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2016 (3) TMI 514 - CESTAT NEW DELHI

2016 (3) TMI 514 - CESTAT NEW DELHI - 2016 (334) E.L.T. 339 (Tri. - Del.) - Rule 5 of the Anti-Dumping Rules - Initiation of investigations - Investigation started by designated authority on the application of Tejas (Domestic industry) - Appellants contended initiation of investigation as bad in law since the authority took no steps for verification of the information / data furnished before it, prior to such initiation - Held that:- the information contained in trade magazine should normally no .....

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at the stage more so because such details are normally in the exclusive knowledge of the foreign parties. The applicant can only be asked to bring before the Authority, evidence which is reasonably available to it for the purpose of initiation of investigation during the course of which other parties would bring all relevant facts before the Authority for making the final determinations. Here for the purposes of initiation, the journal has been used only for prima facie satisfaction. As DA has d .....

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e application of Tejas.

Rules 2(b) of the Anti-Dumping Rules - Eligibility of Tejas as domestic industry - Held that:- as per the definition of domestic industry under Rule 2 ibid, the word producer has connotation wider than a mere manufacturer and includes even those engaged in any connected activity. Here, the Tejas are performing substantial activities which covers within the scope pf producer. Therefore relying on the decision of Madras High Court in the case of Nirma Ltd. Vs. Sa .....

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duct under consideration. Thus, the determination of product scope by Designated Authority is sustainable. Regarding the contention that the scope of PUC has been altered during the course of investigations, Designated Authority is required to come to a final determination only after consideration of the contentions of all interested parties and in the process, the scope of PUC may get altered but that would not vitiate the proceedings so long as the principles of natural justice are complied wi .....

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qua its market for STM64 in India. Therefore, STM256 is not a distinct or separate product, but one type of SDH equipment, that is PUC.

Levy of Anti-dumping duty and Valuation of goods- Import of SDH Transmission Equipment from China PR and Israel - Notification No.125/2010-Cus, dated 16.12.2010 - Held that: provision of Sections 12/14 of the Customs Act, 1962 are applicable only with reference to goods imported and therefore, the levy of anti-dumping duty would fail on PUC when impor .....

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1962 are clearly capable of valuing even such imported goods which are found lying unclaimed in the middle of nowhere even embedded in other goods, separate transaction value thereof, (i.e. of the PUC) will not be available but non-availability of transaction value does not in the least lead to failure of assessment of value because Customs Valuation Rules are clearly capable of dealing with such situations. The exporter can declare the transaction value for the SDH Equipment separately. If suc .....

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les, which came into effect from 19.01.2012 deal with circumvention of anti-dumping duty. However, nothing can be read in these Rules to mean that Designated Authority should not levy the duty in a manner so as to ensure that it is not circumvented. After all, when duty is levied by Central Govt., it has to ensure that the same is effective in counteracting the injurious effects of dumping which implies that Designated Authority should ensure that the levy of duty is not amenable to unintended c .....

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aside on ground of vagueness - Held that:- expression “for SDH application only” is quite comprehensible and there is nothing too esoteric about it. Also, there is nothing so vague or incomprehensible about expressions like “for SDH application only” as to make it impossible or impractical to implement the anti-dumping notification.

Levy of anti-dumping duty - Software downloaded electronically - Absence of mechanism to levy and collect duty - Held that:- no duty can be levied and co .....

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. S.K. MOHANTY, MEMBER(JUDICIAL) AND MR. R.K. SINGH, MEMBER (TECHNICAL) For the Petitioner :Mr. Balbir Singh, Sr. Advocate, Mr. Gopan Jain, Sr. Advocate, Mr. Sanjiv Goel, Advocate, Ms. Jaya Bharuka, Advocate, Ms. Rita Jha, Advocate, Mr. A Mathews, Advocate, Ms. Arpita, Advocate, Mr. VL Kumaran, Advocate, Mr. Atul Gupta, Advocate, Mr. S Seetharaman, Advocate, Ms. R Sharma, Advocate, Mr. Rohan Shah, Advocate, Mr. Anay Banhatti, Advocate, Mr. Udit Jain, Advocate, Mr. Saurabh Kansal, Advocate And Mr .....

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009, the Designated Authority in the Ministry of Commerce initiated investigations against the imports of SDH Transmission Equipment from China PR and Israel ( subject countries ). The initiation was made pursuant to an application filed by M/s. Tejas Network Ltd, ( Tejas ) which claimed status as domestic industry. It was alleged in the application that the SDH product was being dumped from China PR and Israel into India and such import was causing injury to Tejas. On 07.09.2009, the Designated .....

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Tejas before the Supreme Court, which vacated the stay and directed the High Court to expeditiously hear and dispose of the matter. On 08.12.2009, the recommendations of the Designated Authority were given effect to and Customs Notification No.132/2009 dated 08.12.2009 was issued levying provisional Anti-Dumping Duty for a period of six months. 3. Andhra Pradesh High Court by its order dated 22.01.2010, held that Tejas is not a domestic industry and assumption of jurisdiction by the Designated A .....

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porter-companies herein to pay interim duty on the following equipments: 1] STM -1; 2] STIM -4; 3] STM - 16; 4] STM - 64; and 5] STM - 256 (In SK,CKD, Sub-assembly and/or parts and components) However, it is made clear that DWDM stands excluded from the above list. Subject to above, the impugned judgments of the High Court are stayed. The Designated Authority is directed, however, to proceed with the hearing and adjudication of the matter and pass final orders which will be subject to the decisi .....

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ts of SDH equipment and its parts and components. The Central Government notified final duties. 5. Against the final findings and notification of the Central Government, the exporters and importers including M/s. Huawei Technologies Co. Ltd (Huawei), VMCL, and M/s. Prithvi Solution Ltd (Prithvi) filed appeals before CESTAT. By an order dated 11.08.2011, CESTAT allowed the appeals by way of remand as under: 15. Accordingly we allow these appeals by remand to the DA for affording post-decisional h .....

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is process shall be completed within 6 months from the date of this order and status quo shall be maintained meanwhile. Since we are allowing the main appeals by remand, the MA (EH) and SPs stand disposed off . 6. Against this order of CESTAT, Huawei, VMCL, Idea Cellular, Designated Authority and a number of other parties filed SLPs /appeals, which are pending consideration of the Supreme Court. By on order dated 02.07.2012, the SLP filed by VMCL was dismissed as not pressed [Vuppalamritha Magne .....

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ority was the subject matter before the Andhra Pradesh High Court in Writ Petition No. 22155 of 2009. The High Court, by passing order dated 22-1-2010, has allowed the writ petition and has set aside the preliminary findings of the Designated Authority. Aggrieved by the said order, the special leave petition is filed by the appellant herein. 11. During the pendency of this appeal, the Designated Authority has passed its final findings also. Those final findings were questioned before the CESTAT .....

