TMI Blog2019 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... . It also appears from record that respondent no.2- authority has failed in appreciating the material and accompanying documents to the substantive application, on likelihood test and its parameters and has not considered essential facts such as (a) surplus capacities in exporting countries (b) inventories diverted to India at dumped prices, (c) volumes of export by exporting countries to other countries and (d) price attractiveness of the Indian market. The Court needs to be mindful of the fact that in any manner the exercise that is required to be undertaken is in light of the final statutory limit to complete the sunset review, as in any case, anti-dumping duty cannot exceed and continued after the statutory period of limitation is over, as provided under Section 9A (5) - Therefore, the Court is of the view that when the Court has elaborately discussed herein above, mere remand of the matter may consume avoidable time and that may affect the very process of sunset review as in that process the authority also will have to give sufficient time to all the concerned for putting forward their viewpoints and material to substantiate them. If sunset review is ordered, no harm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f continuation of existing antidumping duty for a further period of 5 years in respect of imports of certain rubber chemicals viz. (a) MBT, CBS, TDQ, PVI and TMT (for short subject goods), originating in or exported from China PR (for short subject country ) and (b) PX-13 (6PPD) (for short subject goods ) originating in or exported from China PR and Korea RP (for short subject country ) by way of communication/order dated 24.12.2018 with following prayers:- 27. .... a) This Hon ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari so as to quash and set aside Impugned order dated December 24, 2018 issued by the Respondent no.2 and annexed at Annexure-A hereo; and b) This Hon ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus so as to direct the Respondent No.2 to initiate Sunset Review investigation under the provisions of Section 9A(5) of the Act read with Rule 23 (1B) of the Rules and further direct the Respondent No.3 to issue an appropriate notification in terms of 2nd proviso to Section 9A(5) of the Act for extension/continuation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amenable to the writ jurisdiction of this Court. 2.1 It is also contended that India is signatory to World Trade Organization and also a signatory to the General Agreement on Tariffs and Trade, 1994. 2.2 While referring to the provisions of the Customs and Tariffs Act and the Rules made thereunder, it has been contended that in the year 2008, the petitioner filed a petition before respondent no.2 for investigation and recommendation of anti-dumping duties on the aforesaid goods and on the basis of the said application, the respondent no.2 issued preliminary final finding on 28.2.2008 recommending provisional antidumping duty on imports of subject goods from subject countries. That on 5.5.2008, Ministry of Finance also issued Notification No.61/2008-Cus imposing provisional anti-dumping duty. Thereafter, respondent no.2 recommended imposition of definitive anti-dumping duty vide final finding and ultimately respondent no.3 issued customs Notification No.133/2008-Cus implementing the recommendation of respondent no.2. 2.3 It is also contended that on 5.8.2011, respondent no.2 conducted mid-term investigation pursuant to an applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No.1 to present its views orally. Petitioner No.1 attended oral hearing, and thereafter submitted written submission on December 17, 2018 clearly establishing the need for review. Petitioner No.1 briefly submitted as follows to justify the need for review the antidumping duty to allow the Indian producers to maintain the market share, which had a positive impact on the economic development of the domestic industry, the foreign producers did not stop dumping practice injury to the domestic industry is likely to recur in the event of cessation of duty: i. The information provided shows that the dumping has continued despite the imposition of anti-dumping duty. The dumping is likely to cause injury to the domestic industry, in the event of cessation of anti-dumping duty. ii. Intensified dumping and consequent injury to the domestic industry is likely because Indian market is highly attractive to the foreign producers and exporters. iii. The subject producers hold huge surplus capacities and that the estimated Indian demand is a fraction of the available spare capacities of the subject producers. iv. Furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is submitted that there is a likelihood that imports of dumped subject products would drive down prices of domestic industry and have the negative impact on its performance. xvi. Significant decline in Post POI Import Prices shows Chinese producers can {rationally reduce the pricesihe POI for the case needs to be shifted to inore recent period. In other jurisdictions, like the European Union, the United States of America, Canada, Australia, etc., a Whole host of other factors Weighed in favour of affirmative expiry review including evidence of (i) third country dumping, (ii) significant investments in future production by the domestic industry, (iii) inventories of exporters, (iv) worldwide over-capacity, (v) export orientation of the exporters and (vi) price attractiveness of the domestic market. xviii. Exports of product under consideration from China PR and Korea RP to third countries are also at dumped prices. The prices prevailing in the Indian market are quite attractive to the producers in subject countries, as is established by (a) current export price to India, and (b) current export price to rest of the world. xi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as contemplated under the Act and the Rules inter alia production, operation, employment, will be occasioned in Gujarat and therefore, the Impugned Order has a direct bearing on the manufacturing facility of the Petitioner no.1. 