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Wednesday, April 26, 2017

the appellate power of this Court under Section 130E(b)of the Customs Act, 1962 (as amended). = the appellant which is a public sector undertaking is engaged in the manufacture of steel in the regular course of its business. The appellant uses graphite electrodes which it gets imported from China. Against such imports from China, on the basis of the final report of the Designated Authority acting under the Anti Dumping Rules, namely, the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Union of India by a Notification dated 13.02.2015 has imposed anti-dumping duty upon the import of graphite electrodes of all diameters from specific importers operating within the Republic of China for a period of five years. This Notification was challenged by the appellant before the appellate tribunal (CESTAT). The Designated Authority further found that during the period of investigation the production of graphite electrodes by the domestic industry had decreased whereas the import of the same from China had increased substantially and, therefore, the domestic industries are suffering material injury due to dumping of graphite electrodes from exporters within China. It is on the basis of the aforesaid findings that the Designated Authority had recommended that anti-dumping duty be imposed which found manifestation in the Gazette Notification dated 13.2.2015.- on the ratio of the decision of this Court in the case of Swastic Woollen (supra) we will have no occasion to have a re-look into the matter in the exercise of our appellate jurisdiction under Section 130E(b) of the Act.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.241 OF 2017



STEEL AUTHORITY OF INDIA LTD.      ...APPELLANT

                             VERSUS

DESIGNATED AUTHORITY,
DIRECTORATE GENERAL OF ANTI-DUMPING
& ALLIED DUTIES & Ors.            ...RESPONDENTS


                                  JUDGMENT

RANJAN GOGOI, J.



1.    Order on the admission of this appeal has been kept pending to  enable
the Court to ascertain the true sweep and purport of the appellate power  of
this Court under Section 130E(b)of the Customs Act, 1962 (as amended).   The
language of the above provision of the Act having  indicated  a  very  broad
and expansive appellate jurisdiction,  the  precise  contours  thereof  were
felt necessary to be determined and the admissibility of the present  appeal
tested on the aforesaid basis.



2.    It may be worthwhile at the very outset to delve into the  history  of
the taxation regime under the Act to notice the changes  that  had  occurred
from time to time.



3.    Against the assessment of customs duty  made  by  different  assessing
authorities under the Act, viz., Deputy Collector  of  Customs/Collector  of
Customs,  initially, an executive appellate remedy before the  Collector  of
Customs and  before  the  Central  Board  of  Customs  Excise  and  Customs,
depending  on  the  authority  which  has  passed  the  initial   order   of
assessment, was provided.  There was a power of suo motu revision  with  the
Board  as  well  as  a  revisional  jurisdiction  to  be  exercised  on   an
application by an aggrieved person. The  Central  Government  under  Section
131 (originally enacted) and under Section 129DD (Substituted by Act  21  of
1984) was also vested with a revisional jurisdiction.

4.    By the Finance Act No.2 of 1980, a quasi- judicial authority,  namely,
Customs  Excise  and  Gold  (Control)   Appellate   Tribunal   (CEGAT)   was
constituted to hear appeals against orders of the Collector as well  as  the
orders of the Board. The said Tribunal came to be known as  Customs,  Excise
and Service Tax Appellate Tribunal (CESTAT), with the introduction  of  levy
of service tax.  The CEGAT and its  successor  CESTAT  were  constituted  as
specialized quasi-judicial appellate bodies to decide  all  issues  relating
to duty assessment under the Customs Act. There was no provision  of  appeal
to the  jurisdictional  High  Court  against  the  order  of  the  appellate
tribunal.  However, under Section 130 of the Act  a  Reference  jurisdiction
was vested in the High Court on a  question  of  law  not  relating  to  the
determination of any question having a relation  to  the  rate  of  duty  of
customs or to the value of the goods for the purpose  of  assessment.  Under
Section 130A, introduced by the Finance Act, 1980, a Reference  jurisdiction
was also conferred in the Supreme Court in case the Appellate  Tribunal  was
of the opinion that on account of a conflict in the decisions  of  the  High
Courts on the same question of law, a reference  to  the  Supreme  Court  is
necessary.  Under Section 130E(a) an appeal  was  provided  to  the  Supreme
Court from any judgment of the High Court delivered on  a  Reference,  where
the High Court certified the case to be a fit one for appeal to the  Supreme
Court. Under Section 130E(b) against  any  order  passed  by  the  Appellate
Tribunal relating, among other things, to the determination of any  question
having a relation to the rate of duty of customs or to the  value  of  goods
for purposes of assessment, an appeal  was  also  provided  to  the  Supreme
Court.  Section 130F of the Customs Act, 1962 provided that  the  provisions
of Civil Procedure Code, 1908 relating  to  appeals  to  the  Supreme  Court
shall, so far as may be, apply in the case of appeals under Section  130  as
they apply in the case of appeals from decrees of a High Court.



