Gujarat High Court
Epigral Limited(Meghmani Finechem … vs Union Of India on 25 April, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025
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Reserved On : 13/03/2025
Pronounced On : 25/04/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15673 of 2024
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 15673 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
✓
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EPIGRAL LIMITED(MEGHMANI FINECHEM LIMITED)) & ANR.
Versus
UNION OF INDIA & ORS.
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Appearance:
Learned Senior Advocate Mr. Mihir Joshi with
learned advocate Mr. Dhaval Shah for the
petitioners.
Learned ASG Mr. N. Venkatraman with learned
advocate Mr. Ankit Shah for respondent nos. 1
to 3 and 7.
Learned Senior Advocate Mr Kamal Trivedi with
learned advocate Mr. Rajesh Sharma with
learned advocate Ms. Gargi Vyas with learned
advocate Mr. Vinay Bairagra with learned
advocate Mr. Utshav Shukla for respondent
no.4.
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Learned Senior Advocate Mr. Balbir Singh with
learned advocate Ms. Gargi Vyas for respondent
no.5
Learned Senior Advocate Mr. Pragyan Pradip
Sharma with learned advocate Mr. Rajesh Sharma
with learned advocate Ms. Gargi Vyas for
respondent no.6.
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned Senior Advocate Mr.
Mihir Joshi with learned advocate Mr.
Dhaval Shah for the petitioners,
learned ASG Mr. N. Venkatraman with
learned advocate Mr. Ankit Shah for
respondent nos. 1 to 3 and 7, learned
Senior Advocate Mr. Kamal Trivedi with
learned advocate Mr. Rajesh Sharma
with learned advocate Ms. Gargi Vyas
with learned advocate Mr. Vinay
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Bairagra with learned advocate Mr.
Utshav Shukla for respondent no.4,
learned Senior Advocate Mr. Balbir
Singh with learned advocate Ms. Gargi
Vyas for respondent no.5 and learned
Senior Advocate Mr. Pragyan Pradip
Sharma with learned advocate Mr.
Rajesh Sharma with learned advocate
Ms. Gargi Vyas for respondent no.6.
2. This petition was filed initially
with a prayer to prohibit the
respondent authorities from issuing
notification levying provisional duty
under Rule 13 of the Custom Tariff
(Identification, Assessment and
Collection of Anti-Dumping Duty)
Rules, 1995 (here-in-after referred to
as “the Anti-Dumping Rules”) and to
quash and set aside preliminary
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findings dated 30.10.2024 issued
under Rule 12 of the Anti-Dumping
Rules. Thereafter through draft
amendment it was prayed to quash and
set aside Addendum Notification dated
16.12.2024.
Facts:
3. The petitioner no.1 company is
engaged in the manufacture of
Chlorinated Polyvinyl Chloride Resin
(For short “CPVC”) which according to
the petitioners is a critical material
used in production of pipes and
fittings, particularly, for safe and
non-hazardous conduction of potable
water. It is the case of the
petitioners that to manufacture CPVC,
petitioner no.1 relies heavily on
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specialised grades of PVC Suspension
Resins imported from China PR,
Indonesia, Japan, Korea PR, Taiwan,
Thailand and USA. The grade of PVC is
dependent upon its polymerization
ability which is measured by its ‘K’
value. Petitioner no.1 specifically
imports PVC Suspension Resins having
‘K’ value of 57 and 65 which are
specialised grades essential for the
safe and non-hazardous manufacture of
CPVC pipes and fittings for potable
water supply.
4. Petitioner no.1 commissioned its
CPVC Resin plant at Dahej in Gujarat
in June 2022 with a production
capacity of 30,000 tons per annum
(TPA) which was enhanced by an
additional 45,000 TPA in April 2024
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which has made petitioner no.1 company
as the largest producer of CPVC at a
single location globally.
5. According to the petitioners, CPVC
market in India has reached over
225,000 TPA in FY 2023-2024 and is
expected to grow at CAGR more than 10%
over the next decade whereas the
present CPVC resin capacity is 97,000
TPA. According to the petitioners,
Indian manufactures were primarily
dependent on imports of CPVC Resin but
today with the CPVC domestic
production of petitioner no.1 company,
Indian CPVC import dependence has come
down by 40%. Petitioner no.1 is
further expanding and doubling its
manufacturing capacity from 75,000
tons to 150,000 tons TPA.
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6. Respondent no.3 Designated
Authority in accordance with
provisions of the Customs Tariff Act,
1975 (For short “the Act”) as amended
from time to time and the Anti-Dumping
Rules for initiating anti-dumping
investigation concerning imports of
Polyvinyl Chloride Suspension Resins
(which is referred to as “product
under consideration” or the “subject
goods”) originating in or exported
from China PR, Indonesia, Japan, Korea
RP, Taiwan, Thailand and United States
of America (for short “subject
countries”) on the basis of prima
facie case submitted by Domestic
Industry i.e. respondent nos. 4 to 6.
7. Designated Authority issued a
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public notice vide Notification
No.6/33/2023-DGTR dated 26.03.2024
published in the Gazette of India
Extraordinary, initiating the subject
investigation in accordance with
section 9A of the Act read with Rule 5
of the Anti-Dumping Rules to determine
existence, degree and effect of the
alleged dumping of the product under
consideration originating or exported
from the subject countries and to
recommend the amount of anti-dumping
duty, which if levied, would be
adequate to remove the alleged injury
to the domestic industry.
8. Thereafter vide communication
dated 25.04.2024, a virtual meeting
was notified to be held on 30.04.2024
to consider and finalise the product
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in consideration and methodology. The
petitioners made submissions dated
06.05.2024 in response to the meeting
held on 30.04.2024 for exclusion of
the specialty grades of PVC resins
used by the petitioner no.1 for
manufacturing of CPVC since specialty
grades mentioned in Notification
dated 26.03.2024 were never produced
by the domestic industry nor they were
technically and commercially
substitutable and interchangeable
product in the domestic industry
whereas specialty grade PVC suspension
resins were utilised by the petitioner
no.1 for end use manufacture of PVC
and not for trading purpose. It was
also pointed out that during the
period of investigation SPVC were not
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manufactured in India at all.
9. Thereafter Director (FT) issued
notification/communication dated
13.05.2024 operating under respondent
no.2 Directorate General of Trade
Remedies stipulating the final PUC/PNC
methodology of anti-dumping
investigation concerning the imports
of PVC Suspension Resins (for short
“SPVC”) originating from the subjected
country as under :
“2. In the light of the
submissions made by the interested
parties, the final scope of the
product under consideration will
be as follows:
“Homopolymer of Vinyl Chloride
Monomer (suspension grade) also
known as PVC Suspension Resin
manufactured through suspension
polymerisation process with K-
value above 55 and upto 77. The
following are excluded from the
scope of the product underPage 10 of 140
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consideration.
i. Ultra-low K-value PVC
Suspension Resins (K-value upto
55)
ii. Ultra-high K-value PVC
Suspension Resins (K-value above
77)
iii Cross-linked Poly Vinyl
Chloride
iv. Chlorinated Poly Vinyl
Chloride
v. Vinyl Chloride Vinyl Acetate
Copolymer (VC-Vac)
vi. Poly Vinyl Chloride Paste
Resin
vii. Mass Polymerisation PVC
viii. Poly Vinyl Chloride Blending
Resin
3. Further, there is no
requirement of PCN wise analysis
in the present investigation.
Accordingly, the Authority had
decided to proceed with the
investigation without PCNs.
4. It is also informed to all
interested parties that this is
the final PCN/PUC notification.
Further, no modification/comments/
arguments would be entertained by
the Authority regarding PCNs.”
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10. The petitioners, therefore, made a
representation dated 12.07.2024
pointing out that specialty grades
SPVC imported by the petitioner no.1
were not manufactured in India and
therefore, further investigation was
necessary. As no response was received
to the said communication, another
representation was made by the
petitioners before respondent no.2 on
06.09.2024 raising objections to the
proposed action of respondent
authority followed by another
representation dated 16.09.2024.
11. The petitioners thereafter
addressed a communication dated
15.10.2024 to the respondent no.3
requesting for a further detailed
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inquiry into classification of Product
Under Consideration (for short “PUC”).
12. The petitioners thereafter
preferred Special Civil Application
No.15221 of 2024 challenging the
notification/ communication dated
13.05.2024 raising the grievance that
respondent no.3 without dealing with
reply dated 06.05.2024 unilaterally
declared final scope of the PUC and
the products imported by the
petitioners could not have been
included in PUC which is basic raw
material used to manufacture CPVC by
the petitioners.
13. Special Civil Application
No.15221 of 2024 was disposed off by
order dated 22.10.2024 by observing as
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under:
“13. Having heard learned
advocates for the respective
parties and considering the
submissions canvassed before us,
it is not in dispute between the
parties that respondent No.3 is in
process of the investigation as
contemplated under Rules 4, 5 and
6 of the Rules 1995 and the
contentions raised by the
petitioner is at premature stage
which would jeopardize the entire
process initiated by the
respondent No.3.
14. We are therefore of the
opinion that we would not like to
interfere at this stage on merits
of the matter. The petition
therefore being premature is
accordingly dismissed at this
stage. No order as to costs.”
14. The petitioners thereafter filed
additional submission by letter dated
24.10.2024 requested respondent no.3
to exclude the specialty grades SPVC
imported for CPVC manufacture by the
petitioners from the scope of
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investigation.
15. Thereafter, respondent no.3
Designated Authority issued the
impugned notification dated 30.10.2024
containing preliminary findings
recommending the imposition of
provisional anti-dumping duty equal to
the lesser of margin of dumping and
the margin of injury so as to remove
the injury to the domestic industry on
the import of the subject goods
originating in or exported from the
subject countries on the date of
notification to be issued in this
regard by the Central Government equal
to the amount indicated in Column no.7
of the duty table appended to the
notification.
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16. In the impugned Notification of
Preliminary Findings dated 30.10.2024,
in Para Nos.14 and 15, the Designated
Authority referred to the objections
raised by the petitioners to exclude
the few grades of SPVC which are
specialty grades, but did not consider
the same on the ground that the
petitioners had claimed
confidentiality with regard to the
additional submission of exclusion of
specialised graded SPVC imported for
manufacture of CPVC which reads as
under :
“14. The Authority notes that
Epigral Limited has requested
exclusion of few grades of PVC
Suspension Resins terming the
same as “specialty grades”.
Epigral has claim confidentiality
with regard to its additional
submissions on exclusion of
specialised grades imported for
manufacture of C-PVC. Such
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confidentiality claimed is
excessive and thus, does not
allow other interested parties
including the domestic industry
to rebut the claims made by
Epigral. The Authority is
advising to Epigral to share a
proper non-confidential version
of the submissions which allow
reasonable understanding of the
same. The Authority intends to
examine the issue of exclusions
requested by Epigral post
circulation of such submissions
and receiving comments from the
domestic industry, thereafter.
15. The interested parties may
provide further information and
evidence with regard to the
possible need for exclusion of
any grade. The authority would
consider all the submissions made
by Epigral, domestic Industry and
interested parties for the
purpose of final determination,
after providing opportunity of
submissions by the interested
parties and an opportunity of
being heard orally.”
17. On 20.11.2024 when this matter
was taken up for hearing, learned
advocate Mr. Ankit Shah appeared on
advance copy on behalf of respondent
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nos. 1 to 3 whereas learned Counsel
for respondent nos. 4 to 6 appeared on
caveat. During the course of the said
hearing, learned advocate for the
petitioners submitted that the
petitioners have already made an
application before respondent
authorities that confidentiality for
details submitted by the petitioners
is not claimed. Learned advocate for
the respondents prayed for time to
file reply and therefore, notice was
issued on 20.11.2024 making it
returnable on 27.11.2024. On
27.11.2024 learned advocates for the
parties prayed for time and matter was
adjourned to 29.11.2024. On
29.11.2024, learned advocate Mr. Ankit
Shah for the respondent nos. 1 to 3
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referred to the communication dated
28.11.2024 from respondent no.2
addressed to him and submitted that
the petitioners have already made a
communication to the respondent
authorities to the effect that
confidentiality qua the details
submitted by the petitioners is not
claimed.
