9911796707
TMI Blog2019 (7) TMI 348X X X X Extracts X X X X X X X X Extracts X X X X ..... inuous dumping, in the present case and, therefore, the demand and supply gap is not the basis for allowing such import. It also appears from record that respondent no.2- authority has failed in appreciating the material and accompanying documents to the substantive application, on likelihood test and its parameters and has not considered essential facts such as (a) surplus capacities in exporting countries (b) inventories diverted to India at dumped prices, (c) volumes of export by exporting countries to other countries and (d) price attractiveness of the Indian market. The Court needs to be mindful of the fact that in any manner the exercise that is required to be undertaken is in light of the final statutory limit to complete the sunset review, as in any case, anti-dumping duty cannot exceed and continued after the statutory period of limitation is over, as provided under Section 9A (5) - Therefore, the Court is of the view that when the Court has elaborately discussed herein above, mere remand of the matter may consume avoidable time and that may affect the very process of sunset review as in that process the authority also will have to give sufficient time to all the concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts of certain rubber chemicals viz. (a) MBT, CBS, TDQ, PVI and TMT (for short "subject goods), originating in or exported from China PR (for short "subject country") and (b) PX-13 (6PPD) (for short "subject goods") originating in or exported from China PR and Korea RP (for short "subject country") by way of communication/order dated 24.12.2018 with following prayers:- "27. ….... a) This Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari so as to quash and set aside Impugned order dated December 24, 2018 issued by the Respondent no.2 and annexed at Annexure-A hereo; and b) This Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus so as to direct the Respondent No.2 to initiate Sunset Review investigation under the provisions of Section 9A(5) of the Act read with Rule 23 (1B) of the Rules and further direct the Respondent No.3 to issue an appropriate notification in terms of 2nd proviso to Section 9A(5) of the Act for extension/continuation of the Duty imposed by way of Customs Notification no.35/2014-Customs dated 24.07.2014 for a period not exceeding 1 year pending the outcome of Sunset R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Customs and Tariffs Act and the Rules made thereunder, it has been contended that in the year 2008, the petitioner filed a petition before respondent no.2 for investigation and recommendation of anti-dumping duties on the aforesaid goods and on the basis of the said application, the respondent no.2 issued preliminary final finding on 28.2.2008 recommending provisional antidumping duty on imports of subject goods from subject countries. That on 5.5.2008, Ministry of Finance also issued Notification No.61/2008-Cus imposing provisional anti-dumping duty. Thereafter, respondent no.2 recommended imposition of definitive anti-dumping duty vide final finding and ultimately respondent no.3 issued customs Notification No.133/2008-Cus implementing the recommendation of respondent no.2. 2.3 It is also contended that on 5.8.2011, respondent no.2 conducted mid-term investigation pursuant to an application filed by the petitioner and recommended the enhancement of definitive anti-dumping duty in the mid-term review by way of final finding. That on 20.9.2011, the Central Government issued customs notification No.92/2011 imposing anti-dumping duty. It is also contended that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impact on the economic development of the domestic industry, the foreign producers did not stop dumping practice injury to the domestic industry is likely to recur in the event of cessation of duty: i. The information provided shows that the dumping has continued despite the imposition of anti-dumping duty. The dumping is likely to cause injury to the domestic industry, in the event of cessation of anti-dumping duty. ii. Intensified dumping and consequent injury to the domestic industry is likely because Indian market is highly attractive to the foreign producers and exporters. iii. The subject producers hold huge surplus capacities and that the estimated Indian demand is a fraction of the available spare capacities of the subject producers. iv. Further capacity enhancements in China over the period further shows likelihood of injury. v. The subject exporters and producers are highly export oriented. vi. the imports from the subject countries have remained substantial over the years. The volumes were also in the same range throughout even in the presence of anti-dumping duties. vii. India is one of the leading consumption market and ranks 3rd for rubber consump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture production by the domestic industry, (iii) inventories of exporters, (iv) worldwide over-capacity, (v) export orientation of the exporters and (vi) price attractiveness of the domestic market. xviii. Exports of product under consideration from China PR and Korea RP to third countries are also at dumped prices. The prices prevailing in the Indian market are quite attractive to the producers in subject countries, as is established by (a) current export price to India, and (b) current export price to rest of the world. xix. Significant investments in future production by the domestic industry in view of fair market condition. 