MIS. ALKALI MANUFACTURERS ASSN. OF INDIAversusDESIGNATED AUTHORITY, D.A.D.A.S. & ORS.

                        [2016] l S.C.R. 117


      MIS. ALKALI MANUFACTURERS ASSN. OF INDIA                          A
                                 v.
        DESIGNATED AUTHORITY, D.A.D.A.S. & ORS.
                (Civil Appeal No. 2242 OF 2006 etc.)
                        JANUARY 07, 2016                                B
       [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]
       Customs Tariff Act, 1995 - s. 9A - Anti-dumping duty on
dumped articles - Customs Tariff (Identification, Assessment and
Collection of Anti-Dumping Duty on Dumped Articles and for
                                                                        c
Determination of Injury) Rules, 1995 - r. 5 - Petition before the
Designated Authority (DA) on behalf of domestic industry -
Allegation that dumping of caustic soda originated in and exported
from People's Republic of China and Korea - Anti-dumping
investigation - Preliminary finding that caustic soda had been
dumped into India except from one exporter from Korea, HCC at           D
less than its normal value - Issuance of Notification imposing
preliminary anti-dumping duty - Appeal before tribunal challenging
determination of DA on anti-dumping duty and imposition of anti-
dumping duty - Tribunal holding that in HCC's case cost was
correctly determined by DA taking chlorine as a co-product and
                                                                        E
separating its manufacturing cost during the process of manufacture
of caustic soda at the stage of separation of chlorine and caustic
soda on the basis of value of production and the same principle
should have been adopted by DA in the case of domestic industry -
 On appeal, held: Tribunal has the jurisdiction to appreciate the
 evidence in entirety and arrive at a conclusion and that having not    F
been done and the entire judgment having been based on the
 application of HCC's case and price rise in the price of chlorine,
 order passed by the tribunal set aside - Tribunal directed to decide
the matter afresh.
      Allowing the appeals, the Court                                   G
     HELD: 1.1 The tribunal observed that for arriving at
dumping in relation to an article, the Designated Authority is
required to make a fair comparison between the export price
and the normal value; and that the comparison is required to be
made at the same level of trade at ex-factory level and in respect      H
                              117
118              SUPREME COURT REPORTS                   [2016] 1 S.C.R.


A     of sales made at as nearly possible the same time, relying on the
      decision rendered in HCC's case where the DA had compared
      the ex-factory export price and normal value and determined the
      margin of dumping. The tribunal opined that the margin of
      dumping in HCC is different from the margin of dumping from
      other non-cooperative exporters from Korea. The tribunal held
B
      that in case of HCC, cost was correctly determined by the DA
      taking the chlorine as co-product and separating its manufacturing
      cost during the process of manufacture of caustic soda at the
      stage of separation of chlorine and caustic soda on the basis of
      the volume of production. The same principle should have been
c     adopted by the DA in case of domestic industry and therefore,
      identical treatment was not given to domestic manufacturers and
      HCC. The tribunal opined that DA should have apportioned the
      cost up to point of separation on reasonable and equitable basis
      and he should have taken caustic soda and chlorine as co-product
      up to the stage of separation the common cost should have been
D
      allocated on the basis of volume of production. In case of HCC,
      the DA has done that and thus, two different methods could not
      be adopted for costing of the same product for comparison with
      cost of HCC. [Para 12, 13] [126-H; 127-A-F]
         1.2 Except HCC, the other exporters did not cooperate.
E However, it was the obligation of the complainant to establish
  that there was an injury to the domestic industry. For the said
  purpose, the endeavour was made to establish before the DA
  that it was a by-product and it succeeded in the said attempt. The
  tribunal, on being approached by the 7'" respondent, set aside
F the order and the notification. The reversal took place on two
  counts, namely, the principle determined in HCC's case, and that
  the cost of chlorine was substantial during the said period and,
  therefore, it deserved to be treated as a co-product as per the
  1967 Rules. The approach of the tribunal is fallacious. It observed
  that HCC's case is absolutely different. In such a situation, it should
G not have mechanically adopted the said principle. It followed a
  general principle of the rise in price but did not dwell upon the
  issue with regard to the concept of "Equal Economic
  Importance". The Equal Economic Importance, is the price
  almost similar to the main product, i.e. caustic soda. [Para 19]
H [134-G-H; 135-A-C]
    MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                         119
          DESIGNATED AUTHORITY, D.A.D.A.S.

