AI Drafter 
TaxTMI 
TaxTMI 
2026 (4) TMI 1757
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....u Youli Optics Spectacles Ltd., Chemilens (Jiaxing) Co., Ltd., Chemilens Corporation, See World Optical Co., Ltd., Shanghai Essilor Optical Co., Ltd., China And Shanghai Weixing Optical Technology Co., Ltd., Shanghai And Carl Zeiss India (Bangalore) Pvt. Ltd., Essilor Manufacturing India Private Limited, Bangalore And Jiangsu Future Vision Co., Ltd., Zhenjing And Essilor Amera Pte. Ltd., Singapore And GKB Vision (P) Ltd., Goa And Vision Rx Labs Private Limited, Kolkata And RayBan Sun Optical India Pvt. Ltd., Rajasthan For the Appellant : Ms. Reena Asthana Khair and Ms. Shreya Dahiya, Advocates For the Respondent : Shri V. Lakshmikumaran, Shri Darpan Bhuyan, Ms. Pareesha Gupta and Shri Yashovarham Singh, Advocates Nos. Respondent no16 to 23, 25, 26 and 27, Ms. Radhika Sharma, Shri Sparsh Bhargava, Ms. Vanshika Taneja, Shri Somit Nirvan and Shri Aryan Singh, Advocates No. 5, Shri Dhruv Gupta and Shri Bhargav Mansatta, Advocates for Respondent Nos. 6, 7, 8 and 9, Shri Ameet Singh, Shri Manav Bhartia and Shri Anuvrat Bhatnagar, Advocates for the DGTR For the Department : Shri Nikhil Mohan Goyal, Authorized Representative of Union of India ORDER JUSTICE DILIP GUPTA: GK....
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....- -do- China PR Any country including China PR Shanghai Conant Optics Co., Ltd. Nil Piece USD 3. -do- -do- China PR Any country including China PR Zhejiang Weixing Optical Co., Ltd. Nil Piece USD 4. -do- -do- China PR Any country including China PR Carl Zeiss Vision (China) Limited Nil Piece USD 5. -do- -do- China PR Any country including PR Daejeon Daemyung Optical (Hangzhou) Co., Ltd. Nil Piece USD 6. -do- -do- China PR Any country including China PR Any producer other than those mentioned at S. Nos. 1, 2, 3, 4 & 5 0.15 Piece USD 7. -do- -do- Any country other than China PR China PR Any 0.15 Piece USD *Customs classification is only indicative, and the determination of the duty shall be made as per the description of PUC. ** The products under consideration is semi-finished ophthalmic lenses made up of plastic. Semi-finished ophthalmic lenses are semi-finished blanks which have the front surface of the lens made of ophthalmic quality and the back surface unfinished. Semi-finished blanks are surfaced to the de....
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.... the raw materials and utilities has been considered over the injury period. Best utilisation of production capacity over the injury period has been considered as per Annexure III of the 1995 Rules; and (iv) The injury margin for all co-operative exporters was found to be negative. The injury margin for the residual category was determined at 20% to 30%. 6. The appellant claims that it was not furnished the details of the NIP calculations along with the Disclosure Statement and, therefore, it requested both telephonically and by an e-mail dated 09.09.2022 that detailed workings of the NIP be provided and that a video conference be granted to enable it to understand the basis of the computation. The appellant further claims that as no meaningful disclosure was made, the appellant filed its comments to the Disclosure Statement only on the basis of the information made available in the Disclosure Statement. 7. The designated authority, thereafter, issued the final findings on 29.09.2022. 8. On the aspect of NIP, the designated authority held as follows: "161. With regard to the claim that the Authority has incorrectly computed PCN-wise NIP for the domestic i....
