2017 (9) TMI 67 - AT - Customs

ADD - USB flash drives - import from Peoples Republic of China and Taiwan - scope of subject goods under investigation for ADD - appellants submitted that USB flash drives having storage capacity of above 64 GB and USB flash drives of 3.0 specification are not to be included for ADD enquiry - Held that - the technology is dynamic we find no reason to make a distinction based on storage capacity to consider USB flash drives into two categories. It is also to be noted that the inter-changability of higher capacity flash drives if available on competitive price for low capacity usage also cannot be ruled out. It is not incorrect on the part of the DA to consider such dynamic change in technology and potential threat of like products while examining the case for ADD levy. Similar reasoning can be adopted in respect of flash drives with 3.0 specification. The advancement in technology and the possibility of inter-changeable use and threat to USB flash drive of 3.0 specification also requires consideration - we find no merit in the objections raised by the appellants regarding treatment of scope of products under consideration by the DA. Principles of Natural Justice - inconsistency in import data - Held that - the DA did act with deligence while collaborating the data during the course of analyzing the parameters for the need to impose ADD on the subject goods. We also note that many meetings have been held by the DA with interested parties and the aspects of import data have been disclosed and discussed. This is not being denied by any interested party. However the dispute is relating to disclosure of complete transactionwise details. We find such disclosure is governed by the confidentiality condition put in by the DGCIS. We find the non-disclosure of individual transaction details by itself did not vitiate the proceedings of the DA and adversely affected the interest of the appellants - We find no merit in the points raised by the appellants regarding inconsistency in import data and also violation of principles of natural justice. It is noted that import of subject goods from third countries are negligible and could not have caused injury to the DI. The economic parameters of the DI the price under selling price suppression and depression of the subject goods has been examined in detail for different grades of subject goods starting from 1 GB to 64 GB and others of USB flash drives. The inconsistency in analysis as claimed by the appellants are based on comparison of CYBEX import data and DGCIS import data. As already noted that the DA has mainly relied on the data furnished by DGCIS. As such we find no merit in the submission of the appellants that the analysis suffered inconsistency because of inconsistency between date of CYBEX and DGCIS. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Condonation of delay in filing appeals.
2. Scope of products considered for Anti-Dumping Duty (ADD) investigation.
3. Violation of principles of natural justice.
4. Locus-standi of appellants.
5. Injury analysis and price undercutting/underselling analysis.

Detailed Analysis:

1. Condonation of Delay in Filing Appeals:
The appellants filed applications for condonation of delay, arguing that the delay should be counted from the date the Supreme Court reinstated the Designated Authority's (DA) final finding. The court allowed the applications, considering the chronology of events and the Supreme Court's order, and took up the appeals for final disposal.

2. Scope of Products Considered for ADD Investigation:
The appellants contended that USB flash drives with capacities above 64 GB and those of 3.0 specification should be excluded from the ADD investigation. The DA examined the dynamic nature of technology and concluded that no distinction could be made based on storage capacity or technological specifications. The DA's findings stated that all USB flash drives, irrespective of their capacity or specification, are technically and commercially substitutable. The court found no merit in the appellants' objections regarding the scope of products under consideration.

3. Violation of Principles of Natural Justice:
The appellants argued that the DA did not provide transaction-by-transaction import data, which vitiated the proceedings. The DA relied on data from DGCIS and maintained that transaction-level data could not be disclosed due to commercial confidentiality. The court noted that the DA had disclosed relevant non-confidential data and held multiple meetings with interested parties. The court found no violation of natural justice, as the non-disclosure of individual transaction details did not adversely affect the appellants.

4. Locus-Standi of Appellants:
The DA questioned the locus-standi of the appellants, stating that they were neither recognized as producers nor exporters of the subject goods. The court noted that the appellants had participated in the DA's proceedings and were affected by the imposition of ADD. The court decided to consider the appeals on merits, as the status of the appellants was interlinked with their grievances.

5. Injury Analysis and Price Undercutting/Underselling Analysis:
The appellants contested the DA's injury analysis, claiming inconsistencies due to reliance on different data sources (CYBEX and DGCIS). The DA primarily relied on DGCIS data and conducted a detailed examination of the economic parameters of the Domestic Industry (DI). The court found no merit in the appellants' claims of inconsistency and upheld the DA's analysis.

Conclusion:
The court dismissed the appeals, finding no merit in the appellants' arguments on all the issues raised. The miscellaneous applications for stay were also disposed of. The order was pronounced in the open court on 01/08/2017.