18. In view of such submission,
following order was passed on
29.11.2024 in the interest of justice
as well as in facts of the case to
resolve the issue raised in the
petition for not considering the
objections raised before respondent
no.3 for exclusion of specialty grades
SPVC from the scope of investigation
of the PUC:
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“1. Heard Mr.Mihir Joshi, learned
Senior Advocate with Mr. Dhaval
K.Shah, learned Advocate for the
petitioners & Mr.Vikram Naik,
learned advocate for the
petitioners; Mr. Kamal Trivedi,
learned Sr.Advocate with Mr.Rajesh
Sharma, learned advocate & Ms.
Gargi Vyas, learned advocate for
the respondent Nos.4 and 5 and
Mr.Pragyan Pradeep Sharma, learned
Advocate with Mr. Rajesh Sharma,
learned advocate & Ms. Gargi Vyas,
learned advocate for the
respondent No.6.
2. Learned advocate Mr.Ankit Shah
for the respondent Nos. 1 to 3
referred to the communication
dated 28 November, 2024 from the
threspondent No.2 – Director General
of Trade Remedies, Govt. of India,
New Delhi addressed to him and
submitted that the petitioners
have now informed the respondent
No.2 that on 23rd November, 2024
that the confidentiality qua the
details submitted by the
petitioners is not claimed.
3. In view of the above
submissions, the following order
is passed in the interest of
justice as well as in the facts of
the case to resolve the issue
raised in this petition.
(1) The respondent No.2 shall
share the information which wasPage 20 of 140
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claimed to be confidential up to
23rd November, 2023 with the
members of the domestic industries
i.e. respondent No. 4,5 and 6 on
or before 4th December, 2024.
(2) The respondent Nos. 4,5 and 6
shall file their objections or
reply with regard to the
objections raised by the
petitioners for exclusion of the
item from the product under
consideration (PUC) on or before
6th December, 2024.
(3) The petitioners shall file
rejoinder if any to such reply on
or before 10th December, 2024.
(4) The respondent No.2 shall
finally decide the issue of
exclusion of Special grade SPVC as
claimed by the petitioners to be
excluded or not from the product
under consideration (PUC) on or
before 16th December, 2024 by
providing opportunity of hearing
to the petitioners as well as
respondent Nos.4, 5 and 6 and
other stakeholders if any and
place the order which may be
passed on the record of this
petition on or before the next
date of hearing.
Learned advocate Mr. Ankit Shah
for the respondent is directed to
communicate to the respondent Nos.
1,2 3 and 7 not to take any
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further action to implement
impugned order till the next date
of hearing.
Needless to say that the
petitioners and respondents shall
cooperate and comply with the
aforesaid directions.
Stand over to 18th December,
2024.”
19. On 18.12.2024 learned advocate Mr.
Ankit Shah for the respondent no.2
submitted that in compliance of order
dated 29.11.2024, respondent no.3 has
passed an Addendum Notification dated
16.12.2024 – further order and placed
the same on record by additional
affidavit filed on behalf of the
respondent nos. 2 and 3.
20. The petitioners thereafter filed
Civil Application (For Amendment) No.2
of 2024 for amendment of the petition
so as to place the subsequent
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developments of passing of Addendum
Notification dated 16.12.2024 in
compliance of order dated 29.11.2024
passed by this Court and challenge the
same.
21. By order dated 23.12.2024, with
the consent of the learned advocates
for the respective parties,
application for amendment was granted.
Accordingly, the petitioners carried
out amendment by amending the petition
with prayer to quash Addendum
Notification dated 16.12.2024
issued by respondent no.3 considering
the submissions of the petitioners and
respondents in detail rejecting the
request of the petitioners to exclude
the specialty grades SPVC imported by
the petitioners to manufacture CPVC.
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22. Thereafter pleadings were
completed and respondents filed
affidavits in reply and petitioners
also field rejoinder affidavit and the
matter was heard on merits from time
to time and on 13.03.2025 both the
sides completed their submissions.
23. When the matter was reserved for
judgment, the petitioners moved Civil
Application (For Stay) No.1 of 2025
for restraining the respondents from
passing the final findings as per the
Anti-Dumping Rules as the period of
one year was to be over on 31.03.2025.
24. This Court passed the following
order on 25.03.2025:
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“1. Heard learned Senior Advocate
Mr.Mihir Joshi with learned
advocate Mr.Dhaval Shah for the
applicants, learned advocate
Mr.Ankit Shah for the respondent
Nos.2 and 3 and learned Senior
Advocate Mr.Pragyan Pradeep Sharma
with learned advocate Ms.Gargi
Vyas and learned advocate
Mr.Rajesh Sharma for the
respondent No.6.
2. By this application, the
applicants have prayed for the
following reliefs:
“A. Your Lordships, be pleased to
restrain the Respondents from
taking any steps pursuant to the
Disclosure Statement till disposed
of the subject petition.
B. Ex parte ad interim interim
relief in terms of prayer A above
be granted;
C. This Hon’ble Court be pleased
to grant such other and further
relief in the interest of
justice.”
3.1. Learned Senior Advocate
Mr.Mihir Joshi for the applicants
submitted that the Special Civil
Application No.15673 of 2024 is
already heard and kept for
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judgment. It was submitted that as
per the provisions of 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’), the
respondent-Authority is required
to pass an order within a period
of twelve months which is expiring
today and if any final order is
passed by the respondent-
Authority, the entire Special
Civil Application and the decision
which may be rendered by this
Court shall become infructuous and
would lead to multiplicity of the
proceedings.
3.2. It was therefore prayed that
the respondents may be restrained
from passing the final findings
order till the judgment is
pronounced by this Court in the
Special Civil Application No.15673
of 2024.
4.1. On the other hand, learned
advocate Mr.Ankit Shah appearing
for the respondent Nos.2 and 3
submitted that the respondents
have not been restrained from
proceeding further with the
hearing and accordingly, the
respondents are bound to pass an
order today i.e. on expiry of
twelve months as the case was
initiated on 26th March, 2024.
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4.2. It was therefore submitted
that unless and until appropriate
order is passed by this Court, the
respondents will have no option
but to pass the final findings
order during the course of the
day.
5. Learned Senior Advocate
Mr.Pragyan Pradeep Sharma for the
respondent No.6 submitted that
great prejudice will be caused to
the respondent No.6 if the
respondents are restrained from
passing the final order as the
Central Government has also not
levied any provisional anti-
dumping duty during the pendency
of the petition before this Court.
6. Considering the above
submissions, we are of the opinion
that if any final findings order
is passed by the respondent-
Authorities, then the entire
petition would be rendered
infructuous as the hearing of the
petition was already over on 13th
March, 2025.
7. It also appears from the record
that the respondent-Central
Government has not implemented the
provisional order passed by the
Adjudicating Authority in view of
the pendency of this petition.
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8. We are conscious that the
respondent No.6 is facing the
prejudice but the respondent
Authority has also not exercised
their discretion in extending the
period in view of the provisio to
Rule 17(1) of the Rules which
reads as under :
“Provided that the Central
Government may, [in its discretion
in special circumstances] extend
further the aforesaid period of
one year by six months.”
9. We are therefore left with no
option but to restrain the
respondents from passing the final
order on the subject matter for
four weeks from today.
10. Stand over to 30th April,
2025.
Direct Service through Email is
permitted.”
Submissions of the Petitioners:
25. Learned Senior Advocate Mr. Mihir
Joshi for the petitioners submitted
that the SPVC imported by the
petitioners to manufacture CPVC being
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specialty grade could not have been
considered to be PUC as had been done
vide order dated 13.05.2024 in absence
of any findings that it is identical
or alike to the product being
manufactured by the domestic industry
in India.
26. Learned Senior Advocate Mr. Joshi
referred to Article VI of the General
Agreement on Tariffs and Trade,1994
(GATT,1994) which provides for anti-
dumping and countervailing duties,
more particularly, clauses (1) and (2)
of Article VI which provides that in
order to offset or prevent dumping,
when the contracting party recognises
that dumping by which products of one
country are introduced into the
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commerce of another country at less
than the normal value of the products,
which causes or threatens material
injury to an established industry in
the territory of a contracting party
or materially retards the
establishment of a domestic industry,
a contracting party may levy on any
dumped product an anti-dumping duty
not greater in amount than the margin
of dumping in respect of such product.
27. It was submitted that for the purpose
of Article VI of GATT, a product is to
be considered as being introduced into
commerce of an importing country at
less than its normal value, if the
price of the product exported from one
country to another is either less than
the comparable price, in the ordinary
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course of trade, for the like product
or in absence of such domestic price,
is less than either the highest
comparable price for the like product
for export or the cost of production
of the product in the country of
origin plus a reasonable addition for
selling cost and profit.
28. Thereafter, learned Senior Advocate
Mr. Joshi referred to the agreement on
implementation of Article VI of GATT,
more particularly, Articles 2.1, 2.2
and 2.6 which refers to like product
which means a product which is
identical i.e. alike in all respects
to the product under consideration, or
in absence of such a product, another
product which although not alike in
all respects, has characteristics
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closely resembling those of the
product under consideration.
29. It was therefore, submitted that in
order to consider the like product,
the respondent authority has to come
to the conclusion that PUC is “like
product”.
30. Reference was made to Articles 3.1 and
3.2 which provides for determination
of injury for the purpose of Article
VI of GATT to be based on positive
evidence and involve an objective
examination of both the volume of the
dumped imports and the effect of the
dumped imports on prices in the
domestic market for “like products”
and consequent impact of such imports
on domestic producers of such
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products. It was pointed out that
respondent authority is therefore,
required to consider positive evidence
by conducting objective examination of
the volume and price of like products
on the domestic industry. It was
therefore, pointed out that SPVC
imported by the petitioners
cannot be considered a “like product”
and therefore, is required to be
excluded from PUC for determination of
the injury for levy of anti-dumping
duty.
31. It was further submitted that Article
4 of Agreement on implementation of
Article VI of GATT refers to
definition of “domestic industry”
which is similar to definition as per
Rule 2(b) of the Anti-Dumping Rules.
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It was submitted that domestic
industry means domestic producers as a
whole of the like products or to those
of them whose collective output of
products constitutes a major
proportion of the total domestic
production of those products except
when such producers are related to the
exporters or importers or are
themselves importers of the alleged
dumped product or are themselves
importers thereof. Proviso to Rule
2(b) is akin to clause (ii) of Article
4.1 which refers to exceptional
circumstances.
32. Reference was also made to Article 5
which provides for initiation and
subsequent investigation and more
particularly, Article no. 5.4 which
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stipulates that the authorities shall
not initiate investigation, unless it
is determined on the basis of
examination of degree of support for,
or opposition to, the application of
the domestic producers of the like
product and the application as per
Article 5.8 must contain sufficient
evidence, failing which, such
application is bound to be rejected by
the Designated Authority.
33. It was submitted that GATT 1994 has
been the basis of the Anti-Dumping
Rules to give effect to sections 9A,
9AA and 9C of the Act which have been
introduced pursuant to GATT and
therefore, Rules 2(b) defining
“domestic industry”, Rule 2(d)
defining “like articles”, Rule 4
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pertaining to duties of the Designated
Authority and Rule 5 which provides
for initiation of investigation of
Anti-Dumping Rules are compared with
the relevant Article VI of GATT to
submit that it is essential for the
Designated Authority to satisfy on the
basis of the examination of the degree
of support for, or opposition to, the
application expressed by the domestic
producers of the like product and not
the examination of the importers.
