Custom, Excise & Service Tax Tribunal
M/S. Surabhi Enterprises Pvt. Ltd vs Designated Authority on 1 September, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. I
Appeal No. AD/3854 and 3855/2012
AD/COD/4867 and 4868/2012
[Arising out of Notification No. 13/2012-Customs (ADD) dated 22.02.2012 issued by the Central Government based on Final Finding of Anti Dumping Duties issued by the Designated Authority, Directorate General of Anti- Dumping & Allied Duties, vide Final Finding No. 15/18/2011-DGAD dt. 10.02.2012]
M/s. Surabhi Enterprises Pvt. Ltd. Appellants
M/s. Sanjay Chemicals
Vs.
Designated Authority, Respondent
Directorate General of Anti-Dumping and Allied Duties/Ministry of Finance And others Appearance:
Present Shri T.D. Satish, Advocate for the Appellant Present Shri Amit Singh, Advocate for the Designated Authority, Ministry of Commerce Present Shri Govind Dixit, A.R. for the Revenue Present Shri Rajesh Sharma and Ms. Reena Khair, Advocate for the Domestic Industry Coram:
Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mrs. Archana Wadhwa, Judicial Member Honble Mr. B. Ravichandran, , Technical Member Date of Hearing : 17.08.2016 Date of Decision : 01.09.2016 FINAL ORDER NO . 53328-53329 /2016 AD Per Archana Wadhwa (for the Bench):
Both the appeals are being disposed of by a common order as they are directed against a common cause of action of the Designated Authority. The appeals are essentially against the Final Finding dated 10.2.2012 of the Designated Authority passed in the Mid-term Review investigation concerning Anti-Dumping duty imposed on imports of Sodium Tripoly Phospate (STPP) originated in or exported from China PR; though in the appeal memorandum, the appellants have impugned the original Final Finding of the Designated Authority recorded on 3.5.2011 and the consequent notification No. 58/2011-Cus. dated 8.7.2011.
2. As per facts on record, M/s. Tata Chemical Ltd., Mumbai, a domestic manufacturer of STPP filed an application before Designated Authority requesting initiation of Anti-Dumping investigation for levy of Anti Dumping duty on the imports of the subject goods originating in or exported from China. After due process of law and after due investigations made by the Designated Authority, Final Findings were given by him on 3.5.2011 recommending the imposition of Anti-Dumping duty from the date when earlier the provisional Anti-Dumping duty was imposed with effect from 21.9.2010. Based upon the said Final Finding of the Designated Authority, Customs Notification No. 58/2011-Cus dated 8.7.2011 was issued.
3. Thereafter, on 21.7.2011 a request came from Indian manufacturers i.e. M/s. Tata Chemical Ltd. and M/s. Rhodia Specialty Chemicals India Ltd. intimating the Designated Authority that the production of STPP was stopped by them with effect from 1.3.2011 and the Anti-Dumping duty imposed, based upon the Final Finding of the Designated Authority may be withdrawn in the interest of larger public.
4. Based upon the above request of the Indian Manufacturers, the Designated Authority initiated the mid-term review on 22.9.2011 and conducted investigation. Accordingly, after notifying the known exporters or producers of the subject goods in the Subject Country and known domestic importers and after taking into consideration the entire facts and circumstances, it was concluded by the Designated Authority that with the stoppage of production of STPP by M/s. Tata Chemicals Ltd. and M/s. Rhodia Specialty Chemicals India Ltd. and there being no other known manufacturer for the said goods, there was no justification for continuation of the Anti-Dumping duty. The Designated Authority also observed that the Domestic Industry i.e. M/s. Tata Chemicals had stopped their production in March, 2011 itself i.e. during the period of initial investigation, on the basis of which the Final Finding proposing imposition of Anti Dumping duty were arrived at but the said information was not provided to the Designated Authority by M/s. Tata Chemicals. Further, M/s. Rhodia Specialty Chemicals India Ltd. had also stopped their production and surrendered their registration certificate to the Central Excise authority but did not inform the Designated Authority accordingly. He observed that if the Domestic manufacturing industry would have informed the authority about the stoppage of production of STPP by them, the said fact could have been considered by the Designated Authority and he could have considered termination of the investigation under Rule 14 of the Anti Dumping Rules. Further, after observing so, the Designated Authority concluded that inasmuch as the purpose of Anti-Dumping duty, in general is to eliminate injury caused to the Domestic Industry by unfair trade practice of dumping and since there being no Domestic Industry presently producing the subject goods in the country, there is no justification for continuation of imposition of Anti-dumping duty. Accordingly, vide his Final Finding dated 10.2.2012, he recommended withdrawal of Anti-Dumping duty, which was originally recommended by the Designated Authority vide earlier Final Finding dated 3.5.2011, on the basis of which Customs Notification No. 58/2011-Cus dated 8.7.2011 was issued.
