CENTURY PLYBOARDS I LTD. and ANR. V. THE UNION OF INDIA and ORS.

WP(C)/6568/2017

AI Insights

The case revolves around the imposition of Anti-Dumping Duty (ADD) on melamine imports from various countries, including China, by the designated authority under the Ministry of Finance, Government of India. Century Plyboards I Ltd., the petitioner, challenged the ADD, arguing that the procedure followed by the designated authority was flawed and did not comply with the statutory requirements. The court examined the procedural adherence of the designated authority, the confidentiality of the information used to determine the normal value of melamine, and the substantive arguments regarding the impact of ADD on the domestic industry and the importers.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 736931 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 26-08-2019
• Assessment Year: misc
• Other Referred Cases: Nirma Ltd. Vs. Saint Gobain Glass India Ltd., Haldor Topsoe A/S Vs. Designated Authority, Shenyang Mastsushita S Battery Co.Ltd. Vs. Exide Industries Ltd.
• Laws Referred To: Customs Tariff Act, 1975, Anti-dumping Duty on Dumped Articles and for Determination of Injury Rules, 1995
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: B SARMA; A ROY; RAJIV ARORA
• Assessee Lawyers: ASHOK SARAF
• Keywords: Anti Dumping Duty; Domestic industry; Natural Justice; Melamine Import; Confidentiality of Information
• Section: 9A; 9C; 9B

Judgement Text

"Page No.# 1/75 GAHC010219632017 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : WP(C) 6568/2017 1:CENTURY PLYBOARDS I LTD. and ANR. A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956, HAVING ITS REGD OFFICE AT 6, LYONS RANGE, KOLKATA- 700001 AND FACTORY AT INTER ALIA, VILL- KOKJHAR, PALSBARI, DIST- KAMRUP, ASSAM 2: CENT PLY A DIVISION OF THE PETITIONER NO.1 COMPANY HAVING ITS FACTORY AT VILLAGE KOKJHAR MIRJA PALASHBARI ROAD P.O PALASHBARI DIST- KAMRUP ASSA VERSUS 1:THE UNION OF INDIA and ORS. THROUGH THE SECRETARY , MIN OF FINANCE, DEPARTMENT OF REVENUE, HAVING ITS OFFICE AT NORTH BLOCK, NEW DELHI- 110011 2:THE UNDER SECRETARY TO THE GOVT OF INDIA MIN OF FINANCE DEPARTMENT OF REVENUE-TRU HAVING ITS OFFICE AT NORTH BLOC NEW DELHI- 110011 3:DIRECTORATE GENERAL OF ANTI DUMPING DUTIES (DGAD) JEEVAN TARA BUILDING 4TH FLOOR 5- PARLIAMENT STREET NEW DELHI-110001 Advocate for the Petitioner : DR.ASHOK SARAF Page No.# 2/75 Advocate for the Respondent : BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA Date : 26-08-2019 JUDGMENT & ORDER (CAV) Heard Dr. A. Saraf, learned senior counsel for the petitioners. Also heard Mr. B. Sarma, learned standing counsel for the Customs Department of the Govt. of India for the respondents and Mr. A. Roy, learned counsel for the intervener Gujarat State Fertilizer Corporation as well as Mr. Rajiv Arora, Additional Director General, Foreign Trade, Government of India. 2. The petitioner No.1 is a company incorporated under the Companies Act, 1956 and carries on the business of, inter alia, manufacture of plywood, ply boards, block boards, laminated boards and other products and has a factory at village Kokrajhar in the Kamrup district of Assam, functioning under the name of Cent Ply, which is the petitioner No.2. 3. One of the raw materials used by the petitioners for manufacturing the aforesaid products is melamine. According to the petitioners, the total demand for consumption of melamine in India is approximately 60000 MT per annum, whereas, the installed production capacity of melamine is limited approximately to 15000 MT per annum. In order to bridge the gap between the production capacity and the demand, melamine is required to be imported and it is so imported from various countries included in the European Union, Indonesia, Iran, Japan and People’s Republic of China (in short China) amongst others. 4. In this writ petition, the petitioners are aggrieved by the imposition of anti dumping duty (ADD) on the import of melamine from the aforesaid countries. The notification No. 14/35/2010-DGAD dated 01.02.2012 containing the final findings recommending imposition of ADD for the import of melamine from European Union, Indonesia, Iran and Japan, as well as the notification No.15/17/2014-DGAD containing the final findings sun set review recommending extension of imposition of ADD for import of melamine from China and the notification No. 7/14/2017-DGAD dated 22.09.2017 containing the sunset review investigation interim recommendation for extending the imposition of ADD in respect of Page No.# 3/75 import of melamine from European Union, Indonesia, Iran and Japan, all issued by the designated authority, are being assailed. 5. Consequent thereof, the notification No.48/2012-Customs(ADD) dated 08.10.2012, imposing ADD for import of melamine from European Union, Indonesia, Iran and Japan for a period of five years, notification No.2/2016-Customs(ADD) dated 28.01.2016 imposing ADD for import of melamine from China for a period of five years and notification No.47/2017-Customs(ADD) dated 06.10.2017 by which the imposition of ADD for import of melamine from the European Union, Indonesia, Iran and Japan was extended for a period of one year, were also assailed. 6. During the pendency of the writ petition, the final findings in the sunset review not recommending the imposition of ADD for import of melamine from European Union, Indonesia, Iran and Japan was submitted by the designated authority by the notification No.17/14/2017-DGAD dated 19.2.2018. 7. The implication of the sunset review final findings by the notification No.17/14/2017-DGAD dated 19.2.2018 would be that imposition of ADD for import melamine from European Union, Indonesia, Iran and Japan is not recommended any further and therefore, from the perspective of continued recommendation and imposition of ADD, we are required to look into the recommendation and imposition of ADD for import of melamine only from China. 8. But however, it is the procedure followed by the designated authority in recommending the imposition of ADD that has been assailed by the petitioners in this writ petition, more than the actual determination of the rate at which the ADD is to be imposed. The procedure adopted by the designated authority being the same in respect of the final findings arrived at in all the aforesaid notifications by which recommendations for imposition of ADD were made, in effect, we are required to examine the correctness of the procedure adopted in all such notifications, although the present situation may be that the recommendation for imposition of ADD remains in existence only in respect of import of melamine from China. 9. According to the petitioners the initiation of the investigation by the designated authority on the requirement of recommending and imposing ADD for import of melamine both from the countries under the European Union, Indonesia, Iran and Japan as well as that of China, were made on an application made for the purpose by the intervener Gujarat State Fertilizer Corporation (GSFC). The petitioners are aggrieved to the extent that the designated authority while arriving at the final findings submitted for the purpose had not followed the prescribed procedure under the Customs and Tariff Page No.# 4/75 Act, 1975 (CTA 1975) as well as the Anti-dumping Duty on Dumped Articles and for Determination of injury) Rules, 1995 (ADR 1995). 10. The provision for imposing ADD on dumped articles is provided u/s 9A of the CTA 1975, which provides that where any article is exported to India by an exporter or producer from any other country or territory, commonly referred as the exporting country, at a price less than its normal value, the Central Government may by notification in the official Gazette impose an antidumping duty not exceeding the margin of dumping in relation to such article. For the purpose, an explanation is provided that the margin of dumping means the difference between the export price and the normal price, where again export price means the price of the article exported from the exporting country and normal price means the comparable price in the ordinary course of trade when destined for consumption in the exporting country. Provisions of Section-9A are as follows:- “Anti-dumping duty on dumped articles. – (1) Where any article is exported by an exporter or producer from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importance of such article into India, the Central government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. – for the purposes of this section, - (a) “margin of dumping”, in relation to an article, means the difference between its export price and its normal value; (b) “export price”, in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the conditions as imported, on such reasonable basis as may be determined in accordance with the rules made under Sub-section (6); (c) “normal value”, in relation to an article, means – (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or Page No.# 5/75 (ii) when there are not sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either – (a) comparable representative price of the like article when exported from the exporting country or territory to an appropriate third country as determined in accordance with the rules made under sub- section (6); or(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6) : Provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transshipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.” 11. The very provision that the ADD can be imposed only upon the condition precedent that an article is exported from an exporting country to India at a price less than its normal value, where normal value is the comparable price in the exporting country for its own domestic consumption, the most relevant requirement for imposing ADD would be to first determine the normal value of the article in the exporting country and thereupon determine the price at which such article is exported in the exporting country. In the absence of an appropriate determination of the normal value and the exporting price, no ADD can be imposed in exercise of the powers u/s 9A of the CTA 1975. The imposition of ADD would have to be only upon the condition precedent of there being a difference in the normal value and the exporting price of the article concerned in the exporting country, in contradistinction to a situation where the imported article from the exporting country causes an unwarranted competition to the domestic industry who are also producing the article concerned. Any amount of unwarranted competition that the imported article may cause to the domestic industry on its own would not be a justifiable reason for the authorities to impose an ADD, and for such situation the CTA 1975 provides for other suitable duties for the purpose. 12. Section 9A(1)(c)(ii) again provides that when there are no sales of the article concerned in ordinary course of trade in the domestic market of the exporting country, the comparable representative price of the article concerned when exported from the exporting country to an appropriate third country, or the cost of production of the article concerned in the country of origin Page No.# 6/75 along with reasonable addition for administrative, selling and general cost and for profits as determined in accordance with the rules under sub-section 6, would be construed to be the normal value of the article concerned in the exporting country. It is again provided that if the article concerned is not produced in the exporting country and it is merely being transshipped to the country of export, the normal value shall be determined with reference to its price in the country of origin. 13. Section 9A(1A) further provides that in the event of there being an avoidance of ADD imposed u/s 9A(1), either by altering the description or name or composition of the article subject to ADD or by importing such article in an unassembled or disassembled form or by changing the country of its origin of export to render the ADD ineffective, the Central Government may extend the ADD to such articles also. 14. Section 9A(2) of CTA 1975 provides that pending determination of the normal value and the margin of dumping in relation to any article, the Central Government may impose an ADD on the basis of a provisional estimate of such value and margin. 15. Section 9A(3) of the CTA 1975 provides that in respect of a dumped article, if the Central Government after enquiry is of the opinion that there is a history of dumping which had caused injury or that the importer was or should have been aware that the exporter practices dumping and that such dumping would cause injury and the injury is caused by massive dumping of an article imported in a relatively short period of time and which in the light of the timing and volume of the imported dumped is likely to seriously undermine the remedial effect of ADD, the Central Government by notification may levy ADD retrospectively from a date prior to the imposition of the ADD under Section 9A(2), but not beyond 90 days from the date of the notification under Section 9A(2). In other words, a retrospective ADD can also be imposed in case of massive dumping in a large volume within a very short period of time so as to offset the remedial effect of ADD imposed under Section 9A(2), that is imposition of ADD on the basis of a provisional estimate. 16. Section 9A(4) provides that the ADD chargeable under Section 9A would be in addition to any other duty imposed under the CTA 1975 or any other law for the time being in force. 17. Section 9A(5) provides that the ADD imposed under Section 9A would cease to have effect on the expiry of five years from the date of its imposition, unless revoked earlier, but again provided that it may be extended for a further year of five years from time to time if the Central Government upon a review is of the opinion that cessation of such duty is likely to lead to a continuation or recurrence of the dumping and injury and the period of extension in such case shall commence from the date of the Page No.# 7/75 order of such extension. A further provision is that if the review initiated under the proviso to Section 9A(5) before expiry of the period of five years has not come to a conclusion before such expiry, the imposition of ADD may continue for a further period not exceeding one year, pending the outcome of the review. The provisions of Section 9A(5) is as follows:- “The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.” 18. Section 9A(6) provides that for the purpose of ascertaining and determining the margin of dumping referred under Explanation (a) of Section 9A(1), as well as the provisional estimate of the value and margin referred in Section 9A(2), the Central Government may by a notification in the official Gazette make Rules for the purpose of Section 9A and without prejudice to the generality of the purpose, the Rules may provide for the manner in which the articles liable for ADD may be identified and also for the manner in which the export price and the normal value and the margin of dumping may be determined for the purpose of assessment and collection of the ADD. The provisions of Section 9A(6) are as follows:- “The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the central Government, after such inquiry as it may consider necessary and the Central government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such reles may provide for the manner in which articles liable for any antidumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty. The margin of dumping in relation to an article, exported by an exporter or producer, under inquiry under sub-section (6) shall be determined on the basis of records concerning normal value and export price maintained, and information provided, by such exporter or producer: (6A) Provided that where an exporter or producer fails to provide such records or information, the margin of dumping for such exporter or producer shall be determined on the basis of facts available.” Page No.# 8/75 19. In other words, upon the condition precedent that an article is exported by an exporter or producer of any country to India at a price less than its normal value being satisfied to impose ADD under Section 9A(i) of the CTA 1975 the determination of the normal value, the export price of the exporting country and the margin of dumping that is the difference between the export price and the normal value, would be determined by following the procedure prescribed by the Rules framed under Section 9A(6). 20. Further, Section 9B of the CTA 1975, provides that notwithstanding anything contained in Section 9A, an ADD shall not be imposed under certain circumstances as provided under Section 9B(1)(a) & 9B(1)(b)(i),(ii)&(iii). Such bar upon imposing ADD is subjected to the provision that it would not apply if the ADD had been imposed in respect of any article to prevent an injury or threat of an injury to the domestic industry of a third country exporting the like articles to India. 21. Further, Section 9B(1)(c)(ii) provides that any ADD under Section 9A may not be levied at any time if a satisfactory voluntary undertaking is received from any exporter to revise its prices or to cease exports to the area in question at a dumped price provided the Central Government is satisfied that the injurious effect of dumping is eliminated by such action. 22. Section 9C of the CTA 1975 provides that 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 an appeal shall lie, where 9C(2) provides that such appeal be filed within 90 days of the date of order of the appeal, with a further provision that if the appellate tribunal is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time, the tribunal may entertain the appeal. 23. For the purposes of giving effect to the provisions of Section 9B of the CTA 1975, the Central Government may also make Rules by notification in the official Gazette. 24. In exercise of its powers under Section 9A(6) and 9B(2) of the CTA 1975, the Central Government vide Notification No.2/95-Cus. (N.T.) dated 01.01.1995 as amended by Notification No.44/95-Cus (N.T.) dated 15.07.1999, Notification No.28/2001-Cus (N.T.), dated 13.05.2001, Notification No.1/2002-Cus. (N.T.) dated 04.01.2002, Notification No.101/2003-Cus (N.T.) dated 10.11.2003, Notification No.15/2011-Cus (N.T.) dated 01.03.2011, Notification No.86/2011-Cus (N.T.) dated 01.12.2011 and Notification No.6/2012-Cus. (N.T.) dated 19.01.2012 had framed a set of Rules called the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (which had already been referred as ADR 1995). Page No.# 9/75 25. Rule 2(b) of ADR 1995 defines ‘domestic industry’ to mean the domestic producers as a whole engaged in the manufacture of the article concerned and any activity connected therewith, except when such producers are related to the exporters or the importers of the alleged dumped article or are themselves importers thereof and in such event the term domestic industry would refer to the rest of the producers who are either not related to the exporters or importers or are themselves not importers of the article concerned. Explanation (i) & (ii) to Rule 2(b) clarifies that a producer shall be deemed to be related to the exporters or importers if, (a) one of them directly or indirectly controls the other; or (b) if both of them are directly or indirectly controlled by a third person; or (c) if together they directly or indirectly control a person and the effect of the relationship is such as to cause the producers to behave differently from the non-related producers where a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restraint or direction over the later. 26. Rule 2(c) of ADR 1995 provides that the interested party includes an exporter or a foreign producer or the importer of an article which is subjected to an investigation for being dumped in India, or a trader or a business association a majority of the members of which are producers, exporters or importers of such an article; the government of the exporting country; and a producer of the like article or a trade and business association which produced the like article in India. Again Rule 2(d) provides that like article means an article which is identical or alike in all respects with the article under investigation. 27. Rule 3 of ADR 1995 provides that the Central Government may by a Notification in the Official Gazette appoint a person not below the rank of a Joint Secretary to the Government of India or such other person, as the Government may think fit as the Designated Authority for the purpose of the Rules. 28. Rule 4 of the ADR 1995 provides that it shall be the duty of the designated authority to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; to identify the article liable for ADD; to submit the findings, provisional or otherwise to the Central Government as to the normal value, export price and the margin of dumping in relation to the article under investigation and the injury or threat of injury to an industry established in India consequent upon the import of such article; to recommend to the Central Government the amount of ADD equal to the margin of dumping or less, which if levied would remove the injury to the domestic industry and the date of commencement of such duty; and further to review the need for continuance Page No.# 10/75 of ADD. 29. Rule 4 of the ADR 1995 makes it imperative for the Designated Authority to follow the following steps: (i) To investigate the existence of any dumping in relation to and import of any article and thereupon to identify the article liable for ADD. (ii) To determine the normal value, export price and margin of dumping of the articles under investigation and also the injury or threat of injury to an industry established in India consequent upon such import. (iii) To recommend the amount of ADD. (iv) To review the need for continuance of ADD. 30. As defined under Sections 9A(1)(c), 9A(1)(b) and 9A(1)(c) respectively of CTA 1975, the normal value would mean the price of the article under investigation when destined for consumption in the exporting country, the export price would mean the price at which the article under investigation is being exported and the margin of dumping would mean the difference between the normal value and the export price of the article under investigation. Accordingly, while discharging its duties under Rule 4 of ADR 1995 it would be imperative for the designated authority to determine the normal value of the article under investigation in the exporting country and also the export price at which the article is exported by the exporting country and in the absence of any such proper determination, the existence, degree and the margin of dumping cannot be determined. Accordingly, if the normal value, export price and margin of dumping is not determined in the proper manner as required under the Rules, the jurisdiction of the Central Government to impose ADD would be unavailable. Further as the amount of ADD imposed cannot exceed the margin of dumping, hence the requirement of a proper determination of the margin of dumping, which again involves a proper determination of the normal value and the export price cannot be diluted or brushed aside 31. Further Rule 4 of the ADR 1995 do impose a further duty upon the designated authority to review the need for continuance of ADD. When the provisions of Rule 4 requiring a review is read together with the provisions of Section 9A(5) of CTA 1975, the review would mandatorily be required to be undertaken atleast prior to the expiry of five years of levying the ADD. Having said so, a reading of Rule 4 of ADR 1995 and Section 9(5) of CTA 1975 also shows that such review can be undertaken Page No.