34. It was therefore, submitted that
determination of PUC is the very
foundation for second stage of
investigation for determination of the
injury on account of the dumping
suffered by the domestic industry and
without identifying the product under
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consideration, determination of injury
to the domestic industry would be a
futile exercise.
35. It was therefore, submitted that
foundation for initiation of
investigation regarding existence,
degree and effect of any alleged
dumping is to determine the product
under consideration being the like
article liable for anti-dumping duty.
36. Learned Senior Advocate Mr. Joshi
invited the attention of the Court to
the application filed by respondent
nos. 4 to 6 and submitted that on the
basis of the contents of the
application for initiation of the
investigation as per Rule 5(1) of the
Anti-Dumping Rules, the ingredients of
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Sub-Rule (2) of Rule 5 are not
fulfilled in absence of any
determination by the Designated
Authority of the like product/Articles
as provided in Sub-Rule (3) of Rule 5
of the Anti-Dumping Rules.
37. It was therefore, submitted that
concept of like articles or like
product is crucial to start or
continue investigation to come to the
conclusion that there is injury to the
domestic industry due to import of the
like articles at lesser price than the
normal value for levy of anti-dumping
duty.
38. It was submitted that SPVC imported
by the petitioners which was meant to
manufacture CPVC used for the pipes
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for portable water supply are neither
produced by respondent nos. 4 to 6 nor
the same are technically or
commercially substitutable and
interchangeable with grades
commercially produced in industry.
39. Learned Senior Advocate Mr. Joshi
further submitted that the respondent
no.3 Designated Authority has failed
to examine the submissions of the
petitioners on technical and
commercial substitutability aspects of
the SPVC of specialty grade imported
by the petitioners and brushed aside
the same in para no.12 of the Addendum
Notification that no evidence was
provided by the petitioners that SPVC
of specialty grade imported by the
petitioners is technically distinct
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from the grade applied by DCW Ltd.. It
was submitted that the Designated
Authority relied upon the data
provided by the domestic industry
including the lab reports to come to
the conclusion that the grade supplied
by DCW Limited is comparable in terms
of density and porosity, the two
parameters highlighted by the
petitioners with the product imported
by the petitioners. It was therefore,
submitted that the Designated
Authority instead of examining
independently the submission of the
petitioners that the products which
are imported by the petitioners are
not the like articles has considered
as the products which are produced by
the domestic industry.
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40. It was further pointed out that in
para nos. 13 to 16 of the Addendum
Notification, the Designated Authority
has adopted an approach of comparing
the products imported by the
petitioners to be used for any other
purpose instead of examining as to
whether other product is commercially
and technically substitutable or not.
41. It was submitted that the production
details of SPVC submitted by DCW
Limited during the period of
investigation i.e. upto 30.09.2023,
clearly shows that DCW Limited or any
other domestic industry did not
produce the specialty grade SPVC
imported by the petitioners on
commercial basis.
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42. It was therefore, submitted that the
Designated Authority has given a
contradictory finding in para nos.17
and 18 of the impugned Addendum
Notification dated 16.12.2024 by
shifting the burden upon the
petitioners stating that the
petitioners did not approach the
domestic industry or bought the
subject goods from domestic industry
and thereafter communicated to the
domestic industry regarding
deficiency, if any, in the subject
goods for manufacturing of CPVC.
43. It was submitted that the submissions
of the petitioners have been brushed
aside by concluding that different
groups of PVC Suspension resins have
been used for making CPVC resins and
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there is no exclusive group of PVC
suspension resins that is commonly
used for the purpose of making CPVC
Resin. It was therefore, submitted
that the Designated Authority has
failed to consider that the respondent
nos. 4 to 6 have given an incorrect
information that they have not
imported the subject goods in India
during the period of investigation
vis-a-vis different ‘K’ value of the
product S-65C and other specialty
grades imported by the petitioners.
44. Reliance was also placed on the report
from the Bureau of Indian Standards
(BIS) dated 21.06.2024 (page
no.376/143 of the paper book) and
submitted that BIS has categorically
stated that CPVC Resin, Grade 1 and
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Grade 2 are not suitable for products
used in contact with foodstuffs,
pharmaceutical and drinking water. It
was therefore, submitted that the
findings arrived at by Designated
Authority that there are no specialty
grades of SPVC to manufacture CPVC for
pipes for drinking water is also not
correct.
45. Reference was made to PVC
specification issued by BIS (page 413
of the paper book) which stipulates
that PVC resins comes in different
grades and are classified based on
viscosity behavior, particle size
distribution, apparent bulk density
etc. and each of these grades are used
for diverse applications. These resins
typically have a nominal specific
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gravity of 1.4 and theoretical
chlorine content of 56.8 percent.
46. Reference was also made to Special
Requirements of Polymer used for
molding or extrusion articles in
contact with Foodstuffs,
Pharmaceutical and drinking water
(page no.416 of the paper book) which
stipulates that when products are used
in contact with foodstuffs with
pharmaceutical and drinking water, its
requirements with respect to the
material shall also be made as per IS
10151.
47. It was submitted that the petitioners
in the letter dated 16.09.2024 has
explained in detailed technical
difference between locally available
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SPVC vis-a-vis imported SPVC for CPVC
application and has also drawn
distinction that DCW’s PRO 65 shows a
poor level of oversize and scale
resulting into low porosity and uneven
particle size distribution leading to
shorter gelation speed which is not
favorable for CPVC Resin
manufacturing.
48. Reliance was also placed on transcript
of investors/analyst call to point out
that DCW produced its CPVC without
using its own PVC which was at ‘R’ and
‘D’ stage at the relevant point of
time in February 2024 i.e. after the
period of investigation. It was
therefore, submitted that respondent
Designated Authority has ignored the
material placed on record by the
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petitioners.
49. It was submitted that lab reports
submitted by DCW Limited are on the
basis of samples drawn by itself and
as such, such lab reports could not
have been relied upon by the
Designated Authority to compare the
bulk density and porosity without
independent examination or
investigation.
50. Learned Senior Advocate Mr. Joshi also
in support of his contention that writ
petition is maintainable against
preliminary findings of Designated
Authority, relied on the decision in
case of Nirma Ltd v. Sai Gobain
Glass India Ltd. reported in 2012(281)
ELT 321 (Mad) and in case of Nirma
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Limited v. Union of India reported in
2017 (346) ELT 328 (Guj.)
Submissions of the Respondents:
a) Submissions of learned Senior
Advocate Mr. Kamal Trivedi for
respondent no.4:
51. Learned Senior Advocate Mr. Kamal
Trivedi referred to the findings of the
Designated Authority in the Addendum
Notification from para nos. 12 to 20
and submitted that the Designated
Authority has after considering the
submissions of the petitioners and the
domestic industry has come to the
conclusion that specialty grade SPVC
imported by the petitioners cannot be
excluded from the product under
consideration as the same are not found
exclusive, clearly identified category
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of PVC Suspension Resin which is unique
for manufacturing of CPVC resin because
what is imported by the petitioners can
be used for other applications and
there are other PVC Resins which have
been used for manufacture of CPVC
resins and the subject goods produced
by the domestic industry are like
articles to the product under
consideration imported from subject
countries.
52. It was submitted that definition of
“like article” as per Rule 2(d) more
particularly, second limb which
provides that in absence of like
articles, another article which
although not alike in all respects has
characteristics closely resembling
those of the articles under
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investigation is deemed to be like
article and therefore, it was submitted
that different grades of subset of SPVC
is nothing but subset of one product
i.e. PVC with ‘K’ value above 55 and
upto 77.
53. Reference was made to para no. 3.15 of
Manual of Operating Practices for Trade
Remedy Investigations(here-in-after
referred to as “the Standard Operating
Practices).
54. Learned advocate also referred to lab
report submitted by the petitioners which
was found to be of no value in view of the
reply given by the laboratory that it does
not have facility for testing of PVC
Resins which is placed on record along
with additional affidavit.
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55. It was therefore submitted that in absence
of any evidence submitted by the
petitioners to justify that it can
manufacture CPVC only by using SPVC
specialty grade imported by it, it cannot
be said that the Designated Authority has
committed any error to come to the
conclusion regarding technical and
commercial substitutability aspects.
56. In support of his submission, reliance was
placed on the decision in case of Andhra
Petro Chemicals v. Union of India reported
in 2018 SCC OnLine Hyd 1914 wherein
Hon’ble Hyderabad High Court after
considering the definition of “like
articles” under Rule 2(b) of the Anti-
Dumping Rules held that without
considering the submissions of the
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parties, the Designated Authority failed
to appreciate evidence/information that
like articles are interchangeable in usage
and are considered to be substitutable
products by rejecting the application of
the petitioners for initiation of
investigation to determine in respect of
import of acyclic alcohol.
57. Learned Senior Advocate Mr. Trivedi also
raised preliminary objection with regard
to the maintainability of the writ
petition against the preliminary findings
on anti-dumping investigation. Reliance
was placed on decision of Delhi High Court
in case of Indian Express Newspapers
(Bombay) Ltd. v. Union of India reported
in 2003(157)ELT 138 (Del) to submit that
petition is premature and petitioners are
at liberty to raise contention before the
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Designated Authority who is still seized
off the investigation to arrive at final
finding and on basis of such findings, if
the Central Government decides in favour
of imposing duty, whether provisional or
otherwise, the petitioners would have
remedy available under the law. It was
submitted that the Hon’ble Delhi High
Court has taken into consideration that
imposition of provisional duty is guided
by the paramount consideration of
protecting the domestic industry to
eliminate dumping and tampering with the
process midway and delay imposition of
anti-dumping duty. It was therefore
submitted that the petition should not be
entertained. It was therefore submitted
that petition deserves to be dismissed
more particularly, when the Designated
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Authority after considering the
submissions made by the petitioners
pursuant to the order passed by this Court
has arrived at a conclusion which is not
final and the reliance placed on the data
available on record by the Designated
Authority considering the lab reports of
accredited laboratories regarding density
and porosity of the material produced by
the domestic industry and comparing the
same with the imported products, clearly
shows that nature of investigation is in
consonance with Rules 4, 6 and 8 of the
Anti-Dumping Rules.
58. Reliance was also placed on the decision
of Delhi High Court in case of Saint
Gobain Glass India Ltd. v. Union of India
reported in 2009 (24) ELT 495 (Del.) to
submit that the Court should be slow in
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entertaining the petition only when there
is complete lack of jurisdiction or
palpable error so grave which requires
imminent interference by this Court.
59. Reliance was placed on the decision in
case of Designated Authority and others v.
Andhra Petrochemicals Limited reported in
(2020) 10 Supreme Court Cases 209 wherein
the Apex Court regarding entertaining writ
petition under Articles 226 of the
Constitution of India as under :
“31. Keeping the imperative of
completion of investigation within
a predetermined timeline, the
guidelines contained in the Manual
of Operation for Trade Remedy
Investigations (Period of
Investigation and Injury
Investigation period) as to the
contemporaneousness of the data
necessary to carry out the
investigation, assume importance.
The relevant provisions of the
Manual are extracted below:
“5.9 The POI proposed in the
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application should be as latest as
possible, and in any case not more
than six months old as on date of
initiation. If the proposed POI is
more than six months old, then
applicant may be asked to furnish
revised application with fresh
data.
5.10 The POI should normally be
twelve months. As far as possible
attempt should be made to identify
POI as per the financial year, as
it will make analysis easier and
more accurate. An attempt should
be made to select POI in such a
way that at least one complete
financial year is included in the
POI to ensure availability of
audited details at least for a
part period of POI. It is always
desirable to add period in terms
of quarters (as the financial
results are prepared quarter wise
only) instead of any odd number of
months as it may be difficult for
other interested parties to submit
their audited figures for such odd
period.”
