TMI Blog2017 (9) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... any statutory limitation, the appellants were put to any disadvantage due to such delay. It is necessary to note that immediately on the application filed by the applicant and initiation of NSR by the DA, order of provisional assessment has been issued by the competent authority so that the interest of the appellant shall be safeguarded. In case finally the authorities hold that the appellants are eligible for individual rate of AD duty or no AD duty, then all the benefits so available cannot be denied to the appellants. Keeping these facts in mind, we hold that delay in issuing the final findings cannot be the sole reason to set aside such final finding. This is more so in the absence of any statutory time limit under Rule 22 of the AD Rules. It is contended by the appellants that in second sunset review, the exports from China, PR have been found to involve no dumping during 2012-13 and accordingly, the request for sunset review was rejected. In view of the above fact, there is no dumping or injury and accordingly, it was pleaded that the NSR should have given a finding to that effect - Held that: - we are dealing with NSR, which is for the period of investigation from 1.5.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as per request of the applicants claiming individual dumping margin. It is apparent that the applicants have to establish their status as new shippers. It would appear that, in the present case, the applicants are substantially shifting the burden on the DA to adduce evidence that they are not new shippers. This is not a tenable proposition. Appeal dismissed - decided against appellant. - AD/52959-52963/2016 and 53043/2016-AD(CUS) - AD/A/55954-55959/2017-CU[DB] - Dated:- 18-8-2017 - Mr. (Dr.) Satish Chandra, President, Shri S.K. Mohanty, Member (Judicial) And Mr. B. Ravichandran, Member (Technical) Rep. by Shri Alwan R., Advocate for the appellant. Rep. by Shri Amit Singh, Advocate for Designated Authority. Rep. by Shri Govind Dixit, AR for the Revenue. ORDER Per: B. Ravichandran These six appeals are against final finding dated 28.03.2016 of the Designated Authority (DA), Directorate General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry. In the said final findings, the DA held that the applicants therein cannot be treated as New Shippers in terms of Rule 22 of Customs Tariff (Identification, Assessment and Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gned order refers to the Final Findings of the DA which had concluded that producers had a much wider relationship network than what was declared by them in this regard; that the petitioners did not appear for oral hearing when the case was posted. It also records that the petitioner neither cooperated in the proceedings nor on the spot verification and that the petitioners had failed to submit the relevant documents to make full and complete declaration regarding their period of existence and the relationship between them and the related companies. However, the said conclusion of the Tribunal is not supported by any reasoning except for mere reference to paras 25 to 27 of the Final Findings. Indeed, there is no reference to the contentions of the petitioners. For example, in para 5 of their Appeal before the Tribunal, the petitioners had pleaded that they had not exported during the earlier investigation period and were not related to any of the companies/producers, which had exported the subject goods to India during the investigation period. .. 17. The impugned order has not examined either the specified procedure, the strict timelines or the matter or meri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the matter and various constraints like non-response of the interested parties, initial refusal for spot verification and non-participants of interested parties during the hearing and certain administrative reasons like change of DA, contributed to the delay. He submitted that there is no statutory time limit, though the DA always endeavors to finalise the NSR at the earliest possible time. In any case, the delay has not jeopardized the interest of the appellants, as provisional assessment was ordered during the validity period of AD duty. The conclusion of the NSR and even this appeal proceedings will lead to the finalization of assessment based on the outcome on merit. 8. Regarding the degree of dumping/injury margin being less than 2% and also on merit regarding the status of the appellant as New Shippers, the ld. Counsel for the DA drew our attention to specific findings recorded in the final order. He further submitted that in the investigation relating to AD duty and NSR, the DA has to look into the relevant data and facts relating to the producers/exporters in subject countries. This involves a transparent and complete cooperation by the interested parties. In absence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be initiated and carried out on an accelerated basis, compared to normal duty assessment and review proceedings in the importing member. It is argued that the delay of 2 years even to hear the parties will make the whole proceedings vitiated. 