EXIDE INDUSTRIES LTD. Vs. DESIGNATED AUTHORITY

JUDGEMENT

(1.) The above mentioned appeals are directed against Final Findings dated 7th December, 2001 by the Designated Authority in the Ministry of Commerce, in regard to alleged dumping of lead acid battery and Customs Notification No. 1/2002 -Cus., dated 2 -1 -2002 issued by the Ministry of Finance. Under the final findings, the Designated Authority recommended imposition of anti -dumping duties on Lead Acid Batteries imported from People's Republic of China, Republic of Korea, People's Republic of Bangladesh and Japan. The Ministry of Finance accepted the final findings and imposed duties at the rates recommended in the final findings (under the above mentioned Customs Notification). The first appellant, M/s. Exide Industries Ltd., is a domestic manufacturer lead acid battery, the second appellant, M/s. Rahimafrooz Batteries Ltd., is a manufacturer of said batteries in Bangladesh, and the third appellant, M/s. SBS Enterprises, Calcutta, is an Indian importer of the said batteries from Bangladesh.

(2.) We take up the appeal of M/s. Exide Industries Ltd. first. The grievance raised in this appeal is the exclusion from anti -dumping duty of the exports of "industrial" batteries manufactured by three Chinese manufacturers. Serial No. 1 of Notification No. 1/2002, dated 2 -1 -2002 is reproduced below in order to appreciate the objection : <FRM>JUDGEMENT_273_LAWS(CE)6_20031.htm</FRM>

(3.) The counsel representing the excluded Chinese units have strongly contested the plea made on behalf of the domestic industry. It is their contention that these units, though located in China, are all run according to market principles and are, therefore, not liable to be treated along with other Chinese units; that such units are required to be treated in the same manner as market economy country units, with regard to normal value in view of the amendments under Notification No. 28/2001, dated 31st May, 2001 and Notification No. 1/2002 -Customs (N.T.), dated 4th January, 2002. The learned counsel has submitted that the units in question had furnished full data about all aspects of their production and pricing in reply to the questionnaire of the Designated Authority. They have also filed several documents before this Tribunal, in support of their contentions. It is their contention that though the manufacturing facilities are located in main land China, they are run purely on commercial lines and such units are rightly to be excluded from the scope of non -market economy rule. All these companies have asserted that the Designated Authority was right in extending to them a different treatment. They have also pointed out that the Designated Authority had not committed any legal error in accepting the data filed by these manufacturers. It is also their contention that since Notification dated 15 -7 -1999 had not named China or any other country as non -market economy country, the authority was under no obligation to treat all Chinese exporters as exporters from a non -market economy country. Further, after the issue of Notification dated 31 -5 -2001, the Designated Authority was under legal obligation to give an opportunity to show that their units were run on commercial lines and their data on normal value was acceptable. During the hearing, their counsel vehemently opposed any change in the existing arrangement without giving them notice and without considering their data. It has been submitted that any amendment to the notification without a thorough review of the data and submissions in terms of the opportunity to be provided under notification dated 31 -5 -2001 to the individual units to prove that they are not non -market economy units, would be a denial of natural justice.