TMI Blog2005 (9) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Senior Advocate and other advocates appearing for the appellants that the appellants did not press the applications for stay which were to be heard as per the directions of the Supreme Court since the final hearing of the appeals commenced at the request of all the counsels for both the sides. 2. The Appeal No. C/769/2005 has been preferred by the domestic industry against the impugned final findings and the notification to the extent that the rate of anti-dumping duty imposed is lower than the rate of provisional anti-dumping duty. Facts : 3. The Product : The product under consideration was Nylon Tyre Cord Fabric (NTCF) originating in or exported from the Peoples Republic of China. The subject goods are fabric of nylon meant largely for tyre cord. NTCF finds its application in different kinds of automotive tyres such as bus and truck tyres, two-wheeler tyres, cycle tyres, light commercial vehicle tyres, animal driven vehicle tyres, cycles etc. NTCF is produced, using different deniers of yarn, used for reinforcement of tyres. The product is sold as 'grey fabric' and also 'dipped fabric'. All types of NTCF are within the scope of the product under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other interested parties were informed in Para 9 of the initiation notification that they may also make their submissions relevant to the investigation, in the prescribed form and manner within the time set out in the notification i.e. not later than forty days from the date of publication of the notification. 3.3 It appears that the designated authority requested the Central Board of Excise and Customs (CBEC) to provide details of imports of NICF. Request was also made to DGCIS, Kolkata to provide details of transaction-wise imports made in India of the said article during the period of investigation along with bills of entries numbers and dates, country of origin, description of the imported subject goods, volume and value of import and the names and addresses of the importers. The designated authority provided copies of the non-confidential version of the application to the known exporters and to the Embassy of China PR in accordance with Rule 6(3) of the said rules and sent a questionnaire, to elicit relevant information, to the known exporters in China PR in accordance with Rule 6(4). A questionnaire for according Market Economy Treatment (MET), was also forwarded to all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption of a non-market economy could be rebutted if the exporter(s) from China provided information and sufficient evidence on the basis of the criteria specified in sub-para (3) of Para 8 and proved its contents. It was noted in paragraph I.21 that the exporter Ningbo Nylon Company Ltd. (Appeal No. C/773/2005) had stated in reply to the questionnaire that it was a wholly privately owned Chinese Limited liability company. It was stated that 97.67% of common shares were issued to the promoters of the company and 2.33% to the staff and workers. Though the names of promoters of the companies were given as corporations concerned with rural development, local industry, supply and marketing, municipal land reclamation and cultivation, the response did not clearly specify if any of the promoters of the companies were State owned. The designated authority observed that as per information made available by the applicants and on the web site, it appeared that 97.78% of shares in Ningbo Nylon (Appellant) were owned by Kingrin Corporation, which was established in 1982 and that 67.87% of the said Kingrin Corporation was owned by village and township enterprises. Ninbgo Nylon was buyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs after referring to Paragraphs 7 and 8 of Annexure I to the rules and observing that the data on cost of production and domestic sales had discrepancies, that it was not available for the types/grades of the subject goods and that no clear understanding had emerged from the response to the MET questionnaire in respect of cost and pricing structures being in response to market signals, the authority was unable to apply the principles set out in Paragraphs 1 to 6 of Annexure-1 and was constrained to proceed as per provisions of Paragraphs 7 and 8 of Annexure 1 for the purpose of the preliminary findings. It was observed that the issue of granting market economy status or otherwise will be further examined during the course of investigation and subject to compliance of deficiencies and verification of the further information provided. 4.4 Taking into consideration the information available on the estimated cost of production plus selling, administrative and general expenses and a reasonable amount of profit after making reasonable adjustments as the basis for constructing the normal value of the subject goods in China PR for grey, dipped and CTC type, the authority constructed we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt decline in weighted average sales realization for all grades of the subject goods by approximately 12.14% in the POI. The landed price of imports from China was found to be significantly lower than the sale prices of the domestic industry. The imports from China were thus significantly undercutting prices of domestic industry in all the three types of the product as noted in Paragraphs 51 and 52 of the preliminary findings. The decline in the weighted average landed prices of subject goods from China was by 16.61% in the POI as compared with the base year 1999-2000. It was also noted that during the POI the weighed average under selling was 18.51% and weighted average undercutting was 6.34%. It was noted that the indexed cost of production declined in the POI compared to the base year by about 9.78% due to decline in the weighted average domestic selling prices of the raw material, caprolactum, for the injury analysis period. The selling prices declined by 12.14% in the POI as compared to the base year. Despite decline in the price of raw material, due to lower sales realization, the weighted average loss was increased by 29.75% in the POI. It was also noticed that profitability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts from Thailand was Rs. 132/- per kg., while the same was Rs. 126/- per kg. from China. As observed in Para 90 of the preliminary findings, on comparison of transaction-wise import data it was evident that import price from China was lower than the import price from Thailand. As regards Korea, it was noted in Para 91 that exports from Korea were 'nil' after September, 2002. However, after February, 2003 the imports from Korea started again and during this period, the prices were higher than those of China. It was observed that transaction-wise analysis showed that imports in the period of April-September, 2002 were made by Appellant M/s. Apollo Tyres Ltd. (C/768/05), which reflected apparent exports under one contract and one price. Thus, there was no other known factor that appeared to have caused material injury to the domestic industry. The designated authority provisionally found that NTCF of all types which were the subject goods originating in or exported from China PR were exported to India below normal value, resulting in dumping; that the domestic industry had suffered material injury; and that the material injury was caused by dumped imports from the subject country. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies after the notification of the preliminary findings and thereafter at the time of the oral hearing were reflected in this disclosure statement to the extent they were considered relevant to these investigations. It was, however, stated that, notwithstanding all facts given in the disclosure (including facts given on confidential basis), the designated authority would consider all replies given, on merits in order to arrive at a final determination. 