9911796707
TMI Blog2018 (2) TMI 1994X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is not producing the same products rather was producing only 2-EH (Acyclic alcohols having Carbon No.8) as ex facie illegal, arbitrary and contrary to the provisions of Customs Tariff Act, 1975 and Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on Dumped Article and for Determination of Injury) Rules, 1995 besides violation of the petitioner's rights guaranteed under Article 14 and 19(1)(g) of the Constitution of India and consequently set aside the same." The petitioner is a limited company registered under the Companies Act, 1956 and is a sole producer of like articles viz., 2-Ethyl Hexanon (2-EH), Iso Nonanol (INA) and 2-Propylheptyl alcohol (2-PH) in India and constitute domestic industry within the meaning of Rule 2(b) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on Dumped Article and for Determination of Injury) Rules, 1995 (for short, "the Rules). In the writ petition, the impugned action of the 2nd respondent is assailed on the ground that the procedure followed is contrary to the provisions of the Customs Tariff Act, 1975 (for short, "the Act") and the rules made thereunder. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry." The said office memorandum is impugned in the present writ petition. Sri S. Ravi, learned senior counsel appearing for the petitioner company, would contend that the impugned proceeding is a non-speaking order without any reasons and without adverting to any of the voluminous material placed before the 2nd respondent along with the applications and as such it is ex facie illegal and contrary to the provisions of the Act as well as the Rules. Learned senior counsel brought to the notice of this Court the object and purpose in enacting Section 9A of the Act, is to protect the Indian industry from unfair trade practices of foreign exporters as well as whether the dumped products causes injury to the domestic industry while imposing the anti-dumping duty. Similarly, the definitions of "domestic industry" and "like article" as defined under Rules 2(b) and 2(d) of the Rules, which are as under: "2(b) "domestic industry" means the domestic producers as a while engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary to its own determination made in the matter of anti-dumping investigations concerning imports of Acyclic alcohol from Singapore, Brazil, Romania, Malaysia and South Africa vide notification No.63/1/2001-DGAD, wherein it was held that Isononanol imported into India and 2EH produced by the domestic industry were like articles. Recently, the 2nd respondent after passing of the impugned orders initiated anti-dumping investigations in the matter of solar cells whether or not assembled partially or fully in modules or panels or on glass or some other substrates originating in or exported from China PR, Taiwan and Malaysia, wherein the applicant/domestic industry admittedly does not produce thin film technology. In this context, the learned senior counsel relying on the definition of "like article" under Rule 2(d) of the Rules would submit that "like article" means not only an article which is identical or alike in all respects to the article under investigation, but another article, though not alike in all respects, which has got the characteristics closely resembling those of the articles under investigation also can be treated as a like article. Therefore, the impugned order pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the writ petition and the counter affidavit filed on behalf of the respondents and the material on record, the undisputed facts are that the petitioner company submitted applications dated 18.10.2016 and 02.12.2016 before the 2nd respondent under Rule 5 of the Rules seeking initiation of investigation for imposition of anti-dumping duty on the imports of 2-EH, INA and 2-PH, which are the like articles. Though the Carbon numbers of the said acyclic alcohols differ from one another, they are being treated as like articles. Even the 2nd respondent vide notification No.63/1/2001-DGAD considered and held that Isononanol imported into India and 2EH produced by the domestic industry are like articles. From a careful perusal of the counter affidavit it is crystal clear that the entire information was placed before the 2nd respondent to verify and ascertain that the acyclic alcohols 2EH, INA and 2PH are the like articles. The 2nd respondent failed to appreciate the evidence/information furnished by the petitioner company that they are interchangeable in usage and are considered to be substitute products. Even the notification issued by the 2nd respondent stated supra held that Isononanol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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