Gujarat High Court
Epigral Limited(Meghmani Finechem ... vs Union Of India on 25 April, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025
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Reserved On : 13/03/2025
Pronounced On : 25/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15673 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 15673 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
✓
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EPIGRAL LIMITED(MEGHMANI FINECHEM LIMITED)) & ANR.
Versus
UNION OF INDIA & ORS.
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Appearance:
Learned Senior Advocate Mr. Mihir Joshi with
learned advocate Mr. Dhaval Shah for the
petitioners.
Learned ASG Mr. N. Venkatraman with learned
advocate Mr. Ankit Shah for respondent nos. 1
to 3 and 7.
Learned Senior Advocate Mr Kamal Trivedi with
learned advocate Mr. Rajesh Sharma with
learned advocate Ms. Gargi Vyas with learned
advocate Mr. Vinay Bairagra with learned
advocate Mr. Utshav Shukla for respondent
no.4.
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NEUTRAL CITATION
C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025
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Learned Senior Advocate Mr. Balbir Singh with
learned advocate Ms. Gargi Vyas for respondent
no.5
Learned Senior Advocate Mr. Pragyan Pradip
Sharma with learned advocate Mr. Rajesh Sharma
with learned advocate Ms. Gargi Vyas for
respondent no.6.
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned Senior Advocate Mr. Mihir Joshi with learned advocate Mr. Dhaval Shah for the petitioners, learned ASG Mr. N. Venkatraman with learned advocate Mr. Ankit Shah for respondent nos. 1 to 3 and 7, learned Senior Advocate Mr. Kamal Trivedi with learned advocate Mr. Rajesh Sharma with learned advocate Ms. Gargi Vyas with learned advocate Mr. Vinay Page 2 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Bairagra with learned advocate Mr. Utshav Shukla for respondent no.4, learned Senior Advocate Mr. Balbir Singh with learned advocate Ms. Gargi Vyas for respondent no.5 and learned Senior Advocate Mr. Pragyan Pradip Sharma with learned advocate Mr. Rajesh Sharma with learned advocate Ms. Gargi Vyas for respondent no.6.
2. This petition was filed initially with a prayer to prohibit the respondent authorities from issuing notification levying provisional duty under Rule 13 of the Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty) Rules, 1995 (here-in-after referred to as "the Anti-Dumping Rules") and to quash and set aside preliminary Page 3 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined findings dated 30.10.2024 issued under Rule 12 of the Anti-Dumping Rules. Thereafter through draft amendment it was prayed to quash and set aside Addendum Notification dated 16.12.2024.
Facts:
3. The petitioner no.1 company is engaged in the manufacture of Chlorinated Polyvinyl Chloride Resin (For short "CPVC") which according to the petitioners is a critical material used in production of pipes and fittings, particularly, for safe and non-hazardous conduction of potable water. It is the case of the petitioners that to manufacture CPVC, petitioner no.1 relies heavily on Page 4 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined specialised grades of PVC Suspension Resins imported from China PR, Indonesia, Japan, Korea PR, Taiwan, Thailand and USA. The grade of PVC is dependent upon its polymerization ability which is measured by its 'K' value. Petitioner no.1 specifically imports PVC Suspension Resins having 'K' value of 57 and 65 which are specialised grades essential for the safe and non-hazardous manufacture of CPVC pipes and fittings for potable water supply.
4. Petitioner no.1 commissioned its CPVC Resin plant at Dahej in Gujarat in June 2022 with a production capacity of 30,000 tons per annum (TPA) which was enhanced by an additional 45,000 TPA in April 2024 Page 5 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined which has made petitioner no.1 company as the largest producer of CPVC at a single location globally.
5. According to the petitioners, CPVC market in India has reached over 225,000 TPA in FY 2023-2024 and is expected to grow at CAGR more than 10% over the next decade whereas the present CPVC resin capacity is 97,000 TPA. According to the petitioners, Indian manufactures were primarily dependent on imports of CPVC Resin but today with the CPVC domestic production of petitioner no.1 company, Indian CPVC import dependence has come down by 40%. Petitioner no.1 is further expanding and doubling its manufacturing capacity from 75,000 tons to 150,000 tons TPA.
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6. Respondent no.3 Designated Authority in accordance with provisions of the Customs Tariff Act, 1975 (For short "the Act") as amended from time to time and the Anti-Dumping Rules for initiating anti-dumping investigation concerning imports of Polyvinyl Chloride Suspension Resins (which is referred to as "product under consideration" or the "subject goods") originating in or exported from China PR, Indonesia, Japan, Korea RP, Taiwan, Thailand and United States of America (for short "subject countries") on the basis of prima facie case submitted by Domestic Industry i.e. respondent nos. 4 to 6.
7. Designated Authority issued a Page 7 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined public notice vide Notification No.6/33/2023-DGTR dated 26.03.2024 published in the Gazette of India Extraordinary, initiating the subject investigation in accordance with section 9A of the Act read with Rule 5 of the Anti-Dumping Rules to determine existence, degree and effect of the alleged dumping of the product under consideration originating or exported from the subject countries and to recommend the amount of anti-dumping duty, which if levied, would be adequate to remove the alleged injury to the domestic industry.
8. Thereafter vide communication dated 25.04.2024, a virtual meeting was notified to be held on 30.04.2024 to consider and finalise the product Page 8 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined in consideration and methodology. The petitioners made submissions dated 06.05.2024 in response to the meeting held on 30.04.2024 for exclusion of the specialty grades of PVC resins used by the petitioner no.1 for manufacturing of CPVC since specialty grades mentioned in Notification dated 26.03.2024 were never produced by the domestic industry nor they were technically and commercially substitutable and interchangeable product in the domestic industry whereas specialty grade PVC suspension resins were utilised by the petitioner no.1 for end use manufacture of PVC and not for trading purpose. It was also pointed out that during the period of investigation SPVC were not Page 9 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined manufactured in India at all.
9. Thereafter Director (FT) issued notification/communication dated 13.05.2024 operating under respondent no.2 Directorate General of Trade Remedies stipulating the final PUC/PNC methodology of anti-dumping investigation concerning the imports of PVC Suspension Resins (for short "SPVC") originating from the subjected country as under :
"2. In the light of the submissions made by the interested parties, the final scope of the product under consideration will be as follows:
"Homopolymer of Vinyl Chloride Monomer (suspension grade) also known as PVC Suspension Resin manufactured through suspension polymerisation process with K- value above 55 and upto 77. The following are excluded from the scope of the product under Page 10 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined consideration.
i. Ultra-low K-value PVC
Suspension Resins (K-value upto
55)
ii. Ultra-high K-value PVC
Suspension Resins (K-value above
77)
iii Cross-linked Poly Vinyl
Chloride
iv. Chlorinated Poly Vinyl
Chloride
v. Vinyl Chloride Vinyl Acetate
Copolymer (VC-Vac)
vi. Poly Vinyl Chloride Paste
Resin
vii. Mass Polymerisation PVC viii. Poly Vinyl Chloride Blending Resin
3. Further, there is no requirement of PCN wise analysis in the present investigation. Accordingly, the Authority had decided to proceed with the investigation without PCNs.
4. It is also informed to all interested parties that this is the final PCN/PUC notification. Further, no modification/comments/ arguments would be entertained by the Authority regarding PCNs."Page 11 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
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10. The petitioners, therefore, made a representation dated 12.07.2024 pointing out that specialty grades SPVC imported by the petitioner no.1 were not manufactured in India and therefore, further investigation was necessary. As no response was received to the said communication, another representation was made by the petitioners before respondent no.2 on 06.09.2024 raising objections to the proposed action of respondent authority followed by another representation dated 16.09.2024.
11. The petitioners thereafter addressed a communication dated 15.10.2024 to the respondent no.3 requesting for a further detailed Page 12 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined inquiry into classification of Product Under Consideration (for short "PUC").
12. The petitioners thereafter preferred Special Civil Application No.15221 of 2024 challenging the notification/ communication dated 13.05.2024 raising the grievance that respondent no.3 without dealing with reply dated 06.05.2024 unilaterally declared final scope of the PUC and the products imported by the petitioners could not have been included in PUC which is basic raw material used to manufacture CPVC by the petitioners.
13. Special Civil Application No.15221 of 2024 was disposed off by order dated 22.10.2024 by observing as Page 13 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined under:
"13. Having heard learned advocates for the respective parties and considering the submissions canvassed before us, it is not in dispute between the parties that respondent No.3 is in process of the investigation as contemplated under Rules 4, 5 and 6 of the Rules 1995 and the contentions raised by the petitioner is at premature stage which would jeopardize the entire process initiated by the respondent No.3.
14. We are therefore of the opinion that we would not like to interfere at this stage on merits of the matter. The petition therefore being premature is accordingly dismissed at this stage. No order as to costs."
14. The petitioners thereafter filed additional submission by letter dated 24.10.2024 requested respondent no.3 to exclude the specialty grades SPVC imported for CPVC manufacture by the petitioners from the scope of Page 14 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined investigation.
15. Thereafter, respondent no.3 Designated Authority issued the impugned notification dated 30.10.2024 containing preliminary findings recommending the imposition of provisional anti-dumping duty equal to the lesser of margin of dumping and the margin of injury so as to remove the injury to the domestic industry on the import of the subject goods originating in or exported from the subject countries on the date of notification to be issued in this regard by the Central Government equal to the amount indicated in Column no.7 of the duty table appended to the notification.
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16. In the impugned Notification of Preliminary Findings dated 30.10.2024, in Para Nos.14 and 15, the Designated Authority referred to the objections raised by the petitioners to exclude the few grades of SPVC which are specialty grades, but did not consider the same on the ground that the petitioners had claimed confidentiality with regard to the additional submission of exclusion of specialised graded SPVC imported for manufacture of CPVC which reads as under :
"14. The Authority notes that Epigral Limited has requested exclusion of few grades of PVC Suspension Resins terming the same as "specialty grades".
Epigral has claim confidentiality with regard to its additional submissions on exclusion of specialised grades imported for manufacture of C-PVC. Such Page 16 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined confidentiality claimed is excessive and thus, does not allow other interested parties including the domestic industry to rebut the claims made by Epigral. The Authority is advising to Epigral to share a proper non-confidential version of the submissions which allow reasonable understanding of the same. The Authority intends to examine the issue of exclusions requested by Epigral post circulation of such submissions and receiving comments from the domestic industry, thereafter.
15. The interested parties may provide further information and evidence with regard to the possible need for exclusion of any grade. The authority would consider all the submissions made by Epigral, domestic Industry and interested parties for the purpose of final determination, after providing opportunity of submissions by the interested parties and an opportunity of being heard orally."