6.1 In the disclosure statement the procedure adopted by the designated authority was narrated and it was also stated that by DGAD's letter dated 25-8-2004 the exporters were informed that the designated authority intended to carry out on-the-spot investigation as per Article 6.7 of the WTO Agreement which was accepted by the participating exporters. The purpose of on-the-spot investigation was to verify the information provided by the participating exporters in response to the exporters' questionnaire and MET questionnaire by reconciling details as reported with source documents. The general nature of information to be verified and further information which was needed to be provided by them etc., was communicated by DGAD's letter 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examination of trends relevant for the analysis of injury covered the period from 1999-2000 to the period of investigation. The authority held that POI kept for the investigations need not be the period for which the data was contained in the petition and that the authority had considered it appropriate to extend the POI by one quarter from the period for which the petitioner had provided the data in the petition. It was also noted that, "opportunity to comment on such data by making it available in the public file had been provided to various interested parties during the course of investigation." The assessment methodology and parameters were indicated and particulars regarding claim for market economy treatment were set out along with the response to MET questionnaire including that of the appellant Ningbo Nylon. It was noted that the said exporter had failed to reveal that Kingring Group was owned by four TVE's or Township and Village Enterprises. In its response, the said exporter had clarified that the official name of principal shareholder company was "Jinlun Group Corporation Ltd." This group was also known as the "Kingring Group" in China. It was noted that it was only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Law. It was noted that the role of State appeared not to lie in direct ownership of TVE's but in planning, co-ordination and supervision, and granting of credits and preferred loans on favourable terms, as evident from Articles 5, 6, 7 and 20 of the State Law on Township Enterprises. 6.4 While considering the prices, costs and inputs, the facts considered as essential, as noted in the disclosure, referred to the main raw material which was caprolactum which was purchased by the appellant Ningbo Nylon as stated in its reply to the verification report, from State enterprises and also from its affiliated company NJIE. It was noted that the appellant Ningbo Nylon purchased 80% of caprolactum from State owned/own affiliated enterprises. It was also noted that NJIE was able to purchase caprolactum at comparatively lower rates than the rates prevalent in the international market. It was further noted that, though Ningbo Nylon purchased most of its requirements from China, the rates paid by them were comparatively lower than the rates prevalent in China. Further analysis showed that caprolactum purchased by NJIE for processing supplied to Ningbo Nylon was accounted by the two co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rriving at non-injurious price (NIP) was indicated, and it was stated that the actual cost of production of the subject goods for the domestic industry was proposed to be used to determine the cost of production on the basis of the Generally Accepted Principles (GAAP). The Authority had made analysis of relevant factors including use of raw materials, usage of utilities, the actual expenses during the POI, the investment, the capacity utilization etc. to arrive at a non-injurious price for the domestic industry. 6.7 It appears that during the investigation the designated authority issuing the initiation notification was succeeded by the authority that reached the preliminary findings and held public hearing on 1-9-2004. The authority that gave the final findings had taken over the investigation proceedings from 1-11-2004. The disclosure statement dated 10-1-2005 was issued by the same authority that ultimately gave the final findings. Admittedly, the on-the-spot verification had started after the said new designated authority took over on 1-11-2004 and on-the-spot verification of the premises of the appellant Ningbo Nylon took place on 9-11-2004. The verification report, the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the disclosure statement". The comments of the appellant Ningbo Nylon were set out and duly considered. 8.1 In Paragraph 27(ii) of the final findings it was observed that verification was conducted by the Authority in order to satisfy on the accuracy of information filed and that the verification report was not a certificate to the party that the information was otherwise complete and acceptable. It was observed that no unnecessary information was called for from the exporter and it was not put to any undue or unnecessary burden. It was also observed that it was not feasible to reproduce verbatim all the submissions of the interested parties, nor was it mandated under the rules and that the Authority was required to record main reasons leading to determination, which was done in this case. It was held that opportunities to comment on the application as also on various submissions made by the interested parties were provided to all the interested parties during the course of investigation proceedings. It was stated that the authority had determined price undercutting category-wise, separately for grey, dipped and CTC. Considering the argument of the appellant Ningbo Nylon, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs from TVEs, was entitled to preferred loans on favourable terms as per Article 20 of the said Law of Township Enterprises and whether the investments in related companies were done with such loans to acquire assets at rates different from the market rates. It was found that the role of the State appeared in planning, co-ordination, supervision and granting of credits and loans on favourbale terms, as was evident from Articles 5, 6, 7 and 20 of the Law relating to Township Enterprises. In the final findings also, the authority reached the same findings regarding the raw material caprolactum that, the appellant Ninbgo Nylon purchased 80% of the caprolactum from State-owned/own affiliated enterprises. The prices paid by Ningbo Nylon, the monthly average domestic prices prevalent in China and the monthly average contract prices prevalent in Asia were compared as stated in Para 33(iii). It was found that NJIE was able to purchase caprolactum comparatively at lower prices than prevalent in the international market. The authority noted that the issue of raw material prices paid by the company was vital to the examination of both MET and the correct assessment of cost of production, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ascertain whether the auditor's report had any qualifications nor could the accounting practices of the company be checked. Caprolactum purchased by Ningbo Nylon was supplied from its own "related" company NJIE, but different rates were reported by NJ and NJIE which had a direct impact on the annual results and no explanation was given by the company for such difference. No group company responded to the main and the MET questionnaires. The designated authority, therefore, could not verify the correctness of the revenues, expenses and profits of Ningbo Nylon and NJIE. As none of the group companies including parent company Ningbo Jinlun (Kingring) had provided their annual reports and clarifications sought by the authority, it was not possible to confirm the financial mechanism followed amount the group companies or arrive at a conclusion that no subsidies had been received by the exporter or that the allegation made by the domestic industry was false. 8.4 Normal value : Methodology for constructing normal value was indicated in Para 41 of the final findings and since the authority was unable to apply the principles set out in Articles 1 to 6 of Annexure 1 to the Anti-Dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ney received on this account. The normal value could, therefore, not be worked out as per the principles incorporated in Articles 1 to 6 of Annexure-1. 