# 11/75 at any time after levying of the ADD and upon such review the levy of the ADD can also be revoked at any time even prior to the completion of the five years since the levy. 32. A reading of Rule 4 of ADR 1995 and Section 9(5) of CTA 1975 also leads to an inference that both for the purpose of revoking the ADD prior to the expiry of five years as well as to continue with ADD after expiry of the five years for a further period, requires a review to be undertaken by the designated authority under Rule 4. When a review is required to be undertaken for either of the purpose, all the provisions of Rule 4 would again have to be followed, meaning thereby that the requirement of an investigation as to the existence and degree of dumping and submission of a finding provisional or otherwise as regards the normal value, export price and the margin of dumping of the article under investigation as well as the recommendation of the amount of ADD to be levied for removing the injury to the domestic industry would have to be undertaken by the designated authority. 33. The scheme of Rule 4 of the ADR 1995 leads us to understand that the normal value, the export price and the margin of dumping once determined cannot continue in perpetuity and requires a re-determination from time to time depending upon the prevailing facts and circumstance. The process of undertaking the review apart from being a procedural requirement, in our view would also be substantive requirement. 34. The provision of Rule 4 of ADR 1995 are as follows: “Duties of the designated authority. – (1) it shall be the duty of the designated authority in accordance to import of any articles- 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 finding, provisional or otherwise to Central Government as to – (i) normal value, export price and the margin of dumping in relation 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. Page No.# 12/75 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) to review the need for continuance of anti-dumping duty.” 35. Rule 5 of the ADR 1995 provides that except as provided under Rule 4, the Designated Authority shall initiate an investigation only upon receipt of a written application by or on behalf of the Domestic Industry and such application shall be supported by evidence of dumping, injury and where applicable a causal link between the dumped import and alleged injury. The investigation shall not be initiated upon such application unless it is determined by the Designated Authority that the application has been made by or on behalf of the domestic industry and further that the domestic producers expressly supporting the application account for atleast 25% of the total production of the article under investigation and further the Designated Authority arrives at a satisfaction that there is sufficient evidence of there being dumping, injury and where possible a casual link between the dumped import and the alleged injury. Further notwithstanding the requirement of initiating the investigation upon an application being made by or on behalf of the domestic industry, the Designated Authority may also suo motu initiate an enquiry if it is satisfied from the information received from the Commissioner of Customs or from any other source that sufficient evidence exists as to the existence of dumping, injury and where applicable a causal link between the dumped import and alleged injury. But in any event, it is mandatory for the Designated Authority to notify the Government of the exporting country before initiating an investigation under Rule 5. 36. The provisions of Rule 5 of ADR 1995 are as follows: “Initiation of investigation. – (1) Except as provided in sub-rule (4), the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. (2) an application under sub-rule (1) shall be in the form as may be specified by the designated authority and the application shall be supported by evidence of – (a) dumping (b) injury, where applicable, and Page No.# 13/75 (c) where applicable, a casual link between dumped imports and alleged injury. (3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless – (a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like produce, that the application has been made by or on behalf of the domestic industry: Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the link article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding – (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation. - for the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expression either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo moto if it is satisfied from the information received from the Commissioner of Customs appointed under the customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause(b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation.” 37. Rule 6 of the ADR 1995 provides for the principles governing the investigations to be made by the designated authority under Rule 4. Upon initiating an investigation to determine the existence, Page No.# 14/75 degree and effect of any alleged dumping of any article, the designated authority shall issue a public notice notifying its decision to initiate the investigation and the notice shall contain inter-alia adequate information on the name of the exporting country/countries and the article involved; the date of the initiation of the investigation; the basis on which dumping is alleged in the application under rule 5; the summary of the factors on which allegation of injury is based; the address and the time limit of submitting representation by the interested parties. The public notice be forwarded to the known exporters of the articles alleged to have been dumped, the Governments of the exporting countries and other interested parties. A copy of the application made by the domestic industries under Rule 5(1) shall also be provided to the known exporters or the concerned trade association where the number of exporters is large and to the Governments of the exporting countries, with further provision that the copy of the application be also made available to any other interested party who may make a request for it in writing. Further the Designated Authority may also issue a notice calling for any information in such form as may be specified from the exporters, foreign producers and other interested parties and in such event the information called for shall be furnished within thirty days from the receipt of the notice or within any such extended period, if allowed. The notice calling for the information would be deemed to have been received one week from the date on which it was sent by the designated authority. Furthermore, under Rule 6(5) the designated authority shall also provide opportunity to industrial users of the article under investigation and the representative consumer organizations in cases where the article is commonly shown at the retail level, to furnish information which would be relevant to the investigation regarding dumping, injury where applicable and casuality. The evidence presented by one interested party to the designated authority shall be made available to the other interested party participating in investigation and in the event an interested party refuses or otherwise does not provide the necessary information within a reasonable period or significantly impedes the investigation, the designated authority may record its findings on the basis facts available to it and make the recommendation to the Central Government. 38. The essential requirements of Rule 6 of the ADR 1995 can be culled out to be as follows: 1. There shall be public notice by the designated authority notifying the name of the country/countries and containing the basis of the allegation of dumping contained by the domestic industry in their application. 2. The copy of the public notice be forwarded to the (a) known exporters, (b) the Governments Page No.# 15/75 of the exporting countries and (c) the other interested parties, where interested party also includes an importer of the article under investigation. 3. The industrial user of the article under investigation and the representative consumer organizations where such article is commonly shown at the retail level are also required to be provided with an opportunity to furnish information to the designated authority which would be relevant for the investigation regarding dumping injury and casuality. 39. From the aforesaid requirement provided under Rule 6 of ADR 1995 it can be inferred that the concept of levying ADD is not only to protect the domestic industries from injury being caused resulting from dumping of an imported article, i.e. the exporting country exports such article to India at a price lower than the normal value of the article concerned in the exporting countries, but at the same time it is also to ensure that the domestic industry while making application under Rule 5(1) requiring an investigation of dumping do not provide any incorrect information while calling for such levy of ADD, which may be prejudicial to the interested parties. The requirement of providing the interested parties, amongst others, with the public notice and the notice calling for any information and also a copy of the application made by the domestic industry, with the further requirement of providing all such evidence made available by one interested party to all other interested parties, is itself is an indication that the views and materials provided by the interested parties are also of importance to be taken into consideration by the designated authority while making its recommendation. Equally important would also be the views that the interested parties may express as to the correctness of the information made available by the domestic industries in their application under Rule 5(1) or at any stage in course of the investigation. 40. The provision of Rule 6 of the ADR 1995 are as follows: “Principles governing investigations. – (1) the designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; Page No.# 16/75 (iv) a summary of the factors on which the allegation of injury is bases; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views knows. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to- (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries; Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefore in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation : For the purpose of this sub-rule, the noticed calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. (5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into Page No.# 17/75 consideration by the designated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances.” 41. But again Rule 7 of the ADR 1995 provides that notwithstanding anything contained in Rule 6(2) which pertains to the requirement of forwarding the public notice, amongst others, to the interested parties, Rule 6(3) which pertains to the requirement providing the copy of the application under Rule 5(1), Rule 6(7) which pertains to making available the evidence provided by one interested party to the other interested parties, Rule 12(2) which pertains to issuing a public notice containing the preliminary findings, Rule 15(4) which pertains to intimating the acceptance of an undertaking by any exporter and suspension of termination of the investigation and Rule 17(4) which pertains to the requirement of issuing a public notice by the designated authority containing the final findings, the copies of the applications of the domestic industry received under Rule 5(1) or any information provided to the designated authority on a confidential basis by any of the parties in course of the investigation shall, upon the designated authority being satisfied as to its confidentiality, be treated by the designated authority to be confidential and no such information upon being satisfied to be confidential be disclosed to any other party without specific authorization of the party providing such information. Rule 7(2) again requires that the Designated Authority may require the parties providing information on confidential basis to furnish a non confidential summary thereof, while Rule 7(3) requires that if the Designated Authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosures in a generalized or summary form, such information over which confidentiality is claimed may be disregarded. 42. Upon reading the provisions of Rule 7, sub rule 1, 2 and 3, it is discernible that all such information that may be provided by the domestic industry under Rule 5(1) does not become confidential information straightaway merely because the provisions of Rule 7(1) of the ADR 1995 may have been invoked. Rule 7(1) is not a declaratory provision so as to provide that all such information Page No.# 18/75 provided in the application under Rule 5(1) of the ADR 1995 by the domestic industry are confidential. Rule 7(1) is an enabling provision where any of the parties to the investigation, not merely confining to the domestic industry making application under Rule 5(1), to make a claim that any or all the information provided by it to the designated authority be treated as confidential. In the event the designated authority with regard to any such information or a part thereof provided to it by the domestic industry or any other party is satisfied as to its confidentiality, such information be treated by the designated authority to be confidential and no such information shall be disclosed to any party without authorization of the party providing such information. But a condition precedent to treat any such information or a part thereof as confidential is that the designated authority is mandatorily required to arrive at its satisfaction that the information or the part thereof is confidential. In the absence of any such satisfaction by the designated authority, it cannot be construed that merely by referring to the provisions of Rule 7(1) of ADR 1995 the information contained in the application of the domestic industry made under Rule 5(1) would be confidential. But again it also has to be understood that the satisfaction arrived at by the designated authority would also have to be a part of the record of the process of the investigation. Further, Rule 7(2) provides that the party requesting for confidentiality is required to furnish a non confidential summary thereof, where Rule 7(3)provides that notwithstanding the requirement of furnishing a non confidential summary, if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosures in a generalized or summary form, such information over which confidentiality is requested is to be disregarded. 43. It is a clear provision of Rule 7 of ADR 1995 read as a whole that the party requesting for confidentiality either satisfies the designated authority as regards the claim for confidentiality, for which the designated authority would be required to record its satisfaction. If such satisfaction is not arrived at by the designated authority, the information over which request for confidentiality was made would not be treated to be confidential. On the other hand, if the designated authority arrives at a satisfaction as regards the acceptance of the claim for confidentiality, the supplier of the information would be required to provide a non confidential summary in a generalized or a summary form of such information which had been accepted to be confidential. 44. In the event of either of the two requirements being not satisfied, i.e. either the designated authority was not satisfied with the claim for confidentiality, or the supplier of the information is either Page No.# 19/75 unwilling to make the information public or unwilling to authorize the disclosure of the information in a generalized or summary form, such information over which the request for confidentiality was made is to be discarded and not be taken into consideration in arriving at any finding in the course of the investigation. 45. Rule 7 of the ADR 1995 are as follows: “Confidential information- (1) notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon the designated authority being satisfied as to its confidentiality, be treated as such by it and not such information shall be disclosed to any other party without specific authorization of the party providing such information. (2) The designated authority may require the parties provided information on confidential basis to furnish non-confidential summary thereof and if,k in the opinion of a party providing such information, such information is not susceptible of summary, such party may submit to the designated authority a statement of reasons why summarization is not possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, it may disregard such information.” 46. In view of the above interpretation of Rule 7(1) of the ADR 1995, vis-à-vis the confidentiality of the information provided, amongst others, by the domestic industry in their application under Rule 5(1), the provisions of Rule 6(3) requiring the designated authority to provide a copy of the application under Rule 5(1) to, amongst others, the interested parties, would now have to be read together with Rule 7(1), as interpreted hereinabove. 47. Rule 8 of the ADR 1995 are as follows: “Accuracy of the information. – Except in cases referred to in sub-rule (8) of rules 6, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are bases.” Page No.# 20/75 48. Rule 8 of the ADR 1995 provides that the designated authority in course of its investigation satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based. 49. The provisions of Rule 6(2) of the ADR 1995 requiring the copy of the public notice to also be forwarded to the interested parties, the provisions of Rule 6(6) requiring the designated authority to allow an interested party to orally present any such information which may be relevant to the investigation and if taken into consideration to be subsequently reproduced in writing, the provisions of Rule 6(7) to make the evidence of one interested party made available to the other interested parties and the provisions of Rule 8 requiring the designated authority to satisfy itself as regards the accuracy of the information supplied by the interested parties, on a conjoint reading leads to an inference that in course of the investigation by the designated authority, the all such interested parties are mandatorily required to be provided with the opportunity to present or supply any such information as it may desire and the designated authority upon being satisfied as regards its accuracy is required to take the same into consideration while arriving at the normal value, the export price and the margin of dumping by the exporting countries. Although the investigation may be initiated by the designated authority either suo moto or upon an application by the domestic industry under Rule 5(1), but in course of the investigation the information presented or supplied by the interested parties, amongst others, if it is found to be accurate as per the satisfaction of the designated authority, would also have to be taken into consideration. 50. Rule 9 of the ADR 1995 enables the Designated Authority to carry out the investigation in the territories of other countries, if the circumstances of the case so warrants, provided that the Designated Authority obtains the consent of the person concerned and upon being notified the concerned Government does not object to such investigation. 51. Upon following the procedure provided under Rule 6(1) to Rule 6(9) of the ADR 1995, an article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstance the designated authority shall determine the normal value export price and the margin of dumping by taking into account, inter-alia, the principles laid down in Annexure-1 to the ADR 1995. 52. As per Rule 11 of the ADR 1995, the designated authority shall also record a finding that the import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. In doing so the designated Page No.# 21/75 authority shall determine the injury to the domestic industry, threat of injury to the domestic industry, material retardation to the establishment of a domestic industry and a casual link between the dumped imports and injury by taking into account all relevant facts, including the volume of dumped imports, their effect on the price in the domestic market and such determination be made in accordance with the principles set out in Annexure-2 to the ADR 1995. 53. Upon determining the normal value, export price and the margin of dumping and further upon determining the injury or threat to injury that would be caused to domestic industry, including the material retardation to the establishment of domestic industry and the casual link between the dumped imports and the injury, a preliminary finding is required to be recorded by the domestic industry under Rule 12 of the ADR 1995, which amongst others, shall contain the margins of dumping, the injury determination and the main reasons leading to such determination. Rule 12(2) further requires that the designated authority shall issue a public notice recording its preliminary findings. After recording the preliminary findings by the designated authority, the Central Government may impose a provisional duty not exceeding the margin of dumping, but such duty shall not be imposed before expiry of sixty days of the public notice by the designated authority regarding its decision to initiate the investigation, which again may be extended to nine months at the request of the exporters. 54. Rule 14 of the ADR 1995 again provides that the designated authority may by issuing a public notice terminate an investigation immediately, if it receives a request in writing from the domestic industry; is satisfied that evidence of dumping to justify the continuation of investigation is not sufficient; the margin of dumping is less than two percent of the export price; the volume of import, actual or potential is less than three percent from a particular country unless the countries which account for less than three percent would collectively be more than seven percent; and where the designated authority determines that the injury is negligible. Rule 15 of the ADR 1995 again provides for a suspension or termination of the investigation in the event the exporter furnishes an undertaking in writing that no exports of the article are to be made to India on dump prices or where the exporter undertakes to revise the prices so that the injurious effect of dumping is eliminated. 55. Rule 16 of the ADR 1995 provides that the Designated Authority shall, before giving its final findings, inform all the interested parties of the essential facts under consideration which form the Page No.# 22/75 basis of its decision. The requirement of Rule 16 to provide the interested parties with the essential facts under consideration which form the basis of its decision when read with Rule 12, where Rule 12 provides for as to what to be the contents of the preliminary findings, leads us to a conclusion that the essential facts under consideration which form the basis of the decision would also include (a) the margins of dumping established and an explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (b) the considerations relevant to the injury determination; and (c) the main reasons leading to the determination. 56. Accordingly, the information required to be provided to all the interested parties under Rule 16 would not only be the determination made of the normal value, export price and the margin of dumping under Rule 10, but also an explanation of the reasons for the methodology used in arriving at the determination of the normal value and the export price, and also the determination of the injury caused to the domestic industry by the import of the dumped article as well as the relevant considerations which were taken into account in arriving at the determination of the injury and further the main reasons leading to the determination of the normal value and the export price and also the injury caused to the domestic industry by the import of the dumped article. 