17. On 20.11.2024 when this matter was taken up for hearing, learned advocate Mr. Ankit Shah appeared on advance copy on behalf of respondent Page 17 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined nos. 1 to 3 whereas learned Counsel for respondent nos. 4 to 6 appeared on caveat. During the course of the said hearing, learned advocate for the petitioners submitted that the petitioners have already made an application before respondent authorities that confidentiality for details submitted by the petitioners is not claimed. Learned advocate for the respondents prayed for time to file reply and therefore, notice was issued on 20.11.2024 making it returnable on 27.11.2024. On 27.11.2024 learned advocates for the parties prayed for time and matter was adjourned to 29.11.2024. On 29.11.2024, learned advocate Mr. Ankit Shah for the respondent nos. 1 to 3 Page 18 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined referred to the communication dated 28.11.2024 from respondent no.2 addressed to him and submitted that the petitioners have already made a communication to the respondent authorities to the effect that confidentiality qua the details submitted by the petitioners is not claimed.
18. In view of such submission, following order was passed on 29.11.2024 in the interest of justice as well as in facts of the case to resolve the issue raised in the petition for not considering the objections raised before respondent no.3 for exclusion of specialty grades SPVC from the scope of investigation of the PUC:
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NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined "1. Heard Mr.Mihir Joshi, learned Senior Advocate with Mr. Dhaval K.Shah, learned Advocate for the petitioners & Mr.Vikram Naik, learned advocate for the petitioners; Mr. Kamal Trivedi, learned Sr.Advocate with Mr.Rajesh Sharma, learned advocate & Ms. Gargi Vyas, learned advocate for the respondent Nos.4 and 5 and Mr.Pragyan Pradeep Sharma, learned Advocate with Mr. Rajesh Sharma, learned advocate & Ms. Gargi Vyas, learned advocate for the respondent No.6.
2. Learned advocate Mr.Ankit Shah for the respondent Nos. 1 to 3 referred to the communication dated 28 November, 2024 from the th respondent No.2 - Director General of Trade Remedies, Govt. of India, New Delhi addressed to him and submitted that the petitioners have now informed the respondent No.2 that on 23rd November, 2024 that the confidentiality qua the details submitted by the petitioners is not claimed.
3. In view of the above submissions, the following order is passed in the interest of justice as well as in the facts of the case to resolve the issue raised in this petition.
(1) The respondent No.2 shall share the information which was Page 20 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined claimed to be confidential up to 23rd November, 2023 with the members of the domestic industries i.e. respondent No. 4,5 and 6 on or before 4th December, 2024.(2) The respondent Nos. 4,5 and 6
shall file their objections or reply with regard to the objections raised by the petitioners for exclusion of the item from the product under consideration (PUC) on or before 6th December, 2024.
(3) The petitioners shall file rejoinder if any to such reply on or before 10th December, 2024. (4) The respondent No.2 shall finally decide the issue of exclusion of Special grade SPVC as claimed by the petitioners to be excluded or not from the product under consideration (PUC) on or before 16th December, 2024 by providing opportunity of hearing to the petitioners as well as respondent Nos.4, 5 and 6 and other stakeholders if any and place the order which may be passed on the record of this petition on or before the next date of hearing.
Learned advocate Mr. Ankit Shah for the respondent is directed to communicate to the respondent Nos. 1,2 3 and 7 not to take any Page 21 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined further action to implement impugned order till the next date of hearing.
Needless to say that the petitioners and respondents shall cooperate and comply with the aforesaid directions.
Stand over to 18th December, 2024."
19. On 18.12.2024 learned advocate Mr. Ankit Shah for the respondent no.2 submitted that in compliance of order dated 29.11.2024, respondent no.3 has passed an Addendum Notification dated 16.12.2024 - further order and placed the same on record by additional affidavit filed on behalf of the respondent nos. 2 and 3.
20. The petitioners thereafter filed Civil Application (For Amendment) No.2 of 2024 for amendment of the petition so as to place the subsequent Page 22 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined developments of passing of Addendum Notification dated 16.12.2024 in compliance of order dated 29.11.2024 passed by this Court and challenge the same.
21. By order dated 23.12.2024, with the consent of the learned advocates for the respective parties, application for amendment was granted. Accordingly, the petitioners carried out amendment by amending the petition with prayer to quash Addendum Notification dated 16.12.2024 issued by respondent no.3 considering the submissions of the petitioners and respondents in detail rejecting the request of the petitioners to exclude the specialty grades SPVC imported by the petitioners to manufacture CPVC. Page 23 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
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22. Thereafter pleadings were completed and respondents filed affidavits in reply and petitioners also field rejoinder affidavit and the matter was heard on merits from time to time and on 13.03.2025 both the sides completed their submissions.
23. When the matter was reserved for judgment, the petitioners moved Civil Application (For Stay) No.1 of 2025 for restraining the respondents from passing the final findings as per the Anti-Dumping Rules as the period of one year was to be over on 31.03.2025.
24. This Court passed the following order on 25.03.2025:
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NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined "1. Heard learned Senior Advocate Mr.Mihir Joshi with learned advocate Mr.Dhaval Shah for the applicants, learned advocate Mr.Ankit Shah for the respondent Nos.2 and 3 and learned Senior Advocate Mr.Pragyan Pradeep Sharma with learned advocate Ms.Gargi Vyas and learned advocate Mr.Rajesh Sharma for the respondent No.6.
2. By this application, the applicants have prayed for the following reliefs:
"A. Your Lordships, be pleased to restrain the Respondents from taking any steps pursuant to the Disclosure Statement till disposed of the subject petition.
B. Ex parte ad interim interim relief in terms of prayer A above be granted;
C. This Hon'ble Court be pleased to grant such other and further relief in the interest of justice."
3.1. Learned Senior Advocate Mr.Mihir Joshi for the applicants submitted that the Special Civil Application No.15673 of 2024 is already heard and kept for Page 25 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined judgment. It was submitted that as per the provisions of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for short 'the Rules'), the respondent-Authority is required to pass an order within a period of twelve months which is expiring today and if any final order is passed by the respondent- Authority, the entire Special Civil Application and the decision which may be rendered by this Court shall become infructuous and would lead to multiplicity of the proceedings.
3.2. It was therefore prayed that the respondents may be restrained from passing the final findings order till the judgment is pronounced by this Court in the Special Civil Application No.15673 of 2024.
4.1. On the other hand, learned advocate Mr.Ankit Shah appearing for the respondent Nos.2 and 3 submitted that the respondents have not been restrained from proceeding further with the hearing and accordingly, the respondents are bound to pass an order today i.e. on expiry of twelve months as the case was initiated on 26th March, 2024. Page 26 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined 4.2. It was therefore submitted that unless and until appropriate order is passed by this Court, the respondents will have no option but to pass the final findings order during the course of the day.
5. Learned Senior Advocate Mr.Pragyan Pradeep Sharma for the respondent No.6 submitted that great prejudice will be caused to the respondent No.6 if the respondents are restrained from passing the final order as the Central Government has also not levied any provisional anti- dumping duty during the pendency of the petition before this Court.
6. Considering the above submissions, we are of the opinion that if any final findings order is passed by the respondent- Authorities, then the entire petition would be rendered infructuous as the hearing of the petition was already over on 13th March, 2025.
7. It also appears from the record that the respondent-Central Government has not implemented the provisional order passed by the Adjudicating Authority in view of the pendency of this petition. Page 27 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
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8. We are conscious that the respondent No.6 is facing the prejudice but the respondent Authority has also not exercised their discretion in extending the period in view of the provisio to Rule 17(1) of the Rules which reads as under :
"Provided that the Central Government may, [in its discretion in special circumstances] extend further the aforesaid period of one year by six months."
9. We are therefore left with no option but to restrain the respondents from passing the final order on the subject matter for four weeks from today.
10. Stand over to 30th April, 2025.
Direct Service through Email is permitted."
Submissions of the Petitioners:
25. Learned Senior Advocate Mr. Mihir Joshi for the petitioners submitted that the SPVC imported by the petitioners to manufacture CPVC being Page 28 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined specialty grade could not have been considered to be PUC as had been done vide order dated 13.05.2024 in absence of any findings that it is identical or alike to the product being manufactured by the domestic industry in India.
26. Learned Senior Advocate Mr. Joshi referred to Article VI of the General Agreement on Tariffs and Trade,1994 (GATT,1994) which provides for anti-
dumping and countervailing duties, more particularly, clauses (1) and (2) of Article VI which provides that in order to offset or prevent dumping, when the contracting party recognises that dumping by which products of one country are introduced into the Page 29 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined commerce of another country at less than the normal value of the products, which causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry, a contracting party may levy on any dumped product an anti-dumping duty not greater in amount than the margin of dumping in respect of such product.
27. It was submitted that for the purpose of Article VI of GATT, a product is to be considered as being introduced into commerce of an importing country at less than its normal value, if the price of the product exported from one country to another is either less than the comparable price, in the ordinary Page 30 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined course of trade, for the like product or in absence of such domestic price, is less than either the highest comparable price for the like product for export or the cost of production of the product in the country of origin plus a reasonable addition for selling cost and profit.
28. Thereafter, learned Senior Advocate Mr. Joshi referred to the agreement on implementation of Article VI of GATT, more particularly, Articles 2.1, 2.2 and 2.6 which refers to like product which means a product which is identical i.e. alike in all respects to the product under consideration, or in absence of such a product, another product which although not alike in all respects, has characteristics Page 31 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined closely resembling those of the product under consideration.
29. It was therefore, submitted that in order to consider the like product, the respondent authority has to come to the conclusion that PUC is "like product".
30. Reference was made to Articles 3.1 and 3.2 which provides for determination of injury for the purpose of Article VI of GATT to be based on positive evidence and involve an objective examination of both the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for "like products"
and consequent impact of such imports on domestic producers of such Page 32 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined products. It was pointed out that respondent authority is therefore, required to consider positive evidence by conducting objective examination of the volume and price of like products on the domestic industry. It was therefore, pointed out that SPVC imported by the petitioners cannot be considered a "like product"
and therefore, is required to be excluded from PUC for determination of the injury for levy of anti-dumping duty.
31. It was further submitted that Article 4 of Agreement on implementation of Article VI of GATT refers to definition of "domestic industry"
which is similar to definition as per Rule 2(b) of the Anti-Dumping Rules. Page 33 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined It was submitted that domestic industry means domestic producers as a whole of the like products or to those of them whose collective output of products constitutes a major proportion of the total domestic production of those products except when such producers are related to the exporters or importers or are themselves importers of the alleged dumped product or are themselves importers thereof. Proviso to Rule 2(b) is akin to clause (ii) of Article 4.1 which refers to exceptional circumstances.