       1.3 The tribunal should have dwelled upon the said facet A
before it recorded the finding whether it is a co-product or a by-
product. It is because the "Equal Economic Importance" has to
be considered on a rational and pragmatic basis. It is the duty of
the tribunal to see whether the DA had considered the said aspects
or proceeded on hypothetical basis. The tribunal has the B
jurisdiction to appreciate the evidence in entirety and arrive at a
conclusion and that having not beeu done and the entire judgment
having been based ou the application of HCC's case and the price
rise in the price of chlorine thus, the judgment and order passed
by the tribunal are set aside and the tribunal is directed to decide
the matter afresh keeping in view the observations made. [Paras C
21, 22] [135-F-H; 136-A]
      S&S Enterprise v. Designated Authority and others 2005
      (2) SCR.255:2005 (3) SCC 337; Reliance Industries
      Ltd. v. Designated Authority and others 2006 (6) Suppl.
      SCR 1:2006 (10) SCC 368; Commissioner of Customs,                 D
      Bangalore v. Mis G.M. Exports & others 2015 (1)
      SCALE 169 - referred to.
                      Case Law Reference
2005 (2) SCR 255               Referred to             Para 16
                                                                        E
2006 (6) Suppl. SCR 1          Referred to             Para 17
2015 (1) SCALE 169             Referred to             Para 18
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2242
of2006
                                                                        F
      From the Judgment and OrderNo. 26-28/2005-AD dated
23.12.2005 of the Customs Excise & Service Tax Appellate Tribunal,
New Delhi in Appeal No. C/521/03-AD.
                              WITH
     C.A.No.3481 of2006                                                 G
     Lawyer S. Knit & Co., B. Krishna Prasad, Praveen Kumar,
Vishwajit Singh, Suresh A. Shroff & Co. for the appearing parties.
      The Judgment of the Cour'. was delivered by
      DIPAK MISRA, J. :        The appellant in Civil Appeal No. 2242   H
120               SUPREME COURT REPORTS                        [2016] l S.C.R.


A     of 2006, namely, Mis. Alkali Manufacturers Association of India, filed a
      petition under Rule 5 of the Customs Tariff (Identification, Assessment
      and Collection of Anti-Dumping Duty on Dumped Articles and for
      Detennination of Injury) Rules, 1995 (for short, "Anti-Dumping Rules")
      before the Designated Authority (DA) on behalf of the domestic industry
      alleging dumping of caustic soda originated in and exported from People's
B
      Republic of China and Korea. On the basis of the said petition/complaint,
      DA issued a notification initiating anti-dumping investigation covering
      the period from 01.04.2001 to 31.03.2003. The interested parties were
      required to place their views in writing before the said authority and
      after causing a preliminary inquiry, the findings were sent to the known
c     exporters, importers and embassies of the two countries and exporters
      in the other countries to furnish their views to the DA. Opportunity of
      public hearing was afforded to the interested parties on 18.02.2003 and
      the parties were asked to submit their written submissions. On 14.07 .2003,
      the DA issued a disclosure statement under Rule 16 of the Anti-Dumping
      Rules. The appellant in Ci vii Appeal No. 2242 of 2006 filed its comments
D
      on the disclosure statement before the DA and requested the said
      authority to disclose the reasons in detail for the detennination of the
      preliminary findings recorded on 21.09.2002. Be it stated, the DA had
      notified its preliminary findings stating that the caustic soda had been
      dumped into India except from one exporter from Korea, Mis. Hanwha
E     Chemical Corporation at less than its normal value as a result of which
      the Indian manufacturers of caustic soda had suffered injury. The DA
      provisionally recommended imposition of anti-dumping duty as the
      difference between $353.20 per MT and landed price of imports on
      every exporter from Korea except Mis. Hanwha Chemical Corporation
      (HCC) and the difference between $362.34 and landed price of imports
F
      on all exports from China. Regard being had to the preliminary findings,
      the Ministry of Finance had issued Notification No. 142 of 2002 on
      26.12.2002 imposing preliminary anti-dumping duties. After hearing the
      interested parties and issuance of the disclosure statement, the DA issued
      its final findings in which it detennined that the dumping margin for all
G     exporters from Korea was 37.30%, except for HCC for which it
      determined a dumping margin of (-)4.2% (de minimis), and the dumping
      margin for all exporters from China was 84.05%, except for Chlor
      Shanghai for which it determined a dumping margin of 41.7%. The said
      order was passed on 04.08.2003 and a final Notification No. 142 of
      2003 was issued by the Central Government on 23.09.2003.
H
    MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                                 121
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

