2003 (12) TMI 72 - HC - Customs

Summary

Issues Involved:
1. Validity of the Notifications initiating a new shipper review.
2. Whether the initiation of the new shipper review was in mala fide exercise of power.
3. Compliance with Rule 22 of the 1995 Rules.
4. Impact on domestic industry due to suspension of anti-dumping duty.
5. Jurisdiction and procedural aspects related to the new shipper review application.

Detailed Analysis:

1. Validity of the Notifications Initiating a New Shipper Review:
The petitioners challenged the validity of the Notifications dated 23rd May, 2003, and 1st July, 2003, which initiated a new shipper review for a Chinese producer and allowed the goods to be cleared without anti-dumping duty. The court noted that the new shipper review was initiated within 22 days of the final anti-dumping duty imposition. The court determined that the initiation of the new shipper review was justified despite the short interval because the producer had been seeking review since September 2002, and the delay in completing the original investigation justified the prompt initiation.

2. Whether the Initiation of the New Shipper Review Was in Mala Fide Exercise of Power:
The petitioners alleged mala fide exercise of power, arguing that the application for the new shipper review was made before the final anti-dumping duty was imposed, and that the review was initiated with undue haste. The court found no evidence of mala fide intent, stating that the application made before the levy of final anti-dumping duty did not invalidate the application. The court held that the designated authority (DA) was within its rights to keep the application pending until the final duty was imposed and then initiate the review.

3. Compliance with Rule 22 of the 1995 Rules:
The petitioners argued that the DA did not follow Rule 22, which requires a periodic review and satisfaction of certain conditions before initiating a new shipper review. The court clarified that Rule 22 permits periodic review to determine individual margins of dumping for exporters or producers who did not export during the original investigation period and are not related to those who did. The court found that the DA had prima facie satisfaction based on the new shipper's declarations and the absence of contradictory material. The court concluded that the DA's actions were in compliance with Rule 22.

4. Impact on Domestic Industry Due to Suspension of Anti-Dumping Duty:
The petitioners contended that suspending the anti-dumping duty during the review would cause serious injury to the domestic industry. The court acknowledged the petitioners' concerns but emphasized that the law allows for provisional assessment with a guarantee instead of immediate duty collection. The court noted that there was no prima facie evidence of dumping by the new shipper, and the competitive pricing alone could not justify anti-dumping duty. The court suggested that other protective measures could be invoked if the domestic industry faced serious prejudice.

5. Jurisdiction and Procedural Aspects Related to the New Shipper Review Application:
The petitioners questioned the jurisdiction of the DA to entertain the new shipper review application made before the final anti-dumping duty was imposed. The court held that the application did not become non est merely because it was made before the final duty imposition. The court stated that the DA had the discretion to keep the application pending and initiate the review after the duty was imposed. The court also addressed the petitioners' concerns about the lack of declarations from the exporter, Prestige, and found that the producer's (Nanhai's) declarations were sufficient for the review.

Conclusion:
The court dismissed the petition, upholding the validity of the Notifications initiating the new shipper review and allowing the provisional assessment of the goods without immediate anti-dumping duty. The court emphasized the need for expeditious completion of investigations and suggested a reasonable period of three months for new shipper reviews. The judgment will come into effect from 20th December, 2003.