Essar Steel Limited And Anr. vs Union Of India (Uoi) on 9 October, 2007

[Cites 28, Cited by 1]

Delhi High Court

Essar Steel Limited And Anr. vs Union Of India (Uoi) on 9 October, 2007

Equivalent citations: 2007(122)ECC121, 2007(148)ECR121(DELHI), 2008(222)ELT161(DEL)

1. By this writ petition the petitioners have laid a challenge to the order dated 27th August, 2003 passed by the Designated Authority in exercise of its powers under Section 14(b) of the Customs Tariff Act, 1995 and Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Article and for Determination of Injury) Rules, 1995 whereby the Designated Authority in the Directorate of Anti-Dumping in the Ministry of Commerce, New Delhi informed the petitioners of its decision to terminate anti- dumping investigation into imports of Hot rolled coils, Sheets, Plates and Strips originating in or exported from South Africa, Rumania, Venezuela, Saudi Arabia, European Union, Australia, Canada and Singapore.

2. Both the petitioners are stated to be engaged in the manufacture and production of steel and steel products. The Steel Authority of India, the petitioner No. 2 has claimed that it produces approximately 50% of India's steel, which has been disputed by the intervenor.

3. India has effectuated measures to protect the domestic industry following the principles laid down in the General Agreement on Tariffs and Trade, 1994 (GATT for brevity) whereby the member countries agreed on certain principles to be followed for imposition of anti-dumping duties, countervailing duties and safeguard measures. Member countries of the World Trade Organisation were party to this agreement. The legislature effected statutory amendments to the Customs Tariff Act, 1973 which were effectuated with effect from 1st January, 1995 to bring the statute in line with the provisions of Article 6 of GATT, 1994. Dumping, in simple language, takes place when an exporter sells a product to India at a price less than the price prevailing in its domestic market. Though dumping per se has been held not to be condemnable. However, if such dumping causes or threats to cause material injury to the domestic industry of India, the statute has prescribed certain measures to be taken. There is no dispute that the Designated Authority has been duly nominated by the Central Government in compliance with the requirements of the statute.

4. The petitioner has urged that the Indian Steel Industry had been shut out of industrial trade on account of the anti-dumping, countervailing duties or safeguard measures undertaken by the United States of America, European Union, Canada, China, South Africa, Indonesia and Thailand. On a complaint that exports from South Africa, Romania, Venezuela, Saudi Arabia, European Union, Australia, Canada and Singapore were resulting in dumping of their products in India causing injury to the domestic industry, the petitioners consequently made an application in April, 2002 seeking imposition of anti dumping duties in respect of the imports from these countries. It is the petitioner's contention that the Designated Authority formally issued an initial notification only on 25th September, 2002 in purported exercise of powers under Rule 5 of the aforenoticed anti dumping rules. The Designated Authority in the impugned order has pointed out that the preliminary scrutiny of the application revealed deficiencies which Page 2607 were required to be rectified by the petitioners and it was only thereafter considered as properly documented.

5. On a prima facie view, based on the material placed by the petitioners before it, the Designated Authority decided to initiate investigation against the alleged dumping of imports of the aforenoticed products from the subject countries noticed hereinabove.

6. So far as notice to the concerned parties is concerned, the Designated Authority in compliance that sub Rule 5(5) of the rules, notified the embassies of the subject countries/territories about the receipt of the dumping allegations before proceeding to initiate the investigation. A public notice dated 25th September, 2002 was also published in the Gazzette of India Extraordinary initiating the anti dumping investigations. Copies of the public notice were forwarded to those exporters whose details were made available by the petitioners and such importers whose details were made available by the petitioners giving them opportunity to make their views known in writing.

7. The impugned order dated 27th August, 2003 shows that the products in respect of which the petitioner had made a grievance fell under several specific heads of the classification under Chapter 72 of the Customs Tariff Act, 1975. The Designated Authority also undertook an enquiry by making a request to the Central Board of Excise and Customs to arrange for details of imports of the subject goods from the subject countries/territory.

8. In compliance of the statutory rules, it appears that the authority also provided copies of the petition to the known exporters and embassies of the subject countries/territory. A questionnaire to elicit relevant information was sent to several exporters under the subject countries in accordance with Rule 6(iv). The delegations of the European Union; embassies of the subject countries in India were informed in accordance with Rules 6(ii) with the request to advise the exporters/producers of their countries/territories to respond to the questionnaire within a prescribed time. The authority also appears to have sent copies of the letters, non-confidential petition and questionnaire to all these persons with specific individual request.

9. So far as the exporters were concerned, the authority sent a questionnaire calling for necessary information in accordance with Rule 6(4) to several known exporters.

10. There is no dispute that the authority made available to all concerned, the non-confidential version of the evidence presented by various interested persons in the form of a public file. Upon a detailed consideration of the investigations conducted by the authority as well as the evidence placed before it by the petitioner and all interested parties, the authority carried out investigations for the period from 1st April, 2000 to 30th September, 2001. Oral hearings were conducted on 23rd November, 2002 and 5th May, 2003. The proceedings appears to have culminated in the passing of the impugned orders dated 27th August, 2003 whereby the Designated Authority decided to terminate the investigation.

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11. This order has been assailed by the petitioner before this Court on both legal and factual grounds.

12. In order to examine the challenge laid by the petitioners on the merits of the notification, a brief consideration of the applicable statutory provisions and rules is necessary. Section 9A of the Customs Tariff Act, 1975 enables the Central Government to impose an anti dumping duty not exceeding the margin of dumping relating to any article which is exported from any country or territory into India at less than the normal value. Such anti dumping duty is statutorily required to not exceed the margin of dumping in relation to the article. Section 9A also explains the expression of the 'margin of dumping' as meaning the difference between the export price and its normal value. The export price in relation to an article is described as the price of the article exported from the exported countries or territory. The expression normal value is defined in Section 9A(c).

13. Determination of the export price, normal value and margin of dumping with regard to exports of any article requires compliance with the provisions of the Customs Tariff (Anti Dumping Rules) 1995. Under these rules, a duty has been assigned to the Designated Authority to perform the functions detailed under Rule 4. This rule casts a mandate upon the Designated Authority to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; to identify the article liable for anti dumping duty; to submit its findings provisional or otherwise to the Central Government with regard to the normal value, export price and the margin of dumping in relation to the article under investigation; and the injury or threat of injury to an industry in India or material retardation to the establishment of an industry in India consequent upon the import of said article from the specified countries. The Designated Authority is also empowered to recommend 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 and the date of its commencement. Rule 5 lays down the procedure which the Designated Authority is required to follow which requires a determination as to whether the application has been made to it or on behalf of the domestic industry and examination of the accuracy and adequacy of the evidence provided in the application. The application contains a deeming provision that the application shall be deemed to have been made by or on behalf of the domestic industry if it is supported by those domestic producers whose collective output constitutes more than 50% of the total production of the like article produced by that portion of the domestic industry.

