AHMED OWAIS PIRZADA, (MEMBER).- --By way of this appeal, Messrs Lal Din Autoparts (Private) Limited ("the appellant") has challenged the Final Dete rmination report made on 13.01.2017 by the National Tariff Commission ("the Commission") levying definitive anti-dumping duty on dumped imports of Cold Rolled Coils/Sheets ("CRC ") into Pakistan originating in and/or export ed from the People's Republic of China and Ukraine. The Commission issued follow-up notice on 19.01.2017 in the newspapers.
2. Briefly the facts are that Messrs Aisha Steel Mills Limited, claiming itself the domestic industry , has made an application on 11.06.2015, requesting to initiate investigation against allegedly dumped imports of CRC exported by all exporters from People's Republic of China and Ukraine and for imposition of anti-dumping duty thereon. The Commission after examining the application has decided to initiate investigation on 16.07.2015 against the investigated product i.e. CRC and issued Preliminary Determination Report on 12.01.2016 levying provisional anti- dumping duty for four months on dumped imports of CRC into Pakistan. After completing its investigation, the Commission has issued Final Determination report on 13.01.2017, notice whereof issued on 19.01.2017. It has been decided to levy definitive anti-dum ping duty for five years on the dumped imports of CRC into Pakistan originating in and/or exported from People's Republic of China and Ukraine, impugned, herein.
3. The appellant in its appeal filed in this behalf has taken the plea that the Ordinance, 2015, was promulgated by the President of Pakistan on 26th February , 2015. Further , in terms of section 79 of the Ordinance, 2015, the Anti- Dumping Ordinance, 2000 was permanently repealed; whereas under Article 89 (2)(ii) of the Constitution, the Ordinance 2015 stood automatically repealed on 25th June, 2015 after the lapse of 120 days. It has further been contended that the. Members of the respondent No.1 were appointed after 25th June, '2015 and before 5th September 2015, when there was no Tariff Commission law in Pakistan. Such appointments were, therefore, without lawful authority and liable to be set aside. In the appeal, it has been stated that the investigation and final determination have not been made within the mandatory statutory period, therefore, it deemed to have been abated. It has been contended that the respondent No.2's application for the anti-dumping investigation do not have the necessary support of the domestic producers whose collective output constitute more than 50 % of the total production by the domestic industrie s of the like product under section 24 of the Anti-Dumping Duties Act. In these circumstances, the application made by a sole applicant cannot be conside red to be on behalf of domestic industry under section 2(d) of the Anti-Dumping Duties Act. In the appeal, it has been stated that respondent No.2 itself is the importer of HRC from the People's Republic of China and other countries. The CRC/S produced by the respondent No.2 is the refined processed product of 100 % imported HRC. This crucial factor has not been considered by respondent No.1 which vitiates the due process of law. Further , the various requirements of section 16 of the Act have been ignored, assessin g the cumulative effects before making an individual determination of the factors referred in the aforesaid section which is completely illegal. The main factor of material injury involved in this behalf could not also be proved because of healthy gains in production from the growth figures submitted by the parties. The appellant has contended that without making an assessment of prices in the domestic market under section 15(3) of the Act, the respondent No.1 preferred to reach the conclusion that there has been significant price under cutting, price suppression and price depression due to dumped import just relying on the information provided by respondent No.2. Further , there has been a constant increase in the production, capacity utilization, sales and market shares of the domestic industry which clearly shows that there has been no negative impact of the investigated product on the local market. It has been pleaded that Anti-dumping Act being a taxing statue needs to be interpreted strictly by keeping in view the whole purpose of the law. It has been prayed in the appeal that under these circumstances, final determination and levy of definite anti-dumping duties and pursuant Public notice dated 19-01-2017 issued by respondent No.1 may be set aside.
4. We have heard the learned counsel for appellant, Legal Advisor for respondent No. 1 and an associate of learned counsel for respondent No. 2 quite in detail. The learned counsel for the appellant has almost repeated the contents of the appeal, trying to put more emphasis on the grounds of the appeal filed in this behalf. The learned counsel has stated that during the investigation period, there was no law in the field as the Ordinance promulgated on 26th February , 2015 was lapsed on 25.06.2015. It has further been stated that the Resolution has been passed by the National Assembly of Pakistan on 30.07.2015 to validate the Ordinance, 2015 with retrospective effect without any lawful authority which is against the Constitution of Pakistan. The learned counsel repeating the points raised in the Appeal has stated that Members of the Commission were appointed within a period of 25th June, 2015 to 5th September , 2015 when there was no law in the field which could enable the authorities to make such appointments. The learned counsel has argued that the investigation was not completed within the time prescribed under the law and the application of the respondent No.2 was not having the necessary support of domestic industry required under section 24 of the Act. The learned counsel again repeating the same argument already given in the grounds of appeal has stated that the Commission assessed cumulative effects of the imports without first making an individual determination of the factors. It has been argued that the factor of material injury has also been ignored by respondent No. 1 . The learned counsel has indicated that while concluding the investigation, the facts mentioned in the annual reports of respondent No.2 for the years 2013, 2014 and 2015 that its losses decrease and return on investment improved during the period of investigation have been ignored. The learned counsel prayed that final determination report published on 19th January , 2017 may be set aside by accepting the appeal.