57. The requirement of Rule 16 for the disclosure of the information in our view is also in conformity with the principles of natural justice. As the imposition of the ADD has a direct consequence upon the interested parties, who are also the importers of the dumped article, a disclosure of the information of the essential facts under consideration which formed the basis of the decision of the Designated Authority gives the interested parties an opportunity to present their view if any such essential facts were taken into consideration were otherwise ought not have been taken under the law or in the facts and circumstances of the case or such essential facts taken into consideration were factually incorrect. 58. We have taken note of that in the procedure adopted in the instant case although the designated authority had given an opportunity of hearing to the interested parties/ importers, including the present petitioners, but neither the essential facts taken into consideration which formed the basis of the decision of the designated authority, nor the normal value, export price, the margin of dumping as well as the determination of the injury to the domestic industry and the non injurious price were provided to the interested parties/importers prior to such opportunity of hearing been given. Page No.# 23/75 59. Rule 16 of the ADR 1995 is as follows: “Disclosure of information. – The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision.” 60. Rule 17 of the ADR 1995 provides that the Designated Authority 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 findings as to the normal value, export price, and the margin of dumping of the article; whether the import of the article into India causes or threatens material injury to any industry established in India or materially retards the establishment of an industry in India; or whether a casual link exists between the dumped imports and the injury; or also whether any retrospective levy of ADD is called for and if yes the reasons thereof. The final finding is also required to provide for any such recommendation of the amount of duty (ADD) which if levied would remove the injury caused to the domestic industry. 61. A reading of Rule 17 clearly shows that the final findings would contain the normal value, export price and the margin of dumping of the article as well as the amount of injury that the domestic industry may suffer because of the import of the dumped article and also the amount of duty which if levied remove the injury to the domestic industry. In other words, ADD would be leviable when the export price of the article imported in the exporting country would be determined by the designated authority to be less than the normal value of such article in that country and the amount of ADD to be levied would be such that it would remove the injury that may be caused to the domestic industry because of the import of the dumped article. 62. Rule 23 of the ADR 1995 provides that any ADD imposed under Section 9A of the CTA 1975 shall remain in force so long as and to the extent necessary to counter act the dumping which is causing the injury. Rule 23(1A) provides that the designated authority shall review the need for continuing with imposition of ADD, where warranted, on its own initiative or upon a request by any interested party who submits positive information substantiating the need for such review, where a reasonable period of time had elapsed since the imposition of the ADD. But again Rule 23(1B) provides that notwithstanding anything contained in sub Rule 1 or 1A of Rule 23 the ADD levied under the Act shall require effective for a period of five years from the date of its imposition, unless the designated authority upon a review initiated before the expiry of the period of five years, either on its own initiative or a request by or on behalf of the domestic industry, comes to a conclusion that the Page No.# 24/75 discontinuance of the ADD at the end of the five years period would lead to a continuation or recurrence of dumping and injury to the domestic industry. 63. Rule 23 clearly provides that ordinarily the period of imposition of ADD would be five years, which can be reviewed by the designated authority prior to the expiry of five years either on its own initiative or upon a request by an interested party, or may continue beyond the period of five years upon a review being made by the designated authority on its own initiative or upon an application by the domestic industry provided the review is initiated before expiry of the period of five years. Rule 23(3) further makes it implicit that the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall mutatis mutandis be applicable also in case of the review. In other words, the complete basic procedures to be followed in case of imposing the ADD under Section 9A of the CTA 1975 are also required to be followed in the event of a review, either to withdraw or to continue the ADD, which may again be either on the own initiative of the designated authority or upon a request by the interested party for withdrawal or by the domestic industry for continuance of the ADD, as the case may be. 64. The other provisions of the ADR 1995 are not discussed as they are found not be relevant for the purpose of deciding the issues involved in the present writ petition, except for the provisions of Annexure-1, Annexure-2 and Annexure-3 to the ADR 1995, which lays down the principles and procedure to be followed for determining the normal value, export price and the margin of dumping, determination of injury and determination of non injurious price, respectively. 65. Annexure-1 to the ADR 1995 lays down the principles governing the determination of normal value, export price and the margin of dumping. Paragraph-1 to Annexure-1 provides that the elements of cost referred to in the context of determination of normal value shall normally be determined on the basis of records kept by the exporter or producer under investigation, provided that the records are kept in accordance with generally accepted principles of accounting of the exporting country. In course of the investigation the designated authority shall consider all available evidence that may be made available by the exporter or the producer. The designated authority while arriving at the constructed export price shall give due allowance for costs incurred between imports and resale and for profits, which would also include the duties and taxes. Paragraph-6 of Annexure-1 provides that while arriving at the margin of dumping the designated authority shall make a fair comparison between the export price and the normal value and such comparison be made at the same level of trade, normally at the ex factory level and in respect of sales made as merely as possible at the same time. Page No.# 25/75 66. Paragraph-7 of Annexure-1 deals with the situation in the case of imports from non market economy countries, where certain countries including China, are named as the non market economy countries. Paragraph-7 provides that for the purpose of the non market economy countries the normal value shall be determined on the basis of the price or constructed value in a market economy third country, or the price from such third country to other countries, including India. Paragraph-7 further provides that in a situation where it is not possible to determine the normal value in a non market economy country in the manner indicated above, it may be determined on any other reasonable basis, including the price actually paid or payable in India for the like product, duly adjusted if necessary to include a reasonable profit margin. In the event the designated authority selects a third country for the purpose, which again has to be done in a reasonable manner, the parties to the investigation shall be informed of such selection without any unreasonable delay and shall be given a reasonable period of time to offer their comments. 67. A reading of the provisions of Paragraph-7 of Annexure-1 also shows the provision of an alternative principle in respect of non market economy countries that wherever it is not possible to determine the normal value on the basis of the price or constructed value in a market economy third country and further the normal value or the export price cannot also be determined on the basis of records kept by the exporter or producer under investigation, the method of accepting the price actually paid or payable in India for the like product after due adjustment if necessary to include a reasonable profit margin, would also be an acceptable method of determining the normal value of the article under investigation in the non market economy exporting country. 68. Annexure-2 to ADR 1995 provides for the principles for determination of the injury or threat of material injury to the domestic industry as well as the principles for arriving at a casual link between the dumped imports and the injury. A determination of an injury shall involve an objective examination of the effect of the dumped imports on the prices in the domestic market for the like article and also the consequent impact of the import on the domestic producers. The designated authority is also required to consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative in comparison to the production or consumption of the article in India and also whether there has been a significant price under cutting by the dumped imports as compared to the price of the product in India or whether the effect of such imports would otherwise lead to a depression in the prices to a significant degree or to prevent increase of price which otherwise would have occurred to a significant degree. A further provision of Annexure- 2 is that a determination of a threat of material injury shall be Page No.# 26/75 based on facts and not merely on allegation, conjecture or remote possibility and the change of circumstance which would result in an injury being caused by the dumping must clearly be foreseen and be imminent. The factors to be considered for such determination are whether there is any significant rate of increase of the dumped imports into India, whether there is any substantial increase in the capacity of the exporter or whether the imports are entering at a price which may cause a depressing effect on the domestic prices. 69. Annexure-3 to the ADR 1995 provides for the principles for determination of the non injurious price. Annexure-3 provides that for the purpose of determining the non injurious price, the designated authority shall determine the fair selling notional price by considering the information or data relating to the cost of production for the period under investigation in respect of the producers constituting the domestic industry and further a detailed analysis or examination and reconciliation of the financial and cost records maintained by the domestic industry are required to be carried out. Annexure-3 specifically provides that the following expenses of the domestic industry shall not be considered while assessing the non injurious price: a) research and development provision other than products specific research as claimed and substantiated; b) the non injurious price is to be determined at ex factory level without including the post manufacturing expenses such as commission, discount, freight-outward etc.; c) excise duty, sales tax and other tax levies on sales; d) expenses on job work done for other units; e) royalty unless related to technical knowhow for the product; f) trading activity of product under consideration or g) other non cost items like bad debts, donations, loss on sale of assets, loss due to fire, flood etc. 70. From a reading of the provisions of Annexure-1 , Annexure-2 , and Annexure-3 it is discernible that the provisions of the ADR 1995 itself provides for the procedure and principles to be followed by the designated authority in determining the normal price, export price and margin of dumping; for determining whether any injury would be caused to the domestic industry as a result of the import of the dumped article; and further for determination as to what would be the non injurious price for the Page No.# 27/75 like article of the domestic industry. All the principles and procedures provided under Annexure-1, Annexure-2 and Annexure-3 appears to be based upon sound economic, accounting and rational concepts and therefore a deviation thereof, more particularly as regards the principles and procedures to be followed, would lead to a incorrect determination which may adversely affect either the domestic industry or the interested parties. 71. A further relevant provision in the context of the issues raised in the writ petition would be Section 9C of the CTA 1975 which provides for an appeal before the ‘Customs, Excise and Gold Service Tax Appellate Tribunal’ against any order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to the import of any article. 72. Dr. A. Saraf, learned senior counsel for the petitioner refers to the Marrakesh Agreement establishing the World Trade Organization 1994 (WTO 1994), and the General Agreement on Tariffs and Trade (GATT) 1994 and points out that Article VI of GATT 1994 provides for anti dumping and countervailing duties and it disapproves the practice of dumping, by which products of one country are introduced to the commerce of another country at a price less than the normal value of the products in the exporting country. It is stated that the WTO arrived at several multi trade agreements pursuant to GATT 1994 including the Anti Dumping Agreement 1994 (ADA 1994), which provides for a detailed guideline governing the application of Article VI of the GATT 1994. It is further stated that the guidelines provided under ADA 1994 and Article 9 of the WTO Agreement assumes significance, relevance and supremacy over any other municipal rules and procedures and the guidelines are followed by the member nations in the event of there being any dispute on the scope, interpretation, understanding and application of the obligations and prohibitions in implementing the (ADD). 73. According to Dr. Saraf, under no circumstance the ADD that may be levied can exceed the margin of actual dumping and that the ADD shall remain in force only for and to the extent to counteract the dumping which is causing the injury. 74. Accordingly, it is the contention of Dr. Saraf that even Section 9A of the CTA 1975 and the provisions of ADR 1995 does not give the discretion to the respondent authorities to impose ADD in excess of what is provided strictly by following the provisions and the procedures prescribed therein. 75. Dr. A. Saraf, learned senior counsel for the petitioners raises a contention that the intervener GSFC, at whose behest the ADD had been imposed for import of melamine is in fact not a domestic industry inasmuch as, GSFC is admittedly also an importer of melamine, although such imports may be from countries other than from China, in whose respect an investigation is made and Page No.# 28/75 is also the subject matter of the writ petition. According to Dr. Saraf, neither Rule 2(b) of the ADR 1995 nor Article 4 of the WTO 1994 makes it an exception that an importer of melamine from a country other than the country under investigation would not be construed to be an importer and for it to be an importer the import of melamine has to take place only from the country under investigation. In other words, it cannot be an acceptable situation that a domestic industry if it also imports from any other country other than the country under investigation would continue to remain a domestic industry vis-à-vis the importers who import the article concerned from the country under investigation. It is contended that accordingly the conclusion of the designated authority even in the final findings as per notification No.7/14/2017-DGAD dated 19.02.2018 that under Rule 2(b) of the ADR 1995 the intervener GSFL continues to be a producer undertaking production inspite of it having imported the melamine from a country other than the subject country, is therefore erroneous. Dr. Saraf by referring to the final findings in the sunset review of the designated authority in the notification dated 15.12.2015 contends that the conclusion of the authority that even though GSFC had imported and sold the subject goods, but its focus had not turn to imports and the company is not behaving like an importer trader and therefore, in view of the authority, GFSC’s behaviour even as of now is that of producer is contrary to Article 4 of the WTO 1994 and Rule 2(b) ADR 1995. 76. It is also a contention of Dr. A. Saraf, learned senior counsel that the designated authority while recommending the imposition of ADD, had not brought about sufficient positive evidence on the constructed normal value in the countries of export and has simply accepted the constructed normal value as provided by the applicant domestic industry i.e. GSFC. 77. Further according to the petitioners, the respondent authorities having determined the non- injurious price/normal value of melamine in the domestic industry in terms of US dollars and having recommended ADD at the rate of 331.10 USD per metric ton at an exchange rate of Rs.60.60 to 1 USD, an anomalous situation has arisen to the effect that when there is a downward movement in the exchange rate of INR, and the ADD is fixed at a given amount in USD per metric ton, the importers of melamine are required to pay a higher amount of ADD in terms of INR and secondly, the import price of melamine also becomes higher in terms of INR. A payment of higher amount for import necessarily implies that the margin of dumping had been reduced, but for such reduced margin of dumping the ADD required to be paid correspondingly became higher. 78. According to Dr. Saraf, learned senior counsel, the procedure that the respondent authorities had adopted in arriving at the normal value of melamine in the exporting country being China, is Page No.# 29/75 contrary to the procedure prescribed in the ADD Rules 1995. Dr. Saraf contends that even if China is a ‘non-market economy’, the criteria to be followed for determining the normal value would have to be as per the provisions of the ADD Rules 1995 and by taking the plea that such information is unavailable or not provided by the exporting country, the respondent authorities cannot adopt a method which would be without any basis and determine the normal value of the exporting country in an arbitrary manner. By referring to the provisions of Annexure-1 to the ADD Rules, 1995 which provides for the procedure to be adopted for determining the normal value, export price and margin of dumping by the exporting country it is contended that the procedure prescribed therein is self sufficient and the respondent authorities cannot adopt a procedure contrary to the provisions of the Rules by merely by taking a stand that as the normal value in the exporting country cannot be determined, a value at random be presumed and accepted to be the normal value in the exporting country for the purpose imposing the ADD. 79. It is the case of the petitioners that under the provisions of the CTA 1975 and the ADR 1995, an ADD can be imposed only in the event of the normal price of the article in the country of export being more than the export price and the ADD to be imposed would be the difference in price between the non-injurious price of the article of the domestic industry in the country of import and its landed price. 80. In the aforesaid circumstances, it is the submission of the petitioners that: (a) In the original investigation concluded in the year 2012, the designated authority had erroneously treated the intervener GSFC to be a domestic industry although the GSFC is indulging in import of melamine from other countries. By referring to the WTO-1994 and Rule 2(b) of the ADR 1995, which according to them are pari materia in nature, it is submitted that a domestic industry which is also indulging in import of the article concerned continues to be a domestic industry and merely because the product concerned is being imported from a country other than the subject country for which the investigation is made, it by itself cannot make the importer to be also a domestic industry. Article 4.1 of the WTO-1994 provides that when the producers in the domestic industry are themselves importers of the alleged dumped article, the term domestic industry would have to be interpreted to be referring to the rest of the producers. In other words, the producers other than the domestic producer indulging in import of the alleged dumped article would alone be referred as the domestic industry, meaning thereby that the domestic producer who also indulges in import of the alleged dumped product would no longer be a domestic industry. Similarly, Rule 2(b) of the ADR 1995 provides that the domestic industry means the domestic producers as a whole engaged Page No.# 30/75 in the manufacture of the like article or whose collective output of the like article constitutes a major portion of the total domestic production except when such producers are themselves importers of the like article. In other words, the domestic producers who are themselves producers of the like article do not form a part of the domestic industry. The designated authority in the final findings of the sunset review dated 05.12.2015 while accepting the factual situation that the intervener GSFC is also indulging in import of melamine, albeit from countries other than China from which the petitioners are importing, took the view that even though GSFC had imported and sold the subject goods, but the focus of GSFC has not turned to imports and the company is not behaving like an importer trader and on the other hand its focus continues to be that of a trader who does its own production. The said view taken was fortified by arriving at its satisfaction that the behavior of GSFC is even as of now is that of a producer and it has its future plans to enhance its production by almost 40000 MT. The designated authority was also of the view that as GSFC had not imported the subject goods from the subject country during the period of investigation, it therefore did not constitute a domestic industry within the meaning of Rule 2(b) of the ADR 1995. According to the petitioners, the said view taken by the designated authority is erroneous and contrary to the provisions of Article 4(1) of the WTO-1994 and Rule 2(b) of the ADR 1995, inasmuch as, both the provisions in order to exclude a producer from being a domestic industry only requires that the domestic producer be an importer of the alleged dumped article, and there is no further requirement that the import of the alleged dumped article would have to be only from the subject country which was investigated upon during the period of investigation. (b) The designated authority while recommending the imposition of ADD admittedly did not have the required factual materials before it to arrive at the normal value of melamine in the country of export being the China. China being a non-market economy country, under Clause-7 of Annexure-I of ADR 1995, the normal value is to be determined on the basis of the constructed value in the market economy of a third country, or the price from such third country to other countries including India, or where it is not possible on any other reasonable basis, the price actually paid or payable in India for the like article, duly adjusted and if necessary by including a reasonable profit be made the basis. Clause-7 further provides that an appropriate market economy third country shall be selected in a reasonable manner keeping in view the level of development of the country and due consideration shall be given to any reliable information that may be available at the time of selection and the parties to the investigation be informed without any unreasonable delay about the selection of the market Page No.