5.    An amendment though not of any significant consequence,  made  in  the
year 1999 may also be noticed.   The  reference  jurisdiction  of  the  High
Court under Section 130 which was to be exercised at  the  instance  of  the
Appellate Tribunal was continued in respect of orders passed, under  Section
129B, by the Appellate  Tribunal  on  or  before  1.7.1999.  However,  under
Section 130A substituted by the Finance Act (No.27) of  1999  the  Reference
jurisdiction in respect of orders passed by the  Appellate  Tribunal  on  or
after 1.7.1999 was to be exercised by the High Court on an application  made
to it seeking a reference.



6.    The aforesaid position was again altered in the year 2003. Against  an
order passed by the Appellate Tribunal  on  or  after  1.7.2003  (not  being
order relating to determination of any question having  a  relation  to  the
rate of  duty  of  customs  or  to  the  value  of  goods  for  purposes  of
assessment) an appeal was provided to the High Court if the  High  Court  is
to be satisfied that the  case  involves  a  substantial  question  of  law.
Simultaneously, under Section 130A, the Reference Jurisdiction of  the  High
Court was continued in respect of  orders  passed  by  the  Tribunal  on  or
before 1.7.2003.  Such  reference  jurisdiction  remained  circumscribed  as
before, as already noticed.



7.    Under the 2003 Amendment, as against  an  order  passed  by  the  High
Court in appeal or on a reference, an appeal to the Supreme Court  continued
to be provided [Section 130(E)a]. Section 130E(b) remained and continued  to
provide that against an order passed  by  the  Appellate  Tribunal  relating
among other things determination of any question having a  relation  to  the
rate of  duty  of  customs  or  to  the  value  of  goods  for  purposes  of
assessment, appeal shall  lie  to  the  Supreme  Court.   Section  130F  was
retained on similar terms as before.



8.    By the National Tax Tribunal Act, 2005, a National  Tax  Tribunal  was
constituted under Section 5  thereof  to  hear  appeals  from  “every  order
passed in appeal by the  Income  Tax  Appellate  Tribunal  and  the  Central
Excise and Service Tax Appellate Tribunal if the National  Tax  Tribunal  is
satisfied that the case involves substantial question of law” (Section  15).
 Under Section 23 of the National Tax Tribunal Act, 2005  on  and  from  the
notified date all proceedings including appeals and references under  direct
taxes, and indirect  taxes  pending  before  all  High  Courts  stood  stand
transferred to the National  Tax  Tribunal.   Section  24  provided  for  an
appeal to the Supreme Court against any decision or order  of  the  National
Tax Tribunal. With the enactment of the  National  Tax  Tribunal  Act,  2005
provisions contained in Section 130A, B, C, D of the Customs Act, 1962  were
repealed and the corresponding changes were also brought in Section 130E  of
the said Act. Section 130F continued to remain in the same form.



9.    However, the aforesaid repeal effected by the  National  Tax  Tribunal
Act, 2005 would not be  very  relevant  for  the  present  inasmuch  as  the
National Tax Tribunal Act, 2005 has been invalidated by this  Court  in  the
case  of  Madras  Bar  Association  Vs.  Union  of  India  and   Another[1].
Therefore, it is, the provisions of the  Customs  Act,  1962  as  prevailing
prior to  the  enactment  of  the  National  Tax  Tribunal,  2005  which  is
presently holding the field.

