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CASE NO.: Appeal (civil)  773 of 2001

PETITIONER: Rishiroop Polymers Pvt. Ltd.

RESPONDENT: Designated Authority & Additional Secretary

DATE OF JUDGMENT: 23/03/2006

BENCH: ASHOK BHAN & G.P. MATHUR

JUDGMENT: J U D G M E N T

With Civil Appeal Nos. ......1703....... of 2006 (Arising out of SLP) Nos. 22905-22906 of 2003 Korea Kumho Petrochemicals Co.Ltd.      ....Appellant                 - Versus - Union of India & Ors.               ....Respondents

Civil Appeal Nos. 7159-7161 of 2004 Punit Resins Ltd.                               ....Appellant                 - Versus - Union of India & Ors.                   ....Respondents

Civil Appeal No. 7162 of 2004 Korea Kumho Petrochemicals Co. Ltd.     ....Appellant                 - Versus - Ministry of Finance & Ors.              ...Respondents

Bhan, J.

       Leave granted in Special Leave Petition (Civil  ) Nos. 22905 - 22906 of 2003.         This judgment shall dispose of Civil Appeal No.  773 of 2001 against the final Order No. 22 of 2000- AD in Appeal No. C/330/97-AD dated 2.2.2000 passed  by the Customs, Excise & Gold (Control) Appellate  Tribunal, New Delhi [ for short "the Tribunal" ];  Civil Appeals arising out of SLP ) Nos. 22905 -  22906 of 2003 against the final order No. 10/03-AD  and Misc. Order No. 9/03-AD dated 13.6.2003 passed  by the Customs, Excise and Service Tax Appellate  Tribunal, New Delhi in Appeal No. C/586/2001-AD  with C/Misc./100/2002-AD; Civil Appeal Nos. 7159- 7161 of 2004 against the final order Nos. 14- 16/2004-NB(A) dated 1.7.2004 passed by the Customs,  Excise and Service Tax Appellate Tribunal, New  Delhi in Appeal Nos. C/260/2002-AD, C/596/2002-AD  and C/687/2002-AD; and Civil Appeal No. 7162 of  2004 against the final order No. 17/2004-NB(A)  dated 1.7.2004 passed by the Customs, Excise and  Service Tax Appellate Tribunal, New Delhi [ for  short "the Tribunal" ] in Appeal No. C/14/2003-AD.

       These appeals are interconnected and  pertain  to the same cause of action.  Civil Appeal No. 773  of 2001 is against the final order imposing anti- dumping duty  for a period of five years, Civil  Appeals arising out of SLP) Nos. 22905-22906 of

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2003 are directed against the orders passed in "Mid  Term Review"  and Civil Appeal Nos. 7159-7162 of  2004 are against the order passed for continuance  of anti-dumping duty in the "Sunset Review" for  another period of five years.

       Common facts giving rise to the cause of action  and the litigation are as follows:

       Before adverting to the issues raised in these  appeals it will be relevant to mention the  historical background of the relevant statute and  the Rules.  Keeping in tune with the changing  international economic scenario,  the Government of  India adopted the path of liberalization in its  fiscal/economic policies.  The focus changed from a  closed economic setup to an open one.  This shift  in the focus invited foreign capital, goods,  products etc., in now open Indian market.  This  resulted in stiff competition for the domestic  industry which had to now compete with the foreign  products both in terms of price as well as its  quality.  Although, the said process of  liberalization had its positive side, i.e., making  available foreign products to the domestic users,  but it was also seen as having negative impact,  which if not regulated properly, would have  resulted in adversely affecting the domestic  industry, thereby sometimes leading to closure of  the same and/or retarding its growth leading to an   economic crisis.

       Though committed to the liberalization, the  Government of India also simultaneously took enough  speedy measures to ensure a level field playing for  the domestic as well as foreign producers.   The  concern of the Government in this regard was  translated into various amendments  which were made  in the Customs Tariff Act, 1975 [ for short "the  Tariff Act" ] from time to time.  During the year  1995 amendments were made to the Tariff Act.   Section 9 (A), which is the charging section, was  introduced whereby it became permissible for the  Central Government to impose Anti-Dumping duty on  importation of foreign articles which were found to  be dumped in India at a price which was lower than  the normal price of such imported goods in their  country of manufacture/origin.  It defines the  margin of profit, normal value and export price.   It also provides for duration of levy of anti- dumping duty, its review from time to time as well  as its continuance for a further period of five  years, , if the cessation of duty is likely to lead  to continuance or recurrence of dumping and injury.   This duty is over and above any other duty in  force.