32. Reference was also made to Article 5 which provides for initiation and subsequent investigation and more particularly, Article no. 5.4 which Page 34 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined stipulates that the authorities shall not initiate investigation, unless it is determined on the basis of examination of degree of support for, or opposition to, the application of the domestic producers of the like product and the application as per Article 5.8 must contain sufficient evidence, failing which, such application is bound to be rejected by the Designated Authority.
33. It was submitted that GATT 1994 has been the basis of the Anti-Dumping Rules to give effect to sections 9A, 9AA and 9C of the Act which have been introduced pursuant to GATT and therefore, Rules 2(b) defining "domestic industry", Rule 2(d) defining "like articles", Rule 4 Page 35 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined pertaining to duties of the Designated Authority and Rule 5 which provides for initiation of investigation of Anti-Dumping Rules are compared with the relevant Article VI of GATT to submit that it is essential for the Designated Authority to satisfy on the basis of the examination of the degree of support for, or opposition to, the application expressed by the domestic producers of the like product and not the examination of the importers.
34. It was therefore, submitted that determination of PUC is the very foundation for second stage of investigation for determination of the injury on account of the dumping suffered by the domestic industry and without identifying the product under Page 36 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined consideration, determination of injury to the domestic industry would be a futile exercise.
35. It was therefore, submitted that foundation for initiation of investigation regarding existence, degree and effect of any alleged dumping is to determine the product under consideration being the like article liable for anti-dumping duty.
36. Learned Senior Advocate Mr. Joshi invited the attention of the Court to the application filed by respondent nos. 4 to 6 and submitted that on the basis of the contents of the application for initiation of the investigation as per Rule 5(1) of the Anti-Dumping Rules, the ingredients of Page 37 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Sub-Rule (2) of Rule 5 are not fulfilled in absence of any determination by the Designated Authority of the like product/Articles as provided in Sub-Rule (3) of Rule 5 of the Anti-Dumping Rules.
37. It was therefore, submitted that concept of like articles or like product is crucial to start or continue investigation to come to the conclusion that there is injury to the domestic industry due to import of the like articles at lesser price than the normal value for levy of anti-dumping duty.
38. It was submitted that SPVC imported by the petitioners which was meant to manufacture CPVC used for the pipes Page 38 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined for portable water supply are neither produced by respondent nos. 4 to 6 nor the same are technically or commercially substitutable and interchangeable with grades commercially produced in industry.
39. Learned Senior Advocate Mr. Joshi further submitted that the respondent no.3 Designated Authority has failed to examine the submissions of the petitioners on technical and commercial substitutability aspects of the SPVC of specialty grade imported by the petitioners and brushed aside the same in para no.12 of the Addendum Notification that no evidence was provided by the petitioners that SPVC of specialty grade imported by the petitioners is technically distinct Page 39 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined from the grade applied by DCW Ltd.. It was submitted that the Designated Authority relied upon the data provided by the domestic industry including the lab reports to come to the conclusion that the grade supplied by DCW Limited is comparable in terms of density and porosity, the two parameters highlighted by the petitioners with the product imported by the petitioners. It was therefore, submitted that the Designated Authority instead of examining independently the submission of the petitioners that the products which are imported by the petitioners are not the like articles has considered as the products which are produced by the domestic industry.
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40. It was further pointed out that in para nos. 13 to 16 of the Addendum Notification, the Designated Authority has adopted an approach of comparing the products imported by the petitioners to be used for any other purpose instead of examining as to whether other product is commercially and technically substitutable or not.
41. It was submitted that the production details of SPVC submitted by DCW Limited during the period of investigation i.e. upto 30.09.2023, clearly shows that DCW Limited or any other domestic industry did not produce the specialty grade SPVC imported by the petitioners on commercial basis.
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42. It was therefore, submitted that the Designated Authority has given a contradictory finding in para nos.17 and 18 of the impugned Addendum Notification dated 16.12.2024 by shifting the burden upon the petitioners stating that the petitioners did not approach the domestic industry or bought the subject goods from domestic industry and thereafter communicated to the domestic industry regarding deficiency, if any, in the subject goods for manufacturing of CPVC.
43. It was submitted that the submissions of the petitioners have been brushed aside by concluding that different groups of PVC Suspension resins have been used for making CPVC resins and Page 42 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined there is no exclusive group of PVC suspension resins that is commonly used for the purpose of making CPVC Resin. It was therefore, submitted that the Designated Authority has failed to consider that the respondent nos. 4 to 6 have given an incorrect information that they have not imported the subject goods in India during the period of investigation vis-a-vis different 'K' value of the product S-65C and other specialty grades imported by the petitioners.
44. Reliance was also placed on the report from the Bureau of Indian Standards (BIS) dated 21.06.2024 (page no.376/143 of the paper book) and submitted that BIS has categorically stated that CPVC Resin, Grade 1 and Page 43 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Grade 2 are not suitable for products used in contact with foodstuffs, pharmaceutical and drinking water. It was therefore, submitted that the findings arrived at by Designated Authority that there are no specialty grades of SPVC to manufacture CPVC for pipes for drinking water is also not correct.
45. Reference was made to PVC specification issued by BIS (page 413 of the paper book) which stipulates that PVC resins comes in different grades and are classified based on viscosity behavior, particle size distribution, apparent bulk density etc. and each of these grades are used for diverse applications. These resins typically have a nominal specific Page 44 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined gravity of 1.4 and theoretical chlorine content of 56.8 percent.
46. Reference was also made to Special Requirements of Polymer used for molding or extrusion articles in contact with Foodstuffs, Pharmaceutical and drinking water (page no.416 of the paper book) which stipulates that when products are used in contact with foodstuffs with pharmaceutical and drinking water, its requirements with respect to the material shall also be made as per IS 10151.
47. It was submitted that the petitioners in the letter dated 16.09.2024 has explained in detailed technical difference between locally available Page 45 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined SPVC vis-a-vis imported SPVC for CPVC application and has also drawn distinction that DCW's PRO 65 shows a poor level of oversize and scale resulting into low porosity and uneven particle size distribution leading to shorter gelation speed which is not favorable for CPVC Resin manufacturing.
48. Reliance was also placed on transcript of investors/analyst call to point out that DCW produced its CPVC without using its own PVC which was at 'R' and 'D' stage at the relevant point of time in February 2024 i.e. after the period of investigation. It was therefore, submitted that respondent Designated Authority has ignored the material placed on record by the Page 46 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined petitioners.
49. It was submitted that lab reports submitted by DCW Limited are on the basis of samples drawn by itself and as such, such lab reports could not have been relied upon by the Designated Authority to compare the bulk density and porosity without independent examination or investigation.
50. Learned Senior Advocate Mr. Joshi also in support of his contention that writ petition is maintainable against preliminary findings of Designated Authority, relied on the decision in case of Nirma Ltd v. Sai Gobain Glass India Ltd. reported in 2012(281) ELT 321 (Mad) and in case of Nirma Page 47 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Limited v. Union of India reported in 2017 (346) ELT 328 (Guj.) Submissions of the Respondents:
a) Submissions of learned Senior Advocate Mr. Kamal Trivedi for respondent no.4:
51. Learned Senior Advocate Mr. Kamal Trivedi referred to the findings of the Designated Authority in the Addendum Notification from para nos. 12 to 20 and submitted that the Designated Authority has after considering the submissions of the petitioners and the domestic industry has come to the conclusion that specialty grade SPVC imported by the petitioners cannot be excluded from the product under consideration as the same are not found exclusive, clearly identified category Page 48 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined of PVC Suspension Resin which is unique for manufacturing of CPVC resin because what is imported by the petitioners can be used for other applications and there are other PVC Resins which have been used for manufacture of CPVC resins and the subject goods produced by the domestic industry are like articles to the product under consideration imported from subject countries.
52. It was submitted that definition of "like article" as per Rule 2(d) more particularly, second limb which provides that in absence of like articles, another article which although not alike in all respects has characteristics closely resembling those of the articles under Page 49 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined investigation is deemed to be like article and therefore, it was submitted that different grades of subset of SPVC is nothing but subset of one product i.e. PVC with 'K' value above 55 and upto 77.
53. Reference was made to para no. 3.15 of Manual of Operating Practices for Trade Remedy Investigations(here-in-after referred to as "the Standard Operating Practices).
54. Learned advocate also referred to lab report submitted by the petitioners which was found to be of no value in view of the reply given by the laboratory that it does not have facility for testing of PVC Resins which is placed on record along with additional affidavit. Page 50 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
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55. It was therefore submitted that in absence of any evidence submitted by the petitioners to justify that it can manufacture CPVC only by using SPVC specialty grade imported by it, it cannot be said that the Designated Authority has committed any error to come to the conclusion regarding technical and commercial substitutability aspects.
56. In support of his submission, reliance was placed on the decision in case of Andhra Petro Chemicals v. Union of India reported in 2018 SCC OnLine Hyd 1914 wherein Hon'ble Hyderabad High Court after considering the definition of "like articles" under Rule 2(b) of the Anti- Dumping Rules held that without considering the submissions of the Page 51 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined parties, the Designated Authority failed to appreciate evidence/information that like articles are interchangeable in usage and are considered to be substitutable products by rejecting the application of the petitioners for initiation of investigation to determine in respect of import of acyclic alcohol.
57. Learned Senior Advocate Mr. Trivedi also raised preliminary objection with regard to the maintainability of the writ petition against the preliminary findings on anti-dumping investigation. Reliance was placed on decision of Delhi High Court in case of Indian Express Newspapers (Bombay) Ltd. v. Union of India reported in 2003(157)ELT 138 (Del) to submit that petition is premature and petitioners are at liberty to raise contention before the Page 52 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Designated Authority who is still seized off the investigation to arrive at final finding and on basis of such findings, if the Central Government decides in favour of imposing duty, whether provisional or otherwise, the petitioners would have remedy available under the law. It was submitted that the Hon'ble Delhi High Court has taken into consideration that imposition of provisional duty is guided by the paramount consideration of protecting the domestic industry to eliminate dumping and tampering with the process midway and delay imposition of anti-dumping duty. It was therefore submitted that the petition should not be entertained. It was therefore submitted that petition deserves to be dismissed more particularly, when the Designated Page 53 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Authority after considering the submissions made by the petitioners pursuant to the order passed by this Court has arrived at a conclusion which is not final and the reliance placed on the data available on record by the Designated Authority considering the lab reports of accredited laboratories regarding density and porosity of the material produced by the domestic industry and comparing the same with the imported products, clearly shows that nature of investigation is in consonance with Rules 4, 6 and 8 of the Anti-Dumping Rules.
