MIANGUL HASSAN AURANGZEB, JUSTICE:---.---

Through the instant appeal under Section 70(13) of the Anti-Dumping Duties Act, 2015 ("the 2015 Act") the appellants, who are engaged in the business of importing paper and related products, impugn the order dated 29.01.2020 passed by the Anti-Dumping Appellate Tribunal ("the Appellate Tribunal") whereby appeal No.216/2017 preferred by them against the final determination dated 27.07.2017 made by the National Tariff Commission ("the Commission") imposing definitive antidumping duties on the import into Pakistan of One Side Coated Duplex Board (Grey Back) classified under Pakistan Customs Tariff Heading No.4810-9200 and 4810.9900 ("Duplex Board") originating in and/or exported from the Peoples of Republic of China, Republic of Indonesia and Republic of South Korea ("the Exporting Countries"). Duplex Board is mainly used for packing cartons / boxes (folding cartons) of different consumer and industrial products like cigarettes, pharmaceuticals, spices, confectionary, food, tea, biscuit, shoe, auto parts, electric appliances, electronics, etc.

2. The facts essential for the disposal of the instant appeal are that on 21.12.2015, the Commission received an application from respondent No.2, M/s Century Paper and Board Mills Limited ("M/s Century Paper") under Section 20 of the 2015 Act, wherein it was alleged that Duplex Board originating in and/or exported from the Exporting Countries was being dumped in Pakistan, and that such dumping was causing material injury to the domestic industry producing Duplex Board. M/s Century Paper is the domestic producer of Duplex Board.

3. Section 20 of the 2015 Act provides inter alia that an investigation by the Commission shall onlybe initiated upon a written application by or on behalf of domestic industry. Section 20(2)(b) requires such application to include evidence of dumping and injury within the meaning of the 2015 Act and the causal link between the dumped imports and the alleged injury, as is reasonably available to the applicant.

4. Section 21 of the 2015 Act requires the Commission to promptly give notice to the governmentof each exporting country of the receipt of a duly documented application submitted under Section 20. Through a note verbale dated 20.12.2015, the Commission informed the respective embassies of the Exporting Countries in Islamabad as to the filing of said application dated 21.12.2015.

5. Section 23(1) of the 2015 Act requires the Commission to examine the accuracy and adequacyof the evidence provided in an application to determine inter alia whether there is sufficient evidence to justify the initiation of an investigation. Section 23(4) provides that when the Commission is satisfied that an application under Section 20 has been made by or on behalf of domestic industry, and there is sufficient evidence of dumping and injury within the meaning of the 2015 Act, the Commission shall initiate an investigation. On 30.01.2016, the Commission issued a notice of initiation of an anti-dumping investigation with respect to the alleged dumped imports of Duplex Board into Pakistan. The period of investigation for the purpose of determination of dumping was from 01.10.2014 to 30.09.2015, and for the determination of injury from 01.10.2012 to 30.09.2015. All interested parties were invited to make their views known to the Commission, and to submit information and documents not later than 45 days from the date of the publication of the notice under Section 23 of the 2015 Act.

6. Section 37(1) of the 2015 Act empowers the Commission to make a preliminary determinationof dumping and injury, if any, not earlier than 60 days and not later than 180 days, after the initiation of an investigation. Section 37(2) requires the Commission to issue a notice of preliminary determination setting forth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material. Section 37(3) requires the Commission to publish a copy of the notice of preliminary determination in the official Gazette and in newspapers having wide circulation in Pakistan, whereas 37(4) requires the Commission to forward a copy of the notice of preliminary determination to the Exporting Countries and to other known interested parties. After carrying out an investigation, the Commission, on preliminary basis, determined inter alia that the domestic industry suffered material injury on account of increase in the volume of dumped imports, price undercutting, price depression, decline in production, decline in sales, etc. In making this preliminary determination, the Commission satisfied itself that Duplex Board had been imported from the Exporting Countries into Pakistan at dumped prices. In order to prevent material injury to the domestic industry during the course of the investigation, the Commission, in exercise of the powers conferred upon it under Section 43 of the 2015 Act, decided to impose provisional anti-dumping duties on the import of Duplex Board for a period of four months effective from 12.05.2017.