5. Based upon the above recommendations of the Designated Authority, Government of India vide its notification No. 13/2012 Cus (ADD) dated 22.2.2012 rescinded the earlier notification No. 58/2011-CUs dated 8.7.2011 except as respects things done or omitted to be done before such rescission.
6. As such, it is seen that during the period prior to mid-term review and prior to issuance of Notification No. 13/2012 dated 22.2.2012, the imports in the country has attracted Anti-Dumping duty and the same was withdrawn with effect from 22.2.2012 with a clause of non-applicability to the things done or omitted to be done before such rescission.
The Appellant is aggrieved with the said exception clause of the Notification and it is their plea that the Designated Authority should have recommended withdrawal of the Anti-Dumping duty with retrospective effect.
7. After hearing both sides duly represented by Shri T D Satish, learned Advocate appearing for the Appellant and Shri Amit Singh, learned Advocate appearing for the Designated Authority and Shri Govind Dixit, learned DR appearing for the Revenue, we note that the facts in the present case are not in dispute. Admittedly, during the first investigation before the Designated Authority, covering the period of investigation, M/s. Tata Chemicals on whose behest, the investigation had been initiated, discontinued with the production of goods with effect from 1.3.2011. Similarly, the second Domestic Manufacturer M/s. Rhodia Specialty Chemicals India Ltd. also stopped manufacture of the subject goods STPP. However, the said facts were not brought to the notice of Designated Authority, during the course of investigation, which led to passing of Final Finding by the Designated Authority on 3.5.2011. It is only subsequently, at the request of Domestic Industry itself, the mid-term review was taken by the Designated Authority and after appreciating the fact of production stoppage by the two domestic manufacturer of the product and after taking note of the fact that there is no other industry similarly situate, he recommended for discontinuation of the imposition of Anti-Dumping duty. Such recommendation stand accepted by the Government of India.
8. The appellants grievance is that such recommendations to discontinue the Anti-Dumping duty should have been with retrospective effect inasmuch as it is the Designated Authority itself, who has observed that had the Indian manufacturers informed the Designated Authority during the period of first investigations, the investigation might have been discontinued. However, we note that such observations of the Designated Authority are in the realm of conjectures. There is no categorical finding of the Designated Authority that such information would have definitely led to stopping of investigations. No doubt the Indian Domestic Industry was under an obligation to reveal the fact of stoppage of production to the Designated Authority during the course of first investigation itself. However, having not disclosed, the Designated Authority proceeded ahead on the basis of information available on records and came to a categorical Final Finding vide his order dated 3.5.2011. Such Final Finding by the Designated Authority were not challenged by the appellant or the exporters and as such, attained finality. It is only vide mid-term review that a conclusion contrary to the first Finding was arrived at and according to us Designated Authority has rightly observed that such conclusion would be applicable only prospectively. Such mid-term review for reviewing the changed circumstances was in terms of Rule 23 of the Anti Dumping Rules and making recommendations for withdrawing the duty. Based upon such mid term review, the Designated Authority could not have upset, its own Final Finding recorded in original investigation. inasmuch as having not put to challenge the same had attained finality. He has rightly observed that there is no provision under Rules empowering the Designated Authority to recommend discontinuation of Anti Dumping Duty with retrospective effect. In other words, Rule 14 enabling power of Designated authority to terminate the proceedings is not available for review proceedings in terms of Rule 23. Learned Advocate appearing for the appellant has not been able to show us any provisions of law enabling the Designated Authority or empowering him to allow backdated relief in such circumstances. As such, we find no justifiable reason to interfere in the Final order dated 10.2.2012 of the Designated Authority.
9. Accordingly, the appeals are rejected.
( Pronounced in the open Court on 1.9.16 ) (Justice Dr. Satish Chandra) President (Archana Wadhwa) Judicial Member (B. Ravichandran) ss Technical Member 7