# 31/75 economy third country and be given a reasonable period of time to offer their comments. In the instant case, according to the petitioners, the designated authority had not followed the procedure prescribed under Clause-7 of Annexure-I and had infact relied upon the information provided by the intervener GSFC to arrive at the normal value of melamine in China and based upon it arrived at its conclusion to impose the ADD. But at the same time, even the information provided by the intervener GSFC as regards the normal value of melamine in China had not been revealed by the authorities by taking recourse to Rule-7 of the ADR 1995 which provides for confidentiality as regards the information provided by any party. According to the petitioners, if the ADD had been imposed by accepting the information provided by the domestic industry for arriving at the normal value of the exporting country, the value arrived at cannot remain confidential and be not revealed to the importers who incur the liability to pay the ADD. Such non disclosure of the normal value arrived at by the designated authority would also be arbitrary inasmuch as, the value may be arrived at on a random basis. Secondly, even if it is construed that by invoking the provisions of Clause-7 of Annexure-I the price actually paid or payable in India of the like article is made the basis for arriving at the normal value of a non-market economy country and accept it to be the price of melamine in China, the same cannot be confidential in any manner as the price of melamine in India would be a figure which has to be depicted in the accounts relating to taxes etc of the domestic industry. In other words such information would be within the domain of public information and also be subjected to the provisions of the Right to Information Act. From the said point of view also there cannot be any confidentially of the normal value of melamine as accepted by the designated authority and such information cannot be withheld by taking recourse to Rule 7 of ADR 1995. A non disclosure of the normal value arrived at by the designated authority also prevents the importers to examine as to whether accepted normal value and the price of the like article in India are one and the same or the domestic industry by manipulating the information had provided some other exaggerated amount to be the price of the product in India. (c) According to the petitioners the provisions of ADD have been introduced to protect the domestic industry producing a particular article from an unfair competition from the importers who may import the same article from another country at a price below the normal value of the article in that country. Therefore, the mechanism of imposing ADD ought not to be used as a tool for giving an undue advantage to the domestic industry by enabling it to increase its price of the article in an unreasonable manner so as to result in an undue profit. In other words, the mechanism of imposing the ADD should not be operated in such manner so that it enables the domestic industry to venture Page No.# 32/75 into obtaining super normal profit by unduly raising the price of the imported article. The national economic interest also includes the impact that the downstream consumer industries that utilize the article subjected to ADD may have to face and in the event, the price of the article concerned as produced by the domestic industry is enabled to be increased abnormally by artificially arriving at the ADD, the same would have an adverse impact on the economy inasmuch as, the cost of production of the downstream consumer industries that may utilize the article concerned as a raw material would also be increased abnormally. Because of such intertwining economic relation within the national economy, there has to be a balance between protection to a domestic industry from unfair competition from the imports from a country that exports at a price below its normal value and the effect that it may have on the downstream industries who utilize such article as a raw material. If the domestic industry is enabled to earn a super normal profit by raising the cost of the item in the domestic economy in the guise of availing a protection from imports of item at a price lower than its normal value in the country of export, the same may unduly benefit the domestic industry, but its overall impact on the economy would be detrimental as the downstream consumer industries using the item a raw material would also correspondingly have to the raise the price of its product. Again, ADD is only for the purpose of protecting a domestic industry from an unfair competition due to import at a price less than its normal value and it cannot be a mechanism to prevent the import of such items for giving a monopoly to the domestic industry. If the purpose to impose ADD is to prevent the import of the article concerned, the remedy thereof would be to increase the import duty by invoking the powers under Sections 8A or imposing safeguard duty under Section 8B or imposing countervailing duty under Section 9 of CTA 1975. (d) In the aforesaid circumstance of there being a requirement to have a balance between imposing ADD to protect the domestic industry and using the mechanism of ADD to enable a domestic industry to increase the price of the item produced by it for earning a super normal profit, a vital aspect as provided under the ADR 1995 would be to arrive at the appropriate non-injurious price of the item in respect of the domestic industry. Accordingly, the determination of the non-injurious price of the domestic industry is required to be done in a more rational and prudent manner by arriving at the actual figures that may be prevailing in the market, rather than allowing the domestic industry to state its own non-injurious price in an arbitrary manner and protect the non injurious price so determined by relying upon the provisions of confidentiality under Rule 7 of the ADR 1995. Page No.# 33/75 (e) The conversion of the non-injurious price for the domestic industry to USD at a rate which was prevailing during the period of investigation or at the time of imposition of ADD would also be arbitrary and patently illegal. By doing so, the authorities have kept the non-injurious price of the domestic industry fixed in terms of USD, which infact was calculated on the basis of exchange rates as it prevailed in the year 2012. In the year 2012, the exchange rate of USD was approximately INR 44, whereas in the year 2017, it was INR 64, which subsequently increased beyond INR 70. By keeping the non-injurious price fixed in terms of USD as it prevailed in the year 2012, the non-injurious price of the domestic industry had the effect of being artificially inflated as per its exchange value in the year 2016 and 2017, which resulted in an abnormal profit being earned by the domestic industry. A further relevant consideration would also be that if the ADD is imposed in terms of USD, with an increase in the exchange value with INR, the amount of ADD paid in terms of INR would on one hand increase and correspondingly the landed cost of the article imported which would be in terms of USD would also increase in terms of INR. Therefore, in terms of INR on one hand the landed cost would increase, meaning thereby that the amount by which the article is dumped would decrease but at the same time, against such decrease, the corresponding ADD that would have to be paid would increase. (f). The petitioner also raises an issue that the designated authority while arriving at its decision as regards the necessity of imposing ADD merely issues a notice to the importers informing them about the hearing to be taken place, but without providing even the essential facts which were determined and concluded by the authority in course of its investigation and as well as the relevant data thereto along with the facts and figures. In the absence of such information, the importers are unable to give any effective reply resulting in a virtual non-compliance of the principles of natural justice, although in paper, it can be shown that an opportunity of hearing was given to the stakeholders. (g) The petitioners also raise an issue that the mechanism of ADD is to be applied only to mitigate the effects of injurious dumping and not for conferring any superlative gain to the domestic industry by resorting to price fixation and that too by remaining oblivious to the fluctuation in international pricing. Such artificial price fixation resulting in the superlative profit instead of being an anti dumping measure falls within the mischief of unfair competition as provided under the Competition Act, 2002. 81. Per Contra, Mr. B. Sarma, learned standing counsel for the Customs Department, Govt. of India Page No.# 34/75 appearing for the respondent authorities, including the designated authority contends that all the required procedures under the CTA 1975 and ADR 1995 have been duly followed by the designated authority as well as the authorities in the Union of India in the Customs Department in arriving at the conclusion contained in the three notifications dated 01.06.2012, 05.12.2015 and 22.09.2017 Mr. Sarma also contends that all the importers including the present petitioners were given an opportunity of hearing by the designated authority before the final findings were arrived at and as such, principles of natural justice were duly complied. Only because the conclusion in the final findings and the resultant decision to impose ADD has an adverse commercial impact on the trade of import of melamine conducted by the petitioners, therefore, the present petitions are being preferred, but as the conclusion and imposition of ADD had been done by strictly following the procedure prescribed under the CTA 1975 and ADR 1995, no interference is required. A further contention of Mr. Sarma is that the present petition is not maintainable in view of the provision for an appeal under Section 9C of the CTA 1975 inasmuch as, the notifications dated 01.06.2012, 05.12.2015 and 22.09.2017 pertains to imposition of ADD under Section 9A. We have also heard Mr. Rajiv Arora, Additional Director General, Foreign Trade Government of India who had appeared in person on behalf of the Customs Department as well as the designated authority. The core contention of Mr. Rajiv Arora is that China being a non-market economy, the authority did not have any factual material before it as to what would be the normal value of melamine in that country. All efforts to obtain the information from the authorities and others sources in China ended up in being futile and no such information could be obtained. In the resultant circumstance, the authorities relied upon the information provided by the intervener GSFC as to what could be the possible normal value of melamine in China and accepted the price of melamine in India produced by the intervener GSFC to be also the normal value of melamine in China. According to Mr. R. Arora, the procedure adopted is in conformity with the provision of Clause-7 of Annexure-1 of ADR 1995 and as such, neither there is any illegality nor there is any arbitrariness in arriving at the normal value of melamine in China. On being asked as to what was the normal value of melamine in China as accepted by the designated authority, and also as to what was the non-injurious price of melamine for the domestic industry, the reply given both by Mr. Rajiv Arora Additional Director General, Foreign Trade Government of India as well as by Mr. B. Sarma, learned standing counsel for the Customs Department is that such information are confidential in nature and are protected under Rule 7 of ADR 1995 and in view of such confidentiality it cannot be disclosed even to the Court. Page No.# 35/75 82. Mr. B. Sarma, learned standing counsel for the Customs Department has also raised a contention that although the intervener GSFC is also involved in import of melamine from some other countries, but as it does not import from it from China, which is the subject country for the purpose of investigation in the notification dated 05.12.2015, therefore, under Rule 2(b) of ADR 1995, it continues to remain a domestic industry irrespective of such import. 83. Mr. A.K. Roy, learned counsel appearing for the intervener GSFC by referring to the various amendments incorporated to the definition of domestic industry under Rule 2(b) of ADR 1995 and more particularly the amendments brought in by the customs notification No.18/2010 dated 27.02.2010 and No.86/2011 dated 01.12.2011, contends that the amended rule now stands aligned with the WTO agreement on anti dumping and it gives a discretionary power to the designated authority to decide on the merits of the case as to whether or not to include a domestic producer who also indulges in import as domestic industry. It is neither the intention of the WTO agreement nor of the ADR 1995 that a straight jacket formula be adopted while understanding as to what is a domestic industry and thereby render all such domestic producers who had resorted to import of the article concerned being ineligible for the status of being a domestic industry. 84. Mr. A. Roy further contends that the replacement of the word ‘shall’ with the word ‘may’ in Rule 2(b) has granted the designated authority a complete power to exercise its discretion while accepting whether a domestic producer indulging in import can still also be a domestic industry and such discretion is justified as because a complete exclusion of a domestic producer indulging in even a minimal amount of import would ultimately amount to a deviation from the rules of ordinary business conduct. According to the learned counsel certain standard of discretion can be exercised on reasonable grounds and it would best serve the interest of the domestic industry as a whole and the designated authority is required to apply its mind and make an objective determination as to whether a domestic producer in a given situation can be accepted as a domestic industry. 85. In the circumstance as aforesaid the submissions of the respondent in the Department of Customs Union of India and the designated authority, are as follows:- (a) Mr. B. Sarma, learned standing counsel for the Department, by referring to Section 9C of the CTA 1975, which inter alia provides for 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, submits that the present writ petition being against the order of determination, as well as against the order of review as regards the existence, degree and effect of dumping of melamine, the Page No.# 36/75 writ petition itself is not maintainable and it was for the writ petitioner to avail the benefit of the appellate provision. In this respect it is the further submission of Mr. B. Sharma that section 9C (2) having provided for a period of 90 days within which the appeal referred above can be filed and in the present case all the notifications under challenge in the writ petition being beyond the period of 90 days, the writ petition is not maintainable and secondly, by preferring it the petitioners seek to circumvent its earlier laches in not preferring the appeal within proper time. For the purpose, Mr. B. Sharma refers to the pronouncement of the Supreme Court in NITCO Tiles Ltd. vs. Gujarat Ceramic Floor Tiles Mfg. Assn. and Ors. reported in 2005 (12) SCC 454 wherein while entertaining an appeal against an interim order of the High Court of Gujarat, in paragraphs 3 and 4, it was held that the reason for the High Court to entertain a writ petition against the final findings of the designated authority on the ground that the question raised therein is not only important but also sensitive and affecting the people of the country at large, would render otiose the provisions of Section 9C of the CTA 1975 and a person aggrieved by such final finding of the designated authority would invoke the writ jurisdiction under Article 226 with impunity. Further reliance has also been placed on the pronouncement of the Supreme Court in its order in The Designated Authority Vs. Sandisk International Limited reported in 2017 SCC ONLINE SC 319 wherein in paragraph 7, it was held that although it cannot be an inflexible proposition of law that in no case the final findings of the designated authority can be subjected to a challenge under Article 226 of the Constitution, but in the facts of the case involved therein, the High Court was not justified in setting aside the final findings of the designated authority in exercise of its writ jurisdiction. Reliance has also been placed on a decision of the Delhi High Court in Hindustan Lever Ltd. Vs. Union of India and Ors. reported in MANU/DE/1355/2017, wherein a view was taken that a challenge to the disclosure statement made in the proceedings before the designated authority would be comparable to a plaint in a civil suit and therefore, the appellate court is not denuded from its powers to examine the same and as such, the court remained not persuaded that the grounds taken in the writ petition therein cannot be urged before the CESTAT. Mr. B Sarma also places reliance upon the view taken by the High Court of Bombay in Spacewood Furnishers Pvt. Ltd. Vs. Designated Authority reported in 2010 SCC Online Bom 2161 wherein the pronouncement of the Supreme Court in Assistant Collector of Central Excise, West Bengal Vs. Dunlop India Ltd. reported in 1985 (19) E.L.T. 22 (S.C.) that it is only where Page No.# 37/75 statutory remedies are entirely ill suited to meet the demands of extraordinary situations, for instance, where the vires of the statute or where private or public wrongs are so inextricably mixed up where the prevention of public injury and vindication of public justice require that recourse may be had to Article 226 of the Constitution, was accepted. According to Mr. B Sarma, learned standing counsel for the Department, none of the criterions which may justify the entertainment of a writ petition inspite of the existence of a statutory appellate remedy are present in the instant writ petition and hence, the writ petition itself is not maintainable. (b) Mr. B Sarma, learned standing counsel for the Department submits that the non-injurious price arrived at by the designated authority as well as the normal value of melamine in the exporting country China were all arrived at on the basis of the application made by the intervener GSFC under Rule 5(1) of the ADR 1995 and as the information provided therein are confidential information under Rule 7 therefore, such information cannot be provided to the petitioners. According to the learned standing counsel due to the expressed provisions of Rule 7 of the ADR 1995 to keep confidential all such information provided by the domestic industry, i.e., the intervener GSFC, the issue raised by the writ petitioners that the designated authority did not have the required factual materials before it to arrive at the normal value of melamine in the exporting country China as well as the non-injurious price applicable to the intervener domestic industry GSFC, cannot be answered by the Department as well as by the designated authority as the provisions of Rule 7 has an overriding effect and such information cannot be provided even to the Court for its verification as to whether the required factual materials were in fact available before the designated authority while arriving at the final findings as well as the department while accepting it. As invocation of Rule 7 of ADR 1995 for withholding the information as regards the normal value in the country of export and non-injurious price of the domestic industry makes the issue raised in the writ petition indeterminable, the same be dismissed as non-maintainable. (c) Mr. Rajiv Arora, Additional Director General, Foreign Trade Government of India, who was present in the Court at the time of hearing of the matter, submitted that authentic information as regards the normal price of melamine in China could not be obtained in spite of all such endeavour being made by the authorities and nor such information could be obtained from any other sources. In the resultant circumstance, the authorities had to take recourse to the provisions of Clause 7 of Annexure 1 to the ADR 1995 which, inter alia, provides the procedure for arriving at the normal value of the imported article from a non-market economy country. According to the Officer, China is Page No.# 38/75 admittedly a non-market economy country and, therefore, the provisions of Clause 7 of Annexure 1 would be squarely applicable for determining the normal value of melamine in that country. Clause 7 of Annexure 1 do provide that if the other available methods do not result in the normal value of the article in the country of export being made available, the authorities can adopt the method of taking into account the price actually paid or payable in India for the product concerned after duly adjusting a reasonable profit margin. By invoking the said provision of clause 7 of Annexure 1, the authorities on being unable to obtain the normal value of melamine in China had accepted the price paid or payable for melamine in India as provided by the domestic industry i.e., the intervener GSFC, to be the normal value of melamine in China. 86. On the other hand, Mr. AK Roy, learned counsel appearing for the intervener GSFC, while otherwise adopting the submission of Mr. B Sarma, learned standing counsel for the Department and Mr. Rajiv Arora, Additional Director General, Foreign Trade Government of India, further submits that as per the acceptable meaning given to the concept of domestic industry through various court decisions, the decisions of the CESTAT, as well as the various amendments providing for the concept of domestic industry, a domestic producer does not lose its status of being a domestic industry merely because it may involve itself in some bit of import of the article concerned to augment the domestic production. For the purpose, the following submissions are being made: (a) Mr. AK Roy, learned counsel for the intervener, GSFC by referring to the definition of domestic industry as defined under Rule 2(b) of ADR 1995 submits that the definition of domestic industry prior to the amendment dated 15.07.1999 was as follows: 2(b) “domestic industry” means the domestic producers as a whole engaged in the manufacture of the like articles and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers shall be deemed not to form part of the domestic industry. Subsequently by the notification No.44/1999 dated 15.07.1999, domestic industry was defined as under: 2(b) “domestic industry” means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when Page No.