13. Admittedly, Rule 22 itself does not provide for any statutory time limit for completion of review. We also note that there has been delay in completion of the NSR. The question is whether such delay alone can be the reason for setting aside the final finding of the DA, without examining the merit. Here, the ld. Counsel for DA tried to explain the background of delay. Various reasons were cited, which contributed to the delay. It is to be noted that the appellants did not consent for on the spot verification in the first instance. It was only after the issue of disclosure statement by the DA that the appellants consented for on the spot verification. There was a change in the DA, which necessitated a second oral hearing. We also note that on the first oral hearing fixed, the appellant failed to participate. While we note that there is a delay in the proceedings, which concluded in the final finding now under challenge, what is to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said period, the AD duty was validly levied on the imports of the subject goods and the NSR sought was to have a separate finding for the appellants dealing with subject goods exported to India. We note that the reference of the appellant regarding termination of AD duty is not relevant to the issue at hand. The finding on NSR was based on the analysis and facts as recorded by the DA and the termination of the AD duty in 2013 has no implication for the period when the said duty was validly levied. 16. Coming to the merits of the issue, we note that the appellants contended that they were correctly eligible for NSR and the findings recorded by the DA is based on the incorrect facts. We note that the DA rejected the claim of the appellant for NSR on the ground that they do not fall within the scope of New Shipper . They had in fact exported the subject goods earlier and will be correctly covered by the general AD duty imposed on the subject goods originating in or exported from China PR. 17. We have considered the submissions of the appellant closely, in this regard. The DA gave his finding regarding non-fulfilment of preliminary condition under Rule 22 of AD Rules. We no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company, in its comments on the verification report, tried to explain the position, but the fact remains that they failed to bring these facts before the Authority. 26. While Heyuan Romantic Ceramics Company Limited had declared as having only one production centre for the subject goods, the web based information followed by verification revealed that the Company had actually two production centres for the subject goods and not one as declared by them. Although Heyuan Romantic Ceramics Company Limited, China PR (Producer-2) claimed to have only one production facility for vitrified/porcelain tiles at Huangtuling Village, Denta Town, Dongyuan County, Guangdong Province, China PR, but, as per the website information, they have another production base at Zhangjiang in Guangdong province, which was not declared in their application/responses. Consequently, the Authority was not in a position to verify the production, sales and other details of the said non-declared plant. Without verifying their records, it cannot be ruled out that the said 2nd plant of Heyuan Romantic Ceramics Company Limited did actually not exist during the earlier investigations and not involved in the produc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s declared to be the exporter. 30. Although the entire exports were made to its related Indian importers, Thai Impex Malaysia could not demonstrate with documentary evidence realisation of export proceeds. Only a part payment was received from the Indian buyers, but the Company could not justify with documentary proof the reasons for such payments received from the Indian buyers when the Indian buyers have already made the full payment to Foshan Beyond, China directly. During the verification, the Thai Company was found to be a name sake company without any major infrastructure or activities. During the verification, Thai Impex Malaysia could not demonstrate with documentary evidence its role as an exporter in the present transactions and realisation of the complete export proceeds in its name. Even the Company could not demonstrate its audit reports and audited annual accounts and could not reconcile the details claimed in Annexure 2A of the response with its books of accounts. During the verification, it could be made out that the sole motive of forming Thai Impex Malaysia was to facilitate the NSR transactions with the Indian buyers and to ensure that the Chinese NSR parti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. It is necessary to note here that the appellants did not make full and complete disclosures regarding their period of existence and relationship among themselves. In the absence of full and complete disclosure in a true and transparent manner, it is not open to the appellant to contest the final findings against individual dumping margin. For instance, M/s. Heyuan Romantic Ceramics Co. Ltd. used brand name registered in 2001. Though claimed to have been set up in 2009, it had its existence as Fanrong Ceramics Co. Ltd. much before. There was no disclosure of some vital facts. Similarly the number of production units in China were not correctly disclosed. M/s.Foshan Beyond Import External Company, China PR claimed to be shipper. However, they realized export proceeds directly from the Indian buyers as exporter. The documentary evidence to support transaction between M/s. Foshan and M/s. Thai Impex has not been submitted. These points, illustratively, show that the appellants failed to make all supporting disclosures and the DA correctly relied on available evidence with him to reject the claim for NSR. It is to be noted here that the NSR was initiated as per request of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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