7. Section 43(1) empowers the Commission to impose provisional measures if it makes an affirmative preliminary determination of dumping and injury, and determines that the provisional measures are necessary to prevent injury being caused during the course of an investigation. The second proviso to Section 43(1) ibid restricts the Commission from imposing provisional antidumping duty for an amount exceeding the margin of dumping as provisionally established. As per the contents of the notice of preliminary determination made under Section 37 of the 2015 Act, the provisional anti-dumping duty on the import of Duplex Board from China was 15.12% on C F value in ad vaiorm; from Indonesia at the rate of 12.87%; and from South Korea at the rate of 14.98%.

8. The said notice of preliminary determination was preceded by report dated 11.05.2017 on thepreliminary determination in the anti-dumping investigation against the import of Duplex Board into Pakistan from the Exporting Countries. This report shows that the provisional anti-dumping duty was to be levied in addition to other taxes and duties leviable on import of Duplex Board under any other law. Furthermore, the anti-dumping duties were not to be levied on imports that were to be used as inputs in products destined solely for export. These duties were to be collected in the same manner as customs duties collected under the Customs Act, 1969.

9. Section 39(1) of the 2015 Act requires the Commission to make a final determination of dumping and injury within 180 days of the date of publication of the notice of preliminary determination. Section 39(4) requires the notice of final determination to specify inter aia the amount of dumping margin, if any, found to exist and the basis for such determination; and the amount of the definitive anti-dumping duties to be imposed. The notice of final determination is also required to be published in the official Gazette and in newspapers having wide circulation in Pakistan. Additionally, Section 50 of the 2015 Act provides that when the Commission has established the existence of dumping and injury in accordance with the provisions of the said Act, it shall, by notification in the official Gazette, impose an anti-dumping duty, the amount whereof shall not exceed the margin of dumping established but it may be less than the margin if such lesser duty would be adequate to remove injury to the domestic industry.

10. On 29.07.2017, the Commission issued a notice of final determination under Section 39 of the2015 Act and imposed anti-dumping duties on the import of Duplex Board originating in and/or exported from the Exporting Countries. The normal values and export prices of Duplex Board imported from the Exporting Countries are said to have been determined on the basis of best information available to the Commission as none of the exporters / foreign producers from the Exporting Countries provided any information to the Commission. It ought to be borne in mind that if, at any time during an investigation, an interested party refuses access to, or otherwise does not provide, necessary information, the Commission is empowered by Section 32 to reach a preliminary or final determination on the basis of the best information available.

11. The Commission, after determining the dumped margins expressed as percentage of the average of C F price for the exporters / foreign producers from the Exporting Countries, decided to impose definitive anti-dumping duties on the import of Duplex Board from the Exporting Countries for a period of five years with effect from 12.05.2017. This was done in exercise of the powers conferred on the Commission under Section 50 of the 2015 Act. The definitive anti-dumping duties imposed on the import of Duplex Board from each of the Exporting Countries were as follows:-

12. The said notice of final determination was preceded by report dated 27.07.2017 of the Commission for final determination and levy of definitive anti-dumping duties on the import of Duplex Board into Pakistan from the Exporting Countries.

13. The appellants preferred an appeal under Section 70(1)(ii) of the 2015 Act against the noticeof final determination dated 29.07.2017 before the Appellate Tribunal. Vide judgment dated 29.01.2020, the said appeal was dismissed. The said notice of final determination and the judgment of the Appellate Tribunal have been assailed by the appellants in the instant appeal.

