9911796707
TMI Blog2020 (2) TMI 482X X X X Extracts X X X X X X X X Extracts X X X X ..... R Rules 1995. The said conclusion of the designated authority can be found from paragraph 15 to paragraph 20 of the Notification dated 01.02.2012. As regards the determination of normal value of melamine in China as per the notification dated 05.12.2015, the designated authority arrived at its conclusion that China being a non-market economy, the export price and the normal value were determined in terms of the 2nd proviso of paragraph-7 of Annexure-1 to the ADR 1995. In paragraph-32 of the said notification, it has been stated that the constructed normal value of melamine in China at ex-factory level was determined as USD*** per MT (Rs.*** per MT) and that the export price from China was determined as USD*** per MT(Rs.***per MT) - it is determinable that the designated authority had followed a procedure for determining the normal value of melamine in the exporting country China, as well as the non-injurious price of melamine for the domestic industry in India, but the procedure so adopted and also the normal value and non-injurious price would remain confidential and would not be made available. The reason for keeping the normal value and the non-injurious price confidential is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejected on being not satisfied, the designated authority may record its findings on the basis of other facts available before it. Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary? - HELD THAT:- Considering the procedure adopted by the designated authority in not making all the possible efforts to arrive at a correct determination as regards the normal value, export price and the margin of dumping as well as the non-injurious price, more particularly, in discarding such information that may be provided by the interested parties without even arriving at a satisfaction as to its correctness, we are of the view that the procedure adopted would not only be contrary to the provisions of Rules 6(8) and 8 of the ADR 1995, but would also be discriminatory and arbitrary. Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry? - HELD THAT:- In the facts and circumstance of the present case whether the intervener GSFC would continue to remain a domestic industry in spite of being indulging in import to a certain extent, in our view a discretion is req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - HELD THAT:- The propositions as regards the maintainability of the writ petition in a situation where an alternative remedy is available in the form of an appeal had been culled out. Amongst the relevant circumstances whose presence may justify the entertainment of a writ petition under Article 226 of the Constitution of India in spite of the existence the provision for an appeal, are violation of the principles of natural justice, procedure adopted by the authorities is discriminatory and arbitrary, the question of law requires an interpretation, a constitutional issue is also involved and the pleadings are complete and the issues raised can be decided on the basis of affidavits, etc. - the procedure adopted by the respondent authorities including the designated authority did also include the question of violation of the principles of natural justice, it being discriminatory and arbitrary, there is also a question of violation of Article 14 of the Constitution, as well as interpretation of the relevant provisions of Rules 7, 6(8), 8 and 16 of the ADR 1995, which are questions of law. Further, the pleadings of the parties were complete and the issues raised can be determined ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of ADD in respect of import of melamine from European Union, Indonesia, Iran and Japan, all issued by the designated authority, are being assailed. 5. Consequent thereof, the notification No.48/2012-Customs(ADD) dated 08.10.2012, imposing ADD for import of melamine from European Union, Indonesia, Iran and Japan for a period of five years, notification No.2/2016-Customs(ADD) dated 28.01.2016 imposing ADD for import of melamine from China for a period of five years and notification No.47/2017-Customs(ADD) dated 06.10.2017 by which the imposition of ADD for import of melamine from the European Union, Indonesia, Iran and Japan was extended for a period of one year, were also assailed. 6. During the pendency of the writ petition, the final findings in the sunset review not recommending the imposition of ADD for import of melamine from European Union, Indonesia, Iran and Japan was submitted by the designated authority by the notification No.17/14/2017-DGAD dated 19.2.2018. 7. The implication of the sunset review final findings by the notification No.17/14/2017-DGAD dated 19.2.2018 would be that imposition of ADD for import melamine from European Union, Indonesia, Iran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means the comparable price in the ordinary course of trade when destined for consumption in the exporting country. Provisions of Section-9A are as follows:- Anti-dumping duty on dumped articles. (1) Where any article is exported by an exporter or producer from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importance 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. Explanation. for the purposes of this section, - (a) 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting price, no ADD can be imposed in exercise of the powers u/s 9A of the CTA 1975. The imposition of ADD would have to be only upon the condition precedent of there being a difference in the normal value and the exporting price of the article concerned in the exporting country, in contradistinction to a situation where the imported article from the exporting country causes an unwarranted competition to the domestic industry who are also producing the article concerned. Any amount of unwarranted competition that the imported article may cause to the domestic industry on its own would not be a justifiable reason for the authorities to impose an ADD, and for such situation the CTA 1975 provides for other suitable duties for the purpose. 12. Section 9A(1)(c)(ii) again provides that when there are no sales of the article concerned in ordinary course of trade in the domestic market of the exporting country, the comparable representative price of the article concerned when exported from the exporting country to an appropriate third country, or the cost of production of the article concerned in the country of origin along with reasonable addition for administrative, selling and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9A would cease to have effect on the expiry of five years from the date of its imposition, unless revoked earlier, but again provided that it may be extended for a further year of five years from time to time if the Central Government upon a review is of the opinion that cessation of such duty is likely to lead to a continuation or recurrence of the dumping and injury and the period of extension in such case shall commence from the date of the order of such extension. A further provision is that if the review initiated under the proviso to Section 9A(5) before expiry of the period of five years has not come to a conclusion before such expiry, the imposition of ADD may continue for a further period not exceeding one year, pending the outcome of the review. The provisions of Section 9A(5) is as follows:- The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In other words, upon the condition precedent that an article is exported by an exporter or producer of any country to India at a price less than its normal value being satisfied to impose ADD under Section 9A(i) of the CTA 1975 the determination of the normal value, the export price of the exporting country and the margin of dumping that is the difference between the export price and the normal value, would be determined by following the procedure prescribed by the Rules framed under Section 9A(6). 