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Inovyn Sverige AB Versus The Designated Authority & Anr

2016 (6) TMI 308 - DELHI HIGH COURT

Anti Dumping Duty - Seeking change of name in the final findings of the Designated Authority (DA) - DA suggested to seek a Mid-Term Review instead of filing an application for change of name - Held that:- it was incumbent on the DA to have first examined whether, on the basis of the documents submitted by the Petitioner, the change in its name has altered or impacted the basis for the imposition of the anti-dumping Duty in terms of the Final Findings. In order to come to such conclusion there ha .....

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The failure to devise a procedure for dealing with the contingencies cannot constitute a valid reason to compel the initiation of a mid-term Review to effect changes that are of a routine nature and which do not affect the basis of the Findings. It is made clear, however, that if on examination of application made by such entity together with relevant documents the DA is of the view that such change in name affects the basis of the Findings, then it may, for reasons to be recorded, order a mid- .....

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HU BAKHRU JJ. For the Appellant: Mr Akhil Sibal, Mr Ashish Gupta, Mr Pradeep Chandra and Mr J. Mitra, Advocates. For the Respondents: Mr Raghav Kapoor, Advocate along with Ms Suparna Srivastava, CGSC and Ms Shreya Sinha, Govt. Pleader O R D E R Dr. S. Muralidhar, J.: 1. This writ petition has been filed by INOVYN Sverige AB, questioning the decision conveyed to it by the Designated Authority (DA), Directorate General of Anti-Dumping and Al .....

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ompany incorporated under the laws of Sweden. Prior to 1st July 2015, the Petitioner was operating under the name of "INEOS Sverige AB". The Petitioner produces PVC Suspension Resin and exports it to India. 3. The Petitioner participated in the investigation conducted by the DA into the dumping of PVC Suspension Resin. In the Final Findings dated 4th April, 2014 the DA recommended a duty of US Dollars 39.65/MT on the imports of PVC Suspension Resin manufactured by the Petiti .....

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lation 139/2004 of 20th January, 2004 (EC) on the control of concentrations between undertakings, the aforementioned parties, notified the European Commission of their proposal to establish a newly created joint venture to be named "the Inovyn JV". However, the actual approval of the new JV under the EU Merger Regulations by the European Commission took place only on 8th May, 2014, i.e., subsequent to the Final findings given by the DA on 4th April, 2014. It is stated that the creation .....

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13 that despite the change of name of the Petitioner, the cost of production, sources for procurement of raw material, production facilities, sales channels and cost of sales for sale, both within the EU market and the Indian market continued to remain the same." The relevant documents to show the address, the company registration number, VAT number of the Petitioner remain the same have been enclosed with the petition. 6. The Petitioner states that on account of change of name .....

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ord documents to show that despite the change of its name etc. the Petitioner continued to remain the same. The Petitioner states that it kept following up the matter and even met the officials of the DA on 2nd February, 2016 to explain the background of the application and the urgency involved in considering the request for change of name. According to the Petitioner, during such meeting the officers of the DA suggested that the Petitioner should seek a Mid-Term Review instead of filing an appl .....

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lowing are observed: i. You are required to file an application or the Mid Term review in the prescribed format. ii. Also provide the supporting data/documents. 2. You are requested to provide the aforesaid information/data/documents within two weeks to enable the authority to process your application further. 8. In the above circumstances, the present petition has been filed. 9. Mr Akhil Sibal, learned counsel for the Petitioner, submitted .....

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the facts and circumstance of the case, would also be time consuming. It would further delay the Petitioner availing the benefit of the Final findings and the consequent notification by the Central Government. Mr. Sibal referred to the decision in Rishiroop Polymers (P) Ltd. v. The Designated Authority and Additional Secretary (2006) 4 SCC 303 where the Supreme Court explained the limited nature of the enquiry in a mid-term Review. 10. Mr. Raghav Kapoor, learned counsel for the Respon .....

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an entity is not mentioned as one of the reasons. It is contended by Mr Kapoor that there is no other procedure prescribed in the law for effecting any change in the Final Findings. Secondly, it is submitted that there is a possibility that in respect of the change in name objections may be raised by other interested parties and without notice being issued to them, which can happen only in a mid-term Review, the change of name cannot be effected in the Final Findings. Thirdly, it is submitted th .....

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iew. 11. The above submissions have been considered. The exercise of the DA undertaking an investigation into the likely injurious effect of import of any category of goods on the domestic industry is in exercise of the powers under Section 9-A of the Customs Tariff Act, 1975 ('CTA') read with Section 9B (2) thereof. The Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on dumped articles and for Determination of injury) Rules 1995 (hereinafter the .....

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review of the need for the continued imposition of the anti-dumping duty and reads as under: 23. Review (1) The Designated Authority shall, from time to time, review the need for the continued imposition of the anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. (2) Any review initiated under sub- .....

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eview, for something as simple as a change of name of an entity mentioned in the Final Findings rendered on 4th April 2014, it is necessary to examine the scope of a mid-term Review. 14. In the first place, it required to be noticed that in terms of Rule 23(1) the review is essentially for examining the need for the continued imposition of the anti-dumping duty. The DA will have to form an opinion on the basis of information received by it that there is no justification for the contin .....

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inued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of antidumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domest .....

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me of initial imposition of antidumping duty have altered to such an extent that there is no longer justification for continued imposition of anti-dumping Duty . When an entity mentioned in the Final Findings comes forward to say that there is a change in its name and not in its legal status, the question is whether the DA would be justified in such circumstances to require such entity to go in for a mid-term Review? 17. The only justification advanced before this Court by learned cou .....

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ted that its legal status has not changed. All that has happened is a change in its name. There was no occasion, therefore, for the DA to presume that such a change of the name of the Petitioner as appearing in the Final Findings would somehow prejudice the other interested parties and that a mid-term Review has to be undertaken to examine if this change in name has resulted in a changed circumstance justifying the mid-term Review. 18. In the present case it was incumbent on the DA to .....

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ange was in its name. A mere change of name cannot alter the legal status of the entity. For instance, if a company is a party before a Court in a litigation and the name of the company has undergone a change in terms of the Companies Act then the Court would on an application by the party concerned permit the amendment to the memo of parties and to the cause title of the case. This is a routine exercise. After all the Court cannot examine if such a change in name is justified since that takes p .....

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The question is not so much about the prejudice caused to the Petitioner by the mid-term Review but whether in fact it is called for at all. A mid-term Review would undoubtedly not get over in a short time. It would undoubtedly further delay the availing of the benefit of the anti-dumping duty notification by the Petitioner. The Court suggests that the DA must issue a further set of instructions to account for the need to make routine clerical corrections in the Final Findings or for that matte .....

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