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TMI Blog2003 (6) TMI 212X X X X Extracts X X X X X X X X Extracts X X X X ..... l findings and imposed duties at the rates recommended in the final findings (under the above mentioned Customs Notification). The first appellant, M/s. Exide Industries Ltd., is a domestic manufacturer lead acid battery, the second appellant, M/s. Rahimafrooz Batteries Ltd., is a manufacturer of said batteries in Bangladesh, and the third appellant, M/s. SBS Enterprises, Calcutta, is an Indian importer of the said batteries from Bangladesh. 2. We take up the appeal of M/s. Exide Industries Ltd. first. The grievance raised in this appeal is the exclusion from anti-dumping duty of the exports of industrial batteries manufactured by three Chinese manufacturers. Serial No. 1 of Notification No. 1/2002, dated 2-1-2002 is reproduced below in order to appreciate the objection : Table II S. No. Name of the Country Type of battery Exporter/Manufacturer Amount (US $ per Kg.) (1) (2) (3) (4) (5) People s Republic of China (a) Industrial 1. M/s. Shenyang Matsushita Storage Battery Co. Ltd. (SLMB) manufacturer or exports through trading company, namely, M/s. Panasonic Industrial Asia Pte. Ltd., Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of imposing anti-dumping duty on imports from China, inasmuch as imposition of duty on supplies from some sources is rendered ineffective by the untaxed supply of dumped batteries from some manufacturers. The learned counsel, therefore, submitted that the exception made in favour of the aforesaid three Chinese manufacturers should be removed and all supplies from China dealt with in the same manner. 3. The counsel representing the excluded Chinese units have strongly contested the plea made on behalf of the domestic industry. It is their contention that these units, though located in China, are all run according to market principles and are, therefore, not liable to be treated along with other Chinese units; that such units are required to be treated in the same manner as market economy country units, with regard to normal value in view of the amendments under Notification No. 28/2001, dated 31st May, 2001 and Notification No. 1/2002-Customs (N.T.), dated 4th January, 2002. The learned counsel has submitted that the units in question had furnished full data about all aspects of their production and pricing in reply to the questionnaire of the Designated Authority. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignated Authority, therefore, proceeded with the investigation without taking into account the requirements of notification dated 31-5-2001, and issued final findings on 7-12-2001. The learned counsel, however, admitted that as a matter of fact, the Designated Authority had conducted and concluded the investigation without taking into account the requirements under notification dated 31-5-2001 inasmuch as the Designated Authority had not gone into the aspect of China being a non-market economy country or the method of accounting and management resorted to by the individual companies under investigation. 5. A mere glance at the relevant dates would show that well before the start of the present investigation, Notification dated 15-7-1999 was in place and this notification laid down an alternative basis for determination of normal value in case of imports from non-market economy countries. A perusal of the definition of normal value under Section 9A(1)(c) and the amended provision under Notification dated 15-7-1999 makes it clear that standard for determinations of normal value under the two provisions are very different. For the determination of normal value under Section 9A(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clude a reasonable profit margin. An appropriate market economy third country shall be selected by the Designated Authority in a reasonable manner keeping in view the level of development of the country concerned and the product in question and due account shall be taken of any reliable information made available at the time of selection. Account shall also be taken within time limits where appropriate, of the investigation if any made in similar matter in respect of any other market economy third country. The parties to the investigation shall be informed without unreasonable delay the aforesaid selection of the market economy third country shall be given a reasonable period of time to offer their comments. Further, several months before the conclusion of the investigation and issue of final findings, notification dated 31-5-2001 had been issued naming China as one of the non-market economy countries. Still the investigation proceeded without satisfying the requirements under these notifications. We also note that this is not a case where the requirements of the notifications had been met in substance, and the final findings only failed to note the same. A perusal of the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he serious legal flaw involved is the question as to how credible is the exclusion of these three units. As has already been noted, the rule prescribes a different standard. If that standard is to be varied, the units in question should establish that they are run according to market principle, a strict standard. The investigation has excluded the three units without the necessary scrutiny. We are, therefore, of the opinion that the exclusion of the three units in question from the scope of the anti-dumping duty has to be held as clearly unsustainable. They also are required to be treated in the same manner as other manufacturers located in the People s Republic of China. Such an action is in conformity with the legal provision in Section 9A(1)(c) for determination of one single normal value for a country or territory. Of course, if these units are indeed convinced about the merits of their claim that they are run on purely commercial lines, they can seek a review of their cases and the rules clearly provide for the authority considering those requests. 6. Now we take up for consideration the appeal of M/s. Rahimafrooz Batteries Ltd. In this case, the appellants submitted some da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 150/-, a piece, a truck battery of 180 KMPH can cost Rs. 6,500/-. It has been submitted that treating each type of battery as equivalent in terms of numbers would yield highly skewed results. 7. We are not able to agree with the contention raised by the exporter from Bangladesh. Apart from the dictionary definition of volume, it is the norm that turnovers, trade volumes etc. are expressed in terms of their value. Further, as pointed out by the learned counsel for the Designated Authority and the domestic industry going by mere members can give very unreliable results in analysis. In these circumstances, the method adopted by the Designated Authority for determining the volume of exports into India for determining whether the said exports are de-minimis is required to be confirmed. We do so. 8. The third appellant, M/s. S S Enterprises, is an importer of Bangladesh Batteries. Their contention is the same as that of supplier from Bangladesh. As already stated, there is no merit in that submission. 9. In view of our above findings on the three appeals, the appeal of M/s. Exide Industries Ltd. is allowed and the exemption from anti-dumping duty provided to the aforesaid thr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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