SHENYANG MASTSUSHIT S. BATTERY CO. LTD. versus M/S. EXIDE INDUSTRIES LTD. AND ORS.

Citation: [2005] 2 S.C.R. 332 · Decided: 23-02-2005 · Supreme Court of India · Bench: RUMA PAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SHENYANG MASTSUSHIT A S. BA TIERY CO. LTD. 
v. 
MIS. EXIDE INDUSTRIES LTD. AND ORS.· 
FEBRUARY 23, 2005 
B 
H 
I 
[RUMA PAL, ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
' 
' 
,• 
. Customs Tariff Act, 1975; Section 9A/Customs Tariff (identification, 
Assessment and Collection of Anti-dumping duty on Dumped Articles and for 
C determination of injuries) Rules, 1995; Annexu.re 1 to the Rules; Notification 
dated 15.7.99 and ~1.5.2001 notifying amendments in Annexure-i: 
Anti-dumping duty-Filing of petition by respondents/domestic industry 
for initiation of anti-dumping investigation against foreign companies-
Designated Authority held that anti-dumping duty not lev_iable 'as du~ping 
D margin was negative-Challenge to-imposing anti-dumping duty, Tribunal 
observed that the Designated Authority had failed to conduct the normal value 
investigation in accordance with the Rules-On appeal._ held: Sufficient material 
furnished by the foreign-company to justify that it was operating in accortJ.ance 
with market conditions-Tribunal imposed duty on the foreign company without 
examining the injury, if any, caused to the domestic industry by the foreign 
E companies-Finding of the Tribunal is erroneous, hence set aside. 
'Normal value '-Meaning of in the context of anti-dumping duty. 
The question which arose for determination in this appeal was as to 
whether the appellant, a foreign company, manufacturer and exporter of 
F 
l~ad acid batteries in India, operated on Market Economy Principles for 
't'h~ purpose of levy of anti-dumping duty under the Customs Tariff Act 
and the Customs Tariff (Identification, Assessment and Collection of Anti-
Dumping Duty on Dumped Articles and for Determination of Injuries) 
Rules, 1955. 
G 
H 
Appellant-foreign company contended that since the Designated 
Authority did not follow the procedure prescribed either under paragraph 
7 or paragraph 8 of the Annexure I to the Rules, it could not subsequently 
follow the same provisions for the purpose of levying anti-dumping duty 
without serving them any notices. 
332 
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SllENY ANG MASTSUSHITA S. BATTERY CO. L TD.1·. EXIDE INDUS. LTD. 
3 3 J 
Respondents submitted that China was in fact a non-market economy A 
and there was no question of applying paragraph 8 of the Annexure I to 
the Rules as introduced by the second notification for amendment in the 
Rules as the period of investigation was prior to the issuance of that 
notification; that since non-market economy had to be decided country-
wise, any individual foreign company could not be separately represented; B 
and that since the normal value of a non-mark('t economy is country 
specific, uniform rate was applicable to all exporters and it was not open 
to appellant, an individual foreign company to claim that it was run 
according to market econ()my principles. 
Allowing the appeal, the Court 
HELD : 1.1. It is not necessary to decide whether a Company was 
to be treated as a non-market economy during the period of investigation 
or whether the normal value should be decided on a country-wise basis, 
c 
as respondent No. I-domestic industry is not allowed to take up what is 
clearly an inconsistent stand before the Tribunal and also before this Court D 
that the final finding of the Designated Authority could not be sustained 
because it was in clear violation of the Rules as amended by the 
notifications dated 15th July, 1999 and 31st May, 2001. Indeed that was 
the basis on which respondent No. 1 's appeal had been allowed by the 
Tribunal. If the Tribunal was correct, then, even according to the Tribunal, E 
under the second notification dated 31st May, 2001, market driven units 
in non-market. economy countries could prove that they were operating 
according to market principles. This exception has been provided to the 
rule of uniform normal value for all exporters in non-market economy 
countries. (342-F-G-H; 343-A-BJ 
Designated Authority v. Haldar Topsoe AIS, 12000) 6 SCC 626, held 
inapplicable. 
1.2. The only ground on which the Tribunal upset the final finding 
F 
of the Designated Authority is that they had not physically verified the 
information given by the appellant. That was factually erroneous since the G 
appellant-foreign company had already produced sufficient material 
before the Designated Authority to justify the finding that the appellant 
was operating according to market conditions. The Designated Authority 
had already visited the manufacturing units of the appel

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