20. Further, Section 9B of the CTA 1975, provides that notwithstanding anything contained in Section 9A, an ADD shall not be imposed under certain circumstances as provided under Section 9B(1)(a) 9B(1)(b)(i),(ii) (iii). Such bar upon imposing ADD is subjected to the provision that it would not apply if the ADD had been imposed in respect of any article to prevent an injury or threat of an injury to the domestic industry of a third country exporting the like articles to India. 21. Further, Section 9B(1)(c)(ii) provides that any ADD under Section 9A may not be levied at any time if a satisfactory voluntary undertaking is received from any exporter to revise its prices or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctly controlled by a third person; or (c) if together they directly or indirectly control a person and the effect of the relationship is such as to cause the producers to behave differently from the non-related producers where 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 later. 26. Rule 2(c) of ADR 1995 provides that the interested party includes an exporter or a foreign producer or the importer of an article which is subjected to an investigation for being dumped in India, or a trader or a business association a majority of the members of which are producers, exporters or importers of such an article; the government of the exporting country; and a producer of the like article or a trade and business association which produced the like article in India. Again Rule 2(d) provides that like article means an article which is identical or alike in all respects with the article under investigation. 27. Rule 3 of ADR 1995 provides that the Central Government may by a Notification in the Official Gazette appoint a person not below the rank of a Joint Secretary to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if the normal value, export price and margin of dumping is not determined in the proper manner as required under the Rules, the jurisdiction of the Central Government to impose ADD would be unavailable. Further as the amount of ADD imposed cannot exceed the margin of dumping, hence the requirement of a proper determination of the margin of dumping, which again involves a proper determination of the normal value and the export price cannot be diluted or brushed aside 31. Further Rule 4 of the ADR 1995 do impose a further duty upon the designated authority to review the need for continuance of ADD. When the provisions of Rule 4 requiring a review is read together with the provisions of Section 9A(5) of CTA 1975, the review would mandatorily be required to be undertaken atleast prior to the expiry of five years of levying the ADD. Having said so, a reading of Rule 4 of ADR 1995 and Section 9(5) of CTA 1975 also shows that such review can be undertaken at any time after levying of the ADD and upon such review the levy of the ADD can also be revoked at any time even prior to the completion of the five years since the levy. 32. A reading of Rule 4 of ADR 1995 and Section 9(5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anti-dumping duty. 35. Rule 5 of the ADR 1995 provides that except as provided under Rule 4, the Designated Authority shall initiate an investigation only upon receipt of a written application by or on behalf of the Domestic Industry and such application shall be supported by evidence of dumping, injury and where applicable a causal link between the dumped import and alleged injury. The investigation shall not be initiated upon such application unless it is determined by the Designated Authority that the application has been made by or on behalf of the domestic industry and further that the domestic producers expressly supporting the application account for atleast 25% of the total production of the article under investigation and further the Designated Authority arrives at a satisfaction that there is sufficient evidence of there being dumping, injury and where possible a casual link between the dumped import and the alleged injury. Further notwithstanding the requirement of initiating the investigation upon an application being made by or on behalf of the domestic industry, the Designated Authority may also suo motu initiate an enquiry if it is satisfied from the informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 country before proceeding to initiate an investigation. 37. Rule 6 of the ADR 1995 provides for the principles governing the investigations to be made by the designated authority under Rule 4. Upon initiating an investigation to determine the existence, degree and effect of any alleged dumping of any article, the designated authority shall issue a public notice notifying its decision to initiate the investigation and the notice shall contain inter-alia adequate information on the name of the exporting country/countries and the article involved; the date of the initiation of the investigation; the basis on which dumping is alleged in the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir application. 2. The copy of the public notice be forwarded to the (a) known exporters, (b) the Governments of the exporting countries and (c) the other interested parties, where interested party also includes an importer of the article under investigation. 3. The industrial user of the article under investigation and the representative consumer organizations where such article is commonly shown at the retail level are also required to be provided with an opportunity to furnish information to the designated authority which would be relevant for the investigation regarding dumping injury and casuality. 39. From the aforesaid requirement provided under Rule 6 of ADR 1995 it can be inferred that the concept of levying ADD is not only to protect the domestic industries from injury being caused resulting from dumping of an imported article, i.e. the exporting country exports such article to India at a price lower than the normal value of the article concerned in the exporting countries, but at the same time it is also to ensure that the domestic industry while making application under Rule 5(1) requiring an investigation of dumping do not provide any incorrect informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other interested party who makes a request therefore in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation : For the purpose of this sub-rule, the noticed calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. (5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosures in a generalized or summary form, such information over which confidentiality is claimed may be disregarded. 42. Upon reading the provisions of Rule 7, sub rule 1, 2 and 3, it is discernible that all such information that may be provided by the domestic industry under Rule 5(1) does not become confidential information straightaway merely because the provisions of Rule 7(1) of the ADR 1995 may have been invoked. Rule 7(1) is not a declaratory provision so as to provide that all such information provided in the application under Rule 5(1) of the ADR 1995 by the domestic industry are confidential. Rule 7(1) is an enabling provision where any of the parties to the investigation, not merely confining to the domestic industry making application under Rule 5(1), to make a claim that any or all the information provided by it to the designated authority be treated as confidential. In the event the designated authority with regard to any such information or a part thereof provided to it by the domestic industry or any other party is satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim for confidentiality, or the supplier of the information is either unwilling to make the information public or unwilling to authorize the disclosure of the information in a generalized or summary form, such information over which the request for confidentiality was made is to be discarded and not be taken into consideration in arriving at any finding in the course of the investigation. 