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2007 Supreme(Del) 2333
High Court Of Delhi
GITA MITTAL
ESSAR STEEL LIMITED - Appellant
Versus
UOI - Respondents
Writ Petition (Civil) 71 Of 2004
Decided On : 10/09/2007
JAY SAVLA, KRISHAN VENUGOPAL, MEENAKSHI ARORA, P.P.Malhotra, PRASAD VIJAY KUMAR, REENA BAGGA, SIDHARTH
Headnote:
The petition challenges the order dated 27th August, 2003 passed by the Designated Authority in exercise of its powers under Section 14 (b) of the Customs Tariff Act, 1995 and Customs tariff (Identification, Assessment and Collection of Anti Dumping Duty on dumped Article and for Determination of Injury) Rules, 1995 whereby the designated Authority in the Directorate of Anti-Dumping in the Ministry of commerce, New Delhi informed the petitioners of its decision to terminate anti-dumping investigation into imports of Hot rolled coils, Sheets, Plates and strips originating in or exported from South Africa, Rumania, Venezuela, saudi Arabia, European Union, Australia, Canada and Singapore.
Fact of the Case:
The petitioner has urged that the Indian Steel Industry had been shut out of industrial trade on account of the anti-dumping, countervailing duties or safeguard measures undertaken by the United States of America, European Union, canada, China, South Africa, Indonesia and Thailand. On a complaint that exports from South Africa, Romania, Venezuela, Saudi Arabia, European Union, australia, Canada and Singapore were resulting in dumping of their products in india causing injury to the domestic industry, the petitioners consequently made an application in April, 2002 seeking imposition of anti dumping duties in respect of the imports from these countries. It is the petitioner's contention that the Designated Authority formally issued an initial notification only on 25th September, 2002 in purported exercise of powers under rule 5 of the aforenoticed anti dumping rules.
Finding of the Court:
The Designated Authority arrived at a conclusion that the imports from venezuela, Saudi Arabia, Canada and Singapore were less than 3% and cumulatively accounted for 4. 88% of the total imports and hence are deminimis. These countries consequently being below the prescribed limit did not qualify for cumulative assessment and could not be proceeded against. This reasoning and consideration is based on the Customs Tariff (Anti Dumping Duty) Rules 1995.
Issues: 1. Whether the Designated Authority has committed a patent error of taking into account undumped imports from the subject countries? 2. Whether the Designated Authority was bound to take action based on the information provided by the petitioners with regard to the estimated normal value in the United kingdom and the Netherlands? 3. Whether only a finding of dumping based on facts available under rule 6 (8) could have been reached by the designated Authority for imports from the UK and the Netherlands because no exporter from these countries responded?
Ratio Decidendi: 1. The Designated Authority has not excluded the deminimis volume of imports from the subject countries from its computation of the total volume of imports as evidenced from the tabulation set out in the notification. There is substance in the contention of the respondent no. 1 that there is a typing error in noting the total volume of imports at 136850 metric tonnes whereas the same actually read 150542 metric tonnes. This is manifested by the tabulation of the Authority. 2. The Designated authority has considered the same also at great length. From the data submitted by the petitioners, the Designated Authority has concluded that the CIF value of the subject imports from the European Union was higher then the non injurious price of the domestic industry and the minimum import price. The Designated authority has assessed the degree of price under cutting based on the landed value of the subject goods from the subject countries. A conclusion has been reached that there was no undercutting the prices of the domestic product, irrespective of whether the subject goods were dumped or not. 3. The Designated Authority has noticed that even if the imports of the subject goods by cooperating exporters from germany are excluded, the cif value of the dumped subject goods from the EU is higher than the NIP of the domestic industry and the minimum import price stipulated in the DGFT notifications which were applicable at the relevant time. Consequently the apprehension of injury based on imports from Germany has been found to be misconceived.
Final Decision: The writ petition is dismissed.
( 1 ) BY this writ petition the petitioners have laid a challenge to the order dated 27th August, 2003 passed by the Designated Authority in exercise of its powers under Section 14 (b) of the Customs Tariff Act, 1995 and Customs tariff (Identification, Assessment and Collection of Anti Dumping Duty on dumped Article and for Determination of Injury) Rules, 1995 whereby the designated Authority in the Directorate of Anti-Dumping in the Ministry of commerce, New Delhi informed the petitioners of its decision to terminate anti-dumping investigation into imports of Hot rolled coils, Sheets, Plates and strips originating in or exported from South Africa, Rumania, Venezuela, saudi Arabia, European Union, Australia, Canada and Singapore.
( 2 ) BOTH the petitioners are stated to be engaged in the manufacture and production of steel and steel products. The Steel Authority of India, the petitioner no. 2 has claimed that it produces approximately 50% of India's steel, which has been disputed by the intervenor.
( 3 ) INDIA has effectuated measures to protect the domestic industry following the principles laid down in the General Agreement on Tariffs and trade, 1994 (GATT for brevity) whereby the member countries agreed on certain principles to be followed for imposition of anti-dumping duties, countervailing duties and safeguard measures. Member countries of the World Trade organisation were party to this agreement. The legislature effected statutory amendments to the Customs Tariff Act, 1973 which were effectuated with effect from 1st January, 1995 to bring the statute in line with the provisions of article 6 of GATT, 1994. Dumping, in simple language, takes place when an exporter sells a product to India at a price less than the price prevailing in its domestic market. Though dumping per se has been held not to be condemnable. However, if such dumping causes or threats to cause material injury to the domestic industry of India, the statute has prescribed certain measures to be taken. There is no dispute that the Designated Authority has been duly nominated by the Central Government in compliance with the requirements of the statute.
( 4 ) THE petitioner has urged that the Indian Steel Industry had been shut out of industrial trade on account of the anti-dumping, countervailing duties or safeguard measures undertaken by the United States of America, European Union, canada, China, South Africa, Indonesia and Thailand. On a complaint that exports from South Africa, Romania, Venezuela, Saudi Arabia, European Union, australia, Canada and Singapore were resulting in dumping of their products in india causing injury to the domestic industry, the petitioners consequently made an application in April, 2002 seeking imposition of anti dumping duties in respect of the imports from these countries. It is the petitioner's contention that the Designated Authority formally issued an initial notification only on 25th September, 2002 in purported exercise of powers under rule 5 of the aforenoticed anti dumping rules. The Designated Authority in the impugned order has pointed out that the preliminary scrutiny of the application revealed deficiencies which were required to be rectified by the petitioners and it was only thereafter considered as properly documented.
( 5 ) ON a prima facie view, based on the material placed by the petitioners before it, the Designated Authority decided to initiate investigation against the alleged dumping of imports of the aforenoticed products from the subject countries noticed hereinabove.
( 6 ) SO far as notice to the concerned parties is concerned, the Designated authority in compliance that sub rule 5 (5) of the rules, notified the embassies of the subject countries/territories about the receipt of the dumping allegations before proceeding to initiate the investigation. A public notice dated 25th September, 2002 was also published in the gazzette of India Extraordinary initiating the anti dumping i