2.9 On 24.12.2018, respondent no.2 issued the impugned letter, in a perfunctory manner and without appreciating the relevant material on record, deciding not to initiate the sunset review on the grounds that:- "The expression "cause of action" has acquired a judicial-settled meaning. In the restricted sense cause of action means the ircumstances forming the infraction of theIn view of aforementioned, the Authority notes that the information on record shows that the petitioner industry is neither suffering any injury nor there is any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in this case has held that the territorial jurisdiction shall lie with the courts where the cause of action, in part of full, has arisen. This case also rules that mere existence of a head office in a particular place shall not ipso facto confer jurisdiction. The ratio decided by the Hon'ble Supreme Court in Adani's case it is submitted that part cause of action is an'sen at Gujarat as the Petitioner No.1 is having manufacturing operations at Gujarat. The part cause of action is available to the petitioners as the factory of the petitioner No.1 is situated at Gujarat. 3.5 The concept of cause of action has been explained in the case of Rajasthan High Court Advocate Association v. Union of India [2001 (2) SCC 294], wherein the Hon'ble Supreme Court has held as under: "The expression "cause of action" has acquired a judicial-settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for the maintenance of the suit. including not only the infraction of the right, but the infraction coupled with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dition of the domestic industry is expected to have improved during the duty period. Therefore, in a Sunset Review investigation the Designated Authority needs to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted which the Respondent No.2 has not done while considering the present petition. 3.12 In paragraph 4 (a) & (e) of the impugned order, Respondent no. 2 held that "duties imposed have played a positive impact on the performance of the Domestic Industry. The domestic industry is earning reasonable return. the demand of PUC over the injury period and P01 have increased and the sales of domestic industry has also increased. Moreover, the capacity utilization also shows a positive growth and this shows that there would not be injury to petitioner in the event of revocation of duties." Thus, the rejection of the petition is based on absence of current injury. However, Petitioner No.1 itself did not claim current injury and has in fact claimed likelihood of recurrence of injury. The Respondent no. 2 has not appreciated the mandate of sunset review and rejected the application on the assumption that if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than profitability in domestic market (the fact has even been recorded in Order dated 24th Dec., 2018). If the export profitability is adverse as compared to domestic, there is no reason why the Petitioner No. 1 will prefer exports and earn lower profits, rather than selling in the domestic market. The fact is that Petitioner No. l is forced to export in view of lack of demand for the products in the country due to dumped imports. In any case, the issue deserved initiation of investigations and not rejection of petition. 3.17 The Respondent No.2 has failed to appreciate the material on substantive application on likelihood test and its parameters, and has not considered essential facts such as the (a) surplus capacities in exporting countries, (b) inventories in exporting Countries, which may be diverted to India at dumped prices, (c) volumes of export by exporting countries to other countries, (d) price attractiveness of the Indian market. 3.18 While issuing the impugned order Respondent No.2 has failed to consider the material submitted by the Petitioner No. l which clearly demonstrated that there is a likelihood of dumping and injury in event of cessation of duty. Such as:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estic Industry by forcing the Domestic Industry to reduce its prices further in the event of cessation of anti-dumping duty. viii Petitioner No.1 submitted the material showing that India commandsvii Petitioner No.1 has submitted that recently USA has imposed 15% duty sanctions its well in addition to the 10% customs duty on the subject goods due to which Chinese producers are likely to lose significant business market in the USA. Hence, there is strong likelihood of dumping of subject goods from subject countries. viii Petitioner No.1 submitted the material showing that India commands one of the 10 top positions in exports of subject rubber chemicals in subject countries. The current level of demand in India and the future likely imports show that India is one of the major buyers of the subject goods. ix. Petitioner No.1 submitted the material showing that Chinese producers are in the process of expanding their capacity, notwithstanding the existing surpluses with them and weakening demand in China. One of the producers of the subject goods in China i.e. Shandong Yanggu Huatai Chemical Co., Ltd. is going for [PC for expansion of capacities. This clearly shows that in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the Petitioner No. 1 that the first stage in only for initiation of review based on duly substantiated application. 