       2. Being aggrieved by the aforesaid Notification, the appellant in       A
Civil Appeal No. 2242 of 2006 filed an appeal before the Customs, Excise
and Service Tax Appellate Tribunal, Principal Bench, New Delhi (for
short, "the tribunal") challenging the determination of the DA on anti-
dumping duty. Two other companies, namely, Mis. National Aluminum
Company Ltd. and Mis. Hindustan Lever Limited also preferred appeals
                                                                                B
challenging the imposition of anti-dumping duty on import of caustic soda.
       3. Before the tribunal, it was contended by the complaint/appellant
that the findings of the DA on the imports made from HCC
recommending the anti dumping margin is de minimis (minus 4.2%) is
not based on the correct appreciation of the facts and the normal value
and the export price of sodium hydroxide (caustic soda) had not been
                                                                                c
correctly worked out in case of HCC as the data provided by the said
Corporation was not correct. The said contention was elaborated on
many a score which included that the export price as defined in Section
9A of the Customs Tariff Act, 1995 (for short, "Act") had not been
correctly determined; that the DA could not have worked out export              D
price at ex-factory level as deduction allowed for arriving at the ex-
fa,ctory price was without checking the records of HCC inasmuch as no
appropriate response was given to the questionnaire; that the DA should
have taken into consideration the price of each individual transaction for
comparison of normal value and the export price. It was also urged that
the methodology adopted by the DA for arriving at the cost of production        E
was not disclosed although the authority was required to disclose all the
reasons for arriving at the conclusion.
      4. The stand of the appellant was resisted by the contesting
respondents. On behalf of the DA, reliance was placed on Cost
Accounting Records (Caustic Soda) Rules, 1967 (for short, "1967 Rules")         F
as amended from time to time and, on that basis it was put forth that
'chlorine' was determined as a by-product. It was also contended that
the DA had applied the correct methodology and hence, no fanlt could
be found with the determination. The assail to the erroneous procedure
being adopted by the DA was seriously resisted before the tribunal.             G
       5. The tribunal considering the submissions raised by the parties
came to hold that the main duty of the DA is to determine existence
degree and effect of alleged dumping in relation to import of any article
and to submit its finding provisionally or finally to the Central Goverrunent
regarding normal value, export price and margin of dumping in relation          H
122               SUPREME COURT REPORTS                         [2016] l S.C.R.



A     to the article under investigation and the injury or threat of injury to an
      industry established in India or material retardation to the establishment
      of industry in India consequent upon imports of such articles from
      specified countries and to recommend levy of anti-dumping duty 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.
B
      The tribunal addressed the issue whether the allegation that in the case
      of HCC the normal value and export price had not been correctly
      determined as a consequence of which higher anti-dumping duty on HCC
      had been imposed and proceeded to hold thus:-
            "19.l In case of Mis Hanwha Chemical Corporation, caustic soda
c           was exported from Korea to India. The order for export was
            obtained by Mis Tricon who had filed the tender with Mis NALCO
            and whose tender was accepted. Mis Tricon for exporting caustic
            soda to Mis NALCO India placed order on Mis Hanwha
            Corporation to supply the goods to Mis NALCO and Mis Hanwha
D           Corporation in tum obtained the goods from Mis Hanwha Chemical
            Corporation. We find that in this case the goods were exported
            from Korea to India irrespective of the fact that the tender was in
            the name of Mis Tricon, USA. Therefore, Designated Authority
            has to determine a definite CIF export price at which the goods
            were exported from Korea to India. When the CIF export price is
E           available from Korea to India then it has to be taken as the export
            price. To reach the ex-factory export price, the deduction of ocean
            freight, ocean insurance, port charges, commission paid to the
            middleman namely Mis Hanwha Corporation and inland freight
            and inland insurance, etc. has to be deducted to reach the ex-
F           factory price for export. This has been done, therefore, there is
            no relevance of taking into consideration the SGA expanses of
            Mis Hanwha Corporation. We also find that deduction of $5 per
            DMT was also not permitted by the Designated Authority for
            caustic soda produced by diaphram technology as there is no
            difference in caustic soda when manufactured by membrain
G           technology or diaphrarn technology. It is immaterial whether Mis
            Hanwha Chemical Corporation and Mis Hanwha Corporation
            were running in loss, we have only to see whether the export
            price has been correctly determined or not. We find that the
            Designated Authority in his final finding has observed that the
H           authority for the purpose of final finding considered the adjustment
   MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                                  123
 DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