3.3 Further, the fact that the right of Petitioner no. 1 to produce the subject goods would get restricted in relation to its operations at its factory at Bharuch if the dumped imports are allowed to enter in the Indian market. There is sufficient cause of action arising within the jurisdiction of the High Court of Gujarat and this Court has jurisdiction to entertain the present petition. 3.4 The judgment of Hon'ble Supreme Court referred by the Respondent No.2 in the case of U0I v. Adam' Exports and it is submitted that the Hon'ble Supreme Court in this case has held that the territorial jurisdiction shall lie with the courts where the cause of action, in part of full, has arisen. This case also rules that mere existence of a head office in a particular place shall not ipso facto confer jurisdiction. The ratio decided by the Hon'ble Supreme Court in Adani s case it is submitted that part cause of action i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantiated application/request on behalf of domestic industry, only prima facie view is sufficient to initiated the sunset review investigation. 3.9 The mandate of the Section 9A(5) of the Act, as implemented through Rule 23(1B), Respondent No. 2, while considering the meaning of duly substantiated petition , cannot stretch it to include (a) business sensitive confidential information of foreign producers, (b) information not in public domain. It is required to apply the standard of information that is reasonably available publicly. 3.10 While in the present case sufficient prima facie information to justify investigation was provided by the Petitioner No.1, further information on this account is required to be provided by the foreign producers and other interested parties and could have become available only after an investigation is initiated. 3.11 Further, if the Anti-dumping duty has had the desired effect, the condition of the domestic industry is expected to have improved during the duty period. Therefore, in a Sunset Review investigation the Designated Authority needs to address the question as to whether the domes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent price, would normally be a more reliable indicator of future import prices. The Authority has considered the earlier prim, as a benchmark for deriving future prices. Such a conclusion is absurd having regard to the fact, that the decline in prices has already taken place, and such decline can only be an indicator of a further decline in prices. In any case, in view of the volatility in prices, the prices adopted by the Authority for its examination, cannot be representative of future prices. and the conclusions based on such faulty assumptions, is devoid of logic and incorrect. 3.16 Paragraph 4(D) of the impugned order records that the petitioner is unable to explain why they are exporting the subject goods deSpite having demand of the same in the domestic market. It is further noted that the price realization from the export market is lower than the price realized in the domestic market, except tmt. Petitioner No.1/domestic industry is exporting the product only because of dumped imports into the country. It was specifically mentioned that the profitability in exports is worse than profitability in domestic market (the fact has even been re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pared to volume of exports to India and were at price materially lower than the price at which goods have been exported to India. Thus, in a situation where in the current anti-dumping duties are ceased, the producers in subject countries are likely to divert their product to India in order to get better price. v Exporters from the subject countries are highly export oriented worldwide. The Chinese producers export 27.55%, 29.38% and 29.25% of the their total production of PX-13, TDQ, PVI and Rubber Accelerators respectively and Korean producers export 91.84% of their total production of PX-13. Further, the producers of the subject goods are holding significant capacities which would be utilized for exports to India if current anti-dumping duties are allowed to cease considering the growing demand in India, price attractiveness of the Indian market and the current prices at which exports are being made at present. vi Further, the Indian market is highly price attractive towards the export from subject countries. The price undercutting without anti-dumping duty is positive and significant. This clearly establishes that imports from respective subj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and instead specific facts of the case. xi. Despite anti-dumping duty in force significant volume of dumped imports continue to enter Indian market. This situation is likely to worsen if the duties on the imports of subject goods from subject countries are allowed to expire. It is evident that Petitioner No.1 submitted detailed facts and evidences before the Respondent No.2 while filing the Petition for initiation of investigation and thereafter again after the oral hearing, which clearly establishes that there is need to undertake investigations. The Respondent No. 2 however proceeded with a predetermined mind and ignored the information and material provided by the petitioner to justify initiation. 