14. The principles governing the investigation have been provided in Rule 6 which reads thus:

6. Principles governing investigations. (1) The Designated Authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:

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(i) the name of the exporting country or countries and the article involved;

(ii) the date of initiation of the investigation;

(iii) the basis on which dumping is alleged in the application;

(iv) a summary of the factors on which the allegation of injury is based;

(v) the address to which representations by interested parties should be directed; and

(vi) the time-limits allowed to interested parties for making their views known (2) A copy of the public notice shall be forwarded by the Designated Authority to the known exporters of the article alleged to have been dumped, the government of the exporting countries concerned and other interested parties.

(3) The Designated Authority shall also provide a copy of the application referred to in Sub-rule (1d) of Rule 5 to:

(i) the known exporters or to the concerned trade association where the number of exporters is large, and

(ii) the governments of the exporting countries:

Provided that the Designated Authority shall also make available a copy of the application to any other interested party who makes a request therefore in writing.

(4) The Designated Authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers an other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the Designated Authority may allow on sufficient cause being shown.

Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the Designated Authority or transmitted to the appropriate diplomatic representative of the exporting country.

(5) The Designated Authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organisations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality.

(6) The Designated Authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the Designated Authority only when it is subsequently reproduced in writing.

(7) The Designated Authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation.

Page 2610 (8) In a case where an interested party refused access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the Designated Authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances.

15. The rules envisage participation of interested persons or their representatives in the investigations who are permitted to place not only oral information but all documentary information for the consideration of the Designated Authority. The evidence presented by one interested party is required to be made available to the other interested party under Rule 6(7).

16. Sub-rule 2 of Rule 7 enables the Designated Authority to require the party providing information on confidential basis, to furnish a non-confidential summary thereof and if, in the opinion of the party providing such information, the information is not susceptible of a summary, such party may submit to the Designated Authority, a statement of reasons as to why the summarisation is not possible. The rules also confer discretion upon the Designated Authority to consider the request for confidentiality made by a party and if it is satisfied that the same is not warranted or that the supplier of the information is unwilling to make an information public or to authorise its disclosure in a generalised or summary form, it may disregard such information.

17. It has been noticed by the Designated Authority that the landed price for imports was based on the confidential data submitted by the cooperating exporters. The non injurious price and the landed value of imports was not disclosed as there were no final findings and the case was terminated under rule 14.

18. Inasmuch as an objection has been taken that the entire information which was furnished to the Designated Authority was not available to the petitioners it becomes necessary to notice the statutory power of the Designated Authority in this behalf. By virtue of Rule 7 of the Customs Tariff (Anti Dumping Duty) Rules 1995 the Designated Authority is empowered to, upon receipt of application or information provided to it on a confidential basis by any party in the course of investigation and upon being satisfied as to the confidentiality, to treat the same as such and no such information shall be disclosed to any other party without specific authorisation of the party providing such information. The Designated Authority made available all material which it was statutorily required to do so to the petitioners. The legislation itself contemplates confidentiality which could enable a party to prevent the information with regard to its business becoming public. Serious concerns of the business and stakes of the concerned parties are involved in revealing details of the operations conducted by it. Such power having been statutorily conferred under the rules certainly it is not open to the petitioners to object to the refusal to provide such information which had been submitted by third parties subject to the same being maintained as confidential.

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19. Sweeping powers have been conferred on the Designated Authority to arrive at a fair result based on the assessment of the accuracy of the supplied information. It is empowered to carry out investigation in the territory of other specified countries. Rule 10 requires the authority to arrive at a considered view of the normal value export price and margin of dumping. Rule 11 requires the Designated Authority to arrive at a determination of the material injury thereof to any established industry in India.

20. In order to determine the injury to domestic industry thereof the Designated Authority is required to ascertain the existence of a causal link between the dumped imports and effect, if any, on the price in the domestic market for like articles and the consequential effect of such imports on domestic producers of such articles in accordance with the principles set out in the annexures to the rules. Rule 12 enables the Designated Authority in an appropriate case to record preliminary findings with regard to the export price the normal value and the margin of dumping and in respect of imports from specific countries to record a further finding regarding injury to the domestic industry.

21. Under Rule 14 the Designated Authority is empowered to terminate investigation either on a request on behalf of the domestic industry at whose instance the investigation was commenced in the following eventualities:

(b). it is satisfied in the course of an investigation, that there is no sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation;

(c). it determines that the margin of dumping is less than two per cent of the export price;

(d). it determines that the volume of the dumped imports, actual or potential from a particular country accounts for less than three per cent of the imports of the like product, unless, the countries which individually account for less than three per cent of the imports of the like product, collectively account for more than seven per cent of the import of the like product; or

(e) ...

22. In the instant case two fold objections have been taken with regard to the consideration and findings of the Designated Authority. One of the main limbs of the petitioners challenge is based on the submission that the Designated Authority has committed a patent error of taking into account undumped imports from the subject countries. The petitioner has in several grounds placed in the writ petition and oral submissions, urged that the Designated Authority took into account imports from Germany that were not found to be dumped, in determining the CIF price of the imports of hot rolled products from the European Union (EU for brevity) and compared it to the non injurious price of the domestic industry. It has further been submitted that the Designated Authority was bound to take action based on the information provided by the petitioners with regard to the estimated normal value in the United Kingdom and the Netherlands. The contention also is that only a finding of dumping based on facts available under Rule 6(8) could have been reached by the Designated Authority for imports Page 2612 from the UK and the Netherlands because no exporter from these countries responded.

23. In this behalf Mr. P.P. Malhotra, learned Additional Solicitor General for the respondent No. 1 has drawn my attention to a letter dated 18th June, 2002 written by the petitioner to the competent authority enclosing copy of the order dated 21st November, 1999 passed by the High Court of Calcutta stating the withdrawl of the notification No. 31/1999; calculation of landed price based on the minimum floor price for import of the product; statement giving break up of imports of products concerned from the non subject countries for 1998-99, 1999-2000 and 2001-02 and a note on the causal link between the dumped imports and injury to the domestic industry.

24. Noteworthy is the statement made on behalf of the petitioner in para 5 of this letter dated 18th of June, 2002 wherein it was stated thus:

5. We would like to state that in the subject petition, United Kingdom and Netherlands are among the subject countries covered for investigation. Since these two countries are part of the European Union, as per the practice followed by the DGAD, the investigation may include European Union as a whole i.e. all countries, which fail under the ambit of European Union.

