2022 (3) TMI 16 - HC - Customs

Levy of ADD - determination on the non-injurious price - extraordinary transactions due to COVID pandemic situation - It is the contention of the petitioners that the Covid19 pandemic period for the purpose of all activities including commercial activities may contain factual and circumstantial inputs which may be at a variance compared to such factual and circumstantial inputs pertaining to a normal period - HELD THAT - It is the apprehension of the petitioners that the disclosure statement dated 02.02.2022 in the manner as it exists as on today, if leads to a final determination on the non-injurious price which may ultimately be the basis for imposition of the anti dumping duty and which would remain in force for a period of five years since its determination would adversely affect the petitioners inasmuch as the duty imposed may be on the basis of certain factual and circumstantial inputs which were at a variance with that of what would have been for a normal period. Without expressing any view on the merit of such claim, if certain factual and circumstantial inputs pertaining to the Covid19 pandemic period which may be at a variance from the inputs that may have been in the normal period are made the basis for the final determination of the non-injurious price as well as the consequential anti dumping duty that may be imposed may be incorrect. The petitioners claim that they have already submitted a representation dated 09.02.2022 before the designated authority on the issue as to whether any incorrect factual and circumstantial inputs were made the basis of arriving at the disclosure statement. As incorporation of incorrect factual and circumstantial inputs to arrive at the non injurious price may lead to an incorrect imposition of anti dumping duty, the interest of justice would be met on the designated authority giving a due consideration to such representation of the petitioner and pass a reasoned order thereon - It is stated that some of the issues pertaining to the factual and circumstantial inputs which otherwise are provided by the domestic industry can also be verified from the contemporary data on the same transaction which may be available with the GST department and in order to arrive at a correct factual determination, such data may also be taken into consideration. The reasoned order as required be passed as expeditiously as possible so that the process initiated under the law is not inhibited in any manner. In doing so, if necessity arises, the respondent No.3 may also be given an opportunity to substantiate their version for the factual and circumstantial inputs - petition disposed off.

Issues:
1. Interpretation of Section 9A of the Customs Tariff Act, 1975 regarding anti-dumping duty imposition.
2. Determination of non-injurious price of imported articles.
3. Compliance with Annexure-1 and Rule 8 of the Customs Tariff (Identification, Assessment, and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
4. Initiation of investigation under Rule 5 of the AD Rules of 1995.
5. Impact of Covid19 pandemic on factual and circumstantial inputs for anti-dumping duty determination.
6. Submission of representation before the designated authority.
7. Consideration of representations and passing reasoned orders.
8. Verification of factual and circumstantial inputs from contemporary data.
9. Compliance with Clause 4 of the disclosure statement dated 02.02.2022.
10. Timely and expeditious passing of reasoned orders by the authorities.

Analysis:
1. The judgment delves into the interpretation of Section 9A of the Customs Tariff Act, 1975, which allows the imposition of anti-dumping duty on imported articles sold below their normal value to protect domestic industries. The purpose is to safeguard local industries engaged in producing similar articles from unfair competition.

2. The determination of the non-injurious price of imported articles is crucial for imposing anti-dumping duty. Compliance with Annexure-1 and Rule 8 of the AD Rules of 1995 is necessary to ensure accuracy in information provided by interested parties during investigations.

3. The initiation of investigations under Rule 5 of the AD Rules of 1995 requires a written application from or on behalf of the domestic industry. The process involves notifying exporters, governments of exporting countries, and other interested parties to participate in the investigation.

4. The judgment addresses the impact of the Covid19 pandemic on factual and circumstantial inputs for anti-dumping duty determination. The court emphasizes the need for accurate and relevant data, especially during exceptional periods, to prevent incorrect imposition of duties.

5. Petitioners submitted representations before the designated authority regarding potential incorrect inputs in the disclosure statement. The court stresses the importance of considering all issues raised in the representations and passing reasoned orders instead of mechanical decisions.

6. Verification of factual and circumstantial inputs from contemporary data, including data available with the GST department, is recommended to ensure accurate determination of non-injurious prices and anti-dumping duties.

7. Compliance with Clause 4 of the disclosure statement dated 02.02.2022 is highlighted, emphasizing the need to consider all replies on merits for arriving at a final decision. Timely and expeditious passing of reasoned orders by the authorities is crucial to maintain the integrity of the investigative process.

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