3.19 The reliance placed by the Respondents on the Judgment in the matter of Kesoram Rayan v/s Designated Authority reported in (2018) 359 ELT 475 is in apposite. The Petitioners submit that Hon ble Delhi High Court examined the issue on merits and found that order is correct. In the present case Designated Authority failed to appreciate the material in support of application and contrary held that no is made out for initiatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, as required under the mandate of the Section i.e. Section 9A (5) read with the Rules thereunder. 12. Accordingly, impugned order dated 17-5-2018 is set aside, as the same is without reasons. The respondent authority shall decide the application requesting a sunset review afresh, in accordance with law, within six months from the date of receipt of this order. Till such a decision is taken, the period of anti-dumping duty, which ceases to have effect on and from 9-10-2018, shall stand extended. Petition is allowed accordingly. Rule is made absolute. Direct service is permitted. 3.21 Similarly, in the matter of DCW LIMITED v/s. UNION OF INDIA , SCA No. 5798 of 2018 order dated 12.04.2019, this Hon ble Court directed the Respondents to initiate the sunset review and extend the anti-dumping duty pending outcome of review. Relevant extract is reproduced below. 6.00. Under the circumstances, RULE, returnable on 19/4/2018. In the meantime, there shall be ad interim relief in terms of para 23(A-1), which reads as under: 23.(A-1). Pending admission and final hearing of this Petition, this Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of his submissions. ( i) Decision of Rajasthan High Court in the case of Electrolux Kelvinator Ltd. Vs Union of India (Uoi) and Ors. Reported in RLW 2005 (3) Raj 1949 ( ii) J.K.Industries Ltd. v. Union of India reported in 2005 (186) ELT 3 (Raj.) ( iii) Jindal Saw Ltd. v. Directorate Gen. of Anti-Dumping Allied Duties, reported in 2019 (365) ELT 81 (Guj.) ( iv) Decision of this Court in DCW Limited v. Union of India, Special Civil Application Nos.5798 of 2018 and 5808 of 2018 decided on 12.4.2018. 4. On the other hand, Mr.Nirzar Desai, learned advocate for the respondent while vehemently opposing the petition and inviting the attention of the Court to the averments made in the petition submitted that this Court has no jurisdiction to entertain the petition as the head office of the petitioner is in another State and the accounts are also maintained in another State. He has also submitted that there is no averment in the petition that all the products of the subject goods are manufactured in Gujarat at the given address. According to him, the industry is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... let us consider the facts of the said case. In the said case (Navinchandra N. Majitha), the petitioner was Managing Director of one company at Mumbai. The said company had entered into a business transaction with the respondent (first informant) at Mumbai and there was business dispute between the petitioner and the respondent complainant. A civil suit with regard to the business dispute between the parties was filed in the original side of the High Court at Bombay. Thereafter, the first informant lodged the first information report at Shillong. Contending that though all the transactions between the parties had at Mumbai, only in order to harass the petitioner, the first information report was lodged at Shillong in the State of Meghalaya, the petition came to be filed under Article 226 of the Constitution at Mumbai. In this background, the Hon ble Apex Court, considered as to what is meant by the term, cause of action . It has been held by Their Lordships that while considering as to whether the part of cause of action arises within the territorial jurisdiction of the Court, the Court will have to look into the pleadings made in the petition and the relief sought in the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the order of the High Court rejecting the petition under Article 226 on the ground that it has no territorial jurisdiction has been upheld. ( iii) In the case of State of Rajasthan and Others v. M/s Swaika Properties and Another , reported in (1985) SCC 217, while dealing with the meaning of cause of action the Court observed as under:- 8. The expression 'cause of action' is tersely defined in Mulla's Code of Civil Procedure : The 'cause of action' means every fact which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a Judgment of the Court. In other words, it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. In the facts of that case, it was found that the concerned High Court had no jurisdiction to entertain the petition and, therefore, the order of the High Court was set aside on the ground that mere service of notice cannot give rise for cause of action to entertain writ by the concerned High Court. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itorial jurisdiction on the Court concerned. The territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averment made in the petition being immaterial. To confer jurisdiction on a Court even if a part of the cause of action arises within its jurisdiction, it is sufficient. It is purely a question of fact. ( v) In the case of Union of India v. Adani Exports Ltd. reported in 2001 (134) ELT 596 (SC), the Supreme Court observed as under:- 15. Article 226(2) of the Constitution of India which speaks of the territorial jurisdiction of the High Court reads :- The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. 16. It is clear from the above constitutional prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which have no bearing with the lis or the dispute involved in the case, do not give rise to a cause of action so as to confer territorial jurisdiction on the court concerned. ........ ( vi) Jindal Saw Ltd. v. Directorate Gen. of Anti-Dumping Allied Duties, reported in 2019 (365) ELT 81 (Guj.) ( vii) Kesoram Rayon v. Designated Authority, reported in 2018 (359) ELT 475 (Del.) 5. The Court has considered rival contentions of the learned counsel for the parties and the pleadings. The certain undisputed facts emerge on record, which are as under:- ( i) The petition is filed for the imports of (a) MBT, CBS, TDQ, PVI and TMT originating in or exported from China PR and (b) PX-13 (6PPD) originating in or exported from China PR and Korea RP. ( ii) On 1.10.2008, the petitioner filed an application for investigation and recommendation of anti-dumping duty on the subject goods originated in or exported from the subject countries. ( iii) On 28.2.2008, pursuant to the investigation, respondent no.2 issued preliminary final finding recommending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-dumping duty continues to be collected on the imports by the respondents pursuant to Notification No.35/2014-Customs (ADD) dated 24.7.2014. ( xvii) On 26.10.2018, petitioner no.1 filed substantiated application in terms of Section 9A(5) read with Rule 23 justifying the need for initiation of sunset review investigation and for continuation of anti-dumping in force on imports of subject goods from subject countries for further period of five years. ( xviii) On 10.12.2018, petitioner no.1 was granted oral hearing by respondent no.2. Petitioner no.1 attended oral hearing on 17.12.2018 and submitted written submission for the need of review. ( xix) On 24.12.2018, respondent no.2 issued the impugned order, rejecting the substantive application seeking initiation of sunset review. 6. The Court is called upon to examine the rival contentions of the parties, which needs to be examined in light of the aforesaid undisputed aspects set out herein above. 7. Regarding territorial jurisdiction, it appears from the record that petitioner no.1 has categorically averred that its manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); ( c) normal value , in relation to an article, means - ( I) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or ( ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either - ( a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub-section (6); or(b) the cost of production of the said article in the country of origin along with reasonable addition for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in such notifications or such impositions, as the case may be; or ( ii) the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation. - For the purposes of this sub-section, the expression hundred per cent export-oriented undertaking shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). ( 3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - ( I) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and ( ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such antidumping duty. The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under subsection (6) shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer : (6A) Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available. ( 7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. ( 8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. 9AA Refund of anti-dumping duty in certain cases. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication account for less than twenty five per cent of the total production of the like article by the domestic industry, and ( b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding - ( i) dumping, ( ii) injury, where applicable; and ( iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. 3 Substituted vide Customs Notification No. 44/99- Cus(NT) dated 15.7.1999 (Annexure II) Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic 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 conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation : For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. ( 5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. ( 6) The designated authority may allow an interested party or its representative to present the information relevant to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of dumped imports into an isolated market, and ( ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market. RULE 12. Preliminary findings. - ( 1) The designated authority shall proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. It will also contain:- ( i) the names of the suppliers, or when this is impracticable, the supplying countries involved; ( ii) a description of the article which is sufficient for customs purposes; ( iii) the margins of dumping established and a full explanation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said antidumping duty is removed or varied and is therefore no longer warranted. ( 1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive anti-dumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry, within a reasonable period of time prior to the expiry to that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry.] ( 2) Any review initiated under sub-rule (1) shall be concluded within a period not exceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the dumped imports shall be assessed by the examination of the production of the narrowest group or range of products, which includes the like product, for which the necessary information can be provided. ( vii) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the designated authority shall consider, inter alia, such factors as : ( a) a significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation; ( b) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian markets, taking into account the availability of other export markets to absorb any additional exports; ( c) whether imports are ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n determined at ex-factory level. Both the normal value and export price pertain to the same period. There are no known differences in the conditions and terms of sale. Thus, the comparison made by the applicant constitutes a fair comparison. 