58. Reliance was also placed on the decision of Delhi High Court in case of Saint Gobain Glass India Ltd. v. Union of India reported in 2009 (24) ELT 495 (Del.) to submit that the Court should be slow in Page 54 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined entertaining the petition only when there is complete lack of jurisdiction or palpable error so grave which requires imminent interference by this Court.
59. Reliance was placed on the decision in case of Designated Authority and others v. Andhra Petrochemicals Limited reported in (2020) 10 Supreme Court Cases 209 wherein the Apex Court regarding entertaining writ petition under Articles 226 of the Constitution of India as under :
"31. Keeping the imperative of completion of investigation within a predetermined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance. The relevant provisions of the Manual are extracted below:
"5.9 The POI proposed in the Page 55 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data.
5.10 The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only) instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period."
32. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the Page 56 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this Court's opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.
33. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this Court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry concerned, judicial review should not be exercised virtually as a continuous oversight of the DA's Page 57 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined functions. This Court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA."
60. It was therefore, submitted that in absence of any evidence that SPVC imported by the petitioners is specialty grade to manufacture CPVC and further in absence of any evidence that SPVC having different grades cannot be used to manufacture CPVC as against sufficient evidence produced by respondent nos. 4 to 6 that SPVC produced in India is equivalent to the imported SPVC grade fulfilling the second limb of definition of "like article" as per rule 2(d) of the Anti-Dumping Rules, no interference is required to be made in the impugned preliminary findings read with Addendum Notification as it cannot be said Page 58 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined that decision making process of the Designated Authority is arbitrary as due process is complied with.
b) Submissions of learned Senior Advocate Mr. Balbir Singh for respondent no.5
61. Learned Senior Advocate Mr. Balbir Singh for respondent no.5 submitted that the petitioners have the remedy to challenge the final findings by appeal under section 9C of the Act.
62. Referring to Rule 5(1) of the Anti-Dumping Rules, it was submitted that Anti-Dumping Rule 5(1) provides for initiation of investigation by the Designated Authority to determine three aspects namely (i) existence, (ii) degree and (iii) effect of any alleged dumping and therefore, the provisions of Rule 5(2) to 5(5) provides Page 59 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined for the procedure of examination of application filed by the domestic industry to determine the dumping, injury and casual link between such dumped imports and the alleged injury by the domestic producers of the like product to justify the initiation of an investigation. It was therefore, submitted that till the stage of Rule 16 regarding disclosure of information before giving final findings, the Designated Authority is required to inform all the interested parties of the essential facts under consideration which form the basis of its decision. Therefore, the present petition is a pre-mature petition as the Designated Authority has already taken to initiate investigation considering the product under consideration of PVC Resins of K Value Page 60 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined greater than 55 and less than 77 which includes SPVC of alleged specialty grade imported by the petitioners also. It was therefore, submitted that the petition may not be entertained at this stage as the petitioners would be entitled to make the submissions before the Designated Authority after the stage of Rule 16 of the Anti-Dumping Rules of disclosure of information.
63. Learned Senior Advocate Mr. Balbir Singh also referred to the history of levy of anti-dumping duty on imports of PVC Suspension Resins since 2005 to demonstrate that all the grades of SPVC were covered under the PUC since then. It was submitted that the final findings of the Designated Authority dated 26.12.2007 Page 61 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined excluded specialty PVC Suspension Resins such as cross-linked PVC, CPVC etc. but all grades were covered under PUC. Similarly, in the year 2014, 2019 and 2023, PUC included all grades. It was also pointed out that the petitioners are consuming about 14 Grades of SPVC and 6 Grades of Mass PVC, out of which petitioners have only claimed S-65C and SG66J specialty grades of which only 15 metric tons of S-65C and 18 metric tons of SG66J were imported by the petitioners during the period of investigation. It was therefore, submitted that the claim of the petitioners that it has imported specialty grade SPVC to manufacture SPVC for drinking water is not supported by any evidence.
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64. In support of his submissions, reliance was also placed on the following decisions:
1) Dinesh Goyal alias Pappu v. Suman Agarwal reported in (2024) SCC OnLine Sc 2615.
2) Life Insurance Corporation of India v.
Sanjeev Builders Private Limited reported in (2022) 16 SCC 1.
3) Alkali Manufacturer Association of India v. Designated Authority and ors reported in (2016) 11 SCC 165.
4) Designated Authority and others v. Andhra Petrochemicals Limited reported in (2020) 10 SCC 209.
5) Commissioner of Customs v. G.M. Exports and others reported in (2016) 1 SCC 91.
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6) Saurashtra Chemicals Ltd v. Union of India reported in (2009) 17 SCC 529.
7) Tata Chemicals Ltd. v. Union of India reported in (2008) 17 SCC 180.
8) Designated Authority & ors v. Sandisk International Limited and ors. reported in (2018) 13 SCC 402.
9) Reliance Industries Limited v. Designated Authority and others reported in (2006) 10 SCC 368.
10) Rishiroop Polymers (P) Ltd. v. Designated Authority and another reported in (2006) 4 SCC 303.
11) Rishiroop Polymers (P) Ltd. v. Designated Authority & anr. reported in (2006) 4 SCC 378.
12) Indian Express Newspapers (Bombay) Ltd. v. Union of India reported in 2003 (157) ELT (138) (Del).
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13) Indian Express Newspapers (Bombay) Ltd. v. Union of India reported in 2003 (158) ELT A225(SC)
14) Bridgestone India PVt. Ltd v. Designated Authority reported in 2021(376) ELT 263 (Del)
15) Suncity Sheets Pvt. Ltd. v. The Designated Authority and others reported in (2017) SCC OnLine Del 9412
16) Shri Cheran Synthetics India Ltd v. Union of India and others (judgment dated 07.10.2009 passed in WA No. 1400 of 2009 and allied matters)
c) Submission of learned Senior Advocate Mr. Pragyan Pradip Sharma for respondent no.6:
65. Learned Senior Advocate Mr. Sharma in addition to adopting the submissions made by learned Senior Advocate Mr. Kamal Trivedi and learned Senior Advocate Mr. Page 65 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Balbir Singh heavily relied upon the Manual of Operating Practices for Trade Remedy Investigations to show the process flow for such investigation and time-frame for completion of anti-dumping investigation.
66. It was submitted that as per the Standard Operating Practices, para No. 3.13 provides that the PUC should be defined accurately and in a manner that it is discernible in terms of technical and measurable parameters of distinguishable to the Customs Authorities at the time of importation and all nomenclature/ descriptions/known names of the product should be included in the scope of PUC. It was pointed out that PUC should have been defined in terms of physical, technical Page 66 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined and other properties and characteristics and therefore, the test to determine the PUC is adopted by Designated Authority in accordance with the Standard Operating Practices and bulk density and porosity of 'K' value of the alleged specialty grade of SPVC imported by the petitioners is same as there is no physical and technical difference and the chemical composition is also same. It was pointed out that respondent no.6 DCW Limited is manufacturing SPVC and being a domestic industry is suffering losses because of the lesser value of the imported materials and when the Designated Authority has arrived at findings of fact as to whether products imported by the petitioners can be excluded or not from the scope of product under consideration and whether it Page 67 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined is like article or not during the course of the proceedings, no interference is required to be made by this Court as the final findings are yet to be arrived at by the Designated Authority. In support of his submissions, reliance was placed on the following decisions:
1) Huawei Technologies Co. Ltd v.
Designated Authority reported in 2016 (334) ELT 339 (Tri-Del)
2) Kajaria Ceramics Ltd. v. Designated Authority reported in 2006 (195) ELT 146.
3) Merino Panel Products v. Designated Authority reported in 2016 (334) ELT 552
67. Reliance was also placed on the decisions Page 68 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined of European Commission for imposing provisional anti-dumping duty on imports of Polyethylene Terephthalate Film originating in India and Republic of Korea. Referring to such decisions, it was submitted that when the Designated Authority as per the provisions of the Act and the Anti-Dumping Rules has come to the conclusion that the products claimed to be of specialty grade imported by the petitioners are commercially and technically substitutable, same were rightly not excluded from the scope of product under consideration.
68. With regard to the maintainability of the writ petition, reliance was placed on the following decisions:
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1) Indian Express Newspapers (Bombay) Ltd. v. Union of India(supra)
2) Bridgestone India PVt. Ltd v.
Designated Authority (supra)
3) Saurashtra Chemicals Ltd v. Union of India (supra)
d) Submissions of learned ASG Mr. N. Venkatraman for respondent nos. 1 to 3 and 7
69. Learned ASG Mr. N. Venkatraman reiterated the findings given by the Designated Authority in the Addendum Notification dated 16.12.2024 and emphasized that findings of the fact given by the Designated Authority regarding gradation and substitutability of the claim made by the petitioners cannot be considered at this stage. It was emphasized that the petitioners are only importing minuscule Page 70 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined quantity of the alleged specialty grade SPVC to manufacture CPVC whereas 92% of the products import have gone for non CPVC. It was submitted that the Designated Authority has applied "Acid Test" while considering the fact that the petitioners have not approached any domestic industry for purchase of SPVC so as to test the same for production of CPVC as compared to the usage of imported SPVC by the petitioners and no difference was shown by the petitioners before the Designated Authority and as such, the petitioners now cannot complain that the domestic industries are not able to produce specialty grade of SPVC which is imported by the petitioners. It was therefore, submitted that when Designated Authority has fulfilled the procedure to come to the Page 71 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined conclusion that the products imported by the petitioners are not required to be excluded from the scope of investigation of product under consideration, no interference be made in the impugned order passed by the Designated Authority.
e) Rejoinder of learned Senior Advocate Mr. Mihir Joshi
70. Learned Senior Advocate Mr. Mihir Joshi in rejoinder submitted that the writ petition is maintainable and should be entertained as there is no alternative remedy for the petitioners to challenge the preliminary findings considering the specialty grade SPVC imported by the petitioners as part of the PUC.