32. The rationale for these
guidelines is self-evident: any
investigation carried out for past
periods would in all likelihood,
result in minimal levy. For
instance, if in 2020,
investigation is initiated for the
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period 2013-14, with the object of
determining anti-dumping, even if
injurious behavior is found, the
levy can be only of limited
duration. Further, to levy duty
for the period after findings are
rendered, the POI would yield
stale results, and cannot justify
levy for later periods. Keeping
this in mind, the DA, apparently
in the present case, having regard
to Para 5.9 (quoted above)
required Andhra Petro to furnish
relatively contemporary data. Such
an action cannot be termed as
arbitrary. In this Court’s
opinion, the impugned orders were
plainly erroneous in chastising
the DA, and even directing his
replacement, for what appears to
be his adherence to prescribed
procedure.
33. Access to judicial review is a
valuable right conferred upon
citizens and persons aggrieved;
the Constitution arms the High
Courts and this Court with powers
under Articles 226 and 32. At the
same time, barring exceptional
features necessitating
intervention in an ongoing
investigation triggered by a
complaint by the concerned
domestic industry concerned,
judicial review should not be
exercised virtually as a
continuous oversight of the DA’s
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functions. This Court has
cautioned more than once, that
judicial review is to be exercised
in a circumspect manner,
especially where final findings
are rendered by the DA.”
60. It was therefore, submitted that in
absence of any evidence that SPVC imported
by the petitioners is specialty grade to
manufacture CPVC and further in absence of
any evidence that SPVC having different
grades cannot be used to manufacture CPVC
as against sufficient evidence produced by
respondent nos. 4 to 6 that SPVC produced
in India is equivalent to the imported
SPVC grade fulfilling the second limb of
definition of “like article” as per rule
2(d) of the Anti-Dumping Rules, no
interference is required to be made in the
impugned preliminary findings read with
Addendum Notification as it cannot be said
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that decision making process of the
Designated Authority is arbitrary as due
process is complied with.
b) Submissions of learned Senior Advocate
Mr. Balbir Singh for respondent no.5
61. Learned Senior Advocate Mr. Balbir Singh
for respondent no.5 submitted that the
petitioners have the remedy to challenge
the final findings by appeal under section
9C of the Act.
62. Referring to Rule 5(1) of the Anti-Dumping
Rules, it was submitted that Anti-Dumping
Rule 5(1) provides for initiation of
investigation by the Designated Authority
to determine three aspects namely (i)
existence, (ii) degree and (iii) effect of
any alleged dumping and therefore, the
provisions of Rule 5(2) to 5(5) provides
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for the procedure of examination of
application filed by the domestic industry
to determine the dumping, injury and
casual link between such dumped imports
and the alleged injury by the domestic
producers of the like product to justify
the initiation of an investigation. It was
therefore, submitted that till the stage
of Rule 16 regarding disclosure of
information before giving final findings,
the Designated Authority is required to
inform all the interested parties of the
essential facts under consideration which
form the basis of its decision. Therefore,
the present petition is a pre-mature
petition as the Designated Authority has
already taken to initiate investigation
considering the product under
consideration of PVC Resins of K Value
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greater than 55 and less than 77 which
includes SPVC of alleged specialty grade
imported by the petitioners also. It was
therefore, submitted that the petition may
not be entertained at this stage as the
petitioners would be entitled to make the
submissions before the Designated
Authority after the stage of Rule 16 of
the Anti-Dumping Rules of disclosure of
information.
63. Learned Senior Advocate Mr. Balbir Singh
also referred to the history of levy of
anti-dumping duty on imports of PVC
Suspension Resins since 2005 to
demonstrate that all the grades of SPVC
were covered under the PUC since then. It
was submitted that the final findings of
the Designated Authority dated 26.12.2007
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excluded specialty PVC Suspension Resins
such as cross-linked PVC, CPVC etc. but
all grades were covered under PUC.
Similarly, in the year 2014, 2019 and
2023, PUC included all grades. It was also
pointed out that the petitioners are
consuming about 14 Grades of SPVC and 6
Grades of Mass PVC, out of which
petitioners have only claimed S-65C and
SG66J specialty grades of which only 15
metric tons of S-65C and 18 metric tons of
SG66J were imported by the petitioners
during the period of investigation. It was
therefore, submitted that the claim of the
petitioners that it has imported specialty
grade SPVC to manufacture SPVC for
drinking water is not supported by any
evidence.
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64. In support of his submissions, reliance
was also placed on the following
decisions:
1) Dinesh Goyal alias Pappu v. Suman
Agarwal reported in (2024) SCC OnLine Sc
2615.
2) Life Insurance Corporation of India v.
Sanjeev Builders Private Limited
reported in (2022) 16 SCC 1.
3) Alkali Manufacturer Association of
India v. Designated Authority and ors
reported in (2016) 11 SCC 165.
4) Designated Authority and others v.
Andhra Petrochemicals Limited reported
in (2020) 10 SCC 209.
5) Commissioner of Customs v. G.M.
Exports and others reported in (2016) 1
SCC 91.
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6) Saurashtra Chemicals Ltd v. Union of
India reported in (2009) 17 SCC 529.
7) Tata Chemicals Ltd. v. Union of India
reported in (2008) 17 SCC 180.
8) Designated Authority & ors v. Sandisk
International Limited and ors. reported
in (2018) 13 SCC 402.
9) Reliance Industries Limited v.
Designated Authority and others reported
in (2006) 10 SCC 368.
10) Rishiroop Polymers (P) Ltd. v.
Designated Authority and another
reported in (2006) 4 SCC 303.
11) Rishiroop Polymers (P) Ltd. v.
Designated Authority & anr. reported in
(2006) 4 SCC 378.
12) Indian Express Newspapers (Bombay)
Ltd. v. Union of India reported in 2003
(157) ELT (138) (Del).
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13) Indian Express Newspapers (Bombay)
Ltd. v. Union of India reported in 2003
(158) ELT A225(SC)
14) Bridgestone India PVt. Ltd v.
Designated Authority reported in
2021(376) ELT 263 (Del)
15) Suncity Sheets Pvt. Ltd. v. The
Designated Authority and others reported
in (2017) SCC OnLine Del 9412
16) Shri Cheran Synthetics India Ltd v.
Union of India and others (judgment
dated 07.10.2009 passed in WA No. 1400
of 2009 and allied matters)
c) Submission of learned Senior
Advocate Mr. Pragyan Pradip Sharma for
respondent no.6:
65. Learned Senior Advocate Mr. Sharma in
addition to adopting the submissions made
by learned Senior Advocate Mr. Kamal
Trivedi and learned Senior Advocate Mr.
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Balbir Singh heavily relied upon the
Manual of Operating Practices for Trade
Remedy Investigations to show the process
flow for such investigation and time-frame
for completion of anti-dumping
investigation.
66. It was submitted that as per the Standard
Operating Practices, para No. 3.13
provides that the PUC should be defined
accurately and in a manner that it is
discernible in terms of technical and
measurable parameters of distinguishable
to the Customs Authorities at the time of
importation and all nomenclature/
descriptions/known names of the product
should be included in the scope of PUC. It
was pointed out that PUC should have been
defined in terms of physical, technical
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and other properties and characteristics
and therefore, the test to determine the
PUC is adopted by Designated Authority in
accordance with the Standard Operating
Practices and bulk density and porosity of
‘K’ value of the alleged specialty grade
of SPVC imported by the petitioners is
same as there is no physical and technical
difference and the chemical composition is
also same. It was pointed out that
respondent no.6 DCW Limited is
manufacturing SPVC and being a domestic
industry is suffering losses because of
the lesser value of the imported materials
and when the Designated Authority has
arrived at findings of fact as to whether
products imported by the petitioners can
be excluded or not from the scope of
product under consideration and whether it
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is like article or not during the course
of the proceedings, no interference is
required to be made by this Court as the
final findings are yet to be arrived at by
the Designated Authority. In support of
his submissions, reliance was placed on
the following decisions:
1) Huawei Technologies Co. Ltd v.
Designated Authority reported in 2016
(334) ELT 339 (Tri-Del)
Designated Authority reported in 2006
(195) ELT 146.
Designated Authority reported in 2016
(334) ELT 552
67. Reliance was also placed on the decisions
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of European Commission for imposing
provisional anti-dumping duty on imports
of Polyethylene Terephthalate Film
originating in India and Republic of
Korea. Referring to such decisions, it was
submitted that when the Designated
Authority as per the provisions of the Act
and the Anti-Dumping Rules has come to the
conclusion that the products claimed to be
of specialty grade imported by the
petitioners are commercially and
technically substitutable, same were
rightly not excluded from the scope of
product under consideration.
68. With regard to the maintainability of the
writ petition, reliance was placed on the
following decisions:
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1) Indian Express Newspapers (Bombay)
Ltd. v. Union of India(supra)
2) Bridgestone India PVt. Ltd v.
Designated Authority (supra)
3) Saurashtra Chemicals Ltd v. Union
of India (supra)
d) Submissions of learned ASG Mr. N.
Venkatraman for respondent nos. 1 to 3
and 7
69. Learned ASG Mr. N. Venkatraman reiterated
the findings given by the Designated
Authority in the Addendum Notification
dated 16.12.2024 and emphasized that
findings of the fact given by the
Designated Authority regarding gradation
and substitutability of the claim made by
the petitioners cannot be considered at
this stage. It was emphasized that the
petitioners are only importing minuscule
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quantity of the alleged specialty grade
SPVC to manufacture CPVC whereas 92% of
the products import have gone for non
CPVC. It was submitted that the Designated
Authority has applied “Acid Test” while
considering the fact that the petitioners
have not approached any domestic industry
for purchase of SPVC so as to test the
same for production of CPVC as compared to
the usage of imported SPVC by the
petitioners and no difference was shown by
the petitioners before the Designated
Authority and as such, the petitioners now
cannot complain that the domestic
industries are not able to produce
specialty grade of SPVC which is imported
by the petitioners. It was therefore,
submitted that when Designated Authority
has fulfilled the procedure to come to the
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conclusion that the products imported by
the petitioners are not required to be
excluded from the scope of investigation
of product under consideration, no
interference be made in the impugned order
passed by the Designated Authority.
e) Rejoinder of learned Senior
Advocate Mr. Mihir Joshi
70. Learned Senior Advocate Mr. Mihir Joshi in
rejoinder submitted that the writ petition
is maintainable and should be entertained
as there is no alternative remedy for the
petitioners to challenge the preliminary
findings considering the specialty grade
SPVC imported by the petitioners as part
of the PUC.
71. It was submitted that the Designated
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Authority did not examine the submissions
and materials provided by the petitioners
to come to the conclusion that there is no
specialty grade SPVC to manufacture CPVC
by ignoring relevant evidence. Learned
Senior Advocate Mr. Joshi invited the
attention of the Court to the following
evidences :
(i) (Page 39 – para 24 of the
paper- book)“24.The product produced by the
domestic industry is like article
to the goods imported from the
subject countries. The product
produced by the domestic industry
and imported from the subject
countries are comparable in terms
of physical & chemical properties,
functions & uses, product
specifications, pricing,
distribution & marketing and
tariff classification of the
goods. Even though there are
different manufacturing
process/technologies involved for
production of the subject goods,
the end product has comparable
specifications and is used
interchangeably. The productPage 73 of 140
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produced by the domestic industry
and imported into India from the
subject country is technically and
commercially substitutable, and
the consumers are using the two
interchangeably. In view of the
same, the product manufactured by
the domestic industry has been
considered as like article to the
product imported into India, in
accordance with Rule 2(d) of the
Rules.