45. Rule 7 of the ADR 1995 are as follows: Confidential information- (1) notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon the designated authority being satisfied as to its confidentiality, be treated as such by it and not 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 provided information on confidential basis to furnish non-confidential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are mandatorily required to be provided with the opportunity to present or supply any such information as it may desire and the designated authority upon being satisfied as regards its accuracy is required to take the same into consideration while arriving at the normal value, the export price and the margin of dumping by the exporting countries. Although the investigation may be initiated by the designated authority either suo moto or upon an application by the domestic industry under Rule 5(1), but in course of the investigation the information presented or supplied by the interested parties, amongst others, if it is found to be accurate as per the satisfaction of the designated authority, would also have to be taken into consideration. 50. Rule 9 of the ADR 1995 enables the Designated Authority to carry out the investigation in the territories of other countries, if the circumstances of the case so warrants, provided that the Designated Authority obtains the consent of the person concerned and upon being notified the concerned Government does not object to such investigation. 51. Upon following the procedure provided under Rule 6(1) to Rule 6(9) of the ADR 1995, an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the domestic industry; is satisfied that evidence of dumping to justify the continuation of investigation is not sufficient; the margin of dumping is less than two percent of the export price; the volume of import, actual or potential is less than three percent from a particular country unless the countries which account for less than three percent would collectively be more than seven percent; and where the designated authority determines that the injury is negligible. Rule 15 of the ADR 1995 again provides for a suspension or termination of the investigation in the event the exporter furnishes an undertaking in writing that no exports of the article are to be made to India on dump prices or where the exporter undertakes to revise the prices so that the injurious effect of dumping is eliminated. 55. Rule 16 of the ADR 1995 provides that the Designated Authority shall, before giving its final findings, inform all the interested parties of the essential facts under consideration which form the basis of its decision. The requirement of Rule 16 to provide the interested parties with the essential facts under consideration which form the basis of its decision when rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the margin of dumping as well as the determination of the injury to the domestic industry and the non injurious price were provided to the interested parties/importers prior to such opportunity of hearing been given. 59. Rule 16 of the ADR 1995 is as follows: Disclosure of information. The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. 60. Rule 17 of the ADR 1995 provides that the Designated Authority within one year from the date of initiation of an investigation determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final findings as to the normal value, export price, and the margin of dumping of the article; whether the import of the article into India causes or threatens material injury to any industry established in India or materially retards the establishment of an industry in India; or whether a casual link exists between the dumped imports and the injury; or also whether any retrospective levy of ADD is called for and if yes the reasons thereof. The fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the designated authority on its own initiative or upon an application by the domestic industry provided the review is initiated before expiry of the period of five years. Rule 23(3) further makes it implicit that the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall mutatis mutandis be applicable also in case of the review. In other words, the complete basic procedures to be followed in case of imposing the ADD under Section 9A of the CTA 1975 are also required to be followed in the event of a review, either to withdraw or to continue the ADD, which may again be either on the own initiative of the designated authority or upon a request by the interested party for withdrawal or by the domestic industry for continuance of the ADD, as the case may be. 64. The other provisions of the ADR 1995 are not discussed as they are found not be relevant for the purpose of deciding the issues involved in the present writ petition, except for the provisions of Annexure-1, Annexure-2 and Annexure-3 to the ADR 1995, which lays down the principles and procedure to be followed for determining the normal value, export price and the margin of dumping, determination of injury and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading of the provisions of Paragraph-7 of Annexure-1 also shows the provision of an alternative principle in respect of non market economy countries that wherever it is not possible to determine the normal value on the basis of the price or constructed value in a market economy third country and further the normal value or the export price cannot also be determined on the basis of records kept by the exporter or producer under investigation, the method of accepting the price actually paid or payable in India for the like product after due adjustment if necessary to include a reasonable profit margin, would also be an acceptable method of determining the normal value of the article under investigation in the non market economy exporting country. 68. Annexure-2 to ADR 1995 provides for the principles for determination of the injury or threat of material injury to the domestic industry as well as the principles for arriving at a casual link between the dumped imports and the injury. A determination of an injury shall involve an objective examination of the effect of the dumped imports on the prices in the domestic market for the like article and also the consequent impact of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her units; e) royalty unless related to technical knowhow for the product; f) trading activity of product under consideration or g) other non cost items like bad debts, donations, loss on sale of assets, loss due to fire, flood etc. 70. From a reading of the provisions of Annexure-1 , Annexure-2 , and Annexure-3 it is discernible that the provisions of the ADR 1995 itself provides for the procedure and principles to be followed by the designated authority in determining the normal price, export price and margin of dumping; for determining whether any injury would be caused to the domestic industry as a result of the import of the dumped article; and further for determination as to what would be the non injurious price for the like article of the domestic industry. All the principles and procedures provided under Annexure-1, Annexure-2 and Annexure-3 appears to be based upon sound economic, accounting and rational concepts and therefore a deviation thereof, more particularly as regards the principles and procedures to be followed, would lead to a incorrect determination which may adversely affect either the domestic industry or the interested parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be from countries other than from China, in whose respect an investigation is made and is also the subject matter of the writ petition. According to Dr. Saraf, neither Rule 2(b) of the ADR 1995 nor Article 4 of the WTO 1994 makes it an exception that an importer of melamine from a country other than the country under investigation would not be construed to be an importer and for it to be an importer the import of melamine has to take place only from the country under investigation. In other words, it cannot be an acceptable situation that a domestic industry if it also imports from any other country other than the country under investigation would continue to remain a domestic industry vis- -vis the importers who import the article concerned from the country under investigation. It is contended that accordingly the conclusion of the designated authority even in the final findings as per notification No.7/14/2017-DGAD