8.6 Export Price : The appellant Ningbo Nylon furnished information pertaining to sales of subject goods i.e. exports to India, domestic market sales and exports to other countries. The information was furnished for various grades exported to India. The factory costs and profits furnished in Appendices 8, 9 and 10 of the questionnaire were also given for those grades. It was noted that the cost of raw material and other inputs varied significantly between the grades. The adjustment claimed in Appendix 3 (sales prices structure for exports to India) were considered and the weighted average ex-factory export price for grey and dipped categories was worked out. 8.7 Injury : On the issue of injury, after a detailed examination of the material aspects in the context of Rule 11 and the guiding principles incorporated in Annexure-II to the rules, the authority concluded that the imports of subject goods from China had increased in absolute terms in relation to production and consumption in India. While imports were less than 100 MTs pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of anti-dumping duty equal to the margin of dumping or less which if levied would remove the injury to the domestic industry. It, therefore, proposed that definitive anti-dumping duty be imposed on NTCF originating in or exported from China PR, falling under Customs sub-heading 5902.10 of Chapter 59 of the Customs Tariff Act, 1975 and that the anti-dumping duty shall be the amount mentioned in column 9 of the table which was 0.54 US $ per kg. In respect of the appellant Ningbo Nylon. 10. We are not concerned with the anti-dumping duty imposed on producer Jiangsu Qunfa in his appeal since that party has not challenged the final findings or the notification issued pursuant thereto on 27-4-2005, by the Central Government under Section 9A(1)(5) of the Act read with Rules 18 and 20 of the said rules accepting the recommendations and imposing the anti-dumping duty accordingly from the date of imposition of the provisional anti-dumping duty i.e. 26th July, 2004. Arguments on behalf of the appellants : 11. It was argued by the learned senior advocate and other counsel for the appellant that the impugned final findings and the notification were vitiated on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority and oral hearings are provided by it. It was also pointed out that a Minister of State for Commerce made a statement on the floor of House in the past that "anti-dumping cases are looked by a quasi-judicial body" (Rajya Sabha -synopsis of debate, December 16, 1999 during half hour discussion). The learned Counsel argued that at a public hearing the interested parties had an opportunity to impress the mind of the public authority on the basis of the material on which they relied. It was submitted that giving of personal hearing which was professed by the designated authority, was an established practice in consonance with the provisions of Article 6.2 of the WTO Agreement. The learned Counsel further contended that there was a gross violation of the mandatory requirement of selecting a third market economy country under Paragraph 7 of Annexure-1 to the said rules for determining the normal value and, therefore, the entire exercise leading to the final findings was vitiated because a valid determination of normal value is the very basis for working out dumping margin and examining injury aspect in context thereof. The impugned notification was, therefore, violative of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce that in the initiation notification itself, which was for initiating anti-dumping duty investigations concerning import of nylon filament yarn, it was stated in Paragraph 12(b) that interested parties to the investigation who wish to comment may do so on the appropriateness of the USA envisaged as a market economy country as mentioned in Paragraph 5 of the initiation notification. It was then argued that assuming that the designated authority was right in adopting the third alternative of determining the normal value on a reasonable basis as provided under Paragraph 7 of Annexure 1, the basis adopted by the designated authority was not made known and the appellants-exporters were handicapped to respond to the determination of normal value due to confidentiality approach adopted by the designated authority. It was also argued that there was no causal link established and that causal connection, if any, was with dumped imports from other countries. It was also submitted that the designated authority did not deal with two graphs which were annexed with the response dated 10-9-2004. It was submitted that the inverse correlation, as reflected in the graph of the landed price and dome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that ownership of shares was of TVEs which were like co-operative societies in India and they could independently own shares in the appellant-exporter company which were issued in lieu of their land and, therefore, no State interference could have been inferred. It was submitted that Law of Peoples Republic of China on Town Enterprises, 1976 showed no State interference. It was submitted that the cost of raw material caprolactum, was not underestimated and that since the raw material was procured in bulk, its price was less. There was no interference in the decision making process of the appellant-exporter and hence, no interference of any State agency existed. It was submitted that Township Enterprises are owned by peasants and their ownership was in proportion to the land holding they had contributed to the TVEs and that the profits were distributed to TVEs and by TVEs through the peasants. It was submitted that the ability to buy raw material at cheaper rate cannot be held against the appellant. It was also submitted that the general principles of Civil Law and other legislative provisions which were pointed out to the designated authority during the investigations by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was observed that importance of benefit a healthy discussion can never be over-emphasized and it was a basic tenet of law by which we are governed. (d) The decision of the Punjab and Haryana High Court in Ramsharan Dass v. Commissioner of Income Tax, Patiala reported in AIR 1969 Punjab and Haryana 429, was again cited for the same proposition emanating from paragraph 5 of the judgment that oral hearing by one person cannot possibly be of any advantage to his successor in deciding a case. (e) The decision of the Supreme Court in Narendra Kumar v. Union of India reported in AIR 1989 Supreme Court 2138, was cited to point out from paragraph 65 of the judgment that the Government while dealing with the public could not act arbitrarily at its own sweet will. (f) The decision of the Supreme Court in Ramana Dayaram Shetty v. The International Airport Authority of India and Others reported in AIR 1979 Supreme Court 1628, was cited for the proposition emanating from paragraph 10 of the judgment that it was well settled rule of administrative law that an executive authority must be rigorously held to the standards by which it professes its actions to be judged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty is imposed in relation to the subject article under Section 9A of the said Act. The procedure laid down under the rules made by the Central Government in the exercise of the powers conferred by sub-Section (6) of Section 9A takes into consideration various interested parties, and the domestic industry as a whole, and it is not the type of procedure for a 'lis'. The interested parties are projected, which is more in the nature of investigating in public interest than in the nature of a dispute between the parties. The procedure under the rules was investigative for the purpose of eliciting information and the parties have only a right to offer information. He submitted that there are no provisions in the rules for discovery and production of documents or examination and cross-examination of witnesses. The doctrine of fair hearing was incorporated in the rules only in the context of the need to take into account only the written information and there