      as claimed by the customer on discount adjustment in terms of             A
      sale as per NALCO tender and adjustment of previous transaction
      sale to Mis Tricon. Thus addition of $4.57 /MT was correctly done.
      Thus, Designated Authority has correctly determined the export
      price for caustic soda and it was normatted for other exporters
      from Korea. This normatted export price was taken and normal
                                                                                B
      value was determined on the basis of published figures of domestic
      sale in Chlor Alkali Magazine. The domestic industry has raised
      various points with regard to Mis Hanwha Chemical Corporation
      like insufficient/dismal disclosure, incorrect cost of production data,
      lack of information ofaffiliation, illegal adjustment of US $5 PMT
      claimed citing NALCO tender and issue of contract and physical            c
      export. The Designated Authority had examined and verified at
      the plant site corporate office of M/s Hanwha's Chemical
      Corporation relevant cost record, financial records and production
      records for determining the cost components, domestic sale price,
      export price, pricing policy and transfer pricing to Mis Tricon.          D
      The English version of balance sheet was also prodded to domestic
      industry apart from other non-confidential information as and when
      asked for.
      19.2 The Designated Authority has observed that the investigation
      is not NALCO's centric although NALCO consumes sizable
      quantity, but the consumption of NALCO just 6 to 7 per cent of            E
      Indian demand, therefore, the investigation covers all other of
      imports whether by NALCO or others."
       6. After so holding, the tribunal opined that in case of HCC cost
had been correctly determined by the DA taking the chlorine as a co-
product and separating its manufacturing cost during the process of             F
manufacture of caustic soda at the stage of separation of chlorine and
caustic soda on the basis of the value of production and the same principle
should have been adopted by the DA in case of domestic industry. The
tribunal opined that the identical treatment was not given to the domestic
manufacturers and HCC. After so holding, the tribunal proceeded to              G
deal with the non-injurious price and opined thus :-
      "22. While determining the non-injurious price for the like article
      for the domestic industry, the Designated Authority has used the
      actual verified cost of production of the subject goods to determine
      optimum cost of production for domestic industry taking into              H
124               SUPREME COURT REPORTS                        [2016] 1 S.C.R.


A           account the normatted base consumption norm of all the
            participating domestic industry and the actual price of raw material
            which are consumed for production of caustic soda during the
            period of investigation. We find that Cost Accounting Records
            (Caustic Soda) Rules 1967 as amended from 1999 provide for
            maintenance of proper books of accounts containing particulars
B
            in Schedule III and proforma "A" and "B" mentioned in the said
            schedule annexed to the rules relating to utilization of materials
            labour and other items of cost as far as these are applicable to
            caustic soda in any form. We find that during the POI, the cost of
            chlorine was varying and it has been treated as a bye-product by
c           the Designated Authority. When cost of chlorine is substantial
            then it should not be taken as bye-product but it should be
            treated as a co-product as per para 12 of Annexure-III to Cost
            Accounting Records (caustic soda) Rule 1967. In such a situation,
            DA should have apportioned the cost upto point of separation on
            reasonable and equitable basis. He should have taken caustic soda
D
            and chlorine as co-product and up to the stage of separation the
            common cost should have been allocated on the basis of volume
            of production. In case of Mis Hanwha Chemical Corporation the
            Designated Authority has done this. Therefore, two different
            methods cannot be adopted for costing of the same product for
E           comparison with cost of Mis Hanwha Chemical Corporation. A
            uniform practice should have been adopted for both."
             7. The aforesaid view persuaded the tribunal to hold that the
      non-injurious price was not correctly determined by the DA and,
      accordingly, set aside the Notification No. 142 of2003 dated 23.09.2003
F     and the final findings of the DA on non-injurious price and injury margin
      and remanded the matter to the DA for fresh determination of non-
      injurious price and injury margin by reasonable and equitable distributing
      the cost of production between the chlorine and caustic soda and issue
      findings afresh in accordance with law. The tribunal finally held thus:-
G           "22.2 We are, therefore, of the view that the non-injurious price
            was not correctly determined by the Designated Authority. In case
            of Mis. Hanwah Chemical Corporation, the appellant had
            separated the cost of production between Caustic soda and
            Chlorine at the point of separation of the Chlorine and Caustic
            soda. The same principle should be applied for domestic industry
H           for reasonable and equitable distribution of cost of production
     MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                               125
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