14. It may be mentioned that by virtue of the final determination dated 27.07.2017, definitiveanti-dumping duties at the rates mentioned in the said determination were imposed on the import of Duplex Board from the Exporting Countries for a period of five years with effect from

12.05.2017. Section 58(1) of the 2015 Act provides that any definitive anti-dumping duty imposed under the said Act shall be terminated on a date not later than five years from the date of its imposition or from the date of the most recent review under Section 59, if such review has covered both dumping and injury, whereas Section 58(3) provides that a definitive anti-dumping duty shall not expire if the Commission determines, in a review initiated before the date of expiry on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within 45 days from public notice of impending termination of the definitive anti-dumping duty concerned, that the expiry of such anti-dumping duty would likely to lead to continuation or recurrence of dumping and injury and such anti-dumping duty shall remain in force pending the outcome of such a review.

15. The sunset review proceedings under Section 58 of the 2015 Act are initiated to see whetherthere is a need for the duties to continue or not. In this case, on conclusion of the sunset review proceedings, the anti-dumping duties on the import of Duplex Board from the Exporting Countries were continued vide the Commission's review order dated 28.10.2022, which the appellants challenged before the Appellate Tribunal in appeal No.554/2022. The Appellate Tribunal vide order dated 22.09.2023 set-aside the review order.

16. Learned counsel for the appellants, after narrating the facts leading to the filing of the instantappeal, submitted that the Commission did not fulfill the requirements under Section 18 of the 2015 Act; that M/s Century Paper, in its annual report, had stated that it could not have 100% production due to unavailability of gas; that this crucial fact escaped the Commission while making the final determination of dumping and injury; that M/s Century Paper has 58% share in the domestic production of Duplex Board; that if the share of M/s Century Paper is excluded, the requirements of Sections 20 and 24 of the 2015 Act for filing an application on behalf of the domestic industry are not fulfilled; that Section 20 provides that an investigation by the Commission shall only be initiated upon a written application by or on behalf of the domestic industry, whereas Section 24 provides that an application shall be considered to have been made by or on behalf of domestic industry only if it supported by those domestic producers whose collective output constitutes more than 50% of the total production of a domestic like product produced by that portion of the domestic industry expressing either support for or opposition to the application; that the final determination made by the Commission under Section 39 of the 2015 Act was not within 180 days of the preliminary determination; that the Commission was supposed to satisfy itself that there was a causal link between the dumping and the injury to the domestic industry; that the Commission could only impose duty in the quantum that would remove the injury; that the Commission did not carry out attribution analysis; and that the Commission did not consider factors such as shortage of natural gas that had contributed to lower sales by the domestic industry.

17. Furthermore, it was submitted that an entity called Merit Packaging is an importer of DuplexBoard; that Merit Packaging and M/s Century Paper are related companies in that they have common directors; that on this basis it can be said that M/s Century Paper comes within the meaning of "domestic Industry" as defined in Section 2(d) of the 2015 Act, and therefore it could file an application under Section 20; that the Commission's finding that the relationship between the said two entities did not take M/s Century Paper out the definition of "domestic Industry" was not based on any justifiable reasoning; and that the Commission did not check the market behavior with respect to the said two entities during the investigation period. Learned counsel for the appellants prayed for the appeal to be allowed.

18. On the other hand, learned counsel for M/s Century Paper as well as the NTC submitted that apublic hearing in the matter took place between 12.05.2017 and 29.05.2017 in compliance with Rule 14 of the Dumping Duties Rules, 2001; that the statement of essential facts was shared by the Commission with all the essential parties in terms of Rule 14(5); that the information sought by the Commission from the importers of Duplex Board was not provided; that the appellants have the option of purchasing Duplex Board which is not imported into Pakistan from the Exporting Counties; that the causal link between the dumping and the injury to the domestic industry has been adequately addressed by the Commission in the final determination dated 27.07.2017; that the Commission concluded that there was no contraction in demand for Duplex Board in the market during the investigation period; that the Commission carried out the attribution and nonattribution analysis in accordance with Section 18 of the 2015 Act; and that the final determination has been made within the permissible timeframe provided in Section 39 of the 2015 Act. Learned counsel for the respondents prayed for the appeal to be dismissed.

19. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant appeal have been set out in sufficient detail in paragraphs 2 to 15 above and need not be recapitulated.