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above, the appeal is disposed of as having become infructuous. The Designated Authority now will implement the orders passed by the CESTAT dated 11-8-2011 within the time granted. While doing so, the Designated Authority will not be influenced by any of the observations made by the Andhra Pradesh High Court in Writ Petition No. 22155 of 2009 dated 22-1-2010 . 8. The prayer for interim relief in the appeals filed by the exporters and importers against the Final Order dated 11.08.2011 of CESTAT b .....

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lhi. Appropriate orders in relation to the disbursement of the amount in the said account shall be made at the time of final disposal of the appeals. It is agreed that complete details of the amount to be deposited in terms of this order shall be furnished to the Authority concerned. Rest of order dated 31-8-2012 would remain as it is. 9. In the meantime, the Designated Authority implementing the orders of CESTAT, concluded its investigations after granting opportunity of hearing to all interest .....

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ariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles And For Determination of Injury) Rules, 1995. (ii) The copy of Voice and Data Magazine, which formed the basis of the initiation, had not been furnished to appellant and hence, it was unable to verify the basis for initiation of investigations. (iii) Tejas was not carrying out any activities in India, which would constitute production, for the purposes of Rule 2(b) of the Anti-dumping Rules. (iv) The finding .....

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n in India. Thus claim of Tejas, that it was an eligible domestic industry, was not appropriately considered, at the stage of initiation, and thereafter. (vi) About 65% of the components / parts used by Tejas were imported and hence, it should be treated as an importer, and not a producer, for the purpose of the anti-dumping investigations. Tejas imported subject goods, namely PCBA from China, and hence was excluded even otherwise from the purview of domestic industry. (vii) The investigations c .....

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eriod. In the Final Findings, Designated Authority has changed its stand, and stated that Tejas sold STM 64 to Quicktel, which according to the appellant was a non-existent and thus STM 64 was wrongly included in the investigations. (viii) Designated Authority exceeded his jurisdiction, by including STM 256, and DXC which had not been imported into India, from the subject countries, during the relevant period in-as-much-as anti-dumping duty is attracted on dumped imports, and can not cover items .....

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tions relating to injury are also not based on appropriate data, since the scope of product has been changing at every stage. (ii) Activities carried out by Tejas are not adequate for it to acquire the status of manufacturer. (iii) Under Section 9A of the Customs Tariff Act, 1975, the investigations are for a product, and multiple product investigation is not envisaged in the Act. Equipment, parts, components, and software are separate and distinct products, which can not be clubbed and treated .....

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ftware developed by Tejas is not compatible with Alcatel / Huawei software. The software made by Tejas is therefore, not like article to the imported product. (vi) It was wrong on the part of Designated Authority to include Populated Circuit Boards as Tejas was not a producer of such boards in India. In this context, reference was made to the decision of the USITC in the case of DRAMS. (vii) The Notification was also challenged on grounds of vagueness. It was contended that the expressions like .....

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normal value for Alcatel-Lucent, since market economy treatment had been extended to ECI China. (x) Software downloaded electronically cannot be charged to customs duty as has been held by CESTAT Final Order No.C/A/52353-52355/2015-CU[DB], dated 29.07.2015 in the case of Oracle India Pvt. Ltd. & Others Vs. C.C.(Export), New Delhi. (xi) The dumping margins have not been properly computed. Arguments of M/s Idea Cellular Ltd. and M/s. Tata Teleservices Ltd. 12. Ld. counsel for these importers .....

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vestigations more than one article . (iii) Where multiple articles are included within the scope of an investigation, there should be a domestic industry for each of such articles, and the applicant must demonstrate that it has a major proportion, in the production in India for each of such articles. A separate dumping margin, is required to be determined for each such article. The Authority has included within the scope of investigation articles, which are unlike each other. (iv) The investigat .....

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gh Court in the case of JK Industries Vs. Union of India, [2005 (186) ELT 3 (Raj.)] was cited in this regard. The ld. counsels for M/s. U.T. Starcom supported the contentions of other appellants. Submissions by Designated Authority 13. Ld. counsel for DA submitted as under:- (i) The final findings in the said investigations have been passed after following due procedure including observing principles of natural justice. (ii) The final findings are speaking findings. (iii) On the issue of standin .....

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para 18, sub-para viii. of the Final Findings dated 10.02.2012, DA clearly recorded that whereas the interested parties have opposed inclusion of parts and components within the scope of the product under consideration and the domestic industry on the contrary has sought inclusion of parts and components on the premise that their exclusion will leave a big scope for circumvention. DA further noted that parts and components used in SDH equipment have multiple usages and do not have a dedicated u .....

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under consideration. (v) On the issue of the meaning of production, attention was drawn to para 13 of the Final Findings dated 10.02.2012. (vi) On the issue of polling to be carried out in terms of Rule 5 of the Rules, attention was drawn to para 43 of the second final findings. Submissions of Domestic Industry 14. Ld. advocate for Domestic Industry pleaded/contended as under:- (i) Tejas Networks Ltd established in the year 2000, is a pioneering telecommunications company which has over 70% of .....

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price to India, and the normal value for the product in China or Israel. The dumping margin in the present case, has been computed on an apple to apple comparison. The Authority has devised a Product Control Number (PCN), and compared the normal value, with the export price, for each PCN. On this basis, the Authority has found dumping margins in the range of 5% to 290%. The exports to India were indisputedly dumped. (iv) The definition clause, uses the words, producers , production , manufactur .....

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nd accounts for a substantial share of overall costs. A prototype of the product, containing all hardware and software, is made in India, and tested for the relevant parameters. On achieving the necessary functionality, the software is sent on carrier media to the EMS, in Thailand, where it is loaded on printed circuit boards (population of circuit boards). The populated circuit boards are then assembled with other components in India, and further software loaded. The system after final testing .....

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them after import of the assemblies/SKD/CKD items as is evident from paragraph 72 of the First Final Findings and Paragraph 32 of second Final Findings. (vii) Tejas has imported standalone components from China, which do not constitute product under consideration, such as bare boards, capacitors, connectors, inductors, transformers, trans-receivers, patch cord. These are dual use items, and are not covered by the notification. The exclusion clause of Rule 2(b) is therefore not attracted. (viii) .....

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goods from China into India. The imports being insignificant, and the principal activity of Tejas not being one of import from China, Tejas retains its status as a producer, and the injury can not be said to be self inflicted. In this context, attention was invited to the decision of the Madras High Court, in the case of Nirma Ltd. Vs. Saint Gobain Glass India Ltd. [2012 (281) ELT 231 (Mad.)] and other decisions of the CESTAT referred to later. (ix) It is permissible for the Authority to includ .....

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ke. In this context, reliance was placed on the WTO Panel Report in the case of EC Farm Salmon from Norway and WTO Panel Report EC Fasteners. (xi) As regards, STM 256, it is submitted that the duty is on the product, and not its types. As long as the product is imported, duty can be imposed on all types of such product, provided it is in commercial competition, with the like article, and can cause injury on its import. In the present case, STM 256 is a higher version of STM 64, and can easily su .....

