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2017 (9) TMI 1207 - AT - CustomsChallenge to the levy of anti dumping duty - Interpretation of statute - scope of New Shippers - Rule 22 of Customs Tariff (Identification, Assessment and Collection of AD Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - DA held that the applicants therein cannot be treated as New Shippers - eligibility for individual dumping margin - imposition of ADD on the vitrified/porcelain tiles imported from China PR - N/N. 73/2003-Cus ADD dated 1.5.2003 and N/N. 82/2008-Cus AD dated 27.06.2008 - time limitation. Delay in finalizing the NSR - Held that - Admittedly, Rule 22 itself does not provide for any statutory time limit for completion of review. We also note that there has been delay in completion of the NSR - While we note that there is a delay in the proceedings, which concluded in the final finding now under challenge, what is to be considered is whether in the absence of any statutory limitation, the appellants were put to any disadvantage due to such delay. It is necessary to note that immediately on the application filed by the applicant and initiation of NSR by the DA, order of provisional assessment has been issued by the competent authority so that the interest of the appellant shall be safeguarded. In case finally the authorities hold that the appellants are eligible for individual rate of AD duty or no AD duty, then all the benefits so available cannot be denied to the appellants. Keeping these facts in mind, we hold that delay in issuing the final findings cannot be the sole reason to set aside such final finding. This is more so in the absence of any statutory time limit under Rule 22 of the AD Rules. It is contended by the appellants that in second sunset review, the exports from China, PR have been found to involve no dumping during 2012-13 and accordingly, the request for sunset review was rejected. In view of the above fact, there is no dumping or injury and accordingly, it was pleaded that the NSR should have given a finding to that effect - Held that - we are dealing with NSR, which is for the period of investigation from 1.5.2012 to 31.10.2012. During the said period, the AD duty was validly levied on the imports of the subject goods and the NSR sought was to have a separate finding for the appellants dealing with subject goods exported to India. We note that the reference of the appellant regarding termination of AD duty is not relevant to the issue at hand. The finding on NSR was based on the analysis and facts as recorded by the DA and the termination of the AD duty in 2013 has no implication for the period when the said duty was validly levied. Scope of New Shipper - whether the appellant do not fall within the scope of New Shipper ? - Held that - the DA, after following the procedures laid down in the AD Rules, proceeded to analysis the available record, before concluding the NSR. The crucial point is whether or not the appellants were involved in export of subject goods from the subject country during the earlier period. The DA also conducted though, belatedly, on the spot verification after the consent was given by the appellants - Having examined closely the arguments and facts of the case, we find that the DA did examine the data available to him and arrived at a sustainable and reasonable conclusion on NSR. The appellants are trying to take advantage of non-availability of certain specific data or non-disclosure of certain data to DA, to support their case that the DA cannot make a recommendation unless complete and thorough verification of all the facts are made and supported by the documentary evidences. We find such proposition is not tenable keeping in mind the constraints already noted and also the overall scope of the NSR investigation undertaken by the DA. The change of name of some of the appellants and their interconnectivity in business, as explained by the DA, has formed the foundation for further analysis by the DA in NSR. It is necessary to note here that the appellants did not make full and complete disclosures regarding their period of existence and relationship among themselves. In the absence of full and complete disclosure in a true and transparent manner, it is not open to the appellant to contest the final findings against individual dumping margin. The appellants failed to make all supporting disclosures and the DA correctly relied on available evidence with him to reject the claim for NSR. It is to be noted here that the NSR was initiated as per request of the applicants claiming individual dumping margin. It is apparent that the applicants have to establish their status as new shippers. It would appear that, in the present case, the applicants are substantially shifting the burden on the DA to adduce evidence that they are not new shippers. This is not a tenable proposition. Appeal dismissed - decided against appellant.
Issues Involved:
1. Delay in finalizing the New Shipper Review (NSR). 2. Legality of anti-dumping duty (AD duty) imposition after the second sunset review. 3. Entitlement of appellants to New Shipper Status and individual dumping margin. Detailed Analysis: 1. Delay in Finalizing the NSR: The appellants argued that the NSR, initiated on 18.05.2012, was unduly delayed as the final finding was issued only on 28.03.2016, violating the accelerated basis requirement under Article 9.5 of the WTO Agreement. The Tribunal acknowledged the delay but noted that Rule 22 of the AD Rules does not prescribe a statutory time limit for completing the review. The delay was attributed to various factors, including non-cooperation from the appellants and administrative changes. The Tribunal concluded that the delay alone could not invalidate the final findings, especially since provisional assessment orders were issued to safeguard the appellants' interests. 2. Legality of AD Duty Imposition After the Second Sunset Review: The appellants contended that since the second sunset review found no dumping during 2012-13 and rejected the continuation of AD duty, the NSR should have reflected no dumping or injury. The Tribunal clarified that the NSR pertained to the period from 1.5.2012 to 31.10.2012, during which the AD duty was validly imposed. The termination of AD duty in 2013 was irrelevant to the NSR period. The Tribunal upheld that the NSR findings were based on the analysis and facts of the relevant period, unaffected by the subsequent termination of AD duty. 3. Entitlement to New Shipper Status and Individual Dumping Margin: The appellants claimed eligibility for NSR, asserting they had not exported the subject goods during the earlier period and were entitled to individual dumping margin. The Designated Authority (DA) rejected their claim, citing non-fulfillment of preliminary conditions under Rule 22 of the AD Rules. The DA's findings revealed that the appellants had wider undisclosed relationships and prior involvement in exporting the subject goods under different names. The Tribunal noted the DA's reliance on available data and the appellants' failure to provide complete and transparent disclosures. The Tribunal found the DA's conclusions sustainable, emphasizing that the burden of proof for new shipper status lies with the applicants, not the DA. Conclusion: The Tribunal dismissed the appeals, affirming the DA's findings and the Customs Notification ordering finalization of provisional assessments. The Tribunal held that the delay in NSR proceedings did not vitiate the final findings, the termination of AD duty in 2013 did not affect the NSR period, and the appellants failed to establish their entitlement to new shipper status due to incomplete disclosures.
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