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TMI Blog2002 (5) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... mping duty on dumped articles. -Section 9A. Where any article is exported from any country or territory(1) (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Section 9B. (1) ……. The Central Government may, by notification in the Official Gazette make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which any investigation maybe made for the purposes of this section, the factors to which regard shall be at in any such investigation and for all matters connected with such investigation. Section 9C. Appeal. - (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Gold (Control) Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping in relation to import of any article; (b) to identify the article liable for anti-dumping duty; (c) to submit its findings, provisional or otherwise to Central Government as to - (i) normal value, export price and the margin of dumping in relation to the article under investigation; and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. (d) to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, and the date of commencement of such duty; and (e) to review the need for continuance of anti-dumping duty. Rule 5 relating to initiation of investigation and Rule 6 which incorporates principles governing investigations, being relevant are extracted in full :- Initiation of investigation. - (1) Except as provided in sub-rule (4) the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following : - (i) the name of the exporting country or countries and the article involved; (ii) the late of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. A(2) copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to - (i) the known exporters or to the concerned trade association where the number of export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 no such information shall be disclosed to any other party without specific authorisation of the party providing such information. The designated authority may require the parties providing information on confidential basis to furnish non-confidential summary thereof and if, in the opinion of a party providing such information, such information is not susceptible of summary, such party may submit to the designated authority a statement of reasons why summarisation is not possible. Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorise its disclosure in a generalised or summary form, it may disregard such information. Rule 12 deals with preliminary findings. Since the preliminary findings record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollected from the importer. If,(2) the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. If(3) the provisional duty imposed by the Central Government is withdrawn in accordance with the provisions of sub-rule (4) of rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the importer. 5.It is now necessary to notice certain undisputed events. Respondents 6 and 7 which are two of the largest producers of PSF within the country filed application dated 30-4-2001 and revised application on 31-5-2001 seeking for initiation of anti-dumping investigation with respect to imports of certain PSF (hereinafter referred to as 'the subject goods') which are being imported by the petitioners from four countries, namely Korea RP, Malaysia, Taiwan and Thailand. 6.The first respondent issued a public notice of initiation of investigation dated 25-6-2001 as contemplated under Rule 6(1). Such initiation was challenged by M/s. Madura Coats and others (not the present petitioners) in Karnataka High Court contending that the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was complete in all respects as per the Application Proforma to constitute a well-documented petition. Necessary evidence, additional information/clarification as prescribed in the Proforma was also sought and received in accordance with the requirement of the Rules. Thus, it was ensured that the requirements of Rule 5(1) and (2) were fully adhered to and the domestic industry complied with all its obligations under the Rules. As is evident from the above, the domestic industry fulfilled the requirements under Rule 5(3)(a) and the Explanation appended thereto, on the basis of which the Authority made a determination regarding the 'standing' of the applicants to file the petition on behalf of the domestic industry duly recorded in para 3 of the initiation notification. Further, 'sufficient evidence' with respect to dumping, injury and causal link and their adequacy as well as accuracy were available before the Authority to justify the initiation of the investigation. Therefore, the Authority is of the view that the anti-dumping proceedings initiated under the impugned notification are fully consistent with both the substantive as well as the procedural requirements under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Designated Authority are only preliminary conclusions and final findings as contemplated under Rule 17 are yet to be rendered and the petitioners cannot be said to be prejudicially affected in any manner by the provisional conclusions. It is also contended that the designated authority in the impugned order has expressly indicated that appropriate opportunity shall be given to all concerned before final findings are rendered in accordance with Rule 17 and there is no justification to challenge such preliminary findings at this stage as the petitioners would have enough opportunity to challenge the same before the designated authority and also ultimately before the appellate authority, if any levy is imposed. It has been contended that the present findings being preliminary in nature, are not binding on the Central Government and the writ petitions are pre-mature. 