2009 (10) TMI 614 - HC - Customs

Provisional Anti-dumping duty - Notification No. 14/18/2008-DGAD dated 17-11-2008 - since the petitioners have approached this Court at the interim stage and final determination of anti-dumping duty is yet to be made, we do not propose to deal with all these issues nor do we think it just and proper to express our opinion on these issues. We are, however, primarily concerned to decide as to whether the present petition is maintainable at this stage and if yes, to what extent? No appeal lies against the levy of provisional anti-dumping duty and this Court is well within its power to entertain this petition since there being no alternative remedy available to the petitioners despite the fact that they are being saddled with the liability of provisional anti-dumping duty. Confidentiality - Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - held that - This whole exercise undertaken by the designated authority and withholding of certain relevant data of its preliminary finding is certainly causing prejudice not only to the petitioners but all importers and in absence of such data in respect of its finding, it is practically impossible for them to raise any objection or to make any effective submission. - designated authority directed to provide all necessary details of findings which are kept blank while recording his preliminary findings and permit the petitioners to raise their objections in this regard and while recording the final finding, the designated authority shall take into consideration such objections and submissions that may be made in this regard.

Issues Involved:
1. Jurisdiction of the initiation of anti-dumping duty proceedings.
2. Validity of the application by the domestic industry.
3. Adequacy of the opportunity for the petitioners to be heard.
4. Material irregularities in the proceedings.
5. Relationship and imports by related companies.
6. Access to essential public documents and non-confidential versions.
7. Confidentiality issues in the proceedings.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Initiation of Anti-Dumping Duty Proceedings:
The petitioners argued that the initiation of anti-dumping duty proceedings was without jurisdiction because the respondent No. 3 did not form part of the domestic industry. Consequently, the investigation could not have been initiated based on their application. The court noted that the petitioners had raised preliminary objections about jurisdiction, which were to be decided by the designated authority within four weeks. The petitioners contended that the initiation was contrary to law and without jurisdiction, affecting subsequent actions, including the preliminary findings and notifications.

2. Validity of the Application by the Domestic Industry:
The petitioners challenged the validity of the application filed by the domestic industry, arguing that it was filed by only one producer (respondent No. 3) with a support letter from respondent No. 4. They contended that the designated authority did not possess adequate data to satisfy the requirements under Rule 5 of the Rules of 1995. The court observed that the designated authority had to consider whether the applicant was related to an exporter or importer and whether the application accounted for a major proportion of total domestic production.

3. Adequacy of the Opportunity for the Petitioners to be Heard:
The petitioners claimed that the designated authority acted unreasonably and arbitrarily by not affording adequate opportunity for them and other interested parties to be heard. They argued that the entire procedure violated the principles of natural justice. The court emphasized that the petitioners had approached the court at an interim stage, and the final determination of anti-dumping duty was yet to be made. Therefore, the court did not delve into this issue in detail.

4. Material Irregularities in the Proceedings:
The petitioners alleged that the initiation notification, the order dated 6-5-2009, the preliminary findings, and the resultant notification dated 22-6-2009 suffered from material irregularities that were incurable. The court noted that these issues were intertwined with the confidentiality aspect and decided to address them primarily in that context.

5. Relationship and Imports by Related Companies:
The petitioners argued that related companies of respondent No. 4 had imported the subject goods from China during the investigation period, and the designated authority had not obtained mandatory certification regarding relationships with foreign producers or importers. The court directed the designated authority to consider the issues raised by the petitioners regarding respondent No. 4 and their allied concerns' imports from China.

6. Access to Essential Public Documents and Non-Confidential Versions:
The petitioners contended that they were denied access to essential public documents and a complete non-confidential version of responses and submissions filed during the investigation. The court highlighted the importance of transparency and directed the designated authority to provide all necessary details of findings that were kept confidential.

7. Confidentiality Issues in the Proceedings:
The court extensively addressed the confidentiality issues, referring to Rule 7 and Rule 12 of the Rules. The court observed that the designated authority had mixed up confidentiality as to information and confidentiality as to preliminary findings. The court emphasized that Rule 7 contemplates confidentiality only in respect of information and not conclusions or data of conclusions. The court disapproved of the preliminary finding on the issue of confidentiality and directed the designated authority to provide necessary details of findings and permit the petitioners to raise objections.

Conclusion:
The court concluded that the petitioners had approached the court at an interim stage, and the final determination of anti-dumping duty was yet to be made. The court did not express any opinion on other issues raised before it and reserved the petitioners' right to challenge the final finding. The court directed the designated authority to provide necessary details of findings and permit the petitioners to raise objections. The levy of provisional anti-dumping duty based on the preliminary finding was not to be enforced against the petitioners until the final finding was made. The petition was disposed of with the above observations and directions.

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