was no personal hearing provided for as of right. He submitted that under Rule 6(7), oral information could be considered only when reduced to writing. Rule 6 did not provide for any individual hearing to the parties. Moreover, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lenging the final findings and the notification despite the said order of the Supreme Court, and the Kerala High Court suspended the recovery of duty for two months giving directions because it felt ".... one more opportunity can be given to the petitioner to point out the issues raised by the petitioner". That order was stayed by the Hon'ble Supreme Court on 12-8-2005 and was set aside on 22-8-2005 relegating the parties to the proceedings which were before the Tribunal. He submitted that such a course of repeated attempts to frustrate the anti-dumping proceedings was adopted by the appellants, though statutory appeal was provided for under the Act. It was further contended that no requirement or oral hearing was incorporated in the rules. There was a conscious legislative departure in the rules from the confrontational meeting rule in Article 6.2 of the WTO Anti-Dumping Agreement. Moreover, the demeanour of witness issue was not relevant to these investigations. Even when an interested party did not appear, no adverse inference was to be drawn and oral impact was of no consequence, since the oral information was reduced to writing before it could be relied on. It was contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was imposed, in view of the provisions of Rule 20(1) of the rules. 12.1 In the appeal filed by the domestic industry (C/769/05), the learned Counsel submitted that there was no reason to reduce the rate of anti-dumping duty in the final findings and that it should have been imposed at the higher rate at which it was imposed under the provisional findings since there was no meaningful co-operation by the exporter. 12.2 The learned Counsel for the domestic industry relied on the following decisions in support of his contentions : (a) The decision of the Supreme Court in Narinder Chand Hem Raj and Other v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh and Others reported in 1971 (2) SCC 747 was cited for the proposition that the power to impose a tax is undoubtedly a legislative power. That power can be exercised by the Legislature directly or subject to certain conditions. The Legislature may delegate that power to some other authority. But the exercise of that power, whether by the Legislature or by its delegate is an exercise of legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tile Mills Association v. Director General of Anti-Dumping reported in 2002 (149) E.L.T. 45 (Raj.) was cited to point out that in the context of provisions of Rules 6(5) and 6(6), the Court held in paragraph 41 of the judgment that if an oral information was not followed by presentation in writing then no grievance could be made of violation of principles of natural justice on the ground of non-consideration of oral information and similarly no grievance could be made of non-consideration of written submission, if it was not proceeded by oral information. (f) The decision of the House of Lords in Quinn v. Leathem reported in 1900-3 ALL E.R. Rep. 85, was cited for the proposition that a case is only an authority for what it actually decides. It cannot be quoted for the proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical. (g) The decision of the Supreme Court in Director of Settlements A.P. and Others v. M.R. Appa Rao and Another was cited for the proposition in para 7 of the judgment that what is binding is the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the discretion of the subordinate legislating body and the subordinate legislation was not open to question on the ground that the enquiry was not as full as it might have been. It is the sort of enquiry which the legislature itself may cause to be made before legislating, an enquiry which will not confer any right on anyone. In paragraph 7, the Supreme Court held that legislation was the process of formulating a general rule of conduct without reference to particular cases and usually operating in future. Rule making is normally directed for having a general application to all members of a broadly identifiable class, while an adjudication, on the other hand, applies to specific individuals or situations. It was held that adjudication determines past and present facts and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and present while legislation is indicative of the future. In paragraph 27, it was held that provision for such enquiry as it thinks fit by a subordinate legislating body, is generally an enabling provision to facilitate subordinate legislating body to obtain relevant information fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to duty and not any specific import. It was submitted that under Rules 17(2) and (3), when the exporters are so large, the designated authority can limit its findings to some of the representative instances which was indicative of the legislative nature of the function having regard to the fact that the anti-dumping duty that may be imposed was applicable to all, notwithstanding that under the proviso to sub-rule (3) of Rule 17 only the statistically valid samples based on information available, were considered. He argued that in a quasi-judicial function such a course would not be permissible. It was submitted that the entire process was a continuous legislative act both before the designated authority and the Central Government and there was no scope for invoking doctrine of legitimate expectation beyond the ambit of statutory provisions. He also argued that there was no prejudice whatsoever by the change of officers functioning as the designated authority when the oral information could never have been relied upon unless it was reduced to write. It was further submitted that Rule 20(2)(a) specified certain conditions which, if satisfied, allowed levy of the anti-dumping duty ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no question of invocation of principles of natural justice or hearing the affected parties when legislative action is brought on the anvil for scrutiny or for that matter even an action of a delegated legislative authority is brought in challenge. It was held that the legislative exercise or exercise by agency imposing any tax or fee or charges would not require the affected parties to be heard before such charges or impost are levied. (f) The decision of the Supreme Court in State of Tamil Nadu represented by Secretary, Housing Department v. K. Sabhanayagam and Another, etc. reported in 1997 (9) SCC 316 was cited for the proposition in paragraphs 30 and 31 of the judgment that in cases of conditional legislation, the legislature fixes up objective conditions for the exercise of power by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. While dealing with the contention that hearing should be given to the affected employees of the establishment, in paragraphs 35 and 36 of the judgment it was held that such contention cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmitted that opportunity for hearing was given during verification and also when the appellant-exporter had offered price undertaking. He submitted that the final findings were required to be kept in a sealed cover because of the interim orders of the Rajasthan High Court and, therefore, the appellants who obtained the interim orders and others having commonality of interest with them can not try to take advantage of the situation created by them in respect of the interregnum period that followed the expiry of the provisional duty. 14.1 In support of his contentions the learned Additional Solicitor General relied on the following judgments :- (a) The decision of the Supreme Court in Ossein and Gelatine Manufacturer's Association of India v. Modi Alkalies and Chemicals Limited and Another reported in (1989) 4 SCC 264, was cited to point out from paragraph 5 of the judgment that in a case where an order was passed by an officer different from the one who heard the