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2015 (9) TMI 402 - DELHI HIGH COURT

2015 (9) TMI 402 - DELHI HIGH COURT - 2015 (322) E.L.T. 846 (Del.) - Levy of Anti-dumping Duty on USB Flash Drives - validity of investigation and findings of the Designated Authority (DA) - Sub section (5) of Section 9A of the Customs Tariff Act, 1975 - It is contended by the petitioner that the non-supply of the data/evidence relied upon by the Designated Authority violated the principles of natural justice and curtailed the rights of the petitioner to defend/oppose the imposition of the Anti- .....

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s introduced after a period of seventeen months of initiation of investigation. Neither the copy of the said data relied upon by the Designated Authority nor the non confidential summary thereof was not supplied to the petitioners despite the same being demanded on the ground of confidentiality.

The DA, in not providing the information/material considered by him, has violated the principles of natural justice and the same is fatal to the Final Findings rendered. Consequently, the Fina .....

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petition challenging the Final Findings even prior to the same being accepted by the central government more so in a case where the principles of natural justice have not been complied with.

The fact that the Rules prescribe that if the Designated Authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disre .....

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and Mr Rupinder Simhar, Advocates For the Respondent : Mr Vivek Goyal, Advocate, Mr Sandeep Sethi, Sr Advocate with Mr Rajesh Sharma, Advocate JUDGMENT SANJEEV SACHDEVA, J 1. The petitioner, a Company established in Ireland has impugned the final findings dated 19.12.2014 issued by the Designated Authority (DA). The subject goods in respect of which the final findings have been rendered are USB Flash Drives. 2. The Designated Authority initiated an Anti-dumping Duty investigation on the said goo .....

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evidence. It is contended that failure to supply the data amounts to denial of a hearing and, as such, the final findings rendered are liable to be quashed. 4. As per the petitioner, the respondent No.5 in its application seeking initiation of inquiry had relied upon the transaction-bytransaction import statistics sourced from M/s. Cybex Exim Solutions (P.) Ltd. which collects data from custom authorities and the said import statistics was raw data and in substantial quantity included data with .....

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eneral of Commercial Intelligence and Statistics (respondent No.4). It is contended that the respondent No.4 makes available to the public the imports statistics in excel format after removing the importers/exporters name, address and IEC etc. which is kept confidential. 6. It is submitted that the petitioner immediately on 08.12.2014 requested the Designated Authority for supplying the new evidence relied upon in the disclosure statement i.e. the data sourced by the Designated Authority from th .....

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ed the Designated Authority to furnish the said evidence to enable the petitioner to file a reply to the same but the same was not supplied. 7. It is contended by the petitioner that the non-supply of the said data/evidence relied upon by the Designated Authority violated the principles of natural justice and curtailed the rights of the petitioner to defend/oppose the imposition of the Anti-Dumping Duty and also amounted to a denial of an opportunity to effectively participate in the investigati .....

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epresent/show the incorrectness of the said determination which amounted to a denial of an adequate opportunity of effective hearing. Learned counsel referred to the final findings to demonstrate the prejudice caused to the petitioner on account of non supply of the relevant data. He drew our attention to the following tables as extracted in the Final Findings:- "Price Undercutting 128. Price undercutting has been assessed by comparing the export price with the domestic selling price in Ind .....

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tting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 China PR Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 352.35 315.28 253.44 234.46 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 Taiwan Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 372.25 319.38 257.43 226.66 Net Sales .....

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Authority notes that the price underselling is an important indicator of assessment of injury. Non injurious price has been worked out and compared. with the landed value of the subject goods to arrive at the extent of price underselling. The non-injurious price has been determined considering the cost of production of the domestic industry for the product under consideration during the POI, in accordance with Annexure III of the Anti-dumping Rules. The analysis shows that the landed value of su .....

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*** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** COB Based 4 GB *** 8 GB *** Table-2(a) Landed Value - China PR Grade/Type Landed Value Rs/Pc NAND Based 1 GB *** 2 GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** Others *** COB Based 2GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** Table-2(b) Landed Value - Chinese Taipei Grade/Type Landed Value Rs/Pc NAND Based 1 GB *** 2 GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB *** 64 GB *** Others *** COB Based 2GB *** 4 GB *** 8 GB *** 16 GB *** 32 GB .....

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s having underselling effect on the prices of domestic industry. Particulars Unit China Taiwan Subject Countries Non-injurious price** Rs./No. *** *** *** Landed Price (POI) Rs./No. 234.46 226.66 231.24 Price underselling Rs./No. *** *** *** Underselling % *** *** *** Underselling % Range 75-85 80-90 80-90 Note:- *Weighted average Non-injurious price have been determined based on the import volumes of all grades/GBs from the relevant subject country. 9. Learned counsel for the petitioner further .....