Section 9 (A) of the Tariff Act reads as under: "9A. Anti-dumping duty on dumped  articles. - (1) Where any article is  exported from any country or territory  (hereinafter in this section referred  to as the exporting country or  territory) to India at less than its  normal value, then, upon the

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importation of such article into  India, the Central Government may, by  notification in the Official Gazette,  impose an anti-dumping duty not  exceeding the margin of dumping in  relation to such article.  Explanation. - For the purposes of  this section, -  (a) "margin of dumping", in relation  to an article, means the difference  between its export price and its  normal value;  (b) "export price", in relation to an  article, means the price of the  article exported from the exporting  country or territory and in cases  where there is no export price or  where the export price is unreliable  because of association or a  compensatory arrangement between the  exporter and the importer or a third  party, the export price may be  constructed on the basis of the price  at which the imported articles are  first resold to an independent buyer  or if the article is not resold to an  independent buyer, or not resold in  the condition as imported, on such  reasonable basis as may be determined  in accordance with the rules made  under sub-section (6);  (c) "normal value", in relation to an  article, means -  (i) the comparable price, in the  ordinary course of trade, for the like  article when meant for consumption in  the exporting country or territory as  determined in accordance with the  rules made under sub-section (6); or  (ii) when there are no sales of the  like article in the ordinary course of  trade in the domestic market of the  exporting country or territory, or  when because of the particular market  situation or low volume of the sales  in the domestic market of the  exporting country or territory, such  sales do not permit a proper  comparison, the normal value shall be  either -  (a) comparable representative price of  the like article when exported from  the exporting country or territory to  an appropriate third country as  determined in accordance with the  rules made under sub-section (6); or  (b) the cost of production of the said  article in the country of origin along  with reasonable addition for  administrative, selling and general  costs, and for profits, as determined  in accordance with the rules made  under sub-section (6):  Provided that in the case of import of  the article from a country other than

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the country of origin and where the  article has been merely transhipped  through the country of export or such  article is not produced in the country  of export or there is no comparable  price in the country of export, the  normal value shall be determined with  reference to its price in the country  of origin.  (2) The Central Government may,  pending the determination in  accordance with the provisions of this  section and the rules made thereunder  of the normal value and the margin of  dumping in relation to any article,  impose on the importation of such  article into India an anti-dumping  duty on the basis of a provisional  estimate of such value and margin and  if such anti-dumping duty exceeds the  margin as so determined : -  (a) the Central Government shall,  having regard to such determination  and as soon as may be after such  determination, reduce such anti- dumping duty; and  (b) refund shall be made of so much of  the anti-dumping duty which has been  collected as is in excess of the anti- dumping duty as so reduced.  (2A) Notwithstanding anything  contained in sub-section (1) and sub- section (2), a notification issued  under sub-section (1) or any anti- dumping duty imposed under sub-section  (2), unless specifically made  applicable in such notification or  such imposition, as the case may be,  shall not apply to articles imported  by a hundred per cent export-oriented  undertaking or a unit in a free trade  zone or in a special economic zone.  Explanation:- For the purposes of this  section, the expressions "hundred per  cent export-oriented undertaking",  "free trade zone" and "special  economic zone" shall have the meanings  assigned to them in Explanation 2 to  sub-section (1) of section 3 of the  Central Excise Act, 1944 (1 of 1944).  (3) If the Central Government, in  respect of the dumped article under  inquiry, is of the opinion that -  (i) there is a history of dumping  which caused injury or that the  importer was, or should have been,  aware that the exporter practices  dumping and that such dumping  would cause injury; and  (ii) the injury is caused by  massive dumping of an article  imported in a relatively short  time which in the light of the  timing and the volume of imported  article dumped and other

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circumstances is likely to  seriously under-mine the remedial  effect of the anti-dumping duty  liable to be levied, the Central Government may, by  notification in the Official Gazette,  levy anti-dumping duty retrospectively  from a date prior to the date of  imposition of anti-dumping duty under  sub-section (2) but not beyond ninety  days from the date of notification  under that sub-section, and  notwithstanding anything contained in  any law for the time being in force,  such duty shall be payable at such  rate and from such date as may be  specified in the notification.  (4) The anti-dumping duty chargeable  under this section shall be in  addition to any other duty imposed  under this Act or any other law for  the time being in force.  (5) The anti-dumping duty imposed  under this section shall, unless  revoked earlier, cease to have effect  on the expiry of five years from the  date of such imposition:  Provided that if the Central  Government, in a review, is of the  opinion that the cessation of such  duty is likely to lead to continuation  or recurrence of dumping and injury,  it may, from time to time, extend the  period of such imposition for a  further period of five years and such  further period shall commence from the  date of order of such extension :  Provided further that where a review  initiated before the expiry of the  aforesaid period of five years has not  come to a conclusion before such  expiry, the anti-dumping duty may  continue to remain in force pending  the outcome of such a review for a  further period not exceeding one year.  (6) The margin of dumping as referred  to in sub-section (1) or sub-section  (2) shall, from time to time, be  ascertained and determined by the  Central Government, after such inquiry  as it may consider necessary and the  Central Government may, by  notification in the Official Gazette,  make rules for the purposes of this  section, and without prejudice to the  generality of the foregoing, such  rules may provide for the manner in  which articles liable for any anti- dumping duty under this section may be  identified, and for the manner in  which the export price and the normal  value of, and the margin of dumping in  relation to, such articles may be  determined and for the assessment and  collection of such anti-dumping duty.