71. It was submitted that the Designated Page 72 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Authority did not examine the submissions and materials provided by the petitioners to come to the conclusion that there is no specialty grade SPVC to manufacture CPVC by ignoring relevant evidence. Learned Senior Advocate Mr. Joshi invited the attention of the Court to the following evidences :
(i) (Page 39 - para 24 of the paper- book) "24.The product produced by the domestic industry is like article to the goods imported from the subject countries. The product produced by the domestic industry and imported from the subject countries are comparable in terms of physical & chemical properties, functions & uses, product specifications, pricing, distribution & marketing and tariff classification of the goods. Even though there are different manufacturing process/technologies involved for production of the subject goods, the end product has comparable specifications and is used interchangeably. The product Page 73 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined produced by the domestic industry and imported into India from the subject country is technically and commercially substitutable, and the consumers are using the two interchangeably. In view of the same, the product manufactured by the domestic industry has been considered as like article to the product imported into India, in accordance with Rule 2(d) of the Rules.
(ii) Page 376/464 of the paper book "Name of the Company : - DCW Limited, Sahupuram Product : Polyvinyl Chloride Suspension (PVC Suspension) Injury Statement Non- Confidential POI-Oct-22 to June -23 Proforma IVA SN Information UOM 2020-21 2021-22 2022-23 POI POI Related to Product Under Consideratio n only Section A 9M Ann 1 Installed MT *** *** *** *** *** Capacity 2 Production MT *** *** *** *** *** 3 Capacity % *** *** *** *** *** Utilisation at Installed Capacity 4 Production Qty of MT *** *** *** *** *** PUC 5 Captive Transfer MT 6 Sales Quantity MT *** *** *** *** *** Page 74 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined 6a Domestic MT *** *** *** *** *** 6b Exports MT *** *** *** *** *** 7 Net Sales Value ₹ Lacs *** *** *** *** *** (excluding taxes) 7a Domestic ₹ Lacs *** *** *** *** *** 7b Exports ₹ Lacs *** *** *** *** *** 8 Average Selling Price Per unit 8a Domestic ₹/MT *** *** *** *** *** 8b Exports ₹/MT *** *** *** *** *** 9a No of employees Nos *** *** *** *** *** 9b Salaries and ₹ Lacs *** *** *** *** *** Wages 9c Productivity Per MT/Days *** *** *** *** *** day 9d Productivity Per MT/Nos *** *** *** *** *** employee 9e Productivity Per MT/Days *** *** *** *** *** day per employee 10a Opening MT *** *** *** *** *** Inventory 10b Closing Inventory MT *** *** *** *** *** 10 Average MT *** *** *** *** *** Inventory 10c Average MT/Days *** *** *** *** *** Inventory as no.
of days of
production
10d Average MT/Days *** *** *** *** ***
Inventory as no
of days of Sales
11 Cost and Profits
for Domestic
Operations
a Cost of Sales ₹ Lacs *** *** *** *** ***
(ex-factory)
b Commission, ₹ Lacs *** *** *** *** ***
Discounts,
Rebate,
Freight,etc
C Net Sales ₹ Lacs *** *** *** *** ***
Realisation
Page 75 of 140
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undefined
d PBT (Profit ₹ Lacs *** *** *** *** ***
Before Tax)
e Interest Cost ₹ Lacs *** *** *** *** ***
f PBIT (Profit ₹ Lacs *** *** *** *** ***
Before Interest &
Tax)
g Depreciation ₹ Lacs *** *** *** *** ******
h PBDIT (Profit ₹ Lacs *** *** *** ***
before
Depreciation,
Interest and Tax)
i Cash Profit (PBT ₹ Lacs *** *** *** *** ***
+ Depreciation)
j Cost of Sales ₹/MT *** *** *** *** ***
(ex-factory)
k Net Sales ₹/MT *** *** *** *** ***
Realisation Per
unit
l PBT (profit ₹/MT *** *** *** *** ***
before tax)
m Interest Cost ₹/MT *** *** *** *** ***
n PBIT (Profit ₹/MT *** *** *** *** ***
before interest
and tax)
o Depreciation ₹/MT *** *** *** *** ***
p PBDIT ( profit ₹/MT *** *** *** *** ***
before
depreciation,
interest and tax)
q Cash Profit (PBT ₹/MT *** *** *** *** ***
+ Depreciation)
11 Average Capital ₹ Lacs *** *** *** *** ***
employed
a Net Fixed Assets ₹ Lacs *** *** *** *** ***
b Working Capital ₹ Lacs *** *** *** *** ***
c PBIT as % of % *** *** *** *** ***
Average Capital
Employed(RO)
12 Details of Self
imports by the
applicant
a Import volume MT
No imports made by the company b Import value ₹ Lacs (CIF) Page 76 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined c Import price ₹/MT (CIF) d Resale price of ₹/MT self imported goods
(iii) (Page 376/230 of the paper book) General Description Type: Polyvinyl Chloride Homopolymer Polymerization Process: Suspension Appearance: White, free flowing powder Features and Uses:
OxyVinylsR 225P resin is often converted into a wide range of pipe sizes and types, which meet the most stringent standards for water supply and distribution. Its medium molecular weight provides excellent processing characteristics in both single and multi-screw extruders. Typical Applications include irrigation, foam core, potable water, DWV/sewer pipe, electrical conduit and rigid profiles.
Resin Properties Specification Test Method Range Inherent Viscosity (dl/g) 0.880-0.920 OxyVinyls 1386 Page 77 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Relative Viscosity 2.12-2.19 Correlation K Value 64-65 Correlation Volatiles (%) 0.24 Max. OxyVinyls 1242 Malvern Particle Size % Retained on 40 mesh 0.5 Max OxyVinyls 1505 % Retained on 60 mesh 7.0 Max OxyVinyls 1502 % Retained on 200 mesh 15.0 Max % Retained on Pan 5.0 Max Residual Monomer (ppm) 3.2 Max OxyVinyls 1005 Apparent Bulk Density 0.515-0.575 OxyVinyls 1501 (g/cc) STM Cell Classification GP4-16040 ASTM D 1755 CAS Number 9002-86-2
(iv) (Page 376/143 of the paper book) Dated: 21- 06-2024 Our Ref:MDBO/CM/L 6900117213 Subject: Grant of BIS Certification Marks Licence No 6900117213 as per IS 17988:2022.
M/S DCW LIMITED SAHUPURAM,,ARUMUGANERI,THOOTHUKUDI , TAMIL NADU, INDIA 628229 Dear Madams(s)/Sir, With reference to your application, we are pleased to inform you that the Certification Marks Licence has been granted to you to use the Standard Mark in respect of the followings:
CHLORINATED POLYVINYL CHLORIDE Page 78 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined CPVC RESIN SPECIFICATION Product:-
Grade/Class/Type/Variety Chlorinated Polyvinyl Chloride (CPVC) Resin, Grade 1, and Grade 2, not suitable for products used in contact with foodstuffs, pharmaceuticals and drinking water
1. The licence is granted on the explicit condition that you will mark entire/substantial production which conforms to the Indian Standards.
2. The number assigned to this licence is CM/L-6900117213 which has been made operative from 2024-
06-20 and is valid upto 2025-06-
19. The licence number should invariably be referred to in your future correspondence.
According to sub-regulation (1) &(3) of Paragraph 5 of scheme I of Schedule II under Bureau of Indian Standards (Conformity of Assessment) Regulation, 2018, the annual licence fee of Rs. 1000.00 and the marking fee for use of standard mark as per Annexure-I of Scheme I of BIS(Conformity assessment) Regulation 2018 is payable by you with effect from 2024-06-20 for the period of Page 79 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined validity of the licence in advance.
3. Minimum marking fee stipulated in Annexure -I of scheme I of BIS (Conformity Assessment) Regulation 2018 is payable by you regardless of the whether you actually mark your product or not with the Standard Mark. Our Receipt No. AA69PC2024000267 dated 2024-06-12 for the licence fee and the minimum marking fee for the first operative period is already issued.
4. This advance minimum marking fee will be carried over to the next year on every renewal. The actual marking fee calculated on the unit rate on the production marked or the minimum marking fee, whichever is higher shall be payable by you at the time of renewal.
5. With a view to streamlining the reporting of quantity marked, calculation and collection of marking fee on the unit rate basis, fees will be calculated on the production marked during the first nine months of operation of the licence at the time of first renewal, and on the production marked during twelve months comprising the last three months of the previous operative year and Page 80 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined the first nine months of the current operative year, at the time of the second and subsequent renewals. In case the licence expires, the entire production marked till the expiry date shall be taken into account for calculating the marking fee payable.
NON-CONFIDENTIAL
6. The Scheme of Testing and Inspection submitted by you and agreed by BIS or the Scheme of Testing and Inspection as specified by BIS will have to be implemented by your organization strictly and completely. This supervision of the operation of the Scheme shall be done by a person responsible for the quality control function in your organization. Kindly inform us the name and designation of the person who will be held responsible for the operation and maintenance of the Scheme. Any future change in this respect will have to be communicated by you to us as and when these take place.
7. We are enclosing a sheet giving the preferred dimensions of the Standard Mark to enable you to prepare the designs of the Standard Mark for marking the above product Photographic Page 81 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined reduction in any size is permissible. This will ensure the relative proportions of the different dimensions maintained. Preferred dimensions be used as far as possible.
8.On commencement of marking of your product for which you are licensed, you may advertise your product with Standard Mark in various media only during the validity of your licence. The use of Standard Mark on letterheads and publicity literature will be permitted only on receipt of your assurance that in the event of cancellation or lapsing of your licence, the Standard Mark on your letterheads, publicity literatures etc. will be destroyed/ obliterated.
9. This licence is granted for your factory situated at SAHUPURAM, ARUMUGANERI, THOOTHUKUDI, TAMIL NADU, INDIA 628229. Privileges under the licence shall not be exercised by any other firm company/factory etc. This licence is not transferable in the event of shifting the manufacturing and testing equipment from the licensed premises to some other place, use of Standard Mark shall be stopped till the new premises are inspected and found to be Page 82 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined satisfactory by us in respect of manufacturing and testing facilities available there and the address of the new premises is endorsed in the licence."
72. It was submitted that even the Standard Operating Practices is not followed by the Designated Authority and therefore, there is procedural lapse and objective test was conducted by the Designated Authority whether like product is manufactured by the domestic industry and no verification was made that general grade as PVC Resins can be used to manufacture CPVC pipes for drinking water.
73. It was submitted that whether the specialty grade SPVC imported by the petitioners is a like product or not is on the Designated Authority, more particularly when there are only two Page 83 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined manufactures of SPVC which are not even sufficient to meet the requirements of SPVC imported by the petitioners. It was submitted that only with a view to see that respondent nos. 4 and 6 are benefited and the petitioners are compelled to purchase the product of inferior quality from respondent nos. 4 and 6, the Designated Authority has without considering the facts has rejected the claim of the petitioners to exclude the specialty grade SPVC imported by the petitioners to manufacture CPVC for drinking water from the scope of product under consideration.
