TMI Blog2000 (1) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... lined to agree with the exporters/importers that only metcoke with ash content of 15% and below is a like article to the metcoke imported from China RP. Based on the information available with the Authority at the time of initiation, the petitioner had the standing to file the petition on behalf of the domestic industry. The petitioner satisfied the criterion for standing at the time of preliminary findings, considering the scope of the like article , as defined in the preliminary findings. Petitioner now has support of 100% of those producers production of whose constitutes like article . The Authority has constructed the normal value of metcoke in China PR based on the information furnished by the co-operative exporters and the information available with the Authority in view of incomplete and insufficient response by the exporters/producers from China PR in spite of specific requests for information. Metcoke originating in or exported from China PR has been exported to India below its normal value. The domestic industry has suffered material injury. Injury has been caused to the domestic industry by the exports originating in or exported from the subject countries. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. (RINL) a major manufacturer of Metcoke and once the production of RINL also is taken into account, the petition would not have the required support of domestic industry and thus, the petition would have no standing. It is not in dispute that if the production of RINL is taken into account, the petition would not have the required support. They have submitted that the designated authority s action in exlcuding RINL for the purpose of computing support/opposition of domestic industry was not correct. The D.A. had excluded RINL on the ground that the product under consideration, i.e. Metcoke, imported from China was below 15% ash content while the Met Coke, produced by RINL contained more than 15% ash, making their product not like article. The authority had also held that the production of RINL is excluded also on the ground that RINL was a captive consumer of its product of Metcoke and was not selling their product in the market. 3.1 The submission of the PR exporters is that the average ash content in the Met Coke produced by M/s RINL during the period of investigation was 15.72%. They contend that the exclusion of this quality coke was not reasonable at all as this quality i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding Standing is not sustainable at all in view of different features of this case. At the initial stage RINL had supported the petition. They changed their stand only subsequently. And once initiation has taken place, standing is no more relevant to the continuation of the proceedings as Rule 14 which relates to termination of proceedings does not stipulate that throughout the proceedings requirement regarding standing should be fulfilled. Further, either on exclusion of captive consumption or on treating metcoke of below 15% ash content a like products also RINL s production would be excluded and the requirement for support would be fulfilled. With regard to the exclusion of captive consumption goods, he has pointed out that proviso to Rule 2(b) which defines domestic industry authorises treating of captive consumption goods as a separate domestic industry. 5. PR exporters contention regarding lack of Standing of M/s BLA to file petition for imposing of Anti-Dumping duty on met coke is based on the exclusion of RINL, a major producer of low ash content met coke, while deciding support/opposition of domestic industry. The exclusion has been sought to be justified on many gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted goods. The economics of producers for captive consumption and of producers for sale are very different. The former saves on the costs of marketing sales, inventory etc. Therefore, these producers are, justifiably, treated as a separate market while computing domestic industry. This is the practice in European Union also. That RINL had sold a part of their produce during the period of investigation does not change their position from that of a producer for captive use. Rule 2(b) defines domestic industry as the domestic producers as a whole of the like article. However, proviso to this definition states that in exceptional circumstances, the domestic industry shall be deemed to comprise two or more competitive markets and the producers within each of such markets be deemed as a separate industry. As the captive consumption producers and producers for marketing constitute different categories of producers, under the proviso, they could be dealt with as separate domestic industries. Thus, RINL s exclusion is legally .correct in the light of the proviso to Rule 2(d) also. In the circumstances, we are not able to find merit in the submissions on standing made by the PR exporters. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-market economies, as a rule. Instead prices are worked out by adjudging the prices of an analogue/surrogate country. In the U.S. also special procedure is used to determine normal value of merchandise exported from non-market economies. In several cases, including for the import of coke from China into U.S., the U.S. authorities have used India as a surrogate country for determining costs in the Chinese market. The Ld. Counsel also has pointed out that accounts of the exporting companies cannot inspire any confidence inasmuch as they are involved in several operations in addition to met coke exports, e.g., China North Industries Corporation is an outfit of People s Liberation Army and is engaged in the export of MBT tanks, AK 47 rifles to CIA etc. according to Reuters Business Briefing, dated 3-6-1998. He, therefore, pointed out that the D.A. was entirely correct to discard the domestic sale prices and in constructing a normal value based on cost of production. He, however, pointed out that the cost of production fixed by the authority was not correct, mainly on account of the allowance of over 19% provided towards the cost of production of by-products recovered in the manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. Therefore, the accounts produced could not be gone by. The vast variation in the cost of production among the exporting companies themselves indicated that the prices are not economic market prices. Therefore, the D.A. had no option but to discard the domestic sale price and construct cost of production from the information made available by the largest producer, exporter, namely M/s. Shanghai Pacific Chemical Corporation following the principle of Best Information Available. 7.2 The second grievance of the appellant is that the D.A. while constructing the cost of production has not accepted the cost accounts of the appellants fully. The dispute in this regard is only with regard to the allocation of cost and price between Metcoke and the by-products emerging in the manufacture of metcoke. The appellants had claimed 47.54% towards by-products. The D.A. considered that to be a highly unrealistic claim. This was again on account of the difficulties in accepting the accounts as kept by the exporter. The M/s. Shanghai Pacific Chemical Corporation were the largest producer and exporter of metcoke in PR among the exporters who responded to the questionnaire of the Authority. The D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered an analogue country with regard to China as cost of production would be somewhat comparable. 7.3 The D.A. has fully substantiated in the order as to how cost and pricing data of the non-market economy of PR is not a reliable indication of economic costs on account of various factors. It needs no argument that price control and subsidy distort prices. Therefore, we are of the view that the D.A. was justified in rejecting the domestic sale prices of PR and modifying the cost of production supplied by the exporter while constructing the normal value based on cost of production. The norm adopted while fixing the realisation from by-product was also highly reasonable. The D.A. s action is in conformity with the definition of normal price in Section 9A of Customs Tariff Act, in as much as that section contemplates a price in the ordinary course of trade which is an economic price which takes in the cost of production and not a skewed price distorted by cross subsidies and governmental control. Accordingly, we reject the exporters submissions on the normal price fixed by the authority. 8. The appellant s objection with regard to the minimum anti-dumping duty recommended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such article. The dumping margin being dependent upon the normal price and export price and export price of the exporters being different, dumping margin varies from exporter to exporter. As the anti-dumping duty should be exporter specific, in the above case that duty must vary from exporter to exporter. We had occasion to consider this issue in our Final Order No. 1099-AD, dated 13-12-1999 in the case of M/s. Halder Topso Ltd. and it was held that anti-dumping duty has to be exporter specific. The submission of the appellant is in conformity with that order and merits acceptance. Anti-dumping duty is therefore, required to be increased to the level of dumping margin in the cases of those exporters whose dumping margin was higher. And the PR exporters who did not participate in the investigation proceedings have to bear duty at the highest rate. 11.2 The export prices in all these cases are available in CIF terms. Therefore, deductions towards freight and insurance etc., are required to be made to bring them to ex- factory levels. The D.A. had accepted a storage expenditure of 4.83 US $ PMT in respect of M/s. Shanghai Pacific Chemical Corporation while fixing the normal value. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tum of protection does not take place on account of changes in the exchange rate. In the present case the appellant domestic industry has shown that the level of protection has fallen from over 19 US $ at the time of final finding to over 16 US $ by now, on account of depreciation of Indian Rupee against US $. This is necessary to carry into effect the purpose of anti-dumping duty and is, therefore, fully in conformity with the law. We, therefore, accept the Indian Manufacturers contention on this score and hold that anti-dumping duty should be imposed in dollar terms in the instant case payable in Indian Rupees. 12. In the light of the above discussions and findings based on the data available on record, we pass the following orders :- 1. China National Coal Industry Import/Export (Group) Corporation 18.35 US $ : 2. China National Mineral Import and Export Corporation. 24.51 US $ : 3. Shanxi Coal Import Export Group Corporation. (Minmetal Group) 19.22 US $ : 4. Ningxia Xiacheng Import Export Corporation. 24.95 US $ : 5. China North Industries Corporation. ..... 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