3.20 Petitioners submit that Judgment of this Hon'ble Court in the matter of Jindal Saw Limited v/s Directorate General of Anti-Dumping & Allied Duties reported in 2019 (365) ELT 81 (Guj) is directly applicable to the present case and would therefore be a binding precedent. In Jindal Saw (Supra), this Hon'ble Court held as under: "11. Examination of the impugned order in the background of these significant mandate as required under the Rules would suggest the absence of following factors: Nothing is evident to suggest that the designated authority called for information by supplying such copy of the application to known exporters or to the concerned trade associations, foreign producers, calling for information factors on which the allegations of injury were made by the Review Applicants. Nothing is evident to suggest that there was any determination of normal value. export price and margin of dumping and its assessment in accordance with the principles laid out in Annexure-I of the Rules. Similarly, whether the determination of injury was done in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Notification dated 18.04.2013 for a period not exceeding 1 year pending the outcome of Sunset Review before the expiry of the period of original notification, that is, on or before 17.04.2018." Respondent No.2 cannot be permitted to justify the impugned order, on the basis of reasons not given the impugned order. 3.22 Respondent no. 2 cannot be permitted to justify or improvise the Impugned Order, on the basis of reasons not stated therein. In this context, reliance is placed on the decision of the Apex Court in the case of Mohinder Singh Gill & Anr. Vs. The Chief Election Commissioner, New Delhi & Ors. (1978) 1 Supreme Court Cases 405, wherein it has been held as under: ".....The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi and the order has been passed by the respondent at Delhi, no cause of action has arisen within the jurisdiction of this High Court. He has also contended that probability of manufacturing or manufacturing are different things. He has also submitted that this is a fiscal policy matter and, therefore, the Court may not entertain present petition. According to him, only the pleadings and petition are required to be looked into for finding out the cause of action and in absence of a specific pleading, it cannot be presumed that the cause of action or part thereof arose within the territorial jurisdiction of this High Court. The main plank of argument is that this Court has no jurisdiction to entertain present petition and there is alternative remedy available to the petitioner to approach CESTAT. While supporting the finding of Designated Authority and relying upon following decisions, he has prayed to dismiss present petition. (i) Bombay High Court in the case of Sachee Agro Trading Pvt. Ltd. v. Union of India, reported in 2017 (345) ELT 346 (Bom.) observed as under:- "7. The law, by now, is well-settled right from the judgment of the Hon'ble Apex court in the case of State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, there are no pleadings in the present petition to show as to how this Court is of territorial jurisdiction and as to how the cause of action or a part of cause of action arose within the territorial jurisdiction of this Court. In spite of that, we have permitted Shri Gordey, learned senior Counsel to take us to averments made in the petition so as to examine as to whether any part of cause of action arises within the territorial jurisdiction of this Court." (ii) In the case of Alchemist Ltd. And Another v. State Bank of Sikkim and Others, reported in (2007) 11 SCC 335, Supreme Court observed as under:- "20. It may be stated that the expression 'cause of action' has neither been defined in the Constitution nor in the Code of Civil Procedure, 1908. It may, however, be described as a bundle of essential facts necessary for the plaintiff to prove before he can succeed. Failure to prove such facts would give the defendant a right to judgment in his favour. Cause of action thus gives occasion for and forms the foundation of the suit. 21. The classic definition of the expression 'cause of action' is found in Cooke v. Gill, (1873) 8 CP 107 : 42 LJ PC 98, where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as to subject matter etc. Every court has its own local or territorial limits beyond which it cannot exercise its jurisdiction. ….... 31. Viewed from the angle, the expression 'cause of action' means the bundle of facts which the petitioner must prove, if traversed, to entitle him to a judgment in his favour by the Court. Every fact, which, if traversed, would be necessary for the petitioner to prove in order to support his right to a judgment of the Court. It is a bundle of facts which taken with the law applicable to them gives the petitioner a right to relief against the respondents. In legal parlance the expression 'cause of action' is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in the court from another person. Each and every fact pleaded in the Writ Petition does not ipso facto lead to the conclusion that those facts give rise to a cause of action which the Court's territorial jurisdiction unless those facts pleaded are such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r must prove, if traversed, to entitle him to a judgment in his favour by the Court. Therefore, in determining the objection of lack of territorial jurisdiction the court must take all the facts pleaded in support of the cause of action into consideration albeit without embarking upon an enquiry as to the correctness or otherwise of the said facts. Thus the question of territorial jurisdiction must be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial." 17. It is seen from the above that in order to confer jurisdiction on a High Court to entertain a writ petition or a special civil application as in this case, the High Court must be satisfied from the entire facts pleaded in support of the cause of action that those facts do constitute a cause so