10. What is required to be noticed at this stage is that under  the  Customs
Act, 1962, (as amended), against an order of the  appellate  tribunal  on  a
question not relating to duty or to classification of goods, an appeal  lies
to the High Court on a substantial question of law. A reference,  again,  on
a question of law, may also be made to the High Court in respect of  similar
orders of the appellate tribunal (not relating to determination of  duty  or
classification of goods) passed on or before 1.7.2003. At the same  time,  a
direct appeal to the  Supreme  Court  against  an  order  of  the  appellate
tribunal on a question relating to the rate of  duty  or  classification  of
goods  has  also  been  provided  for.  No   conditions,   restrictions   or
limitations on the availability of the appellate remedy before  the  Supreme
Court is envisaged in the main Section [130E(b)] though under  Section  130F
conditions to the  exercise  of  the  appellate  power  seem  to  have  been
imposed,  the  precise  application  of  which  is  the  determination  i.e.
required to be made by us.


11.   Sections 130, 130E and 130F of the Customs Act, 1962 as on date  being
the relevant provisions in the context enumerated above may now be noticed.



“Section 130. Appeal to High Court. –



(1) An appeal shall lie to the High Court from every order passed in  appeal
by the Appellate Tribunal on or after the 1st day of July, 2003  (not  being
an order relating, among other things, to the determination of any  question
having a relation to the rate of duty of customs or to the  value  of  goods
for purposes of assessment), if the High Court is satisfied  that  the  case
involves a substantial question of law.


(2)  Commissioner of Customs or the  other  party  aggrieved  by  any  order
passed by the Appellate Tribunal may file an appeal to the  High  Court  and
such appeal under this sub-section shall be -


filed within one hundred and eighty days from the date on  which  the  order
appealed against is received by the Commissioner of  Customs  or  the  other
party;





(b)   accompanied by a fee of two hundred rupees where such appeal is  filed
by the other party;





(c)   in the form of a memorandum of appeal precisely  stating  therein  the
substantial question of law involved





(2A)  The High Court may admit an appeal after the expiry of the  period  of
one hundred and eighty days referred to in clause (a)  of  sub-section  (2),
if it is satisfied that there was sufficient cause for not filing  the  same
within that period.



(3)  Where the High Court is satisfied that a substantial  question  of  law
is involved in any case, it shall formulate that question.



(4)   The appeal shall be heard only on the question so formulated, and  the
respondents shall, at the hearing of the appeal, be allowed  to  argue  that
the case does not involve such question:





Provided that nothing in this sub-section shall be deemed to  take  away  or
abridge the power of the Court to hear, for  reasons  to  be  recorded,  the
appeal on any other substantial question of law not formulated by it, if  it
is satisfied that the case involves such question.

(5)  The High Court shall decide the  question  of  law  so  formulated  and
deliver such judgment thereon containing the grounds on which such  decision
is founded and may award such cost as it deems fit.



(6)  The High Court may determine any issue which -





has not been determined by the Appellate Tribunal; or





(b) has been wrongly determined by the Appellate Tribunal, by  reason  of  a
decision on such question of law as is referred to in sub-section (1).



(7)  When an appeal has been filed before the High Court, it shall be  heard
by a bench of not less than two Judges of  the  High  Court,  and  shall  be
decided in accordance with the opinion of such Judges or  of  the  majority,
if any, of such Judges.



(8)  Where there is no such majority, the Judges shall state  the  point  of
law upon which they differ and the case shall,  then,  be  heard  upon  that
point only by one or more of the other Judges of the  High  Court  and  such
point shall be decided according to the  opinion  of  the  majority  of  the
Judges who have heard the case including those who first heard it.



(9)  Save as otherwise provided in this Act, the provisions of the  Code  of
Civil Procedure, 1908 (5 of 1908) relating to  appeals  to  the  High  Court
shall, as far as may be, apply in the case of appeals under this section.”





