MIS. ALKALI MANUFACTURERS ASSN. OF INDIA versus DESIGNATED AUTHORITY, D.A.D.A.S. & ORS.

Citation: [2016] 1 S.C.R. 117 · Decided: 07-01-2016 · Supreme Court of India · Bench: DIPAK MISRA · Disposal: Appeal(s) allowed

Judgment (excerpt)

[2016] l S.C.R. 117 
MIS. ALKALI MANUFACTURERS ASSN. OF INDIA 
A 
v. 
DESIGNATED AUTHORITY, D.A.D.A.S. & ORS. 
(Civil Appeal No. 2242 OF 2006 etc.) 
JANUARY 07, 2016 
B 
[DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.] 
Customs Tariff Act, 1995 - s. 9A - Anti-dumping duty on 
dumped articles - Customs Tariff (Identification, Assessment and 
Collection of Anti-Dumping Duty on Dumped Articles and for 
Determination of Injury) Rules, 1995 -
r. 5 - Petition before the 
Designated Authority (DA) on behalf of domestic industry -
Allegation that dumping of caustic soda originated in and exported 
from People's Republic of China and Korea - Anti-dumping 
investigation - Preliminary finding that caustic soda had been 
dumped into India except from one exporter from Korea, HCC at D 
less than its normal value - Issuance of Notification imposing 
preliminary anti-dumping duty - Appeal before tribunal challenging 
determination of DA on anti-dumping duty and imposition of anti-
dumping duty - Tribunal holding that in HCC's case cost was 
correctly determined by DA taking chlorine as a co-product and 
separating its manufacturing cost during the process of manufacture 
c 
E 
of caustic soda at the stage of separation of chlorine and caustic 
soda on the basis of value of production and the same principle 
should have been adopted by DA in the case of domestic industry -
On appeal, held: Tribunal has the jurisdiction to appreciate the 
evidence in entirety and arrive at a conclusion and that having not 
F 
been done and the entire judgment having been based on the 
application of HCC's case and price rise in the price of chlorine, 
order passed by the tribunal set aside - Tribunal directed to decide 
the matter afresh. 
Allowing the appeals, the Court 
G 
HELD: 1.1 The tribunal observed that for arriving at 
dumping in relation to an article, the Designated Authority is 
required to make a fair comparison between the export price 
and the normal value; and that the comparison is required to be 
made at the same level of trade at ex-factory level and in respect 
H 
117 
118 
A 
B 
c 
D 
E 
F 
SUPREME COURT REPORTS 
[2016] 1 S.C.R. 
of sales made at as nearly possible the same time, relying on the 
decision rendered in HCC's case where the DA had compared 
the ex-factory export price and normal value and determined the 
margin of dumping. The tribunal opined that the margin of 
dumping in HCC is different from the margin of dumping from 
other non-cooperative exporters from Korea. The tribunal held 
that in case of HCC, cost was correctly determined by the DA 
taking the chlorine as co-product and separating its manufacturing 
cost during the process of manufacture of caustic soda at the 
stage of separation of chlorine and caustic soda on the basis of 
the volume of production. The same principle should have been 
adopted by the DA in case of domestic industry and therefore, 
identical treatment was not given to domestic manufacturers and 
HCC. The tribunal opined that DA should have apportioned the 
cost up to point of separation on reasonable and equitable basis 
and he should have taken caustic soda and chlorine as co-product 
up to the stage of separation the common cost should have been 
allocated on the basis of volume of production. In case of HCC, 
the DA has done that and thus, two different methods could not 
be adopted for costing of the same product for comparison with 
cost of HCC. [Para 12, 13] [126-H; 127-A-F] 
1.2 Except HCC, the other exporters did not cooperate. 
However, it was the obligation of the complainant to establish 
that there was an injury to the domestic industry. For the said 
purpose, the endeavour was made to establish before the DA 
that it was a by-product and it succeeded in the said attempt. The 
tribunal, on being approached by the 7'" respondent, set aside 
the order and the notification. The reversal took place on two 
counts, namely, the principle determined in HCC's case, and that 
the cost of chlorine was substantial during the said period and, 
therefore, it deserved to be treated as a co-product as per the 
1967 Rules. The approach of the tribunal is fallacious. It observed 
that HCC's case is absolutely different. In such a situation, it should 
G not have mechanically adopted the said principle. It followed a 
general principle of the rise in price but did not dwell upon the 
issue with regard to the concept of "Equal Economic 
Importance". The Equal Economic Importance, is the price 
almost s

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