# 39/75 such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers may be deemed not to form part of domestic industry. By referring to the amendment, it is submitted that prior to the amendment there was no discretion vested in the designated authority to include any domestic producer within the concept of domestic industry if such domestic producer either imported the article concerned themselves or were related to any exporter or importer of the article. Thereafter by the notification No.18/2010 dated 27.02.2010, another amendment was brought in to the meaning of domestic industry which is as follows: 2(b) “domestic industry” means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term ‘domestic industry’ may be construed as referring to the rest of the producers only. Subsequently by notification No.86/2011 dated 01.12.2011, a further amendment was brought in by removing the word “only” appearing in the end of the definition of domestic industry as per the notification No.18/2010 dated 27.02.2010. Accordingly, the amended definition of domestic industry stood aligned with the WTO Agreement, which gives a discretionary power to the designated authority to decide on merit as to whether to include or exclude a domestic producer from being considered as a domestic industry. (b) The history of amendments made to the definition of domestic industry contained in Rule 2(b) of ADR 1995 was discussed by the High Court of Madras in case of Nirma Ltd. Vs. Saint Gobain Glass India Limited reported in 2012 (281) ELT 321 (Madras). The learned counsel by referring to paragraphs 58 & 62 of Nirma Ltd. (supra) submits that the High Court of Madras had held that the term domestic industry as amended on 27.02.2010 had not taken away the discretionary power of the designated authority. (c) Mr. AK Roy, learned counsel for the intervener, GSFC also refers to the final findings by the designated authority dated 17.02.2012 in respect of import of soda ash from various countries including China wherein in paragraph 44 the following view was taken: Page No.# 40/75 i. One of the important factors in this regard is the balance of business of the domestic producer between manufacturing and importing. If the company predominantly manufactures the product in India, it should be included. However, if the domestic producer closes or reduces its production and instead imports the product or the general emphasis of its business shifts from production to imports, it should be excluded. ii. If a domestic producer has shielded itself from the effect of dumping by resorting to imports from or exports to a related party, the company must be excluded. iii. If a domestic producer has participated in some way in the dumping practices or has otherwise unduly benefited from it, it must be excluded. iv. If inclusion of a domestic producer would distort the injury findings, it must be excluded. v. If a domestic producer does not cooperate with the Authority, such domestic producer may be considred as ineligible. In paragraph 44 therein, the Designated Authority also contemplated the following circumstances to be relevant for the purpose of determining as to whether a domestic producer indulging in import is also to be considered a domestic industry. i. The percentage of domestic production of the product in question that is accounted for by the related producers. ii. Whether imports of the product in question by the related producers allow them to benefit, or serve to shield them, from the effects of dumping. iii. Whether exclusion of the related parties would unduly skew the data for the remaining members of the industry. iv. The level or long term nature of the commitment shown by the producer to the domestic production, as opposed to importing activities. v. The ratio of import shipments to domestic production for the related producers. (d) The learned counsel for the intervener, GSFC also relies upon the view of the High Court at Calcutta in paragraph 14 in State of Gujarat Fertilizers’ and Chemical Limited Vs. Additional Secretary and Designated Authority wherein in a situation where 15% of the total production was imported by a domestic producer to meet the demand of the consumers during a time when production was disrupted, it was accepted to be a situation where the domestic producer could not be held to be an importer under Rule 2(b). (e) Further reliance has been placed by the learned counsel upon the view taken by the CESTAT, New Delhi in paragraph 25 of its order in Huawei Technologies Co. Ltd and Ors. Vs. Designated Authority Directorate General of Anti Dumping and Allied Duties, reported in MANU/CE/0049/2016 wherein a conclusion was arrived, by following the pronouncement of the High Court at Madras in Nirma Ltd. (supra) and the High Court at Calcutta in of Gujarat Fertilizers’ and Page No.# 41/75 Chemical Limited (supra) that it is clear that the definition of importer in Rule 2(b) has to be understood in the context of protecting indigenous industry producing the same material and accordingly the realistic and logical meaning should be the person who is carrying all the business of import exclusively for trading purpose is the importer under the said Rule. (f) Based on the aforesaid pronouncements as referred above, it is the submission of Mr. AK Roy, learned counsel for the intervener GSFC that although the GSFC is primarily a domestic producer but on a given circumstance they are required to import some amount of melamine to meet their market requirements and further it is already in the process to expand its production capacity and hence GSFC is a domestic industry inspite of some amount of melamine being imported by it. 87. Based upon the aforesaid submissions of the rival parties and also upon considering the materials that the Court had been taken through, the following core issues are discernible which requires adjudication:- A) Whether the writ petition is maintainable in view of the provisions for appeal under Section 9C of the CTA 1975. B) Whether the information provided by the intervener GSFC in their application under Rule 5(1) of ADR 1995 and at other stages would be held to be confidential under Rule 7 to the extent that even the normal price, export price and non injurious price determined by the designated authority would not be disclosed in the course of the proceedings held by it as well as in the final findings. C) Whether the principle of natural justice had been violated by the designated authority D) Whether the procedure adopted by the designated authority in arriving at a decision to impose ADD and to determine the rates thereof conform to the procedure prescribed under the ADR 1995 E) Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary F) Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry G) Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange Page No.# 42/75 rate as it prevailed in the year 2015 from China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate. 88. Before making an attempt to adjudicate the questions for determination framed hereinabove, it would be apposite to examine the procedure followed by the designated authority in arriving at its final findings to justify the imposition of the ADD and the determination of the rates thereof in respect of import of melamine from the countries like European Union, Iran, Indonesia and Japan as per the Notification F. No.14/35/2010-DGAD dated 01.06.2012 and from China as per Notification No.15/17/2014-DADD dated 05.12.2015. 89. In both the final findings of the designated authority, the investigation on the question of dumping by the exporting country of melamine had been initiated on the basis of applications from the intervener GSFC. Upon receipt of the applications, the designated authority notified the Embassies/Trade Representatives of the exporting countries in India, as well as the known exporters from the exporting country, and also the known importers. The known interested parties were also requested to fill up the questionnaire provided for the purpose and make their views known within the prescribed time limit. The final reports indicate that the known exporters and known importers were provided with the questionnaire on the basis of the names and addresses given by the intervener GSFC in their applications. The final findings dated 05.12.2015 in respect of China also provides that a copy of the non-confidential version of the application on behalf of the intervener GSFC was made available to the known exporters and Embassies/Trade representatives of the exporting countries in accordance with Rule 6.3. 90. The final findings in respect of both European Union and others and China shows that the designated authority provided an opportunity to all the interested parties to present their views orally in a public hearing held on 06.03.2012 in respect of European Union and others and on 28.09.2015 in respect of China. It was further provided that the submissions made by the interested parties were given a consideration by the designated authority wherever found relevant. 91. The period of investigation in respect of the final finding dated 01.06.2012 pertaining to the European Union and others was from 01.04.2009 to 30.06.2010 (for fifteen months) and in respect of the final finding dated 05.12.2015 pertaining to China was from 01.04.2013 to 30.06.2014 (also for fifteen months). In respect of the final finding dated 01.06.2012 in respect of European Union and Page No.# 43/75 others, references were made to a writ petition by one of the interested parties namely, Ms. Century Plyboards (I) Ltd., who in fact is also the present petitioner No.1, before the Calcutta High Court, where in the order dated 07.12.2012 the learned Single Judge arrived at a conclusion that the initiation of the investigation at the instance of the intervener GSFC, on the face of the records, as an importer, is legally not sustainable. But on appeal the Division Bench by the order dated 09.08.2011 had allowed the investigation to continue but made it conditional that no report be submitted without the leave of the Court. But without making any further reference to any conclusion that the Calcutta High Court may have arrived, the designated authority while examining the question as to whether the intervener GSFC is a domestic industry took into consideration the stand taken by GSFC that they made some imports at the time when they had some production disruption so as to facilitate the requirements of its small customers who had desired that the GSFC do import the material and supply it to them. In the process the bills of entry for such imports for the purpose of customs clearance were not filed by the intervener GSFC, which in other words would imply that the same were filed by its small customers for whose requirement the GSFC had indulged in the import. In examining the question as to whether the GSFC can be treated as a domestic industry, the designated authority was of the view that the bills of entry submitted to the customs authority by the GSFC while importing the subject articles were for the warehousing purpose. A view was also formed that GSFC had not filed the bills of entry for home consumption for the subject articles imported by them and had sold it on ex-bond basis to various buyers. A view was also formed that GSFC had not paid sales tax on imported products sold on ex-bond basis and instead it is the eventual importer who had filed the bills of entry for home consumption and had paid the import taxes, basic custom duties, CVD, SAD etc. A view was also formed that the intervener GSFC had sold the subject goods article without any significant profits where the verification of the records showed that there were a marginal profit. 92. In such manner the designated authority by referring to the amended Rule 2(b) of the ADR 1995 as interpreted by the Madras High Court in Nirma Ltd. Vs. St. Gobain Glass India Ltd., arrived at a conclusion that the discretionary power of the designated authority had not been taken away. 93. Accordingly, by taking into consideration the circumstance that the intervener GSFC had not filed the bills of entry for home consumption but had filed it for the purpose of warehousing and that the bills of entry for home consumption were directly filed by its small customers, who are referred as consumers, the designated authority by exercising its discretionary power had arrived at a conclusion Page No.# 44/75 that even though the intervener GSFC had imported and sold the subject articles, its focus had not turned to imports and the company is not behaving like an importer trader and its focus continues to be that of a producer engaged in its own production. Accordingly a conclusion was arrived that the intervener GSFC is a domestic industry within the meaning of Rule 2(b) of the ADR Rules 1995. The said conclusion of the designated authority can be found from paragraph 15 to paragraph 20 of the Notification dated 01.02.2012. 94. While dealing with the question whether the intervener GSFC is a domestic industry in respect of the final findings pertaining to China, the designated authority in paragraph 13 of the Notification dated 05.12.2015, took a view that as GSFC had not imported the subject articles from the subject country, i.e. China, during the period of investigation, although it may have made some imports from the subject country during the base year, the focus of GSFC continues to be that of a producer who does its own production and, therefore, it is a domestic industry within the meaning of Rule 12(b) of the ADR Rules, 1995. 95. Again when a review sunset investigation was undertaken to continue with the ADD in respect of melamine exported from European Union and others, as per the Notification No.7/14/2017-DGAD dated 22.09.2017, a further conclusion was arrived that the intervener GSFC do constitute a domestic industry as per Rule 2(b) of the ADR 1995 inasmuch as, GSFC had made a claim that they are the sole manufacturer of melamine in India and the production of GSFC accounts for ‘a major proportion’ of the product under consideration in India. 96. From the Notification dated 01.06.2012, it is noticed that the stand of the designated authority is that the normal value of melamine in the exporting country and the non-injurious price of the domestic industry were arrived at on the basis of the information provided by the exporting countries as well as the domestic industry and in doing so, the views of the exporters, importers and other interested parties were taken into consideration. 97. In the Notification dated 05.12.2015 it is stated that as the required information were not available from the exporting country i.e. China, the procedure prescribed in paragraph 7 & 8 of Annexure-1 of the ADR 1995, as amended, was followed to arrive at the normal price value in the exporting country and the non-injurious price of the domestic industry. Upon so arriving, the interested parties, which also included the petitioner No.1, were given an opportunity of oral hearing as provided under Rule 6(6) of ADR 1995. Page No.# 45/75 98. According to the petitioners, although such opportunity of hearing as required under Rule 6(6) ADR 1995 was provided to the interested parties, including the petitioner No.1, but such opportunity given was ineffective, as well as futile and that the object of Rule 6(6) of giving an effective hearing was not achieved. In the oral hearing so given, the interested parties including the petitioner No.1, were not provided with the information as to the normal value of melamine in the exporting country as arrived at by the designated authority and also the non-injurious price arrived at in respect of the domestic industry, let alone the information in detail as regards the material inputs relied upon by the designated authority to arrive at the normal value and the non-injurious price. The petitioners contend that affording an opportunity of hearing in such manner amounts to requiring a person to give an answer without even putting forth the question which has to be answered. 99. In the Notification dated 01.06.2012, the views of the domestic industry, the views of the exporters, importers and interested parties as well as the result of the examination by the designated authority of such views are stated. a. Some of the relevant views expressed by the domestic industry are as follows:- i) The domestic industry use natural gas for the purpose of production of melamine and natural gas is provided to the domestic industry by the government authority under two procedures i.e. Administrative Price Mechanism (APM) and Non Administrative Price Mechanism (Non-APM), where the price of Non-APM natural gas is higher. The APM natural gas is used for manufacture of fertilizers, whereas, for the purpose of manufacturing the other items, including melamine, the Non-APM natural gas is required to be used, where Non-APM natural gas is also used for manufacture of fertilizer items in the event of there being excess requirement. In the resultant situation the full price of the Non-APM natural gas has to be taken into consideration for arriving at the cost of production of melamine by the domestic industry. By raising the issue as regards the Non-APM natural gas used for manufacture of melamine, the domestic industry expressed the view that as Non-APM natural gas is required to be purchased from the market, therefore, the actual cost of production of melamine of the domestic industry company cannot be established, more so, in a situation, where it had purchased the natural gas at different prices for different purposes. ii) The landed price of the imported articles were substantially lower than the domestic selling Page No.# 46/75 price of the subject product during the period of investigation. iii) Although there was an expectation that there would be an increase in the demand for melamine in India but in reality during the period of investigation there was a significant decline in the demand. In such situation the dumped article of melamine which was imported consumed a larger share of the demand, which again was achieved by price undercutting. As a result the imported dumped article had prevented the domestic industry from achieving an optimum utilization of its production capacity, resulting in an injury being caused. Although after 2007-08 the cost of production of domestic industry had significantly increased, but because of the import of the dumped articles at a lower price, the domestic industry could not increase its selling price in the required manner. iv) Most importantly the market share of the domestic industry had declined while the market share of the import had increased significantly due to the lower price of the imported product during the period of investigation. v) In a situation where the domestic industry is producing several items the designated authority is required to consider only the cost and price of the product under consideration and the cost and price of the other products produced by the domestic industry company should not be taken into consideration. b. Some of the relevant views expressed by the exporter/importer and other interested parties are as follows:- i) The non-injurious price had been arrived on a hypothetical basis without there being any nexus to the actual incidents. ii) The domestic industry is unable to meet the demand for melamine in the country and the gap between the demand and supply of melamine is wide and therefore the gap is required to be filled up. iii) The importers of melamine had not suppressed the actual price of import nor there is a downward trend in the price of melamine in the country because of the imports and, therefore neither any injury is caused to the domestic industry nor the domestic industry is unable to sell its products because of the product being available in the market at a lower price because of the imports. iv) The reduction in the market share of the domestic industry is due to increase in consumption of the subject article and the inability of the domestic industry to meet the increased demand rather than because of the domestic industry failing to market its product due to the imported articles being Page No.# 47/75 available in the market. v) The normal value of melamine in the exporting country arrived at by designated authority, as well as the principles followed in arriving at it and also the materials upon which such value was arrived at should also be made available. vi) While determining the non-injurious price of the domestic industry, the details of the computation should be divulged and disclosed. vii) No objective analysis had been done to examine the link between the alleged dumping and the injury suffered by the domestic industry. viii) Because of the variation and increase in the exchange rate of USD, in the period subsequent to the investigation, as compared to the exchange rate during the period of investigation, the imposition of ADD should be made on the basis of reference price in INR. c. Result of the examination by the designated authority:- i) The designated authority was of the view that imposition of ADD is not related to the demand supply gap of the subject product and on the other hand, the relevant consideration is to eliminate injury caused to the domestic industry by the unfair trade practices of dumping. Imposition of ADD is not to restrict the import from the exporting country nor to have an effect on the availability of product to the customer. If the exporters want to supply the goods to meet the requirement of the Indian market, it can be done by exporting the article at a price equivalent to the normal value of the article in the exporting country and not at a dumped price. ii) The designated authority had taken a view that the intervener GSFC had prepared a detailed project report for an investment of Rs. 7000 crores for which the land allocation and tendering process had been initiated and the project would have a capacity to produce 40,000 mtpa of melamine apart from the other fertilizers and petro chemical products and therefore, it is taking the required steps for meeting the demand for melamine in the country. The effect of allowing the dumped imports would be that the GSFC upon producing as per the enhanced production capacity would not find a market due to the dumped imports and it would be unviable for the domestic industry to increase its production if the prices of the product remain unreasonably low. iii) As regards the stand of the exporters, importers and interested parties that the non confidential version of the application is not same as that of the confidential version, the designated Page No.# 48/75 authority was of the view that there are lots of steps and discussions involved since filing of the application till the initiation of the investigation and all the relevant information is available on record in the official file. The authority only after considering all the relevant information and after prima facie satisfying itself as to the existence of dumping, injury and a casual link with the import had initiated the investigation. The domestic industry had provided the detailed information regarding the imports made by it and the justification for still considering it as a domestic Industry. iv) As regards the argument that the domestic industry had generated huge profit, the designated authority was of the view that the investigation related to melamine and therefore, the injury analysis was done on the basis of data as regards melamine. The GSFC being a multi product company, any statement in the annual reports is not relevant unless it pertains to the product under consideration. v) The injury parameters and the non-injurious price were re-checked before accepting it in the final finding and the analysis had been carried out objectively and the conclusion of injury and casual link that were arrived was mentioned at appropriate headings. Accordingly, it was incorrect to state that the cost of production of the domestic industry is lower than its selling price or that the non- injurious price determined for the subject product is lower than its net selling price. vi) With regard to the principles followed for arriving at the normal value, it had clearly been stated in the appropriate headings and the normal value had been kept confidential for the reason that some of the elements in arriving at the constructed normal value were taken from the confidential information made available by the domestic industry and as such, the information had been kept confidential. vii) The determination of the non-injurious price for the domestic industry was done by following a computation in terms of the principles laid down in annexure-III of ADR 1995 and the value of ammonia had been deducted from the cost of melamine. viii) As regards the allegation of a monopolistic behaviour of the domestic industry, the designated authority was of the view that imposition of ADD is based upon the existence of dumping, injury and a casual link between the dumped import and the injury to the domestic industry and from the point of view of the anti dumping rules, it is not necessary to examine whether the domestic industry is showing monopolistic behaviour and on the other hand, still requesting the authorities to enquire against unfair imports. Page No.