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(7) Every notification issued under  this section shall, as soon as may be  after it is issued, be laid before  each House of Parliament.  (8) The provisions of the Customs Act,  1962 (52 of 1962) and the rules and  regulations made thereunder, relating  to, the date for determination of rate  of duty, non-levy, short levy,  refunds, interest, appeals, offences  and penalties shall, as far as may be,  apply to the duty chargeable under  this section as they apply in relation  to duties leviable under that Act."  [emphasis supplied]         Method of determination  of the injury and the  procedure to be followed is provided in Section 9B  of the Tariff Act, relevant portion of which is  extracted below:

"9B. No levy under section 9 or  section 9A in certain cases. - (1)  Notwithstanding anything contained in  section 9 or section 9A: \027    

(a) ..........   (b) the Central Government shall not  levy any countervailing duty or anti- dumping duty -    (i)     under section 9 or section 9A by  reasons of exemption of such  articles from duties or taxes  borne by the like article when  meant for consumption in the  country of origin or exportation  or by reasons of refund of such  duties or taxes;  

(ii)    under sub-section (1) of each of  these sections, on the import  into India of any article from a  member country of the World  Trade Organisation or from a  country with whom Government of  India has a most favoured nation  agreement (hereinafter referred  as a specified country), unless  in accordance with the rules  made under sub-section (2) of  this section, a determination  has been made that import of  such article into India causes  or threatens material injury to  any established industry in  India or materially retards the  establishment of any industry in  India; and (iii)   ......................

(2)     The Central Government may, by  notification in the Official  Gazette, make rules for the

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purposes of this section, and  without prejudice to the  generality of the foregoing, such  rules may provide for the manner  in which any investigation may be  made for the purposes of this  section, the factors to which  regard shall be at in any such  investigation and for all matters  connected with such  investigation."  

       Under the scheme a provisional levy of duty is   contemplated which is preceded by preliminary  findings  regarding dumping and the consequent  injury to the domestic industry.  Under Section 9  (c) an appeal is provided against the determination  or review thereof.  This appeal is regarding the  existence, degree and effect of any dumping in  relation to any article by the designated authority  from time to time.         In exercise of the power under the Tariff Act,   the Customs Tariff (Identification, Assessment and  Collection of Anti-dumping Duty on Dumped Articles  and for Determination of Injury) Rules, 1995 [ for  short "the Rules" ] were framed.  Rule 2 (b)  defines the "domestic industry"  to mean: "(b) "domestic industry" means the  domestic producers as a whole engaged  in the manufacture of the like article  and any activity connected therewith  or those whose collective output of  the said article constitutes a major  proportion of the total domestic  production of that article except when  such producers are related to the  exporters or importers of the alleged  dumped article or are themselves  importers thereof in which case such  producers may be deemed not to form  part of domestic industry.  Provided that in exceptional  circumstances referred to in sub-rule  (3) of Rule 11, the domestic industry  in relation to the article in question  shall be deemed to comprise two or  more competitive markets and the  producers within each of such market a  separate industry, if -  (i)     the producers within such a market  sell all or almost all of their  production of the article in  question in that market; and  (ii)    the demand in the market is  not in any substantial degree  supplied by producers of the said  article located  elsewhere in the  territory;  Explanation. - For the purposes of  this clause, -  (i) producers shall be deemed to be  related to exporters or importers  only if, -  (a)   one of them directly or  indirectly controls the

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other; or  (b)     both of them are directly  or indirectly controlled by a  third person; or    (c)  together they directly or  indirectly control a third  person subject to the  condition that are grounds  for believing or suspecting  that the effect of the  relationship is such as to  cause the producers to behave  differently from non-related  producers. (ii)  a producer shall be deemed to  control another producer when the  former is legally or operationally  in a position to exercise  restraint or direction over the  latter."

Under Rule 3, the Central Government by a  notification can appoint a person not below the  rank of Joint Secretary of the Government of India  or such other person which the Government of India  may think fit as  designated authority  for the  purpose of said Rules.  Under Rule 4, it is the  duty of the designated authority  to investigate as  to the existence, degree and effect of any alleged  dumping in relation to any import of any article  and also to identify the article liable for anti  dumping.  The designated authority  is also  empowered to recommend to the Central Government as  regards normal value, export price, margin of  dumping and also give its findings on injury or  threat of injury to the domestic industry.  The  date on which the duty is commenced is also to be  recommended by the designated authority.   The  designated authority is also further empowered to  review the need for continuance of any anti-dumping  duty under Rule 23.          As per the procedure contemplated under Rule 5,  the designated authority initiates an investigation  regarding the existence, degree and effect of any  alleged dumping, upon receipt of a written  application by or on behalf of the domestic  industry  containing all relevant data, figures and  details supported by evidence of dumping, injury  and also the causal link between such dumped  articles and the alleged injury.  Over and above,  under sub-clause 4 of Rule 5 of the Rules, the  designated authority also has a suo motu  power to  initiate investigation, if it is satisfied from the  information received from the Collector of Customs  or from any other source regarding the dumping.   The designated authority is also required to notify  the Government of the exporting countries before  proceeding/initiating any investigation.          If the decision is taken by the designated  authority to initiate investigation, a detailed  exercise involving participation by the domestic  industry, the exporter, importer and all other  interested parties, begins.  Other interested