5. On the other hand, learned Legal Advisor for respondent No. 1 has vehemently opposed the arguments made by the learned counsel for appellant and stated that the Commission has fulfilled all legal requirements during the investigation to reach its Final Determination report which is impugned herein. Responding to the point raised by the appellant that there was no law betw een 26-02-2015 and 25-06-2015 after the lapse of the Ordinance, 2015, the learned legal Advisor has stated that this issue has already been decided by the Hon'ble High Court, which being not challenged has attained finality . The Hon'ble Islamabad High Court has held that the Resolution dated 30-07-2015, extending the Anti-dumping Ordinance, 2015 w.e.f. 25-06-2015 was passed pursuant to the powers vested under Article 89 of the Constitution. Further , by giving retrospective effect the Ordinance was, therefore, extended for another period of 120 days and, therefore, no vacuum existed between 25-06-2015 and 30-07-2015.
It has further been held that the Commission and all its acts or proceedings are, therefore, valid and lawfully covered under the Ordinance. The learne d legal Advisor has pleaded that the issue raised by the appellant with regard to the appointment of Members has also been covered in the Judgment dated 13-05-2016 of the Hon'ble Islamabad High Court referred above. With regard to the issue raised by the appellant that the investigation and final determination have not been made within the mandatory statutory period, the learned legal Advisor has stated that the Preliminary investigation has been completed well within the period of '180 days mentioned under section 37 of the Act and the Final Determinatio n has again been completed within the prescribed time limit of eighteen months mentioned in section 29 of the Act. The plea of the appellant that the Commission was supposed to mention the reason why the investigation could be completed in 18 months instead of 12 months, the learned legal Advisor has submitted that the plain reading of section 29 of the Act clearly states that the Commission shall except in special circumstances, conclude investigation within 12 months and in no case more than 18 months after its initiation. No explanation of any kind has been sought from the Commission under the law about completing investigation in 18 months instead of 12 months. In these circumstances, it is not obligatory for the Commission to give any reason or explanation about completing the investigation in 18 months. Learned counsel has further stated that the above provision clearly mentions that the aforesaid time limits are to be followed except in special circumstances which mean that in special circumstances the Commission can go beyond the limit of 18 months as well. It has been pleaded by the learned legal Advisor that the plea of the appellant in this behalf has no substance at all. The plea of the appellant that the application for Anti-dumping investigation was not having the necessary support of the domestic industry has also been rebutted by the learned legal Advisor . It has been stated that three other domestic producers Messrs International Steel Industry Ltd, Messrs Pakistan Steel Mills Ltd and Messrs AHN Steel Private Ltd have supported the application made by respondent No.2 in black and white. The learned legal Advisor has further contended that the applicant having more than 55 % of share of the market is also individually qualified to file such application. It has been argued that having support of 100 % domestic producers of like product the application has been validly entertained. Regarding plea of the appellant that the appellant being importer of HRC from People's Republic of China and other countries does not qualify to file such application for investigation, the learned legal Advisor has submitted that the HRC was not the subject matter of the investigation before the Commission as the investigated product was very different from HRC. The investigation has been made about 'CRC', hence the plea of the appellant in this behalf is baseless, the learned counsel has contended. While explaining the position of Commission with regard to cumulative assessment, the learned legal advisor referring provision of section 16 of the Act has stated that volume of dumped imports during the POI from the Exporting Countries remained above the negligible quantity and dumping margins for each countries also remained more than the de-minimis level. Weighted average export price charged by the exporters from the Exporting Countries shows that there is a price competition between imports of the investigated product. There is a competition between investigated product and the domestic like product in terns of price, market share and sales etc. The learned legal advisor has stated that for the reasons given above, the Commission has rightly cumulatively assessed the effects of dumped imports from the Exporting Countries on the domestic Industry . The learned counsel has submitted that the Commission has taken into account all factors in order to determine whether the domestic industry suffered material injury during the period of Investigation. The volume of dumped imports decreased by 16.57% in 2013-14, which significantly increased by 91.91% in 2014-15 as compared to 2013-14.
