TMI Blog2005 (2) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... r six months if the Central Government is satisfied that there are special circumstances. The period has long since expired. The appeal is accordingly allowed and the decision of the Tribunal is set aside without any order as to costs. - 6371 of 2003 - - - Dated:- 23-2-2005 - Ruma Pal, Arijit Pasayat and C.K. Thakker, JJ. [Judgment per : Ruma Pal, J.]. - The appellant-company carries on the business of manufacturing lead acid batteries in Shenyang, China. It is a subsidiary of Mastsushita S. Electric Industries Corporation, a multinational company registered in Japan. 2.The dispute in this appeal is whether the appellant-company operated on Market Economy Principles during the period 1st January 2000 to 30th September 2000 for the purposes of the Customs Tariff Act and the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injuries) Rules, 1995. (referred to hereafter as 'the Rules'). 3.The principle behind anti dumping laws is to protect the domestic industry from being adversely affected by import of goods at export prices which are below the normal value of the goods in the domestic market o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the price or constructed value in a market economy third country, or the price from such a third country to other countries, including India, or where it is not possible, on any other reasonable basis, including the price actually paid or payable in India for the like product, duly adjusted if necessary, to include a reasonable profit margin. An appropriate market economy third country shall be selected by the designated authority in a reasonable manner and due account shall be taken of any reliable information made available at the time of the selection. Account shall also be taken within time limits; where appropriate, of the investigation if any made in similar matter in respect of any other market economy third country. The parties to the investigation shall be informed without unreasonable delay the aforesaid selection of the market economy third country and shall be given a reasonable period of time to offer their comments." 7.By this notification a separate procedure was prescribed for determining the normal value of non-market economies. Paragraph 7 to Annexure I now provides for the determination of the normal value with reference to the price paid by a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph. Note :- For the purposes of this paragraph, the list of non-market economy countries is Albania, Armenia, Azerbaijan, Belarus, Peoples' Republic of China, Georgia, Kazakstan, North Korea, Kyrghyzstan, Moldova, Mongolia, Russia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam. Any country among them seeking to establish that it is a market economy country as per criteria enunciated in this paragraph, may provide all necessary information which shall be taken due account by the designated authority." 9.China was expressly notified as a non-market economy by this Notification. However in recognition of the fact that the economic conditions in China and Russia were rapidly changing, Paragraph 8 as introduced by the second notification allows particular units of these two countries to show that the four conditions mentioned in the paragraph were satisfied in respect of that unit. If that is done the Designated Authority would then apply the principles enunciated in Paragraphs 1 to 6 of Annexure-I which as we have said are applicable to market economy countries. 10.The respondent Nos.1 and 2 representing the domestic industry which either manufactures or impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njury and was facing further threat of material injury on account of the dumped imports of the subject goods inter alia, from China, the Designated Authority considered it necessary to impose anti-dumping duty provisionally subject to a final determination on all imports of lead acid batteries from China, Korea and Japan in order to remove the injury to the domestic industry. The rates of anti-dumping duty were specified in a chart appended to the order. The Designated Authority, however, invited comments on these findings from "all interested parties for the purposes of being considered in the final finding". 12.It is the appellant's case that pursuant to this preliminary finding the appellant paid the anti dumping duty at the rate specified after the same was notified by the Central Government. The appellant also submitted further material to the Designated Authority. 13.In the course of the investigation two officers of the Directorate General of Anti Dumping of Allied Duties visited the appellant's manufacturing facilities in China. A disclosure statement was furnished by the authority to all the parties. After investigation and verification, the Designated Authority noted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the order of the Tribunal reiterating the stand taken by it earlier and stating that the appellant had complied with all the criteria set out in Paragraph 8 in Annexure-1 to the Rules. In other words the conclusion of the Designated Authority was that the appellant operated on market economy principles therefore market economy principles contained in Paragraphs 1 to 6 would apply. The final finding submitted earlier was therefore supported and reaffirmed. 17.On 3rd June, 2003 the Tribunal allowed the appeals filed by the Respondent No.1 accepting its submission and holding that the Designated Authority had failed to conduct the normal value investigation in accordance with the Rules applicable to non-market economy units. It was said that the applicable notifications for the determination of normal value and in particular notification dated 31-5-2001 provided that even in non-market economy countries, market driven units could prove that they were operating according to market principles. It was noted that pursuant to the interim order of the Tribunal, the Designated Authority had examined the matter from the perspective of requirements under the amended provisions for non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the domestic industry was not aggrieved by the preliminary finding which imposed anti-dumping duties on exports from China. However, it is stated that the respondent No. 1 had mentioned in its petition and rejoinder that China was a non-market economy. In fact it was the respondent No. 1's stand in its appeal from the final finding of the Designated Authority that the Designated Authority had failed to apply the principles applicable to non-market economy countries to the Chinese exporters including the appellant as introduced by the two notifications. 20.Learned Counsel appearing on behalf of the respondent No. 1 submitted strenuously that China was in fact a non-market economy and there was no question of applying Paragraph 8 as introduced by the second notification on 31-5-2001 as the period of investigation was prior to the issuance of that notification. It is submitted that since non-market economy had to be decided on a country wise basis, individual concerns could not be separately represented. According to the Respondent No. 1 in the decision of this Court Designated Authority v. Haldor Topsoe A/S (2000) 6 SCC 626 it has been held that the normal value of a non-market ec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was factually erroneous. It was the clear case of the appellant that it had already produced sufficient material before the Designated Authority to justify a finding that the appellant was operating according to market conditions. It must be remembered that the Designated Authority had already visited the manufacturing units of the appellant in China and verified the information produced by the appellant. The Tribunal had only directed the Designated Authority to consider the data already made available by the appellant in the light of Paragraphs 7 and 8 of Annexure I. That is exactly what the Designated Authority did. Since the Designated Authority had verified the data prior to submitting its final finding, there was no question of the Designated Authority reverifying the information given by the appellant. That this could not have been even within the contemplation of the Tribunal is clear from the fact that the Tribunal had granted only seven days time within which the Designated Authority was to submit its report. The respondent No. 1's contention that the verification was improperly done cannot be gone into at this stage. It is a question of fact, which should have been clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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