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....ts calculations were not provided to the appellant along with the Disclosure Statements and thus the appellant was denied an opportunity to offer proper comments to the Disclosure Statements. Learned counsel submitted that the working of NIP was made available to the appellant only on 02.01.2023, much after the issuance of the final findings dated 29.09.2022 and the Customs Notification dated 27.12.2022. To support the contention that the principles of natural justice have been violated, learned counsel placed reliance upon the judgment of the Supreme Court in Reliance Industries Ltd. vs. Designated Authority [2006 (202) E.L.T. 23 (S.C.)] and the judgment of the Gujarat High Court in Nirma Limited vs. Union of India [2017 (358) E.L.T. 146 (Guj.)] 14. In addition to the submissions regarding violation of the principles of natural justice, learned counsel for the appellant also submitted that the determination of NIP by the designated authority is contrary to the provisions of the 1995 Rules. The contention is that the normal value has been determined on the optimized cost of production determined for the domestic industry in terms of Annexure III to the 1995 Rules instead of dete....
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....ples for determination of the NIP. Paragraph 4 of the Annexure III explicitly provides for normation. The designated authority bound by the statutory provisions of Annexure III. The approach of normation is designed to eliminate inefficiencies and determine a fair, competitive price that the domestic industry should be able to achieve in the absence of dumped imports. It is not an "artificial" construction, but a reasonable projection based on the own historical best performance of the domestic industry; (v) The specific allegations of the appellant on cost determination are baseless. The designated authority considered the cumulative raw material cost. The claim that the cost of two mutually substitutable raw materials was taken as nil is a misunderstanding. The best utilization norm applied to cumulative data automatically accounts for the shift to a more cost-effective raw material. If the appellant had intended to produce a new product type with a different raw material mix, it was incumbent upon them to identify a separate Product Control Number (PCN) for such products. Failure to do so will not render the normation approach invalid. The designated authority did not p....
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....d the final findings and Shri Nikhil Mohan Goyal, Authorized Representative of the department appearing for the Central Government also submitted the final findings and submitted that the Central Government also issued the Notification. 20. The submissions advanced by the learned counsel for the appellant and the learned counsel appearing for the respondents have been considered. 21. The main submission of the learned counsel for the appellant is regarding violation of the principles of natural justice by the designated authority in not furnishing detailed NIP calculations along with the Disclosure Statement. 22. In order to examine these submissions it would be useful to first examine the relevant provisions of the Customs Tariff Act, 1975 [the Tariff Act] and the 1995 Rules. 23. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country 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 marg....
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....o India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. (2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. (3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if- (i) there is a concentration of dumped imports into an isolated market, and (ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market." 32. Rule 17 deals with final findings. It is reproduced below: "Final findings.- (1) The d....
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....i-dumping duty which, if levied, would remove the injury where applicable, to the domestic industry. The principles for determination of NIP are contained in Annexure III to the 1995 Rules and the relevant portion is reproduced below: "ANNEXURE III [See rules 17(1)] (1) The designated authority is required under subrule (1) of rule 17 to recommend the amount of antidumping duty which, if levied, would remove the injury where applicable to the domestic industry. (2) For the purpose of making recommendation under clause (1), the designated authority shall determine the fair selling (notional) price or non-injurious price of the like domestic product taking into account the principles specified herein under. (3) The non-injurious price is required to be determined by considering the information or data relating to cost of production for the period of investigation in respect of the producers constituting domestic industry. Detailed analysis or examination and reconciliation of the financial and cost records maintained by the constituents of the domestic industry are to be carried out for this purpose. (4) The following elements of cost of prod....
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....st of exports made by specific exporters viz. Conant Optics (Jiangsu) Co. Ltd., Shanghai Conant Optics Co. Ltd., Zhejiang Weixing Optical Co. Ltd., is more than the NIP pertaining to the Petitioner. Accordingly, there is no evidence of dumping in such cases. However, the Petitioner has not been provided with any workings basis which landed price of exports by aforesaid suppliers or computation of NIP by DA have been determined and that seems arbitrarily observed without considering the detailed facts provided by the Petitioner. The Petitioner is aggrieved by the conclusions drawn by DA and would request DA to provide detailed information in this regard. In this context, it is pertinent to take note of the decision in Nirma Limited vs. Union of India 2017 (358) E.L.T. 146 (Guj.) as well as M/s. Jindal Poly Film Limited vs. Designated DA Directorate General of AntiDumping and Allied Duties, Union of India, Ministry of Finance 2020 (2) TMI 642 wherein it has been observed that the Designated authority shall, before giving its findings, inform all interest parties of the "essential facts under consideration" which form the basis of its decision. The purpose of disclosure of es....
