Designated Authority ... vs M/S. Haldor Topsoe A/S. on 20 July, 2000
Equivalent citations: AIR 2000 SC 2556, 2000 (70) ECC 657, 2000 (120) ELT 11 SC, JT 2000 (8) SC 120, 2000 (5) SCALE 239, (2000) 6 SCC 626
Wednesday, January 3, 2018
FACTS Catalysts were imported from Denmark. A complaint of dumping was lodged with the designated authority. The designated authority undertook to cause investigation. However, the exporter did not furnish information about the export price of the catalyst to the other third countries when no domestic sales were made in them. The exporter insisted that normal price be determined on cost of production basis. The authority rejected this. The designated authority, instead, proceeded to rely upon the price of like catalyst sold by a German manufacturer. On this basis, the designated authority gave its finding and recommended imposition of anti-dumping duty. It recommended two rates, depending upon the end-use of the catalysts in India. The exporter challenged the finding in appeal to the tribunal. It was argued that the anti-dumping duty is country-specific and exporter-specific and therefore, the price of the German exporter cannot be relied upon. The tribunal accepted the argument of the appellant. The tribunal concluded that the action of the designated authority is clearly in violation of the specific provisions contained in section 9A of the Act. Even though the appellant did not co-operate to provide the information, the tribunal refused to be persuaded to recognize the price of another exporter for like article. According to the tribunal, it was wrong for the Central Government to extend the time of one year for completing the investigation, without providing an opportunity to the appellant. Yet another question was agitated in appeal. Was it legal to recommend two rates of anti-dumping duty for the same product? The tribunal answered the question in the negative, saying, “We are not able to up hold the action of the designated authority.” The designated authority decided to contest the order of the tribunal in the Supreme Court.
JUDGEMENT The judgment of the apex court set aside the order of the tribunal on more than one count. On the basic question whether reliance upon the price of the other exporter falls within the domain of correctness, the Supreme Court reversed the finding of the tribunal. The court rejected the theory of exporter-specific or country-specific argument. The court observed: “By holding anti dumping duty to be exporter-specific, the tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute.” It felt that the legal provisions did not call for any doubt or confusion. “On a careful reading of section 9A of the Tariff Act and Rule 6 of the rules, it is clear that the statute has no where put such a restriction on the investigating authority. On the contrary, the perusal of the said provisions clearly shows that the normal value will have to be determined with reference to comparable price, the word comparable price in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer.” The apex court rejected the tribunal’s finding on the question of two different rates of anti-dumping duty. The Supreme Court observed that the tribunal did not give any specific reason why the two different margins cannot be made applicable based on different import duties applicable to the concerned catalyst.