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the fag end of the investigation was neither furnished to the petitioner nor was an opportunity granted to the petitioner to verify or to comment on the reliability or admissibility of the said data. 10. Learned counsel for the petitioner relied on the decision of the Supreme Court in Automotive Tyre Manufacturers Association vs. the Designated Authority & Others: (2011) 2 SCC 258 to contend that the DA exercises quasi judicial function and is to act judicially and there is a duty cast upon .....

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ed that the non confidential information had to be supplied and non supply of the same prejudiced the petitioner and the finding thus rendered were vitiated and were liable to be set aside 12. Learned Senior Counsel for the respondents, per contra, contended that the petition was premature inasmuch as the Final Findings were recommendatory in nature and the Central Government had still to form an opinion whether to accept or not to accept the Final Findings. He contended that, in case the Centra .....

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e. 14. Learned Senior Counsel for the respondent alternatively contented that in case this court were to hold that there was violation of the principles of natural justice, then the matter could be remanded to the Designated Authority to cure the alleged defect. In support he referred to the following decisions: (i) Sterlite Industries (India) Ltd. Versus Designated Authority 2003 (158) E.L.T. 673 (SC); Tribunal Decisions (ii) Kumho Petrochemicals Co. Ltd. Versus National Organic Chemical Indust .....

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n, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the Rules ) with regard to the relevant principles governing investigation by the Designated Authority. 5. Initiation of investigation. - (1) Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on beh .....

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he degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry : Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the applicatio .....

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the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo moto if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the exist .....

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in adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. (2) A copy of the public .....

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gnated authority shall also make available a copy of the application to any other interested party who makes a request therefore in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated a .....

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r organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. (7) The desig .....

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fit under such circumstances. 7. Confidential information- (1) Notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and subrule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon the designated authority being satisfied as to its confidentiality, be tre .....

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t possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disregard such information. 8. Accuracy of the information. - Except in cases referred to in sub-rule (8) of rule 6, the designated authority shall during the course of investigat .....

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whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding - (a) as to, - (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India; (iii) a casual link, where applicab .....

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ntly resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under suspension shall not be taken into account while calculating the period of said one year, (b) recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry. (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also conta .....

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e designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, .....

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it necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 16. Rule 5 dealing with Initiation of investigation, stipulates that the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon .....

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uthority shall not initiate an investigation pursuant to an application made under sub rule (1) unless it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding dumping, where applicable injury and where applicable a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. The designated authority has also been empowered to initiate an investigation suo m .....

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ts decision. The Public notice should inter alia, contain adequate information on, amongst other, the basis on which dumping is alleged in the application and a summary of the factors on which the allegation of injury is based. A copy of the public notice is to be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. The designated authority is required to provide .....

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ial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information relevant to the investigation regarding dumping, injury where applicable and causality. Under sub rule (6) the designated authority may allow an interested party or its representative to present the information relevant to the investigation orally provided that the same is subsequently reproduced in writing. Under sub r .....

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ity, shall treat the same as such and no such information shall be disclosed to any other party without specific authorisation of the party providing such information. Under sub rule (2), the designated authority may require the parties providing information on confidential basis to furnish non-confidential summary thereof and if, in the opinion of a party providing such information, such information is not susceptible of summary, such party may submit to the designated authority a statement of .....

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the information supplied by the interested parties upon which its findings are based. 20. Rule 16 mandates that before giving its final findings, the designated authority shall, inform all interested parties of the essential facts under consideration which form the basis for its decision. 21. Rule 17, dealing with final findings, stipulates that the designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under invest .....

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all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information amongst others regarding the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value and the considerations relevant to the injury determination and the main reasons leading to the determination. Under sub rule (3) the designated authority is required to det .....

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ports from the country in question which can reasonably be investigated. 22. The scope and procedure for investigation and the evidence to considered by the designated authority as laid down by the said Rules clearly establishes that all the evidence and material being considered by the designated authority has to be shared with the interested parties so as to provide an effective opportunity of being heard. In case any evidence is being considered by the designated authority in respect of which .....

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that the nature of the proceedings before the DA are quasi-judicial, and it is well settled that a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the Authority in that decision vide S.N. Mukherjee v. Union of India [(1990) 4 SCC 594 : 1990 SCC (Cri) 669 : 1991 SCC (L&S) 242 : (1991) 16 ATC 445] . xxxxx xxxxx xxxxx xxxxx xxxxx 40. In the present ca .....

