2006 (9) TMI 180 - SC - Customs

Whether the dumping of goods is causing injury to the domestic industry by analyzing various injury parameters mentioned in Annexure II to the Rules? Held that - Excessive and unwarranted claim of confidentiality defeats the right to appeal. In the absence of knowledge of the consequences, grounds, reasoning and methodology by which the DA has arrived at its decision and made its recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or this Court. Although this judgment may not benefit the appellant for the past period, we have thought it necessary to lay down the law in this connection since the Anti-Dumping Law operates continuously and on a day-to-day basis and hence its principles have to be clarified. The Anti-dumping Law is extremely important for the country s industrial progress and hence there should be total transparency and fairness in its implementation. The Anti-dumping Law is, therefore, a salutary measure which prevents destruction of our industries which were built up after independence under the guidance of our patriotic, modern minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialization in our country, to make India a modern, powerful, highly industrialized nation. With the above observations this appeal stands disposed of.

Summary

Issues involved:
1. Correct principles for determination of the Non-Injurious Price (NIP) of Pure Terephthalic Acid (PTA).
2. Scope of Rule 7 of the Customs Tariff (Identification, Assessment, and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.

Issue-wise detailed analysis:

1. Correct Principles for Determination of the Non-Injurious Price (NIP) of PTA:

The appellant, a multi-product company, argued that the Designated Authority (DA) should have used the market value of electricity and other inputs produced captively by the appellant while computing the NIP of PTA. The DA, however, used the actual cost of production of electricity from the appellant's captive power plant. The court held that the DA erred in law, as the determination of injury and computation of NIP should be for the domestic industry as a whole, not for individual companies. The court emphasized that the market price of inputs should be considered to avoid discrimination between integrated and non-integrated companies. The court stated, "There has to be a single NIP for a product as envisaged by the Rules, and not several NIPs for the same product."

The court also found that the DA's method of computing NIP based on the best capacity utilization over the past three years, rather than actual capacity utilization during the investigation period, was arbitrary and incorrect. The court noted that "the apportionment of the fixed costs has to be necessarily done on the basis of actual production during the period of investigation and not an assumed level of capacity utilization."

2. Scope of Rule 7 of the Customs Tariff (Identification, Assessment, and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995:

The court addressed the issue of confidentiality under Rule 7, stating that the DA claimed confidentiality regarding the data supplied by the appellant itself, which was not warranted. Rule 7 allows for confidentiality only if the party providing the information requests it and satisfies the DA of its confidentiality. The court noted, "Rule 7 does not contemplate any right in the DA to claim confidentiality." The court emphasized that excessive and unwarranted claims of confidentiality defeat the right to appeal, as parties cannot effectively exercise their right to appeal without knowledge of the DA's reasoning and methodology.

The court referenced the case of Sterlite Industries (India) Ltd. v. Designated Authority, where it was held that the DA must be satisfied about the confidentiality of the material and that non-confidential summaries should be provided where possible. The court concluded that the DA's failure to provide detailed costing information to the appellant was illegal and not contemplated by Rule 7.

Conclusion:

The appeal was disposed of with the court directing the DA to revise the NIP by considering the market price of electricity and the actual capacity utilization during the investigation period. The court also instructed the DA not to misuse Rule 7 by keeping findings confidential from the party that supplied the information. The court emphasized the importance of transparency and fairness in the implementation of the Anti-Dumping Law to support the country's industrial progress.