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TMI Blog2017 (9) TMI 1207X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, he held that they are not entitled to individual dumping margin. He recommended that export of subject goods produced/exported by the applicants during the period from the date of initiation of the New Shipper Review (NSR) Investigation recommending provisional assessment i.e. 18.05.2012, may be subjected to levy of AD @ 155/-per sq. mt., as imposed earlier on the imports of subject goods, originating in or exported from China PR, until the date of validity of the said duty notified earlier vide notification no.82/2008-Customs dated 27.06.2008. 2. The NSR in terms of the above said AD Rules was with reference to AD duty imposed on the vitrified/porcelain tiles imported from China PR, under notification no.73/2003-Cus ADD dated 1.5.2003 and notification no.82/2008-Cus AD dated 27.06.2008. The period of investigation (POI) was 1.5.2012 to 31.10.2012. The DA initiated NSR on 18.05.2012. On 10.07.2012, the Ministry of Finance issued notification no.35/12 for provisional assessment of goods exported by the applicants until the completion of review. On completion of NSR, the DA recommended imposition of ADD duty, as applicable to other imports of subject goods originating in or exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the DA and the subject goods were not more subject to anti-dumping duty, then what would be the effect of the NSR which was to be only for the remainder period of the five years of the 1st SSR anti-dumping duty levy? Could the NSR or its corollary provisional anti-dumping duty be sustained when the main anti-dumping duty itself was not payable after June, 2013? Furthermore, the written submission of the respondents could not have been taken into consideration by the Tribunal without a copy of the same being furnished on the petitioners. This deprived the latter of an opportunity for effective representation, hence, there was denial of natural justice." 5. The appeals were again listed for hearing before the Tribunal, after due notice to all the parties. The arguments of the counsels for appellants, the DA and the Revenue were heard at length on 3.7.2017 and 4.7.2017. Shri Alwan, ld. Advocate for the appellants submitted a written note and elaborated on the points therein. He submitted that the appeals were remanded back to the Tribunal to adjudicate on merit with specific reference to certain issues. 6. Ld. Counsel submitted on two preliminary issues and thereafter on merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Regarding the status of the appellant, he submitted that when there were inter-connected units, change of owners of already existing units, the DA based his findings on the information available in public domain and also certain disclosures made by the appellants. He cannot be faulted on this account. 9. Ld. AR submitted that the closure of the matter on second sunset review and termination of AD duty thereafter by itself will not have any effect on the material period presently under consideration, as AD levy during that period was held to be valid and legally sustainable. 10. Ld. AR for Revenue supported the final findings of the DA and the Customs Notification ordering finalization of provisional assessment in respect of imports connected to the appellants. He submitted that the material facts and the speedy completion of investigation /review under AD Rules are interconnected to cooperation by various interested parties. The DA has to get reliable data and facts from the persons located in subject countries and in such circumstances, the DA can proceed only with data made available to him. In the present case, the analysis by the DA cannot be faulted. 11. Before conclusion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. We have also considered the case laws relied upon by the appellant. The Hon'ble Supreme Court in case of Pune Municipal Corporation Vs. State of Maharashtra - 2007 (2) TMI 637 and in State of Gujarat Vs. Patel Raghav Natha & Ors. - 1969 (4) TMI 90 Supreme Court was discussing the applicability of the concept of the reasonable time under Urban Land (Ceiling and Regulation) Act, 1976 and the provisions of Bombay Land Revenue Code 1879. The Hon'ble Apex Court held that in the absence of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatus as New Shippers. In terms of AD Rules and the provisions of WTO Agreement, the DA is required to review, for the purpose of determining individual dumping margin for any exporter or producer in the exporting country, which has not exported the subject goods to India during the period of investigation of the earlier AD proceedings with reference to subject goods from subject country. It is also to be examined whether the applicant is related to any of the exporter or producers in the subject country being notified for AD duty. Here, we note that China PR is a non-market economy. The data regarding the operation of various new entities and their inter-connected linkage in business as well as management controls can be examined only when true and transparent disclosures are made by the interested parties located in the subject country. In the present case, the DA, after following the procedures laid down in the AD Rules, proceeded to analysis the available record, before concluding the NSR. The crucial point is whether or not the appellants were involved in export of subject goods from the subject country during the earlier period. The DA also conducted though, belatedly, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chinese business. 27. The verification also revealed that both the related NSR producers had a much wider relationship network than what they had actually declared. There were many related companies involved in the production/sale of the subject goods, which were acknowledged to have either been existing prior to the POI or are closed and out of business now. But, the fact remains that these relationships and their activities were not declared up front by the NSR parties. Therefore, without being declared and subjected to verification, it cannot be ruled out that these related companies were not actually involved in the production and export of the subject goods to India, either directly or indirectly, during the earlier investigations. 28. In terms of the Anti-dumping Rules and provisions in the WTO Agreement concerning NSR, the Designated Authority is required to review, for the purpose of determining individual margin of dumping for any exporter or producer in the exporting country in question, who has not exported the subject goods to India during the period of investigation of the earlier anti-dumping investigations concerning imports of the subject goods from the subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the Authority holds that it may not be appropriate to clear the exports of the subject goods made by M/s. Foshan Sanshui Romantic Ceramics Co Limited, China PR (Producer-1), Heyuan Romantic Ceramics Company Limited, China PR (Producer-2), Foshan Beyond Import and Export Company Limited, China PR (Shipper) and Thai Impex Malaysia SDN BHD, Malaysia (Exporter), without payment of Anti-Dumping duty." 18. In the face of the above factual recordings and conclusion by the DA, the appellants claimed that there is no details as to which company was related to the NSR authorities, what was their nature of network and relationship and what and which goods were produced by the related parties. As we have already noted that the DA has to get true and full transparent information from the subject country regarding commercial and business interconnectivities among the various stake holders. Different countries have different legal parameters. Not all details will be manifestly known to outside persons and especially to the Government Agency like DA operating in India. In other words, the DA is, no doubt, will be constrained by the selective availability of certain facts and the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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