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can be applied for valuation of the article subject to levy that is SDH. (xiii) Designated Authority has devised a PCN system, which enabled determination of the dumping and injury margin, for each part, component, or type separately, to the extent information was made available by the exporters. It is evident that the DA is required to determine injury to the domestic industry engaged in manufacturing like article. Such being the case, injury to the domestic industry is required to be seen in .....

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n, when certain special processes are carried out on them, to make them usable as part / component of SDH equipment. Populated Circuit Boards / Card containing the proprietary software, would be within the scope of levy, only if they are meant for SDH application. Submissions of Revenue 15. Ld. Departmental Representative appearing on behalf of Revenue supported the findings and the Notification, on the ground that the Designated Authority had examined the issue in depth and passed a speaking or .....

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tected in India and other countries. As regards inclusion of parts and components, it was submitted that SDH was a technology, and any part or component containing such technology was subject to the levy. He drew distinction between production and manufacture. He stated that R&D required to manufacture a product will be part of the process of production and in that manner, Tejas is rightly held to be Domestic Industry and not others. Revenue also stated that Huaweis presence may be inimical .....

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and discussed below:- A. Whether the Authority has satisfied itself as to the accuracy and adequacy of the information furnished, for purposes of initiating investigations under Rule 5 of the Anti-Dumping Rules. 17. We find that Rule 5 of the Anti-Dumping Rules, relating to initiation of investigations reads as under: 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 .....

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sub-rule (1) unless - (a) it determines, on the basis of an examination of the 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 ex .....

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c producers whose collective output constitute more than fifty per cent of 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 196 .....

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he main thrust of the contention of learned Counsel for the petitioner is the lack of jurisdiction on the ground that the evidence available wan inadequate and inaccurate for issuing the initiation notification. Rule 5(3) (b) of the Anti-Dumping Rules requires the Designated Authority, before it initiates an investigation to examine the accuracy and adequacy of the evidence provided in the application with regard to dumping, injury and causal link. The WTO panel report in the case of Guatemala G .....

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ealing with the accuracy and adequacy of evidence observed that if the information supplied in the application is all that reasonably available to the applicant as required by Article 5.2, the investigating authority is justified in initiating the investigation. At the stage of justification of initiation of investigation, the Designated Authority is not required to hold a detailed inquiry but he has to prima facie satisfy as to whether the application is supported by the evidence in relation to .....

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e General in W.P. Nos. 41593 to 41596/2001, held that the High Court will normally not disturb the initiation of an investigation, and observed as follows: The designated authority in its order dated 15-10-2001, commencing from para 50 onwards states, that the applicants have a standing to file an application and further says in its order, that based on the confidential and non-confidential evidence produced before it, the matter requires to be examined. This opinion requires to be framed by the .....

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l Government unless that opinion is either wholly arbitrary or unreasonable or no reasonable person would come to such a conclusion or if it is in violation of statutory provisions. In my opinion, in the instant case, the designated authority rightly and correctly understanding the scope of Secs. 9A and 9B and also Rule 5(1) to 5(5) of the Rules, has initiated investigation proceedings on the application filed by the domestic industries. In my opinion the designated authority has not committed a .....

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on notification dated 19.7.2004 and it is also not disputed that the notification dated 19.7.2004 is nothing but mere a show cause notice issued by the Designated Authority to exporters as to why anti-dumping duties should not be levied on their exports of certain compressors originating in or exported from China and Malaysia on the basis that such compressors are being dumped. 58. I carefully considered the judgment of Hon'ble Supreme Court rendered in the case of Dr. Shashank v. Commission .....

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d take recourse to the proceedings available under the Act." 59. The Hon'ble Supreme Court in the case of Union of India v. Polar Marmo Agglomerates (supra) has held that "a High Court should not interfere, in a writ petition, at the stage of the show cause notice to take over a fact finding investigation which is similar to the investigation being conducted by the Designated Authority in the present case. It is also held that the respondents were served with a notice to show cause .....

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es constituted under the relevant statue. The High Court should not have interfered, in a writ petition, at the stage of show cause notice to take over that fact finding investigation." 60. The same view has been taken by the Hon'ble Supreme Court in the case of CCE Vs. Charminar (supra) the at the writ petition against the show cause notice is not maintainable. 61. I am fully convinced with the submissions made on behalf of the respondents that it is a mere initiation notification, whi .....

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otified and further, we were also told during the course of hearing that the changed circumstances review application is pending before the D.A. In any case, as pointed out by the learned Advocate Ms. Reena Khair, initiation of the anti-dumping investigation requires only a prima facie satisfaction of the D.A. regarding dumping, injury and causal link between the two. The nature of evidence required for the purpose of initiation need not be of the same quality and quantity as required for final .....

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have data regarding cost of production of foreign exporters 18. The appellants contended that the initiation of investigation was bad since the authority took no steps for verification of the information / data furnished before it, prior to such initiation and that (i) The reliance on the Letter of CMAI was not justified, for examining standing, as they do not maintain information relating to production of domestic producers. (ii) Voice and Data Magazine was also not dependable as information r .....

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[2003 (157) ELT 154 (T)]. From the various decisions citied in the preceding para, it is clear that the initiation is to be based on the application filed by the domestic industry. The initiation is in the nature of a show cause notice requiring only a prima-facie satisfaction of DA and no detailed inquiry is required to be carried out at that stage. The initiation is not in the nature of decision but merely a start of an investigation. The certainty on the existence of all the elements necessa .....

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ted to us in the course of hearing. The petition mentions that there are 4 producers in India:- (i) Tejas Networks Ltd (ii) ORDYN Technologies Pvt Ltd (iii) Measurement and Controls Ltd and (iv) Bharat Electronics Ltd The share of Tejas during the POI has been given as 84.7%. CMAI (Communication Multimedia and Infrastructure) has given a letter to the Designated Authority stating as under: While the association does not maintain accurate information, with regard to production or supply by differ .....

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company does not negate the fact that it was well aware that Tejas has a very large share of production in India. As the production details of other producers would be confidential, its letter coupled with the contents of the petition constitutes an adequate basis for purposes of initiation of investigation. Therefore, DA was justified in initiating the investigation. Needless to mention, once the investigations were initiated, opposing parties including other producers had ample opportunity to .....

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e best available information in the record of the Authority including the data provided by the foreign exporters or producers in their responses. At the stage of initiation, however only the applicant domestic industry is before the Designated Authority and requiring the domestic industry to produce the exact facts and figures relating to exporters in a foreign country would be unreasonable at the stage more so because such details are normally in the exclusive knowledge of the foreign parties. .....

