2011 (6) TMI 281 - HC - Customs

Termination of the investigation - Anti-Dumping Duty on Dumped Articles - Determination of Injury Rules 1995 - Rule 14(b) - The Application of the Petitioner under the Rules was supported by MSL and JSL. The two supporting manufacturers together account for 70% of total Indian production - several opportunities were furnished to both the supporting manufacturers to furnish information in relation to costing and injury - Their failure despite being supporting manufacturers to produce data in support of the application could only result in a situation where the Authority would justifiably come to the conclusion that there was no sufficient evidence to justify the continuation of investigation.The Petitioner assured at the personal hearing that it would submit information from MSL but failed to do so. The Petitioner was aware of what information was needed the failure of the supporting manufacturers and of the consequence that would ensue. The duty to act fairly and judiciously has been fulfilled - The Authority as the reply would show did as a matter of fact grant a personal hearing and despite adequate opportunities no material was produced in regard to the position of the industry as a whole - The order of the Designated Authority is therefore neither lacking in jurisdiction nor is it in breach of the principles of natural justice - Moreover the termination of the investigation would not preclude the Petitioner from applying afresh in accordance with law.

Issues Involved
1. Termination of investigation under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
2. Violation of principles of natural justice.
3. Sufficiency of evidence of dumping and injury.
4. Compliance with procedural requirements and deadlines.
5. Role and participation of supporting manufacturers in providing necessary data.

Detailed Analysis

Termination of Investigation
The challenge in these proceedings is to an order passed by the Designated Authority by which an investigation under the provisions of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, has been terminated. The Designated Authority terminated the investigation, holding that while the Petitioner had a 27% share of domestic production, the balance was held in a majority by the supporting companies. The supporting companies had despite opportunity, failed to supply complete costing and injury information though they were major producers of the goods in the country. The Designated Authority held that in the absence of data pertaining to the major producers of the goods in India, it was not possible to conclude that there was any injury from the alleged dumped import of the goods in question.

Violation of Principles of Natural Justice
The Petitioner argued that there has been a violation of the principles of natural justice and a failure to consider relevant information which was disclosed by the Petitioner. Counsel submitted that (i) the proceeding before the Designated Authority is a quasi-judicial proceeding, which must be conducted in accordance with the principles of natural justice; (ii) no notice to show cause was furnished to the Petitioner before the investigation was terminated; (iii) the Authority failed to consider the material which was adduced by the Petitioner; and (iv) the order of the Designated Authority terminating investigation suffers from the vice of being a non-speaking order.

Sufficiency of Evidence of Dumping and Injury
The Designated Authority concluded that the supporting manufacturers had not submitted complete costing and injury information in the prescribed format for the entire injury period, including the period of investigation. The Authority concluded that any analysis would therefore, not reflect the actual injury to domestic industry and a causal link between the alleged dumping of goods and the alleged injury to the domestic industry. The Designated Authority has, by its impugned order dated 18 November 2010, come to the conclusion that the analysis of the limited and partial data submitted by MSL, who is the major producer of the goods in India, does not show any injury from the alleged dumped imports of goods. This is a pure finding of fact which has been arrived at by the Authority.

Compliance with Procedural Requirements and Deadlines
The Designated Authority noted that several opportunities were furnished to both the supporting manufacturers to furnish information in relation to costing and injury. Letters were addressed to the supporting manufacturers on 3 May 2010, 13 July 2010, and 17 August 2010. Despite these reminders, the supporting manufacturers did not provide the necessary information. The Petitioner was given time to produce information from the supporting manufacturers but failed to do so. The Designated Authority concluded that in the absence of complete information for the injury period, from the major producer of the goods in the country, a combined analysis for the determination of injury over the injury period for the industry of the goods in India cannot be carried out.

Role and Participation of Supporting Manufacturers
The Application of the Petitioner under the Rules was supported by MSL and JSL. The two supporting manufacturers together account for 70% of total Indian production. The share of the Petitioner is 27%. Despite several reminders, the supporting manufacturers did not provide the necessary data. The Petitioner assured at the personal hearing that it would submit information from MSL but failed to do so. The Designated Authority concluded that in the absence of complete information from the major producers, it was not possible to determine the injury to the domestic industry.

Conclusion
The order of the Designated Authority is therefore, neither lacking in jurisdiction nor is it in breach of the principles of natural justice. Moreover, the termination of the investigation would not preclude the Petitioner from applying afresh, in accordance with law. For these reasons, the Petition is dismissed. There shall be no order as to costs.

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