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2019 (12) TMI 18 - AT - CustomsContinuation of Anti Dumping Duty (ADD) for a further period of 5 years - Legality of second sunset review of the duty which was initiated at the behest of Appellant-domestic industry - imports of “Nonyl Phenol” from Chinese Taipei - case of appellant is that the nature of exercise to be undertaken in the sun set review proceedings is different from the initial exercise which is directed with the objective whether anti dumping duty is warranted or otherwise. Whether the conclusions and the recommendations of the designated authority dated 11.01.2019 against continuation of anti dumping duty on the subject goods Nonyl Phenol from the subject country Chinese Taipei, pursuant to the sunset review, is correct in law or otherwise? HELD THAT:- The decisions in the cases of M/S. PT. ASAHIMAS CHEMICALS VERSUS DESIGNATED AUTHORITY/ MINISTRY OF FINANCE [2015 (2) TMI 912 - CESTAT NEW DELHI] and THAI ACRYLIC FIBRE CO. LTD. VERSUS DESIGNATED AUTHORITY [2010 (4) TMI 389 - CESTAT, NEW DELHI] considered - the object and purpose of the sunset review as explained in the aforesaid judgments, precisely is to examine as to whether on removal of anti dumping duty, there is likelihood of recurrence of dumping and injury to the domestic industry. It has also been held that the degree and extent of dumping and consequent injury to the domestic industry during the POI is not of much relevance. The mandate or requirement under Section 9A(5) of CTA,1975 read with Rule 23 of Anti dumping Rules,1995 and Annexure-II (vii) is that the authority has to examine all relevant aspects to ascertain the likelihood of dumping and injury, once the present anti dumping duty is removed. It is obvious that such determination cannot be based on a guess work or on mere assumption & presumption, but definitely to rest on the past & present facts, influencing the trend of dumping, resultant injury, performance and other relevant economic and other factors relating to the domestic Industries as well as the exporting Industries/countries to analyse and arrive at a probable situation of continuation of dumping and injury in future to the domestic industry. In the present case, admittedly there has been no participation by the exporting industries in the investigation conducted by the DA. The relevant data have been provided by the Domestic Industry and no serious dispute in this regard i.e. authenticity/correctness of the data raised by the DA or interested opposing parties and the data had been accepted without reservation - The finding and conclusion of the designated authority, reproduced below, in nut shell indicates that since the health and condition of the domestic industry is not in bad shape during the relevant period and also as the Appellant could not prove/establish from the existing facts and evidences that there is any likelihood of dumping and injury to the domestic industry that would recur in future once the duty is removed extension of antidumping duty is not warranted. There is a fundamental fallacy in the approach of the DA in the determination of likelihood of recurrence of dumping and injury post removal of the duty on the subject goods from the subject country. There is no dispute of the fact that evidence of past and present circumstances is relevant and necessary to arrive at a reasonable and logical determination of continuation of same scenario in future warranting continuation of antidumping duty or otherwise. However, it is impractical and also illogical to insist on the positive evidences on future events, for determination of the likelihood of dumping and injury in future on removal of duty - the Appellant domestic industry could reasonably establish through present and past evidence that most of these parameters are satisfied in the present case. The dumping margin is in the range of 10-15% and is positive and above de-minimis. Despite anti dumping duty, the earning of domestic industry is meagre 2% and return of capital is around 5% against the normal return of 22%. The landed value of import without anti dumping duty are below the cost of production of domestic industry. The conclusions and the recommendations of the Designated Authority dated 11.01.2019 is not agreed upon - The same is liable to be set aside and consequently the conclusions and recommendations is set aside and matter remanded to the Designated Authority to calculate the appropriate anti dumping duty while taking note of overall circumstances of the case - appeal allowed by way of remand.
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