Thus there has been a significant increase in volume of dumped imports in absolute terms in 2014-15. On basis of the above analysis, the Commission has concluded that the volume of dumped imports increased in absolute terms during the POI for dumping and the domestic industry suffered material injury on this account, it has been argued It has been submitted that effect of dumped imports on sales price of domestic like product in the domestic market has significant price undercutting, price depression, or price suppression. The learned counsel has stated that the Commission has concluded that sales of domestic like product increased during POI, however , it could not achieve the desire level of sale in growing market demand for CRC and hence the domestic industry suffered material injury on account of sales. The learned legal Advisor has pleaded that the Commission has strictly applied the provision of law to fulfill purpose of Anti-dumping Laws. Hence the submissions of the appellant are generic in nature and the same could not make out any case for the appellant. The learned counsel finally prayed that keeping in view the aforesaid submissions made in this behalf, the appeal may be dismissed with costs.
6. The learned counsel for respondent No.2 has submitted written arguments for kind perusal of this Tribunal. It has, however , been submitted by the learned counsel that he would also like to adopt the arguments, advanced by respondent No.l. The learned counsel has prayed that keeping in view the arguments advanced in this behalf and arguments submitted by respondent No.2, the appeal may kindly be dismissed.
7. We have gone through the appeal, filed by the appellant and in its response, the written arguments filed by both respondent No.! and respondent No.2. We have also heard the learned counsel for the appellant and the respondents.
8. The argument of the appellant that the Ordinance, 2015 was automatically repealed on 25th June, 2015 after the lapse of 120 days and there was no Anti-dumping law in Pakistan between 25th June, 2015 till 05th September , 2015, when the Anti-dumping Act was passed, has been examined quite in detail. The Anti-dumping Duties Ordinance, 2015 was promulgated on 26th February , 2015 and lapsed on 25th June, 2015 on completion of its constitutional term of 120 days. However , the National Assembly on 30th July, 2015 passed a Resolution in accordance with Article 89(2)(a)(i) of the Constitution for extension of the Ordinance, 2015 w.e.f. 25-06-2015 for another term of 120 days. According to the aforesaid provision of the Constitution, there is no bar on legislatures to extend an Ordinance by passing a Resolution with retrospective ef fect.
The aforesaid Resolution passed by the National Assembly thus ensures continuity of the Ordinance 2015 till the Anti-dumping Duties Act, 2015 is passed . However , for the sake of discussion if the Ordinance, 2015 was treated as lapsed on 25th June, 2015 the Anti-Dumping Duties Ordinance 2000 which was repealed by the aforesaid Ordinance would stand automatically revived. In such eventuality , the powers of the Commission to initiate investigation would remain effective. The arguments advanced in this behalf by learned counsel for the appellant have also been discussed and examined quite in detail in the Writ Petition filed in Hon'ble Islamabad High Court.
While dismissing the petition, the Hon'ble Islamabad High Court has held that the Resolution dated 30th July, 2015 extending the Anti-Dumping Duties Ordinance of 2015 w.e.f 25th June, 2015 was passed pursuant to the powers vested under Article 89 of the Constitution. It has further been held that by giving retrospective effect the Ordinance was, therefore, extended for another period of 120 days and therefore, no vacuum existed between 25th June, 2015 and 30th July, 2015. Resultantly the Commission and all its acts or proce edings were valid and lawfully covered under the Ordinance, the Hon'bl e High Court has held. It has been observed by the Hon'ble High Court that after the enactment of Anti-Dumping Duties Act, 2015 and the NTC Act, 2015, the Ordinances were clearly provided with continuity by the Majlis-e-Shoorah. The petition was accordingly dismissed which attained finality , as not agitated further by any party in the august Supreme Court of Pakistan. In the circumstances stated above, we see no reasoning in the plea of the appellant with regard to any kind of vacuum between 25th June, 2015 and 08th September , 2015, the date on which the Anti-Dumping Duties Act, 2015 was notified.
9. Likewise the point raised by the appe llant that the appointment of Members of Respondent No.1 during the interregnum period when no law was in field is against the law, being not express ively saved in the National Tariff Commission Act, 2015 has already been discussed in detail in the preceding Paragraph. This plea of the appellant has also been examined by the Hon'ble Lahore High Court, Lahore in three different petitions and passed orders, which were challenged in the august Supreme Court of Pakistan and the august Supreme Court of Pakistan dismissed all such appeals finding no merits vide their judgment dated 6th April, 2017. In these circumstances, we find no reason to further interfere in the issue already settled at such a higher level. We are surprised to note that how the appellant and its learned counsel have opted to raise these issues which have been settled by the superior courts vide their Judgments referred above.
