The Supreme Court of India has upheld the action of the Designated Authority (“DA”) in the Directorate General of Trade Remedies (DGTR), requiring the domestic industry to furnish relatively contemporary data. Relying on the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period), the Apex Court set aside the impugned order of the Telangana High Court and held that the DA’s action could not be termed as arbitrary.
The Telangana High Court had set aside the DA’s letters issued in 2018, seeking updated data from the domestic industry as the initial application was filed in 2016. The DA in its letter, issued pursuant to earlier directions by the High Court in remand proceedings, had observed that the domestic industry had filed data for the period January 2016 to December 2016, however, to investigate further the period of investigation was proposed to be considered as April 1, 2018 to March 31, 2019.
Setting aside the High Court order, the Supreme Court in its judgement dated September 1, 2020 observed that any investigation carried out for past periods would result in minimal levy. It observed that for instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behaviour is found, the levy can be only of limited duration. It noted that to levy duty for the period after findings are rendered, the period of investigation would yield stale results, and cannot justify levy for later periods.
The department had submitted that the DA is duty bound to satisfy itself, upon being presented with evidence with respect that it adequately establishes dumping injury and causal link, and hence adducing recent data for the purpose of evaluation of such parameters is essential.
The Apex Court in the case Designated Authority v. Andhra Petrochemicals Limited was also of the view that order of the High Court was erroneous in chastising the DA for what appears to be his adherence to prescribed procedure. It also observed that barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DA’s functions.