2011 (6) TMI 665 - AT - Customs

Whether Designated Authority has no power to issue corrigendum as it became functus officio in law immediately after the issuance of the final finding dated 17-2-2009 and only jurisdiction which the Designated Authority had thereafter was in terms of Rule 23 of the Anti Dumping Rules to make a mid term review Held that - corrigendum dated 17-4-2009 is concerned, obviously, the same was also issued within the period prescribed for the completion of the notification, even the final notification was issued on 15-5-2009. Being so, the issue regarding bar of limitation as such does not arise for consideration in the matter. The corrigendum apparently discloses elaborate discussion of the objections raised on behalf of the appellants in this regard and the logical conclusion arrived at on analysis of those contentions. There is, therefore, absolutely no substance in this ground of challenge also. Whether Designated Authority has no power to impose Anti-Dumping duty in terms of any foreign currency and anti dumping duty can be imposed only in Indian rupees Held that - Anti-dumping duty is fixed after a finding that foreign goods are sold at less than their normal value in the Indian market causing injury to domestic producers. The amount of dumping margin is worked out in dollar terms as all aspects of trade are in US . Section 9A stipulates that anti-dumping duty shall not exceed dumping margin. anti-dumping duty should be fixed in dollar terms so that erosion of the quantum of protection does not take place on account of changes in the exchange rate . appeals dismissed.

Issues Involved:
1. Compliance with directions of the Hon'ble Delhi High Court.
2. Jurisdiction of the Designated Authority to issue a corrigendum after issuing the final findings.
3. Authority to impose anti-dumping duty in foreign currency.
4. Validity of anti-dumping duty imposition based on final findings.

Issue-wise Detailed Analysis:

1. Compliance with Directions of the Hon'ble Delhi High Court:
The appellants argued that the Designated Authority failed to comply with the directions issued by the Hon'ble Delhi High Court on 20-3-2009, particularly by not considering the contentions raised by the appellants. The High Court had set aside the initial corrigendum dated 27-2-2009 and remanded the matter back to the Designated Authority for reconsideration, allowing all objections to be raised. The Designated Authority, after hearing the objections, issued a fresh corrigendum on 17-4-2009. The Tribunal found that the Designated Authority had indeed considered the submissions and framed specific issues based on those submissions for consideration. Thus, there was no substance in the claim that the Designated Authority failed to comply with the High Court's directions.

2. Jurisdiction of the Designated Authority to Issue Corrigendum:
The appellants contended that the Designated Authority became functus officio after issuing the final findings on 17-2-2009 and lacked the jurisdiction to issue a corrigendum. The Tribunal noted that the Designated Authority's recommendations are purely recommendatory and attain finality only after acceptance and notification by the Central Government. Rule 18(1) of the Anti-Dumping Rules allows the Central Government to impose anti-dumping duty based on the final findings within three months of their publication. The Designated Authority retains the power to review and make further recommendations under Rule 23, even after the issuance of the final findings but before their acceptance by the government. The Tribunal concluded that the Designated Authority did not become functus officio and had the jurisdiction to issue the corrigendum before the final notification.

3. Authority to Impose Anti-Dumping Duty in Foreign Currency:
The appellants argued that anti-dumping duty could only be imposed in Indian rupees and not in any foreign currency. The Tribunal referred to the decision of the Larger Bench in the Pig Iron Manufacturers Association case, which held that there is no bar in fixing anti-dumping duty in dollar terms, payable in Indian rupees. The rationale is to prevent erosion of the protection afforded to domestic industry due to changes in the exchange rate. The Tribunal agreed with this view and found no fault in the imposition of duty in foreign currency.

4. Validity of Anti-Dumping Duty Imposition Based on Final Findings:
The appellants argued that the imposition of anti-dumping duty could only be based on the final findings dated 17-2-2009 unless altered by the Appellate Tribunal. The Tribunal noted that the corrigendum issued on 17-4-2009, which included modifications regarding currency, was issued before the final notification of duty on 15-5-2009. There was no material to show that the government had accepted the final findings before the issuance of the corrigendum. Therefore, the imposition of duty based on the corrigendum was valid.

Conclusion:
The Tribunal dismissed the appeals, finding no merit in the arguments presented by the appellants. The Designated Authority had jurisdiction to issue the corrigendum, complied with the High Court's directions, and validly imposed anti-dumping duty in foreign currency. The final notification of duty was based on the corrected findings, and the process followed was within the legal framework.

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