20. Anti-dumping duty is not a tax but a trade remedial measure the purpose whereof is to offsetthe injurious effect of the dumping of imported products. It is to protect the domestic industry from such injurious effects. Section 3 of the 2015 Act empowers the Commission to impose antidumping measures on products imported into Pakistan when it determines, pursuant to an investigation initiated and conducted in accordance with the provisions of the said Act that (a) an investigated product is dumped within the meaning of the said Act; (b) injury is being caused to domestic industry within the meaning of the said Act. Section 2(d) defines "domestic industry" to mean domestic producers as a whole of a domestic like product or those whose collective output of that product constitutes a major proportion of the total domestic production of that product except when any such domestic producers are related to the exporters or importers, or are themselves importers of the allegedly dumped investigated product. For dumping, an applicant has to show that the imported product is sold at rates less than the normal export price in the country from which the export took place. Section 2(f) of the 2015 Act defines "dumping margin" in relation to a product to mean the amount by which its normal value exceeds its export price.

21. The Commission received application dated 21.12.2015 under Section 20 of the 2015 Act fromM/s Century Paper on behalf of the domestic industry manufacturing Duplex Board. M/s Century Paper alleged that Duplex Board was being exported to Pakistan at dumped prices from the Exporting Countries. M/s Century Paper had also asserted that the dumped imports of Duplex Board had caused and was causing material injury to the domestic industry of Pakistan manufacturing Duplex Board. The Commission initiated the investigation by issuing notice dated 30.01.2016 under Section 27 of the 2015 Act. The said notice was published in the official Gazette and newspapers having wide circulation in Pakistan. On 11.05.2017, the Commission made a preliminary determination in the investigation in terms of Section 37 and issued a notice of preliminary determination which was also published in the official Gazette and two newspapers of wide circulation in Pakistan. The Commission had imposed provisional anti-dumping duties at the rates ranging from 12.87% to 15.12% on the import of Duplex Board from the Exporting Countries.

22. On 29.07.2017, the Commission issued a notice of final determination under Section 39 of the2015 Act. This notice was also published in the official Gazette and two newspapers having wide circulation in Pakistan. The Commission had imposed definitive anti-dumping duties on the import of Duplex Board from the Exporting Countries at rates ranging from 14.98% to 18.57%.

23. The appeal preferred by the appellants against the final determination was dismissed by theAppellate Tribunal vide judgment dated 29.01.2020, which has been assailed by the appellants in the instant appeal.

24. The primary ground agitated by the appellants was that the Commission, while issuing noticeof a final determination, did not consider whether injury to the domestic industry was caused by other factors or by the dumped imports, and in this way the requirements of Section 18 of the 2015 Act were violated. Section 18(1) provides inter alia that the consideration of a causal relationship between dumped imports and injury to domestic industry shall be based on an examination by the Commission of all relevant evidence before it. Section 18(2) requires the Commission to examine any known factors other than dumped imports which caused injury to domestic industry and injuries caused by such other factors shall not be attributed by the Commission to the dumped imports.

25. Once the Commission determines that there is injury to domestic industry due to the dumpedimports then Section 18 requires the Commission to link the injury to the domestic industry with the dumped imports. This is known as the attribution analysis. For attribution the factors mentioned in Section 18(3) are to be seen. These factors are reproduced herein below:-

"(a) volume and price of imports not sold at dumping prices;

(b) contraction in demand or changes in the patterns of consumption;

(c) trade restrictive practices of and competition between foreign and domestic producers;

(d) developments in technology; and

(e) export performance and productivity of domestic industry."