# 49/75 100. As regards the determination of normal value of melamine in China as per the notification dated 05.12.2015, the designated authority arrived at its conclusion that China being a non-market economy, the export price and the normal value were determined in terms of the 2nd proviso of paragraph-7 of Annexure-1 to the ADR 1995. In paragraph-32 of the said notification, it has been stated that the constructed normal value of melamine in China at ex-factory level was determined as USD*** per MT (Rs.*** per MT) and that the export price from China was determined as USD*** per MT(Rs.***per MT). 101. From the above, it is determinable that the designated authority had followed a procedure for determining the normal value of melamine in the exporting country China, as well as the non-injurious price of melamine for the domestic industry in India, but the procedure so adopted and also the normal value and non-injurious price would remain confidential and would not be made available. The reason for keeping the normal value and the non-injurious price confidential is that they were arrived at on the basis of the information provided by the domestic industry and therefore, it is confidential under Rule-7 of the ADR 1995. 102. On a pointed query being put to the learned standing counsel for the Customs Department, as well as to Mr. Rajiv Arora, Additional Director General, Foreign Trade, Government of India, who also appeared in person before the Court, it is replied that the normal value of melamine in the exporting countries and its non-injurious price of the domestic industry cannot be revealed as they are based on the information provided by the intervener GSFC, who are classified as a domestic industry and therefore, the provisions of Rule 7 of the ADR 1995 would be applicable. 103. One of the grounds taken by the respondent Customs Department and also supported by the intervener GFSC is that the present writ petition essentially being a petition against the order of determination and also against the order of review as regards the existence, degree and effect of dumping of the imported article melamine, therefore as there is a provision for an appeal under Section 9C of the CTA 1975, a writ petition against such order would be not maintainable. 104. In the facts and circumstances and also in view of the provisions of law as narrated and also interpreted to the extent indicated above, the issues framed are decided in the following manner: A) Whether the writ petition is maintainable in view of the provisions for appeal under Section 9C of the CTA 1975. 105. From the contentions raised by the petitioners, it is understood that in this writ petition it is the Page No.# 50/75 procedure and the principles followed by the designated authority in arriving at its determination as to the existence, degree and effect of dumping in the import of melamine that has been assailed, rather than the actual determination of such existence, degree and effect of dumping being assailed. Although the determination of the normal value, export price and margin of dumping as well as the determination of the injuries caused and the non injurious price stood consequently assailed, but it is more of a consequence of assailing the principles and procedure adopted rather than assailing the determination itself. 106. The law regarding the maintainability of a writ petition in a situation where alternative remedy in the form of a provision for an appeal is also available has been settled by the Supreme Court. 107. In respect of maintainability of a writ petition in a situation where alternative remedy is available under the statute, the Supreme Court has held as follows:- i) In Hirday Narain Vs. Income-Tax Officer, Bareilly reported in 1970(2) SCC 355, in Paragraph-13 it had been held that “We are unable to hold that because a revision application could have been moved for an order correcting the order of the Income-Tax Officer under Section 35, but was not moved, the High Court would be justified in dismissing as not maintainable the petition, which was entertained and was heard on the merits.” ii) In ABL International Ltd. and Another –vs- Export Credit Guarantee Corporation of India Ltd. and Others reported in (2004) 3 SCC 553 in paragraph-28 it had been held that “ However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. ….. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction.” iii) In Seth Chand Ratan –vs- Pandit Durga Prasad(D) by Lrs. and Others reported in (2003) 5 SCC 399, in paragraph 13 it had been held that “ It has been settled by a Page No.# 51/75 long catena of decisions that when a right or liability is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before seeking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is no doubt a rule or policy, convenience and discretion and the court may in exceptional cases issue a discretionary writ of certiorari. Where there is complete lack of jurisdiction for the officer or authority or tribunal to take action or there has been a contravention of fundamental rights or there has been a violation of rules of natural justice or where the Tribunal acted under a provision of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, the High Court can exercise its jurisdiction to grant relief.” iv) In S.J.S. Business Enterprises (P) Ltd. –vs- State of Bihar and Others reported in (2004) 7 SCC 166 in paragraph-14 & 15, it had been held that “The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If, however, a party has already availed of the alternative remedy which invoking the jurisdiction under Article 226, it would not be appropriate for the Court to entertain the writ petition. The rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another court. But this Court has also held in Chandra Bhan Gosain v. State of Orrissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief…… Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226. …. The pleadings were also complete before the High Court.” v) In Himmatlal Harilal Mehta –vs- State of M.P. and Two Others reported in AIR 1954 SC 403 in paragraph-9 & 10 it had been held as follows:- “9. There it was held that the principle that a court will not issue a prerogative writ when an adequate alternative remedy was available could not apply where a party came to the court with an allegation that his fundamental right had been infringed and sought relief under Article 226. Page No.# 52/75 10. For the reasons given above, we are of the opinion that the High Court having held that the Explanation II to Section 2(g) of the Act was ultra vires, was in error in dismissing the application on the ground that it was not entitled to relief under the provisions of Article 226 of the Constitution.” vi) In State of U.P. –Vs- Mohammad Nooh reported in AIR 1958 SC 86 in paragraph- 10 & 11 it had been held that: “10. ….But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. In the King v. Postmaster General Ex Prate Carmichal a certiorari was issued although the aggrieved party had an alternative remedy by way of appeal. It has been held that the superior court will readily issue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v. Wandsworth Justices Ex Prate Read is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or b y an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction…… Likewise in Khurshed Modi V rent Controller, Bombay it was held that the High Court would not refuse to issue a writ of certiorari merely because there was a right of appeal. It was recognized that ordinarily the High Court would require the petitioner to have recourse to his ordinary remedies, but if it found that there had been a breach of fundamental principles of justice, the High Court would certainly not hesitate to issue the writ of certiorari. To the same effect are the following observations of Harries, CJ, in Assistant Collector of Customs v. Soorajmull Nagarmul. “There can, I think, be no doubt that court can refuse to issue a certiorari if the petitioner has other remedies equally convenient and effective. But it appears to me that there can be cases where the Court can and should issue a certiorari even where such alternative remedies are available. Where a court or tribunal, which is called upon to exercise judicial or quasi-judicial functions discards all rules of natural justice and arrives at a decision contrary to all accepted principles of justice then it appears to me that the Court can and must interfere. Page No.# 53/75 If therefore the existence of other adequate legal remedies is not per se a bar to the issue of a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari and if in a proper case it may be the duty of the superior court to issue a writ of certiorari to correct the errors of an inferior court or tribunal called upon to exercise judicial or quasi judicial functions and not to relegate the petitioner to other legal remedies available to him and if the superior court can in a proper case exercise its jurisdiction in favour of a petitioner who has allowed the time to appeal to expire or has not perfected his appeal e.g. b furnishing security required by the statute, should it then be laid down as an inflexible rule of law that the superior court must deny the writ when an inferior court or tribunal by discarding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision? The case of In re Authers referred to in Janardan Reddy case furnishes the answer. 11. On the authorities referred to above it appears to us that there may conceivably be cases- and the instant case is in point- where the error, irregularity or illegality touching jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision. If an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court’s sense of fair play the superior court may, we think quite properly exercise its power to issue the prerogative writ of certiorari to correct the error of the court or tribunal of first instance, even if an appeal to another inferior court or tribunal was available and recourse was not had to it or if recourse was had to it, if confirmed what ex facie was a nullity for reasons aforementioned. vii. In State of U.P and Others –Vs- M/s Indian Hume Piple Co. Ltd. reported in (1977) 2 SCC 724 in paragraph-4 it has been held that “whether the hume pipes manufactured and sold by the respondent were sanitary fittings within the meaning of that expression was a question of law….. Moreover, there is no rule of law that the High Court should not entertain a writ petition where an alternative remedy is available to a party. It is Page No.# 54/75 always a matter of discretion with the Court and if the discretion has been exercised by the High Court not unreasonably or perversely, it is the settled practice of this Court not to interfere with the exercise of discretion by the High Court. The High Court in the present case entertained the writ petition and decided the question of law arising in it and in our opinion rightly” 108. From the aforesaid propositions, it can be culled out that under the following circumstances a writ petition would also be maintainable even though there may be a statutory provision for an alternative remedy either in the form of appeal or revision. i. When the High Court had entertained an application under Article 226 and had heard the matter on the merits, it would not be justified to dismiss the petition as being not maintainable. ii. when there is a breach of the principles of natural justice, or where the decision arrived at is contrary to all accepted principles of justice, the superior court in spite of the availability of an alternative provision for appeal or revision can and must interfere and such interference can still be made in favour of the petitioner who had allowed the time to appeal to expire or had not perfected his appeal by not furnishing security etc., as may be required by the statute. iii. Entertainment of an application under Article 226 would also be permissible under the situation where the error, irregularity or illegality touching jurisdiction or the procedure adopted by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves on its decision an indelible stamp of infirmity or vice which cannot be obliterated or cured on appeal or revision or where the inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or manifestly conduct the proceeding in a manner which is contrary to the rules of natural justice and all accepted rules of procedure which may offend the sense of fair play of the superior court, even where provisions for appeal or revision may be available. iv. if the High Court is in a position under Article 226 to deal with the matter itself on the basis of the affidavits filed, in a situation where the pleadings were also complete, in such circumstance it would not be wholly inappropriate to proceed with the application under Article 226 and decide it on its own merit and in such event, it cannot be said that the application under Article 226 would not be maintainable. v. The principle that a court will not entertain a writ petition when an alternative remedy was Page No.# 55/75 available may not be applied where a party came to the Court with an allegation that his fundamental right had been infringed and sought relief under Article 226. vi. The power to issue prerogative writs under Article 226 of the Constitution of India is plenary in nature and is not limited by any other provision of the constitution and the High Court having regard to the facts of the case has a discretion to entertain or not to entertain a writ petition and although this plenary right to issue a prerogative writ will normally be not exercised to the exclusion of other available remedies, but if the action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14, or for other valid and legitimate reasons which the Court thinks it necessary, the exercise of the power under Article 226 would be available. vii. When the issue for determination is a question of law, the High Court would not be wholly wrong in entertaining a petition under Article 226 of the Constitution for determining such question of law. 109. As regards as to what also constitutes a violation of the natural justice was discussed by the Privy Council in Attorney General Vs. Thomas D’ARCY RYAN reported in (1980) 2 WLR 143, wherein it had been held as such: ”Their Lordships, however need not go further into this, on which ample authority is cited in the judgments of the courts below, since it is now conceded that neither at his interview with Mr. Walkine nor on any other occasion was the respondent given any indication of the grounds upon which the Minister contemplated rejecting his application for registration; so cadit quaestio, he was given no opportunity of answering them. Their Lordships agree with the judges of the Supreme Court (as did the Court of Appeal) that an applicant for registration as a citizen of The Bahamas under article 5(2) of the Constitution, the respondent was entitled to a fair hearing in accordance with the principles of natural justice before his application was rejected by the Minister. By virtue of sections 7 and 8 of The Bahamas Nationality Act 1973, the Minister was a person having legal authority to determine a question affecting the rights of individuals. This being so it is a necessary implication that he is required to observe the principles of natural justice when exercising that authority; and, if he fails to do so, his purported decision is a nullity. ” Page No.# 56/75 110. From the said proposition it can be culled out that if the person who is being subjected to an opportunity of hearing in pursuance of compliance of the principles of natural justice, is not informed about the grounds upon which the proposed action is to be taken upon him, a hearing which may or may not be given to him would not on its own constitute the compliance of principles of natural justice. If the person who is required to answer in course of the opportunity of hearing being given to him is not made known of the reasons which may form the basis of the decision that may be made against him or is not provided with the materials upon which such reasons had been formulated, in our view it would be a futile exercise to merely provide him with an opportunity of hearing in paper as in such situation the person concerned would not be in a position to either answer or express his view as to why such reasons which would form the basis for a decision against him are unacceptable, unsustainable or non-existent. 111. In the background of the aforesaid propositions of law as regards the non maintainability of a writ petition on the ground of there being alternative remedy in the form of an appeal or revision, we are required to arrive at a conclusion as to whether the procedure adopted by the designated authority in arriving at the normal value, export price in respect of the exporting country and the non- injurious price in respect of the domestic industry can be construed to be discriminatory and arbitrary and also whether the principles of natural justice had been violated. A further conclusion would also be relevant as to whether in deciding the issues raised in the writ petition, a factual determination would also have to be made or whether the issues can be decided merely on a question of law by interpreting the same and examining whether the requirements of law had been duly complied with in arriving at such normal value, export price and non injurious price. 112. In view of the above, we deem it appropriate that it would be apposite to first decide the other issues involved in the writ petition as in doing so, the procedure adopted by the designated authority would also be examined and the manner in which the proceedings were conducted would also enable the Court to arrive at a conclusion as to whether there was any violation of the principles of natural justice and also as to whether the issues can be decided by interpreting and applying the questions of law alone or a factual determination would also be required. 113. Accordingly, the issue on the question of maintainability of writ petition would be decided at a subsequent stage after giving a consideration to the other issues involved. B) Whether the information provided by the intervener GSFC in their application under Rule 5(1) of ADR 1995 and at other stages would be held to be confidential under Rule 7 to the extent that even the normal value, export price and non injurious price determined Page No.# 57/75 by the designated authority would not be disclosed in the course of the proceedings held by it as well as in the final findings. 114. When we look at the final findings dated 01.06.2012, 15.12.2015 and 06.10.2017(interim final finding) we notice that in paragraphs 28 & 30 of the final findings dated 01.06.2012, the normal value and the margin of dumping had been shown as “***”. Again in paragraph-44(ii) of the said final findings it had been provided that “the normal value has been held confidential for the reason that some of the elements of construction constructed normal value have been taken from the confidential information made available by the domestic industry and therefore, this information have been kept confidential.” 115. Similarly in the final findings dated 05.12.2015 in respect of China, in paragraphs-52 and 54, the net selling price and price under cutting as well as the non-injurious price had been shown as “***”. In paragraph 32 of the said final findings, the constructed normal value of melamine in the exporting country computed as ex factory level was determined as “US$*** per MT (Rs.*** Per MT)” and in paragraph-34 the net export price was also determined as “US$*** per MT (Rs.*** Per MT)”. Consequently, the margin of dumping was also determined in paragraph-35 by showing it as “***”. Although in paragraph 86, it is stated that the disclosure statement was sent to the domestic industry and other interested parties, but it cannot be ascertained that the disclosure statement so sent did contain the normal value, export price, margin of dumping and the non injurious price of the domestic industry. If the final report itself does not disclose the actual value determined by the designated authority, it would be farfetched to understand that in the disclosure statement so forwarded to the domestic industry and the interested parties, the actual normal value, export price, margin of dumping and the non injurious price of the domestic industry as determined was stated. Again when we look at the issue from the point of view that in paragraph-44(ii) of the final findings dated 01.06.2012 it is the categorical stand of the designated authority that the said information are confidential and further taking into consideration the statement made by Mr. Rajiv Arora, Additional Director General, Foreign Trade, Govt. of India that the normal value of melamine in the exporting countries and the non- injurious price of the domestic industry cannot be revealed as they are based upon the information provided by the intervener GSFC and therefore, would be covered by the provision for confidentiality under Rule 7 of the ADR 1995, we are constrained to understand that even the disclosure statement made available to the domestic industry and the interested parties did not contain the normal value, export price, margin of dumping and the non injurious price as determined by the designated authority. Page No.# 58/75 116. Even in the interim findings dated 22.09.2017, the normal value, export price, margin of dumping and the non injurious price as determined by the designated authority had not been stated. But in the final findings dated 19.02.2018 also the normal value, export price, margin of dumping and the non injurious price had been shown as “***”. 117. It is the stand of the respondent authorities including the designated authority that the normal value, export price, margin of dumping and the non injurious price as determined by them cannot be disclosed as because such determinations are confidential under Rule 7 of ADR 1995. 