- (1.) In both these appeals, identical question of law has come up for consideration. For the sake of convenience, we will take note of the facts appearing in Civil Appeal Nos. 1788-1789 of 2004. It is a case where the Designated Authority applied the provisions of Rule 6(8) of Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as 'Rules') and determined the anti-dumping duty on the basis of "best judgment assessment". There is no dispute that in those cases where the noticed does not cooperate in the inquiry or furnishes the requisite material, it is open to the Designated Authority to invoke Rule 6(8) and determine the normal value of the product on the basis of "best judgment assessment". This is so held in the case of Designated Authority v. Haldor Topsoe, 2000 6 SCC 626. However, while carrying out the "best judgment assessment", it is necessary for the Designated Authority to base its decision on the relevant considerations/material.
(2.) In the present case, we find that the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'CEGAT') has found many loopholes in the exercise carried out by the Designated Authority which prompted the CEGAT not to accept the valuation of goods arrived at by the orders of the Designated Authority. It is clear from the following discussion in the impugned order:- "The question now is whether the prices of Aniline reported in the trade journal supplied by the domestic industry constituted relevant facts for the purpose of Rule 6(8). What has been laid down by Rule 6(8) read with the Haldor Topsoe ruling is that the available facts shall be the basis of a best judgment assessment of normal value of the product under consideration. It is a sine qua non in built in this rule that the facts should, inter alia, be authentic and relevant to the subject country/territory as well as to the period of investigation. Then only the facts can be held to be an acceptable basis of normal value determination. In the instant case, the prices of Aniline in Europe were reported in Chemical Week of 17-11-99 as "USD 880-925/m.t. cif list". The sources of this report were indicated as "SRI International (Menlo) Part, CA)" and "company reports". But the source materials have not been disclosed, nor the authenticity thereof established, by the Designated Authority. This apart, the Aniline prices shown in page 41 of the journal of 17-11-99, wherefrom the Designated Authority claims to have obtained the best available information in terms of Rule 6(8) ibid, do not appear to be any trade data published for the week. They are ex facie, part of an article on Aniline, which mainly gives an account of the global trends in aniline industry. The article also briefly mentions the technology of the industry, gives a graphic account of the global capacity shared by Europe and other parts of the world and provides a list of the major Aniline producers of the world. We have also seen the next page (42) of the same magazine. This page appears to contain the weekly report of U.S. and European prices of a number of chemicals and polymers. But Aniline is nowhere in this price list. We have also seen a similar price report in page 31 of the 1999 October, 6 issue of chemical week produced by the counsel for the Appellants. Aniline does not figure in this list either. It is also, incidentally, noticed that any such article on Aniline as above is conspicuously absent in this issue of the journal. The only conclusion that can be drawn from these observations is that the learned Designated Authority was misled by Chemical week of 17-11-99 into the wrong notion that page 41 thereof provided facts relevant to normal value determination. The authority failed to realize that what was contained in the said page of the journal was only an article on Aniline industry and the same could not have provided judicially noticeable facts. The contents of the article were nothing more than statements in the press. The meaning of "facts" given in Stroud's Judicial Dictionary of Words and phrases that "facts" do not cover statements made in the press is quite apposite in this context. We are, thus, convinced of the fact that the prices of Aniline mentioned in the above article in the journal do not belong to the realm of relevant facts for purposes of Rule 6(8) of the AD Rules. Yet another reason for rejecting the above price would be that those prices are ex facie a range of prices of Aniline for the whole of Europe and do not relate exclusively to the European Union. One cannot lose sight of the fact that, in Europe, there are also countries which are outside the European Union, and this fact also would render the journal prices irrelevant to the anti-dumping investigations against European Union exporters. The excepts from Joseph Pattison's commentaries on Anti-dumping and Countervailing Duty Laws produced by the learned Counsel for the Designated Authority, have also been perused and, in relation to published data, they are found to favour of position that official publications in the country of exportation can be accepted as a source of "best information" in anti-dumping investigations. It is stated, for instance, that the minimum price guidelines published under the Davignon Plan of European Coal and Steel Community were utilized to show home market prices of products in Belgium, France and the U.K. Another instance is that, in an investigation in Sugar from France, Belgium and Germany, the prices published in the Official Journal of the European Communities were relied on. Joseph Pattison does not provide anything to support the Counsel's plea that the Designated Authority has had the "best information" of European Union home market prices of Aniline from Chemical Week, not claimed to be an official publication. On the other hand, it quotes a judicial authority vide Tianjin Machinery Import & Export Corporation v. United States 806 F. Supp. 1008 123: 14 I.T.R.D. 2149 (C.I.T. 1993) to state the long settled law that "best information available" is a rule of reasonable adverse inference against non-cooperating exporters. We have already found that the journal data in question do not constitute "Facts" and are irrelevant to the subject investigation in Aniline. Such data can be no reasonable basis for adverse inference in this case."
(3.) We find that there is no merit in this appeal as we are in agreement with the aforesaid analysis by the CEGAT in the impugned order. Upholding the same, the present appeals are dismissed. Civil Appeal Nos. 1790-1791 of 2004 also stand dismissed in terms of the aforesaid orders in Civil Appeal Nos. 1788-1789 of 2004.;