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Customs, Excise and Gold Tribunal – Delhi
Jujo Thermal Ltd. vs Designated Authority on 7 November, 2000
Equivalent citations: 2001 (73) ECC 189, 2000 (122) ELT 695 Tri Del


ORDER

K. Sreedharan, J. (President)

1. These three appeals arise out of the Customs Notification No. 39/2000 dated 6th April, 2000 issued by the Government of India, Ministry of Finance. As per that notification, anti-dumping duty at the rate mentioned in the Schedule attached to it has been levied with effect from the date of imposition of the provisional anti-dumping duty, i.e., 11th October, 1999 on Thermal Sensitive Paper (hereinafter referred to as TSP) exported from European Union and Japan. M/s. Mitsubishi HITEC Paper, a manufacturer of TSP in European Union has been directed to pay anti-dumping duty at the rate of Rs. 1.61 per sq. metre and in respect of other exporters from the European Union at the rate of Rs. 1.84 per sq. metre. Exports from Japan were subjected to anti-dumping duty at the rate of Rs. 1.62 per sq. metre.

2. The above notification is questioned by M/s. Jujo Thermal Ltd. of Finland, a manufacturer of TSP in Finland, by filing appeal No. C/373/2000-AD. M/s. All India Thermal Paper Dealers’ Association question the correctness of the imposition of anti-dumping duty on TSP falling under Chapter 48 exported to India from subject countries. Domestic Industry, namely, M/s. Shree Krishna Paper Mills and Industries Ltd. in their appeal No. C/240/2000-AD prays for amendment of the notification by directing levy of duty in US $ terms. In other words, they want the quantum of duty notified by the Central Government converted to US $ and duty levied accordingly from the date mentioned in the notification.

3. Since all these appeals arise out of the same notification based on the finding arrived at by the Designated Authority, we consider it advantageous to dispose of them by a common order. Issues raised by the learned counsel representing the appellants in the first two appeals mentioned earlier are one and the same. Therefore, those appeals are dealt with first.

4. Main argument advanced by the learned Counsel is that during the period of investigation, TSP was not exported to India from Finland. Even though Finland was a country forming part of European Union, it was dealt with separately by the Designated Authority in the notification initiating the proceedings, Preliminary Finding and Final Finding. In the Preliminary Finding, the Designated Authority specifically found that there were no imports of TSP into India from Finland during the period of investigation. This will show that goods from Finland was not being dumped into India. But in the Final Finding the Designated Authority suggested imposition of anti-dumping duty at a higher rate than that was fixed in relation to M/s. Mitsubishi HITEC Paper, in relation to the exports from all countries forming part of European Union. This was clearly wrong. According to learned counsel, when exports from Finland were sought to be made subject to payment of anti-dumping duty, fresh notice of the intention on the part of the Designated Authority to make liable the exports from Finland should have been issued to the manufacturers in Finland. This having not been done, the Final Finding arrived at by the Designated Authority and the consequent notification issued by the Central Government imposing anti-dumping duty on exports from Finland forming part of European Union is illegal. Learned counsel also raised a contention that the notification issued by the Central Govt. is void, inasmuch as it has been issued in violation of the principles of natural justice. According to learned Counsel, Central Govt., which decided, should have heard the parties. Since no hearing was given to the parties by the Central Govt., which took the decision, the notification is legally unsustainable.

5. Section 9A(1) of the Customs Tariff Act, 1975 deals with the provisions relating to imposition of anti-dumping duty. Clause (1) of that Section begins by saying:

“Where any Article is exported 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

….”

What is the effect of the words put within brackets in the above clause? According to us, the words within the brackets explain words “country or territory” coming in that clause. This can only mean that wherever the word “country” is used, it can mean “country” or “territory”. Likewise, if the word “territory” alone is used, it will take within its ambit “country” as well. The words within the brackets fully explain the meaning that country and territory are interchangeable and are used synonymously.

6. Anti-dumping investigation was initiated by issue of notification dated 10th March, 1999 as against imports of Thermal Sensitive Paper (TSP) from Japan, Finland, Germany and European Union. Finland is a country forming part of the territory known as European Union. In other words, even though Finland was independently dealt with in the proceedings, it was a country forming part of European Union. Exporters from Finland did not cooperate in the proceedings. It was so, because there was no export of TSP from Finland to India during the period of investigation, namely, 1st April, 1998 to 31st December, 1998. Being a country falling within the territory of European Union against which also proceedings under the anti-dumping provisions were initiated, they were separately dealt with. This will not mean that they are not part of the territory falling within the European Union. One exporter in the territory, namely, M/s. Mitsubishi HITEC Paper cooperated in the investigation. So, they were dealt with separately and a lesser antidumping duty was imposed. In respect of all other exporters from the territory falling within the European Union, a higher anti-dumping duty was imposed. In view of the provisions contained in the Act and the Rules, this alone could have been resorted to by the Designated Authority and the Central Govt. This is more so, because exporters from Finland did not cooperate in the investigation during the time of investigation. During the time of investigation, there were no exports from Finland of TSP to India. So, the exporters from all the countries falling within the European Union were treated as non-cooperating exporters and the higher duty was imposed.

