TMI Blog2000 (7) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... le 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the Investigating Authority. On the contrary, a perusal of the said provisions clearly shows the 'normal value' will have to be determined with reference to comparable price, the word "comparable price" in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. By holding anti-dumping duty to be exporter specific, the tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute. Therefore, any argument which restricts the discretion of the Authority in the area of appreciation of evidence on the ground that the anti-dumping duty is manufacturer specific, will have to be rejected. The European Union is a "territory" for the purpose of Section 9A of the Act and the export price of like catalysts from Germany which is also a part of that territory viz., European Union would be a comparable price for the purpose of determining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng investigation to be conducted against the respondent for the export to India of the above-referred six catalysts from Denmark. The Authority also heard the parties concerned including the respondent and on 7-5-1997 published a preliminary finding holding that the export of the said catalysts amounted to dumping and proposed provisional imposition of anti-dumping duties against the respondent. The said determination of the Authority was accepted by the Government of India vide its Notification No. 56/97, and a provisional anti-dumping duty valid up to 19th of December, 1997 was levied.: Respondent challenged the said provisional determination, consequently the Authority proceeded to make the final determination of the normal value of the subject catalyst and final dumping duty leviable. For this purpose, the Authority initiated a public hearing on 8th of July 1997. However, this hearing could not be completed because of a change in the person holding the office of the Authority, hence, a fresh public hearing had to be resorted from 5th of January, 1998. 4.On the conclusion of the public hearing, the Authority by its final order confirmed its preliminary findings on the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he conclusion that the anti-dumping duty was exporter and exporting country specific. On this foundation, the Tribunal held that under clause (c) of Section 9A(1), there were following three options before the Designated Authority : (i) finding out the comparable price for the like article in the ordinary course of trade when meant for consumption in the exporting country or territory of the same exporter; (ii) if the exporter is not having a domestic market in the exporting country then his price of the article to an appropriate third country; (iii) in the absence of such an export price of a specific exporter to an appropriate third country to find out the cost of production of the said article in the country of origin incurred by the said exporter and add to it administrative, selling and general costs and the profits. 8.The Tribunal also held that since the anti-dumping duty is exporter specific or manufacturer specific, the price of similar article manufactured by some other exporter/manufacturer cannot be the basis for finding out the normal value. Applying the above options, the Tribunal came to the conclusion that since the respondent did not have any domestic marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of December, 1999, the Government, of India through the Designated Authority has preferred C.A. No. 487/2000 and the original petitioner before the said Authority, namely, United Catalysts India Ltd. has preferred CA. No. _____/ 2000 [@ SLP (c) No. 5361/2000]. 10. We have heard Mr. Harish N. Salve, learned Solicitor General of India, Mr. Joseph Vellapalli, learned senior counsel for the appellants in the above appeals and Mr. V. Lakshmikumaran, learned counsel for the respondent in both the appeals. 11.On behalf of the appellant, it is contended before us that the Authority was justified in relying on the comparable export price of another exporter in the background of the fact that the respondent was withholding the most relevant evidence and, in a way, compelling the Authority to proceed with the determination of the normal value based on the selective evidence produced by it. The respondent supported the order of the tribunal by contending that its cost of manufacture of the subject catalysts was sufficient material as contemplated by the statute itself, therefore, the Authority was not justified in placing reliance on the export price of the third parties while determining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin. Rule 6(4) of the Rules reads :- Rule 6(4) : "The designated authority may issue a notice calling for any 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." Rule 6(8) : "In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances." Rule 8 : "Except in cases referred to in sub-rule (8) of rule 6, the designated authority shall during the course o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer. By holding anti-dumping duty to be exporter specific, the tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute. It is to be noticed that the statute has given much wider power to the Investigating Authority than what is understood by the Tribunal which is evident form the language of Section 9A(1)(c)(i) of the Tariff Act and Rule 6(8) of the Rules. As noticed hereinabove, Rule 6(8) of the Rules specifically empowers the Authority to record its findings on the basis of the facts available to it in cases where an interested party refuses access to or otherwise does not provide the necessary information to it. 16.That apart, the use of the words "sale of like articles" and "comparable representative price of the like articles" in Section 9(A)(1)(c) referred to hereinabove, also indicates that the statute intended that while determining the normal value the Authority has the discretion to rely on such material as is available before it which reflects the comparable value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Union cannot be a territory for the purpose of determining the normal value. We do not agree with this view of the Tribunal also. The use of the word 'territory' in Section 9A(1)(c) indicates that the Statute empowered the Authority while determining the normal value to take into consideration the comparable price of the like article in the exporting country or territory. The placement of this word 'territory' after the word 'country' indicates that the Legislature intended to use the word 'territory' with reference to a larger geographical area than the exporting country which geographical area or territory has some commercial similarity with the exporting country and the exporting country is a part of the said territory, though not in the political sense but in the economic sense of that word. It is a well-known fact that the European Union was formed with an object of creating a common market among its member States. The treaty forming the European Union commonly known as the Treaty of Rome provided for elimination of commercial/customs barriers to facilitate free movement of goods, workers, services and capital among the member-States and the establishment of a common tariff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the complaint of the respondent against the material relid upon by the Authority cannot be countenanced. In this context we place reliance on a judgment of this Court in Gopal Krishnaji Ketkar v. Mahomed Haji Latif Ors. (1968 3 SCR 862) wherein this Court held as under : "Even if the burden of proof does not lie on a party the court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts in issue. It is not a sound practice for those desiring to rely upon a certain state of affairs to withhold from the court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." Though the above observation of this Court was with reference to a proceeding in a court of law, we find that the same is equally applicable to the investigation conducted by the Authority herein which has the duty of appreciating the evidence placed before it and also has the statutory authority of drawing adverse inference in the circumstances enumerated in Rule 6(8) of the Rules. 20. It was next contended by the respondent before us that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on different injury margins cannot be levied under the Act. The margin of dumping is defined to mean the difference between its export price and its normal value. The Authority while determining the margin of dumping has come to a definite conclusion that the argument of the exporter that its export price has been more or less the same irrespective of tariff had under which the catalyst was imported, was incorrect and the Authority has further found different dumping margins based on clearances under the two different tariff heads. Section 9A(1) contemplates levy of an anti-dumping duty not exceeding the margin of dumping in relation to such article. If that be so then when the Authority on an investigation of facts comes to the conclusion that by virtue of two different customs duties there have been two different dumping margins in regard to the subject catalyst based on customs clearances, ipso facto, anti-dumping duty which is relatable cost of import also changes. Therefore, the contention of the respondent that there cannot be two anti-dumping duties in regard to the same catalyst, cannot be countenanced. 22.It was next contended on behalf of the respondent that the Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such extension, does not arise. 24.We notice that under the provision empowering the extension of time by the Central Government (proviso to Rule 17), there is no requirement that the concerned parties to the investigation should be heard before extending the time. We agree with the appellant that this decision in question is an administrative decision based on exigencies of the case. The statute governing the investigation into dumping by an Authority has provided and elaborate procedure and wherever the concerned parties are entitled to notice, it has specifically provided for the same. In the absence of any such requirement to issue notice in proviso to Rule 17, we are of the opinion that the contention of the respondent that it is entitled to any notice prior to the exercise of the power under the proviso to Rule 17 by the Central Government, is devoid of any merit. In the instant case, the investigation was completed within the stipulated period after obtaining the necessary extension form the Central Government. The decisions relied upon by the respondent, in our opinion, have no bearing on the facts of this case since in those cases the proceedings were quasi-criminal in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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