Case Law Details
Century Plyboards (I) Ltd. And Anr Vs UOI (Guwahati High Court)
FULL TEXT OF THE JUDGMENT/ORDER of GAUHATI HIGH COURT
Heard Dr. A Saraf, learned senior counsel for the petitioners. Also heard Mr. H Gupta, learned CGC for the respondent No.1 being the Union of India and Mr. SC Keyal, learned counsel for the respondent No.2 being the Director General of Anti Dumping Duties (DGAD) as well as Mr. Pragyan Pradip Sarma for the respondent No.3 being the Gujarat State Fertilizers and Chemicals Ltd.
2. The petitioner is an importer of an article named ‘Melamine’ which is used as a raw material for the production of plyboard and other articles. The respondent No.3, Gujarat State Fertilizers and Chemicals Ltd., is a domestic industry engaged in the production of Melamine.
3. Section 9A of the Customs Tariff Act, 1975 provides that where any article is exported from any country or territory, 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 anti dumping duty not exceeding the margin of dumping in relation to such articles, not exceeding the margin of dumping in relation to such article. In other words, if the importer of the article concerned indulges in the import thereof at less than its normal price, such importer may be subjected to the payment of anti dumping duty. The purpose of Section 9A of the Customs Tariff Act, 1975 is to protect the domestic industries who are also engaged in the production of such article which may be imported at less than its normal value.
4. In order to determine the anti dumping duty that may be required to be imposed, there is also a requirement under the law to determine the non-injurious price of the article concerned with respect to the domestic industry.
5. The principles governing the determination of the normal value export price and margin of dumping is provided under Annexure-1 with reference to Rule 8 of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short, the AD Rules of 1995).
6. Rule 8 of the AD Rules of 1995 inter alia provides that except in cases referred to in Sub-Rule (8) of Rule 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based.
7. Rule 5 of the AD Rules of 1995 provides for initiation of investigation. Rule 5(1) inter alia provides that except as provided in sub-rule (4) thereof, the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. In exercise of power under Rule 5(1) of the AD Rules of 1995, the respondent No.3 Gujarat State Fertilizers and Chemicals Ltd., had made their application before the designated authority for the purpose of initiation of investigation. Rule 6(2) of the AD Rules of 1995 inter alia provides that a copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, as well as to the Governments of the exporting countries concerned and other interested parties, inasmuch as, they are importers of the article concerned, who may also participate in the process of initiation of the investigation. The process resulted in the disclosure statement dated 02.02.2022 bearing F.No.6/1/2021-DGTR of the Government of India, Ministry of Commerce & Industry, Department of Commerce, Directorate General of Trade Remedies.
8. The petitioners in this writ petition is aggrieved to the extent that the factual and circumstantial inputs that were taken into consideration by the designated authority as regards the domestic industry while arriving at the disclosure statement dated 02.02.2022 were also based on certain factual and circumstantial inputs which related to the Covid19 pandemic period.
9. It is the contention of the petitioners that the Covid19 pandemic period for the purpose of all activities including commercial activities may contain factual and circumstantial inputs which may be at a variance compared to such factual and circumstantial inputs pertaining to a normal period. It is the apprehension of the petitioners that the disclosure statement dated 02.02.2022 in the manner as it exists as on today, if leads to a final determination on the non-injurious price which may ultimately be the basis for imposition of the anti dumping duty and which would remain in force for a period of five years since its determination would adversely affect the petitioners inasmuch as the duty imposed may be on the basis of certain factual and circumstantial inputs which were at a variance with that of what would have been for a normal period. Without expressing any view on the merit of such claim, if certain factual and circumstantial inputs pertaining to the Covid19 pandemic period which may be at a variance from the inputs that may have been in the normal period are made the basis for the final determination of the non-injurious price as well as the consequential anti dumping duty that may be imposed may be incorrect.
10. The petitioners claim that they have already submitted a representation dated 09.02.2022 before the designated authority on the issue as to whether any incorrect factual and circumstantial inputs were made the basis of arriving at the disclosure statement. As incorporation of incorrect factual and circumstantial inputs to arrive at the non injurious price may lead to an incorrect imposition of anti dumping duty, we are of the view that interest of justice would be met on the designated authority giving a due consideration to such representation of the petitioner and pass a reasoned order thereon. We also allow the petitioners to bring in any supplementary representation raising any further issue which may indicate to any incorrect factual and circumstantial inputs being taken into consideration and the designated authority to consider the two representations conjointly and pass a reasoned order thereon. We also require the designated authority while considering the representation/representations not to pass a mechanical order either accepting or rejecting the same, but to consider each and every item that may be raised in the representation and upon making a factual determination to pass a reasoned order thereon. It is stated that some of the issues pertaining to the factual and circumstantial inputs which otherwise are provided by the domestic industry can also be verified from the contemporary data on the same transaction which may be available with the GST department and in order to arrive at a correct factual determination, such data may also be taken into consideration.
11. We further take note of Clause 4 of the disclosure statement dated 02.02.2022 which is extracted as below:
–4. Notwithstanding the facts given in this Disclosure Statement (including facts given on a confidential basis), the Designated Authority would consider all replies given on merits in order to arrive at a final determination,”
12. Clause 4 which provides that notwithstanding the fact given in the disclosure statement including the facts given on a confidential basis, the designated authority would consider all replies given on merits in order to arrive at a final decision, we are of the view that the requirement to give a consideration on the representation would also be in conformity with the provisions of clause 4 of the disclosure statement dated 02.02.2022. An apprehension is raised that as per the prevailing law, the final determination on the disclosure statement is required to be made on or before 25.02.2022. We are not expressing any view on the said submission, but at the same time leave it to the authorities to undertake the process indicated above with due earnest and pass a reasoned order as required under the law by giving a due consideration to the issues that may be raised and in doing so, the provisions of proviso to Rule 17(1) of the AD Rules of 1995 may also be taken note of.
13. The reasoned order as required be passed as expeditiously as possible so that the process initiated under the law is not inhibited in any manner. In doing so, if necessity arises, the respondent No.3 may also be given an opportunity to substantiate their version for the factual and circumstantial inputs.
14. The further representation that may be submitted by the petitioners may preferably be done through the electronic means and be submitted on or before 25.02.2022.
15. As submitted by Mr. SC Keyal, learned counsel for the respondent No.2 in making such determination as certain aspect of the factual and circumstantial inputs are mentioned in the writ petition, the same would also be considered by the designated authority. We agree to such contention of Mr. SC Keyal, learned counsel for the respondent No.2.
16. The writ petition stands disposed of in the above terms.
