2018 (3) TMI 370 - AT - Customs

Anti Dumping Duty - flexible slabs-stock Polyol (PUC) - export from Australia, EU, Singapore - violation of principles of natural justice - Held that - It is a fact that at the time of making disclosure statement, the information available with the DA indicated SEPL and SETL would complete the value chain. However, the DI commenting on the disclosure statement contested the said position and submitted further facts for re- consideration. The said facts were examined on merit and accordingly the DA concluded that certain inferences made earlier require revision and modification. The same was then based on facts made available by the DI as an interested party. The final decision was with the DA on merits. He concluded that there was a gap in the value chain and accordingly, the EQRs filed by the appellants were rejected. We note that the contention of the appellants they should have been provided opportunity again before a final decision is taken, will lead to a situation of cyclical hearing and re-hearing by the DA. It is not anybody s case that the final finding, as such, should be as per disclosure statement only. That will be against the concept of disclosing available facts and calling for comments. Here, it is to be noted that even if further opportunity is provided to rebut the statements of the DI after the final disclosure, the same will be contrary to time-limit of 40 days for filing EQR by the interested parties. It would appear that the appellants were having different related entities managing in different inter-connected operations. They should have been well aware of the implications of such inter-connection in the analysis of AD duty investigation. We also note that the original investigation in the present case was concluded in January, 2015 and AD duty was imposed in April, 2015. The appellants had provision of mid-term review in terms of Rule 23 of the AD Rules. Appeal dismissed - decided against appellant.

Summary

Issues:
Challenging imposition of Anti-Dumping (AD) duty based on violation of principles of natural justice by Designated Authority (DA). Restoration of appeals after disposal due to pending writ petitions. Allegation of non-cooperation by appellants in investigation. Discrepancies in findings of DA regarding related entities. Compliance with Customs Tariff Act and Rules by DA.

Analysis:

1. Violation of Principles of Natural Justice: The appellants contested the imposition of AD duty, claiming violation of principles of natural justice by the DA. They argued that essential facts forming the basis for treating them as non-cooperative were not disclosed, denying them the opportunity to contest erroneous facts relied upon by the DA. The appellants highlighted discrepancies in the findings of the DA, emphasizing the importance of disclosure under Rule 16 of the Customs Tariff Rules.

2. Restoration of Appeals: The appeals were initially disposed of due to pending writ petitions filed by the appellants in the Hon'ble Delhi High Court. Upon the High Court's decision to decline entertaining the petitions and granting liberty to approach CESTAT, the appellants filed applications for restoration of their appeals. The Tribunal restored the appeals for final decision, considering the considerable time lapsed since the introduction of the levy.

3. Compliance with Customs Tariff Act: The DA, in accordance with the Customs Tariff Act and Rules, followed statutory procedures, including issuing questionnaires to obtain necessary information for the investigation. The DA defended his findings, stating that all procedures were duly followed as per norms. The DA's actions were supported by the Revenue's authorized representative and the domestic industry.

4. Discrepancies in Findings Regarding Related Entities: The appellants raised concerns about the DA's findings regarding related entities involved in the manufacturing and sale of the subject goods. They argued that a holistic picture of the value chain involving closely related parties was necessary for a proper decision. The non-submission of essential questionnaire responses by certain entities led to gaps in the value chain analysis, affecting the determination of injury and dumping margin.

5. Final Decision: After hearing all parties and analyzing the facts and legal positions, the Tribunal concluded that the appellants' appeals lacked merit in contesting the final finding and customs notification imposing AD duty. The Tribunal dismissed the appeals, emphasizing the importance of disclosing facts for comments and the need for a complete value chain analysis in such investigations.

This detailed analysis of the judgment highlights the key legal issues involved, the arguments presented by the parties, and the Tribunal's decision based on the facts and legal principles discussed during the proceedings.