Having so stated and having called upon the Designated Authority to include the European Union as a whole, that is all countries who fall within its ambit, it is certainly not open to the petitioner to object to the respondents having included the entire European Union in its considerations and deliberations. No objection appears to have been made by the petitioner at the time the investigation was pending even after it had issued this letter as back as on 8th June, 2002. The petitioner is certainly bound by its representation to the respondent No. 1. It is also not open to the petitioner to object to the action taken by the Designated Authority on such action of the respondent. After having so requested the respondent No. 1, it does not lie in the mouth of the petitioner to submit that the action of the Designated Authority in including all countries of the European Union including Germany was erroneous or illegal. In view of its consent, as conveyed to the respondent No. 1 in the letter of 18th June, 2002, it has to be held that the petitioners waived objections if any to the inclusion of all members of the European Union in the investigation.

25. The order of the Designated Authority is based on data on imports furnished by the domestic industry that is the petitioners vide their letters dated 22nd and 23rd July, 2003. These letters have been placed before this Court. The applicable rules postulate that the enquiry may be terminated unless the countries which individually count for less than 3% of the imports of the like project, collectively count for more than 7% of the import of the like project. The authority is also entitled to terminate the investigation if it determines that the injury where applicable is negligible. As per sub-rule 'b' of Rule 14 the Designated Authority may terminate the enquiry in the course of an investigation if there is no sufficient evidence of dumping, or injury where applicable, to justify continuation of the investigation.

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26. So far as the issue of the volume of imports from the subject countries is concerned, it is necessary to advert to Annexure II of the Customs Tariff (Anti Dumping Duty) Rules 1995 dealing with principles for determination of injury which reads thus:

The Designated Authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry hereinafter referred to as ``injury'` and casual link between dumped imports and such injury, shall inter alia, take following principles under consideration:

(i) A determination of injury shall involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for the like article and (b) the consequent impact of these imports on domestic producers of such products.

(ii) While examining the volume of dumped imports, the said authority shall consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative to production or consumption in India. With regard to the effect of the dumped imports, on prices as referred to in Sub-rule (2) of Rule 18 the Designated Authority shall consider whether there has been a significant price under cutting by the dumped imports as compared with the price of like product in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increase which otherwise would have occurred, to a significant degree.

27. Clause (iii) of Annexure II further provides that in a case where imports of a product from more than one country are being simultaneously subjected to anti dumping investigation the Designated Authority will cumulatively assess the effect of such imports only when it determines that the margin of dumping established in relation to the imports from each country is more than 2% expressed as a percentage of the export price and the volume of the imports from each country is three per cent of the imports of the like article or where the export of the individual countries is less than three per cent, the imports cumulatively account for more than seven per cent of the imports of the like articles. It is further required that the cumulative assessment of the effect of imports is appropriate in the light of the conditions of competition between the imported article and the like domestic article. The impact of the above rule is that, first an assessment of the volume of the dumped imports has to be undertaken and it is only on such cumulative assessment that the effect of the dumped imports on prices would required to be considered.

28. Placing reliance on the import data submitted by the petitioners vide their letters dated 22nd July and 23rd July, 2003 the authority arrived at a conclusion that with the exception of European Union, South Africa and Romania which account for 6.68%, 4.67% and 3% of the total imports of the subject goods and all other subject countries cumulatively account for 4.88% of the total imports and hence are deminimis.

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29. From a reading of the above noticed rule, it would appear that the cumulative assessment of the effect of imports of the subject goods can be effectuated only when the volume of such imports from the subject countries is 3% of the imports or where the imports from the individual countries which are less than 3% the imports collectively count for more than 7% of the total imports. The Designated Authority arrived at a conclusion that the imports from Venezuela, Saudi Arabia, Canada and Singapore were less than 3% and cumulatively accounted for 4.88% of the total imports and were therefore deminimis. These countries consequently being below the prescribed limit did not qualify for cumulative assessment and could not be proceeded against. This reasoning and consideration is based on the Customs Tariff (Anti Dumping Duty) Rules 1995.

30. I also find that such an assessment of the volume of the imports is required to be done in order to arrive at a finding as to whether the subject countries are guilty of dumping the products in question. The Designated Authority having proceeded in accordance with the rules in order to assess as to whether the imports by these countries amounted to dumping; the findings of the authority as to whether the imports from these countries made the volume requirement under the rules and whether the imports amounted to dumping of the articles, cannot be faulted on any legally tenable grounds.

31. The submissions of the petitioner fail to consider that even if there maybe dumping of like articles, it cannot mandatorily be subject to enquiry and investigation by the Designated Authority. Such anti dumping investigation can be commenced only if the dumped imports meet the prescribed percentage and cause injury under the rules.

32. At this stage it is noteworthy that the Designated Authority has not excluded the deminimis volume of imports from the subject countries from its computation of the total volume of imports as evidenced from the tabulation set out in the notification. There is substance in the contention of the respondent No. 1 that there is a typing error in noting the total volume of imports at 136850 metric tonnes whereas the same actually read 150542 metric tonnes. This is manifested by the tabulation of the Authority.

33. So far as the price effect of the imports is concerned, the Designated Authority has considered the same also at great length. From the data submitted by the petitioners, the Designated Authority has concluded that the CIF value of the subject imports from the European Union was higher then the non injurious price of the domestic industry and the minimum import price. The Designated Authority has assessed the degree of price under cutting based on the landed value of the subject goods from the subject countries. A conclusion has been reached that there was no undercutting the prices of the domestic product, irrespective of whether the subject goods were dumped or not.

34. I find that so far as the petitioner's objection that the imports from Germany were not dumped articles; the Designated Authority has noticed that even if the imports of the subject goods by cooperating exporters from Page 2615 Germany are excluded, the cif value of the dumped subject goods from the EU is higher than the NIP of the domestic industry and the minimum import price stipulated in the DGFT notifications which were applicable at the relevant time. Consequently the apprehension of injury based on imports from Germany has been found to be misconceived.

35. Before this Court intervenor has pointed out that the petitioners in their letters dated 26th July, 2003 have pointed out that the average CIF prices of the goods from the subject countries were based on data published by the DGCIS and Joint Plant Committee which were adjusted to arrive at the ex-works price. In a communication of 21st January, 2003, the petitioners had stated that DGCIS had shown inability to supply information of the segregation for the reason that it did not maintain the break up of the imports under the advance license scheme. Therefore, for the inability of the petitioners to supply segregated data, the authority was constrained to add custom duty on all imports. After an analysis it was concluded that injury, if any, to the domestic industry was caused by total imports and therefore imports under the advance license should be included. The respondent points out that if duty free imports were to be excluded, the average export price from the subject countries/territory would have been even higher.