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or determination of normal value in the Final Findings, whereas in the present case, a journal has been used only for prima facie satisfaction, for the purposes of initiation. DA has also dealt with this issue as under in the Second Final Findings: 42.The reasoning of the CESTAT in Dye Stuff Manufacturers Association vs. Designated Authority is not applicable to the present case. In the matter of Dye Stuff Manufacturers Association vs. Designated Authority, the magazine was not periodically repo .....

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nitiation states that the application has been filed by Tejas, who is a major producer of the product in India. It further states that there are four other producers in India, and the petition is supported by Measurement & Controls Ltd, one of the other producers. DA has also determined for the purposes of initiation that (i) products of the applicants constitute a major proportion in Indian production. (ii) Domestic producers expressly supporting the application account for significantly m .....

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second issue to be decided is Whether Tejas is an eligible domestic industry in terms of Rules 2(b) of the Anti-Dumping Rules. The definition of domestic industry has undergone changes, which has been taken note of by DA in the Final Findings as under:- 43. Prior to 15th July, 1999, Rule 2(b) of the rules read as follows - "(b) domestic industry means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collecti .....

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ed in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers may be deemed not to form part of domestic industry. 45. However, post initiation, this Rule has been amended as follows: &q .....

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st of the producers only. 46. Thus, Rule 2(b) of the AD Rules provides that domestic producers which are related to the exporters or importers or which are themselves importers of the allegedly dumped articles may be excluded when determining the domestic industry in certain situations. As the use of the word may in Rule 2(b) suggests, the two types of producers in question, i.e. related producers and producers importing the alleged dumped product, are not automatically excluded from being part .....

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ices (v) Assembly , Testing, Loading of Software and Integration (vi) Post Shipment Support, up gradation and Bug fixes A detailed description of these activities was submitted by Tajas to Designated Authority as under:- (i) The products are designed based on customer inputs for their new projects and expansion plans as per Technology Roadmap of the Company. Following process flow outlines the brief Design & Development Process. (a) Design Cycle(In-House in Bangalore India ) (i) Marketing Re .....

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approval, Engineering Teams comprising of Hardware and Software Teams are assigned for Design & Development of the Product proto-type. Design & Development at Tejas is done by a core team of R&D Engineers. (iv) The R&D teams influence the component vendors to design the ICs also as per Tejas requirements. The R & D for development of SDH Technology Software has been carried out in India, by Tejas. The IPR for such technology resides in India. (b) Proto Cycle(In-House in Bang .....

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and does design, coding, testing, simulation of the same. (iii) Embedded Software team does designing, coding, simulation, target testing, and regression of node software which is the integral part of the equipment for its functioning as various features offered in the products are captured here. (iv) Mechanical team does Mechanical design, development, simulation and proto testing of the products and modules. (v) Manufacturing team designs, develops the software, test-jigs used to test the prod .....

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ndia) A core team of Product Verification personnel test both the Hardware and Software on the Product and after testing, approve the Product for final release for manufacturing and availability to Customer. (d) EMS Services in India and Abroad: Once the prototype is developed and thoroughly tested in Tejas Labs in India, Tejas uses services of EMS for large scale manufacturing. Tejas uses both Indian and Global EMS depending upon the delivery terms and conditions of the customers without compro .....

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locations. EMS after processing supplies PCBs meeting the Tejas instructions. (e) Assembly , Testing, Loading of Software and Integration (In house in Bangalore and Pondicherry , India) : After Processing, EMS ships raw components like PCBs to Tejas Production facility in Bangalore and Pondicherry. Tejas facility also receives other parts such as mechanical chassis, racks and cables from other suppliers in India. Again, components like Chassis, racks are supplied by various vendors as per Tejas .....

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ent cannot function as software contains all the stacks for different protocols. (iii) SDH equipment after installation of Nodal software are tested and qualified by Testing and Qualification teams using the product verification software developed by Tejas in India. (iv) Network management system is tested for all these products and modules to deliver FCAPS (Fault Management, Configuration Management, Administration Management, Performance management and Security Management) at Network layer cen .....

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l and comprehensive post shipment support to the Customers from India . 23. The above process flow clearly shows that substantial activities are being carried out by Tejas or by job workers on its behalf both in India and outside India. SDH is a technology product where the value arises on account of the knowhow contained in the product. This is evident from the fact that more than 70% of the cost is on account of Research, Design and Development expenses. Tejas has developed the knowhow and tec .....

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uction with them. After processing the various items are assembled at Tejas factory in Pondicherry and Bangalore. Further software is installed in the boxes so as to enable it to function as a SDH/SONET equipment. We find that the predominant activity is carried out by Tejas and is, therefore, a producer of SDH equipment. About 70% of the total cost of production of the equipment for Tejas is research and development, or cost of development of software, and about 30% is hardware cost. Of the tot .....

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has been argued by the exporters that there was no manufacturing facility in Pondicherry. However, the said decision of Madras High Court does not relate to the Period of Investigation. We find that the factory of Tejas was duly visited to verify the factual position as it existed during the Period of Investigation. Further, Domestic Industry is defined in Rule 2 of the Rules as under:- 2(b) domestic industry means the domestic producers as a whole engaged in the manufacture of the like article .....

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cludes even those engaged in any connected activity. Therefore, as argued by ld. Departmental Representative with the substantial activities undertaken by Tejas, it is clearly covered within the scope of producer . 24. The second requirement under Rule 2(b) of the Anti-Dumping Rules is that the applicant must have a major proportion in the Indian production. CESTAT, in its judgement in the case of Lubrizol India Pvt. Ltd. Vs. Designated Authority [2005(187) ELT 402 (Tri - Del)], has dealt with .....

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would, in the context, of total production of domestic industry, mean significant or important share. Such an interpretation is clearly permissible and going by it, the share of the petitioner in the total domestic production, being more than 31%, was undoubtedly a significant or important share i.e. a major proportion thereof. The words major proportion of total domestic production cannot be viewed from the angle of solving a mathematical sum involving comparative measurements or size of differ .....

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aim the status of domestic producer but no information was provided as to the nature of activities carried out by them after import of the assemblies/SKD/CKD items from the subject countries. Relevant extracts from the first and second Final Findings in this regard, are reproduced below: Extract from First Final Findings Response to the Communication Dated 20th July, 2010 . . .. . The Authority holds that the onus, under the AD Rules, is on the interested parties to provide relevant information .....

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f providing the same, they have repeated their earlier submissions without providing any information / evidence to support their claim. While Prithvi has claimed that they are manufacturers of DWDM, (Non-PUC Product), VMCL has claimed to be manufacturers of PUC, once again, without providing any verifiable information on the activities carried out by them supported by the details about their workforce, balance sheet, inputs, R&D etc. Both of them have also not provided any information on imp .....

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t by the Authority, which was allowed by the Authority, nothing of substance was provided to the Authority except repetition of what had been stated by them earlier from time to time. The Authority holds that all the issues raised by them earlier and repeated in their submissions dated 6th August have already been addressed in the paragraphs here-in before and need not be repeated. Extract of Second Final Findings 32. It has been alleged that although there are a number of other manufacturers, T .....

