TMI Blog1999 (11) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... , Czech Republic and Germany appellant filed an application before the Designated Authority to consider and recommend anti-dumping duties on eight systems of needles locally manufactured. After a preliminary investigation, Designated Authority recommended anti-dumping duties. As per the preliminary finding rendered by it, Ministry of Finance imposed anti-dumping duties on needles vide Notification No. 106/98, dated 24-12-1998. Thereafter, Designated Authority invited interested parties to submit their objections. Concerned parties filed their objections and Designated Authority passed its final order dated 12-4-1996. By that order, petitioner before the Designated Authority, namely, the appellant company was held to be related to an exporter and cannot be deemed to form part of the domestic industry within the meaning of that term as defined in the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules). Consequent on the above finding, the Designated Authority took the view that no proceedings are called for pursuant to the application put in by the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained in the Act and the Rules. On the basis of the final determination if it is found that excess amount has been collected by way of anti-dumping duty, the excess must be refunded. Section further states that the margin of dumping must be ascertained and determined from time to time after making such enquiry as is provided by the Rules framed thereunder. Section 9B, inter alia, states that unless a determination has been made in accordance with the rules on the question of injury to Indian industry consequent on import of articles into India, the Central Govt. should not levy any countervailing duty or anti-dumping duty. Central Govt. is enjoined by these provisions of the Act to make rules providing for the manner in which any investigation may be made for the purpose of giving effect to the provisions contained in the Sections. Section 9C provides for appeal to CEGAT. Clause (1) of that Section which is relevant for our purpose reads :- 9C(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 Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted by more than 25% of the domestic producers, then the investigation should not be initiated. 8. In the instant case, the Designated Authority came to the conclusion that the appellant herein, who was the applicant before it, does not come within the definition of domestic industry. As a result of that, the Designated Authority did not enter a finding as to the normal value, export value and the margin of dumping in relation to the article under investigation and injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent on the import of the article mentioned by them from the countries specified in the application. In other words, on the conclusions reached on the question of non-maintainability of the petition, the Designated Authority did not initiate the investigation as contemplated by the Rules. It is true that on receipt of the petition, it passed a provisional order and pursuant thereto Central Govt. issued notification levying anti-dumping duty. The said finding and the consequent notification cannot have any relevance now because of the conclusion reached by the Designated Authority th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-maintainability, it may fall in the category of a negative finding. In other words, such an order must be deemed to have the force of a finding that there is no existence, degree or effect of any subsidy or dumping in relation to the import of the article. Viewed in this light it was contended that such an order must also be treated as an appealable order. We find it difficult to agree with this contention. An affirmative finding or a negative finding can be arrived at only in proceedings, which are initiated properly by a competent body under the Rules. If the application itself is rejected on the ground of non-maintainability, there is no initiation of investigation by the Designated Authority. In the absence of such an initiation of investigation, we do not find any ground to take the view that an order dismissing the application as non-maintainable will fall within the scope of Section 9C of the Act. 11. Learned Counsel representing the appellant submitted that the Designated Authority has wrongly refused to exercise its jurisdiction to go into the issue raised in the petition. When such an error is committed by the Designated Authority, this Tribunal should interfere in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this set of facts, their Lordships observed :- When it (Election Tribunal) passes an order which closes the proceedings before it arising out of an election petition, it must be deemed to have tried the petition and passed the order at the conclusion of such trial. In this view, it was held that the order, though purporting to be passed under Section 90(3), is to be treated as an appealable order. This decision cannot, in any way, help the appellant herein. The Designated Authority did not initiate the investigation as contemplated by the Rules on the ground that the application is not by the domestic industry. When there was no initiation of investigation as per the Act and Rules, the dismissal of the application cannot be taken as a negative finding reached by the Designated Authority. Consequently, we hold that the impugned order does not fall within the four corners of Section 9C of the Act. 13. In view of what has been stated above, we uphold the preliminary objection raised by the respondents and hold that the appeal is not maintainable. Without examining the issues sought to be raised by the appellant in this appeal, the appeal is dismissed as not maintainable. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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