dated 19.02.2018 that under Rule 2(b) of the ADR 1995 the intervener GSFL continues to be a producer undertaking production inspite of it having imported the melamine from a country other than the subject country, is therefore erroneous. Dr. Saraf by referring to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the provisions of Annexure-1 to the ADD Rules, 1995 which provides for the procedure to be adopted for determining the normal value, export price and margin of dumping by the exporting country it is contended that the procedure prescribed therein is self sufficient and the respondent authorities cannot adopt a procedure contrary to the provisions of the Rules by merely by taking a stand that as the normal value in the exporting country cannot be determined, a value at random be presumed and accepted to be the normal value in the exporting country for the purpose imposing the ADD. 79. It is the case of the petitioners that under the provisions of the CTA 1975 and the ADR 1995, an ADD can be imposed only in the event of the normal price of the article in the country of export being more than the export price and the ADD to be imposed would be the difference in price between the non-injurious price of the article of the domestic industry in the country of import and its landed price. 80. In the aforesaid circumstances, it is the submission of the petitioners that: (a) In the original investigation concluded in the year 2012, the designated authority had erroneousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so of the view that as GSFC had not imported the subject goods from the subject country during the period of investigation, it therefore did not constitute a domestic industry within the meaning of Rule 2(b) of the ADR 1995. According to the petitioners, the said view taken by the designated authority is erroneous and contrary to the provisions of Article 4(1) of the WTO-1994 and Rule 2(b) of the ADR 1995, inasmuch as, both the provisions in order to exclude a producer from being a domestic industry only requires that the domestic producer be an importer of the alleged dumped article, and there is no further requirement that the import of the alleged dumped article would have to be only from the subject country which was investigated upon during the period of investigation. (b) The designated authority while recommending the imposition of ADD admittedly did not have the required factual materials before it to arrive at the normal value of melamine in the country of export being the China. China being a non-market economy country, under Clause-7 of Annexure-I of ADR 1995, the normal value is to be determined on the basis of the constructed value in the market economy of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be within the domain of public information and also be subjected to the provisions of the Right to Information Act. From the said point of view also there cannot be any confidentially of the normal value of melamine as accepted by the designated authority and such information cannot be withheld by taking recourse to Rule 7 of ADR 1995. A non disclosure of the normal value arrived at by the designated authority also prevents the importers to examine as to whether accepted normal value and the price of the like article in India are one and the same or the domestic industry by manipulating the information had provided some other exaggerated amount to be the price of the product in India. (c) According to the petitioners the provisions of ADD have been introduced to protect the domestic industry producing a particular article from an unfair competition from the importers who may import the same article from another country at a price below the normal value of the article in that country. Therefore, the mechanism of imposing ADD ought not to be used as a tool for giving an undue advantage to the domestic industry by enabling it to increase its price of the article in an unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable a domestic industry to increase the price of the item produced by it for earning a super normal profit, a vital aspect as provided under the ADR 1995 would be to arrive at the appropriate non-injurious price of the item in respect of the domestic industry. Accordingly, the determination of the non-injurious price of the domestic industry is required to be done in a more rational and prudent manner by arriving at the actual figures that may be prevailing in the market, rather than allowing the domestic industry to state its own non-injurious price in an arbitrary manner and protect the non injurious price so determined by relying upon the provisions of confidentiality under Rule 7 of the ADR 1995. (e) The conversion of the non-injurious price for the domestic industry to USD at a rate which was prevailing during the period of investigation or at the time of imposition of ADD would also be arbitrary and patently illegal. By doing so, the authorities have kept the non-injurious price of the domestic industry fixed in terms of USD, which infact was calculated on the basis of exchange rates as it prevailed in the year 2012. In the year 2012, the exchange rate of USD was appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e designated authority contends that all the required procedures under the CTA 1975 and ADR 1995 have been duly followed by the designated authority as well as the authorities in the Union of India in the Customs Department in arriving at the conclusion contained in the three notifications dated 01.06.2012, 05.12.2015 and 22.09.2017 Mr. Sarma also contends that all the importers including the present petitioners were given an opportunity of hearing by the designated authority before the final findings were arrived at and as such, principles of natural justice were duly complied. Only because the conclusion in the final findings and the resultant decision to impose ADD has an adverse commercial impact on the trade of import of melamine conducted by the petitioners, therefore, the present petitions are being preferred, but as the conclusion and imposition of ADD had been done by strictly following the procedure prescribed under the CTA 1975 and ADR 1995, no interference is required. A further contention of Mr. Sarma is that the present petition is not maintainable in view of the provision for an appeal under Section 9C of the CTA 1975 inasmuch as, the notifications dated 01.06.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 1995 and more particularly the amendments brought in by the customs notification No.18/2010 dated 27.02.2010 and No.86/2011 dated 01.12.2011, contends that the amended rule now stands aligned with the WTO agreement on anti dumping and it gives a discretionary power to the designated authority to decide on the merits of the case as to whether or not to include a domestic producer who also indulges in import as domestic industry. It is neither the intention of the WTO agreement nor of the ADR 1995 that a straight jacket formula be adopted while understanding as to what is a domestic industry and thereby render all such domestic producers who had resorted to import of the article concerned being ineligible for the status of being a domestic industry. 