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this effect in a narrative form, never provided any verifiable information about their manufacturing activities. Prithvi / VMCL have not filed questionnaire response in the form and manner prescribed, either as a domestic producer or an importer of the product under consideration. Even when the Authority specifically advised these companies to provide information in the form and manner prescribed, these interested parties have preferred not to provide relevant information. Even otherwise they ne .....

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ch interested party to provide such information as is requested by the Authority and offer itself for verification, if desired by the Authority. The entire exercise undertaken in the instant case in ascertaining actual status of these entities would have been significantly smoothened, had these interested parties provided relevant information demanded by the Authority and offered themselves to spot verification. In view of conscious non-cooperation preferred by these interested parties, the Auth .....

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ture (but for such legal fictions). For example, Note 6 to Section XVI, covering products of Chapter 84 and 85 of the Tariff, reads as under: In respect of goods covered by this Section, conversion of an article which is incomplete or unfinished but having the essential character of the complete or finished article (including blank , that is an article, not ready for direct use, having the approximate shape or outline of the finished article or part, and which can only be used, other than in exc .....

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fic request of DA for information in this regard. In these circumstances, Designated Authority cannot be faulted for not treating Prithvi and VMCL as domestic producers. 25. It was also argued by the appellants that Tejas being an importer of subject goods from China was excluded from the purview of domestic industry. While the domestic industry contended that it had not imported subject goods from China, even if such imports had been made, DA had the discretion to include or exclude a producer, .....

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in Taiwan (subject country) and importing the products into the USA. Thus, the said decision is clearly distinguishable on facts as Tejas was also carrying out production/fabrication activity in India and was not importing SDH equipment from China and was getting a part of the activity done on job work basis in Thailand which is not the subject country of investigation. That apart, during the relevant period, DA had the discretion to consider Tejas as eligible domestic industry, as held by the .....

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a lesser price, which will certainly paralyze the economy of the country in the course of time. In fact, the basis for international agreement is to have economic sovereignty of the member countries. While so, the restrictive interpretation given by the learned Judge taking away the discretionary power of the Designated Authority cannot be said to be in accordance with Section 9A of the Act as well as the various provisions of the Rules. 57. While it is true that the international agreements li .....

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cretionary power of the Designated Authority and the Designated Authority is entitled to proceed further. The Calcutta High Court in the case of State of Gujarat Fertiliser & Chem. Ltd. Vs. Addl. Secretary & D. A., [2012 (286) ELT 348 (Cal.)] held as under: - 13. Bearing aforesaid legal position it is incumbent for this Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the said Rul .....

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independence under the guidance of our patriotic, modern-minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialisation in our country, to make India a modern, powerful, highly industrialised nation. 14. Thus it is very clear that the definition of the importer as mentioned in Rule 2(b) has to be understood in the context of protecting indigenous industry producing same material. Here we notice on fact of course going by the statement .....

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under the said Rule. We have examined the object clause of the Memorandum of Association of the appellant and nowhere we find that it carries on business principally, of import of Melamine. We therefore do not find any merit in the contention that Tejas is excluded from the category of domestic producer of subject goods in India in terms of Rule 2(b) of Anti-Dumping Rules. C. Whether the Product under Consideration (PUC) is properly defined, having regard to the statute. 26. The appellants have .....

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e thereunder, the expression used is an article. Ld. advocate for domestic industry on the other hand argued that all the equipment operate on SDH technology, and the equipment of higher numbers are having greater capacity and speed of transmission of voice and data signals. Therefore, grouping of SDH equipment of different configurations / capacities is appropriate and permissible under the Act and the international agreements. 27. Before dealing with the arguments and counter arguments, we n .....

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ns. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and .....

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atute is preferred. The interpretation of such a statute should be construed on broad principles of general acceptance rather than earlier domestic precedents, being intended to carry out treaty obligations, and not to be inconsistent with them. (4)In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, and if there be any difference between the language of such statute and a corresponding provision of the treaty, the .....

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the treaty regarding anti-dumping measures. Ld. counsel for domestic industry referred to the WTO Panel Report in the case of EC- Farmed Salmon from Norway, relevant paras of which are quoted below:- 7.44 In essence, Norway's claims under Articles 2.1 and 2.6 of the AD Agreement are premised on two contentions: First, that these provisions establish an obligation on investigating authorities to ensure that where the goods being investigated comprise groups or categories of goods, all such gr .....

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ording to Norway, the obligation to ensure that all categories making up the product under consideration are "like" each other follows "as a logical consequence" from what it argues is a requirement under Articles 2.1 and 2.6 for investigating authorities to ensure that any product category making up the "like product" must be individually "like" each and every separate product category making up the product under consideration. Thus, a threshold question .....

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f dumping can only be made through a comparison of "the prices of an exported product referred to as the 'product under consideration' and a 'like product'", Norway provides no analysis of the text of this provision. Moreover, Norway identifies no explicit obligation in the text of Article 2.1 to support its claim that the "product under consideration" must consist of a single, internally homogeneous, product or, alternatively, categories that are each individ .....

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" says nothing about the scope of the relevant product. There is certainly nothing in the text of Article 2.1 that can be understood to require the type of internal consistency posited by Norway. 7.49 At the same time, other provisions of the AD Agreement, relevant as context, suggest that whatever the parameters of "a product" in Article 2.1 may be, the concept is not so limited as Norway argues. For instance, Article 6.10 provides for limited examination in cases where the numbe .....

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he only permissible interpretation. There would be no possibility of investigating more than one "type of product" as mentioned in Article 6.10, and no reason to group comparable goods for purposes of making price comparisons for each group in the process of calculating a single dumping margin for the product as a whole. These considerations lead us to conclude that, while Article 2.1 establishes that a dumping determination is to be made for a single product under consideration, there .....

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ng the product under consideration is required to delineate the scope of the product under consideration. Merely to say that the product under consideration must be treated "as a whole" in addressing the question of like product does not entail the conclusion that the product under consideration must itself be an internally homogenous product. We can see nothing in the paragraph from the Appellate Body Report in US Softwood Lumber V, relied upon by Norway, which would indicate otherwis .....

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likeness. Since every article is identical to itself, each such article would have to be considered separately. There would never be occasion to move on to consideration of whether another article has "characteristics closely resembling" it. Thus, a product under consideration could not consist of any grouping of non-identical product categories. This would, in our view, be an absurd result. Norway ignores the concept of "identical" products, arguing that an investigating au .....

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s manufactured in the importing country are not identical to the imported product under consideration. In such a case, if the AD Agreement did not allow the possibility of treating another, non-identical product, as the like product, there would be no basis for investigation and imposition of anti-dumping duties. But this consideration simply does not arise in the context of delineating the product under consideration, which is necessarily identical to itself. 7.57 We note that, on its face, Art .....