(ii) Page 376/464 of the paper book
“Name of the Company : – DCW Limited, Sahupuram
Product : Polyvinyl Chloride Suspension (PVC Suspension)
Injury Statement
Non- Confidential
POI-Oct-22 to June -23
Proforma IVA
SN Information UOM 2020-21 2021-22 2022-23 POI POI
Related to
Product
Under
Consideratio
n only
Section A 9M Ann
1 Installed MT *** *** *** *** ***
Capacity
2 Production MT *** *** *** *** ***
3 Capacity % *** *** *** *** ***
Utilisation at
Installed
Capacity
4 Production Qty of MT *** *** *** *** ***
PUC
5 Captive Transfer MT
6 Sales Quantity MT *** *** *** *** ***
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6a Domestic MT *** *** *** *** ***
6b Exports MT *** *** *** *** ***
7 Net Sales Value ₹ Lacs *** *** *** *** ***
(excluding taxes)
7a Domestic ₹ Lacs *** *** *** *** ***
7b Exports ₹ Lacs *** *** *** *** ***
8 Average Selling
Price Per unit
8a Domestic ₹/MT *** *** *** *** ***
8b Exports ₹/MT *** *** *** *** ***
9a No of employees Nos *** *** *** *** ***
9b Salaries and ₹ Lacs *** *** *** *** ***
Wages
9c Productivity Per MT/Days *** *** *** *** ***
day
9d Productivity Per MT/Nos *** *** *** *** ***
employee
9e Productivity Per MT/Days *** *** *** *** ***
day per
employee
10a Opening MT *** *** *** *** ***
Inventory
10b Closing Inventory MT *** *** *** *** ***
10 Average MT *** *** *** *** ***
Inventory
10c Average MT/Days *** *** *** *** ***
Inventory as no.
of days of
production
10d Average MT/Days *** *** *** *** ***
Inventory as no
of days of Sales
11 Cost and Profits
for Domestic
Operations
a Cost of Sales ₹ Lacs *** *** *** *** ***
(ex-factory)
b Commission, ₹ Lacs *** *** *** *** ***
Discounts,
Rebate,
Freight,etc
C Net Sales ₹ Lacs *** *** *** *** ***
Realisation
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d PBT (Profit ₹ Lacs *** *** *** *** ***
Before Tax)
e Interest Cost ₹ Lacs *** *** *** *** ***
f PBIT (Profit ₹ Lacs *** *** *** *** ***
Before Interest &
Tax)
g Depreciation ₹ Lacs *** *** *** *** ******
h PBDIT (Profit ₹ Lacs *** *** *** ***
before
Depreciation,
Interest and Tax)
i Cash Profit (PBT ₹ Lacs *** *** *** *** ***
+ Depreciation)
j Cost of Sales ₹/MT *** *** *** *** ***
(ex-factory)
k Net Sales ₹/MT *** *** *** *** ***
Realisation Per
unit
l PBT (profit ₹/MT *** *** *** *** ***
before tax)
m Interest Cost ₹/MT *** *** *** *** ***
n PBIT (Profit ₹/MT *** *** *** *** ***
before interest
and tax)
o Depreciation ₹/MT *** *** *** *** ***
p PBDIT ( profit ₹/MT *** *** *** *** ***
before
depreciation,
interest and tax)
q Cash Profit (PBT ₹/MT *** *** *** *** ***
+ Depreciation)
11 Average Capital ₹ Lacs *** *** *** *** ***
employed
a Net Fixed Assets ₹ Lacs *** *** *** *** ***
b Working Capital ₹ Lacs *** *** *** *** ***
c PBIT as % of % *** *** *** *** ***
Average Capital
Employed(RO)
12 Details of Self
imports by the
applicant
a Import volume MT
No imports made by the company
b Import value ₹ Lacs
(CIF)
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c Import price ₹/MT
(CIF)
d Resale price of ₹/MT
self imported
goods
(iii) (Page 376/230 of the paper
book)
General Description
Type: Polyvinyl Chloride
Homopolymer
Polymerization Process: Suspension
Appearance: White, free
flowing powder
Features and Uses:
OxyVinylsR 225P resin is often
converted into a wide range of
pipe sizes and types, which meet
the most stringent standards for
water supply and distribution. Its
medium molecular weight provides
excellent processing
characteristics in both single and
multi-screw extruders. Typical
Applications include irrigation,
foam core, potable water,
DWV/sewer pipe, electrical conduit
and rigid profiles.
Resin Properties Specification Test Method
Range
Inherent Viscosity (dl/g) 0.880-0.920 OxyVinyls 1386Page 77 of 140
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Relative Viscosity 2.12-2.19 Correlation
K Value 64-65 Correlation
Volatiles (%) 0.24 Max. OxyVinyls 1242
Malvern Particle Size
% Retained on 40 mesh 0.5 Max OxyVinyls 1505
% Retained on 60 mesh 7.0 Max OxyVinyls 1502
% Retained on 200 mesh 15.0 Max
% Retained on Pan 5.0 Max
Residual Monomer (ppm) 3.2 Max OxyVinyls 1005
Apparent Bulk Density 0.515-0.575 OxyVinyls 1501
(g/cc)
STM Cell Classification GP4-16040 ASTM D 1755
CAS Number 9002-86-2
(iv) (Page 376/143 of the paper book)
Dated: 21- 06-2024
Our Ref:MDBO/CM/L 6900117213
Subject: Grant of BIS
Certification Marks Licence No
6900117213 as per IS 17988:2022.
M/S DCW LIMITED
SAHUPURAM,,ARUMUGANERI,THOOTHUKUDI
, TAMIL NADU, INDIA 628229
Dear Madams(s)/Sir,
With reference to your
application, we are pleased to
inform you that the Certification
Marks Licence has been granted to
you to use the Standard Mark in
respect of the followings:
CHLORINATED POLYVINYL CHLORIDE
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CPVC RESIN SPECIFICATION
Product:-
Grade/Class/Type/Variety
Chlorinated Polyvinyl Chloride
(CPVC) Resin, Grade 1, and Grade
2, not suitable for products used
in contact with foodstuffs,
pharmaceuticals and drinking
water
1. The licence is granted on the
explicit condition that you will
mark entire/substantial production
which conforms to the Indian
Standards.
2. The number assigned to this
licence is CM/L-6900117213 which
has been made operative from 2024-
06-20 and is valid upto 2025-06-
19. The licence number should
invariably be referred to in your
future correspondence.
According to sub-regulation (1)
&(3) of Paragraph 5 of scheme I of
Schedule II under Bureau of Indian
Standards (Conformity of
Assessment) Regulation, 2018, the
annual licence fee of Rs. 1000.00
and the marking fee for use of
standard mark as per Annexure-I of
Scheme I of BIS(Conformity
assessment) Regulation 2018 is
payable by you with effect from
2024-06-20 for the period of
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validity of the licence in
advance.
3. Minimum marking fee stipulated
in Annexure -I of scheme I of BIS
(Conformity Assessment) Regulation
2018 is payable by you regardless
of the whether you actually mark
your product or not with the
Standard Mark. Our Receipt No.
AA69PC2024000267 dated 2024-06-12
for the licence fee and the
minimum marking fee for the first
operative period is already
issued.
4. This advance minimum marking
fee will be carried over to the
next year on every renewal. The
actual marking fee calculated on
the unit rate on the production
marked or the minimum marking fee,
whichever is higher shall be
payable by you at the time of
renewal.
5. With a view to streamlining the
reporting of quantity marked,
calculation and collection of
marking fee on the unit rate
basis, fees will be calculated on
the production marked during the
first nine months of operation of
the licence at the time of first
renewal, and on the production
marked during twelve months
comprising the last three months
of the previous operative year and
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the first nine months of the
current operative year, at the
time of the second and subsequent
renewals. In case the licence
expires, the entire production
marked till the expiry date shall
be taken into account for
calculating the marking fee
payable.
NON-CONFIDENTIAL
6. The Scheme of Testing and
Inspection submitted by you and
agreed by BIS or the Scheme of
Testing and Inspection as
specified by BIS will have to be
implemented by your organization
strictly and completely. This
supervision of the operation of
the Scheme shall be done by a
person responsible for the quality
control function in your
organization. Kindly inform us the
name and designation of the person
who will be held responsible for
the operation and maintenance of
the Scheme. Any future change in
this respect will have to be
communicated by you to us as and
when these take place.
7. We are enclosing a sheet giving
the preferred dimensions of the
Standard Mark to enable you to
prepare the designs of the
Standard Mark for marking the
above product Photographic
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reduction in any size is
permissible. This will ensure the
relative proportions of the
different dimensions maintained.
Preferred dimensions be used as
far as possible.
8.On commencement of marking of
your product for which you are
licensed, you may advertise your
product with Standard Mark in
various media only during the
validity of your licence. The use
of Standard Mark on letterheads
and publicity literature will be
permitted only on receipt of your
assurance that in the event of
cancellation or lapsing of your
licence, the Standard Mark on your
letterheads, publicity literatures
etc. will be destroyed/
obliterated.
9. This licence is granted for
your factory situated at
SAHUPURAM, ARUMUGANERI,
THOOTHUKUDI, TAMIL NADU, INDIA
628229. Privileges under the
licence shall not be exercised by
any other firm company/factory
etc. This licence is not
transferable in the event of
shifting the manufacturing and
testing equipment from the
licensed premises to some other
place, use of Standard Mark shall
be stopped till the new premises
are inspected and found to be
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satisfactory by us in respect of
manufacturing and testing
facilities available there and the
address of the new premises is
endorsed in the licence.”
72. It was submitted that even the Standard
Operating Practices is not followed by the
Designated Authority and therefore, there
is procedural lapse and objective test
was conducted by the Designated Authority
whether like product is manufactured by
the domestic industry and no verification
was made that general grade as PVC Resins
can be used to manufacture CPVC pipes for
drinking water.
73. It was submitted that whether the
specialty grade SPVC imported by the
petitioners is a like product or not is on
the Designated Authority, more
particularly when there are only two
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manufactures of SPVC which are not even
sufficient to meet the requirements of
SPVC imported by the petitioners. It was
submitted that only with a view to see
that respondent nos. 4 and 6 are benefited
and the petitioners are compelled to
purchase the product of inferior quality
from respondent nos. 4 and 6, the
Designated Authority has without
considering the facts has rejected the
claim of the petitioners to exclude the
specialty grade SPVC imported by the
petitioners to manufacture CPVC for
drinking water from the scope of product
under consideration.
74. It was therefore, submitted that the
impugned orders passed by the Designated
Authority are required to be modified to
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exclude the specialty grade SPVC imported
by the petitioners from the scope of
investigation of PUC, failing which, the
petitioners would suffer losses which
cannot be compensated and on the other
hand, respondent no.6 would be given an
advantage to establish monopoly market in
India compelling the petitioners to
purchase the similar product which is yet
to be manufactured and tested to
manufacture CPVC for pipes for drinking
water. It was therefore, submitted that
if the anti-dumping duty is levied on
specialty grade SPVC imported by the
petitioners to be levied as per the
preliminary findings arrived at by
Designated Authority, the petitioners
would suffer which is contrary to the
Trade Remedies and there will be no
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levelling field giving advantage to the
domestic industry contrary to the basic
intention of levy of anti-dumping duty on
the like products by determining the
injury caused to the domestic industry.
DISCUSSION AND FINDINGS:
75. Having heard the learned advocates
for the respective parties and having
considered the material placed on
record, the short question which
arises for consideration is, whether
respondent no.3 Designated Authority
was justified in rejecting the prayer
of the petitioners to exclude
specialty grades of SPVC i.e.S65C and
S66J of Formosa Plastics Corporation
and S66J of Thai Polyethylene of PVC
Resin imported by the petitioners to
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manufacture CPVC from investigation of
PUC or not.