26. The appellants assert that the Commission failed to consider factors such as gas shortage,power outage, portfolio management, plant shut down for maintenance, etc. which had adversely affected the operation of the domestic industry. To demonstrate that injury to M/s Century Paper had been caused by factors other than the import of Duplex Board by the appellants, the appellants referred to M/s Century Paper's Director's Report for the year 2010 wherein it is mentioned that the optimized operation of its machines could not be achieved due to frequent stoppages (77 days) in the supply of natural gas, although the company had standby arrangements for alternate fuel, but due to insufficient margins the company did not find it feasible to use these for production. In the Director's Report for the year 2011, it is mentioned that optimal operation of machines could not be achieved due to frequent stoppages in the supply of natural gas during the winter months. In this report, it is also mentioned that the company used the expensive option of continuing production on alternate fuel as better margins of the products supported by the demand in the market made it feasible to use this option. In M/s Century Paper's annual report for the year 2015, the Chairman of the said company, in his message to the shareholders, had stated that the company had gone through difficult time in the year 2013-14 as its original planning was disturbed due to the total closure of gas supply from the end of December 2013 to March 2014. It was also stated that in the summer as well gas was supplied for just two days in a week and this had caused the company to revert to expensive alternate fuels which seriously impacted on the company's performance. It ought to be borne in mind that the Chairman, in his message, had also stated that the year for the paper board industry in Pakistan was hostile due to the international slump in the paper board prices which led to the influx of Chinese product in the market and this had hit the company hard.

27. Article 3 titled "Determination of Injury" in Part I of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade, 1994 provides inter alia that the demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities, and that the authorities shall also examine any known factors other than dumped imports which at the same time are injuring the domestic industry, and the injuries caused by these other factors must not be attributed to dumped imports. The factors which could be relevant in this respect include inter alia the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between foreign and domestic producers, developments in technology, and the export performance and productivity of domestic industries.

28. Heavy reliance was placed by the learned counsel for the respondents on the finding of theCommission recorded in the final determination that as per the data regarding installed capacity, quantity produced and the capacity utilization for the period from 2012 to 2015, the installed capacity of M/s Century Paper remained the same over the period of time and its production had reduced over time and so did the capacity utilization. This was taken as evidence of injury caused to the domestic industry due to the dumped imports of Duplex Board from the Exporting Countries.

29. There is no denying the fact that the Commission, in its report dated 27.07.2017, determinedthat the imports of Duplex Board increased significantly compared to the domestic consumption during the period of investigation. This determination was made after the Commission discussed the volume of dumped imports, price effect, price undercutting, price depression, and price suppression of Duplex Board in Pakistan. The Commission also determined that the landed cost of Duplex Board undercut the prices of Duplex Board produced domestically throughout the period of investigation and that this had resulted in decrease in the price by the domestic industry by 5.21% in the year 2014-15 so that it could compete with the price of Duplex Board imported into Pakistan. It was also determined that the increased volume of dumped imports and significant price depression during 2014-15 had adversely affected the domestic industry. The said report also determined that the sales of the domestic industry had significantly reduced by 17% while the market share of domestic industry reduced by 11% and production decreased by 17% during the period of investigation, and that due to the impact of the dumped imports M/s Century Paper's profit earning position in the year 2012-13 got converted into loss making in the year 2014-15.

30. The Appellate Tribunal aptly negatived the appellants' said contention by relying on the reportof the World Trade Organization Penal in the dispute titled "European Union - Anti-Dumping Measures OLN Biodiesel from Argentina (WT/DS 473/R)", which reads thus:-

"The concept of injury envisaged by Article 3 relates to negative developments in the state of the domestic industry. Article 3 is not intended to address differences in the structures of the domestic industry as compared to that of the exporting Member. Rather, it is clear from the text of Article 3.5 and from its indicative list of such "other factors" - which all pertain to developments in the situation of the domestic industry - that the authority is not required to conduct a non-attribution analysis with respect to features that are inherent to the domestic industry and have remained unchanged during the period considered by the investigating authority for purposes of its injury analysis."

(Emphasis added)