7. As stated earlier, Finland was not exporting TSP to India during the period of investigation. Manufacturers in Finland began to export their goods to India subsequently. In this situation, it was not open to them to challenge the notification. Their remedy is to have review of the notification as provided by the Act and the Rules. In this situation, we are of the view that the first two appeals dealt with herein are ill-conceived.

8. Reference was made to the provisions contained in Rule 14(d) of the Anti-dumping Rules to contend that the said provision does not take note of territories but only countries. Finland being an independent country, it was argued that the volume of exports forms that country or the potential of that country in dumping the goods should have been separately dealt with. If the imports from Finland account for less than 3% of the imports to India, then the Designated Authority should have terminated the investigation as against the goods imported from Finland. We do not find any merit in this contention. Even though Finland is a country by itself, it forms part of the territory known as European Union. When that territory is dealt with separately, the country forming part of that territory is also taken within its ambit. Viewed in that light, we hold that there is no merit in the contention raised by the learned counsel representing the appellants in the two appeals that the proceedings, which culminated in the final notification, are bad on account of Finland having not been dealt with separately.

9. Designated Authority in the preliminary finding and final finding considered all relevant factors for finding out the normal value of TSP manufactured in the territory comprised within European Union. Margin of dumping was also assessed in terms of the available data. Injury margin, landed value and fair selling price were also fixed on acceptable data. No argument was advanced by learned counsel appearing on behalf of the appellants in the first two appeals questioning the correctness of the above assessments made by the Designated Authority. So, we do not find any ground to interfere with those findings.

10. On the basis of the decision in Gullapalli Nageswam Rao and Ors. v. Andlira Pradesh State Road Transport Corporation and Anr., AIR 1959 SC 308, learned Counsel representing the appellants in these appeals submitted that the Central Govt. before issuing the notification pursuant to the finding arrived at by the Designated Authority, should have afforded an opportunity of being heard to the exporters from Finland and the importers of TSP from Finland, before issuing the notification. According to counsel, in the instant case, the Central Govt. violated the principles of natural justice, which mandates that the person who decides must hear. Consequently, it was contended that the order is bad. We do not find any merit in this contention either. Section 9A(6) authorised the Central Govt. to make Rules for the purpose of imposing anti-dumping duty. The Rules so framed authorise the Designated Authority to recommend the anti-dumping duty on the basis of which Central Govt. is to issue notification. These Rules do not contemplate a second hearing to the foreign manufacturer or exporter. As per the Rules, the Designated Authority is invested with the power to identify the Article liable for anti-dumping duty and to submit its finding on the quantum of antidumping duty which would be adequate to remove the injury to domestic industry. It was this suggestion made by the Designated Authority that was to be the basis for the final notification to be issued by the Central Govt. So, as per the provisions contained in the Act and the Rules, a second hearing by the Central Govt. before issuing the notification is not contemplated. When the statutory provision and the Rules Rule out a second hearing by the Central Govt. before issuing the notification, principles of natural justice cannot be pressed into service to upset the notification issued by the Central Govt.

11. In view of what has been stated above, we do not find any merit in the first two appeals mentioned earlier.

12. The third appeal mentioned above is one filed by the Domestic Industry. Their prayer before us is that the anti-dumping duty should have been imposed in US $ terms and not in Indian rupees. This Tribunal was consistently taking the view that anti-dumping duly must be in US $ terms (vide final order Nos. 37-40/2000-AD dated 6-11-2000). Otherwise, according to us, by appreciation of the value of US $ in which the international transactions take place, the anti-dumping duty will get eroded if the anti-dumping duty is allowed to be in Indian rupee. Accordingly, we allow the appeal filed by the domestic industry. It means the Schedule of anti-dumping duty attached to the notification issued by the Central Govt. has to be modified. The Schedule will read as follows :

Anti Dumping Duty in US $

S. No. Country Exporter Amount US $ per Sq. metre

1. European Union (1) M/s. Mitsubishi (1) 0.03842
HITEC Paper

(2) Others (2) 0.04390

2. Japan All Exporters 0.03865

The notification will stand modified as above.


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