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TMI Blog2015 (9) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... the Designated Authority has relied upon the transactions-wise imports data as new evidence at the fag-end of the investigation without supplying a copy thereof and providing a reasonable period of time to the parties to review and comment upon the new evidence. It is contended that failure to supply the data amounts to denial of a hearing and, as such, the final findings rendered are liable to be quashed. 4. As per the petitioner, the respondent No.5 in its application seeking initiation of inquiry had relied upon the transaction-bytransaction import statistics sourced from M/s. Cybex Exim Solutions (P.) Ltd. which collects data from custom authorities and the said import statistics was raw data and in substantial quantity included data with regard to non-subject goods and, as such, was liable to be rejected/ignored by the competent authority. 5. As per the petitioner, the data furnished by the respondent No. 5 was ultimately rejected and for the first time, at the fag-end of the investigative proceedings, the petitioner came to know on receipt of the disclosure statement on the evening of 05.12.2014 that the Designated Authority had relied on the transactions-by-transactions im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Final Findings:- "Price Undercutting 128. Price undercutting has been assessed by comparing the export price with the domestic selling price in India of the subject goods, during the period of investigation. It would be seen that the landed price of imports is lower than the selling price of the domestic industry for almost all storage capacities of USB flash drives, thus resulting in overall price undercutting. Subject Countries Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 358.40 317.20 255.17 231.24 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 China PR Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Landed Value Rs./NO 352.35 315.28 253.44 234.46 Net Sales realization* Rs./NO *** *** *** *** Price Undercutting Rs./NO *** *** *** *** Price Undercutting % *** *** *** *** Price Undercutting % Range 20-30 40-50 40-50 40-50 Taiwan Particulars Unit 2009-10 2010-11 2011-12 POI (Jan to Dec, 2012) Land ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the subject goods, originating in or exported from the subject countries, was below the non-injurious price of the domestic industry as can be seen in the table below. The Authority further notes that imports from the subject countries individually as well as cumulatively is having underselling effect on the prices of domestic industry. Particulars Unit China Taiwan Subject Countries Non-injurious price** Rs./No. *** *** *** Landed Price (POI) Rs./No. 234.46 226.66 231.24 Price underselling Rs./No. *** *** *** Underselling % *** *** *** Underselling % Range 75-85 80-90 80-90 Note:- *Weighted average Non-injurious price have been determined based on the import volumes of all grades/GBs from the relevant subject country. 9. Learned counsel for the petitioner further contended that throughout the course of investigation spread over a period of 17 months, the investigation had continued on the basis of the data furnished by the respondent No.5, which data was rejected by the Designated Authority at the very last minute and the data sourced by the Designated Authority from the respondent No.4 was introduced in the investigation, for the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to the following decisions: (i) Sterlite Industries (India) Ltd. Versus Designated Authority 2003 (158) E.L.T. 673 (SC); Tribunal Decisions (ii) Kumho Petrochemicals Co. Ltd. Versus National Organic Chemical Industries Ltd. Final Order No. AD/A/54808-5- 4810/2014-CU[DB dated 27/08/2014]; (iii) Fragrances Flavours Association of India versus Designated Authority [2011 (270) E.L.T. 733 (T)]; (iv) Huawei Tech. Co. Ltd .. Versus Designated Authority[ 2011 (273) E.L.T. 293 (Tri.- Del.)]; (v) Leather Cloth & Plastic Mfr. Association Versus Union of India 2012 (282) E.L.T. 438 (Tri. - Del.) 15. To examine the scope of the investigation in an inquiry, reference may be made to the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the "Rules") with regard to the relevant principles governing investigation by the Designated Authority. "5. Initiation of investigation. - (1) Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to - (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries : Provided that the designated author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, shall, upon the designated authority being satisfied as to its confidentiality, be treated as such by it and no such information shall be disclosed to any other party without specific authorization of the party providing such information. (2) The designated authority may require the parties providing information on confidential basis to furnish non-confidential summary thereof and if, in the opinion of a party providing such information, such information is not susceptible of summary, such party may submit to the designated authority a statement of reasons why summarisation is not possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disregard such information. 8. Accuracy of the information. - Except in cases referred to in sub-rule (8) of rule 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c industry. (2) The final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information regarding- (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the product which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) Considerations relevant to the injury determination; and (v) the main reasons leading to the determination. (3) The designated authority shall determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence, degree and effect of any alleged dumping of any article it shall issue a public notice notifying its decision. The Public notice should inter alia, contain adequate information on, amongst other, the basis on which dumping is alleged in the application and a summary of the factors on which the allegation of injury is based. A copy of the public notice is to be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. The designated authority is required to provide a copy of the application to the known exporters or to the concerned