2016 (11) TMI 88 - AT - Customs

Imposition of ADD - rubber chemicals - imported from China PR and Korea RP - N/N. 4/2016 - CUS (ADD) dated 29/1/2016 of Ministry of Finance - principles of natural justice - Held that - in the first round of appeal, the Tribunal examined two issues for decision. The first one being the correctness of cost construction for production of 6 PPD (one of the subject goods) for arriving at normal value and consequently the dumping margin and injury decision on the said goods. After elaborate discussion, the Tribunal recorded that the DA rightly rejected the price of 4 ADPA from Sinorgchem and after for construction of normal value based on the international price of 4 ADPA which is a main raw material for 6 PPD. The Tribunal upheld the rejection of 4 ADPA price from China and arriving of normal value based on international price of 4 ADPA. Hence, the issue relating to methodology adopted by the DA in constructing the normal value for the appellants has reached finality. The conclusion of the Tribunal has not been challenged before any higher judicial forum. On the second issue, the Tribunal observed that the DA should have made adequate disclosure and call for information/comments from the interested parties regarding evidence of international price of 4 ADPA. For this limited purpose, the matter was remanded to the DA. The background data for fixing normal value, export price and dumping margin are to be made to all interested parties. Admittedly, the directions of the Tribunal have been complied with fully. In such situation, we find that there is no merit in the present appeals which pleads to over throw the original finding of the DA which was affirmed by the Tribunal earlier, in this second round of litigation. No merit in the present appeal - appeal dismissed - decided against Appellant.

Summary

Issues:
Delay in filing appeals, violation of principles of natural justice by the Designated Authority (DA), validity of the finding regarding construction of cost of production of 6 PPD.

Analysis:
1. Delay in filing appeals: The appeals were filed against the final finding of the Designated Authority (DA) and Notification No. 4/2016 - CUS (ADD) dated 29/1/2016. There was a delay of more than three months in filing the appeals, but the delay was condoned by the Tribunal. The appellants had initially challenged the Customs Notification before the Supreme Court, which directed them to file appeals before the Appropriate Authority within two weeks. The Tribunal considered this and decided to take up the appeals for a decision on merit.

2. Violation of principles of natural justice: The appellants argued that there was a violation of principles of natural justice by the DA in the original proceedings, making the findings bad in law. They contended that the original finding could not be cured and sustained in the remand proceedings. However, the DA had complied with the Tribunal's directions regarding disclosure of information to affected parties and post-decisional hearing. The appeal was specifically on the validity of the finding regarding the construction of the cost of production of 6 PPD.

3. Validity of the finding regarding construction of cost of production of 6 PPD: The Tribunal had examined two issues in the first round of appeal. Firstly, the correctness of the cost construction for the production of 6 PPD for arriving at normal value, dumping margin, and injury decision. The Tribunal upheld the rejection of the price of 4 ADPA from China and the construction of normal value based on the international price of 4 ADPA. This issue had reached finality and was not challenged before any higher judicial forum. Secondly, the Tribunal observed that the DA should have made adequate disclosure and called for information/comments from interested parties regarding the evidence of the international price of 4 ADPA. The matter was remanded to the DA for this purpose, and the directions of the Tribunal were fully complied with. Therefore, the present appeals, which sought to overthrow the original findings of the DA, were found to have no merit in this second round of litigation.

4. Conclusion: Considering the factual position and the arguments presented, the Tribunal found no merit in the present appeals and dismissed them. The application for stay filed along with the appeals was also disposed of. The order was pronounced in the open court on 09/09/2016.