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parties, who are likely to be affected by the duty  are also heard and objections are invited from them  within a period of 30 days.  The representative of  consumer organizations also sometimes are heard,  depending on the situation.  Under Rule 11 of the  Rules, the designated authority is required to  determine the injury to the domestic industry,  threat of injury to domestic industry, material  retardation to the establishment of the domestic  industry, a causal link between the dumped imports  and the injury.  This is done by taking into  account all relevant factors including the volumes  of dumped imports, their effect on the price in the  domestic market.  The principles on which the  determination are done is indicated in Annexure II  to the Rules.  Rule 11 reads: "11. Determination of injury. - (1) In  the case of imports from specified  countries, the designated authority  shall record a further finding that  import of such article into India  causes or threatens material injury to  any established industry in India or  materially retards the establishment  of any industry in India.  (2) The designated authority shall  determine the injury to domestic  industry, threat of injury to domestic  industry, material retardation to  establishment of domestic industry and  a causal link between dumped imports  and injury, taking into account all  relevant facts, including the volume  of dumped imports, their effect on  price in the domestic market for like  articles and the consequent effect of  such imports on domestic producers of  such articles and in accordance with  the principles set out in Annexure II  to these rules.  (3) The designated authority may, in  exceptional cases, give a finding as  to the existence of injury even where  a substantial portion of the domestic  industry is not injured, if -  (i) there is a concentration of dumped  imports into an isolated market, and  (ii) the dumped articles are causing  injury to the producers of all or  almost all of the production within  such market."  

       After the initiation of investigation, followed  by the preliminary findings, if any, Rules  contemplate giving of the final findings by the  designated authority under Rule 17 of the Rules.   Such a final finding is to be given within a period  of one year from the date of the investigation.   The parameters are given in Rule 17.  Rule 18 of  the Rules provides that the Central Government may,  within three months of the date of publication of  the final findings by the designated authority   under Rule 17, impose anti-dumping duty. The amount  of the duty has to be an amount adequate to remove  injury to the domestic industry.  Apart from this,

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other guidelines have also been provided for in  Rule 18, which have to be considered while deciding  the levy of the quantum of duty.  Rule 23 provides  for the review of levy and exemption of duty from  time to time.  The same reads:

"23. Review. - (1) The designated  authority shall, from time to time,  review the need for the continued  imposition of the anti-dumping duty  and shall, if it is satisfied on the  basis of information received by it  that there is no justification for the  continued imposition of such duty  recommend to the Central Government  for its withdrawal.  (2) Any review initiated under sub- rule (1) shall be concluded within a  period not exceeding twelve months  from the date of initiation of such  review.  (3) The provisions of rules 6, 7, 8,  9/10, 11, 16, 17, 18, 19, and 20 shall  be mutatis mutandis applicable in the  case of review."

Civil Appeal No. 773 of 2001.         This  appeal is directed against the final  order of the Tribunal upholding the final order  passed by the Designated Authority under Rule 17,  recommending levy of anti-dumping duty consequent  upon which, the Central Government imposed anti- dumping duty under Rule 18.   Appellant is the sole agent of Acrylonitrile  Butadiene Rubber [ for short " NBR" ]  as  manufactured by Korea Kumho Petrochemicals Limited  [ for short "KKPC" ].  The subject goods are oil  resistance rubber and are of various grades like: KOSYN KNB 35 L KOSYN KNB 35 LL KOSYN KNB 35 LM KOSYN KNB 35  LH KOSYN KNB 0230 KOSYN KNB 0230 L KOSYN KNB 0230 H

The subject goods are being imported into India for  near about a  decade.  The appellant’s entire  activities/trading activities and earning is from  the sale of the subject goods as are imported from  time to time in lawful manner subject to the policy  laid by the concerned authorities.  

