2005 (5) TMI 350 - AT - Customs

Summary

Issues Involved:

1. Validity of initiating a New Shipper Review under Rule 22.
2. Compliance with the confidentiality provisions under Rule 7.
3. Determination of the relationship between the new shipper and existing exporters/producers.
4. Periodicity and timing of the review under Rule 22.
5. Adequacy of the evidence and procedural fairness.

Detailed Analysis:

1. Validity of Initiating a New Shipper Review under Rule 22:

The appeal challenged the initiation of a New Shipper Review by Nanhai Shanguyan Qualin Construction Ceramic Co. Ltd. (Nanhai) under Rule 22 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. The appellant contended that the application for review was made before the imposition of definitive anti-dumping duties under Section 9A(1) of the Act, rendering the application non est. However, the Tribunal held that Rule 22 does not specify when the new exporter/producer could make an application and does not preclude the designated authority from taking up the application for consideration after the notification under Rule 18. Therefore, the initiation of review was deemed valid.

2. Compliance with the Confidentiality Provisions under Rule 7:

The appellant argued that the designated authority mechanically accepted the claims of confidentiality by the new shipper without reaching the requisite satisfaction, thus preventing the domestic industry from adequately defending itself. The Tribunal noted that the designated authority did not pass any formal order regarding confidentiality and merely accepted the version of the parties providing evidence. The Tribunal directed the designated authority to reconsider the proceedings in light of the confidentiality issue, emphasizing that confidentiality claims must be bona fide and germane to the rights and legitimate interests of the party.

3. Determination of the Relationship Between the New Shipper and Existing Exporters/Producers:

The appellant contended that the designated authority failed to determine whether the new shipper, Nanhai, and the exporter, Prestige General Trading (Prestige) of Dubai, were related to any other exporter/producer in China who exported the product during the period of investigation. The Tribunal held that the designated authority must be satisfied that the applicant-exporter/producer is not "related" to any exporters/producers in the exporting country who exported during the period of investigation. The Tribunal found that the designated authority did not adequately examine this aspect and directed a fresh examination.

4. Periodicity and Timing of the Review under Rule 22:

The appellant argued that the review was undertaken just 22 days after the notification under Section 9A(1), which was not "periodical" as envisaged under Rule 22. The Tribunal clarified that the term "periodical review" in Rule 22 means that the review can be undertaken intermittently as and when the occasion arises to determine individual margins of dumping for new exporters/producers. The Tribunal held that there are no specific time intervals intended by this expression, and the review can be initiated as and when necessary.

5. Adequacy of the Evidence and Procedural Fairness:

The appellant argued that the domestic industry was denied a fair opportunity to defend itself due to the confidentiality of vital evidence supplied by the new shipper. The Tribunal emphasized that the designated authority must ensure that the non-confidential summaries provided are in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. The Tribunal directed the designated authority to reconsider the proceedings, ensuring compliance with the confidentiality provisions under Rule 7.

Final Order:

The Tribunal set aside the Final Findings of the designated authority dated 30th June 2004 and the Notification No. 80/2004, dated 28th July 2004. The designated authority was directed to examine the confidentiality of information under Rule 7 and make "Final Findings" afresh in the matter after hearing the interested parties on the basis of the material already on record, within three months from the date of the order. The appeal was accordingly allowed.