36. It is noteworthy that imports under the advance license scheme entered India exclusively for export production with an actual user condition. Thus they were not likely to compete with 'like products' in the domestic market. Such imports, therefore, obviously had no impact on the domestic demand and prices. However, it is evident that duty free imports which were occupying a share of the input market of the country could negatively impact of the sales of the domestic industry. There is thus force in the submission on behalf of the respondents that injury, if any, to the domestic industry was required to be examined taking into account the landed value of the subject goods after including the custom duties and that such domestic prices were effected by the level of protection given by way of custom duties.

37. Ms. Meenakshi Arora, learned Counsel appearing for intervenor submits that this respondent had pointed out during the investigations itself that the products under consideration which had been complained of by the petitioner and selected by the Designated Authority were not a homogeneous class. The petitioners had clubbed hot rolled coils silicon grade, sheets, plates and strips and boiler quality plate on the grounds that they were produced by the domestic industry in India or that they had been clubbed together as the production process for these items was the same. It is pointed out that this was erroneous. These products have been found to be having different bids and global technical specifications; usage and application. The sale price of these products within the domestic and global markets differs widely. They have been also been separately classified in the Custom/Excise Manual and the Exim Policy with different norms have now cut out to be and DEPB rates.

38. In view of the complaint of the petitioners, the Designated Authority was required to examine this position and has found that the silicon grade Page 2616 steel was not being manufactured by the petitioners. Seconds/defectives and prime products could not be treated as like products. It would thus appear that the petitioner had placed incomplete information as well as complained of non- comparable articles without disclosing the complete relevant material with regard to the pricing etc of the goods allegedly dumped by the subject countries. The petitioners do not assail the observations and findings of the Designated Authority on these aspects.

39. So far as imports from South Africa are concerned the Designated Authority has found that the imports from South Africa were low carbon seconds and defectives of HR coils as submitted by the cooperating exports. Such goods obviously bear no comparison to the other products of sufficient grading and good quality. Still it was found that the landed value of the imports of the subject goods was higher than the non-injurious price of the domestic industry during the period of investigations and the minimum import price notified for these imports as per the DGFT notifications.

40. The notification dated 27th August, 2003 also notices the two responses received from exporters in Germany wherein it has been stated that they had effected exports of HR coils having more than 1.5% silicon and steel with lesser percentage. Silicon grade steel is not even produced by the Steel Authority of India Limited which has been noticed by the authority. Tabulations placed by the Designated Authority in the impugned notification show a detailed consideration of the imports from the various importers and the impact on the pricing during the period of investigation of all the subject countries. The petitioners objection that only a representative or a sample assessment had been undertaken is not borne out from the order as laid before this Court.

41. The petitioners have made a grievance with regard to the submissions made on behalf of the respondents that even if the imports of Germany were left out of consideration still it would have no impact on the findings of the Designated Authority. In the light of the detailed reasoning given by the Designated Authority and the letter dated 18th June, 2002 addressed by the petitioner, this objection is wholly devoid of any merit. I find that the submission of the respondents are based on material already placed before the Designated Authority.

42. On a detailed consideration of the value of the dumped imports from the different countries and their volume, the Designated Authority has concluded that there was no price effect on the price of the articles in this country from which it could be concluded that there was no material injury to the value of the goods or threat of injury or retardation in the development of the domestic industry.

43. Mr. K. Venugopal learned Counsel appearing for the petitioners has urged at length that the enquiry having commenced and the Designated Authority having considered the imposition of a price undertaking had clearly indicated a finding of dumping on the part of the subject countries.

44. So far as the impression of the petitioner based on the price undertaking is concerned, I find that in para F(6) of the impugned order the Designated Page 2617 Authority has noted that no price undertaking proposal had been suggested for HR plates, but the domestic industry had submitted that it was willing to agree to a price undertaking and had suggested the basic cif price for HR coils and sheets/strips. The Designated Authority had noted that the actual cif and landed values of HR coils were higher at the price at which the domestic industry was willing to enter into an undertaking with the concerned exporters. It would thus appear that the price undertaking which had been suggested by the domestic industry i.e. the petitioner was lower than the CIF and landed values of the goods in question. This would itself undermine the primary contention of the petitioners that the imports of the goods in question had caused injury to the domestic industry.

45. On a detailed analysis of the figures placed by the petitioners the authority concluded that dumped imports have been found to count for only 1.74% of the demand from April, 2000 from September, 2001 which was the period of investigation. It has been noticed that while the petitioners had a significant market share of the subject goods accounted for only 88.21% of the demand.

46. Ms. Meenakshi Arora, learned Counsel appearing for intervenor ' CORSMA has pointed out that in the light of the escalation in prices commanded by the domestic industry, it cannot be said that it any injury has resulted to the domestic industry.

47. The authority has also concluded that the landed value of the subject goods from the subject countries were significantly higher than the net selling price of the petitioners and the non-injurious price determined that the domestic industry during the period of investigation. Consequently questions of price undercutting or material injury to the petitioner from the imports did not arise.

48. Yet another material fact which has not been placed by the petitioner before this Court deserves to be considered. The Designated Authority had noted that the Government of India in exercise of powers under Section 5 of the Foreign Trade (Development and Regulation) Act, 1962 issued a notification dated 11th December, 1998 enforcing a floor price for prime steel as well as for second and defective items of steel to provide a shield for the domestic industry against dumping of products in the domestic market by foreign suppliers and international competition.

49. M/s Essar Steel Limited had apparently made an application for levy of anti-dumping duty of hot rolled coils, steel coils, strips, sheets and plates originating and exported from South Africa, Japan, Saudi Arabia, China and Australia on the ground of their resulting in injury to the domestic industry. This petition was disposed of by an order dated 8th February, 1999 by the Designated Authority holding that the petition had been examined and it was not possible to initiate anti dumping proceedings since the floor price was in operation on the merits of the subject goods.

50. After the disposal of this petition, another application seeking initiation of anti dumping investigation was filed by the Steel Authority of India Limited Page 2618 on 6th January, 1999. This inquiry was terminated on 10th July, 2000 by the Designated Authority pointing out that the applicants had failed to provide data on all India basis to assess volume of total imports from the subject countries and also failed to furnish prima facie evidence of injury, which was a pre-requisite for assessment of prima facie evidence of dumping, injury and causal link for initiation of anti-dumping investigations. The Steel Authority of India Limited filed a writ petition being W.P.(C) No. 12492(W)/1999 before the High Court of Calcutta seeking a direction to the Designated Authority to dispose of their application/petition.