76. The Designated Authority has
issued Addendum Notification dated
16.12.2024 after considering the
submissions made by both the sides and
rejected the submissions of the
petitioners holding that there is no
exclusive clearly identified category
of SPVC which is unique for
manufacturing CPVC as SPVC imported by
the petitioners can be used for other
applications and there are other SPVCs
which have been used for manufacture
of CPVC. Respondent no.3 Designated
Authority, therefore, came to the
conclusion that the alleged specialty
grade SPVC imported by the petitioners
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are technically and commercially
substitutable and the subject goods
produced by domestic industry are like
articles to the product under
consideration imported from the
subject countries within the scope and
meaning of Rule 2(d) of the Anti-
Dumping Rules and claim of the
petitioners to exclude specialty
grades of SPVC from the scope of
investigation of PUC cannot be
accepted.
77. A preliminary objection was also
raised on behalf of the respondent
with regard to the maintainability of
this writ petition against the
impugned preliminary findings dated
30.10.2024 and Addendum Notification
dated 16.12.2024.
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78. Considering the submissions of
both the sides, we are of the opinion
that against the preliminary findings
arrived at by Designated Authority, it
cannot be said that there is effective
remedy available as per section 9C of
the Act, more particularly, when power
of imposing anti-dumping duty on
dumped articles emanates from section
9A of the Act which contemplates that
any article is exported by an exporter
or producer to India from any country
at less than its normal value on such
importation in India, the Government
of India is entitled to notification
to impose anti-dumping duty not
exceeding the margin of dumping in
relation to article. While section 9B
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of the Act contemplates certain
circumstances wherein no such anti-
dumping duty can be imposed and
section 9C of the Act provides an
appeal to the Customs Excise and
Service Tax Tribunal against the order
of determination or review regarding
the existence, degree and effect of
any substitute or dumping in relation
to import. Section 9C of the Act reads
as under:
“Section 9C. Appeal.- (1) An
appeal against the order of
determination or review thereof
regarding the existence, degree
and effect of any subsidy or
dumping in relation to import of
any article shall lie to the
Customs, Excise and Service Tax
Appellate Tribunal constituted
under section 129 of the Customs
Act, 1962 (52 of 1962) (hereafter
referred to as the Appellate
Tribunal).
(1A) An appeal under sub-section
(1) shall be accompanied by a feePage 90 of 140
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of fifteen thousand rupees.
(1B) Every application made before
the Appellate Tribunal,-
(a) in an appeal under sub-section
(1), for grant of stay or for
rectification of mistake or for
any other purpose:
or
(b) for restoration of an appeal
or an application, shall be
accompanied by a fee of five
hundred rupees.
(2) Every appeal under this
section shall be filed within
ninety days of the date of order
under appeal:
Provided that the Appellate
Tribunal may entertain any appeal
after the expiry of the said
period of ninety days, if it is
satisfied that the appellant was
prevented by sufficient cause from
filing the appeal in time.(3) The Appellate Tribunal may,
after giving the parties to the
appeal an opportunity of being
heard, pass such order thereon as
it thinks fit, confirming,
modifying or annulling the order
appealed against. (4) The
provisions of sub-section (1),Page 91 of 140
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(2), (5) and (6) or section 129C
of the Customs Act, 1962 shall
apply to the Appellate Tribunal in
the discharge of its functions
under this Act as they apply to it
in the discharge of its functions
under the Customs Act, 1962.(5) Every appeal under sub-section
(1) shall be heard by a Special
Bench constituted by the President
of the Appellate Tribunal for
hearing such appeals and such
Bench shall consist of the
President and not less than two
members and shall include one
judicial member and one technical
member.”
79. The Central Government is
empowered to frame rules as per the
powers conferred under section 9A(6)
of the Act to ascertain and determine
the manner in which article liable for
any anti-dumping duty is to be
identified or the manner in which
export price and normal value of and
margin of dumping in relation to such
article is to be determined for
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assessment and collection of such
anti-dumping duty. In exercise of such
powers, the Anti-Dumping Rules are
framed by the Central Government.
80. Rule 3 of the Anti-Dumping Rules
enables the Central Government to
appoint the Designated authority whose
duties are mentioned in Rule 4 which
reads as under:
“Rule 4. Duties of the designated
authority. – It shall be the duty
of the designated authority, in
accordance with these rules,-
(a) to investigate as to the
existence, degree and effect of
any alleged dumping in relation to
import of any article;
(b) to identify the article liable
for anti-dumping duty;
(c) to submit its findings,
provisional or otherwise to
Central Government as to-
(i) normal value, export price and
the margin of dumping in relationPage 93 of 140
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to the article under
investigation; and
(ii) the injury or threat of
injury to an industry established
in India or material retardation
to the establishment of an
industry in India consequent upon
the import of such article from
the specified countries;
(d) to recommend to the Central
Government-
(i) 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, after
considering the principles laid
down in the Annexure III to these
rules; and
(ii) the date of commencement of
such duty,
(e) to review the need for
continuance of anti-dumping duty.”
81. On plain reading of above rule 4
of the Anti-Dumping Rules, the
Designated Authority is empowered to
investigate, identify and submit its
findings provisionally or otherwise to
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the Central Government as to normal
value and injury, apart from
recommending to the Central Government
about the amount of anti-dumping duty
and the date of commencement of the
duty.
82. Respondent no.3 Designated
Authority in the facts of the case has
recorded the preliminary findings
after preliminary investigation by
impugned notification dated 30.10.2024
as per Rule 12 of the Anti-Dumping
Rules regarding export price, normal
value and margin of dumping resulting
into injury to the domestic industry
to arrive at preliminary determination
on dumping and injury to the domestic
industry.
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83. On basis of such preliminary
findings, the Central Government is to
impose levy of provisional duty and on
further investigation, Designated
Authority as per Rule 16 of the Anti-
Dumping Rules is to arrive at final
findings and determination is to be
made as per Rule 17 in the form of
recommendation and thereafter Central
Government issues levy within the
period of three months of the date of
publication of final findings by
Designated Authority as per Rule 18 of
the Anti-Dumping Rules.
84. Therefore, considering the scheme
of the Act and on perusal of section
9C of the Act, it is clear that an
appeal lies only after the
determination which comes only after
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final findings given by the Designated
Authority under Rule 17 of the Anti-
Dumping Rules and levy of duty by the
Central Government under Rule 18 of
the Anti-Dumping Rules and therefore,
it cannot be said that there is
alternative remedy of appeal available
to challenge the preliminary findings
which is impugned in this petition.
85. This Court in case of Meghani
Organics Ltd. v. Union of India
reported in 2011 (267) ELT 440 Gujarat
has taken a similar stand that
preliminary findings given by the
Designated Authority is recommendary
in nature and appeal would not be
tenable under section 9C of the Act
against the preliminary findings as
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under:
“16. This leads to another issue
as to whether an appeal lies to
the CESTAT against levy of
provisional anti-dumping duty, and
if yes, whether this Court should
entertain the present petition
when an alternative remedy in the
form of an appeal is available to
the petitioners. In support of
this contention, Mr. Joshi relied
on the decision of this Court in
Surefaces Plus v. Union of India
2004 (173) ELT. 127 (Guj.)
wherein, while considering an
issue as to whether an appeal lies
against a preliminary finding, the
Court held that against a
preliminary finding, which is of a
recommendatory nature, an appeal
would not be tenable under Section
9C of the Act. The preliminary
finding which is of a
recommendatory nature is required
to be considered by the Central
Government under Rule 13 for the
purpose of deciding the question
of imposing provisional anti-
dumping duty and the Central
Government is required to issue
notification for imposing anti-
dumping duty. Such notification of
imposing duty has not been issued
so far by the Central Government.
On the basis of these Page 98 of 140 Uploaded by RAGHUNATH R NAIR(HC00196) on Thu May 01 2025 Downloaded on : Sat May 03 12:29:55 IST 2025 NEUTRAL CITATION C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025 undefined
observations, the submission of
Mr. Joshi is that since the
Central Government has already
issued notification in June, 2009,
the petitioners could avail an
alternative remedy of filing an
appeal before the CESTAT. We are
not much impressed by this
argument. Section 9C deals with
appeal which says that an appeal
against the order of determination
or review thereof regarding the
existence, degree and effect of
any subsidy or dumping in relation
to import of any article shall lie
to the Customs, Excise and Service
Tax Appellate Tribunal constituted
under Section 129 of the Customs
Act, 1962. Section 9A(2) of the
Act states that 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. Thus, the
provisional anti-dumping duty is
levied pending determination and
appeal lies only on determination.
Moreover, Rule 17 of the Rules
deals with final finding. It saysPage 99 of 140
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that the Designated Authority
shall, within one year from the
date of initiation of an
investigation, determine as to
whether or not the article under
investigation is being dumped in
India and submit to the Central
Government its final finding as to
(i) the export price, normal value
and the margin of dumping of the
said article, (ii) whether import
of the said article into India, in
the case of imports from specified
countries, causes or threatens
material injury to any industry
established in India or materially
retards the establishment of any
industry in India, (iii) a causal
link, where applicable between the
dumped imports and injury, (iv)
whether a retrospective levy is
called for and if so, the reasons
therefore and date of commencement
of such retrospective levy. This
exercise is yet to be undertaken
by the Designated Authority.
Hence, no appeal lies against the
levy of provisional anti-dumping
duty and this Court is well within
its power to entertain this
petition since there being no
alternative remedy available to
the petitioners despite the fact
that they are being saddled with
the liability of provisional anti-
dumping duty.”
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86. This Court in case of Alembic Ltd.
v. Union of India reported in (2013)
291 ELT 327 Gujarat has also
considered the maintainability of the
petition under Article 226 of the
Constitution of India. The Hon’ble
Madras High Court in case of Nirma
Limited v. Saint Gobain Glass India
Ltd. reported in 2012 (281) ELT 321
(Mad) as well as this Court in case of
Nirma Limited v. Union of India
reported in 2017 (346) ELT 328 (Guj)
has held that writ petition is
maintainable under Article 226 of the
Constitution of India against the
preliminary findings arrived at by the
Designated Authority. Therefore, in
view of facts of the present case when
the petitioners have challenged
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preliminary findings on the ground
that specialty grade of SPVC Resin
imported by the petitioners is
required to be excluded from the scope
of product under consideration, this
petition is entertained.
87. It is pertinent to note that this
Court by order dated 29.11.2024 laid
down the procedure to consider the
submissions made by the petitioners as
the Designated Authority while passing
the preliminary findings dated
30.10.2024 brushed aside the
submissions of the petitioners for
exclusion of specialty grades of SPVC
Resins on the ground that the
petitioners had claimed
confidentiality with regard to its
additional submission on exclusion of
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specialty grades of SPVC imported for
manufacture of CPVC.
88. Respondent no.3 thereafter
pursuant to the directions issued by
this Court has granted further
opportunity to the petitioners and
respondents to file written
submissions and oral hearing was also
conducted and thereafter considering
the submissions and oral hearing,
Addendum Notification dated 16.12.2024
is passed rejecting the claim of the
petitioners to exclude the specialized
grade SPVC Resin from scope of
investigation for product under
consideration.
89. On perusal of the findings of
Designated Authority after examination
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of various submissions of the parties
for the purpose of determining whether
claim of the petitioners for exclusion
of specialized grades is tenable under
Rule 2(d) of the Anti-Dumping Rules or
not, it would be necessary to refer to
Rule 2(d) which reads as under:
2(d) “like article” means an article
which is identical or alike in all
respects to the article under
investigation for being dumped in
India or in the absence of such an
article, another article which
although not alike in all respects,
has characteristics closely resembling
those of the articles under
investigation.”