84. Mr. A. Roy further contends that the replacement of the word shall with the word may in Rule 2(b) has granted the designated authority a complete power to exercise its discretion while accepting whether a domestic producer indulging in import can still also be a domestic industry and such discretion is justified as because a complete exclusion of a domestic producer indulging in even a minimal amount of import would ultimat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority would invoke the writ jurisdiction under Article 226 with impunity. Further reliance has also been placed on the pronouncement of the Supreme Court in its order in The Designated Authority Vs. Sandisk International Limited reported in 2017 SCC ONLINE SC 319 wherein in paragraph 7, it was held that although it cannot be an inflexible proposition of law that in no case the final findings of the designated authority can be subjected to a challenge under Article 226 of the Constitution, but in the facts of the case involved therein, the High Court was not justified in setting aside the final findings of the designated authority in exercise of its writ jurisdiction. Reliance has also been placed on a decision of the Delhi High Court in Hindustan Lever Ltd. Vs. Union of India and Ors. reported in MANU/DE/1355/2017 , wherein a view was taken that a challenge to the disclosure statement made in the proceedings before the designated authority would be comparable to a plaint in a civil suit and therefore, the appellate court is not denuded from its powers to examine the same and as such, the court remained not persuaded that the grounds taken in the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department while accepting it. As invocation of Rule 7 of ADR 1995 for withholding the information as regards the normal value in the country of export and non-injurious price of the domestic industry makes the issue raised in the writ petition indeterminable, the same be dismissed as non-maintainable. (c) Mr. Rajiv Arora, Additional Director General, Foreign Trade Government of India, who was present in the Court at the time of hearing of the matter, submitted that authentic information as regards the normal price of melamine in China could not be obtained in spite of all such endeavour being made by the authorities and nor such information could be obtained from any other sources. In the resultant circumstance, the authorities had to take recourse to the provisions of Clause 7 of Annexure 1 to the ADR 1995 which, inter alia, provides the procedure for arriving at the normal value of the imported article from a non-market economy country. According to the Officer, China is admittedly a non-market economy country and, therefore, the provisions of Clause 7 of Annexure 1 would be squarely applicable for determining the normal value of melamine in that country. Clause 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers may be deemed not to form part of domestic industry. By referring to the amendment, it is submitted that prior to the amendment there was no discretion vested in the designated authority to include any domestic producer within the concept of domestic industry if such domestic producer either imported the article concerned themselves or were related to any exporter or importer of the article. Thereafter by the notification No.18/2010 dated 27.02.2010, another amendment was brought in to the meaning of domestic industry which is as follows: 2(b) domestic industry means the 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 of that article except when such pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not cooperate with the Authority, such domestic producer may be considred as ineligible. In paragraph 44 therein, the Designated Authority also contemplated the following circumstances to be relevant for the purpose of determining as to whether a domestic producer indulging in import is also to be considered a domestic industry. i. The percentage of domestic production of the product in question that is accounted for by the related producers. ii. Whether imports of the product in question by the related producers allow them to benefit, or serve to shield them, from the effects of dumping. iii. Whether exclusion of the related parties would unduly skew the data for the remaining members of the industry. iv. The level or long term nature of the commitment shown by the producer to the domestic production, as opposed to importing activities. v. The ratio of import shipments to domestic production for the related producers. (d) The learned counsel for the intervener, GSFC also relies upon the view of the High Court at Calcutta in paragraph 14 in State of Gujarat Fertilizers and Chemical Limited Vs. Additional Secretary and Designated Authority wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olated by the designated authority D) Whether the procedure adopted by the designated authority in arriving at a decision to impose ADD and to determine the rates thereof conform to the procedure prescribed under the ADR 1995 E) Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary F) Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry G) Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange rate as it prevailed in the year 2015 from China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate. 88. Before making an attempt to adjudicate the questions for determination framed hereinabove, it would be apposite to examine the procedure fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to a writ petition by one of the interested parties namely, Ms. Century Plyboards (I) Ltd., who in fact is also the present petitioner No.1, before the Calcutta High Court, where in the order dated 07.12.2012 the learned Single Judge arrived at a conclusion that the initiation of the investigation at the instance of the intervener GSFC, on the face of the records, as an importer, is legally not sustainable. But on appeal the Division Bench by the order dated 09.08.2011 had allowed the investigation to continue but made it conditional that no report be submitted without the leave of the Court. But without making any further reference to any conclusion that the Calcutta High Court may have arrived, the designated authority while examining the question as to whether the intervener GSFC is a domestic industry took into consideration the stand taken by GSFC that they made some imports at the time when they had some production disruption so as to facilitate the requirements of its small customers who had desired that the GSFC do import the material and supply it to them. In the process the bills of entry for such imports for the purpose of customs clearance were not filed by the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of the final findings pertaining to China, the designated authority in paragraph 13 of the Notification dated 05.12.2015, took a view that as GSFC had not imported the subject articles from the subject country, i.e. China, during the period of investigation, although it may have made some imports from the subject country during the base year, the focus of GSFC continues to be that of a producer who does its own production and, therefore, it is a domestic industry within the meaning of Rule 12(b) of the ADR Rules, 1995. 95. Again when a review sunset investigation was undertaken to continue with the ADD in respect of melamine exported from European Union and others, as per the Notification No.7/14/2017-DGAD dated 22.09.2017, a further conclusion was arrived that the intervener GSFC do constitute a domestic industry as per Rule 2(b) of the ADR 1995 inasmuch as, GSFC had made a claim that they are the sole manufacturer of melamine in India and the production of GSFC accounts for a major proportion of the product under consideration in India. 96. From the Notification dated 01.06.2012, it is noticed that the stand of the designated authority is that the normal va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chanism (APM) and Non Administrative Price Mechanism (Non-APM), where the price of Non-APM natural gas is higher. The APM natural gas is used for manufacture of fertilizers, whereas, for the purpose of manufacturing the other items, including melamine, the Non-APM natural gas is required to be used, where Non-APM natural gas is also used for manufacture of fertilizer items in the event of there being excess requirement. In the resultant situation the full price of the Non-APM natural gas has to be taken into consideration for arriving at the cost of production of melamine by the domestic industry. By raising the issue as regards the Non-APM natural gas used for manufacture of melamine, the domestic industry expressed the view that as Non-APM natural gas is required to be purchased from the market, therefore, the actual cost of production of melamine of the domestic industry company cannot be established, more so, in a situation, where it had purchased the natural gas at different prices for different purposes. ii) The landed price of the imported articles were