TMI Blog2001 (12) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... . First petitioner is also an importer of polyester staple fibre (hereinafter for the sake of brevity referred to as PSF ). 3. Petitioner Nos. 2 and 3 are engaged in the business of manufacture of polyster staple fibre, polyster, filament yard, etc. They have their manufacturing unit in Thailand. They are exporters and manufacturers of the article, which is subject to investigation in the present proceedings. 4. Petitioner No. 4 is engaged in the business of manufacture of polyster staple fibre, polyster filament, and it has its manufacturing unit in Malasia. Petitioner No. 4 is also an exporter an manufacture of the article subject to investigation. Petitioner No.2 to 4 are exporters of polyster stable fibre into India. 5. First respondent is the designated authority appointed under Rule 3 of the Customs Tariff ( Identification, Assessment and collection of anti-dumping duty on dumped articles and for determination of enquiry) Rules, 1995 ( Rules for short). The third and fourth respondents are the producers of polyster staple fibres and they are the applicants before the first respondent designated authority for initiating investigation proceedings against the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of 15 days. 10. After disposal of the writ petition, petitioners and others had filed their objections before the first respondent designated authority. The first respondent designated authority after hearing all the parties interested in the lis, by its order dated 15.10.2001 has justified the initiation of investigation proceedings pursuant to the application made by respondent Nos.3 and 4. The order made by the first respondent designated authority on 15.10.2001 is as under: D Decision. 93. From the above it is clear that the allegations made are not based on facts and correct interpretation of anti-dumping laws and procedures. It appears that most of the allegations are based only on the non-confidential copy of the application. The assumptions made by the parties challenging the initiation notification are based on incomplete facts resulting in incorrect averments and conclusions. The averments are based on mare conjectures as they are devoid of facts and the law on the subject appears to have not been properly appreciated. 94. The Authority while examining the application filed by the domestic industry had ensured that the same was complete in all r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel has invited my attentions to the observations made by the Apex court in the case of BARIUM CHEMICALS LTD. VS. COMPANY LAW BOARD reported in AIT 1967 SC 295, and the observations made by the Apex Court in the case of ROHTAS INDUSTRIES LIMITED VS. S.D. AGARWAL ANOTHER reported in AIR 1969 SC 707. In Rohtas s case, the Supreme Court has laid down the parameters of judicial review with regard to the opinion formed by the Government. In the said decision. The Court has stated as under: In other words, the existence of the circumstances in question is open to judicial question is open to judicial review though the opinion formed by the Government is not amenable to review by the Courts. 13. To decide the legal issue canvassed by the learned Senior counsel for the petitioners, in my opinion, a look at the provisions of Rules, 1995, in absolutely necessary. Therefore, only the relevant Rules are extracted and discussed. 14. The parties are governed by the Rules known as the Customs tariff (Identification, Assessment and collection of the Anti-dumping Duty on Dumped Articles and For Determination of Injury) Rules, 1995. The said Rules have come into fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) to submit its findings, provisional or otherwise to Central Government as to- (i) normal value, export price and the margin of dumping in relation to import of any article; (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. (d) to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, and the date of commencement of such duty; and (e) to review the need for continuance of anti-dumping duty. 18. Then we come to Rule 5 of the Rules. The Heading of the Rules is initiation of investigation. The said Rule is 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 any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. (2)An application under sub-rule (1) shall be in the from as may be specified by the designated au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations:- (1)The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notifying its decision and such public notice shall, interalia, contain 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 basic 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 know. (2) A copy of the public notice shall be forwarded by the designated authority to the know exporters of the article alleged to have been dumped, the Government of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to- (i) The known exporters o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the territory of other specified countries. Rule 10 of the Rules provides for the method and manner for determination of normal value, export price and margin of dumping. Rule 11 of the Rules provides for the manner and method for determination of injury to the domestic industry by dumping of the imported goods. Then we come to Rule 12 of the Rules, where the designated authority is required to give its preliminary findings. 21. After receipt of the preliminary findings, the Central Government on the basis of the preliminary findings of the designated authority, may levy a provisional duty. Before levying such provisional duty, the provisio appended to the Rules obligates the Central Government to afford an opportunity of hearing to the person, who would be aggrieved by such levy. 22. Rule 14 of the Rules provided for termination of investigation by the designated authority. 23. Lastly, we have Rule 17, which provides for the final findings by the designated authority. Rule 18 of the Rules provides for the levy of duty based on such final findings. These are the Rules. which requires to be noticed by this Court for the disposal of these writ petitions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation alleging dumping of the imported goods. Once that determination is done any the designated authority, it is required to examine the accuracy and adequacy of evidence provided in the application and satisfy itself subjectively and objectively that there is sufficient evidence with regard to dumping , injury where applicable and it applicable, the casual link between such dumped imports and the alleged injury. After a decision is taken, an investigation requires to be done and the designated authority is expected to notify the Central Government. Once the designated authority initiates investigation by issuing an appropriate notification, then it is required to follow the principles governing investigation. The Rule itself provides how the designated authority should determine the existence, degree and effect of an alleged dumping of an article. It also specified the factors, which requires to be taken into consideration by the designated authority before it frames the provisional findings. The said Rule also provides, the type of evidency that requires to be produced by the domestic industry in support of its application. 29. The Rules also provide for determination of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed by the applicants/domestic industries along with their application. 32. 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 formed by the designated authority based on the evidence made available and produced before it by the applicants. This Court normally in exercise of its judicial review would not disturb the opinion of the designated authority or the Central Government. This Count only looks into whether are opinion formed by the designated authority is in consonance with the provisions of the Act and the rule framed thereunder. This Court also will not interfere with the opinion formed by the designated authority or the Central Government unless that opinion is either wholly arbitrary or unreasonable or no reasonable person would come to such a conclusion or it it is in violation of statutory provisions. In may opinion, in the instant case, the designated authority rightly and correctly under ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