90. On perusal of the above Rule which
defines like articles which means an
article which is identical or alike in
all respect of article under
investigation for being dumped in
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India or in absence of such article
another article which although not
alike in all respect has
characteristics closely resembling to
those of article under investigation,
is to be examined on the basis whether
such specialty grade SPVC Resins falls
within the definition of like article
on technical and commercial
substitutability aspect in view of
submission of the petitioners that
S65C supplied by Formosa Plastic
Corporation is technically distinct
from Grade of SPVC manufactured by the
Domestic Industry – DCW Limited.
91. It appears that Designated
Authority has taken into consideration
the test reports supplied by the
Domestic Industry- DCW Limited for
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comparison of the bulk density and
porosity which are two parameters
highlighted by the petitioners
regarding the different grades of SPVC
Resins manufactured by DCW Limited and
exported by Formosa Plastic
Corporation as under:
Particulars Grade Name Bulk Density Plasticizer
Absorption
Porosity
DCW Limited PRO65 0.53 21%
DCW Limited PRO057 0.51 15.45%
Formosa SF58S 0,50 16%
Plastics
Corporation
Formosa S65C 0.53 21.8%
Plastics
Corporation
Thai S66J 0.51 19.7%
Polyethylene
92. The Designated Authority after
considering such test reports referred
to the submissions of Thai Plastics
and Chemicals PLC and Thai
Polyethylene Co. Ltd. that Grade SG66J
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and SF58S are exclusively used for
conversion into CPVC and as per the
specification sheets of such grades,
the grades can also be used for
general purposes. The Designated
Authority has therefore, come to the
conclusion that specialized grades of
SPVC claimed by the petitioners are
not unique for only CPVC use but they
can be used for any general purpose
and reliance was placed on the
quantity of SG66J and SF85S grades of
SPVC imported from the above companies
and came to the conclusion that 92% of
the imports are by traders not
producing CPVC which demonstrates that
such grades claimed to be fit for CPVC
use only are capable of being used
interchangeably for other applications
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also.
93. Designated Authority has also
taken into consideration the claim
made by Hanwha Solutions Corporation
who is producer of both CPVC and SPVC
Resins and has claimed that there are
no specialty grades for manufacture of
CPVC as it is manufacturing CPVC using
its own PVC Suspension Resins.
94. With regard to the contention of
the petitioners that DCW Limited
domestic industry which makes both PVC
Resin and CPVC Resin has not used its
own SPVC Resins for making CPVC
Resins, Designated Authority
considered the material placed on
record by DCW in order to show that
DCW has produced CPVC using captively
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produced SPVC Resins as well as
imported PVC Suspension Resins as
under :
SN Grade MT Prior to 30- Post 30-9- Remarks
Name 09-12023 23
1 DCW Pipe 1,498 76 1,422 DCW PR
Grade 065
2 DCW 742 10 732 DCW PR
Fitting 057
Grade
3 Oxychem 2,354 517 1837 Market
225p
4 P 1000 1,051 541 510 MPVC
5 Hanwha P 553 143 410 Market
1000 SB
6 Westlake 66 8 58 Market
1230p
7 Westlake 8 8 – Market
1091
8 Tpe Sg 66j 933 273 660 MK
Industries
9 Tpe Sf58s 108 9 99 MK
Industries
10 Formosa B 226 116 110 MPVC
57
11 Formosa B 118 – 118 MPVC
57 C Direct
Import
12 Formosa B 177 – 177 MPVC
65c Direct
Import
13 Formosa S 194 – 194 SPVC
65c Direct
import
15 Indonesia 25 25 – Market
Fj65rPage 109 of 140
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16 Kemone 6 6 – MPVC
Pipe Direct
Import
17 Kemone 120 – 120 MPVC
Fitting Direct
Import
18 P700 18 – 18 MPVC
Fitting Direct
Import
19 Chemplast 6 6 – Market
Total 8,203 1,738 6,465
95. On the basis of above data,
Designated Authority has come to the
conclusion that DCW Limited has used
domestically produced subject goods
for manufacturing CPVC. However, on
perusal of the above data it is clear
that during investigation period i.e.
upto 30.09.2023, DCW has consumed SPVC
Resins of 76 tons out of 1498 metric
tons of DCW Pipe Grade and only 10
Metric tons out of 742 metric tons of
DCW Fitting Grade whereas it has
consumed imported SPVC Resin of other
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manufacturers in large quantity.
Hence, findings arrived at by the
Designated Authority that domestic
industry has demonstrated that PVC
Resins manufactured by it is like
article to the product imported in
India which is used for manufacturing
of CPVC is contrary to the definition
of like article as such domestic
industry has failed to point out the
manufacturing of SPVC Resin of the
grade which is required to be used by
the petitioners for production of CPVC
Resin used for manufacture of pipes of
water for human consumption. It
appears that Designated Authority has
failed to consider the basic
contention of the petitioners that the
specialty grade SPVC Resins imported
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by the petitioners for the purpose of
CPVC resin is used only for
manufacture of water pipes for human
consumption and has gone on tangent
that there is no exclusive group of
PVC Suspension Resin that is commonly
used for the purpose of making CPVC
Resin, more particularly, when no
specialty grade SPVC as claimed by the
petitioners is available in India or
manufactured by any domestic industry.
However, learned Senior Advocate
appearing for the respondent authority
has made submission that Designated
Authority has rightly applied the
“Acid Test” while holding that
petitioners did not approach the
domestic industry or bought such goods
from the domestic industry and
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thereafter communicate to the
domestic industry regarding defects if
any in the subject goods for
manufacturing CPVC. Designated
Authority could not have shifted the
burden on the petitioners to prove
that specialty grades of SPVC Resin as
required by the petitioners are not
available in India and not
manufactured by the domestic industry.
It was for the domestic industry to
prove that like article as would
include the specialty grade SPVC Resin
which are sought to be excluded by the
petitioners from the scope of product
under consideration are manufactured
in India and are suitable to
manufacture CPVC Resins required for
production of pipes for water supply.
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Designated Authority therefore, has
failed to take into consideration the
basic standard of proof to be applied
for arriving at conclusion that the
articles which are imported by the
petitioners being specialty grade SPVC
cannot be considered as “like article”
manufactured by the domestic industry.
96. On a specific query to the learned
ASG as to whether there is any
authority on the proposition that
domestic industry must in the first
place has to be approached by the
petitioners before the petitioners can
source the product through import is
the “acid test”, the learned ASG
submitted that the proposition is so
basic and ingrained in the concept of
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anti-dumping that such proposition
does not need any authority or
precedent. We disagree with the
aforesaid proposition of the learned
ASG. On the contrary, we are of the
view that such a proposition is as
novel as it is misconceived.
97. From the data produced on record
by DCW Limited at page 376/464 of the
paper book it is apparent that DCW
Limited did not produce any SPVC
Resin during the period of
investigation. Designated Authority
however, failed to consider the fact
that DCW Limited has also imported
specialty grade SPVC Resin to
manufacture CPVC and in absence of
data of minimal captive consumption of
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SPVC Resin is placed on record, the
Designated authority could not have
arrived at conclusion that the
specialty grade SPVC Resin imported by
the petitioners and the respondent
nos. 4 to 6 is “like article” in the
facts emerging on record.
98. CPVC Resin as manufactured by the
petitioners is separately classified
under IS Code 17988:2022 and PVC Pipe
IS Standard 15778 is manufactured by
the petitioners by use of CPVC Resins
which in turn is manufactured by the
petitioners utilising imported SPVC
Resins for which there is no like
product manufactured within India
during the period under investigation.
99. On perusal of the BIS License
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issued to DCW Limited on 22.06.2024
though such standard came into force
on 20.10.2022 such standard is not
mandatory. Designated Authority has
failed to consider the similar SPVC
Resin carrying the same ‘K’ value
imported by the petitioners and agents
acting upon instructions of respondent
no.4 and without such thorough
investigation to substantial extent
accepting what is submitted by the
respondent nos. 4 to 6, the
Designated Authority has arrived at a
conclusion that specialty grades of
SPVC Resins imported by the
petitioners are “like article”
manufactured by domestic industry.
100. Therefore, without going into
larger question as to whether
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respondent nos.4 to 6 would fall
within the definition of being
domestic industry as per definition
section 2(b) of the Act which defines
domestic industry so as to examine
whether the investigation initiated by
the Designated Authority is proper or
not, we have examine the case from the
limited scope for exclusion of
specialty grade SPVC Resins imported
by the petitioners from scope of
investigation of PUC.
101. For such examination, as both the
sides have referred to Manual of
Operating Practices for Trade Remedy
Investigation more particularly,
Chapter 3 and 4 which refers to
product under consideration and like
articles as well as relevant
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paragraphs of the said the Standard
Operating Practices, it would be
necessary to refer the same as under:
“3.1. In the ADA there is no
specific definition of ‘Product’.
However, Article 2.1 of the ADA
provides as follows:
“For the purpose of this
Agreement, a product is to be
considered as being dumped, i.e.,
introduced into the commerce of
another country at less than its
normal value, if the export price
of the product exported from one
country to another is less than
the comparable price, in the
ordinary course of trade, for the
like product when destined for
consumption in the exporting
country'”.
xxxx
3.4. The very first stage of an
investigation is the
identification of the PUC and its
scope. The standing of the DI for
the application, determination of
“injury” and “causal link” are all
contingent on the PUC. Once the
PUC is precisely and properly
identified, the “like article”
produced by the DI is decided in
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before proceeding for the test of
DI standing.
xxxx
3.10. The PUC is defined to
include those items only, which
are manufactured by the DI. Mere
competence without any production
or merchant sales may not be
sufficient to include an item in
the definition of the PUC.
Similarly, if an item is produced
and consumed only captively (in-
house) without any outside sales
the DI’s request for an
investigation against this product
may be considered with caution.
The PUC should preferably include
those items, which are produced
and commercially sold in the
domestic market by the respective
DI. An exception could be the
cases where the applicant is a new
industry, who has set up facility
for a new product or could be an
upstream product of an existing
industry and the new industry is
facing difficulty in capturing
market on account of dumped
imports of the product.
3.11. The team should also examine
the fact whether the same product
was ever investigated for any
trade remedy measure at any point
of time in the past.
3.12. The definition of the PUC is
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very important in any anti-dumping
investigation. If the definition
is not specific and is vague or
generic, then there is a
possibility that it may cover
product types which the DI may not
be producing or may not be capable
of producing leading to
overprotection of the DI. Whereas
if the description of the PUC is
too narrow, it may fail to give
relief or protection to the DI. It
may also result in ‘circumvention
of the duties levied’.
3.13. The PUC should be defined
accurately, and in a manner that
it is discernible in terms of
technical and measurable
parameters distinguishable to the
Customs Authorities at the time of
importation. The product in all
its forms, like liquid or solid,
and in all different
strengths/concentrations are to be
covered in the PUC to avoid
circumvention. All
nomenclature/descriptions/ known
names of the product should be
included in the scope of the PUC.
The PUC should be defined in terms
of.
xxxx
3.13.4. tariff classification
(even though the customs headings
are for indicative purposes only).
The PUC has to be frozen at the
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stage of initiation. Product scope
can only be restricted during the
course of the investigation but
cannot be enhanced after the
initiation. If there are any
suggested changes by the
interested parties regarding
exclusions of some part, then this
should be finalized within 3
months from the date of
initiation. The changes could be
made at the stage of the oral
hearing, after receipt of written
submissions and rejoinders with
the specific approval of DG. No
change should be done after this
stage.
xxxx
3.15. The different
grades/form/types/strengths/sizes
of product may not mean different
products. They are subsets of one
product that is proposed to be
investigated and hence is alike as
far as their essential physical &
technical characteristics are
concerned, at best they can
constitute PCNs (discussed in
paragraphs below).
xxxx
3.18. The scope of the PUC can be
modified based on the information
received by the Authority.