51. In the meantime, by a notification of 1st November, 1999, the Government of India withdrew the minimum floor price fixed for import of steel under the notification dated 10th/11th December, 1998. The petitioners contended before the High Court of Calcutta that the Designated Authority had withheld disposal of the anti-dumping petition and if the floor price was withdrawn, they would be left without protection. My attention has been drawn to an interim order dated 16th February, 2000 passed by the High Court of Calcutta directing that the floor price of the imported HR hot rolled steel coils which had been fixed at USD 302 per metric tonne would continue. The operation of the notification dated 1st November, 1999 withdrawing the floor price for various items of steel mentioned therein, thus, remained stayed.

52. It is an admitted position that this price continue to hold the field during the pendency of the writ petition.

53. It is noteworthy that the petitioner No. 1 was respondent No. 6 while petitioner No. 2 Steel Authority of India was respondent No. 7 in the matter before the Calcutta High Court.

54. The High Court of Calcutta by a detailed judgment dated 5th December, 2003 dismissed the Writ Petition No. 12492(W)/1999 and vacated the interim order dated 16th February, 2000 holding that the Government was justified in effecting the change in the fixation of the floor price which was based on all relevant considerations. In its detailed judgment, the court noticed that in order to protect domestic industries, two modes are envisaged to protect their pricing. One mode is levy of anti-dumping duties under the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Article and for Determination of Injury) Rules, 1995 therein. The second mode is by fixation of the floor price which prevented import of steel below the floor price fixed by the Government. In the instant case, when the Government had sought to remove the protection provided by fixation of the floor price, the decision of the Government was assailed before the High Court of Calcutta and the manufacturers were fully protected by the interim orders.

55. The petitioners have approached the Designated Authority in April 2002 under the Customs Tariff Act, 1975 for investigation into their allegations of dumping. Such complaint was disposed of by the order dated 27th August, 2003 passed by the Designated Authority who upon investigation found that there was no case of injury to the domestic industries.

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56. In this background the Division Bench of the High Court of Calcutta held that so far as the petitioners before it were concerned, their basic prayer relating to non-disposal of their request for investigation into dumping activities also stood disposed of. The court extensively noticed the conclusions drawn by the Designated Authority in the order dated 27th August , 2003 wherein the authority had held that the present petitioners had not been able to provide sufficient evidence of injury to the domestic industry from the imports of the subject goods to justify continuation of the enquiry.

57. The Division Bench also noticed that despite the order passed by the Designated Authority on 27th August, 2003, the domestic industry (which included the present petitioners) had the protection of the interim orders passed by the court resulting in the continuation of the prices fixed under the exim policy. Thus, the prices of the product of the domestic industry had the protection of the notified floor price as well.

58. It is noteworthy that challenge has been laid to the order passed on 27th August, 2003 by the petitioners by way of the present writ petition which has been registered in 2004, after the adjudication by the High Court at Calcutta. This judgment of the Division Bench has not even been placed by the petitioners before this Court.

In my view, the facts relating to the filing of the writ petition; interim orders passed therein; the impact thereof and the final judgment are material facts having bearing on the case. The petitioner having concealed the same, deserves to be non-suited for this reason alone. The writ petitioner has also not placed the letter of June 2002 addressed by it to the Designated Authority which it was bound to do so.

59. In the facts noticed by the Designated Authority and its conclusions with regard to the price of the products, the pronouncements reported at (2000) ELT 356 Jai Corporation v. Designated Authority; (2001) 132 ELT 520 Steel Authority v. CEGAT; Jai Corporation v. Designated Authority would have no application to the matter in hand.

60. Mr. P.P. Malhotra learned Additional Solicitor General for the respondent has contended that under Rule 17(1) of the Customs Tariff (Anti Dumping) Rules, 1995 the period statutorily prescribed for investigation is ordinarily 12 months which can be extended by a maximum of a further six months. Investigation in this case had been initiated on 25th September, 2002 and terminated on 27th August, 2003. According to the respondent the period statutorily permissible for conduct of the investigations would have ended on 25th March, 2004 It has been urged that in the instant case a notification dated 27th August, 2003 cannot be quashed at this stage or the matter remanded for the reason that the period for investigation is over.

61. In this behalf Mr. K. Venugopal learned Counsel for the petitioner has submitted that in case anti dumping duties have been imposed by virtue of Section 9A(5) the petitioners would have had a right to anti dumping duties for a period of five years from the date of imposition of the duties subject only to an interim review by the Designated Authority. It has been pointed Page 2620 out that the writ petition was filed on 27th November, 2004 before the expiry of the period of 18 months for investigation and that the respondents have delayed adjudication. My attention has been drawn to the decision of the Apex Court reported at (para 6) Director, Income Tax v. Puran Mal; 1980 1 SCC 370 (para 13) Commissioner of Income Tax v. National Taj Traders and (paras 19 and 20) Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd. and Ors.

62. I find that the principles in this behalf were authoritatively laid down by the Apex Court in Director of Income Tax (Investigation) v. Puranmal. A similar question had arisen before the Apex Court with regard to an order made by the authority under Section 132(5) of the Income Tax and wherein also appeals stands prescribed. A similar objection that the period statutorily prescribed being over no order directing the authority to pass an order fresh could be made was negated. In this behalf the court observed thus:

6. Even if the period of time fixed under Section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under Section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income Tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days. It would make the Sub-sections (11) and (12) of Section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132 could not be done by a court which exercises its powers under Article 226 of the Constitution. To hold otherwise would make the powers of courts under Article 226 wholly ineffective. The court in exercising its powers under Article 226 has to mould the remedy to suit the facts of a case. If in a particular case a court takes the view that the Income Tax Officer while passing an order under Section 132(5) did not give an adequate opportunity to the party concerned it should not be left with the only option of quashing it and putting the party at an advantage even though it may be satisfied that on the material before him the conclusion arrived at by the Income Tax Officer was correct or dismissing the petition because otherwise the party would get unfair advantage. The power to quash an order under Article 226 can be exercised not merely when the order sought to be quashed is one made without jurisdiction in which case there can be no room for the same authority to be directed to deal with it. But in the circumstances of a case the court might take the view that another Page 2621 authority has the jurisdiction to deal with the matter and may direct that authority to deal with it or where the order of the authority which has the jurisdiction is vitiated by circumstances like failure to observe the principles of natural justice the court may quash the order and direct the authority to dispose of the matter afresh after giving the aggrieved party a reasonable opportunity of putting forward its case. Otherwise, it would mean that where a court quashes an order because the principles of natural justice have not been complied with it should not while passing that order permit the Tribunal or the authority to deal with it again irrespective of the merits of the case. A Division Bench of the Punjab High Court in C.I.T. v. Ramesh Chander took the view that what the notified authority could do under Section 132(12) a court could do in writ proceedings. Though the observation was obiter we consider that it is correct.