as to empower the court to decide a dispute which has, at least in-part, arisen within its jurisdiction. It is clear from the above judgment that each and every fact pleaded by the respondents in their application does not ipso facto lead to the conclusion that those facts give rise to a cause of action within the court's territorial jurisdiction unless th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs of respondent no.2 and issued Customs Notification No.35/2014 imposing anti-dumping duty on the subject goods for five years. (xiii) On 26.7.2014, Forech India Limited and M/s.Kumho Petro Chemical Co. Ltd. filed Writ Petition (C) No.4810/2014 and Writ Petition No.4886/2014 respectively challenging the aforesaid Customs Notification No.35/2014 imposing anti-dumping duty on the subject goods before the High Court. (xiv) By common judgment dated 31.5.2018, Delhi High Court allowed the petition and set aside the Custom Notification No.35/2014 dated 24.7.2014, by which antidumping duty is imposed on the subject goods for five years. (xv) Against above order, the petitioners filed Special Leave Petitions on 18.6.2018. (xvi) On 9.7.2018, the Supreme Court issued notice. In view of the proceedings before the Apex Court, notification has been withdrawn and anti-dumping duty continues to be collected on the imports by the respondents pursuant to Notification No.35/2014-Customs (ADD) dated 24.7.2014. (xvii) On 26.10.2018, petitioner no.1 filed substantiated application in terms of Section 9A(5) read with Rule 23 justifying the need for initiation of sunset review investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means - (I) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or terr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tidumping duty as so reduced. (2A) Nothwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under subsection (1) or any anti-dumping duty imposed under sub-section (2), shall not apply to articles imported by a hundred per cent, export-oriented undertaking unless, - (I) specifically made applicable in such notifications or such impositions, as the case may be; or (ii) the article imported is either cleared as such into the domestic tariff area or used in the manufacture of any goods that are cleared into the domestic tariff area, and in such cases anti-dumping duty shall be levied on that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation. - For the purposes of this sub-section, the expression "hundred per cent export-oriented undertaking" shall have the meaning assigned to it in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - (I) there is a history of dumping which caused injury or that the importer was, or should have be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such antidumping duty. The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under subsection (6) shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer : (6A) Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available. (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. (8) The provisions of the Customs Act, 1962 (52 of 1962) and the rules and regulations made thereunder, including those relating to the date for determination of rate of duty, assessment, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. 9AA Refund of anti-dumping dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. 3 Substituted vide Customs Notification No. 44/99- Cus(NT) dated 15.7.1999 (Annexure - II) Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo moto if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances. RULE 10. Determination of normal value, export price and margin of dumping. - An article shall be considered as being dumped if it is exported from a country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 public notice recording its preliminary findings. RULE 14. Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if - (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation; (c) it determines that the margin of dumping is less than two per cent of the export price; (d) it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, unless, the countries which individually account for less than three per cent of the imports of the like pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts to the domestic industry concerned, shall include an evaluation of all relevant economic factors and indices having a bearing on the State of the industry, including natural and potential decline in sales, profits, output, market share, productivity, return on investments or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital investments. (v) it must be demonstrated that the dumped imports are, through the effects of dumping, as set forth In paragraphs (ii) and (iv) above, causing injury to the domestic industry. The demonstration of a casual relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of relevant evidence before the designated authority. The designated authority shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injury caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter-alia, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, and at period of investigation rates may be considered to nullity injury, if any, caused to the domestic industry by inefficient utilization of raw materials. (iv) The Propriety of all expenses, grouped and charged to the cost of production may be examined and any extraordinary or non-recurring expenses shall not be charged to the cost of production and salary and wages paid per employee and per month may also be reviewed and reconciled with the financial and cost records of the company. (v) To ensure the reasonableness of amount of depreciation charged to cost of production, it may be examined that no charge has been made for facilities not deployed on the production of the subject goods, particularly in respect of multi-product companies and the depreciation of re-valued assets, if any, may be identified and excluded while arriving at reasonable cost of production." 