party, the Supreme Court held that since the proceedings were not in the nature of formal judicial hearings, minutes were recorded on all the points discussed at the meeting and it was not brought to the notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Bharat Coking Coal Ltd. and Another reported in AIR 1983 SC 239, was cited to point that it was observed in paragraph 26 of the judgment that no one may speak for the Parliament as Parliament is never before the Court. After Parliament has said that what it intends to say only the Court may say what the Parliament meant to say. None else. Once a statute Leaves Parliament House, the Court's is the only authentic voice which may echo (interpret) the Parliament. (f) The decision of the Supreme Court in P.V. Narsimha Rao v. State (CBI)/SPE) etc. reported in AIR 1998 SC 2120, was cited to point out that it was held in paragraph 77 of the judgment that the statement of the Minister who had not moved the Bill in Parliament was not taken into consideration for the purpose of interpreting the provisions of the Act. (g) The decision of the Supreme Court in Kanoria Chemicals and Industries and Others v. U.P. State Electricity Board Others reported in 1997 (5) SCC 772, was cited to point out that in the context of a case where the consumer filed the petition, obtained stay of operation of the notification revising the rates and failed in his attack, it was held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to make rules for regulation of its legislative procedure under Article 118(1), subject to the provisions of the Constitution. The Courts will have no power to examine whether and what investigation was made by the Parliament through its committees under the rules of procedure, and what material was gathered or looked into, whose opinions were elicited etc., before making the law. The validity of any proceeding in Parliament cannot be called a question on the ground of any alleged irregularity of procedure and the Courts cannot, therefore, inquire into the record and proceedings of the Parliament that relate to the levy and rates of taxes, that are imposed by the law made by the Parliament, in view of the embargo in Article 122 of the Constitution. Thus, in cases where investigative procedure leading to determination of the rates of taxes is undertaken as per the rules of business through its agencies by the Parliament, there will be absolutely no scope for any judicial tribunal to examine whether any procedural irregularity was committed by not consulting any particular section of the public likely to be affected adversely by such law. This is precisely why the legislative enac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch rules are laid before the Parliament and will have effect subject to modifications, if any, as may be agreed by the House of Parliament. Even the notifications issued by the Central Government under the said Act for increasing or reducing duty referred to in Section 2 thereof or amending the first schedule to the said Act are required to be laid before each House of Parliament as per sub-section (2) of Section 11 like the notification imposing anti-dumping duty, which is also to be placed before the House of Parliament under sub-section (7) of Section 9A. It is, therefore, abundantly clear that the entire process of imposition of anti-dumping duty on the subject article and prescribing the rate of such duty is statutory continuation of the prescribed process of making 'law' without which the tax in the nature of anti-dumping duty cannot be "levied and collected". It brings into existence the levy in relation to the subject article and this "law" will operate when there is importation of the subject article from the subject countries. It does not by its own force penalize any individual. It applies to the imports when made just as customs duties apply to dutiable items of import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject goods and, if so, at what rate. The rates of anti-dumping duty so determined are meant to apply, not to the imports that occurred in the POI or earlier which constitute the data information, but to the imports made with effect from the date when anti-dumping duty is made applicable. The concept of determination of 'lis' between parties would, therefore, be inept in the context of the determinations aimed at declaring the anti-dumping duty and its rates, especially when the players in the filed i.e. exporters, importers, and users keep on changing. 17.1 Moreover, there can arise no question of 'lis' between the State and its citizens in the matter of exercise of legislative power to impose tax. There is no "right-duty" relationship between the Central Government imposing anti-dumping duty under the said Act and the rules, and exporters or importers who are given opportunity to give information under the rules. Legislative power is not just a legal right, nor can there be a legal right to claim immunity against imposition of tax, because, there cannot be a corresponding duty on the legislature and its delegate not to levy and impose tax. Imposing tax is the constitutional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and the other contesting it. The adjudicating authority decides whether to accept it or not. For this purpose it becomes essential for the adjudicating authority to give a hearing to the rival claimants to put up their respective case and meet with the case of the other. This type of situation does not arise when the domestic industry moves the designated authority under Rule 5 for initiating the investigative procedure which is devised to put in motion the statutory process of bringing about the impost and declaring its rates. The domestic industry or importers have no common law right or any accrued right under a statute, or any other recognized legal right to claim that tax in the nature of anti-dumping duty be imposed or not on any particular importation. That is essentially an exercise of sovereign legislative function and the mode of exercise of that function is impregnable save to the extent the Parliament chooses to statutorily adopt a consultative process anterior to the declaration of the anti-dumping duty on the subject article and its rate under the statutory notification. Rules of legislative nature are not generally subject to natural justice. At common law, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he existence, degree and effect" of any alleged dumping of the identified article. On such investigation, it has to submit its findings to the Central Government as to normal value, export price, and margin of dumping in relation to the subject article and injury, as contemplated in the duties of designated authority spelt out in Rule 4. The designated authority is required to recommend the amount of proposed anti-dumping duty equal to the margin of dumping or less, as would remove the injury to the domestic industry, and the date of commencement of such duty, all in accordance with the rules. The designated authority is bound by the conditions for initiation and the principles governing investigations as prescribed under Rules 5 and 6. The entire emphasis of investigation is on seeking the views of the interested parties by providing them publicly notified information on the name of the exporting country, article involved, the date of initiation of investigation, the basis on which dumping is alleged in the application, and the summary of facts on which the allegation of injury is based. A copy of the public notice is sent to the known exporters of the dumped articles and the conc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not generate a right to second or fresh hearing in favour of the interested parties, having regarding to the legislative nature of the functions involved in the process of imposing anti-dumping duty and fixing its rates. 