74. It was therefore, submitted that the impugned orders passed by the Designated Authority are required to be modified to Page 84 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined exclude the specialty grade SPVC imported by the petitioners from the scope of investigation of PUC, failing which, the petitioners would suffer losses which cannot be compensated and on the other hand, respondent no.6 would be given an advantage to establish monopoly market in India compelling the petitioners to purchase the similar product which is yet to be manufactured and tested to manufacture CPVC for pipes for drinking water. It was therefore, submitted that if the anti-dumping duty is levied on specialty grade SPVC imported by the petitioners to be levied as per the preliminary findings arrived at by Designated Authority, the petitioners would suffer which is contrary to the Trade Remedies and there will be no Page 85 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined levelling field giving advantage to the domestic industry contrary to the basic intention of levy of anti-dumping duty on the like products by determining the injury caused to the domestic industry.
DISCUSSION AND FINDINGS:
75. Having heard the learned advocates for the respective parties and having considered the material placed on record, the short question which arises for consideration is, whether respondent no.3 Designated Authority was justified in rejecting the prayer of the petitioners to exclude specialty grades of SPVC i.e.S65C and S66J of Formosa Plastics Corporation and S66J of Thai Polyethylene of PVC Resin imported by the petitioners to Page 86 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined manufacture CPVC from investigation of PUC or not.
76. The Designated Authority has issued Addendum Notification dated 16.12.2024 after considering the submissions made by both the sides and rejected the submissions of the petitioners holding that there is no exclusive clearly identified category of SPVC which is unique for manufacturing CPVC as SPVC imported by the petitioners can be used for other applications and there are other SPVCs which have been used for manufacture of CPVC. Respondent no.3 Designated Authority, therefore, came to the conclusion that the alleged specialty grade SPVC imported by the petitioners Page 87 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined are technically and commercially substitutable and the subject goods produced by domestic industry are like articles to the product under consideration imported from the subject countries within the scope and meaning of Rule 2(d) of the Anti- Dumping Rules and claim of the petitioners to exclude specialty grades of SPVC from the scope of investigation of PUC cannot be accepted.
77. A preliminary objection was also raised on behalf of the respondent with regard to the maintainability of this writ petition against the impugned preliminary findings dated 30.10.2024 and Addendum Notification dated 16.12.2024.
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78. Considering the submissions of both the sides, we are of the opinion that against the preliminary findings arrived at by Designated Authority, it cannot be said that there is effective remedy available as per section 9C of the Act, more particularly, when power of imposing anti-dumping duty on dumped articles emanates from section 9A of the Act which contemplates that any article is exported by an exporter or producer to India from any country at less than its normal value on such importation in India, the Government of India is entitled to notification to impose anti-dumping duty not exceeding the margin of dumping in relation to article. While section 9B Page 89 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined of the Act contemplates certain circumstances wherein no such anti- dumping duty can be imposed and section 9C of the Act provides an appeal to the Customs Excise and Service Tax Tribunal against the order of determination or review regarding the existence, degree and effect of any substitute or dumping in relation to import. Section 9C of the Act reads as under:
"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 Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereafter referred to as the Appellate Tribunal).
(1A) An appeal under sub-section (1) shall be accompanied by a fee Page 90 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal,-
(a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose:
or
(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees.
(2) Every appeal under this section shall be filed within ninety days of the date of order under appeal:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling the order appealed against. (4) The provisions of sub-section (1), Page 91 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined (2), (5) and (6) or section 129C of the Customs Act, 1962 shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member."
79. The Central Government is empowered to frame rules as per the powers conferred under section 9A(6) of the Act to ascertain and determine the manner in which article liable for any anti-dumping duty is to be identified or the manner in which export price and normal value of and margin of dumping in relation to such article is to be determined for Page 92 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined assessment and collection of such anti-dumping duty. In exercise of such powers, the Anti-Dumping Rules are framed by the Central Government.
80. Rule 3 of the Anti-Dumping Rules enables the Central Government to appoint the Designated authority whose duties are mentioned in Rule 4 which reads as under:
"Rule 4. Duties of the designated authority. - It shall be the duty of the designated authority, in accordance with these rules,-
(a) to investigate as to the existence, degree and effect of any alleged dumping 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 Page 93 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined 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 to the Central Government-
(i) 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, after considering the principles laid down in the Annexure III to these rules; and
(ii) the date of commencement of such duty,
(e) to review the need for continuance of anti-dumping duty."
81. On plain reading of above rule 4 of the Anti-Dumping Rules, the Designated Authority is empowered to investigate, identify and submit its findings provisionally or otherwise to Page 94 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined the Central Government as to normal value and injury, apart from recommending to the Central Government about the amount of anti-dumping duty and the date of commencement of the duty.
82. Respondent no.3 Designated Authority in the facts of the case has recorded the preliminary findings after preliminary investigation by impugned notification dated 30.10.2024 as per Rule 12 of the Anti-Dumping Rules regarding export price, normal value and margin of dumping resulting into injury to the domestic industry to arrive at preliminary determination on dumping and injury to the domestic industry.
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83. On basis of such preliminary findings, the Central Government is to impose levy of provisional duty and on further investigation, Designated Authority as per Rule 16 of the Anti- Dumping Rules is to arrive at final findings and determination is to be made as per Rule 17 in the form of recommendation and thereafter Central Government issues levy within the period of three months of the date of publication of final findings by Designated Authority as per Rule 18 of the Anti-Dumping Rules.
84. Therefore, considering the scheme of the Act and on perusal of section 9C of the Act, it is clear that an appeal lies only after the determination which comes only after Page 96 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined final findings given by the Designated Authority under Rule 17 of the Anti- Dumping Rules and levy of duty by the Central Government under Rule 18 of the Anti-Dumping Rules and therefore, it cannot be said that there is alternative remedy of appeal available to challenge the preliminary findings which is impugned in this petition.
85. This Court in case of Meghani Organics Ltd. v. Union of India reported in 2011 (267) ELT 440 Gujarat has taken a similar stand that preliminary findings given by the Designated Authority is recommendary in nature and appeal would not be tenable under section 9C of the Act against the preliminary findings as Page 97 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined under:
"16. This leads to another issue as to whether an appeal lies to the CESTAT against levy of provisional anti-dumping duty, and if yes, whether this Court should entertain the present petition when an alternative remedy in the form of an appeal is available to the petitioners. In support of this contention, Mr. Joshi relied on the decision of this Court in Surefaces Plus v. Union of India 2004 (173) ELT. 127 (Guj.) wherein, while considering an issue as to whether an appeal lies against a preliminary finding, the Court held that against a preliminary finding, which is of a recommendatory nature, an appeal would not be tenable under Section 9C of the Act. The preliminary finding which is of a recommendatory nature is required to be considered by the Central Government under Rule 13 for the purpose of deciding the question of imposing provisional anti- dumping duty and the Central Government is required to issue notification for imposing anti- dumping duty. Such notification of imposing duty has not been issued so far by the Central Government.
On the basis of these Page 98 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined
observations, the submission of Mr. Joshi is that since the Central Government has already issued notification in June, 2009, the petitioners could avail an alternative remedy of filing an appeal before the CESTAT. We are not much impressed by this argument. Section 9C deals with appeal which says that 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 Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962. Section 9A(2) of the Act states that the Central Government may, pending the determination in accordance with the provisions of this Section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti- dumping duty on the basis of a provisional estimate of such value and margin and if such anti- dumping duty exceeds the margin as so determined. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says Page 99 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined that the Designated Authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding as to
(i) the export price, normal value and the margin of dumping of the said article, (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India, (iii) a causal link, where applicable between the dumped imports and injury, (iv) whether a retrospective levy is called for and if so, the reasons therefore and date of commencement of such retrospective levy. This exercise is yet to be undertaken by the Designated Authority.
Hence, no appeal lies against the levy of provisional anti-dumping duty and this Court is well within its power to entertain this petition since there being no alternative remedy available to the petitioners despite the fact that they are being saddled with the liability of provisional anti- dumping duty."
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86. This Court in case of Alembic Ltd. v. Union of India reported in (2013) 291 ELT 327 Gujarat has also considered the maintainability of the petition under Article 226 of the Constitution of India. The Hon'ble Madras High Court in case of Nirma Limited v. Saint Gobain Glass India Ltd. reported in 2012 (281) ELT 321 (Mad) as well as this Court in case of Nirma Limited v. Union of India reported in 2017 (346) ELT 328 (Guj) has held that writ petition is maintainable under Article 226 of the Constitution of India against the preliminary findings arrived at by the Designated Authority. Therefore, in view of facts of the present case when the petitioners have challenged Page 101 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined preliminary findings on the ground that specialty grade of SPVC Resin imported by the petitioners is required to be excluded from the scope of product under consideration, this petition is entertained.
87. It is pertinent to note that this Court by order dated 29.11.2024 laid down the procedure to consider the submissions made by the petitioners as the Designated Authority while passing the preliminary findings dated 30.10.2024 brushed aside the submissions of the petitioners for exclusion of specialty grades of SPVC Resins on the ground that the petitioners had claimed confidentiality with regard to its additional submission on exclusion of Page 102 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined specialty grades of SPVC imported for manufacture of CPVC.
88. Respondent no.3 thereafter pursuant to the directions issued by this Court has granted further opportunity to the petitioners and respondents to file written submissions and oral hearing was also conducted and thereafter considering the submissions and oral hearing, Addendum Notification dated 16.12.2024 is passed rejecting the claim of the petitioners to exclude the specialized grade SPVC Resin from scope of investigation for product under consideration.
89. On perusal of the findings of Designated Authority after examination Page 103 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined of various submissions of the parties for the purpose of determining whether claim of the petitioners for exclusion of specialized grades is tenable under Rule 2(d) of the Anti-Dumping Rules or not, it would be necessary to refer to Rule 2(d) which reads as under:
2(d) "like article" means an article which is identical or alike in all respects to the article under investigation for being dumped in India or in the absence of such an article, another article which although not alike in all respects, has characteristics closely resembling those of the articles under investigation."
90. On perusal of the above Rule which defines like articles which means an article which is identical or alike in all respect of article under investigation for being dumped in Page 104 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined India or in absence of such article another article which although not alike in all respect has characteristics closely resembling to those of article under investigation, is to be examined on the basis whether such specialty grade SPVC Resins falls within the definition of like article on technical and commercial substitutability aspect in view of submission of the petitioners that S65C supplied by Formosa Plastic Corporation is technically distinct from Grade of SPVC manufactured by the Domestic Industry - DCW Limited.