       The subject anti-dumping duty proceedings  relate to NBR which is the commercially known name  of the said type of goods.  Broadly speaking NBR is  a synthetic rubber mainly used in the manufacture  of other rubber articles such as oil seals, hoses,  automobile product, rice dehusking rolls etc..  NBR  is a generic term.  It has various grades and  physical forms.  Various grades have different  purposes and are put to use as raw material for the  production of various types of finished products.          The rubber industry in India is a vital

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industry and has a bearing on the economic health  of the country.  The industry caters to a number of  critical requirements including those of  agriculture, defence, aviation and automobile  sectors, among others.  It provides employment,  directly or indirectly to  a large number of people  in small, medium and large scale sector units,  which are affected by adverse development in the  industry. Gujarat Apar Polymers Ltd. (GAPL), the name of  which has been changed to M/s Apar Industries  imited,   hereinafter   referred to Respondent No. 3, (amendment was  allowed vide this Court’s Order dated 19.1.2001  passed in I.A.No. 3), are the manufacturers of some  grades of NBR.  Respondent No. 3  by means of  complaint dated 3.11.1995 addressed to the  Additional Secretary being the designated authority  under Section 9 of the Tariff Act in the Ministry  of Commerce, stated that the import of bales of the  said consignment from Germany is causing injury to  its productions.  Proceedings were initiated by the  Public Notice dated 1.3.1995 against export of NBR  from Germany and Korea.  The period of  investigation was 1.10.1994 to 31.3.1995.   Responses were filed by the interested parties.   Normal value was determined on the basis of   weighed average ex-factory selling price in the  domestic market.  By taking into consideration the  cumulative effect of imports from both the  countries, the designated authority  came to the  conclusion that the injury was suffered by the  domestic industry and as such gave a preliminary  finding dated 30.12.1996 imposing anti-dumping  duty.  Thereafter, the designated authority  confirmed its preliminary finding dated 30.12.1996.   Union of India, accepted the final finding and  issued a notification dated 17.7.1997  As per  findings, duty was slightly enhanced in so far as  Germany was concerned and partially reduced  in so  far as the export from Korea was concerned.   

Section 9A provides that where any article is  exported from any country or territory to India at  less than its normal value then upon the  importation of such article into India, the Central  Government may, by notification in the Official  Gazette, impose an anti-dumping duty not exceeding  the margin of dumping in relation to such article.   Export price in relation to an article has been  defined to mean the price of the article exported  from the exporting country  and the normal price  has been defined to mean the comparable price, in  the ordinary course of trade, for the like article  when meant for consumption in the exporting  country.  The designated authority after  considering the entire data of facts came to the  conclusion that the article NBR exported to India  from Korea and Germany was not de minis  as the  difference in price in the local market (India) and  the price at which it was sold in the country of  export was more than 2% and further the total  quantity exported from Korea was more than 3% of  the total imports.  That the injury was caused to  the domestic industry.    In so far as causal link

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was concerned, it was held that because of the NBR  exported to the country a material injury had been  caused to the domestic industry.   In determining  whether the material injury to the domestic  industry was caused by the dumped goods, the  authority took into consideration the following  facts: "a)  The imports of the product from  the subject countries cumulatively  increased significantly in absolute  terms and relative to the production  and consumption of the product in  India.  The share of the subject  countries in the total imports also  increased significantly.  As a direct  consequence, the domestic industry   lost market to a significant level,  which it would have otherwise gained; b)  The substantial imports of NBR  from the subject countries force the  domestic industry to sell its produce  at unremunerative prices, resulting in  financial losses;  c)      The trend of various parameters  indicating injury to the domestic  industry  establish that the reasons  for the same are the imports from the  subject countries.

In final conclusion the authority recorded the  following findings: "--     NBR originating in or exported  from Germany and Korea RP has been  exported to India below its normal  value; --      The domestic industry has suffered  material injury; --      The injury has been caused to the  domestic industry by the exports  originating in or exported from  Germany and Korea RP."

In appeal,  as noted by the Tribunal in para 5,   the counsel for the appellant had confined his  arguments on the point of injury, causal link and  cumulation of imports from Korea and Germany while  assessing injury.  The Tribunal, after considering  the submissions of the respective learned counsels  for the parties, rejected the submissions raised on  behalf of the appellant and  held that the material  injury to the domestic industry had been caused due  to dumping and there was a causal link between  them.  The submission made by the counsel for the  appellant that the injury, if any, caused to the  domestic industry has been caused because of the  extensive and voluminous  of export from Japan, was  rejected by holding that the present complaint  pertains to the exports from Korea and Germany  only.  In so far as Japan is concerned, proceedings  were initiated at the instance of Respondent No. 3  for the export made from Japan and an anti-dumping  duty  has already been imposed on the export made  from Japan to India.    In para 14 of the impugned order, the Tribunal

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has converted the anti-dumping duty  in US dollar  terms on its own volition even though  there was no  prayer by the appellant or a cross appeal/objection  by any other party.    Learned counsel for the appellant did not press  his arguments regarding the injury to the domestic  industry, causal link and cumulation of imports  from Germany and Korea for injury assessment during  the course of arguments before us.  The only  argument pressed before us is regarding the  conversion of anti-dumping duty from US Dollar  terms by the Tribunal on its own volition even  though there was no prayer by the appellant or a  cross appeal/objection by the respondent.   Another  aspect highlighted by the learned counsel for the  appellant is relating to violation of para (iv) of  Annexure II of the Rules while assessing injury.

