TMI Blog2000 (2) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... AG. Germany Exporters other than above 13255 13255 2. Country of origin: Korea RP Korea Kumho Petrochemical Co.Ltd., Exporters other than above 8316 8316 3. This appeal is filed by M/s. Rishiroop Polymers Pvt. Ltd., Mumbai as sole agent of NBR manufactured and exported by Korea Kumho Petrochemical Ltd. (KKPL), Korea R.P. 4. In the appeal, the appellants have challenged the final findings among other things that Rule 7 pertaining to keep the material evidence as confidential be held to be bad in law, final findings are violative to the appellant s fundamental right to trade under Article 19(1) (g) of the Constitution of India and levy of anti dumping duty is contrary to the provisions of Article 265 of the Constitution of India. When this was brought to the notice of the appellant s counsel at the time of hearing he submitted against the preliminary findings on the very issues the party has filed a Writ Petition before the High Court at Delhi and accordingly he is not raising such issues before the Tribunal. Infact, he cannot for the reason that Tribunal being a creature of the Statute cannot go into vires of the provisions of the very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the imported article and the like domestic articles. 8. In our law, the condition of competition between the imported products is conspicuously absent and the absence of such words makes lot of difference. In the absence of such words and since the conditions of clause (a) (b) of III have been fulfilled, the plea of the appellants Counsel is not tenable. No argument was advanced on behalf of the appellants that D.A. went wrong in cumulating the Countries by violating the provisions contained in clause (iii) of Annexure-II to the Customs Tariff (Determination of Injury D.A.) Rules. We do not find any valid reason to disturb the view taken by the Designated Authority, in cumulating the imports of Germany and Korea for the purpose of assessment in determining the injury. 9. The appellants counsel has strenously argued that no injury has been caused to Domestic Industry. Infact, he said that Petitioner Company has earned a profit of 156 lakhs during the period of investigation (94-95). He has taken us through the entire records. Referring to the page No. 70 of the paper book, he submitted that as per petitioner s own statement that capacity of NBR utilization has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red. He said that petitioner industry has not only suffered losses in respect of NBR but also they were compelled to close the unit of NBR and shifted to other product, viz, HSR due to dumped imports. He submitted that D.A. has not determined injury on the basis of any single parameter but on several factors, production, capacity utilization, sales quantities, average sales realization, stock, financial losses and all these parameters collectively and cumulatively establish that the domestic Industry has suffered injury. He said that method adopted by the D.A. in determining the fair selling price was same as that of products imported from Japan and the view taken by the D.A. was approved by the Tribunal in the case of Nippon Zeon Co. Ltd. v. Designated Authority [1997 (96) E.L.T. 126]. 11. Dumping, Material injury and Causal link are the important factors to determine anti dumping duty. The appellants have not questioned findings of the D.A. with reference to dumping margin. Since the normal value determined is not interfered with, the margin of dumping determined has to be upheld. It necessarily follows that the exporters have dumped NBR in India. Whether any injury has been ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of business of M/s. Apar Ltd., In so far as its NBR operations are concerned the same are in losses. While determining the injury the D.A. has adopted the same yardstick which was adopted in respect of goods imported from Japan. On going through the worksheet of the Authority and confidential information placed before us we find that fair selling price of NBR was determined at the optimum level of capacity utilisation for the period of investigation. In the case of NIPPON Zeon Ltd. Tribunal observed that the question of injury to domestic Industry cannot be decided by assuming ideal conditions but has to be decided on prevailing conditions though giving reasonable adjustments. Since method adopted by the D.A. in determining fair selling price has already been approved by the Tribunal in upholding the earlier order, we are not inclined to disturb this finding also. But fair selling price arrived at by the Authority in the investigation relating to imports from Japan cannot be adopted in this case due to variation in prices of raw materials, utilities and services due to change in time, as it was rightly pointed out by the Counsel for the Designated Authority. Assessment has got a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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