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TMI Blog2017 (11) TMI 1495X X X X Extracts X X X X X X X X Extracts X X X X ..... be without any basis. This is so because of the manner in which Rule 12 of the Customs Tariff Rules is worded. In terms of Sub-rule (1) of Rule 12 of the Customs Tariff Rules, the Designated Authority shall proceed with the conduct of the investigation and in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping. To determine these three factors, essentially the first respondent has to go into the aspect as to who are the domestic industry and whether any of them are related to the exporters or importers. If at the inception of an enquiry by a Tribunal or an authority, a challenge has been made to the jurisdiction, the Tribunal/authority has to take a decision as to whether or not to act and give a ruling on the preliminary or collateral issue, but such ruling is not a conclusion. Above all, the rules are clear, especially Rule 12 of the Customs Tariff Rules and there is no necessity for this Court to issue any direction to the first respondent to decide the matter in a particular manner nor it would be right in doing so, as he is cast with a statutory duty to determine the injury based on relevant consideration, which undoubtedl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er would state that they are interested parties in the investigation initiated by the first respondent, as they have approximately 400 members, 80 of whom are industrial consumers of PSF for manufacture of yarn, sewing threads, etc. and that any anti-dumping duty as initiated to be levied will have severe financial impact on the imports of the members of the petitioner/Association, who will suffer adverse civil consequences. Therefore, they claim that they have locus standi to represent the matter before the Designated Authority as well as to maintain the writ petitions. (ii) It is further submitted that respondents 2, 3 and 4 have filed an application before the first respondent for imposition of anti-dumping duty on imports of certain types of PSF from those four countries. The fifth respondent is a domestic producer in India with its plants at various places in India. The admitted position is that the fifth respondent produces PSF, which is in excess of 50% of the gross domestic production of the goods. The data of gross import of PSF from the four Countries were presented in such application. It is further submitted that no application was taken raising a complaint by the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner/Association to direct the first respondent to proceed to determine his jurisdiction to initiate proceedings under Rule 5 of the Anti-Dumping Rules as sought for in their representation/application should be issued. To determine as to what relief the petitioners are entitled to, it may be necessary to refer certain legal provisions. 8.Section 9A of the Customs Tariff Act, 1975, deals with Anti-dumping duty on dumped articles. Sub-section 1 of Section 9A of the Customs Tariff Act, states where any article is exported by an exporter or producer from any country or territory to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. 9.Section 9B of the Customs Tariff Act, deals with cases whether no levy under Section 9 or Section 9A could be made. Sub-section 2 of Section 9B of the Customs Tariff Act, empowers the Government to make rules for the purpose of this said Section, by notification in Official Gazette. It is in pursuant to such powers the Anti-Dumping Rules, 195 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of which produce the like article in India; ......... 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 written application by or on behalf of the domestic industry. (2) An application under sub-rule (1) shall be in the form as maybe specified by the designated authority and the application shall be supported by evidence of - (a) dumping (b) injury, where applicable, and (c) where applicable, a causal link between such dumped imports and alleged injury. (3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless - (a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry : Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is subsequently reproduced in writing........... 12. Preliminary findings. - (1) The designated authority shall proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. It will also contain:- (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the article 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. 2. The designated authority shall issue a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise is required as the answer lies in the Rules themselves. 14.Rule 2(b) of the Customs Tariff Rules, 1995, defines domestic industry to mean domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production. There is an exception to this definition, which states that when such producers are related to the exporters or importers of the alleged dumped article or themselves importers thereof in such cases the term domestic industry may be construed as referring the rest of the producers. 15.Explanation under Rule 2(b) of the Customs Tariff Rules, explains as to when a producer shall be deemed to be related to exporters or importers and contingencies have been provided under Clauses a, b and c as quoted above. Rule 2(b) of the Customs Tariff Rules states that a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restraint or direction over the latter. 16.Thus, the first respondent while deciding the issue as to whether the complaint is by the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Tariff Rules. On such examination being done, the first respondent would be in a position to determine the three factors mentioned viz. export price, normal value and margin of dumping. In other words, the first respondent has to first determine the denominator, the basis of value arrived at by taking into consideration the domestic industry, which has to be considered in accordance with the definition of the Rules. The consideration should be relevant to the injury determination in terms of Sub-Rule (1)(iv) of Rule 12 of the Customs Tariff Rules and after which alone, the Designated Authority shall record the preliminary finding. The petitioners were largely prejudiced by the manner in which the first respondent has worded paragraph 6 of the impugned notification. This has been interpreted to mean that already the first respondent has come to a conclusion that the fifth respondent is related to the Malaysian producer. 21.However, this interpretation is incorrect, as the first respondent has only recorded a prima facie view and holds that the fifth respondent is not eligible to be considered as a part of eligible domestic industry in terms of Rule 2(b) of the Customs Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or non-existence of which depends jurisdiction of a court, a tribunal or an authority. It is the fact upon which an administraive agency's power to act depends. If the jurisdictional fact does not exist, the court, authority or officer cannot act. If a court or authority wrongly assumes the existence of such fact, the order can be questioned by a writ of certiorari. The underlying principle is that by erroneously assuming existence of such jurisdictional fact, no authority can confer upon itself jurisdiction which it otherwise does not possess. 25.Thus, in the light of the above decision, if at the inception of an enquiry by a Tribunal or an authority, a challenge has been made to the jurisdiction, the Tribunal/authority has to take a decision as to whether or not to act and give a ruling on the preliminary or collateral issue, but such ruling is not a conclusion. Above all, the rules are clear, especially Rule 12 of the Customs Tariff Rules and there is no necessity for this Court to issue any direction to the first respondent to decide the matter in a particular manner ..... X X X X Extracts X X X X X X X X Extracts X X X X
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