63. The principles laid down by the Apex Court in this judgment were reiterated by the Apex Court in the subsequent pronouncement in Commissioner of Income Tax v. National Taj Traders and BMRDA v. Gokak Patel Volkart Ltd. and Ors.

In the Bombay Metropolitan Region Development Authority v. Gokak Patel Volkart Ltd. and Ors. reported at placing reliance on the pronouncement in Puranmal (supra) the court laid down the principles succinctly thus:

19. It is well settled that when the statute lays down the period of limitation for passing an order that requirement is fulfillled as soon as an order is passed within that period. If the order is set aside on appeal and the appellate order directs a fresh order to be passed then there is no requirement of law that the consequential order to give effect to the appellate order must also be passed within the statutory period of limitation. This proposition of law is well settled.

For this reason the submission on behalf of the respondents that the writ petition must fail on the ground of the period prescribed under Rule 17(1) being over cannot be sustained.

64. Reliance is placed by Mr. Malhotra learned Additional Solicitor General upon the pronouncement of the Apex Court reported at 2005 (2) Scale 237 S.S. Enterprises v. Designated Authority and Ors. in support of his contention that upon the Designated Authority arriving at a conclusion that the volume of dumped imports actual or potential or the injury is negligible, the investigation must be terminated. The observations of the Apex Court in para 11 and 12 of the pronouncement are pointed out wherein it has been held that it was incumbent on the Designated Authority to have closed investigation under Rule 14(d) it came to the conclusion that the volume of the dumped imports was less than 3% of the total imports. It would thus appear that on a finding that the volume of the imports is deminimus, the Designated Authority is required to close the investigation without anything further.

Page 2622

65. Learned Counsel for the petitioner however has contended otherwise and urged that irrespective of the finding on volume, the price impact has to be assessed by the Designated Authority. However, such a submission is not supported by the observations of the Apex Court in the judicial pronouncement placed by the respondents before this Court.

66. The petitioners have objected to the termination of the investigation by the respondent on the ground that they were persuaded to believe that the Designated Authority had reached a positive finding on dumping, injury and the causal link inasmuch as the Designated Authority had required the exporters to furnish a price undertaking. I find that the impugned order itself notices that such undertaking was required only on a prima facie view in the matter and not on a final consideration based on the material placed by the domestic industry as well as the concerned persons before the Designated Authority. Furthermore on a consideration of the matter the Designated Authority had found that the applicable price of the subject product was higher than the price undertaking which had been suggested by the domestic industry and was being considered. In any case the prima facie view cannot be held to be a final view of the Designated Authority which would be based on a consideration of the entire material placed before it.

67. Ms. Meenakshi Arora learned Counsel appearing for intervenor has placed reliance on the pronouncement of the Apex Court reported at 2005 (2) Scale 395 Shenyang Mastsushita S. Battery Co. Ltd. v. Exide Industries Ltd. and Ors. in support of this submission. Perusal of this judgment would show that the court was not concerned with consideration of any finding on this aspect of the matter. The observation has been made by the court having regard to the facts and circumstances of the case alone.

68. It has been vehemently urged at great length by learned Counsel for the petitioners that the Designated Authority had gravely erred in not segregating data relating to imports which had not been dumped. As a result the computation of the volume and percentage of the dumped goods was erroneously reached. In this behalf, it becomes necessary to advert to the letter dated 18th June, 2002 addressed by the petitioners to the Designated Authority based whereon the Designated Authority has taken into consideration the imports from different countries.

69. It has been held that examination of the legality and validity of an administrative order would require an examination as to whether it is actuated with unreasonableness or irrationality or not. If it is found that the order is not reasonable or rational, then it is certainly open to the courts to interfere in the matter. But what is reasonable and rational depends on each case and no hard and fast rule or strait jacket formula can be laid down. Such question has to be examined in the facts and circumstances of each individual case. (Ref: of India v. G. Ganayutham).

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70. Consideration of the decision under scrutiny requires consideration as to whether the same is based on relevant material and factors and not irrelevant material. If the relevant material has not been ignored, then the court would not interfere with the decision (Ref.: Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi and Ors.)

71. The parameters within which a challenge can be laid to an order passed in exercise of statutory power have been laid down in Barium Chemicals Limited v. The Company Law Board. It was held by the Apex Court that even if an order is passed in good faith and with the best of intention to further the purpose of the legislation which confers the power, since the authority has to act within the limits of the legislation, its order can be challenged if it is beyond those limits or passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisite under the legislation. In this pronouncement, the court held that an order passed in exercise of statutory power cannot be challenged on the ground of impropriety or sufficiency but would be liable to be quashed on grounds of malafide, dishonesty or corrupt purpose.

The parameters of judicial review into the 'opinion' and the manner in which it is to be formed under Section 237(b) of the Companies Act had come up for consideration in this pronouncement of the Apex Court. The Apex Court thus recognised the permissibility of the scrutiny by a court as to existence of some circumstances within limited parameters and not as to the sufficiency thereof. The court noticed that the subject matter of a legislation has an important bearing on the interpretation of a provision. It is well settled that when something is to be done which is within the discretion of the authorities, then that something is to be done according to the rules of reason and justice and not according to private opinion. Discretion necessarily implies good faith in discharging a public duty. There is always a perception within which a statute is intended to operate. It is to be done according to law and is to be legal and regular and not arbitrary, vague or fanciful. The power is to be exercised by the authority in good faith. As was held by Lord Denning M.R. in Associated Provincial Pictures Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223 CA 'that a person entrusted with the discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from its consideration matters which are irrelevant to the matters that he is to consider'.

72. In Ganesh Santa Ram Sirur v. State Bank of India and Anr. the court cited with approval the principles laid down in ECIL v. B. Karunakar, which approach and test should govern all Page 2624 cases where the complaint is not that there was no notice, no opportunity and no hearing but one of not affording a proper hearing, that is adequate or a full hearing or violation of a procedural rules or requirement governing the enquiry.

73. As back as in Union of India v. Col. J.N. Sinha, it was held that rules of natural justice are not embodied rules nor can they be elevated to the position of fundamental rights.