      between chlorine and caustic soda. Since this has not been done          A
      and this has lead to incorrect fixation of non-injurious price, and
      consequently anti-dumping duty.
      23. We, therefore, set aside the impugned notification No. 142/
      2003-Cus dated 23rd September, 2003 and the final findings of
      the DA on non-injurious price and injury margin. We remand the           B
      case to the designated Authority for a fresh determination of non-
      injurious price and injury margin by reasonably and equitably
      distributing the cost of production between chlorine and caustic
      soda and issue final finding afresh on that basis in accordance
      with law and in the light of this judgment."
                                                                               c
       8. We have heard Mr. Basava Prabhu Patil, learned senior
counsel for the appellant in Civil Appeal No. 2242 of 2006, Mr. Yashank
Adhyaru, learned senior counsel for the appellant-Designated Authority
in Civil Appeal No. 3481 of2006, and Mr. S.K. Bagaria, learned senior
counsel for respondent no. 7.
                                                                               D
        9. Mr. Basava Prabhu Patil, learned senior counsel, assailing the
judgment and order passed by the tribunal has urged that the tribunal
was not justified in comparing the normal value of a foreign exporter
with the NIP of Indian producers and further there was no warrant to
direct the DA to determine cost of production for foreign exporters and
of Indian producers following the same methodology when the foreign            E
exporters and Indian producers adopt and apply different accounting
practices as permissible in their respective countries; that the tribunal
has applied the principle laid down in HCC case though in the said case,
the normal value and the value of export price was the same and there
was really no dumping; that the tribunal has grossly erred by treating         F
chlorine as a co-product or a joint-product along with caustic soda without
taking note of the accounts of the company which has been maintained
on the basis of the generally accepted accounting principles; that the
tribunal has really not kept itself alive to the language employed in Para
12 of Schedule III to the 1967 Rules which lays down the concept of
"Equal Economic Importance" for the joint products. The learned counsel        G
further urged that the tribunal has been carried away by the data of
international prices presented by the importers which show that the
chlorine prices in the international market were substantial whereas the
 thrust of the matter to be decided for treating chlorine as a joint product
 under paragraph 12 of the Schedule III to the 1967 Rules as the chlorine      H
126                SUPREME COURT REPORTS                          (2016] l S.C.R.


A     was equal economic importance to the concerned Indian company. The
      submission of Mr. Patil is that the DA has committed a grave error by
      by-passing the generally accepted accounting principles in India as well
      as specific provisions of law that the recognized accounts have to be
      maintained for a particular product and that has led to the eventual
      determination. Learned counsel would criticise that the order of the
B
      tribunal is not clear and it is solely based on earlier determination in Mis.
      Hanwha Chemical Corporation's case.
             10. In Civil Appeal No. 3481 of 2006 preferred by the DA, apart
      from raising the similar grounds, it has also been urged that the DA on
      appropriate consideration and also considering the ambit and sweep of
c     the 1967 Rules has determined chlorine as a by-product and there was
      no justifiable reason on the part of the tribunal to dislodge the same. Mr.
      Yashank Adhyaru, learned senior counsel appearing for the DA would
      seriously urge that it was not a fit case on the part of the tribunal to remit
      the matter to the DA to determine the NIP as it was not necessary to do
D     so, for undoubtedly it was a by-product but not a co-product.
             11. Mr. Bagaria, learned senior counsel appearing for the
      respondent no. 7, per contra, would contend that voluminous documents
      were filed by the said respondent as the appellant before the tribunal,
      and accordingly the tribunal had applied the principle in Mis. Hanwha
E     Chemical Corporation's case and taken note of the market price of
      Chlorine at the relevant time and, therefore, the judgment and order
      passed by the tribunal are absolutely impeccable and do not warrant any
      kind of interference by this Court in appeal. It is further propounded by
      him that the determination of "Equal Economic Importance'', as envisaged
      in paragraph 12 of Schedule III to the 1967 Rules having not been defined,
F     cannot be restricted or confined to the sale price as reflected in the
      books of accounts of a domestic company but there has to be other
      permissible enquiry, regard being had to the commercial use. To bolster
      the said submission, he has read out few passages from the monograph
      issued by the Institute of Costing Work Accounts of India.
G            12. To appreciate the aforesaid submissions in proper perspective,
      we have carefully scrutinized the judgment rendered by the tribunal. On
      a perusal of the same, we find that after narrating the facts and noting
      the submissions, the tribunal has observed that the DA has not taken into
      account many an aspect while determining the NIP, for it has taken into
H     consideration certain obsolete concepts. The tribunal has observed that
    MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                                 127
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