“Section 130E.  Appeal to Supreme  Court. -  An  appeal  shall  lie  to  the
Supreme Court from -


any judgment of the High Court delivered –





in an appeal made under section 130; or





(ii)  on a reference made  under  section  130  by  the  Appellate  Tribunal
before the 1st day of July, 2003;





(iii)on a reference made under section  130A,





in any case which, on its own motion or on an oral application  made  by  or
on  behalf  of  the  party  aggrieved,  immediately  after  passing  of  the
judgment, the High Court certifies to  be  a  fit  one  for  appeal  to  the
Supreme Court; or


any order passed before the establishment of the National  Tax  Tribunal  by
the Appellate Tribunal relating, among other things,  to  the  determination
of any question having a relation to the rate of duty of customs or  to  the
value of goods for purposes of assessment.”





“Section 130F.   Hearing before Supreme Court. –





(1) The provisions of the  Code  of  Civil  Procedure,  1908  (5  of  1908),
relating to appeals to the Supreme Court shall, so far as may be,  apply  in
the case of appeals under section 130E as they apply in the case of  appeals
from decrees of a High Court:



      Provided that nothing in this sub-section shall be  deemed  to  affect
the provisions of sub-section (1) of section 130D or section 131.





(2)   The costs of the appeal shall be in  the  discretion  of  the  Supreme
Court.





(3)   Where the judgment of the High Court is  varied  or  reversed  in  the
appeal, effect shall be given to the order  of  the  Supreme  Court  in  the
manner provided in section 130D in the  case  of  a  judgment  of  the  High
Court.”




12.   The history of the customs duty regime traced out above  would  go  to
show that after constitution of the Appellate Tribunal, the  proceedings  of
which were/are deemed under the Act to be judicial proceedings, the duty  of
determining the correctness  of  questions  relating  to  rate  of  duty  or
classification of goods has been primarily cast by the Act on the  Tribunal.
The Reference jurisdiction  of  the  High  Court  up  to  the  time  of  the
amendment made in the year 2003 and the Appellate jurisdiction of  the  High
Court thereafter is in respect of questions not relatable  to  the  rate  of
duty or classification of goods. An appeal also lies to  the  Supreme  Court
against the order or the judgment of the High Court either  in  exercise  of
the appellate or reference jurisdiction  [Section  130E(a)].   At  the  same
time, a direct appeal lies to the Supreme Court against an order  passed  by
the appellate tribunal relating to the question of  duty  or  classification
of goods [Section 130E(b)]. Section 130F has weathered  all  amendments  and
make the provisions of the Code of Civil Procedure relating to an appeal  to
the Supreme Court applicable to appeals under Section 130 of  the  Act.  The
question, therefore, would be whether the provisions of Section  130F  would
be applicable to both sets of appeals  that  may  be  filed  before  Supreme
Court, namely, against orders of the High Court as  well  as  those  of  the
appellate tribunal.



13.   The language used by the  legislature  in  Section  130F  of  the  Act
prescribing the contours of the jurisdiction  of  the  Supreme  Court  while
hearing appeals either against  the  decision  of  the  High  Court  in  its
appellate or reference jurisdiction or while hearing an appeal  against  the
order of the appellate tribunal has been same  and  has  remained  unchanged
throughout the legislative history of Chapter XV of the  Act  (dealing  with
appeals) commencing with the amendment brought about by the Finance  Act  of
1980. The provisions of the Civil Procedure Code 1908  relating  to  appeals
to the Supreme Court from a decree of a High Court, as far as  may  be,  has
been made applicable to all appeals to the Supreme Court under Section  130E
of the Act. Section 130F of the Act, all along, has dealt with both sets  of
appeals that would lie to the Supreme Court, namely,  against  an  order  of
the High Court in exercise of its appellate or  reference  jurisdiction,  as
the case may be, or against the order of the appellate tribunal. If that  be
so, there is no reason why the appellate power of the  Supreme  Court  under
Section 130E(b) against the  order  of  the  appellate  tribunal  should  be
construed in a manner different from the contours  of  the  appellate  power
under Section 130E(a) against the order of the High Court.



