2005 (6) TMI 299 - AT - Customs

Anti-dumping appeal - Jurisdiction of Appellate Tribunal - Anti-dumping duty - Strictures against the Designated Authority (Anti-dumping)

Issues Involved:
1. Preliminary Objection on Maintainability of Appeal
2. Non-Acceptance of Price Undertaking
3. Legal Framework and Procedural Compliance

Detailed Analysis:

Preliminary Objection on Maintainability of Appeal:
The respondents raised a preliminary objection arguing that an appeal under Section 9C of the Customs Tariff Act, 1975, was not maintainable against the non-acceptance of a price undertaking. They contended that only an order of determination regarding the existence, degree, and effect of dumping could be challenged under this provision. The appellant countered by asserting that the notification imposing anti-dumping duty and the final findings could be challenged on the ground of non-acceptance of the price undertaking, which falls within the scope of "existence, degree, and effect of dumping."

The Tribunal noted that anti-dumping duty can be imposed based on the margin of dumping, which involves comparing the export price and normal value. The Tribunal held that the order of determination regarding the margin of dumping could be challenged if the Designated Authority did not follow the prescribed rules. Therefore, the preliminary objection against the maintainability of the appeal was dismissed.

Non-Acceptance of Price Undertaking:
The appellant argued that the Designated Authority did not reject the price undertaking on the ground of delay and had called for comments from interested parties. The appellant contended that the Designated Authority failed to provide reasons for the non-acceptance of the price undertaking in the final findings, which appeared suddenly with a cryptic observation. The appellant emphasized that the Designated Authority had a duty to apply its mind to the nature of the undertaking and determine whether the revised price offered eliminated the effect of dumping.

The respondents argued that the Designated Authority had valid reasons for non-acceptance and that the appellant did not have a legal right to get its undertaking accepted. The Tribunal held that the Designated Authority must consider the price undertaking objectively and provide reasons for non-acceptance. The Tribunal found that the Designated Authority acted arbitrarily by not considering the price undertaking on merits and failing to provide explicit reasons for its non-acceptance.

Legal Framework and Procedural Compliance:
The Tribunal examined Rule 15 of the Customs Tariff (Identification, Assessment, and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, which provides for the consideration of price undertakings. The Tribunal emphasized that the Designated Authority must consider the price undertaking seriously and cannot reject it arbitrarily. The Tribunal noted that the Designated Authority failed to provide reasons for the non-acceptance of the price undertaking in the final findings and relied on an office note that did not indicate why it was not practicable to accept the undertaking.

The Tribunal concluded that the Designated Authority acted arbitrarily by not considering the price undertaking on merits and failing to provide explicit reasons for its non-acceptance. The Tribunal directed the Designated Authority and the Central Government to reconsider the price undertaking offered by the appellant and take a fresh decision thereon, in accordance with law, within two months.

Final Order:
The Tribunal set aside the portion of the impugned notification and final findings where the price undertaking was held to be not acceptable. The Designated Authority and the Central Government were directed to reconsider the price undertaking offered by the appellant and take a fresh decision thereon, in accordance with law, and modify the final findings and the impugned notification relating to the imposition of anti-dumping duty on the appellant within two months. The appeal was partly allowed.

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