10. Admittedly, the petitioner herein filed an application for sunset review of anti-dumping duty in force in relation to subject goods from subject countries, wherein it has been stated as under in paragraphs 60 and 61 :- "60. Considering the Normal Value and the Export Price determined as d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India lower than that on which the product is exported to India. c. The total exports of TDQ and PVI, in terms of volume, made by China PR to the world are about 31 times and 7 times respectively of the volume of exports made to India, in the POI. Further, about 10 times and 5 times of the exports to the rest of the world for the respective products were exported at a price lower to India lower than that on which the product is exported to India. d. The total exports of the rubber accelerations, in terms of volume, made by China PR to the world are about 12 times of the export made to India, in the POI. Further, about 6 times of the exports to the rest of the world were exported at a price lower to India lower than that on which the product is exported to India." 13. While referring to the export orientation of producers from subject countries and the price attractiveness in the Indian market, while providing in tabular form, it is stated as under:- "112. From the evidence collected, it is evident that the exporters from the subject countries have highly export orientation worldwide. The data below shows that the Chinese produces export 27.55%, 29.38%, 33.53% and 29.25% ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... industry will suffer injury. 126. Further, in the event of cessation of current antidumping duty, should the Domestic Industry choose to maintain its price at the same level, the import volume will increase, given significant price difference between the domestic and import prices. This is likely to cause significant deterioration in sales, production and capacity utilization of the domestic industry." 16. While referring to dumped imports into India over the years, it is specifically stated in paragraphs 130 and 131 as follows:- "130. It would be seen that: (a) PX-13:The imports from the subject country have remained substantial over the years. The volumes were also in the same range throughout. (b) TDQ: The imports from the subject country have remained substantial over the years. The volumes were also in the same range throughout. (c) PVI: The subject imports have increased substantially over the years, from 707 MT in 2009-10 to 2,265 MT in proposed period of investigation for the present petition. (d) CBS: The imports of CBS from the subject country have followed the same trend as that of PVI. The same has increased from 929 MT in 2009-10 to 2,665 MT in prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... increased and the sales of domestic industry has also increased. Moreover, the capacity utilization also shows a positive growth and this shows that there would not be injury to petitioner in the event of revocation of duties. (f) It is also important to note that the domestic industry is enjoying the protection for last 10 years through various trade remedial measures. 5. In view of the aforementioned, the Authority notes that the information on records shows that the petitioner industry is neither suffering any injury nor there is any likelihood of injury to them in the event of cessation of duties. It is further noted that the current levels of imports are also inevitable, as there is demand and supply gap in the Indian market. In view thereof, the Authority has decided not to initiate the current sunset review investigation." 19. At this juncture, observation of this Court in Jindal Saw Limited v. Director General of Anti-dumping and Allied Duties reported in 2019 (365) ELT 81 (Guj.), para 11 is required to be reproduced as under:- "11. Examination of the impugned order in the background of these significant mandate as required under the Rules would suggest the abse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue, the authority has based its decision on the import price prevailing during the period July 2017 to June 2018. However, the petitioner has also provided information from July 2018 to December 2018, which shows that there was a dramatic decline in prices, which has been ignored by the authority while concluding that the current prices will not change in future. 22. It also appears from record that respondent no.2- authority has failed in appreciating the material and accompanying documents to the substantive application, on likelihood test and its parameters and has not considered essential facts such as (a) surplus capacities in exporting countries (b) inventories diverted to India at dumped prices, (c) volumes of export by exporting countries to other countries and (d) price attractiveness of the Indian market. 23. The aforesaid discussion based upon the material provided in substantive application, in our considered view was sufficient to persuade the Designated Authority at least in initiating the sunset review and the perfunctory brushing aside of the substantive application cannot be said to be in any manner answering the requirement of examining the substantive applic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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