14.   The provisions of the Civil Procedure Code relating to the appeals  to
the Supreme Court against  decrees  of  the  High  Court  are  contained  in
Section 109 of the Civil Procedure Code which is in the following terms:


“109. When appeals lie to the Supreme Court.-


Subject to the provisions in Chapter IV of Part V of  the  Constitution  and
such rules as may,  from  time  to  time,  be  made  by  the  Supreme  Court
regarding  appeals  from  the  Courts  of  India,  and  to  the   provisions
hereinafter contained, an appeal shall lie to the  Supreme  Court  from  any
judgment, decree or final order in a civil proceeding of a  High  Court,  if
the High Court certifies—


(i) that the  case  involves  a  substantial  question  of  law  of  general
importance; and


(ii) that in the opinion of the High Court the said  question  needs  to  be
decided by the Supreme Court.”



15.   Chapter IV of Part V of the Constitution contains  the  provisions  in
Articles 132, 133, 134 and 134A which contemplate  appeals  to  the  Supreme
Court from any judgment or decree or  final  order  of  the  High  Court  in
exercise of its civil, criminal or any other jurisdiction provided the  High
Court certifies that the case involves (i) a substantial question of law  as
to the interpretation of the Constitution, (ii) a  substantial  question  of
law of general importance which in the opinion of the High  Court  needs  to
be decided by the Supreme Court.



16.   Chapter IV  of  Part  V  of  the  Constitution  expressly  limits  the
appellate jurisdiction of the Supreme Court to what has been noticed  above.
The power of the Supreme Court  to  grant  special  leave  to  appeal  under
Article 136 is an exception, the scope of which is not in  issue  and  hence
need not detain the Court. Article 138 of the Constitution confers power  on
the Union Parliament to confer further jurisdiction  in  the  Supreme  Court
with regard to any of the matters in the Union List or  any  matter  as  the
Government of India and the Government of a State may by  special  agreement
confer, subject  to  enactment  of  a  law  to  such  effect  by  the  Union
Parliament. It is under the provisions of Article  138  that  the  statutory
power of appeal under different statutory regimes has been conferred on  the
Supreme Court of India. Article 138 of the Constitution could not  and  does
not deal with the scope of the appellate power that  a  statutory  enactment
made by the Union Parliament may confer on the Supreme  Court.   Rather,  it
deals with the range of the  subjects  to  which  the  jurisdiction  of  the
Supreme Court may be  extended/enlarged  by  Parliament.   Therefore,  while
construing the extent of the appellate jurisdiction to be exercised  by  the
Supreme Court under a statutory enactment, the role of the Supreme Court  as
envisaged  by  the  Constitution  cannot  altogether  be   lost   sight   of
particularly  when  different  statutes  like  the  Electricity  Act,  2003;
Companies Act 2013, National Green Tribunal Act,  2010,  Telecom  Regulatory
Authority of India Act, 1997, by way of illustration,  expressly  limit  the
appellate power  of  the  Supreme  Court  to  determination  of  substantial
questions of law (Section 100 CPC).  To our minds the position should be  no
different in construing the provisions of Section 130E(b) of the Act  though
it omits to specifically mention any such limitation.



17.   Section 130E(b) of the  Act  provides  for  a  direct  appeal  to  the
Supreme Court against an Order of the appellate tribunal, broadly  speaking,
on a question involving government revenue. This seems to be in view of  the
fact that the order that would be under appeal i.e. (order of the  appellate
tribunal) may go beyond the inter se dispute between the parties and  effect
upon a large number of assessees. The issue, in such an event,  surely  will
be one of general/public importance. Alternatively, the question  raised  or
arising may require interpretation of the provisions  of  the  Constitution.
Such interpretation may involve a fresh or a relook or even  an  attempt  to
understand the true and correct purport  of  a  laid  down  meaning  of  the
Constitutional provisions that may come into focus in a given  case.  It  is
only such questions of importance, alone, that are required  to  be  decided
by the Supreme Court and by the very  nature  of  the  questions  raised  or
arising, the same necessarily have to involve issues  of  law  going  beyond
the inter partes rights and extending to a class or  category  of  assessees
as a whole. This is the limitation that has to be understood to  be  inbuilt
in Section 130E(b) of the Act which, in our considered view, would  also  be
consistent with the role and jurisdiction of the Supreme Court of  India  as
envisaged under the Constitution. Viewed  from  the  aforesaid  perspective,
the jurisdiction of the Supreme Court under Section 130E(b) of  the  Act  or
the pari materia provisions of any other Statute would be  in  harmony  with
those contained in Chapter IV of Part V of the Constitution.



