2006 Supreme(SC) 263

2006(3) Supreme 292
SUPREME COURT OF INDIA
(From Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi)
Ashok Bhan and G.P. Mathur, JJ.
Rishiroop Polymers Pvt. Ltd.—Appellant
versus
Designated Authority & Addl. Secretary—Respondents
Civil Appeal No. 773 of 2001
With
Civil Appeal Nos. 1703 of 2006
(Arising out of SLP (C) Nos. 22905-22906 of 2003)
Civil Appeal Nos. 7159-7161 of 2004
And
Civil Appeal No. 7162 of 2004
Decided on 23-3-2006
Counsel for the Parties :
For the Appellant : R. Parthasarathy, S. Seetharaman, Jay Savla and Ms. Reena Bagga, Advocates.
For the Respondents : K. Radhakrishnan, Sr. Advocate, Rudreshwar Singh, T.A. Khan, P. Parmeswaran, Amit Tiwari, V.K. Verma, L.P. Asthana, Arun K. Sinha, Rakesh Singh, Ms. Mausmi Saikia and Mukesh Sinha, Advocates.
For the Applicant/Intervenor : Ajit Kumar Sinha, V. Balachandran, Advocates.

IMPORTANT POINT
The conversion of anti-dumping duty in US Dollar terms in the absence of any appeal or cross appeal, is not justified.

Headnote:Customs Tariff Act, 1975—Sections 9A, 9B and 9C—Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995—Rules 2(b), 3, 4, 5, 11, 17 and 23—Imposition of anti dumping duty—Method of determination of injury—Procedure to be followed to levy duty on importation of foreign articles which were found to be dumped in India at a price which was lower than the normal price of such imported goods in their country of manufacture/origin—Principles on which determination are done—Appellant is sole agent of Acrylonitrile Butadiene Rubber as manufactured by a Korean Company—Subject goods are being imported into India for near about a decade—Anti-dumping duty proceedings relating to export of NBR from Germany and Korea—By taking into consideration the cumulative effect of imports from both the countries, designated authority came to the conclusion that the injury was suffered by the domestic industry—As per findings, duty was slightly enhanced in so far as Germany was concerned and partially reduced in so far as the export from Korea was concerned—Whether order imposing anti dumping duty is sustainable—(Yes)—Finding recorded by the tribunal in converting anti dumping duty from rupee term to US dollar term set aside.

       Held : Section 9A provides that where any article is exported from any country or territory to India at less than its normal value then upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Export price in relation to an article has been defined to mean the price of the article exported from the exporting country and the normal price has been defined to mean the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country. The designated authority after considering the entire data of facts came to the conclusion that the article NBR exported to India from Korea and Germany was not de minis as the difference in price in the local market (India) and the price at which it was sold in the country of export was more than 2% and further the total quantity exported from Korea was more than 3% of the total imports. That the injury was caused to the domestic industry. In so far as causal link was concerned, it was held that because of the NBR exported to the country a material injury had been caused to the domestic industry.(Para 18)

       The only argument pressed before us is regarding the conversion of anti-dumping duty from US Dollars terms by the Tribunal on its own volition even though there was no prayer by the appellant or a cross appeal/objection by the respondent. Another aspect highlighted by the learned counsel for the appellant is relating to violation of para (iv) of Annexure II of the Rules while assessing injury. Shri A. Sharan, learned Addl. Solicitor General of India, after taking instruction from the Union of India conceded that the Tribunal erred in converting the anti-dumping in US Dollar terms in the absence of any appeal or cross appeal by the respondent. He conceded that the order passed by the Tribunal in converting the anti-dumping duty in US Dollar terms be set aside and order of the designated authority in imposing the anti-dumping duty in rupee term be restored. It is so ordered.(Paras 22 and 23)

       The point regarding the violation of parameters laid down in para (iv) of Annexure II to the Rules has also not been taken in the special leave petition. The finding recorded by the designated authority being essentially a finding of fact having not been questioned before the Tribunal cannot be permitted to be raised for the first time in this Court during the course of the argument.(Para 24)

       Scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domestic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer.(Para 35)

       The Designated Authority in the Mid Term Review has reduced the anti-dumping duty from US dollar 264 per MT to US dollar 348 per MT. This again shows that all the relevant material facts had been taken into consideration by the Designated Authority while analyzing the injury caused to the domestic industry.(Para 38)