2000 (2) TMI 310 - AT - Customs

Summary

Issues Involved:
1. Confidentiality of Material Evidence (Rule 7)
2. Fundamental Right to Trade (Article 19(1)(g) of the Constitution of India)
3. Levy of Anti-Dumping Duty (Article 265 of the Constitution of India)
4. Injury Analysis, Causal Link, and Cumulation of Assessment
5. Period of Investigation
6. Currency for Imposition of Anti-Dumping Duty

Issue-wise Detailed Analysis:

1. Confidentiality of Material Evidence (Rule 7):
The appellants challenged Rule 7, which pertains to keeping material evidence confidential, as being bad in law. However, this issue was not pursued before the Tribunal as it was already under consideration in a Writ Petition before the High Court at Delhi. The Tribunal, being a creature of statute, cannot adjudicate on the vires of the provisions of the statute.

2. Fundamental Right to Trade (Article 19(1)(g) of the Constitution of India):
The appellants argued that the final findings violated their fundamental right to trade under Article 19(1)(g) of the Constitution of India. This issue was also not raised before the Tribunal due to the pending Writ Petition before the High Court.

3. Levy of Anti-Dumping Duty (Article 265 of the Constitution of India):
The appellants contended that the levy of anti-dumping duty was contrary to the provisions of Article 265 of the Constitution of India. Similar to the previous issues, this contention was not pursued before the Tribunal.

4. Injury Analysis, Causal Link, and Cumulation of Assessment:
The appellants confined their arguments to points of injury, causal link, and cumulation of assessment. They contended that the Designated Authority (D.A.) should not have cumulated imports from Germany and Korea for injury analysis, as Germany was a competitor to Korea. The Tribunal found that the relevant European Union regulation (Article 3(4) of Council Regulation (EC) No. 384/96-EC) was not parimateria with clause (iii) of Annexure-II of Customs Tariff (Determination of Injury D.A.) Rules. The absence of the phrase "condition of competition between the imported products" in the Indian law made a significant difference. Since the conditions of clause (a) & (b) of III were fulfilled, the appellants' plea was not tenable. The Tribunal upheld the D.A.'s view in cumulating the imports of Germany and Korea for injury assessment.

5. Period of Investigation:
The appellants argued that the D.A. was not right in choosing six months (October 1994 to March 1995) as the period of investigation. The Tribunal noted that there were no specific provisions in the Rules suggesting the period of investigation, but indirect references indicated that it should not be less than six months. The Tribunal found no flaw in the D.A.'s choice of the six-month period for investigation.

6. Currency for Imposition of Anti-Dumping Duty:
The Tribunal observed that the anti-dumping duty should be imposed in dollar terms rather than rupee terms to prevent erosion of the quantum of protection due to exchange rate changes. This view was consistent with a previous decision in the case of M/s Pig Iron Mfrs. Association. The Tribunal modified the order to impose the anti-dumping duty in dollar terms at the exchange rate prevalent at the time of investigation.

Conclusion:
The Tribunal upheld the findings of the Designated Authority on all counts, including the determination of dumping, material injury to the domestic industry, and the causal link between them. The appeal was disposed of with the modification that the anti-dumping duty should be imposed in dollar terms.