18.   Two decisions of this Court would require a specific  notice  at  this
stage. The first is in the case of Navin  Chemicals  Mfg.  and  Trading  Co.
Ltd.  vs.  Collector of Customs[2], where this  Court  has  taken  the  view
that the expression “determination of any question having a relation to  the
rate of duty of customs or, value of goods for purposes of assessment”  must
be read as meaning a direct and proximate relationship to the rate  of  duty
and to the value of goods for purposes of assessment.

The other is the decision of this Court  in  Collector  of  Customs,  Bombay
vs.  Swastic Woollen (P) Ltd. and Ors.[3], where this Court had an  occasion
to deal with the ambit of the appellate power  under  Section  130E  of  the
Customs Act. The following extract from  the  judgment  in  Swastic  Woollen
(supra) amply summarize the view of this Court on  the  above  question  and
therefore would require to be extracted.

“9. …Whether a particular item and the particular goods  in  this  case  are
wool wastes, should be so considered or not is primarily and  essentially  a
question of fact. The decision of such a question of fact  must  be  arrived
at without ignoring the material and relevant facts and bearing in mind  the
correct legal principles. Judged by these  yardsticks  the  finding  of  the
Tribunal in this case is unassailable. We are, however, of the view that  if
a fact finding authority comes to a conclusion within the  above  parameters
honestly and bona fide, the fact that another authority be  it  the  Supreme
Court or the High Court may have a different perspective of  that  question,
in our opinion, is no ground to interfere with that  finding  in  an  appeal
from such a finding. In the new scheme of things, the  Tribunals  have  been
entrusted with the authority and the jurisdiction to  decide  the  questions
involving determination of the rate of duty of excise or  to  the  value  of
goods for purposes of assessment. An appeal has been provided to this  Court
to oversee that  the  subordinate  Tribunals  act  within  the  law.  Merely
because another view might be possible by a competent Court  of  law  is  no
ground for interference under Section 130-E of the Act  though  in  relation
to the rate of duty of customs or to the value  of  goods  for  purposes  of
assessment,  the  amplitude  of  appeal  is  unlimited.  But   because   the
jurisdiction is unlimited, there is  inherent  limitation  imposed  in  such
appeals. The Tribunal has not deviated from the path  of  correct  principle
and has considered all the relevant factors. If the Tribunal has acted  bona
fide with the natural justice by a speaking order, in our opinion,  even  if
superior Court feels that another view is possible, that is  no  ground  for
substitution of that view in exercise of power under clause (b)  of  Section
130-E of the Act.”



19.   On the basis of the discussion that have preceded, it  must  therefore
be held that before  admitting  an  appeal  under  Section  130E(b)  of  the
Customs Act, the following conditions must be satisfied:

(i)   The question raised or arising must have  a  direct  and/or  proximate
nexus to the question of determination of the applicable rate of duty or  to
the determination of the value of the goods for the purposes  of  assessment
of duty. This is a sine qua non for the admission of the appeal before  this
Court under Section 130E(b) of the Act.



(ii)  The question raised must involve a substantial question of  law  which
has not been answered or,  on  which,  there  is  a  conflict  of  decisions
necessitating a resolution.



(iii)If the tribunal, on consideration of the material and  relevant  facts,
had arrived at a conclusion which is a possible conclusion,  the  same  must
be allowed to rest even if this Court is inclined to take  another  view  of
the matter.





(iv)  The tribunal  had  acted  in  gross  violation  of  the  procedure  or
principles of natural justice occasioning a failure of justice.



