TMI Blog1999 (12) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... f catalysts originating in or imported from Denmark and recommended imposition of Anti-dumping duty on six Catalysts exported by the appellant. Ministry of Finance accepted the recommendations and issued notification levying anti-dumping duties on six Catalysts. These Catalysts are used in fertiliser and petroleum refining plants. 2. Proceedings under the Rules were initiated against the appellant on receipt of applications from M/s. United Catalysts India Ltd., hereinafter referred to as UCIL and M/s. Projects and Development India Ltd., hereinafter referred to as PDIL. These two industries alleged dumping by the appellant of six types of Catalysts : (i) Hydro Desulphurisation (HDS) (ii) Zinc Oxide Desulphurisation (ZODS) (iii) Low Temperature Shift (LTS) (iv) High Temperature Shift (HTS) (v)) Secondary Reforming (SR) (vi) Methanation (MC) 3. Designated Authority issued public notice initiating Anti-dumping investigation on import of the above catalysts from Denmark on 6-9-1996. Questionnaire was served on the appellant for eliciting information on 10-9-1996. Appellant furnished reply to the questionnaire. On 7-5-1997 Designated Authority published preliminary find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Final order was issued only on 5-1-1998. It means the Designated Authority took one year and four months from the date of initiation of the proceedings for passing the final order. On the basis of the preliminary finding, Ministry of Finance issued Notification No. 56/97, dated 20-6-1997 imposing provisional anti-dumping duty valid up to 19-12-1997. Till the date of expiry of that notification, Designated Authority did not issue the final order. On this basis, it was contended by the learned Counsel representing the appellant that the final order issued by the Designated Authority on 5-1-1998 is without jurisdiction. 6. Files of the Designated Authority which were placed before us show that prior to the expiry of one year fixed under Rule 17, request was made to the Central Government for extending the time. By letter dated 4-9-1997 further time was asked for by the Designated Authority. That request was granted by office memorandum dated 13-10-1997 whereunder period for submission of final finding was extended up to and inclusive of 5-12-1997. Since the Designated Authority could not pass the final order within the extended period, further extension was again sought for by lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel, must apply on all fours to the Central Govt. while exercising the powers under the proviso to Rule 17, because that proviso requires existence of circumstances of exceptional nature. The existence of such circumstances is a condition precedent for the Central Govt. to exercise jurisdiction to grant extension. For deciding that aggrieved party should have been given notice. The notice not having been issued by the Central Govt., the extension granted, it is contended, is illegal. 7. There is nothing on record to show that Central Govt. issued any notice to the appellant herein before granting the extension of the time fixed by Rule 17. Even so, the action of the Central Govt. is not one which can be gone into by us in exercise of the appellate jurisdiction conferred on this Tribunal under Section 9C of the Customs Tariff Act, hereinafter referred to as the Act. As that section now stands, we are not to examine the correctness or otherwise of the action of the Central Govt. For the same reason, we hold that the decision in Gemini Metal Works v. The Union of India, 1985 (22) E.L.T. 27 (Mad.) 1985 ECR 2457 cannot also be of any assistance to the appellant. The juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the article in the country of export and its export price should be found out. 11. Clause C of Section 9A defines normal value. Sub-clause (i) of clause C states that normal value means the comparable price in the ordinary course of trade for the like article meant for consumption in the exporting country or territory as determined in accordance with the Rules. The comparable price in the ordinary course of trade mentioned in this sub-clause can only be the comparable price for the like article manufactured by the same exporter against whom investigation is undertaken by the Designated Authority. Price of the like article of any other manufacturer cannot be the basis for finding out the normal value for assessing the dumping margin or normal value. When such comparable price for the like article of the same manufacturer is not available, then sub-clause (ii) of clause C comes into operation. This sub-clause contains two alternatives. The first alternative is comparable representative price of the like article when exported from the exporting country or territory to an appropriate country. When particular manufacturer/exporter who is stated to be dumping his produce in India has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke catalysts manufactured by another manufacturer, namely, M/s. Sud-Chemie of Germany was taken into consideration. On the basis of the list price of Sud-Chemie, Designated Authority found out the normal value. This action of the Designated Authority is clearly in violation of the specific provisions contained in Section 9A(c) of the Act. When the anti-dumping duty is exporter specific and country specific, price of the catalysts manufactured by Sud-Chemie in Germany should not have been relied on by the Designated Authority. 15. Appellant in their representation dated 14-7-1997 filed before the Designated Authority specifically averred that Sud-Chemie sold the individual catalysts 30% to 52% lower than the list price. They stated the average price of these five catalysts sold by Sud-Chemie AG, Germany s Belgian subsidiary was around 44% lower than Sud-Chemie s 1995 European Price List . This averment made by the appellant before the Designated Authority was never looked into by that authority while passing the final order. It is common knowledge that in commercial transactions many discounts are given to customers and the actual sale price falls far below that shown in the pric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in India and the landed value of the exporter who is stated to dump the goods in India. To find out the fair selling price of domestic produce, Designated Authority resorted to their own method of costing. Fair selling price of both petitioners UCIL and PDIL were assessed. PDIL, a public sector undertaking had gone sick way back in 1991 and had gone to BIFR for revival. So the cost of production of such a sick unit has been found to be far greater than the cost of production of UCIL. In finding out the optimum fair selling price, the Designated Authority took an average of the price of UCIL and PDIL. That optimum price is, in fact, much more than the actuals of UCIL. The catalysts manufactured by UCIL when used in domestic fertiliser industry will be deemed as exports and benefits extended to them. The fair selling price now fixed by the Designated Authority does not take these export benefits into account. Therefore, the fair selling price fixed by the Authority remains high. 19. Designated Authority has found two dumping duties on each of the catalysts depending on the use to which these are put to on import. This action of the Designated Authority has come under very serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lower authority can also be directed to take additional evidence, if necessary. Such wide powers of the Tribunal under Section 129B of the Act are not envisaged under clause (3) of Section 9C of the Customs Tariff Act, 1975. Section 9C(1) states that an appeal against the order of the Designated Authority shall lie to this Tribunal under Section 129 of the Customs Act, 1962. Clause (3) of that Section limits the jurisdiction of this Tribunal when it enacts : The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit confirming, modifying or annulling the order appealed against. Apart from the three types of orders mentioned in this clause, namely, confirming, modifying or annulling the order of the appellate authority, no other power that is conferred on this Tribunal under Section 129B is mentioned there. This restricted appellate power conferred on this Tribunal supports the argument that this Tribunal is not to remand the matter to the Designated Authority for fresh adjudication or decision. On account of the nature of the dispute involved and on account of the fact that an early decision on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dumping margin works out only to 15% and the anti-dumping duty should not exceed this. As against this quantification, it has been indicated on behalf of the Designated Authority that when the landed cost is taken into account and compared with the fair selling price, injury margin of Rs. 118.00 per litre is obtained as against the injury margin of Rs. 52.61 per litre for import under Chapter 38 determined in the Final Finding Order. 24. Anti-dumping investigation is to determine whether there is dumping and, if so, the quantum of anti-dumping duty that can be imposed taking into account the injury-margin. As noted earlier in this order, the maximum anti-dumping duty permissible is the quantum of dumping. Therefore, the anti-dumping duty imposed cannot exceed the dumping margin even in cases where the injury margin is more than the dumping margin. LTS catalyst is such a case, when the above injury margin as indicated on behalf of the Designated Authority is taken into account. We find that the difference between the normal value (cost of production + margin of profit at 5%) and export price in the instant case is DKK. 4.12 per litre, which worked out to Rs. 22.82 per litre. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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