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0 SCC 386] observed thus: (SCC pp. 386-87, para 3) 3. In our view, it is not necessary for us to go into the merits of this matter as we propose to send the matter back to CEGAT after laying down certain guidelines. From what has been argued before us, it appears that in pursuance of Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Designated Authority is treating all material submitt .....

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ed Authority a statement of reasons why summarisation is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assu .....

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o look into the relevant files. (underlining supplied) 24. In Reliance Industries case (Supra), the Supreme Court has laid down that the nature of the proceedings before the DA are quasijudicial, and a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the Authority in that decision. Where reasons for variance and detailed calculations for computing the N .....

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ot making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. 25. The Supreme Court of India in Automotive Tyre Manufacturers Association (Supra) has laid down that the Designated Authority exercises quasi-judicial functions and is bound to act judicially. The DA determines the rights and obligations of the interested parties by app .....

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export price and margin of dumping, while Rule 11 deals with the determination of injury which according to Annexure II to the 1995 Rules is based on positive evidence and involves an objective examination of both: (a) the volume and the effect of the dumped imports on prices in the domestic market for like products; and (b) the consequent impact of these imports on domestic producers of such products. It is evident that the determination of injury is premised on an objective examination of the .....

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es and the Rules further impose a duty on the DA to afford to all the parties, who have filed objections and adduced evidence, a personal hearing before taking a final decision in the matter. Even written arguments are no substitute for an oral hearing. It has been held that a personal hearing enables the authority concerned to watch the demeanour of the witnesses, etc. and also clear up his doubts during the course of the arguments. 27. This court in Bharat Solvent & Chemical Corporation Ve .....

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ed objections and adduced evidence . 28. In the present case, the Designated Authority has disregarded the transaction-by-transaction import statistics submitted by the domestic industry alongwith the application seeking initiation and introduced fresh data and relied on the transactions-by-transactions imports statistics obtained by him from the respondent No.4 at the very fag end of the investigation. The data was introduced after a period of seventeen months of initiation of investigation. Ne .....

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imports on prices in the domestic market for like products and the material submitted by the parties has to be objectively examined, the DA is required to make available the evidence presented to it by one party to other interested parties, participating in the investigation and also the evidence or the material sourced by the DA from other sources to the parties. 30. The Rules make it obligatory on the part of the Designated Authority to share all material with the interested parties subject t .....

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aring. Non-sharing of information mandatorily required to be shared under the Rules vitiates the findings. Failure to supply the data (subject to the rules of confidentiality) has curtailed the rights of and amounted to denial of an opportunity of effective participation to the petitioner and violates the principles of natural justice. The Final Findings dated 19.12.2014 rendered in violation of the principles of natural justice are thus liable to be quashed. 31. There is no merit in the content .....

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lf had supplied data by scoring out of confidential information and thus could not raise a grievance with regard to the non supply of data to the petitioner also does not have any merit. The Designated Authority has accepted the claim of confidentiality of the petitioner and the said upholding of claim has not been challenged by the respondent domestic industry. If the Designated Authority is not satisfied with the claim of confidentiality by one of the parties, the Designated Authority is empow .....

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such information, further emphasises the fact that for an investigation to comply with the principles of natural justice, it mandatorily entails sharing with the interested parties, the information/data being considered by the Designated Authority. 33. With regard to the alternative submission of the learned Senior Counsel for the respondent that the matter could be remanded to the Designated Authority for a post decisional hearing, we need to look at the various timelines prescribed by the Rul .....

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iod of five years and such further period shall commence from the date of order of such extension and further provided that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. 35. Section 9 C of the Customs Tariff Act provided for an appeal against the order of determination or review .....

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e under investigation is being dumped in India and submit its Final Findings to the Central Government. The Central Government in special circumstances has been empowered to extend the aforesaid period of one year by six months. Provided that in cases where the Designated Authority has suspended the investigation on the acceptance of a price undertaking of the exporter of the article in question and subsequently the investigation is resumed on the violation of the terms of the undertaking, the p .....

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review initiated shall be concluded within a period of twelve months from the date of initiation of the review. 39. Reading of the Rules and the statutory provisions make it clear that the timelines have to be strictly followed and the investigation and the review as the case may be have to be completed within the respective statutory periods. In case the same are not completed with the respective statutory periods the proceedings would be vitiated. In the present case the investigation commenc .....

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the statutory period is over, the matter cannot be remanded to the Designated Authority for a fresh consideration. 40. The judgment of the Supreme Court in the case of Sterlite Industries (India) Ltd. (Supra) relied upon by the learned Senior Counsel for the respondents is not applicable in the facts of the present case as in the said case, the CEGAT had set aside the notification and the Supreme Court had remanded the matter to the CEGAT as the CEGAT had held in favour of the appellant (domest .....

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