61. It may be seen that the dumping margins are not only above de-minimis but also substantial in case of each of the Rubber Chemicals. 11. Detailed information regarding likelihood of dumping and injury, it is provided in certain data and ultimately it is submitted as under in para 105:- 105. From the above tables, it is amply clear that there are huge surplus capacities in the subject countries which are essentially catering to the export market as the domestic demand is limited. The above data demonstrates that the domestic demand of: - PX-13 in the China PR and Korea is only 61% and 90% of the total capacities in China PR and Korea RP respectively. - TDQ in the China PR is only 52% of the total capacities in China PR. - PVI in the China PR is only 75% of the total capacities in Chin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5% of their total production of PX-13, TDQ, PVI and Rubber Accelerators respectively. Further, the Korean producers export 91.84% of their total production of PX-13. 14. It is also stated that imports from respective subject countries are likely to undercut the prices of domestic industries in the event of cessation of anti-dumping duty. While referring to the additional tariff imposed by USA and resultant loss of market to the Chinese producers, it is submitted in para 117 as under:- 117. The Chinese products are now facing additional customs duty in USA. Very recently, rubber chemicals, along with other rubber products have been subjected to an additional 10% customs duty in USA. Relevant evidence is enclosed as Annexure 4.4 . Resultantly, the Chinese producers are likely to lose significant business in the US market. This is already reflected in the decline in the Chinese prices in the most recent period and after these measures has been invoked. 15. Regarding vulnerability of the domestic industries due to price sensitivity of the product in the Indian Market it is submitted as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09-10 to 2,265 MT in proposed period of investigation for the present petition. ( d) CBS: The imports of CBS from the subject country have followed the same trend as that of PVI. The same has increased from 929 MT in 2009-10 to 2,665 MT in proposed period of investigation for the present petition. ( e) MBT: The imports from the subject country have remained substantial over the years. The volumes were also in the same range throughout. ( f) TMT: The volume of imports has declined over the injury period. 131. The above analysis clearly demonstrates that despite anti-dumping duty in force significant volume of dumped imports continue to enter Indian market. This situation is likely to worsen if the duties on the imports of subject goods from subject countries are allowed to expire. 17. The petitioner has also provided further information showing that the in case of cessation of the anti-dumping duty, there will be dumping of subject goods from the subject countries in India and ultimately, it will be injury to the domestic industries. 18. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further noted that the current levels of imports are also inevitable, as there is demand and supply gap in the Indian market. In view thereof, the Authority has decided not to initiate the current sunset review investigation. 19. At this juncture, observation of this Court in Jindal Saw Limited v. Director General of Anti-dumping and Allied Duties reported in 2019 (365) ELT 81 (Guj.) , para 11 is required to be reproduced as under:- 11. Examination of the impugned order in the background of these significant mandate as required under the Rules would suggest the absence of following factors: Nothing is evident to suggest that the designated authority called for information by supplying such copy of the application to known exporters or to the concerned trade associations, foreign producers, calling for information factors on which the allegations of injury were made by the Review Applicants. Nothing is evident to suggest that there was any determination of normal value, export price and margin of dumping and its assessment in accordance with the principles laid out in Annexure I of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at respondent no.2- authority has failed in appreciating the material and accompanying documents to the substantive application, on likelihood test and its parameters and has not considered essential facts such as (a) surplus capacities in exporting countries (b) inventories diverted to India at dumped prices, (c) volumes of export by exporting countries to other countries and (d) price attractiveness of the Indian market. 23. The aforesaid discussion based upon the material provided in substantive application, in our considered view was sufficient to persuade the Designated Authority at least in initiating the sunset review and the perfunctory brushing aside of the substantive application cannot be said to be in any manner answering the requirement of examining the substantive application for coming to prima facie conclusion for initiation of sunset review. The Court at this stage has two options, either to remand the matter asking the authority to reexamine the substantive application in light of the discussion made herein above, or direct the authority to initiate the sunset review itself, as the material contained in substantive application, if viewed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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