substantially lower than the domestic selling price of the subject product during the period of investigation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c industry failing to market its product due to the imported articles being available in the market. v) The normal value of melamine in the exporting country arrived at by designated authority, as well as the principles followed in arriving at it and also the materials upon which such value was arrived at should also be made available. vi) While determining the non-injurious price of the domestic industry, the details of the computation should be divulged and disclosed. vii) No objective analysis had been done to examine the link between the alleged dumping and the injury suffered by the domestic industry. viii) Because of the variation and increase in the exchange rate of USD, in the period subsequent to the investigation, as compared to the exchange rate during the period of investigation, the imposition of ADD should be made on the basis of reference price in INR. c. Result of the examination by the designated authority:- i) The designated authority was of the view that imposition of ADD is not related to the demand supply gap of the subject product and on the other hand, the relevant consideration is to eliminate injury caused to the domestic indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) The injury parameters and the non-injurious price were re-checked before accepting it in the final finding and the analysis had been carried out objectively and the conclusion of injury and casual link that were arrived was mentioned at appropriate headings. Accordingly, it was incorrect to state that the cost of production of the domestic industry is lower than its selling price or that the noninjurious price determined for the subject product is lower than its net selling price. vi) With regard to the principles followed for arriving at the normal value, it had clearly been stated in the appropriate headings and the normal value had been kept confidential for the reason that some of the elements in arriving at the constructed normal value were taken from the confidential information made available by the domestic industry and as such, the information had been kept confidential. vii) The determination of the non-injurious price for the domestic industry was done by following a computation in terms of the principles laid down in annexure-III of ADR 1995 and the value of ammonia had been deducted from the cost of melamine. viii) As regards the allegation of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intervener GFSC is that the present writ petition essentially being a petition against the order of determination and also against the order of review as regards the existence, degree and effect of dumping of the imported article melamine, therefore as there is a provision for an appeal under Section 9C of the CTA 1975, a writ petition against such order would be not maintainable. 104. In the facts and circumstances and also in view of the provisions of law as narrated and also interpreted to the extent indicated above, the issues framed are decided in the following manner: A) Whether the writ petition is maintainable in view of the provisions for appeal under Section 9C of the CTA 1975. 105. From the contentions raised by the petitioners, it is understood that in this writ petition it is the procedure and the principles followed by the designated authority in arriving at its determination as to the existence, degree and effect of dumping in the import of melamine that has been assailed, rather than the actual determination of such existence, degree and effect of dumping being assailed. Although the determination of the normal value, export price and margin o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule or policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief. iv) In S.J.S. Business Enterprises (P) Ltd. vs- State of Bihar and Others reported in (2004) 7 SCC 166 in paragraph-14 15, it had been held that The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex Prate Read is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or b y an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction Likewise in Khurshed Modi V rent Controller, Bombay it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. To the same effect are the following observations of Harries, CJ, in Assistant Collector of Customs v. Soorajmull Nagarmul. There can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court s sense of fair play the superior court may, we think quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, if confirmed what ex facie was a nullity for reasons aforementioned. vii. In State of U.P and Others Vs- M/s Indian Hume Piple Co. Ltd. reported in (1977) 2 SCC 724 in paragraph-4 it has been held that whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law .. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an alternative remedy was available may not be applied where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. vi. The power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the constitution and the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition and although this plenary right to issue a prerogative writ will normally be not exercised to the exclusion of other available remedies, but if the action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14, or for other valid and legitimate reasons which the Court thinks it necessary, the exercise of the power under Article 226 would be available. vii. When the issue for determination is a question of law, the High Court would not be wholly wrong in entertaining a petition under Article 226 of the Constitution for determining such question of law. 109. As regards as to what also constitutes a violation of the natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropositions of law as regards the non maintainability of a writ petition on the ground of there being alternative remedy in the form of an appeal or revision, we are required to arrive at a conclusion as to whether the procedure adopted by the designated authority in arriving at the normal value, export price in respect of the exporting country and the non-injurious price in respect of the domestic industry can be construed to be discriminatory and arbitrary and also whether the principles of natural justice had been violated. A further conclusion would also be relevant as to whether in deciding the issues raised in the writ petition, a factual determination would also have to be made or whether the issues can be decided merely on a question of law by interpreting the same and examining whether the requirements of law had been duly complied with in arriving at such normal value, export price and non injurious price. 112. In view of the above, we deem it appropriate that it would be apposite to first decide the other issues involved in the writ petition as in doing so, the procedure adopted by the designated authority would also be examined and the manner in which the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he domestic industry. If the final report itself does not disclose the actual value determined by the designated authority, it would be farfetched to understand that in the disclosure statement so forwarded to the domestic industry and the interested parties, the actual normal value, export price, margin of dumping and the non injurious price of the domestic industry as determined was stated. Again when we look at the issue from the point of view that in paragraph-44(ii) of the final findings dated 01.06.2012 it is the categorical stand of the designated authority that the said information are confidential and further taking into consideration the statement made by Mr. Rajiv Arora, Additional Director General, Foreign Trade, Govt. of India that the normal value of melamine in the exporting countries and the noninjurious price of the domestic industry cannot be revealed as they are based upon the information provided by the intervener GSFC and therefore, would be covered by the provision for confidentiality under Rule 7 of the ADR 1995, we are constrained to understand that even the disclosure statement made available to the domestic industry and the interested parties did not conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation and not take it into consideration for the purpose of determining the normal value, export price, margin of dumping and the non injurious price. 