for arriving at dumping in relation to an article, the DA is required to        A
make a fair comparison between the export price and the normal value.
It has also stated that the comparison is required to be made at the same
level of trade at ex-factory level and in respect of sales made at as
nearly possible the same time. In this context, it has placed reliance, on
the decision rendered in Mis. Hanwha Chemical Corporation's case                B
where the DA had compared the ex-factory export price and normal
value and determined the margin of dumping. The tribunal has opined
that the margin of dumping in Mis. Hanwha Chemical Corporation is
different from the margin of dumping from other non-cooperative
exporters from Korea. After so observing, the tribunal has held that in
case of Mis. Hanwha Chemical Corporation cost has been correctly                C
determined by the DA taking the chlorine as co-product and separating
its manufacturing cost during the process of manufacture of caustic
soda at the stage of separation of chlorine and caustic soda on the basis
of the volume of production. The same principle should have been adopted
by the DA in case of domestic industry and therefore, identical treatment       D
was not given to domestic manufacturers and HCC.
        13. Thereafter, the tribunal has adverted to the issue of NIP and
in that context has opined that DA should have apportioned the cost up
to point of separation on reasonable and equitable basis and he should
have taken caustic soda and chlorine as co-product up to the stage of
separation the common cost should have been allocated on the basis of           E
volume of production. Thereafter, it has been observed that in case of
HCC, the DA has done that and hence, two different methods cannot be
adopted for costing of the same product for comparison with cost of
HCC.
       14. To appreciate the factual score in proper perspective, we may        F
profitably refer to Section 9A of the Act which reads as follows:-
      "Section 9A. Anti-dumping duty on dumped articles
      (1) Where any article is exported by an exporter or producer
      from any country or territory (hereafter in this section referred to
                                                                                G
      as the exporting country or territory) to India at less than its normal
      value, then, upon the importation 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.
                                                                                H
128         SUPREME COURT REPORTS                          (2016] l S.C.R.


A     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
B     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
c     article is not resold to an independent buyer, or not resold in the
      condition 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-
D     (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
      (ii) when there are no sales of the like article in the ordinary course
E     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-
F     (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
G     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
H     merely transhipped through the country of export or such article
  MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                              129
DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

   is not produced in the country of export or there is no comparable      A
   price in the country of export, the normal value shall be determined
   with reference to its price in the country of origin.
   (IA). Where the Central Government, on such inquiry as it may
   consider necessary, is of the opinion that circumvention of anti-
   dumping duty imposed under sub-section ( 1) has taken place, either     B
   by altering the description or name or composition of the article
   subject to such anti- dumping duty or by import Of such article in
   an unassembled or dissembled form or by changing the country
   of its origin or export or in any other manner, whereby the anti-
   dumping duty so imposed is rendered ineffective, it may extend
   the anti-dumping duty to such article or an article originating in or
                                                                           c
   exported from such country, as the case may be.
   (2) The Central Government may, pending the determination in
   accordance with the provisions of this section and the rules made
   thereunder of the normal value and the margin of dumping in relation
   to any article, impose on the importation of such article into India    D
   an anti-dumping duty on the basis of a provisional estimate of
   such value and margin and if such anti- dumping duty exceeds the
   margin as so determined, -
   (a) the Central Government shall, having regard to such
   determination and as soon as may be after such determination,           E
   reduce such anti-dumping duty; and
   (b) refund shall be made of so much of the anti- dumping duty
   which has been collected as is in excess of the anti-dumping dnty
   as so reduced.
                                                                           F
   (2A) Notwithstanding anything contained in sub-section (1) and
   sub-section (2), a notification issued under sub-section ( 1) or any
   anti-dumping duty imposed under sub-section (2), unless
   specifically made applicable in such notification or such imposition,
   as the case may be, shall not apply to articles imported by a hundred
   per cent export-oriented undertaking or a unit in a free trade zone     G
   or in a special economic zone.
   Explanation. - For the purposes of this section, the expressions
   "hundred per cent export-oriented undertaking'', "free trade zone"
   and "special economic zone" shall have the meanings assigned to
   them in Explanations 2 to sub-section (f) of section 3 of Central       H
130        SUPREME COURT REPORTS                         [2016] l S.C.R.



A     Excise Act, 1944.
      (3) If the Central Government, in respect of the dumped article
      under inquiry, is of the opinion that -
      (i) there is a history of dumping which caused injury or that the
      importer was, or should have been, aware that the exporter practices
B     dumping and that such dumping would cause injury; and
      (ii) the injury is caused by massive dumping of an article imported
      in a relatively short time which in the light of the timing and the
      volume of imported article dumped and other circumstances is
      likely to seriously undermine the remedial effect of the anti-
c     dumping duty liable to be levied, the Central Government may, by
      notification in the Official Gazette, levy anti-dumping duty
      retrospectively from a date prior to the date of imposition of anti-
      dumping duty under sub-section (2) but not beyond ninety days
      from the date of notification under that sub-section, and
D     notwithstanding anything contained in any other law for the time
      being in force, such duty shall be payable at such rate and from
      such date as may be specified in the notification.
      (4) The anti-dumping duty chargeable under this section shall be
      in addition to any other duty imposed under this Act or under any
E     other law for the time being in force.
      (5) 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
 F    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.
 G    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.
 H    (6) The margin of dumping as referred to in sub- section (I) or
     MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                                131
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