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n active step of making a finding. Norway further asserts that specific criteria govern this determination, although, again, there is no specific identification of any relevant criteria in the AD Agreement. While it seems self-evident to us that an investigating authority must, at the time it initiates an anti-dumping investigation, make a decision as to the scope of that investigation, and give notice of the "product involved", we are not persuaded that either Article 2.1 or Article 2 .....

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reveal whether some or all of those products are dumped. Norway gives, as an example, in investigation in which cars and bicycles are treated as one product under investigation. We are not persuaded by Norway's extreme example. Any grouping of products into a single product under consideration will have repercussions throughout the investigation, and the broader such a grouping is, the more serious those repercussions might be, complicating the investigating authority's task of collecti .....

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ation of the product under consideration, and a consequent fragmentation of the like product, and ultimately the domestic industry, which would render the possibility of imposing dumping duties consistent with the AD Agreement a nullity. We see nothing in Article 2.6, which as discussed, defines "like product", which would support this view. In this regard, it is noteworthy that, while the AD Agreement specifically defines "like product" by requiring a comparison between dome .....

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iew, this consideration supports the conclusion that it would be absurd to impose the definition of like product from Article 2.6 onto the undefined term product under consideration. We simply see no basis in the text of Articles 2.1 and 2.6 for the obligations Norway seeks to impose on investigating authorities with respect to product under consideration. 7.60 Norway makes a number of additional contextual arguments in support of its interpretation of Article 2.6, none of which persuade us to c .....

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quot;), all such segments must belong to a group of products meeting the definition of likeness, citing in this respect, a statement by the Appellate Body in EC Bed Linen . . . . 7.64 Article 3.6 is a provision about what information an investigating authority may evaluate in considering the effects of dumped imports for the purpose of determining injury to a domestic industry.244 It simply has no bearing on the question of product under consideration. Article 3.6 addresses a particular question .....

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ion of the domestic industry is the "like product". Norway's argument, on the other hand, would entail a consideration of the production activities of the domestic industry in the definition of the like product, and of the product under consideration, introducing a circularity into the analysis which is untenable. Thus, we consider, Norway's reliance on Article 3.6 to be misplaced and unpersuasive. . . . . . 7.70 The most significant discussion of the issue of product under con .....

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Western Red Cedar) that Canada argued should have been excluded from the investigation. The "like product" identified by the USDOC for purposes of the dumping determination was described in exactly the same terms as the "product under consideration" - all "softwood lumber, flooring and siding (softwood lumber products)". Thus, the product under consideration and the "like product" both included a variety of product types, but exactly the same product type .....

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" in the investigation, as: "certain iron or steel fasteners, other than of stainless steel, i.e. wood screws (excluding coach screws), self-tapping screws, other screws and bolts with heads (whether or not with their nuts or washers, but excluding screws turned from bars, rods, profiles or wire, of solid section, of a shank thickness not exceeding 6 mm and excluding screws and bolts for fixing railway track construction material), and washers, originating in the People's Republic .....

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teristics and end uses, all fasteners are considered to constitute a single product for the purpose of the proceeding. Within the same national or international standards, fasteners should comply with the same basic physical and technical characteristics including notably strength, tolerance, finishing and coating. The Commission went on to consider, and reject, arguments by the parties, concerning the scope of the product under consideration. 7.263 Beyond noting that Article 2.1 requires that .....

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t the parameters of "a product" with respect to which a determination of dumping is made should be. The mere fact that a dumping determination is ultimately made with respect to "a product" says nothing about the scope of that product. There is certainly nothing in the text of Article 2.1 that can be understood to require any consideration of "likeness" in the scope of the exported product investigated, contrary to China's argument 7.267 It is clear to us that t .....

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ope of the "product under consideration" referred to in Article 2.6 must already be known before the provisions of Article 2.6 regarding "likeness" come into play. That is, it must be known what the comparator is, before any comparison can be made to assess whether another product is "identical" to or, in the absence of an identical product, "has characteristics closely resembling those of", the imported "product under consideration". China's .....

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respondingly fragmented like products, would result in the definition of, and determination of injury to, multiple, narrowly defined "industries" which may bear little if any resemblance to the economic realities of the production of those goods in the importing country. 7.269 Essentially, China's argument raises an issue of policy, suggesting that the absence of limits on the scope of the product under consideration might result in erroneous dumping determinations by investigating .....

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they are dumped, and could compare the prices of the tomatoes and find they are not dumped, but an anti-dumping duty would nonetheless be imposed on both apples and tomatoes, which would be an unfair result. 7.271 Moreover, we consider it noteworthy that, while the AD Agreement specifically defines "like product" by requiring a comparison between domestically-produced or foreign goods and the imported goods that are the product under consideration, there is no specific definition of & .....

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es to us that the Members intended to allow investigating authorities wide discretion to determine a product under consideration.574 In our view, this supports the conclusion that it would be absurd to impose the definition of like product from Article 2.6 onto the undefined term product under consideration. We simply see no basis in the text of Articles 2.1 and 2.6 of the AD Agreement for the obligation China seeks to impose on investigating authorities with respect to product under considerati .....

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spect to the product under consideration, in light of our decision on the interpretation of Articles 2.1 and 2.6. 7.278 Based on the foregoing, and in the light of standard set out in Article 17.6(i) of the AD Agreement, we do not accept China's view that Articles 2.1 and 2.6 must be interpreted to require the European Union to have defined the product under consideration to include only products that are "like". As a consequence, we dismiss China's claim that the product under .....

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the product under consideration. Thus, in our view, the determination of product scope by Designated Authority is sustainable. Regarding the contention that the scope of PUC has been altered during the course of investigations, Designated Authority is required to come to a final determination only after consideration of the contentions of all interested parties and in the process, the scope of PUC may get altered but that would not vitiate the proceedings so long as the principles of natural jus .....

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ch arise in the manufacturing process, even though these items are not produced for sale, but for captive consumption. (ii) DA has devised a PCN system, which enables determination of the dumping and injury margin, for each part, component, or type separately, to the extent information has been made available by the exporters. (iii) As regards injury to the domestic industry, Rule 2(b), 11 and Annexure II of the Anti-dumping Rules and WTO decisions were referred to. (iv) It is evident that the D .....

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f the levy is achieved. Anti-dumping duty is levied to safeguard the domestic producers from ill effects of dumping. If the parts and components meant for SDH application are excluded, the importers could simply bring the items in different consignments, in unassembled form, and assemble the same in India and defeat the levy. Indeed, including parts and components is consistent with the global practice of defining the PUC in a manner so as to prevent avoidance or circumvention of the levy by the .....

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dethatchers, and spreaders. Unless specifically excluded, lawn groomers that are designed to perform at least one of the functions listed above are included in the scope of this investigation, even if the lawn groomer is designed to perform additional non-subject functions (e.g., mowing). All lawn groomers are designed to incorporate a hitch, of any configuration, which allows the product to be towed behind a vehicle. Lawn groomers that are designed to incorporate both a hitch and a push handle, .....