Shri A. Sharan, learned Addl. Solicitor General  of India, after taking instruction from the Union  of India conceded that the Tribunal erred in  converting the anti-dumping duty in US Dollar terms  in the absence of any appeal or cross appeal by the  respondent.  He conceded that the order passed by  the Tribunal in converting the anti-dumping duty in  US Dollar terms be set aside and order of the  designated authority in imposing the anti-dumping  duty in rupee term be restored.   It is so ordered. Regarding non-consideration of the various  parameters laid down in para (iv) of Annexure II,  it was submitted by him that since this issue had  not been raised before the appellate Tribunal the  appellant cannot be permitted to raise the same for  the first time in this Court as the finding  recorded by the Designated Authority on this score  is essentially a finding of fact based on  appreciation of material placed before it by the  interested parties.  After going through the  records, we find that the point regarding the  violation of para (iv) of Annexure II to the Rules  had not been raised either in the memorandum of  appeal before the Tribunal or during the course of  arguments.  The point regarding the violation of  parameters laid down in para (iv) of Annexure II to  the Rules has also not been taken in the special  leave  petition.  The finding recorded by the  designated authority  being essentially a finding  of fact having not been questioned before the  Tribunal cannot be permitted to be raised for the  first time in this Court during the course of the  argument.  This Court in Shenyang Matsushita S.  Battery Co. Ltd. Vs. Exide Industries Ltd,   2005  (3) SCC 39; and Bhilai Casting (P) Ltd. Vs. CCE,   2005 (10) SCC 492, has held that if a point or  issue had not been raised before the appellate  tribunal then it would not be permitted to be  raised for the first time before this Court.  Since  the point regarding non-observation of parameters  laid down in para (iv) of Annexure II to the Rules  had not been raised before the Tribunal either in  the memorandum of appeal or during the course of  arguments before the Tribunal cannot be permitted  to be raised for the first time before us and we  decline to go into the same.

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For the reasons stated above, this appeal is  accepted only to the limited extent.  The finding  recorded by the tribunal in converting the anti- dumping duty for the period in question from rupee  term to US dollar term without there being any  appeal, counter appeal or objection by the  respondent is set aside.  The duty shall be payable  in rupee term, in terms of the order passed by the  designated authority.  Except to the extent  indicated above the appeal is dismissed without any  order as to costs.

Civil Appeal Nos. ............. of 2006 (Arising out of SLP) Nos. 22905-22906 of 2003) The instant appeals relate to the imposition of  anti-dumping duty on the basis of "Mid Term Review"  carried out under Rule 23 of the Rules. Section 9 A of the Customs Tariff Act, 1975 is  the charging section.  It empowers the Central  Government to impose an anti-dumping duty not  exceeding the margin of dumping on an article  exported to India at less than its normal value.   However, this is subject to the provisions of  Section 9B.  Section 9B(1)(b)(ii) provides, that  the Central Government shall not levy anti-dumping  duty on articles imported from a specified country  (members of the WTO and those with whom India has a  Most Favoured Nation (MFN) agreement) unless in  accordance with the Rules made under Section 9B(2)  a determination has been made that the import of  such article causes material injury to an industry  in India.  In terms of Rule 11 of the Rules framed  under Sections 9A(6) and 9(B)(2), recording of a  finding on material injury is sine qua non for  imposition of the duty.   Sub-rule (2) of Rule 11  provides that the Designated Authority shall  determine the injury to domestic industry, threat  of injury to domestic industry, material  retardation to establishment of domestic industry  and a causal link between dumped imports and  injury, taking into account all relevant facts,  including the volume of dumped imports, their  effect on price in the domestic market for like  articles and the consequent effect of such imports  on domestic producers of such articles and in  accordance with the principles set out in Annexure- II of these Rules, which reads thus: "(iv) The examination of the impact of  the dumped imports on the domestic  industry concerned, shall include an  evaluation of all relevant economic  factors and indices having a bearing  on the state of the industry,  including natural and potential  decline in sales, profits, output,  market share, productivity, return on  investments or utilisation of  capacity; factors affecting domestic  prices; the magnitude of the margin of  dumping; actual and potential negative  effects on cash flow, inventories,  employment, wages, growth, ability to  raise capital investments. "

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Rule 23(1) empowers the Designated Authority to  review the need for continued imposition of anti- dumping duty from time to time and, the Designated  Authority, if satisfied on the basis of the  information received by it that there is no  justification for the continued imposition of such  duty, can recommend to the Central Government for  its withdrawal.  Sub rule (2) of these Rules  provides that the review initiated under sub-rule  (1) shall be concluded within a period of not  exceeding 12 months from the date of initiation of  such review.  Sub-rule(3) provides that the  provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18,  19 and 20 shall be mutatis mutandis applicable in  the case of review.  