10. As regards the plea of the Appellant that Commission could not finalize its inquiry and final determination report within the period specified under the Act, the details provided by the appellant itself clearly indicates that the Commission has completed its inquiry within the time period provided under the Law and the final determination report has also been issued within 18 months period, referred in the Act. Section 39 of the Act clearly provides that the Commission shall normally make a final determination of dumping injury within 180 days of the date of publication of a notice of preliminary determination. The aforesaid time limit has been observed in the matter and we do not see any kind of violation or breech of law in this behalf. The contention of the appellant with regard to the necessary support of domestic industry to file application has also been considered quite in detail. The record clearly indicates that although the three other domestic producers of the investigated product have supported the application yet even without support of these producers, the applicant alone is representing more than 50 % (55%) of domestic production during the period of investigation required to file the application. In such kind of situation, validity of the application cannot be questioned.
11. The point raised by the appellant that the CRC produced by respondent No.2 is the refined process product of 100 % imported HRC has also been exam ined. The investigated product is CRC which is very different from HRC.
No comparison could be made between these two products. Mere simultaneous export and production of these two different products (HRC & CRC) as referred by the appellant could not be considered as an argument to prove similarity between these two dif ferent products. W e, therefore, find no justification for treating HRC at par with CRC.
12. The plea of the appellant that the respondent No.1 has to make an individual determination of the factors referred in section 16 before assessing the accumulative effects has been looked into. Section 16 of the Act permits Commission to go for assessing the cumulative effects in certain conditions. Here in this case we see that the volume of dumped imports during the POI from the exporting countries has been above the negligible quantity .
The dumping margin for each country has also been more than the de-minimize level. Weighted average export price charged by the exporters from the exporting countries also shows that there has been a price competition between imports of investigated product. In such kind of situation the Commission has rightly assessed the Cumulative effects on dumped imports from the exporting countries on the domestic industry . The plea of the Appellant that the Commission while determining material injury has ignored healthy gains in production from the growth figures, submitted by the parties contrary to the provisions of section 15 of he Act has been considered. The Commission has concluded in Para 46.4 of the Final Determination Report that the volume of dumped imports increased in absolute terms during the POI for dumping and the domestic industry suffered material injury on account of significant increase in the volume of dumped imports. Section 15(2) of the Act is reproduced below:-- "With regard to volume of dumped imports, the Commission shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production of consumption in Pakistan".
The volume of dumped imports decreased by 16.57 % in 2013-14, which significantly increased by 91.91% in 2014-15. On the basis of above data, the Commission has concluded that the volume of dumped imports increased in absolute terms during the POI causing material injury to the domestic industry . In these circumstances, we understand that there is no need to examine increase in dumped imports relative to domestic production or consumption. The appellant's plea that the Commission has not made an Assessment of price in the domestic market under section 15(3) of the Act has been examined. The Commission in Para 16.2 of its Final Determination Report has clearly mentioned that applications data has duly been verified by the Commission's Officials during on the spot investigation at the offices and plant of the applicant. The Commission has also taken the benefit from the data of PARAL as identified against source given under table (vii) of Final Determination Report. After detailed investigation, the Commission has concluded that the domestic industry has suffered material injury on the account of price undercutting, price depression and price suppression due to dumped imports. We, therefore, observe that the Commission's investigation made in this regard is reliable.
13. The appellant has pointed out that despite consistent increase in the production, capacity utilization, sales and market share of domestic industry , the Commission has concluded that domestic industries suffered from material injuries. We have examined this issue and noted that the Commission while summing up material injuries mentioned that the domestic industry has suf fered material injuries on account of: i. Increase in volume of dumped imports; ii. Price undercutting; iii. Price depression; iv. Negative effects on cash flows; v. Decline in market share; vi. Negative effect on ability to raise capital; and vii. Magnitude of the margin of dumping". Absence of anyone or two injury factors does not necessarily mean no injury to the domestic industry which has very rightly been noted by the WTO Panel in the matter of EU Anti-dumping measures on Certain Footwear from China (cited as WT/DS 405/R ). The Commission's analysis of injury is based on totality of various injuries factors and not a particular injury . We, therefore, understand that the aforesaid list of injury caused to the domestic industry is suf ficient to conclude that the domestic industries suf fered injuries due to the dumping of investigated product.
14. The argument of the appellant that imposition of anti-dumping duties is exception to the general rule of free trade is not relevant as the Commission has strictly applied the provision of law to fulfill objectives of Anti-Dumping Duties law. The plea of the appellant being generic in nature is ignorable. The objective of Anti-Dumping Duties Act is to ensure level playing field to the domestic industries and anything comes up otherwise is to be checked by the Commission. In these circumstances, reference of general rule of free Trade is not relevant.
15. In view of the aforesaid analysis, we do not find any substance in the instant appeal against the impugned Final Determination Report of the Commission dated 13-01-2017 and therefore, the same is dismissed having no merits.
The parties are left to bear their own costs.
Announced in open court on this 14th day of the month May , 2019.