2018 (10) TMI 1569 - HC - Customs

Anti-Dumping duty - import of Uncoated Copier Paper - data provided by the petitioner rejected by the Designated Authority while determining margin of dumping - Section 9A of the Customs Tariff Act, 1975 - petitioner s grievance is with respect to certain observations in the final disclosure statement, made under Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty of AntiDumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. Held that - The primary mandate is that the DA is to determine, firstly the margin of dumping and also deduce the export price from the available data. The petitioner s objection to the impugned order is that the 40% of its production, imported into India through a Singapore trading entity (apparently funded by Chinese financers) are not related transactions. Its emphasis is upon its admitted capacity of production and the ex-factory price the facts relating to which, it says was, gathered by the Indian authorities upon inspection. The complaint of the Indian manufacturers, on the other hand is that in the absence of full details with respect to the sale price, ex-factory, at which the goods were sold to the Singapore trading concerns, and then imported into India, the entire picture would not be revealed. It is based largely on the latter argument that the DA appears to have concluded that the petitioner s data cannot be analyzed, and taken into consideration for arriving at its export price and if at all the margin of dumping. Undoubtedly, this Court while exercising judicial review jurisdiction, in on-going quasi judicial or statutory proceedings, has to be nuanced and circumspect. It cannot, per se, express its opinion on the merits of the dispute. At the same time, the course of action advocated on behalf of the DA and the complainants cannot be entirely accepted. If the record discloses a basic flaw or irregular approach by the DA in the proceedings, the Court under Article 226 is not helpless. This Court is of the opinion that the petitioner s grievance can be best addressed by affording it an opportunity of making, what according to it, are relevant submissions, in writing to the Designated Authority with respect to the disclosure statement - The timeline which is indicated by this Court is tentative; in the event that the time to conclude the proceedings and render final findings is extended, under the proviso to Rule 17 of the Rules, it is open to the Designated Authority to extend the time suitably. Petition disposed off.

Summary

Issues:
Petitioner's grievance regarding observations in the final disclosure statement made under Rule 16 of the Customs Tariff Rules by the Designated Authority.

Analysis:
The judgment revolves around the petitioner's objection to certain observations in the final disclosure statement issued by the Designated Authority (DA) under Rule 16 of the Customs Tariff Rules. The DA's observations pertained to the export price for the petitioner's group of companies involved in the export of "Uncoated Copier Paper" to India. The petitioner argued that the DA had relevant material regarding production costs and should not have made adverse observations. The petitioner emphasized that the DA had sufficient data, including information gathered during visits to the petitioner's facilities in Indonesia, to determine any margin of dumping accurately. The petitioner also highlighted past instances where the DA had differentiated between manufacturers and traders in determining duty margins based on known production costs.

The petitioner contended that the adverse observations in the disclosure statement could lead to significant prejudice, resulting in higher anti-dumping duties. On the other hand, the DA and domestic manufacturers opposed the petitioner's plea, stating that the disclosure statement was a preliminary step and that the final findings could differ. They argued that the petitioner had appellate remedies available at a later stage and that any intervention at this point would be premature.

The judgment delves into the relevant legal provisions, including Rule 16 of the Customs Tariff Rules and Section 9A of the Customs Tariff Act, which empower the DA to determine export prices and margins of dumping. The Court acknowledged that while it must exercise caution in ongoing proceedings, it has the authority to intervene if there are flaws in the DA's approach. The Court directed the petitioner to submit written submissions to the DA regarding the adequacy of the available data for determining export prices, specifically focusing on import data related to a Singapore trading entity. The DA was instructed to consider these submissions, along with the complainant's response, and render final findings promptly.

In conclusion, the Court provided a procedural remedy to address the petitioner's concerns, allowing for submissions and responses to be considered by the DA before final findings are issued. The judgment emphasized the need for a fair process and reserved all rights and contentions of the parties, clarifying that no findings on the merits of the disclosure statements were expressed.