20. There is no right to be heard before making of legislation, whether primary or delegated, unless it is provided by the statute. In case of rules and order which are clearly legislative as opposed to administrative, there is normally no room for the principle of natural justice which entitles persons affected to a fair hearing in advance. The rules reflect a scheme of consultation with interests and organizations likely to be affected by the imposition of duty and its rates and do not provide for hearing as a matter of legal right, any more than it is with Parliament's own legislation. The duty to consult is recognized by the rules in every sense except the legal one to render a formal hearing which may produce legalism and artificiality. Where oral hearing is given as in adjudicative procedure for resolving lis inter-partes, a tribunal must : (a) consider all relevant evidence which a party wishes to submit; (b) inform every party of all the evidence to be ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an "impost" or its rate. 20.1 Admittedly, all that was orally stated on behalf of the appellant at the public hearing on 1-9-2004 was reduced to writing on 10-9-2004 and there was nothing which was orally informed but not mentioned in the said writing, as fairly stated, when asked, by the learned senior advocate. All that was orally stated, was reduced to writing and that what was not reduced to writing could never have been considered in view of the mandate to sub-rule (6) of Rule 6. The precedents cited for the proposition that the adjudicating authority deciding the 'lis' should be the same authority who heard the arguments of the parties to the litigation, cannot apply to a case of the present type involving determinations by an investigation undertaken for declaring the levy of anti-dumping duty on the subject article and the rate of such duty. Such investigatory determination is the process of establishing something exactly, or typically by calculation, or as a result of research, as distinguished from an adjudicative decision by which the judicial or quasi-judicial authority comes to a resolution in the mind as a result of consideration and gives a judgment or order conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to the dumped articles on the basis of investigatory procedure laid down thereunder. 21.1 There is absolutely no prejudice caused to the appellants as their hearing on 1-9-2004 was complete and the oral information which they gave at that hearing was duly reduced to writing by them. Their response to the disclosure statement issued by the designated authority was considered by the same designated authority who made the final determinations. The appellants at all the stages of the investigation proceedings were given opportunity to fully participate to the extent laid down by the rules. The relevant documents were kept in the public file and there is no reason to doubt the repeated assertions of the designated authority in that regard. On-the-spot verification procedure also, afforded an opportunity to the appellants-exporters and their response to the verification report was considered by the same designated authority who gave the final findings. The ground of denial of hearing appears to be more strategic than real. We are, for the foregoing reasons, unable to accept the contention raised on behalf of the appellants that the impugned order and notification are vitiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the context of Rule 6(6) which contemplated that the designated authority may allow oral information relevant to the investigation to be presented by an interested party. Such oral information can be taken into consideration by the Designated Authority, "only when it is subsequently reproduced in writing." Since the designated authority may allow oral information to be presented the offer inviting oral information will only entitle the interested parties to present such information. That, however, is not a promise or undertaking to give a personal hearing which is not contemplated by the rules. Offer to make oral submissions as per Rule 6(6) to furnish relevant information is not an undertaking for an "oral hearing" as understood in the adjudicative processes, and no legitimate expectation can be pleaded for expanding the scope of hearing contemplated by the rule. The contention that a fresh hearing should have been given on the doctrine of legitimate expectation, therefore, fails. 24. The oral information given on 1-9-2004 by the appellants was reproduced in writing on 10-9-2004 in the communication addressed to the Director, DGAD on behalf of the appellants in which gratitud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.1 On the question of non-market economy status the domestic industry in "Section (III)" of its petition, drawing the attention of the designated authority to paragraphs 7 and 8 of Annexure-I to the rules which were reproduced, contended that "After determination that a country is non-market economy, the designated authority would follow para 7 for determination of normal value". As stated in the preliminary findings [Para A1 (ix)], dated 30-6-2004, under the head "Procedure followed with regard to the investigations", a questionnaire for according market economy status was forwarded to all the known exporters and the Embassy of People's Republic of China. It was stated therein that "while, for the purpose of initiation, the normal value in China PR was considered based on the constructed cost of production of the subject goods in China PR, the authority informed the known exporters that it proposed to examine the claim of the appellants in the light of paragraphs 7 and 8 of Annexure-I of the Anti-dumping rules as amended. The concerned exporters and producers of the subject goods from China PR were, therefore, requested to furnish necessary information and sufficient evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. (1) The term 'non-economy country' means any country which the designated authority determines as not operating on market principles of cost or pricing structures, so that sales of merchandise in such country do not reflect the fair value of the merchandise, in accordance with the criteria specified in sub-paragraph (3). (2) There shall be a presumption that any country that has been determined to be, or has been treated as, a non-market economy country for purposes of an anti-dumping investigation by the designated authority or by the competent authority of any WTO member country during the three year period preceding the investigation is a non-market economy country. Provided, however, that the non-market economy country or the concerned firms from such country may rebut such a presumption by providing information and evidence to the designated authority that establishes that such country is not a non-market economy country on the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... governing "normal value" reflected in paragraphs 1 to 6 of Annexure-I have been laid down in the context of the market economy countries on an assumption that such countries operate on "market principles of cost and pricing structures" which will reflect in the sales of merchandise in the domestic market of such country their fair value. The designated authority is obliged to apply the principles of determining the normal value set out in para 7 in respect of a non-market economy country when the country or the "firm" therefrom does not satisfy the designated authority on the basis of the criteria enumerated in para 8(3) that, such country is not a non-market economy country and operates on "market principles" as regards the concerned "firm" and the export of the subject article. The presumption under para 8(2) is thus rebuttable in relation to the subject article on which anti-dumping duty has to be levied under Section 9A(1). 25.5 Economic system of a country comprises a set of principles and techniques by which a society decides and organizes the ownership and allocation of its economic resources. At one extreme, usually called a free-enterprise system, all resources are priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o purchase more of a commodity than is available in the market, they will tend to bid the price up. If more of a commodity is available then buyers care to purchase, suppliers will bid the prices down. Thus, there is a tendency towards an equilibrium price at which, quantity demanded equals the quantity supplied. 