Counsel for the appellant contended that it is  mandatory for the Designated Authority to evaluate  all the relevant economic factors, more  particularly, the factors specifically enumerated  in para (iv) of Annexure-II following the word  "including".  According to him, all the listed  parameters have to be evaluated and, in addition,  any other relevant economic factor may also be  considered.  He emphasized that the evaluation of  the 14 parameters mentioned in para (iv) of  Annexure-II is mandatory and the Designated  Authority has to consider and record a finding on  each one of them.  This is the only point raised by  the learned counsel for the appellant in these  appeals.  As against this learned senior counsel  appearing for the respondents contended that the  scope of review inquiry by the Designated Authority  is limited to the satisfaction as to whether there  is justification for "continued imposition of such  duty on the basis of the information received by  it."  The inquiry could be at the behest of the  interested party or suo motu by the Designated  Authority.

Before considering the rival submissions  advanced by the counsel for the parties, it may be  stated that the Designated Authority had considered  the appellant to be a non-cooperative exporter and  determined the normal value of NBR produced by it    on "facts available basis".  This finding of    the  Designated Authority has been confirmed by the  Tribunal in the impugned order.  The Tribunal has  further held that in the facts and circumstances of  the present case, the normal value arrived at by  the Designated Authority was not required to be  disturbed in the absence of reliable alternative  basis provided by the appellant.   

The Tribunal further observed that in respect  of injury analysis, while the appellants may be  right in maintaining that all the parameters  stipulated in para (iv) of Annexure-II to the Anti- Dumping Rules were required to be considered by the  Designated Authority, but Annexure-II does not  stipulate a separate injury analysis for a review  investigation, as the parameters mentioned therein  were not a check list.  It is not necessary to  faithfully mention each of the criteria and an  appropriate notation against each of them, but a

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sound appreciation of the situation based on the  relevant criterion. We have considered the rival submissions put  forth by the counsel for the parties.  The Mid Term  Review in the instant case was initiated suo motu  after the domestic industry had withdrawn its  application and the Review initiated at its  instance was closed.   

For the purpose of ascertaining whether there  was justification for continued imposition of anti- dumping duty, all relevant information was asked  for from the domestic industry as well as the  appellant and other interested parties.  The  domestic industry supplied all the relevant  material for the continued imposition of the anti- dumping duty whereas the appellant did not  cooperate with the Designated Authority during the  time of Mid Term Review but it took the stand that  there was no dumping.  Though before the Designated  Authority the appellant had not raised a ground  that all the 14 parameters given in para (iv) of  Annexure-II relating to principles of determination  of injury were required to be determined or had not  been taken into account and that only some of the  parameters were considered, in appeal before the  Tribunal, the said ground was raised and findings  were returned against the appellant.  Before us it  is submitted that the parameters mentioned in the  Rules read with para (iv) of Annexure-II are  mandatory, and the finding as to the injury to the  domestic industry by the Designated Authority is  perverse.   

After going through the entire record with the  assistance of the learned counsel for the parties,  we are of the opinion that the contention raised by  the appellant is clearly contrary to the facts on  record.  The Designated Authority in its findings  in the Mid Term Review proceedings has  categorically stated that all the factors have been  taken into consideration while determining  continuance of the anti-dumping duty.  That apart,  at the time of arguments, we had the advantage of  going through the original records/documents  (original/confidential file was produced in the  Court) which had been placed before the Designated  Authority, which shows that along with the  information provided in the pro-forma, necessary  information with respect to all the 14 parameters  had been provided by the domestic industry and  considered by the designated authority, after due  corrections.  In view of the foregoing  consideration, the argument of the appellant that  all relevant factors have not been considered has  no factual foundation.   

Otherwise also, we are of the opinion that  scope of the review inquiry by the Designated  Authority is limited to the satisfaction as to  whether there is justification for continued  imposition of such duty on the information received  by it.  By its very nature, the review inquiry  would be limited to see as to whether the  conditions which existed at the time of imposition

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of anti-dumping duty  have altered to such an  extent that there is no longer justification for  continued imposition of the duty.  The inquiry is  limited to the change in the various parameters  like the normal value, export price, dumping  margin, fixation of non-injury price and injury to  domestic industry.  The said inquiry has to be  limited to the information received with respect to  change in the various parameters.  The entire  purpose of the review inquiry is not to see whether  there is a need for imposition of anti-dumping duty  but to see whether in the absence of such  continuance, dumping  would increase and the  domestic industry suffer.