11.Sri P. Chidambaram, learned Senior Counsel appearing for some of the petitioners has forcefully contended regarding nonobservance of mandatory procedure contemplated under Rule 6. It has been submitted by him that after upholding its jurisdiction to initiate proceedings by the order dated 15-10-2001, the designa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court, which has been produced by the petitioners and extracted earlier does not show that the public notice dated 25-6-2001 or the initiation notification had been quashed. The Court had merely permitted the applicant before it to file its objection to the initiation notification permitting such applicant to raise all contentions which are available to such applicant including the contentions raised in the writ petition which was obviously for quashing the initiation notification dated 25-6-2001 as evident from the order of the High Court. The High Court had further directed the designated authority to decide the issue with regard to jurisdiction as a preliminary issue after hearing the contesting parties and any other persons who may file their objections before the authority. The High Court had further directed the designated authority to communicate such orders on the preliminary issue to all the parties and "thereafter would give a respite to his proceedings for a period of 15 days." (emphasis added). 14.A perusal of the aforesaid order clearly indicates that the impugned notification had not been quashed, but the designated authority had been merely called upon to de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Rule 6(6) in contra distinction with the language used in Rule 6(2), (3) and (5). It has been submitted by him and in my view with enough justification, that the rule making authority had merely used the expression that the designated authority "may allow" an interested party or its representative "to present the information relevant to the investigation orally" and there is no mandatory indication that the designated authority is bound to allow such an opportunity. He has further submitted that the question of granting such an opportunity would arise only where the interested party makes a prayer for such an opportunity in which event the designated authority may allow such an opportunity, though it may not be obligatory to grant such opportunity in every case. It is to be noticed that even where a person is allowed to present information orally such oral information is to be taken into account only when it is reproduced subsequently in writing. It is significant to note that in the same Rule 6 at several places where the Rule making authority expected the designated authority to follow a particular course in taking decision, the word "shall" is used, whereas in Rule 6(6) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . For the aforesaid purpose they have particularly drawn my attention to the decision of the designated authority in Paragraphs 91, 94 and 95 of the order dated 15-10-2001. In Paragraph 91 it was observed : . . .The Authority found 'sufficient evidence' regarding the existence of a causal link to justify the initiation of the investigation. However, a detailed examination of the issues would be carried out after taking into account the arguments as well as the evidence produced by various interested parties during the course of investigation. In Paragraph 94 - . . . Therefore, the Authority is of the view that the anti dumping proceedings initiated under the impugned notification are fully consistent with both the substantive as well as the procedural requirements under the law. For95. all these reasons, the Designated Authority is of the opinion that this is the matter which requires to be investigated in accordance with the anti-dumping rules and regulations. 18.Relying upon these observations, the learned counsels have strenuously contended that the authority thus took the decision on 15-10-2001, the matter "requires to be investigated under anti dumping rules and reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plated under Rule 6(6). Learned Additional Solicitor General has rightly rebutted the submission by observing that the designated authority is only purporting to follow the procedure contemplated under Rule 12(2). On the other hand he has submitted that the very fact that respondent No. 1 has again invited objections and given opportunity of hearing to the persons concerned would rather indicate that the persons including the petitioners would have further adequate opportunity to present their case and the impugned preliminary findings would not prejudice them in any manner as they would be in a position to seek for termination of the investigation as contained in Rule 14(b). 22.Submission of the learned Additional Solicitor General to the effect that the petitioners are not in anyway prejudiced as they had enough opportunity to file their objections pursuant to the public notice and private notice under Rule 6(2) and their sole intention is to prolong the proceedings on some technical plea or other with a view to frustrate the very purpose of having an investigation cannot be rejected outright. He has invited my attention to a letter issued as per which various companies have pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at this stage in exercise of jurisdiction under Article 226 to embark upon an enquiry regarding the vulnerability of the conclusions which are merely recommendatory in nature. 25.Learned Counsel for the petitioners, particularly Mr. Habibullah Badsha has challenged the validity of Rule 7 on the ground that this Rule has given unbridled power on the designated authority to withhold any relevant information. It has been pointed out that in the absence of any guidelines indicated to control the untrambled discretion conferred on the designated authority under Rule 7, the designated authority is likely to decide the matters relating to confidentiality arbitrarily. 26.It has to be noticed that the designated authority is a high ranking experienced officer in the rank of Joint Secretary to the Central Government. He is expected to act according to the purpose for which the statutory provisions relating to anti dumping have been incorporated in the Act and the Rules have been framed. It is obvious that he has to be guided by the indications given in the Act as well as the Rules. Merely because there is some apprehension that the authority may be abused in a given case is not a groun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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