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to rotate. Lawn sweepers also include a container (which is a receptacle into which debris swept from the lawn or turf is deposited) supported by the frame. Aerators consist of a frame, as well as an aerating component that is attached to an axle or shaft, which allows the aerating component to rotate. The aerating component is made up of a set of knives fixed to a plate (known as a plug aerator), a series of discs with protruding spikes (a spike aerator ), or any other configuration, that ar .....

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g spreader plate that broadcasts the media ( broadcast spreader ), a rotating agitator that allows the media to be released at a consistent rate ( drop spreader ), or any other configuration. Lawn dethatchers with a net fully-assembled weight (i.e., without packing, additional weights, or accessories) of 100 pounds or less are covered by the scope of the investigation. Other lawn groomers- sweepers, aerators, and spreaders-with a net fully assembled weight (i.e., without packing, additional weig .....

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, additional weights, or accessories) of 200 pounds or less when including a single module, are included in the scope of the investigation. Modular unit chasses, imported without a lawn grooming module and with a fully assembled net weight (i.e., without packing, additional weights, or accessories) of 125 pounds or less, are also covered by the scope of the order. When imported separately, modules that are designed to perform subject lawn grooming functions (i.e., sweeping, aerating, dethatching .....

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ssembled lawn groomer, with a minimum of two of the following major components -: 1) an assembled or unassembled brush housing designed to be used in a lawn sweeper, where a brush housing is defined as a component housing the brush assembly, and consisting of a wrapper which covers the brush assembly and two end plates attached to the wrapper; 2) a sweeper brush; 3) an aerator or dethatcher weight tray, or similar component designed to allow weights of any sort to be added to the unit; 4) a spre .....

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C. Gray Portland Cement and Cement Clinker from Japan; The products covered are cement and cement clinker. Cement is a hydraulic cement and the primary component of concrete. Cement Clinker, an intermediate material produced when manufacturing cement, has no use other than grinding into finished cement. d. Hand Trucks and Certain Parts Thereof From China: The product covers hand trucks manufactured from any material, whether assembled or unassembled, complete or incomplete, suitable for any use .....

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ulating a roll or paper more than two pages across. Further, the following European Commission decisions also support inclusion of parts and components:- f. Ironing boards: The product concerned is ironing boards, whether or not free-standing, with or without a steam soaking and/or heating top and/or blowing top, including sleeve boards, and essential parts thereof, i.e. the legs, the top and the iron rest originating in the People's Republic of China and Ukraine (the product concerned), nor .....

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ube and pipe fittings:- EC in the matter of steel tube and pipe fittings kept the scope of the product under consideration as tube and pipe fittings of iron or steel , which comprised of elbows, tees, reducers and caps. It is a matter of common knowledge that elbows, tees, reducers and caps can never be interchangeable. However, the Investigating Authority has held tube and pipe fittings as one like product. The DA has dealt with the contentions of the appellants in the second Final Finding as u .....

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64 in commercial volumes. It has also been argued that largest Public Sector Company operator (BSNL) has not bought STM-64 from the petitioner. The Authority, however, holds that STM-64 is rightly within the scope of the product under consideration for the following reasons (a) Tejas has produced and sold STM-64 in Indian and overseas markets as was verified by the Authority through its investigating team; (b) Even if Tejas has sold some volumes in the export markets, the product type cannot be .....

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, STM-256 was neither imported during the investigation period nor supplied by the domestic industry. The responding exporter from China claimed that STM-256 was not deployed in China also (which means that this was not sold in China as well). The responding exporter also claimed that deployment of STM-256 in India is not even feasible so far, as necessary permission for its deployment have not been given by the competent Govt. of India authority. Investigation conducted at the premises of the p .....

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ed to India during the relevant period, as the fact of non supply of like article by the domestic industry cannot be established unless the type is exported to India and is permitted to be used in India. The Authority holds that no grounds have been made out justifying exclusion of STM-256. Moreover, the investigating team was given access to STM-256 equipment, manufactured by Tejas and available in their premises in Bangalore. Tejas showed that it has made significant investment (Rs. ***** cror .....

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d and interconnected amongst higher-level signals. Digital cross connect can be produced in SDH technology and other technologies. Digital cross connect equipment of SDH technology is clearly SDH equipment. Record verified by the investigating team establishes that Digital Cross Connect of SDH technology has been produced and supplied by the petitioner during the investigation period. The cost and price information included in the injury information and injury margin assessment includes the prod .....

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Interested parties largely concede that SKD/CKD form of SDH is rightly within the scope of the product under consideration. As is seen from the production process, the product is an assembly of a number of cards, components, assemblies and sub-assemblies. It is quite possible that the product is transported in its SKD/CKD form. In fact, the product is in general invoiced in SKD/CKD form only. The producers do not raise invoice for fully functional and operational SDH equipment. The production .....

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ina in SKD/CKD form as well. The Authority, therefore, confirms that the scope of the product under consideration includes SKD/CKD form of the product. vi. Assemblies and Sub-assemblies The verification of the records of various exporters from China PR and Israel revealed that the Equipment is shipped in the form of assemblies and sub-assemblies and each of these assemblies and subassemblies are priced individually. Therefore, the equipment imported as a unit or in the form of assemblies / sub-a .....

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for production/assembly of a product other than SDH equipment, the same is beyond the scope of the product under consideration. PCB and cards are within the scope of the product under consideration only if such PCBs or cards are meant for production of SDH equipment. viii. Parts and Components Interested parties have heavily opposed inclusion of parts and components within the scope of the product under consideration. The interested parties have argued, inter-alia, that (i) parts/components are .....

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omponents on the premise that their exclusion will leave a big scope for circumvention. They have pleaded that imports of components as raw material or inputs must be distinguished and differentiated with imports of SDH in component form (with IPR being supplied without customs check/control/clearance). They have further submitted that the domestic industry is not against imports of components as inputs. Domestic industry is against import of product in the form of components, using the same Chi .....

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ls of usage of parts and components, is of the view that including parts and components, when imported on a standalone basis is going to put the whole consumer durable industry to hardship. ix. SDH equipment as part of another equipment - The Authority notes that the product under consideration eventually forms part of Broadband or Cellular equipment. It is quite possible to import SDH equipment as part of such Broadband or Cellular equipment. If the scope of the product under consideration is n .....

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therefore, clarified that the scope of the duty shall only be to the extent of the value of SDH equipment included in such Broadband/Cellular equipment. The scope of the duty shall not extend to the entire equipment. The importers are expected to declare and the Customs Port Authorities are expected to apply due diligence in ascertain/bifurcating the value of SDH equipment. x. Software - Software is an essential part of the product under consideration in as much as the equipment is totally non-f .....