118. For the purpose, when we look into the provisions of ADR 1995, we take note of that Rule 7 had been interpreted in paragraphs 43, 44 and 45 hereinabove. The conclusion of such interpretation is that the provision of Rule 7(1) is not declaratory in nature and on the other hand it is an enabling provision by which any information provided by the domestic industry in their application under Rule 5(1) or by any other interested parties can be claimed to be confidential, subject to the satisfaction and acceptance of such confidentiality by the designated authority. Rule 7(1) does not provide that the entire application of the domestic industry under Rule 5(1) and the information contained therein straightway becomes confidential information merely because the provision of Rule 7(1) had been invoked. Only such portion of the information, which the designated authority is satisfied to be confidential are to be treated as such. Further Rule 7(2) provides that the designated authority may require the party providing the information on confidential basis to furnish a non confidential summary thereof, meaning thereby of such confidential information. Again Rule 7(3) provides that notwithstanding anything contained in Sub Rule 2 i.e. the requirement of providing a non confidential summary of the confidential information, the designated authority if satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form, the designated authority may disregard such information and not take it into consideration for the purpose of determining the normal value, export price, margin of dumping and the non injurious price. 119. From the provisions of Rule 7 as a whole, it will be difficult to accept the stand taken by the designated authority that even the normal value, export price, margin of dumping and the non injurious price as determined would be confidential as because the same are based upon information provided by the intervener GSFC who is the domestic industry and therefore, it cannot be disclosed, even to the extent that it cannot be disclosed to the Court. 120. We also arrive at such a conclusion as because no material has been produced by the Page No.# 59/75 respondent authorities that the designated authority had arrived at a satisfaction upon a claim for confidentiality being made by the domestic industry that the entire information provided in their application under Rule 5(1) are confidential. It had also not been brought on record that upon such satisfaction as regards the confidentiality, the domestic industry was required to submit a non confidential summary of the confidential information. It had further not been brought on record that the supplier of the information is either unwilling to make the information public or to authorize its disclosure in a generalized or summary form. In the circumstance, under the provisions of Rule 7(3) either the information provided by the domestic industry is to be disregarded or they are required to be provided in the manner as indicated under Rule 7(3). 121. Further when we look into the provisions of Rule 16, we find that the designated authority shall before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. The decision referred under Rule 16 would have to be understood to be the decision in the final findings to impose the ADD and the rates thereof. The essential facts under consideration for arriving at the decision to impose ADD and the rates thereof would have to be understood to be the normal value, export price, margin of dumping and the non injurious price of the domestic industry. If we again look at the provisions of Section 9A(1) of the CTA 1975, the very jurisdiction and authority to impose ADD would be available when an article is exported by an exporter or producer from any country or territory to India at a price less than its normal value and such ADD shall not exceed the margin of dumping, where margin of dumping means the difference between the normal value and the export price. Therefore, in order to impose ADD all the three parameters i.e. normal value, export price and margin of dumping would have to be determined and such determination be disclosed to the interested parties. The whole requirement of disclosing the normal value, export price, margin of dumping and the non injurious price to the interested parties before the submission of the final findings would be that the interested parties upon such disclosure may express their views as to whether the determination by the designated authority was done in a correct manner. 122. We again take note that Rule 7(1) does not begin with the non obstante clause with regard to Rule 16, meaning thereby, that the requirements of Rule 16 are excluded from the provisions of confidentiality under Rule 7(1). 123. Accordingly, reading the whole of the provisions of Rule 7 including Rule 7(3) and the provisions of Rule 16 of the ADR 1995, we are of the view that the stand taken by the designated authority as well as by the respondents that the normal value, export price, margin of dumping and Page No.# 60/75 the non injurious price arrived at in the final findings are confidential in nature and that it cannot be disclosed to anyone at any stage, are unacceptable. C) Whether the principles of natural justice had been violated by the designated authority 124. As a consequence of arriving at a conclusion that reading the whole of Rule 7 and 16 does not make the determination of the normal value, export price, margin of dumping and the non injurious price to be confidential, we may now take a look as to whether the principles of natural justice was violated when the interested parties were given an opportunity of hearing prior to the submission of the final findings. When the determination of the designated authority is the decision to impose ADD and arriving at the rates thereof, the reasons for such determination would necessarily have to include the normal value, export price, margin of dumping and the non injurious price as determined. As held by the Privy Council in Attorney General Vs. Thomas D’Arcy Ryan (supra), an opportunity of hearing given without informing the reasons which may form the basis of a decision, is no hearing under the law and any such formality undertaken to provide an opportunity of hearing without informing the reasons of the decision would amount to a violation of the principles of natural justice. 125. In the instant case, accordingly, as the normal value, export price, margin of dumping and the non injurious price as determined by the Designated Authority which formed the basis for the decision to impose the ADD and determine the rates thereof, was not informed to the petitioners prior to the opportunity of hearing being given, we are of the view that in the instant case, the principles of natural justice had been violated. D) Whether the procedure adopted by the designated authority in arriving at a decision to impose ADD and to determine the rates thereof conform to the procedure prescribed under the ADR 1995 126. In course of the hearing of the writ petition, contentions were raised by the writ petitioners that all the material facts that were made available in course of the investigation by the designated authority for arriving at the normal value of melamine in the exporting country, particularly China, were not taken into consideration. In reply to such contention, Mr. Rajiv Arora, Additional Director General, Foreign Trade, Govt. of India had made a statement that the authorities in China were highly uncooperative in providing any kind of information as regards the normal value of melamine in that country and, therefore, the normal price of melamine in India was accepted to be the normal value of melamine in China and such procedure adopted is an accepted procedure under paragraph 7 Annexure-1 to the ADR 1995. To the statement of Mr. Rajiv Arora, Dr. A Saraf, learned senior counsel Page No.# 61/75 for the petitioner by referring to provisions of Rule 6(8) of the ADR 1995 contended that such procedure to rely upon the normal price in India can be resorted to only when the interested parties, which also includes the importers, refuses to provide the necessary information within a reasonable period of time. 127. Accordingly by the order dated 28.09.2018 in the writ petition, the respondent No.3 being the Director General of Anti Dumping Duties was required to file an affidavit. In response thereof, an affidavit dated 04.10.2018 was filed. 128. In the affidavit dated 04.10.2018 of Mr. Rajiv Arora, reference was made and reliance placed on a pronouncement by the Supreme Court in Designated Authority Vs. M/s. Haldor Topsoe, reported in A/S, MANU/SC/0440/2000. Although several paragraphs in the said judgment were quoted in the affidavit, but the same pertains to quoting the relevant provisions of law. The portions relevant as found in paragraphs 14 and 15 of the said judgment of the Supreme Court referred in the affidavit, are selectively quoted as under: “14. From a perusal of the provisions reproduced hereinabove, it is clear that the statute itself has given sufficient guidelines to the Authority to be adopted in the process of determining the ‘normal value’. To some extent, these guidelines have been placed in a preferential sequence. For example, if acceptable material is available in regard to the comparable price in the ordinary course of trade in the exporting country or territory itself then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available then the Authority has been given a choice under Section 9A (1)(C)(ii)(a) and (b). The said choice is between the comparable representative export price and cost of production in the country of origin of the goods. The question, therefore, for our consideration is whether an Investigating Authority has any discretion to reject the material production by one of the party to the proceeding in regard to the alternatives enumerated in Section 9A (1)(c)(ii)(a) and (b) and prefer any other material to establish the normal value. As noticed above, while the Authority proceeded on the basis that it had the discretion to reject the evidence produced by the respondent, the Tribunal held that the Authority had no such discretion in view of the fact anti-dumping duty is exporter specific. It would be appropriate at this stage to extract the actual wordings of the Tribunal in regard to this finding. Since the anti-dumping duty is exporter specific or manufacture specific, price of similar article manufactured by other exporters/manufacturers cannot be the basis for finding out the normal Page No.# 62/75 value. 15. With respect, we are unable to accept this finding of the Tribunal. From a careful reading of Section 9A of the Tariff Act and Rule 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the Investigating Authority. On the contrary, a perusal of the said provisions clearly shows the ‘normal value’ will have to be determined with reference to comparable price, the word “comparable price” in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. By holding anti-dumping duty to be exporter specific, the tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute. It is to be noticed that the statute has given much wider power to the Investigating Authority than what is understood by the Tribunal which is evidence from the language of Section 9A(1)(C)(i) of the Tariff Act and Rule 6(8) of the Rules. As noticed hereinabove, Rule 6(8) of the Rules specifically empowers the Authority to record its findings on the basis of the facts available to it in cases where an interested party refused access to or otherwise does not provide the necessary information to it”. 129. In the affidavit further reliance has been placed in the judgment dated 23.03.2005 in Shenyang Mastsushita S Battery Co.Ltd. Vs. Exide Industries Ltd. and Ors. (Civil Appeal No.6371 of 2003), wherein in paragraph 7, the Supreme Court has held as under: “7. By this notification a separate procedure was prescribed for determining the normal value of non-market economies. Paragraph 7 to Annexure I now provides for the determination of the normal value with reference to the price paid by a third country with a market economy to India of a like product. If such a third country is selected, the Designated Authority has to inform the exporters of the selection and grant them a reasonable period to offer their comments. It is only if this procedure is not possible that the Designated Authority can act on any other ‘reasonable basis’. In other words, the Designated Authority must exhaust the first method before moving to the alternative procedure”. 130. By referring to the aforesaid provisions, it is stated in paragraph 4 of the affidavit dated 04.10.2018 that in the case at hand before the Supreme Court, there was some cooperation from the producers/exporters from China. But, however, the present case is one of total non-cooperation and neither the producers/ exporters of China nor the Government of China came forward with any Page No.# 63/75 response. In paragraph 5, it is stated that certain importers were found to be involved in adopting the circumventing practice of over invoicing, which was investigated by the Directorate of Revenue Intelligence (in short DRI). In paragraph 7, it was stated that the concerned interested parties were provided with a disclosure statement on 23.11.2015, which contained the approach, methodology, essential facts of the investigation, including the determination of the constructed normal value which was made the basis of the final finding. 131. Accordingly, in paragraph 8 of the affidavit dated 04.10.2018, it was stated that the locus- standi of various interested parties are different depending on the nature of their activities. It was stated that the normal value for the producers/exporters of the exporting country is computed as per Section 9A(1)(c) of the CTA 1975 and this normal value is exporters’ specific and is based on the data provided by them in accordance to the requirements of ADR 1995. It was further stated that any other interested party cannot proxy or file data on behalf of any producer/exporter for arriving at a specific normal value for that exporter and therefore, the writ petitioners in the instant case, have no locus standi for claiming a normal value of a non-cooperative exporter and further that a mere participation of one or many importers without there being any cooperation from the producers/exporters of the exporting countries, does not preclude the respondent authorities to apply the provision of Rule 6(8). It is the further stand in the affidavit that if the plea of the petitioners is accepted then a mere participation of one of the interested parties will preclude the respondent authorities from applying the best facts under Rule 6(8) and thereby make the Rule otiose. 132. For the purpose of convenience, paragraph 8 of the affidavit dated 04.10.2018 is quoted below: “8. The locus standi of various interested parties is different on account of the nature of their activity and perspective of participation. The ‘Normal Value’ is computed for producers/exporters of exporting countries as per Section 9A (1)(c) of the Custom Tariff Act, 1975. This Normal Value is exporter specific based on data provided by him in accordance with requirement of AD Rules. Any other interested party cannot proxy or file data on behalf of any producer/exporter for obtaining a specific ‘Normal Value’ for that exporter. Therefore, the petitioner in the instant case has no locus standi for claiming a ‘NV’ for a non-cooperative exporter. Mere participation of one or many importers with no cooperation from producers/exporters of the exporting countries does not deprive the respondent to apply the provision of Rule 6(8). Therefore, the submission by the petitioner on this count is highly misplaced and not tenable. If this plea was to be accepted then mere participation of one Interested party will devoid the authority i.e. the pleading respondent to apply best facts under Rule 6(8) for evaluating different parameters of investigations making Rule 6(8) otiose. It is also important to note that the petitioner in the instant case neither filed a review before the Page No.# 64/75 Authority, nor have the petitioner imported participated.” 133. In M/s. Haldor Topsoe (supra), the Supreme Court while analyzing the provisions of Rule 6(4), 6(8) and 8 of the ADR 1995, arrived at a conclusion that if acceptable material is available with regard to the comparable price in the exporting country in ordinary course of trade, the normal value will have to be determined on that basis. But if such material with regard to comparable price is not available, then the designated authority has been given the choice between the comparable representative export price and the cost of production in the country of origin. Accordingly, a question arose before the Supreme Court whether the designated authority has any discretion to reject the material produced by one of the parties to the proceeding and prefer any other material to establish the normal value. In the case at hand before the Supreme Court, the designated authority proceeded on the basis that it had the discretion to reject the evidence produced by a party, to which the Tribunal concerned had held that no such discretion exists in view of the fact that anti dumping duty is exporters’ specific. 134. The Supreme Court in paragraph 15 of the judgment in M/s. Haldor Topsoe (supra) disagreed with the finding of the Tribunal and arrived at a conclusion that under Section 9A of CTA 1975 and Rule 6 of ADR 1995, there is no such restriction on the designated authority and further that the said provisions shows that the normal value will have to be determined with reference to comparable price of similar articles sold under similar circumstances. Accordingly, the Supreme Court took the view that by holding anti-dumping duty to be exporters’ specific, the Tribunal could not have restricted the scope of the investigation only to the materials to be produced by a party against whom an investigation is being conducted. A further finding of the Supreme Court is that Rule 6(8) of the Rules specifically empowers the designated authority to record its findings on the basis of facts available to it in cases where an interested party refuses access or otherwise does not provide the necessary information to it. 135. In Shenyang Mastsushita S Battery Co.Ltd. (supra) in paragraph 7, it was held that paragraph 7 of Annexure-1 to ADR 1995, provides for the determination of normal value with reference to the price paid by a third country with a market economy to India of a like product and if such a third country is selected the designated authority has to inform the exporters of such selection. Only if that procedure is not possible, the designated authority can act on any other reasonable basis, which in other words means that the designated authority must exhaust the first method before adopting the alternative method of determining the normal value on the basis of the price paid for the like product in India. Page No.# 65/75 136. An understanding of the view taken by the Supreme Court in paragraph 15 of M/s. Haldor Topsoe (supra) in respect of Rule 6(8) of the ADR 1995 would be that in the event the interested party refuses access or does not provide the necessary information, the designated authority may record its findings on the basis of facts otherwise available to it. But on the other hand, if the interested party cooperates and provides with the information, the Supreme Court does not say that such information has to be discarded and not be considered at all by the designated authority by considering the concept of ADD to be exporters’ specific and thereby determine the normal value on the basis of other available facts before it. In respect of invoking the powers under paragraph 7 of Annexure-1 of ADR 1995, before going for the alternative method of determining the normal value on the basis of the price paid for the like article in India, the first method of determining the price from a selected third country would have to be first exhausted. 137. Considering the aforesaid propositions being made by the Supreme Court, the stand of the respondents in the affidavit dated 04.10.2018 that in the case before the Supreme Court there was some cooperation from the producers/exporters from China, but the present case is a case of total non-cooperation would therefore be of no relevance. The requirement of following the provisions of Rule 6(8) and paragraph 7 of Annexure-1 of ADR 1995 as interpreted by the Supreme Court does not depend on any partial or total non-cooperation by the exporters/producers from China or by the Government of Peoples’ Republic of China nor does any such total non-cooperation empowers the designated authority to discard the materials that may be produced by an interested party without even considering it and also forego the first method of obtaining the information from the selected third country and straightway resort to the method of determining the normal value in the exporting country on the basis of the price paid for the like article in India. 138. Consequent thereof, the stand of the respondents in the affidavit dated 04.10.2018 in paragraph 8 that the normal value is exporters’ specific to be based on the data provided by the exporters/producers from the exporting country and any other interested party cannot proxy or file data on behalf of any producer/exporter for the purpose of determining the normal value for the exporter is unacceptable. Consequently, the stand of the respondents that the petitioners in the present petition have no locus standi to provide for any information is also incorrect. 139. The said view is further fortified from the provisions of Rule 8 of the ADR which provides that except in cases referred in Rule 6(8) i.e., where an interested party refuses excess or otherwise does not provide the necessary information within a reasonable period, the designated authority shall during the course of investigation satisfy itself as to the accuracy of the information supplied by the Page No.# 66/75 interested parties. 140. On a conjoint reading of Rule 6(8) and 8 of ADR 1995, the inference thereof would be that if any information is provided by the interested parties, the designated authority is required to arrive at its satisfaction as regards the accuracy of such information and only upon arriving at such satisfaction, it may either accept or reject by providing its own reasons. But without undertaking such exercise to satisfy itself as regards its accuracy, it would be incorrect on the part of the designated authority to discard such information without even making an attempt to consider it and satisfy itself as regards its accuracy. 141. Only upon such information provided by the interested party being rejected on being not satisfied, the designated authority may record its findings on the basis of other facts available before it. 142. In the event, the designated authority seeks to invoke the provisions of paragraph 7 of Annexure-1 of ADR 1995 to determine the normal value in the exporting non-market economy country by relying upon the price paid in India of the like article, as held by the Supreme Court in Shenyang Mastsushita S Battery Co.Ltd (supra), the procedure of adopting a selected third country has to be exhausted first. E) Whether the procedure adopted by the designated authority in arriving at the final findings is discriminatory and arbitrary 143. From the discussions and conclusions arrived herein before, it can be culled out that the information as regards the normal value, export price in the exporting country and margin of dumping arrived at by the designated authority, as well as the non-injurious price of the article concerned for the domestic industry in India, and the reasons thereof, had not been provided to the petitioners while they were being afforded with the opportunity of hearing. The information provided by the petitioners interested party, were also not taken into consideration at all and the same were straight away discarded by taking a stand that any other interested party cannot proxy or file data on behalf of any producer/exporter for arriving at the normal value of the article concerned in the exporting country. Further, it is the stand of the respondent authorities that the normal value of the article in the exporting country is exporters’ specific and is based on the data to be provided by the exporting country or the exporter, which in fact is the requirement of ADR 1995. Page No.