trade association where the number of exporters is large, and the governments of the exporting countries and also to any other interested party who makes a request therefore in writing. Under sub rule (4), the designated authority is empowered to call for any information from the exporters, foreign producers and other interested parties. Under sub rule (5), the designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer orga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the article under investigation is being dumped in India and submit its final findings to the Central Government amongst others as to the export price, normal value and the margin of dumping of the said article and recommend the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry. The Central Government may in its discretion in special circumstances extend the aforesaid period of one year by six months. Under sub rule (2), the final finding, if affirmative, shall contain all information on the matter of facts and law and reasons which have led to the conclusion and shall also contain information amongst others regarding the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value and the considerations relevant to the injury determination and the main reasons leading to the determination. Under sub rule (3) the designated authority is required to determine an individual margin of dumping for each known exporter or producer concerned of the article under investigation and where the number of exporters, producers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; xxxxx 40. In the present case, NIP computed by the DA was much lower than that computed by the appellant, and the reasons for such variance and detailed calculations were not disclosed by the DA to the appellant. No good reasons were given for reducing the cost price of electricity supplied by the appellant produced in its captive power plant. This was clearly illegal. xxxxx xxxxx xxxxx xxxxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the Authority in that decision. Where reasons for variance and detailed calculations for computing the Non Injurious Price are not disclosed, it would be illegal. Under Rule 7, the Designated Authority has to be satisfied as to the confidentiality of that material. Even if the material is confidential the Designated Authority has to ask the parties providing information, on confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarisation is not possible. Not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. 25. The Supreme Court of India in Automotive Tyre Manufacturers Association (Supra) has laid down that the Designated Authority exercises quasi-judicial functions and is bound to act judicially. The DA determines the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bound to follow the principles of natural justice and to give an opportunity of hearing to all interested parties, in fact, "to all the parties, who have filed objections and adduced evidence". 28. In the present case, the Designated Authority has disregarded the transaction-by-transaction import statistics submitted by the domestic industry alongwith the application seeking initiation and introduced fresh data and relied on the transactions-by-transactions imports statistics obtained by him from the respondent No.4 at the very fag end of the investigation. The data was introduced after a period of seventeen months of initiation of investigation. Neither the copy of the said data relied upon by the Designated Authority nor the non confidential summary thereof was not supplied to the petitioners despite the same being demanded on the ground of confidentiality. 29. The hearing required to be provided to an interested party cannot be an empty formality. It has to be an effective hearing. Since the investigation and determination is based on positive evidence and involves an objective examination of both the volume and the effect of the dumped imports on prices in the domestic market ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality by one of the parties, the Designated Authority is empowered by the Rules to disregard and refuse to take into consideration the data furnished by that party but the Designated Authority cannot refuse to supply data furnished by others to the said party. The fact that the Rules prescribe that if the Designated Authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disregard such information, further emphasises the fact that for an investigation to comply with the principles of natural justice, it mandatorily entails sharing with the interested parties, the information/data being considered by the Designated Authority. 33. With regard to the alternative submission of the learned Senior Counsel for the respondent that the matter could be remanded to the Designated Authority for a post decisional hearing, we need to look at the various timelines prescribed by the Rules. 34. Sub section (5) of Section 9A of the Customs Tariff Act, 1975 lays down that the anti-dumping duty imposed under this section, u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concluded within a period of twelve months from the date of initiation of the review. 39. Reading of the Rules and the statutory provisions make it clear that the timelines have to be strictly followed and the investigation and the review as the case may be have to be completed within the respective statutory periods. In case the same are not completed with the respective statutory periods the proceedings would be vitiated. In the present case the investigation commenced on 21.06.2013. Under Rule 17, the period would have expired on 20.06.2014. The Central Government had the power to extend the said period by another six months i.e. till 20.12.2014. The Final Findings have been issued on 19.12.2014. Even the extended period of investigation is long over. The Rules make a solitary exception and that also in the case of the investigation being suspended on the acceptance of a price undertaking by the exporter of the article in question. In view of the fact that the statutory period is over, the matter cannot be remanded to the Designated Authority for a fresh consideration. 40. The judgment of the Supreme Court in the case of Sterlite Industries (India) Ltd. (Supra) relied upon by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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