91. It appears that Designated Authority has taken into consideration the test reports supplied by the Domestic Industry- DCW Limited for Page 105 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined comparison of the bulk density and porosity which are two parameters highlighted by the petitioners regarding the different grades of SPVC Resins manufactured by DCW Limited and exported by Formosa Plastic Corporation as under:
Particulars Grade Name Bulk Density Plasticizer Absorption Porosity DCW Limited PRO65 0.53 21% DCW Limited PRO057 0.51 15.45% Formosa SF58S 0,50 16% Plastics Corporation Formosa S65C 0.53 21.8% Plastics Corporation Thai S66J 0.51 19.7% Polyethylene
92. The Designated Authority after considering such test reports referred to the submissions of Thai Plastics and Chemicals PLC and Thai Polyethylene Co. Ltd. that Grade SG66J Page 106 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined and SF58S are exclusively used for conversion into CPVC and as per the specification sheets of such grades, the grades can also be used for general purposes. The Designated Authority has therefore, come to the conclusion that specialized grades of SPVC claimed by the petitioners are not unique for only CPVC use but they can be used for any general purpose and reliance was placed on the quantity of SG66J and SF85S grades of SPVC imported from the above companies and came to the conclusion that 92% of the imports are by traders not producing CPVC which demonstrates that such grades claimed to be fit for CPVC use only are capable of being used interchangeably for other applications Page 107 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined also.
93. Designated Authority has also taken into consideration the claim made by Hanwha Solutions Corporation who is producer of both CPVC and SPVC Resins and has claimed that there are no specialty grades for manufacture of CPVC as it is manufacturing CPVC using its own PVC Suspension Resins.
94. With regard to the contention of the petitioners that DCW Limited domestic industry which makes both PVC Resin and CPVC Resin has not used its own SPVC Resins for making CPVC Resins, Designated Authority considered the material placed on record by DCW in order to show that DCW has produced CPVC using captively Page 108 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined produced SPVC Resins as well as imported PVC Suspension Resins as under :
SN Grade MT Prior to 30- Post 30-9- Remarks Name 09-12023 23 1 DCW Pipe 1,498 76 1,422 DCW PR Grade 065 2 DCW 742 10 732 DCW PR Fitting 057 Grade 3 Oxychem 2,354 517 1837 Market 225p 4 P 1000 1,051 541 510 MPVC 5 Hanwha P 553 143 410 Market 1000 SB 6 Westlake 66 8 58 Market 1230p 7 Westlake 8 8 - Market 1091 8 Tpe Sg 66j 933 273 660 MK Industries 9 Tpe Sf58s 108 9 99 MK Industries 10 Formosa B 226 116 110 MPVC 57 11 Formosa B 118 - 118 MPVC 57 C Direct Import 12 Formosa B 177 - 177 MPVC 65c Direct Import 13 Formosa S 194 - 194 SPVC 65c Direct import 15 Indonesia 25 25 - Market Fj65r Page 109 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined 16 Kemone 6 6 - MPVC Pipe Direct Import 17 Kemone 120 - 120 MPVC Fitting Direct Import 18 P700 18 - 18 MPVC Fitting Direct Import 19 Chemplast 6 6 - Market Total 8,203 1,738 6,465
95. On the basis of above data, Designated Authority has come to the conclusion that DCW Limited has used domestically produced subject goods for manufacturing CPVC. However, on perusal of the above data it is clear that during investigation period i.e. upto 30.09.2023, DCW has consumed SPVC Resins of 76 tons out of 1498 metric tons of DCW Pipe Grade and only 10 Metric tons out of 742 metric tons of DCW Fitting Grade whereas it has consumed imported SPVC Resin of other Page 110 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined manufacturers in large quantity. Hence, findings arrived at by the Designated Authority that domestic industry has demonstrated that PVC Resins manufactured by it is like article to the product imported in India which is used for manufacturing of CPVC is contrary to the definition of like article as such domestic industry has failed to point out the manufacturing of SPVC Resin of the grade which is required to be used by the petitioners for production of CPVC Resin used for manufacture of pipes of water for human consumption. It appears that Designated Authority has failed to consider the basic contention of the petitioners that the specialty grade SPVC Resins imported Page 111 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined by the petitioners for the purpose of CPVC resin is used only for manufacture of water pipes for human consumption and has gone on tangent that there is no exclusive group of PVC Suspension Resin that is commonly used for the purpose of making CPVC Resin, more particularly, when no specialty grade SPVC as claimed by the petitioners is available in India or manufactured by any domestic industry. However, learned Senior Advocate appearing for the respondent authority has made submission that Designated Authority has rightly applied the "Acid Test" while holding that petitioners did not approach the domestic industry or bought such goods from the domestic industry and Page 112 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined thereafter communicate to the domestic industry regarding defects if any in the subject goods for manufacturing CPVC. Designated Authority could not have shifted the burden on the petitioners to prove that specialty grades of SPVC Resin as required by the petitioners are not available in India and not manufactured by the domestic industry. It was for the domestic industry to prove that like article as would include the specialty grade SPVC Resin which are sought to be excluded by the petitioners from the scope of product under consideration are manufactured in India and are suitable to manufacture CPVC Resins required for production of pipes for water supply. Page 113 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025
NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Designated Authority therefore, has failed to take into consideration the basic standard of proof to be applied for arriving at conclusion that the articles which are imported by the petitioners being specialty grade SPVC cannot be considered as "like article"
manufactured by the domestic industry.
96. On a specific query to the learned ASG as to whether there is any authority on the proposition that domestic industry must in the first place has to be approached by the petitioners before the petitioners can source the product through import is the "acid test", the learned ASG submitted that the proposition is so basic and ingrained in the concept of Page 114 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined anti-dumping that such proposition does not need any authority or precedent. We disagree with the aforesaid proposition of the learned ASG. On the contrary, we are of the view that such a proposition is as novel as it is misconceived.
97. From the data produced on record by DCW Limited at page 376/464 of the paper book it is apparent that DCW Limited did not produce any SPVC Resin during the period of investigation. Designated Authority however, failed to consider the fact that DCW Limited has also imported specialty grade SPVC Resin to manufacture CPVC and in absence of data of minimal captive consumption of Page 115 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined SPVC Resin is placed on record, the Designated authority could not have arrived at conclusion that the specialty grade SPVC Resin imported by the petitioners and the respondent nos. 4 to 6 is "like article" in the facts emerging on record.
98. CPVC Resin as manufactured by the petitioners is separately classified under IS Code 17988:2022 and PVC Pipe IS Standard 15778 is manufactured by the petitioners by use of CPVC Resins which in turn is manufactured by the petitioners utilising imported SPVC Resins for which there is no like product manufactured within India during the period under investigation.
99. On perusal of the BIS License Page 116 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined issued to DCW Limited on 22.06.2024 though such standard came into force on 20.10.2022 such standard is not mandatory. Designated Authority has failed to consider the similar SPVC Resin carrying the same 'K' value imported by the petitioners and agents acting upon instructions of respondent no.4 and without such thorough investigation to substantial extent accepting what is submitted by the respondent nos. 4 to 6, the Designated Authority has arrived at a conclusion that specialty grades of SPVC Resins imported by the petitioners are "like article"
manufactured by domestic industry.
100. Therefore, without going into larger question as to whether Page 117 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined respondent nos.4 to 6 would fall within the definition of being domestic industry as per definition section 2(b) of the Act which defines domestic industry so as to examine whether the investigation initiated by the Designated Authority is proper or not, we have examine the case from the limited scope for exclusion of specialty grade SPVC Resins imported by the petitioners from scope of investigation of PUC.
101. For such examination, as both the sides have referred to Manual of Operating Practices for Trade Remedy Investigation more particularly, Chapter 3 and 4 which refers to product under consideration and like articles as well as relevant Page 118 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined paragraphs of the said the Standard Operating Practices, it would be necessary to refer the same as under:
"3.1. In the ADA there is no specific definition of 'Product'. However, Article 2.1 of the ADA provides as follows:
"For the purpose of this Agreement, a product is to be considered as being dumped, i.e., introduced into the commerce of another country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country'".
xxxx 3.4. The very first stage of an investigation is the identification of the PUC and its scope. The standing of the DI for the application, determination of "injury" and "causal link" are all contingent on the PUC. Once the PUC is precisely and properly identified, the "like article"
produced by the DI is decided in terms of Rule 2(d) of the Rules Page 119 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined before proceeding for the test of DI standing.
xxxx 3.10. The PUC is defined to include those items only, which are manufactured by the DI. Mere competence without any production or merchant sales may not be sufficient to include an item in the definition of the PUC. Similarly, if an item is produced and consumed only captively (in- house) without any outside sales the DI's request for an investigation against this product may be considered with caution.
The PUC should preferably include those items, which are produced and commercially sold in the domestic market by the respective DI. An exception could be the cases where the applicant is a new industry, who has set up facility for a new product or could be an upstream product of an existing industry and the new industry is facing difficulty in capturing market on account of dumped imports of the product.
3.11. The team should also examine the fact whether the same product was ever investigated for any trade remedy measure at any point of time in the past.
3.12. The definition of the PUC is Page 120 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined very important in any anti-dumping investigation. If the definition is not specific and is vague or generic, then there is a possibility that it may cover product types which the DI may not be producing or may not be capable of producing leading to overprotection of the DI. Whereas if the description of the PUC is too narrow, it may fail to give relief or protection to the DI. It may also result in 'circumvention of the duties levied'.