# 67/75 144. From the procedure adopted by the designated authority as well as the stand of the respondents in the affidavit dated 04.10.2018 and also from the oral submissions made on behalf of the respondents, it can be inferred that according to the respondent authorities the concept of imposing ADD is a beneficial provision made in favour of the domestic industry and therefore, the requirement of levying the ADD has to be looked into only from the perspective of the domestic industry and all such information that the interested party may provide would have to be looked with a suspicion as if such information had been provided only with the intention to avoid imposition of the ADD. In paragraph 17 of the final findings dated 05.12.2015, it was provided that the domestic industry requested that the price as per the China customs or the price of imports under advance license be adopted and to support their argument the domestic industry relied upon an alert circular of the DRI wherein, it was provided that certain trader importers were declaring a higher value than the actual import value. It is also stated in the final findings that the information provided by the interested party are over invoiced and therefore, do not reflect the correct price of the article in the exporting country. 145. We take note of that as regards the reliance on the alert circular of the DRI, the same is in the nature of a general warning that such declaration of higher values are also being indulged by the importers. But the existence of such alert circular by itself would not be sufficient enough to arrive at a conclusion that the information provided by the interested party in each and every case involves a declaration of a value higher than the actual value. If the designated authority takes a view that the information provided by the interested party is not to be acted upon as it may contain an over invoiced or a higher value than the actual value, the authority is also required to arrive at a specific satisfaction that the information provided in the instant case also are over invoiced or provides a value than the actual value. Without arriving at such specific satisfaction it would be unsafe to conclude that merely because there is a possibility of there being an over invoicing or stating a higher value than the actual value therefore all such information provided by an interested party are to be construed to be containing an over invoiced or a higher value than the actual value and accordingly, rejects such information without even considering it. 146. On the other hand, if the sole basis to arrive at the normal value, export price and the margin of dumping as well as the non-injurious price is on the basis of the information provided by the domestic industry and such information are accepted without any further scrutiny as to its correctness and it being not revealed in the final findings by taking recourse to the confidentiality clause under Rule 7 of the ADR 1995, in a situation where the similar information provided by the interested party Page No.# 68/75 is discarded even without giving it a consideration, let alone arriving at a satisfaction as to its correctness, by taking a stand that the information provided by the interested party are over invoiced or shows a value higher than the actual value, merely because the authorities feel that in some cases it may happen, we are of the view that the procedure adopted by the designated authority would be discriminatory and arbitrary against the interested party importers. 147. Without a proper satisfaction being arrived at as to the correctness of the information provided by the domestic industry and the interested party and accepting the information provided by the domestic industry to make it the basis to arrive at the normal value, export price and the margin of dumping as well as the non-injurious price, a decision to impose ADD would be counter-productive and it may not satisfy the existence of the basic ingredients for imposing the ADD as provided under Section 9A of the CTA 1975. 148. Considering the procedure adopted by the designated authority in not making all the possible efforts to arrive at a correct determination as regards the normal value, export price and the margin of dumping as well as the non-injurious price, more particularly, in discarding such information that may be provided by the interested parties without even arriving at a satisfaction as to its correctness, we are of the view that the procedure adopted would not only be contrary to the provisions of Rules 6(8) and 8 of the ADR 1995, but would also be discriminatory and arbitrary. F) Whether the intervener GSFC in view of its imports of melamine can still be considered to be a domestic industry 149. Rule 2(b) of the ADR 1995 defines domestic industry as such: “domestic industry” means the domestic producers as a whole engaged in the manufacture of the link article and any activity connected therewith or those whose collective output of the said article constituted a major proportion of the total domestic prediction of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term “domestic industry” may be construed as referring the rest of the producers. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if – (i) the producers within such a market sell all or almost all of their production of the article in Page No.# 69/75 question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - for the purposes of this clause,- (i) producers shall be deemed to be related to exporters or importers only if,- a) one of them directly or indirectly controls the other; or b) both of them are directly or indirectly controlled by a third person; or c) together they directly or indirectly control a third person subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers. (ii) a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restraint or direction over the latter.” 150. The definition of domestic industry under the rules provides that all such domestic producers as a whole engaged in the manufacture of the like article, whose collective output comprises of a major proportion of the total domestic production of that article would constitute the domestic industry, except where such producers are related to the exporters or importers of the alleged dumped article or are themselves importers of such article. In the instant case it is the contention of the petitioners that the intervener GSFC, for the purpose of marketing of melamine, also does import a part thereof apart from producing it by itself. Accordingly, as the intervener GSFC also indulges in import of melamine, therefore, according to the petitioners, as far the definition of domestic industry under Rule 2(b) of ADR 1995, the intervener GSFC is not a domestic industry. If the intervener GSFC is not a domestic industry, no initiation of a proceeding at its behest can be initiated under Rule 5(1), nor can it suffer any injury for the purpose of determining the non-injurious price. 151. The respondents, including the intervener GSFC, on the other hand, takes a stand that its primary activity, amongst others, is production of melamine but in order to meet the shortfall in its production so as to satisfy the demand of its customers, import of some amount of melamine at times is also being indulged upon. It is the further contention that almost Rs. 7000 crores had been invested by the intervener GSFC to increase its production capacity and till such increase in the capacity do materialize, some imports are also being done to meet its demand. Page No.# 70/75 152. In paragraph 17 of the final findings dated 01.06.2012, the designated authority arrived at a conclusion that: (a) The intervener GSFC had filed the bill of entries for warehousing purpose to the customs while importing the subject goods from the subject countries, but they had not filed the bill of entries for home consumption and had sold the subject goods imported by them on ex-bond basis to the various buyers. (b) The intervener GSFC had not paid sales tax on the imported product and sold it on ex-bond basis and instead the eventual importer who had filed the bill of entry for home consumption had paid the import taxes including customs duty, etc. (c) An intervener GSFC had sold the subject goods without significant additions for profit and the records indicate that it was sold for a marginal profit and in some cases also for marginal loss. 153. In paragraph 19 of the said final findings, the designated authority concluded that the intervener GSFC had not filed the bills of entry for home consumption and instead had filed it for warehousing purpose and thereafter the actual consumers had filed the bills of entry for home consumption directly. In the process although the intervener GSFC had imported and sold the subject goods, the authority was of the view that the focus of GSFC had not turned to imports and is not behaving like an importer trader and its focus continues to be that of a producer undertaking its own production. 154. Again while considering the aspect as to whether the intervener GSFC is a domestic industry, the designated authority in paragraph 13 of the final findings dated 05.12.2015 arrived at a conclusion that the GSFC was not related to any exporter or importer of the product under consideration. Further, it had not imported the subject goods from the subject country during the period of investigation, however, although, it may have made some imports during the base year. 155. In its written submission, the intervener GSFC had taken a stand that the designated authority in the final findings dated 05.12.2015 had rightly noted that the GSFC had imported the subject goods from non-subject countries. 156. From a reading of the stand made available in the final findings and the written argument, what can be inferred is that the intervener GSFC had provided the service of its warehousing facility to facilitate the imports made by its consumers and therefore, it had filed the bills of entry only for the purpose of warehousing and for the purpose of home consumption the bills of entry had directly been filed by the consumers for whom the imports were made. The other inference that can be drawn is that as the intervener GSFC had not imported the subject goods from the subject countries, meaning Page No.# 71/75 thereby it had imported the subject goods from some other country, therefore, it is not an import. 157. With regard to the first reasoning that the bills of entry for home consumption were filed by the consumers directly and therefore, it is not an import by the intervener GSFC, we are of the view that such a stand is a little fallacious. If the consumers by virtue of directly filing the bills of entry for the home consumption are to be construed as individual and separate imports unconnected with the intervener GSFC, we can accept that GSFC is not indulging in any import and therefore, by virtue of its production of the article concerned continues to be a domestic industry for the purpose. But in such event the imports made by the consumers have to be construed to be individual imports and hence they would have to be subjected to the levy of ADD, in the event the countries from which the imports were made are subjected to ADD. 158. But it cannot be accepted that merely because of such consumers are indulging in the imports through the intervener GSFC by virtue of being their consumers, therefore, they are not subjected to an ADD and their imports be construed to be a part of the production of the domestic industry. We cannot accept a situation where we would have two sets of importers, one being the importers simpliciter who directly imports from the importing country and the other being a class of importers who imports the same article through the intervener GSFC. 159. Merely importing the article through the intervener GSFC will not bring in such importers within the concept of an intelligible differentia so as to satisfy the test of reasonableness for being accepted as a separate classification. In the absence of any such intelligible differentia if a classification is brought in, in respect of the importers who does their import through the intervener GSFC so as to be bestowed with the benefit of not being to subjected to ADD, the classification sought to be made would violate the provisions of equality under Article 14 of the Constitution of India. If by virtue of the country from which such exports are made would not bring it within the purview for being subjected to ADD, the matter would be otherwise, but if an import from the exporting country in respect of which the imports are subjected to ADD, in such situation, merely by indulging in the importers through the intervener GSFC cannot save the situation from being a violation of Article 14 of the Constitution of India. 160. The other reason is that the importers who indulge in the imports through the intervener GSFC are not making the imports of the subject goods from the subject country, we do not find any such provision within the definition of domestic industry under Rule 2(b) of the ADR 1995. The definition of domestic industry excludes a particular domestic producer from the purview of being a domestic Page No.# 72/75 industry if it is satisfied that such domestic producer also indulges in imports. It is not provided any further in Rule 2(b) that for such inclusion the import would necessarily have to be made from the subject country alone. 161. In this respect as to whether the designated authority has a discretion even to include a domestic producer indulging in imports to be included as a domestic industry, the respondent GSFC relies upon a decision of the High Court of Madras rendered in Nirma Limited -Vs.- Saint Gobain Glass India Limited and others reported in 2012 SCC Online Mad 1751. After discussing the various provisions of the law the Madras High Court had arrived at a conclusion that the various amendments to the term domestic industry had not taken away the discretionary power of the designated authority. 162. We are not taking a view different from the Madras High Court as regards the discretionary power of the designated authority. But again when we refer to a discretionary power, the same again has to be an exercise of a discretion and exercise of a discretion cannot to be an extent that the result thereof be either arbitrary or it would violate the provisions of Article 14 of the Constitution of India. 163. Accordingly, in the facts and circumstance of the present case whether the intervener GSFC would continue to remain a domestic industry in spite of being indulging in import to a certain extent, in our view a discretion is required to be exercised by the designated authority and in doing so such discretion should neither lead to arbitrariness nor it violate the provisions of Article 14 of the Constitution of India. G) Whether the evaluations of the ADD in terms of USD at an exchange rate as it prevailed in the year 2012 from countries under the European Union, Iran, Indonesia and Japan and at an exchange rate as it prevailed in the year 2015 from the Peoples’ Republic of China, as well as the determination of the normal value, export price, margin of dumping and the non-injurious price in terms of USD at its exchange rate as indicated above had brought in a situation which would be inconsistent with the factual situation that may be caused due to subsequent fluctuations in the exchange rate. 164. Without going much deeper into the question whether the determinations and evaluations made in terms of USD at an exchange rate as it prevailed in the year 2012 for imports from countries under European Union, Iran, Indonesia and Japan and at an exchange rate, as it prevailed in the year 2015 from China had created any inconsistent situation because of the subsequent fluctuations in the exchange rate, we merely express our concern that what would be the effect of such fluctuation on Page No.# 73/75 the evaluation of the landed price of the imported article in India and also on the amount of ADD imposed, if the evaluation of the landed price and the determination of the ADD is made in terms of USD pegged at an exchange rate in the given years when it was so evaluated and determined, in a situation where the landed price of the imported article as well as the total amount of ADD imposed in terms of INR keeps on fluctuating with every fluctuation of the exchange rate of USD. A simple analysis would indicate that if there is an increase in the exchange rate of USD, the landed price of the imported article would increase in terms of INR, which may reduce the margin of dumping requiring a lower imposition of ADD. But at the same time instead of the ADD being lowered, it being determined in terms of USD its total imposition in terms of INR would increase. 165. The designated authority may take a closer look at the aforesaid aspect and take its own decision so as to render the imposition of the ADD in consistent with the provisions of Section 9A(1) of the CTA 1975. H) On the question of maintainability of the writ petition 166. In paragraph 108 herein above, the propositions as regards the maintainability of the writ petition in a situation where an alternative remedy is available in the form of an appeal had been culled out. Amongst the relevant circumstances whose presence may justify the entertainment of a writ petition under Article 226 of the Constitution of India in spite of the existence the provision for an appeal, are violation of the principles of natural justice, procedure adopted by the authorities is discriminatory and arbitrary, the question of law requires an interpretation, a constitutional issue is also involved and the pleadings are complete and the issues raised can be decided on the basis of affidavits, etc. 167. In the instant case as concluded herein above, the procedure adopted by the respondent authorities including the designated authority did also include the question of violation of the principles of natural justice, it being discriminatory and arbitrary, there is also a question of violation of Article 14 of the Constitution, as well as interpretation of the relevant provisions of Rules 7, 6(8), 8 and 16 of the ADR 1995, which are questions of law. Further, the pleadings of the parties were complete and the issues raised can be determined even on the basis of affidavits without there being the requirement of any determination of fact. In view of the above as the principles which govern the maintainability of a writ petition under Article 226 of the Constitution as per the propositions laid down by the Supreme Court are present in the instant case, we are of the view that the writ petition would be maintainable in spite of the Page No.# 74/75 provisions of Section 9C of CTA 1975. 168. We have taken note of that during the pendency of the writ petition, the final findings were submitted by the designated authority vide notification F. No. 7/14/2017-DGAG dated 19.02.2018 as regards the sunset review of the anti-dumping investigation concerning imports of melamine from European Union, Iran, Indonesia and Japan. From the final findings dated 19.02.2018, in paragraph 35 the non-injurious price arrived at is shown as “***”. Further in paragraph 68 it had been provided that since none of the producers/exporters had participated, the designated authority by invoking Rule 6(8) had appropriately referred the best available information. Again from paragraph 23 of the final findings dated 19.02.2018 it can be taken note of that the constructed normal value as well as the margin of dumping are also shown as “***”. The very fact that the core requirements of Section 9A(1) as regards the normal value and the margin of dumping having not been disclosed and further even the non-injurious price of the domestic industry also having not been disclosed, we are to infer that Clause 7 of the ADR 1995 had been invoked and even the determination of the designated authority of the above aforesaid parameters were treated as confidential. For the reasons stated herein above while dealing with the confidentiality under Clause 7 we are unable to accept that even the parameters determined for invoking the anti-dumping duties would remain confidential. 169. In any view of the matter we may also add that if the confidentiality clause under Rule 7 would be applicable in respect of the information provided in the application by the domestic industry under Rule 5(1), the same cannot be stretched to the extent that even the determination by the designated authority as regards the normal value or the export price or the margin of dumping or even the non- injurious price of the domestic industry shall remain confidential to the extent that it will not be revealed at all to any one at any stage, but the ADD would be imposed. As already interpreted Clause 16 requires that the designated authority before giving its final findings to inform all interested parties of the essential facts under consideration which form the basis of its decision. The essential facts in our view would constitute those facts which forms the basis of the decision that the designated authority may arrive at, where such decision would also include the decision to impose the ADD and the determination of the essential parameters thereof i.e. the normal value, export value and margin of dumping or even the non-injurious price. We may again add that the requirement of Rule 16 are not subjected to the confidentiality clause of Rule 7, where although Rule 7 begins with a non obstante clause, but such provision of it Page No.# 75/75 being not notwithstanding to relate only to Rules 6(2), 6(3), 6(7), 12(2), 14(4) and 17(4) and the non obstante provision does not include Rule 16. 170. It had also been brought to our notice that during the pendency of the writ petition that another notification bearing F No. 4/15/2018 dated 18.06.2019 was issued under the signature of the Assistant Director (Cost) in the office of the respondent No. 3, which provides for a review to be made at the instance of the interested parties if they are being aggrieved with the manner and the determination of the ADD made earlier. 171. In view of the provisions of the notification dated 18.06.2019 requiring the interested parties to request for a review if they are so aggrieved by the continued imposition of the ADD and also in view of the provisions of Section 9A(5) read along with the proviso thereof and further in view of the provisions of Rule 23 (1A), we are of the view that the ends of justice would be met in the designated authority undertakes an exercise to review the requirement of imposing an ADD for the import of melamine from the Peoples’ Republic of China and as required under Rule 23(3), such review be done by following the provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 of the ADR 1985. In doing so the provisions of Rules 6(8), 7, 8 and Rule 16 be followed in the manner in which the said rules had been interpreted in this judgment. 172. Further it is provided that as required under Rule 12 the preliminary findings be submitted within a period of 6 months from initiating the review investigation and the ADD if found leviable be done as per the provisions of Rule 13. Thereupon the final findings be submitted by following the procedure provided under Rule 16 and the imposition of ADD, if levied be done as per Rules 18, 19 and 20. Till such preliminary findings are submitted the ADD, if required, be levied and imposed as provided in the interim order dated 04.10.2018. 173. In terms of the above the writ petition stands disposed of. JUDGE Comparing Assistant "