2008 (5) TMI 240 - HC - Customs

Petitioner prays for staying the operation of the New Shipper Not. No.15/23/06-DGAD and permitting provisional assessment petitioner plea that designated authority has been over cautious in terms of grant of confidentially of information disclosed, is not a sufficient reason for granting interim relief - application for interim relief is dismissed in view of Rule 22 of Anti-Dumping Rules, initiation of a new shipper review cannot be with retrospective effect in case of first time exporter

Summary

Issues Involved:
1. Interim relief pending the hearing and disposal of the writ petition.
2. Validity of the New Shipper Notification No.15/23/06-DGAD dated 25th January, 2007.
3. Validity of Notification No.39/07-Cus., dated 9th March, 2007.
4. Interpretation of Rule 22 of the Anti-Dumping Rules.
5. Period of review for new shippers.
6. Provisional assessments and protection of domestic industry.
7. Confidentiality of information disclosed by new shippers.

Issue-wise Detailed Analysis:

1. Interim Relief Pending the Hearing and Disposal of the Writ Petition:
The petitioner sought interim relief to stay the operation of the New Shipper Notification dated 25th January, 2007, and the subsequent Notification dated 9th March, 2007. The court noted that the second prayer was consequential to the first. The interim order passed on 13th February, 2008, was to prevent final orders based on the New Shipper Notification until further hearing.

2. Validity of the New Shipper Notification No.15/23/06-DGAD dated 25th January, 2007:
The Notification initiated a New Shipper Review under Rule 22 of the Anti-Dumping Rules, following an application by exporters from China (Respondent Nos. 3 and 4) who claimed to be exporting to India for the first time. The period for the review was set from 1st February, 2007, to 31st July, 2007.

3. Validity of Notification No.39/07-Cus., dated 9th March, 2007:
This Notification allowed for provisional assessment of goods imported by Respondent Nos. 3 and 4, based on the recommendation of the Designated Authority. The court found this provisional assessment to be a necessary measure to protect the domestic industry while the review was pending.

4. Interpretation of Rule 22 of the Anti-Dumping Rules:
The court examined Rule 22, which allows for periodic reviews to determine individual dumping margins for exporters or producers who had not previously exported to India. The court noted that the Tribunal's decision in H and R Johnson (India) Ltd. v. Designated Authority suggested that the review period should be retrospective. However, the court disagreed with this interpretation, stating that Rule 22 does not support a retrospective review period.

5. Period of Review for New Shippers:
The petitioner argued that a prospective review period allows for manipulation of export prices. The court, however, pointed out that Rule 22(2) prohibits the levy of anti-dumping duties during the review period, allowing for provisional assessments instead. This mechanism was seen as a safeguard against manipulation.

6. Provisional Assessments and Protection of Domestic Industry:
The court emphasized that provisional assessments, as recommended by the Designated Authority and accepted by the Central Government, protect the domestic industry while allowing for a fair review process for new shippers. The court found this approach to be in line with Rule 22(2) and its proviso.

7. Confidentiality of Information Disclosed by New Shippers:
The petitioner contended that the Designated Authority was overly cautious in granting confidentiality to information disclosed by Respondent Nos. 3 and 4. The court acknowledged this concern but did not find it sufficient to grant interim relief. The court also refrained from expressing a final opinion on the confidentiality issue.

Conclusion:
The court dismissed the application for interim relief, allowing the applications filed by Respondent Nos. 1 and 2 to proceed. The court's interpretation of Rule 22 and its provisional assessment mechanism provided a balanced approach to protect both the domestic industry and the interests of new shippers. The court's decision was based on a prima facie reading of Rule 22 and did not constitute a final judgment on the merits of the case.