119. From the provisions of Rule 7 as a whole, it will be difficult to accept the stand taken by the designated authority that even the normal value, export price, margin of dumping and the non injurious price as determined would be confidential as because the same are based upon information provided by the intervener GSFC who is the domestic industry and therefore, it cannot be disclosed, even to the extent that it cannot be disclosed to the Court. 120. We also arrive at such a conclusion as because no material has been produced by the respondent authorities that the designated authority had arrived at a satisfaction upon a claim for confidentiality being made by the domestic industry that the entire information provided in their application under Rule 5(1) are confidential. It had also not been brought on record that upon such satisfaction as regards the confidentiality, the domestic industry was required to submit a non confidential summary of the confidential information. It had further not been brought on record that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted authority as well as by the respondents that the normal value, export price, margin of dumping and the non injurious price arrived at in the final findings are confidential in nature and that it cannot be disclosed to anyone at any stage, are unacceptable. C) Whether the principles of natural justice had been violated by the designated authority 124. As a consequence of arriving at a conclusion that reading the whole of Rule 7 and 16 does not make the determination of the normal value, export price, margin of dumping and the non injurious price to be confidential, we may now take a look as to whether the principles of natural justice was violated when the interested parties were given an opportunity of hearing prior to the submission of the final findings. When the determination of the designated authority is the decision to impose ADD and arriving at the rates thereof, the reasons for such determination would necessarily have to include the normal value, export price, margin of dumping and the non injurious price as determined. As held by the Privy Council in Attorney General Vs. Thomas D Arcy Ryan (supra), an opportunity of hearing given without informing the reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ajiv Arora, reference was made and reliance placed on a pronouncement by the Supreme Court in Designated Authority Vs. M/s. Haldor Topsoe , reported in A/S, MANU/SC/0440/2000 . Although several paragraphs in the said judgment were quoted in the affidavit, but the same pertains to quoting the relevant provisions of law. The portions relevant as found in paragraphs 14 and 15 of the said judgment of the Supreme Court referred in the affidavit, are selectively quoted as under: 14. From a perusal of the provisions reproduced hereinabove, it is clear that the statute itself has given sufficient guidelines to the Authority to be adopted in the process of determining the normal value . To some extent, these guidelines have been placed in a preferential sequence. For example, if acceptable material is available in regard to the comparable price in the ordinary course of trade in the exporting country or territory itself then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available then the Authority has been given a choice under Section 9A (1)(C)(ii)(a) and (b). The said choice is between the comparable representati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance has been placed in the judgment dated 23.03.2005 in Shenyang Mastsushita S Battery Co.Ltd. Vs. Exide Industries Ltd. and Ors . ( Civil Appeal No.6371 of 2003 ), wherein in paragraph 7, the Supreme Court has held as under: 7. By this notification a separate procedure was prescribed for determining the normal value of non-market economies. Paragraph 7 to Annexure I now provides for the determination of the normal value with reference to the price paid by a third country with a market economy to India of a like product. If such a third country is selected, the Designated Authority has to inform the exporters of the selection and grant them a reasonable period to offer their comments. It is only if this procedure is not possible that the Designated Authority can act on any other reasonable basis . In other words, the Designated Authority must exhaust the first method before moving to the alternative procedure . 130. By referring to the aforesaid provisions, it is stated in paragraph 4 of the affidavit dated 04.10.2018 that in the case at hand before the Supreme Court, there was some cooperation from the producers/exporters from China. But, however, the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta provided by him in accordance with requirement of AD Rules. Any other interested party cannot proxy or file data on behalf of any producer/exporter for obtaining a specific Normal Value for that exporter. Therefore, the petitioner in the instant case has no locus standi for claiming a NV for a non-cooperative exporter. Mere participation of one or many importers with no cooperation from producers/exporters of the exporting countries does not deprive the respondent to apply the provision of Rule 6(8). Therefore, the submission by the petitioner on this count is highly misplaced and not tenable. If this plea was to be accepted then mere participation of one Interested party will devoid the authority i.e. the pleading respondent to apply best facts under Rule 6(8) for evaluating different parameters of investigations making Rule 6(8) otiose. It is also important to note that the petitioner in the instant case neither filed a review before the Authority, nor have the petitioner imported participated. 133. In M/s. Haldor Topsoe (supra), the Supreme Court while analyzing the provisions of Rule 6(4), 6(8) and 8 of the ADR 1995, arrived at a conclusion that if acceptable mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esignated authority can act on any other reasonable basis, which in other words means that the designated authority must exhaust the first method before adopting the alternative method of determining the normal value on the basis of the price paid for the like product in India. 136. An understanding of the view taken by the Supreme Court in paragraph 15 of M/s. Haldor Topsoe (supra) in respect of Rule 6(8) of the ADR 1995 would be that in the event the interested party refuses access or does not provide the necessary information, the designated authority may record its findings on the basis of facts otherwise available to it. But on the other hand, if the interested party cooperates and provides with the information, the Supreme Court does not say that such information has to be discarded and not be considered at all by the designated authority by considering the concept of ADD to be exporters specific and thereby determine the normal value on the basis of other available facts before it. In respect of invoking the powers under paragraph 7 of Annexure-1 of ADR 1995, before going for the alternative method of determining the normal value on the basis of the price paid for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as regards the accuracy of such information and only upon arriving at such satisfaction, it may either accept or reject by providing its own reasons. But without undertaking such exercise to satisfy itself as regards its accuracy, it would be incorrect on the part of the designated authority to discard such information without even making an attempt to consider it and satisfy itself as regards its accuracy. 