2016 (10) TMI 902 - AT - Customs

Imposition of ADD - SDH Transmission Equipments - import from China - sunset review - N/N. 125/2010 dated 16.12.2010 - while analysing the material injury, the DA has erred in considering undumped import also in such calculation - Held that - the dispute relates to the finding of the DA that there is no dumping of subject goods from Israel. However, we note that the DA recorded that as per the practice the data of entire import volume from Israel has been considered to assess the total demand and to assess injury. The import volume is an important parameter while deciding the material injury to the DI. We note that the appellants could not demonstrate regarding impact of such exclusion of imports in injury analysis. We also note that as regards the volume effect, Annexure-II to the Rules read with Rule 14 makes it clear that volume effect is to be examined in respect of a country after cumulative assessment of imports and not for an individual exporter. Reference can be made to the decision of the Tribunal in Marino Panel Products Ltd. vs. DA 2015 (12) TMI 243 - CESTAT NEW DELHI (LB) . It has not been substantiated before us that ECI Israel is the only exporter of subject goods. As the export volume from a particular country is considered together the DA has taken the total volume of exports from Israel - We do not find any violation as adequate opportunity during all stages of investigation has been given to the appellants. The DA is well within its powers to arrive at the Final Finding based on post disclosure comments received from individual interested parties. The AD Rules do not contemplate another round of exchange of all data, post disclosure, among all the interested parties. In this context, we find no merit in the appellant s plea. Violation of principles of natural justice - Held that - the basis of arriving at the conclusion on the volume effect and price effect has been disclosed to all the interested parties in terms of AD Rules. Transactionwise details of DGCI containing confidential information were not disclosed. We find this has not materially affected the effectiveness of defence by the interested parties. Tariff classification - the main equipment has been correctly categorised and there is no dispute on the same. Regarding parts, the Id. Counsel for the appellant conceded that there is no separate heading for parts of subject goods. However, heading 851770 covers such parts but not exclusive to the subject goods. Hence, he pleaded that the volume data is erroneous with reference to parts. We have noted that apart from tariff heading the data has been analysed based on description of the product also. The data has been accordingly segregated and used for analysis. Extension of AD duty after the expiry of initial notification. The AD duty levied originally expired on 07.12.2014. The extension of duty was made by Notification dated 05.01.2015, after a gap of 29 days - Held that - The appeals are directed against Final Findings dated 05.02.2016 and Customs Notification No. 15/2016-Cus. ADD dated 26.04.2016 and not against the extension notification. Hence, our decision is on impugned Findings and Notification only. Appeal dismissed - ADD rightly imposed - decided against appellant.

Issues:
1. Delay in filing appeals for condonation.
2. Consideration of undumped imports in injury analysis.
3. Disclosure of data related to HETC.
4. Reliance on private reports for volume of imports.
5. Use of consolidated data for tariff headings.
6. Extension of AD duty after expiry.
7. Violation of principles of natural justice.
8. Tariff classification of parts.

Analysis:

1. The appellants requested condonation for a 25-day delay in filing the appeals, citing administrative reasons and pending writ petitions. The Tribunal accepted the explanation and condoned the delay, admitting the appeals for consideration on merit.

2. The main objection raised by the appellants was the consideration of undumped imports in the injury analysis by the Designated Authority (DA). The Tribunal noted that the DA included total imports from Israel to assess injury, as per practice, and found no demonstration of the impact of excluding such imports on injury analysis. The Tribunal referred to relevant rules and previous decisions to support the DA's approach.

3. The appellants alleged non-disclosure of data related to HETC, claiming a violation of Rule 16. However, the Tribunal found that the DA had provided essential facts under consideration to all interested parties and corrected data based on submissions received post-disclosure, without any violation of rules.

4. Concerning the reliance on private reports for the volume of imports, the Tribunal noted that the DA considered various data sources and submissions, including those from interested parties. The Tribunal found no merit in the appellants' argument against the validity of the sunset review based on this ground.

5. The use of consolidated data for two tariff headings was challenged by the appellants. The Tribunal observed that the data was analyzed based on product descriptions and appropriately segregated for injury analysis, dismissing the appellants' contention.

6. The appellants contested the extension of AD duty after the expiry of the initial notification, citing a previous court decision. The Tribunal examined the timeline of the sunset review initiation and the extension notification, concluding that the appeals were directed against the Final Findings and Notification, not the extension, and dismissed the appeals.

7. The appellants alleged a violation of natural justice regarding non-disclosure of DGCI data. The Tribunal found that the DA used consolidated figures provided by DGCI, maintaining confidentiality of transaction-wise details, and concluded that the defense of interested parties was not materially affected.

8. Lastly, the appellants raised concerns about the tariff classification of parts. The Tribunal noted that relevant data was segregated based on product descriptions and correctly analyzed, addressing the appellants' argument.

In conclusion, after a thorough analysis of the issues raised and the DA's Final Findings, the Tribunal found no merit in the appeals and dismissed them, along with the miscellaneous applications for stay.

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