25.8 Operating as a measure of value, prices perform a significant economic function, distributing the scarce supply of goods, services and resources to those who want them most, through the adjustments of supply and demand. Prices of resources are called wages, interest and rent. This system, known as the price mechanism is based on the principle that only by allowing prices to move freely, will the supply of any given commodity match the demand. If supply is excessive, prices will be low and production will be reduced which will cause the prices to rise until a balance of supply and demand is reached. If supply is inadequate, prices will be high, promoting increase of production that, in turn, will lead to a reduction in prices until supply and demand are in equilibrium. A totally free price mechanism does not exist in practice even in free market economies, and monopo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority may apply the principles set out in paragraphs 1 to 6 instead to principles set out in paragraph 7 for determining the normal value. If the presumption is not rebutted by sufficient evidence in writing, the designated authority shall determine the normal value as per the principles incorporated in para 7. The expression "non-market economy countries" occurring in para 7 bears the meaning given to the phrase in paragraph 8(1) which itself excludes the countries which operate on market principles of cost and price structures in accordance with the criteria specified in sub-paragraph (3) of para 8. Therefore, where a country or concerned "firm(s)" wants to rebut the non-market economy presumption arising under Rule 8(2), the designated authority will be required to consider the matter on the basis of the criteria specified in paragraph 8(3) and if market conditions are shown to prevail for the concerned "firm", it cannot apply the principles set out in para 7. There is, therefore, no warrant for the contention raised on behalf of the appellants that the third market economy country should have been selected under para 7 at the stage of initiation of the investigation for determi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant Ningbo Nylon. It is not disputed that the investigation revealed that in Ningbo Jinlun Group Ltd. Company (i.e. Kingring Group) the majority shareholders were the following township and the village enterprises (TVEs): (a) The Temple Hill village Economics Cooperative Zonghan Neighbourhood. (b) Zonghan Neighbourhood Capital Management Cooperative. (c) Yangshan Village Economic Cooperative, Zonghan, Neighbourhood. (d) Majialu Road Village Economic Cooperative, Zhonghan Neighbourhood. 26.1 Most of the Shares of the appellant Ningbo Nylon were held by Jinlun (Kingring) Group. The designated authority examined the issue of TVEs being shareholders in relation to the legal provisions (particularly of the Law of People's Republic of China on Township Enterprises promulgated on 26-10-96), governing the operation of the TVEs in China. It was noticed that the State provided financial support/contribution to the TVEs and it could not be ascertained whether the funds for the acquisition of shares in Jinlun Group came from peasants or the State. It was noticed that the role of the State appeared in planning, co-ordination and supervision, granting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of an economy of diverse forms of ownership, and upholds the distribution system with the dominance of distribution according to work and the co-existence of diverse modes of distribution. Article 7. - The State-owned economy, i.e. the socialist economy with ownership by the people as a whole, is the leading force in the national economy. The state will ensure the consolidation and development of the state owned economy. Article 8. - The rural collective economic organizations follow the two-tier operation system with household contract management as the basis and the combination of unified and separate management. Rural co-operative economic forms - producers', supply and marketing, credit and consumers' co-operatives - are part of socialist economy-collectively owned by the working people. Working people who are members of rural economic collectives have the right, within the limits prescribed by law, to farm plots of cropland and hilly land allotted for their private use, engage in household sideline production and raise privately owned livestock. Article 14. - The state continuously raises labour productivity, improves economic results and develops the productive for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... belong to the State. House sites and private plots of crop and hilly land are also owned by the collectives. No organization or individual may appropriate, buy, sell or unlawfully transfer land in other ways. The right to the use of land may be transferred in accordance with law. All organizations and individuals who use land must make rational use of the land. No organization or individual may appropriate, buy, sell or unlawfully transfer land in other ways. The right to use of land may be transferred in accordance with law. 26.5 Article 30 indicates the administrative division of the People's of Republic of China in which counties and autonomous counties are divided in townships, nationality township and towns. Article 30 reads as under : - "Article 30. - The administrative divisions of the People's of Republic of China is as follows : - (1) The country is divided into provinces, autonomous regions and municipalities directly under the Central Government; (2) Provinces and autonomous regions are divided into autonomous prefectures, countries, autonomous counties and cities; (3) Counties and autonomous counties are divided into townships and towns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f township enterprises in economically less developed regions and in regions where national minorities live. Article 7 : The department of township enterprise administration under the State Council and other departments concerned under the State Council shall, in accordance with their respective responsibility, be held responsible for planning, co-ordination, supervision and supplying of service for township enterprises of the whole countries. The department of township enterprise administration and other departments concerned under local Governments at the country level and above shall, in accordance with their respective responsibility, be responsible for planning co-ordination, supervision and supplying of service for the development of township enterprises within their respective regions. Article 20 : The state shall, by means of credits, encourage and support the development of township enterprises. State financial institutions may offer preferred loans to township enterprises which meet any of the requirement stipulated in the preceding article and satisfy the conditions for loans, and among said township enterprise, those with financial handicap but promising well may en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the assets of the company in lieu of shares. Any peasant having a land holding could withdraw from the co-operative fund created. Exports to India were made through a related company NJIE. As regards the raw material, inputs and costs, the appellant Ningbo Nylon was stated to be buying about 60% of its raw material, i.e. caprolactum from overseas markets while the balance 40% was procured from within China. The total purchase made by the appellant Ningbo Nylon was noticed and its average price per kg. was also noted. It transpired that purchases were made from State owned companies through NJIE. It was noticed from the clarification given by BOFT that the companies in China were audited in line with Chinese GAAP, but not international accounting standards. During the verification it was found that the exporter made some sales to its affiliates. The exporter was requested to identify and segregate the same. It was seen from the details that some numbers were missing. The company explained that there