It is of vital importance to note that in the  initial imposition of duty, the appellant has  accepted the position that determination of injury  by the Designated Authority was proper and in  conformity with the requirements of Annexure-II of  the Anti-Dumping Rules.  The appellant did not  challenge the final finding of the Designated  Authority before the Tribunal that parameters  mentioned in para (iv) of Annexure-II had not been  considered or satisfied.  We have declined the  permission to the appellant to raise this point  before us in Civil Appeal Nos. 773 and 774 of 2001  which were directed against the final findings  recorded by the Designated Authority based on which  the Government of India had imposed the anti- dumping duty  for a period of five years.  Under  Section 9A(1), the said initial imposition of anti- dumping duty  is ordinarily contemplated to be  continued and remain in effect for a full period of  five years, at the end of which it would be subject  to sunset review, the possible consequence of which  would be the extension of the operation of the  period of anti-dumping duty for another period of  five years.  This is subject to the provisions of  sub-rule (1) of Rule 23 of the Anti-Dumping Rules,  under which the Designated Authority is empowered  to review the anti-dumping duty imposed from time  to time.  Having regard to the scheme of the above  mentioned provisions of the statute, once anti- dumping duty  has been initially imposed, it would  be ordinarily continued for five years unless on a  review it is found by the Designated Authority that  there has been such a significant change in the  facts and circumstances, that it is considered  necessary either to withdraw or modify  appropriately the anti-dumping duty  which has been  imposed.  It is, therefore, clear that unless the  Designated Authority suo motu  or the applicant for  review is in a position to establish clearly that  there has been a significant change in th\e facts  and circumstances relating to each of the basic  requirements or conditions precedent for imposing  duty, the finding given by the Designated Authority  at the time of initial imposition of anti-dumping  duty  must be considered to continue to hold the  field.  

The final findings recorded by the Designated  Authority at the time of initial imposition of  anti-dumping duty on the existence of injury to the

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domestic industry must be considered to continue to  remain valid, unless it is proved to be otherwise,  either by the Designated Authority in suo motu   review or by the applicant seeking review.  In the  present case, the review had been initiated by the  Designated Authority.  Neither the Designated  Authority nor the appellant had placed any material  on record which could possibly displace the  findings given by the Designated Authority at the  stage of initial anti-dumping duty.  In the absence  of any new material, the Designated Authority is  not  required to apply afresh all parameters or  criteria enumerated in para (iv) of Annexure-II,  which had already been done at the initial stage of  imposition of anti-dumping duty.  There is no  material on record to show that there was a change  in the parameters or the criteria relating to the  injury which would warrant withdrawal of anti- dumping duty.  Nevertheless, the Designated  Authority has still analysed the issue of injury in  detail in the Mid Term Review findings and has  considered all the criteria or parameters  enumerated in Annexure-II.  There is, therefore, no  merit or substance in the appellant’s contention  regarding non-compliance with Annexure-II.

The Designated Authority in the Mid Term Review  has reduced the anti-dumping duty from US dollar  264 per MT to US dollar 248 per MT.  This again  shows that all the relevant material facts had been  taken into consideration by the Designated  Authority while analyzing the injury caused to the  domestic industry.   

It would be pertinent to point out, that in the  facts and circumstances of the present case, the  Designated Authority had imposed duty in dollar  terms and in the appeal before the Tribunal or this  Court, the appellant has not challenged this part  of the order of the Designated Authority.  Hence,  the same is confirmed.

For the reasons stated herein above, we do not  find any merit in these appeals.  Accordingly, they  are dismissed with costs in favour of the Union of  India.

Civil Appeal Nos. 7159-7161 and 7162 of 2004

These appeals relate to continuation of anti- dumping duty after the expiry of five years for a  further period of five years.   The anti-dumping duty once imposed is valid for  five years unless revoked earlier.  Section 9A(5)  empowers the Central Government to extend the  period of such imposition for a further period of  five years, if in a review, it is determined that  the cessation of such duty is likely to lead to  continuation or recurrence of dumping and injury.   Accordingly, a sunset review was conducted.  Period  of investigation was from 1st April, 2000 to 31st  March, 2001.

The Designated Authority, after analyzing the  material placed before it, came to the conclusion

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that the cessation of the duty is likely to lead to  continuation or recurrence of dumping and injury  and therefore it was necessary to continue with  imposition of anti-dumping duty for another five  years.

Aggrieved against the aforesaid order  continuing the imposition of such duty, the  appellant filed appeals before the Tribunal which  were rejected.  Against the order of the Tribunal  upholding the above findings of the Designated  Authority, the present appeals have been filed by  the appellant.

The only challenge put forth in the instant  appeals is to the non-evaluation of all the  parameters listed in para (iv) of Annexure-II.   This contention had not been urged either before  the Designated Authority or the Tribunal and,  therefore, cannot be permitted to be urged for the  first time in these appeals.  Further, the records  produced before us unambiguously shows that all the  relevant parameters had been considered.   

In this view of the matter, we do not find any  merit in these appeals and dismiss the same with  costs in favour of the first respondent, i.e., the  Union of India.