LexRISHI ROOP POLYMERS PVT. LTD. versus DESIGNATED AUTHORITY AND ADDL. SECRETARY AND ORS.
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A B RISH I ROOP POLYMERS PVT. LTD. v. DESIGNATED AUTHORITY AND ADDL. SECRETARY AND ORS. MARCH 23, 2006 [ASHOK BHAN AND G.P. MA THUR, JJ.] Customs Tariff Act 1975-Schedule /, Sub-headings 3903.90 and 4002.19-Anti-dumping Dut)i on Foreign Articles-Interference by Tribunal- C Scope of--Designated Authority (DA) initiating anti-dumping investigation concerning import of SBR classified under Tariff Entry 4002.19 and recommending imposition of anti-dumping duty thereon-Government issuing a notification imposing duty-DA recording a firm finding that SBR falling under heading 3903. 90 not covered for the purpose of imposing duty-Held, Tribunal erred in holding on its own motion that DA wanted to impose duty D on all grades of SBR falling under sub-heading 4002 or 3903 --Tribunal's finding that anti-dumping duty leviable on SBR falling under sub-heading 3903, set aside. Respondent 3 filed an Anti Dumping Petition before the Designated Authority (DA) against the imports of SBR alleging therein that the import E of SBR from the subject countries was causing injury to the domestic industry manufacturing SBR in India. He furnished details regarding the normal value of the products in the subject countries and the margin of dumping. DA initiated anti dumping investigation against the subject countries concerning imports of SBR classified under custom sub-heading F 4002.19 of schedule I during 1.4.1996 to 31.8.1997. DA ultimately recommended imposition of anti dumping duty. Government accepted the findings and issued a notification imposing anti dumping duty on import of SBR falling under Tariff Entry 4002.19. Appellant's appeals to the Tribunal were rejected except to the extent G of holding that variable anti-dumping duty greater than the dumping margin not be imposed. However Tribunal opined that a fixed duty on all grades of SBR falling under sub-heading 4002.19 as well as 3903.90 be imposed as confining of imposition of anti-dumping duty by DA only to SBR falling under Heading 4002.19 was a clerical omission requiring correction. H 276 - RISHIROOP POLYMERS PVT. LTD. r. DESIGNATED AUTHORITY AND ADDI. SECTY 277 Appellant preferred appeals to this Court. Party allowing the appeals, the Court HELD: I. Having gone through the confidential records produced before the Court and the data for the years 1995-96 and 1996-97 the court A was satisfied that the domestic industry suffered drastic decline in all the B relevant parameters during the period of investigation compared to those of the immediately preceding Financial Year 1995-96. The Court found no justification to take a view other than what had been taken by the Designated Authority and the Tribunal. Accordingly, the findings recorded by the Designated Authority as well as by the Tribunal on this point are C confirmed. (282-C-D) 2. Tribunal after noticing the observations of the Designated Authority in para 7 of its order held that the Designated Authority wanted to impose anti-dumping duty on all grades of SBR irrespective of whether it fell under heading 39.03 or 40.02. However the findings recorded by D the Designated Authority in para 7 of its order clearly indicate that the Designated Authority did not intend to cover SBR which was being imported under sub-heading 3903.90 for the purpose of imposing duty; what the Designated Authority held was, that if the goods were being imported by wrongly classifying them under sub-heading 4002.19, then the Customs Authorities are at liberty and expected to classify the goods E correctly. It was held by the Designated Authority that while giving the import statistics. Respondent No. 3 had submitted information in respect of Custom Heading 4002.19 only; that Chapter 39 covers "Plastic and Articles thereof" whereas Chapter 40 covers "Rubber and Articles thereof' Styrene Butadiene Rubber, as the name suggests, is a synthetic F rubber and would be covered under Chapter 40 and not 39; that as per note no. 2(h) of Chapter 39, synthetic rubbers and articles thereof, which are covered under Chapter 40, do not fall under Chapter 39. The Designated Authority had recorded a firm finding that "Elastomer Resin KHS 68" was not covered for the purpose of imposing duty. The finding recorded by the designated authority was categorical and not a clerical G omission, as has been observed by the Tribunal. It was not correct on the part of the Tribunal to hold on its own motion that "t
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