) and Rule 6(2) stage of the contemplated investigation. Thus it was not necessary for the authority to comply with Rule 6(1) and Rule 6(2) afresh. 15.Learned Counsels have also submitted that even assuming that it was not necessary to follow the stage of Rule 6(1) and 6(2), the designated authority is bound to allow the interested parties, namely the petitioners to present the information relevant to the investigation orally as contemplated in Rule 6(6) and the petitioners being the admitted interested parties, should have been given opportunity of "oral hearing". This submission of the learned Counsels appearing for the petitioners has been combated by the learned....
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....nt Act or Statute or the Rules as well as the facts and circumstances of each case and it cannot be said that in every case an authority while deciding a matter administratively or even quasi-judicially, is bound to give an opportunity of personal hearing. 16.In the present case, there is no material on record to indicate that any of the petitioners either after the publication of public notice under Rule 6(1) or receipt of copy as contemplated under Rule 6(2) had prayed for giving any opportunity as contemplated within Rule 6(6). It has to be noticed that investigation as contemplated in Rule 6 is merely administrative in nature for the purpose of finding out certain facts. Preliminary findings wherever rendered under Rule 12 and the final findings as contemplated under Rule 17 are in the nature of fact finding conclusions, obviously not binding on the Central Government. Investigation contemplated under Rule 6 cannot be equated with a quasi-judicial proceeding. 17.Learned counsels for the petitioners have also submitted that in its conclusion dated 15-10-2001, the designated authority itself had decided to proceed further from the stage of Rule 6 and therefore it was not open t....
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....e Authority made a determination regarding the 'standing' of the applicants to file the petition on behalf of the domestic industry duly recorded in para 3 of the initiation notification. Further, 'sufficient evidence' with respect to dumping, injury and causal link and their adequacy as well as accuracy were available before the Authority to justify the initiation of the investigation. (emphasis added) 20.The order dated 15-10-2001 expresses more reasons in detail in justification of the notification already issued and cannot be construed as a conclusion of the designated authority to initiate proceedings afresh. Similarly reference in paragraph 91 to the effect "However, a detailed examination of the issues would be carried out after taking into account the arguments as well as the evidence produced by various interested parties during the course of the investigation." does not reflect that the "investigation" has to start afresh from the stage of Rule 6(1) wiping out the exercise already undertaken. 21.Learned counsels for the petitioners have also referred to the observations made in Paragraphs 16.1 to 16.4 in the impugned order dated 16-1-2002 and have contended that after a....
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....tory Rules. Even if any provisional duty is levied, an importer would not be prejudiced if ultimately it is found that levy of provisional duty was not justified. Keeping in view of the above aspects, I am of the view that the petitioners have not suffered any prejudice on account of the alleged illegality or irregularity in the proceedings of the respondent No. 1. 24.Learned Counsel for the petitioners, particularly Sri Habibullah Badsha contended that the conclusions reached by the designated authority are without any basis and no reasonable man could have come to such conclusion as such, such conclusion should be quashed. He has painstakingly pointed out several loopholes or defects in the reasonings given by the designated authority. I am afraid, such a contention cannot be countenanced at this stage. As already indicated the findings are merely recommendatory in nature. The designated authority is yet to render its final findings as contemplated under Rule 17. Before such final findings are recorded, it would be open to an interesting party to point out the loopholes or the shortcomings in the preliminary findings and ultimately if any duty is levied, such order can be challe....