3.13. The PUC should be defined accurately, and in a manner that it is discernible in terms of technical and measurable parameters distinguishable to the Customs Authorities at the time of importation. The product in all its forms, like liquid or solid, and in all different strengths/concentrations are to be covered in the PUC to avoid circumvention. All nomenclature/descriptions/ known names of the product should be included in the scope of the PUC. The PUC should be defined in terms of.
xxxx 3.13.4. tariff classification (even though the customs headings are for indicative purposes only). The PUC has to be frozen at the Page 121 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined stage of initiation. Product scope can only be restricted during the course of the investigation but cannot be enhanced after the initiation. If there are any suggested changes by the interested parties regarding exclusions of some part, then this should be finalized within 3 months from the date of initiation. The changes could be made at the stage of the oral hearing, after receipt of written submissions and rejoinders with the specific approval of DG. No change should be done after this stage.
xxxx 3.15. The different grades/form/types/strengths/sizes of product may not mean different products. They are subsets of one product that is proposed to be investigated and hence is alike as far as their essential physical & technical characteristics are concerned, at best they can constitute PCNs (discussed in paragraphs below).
xxxx 3.18. The scope of the PUC can be modified based on the information received by the Authority. However, the amended PUC should be the basis for determining the standing of the DI, dumping Page 122 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined margin, injury margin etc. xxxx 3.22. PCNs should be defined taking into account the relevance and economic significance of respective PCNs. This is done with a view to have specific information on product types and to enable the Authority to do a fair comparison (apple to apple comparison).
xxxx Treatment of PUC in Different Types of Investigations Original Investigation 3.26. The complete process of defining and describing the PUC as mentioned above is carried out during the fresh/original investigation. It is the responsibility of the Investigating team (with the approval of the DG) to clearly and accurately define and describe the scope of the PUC concerned during the fresh/original investigation at the stage of consideration of initiation.
xxxxx 3.35. Certain other factors which have been considered relevant by different tribunals are as follows:
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(i) Commercial substitutability and manufacturing process;
(ii) Uses, raw materials, and properties of the products,
(iii) The resemblance in terms of properties even though there were substantial impurities in the domestically produced 'like product';
(iv) If the product is easily convertible and such a fact is also recognized by exporters'; and
(v) The difference in raw materials has not been considered decisive if the products are commercially / technically substitutable.
xxxxxx 3.37. Determination of the PUC and the 'like article' in an anti- dumping investigation holds the key to establishing dumping and injury, and any fallacies in the same could make the entire investigation void. Complexities arise when the PUC involves multiple types/grades/varieties, multiple technologies, multiple processes, different raw materials, etc. These aspects make the determination of the PUC and the like article highly technical; rendering the investigation itself very complex. The important Page 124 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined characteristics required to be examined while determining "like article" are similarity of physical characteristics, end use of the product, consumer preference and tariff classification etc. Two products may look different in terms of technology of production, design, style, quality, etc., yet they could be considered alike for the purpose of investigation as long as they are functionally substitutable and replaceable in the market, due to similar end use, and consumer preference. xxxxx 3.42. The rationale in the definition of 'like article' within the Rules has to be applied categorically as soon as the process of the PUC identification is completed at the stage of initiation itself.
xxxxx 3.45. To define the 'like article', the first step is to look for identical articles. In the absence of such identical features, the goods with characteristics closely resembling those of the PUC should be seen. Only if the goods produced by the DI are found to be not identical, then other factors such as Page 125 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined channels of distribution, market segmentation, the process of manufacturing, etc., should be considered in determining the 'like articles'.
Physical Similarity .
xxxxx 3.46.1. Similarity of physical characteristics like size, shape, content, weight, appearance, taste, grade, standards, age, strength, purity and chemical composition.
3.46.2. Verify whether the goods are classified under the same or matching tariff classification. Technical Substitutability:
3.46.3. Technical specifications/ standards 3.46.4. Grades, purity, etc. Commercial Substitutability 3.46.5. Commercial substitutability refers to attributes identifiable from following market behavior:
(i) Are the goods directly competitive in the market? Do the goods compete in the same market sector? Within this sector, how are the goods positioned? e.g. Page 126 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined Within a market sector, are the goods similarly positioned?;
(ii) What is the extent to which the end-user may (or can) switch between the goods for reasons other than price? What is the extent to which participants in the supply chain are willing to switch between the goods? e.g. willingness of participants to switch between sources may suggest commercial interchangeability;
(iii) How does price competition influence consumption? e.g. close price competition may indicate product differentiation is not recognized by the market;
(iv) Are the distribution channels same or similar?; and
(v) Is the packaging same or similar? What is the extent of the differences? Does the packaging reveal a significant difference in the goods? Does the packaging highlight a different sector of the market?
Functional Substitutability 3.46.6. Functional substitutability refers to attributes identifiable from end- use. They may not by themselves establish 'like goods', but may provide support to the assessment of physical & commercial Page 127 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined substitutability. The DI will have a tendency to make claims in this respect, and hence, these attributes must be examined objectively
(i) Do the goods have the same or similar end use? What is the extent to which the two goods are capable of performing the same function? e.g. both a shovel and an earth moving machine can move earth;
(ii) Do the goods have differential value? (Since quality claims are subjective, objective evidence like official standards, or verifiable end-user surveys, hold higher probative value); and
(iii) Is end-user preference likely to change in the future, based on end-user trends and behaviour in other markets and countries?
Production Likeness 3.46.7. Different production processes may produce identical goods or may create different product characteristics. A comparison of the production process will not itself establish like goods but may highlight differences or provide support to the assessment of other considerations.
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(i) To what extent are the goods constructed of the same or similar materials?
(ii) Have the goods undergone a similar manufacturing process? If different, what is the impact of those differences?
(iii) Are the costs of manufacture similar? A similarity in the cost of manufacture may be an indicator of likeness but is not determinative.
(iv) Are there any patented processes or inputs involved? 3.47. Production substitutability may also be examined. It would mean that producers/manufacturers can interchangeably produce the products within the same facility then they should be considered like article, as was held in the case of aluminum radiators22 wherein the product variants as such were nor substitutable by the end user/consumer but they were being produced by all the producers interchangeably. 3.48. The quality of the PUC cannot be claimed to be a valid ground for claiming product differentiation as there could be a substantial element of subjectivity in such assessment. However, if the issue of quality Page 129 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined is such that it can be demonstrated to lead to technical implications, it should be appropriately examined.
xxxx 3.50. The 'like articles' have to be determined in the context of the applicant DI only. It is pertinent that if a product is considered as 'like article' then the industry producing that particular like article must necessarily be a part of the applicant DI whose data is being considered for various factors including injury and causal link. The claim of the DI that some of the 'like articles' are being produced by other producers (non- applicants) in the Indian industry will put to question DI standing."
102. On perusal of the above Standard Operating Practices for Trade Remedy Investigation, it appears that Designated Authority has not identified the PUC at the time of initiating investigation by dealing with the objections raised by the Page 130 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined petitioners, more particularly, when the scope of product under consideration can be restricted during the course of investigation but cannot be enhanced or enlarged after such initiation. Therefore, Designated Authority was required to consider the submissions and objections raised by the petitioners during investigation only. It is true that different grades, forms, types, etc. may not be in different products in absence of specific definition of product but clause 3.1 where Article 2.1 of the Anti-Dumping Agreement refers to the "like product" whereas the Act and the Anti-Dumping Rules use the word "like article" to indicate product under consideration which is matter of Page 131 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined investigation. There is no specific definition or description of the product under consideration under the Anti-Dumping Rules however, it is the single most important starting point of an investigation and section 2(d) defines "like article" to mean a product which is "like article" or in absence of "like article" most similar in characteristics and uses to the article subject to investigation. Therefore, while considering the "like article", PUC is required to be freezed at the time of initiation of investigation only. Therefore, determination of PUC as "like article"
in Anti-Dumping investigation holds the key for establishing dumping and injury and the fallacies in the same Page 132 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined could lead to the entire investigation being void. Designated Authority therefore, was required to determine the product under consideration at the initiation of the investigation. However, at this stage, when the final findings are yet to be notified by the Designated Authority in the facts of present petition, it would be necessary for the Designated Authority to hold and come to a conclusion whether the specialty grades of SPVC Resins imported by the petitioners can be considered as "product under consideration" or not for arriving at such findings. We have not gone into the technical aspects of examination whether specialty grades of SPVC Resin imported by the petitioners is a "like Page 133 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined article" or not but have examined the procedure and process of analysis adopted by the Designated Authority to come to the conclusion that specialty grade SPVC Resins imported by the petitioners are being produced by the domestic industry, relying upon the material that SPVC Resins are capable of being used for general purpose, contrary to the Manual of Operating Practices for Trade Remedy Investigations placed on record which also stipulates that scope of PUC can be modified based on information received by the authority.
103. It is apparent from the impugned Addendum Notification that Designated Authority has accepted what is provided by the domestic industry Page 134 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined without any further investigation to clearly and accurately define and describe the scope of the PUC to arrive at the conclusion that the specialty grade SPVC Resins are technically and commercially substitutable and the subject goods produced by the domestic industry are "like articles" to product under consideration imported from subject countries.
104. We are therefore of the opinion that Designated Authority ought to have made further investigation at this stage only to examine whether specialty grade SPVC Resin imported by the petitioners can be considered as "like article" to become part of the "product under consideration" imported Page 135 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined from subject countries within the scope of section 2(d) of the Act or not, more particularly when the Designated Authority has not considered the data available on record regarding captive consumption of specialty grade of SPVC Resins produced by the Domestic Industries during the period of investigation. Designated Authority has based its finding considering that the SPVC imported by the petitioners can be used for general purpose but has failed to examine as to whether SPVC Resin produced by domestic industry other than the specialty grade SPVC Resin imported by the petitioners can be used to manufacture CPVC Resin required for production of pipes for Page 136 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined conduction of water for human consumption or not. Designated Authority has only relied upon the data placed on record by the respondent no.6 which could not have been considered to arrive at a conclusion that there is no specialty grade SPVC and hence the question of excluding the same from PUC does not arise. Therefore, findings recorded in Addendum Notification dated 16.12.2024 arrived at by the Designated Authority are not tenable.
105. In view of the foregoing reasons, the petition partly succeeds. The Specialty Grade SPVC Resins imported by the petitioners for manufacture of CPVC to be used for manufacture of the Page 137 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined safe and non-hazardous CPVC pipes and fittings for potable water supply are to be excluded from the "product under consideration" for the purpose of investigation initiated by the Designated Authority in absence of any classificatory investigation carried out while determining the "product under consideration" as there is clear procedural lapse on part of the Designated Authority as per Manual of Operating Practices for Trade Remedy Investigations to come to such preliminary findings. Respondent Designated Authority is therefore directed to exclude specialty grade SPVC Resins imported by the petitioners for manufacturing of CPVC from the scope of PUC in the further Page 138 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined investigation as such specialty grade SPVC Resins are neither produced by the domestic industry nor were they technically or commercially substitutable and interchangeable with the grades commercially produced in the domestic industry. In view of the disposal of this petition Civil Application No1 of 2025 would not survive and accordingly shall be disposed of by separate order.
106. Rule is made absolute to the aforesaid extent. No order as to costs.
(BHARGAV D. KARIA, J) (D.N.RAY,J) At this stage, learned advocate Mr. Ankit Shah for the respondents prays for stay of the Page 139 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined operation and implementation of the order pronounced today.
Considering the fact that the respondent Designated Authority is to pronounce the final assessment order and has not extended the same as recorded by us in the order dated 25.03.2025 passed Civil Application No.1 of 2025, request for stay of the operation and implementation of this judgment is refused.
(BHARGAV D. KARIA, J) (D.N.RAY,J) RAGHUNATH R NAIR Page 140 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025