was common ERP generation system. While segregating some missing numbers, it was explained that, there was a wrong punching and they were cancelled. The company did not confirm this po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s considered based on the constructed cost of production of the subject goods in China PR, the authority informed the known exporters that it proposed to examine the claim of the appellant in the light of paragraphs 7 and 8 of Annexure I of the Anti-Dumping Rules as amended. In spite of this no effort was made whatsoever by any of the interested parties opposing the petition to suggest any third market economy country. In this background, the authority while dealing with the contention that it cannot treat India as a surrogate country, held that the only the option with the authority was to consider the cost of production in India, duly adjusted, to reflect international raw material prices and optimum conversion cost, selling, general and administrative expenses and reasonable profit, in paragraph 144 of the final finding which is reproduced herein : "It has been claimed that he authority cannot treat India as a surrogate country. The authority notes that the petitioner had not provided an evidence of price or constructed value in a market economy third country. Price from a market economy third country to other countries were also not made available by the petitioner. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the rules for determination of injury and causal link. It has not merely check-listed the relevant factor but has thoroughly applied its mind and analysed the relevant material on record in the context of the relevant factors and indices. On the aspect of value impact, the authority considered import volumes as per information from various sources. The authority considered it appropriate to adopt export data as per information provided by the co-operating exporters. The responding exporter had admitted having exported subject goods much more than what was disclosed by the DGC Is. The transaction-wise data for the period of investigation made available by DGC Is was examined and ignoring abnormal transactions, the volume of imports and value of grey, dipped and CTC fabric from the subject country were analysed, and it was noted that he share of China in total imports had increased from 6.11% in 1999-2000 to 29.809% on the period of investigation, while, the share of other countries had declined form 93.89% to 70.20%. It was tried to be argued that there was an error in comparing the shares of China and other importers in the total imports. This contention is misconceived, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales realization showed a decline. The capacity utilization in respect of grey fabric had declined, though the average capacity utilization for combined grey, dipped and CTC for the subject goods had improved by 2.45% from the base year to the POI. It was found that CTC fabric, also showed a decline in capacity utilization and the increase in overall basis was because of increase in capacity utilization in respect of dipped fabric. It was observed, keeping in view the net sales realization and the landed value, that the price of imports from China PR was significantly lower than the selling prices of the domestic industry and they were significantly undercutting the prices of the domestic industry in all the three forms of the products. The decline in the selling price of the domestic industry in respect of grey fabrics (13.6%) was more than the decline in prices for dipped fabrics (9.9%) and CTC (7.6%). The weighted average price decline of 12.6% reflected more the trends of grey fabric, as grey fabric constituted 86% of total sales of the domestic industry. Out of the total exports, 8404 MTs reported by the co-operating exporters, constituted 60% of total exports. 28.1 The decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant material on record and the reasoning adopted by the designated authority in its final findings, we for the above reason, find ourselves in full agreement with the conclusions reached by it, as set out in paragraphs 168 to 183 on injury, and in paragraphs in 185 to 198 on causal link, and there is absolutely no ground made out for disturbing the findings given by the designated authority. 29. It appears that the price undertaking offered by the appellant exporter Ningbo Nylon could not be accepted because the exporter was not ready to link the prices offered in the price undertaking to the price variations of major raw materials. During the course of arguments, it was made clear on behalf of the exporter that they were not prepared to link the price with market price changes in the major raw materials, as was done by the other exporter Shangdong whose price undertaking was accepted during the investigation. 30. There is no substance in the contention that the designated authority did not deal with the graph attached to the comments of the appellants in their communication dated 10-9-2004. The designated authority has, in detail, considered the data on the basis of which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the designated authority and the policy of considering three years' information for trend analysis was declared, the designated authority was fully justified in requiring the third previous years' information since only two previous years' information preceding the period of investigation was provided. Since the information for 1999-2000 was forwarded by the domestic industry as per the requirement of the trade notice with adequate copies of the non-confidential information and the information was reproduced in the preliminary findings and no objection was ever raised against the inclusion of the year 1999-2000, the contention which is now sought to be raised alleging that there was a change in the base year to bring about different result, is wholly unwarranted. The Guantemala Panel Report is, therefore, of no assistance to the appellant. 32. In the trend analysis for injury, the trend over the previous three years and the POI is to be viewed as a whole to ascertain the existence of injury on the basis of prescribed factors and indices One cannot held at a particular year, as was done during the course of the arguments, by building contentions in respect of the information rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) The anti-dumping duty levied under Rule 13 and Rule 19 shall take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) — (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the anti-dumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of Section 9A of the Act, the anti-dumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the case of violation of price undertaking referred to in sub-rule (6) of Rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The contention that the impugned notification is bad to the extent it is made retrospective from the date of imposition of the provisional duty, as it applied also to the interregnum period i.e. the period after provisional duty lapsed on expiry of six months from the date of notification under Rule 18, is, therefore, misconceived. Final Order 34. (i) For the foregoing reasons, we do not find any warrant for interference with the impugned final findings and the notification on any of the contentions raised on behalf of the appellants and dismiss all these appeals bearing Nos. C/768/05, C/600/05, C/601/05 and C/773/05. (ii) Since we have held that the designated authority has correctly worked out the dumping margin and the margin of injury, there is not substance in the appeal filed by the domestic industry bearing Appeal No. C/769/2005. The designated authority was required to come to its final finding on the basis of material available during investigation and it was not bound to maintain the higher rate of duty imposed under the preliminary findings on the ground the there was some non-co-operation by the exporters in certain areas. The appeal of the domestic in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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