141. Only upon such information provided by the interested party being rejected on being not satisfied, the designated authority may record its findings on the basis of other facts available before it. 142. In the event, the designated authority seeks to invoke the provisions of paragraph 7 of Annexure-1 of ADR 1995 to determine the normal value in the exporting non-market economy country by relying upon the price paid in India of the like article, as held by the Supreme Court in Shenyang Mastsushita S Battery Co.Ltd (supra), the procedure of adopting a selected third country has to be exhausted first. E) Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary 143. From the discussions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the reliance on the alert circular of the DRI, the same is in the nature of a general warning that such declaration of higher values are also being indulged by the importers. But the existence of such alert circular by itself would not be sufficient enough to arrive at a conclusion that the information provided by the interested party in each and every case involves a declaration of a value higher than the actual value. If the designated authority takes a view that the information provided by the interested party is not to be acted upon as it may contain an over invoiced or a higher value than the actual value, the authority is also required to arrive at a specific satisfaction that the information provided in the instant case also are over invoiced or provides a value than the actual value. Without arriving at such specific satisfaction it would be unsafe to conclude that merely because there is a possibility of there being an over invoicing or stating a higher value than the actual value therefore all such information provided by an interested party are to be construed to be containing an over invoiced or a higher value than the actual value and accordingly, rejects such infor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aged in the manufacture of the link article and any activity connected therewith or those whose collective output of the said article constituted a major proportion of the total domestic prediction of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term domestic industry may be construed as referring the rest of the producers. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if (i) the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - for the purposes of this clause,- (i) producers shall be deemed to be related to exporters or importers only if,- a) one of them directly or indirectl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for warehousing purpose to the customs while importing the subject goods from the subject countries, but they had not filed the bill of entries for home consumption and had sold the subject goods imported by them on ex-bond basis to the various buyers. (b) The intervener GSFC had not paid sales tax on the imported product and sold it on ex-bond basis and instead the eventual importer who had filed the bill of entry for home consumption had paid the import taxes including customs duty, etc. (c) An intervener GSFC had sold the subject goods without significant additions for profit and the records indicate that it was sold for a marginal profit and in some cases also for marginal loss. 153. In paragraph 19 of the said final findings, the designated authority concluded that the intervener GSFC had not filed the bills of entry for home consumption and instead had filed it for warehousing purpose and thereafter the actual consumers had filed the bills of entry for home consumption directly. In the process although the intervener GSFC had imported and sold the subject goods, the authority was of the view that the focus of GSFC had not turned to imports and is not behaving l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted that merely because of such consumers are indulging in the imports through the intervener GSFC by virtue of being their consumers, therefore, they are not subjected to an ADD and their imports be construed to be a part of the production of the domestic industry. We cannot accept a situation where we would have two sets of importers, one being the importers simpliciter who directly imports from the importing country and the other being a class of importers who imports the same article through the intervener GSFC. 159. Merely importing the article through the intervener GSFC will not bring in such importers within the concept of an intelligible differentia so as to satisfy the test of reasonableness for being accepted as a separate classification. In the absence of any such intelligible differentia if a classification is brought in, in respect of the importers who does their import through the intervener GSFC so as to be bestowed with the benefit of not being to subjected to ADD, the classification sought to be made would violate the provisions of equality under Article 14 of the Constitution of India. If by virtue of the country from which such exports are made would no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14 of the Constitution of India. G) Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange rate as it prevailed in the year 2015 from the Peoples Republic of China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate. 164. Without going much deeper into the question whether the determinations and evaluations made in terms of USD at an exchange rate as it prevailed in the year 2012 for imports from countries under European Union, Iran, Indonesia and Japan and at an exchange rate, as it prevailed in the year 2015 from China had created any inconsistent situation because of the subsequent fluctuations in the exchange rate, we merely express our concern that what would be the effect of such fluctuation on the evaluation of the landed price of the imported article in India and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being the requirement of any determination of fact. In view of the above as the principles which govern the maintainability of a writ petition under Article 226 of the Constitution as per the propositions laid down by the Supreme Court are present in the instant case, we are of the view that the writ petition would be maintainable in spite of the provisions of Section 9C of CTA 1975. 168. We have taken note of that during the pendency of the writ petition, the final findings were submitted by the designated authority vide notification F. No. 7/14/2017-DGAG dated 19.02.2018 as regards the sunset review of the anti-dumping investigation concerning imports of melamine from European Union, Iran, Indonesia and Japan. From the final findings dated 19.02.2018, in paragraph 35 the non-injurious price arrived at is shown as *** . Further in paragraph 68 it had been provided that since none of the producers/exporters had participated, the designated authority by invoking Rule 6(8) had appropriately referred the best available information. Again from paragraph 23 of the final findings dated 19.02.2018 it can be taken note of that the constructed normal value as well as the margin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Cost) in the office of the respondent No. 3, which provides for a review to be made at the instance of the interested parties if they are being aggrieved with the manner and the determination of the ADD made earlier. 171. In view of the provisions of the notification dated 18.06.2019 requiring the interested parties to request for a review if they are so aggrieved by the continued imposition of the ADD and also in view of the provisions of Section 9A(5) read along with the proviso thereof and further in view of the provisions of Rule 23 (1A), we are of the view that the ends of justice would be met in the designated authority undertakes an exercise to review the requirement of imposing an ADD for the import of melamine from the Peoples Republic of China and as required under Rule 23(3), such review be done by following the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 of the ADR 1985. In doing so the provisions of Rules 6(8), 7, 8 and Rule 16 be followed in the manner in which the said rules had been interpreted in this judgment. 172. Further it is provided that as required under Rule 12 the preliminary findings be submitted within a period of 6 months ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
