2026-VIL-783-CESTAT-DEL-CU
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CUSTOMS CESTAT Cases

Customs - Challenge to final findings dated 29.09.2022 of the designated authority to the extent it recommends nil rate of anti-dumping duty on the product under consideration, namely, semi-finished ophthalmics lenses on participating importers and also seeking to exclude lenses of Refractive Index above 1.6 - Violation of principles of natural justice in determining Non-Injurious Price (NIP) - Appellant claimed that the designated authority violated the principles of natural justice by not providing detailed calculations of the NIP along with the Disclosure Statement, thereby denying the appellant an opportunity to properly respond to the Disclosure Statement - Whether the designated authority's failure to provide detailed NIP calculations to the appellant at the Disclosure Statement stage violated the principles of natural justice – HELD - The Designated authority's failure to provide the detailed NIP calculations to the appellant along with the Disclosure Statement was a violation of the principles of natural justice and the provisions of Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. The determination of NIP has a direct bearing on the determination of normal value and the consequent dumping margin. By not providing the detailed NIP calculations, the appellant was deprived of an opportunity to properly respond to the Disclosure Statement - The judgments of Reliance Industries Ltd. v. Designated Authority and Nirma Limited v. Union of India, have held that the designated authority must disclose the "essential facts" forming the basis of its decision, including the detailed NIP calculations. The final findings are set aside to the extent of nil anti-dumping duty on participating Chinese exporters and matter is remanded to the DA for fresh determination of NIP after providing the appellant a reasonable opportunity to submit its response - The appeal is partly allowed by remand - Exclusion of lenses with Refractive Index above 1.6 - The DA excluded from the scope of the product under consideration semi-finished ophthalmic lenses having a refractive index higher than 1.6. Legal - Whether the exclusion of lenses with refractive index above 1.6 from the product under consideration was justified – HELD - The exclusion of lenses with refractive index above 1.6 from the product under consideration is justified. The appellant was not manufacturing semi-finished ophthalmic lenses with refractive index above 1.6, and such lenses were not technically or commercially substitutable with the lenses manufactured by the domestic industry. When a product is not produced by the domestic industry, imports of the same cannot cause any injury to the domestic industry. The Tribunal relied on the decision in M/s. Mahle Anand Thermal Systems Private Limited v. Designated Authority, which held that mere competence to produce without actual production or sales may not be sufficient to include an item in the definition of the product under consideration - The exclusion of lenses with refractive index above 1.6 from the product under consideration is upheld.
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GSTAT Appeal filed wrongly...
By CA Vivek Jalan

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