31. Paragraph 61.1 of the Commission's report on the final determination dated 27.07.2017 showsthat in accordance with Section 18(2) of the 2015 Act, the Commission had also examined factors other than dumped imports of Duplex Board which could at the same time cause injury to the domestic industry in order to ensure that possible injury caused by other factors is not attributed to the dumped imports. The Commission came to the conclusion that imports from sources other than the Exporting Countries were in insignificant quantities. The Commission collected data on the import of Duplex Board from other sources and concluded that the quantity of the dumped imports from the Exporting Countries was numerous times in excess of the imports from other sources. Bearing in mind the requirements of Section 18(3) the Commission, after carrying out necessary examination, determined that (i) there was no contraction in demand; (ii) there was no considerable change in technology to produce Duplex Board; (iii) the domestic industry did not export Duplex Board during the period of investigation; and (iv) during the period of investigation, there was no change in trade restrictive practices. The appellants did not refer to any material on the record to show that the said conclusion of the Commission was erroneous. In the case of Bashir Ahmed Vs. Mst. Taja Begum (PLD 2010 SC 906), it was held inter alia that not all instances of a Court's failure to decide an issue will suffer for the purpose of allowing an appeal. It is only a failure to decide material issues, which will enable an aggrieved party to invoke the jurisdiction of an appellate Court. The question of materiality, that is, whether or "not an issue is of a material nature, will depend upon whether the ultimate decision of the Court of first appeal would have been different, if the omitted issue had been determined by it." Since all the relevant factors were taken into consideration /by the Commission before determining the injury to the domestic industry was due to the dumped imports, I find no reason to interfere with the concurrent orders / judgments of the Commission and the Appellate Tribunal.

32. The appellants have also alleged that the final determination made by the Commission underSection 39 of the 2015 Act was not within 180 days of the preliminary determination. Section 39(1) of the 2015 Act provides that the Commission shall normally make a final determination of dumping and injury within one hundred and eighty days of the date of publication of a notice of preliminary determination in the official Gazette under Section 37(3) of the said Act. There are essentially three stages of investigation - the first is the initiation of the investigation under Section 27; the second is the issuance of the preliminary determination under Section 37 where the Commission takes a prima facie view that provisional measures are to be imposed; and the third is the making of a final determination under Section 39. In the case at hand, the preliminary determination in terms of Section 37 was made by the Commission on 11.05.2017 whereas the final determination was made on 27.07.2017. This would make the final determination having been made within 180 days of the preliminary determination.

33. Section 29 of the 2015 Act requires the Commission to conclude an investigation within twelvemonths, and in no case more than eighteen months, after its initiation. In the case at hand, the investigation was initiated on 30.01.2016 and concluded on 27.07.2017, i.e. within eighteen months. It is not disputed that within this period extensive litigation had taken place. Nevertheless, the final determination was made within the period prescribed in Section 29 ibid.

34. The appellants had also alleged that M/s Century Paper was associated with another entitynamely, Merit Packaging Limited, which was an importer of Duplex Board. This ground was raised by the appellants to bring home the point that since an entity associated with M/s Century Paper had imported Duplex Board, it could not be categorized as "domestic industry" as defined in Section 2(d) of the 2015 Act. M/s Century Paper held a share of 58% of domestic sales of Duplex Board, and along with Bulleh Shah Packaging (Pvt.) Ltd., (which was supporting M/s Century Paper's application to the Commission), it held a share of 62% in the domestic production of Duplex Board. The definition of "domestic industry" does not include a domestic producer which is related to the exporters or importers of the product in question. M/s Century Paper and Merit Packaging Limited have one common director. The question that would arise is whether the factum as to the import of Duplex Board by Merit Packaging Limited would take M/s Century Paper out of the ambit of the meaning of "domestic industry." To answer the said question, reference ought to be made to the Explanation to Section 2(d) of the 2015 Act up to its first proviso, which is reproduced herein below:-

"Explanation. - For the purpose of this clause, producers shall be deemed to be related to exporters or importers only if -

(i) one of them directly or indirectly controls the other;

(ii) both of them are directly or indirectly controlled by the same third person; or

(iii) together they directly or indirectly control a third person;

Provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For that purpose one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter."

35. The Commission, while issuing the final determination, dealt with the said assertion in thefollowing terms:-

"17.6 In the light of above and the facts that Merit Packaging Ltd. imported only an insignificant quantity (0.5% of total import and 0.1% of total domestic consumption) during the POL Further the import by Merit Packaging Ltd. [was] for its internal consumption and the Applicant did not derive any benefits from the transaction. Above all the Applicant is a major producer of investigated product and its share in domestic sale is major proportion of total sale by the domestic industry (58%) therefore it cannot work differently than any unrelated producer of investigated product."

