2018 (2) TMI 1994 - HC - Customs

Imposition of ADD - import of Acyclic alcohols i.e., Iso Nonanol (INA) having Carbon No.9 - initiation of investigation for imposition of anti-dumping duty on dumped imports - HELD THAT - The undisputed facts are that the petitioner company submitted applications dated 18.10.2016 and 02.12.2016 before the 2nd respondent under Rule 5 of the Rules seeking initiation of investigation for imposition of anti-dumping duty on the imports of 2-EH, INA and 2-PH, which are the like articles. Though the Carbon numbers of the said acyclic alcohols differ from one another, they are being treated as like articles. Even the 2nd respondent vide notification No.63/1/2001-DGAD considered and held that Isononanol imported into India and 2EH produced by the domestic industry are like articles. The 2nd respondent failed to appreciate the evidence/information furnished by the petitioner company that they are interchangeable in usage and are considered to be substitute products. Even the notification issued by the 2nd respondent held that Isononanol is a like article to 2EH produced by the domestic industry and in the absence of 2EH, INA and 2PH can be used as raw materials for manufacturing plasticizers. From a perusal of the impugned proceedings none of the aspects referred and placed before the 2nd respondent authority by the petitioner company are neither considered nor appreciated. In fact, there is no mention about any of these aspects so as to initiate the investigation for imposition of antidumping duty on the import of INA and 2PH more particularly in the light of the definition as contemplated under Rule 2(d) of the Rules as well as the notification issued by the 2nd respondent vide No.63/1/2001-DGAD. This clearly establishes that the 2nd respondent has not considered any of these aspects and in a mechanical manner rejected the applications of the petitioner and in a routine course issued the impugned proceedings on a nonexisting ground that the authority does not find it appropriate to initiate anti-dumping investigation concerning imports of the products not being produced by the petitioner - the ground on which the impugned proceedings are passed is not available and alien to the language employed in Rule 2(d) of the Rules for considering like article and contrary to the determination made by the 2nd respondent in notification No.63/1/2001-DGAD. The 2nd respondent is hereby directed to consider the applications dated 18.10.2016 and 02.12.2016 filed by the petitioner company afresh after evaluation of the entire information placed before him in accordance with the provisions of the Act and the Rules - Petition allowed.

Summary

Issues Involved:
1. Legality of the office memorandum rejecting the application for anti-dumping investigation.
2. Definition and interpretation of "domestic industry" and "like article" under the Customs Tariff Act, 1975 and the Rules.
3. Whether the petitioner had the standing to request an anti-dumping investigation for products not produced by them but considered like articles.

Issue-wise Detailed Analysis:

1. Legality of the Office Memorandum:
The petitioner challenged the office memorandum dated 07.06.2017, issued by the 2nd respondent, which rejected their application for initiating an anti-dumping investigation. The petitioner argued that the memorandum was "ex facie illegal, arbitrary and contrary to the provisions of the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on Dumped Article and for Determination of Injury) Rules, 1995." The court found that the 2nd respondent failed to consider the voluminous material and evidence submitted by the petitioner, including the interchangeable use of the products and their classification as substitute products. The court held that the 2nd respondent's decision was made in a "mechanical manner" and was "alien to the language employed in Rule 2(d) of the Rules."

2. Definition and Interpretation of "Domestic Industry" and "Like Article":
The petitioner argued that they constituted a "domestic industry" under Rule 2(b) of the Rules and that the products in question (2-EH, INA, and 2-PH) were "like articles" under Rule 2(d). The court noted that the definitions under these rules were crucial for determining whether the petitioner had the standing to request an anti-dumping investigation. The court emphasized that "like article" includes not only identical products but also those with closely resembling characteristics. The 2nd respondent had previously determined in a notification that Isononanol (INA) and 2-Ethyl Hexanol (2-EH) were like articles, which supported the petitioner's claim.

3. Standing to Request Anti-dumping Investigation:
The petitioner argued that they were entitled to request an anti-dumping investigation for products not produced by them but considered like articles. The court found that the 2nd respondent's rejection of the petitioner's application on the ground that they did not produce INA and 2-PH was contrary to the provisions of the Act and the Rules. The court highlighted that the petitioner had provided substantial evidence showing that these products were interchangeable and used as substitutes, thus meeting the criteria for "like articles." The court concluded that the 2nd respondent should have initiated the investigation based on the material provided by the petitioner.

Conclusion:
The court set aside the impugned office memorandum dated 07.06.2017 and directed the 2nd respondent to reconsider the petitioner's applications dated 18.10.2016 and 02.12.2016. The 2nd respondent was instructed to evaluate the entire information in accordance with the provisions of the Act and the Rules, particularly Rules 2(b) and 2(d), and to pass appropriate orders within one month from the date of receipt of the court's order. The writ petition was allowed, and no costs were awarded.