74. It was held by the Supreme Court in A.K. Kripak v. Union of India , that the aim of the rules of natural justice is to secure justice or to put it negatively, to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law, but supplement it. Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the express words of the provision conferring the power, the nature of the power conferred, the purpose for which it is conferred and the effect of the exercise of that power.

75. In K.L. Tripathi v. State Bank of India , the petitioner complained of prejudice to the principles of natural justice on the ground that he was not given an opportunity to rebut the material gathered in his absence. In this case, the Supreme Court held that no real prejudice had been suffered by the complainant in the circumstances of the case.

76. There is yet another consideration where an issue is raised that there is failure of justice on account of violation of principles of natural justice. It has been repeatedly held that a person so asserting must be able to establish a legal right with regard to the claim raised. It was so held in entitled State of M.P. v. Shyama Pardhi and Mohd. Sartaj and Anr. v. State of U.P. and Ors.

77. The petitioners have also assailed the notification dated 27th August, 2003 on the ground of failure to comply with the principles laid down by the Apex Court in Mahabir Prasad Santosh Kumar v. State of U.P. and Ors.; S.N. Mukherjee v. UOI. These judgments recognised the duty cast on all quasi judicial and administrative authorities to give reasons for their decisions. The submission is that the Designated Authority failed to record reasons for its findings.

78. So far as the pronouncement of the Apex Court in S.N. Mukherjee v. UOI is concerned, the issue before the court was the Page 2625 requirement of recording reasons in findings and sentence of the court martial and an order passed by the confirming authority which is concerned with confirmation of the finding and sentence. The court extensively considered the principles which would govern exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions. In this behalf the Apex Court had observed thus:

35. ...In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi- judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage.

79. In Mahavir Prasad Santosh Kumar v. State of U.P. and Ors. , the court was concerned with an order cancelling licenses held by the petitioners under the U.P. Sugar Dealers Licencing Order 1964 to delink sugar. In this case the court held that the order cancelling the licenses was quasi judicial and could be made only on a consideration of the charges and the explanation given by the appellants. It was observed that having regard to the nature of the allegations it was necessary for the district magistrate to pass the order to give some reasons as to why he held the charges as proved. The right of the petitioners to appeal against the order could be effectively exercised only if reasons were recorded by the district magistrate. On account of failure to record reasons the appeal had been rendered an empty formality. So far as the practice of the executive authority dismissing statutory appeals against order without giving reasons is concerned, it was held that this prima facie seriously prejudices the rights of the aggrieved party. It was further held to be a negation of the rule of law. In this behalf the court observed thus:

7. Opportunity to a party interested in the dispute to present his case on questions of law as well as fact, ascertainment of facts from materials before the Tribunal after disclosing the materials to the party against whom it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority entrusted with quasi-judicial authority has reached a conclusion on the problem before him : it must appear that he has reached a conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process leading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi-judicial authority ensures that the Page 2626 decision is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.

80. In the instant case the order dated 27th August, 2003 passed by the Designated Authority is a considered and reasoned decision which give reasons for its findings. In the light of the principles laid down by the Apex Court in the afore-noticed judicial pronouncements, it certainly cannot be held that the same does not meet the requirements of law so far as giving of reasons in support of its conclusions is concerned. The order contains a detailed analysis and reasons for every finding returned by the authority.

81. It now becomes necessary to first deal with the contention of the petitioner that the notification dated 27th August, 2003 issued by the Designated Authority terminating the investigations holding that there was no sufficient evidence of injury to justify the continuation of the investigations, requires to be set aside on grounds of violation of principles of natural justice. It has been urged that before terminating the investigation, the authority was required to conduct an oral hearing for the reason that the petitioners had been led to believe that the authority had arrived at a positive finding on dumping injury and causal link when the Designated Authority had required the exporters to furnish a price undertaking. It has further been urged that the findings of the authority with regard to the volume and value of the landed imports are based on information supplied by the Directorate General of Commercial Intelligence and Statistics (DGCIS for short) which has been kept as confidential by the authority without any justification. It has been contended that the Designated Authority had placed reliance on data put together by the Directorate General of Commercial Intelligence and Statistics which was not placed in the public file. The petitioner has also urged that the notification deserves to be set aside for the reason that no adequate opportunity of representing an oral hearing was given by the Designated Authority to the petitioner.

82. In this behalf, it is noteworthy that in the written submissions placed by the petitioners before this Court it has been urged that the cumulative data put together by the Directorate General of Commercial Intelligence and Statistics (`DGCIS' for short) is publicly available from the export data of the subject countries. In this view of the matter certainly the petitioner cannot be heard to contend that it was not aware of such public data. There is yet another reason why this objection is misconceived. From the record placed before this Court and as noticed in the notification dated 27th of August, 2003, such import data as per the DGCIS have been provided to the Designated Authority by the petitioners themselves vide their letters Page 2627 dated 22nd of July 2003 and 23rd of July 2003. No prejudice could possibly have been suffered by the petitioners merely because such data furnished by them was not kept in the public file. No other person has objected to the same.

83. The petitioners have repeatedly complained that the Designated Authority violated principles of natural justice for the reason that it did not disclose the information relating to sales realisation and other information of the petitioners to the petitioners themselves. As noticed herein the Designated Authority made available information which was in the public domain in the public file. The petitioners were well aware of all information which have been furnished by them to the Designated Authority. Furthermore the Designated Authority has relied upon the floor price which had been fixed by the respondent No. 1 which had continued to bind all parties by virtue of the interim orders passed by the High Court of Judicature at Calcutta in the earlier writ petition filed by the petitioners. For this reason the objection taken by the petitioners is misconceived.

84. I find that the Designated Authority has repeatedly noticed that the petitioner has clubbed several items and products without providing bifurcated quantities of sales of the sheets. The only figures which were placed before the authority were consolidated data relating to imports made under different schemes. The Designated Authority had made a specific request made on 3rd December, 2002, requiring the domestic industry to furnish the quantity and value of imports of the subject goods from the subject countries and from other sources against advance list. No bifurcated/segregated data was available in respect of the imports made under the advance license scheme. The intervenor M/s CORSMA had however placed certain material and data in this behalf before the authority which was placed in the public file. In the given facts, it is apparent that the petitioner has been given adequate opportunity to placing material as well as being hand by the Designated Authority. The order of Designated Authority is based on material placed by the petitioner and the co- operating exporters, all of which manifests consideration of the relevant material.

85. Perusal of the record would show that the petitioners have admitted that the authority had called upon it to give clarifications and that the original notification had been issued only thereupon. No grievance was made by the petitioner with regard to want of material or want of an opportunity to make adequate representation. The petitioner has admitted that oral hearing was given to it on 23rd November, 2002 and 5th May, 2003. The petitioners have given clarifications to the authority on 5th February, 2003, 9th July, 2003. Data has been submitted on 22nd July, 2003 and 23rd July, 2003.