36. The Appellate Tribunal also held that the exclusion of any producer from the ambit of "domestic industry is dependent upon the expected behaviour of the firm concerned, and its expected behaviour is dependent upon its interest as a producer and not as an importer. Indeed M/s Century Paper was the largest manufacturer of Duplex Board and itself filed the anti-dumping application. By doing so, it could not be expected that its interest would be in importing Duplex Board directly or indirectly. No material was placed on the record to show that M/s Century Paper had imported any Duplex Board from the Exporting Countries during the period of investigation. Merit Packaging Limited with which M/s Century Paper is alleged to be related to import an insignificant quantity equivalent to 0.5% of the total imports of Duplex Board into Pakistan. The investigation also revealed that the import of Duplex Board by Merit Packaging Limited was for its own consumption and not in any way for the benefit of M/s Century Paper. The allegation as to the said entities having a common director cannot result in a finding that M/s Century Paper was related to Merit Packaging Limited. The Appellate Tribunal observed that both entities are independently registered; they have their own books of accounts; prepare their own financial statements; file their own tax returns; and are answerable to their own shareholders in any annual general meeting. Thereafter, it was observed that it was highly unlikely to believe that one entity can be benefitted over the cost of profitability of the other. As there was no evidence to prove that M/s Century Paper controlled Merit Packaging Limited or vice versa, it was held that one does not control the other. I have been given no reason to fault the said finding of the Commission.

37. Ordinarily, appellate jurisdiction involves a rehearing, as it were, on law as well as facts and isinvoked by an aggrieved person. Such jurisdiction may, however, be limited in some way, as for instance has been done in the case of second appeal under Section 100 of the Code of Civil Procedure, 1908 ("CPC"). This Court in the case reported as Sohail and Company Vs. AntiDumping Appellate Tribunal, Islamabad (2024 PTD 872) treated an appeal under Section 70(13) of the 2015 Act to be akin to and having the characteristics of a second appeal under Section 100 CPC. In this regard, paragraph 39 of the said judgment is reproduced herein below:-

"Examination of Section 70(13) of the Anti-Dumping Act reveals that it simply provides that the decision of the Appellate Tribunal shall be appealable in the High Court. Thus the essential character of a second appeal under Section 100, C.P.C, is not altered. There is nothing to indicate that a wider jurisdiction has been conferred upon the High Court while hearing such an appeal. Consequently, I find great merit in the argument raised on behalf of the Respondent No.2/Commission that the instant C.M.As. are subject to the same restrictions as prescribed under Section 100, C.P.C. In similar circumstances, the Supreme Court of AJ K in the case of Raja Abdul

Qayyum Khan v. Choudhary Latif Akbar and 2 others, 1994 MLD 2108 while relying upon Sher Bahadur Khan alias Malik Bahadur Khan v. Abdul Sam ad Khan and others, PLD 1975 Peshawar 124 held that the scope of interference in appeals before the High Court arising from Election Tribunals is co-extensive with and subject to the limitations under Section 100, C.P.C Therefore I will decide the matter on the merits of the case keeping in view the restrictions enshrined in Section 100, which are reproduced hereunder for convenience:

a) the decision being contrary to law or to some usage having the force of law;

b) the decision having failed to determine some material issue of law or usage having the force oflaw;

c) a substantial error or defect in the procedure provided by this Code or by any other law for thetime being in force, which may possibly have produced error or defect in the decision of the case upon the merits."

38. Section 70(13) of the 2015 Act makes the appellate decision of the Appellate Tribunal appealable to the High Court. Since this Court is to entertain the appeal under the said Section within the limits prescribed by Section 100 CPC, it is not open to the parties to demand reappraisal of the evidence by this Court. There is absolutely no question of law involved in the second appeal for me to interfere with the concurrent findings of fact arrived at by the Commission and the Appellate Tribunal on a proper appreciation of the material on the record. Consequently, the instant appeal isdismissed. No costs.