TaxTMI 
TaxTMI 
2005 (2) TMI 135
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....e domestic market of the exporter. Anti dumping duty is leviable under Section 9A of the Customs Tariff Act, 1975 (referred to as 'the Act') read with the Rules which are framed under Section 9A(6). The duty is calculated on the margin of dumping which is the difference between the export price and the normal value. 4.The phrase " 'normal value' in relation to an article has been defined in Clause (c) to the Explanation to Section 9A(1) as meaning : - (i) "the comparable price, in the ordinary course of trade, for the like article when meant 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 situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either - (a) comparable represen....
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....mal value of non-market economies. Paragraph 7 to Annexure I now provides for the determination of the normal value with reference to the price paid by a third country with a market economy to India of a like product. If such a third country is selected, the Designated Authority has to inform the exporters of the selection and grant them a reasonable period to offer their comments. It is only if this procedure is not possible that the Designated Authority can act on any other 'reasonable basis'. In other words, the Designated Authority must exhaust the first method before moving to the alternative procedure. 8.The second notification dated 31-5-2001 inserted a further paragraph after Paragraph 7 as paragraph 8 in Annexure-I to the following effect :- "The term "non-market economy country" subject to the Note to this paragraph means every country listed in that note and includes any country which the designated authority determines and which does not operate on market principles of cost of pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise. While making such determination, the designated authority shall consider as to ....
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....at is done the Designated Authority would then apply the principles enunciated in Paragraphs 1 to 6 of Annexure-I which as we have said are applicable to market economy countries. 10.The respondent Nos.1 and 2 representing the domestic industry which either manufactures or imports lead acid batteries, filed a petition for initiation of anti-dumping investigation concerning import into India of lead acid batteries from Japan, Republic of Korea, Peoples' Republic of China and Bangladesh under Rule 5(1) of the Rules. On 12th January, 2001, an initiation notification was issued by the Designated Authority of the Directorate General of Anti-dumping and Allied Duties "being satisfied, prima facie that the normal value of the lead acid batteries in the subject countries was significantly higher than net export price indicating that the goods were being dumped by the exporters from the subject countries" and that as a result of the allegedly dumped imports, domestic industry had suffered injury. The period for the purposes of the investigation as indicated in the initiation notice was 1st January, 2000 to 30th September, 2000. The Designated Authority sent a questionnaire to 31 companies ....
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....n two officers of the Directorate General of Anti Dumping of Allied Duties visited the appellant's manufacturing facilities in China. A disclosure statement was furnished by the authority to all the parties. After investigation and verification, the Designated Authority noted that the appellant had furnished the required information which had been verified. It was held that anti-dumping duty was not applicable to the appellant as the dumping margin was negative. A notification was issued to this effect by the Central Government. 14.The respondent No. 1 challenged the final order of the Designated Authority dated 7th December, 2001 before the Customs Excise and Gold (Control Appellate Tribunal) (CEGAT). One of the points raised by the respondent Nos. 1 and 2 before the Tribunal was that the Peoples' Republic of China was a non-market economy and, therefore, the normal value should be determined on the basis of the amendments effected to the Rules relating to non-market economies. 15.During the pendency of the respondent's appeal before the Tribunal, on 25th November, 2002, an order was passed by the Designated Authority which reads as follows : "…..As per the Appellants the des....
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....rket driven units could prove that they were operating according to market principles. It was noted that pursuant to the interim order of the Tribunal, the Designated Authority had examined the matter from the perspective of requirements under the amended provisions for non-market economy countries and had placed a statement before the Tribunal. But the Tribunal rejected the report of the Designated Authority on the ground that it was incumbent on the appellant and the other two units excluded from anti-dumping duty to establish that they are run according to market principles and that no verification had been carried out at the premises of the exporters to satisfy itself that the data summary filed in the questionnaire responses correctly reflected the transaction as per the books of account of the individual units and that the accounts satisfied Generally Accepted Accounting Standards (GAAS) of the country. The exclusion of the appellant from the purview of anti-dumping duty, had, according to the Tribunal been done without the necessary scrutiny and, therefore, it was unsustainable. The Tribunal therefore came to the conclusion that the appellant and the other two units had to b....
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.... decided on a country wise basis, individual concerns could not be separately represented. According to the Respondent No. 1 in the decision of this Court Designated Authority v. Haldor Topsoe A/S (2000) 6 SCC 626 it has been held that the normal value of a non-market economy is country specific. Therefore a uniform rate was to be taken for all Chinese exporters and it was not open to an individual unit to claim that it was run according to market economy principles. It is submitted that the preliminary finding of the Designated Authority was in the circumstances correct. According to the respondent No. 1, the verification conducted by the Designated Authority at the appellant's unit in China was questionable. 21.It is not necessary to decide whether China was to be treated as a non-market economy during the period of investigation or whether the normal value should be decided on a country-wise basis, as we are not prepared to allow the respondent No. 1 to take up what is clearly an inconsistent stand. Its submission before the Tribunal as recorded in the Tribunal's order was that the final finding of the Designated Authority could not be sustained because it was in clear violatio....
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....ribunal had granted only seven days time within which the Designated Authority was to submit its report. The respondent No. 1's contention that the verification was improperly done cannot be gone into at this stage. It is a question of fact, which should have been clearly raised and proved. In fact it does not appear that such a grievance was made before the Tribunal by the respondent No. 1. 23.Having found that the Designated Authority had violated the notifications, the Tribunal chose to rectify the situation by issuing the order dated 25th November, 2002 which we have quoted earlier. Neither of the parties have impugned that order by which the Designated Authority was directed to comply with the notifications. It was then not open to the Tribunal to proceed on the basis that there was a violation of the notifications. 24.The Tribunal did not address itself to the question whether there was sufficient evidence to support the Designated Authority's finding that there was no dumping by the appellant. It held that the appellant was liable to pay dumping duty without considering the injury if any to the domestic industry and the causal connection between the alleged dumping and the....