2019 (6) TMI 1249 - HC - Customs

ADD - Sunset review - invocation of provisions of section 9A of Custom Tariff Act and Rules - imports of Ductile Iron Pipes originating in or exported from China PR - HELD THAT - The position of law in respect of the remedies on final findings is now clear. The decisions of Supreme Court in respect of JINDAL POLY FILM LTD. VERSUS DESIGNATED AUTHORITY ANR. 2018 (9) TMI 1294 - DELHI HIGH COURT have been cited for contending that the alternative remedy in terms of Section-9C of the Act may persuade this Court in not interfering with the final findings. The judgments cited at the bar are of Delhi High Court and there cannot be any dispute to the proposition that the final finding in fact is amounting to determination or review regarding the existence, degree and effect of any dumping in relation to import of any article and hence, it may not have to await the formal order by the Central Government of accepting the same and issuing notification based thereupon. This Court is of the view that the Court at this stage need not go into the aspect of the tribunal s power to issue direction to the Central Government in exercise of the power u/s.9C(3) for extending the anti dumping duty notification. The vital facts and time-line of the instant case are itself sufficient to indicate that the remedy of appeal in a present case could not have been said to be an efficacious remedy so as to give sufficient opportunity to the petitioner for seeking appropriate relief after availing the opportunity of putting forward their case. The impugned Final Finding recorded in the Notification dated 01.04.2019, cannot be said to be strictly in accordance with the provision of Rule 23 of the Rules, as there is non-advertance to the material placed on record and there is non- compliance with the principle of natural justice as no requisite information was made available and the conclusions are not supported by the material on record - we are left with no other alternative, but to remand back the matter to the concerned authority after quashing and setting aside the same for reconsideration on the aspects which have been mentioned herein above and record its finding, as the extended period of notification of anti dumping duty is ending, the same is also required to be extended for appropriate time so that assessing the material and recording the final findings afresh could be undertaken meaningfully and without jeopardizing the parties right and contentions and rendering it infructuous. In that view of the matter, the respondent no.1 is hereby directed to to issue notification extending the anti dumping duty on the product in question, till the final findings are rendered. Petition allowed by way of remand.

Summary

Issues Involved:
1. Maintainability of the petition under Article 226 of the Constitution of India.
2. Alleged breach of principles of natural justice and procedural requirements by the Designated Authority.
3. Validity of the Final Findings dated 01.04.2019 by the Designated Authority.
4. Determination of normal value, export price, and dumping margin.
5. Likelihood of continuation or recurrence of dumping and injury.
6. Extension of anti-dumping duties pending the final determination.

Issue-wise Detailed Analysis:

1. Maintainability of the Petition:
The petitioner argued that the Special Civil Application is maintainable under Article 226 of the Constitution of India due to the lack of an efficacious alternative remedy. The petitioner cited the Supreme Court's judgment in Kumho Petrochemicals to argue that the tribunal's power to confirm, modify, or annul orders would be rendered meaningless if duties lapsed during the pendency of the appeal. The petitioner also contended that the tribunal would not have been able to dispose of the matter within the required timeframe, making the alternative remedy ineffective. The Court accepted these arguments, noting that the appellate remedy under Section 9C of the Customs Tariff Act was not efficacious in the circumstances of this case.

2. Breach of Principles of Natural Justice and Procedural Requirements:
The petitioner alleged that the Designated Authority failed to disclose the methodology adopted in constructing the normal value and dumping margin, used unreliable import data, and ignored submissions and evidence provided by the petitioner. The Court found merit in these allegations, noting that the Designated Authority did not adequately address the petitioner’s submissions and failed to provide a transparent and reasoned analysis.

3. Validity of the Final Findings:
The petitioner challenged the Final Findings dated 01.04.2019, arguing that they were perverse, inconsistent with the rules, and issued with a prejudiced mind. The Court agreed, finding that the Final Findings were not supported by the material on record and that the Designated Authority had not followed proper procedures, including the non-disclosure of the methodology used and the failure to consider relevant data and submissions.

4. Determination of Normal Value, Export Price, and Dumping Margin:
The petitioner contended that the Designated Authority erred in its determination of the normal value and export price, leading to an incorrect calculation of the dumping margin. The Court noted discrepancies in the methodology and data used by the Designated Authority and found that the petitioner’s concerns were not adequately addressed. The Court highlighted that the methodology for determining the normal value was not disclosed to the petitioner, and the export price was calculated based on unreliable data.

5. Likelihood of Continuation or Recurrence of Dumping and Injury:
The petitioner argued that the cessation of anti-dumping duties would likely lead to the continuation or recurrence of dumping and injury. The Court found that the Designated Authority did not properly assess the likelihood of dumping and injury, failing to consider relevant evidence such as surplus capacities in China and the price attractiveness of the Indian market. The Court noted that the Designated Authority's conclusions were not supported by a thorough analysis of the available data.

6. Extension of Anti-Dumping Duties Pending Final Determination:
The petitioner sought an extension of the existing anti-dumping duties pending the final determination of the case. The Court directed the Designated Authority to undertake a fresh examination of the matter and issue new final findings by 15.09.2019. The Court also directed the Ministry of Finance to extend the anti-dumping duties until the new final findings were issued, ensuring that the petitioner’s interests were protected during the review process.

Conclusion:
The Court quashed the Final Findings dated 01.04.2019 and remanded the matter back to the Designated Authority for reconsideration in accordance with the observations made. The Court directed the Designated Authority to complete the process by 15.09.2019 and the Ministry of Finance to extend the anti-dumping duties accordingly. The petition was allowed, and the Court rejected the respondents' request for a stay of the order.