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t. Since DWDM is not an SDH technology equipment, the same was beyond the scope of present investigation and proposed measures. However, in view of the repeated arguments of the interested parties and their claim of possible demands of antidumping duties in future by Customs Port Authorities, it is clarified that DWDM transmission equipment are beyond the scope of product under consideration. 30. The appellants argued that the domestic industry has not offered STM-64, and therefore, it should be .....

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been argued that this product was neither produced in India nor imported into India from the subject countries during the period of investigation. This in our view is not material as the investigation is qua the product, and not the types of the product. We agree with the counsel for the domestic industry that as long as the product is imported duty can be imposed on all types of such product provided such type is in commercial competition with the like article made in India and can cause injur .....

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n this case it is evident that the products imported by the appellants can be substituted for the products manufactured by the Domestic Industries. The imported products viz. 2 x 2 vitrified/porcelain tiles can definitely replace the 1- x 1- vitrified/porcelain tiles manufactured by the Domestic Industry, inasmuch as the user will prefer to use the dumped low cost imported tiles of a bigger size to substitute his requirement of tiles of smaller size. The dumped imports of vitrified/porcelain t .....

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t would in itself, give a leverage to the consumer to substitute from one type/size/pattern to another type/size/pattern of vitrified/porcelain tiles. In technical terms a vitrified/porcelain tile of 1000 x 1000 mm will equivalent to four vitrified/porcelain tiles of size of 500 x 500 mm but the price of the 1000 x 1000 mm tiles will not be the price of four tiles of 500 x 500 mm. It would be lesser then the price of the four tiles of smaller size. Hence technically and commercially the dumped i .....

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icle and can cause injury to the domestic producer they can be covered by the scope of levy. The decision in the case of Andhra Petrochemicals Ltd. Vs. Designated Authority (supra) relied upon by the appellants is distinguishable on facts. In that case, CESTAT found that the product under consideration or article, had not been correctly defined, and that each Acyclic Oxo-alcohol was a separate article, for which separate dumping and injury was required to be examined. It is in that context that .....

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ore levy of anti-dumping duty would fail in respect of goods not imported (e.g. STM 256) or SDH equipment which came embedded in the goods imported. In this regard, it is pertinent to note that duty on STM 256 will be levied only when it is imported and not otherwise and whenever the same is imported, its value will be determined under the provisions of Section 14 of Customs Act, 1962 and the Customs Valuation (Determination of Value of Imported Goods) Rules framed thereunder. As regard the cont .....

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the levy of the anti-dumping duty which is levied in terms of Section 9A of the Customs Tariff Act, 1975. As regards the valuation of goods/items which are imported as parts/components embedded in some other goods, it is pertinent to mention that the provisions of Customs Valuation Rules framed under Section 14 of the Customs Act, 1962 are clearly capable of valuing even such imported goods which are found lying unclaimed in the middle of nowhere even embedded in other goods. It is quite possibl .....

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tio of the Supreme Court judgement in the case of C.I.T., Bangalore vs. B.C. Srinivasa Setty (supra) does not adversely impinge in this case. Thus this contention of the appellants is not sustainable. Under Section 9A of the Customs Tariff Act, 1975, the Central Government is fully empowered to levy the duty in the manner it considers fit. It can prescribe a method for identifying the product subject to levy. In the instant notification, the duty is to be applied on the % of CIF Value of Import .....

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earing was a mere formality and in violation of the direction of the Tribunal. In this context, we note that in the original (first) investigations, hearing was held before one officer and order was passed by another and therefore the matter was remanded by CESTAT for affording hearing to all the parties. In terms of Rule 6(6) of the Anti-Dumping Rules, what is orally presented before the Designated Authority is to be taken into consideration only when the same is subsequently reproduced in writ .....

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ther legal issues raised by the parties have remained unchanged and consequently no modification of the notification was warranted in the wake of the remand order of CESTAT. DA having considered the pleas raised before it in the remand proceedings after granting due opportunity of hearing to all interested parties passed the impugned second Final Findings. Thus, there has been no infirmity in the procedure followed by Designated Authority while passing the second Final Findings. 34. It was conte .....

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s as under: Respondent No. 3 was a design and development house, and they undertook development of design, and prototype of the product, and outsourced the actual production of the goods, to EMS providers. As the Authority had verified the production process at the factory of Tejas and in view of the admission of this fact by Huawei, we are unable to sustain this contention of the appellants at this stage. 35. The appellants also raised the contention that rejection of price undertaking without .....

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providing export sales information had the company followed companys internal product coding systems. The company revised its export sales statement a number of times. As brought out in the verification report sent to the company, the export sales information of the company remained un-verified. The Authority is unable to accept the argument that the product coding system followed by the Authority was too complicated and prevented the company from providing the desired information. Indeed, a n .....

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nothing prevented the exporter from providing information on both the basis - the product coding system followed by the Authority and product coding system followed by the company. 112. The product under consideration is essentially an assembly of a number of electronic cards and sub-assemblies. In fact, the producers tend to invoice the sales in terms of SKD/CKD/cards/sub-assemblies of the product. Investigation has shown that all the companies follow some system for design and development of .....

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se were excluded for the purpose of determination of NEP for preliminary determination. These PCNs were basically extracted from POs executed with different customers in India. Although the Authority gave necessary opportunity to them to get their data verified during verification visit, the PCN details claimed by them could not be verified as there appeared mismatch in subfields identified against each PCN as per the nomenclature prescribed by the Authority. This was pointed out to them in th .....

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ng the above, the Authority holds that claim on export sales to India remained unverified in spite of reasonable and adequate opportunity having been provided to them. The Authority is therefore unable to determine individual Export Price and NEP for determination of either individual DM or Injury Margin in respect of the subject producer exporter. - 186. The Authority also takes note of the submissions made by Huawei Technologies, proposing a price undertaking and seeking information on export .....

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uct but a complex one with a number of variants. Therefore the Authority holds that such an undertaking, proposed by them is impractical; Rule 15(3)) refers. Given such non-cooperation on the part of Huawei as recorded by Designated Authority, it cannot be faulted for rejecting the undertaking. 36. As regards the contention that market economy treatment was wrongly denied to Alcatel Lucent Shanghai Bell Co. Ltd and normal value was incorrectly determined. We find that DA has dealt with this aspe .....

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***% (*** nominees) nominees of State departments including the *** having a casting vote. In view of the above, with this significant state participation, the state interference cannot be ruled out and therefore the Authority holds that the Company cannot be granted market economy status. No new material has been brought on record to dislodge the above findings of Designated Authority and therefore we do not find any unreasonableness in the findings on this aspect and the Authority was not irra .....

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mined on any other reasonable basis. The contention of Alcatel Lucent is therefore not well founded and the Authority was justified in determining the normal value based on facts available. 37. It was argued that inclusion of software and SDH Equipment fitted with cellular equipment on the ground of circumvention was not correct since the Rules concerning circumvention were brought into force only in 2012. We find that Rules 25 to 28 of the Rules, which came into effect from 19.01.2012 deal with .....

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