      sub-section (2) shall, from time to time, be ascertained and              A
      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 rules may provide for the manner in which articles liable for
                                                                                B
      any anti-dumping 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.
      (6A) The margin of dumping in relation to an article, exported by         c
      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:
      Provided that where an exporter or producer fails to provide such         D
      records or information, the margin of dumping for such exporter
      or producer shall be determined on the basis of facts available.;
      (7) Every notification issued under this section shall, as soon as
      may be after it is issued, be laid before each House of Parliament.
                                                                                E
      (8) The provisions of the Customs Act, 1962, (52of1962) and the
      rules and regulations made thereunder, including those relating to
      the date for determination of rate of duty, assessment, non-levy,
      short levy, refunds, interest, appeals, offences and penalties shall,
      as far as may be, apply to the duty chargeable under this section
      as they apply in relation to duties leviable under that Act."             F
       15. As we find the said Section is quite a comprehensive provision
and deals with various facts covering "margin of dumping", "export price",
"normal value", etc. It clearly stipulates that it is an additional duty. The
said duty is to be imposed on various criteria. In this regard, we may
usefully reproduce Rule 5 of the Anti-Dumping Rules. It reads as follows:-      G
      "Rule 5. Initiation of investigation. - (I) 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.                                                 H
132         SUPREME COURT REPORTS                            [2016] I S.C.R.



A     (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
B
      (c) where applicable, a causal link between such dumped imports
      and alleged injury.
      (3) The designated authority shall not initiate an investigation
      pursuant to an application made under sub-rule (l) unless -
C     (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 product, that the application has been made
      by or on behalf of the domestic industry :
      Provided that no investigation shall be initiated if domestic
D     producers expressly supporting the application account for less
      than twenty five per cent of the total production of the like 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
E     evidence regarding -
      (i) dumping,
      (ii) injury, where applicable; and
      (iii) where applicable, a causal link between such dumped imports
F     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
G     of the like article produced by that portion of the domestic industry
      expressing either support for or opposition, as the case may be, to
      the application.
      (4) Notwithstanding anything contained in sub-rule ( l) the
      designated authority may initiate an investigation suo motu if it is
      satisfied from the information received from the Collector of
H
    MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                             133
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

      Customs appointed under the Customs Act, 1962 (52of1962) or           A
      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."    B
       16. Rule 1I deals with determination of injury. Rule 17 provides
for final findings. To understand the import of the Section and the Anti-
Dumping Rules, we may reproduce a passage from the S&S Enterprise
.v. Designated Authority and others':-
      "In our opinion, the interpretation of Rule 14(d) by Respondent       c
      No.I and the Tribunal is incorrect and contrary to its language.
      The imposition of dumping duty is under Section 9A of the Customs
      Tariff Act, 1975 and the Rules and is the outcome of the General
      Agreement on Tariff and Trade (GAIT) to which India is a party.
      The purpose behind the imposition of the duty is to curb unfair       D
      trade practices resorted to by exporters of a particular country of
      flooding the domestic markets with goods at rates which are lower
      than the rate at which the exporters normally sell the same or like
      goods in their own countries so as to cause or be likely to cause
      injury to the domestic market. The levy of dumping duty is a method
      recognized by GAIT which seeks to remedy the injury and at the        E
      same time balances the right of exporters from other countries to
      sell their products within the country with the interest of the
      domestic markets. Thus the factors to constitute 'dumping', are
      (i) an import at prices which are lower than the normal value of
      the goods in the exporting country; (ii) the exports must be          F
      sufficient to cause injury to the domestic industry."
      17. In Reliance Industries Ltd. v. Designated Authority and
others' this Court has observed thus:-
      "The result was that an industrial base was created in India after
      independence and this has definitely resulted in some progress.       G
      The purpose of Section 9-A can, therefore, easily be seen. The
      purpose was that our industries which had been built up after
      independence with great difficulties must not be allowed to be
 1 (2005) 3 sec 337
 2 (2006) 10 sec 368                                                        H
134               SUPREME COURT REPORTS                         [2016] 1 S.C.R.