However, the amended PUC should be
the basis for determining the
standing of the DI, dumping
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margin, injury margin etc.
xxxx
3.22. PCNs should be defined
taking into account the relevance
and economic significance of
respective PCNs. This is done with
a view to have specific
information on product types and
to enable the Authority to do a
fair comparison (apple to apple
comparison).
xxxx
Treatment of PUC in Different
Types of Investigations
Original Investigation
3.26. The complete process of
defining and describing the PUC as
mentioned above is carried out
during the fresh/original
investigation. It is the
responsibility of the
Investigating team (with the
approval of the DG) to clearly and
accurately define and describe the
scope of the PUC concerned during
the fresh/original investigation
at the stage of consideration of
initiation.
xxxxx
3.35. Certain other factors which
have been considered relevant by
different tribunals are as
follows:
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(i) Commercial substitutability
and manufacturing process;
(ii) Uses, raw materials, and
properties of the products,
(iii) The resemblance in terms of
properties even though there were
substantial impurities in the
domestically produced ‘like
product’;
(iv) If the product is easily
convertible and such a fact is
also recognized by exporters’; and
(v) The difference in raw
materials has not been considered
decisive if the products are
commercially / technically
substitutable.
xxxxxx
3.37. Determination of the PUC and
the ‘like article’ in an anti-
dumping investigation holds the
key to establishing dumping and
injury, and any fallacies in the
same could make the entire
investigation void. Complexities
arise when the PUC involves
multiple types/grades/varieties,
multiple technologies, multiple
processes, different raw
materials, etc. These aspects make
the determination of the PUC and
the like article highly technical;
rendering the investigation itself
very complex. The important
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characteristics required to be
examined while determining “like
article” are similarity of
physical characteristics, end use
of the product, consumer
preference and tariff
classification etc. Two products
may look different in terms of
technology of production, design,
style, quality, etc., yet they
could be considered alike for the
purpose of investigation as long
as they are functionally
substitutable and replaceable in
the market, due to similar end
use, and consumer preference.
xxxxx
3.42. The rationale in the
definition of ‘like article’
within the Rules has to be applied
categorically as soon as the
process of the PUC identification
is completed at the stage of
initiation itself.
xxxxx
3.45. To define the ‘like
article’, the first step is to
look for identical articles. In
the absence of such identical
features, the goods with
characteristics closely resembling
those of the PUC should be seen.
Only if the goods produced by the
DI are found to be not identical,
then other factors such as
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channels of distribution, market
segmentation, the process of
manufacturing, etc., should be
considered in determining the
‘like articles’.
Physical Similarity .
xxxxx
3.46.1. Similarity of physical
characteristics like size, shape,
content, weight, appearance,
taste, grade, standards, age,
strength, purity and chemical
composition.
3.46.2. Verify whether the goods
are classified under the same or
matching tariff classification.
Technical Substitutability:
3.46.3. Technical specifications/
standards3.46.4. Grades, purity, etc.
Commercial Substitutability
3.46.5. Commercial
substitutability refers to
attributes identifiable from
following market behavior:
(i) Are the goods directly
competitive in the market? Do the
goods compete in the same market
sector? Within this sector, how
are the goods positioned? e.g.Page 126 of 140
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Within a market sector, are the
goods similarly positioned?;
(ii) What is the extent to which
the end-user may (or can) switch
between the goods for reasons
other than price? What is the
extent to which participants in
the supply chain are willing to
switch between the goods? e.g.
willingness of participants to
switch between sources may suggest
commercial interchangeability;
(iii) How does price competition
influence consumption? e.g. close
price competition may indicate
product differentiation is not
recognized by the market;
(iv) Are the distribution channels
same or similar?; and
(v) Is the packaging same or
similar? What is the extent of the
differences? Does the packaging
reveal a significant difference in
the goods? Does the packaging
highlight a different sector of
the market?
Functional Substitutability
3.46.6. Functional
substitutability refers to
attributes identifiable from end-
use. They may not by themselves
establish ‘like goods’, but may
provide support to the assessment
of physical & commercial
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substitutability. The DI will have
a tendency to make claims in this
respect, and hence, these
attributes must be examined
objectively
(i) Do the goods have the same or
similar end use? What is the
extent to which the two goods are
capable of performing the same
function? e.g. both a shovel and
an earth moving machine can move
earth;
(ii) Do the goods have
differential value? (Since quality
claims are subjective, objective
evidence like official standards,
or verifiable end-user surveys,
hold higher probative value); and
(iii) Is end-user preference
likely to change in the future,
based on end-user trends and
behaviour in other markets and
countries?
Production Likeness
3.46.7. Different production
processes may produce identical
goods or may create different
product characteristics. A
comparison of the production
process will not itself establish
like goods but may highlight
differences or provide support to
the assessment of other
considerations.
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(i) To what extent are the goods
constructed of the same or similar
materials?
(ii) Have the goods undergone a
similar manufacturing process? If
different, what is the impact of
those differences?
(iii) Are the costs of manufacture
similar? A similarity in the cost
of manufacture may be an indicator
of likeness but is not
determinative.
(iv) Are there any patented
processes or inputs involved?
3.47. Production substitutability
may also be examined. It would
mean that producers/manufacturers
can interchangeably produce the
products within the same facility
then they should be considered
like article, as was held in the
case of aluminum radiators22
wherein the product variants as
such were nor substitutable by the
end user/consumer but they were
being produced by all the
producers interchangeably.
3.48. The quality of the PUC
cannot be claimed to be a valid
ground for claiming product
differentiation as there could be
a substantial element of
subjectivity in such assessment.
However, if the issue of quality
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is such that it can be
demonstrated to lead to technical
implications, it should be
appropriately examined.
xxxx
3.50. The ‘like articles’ have to
be determined in the context of
the applicant DI only. It is
pertinent that if a product is
considered as ‘like article’ then
the industry producing that
particular like article must
necessarily be a part of the
applicant DI whose data is being
considered for various factors
including injury and causal link.
The claim of the DI that some of
the ‘like articles’ are being
produced by other producers (non-
applicants) in the Indian industry
will put to question DI standing.”
102. On perusal of the above Standard
Operating Practices for Trade Remedy
Investigation, it appears that
Designated Authority has not
identified the PUC at the time of
initiating investigation by dealing
with the objections raised by the
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petitioners, more particularly, when
the scope of product under
consideration can be restricted during
the course of investigation but cannot
be enhanced or enlarged after such
initiation. Therefore, Designated
Authority was required to consider the
submissions and objections raised by
the petitioners during investigation
only. It is true that different
grades, forms, types, etc. may not be
in different products in absence of
specific definition of product but
clause 3.1 where Article 2.1 of the
Anti-Dumping Agreement refers to the
“like product” whereas the Act and the
Anti-Dumping Rules use the word “like
article” to indicate product under
consideration which is matter of
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investigation. There is no specific
definition or description of the
product under consideration under the
Anti-Dumping Rules however, it is the
single most important starting point
of an investigation and section 2(d)
defines “like article” to mean a
product which is “like article” or in
absence of “like article” most similar
in characteristics and uses to the
article subject to investigation.
Therefore, while considering the “like
article”, PUC is required to be
freezed at the time of initiation of
investigation only. Therefore,
determination of PUC as “like article”
in Anti-Dumping investigation holds
the key for establishing dumping and
injury and the fallacies in the same
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could lead to the entire investigation
being void. Designated Authority
therefore, was required to determine
the product under consideration at the
initiation of the investigation.
However, at this stage, when the final
findings are yet to be notified by
the Designated Authority in the facts
of present petition, it would be
necessary for the Designated Authority
to hold and come to a conclusion
whether the specialty grades of SPVC
Resins imported by the petitioners can
be considered as “product under
consideration” or not for arriving at
such findings. We have not gone into
the technical aspects of examination
whether specialty grades of SPVC Resin
imported by the petitioners is a “like
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article” or not but have examined the
procedure and process of analysis
adopted by the Designated Authority to
come to the conclusion that specialty
grade SPVC Resins imported by the
petitioners are being produced by the
domestic industry, relying upon the
material that SPVC Resins are capable
of being used for general purpose,
contrary to the Manual of Operating
Practices for Trade Remedy
Investigations placed on record which
also stipulates that scope of PUC can
be modified based on information
received by the authority.
103. It is apparent from the impugned
Addendum Notification that Designated
Authority has accepted what is
provided by the domestic industry
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without any further investigation to
clearly and accurately define and
describe the scope of the PUC to
arrive at the conclusion that the
specialty grade SPVC Resins are
technically and commercially
substitutable and the subject goods
produced by the domestic industry are
“like articles” to product under
consideration imported from subject
countries.
104. We are therefore of the opinion that
Designated Authority ought to have
made further investigation at this
stage only to examine whether
specialty grade SPVC Resin imported by
the petitioners can be considered as
“like article” to become part of the
“product under consideration” imported
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from subject countries within the
scope of section 2(d) of the Act or
not, more particularly when the
Designated Authority has not
considered the data available on
record regarding captive consumption
of specialty grade of SPVC Resins
produced by the Domestic Industries
during the period of investigation.
Designated Authority has based its
finding considering that the SPVC
imported by the petitioners can be
used for general purpose but has
failed to examine as to whether SPVC
Resin produced by domestic industry
other than the specialty grade SPVC
Resin imported by the petitioners can
be used to manufacture CPVC Resin
required for production of pipes for
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conduction of water for human
consumption or not. Designated
Authority has only relied upon the
data placed on record by the
respondent no.6 which could not have
been considered to arrive at a
conclusion that there is no specialty
grade SPVC and hence the question of
excluding the same from PUC does not
arise. Therefore, findings recorded in
Addendum Notification dated 16.12.2024
arrived at by the Designated Authority
are not tenable.
105. In view of the foregoing reasons,
the petition partly succeeds. The
Specialty Grade SPVC Resins imported
by the petitioners for manufacture of
CPVC to be used for manufacture of the
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safe and non-hazardous CPVC pipes and
fittings for potable water supply are
to be excluded from the “product under
consideration” for the purpose of
investigation initiated by the
Designated Authority in absence of any
classificatory investigation carried
out while determining the “product
under consideration” as there is clear
procedural lapse on part of the
Designated Authority as per Manual of
Operating Practices for Trade Remedy
Investigations to come to such
preliminary findings. Respondent
Designated Authority is therefore
directed to exclude specialty grade
SPVC Resins imported by the
petitioners for manufacturing of CPVC
from the scope of PUC in the further
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investigation as such specialty grade
SPVC Resins are neither produced by
the domestic industry nor were they
technically or commercially
substitutable and interchangeable with
the grades commercially produced in
the domestic industry. In view of the
disposal of this petition Civil
Application No1 of 2025 would not
survive and accordingly shall be
disposed of by separate order.
106. Rule is made absolute to the
aforesaid extent. No order as to
costs.
(BHARGAV D. KARIA, J)
(D.N.RAY,J)
At this stage, learned advocate Mr. Ankit
Shah for the respondents prays for stay of the
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NEUTRAL CITATION
C/SCA/15673/2024 CAV JUDGMENT DATED: 25/04/2025
undefined
operation and implementation of the order
pronounced today.
Considering the fact that the respondent
Designated Authority is to pronounce the final
assessment order and has not extended the same
as recorded by us in the order dated
25.03.2025 passed Civil Application No.1 of
2025, request for stay of the operation and
implementation of this judgment is refused.
(BHARGAV D. KARIA, J)
(D.N.RAY,J)
RAGHUNATH R NAIR
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