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....ell as Rule 16 of ADD Rules. Accordingly, we request your good self to provide the information sought by the Petitioner along with sufficient time to evaluate the same and file additional submissions upon perusal of such information. Also, we request your good self to grant us a personal hearing to explain our submissions before arriving at any conclusions with regard to exclusion of semi-finished ophthalmic lenses with RI higher than 1.60 from the scope of PUC and finalizing PCN wise NIP to protect the interest of the domestic industry." (emphasis supplied) 39. The designated authority did not provide the information sought by the appellant in response to the Disclosure Statement and issued the final findings dated 29.09.2022. On the basis of the NIP determined by the designated authority, the injury margin was determined as negative for all participating exporters. The appellant, therefore, then sent an e-mail dated 06.10.2022 again requesting the designated authority for providing more detailed disclosure of NIP and it was only on 30.10.2022 that video conference meeting was granted to the appellant pursuant to which a meeting a detailed disclosure was provided to the appe....
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....he Disclosure Statement and in fact in response to the Disclosure Statement, the appellant specifically requested the designated authority that the NIP computation be provided to the appellant by e-mail dated 12.09.2022 was not sufficient. The appellant pointed out that the NIP had been determined by the designated authority without providing any opportunity to the appellant and this violated of the provisions of rule 16 of the 1995 Rules. 45. The issuance of a Disclosure Statement is governed by Article 6.9 of the Agreement on Implementation of Article VI of the GATT 1994, that reads as: "6.9 The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests." 46. Article 6.9 clearly mandates that the designated authority disclose the essential facts forming the basis for its decision to apply definitive measures. 47. Rule 16 of the 1995 Rules also provides that the designated authority shall, before giving its final findings, in....
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....is submission is accepted, it was incumbent upon the designated authority to have provided details of the NIP determination as even the determination of best utilization over the past three years period and the period of investigation is a factual aspect which was required to be dealt with by the designated authority after examining the response of the appellant to the Disclosure Statement. 51. The designated authority should have provided the information that it subsequently provided to the appellant on 02.01.2023 with the Disclosure Statement so to enable the appellant to have submitted a proper response to the Disclosure Statement. Even after the appellant sent the communication dated 09.09.2022 requiring the designated authority to provide detailed computation of NIP only some information was provided by the designated authority by letter dated 12.09.2022. 52. The designated authority did supply the detailed calculations to the appellant on 02.01.2023. The contention of the learned counsel for the appellant is that the designated authority reduced the actual cost of production of the appellant for determination of NIP by application of optimization norms purportedly under....
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....than 1.6 and more than 1.6 are not technically or commercially substitutable. When a product is not produced by the domestic industry, imports of the same cannot cause any injury to the domestic industry. This is what was observed by the Tribunal in M/s. Mahle Anand Thermal Systems Private Limited vs. Designated Authority, Directorate General of Trade Remedies [Anti-Dumping Appeal No. 51485 of 2022 decided on 13.04.2023] 59. It further needs to be noted that the Manual of Standard Operating Practices for Trade Remedy Investigations issued by the Directorate General of Trade Remedies, Department of Commerce, Government of India provides in Article 3.10 that mere competence to produce without actual production or sales may not be sufficient to include an item in the definition of the product under consideration. The relevant portions of the Practices are as follows: "3.10. The PUC is defined to include those items only, which are manufactured by the DI. Mere competence without any production or merchant sales may not be sufficient to include an item in the definition of the PUC. Similarly, if an item is produced and consumed only captively (in-house) without any outside s....