A           destroyed by unfair competition of some foreign companies.
            Dumping is a well-known method of unfair competition which is
            adopted by the foreign companies. This is done by selling goods
            at a very low price for some time so that the domestic industries
            cannot compete and are thereby destroyed, and after such
            destruction has taken place, prices are again raised.
B
            The purpose of Section 9-A is, therefore, to maintain a level playing
            field and prevent dumping, while allowing for healthy competition.
            The purpose is not protectionism in the classical sense (as proposed
            by the German economist Friedrich List in his famous book
            'National System of Political Economy' published in 1841) bL1t to
c           prevent unfair trade practices. The 1995 Amendment to
            Section 9A was apparently made in pursuance to Article VI of
            the General Agreement on Tariffs and Trade 1994 (GAIT 1994)
            which permitted anti-dumping measures as an instrument of fair
            competition.
D           The concept of anti-dumping is founded on the basis that a foreign
            manufacturer sells below the normal value in order to destabilise
            domestic manufacturers. Dumping, in the short term, may give
            some transitory benefits to the local customers on account of lower
            priced goods, but in the long run destroys the local industries and
E           may have a drastic effect on prices in the long run."
           18. Recently in Commissioner of Customs, Bangalore v. Mis
      GM. Exports & others', while dealing with the concept of 'injury', a
      two-Judge Bench has observed:-
            "It will thus be seen that the determination of material injury to
F           domestic industry depends on a series of complex economic factors
            which are to be segregated from other factors which may also
            cause injury to the said industry."
             19. It is pertinent to note that except M/s. Hanwha Chemical
      Corporation, the other exporters did not cooperate. However, it was the
G     obligation of the complainant to establish that there was an injury to the
      domestic industry. For the said purpose, the endeavour was made to
      establish before the DA that it was a by-product and it succeeded in the
      said attempt. The tribunal, on being approached by the 7'" respondent,
      has set aside the order and the notification. As is noticeable, the reversal
H     32015(l)SCALE169
     MIS. ALKALI MANUFACTURERS ASSN. OF INDIA v.                             135
  DESIGNATED AUTHORITY, D.A.D.A.S. [DIPAK MISRA, J.]

has taken place on two counts, namely, the principle determined in Mis.      A
Hanwha Chemical Corporation's case, and further by taking notice of
the fact that the cost of Chlorine was substantial during the said period
and, therefore, it deserved to be treated as a co-product as per the 1967
Rules. The approach of the tribunal, as we see, is fallacious. It has
observed that Mis. Hanwha Chemical Corporation's case is absolutely
                                                                             B
different. In such a situation, it should not have mechanically adopted
the said principle. That apart, as submitted by Mr. Patil, it has followed
a general principle of the rise in price but has not dwelt upon the issue
with regard to the concept, i.e., "Equal Economic Importance". The
Equal Economic Importance, as is canvassed, is the price almost similar
to the main product, i.e. caustic soda. Mr. Patil, learned senior counsel,   c
would contend that it would depend upon the realization of amount from
sales. It is submitted by him that the appellant had received 82% from
sales of caustic soda and 18% from the sale of Chlorine subject to certain
variations.
       20. Mr. Bagaria, learned senior counsel, has put forth that the       D
amount reflected in the accounts may be correct for the purpose of
accounting as provided under the Companies Act, 1956 and other
purposes but the words "Equal Economic Importance" being not defined
in Paragraph 12 to Schedule III of the 1967 Rules, it has to be determined
on the facts of each case. Learned counsel would contend that the use
of chlorine and its commercial use should have gone into by the tribunal.    E
Elaborating the same, it is contended that the Chlorine can be used for
some other production.
        21. In our considered opinion, the tribunal should have dwelled
upon the said facet before it recorded the finding whether it is a co-
product or a by-product. It is because the "Equal Economic Importance"       F
has to be considered on a rational and pragmatic basis. It is the duty of
the tribunal to see whether the DA had considered the said aspects or
proceeded on hypothetical basis. The tribunal has the jurisdiction to
appreciate the evidence in entirety and arrive at a conclusion and that
having not been done and the entire judgment having been based on the        G
application of Mis. Hanwha Chemical Corporation's case and the price
rise in the price of Chlorine, we are constrained to dislodge the judgment
and order of the tribunal.
       22. Resultantly, the appeals are allowed and the judgment and the
order passed by the tribunal are set aside and the tribunal is directed to   H
136                 SUPREME COURT REPORTS                      [2016] I S.C.R.



A     decide the matter afresh keeping in view the observations made
      hereinabove. The tribunal shall take into account the generally acceptable
      accounting principle and keep in view the statutory concept and
      commercial use, "Equal Economic Importance" and determine the
      controversy. It will be permissible to look at any other material to
      determine the same. The tribunal shall decide the matter within a span
B
      of six months hence. There shall be no order as to costs.
      N"idhi Jain                                               Appeals allowed.