86. I find that the petitioner had been given adequate opportunity to place the entire material in support of their complaint before the Designated Authority as well as having been given opportunities for oral hearing on 23rd November, 2002 and 5th May, 2003. The Designated Authority has complied with the requirements of issuing notice and receiving material which has been placed in the public file. In this background it certainly Page 2628 cannot be contended that the order dated 27th August, 2003 violates any principle of natural justice.

87. It has been pointed out by the Cold Rolled Steel Manufacturers Association of India-respondent No. 2 that the steel consuming industry is much more than the steel producing industry in India. Furthermore, apart from the petitioners, that is the Steel Authority of India Limited and M/s Essar Steel India Limited, there are other major producers of steel namely the Tata Iron and Steel Company; Jindal Vijaynagar Steel Limited; the Ispat Industries Limited and the Lloyds Steel Limited. According to the intervenor additionally, there are 20 secondary producers of steel in the relevant year 2001-02 who produced 0.676 million tonnes of steel as per the data published by the Joint Plant Committee constituted by the Ministry of Steel. Against the total production of steel in the country of 36.18 million tonnes in the year 2003-04, the petitioner No. 2 is stated to have produced only 8.57 million tonnes equivalent to approximately 24% of the total steel manufactured.

88. So far as the losses which have been claimed by the petitioners are concerned, the respondents vehemently contended that the same were incurred due to misutilisation and diversion of funds resulting in sharp escalation of their project cost and heavy burden of interest charges, higher consumption of energy and other inputs vis a vis global standards and unhealthy competition between the domestic HR coil producers.

89. The respondents have complained that on account of failure of M/s Essar Steel and Steel Authority of India Limited to repay their loans resulting in destabilisation of public and private financial institutions in India and abroad, the Government of India had to constitute committees to investigate into their functioning. It has been pointed out that during this period of investigation the Tata Iron and Steel Company earned healthy profits. For these reasons the findings of the Designated Authority are supported by these submissions to the effect that the losses, if any, incurred by the petitioners were not related to imports of HR coils but to their own inefficiencies.

90. The intervenor has complained that on account of a cartel formed by the domestic industry manipulating the prices of hot rolled steel gates to gain undue benefits, prices were being controlled at the cost of public interest by them. The domestic industry was jointly fixing the prices of HR coil products on a monthly basis in an arbitrary and monopolistic manner. As a result, major steel producers were deriving undue benefits and exporting HR coils at prices lower than the domestic prices to create an artificial scarcity in the domestic market. For this reason the Government of India had intervened and warned the hot rolled steel and coil producers to stabilise the prices. No positive response forthcoming, the Government was compelled to take inter alia the following measures to curb capitilisation and monopolistic pricing to provide relief to the consumers which included:

(a). reduction in customs duty on HR Coils and other products from 25% to 15% Page 2629

(b) suspension of DEPB Scheme for the export of HR Coils and other products till June 2004 to improve availability in the domestic market and curb shortages.

(c). reduction in excise duty on HR coils and other steel products from 16% to 8% to protect the consumers from the high cost of steel.

It has been contended that this writ petition is wholly misconceived and malafide and deserves summary rejection.

The petitioners have denied these allegations and have attributed the escalation in the prices of steel on account of increase in raw material prices 91. Intervenor points out that during the period of investigation, due to lack of demand, the steel industry was subjected to cyclic fluctuations and prices of hot rolled HR coil as well as the products like CR Coils, sheets, galvanized sheets, tin plates and pipes in India as well as abroad varied primarily because of lack of demand. However the domestic prices of HR coils have since sharply escalated by over 100% from Rs. 12000/- per tonne in March, 2002 to Rs. 26,000/- per tonne in March, 2004, ex steel plant, excluding custom and other taxes. As on the date of filing its counter affidavit on 24th May, 2004, the respondent No. 2 has pointed out that the current prices of the domestic producers were also higher by around Rs. 4500/- per tonne vis a vis the global price of USD 410 (approximately Rs. 22,000/-) per tonne FOB. It is noteworthy that these figures do not relate to the period of investigation.

92. It has further pointed out that there was no injury to the domestic producers from the imports of HR coils for the reason that the domestic producers were protected by the custom duty of 25% and an additional SAD at the rate of 4%; that bulk of the imports of HR coils were under the 'advance license scheme' for export production and thus had no impact on the domestic demand and prices; and that hot rolled steel coil producers in India were protected during the period of investigation by an exorbitant minimum CIF value/floor price of USD 302 C and F for the import of HR coils with the landed cost of Rs. 18000/- per tonne against the selling price ranging from Rs. 12000/- to Rs. 14000/- per tonne by the domestic producers. It is also pointed out that the floor price of the defective hot rolled coils was similarly much above the selling price of defective grade HR coil by the domestic producers.

93. I find that the petitioner has not laid any challenge to the findings of the non injurious price of the domestic industry arrived at by the Designated Authority. It is also an admitted position that the petitioner was not able to segregate goods which had been imported under the advance license scheme of the government. The petitioner also does not challenged the price protection by fixation of the flour price by the Government of India which was prevalent during the entire period of investigation by the Designated Authority. The petitioner has also not challenged the conclusion of the Designated Authority that the CIF value of the imports was higher than the value at which it was willing to accept a price undertaking from the respondents. Looked at from any angle the challenge laid by the petitioners in the instant writ petition is wholly misconceived.

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94. It is well settled that judgments have to be examined in the light of the facts in which they were rendered. Furthermore in the facts of the instant case the reliance placed by the petitioners on the several writings on dumping and anti dumping measures would not be relevant for the purposes of the instant case.

95. It is noteworthy that the statutory scheme requires notice to all effected persons. In fact care has to be taken by the Designated Authority which in the instant case has sent notices not only to known exporters as informed by the petitioners but also to embassies of the countries against whose imports the petitioners had laid a grievance. There is certainly merit in the respondent's objection that the petitioners has failed to implead the necessary effected parties before this Court. Even intervenor was joined in the matter on an application made by it for impleadment.

96. The petitioners have sought to refer to other orders passed by the Designated Authority in other matters. From a scheme of the statutory rules and regulations therein and the nature of disputes it is evident that each matter entails a close enquiry into the issues raised before the Designated Authority.

The nature of investigation and discussion would depend on the material which is placed before the authority. Certainly an order passed in one matter cannot determine either the nature of the investigation or orders which are passed by the authority in other matter.

In the light of the foregoing discussion I find no merit in this writ petition which is hereby dismissed.

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