PTA USERS ASSOCIATION vs UNION OF INDIA AND ORS

$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 06.02.2024
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+ CUSAA 3/2024 & CM APPL. 1914/2024
PTA USERS ASSOCIATION …..Appellant

versus
UNION OF INDIA AND ORS ….. Respondents

Advocates who appeared in this case:

For the Petitioner: Mr. Ashish Dholakia, Senior Advocate with Ms. Ranjana Roy, Mr. Vasudha Sen, Mr. Perminder Singh Jassal, Mr. Vineet Wadhwa, Ms. K. Hema and Ms. Ananya Narain, Advocates.

For the Respondents: Mr. Asheesh Jain, CGSC with Mr. Gaurav Kumar and Ms. Ria Khanna, Advocates for respondent No.2.

Mr. Balbir Singh, Senior Advocate with Mr. Vipin Jain, Ms. Reena Khair, Mr. Rajesh Sharma, Mr. Nikhil Sharma, Ms. Shyam Goyal Ms. Turina Sinah, Mr. Rishabh, Advocates for respondent No.3.
Mr. Parthasarthi Jha, Advocate.
Mr. Vipin Jain, Advocate (Through VC)
CORAM:-
HON’BLE MR. JUSTICE SANJEEV SACHDEVA
HON’BLE MR. JUSTICE RAVINDER DUDEJA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1. After some hearing, learned senior counsel appearing for the appellant submits that the appellant would be satisfied in case the Designated Authority were to consider the observations of the Tribunal insofar as they relate to impact assessment as prima facie and not conclusive and binding. He submits that in case findings were to be treated as conclusive and binding, nothing would be left for the Designated Authority to determine except a recommendation on the extent of levy of duty.
2. Learned senior counsel appearing for respondent No.3, Domestic Industry i.e., appellant before the Tribunal submits that he has no objection to the said course being adopted by the Designated Authority in terms of this order.
3. Reference may be had to the judgment of the Supreme Court in Reliance Industries Ltd. vs. Designated Authority and Others, 2006 (202) ELT 23 (SC), wherein the Supreme Court has held as under:-
“27. The provisions relating to injury analysis in Annexure II to the Antidumping Rules are also clear that the injury determination is always for the domestic industry as a whole and not for individual companies.
28. In our opinion, since the NIP is for the industry as a whole, it is immaterial if a particular company produces some of its inputs captively. In our opinion, for the purpose of determination of NIP, the DA is always required to take into consideration the transfer price (market value) of the inputs and not their actual cost of captive production. This is because the entire investigation, analysis, recommendation and imposition are for the product under consideration for the whole domestic industry and not for the individual companies and inputs captively manufactured which may be involved in the production and sales of the goods.
29. The approach adopted by the DA, in ouropinion, will lead to a situation where an artificialdiscrimination will be created between the integratedand non-integrated companies to the peril of thesmaller plants with no backward integration(backward integration means a factory which alsoproduces its own raw materials etc). In suchsituations, the result will be that the companies withno backward integration will suffer adversely. In ouropinion, this was neither envisaged under the lawnor can be considered as a desired result. TheAntidumping legislation is meant for protection ofthe domestic industries as a whole against unfairpractice of dumping, irrespective of whether they arebackwardly integrated or not.”

4. Reference may also be had to paragraph 38 of the impugned order wherein the Tribunal has held that there is positive price under cutting as well as the imports have depressed domestic prices and the requirement of paragraph (ii) are met in the present case.
5. We note that apart from return of finding of dumping, price undercutting and depression, there is a requirement of an impact assessment which has to be significant for the Adjudicating Authority to recommend levy of Anti Dumping Duty on the imports.
6. Insofar as the issue of dumping and price undercutting is concerned, a positive finding was returned by the Adjudicating Authority in its final finding dated 27.10.2022, which were not in issue before the Appellate Tribunal.
7. Respondent No.3, Domestic Industry had impugned the order before Appellate Tribunal primarily on the ground that the Adjudicating Authority had returned a finding that dumping did not lead to any price depression or that the same did not have any significant impact on the Domestic Industry warranting any levy of Anti Dumping Duty.
8. The Tribunal has remitted the matter to the Adjudicating Authority to re-consider the issue.
9. In view of the above, this appeal is disposed of directing that the Adjudicating Authority shall consider the impact assessment of the injury arising out of the dumped import based on the data produced before the Adjudicating Authority in support of para (ii) of Annexure II of 1995 Rules and in terms of para 40 of the Tribunal’s order dated 29.09.2023 by treating the observations in the order of the Tribunal as prima facie.
10. Insofar as the observation of the Tribunal with regard to dumping causing any depression in the prices of the domestic industries and also as to whether there is significant impact on the domestic industry warranting levy of Anti Dumping Duty would be determined by the Adjudicating Authority uninfluenced.
11. Further that the observations of the Tribunal qua the finding of the material injury shall be treated as prima facie and the Adjudicating Authority shall independently and uninfluenced assess the material already before it in terms of the judgment of the Tribunal.
12. The appeal is disposed of in the above terms. All rights and contentions of the parties are reserved.
13. Dasti under signature of the Court Master.

SANJEEV SACHDEVA, J

FEBRUARY 06, 2024/NA RAVINDER DUDEJA, J

CUSAA 3/2024 Page 2 of 5