20.   The above parameters, which by no means should  be  considered  to  be
exhaustive, may now be applied to the case  of  the  parties  before  us  to
decide the primary question indicated at the outset of  the  present  order,
namely, whether this appeal deserves to be admitted.



21.   The appellant which is a public sector undertaking is engaged  in  the
manufacture of steel in the regular course of its  business.  The  appellant
uses graphite electrodes which it gets imported  from  China.  Against  such
imports from China, on the basis of  the  final  report  of  the  Designated
Authority acting under the Anti Dumping Rules, namely,  the  Customs  Tariff
(Identification, Assessment and Collection of Anti-Dumping  Duty  on  Dumped
Articles and for Determination of Injury) Rules, 1995, the  Union  of  India
by a Notification dated 13.02.2015 has imposed anti-dumping  duty  upon  the
import of graphite electrodes  of  all  diameters  from  specific  importers
operating within the Republic of China for a  period  of  five  years.  This
Notification was challenged by the appellant before the  appellate  tribunal
(CESTAT). On behalf of  the  appellant  it  was  urged  before  the  learned
Tribunal that the Designated Authority had determined the  normal  value  of
graphite electrodes within China in an impermissible manner and  that  there
has been application of excessive  confidentiality  in  the  report  of  the
Designated Authority.  No challenge to the validity of any provision of  the
Anti Dumping Rules which sets out the procedure  for  determination  of  the
margin of dumping was laid before the Appellate Tribunal.



22.   The learned Tribunal, on due consideration,  came  to  the  conclusion
that the report  of  the  Designated  Authority  neither  suffers  from  any
excessive  imposition  of  confidentiality  nor  from   the   alleged   non-
consideration of any of the grounds urged on behalf of  the  appellant.  The
tribunal  further  held  that  the  Designated  Authority  had  followed  an
acceptable method of determining  the  normal  value  of  electrodes  within
China by comparing individual work undertaken by an exporter  vis-à-vis  the
export price imposed and that there was no infirmity in the matter  of  such
determination.



23.   Specifically, the final findings of the Designated Authority  disclose
that to determine the margin of dumping  the  said  authority  undertook  an
exercise to find  out  the  normal  value  of  graphite  electrodes  in  the
Republic of China and then proceeded to compare the  same  with  the  export
price of the product.  The Designated Authority on conclusion of an  arduous
determination process came to the conclusion  that  the  margin  of  dumping
varies from one exporter to the other  and  the  percentage  thereof  varies
from 20 to 95 per cent.   The  Designated  Authority  also  found  that  the
demand for graphite electrodes from the domestic  industries  had  increased
by 37% during the period of investigation  (2009-2012)  whereas  the  demand
from particular exporters in China had increased by 177 per cent during  the
same period.  The Designated Authority further found that during the  period
of investigation the production  of  graphite  electrodes  by  the  domestic
industry had decreased whereas  the  import  of  the  same  from  China  had
increased  substantially  and,  therefore,  the  domestic   industries   are
suffering material  injury  due  to  dumping  of  graphite  electrodes  from
exporters within China.  It is on the basis of the aforesaid  findings  that
the Designated Authority had recommended that anti-dumping duty  be  imposed
which found manifestation in the Gazette Notification dated 13.2.2015.



24.   The above narration clearly disclose that  the  findings  recorded  by
the learned appellate tribunal on the basis  of  which  the  appeal  of  the
present appellant has been dismissed are findings of fact arrived at on  due
consideration of all relevant materials on record. If that  is  so,  on  the
ratio of the decision of this Court in the case of Swastic  Woollen  (supra)
we will have no occasion to have a re-look into the matter in  the  exercise
of our appellate jurisdiction under Section 130E(b) of the Act.



25.   The appeal, consequently, is dismissed by  refusing admission.



                                                         ................,J.
                                                              (RANJAN GOGOI)


                                                         ................,J.
                                                             (ASHOK BHUSHAN)
NEW DELHI
APRIL 17, 2017.
-----------------------
[1]

      [2]  (2014) 10 SCC 1
[3]
      [4] (1993) 4 SCC 320
[5]
      [6] AIR 1988 SC 2176


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