TMI Blog2003 (6) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... 500/100 falling under Chapter 23 or 29 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, the European Union and Singapore, and when exported by the exporters mentioned in Column (3) of the Table annexed hereto, and imported into India, an anti-dumping duty at the rate which is to be calculated as the difference between the amount mentioned in Column (4) of the said Table and the landed value of such imported Vitamin AD3 500/100 per kilogramme. S.No. Name of Country/Territory Name of the Producer/ Exporter Amount (in US dollar per kilogramme) (1) (2) (3) (4) 1. European Union All Exporter/producers (other than M/s. BASF Aktiengesellschaft, Germany through M/s. BSEA, Singapore) 41.13 2. Singapore All other Exporter/pro-ducers 41.13 It is to be noted from the Table above that in respect of European Union producers/exporters, the levy was on all exporters/producers other than M/s. BASF, Germany. Same is the position in respect of exports from Singapore also. The Customs Notification was issued pursuant to and in conformi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prices with that normal value. Learned Senior Counsel pointed out that the Apex Court had held in the case of Haldor Topsoe A/S that European Union is one territory for the purpose of determination of normal value. It is his contention that once the Designated Authority had determined (from the data furnished and considered) the normal value for AD3 manufactured by BASF that amount was required to be treated as the normal value for exports from the entire European Union. It was contended that the domestic and export to India prices of BASF and the appellant were in close proximity, the treatment given to BASF s export should have been granted to that of appellant French Company also i.e. no duty should have been imposed on their exports, as their exports were also above the normal value, thus, involving no dumping. 3. The learned Senior Counsel also pointed that the Designated Authority should have treated the normal value determined for BASF as applicable to the present appellant too, even if the appellant was to be treated as a non-co-operating exporter and normal price determined under facts available standard in terms of Rule 6(8) of Anti-dumping Rules. He pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idelines to the Authority to be adopted in the process of determining the normal value . To some extent these guidelines have been placed in a preferential sequence. For example, if acceptable material is available in regard to the comparable price in the ordinary course of trade in the exporting country or territory itself then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available then the Authority has been given a choice under Section 9A(1)(c)(ii)(a) and (b). The said choice is between the comparable representative export price and cost of production in the country of origin of the goods. The question, therefore, for our consideration is whether an Investigating Authority has any discretion to reject the material produced by one of the party to the proceeding in regard to the alternatives enumerated in Section 9A(1)(c)(ii)(a) and (b) and prefer any other material to establish the normal value. As notices above while the Authority proceeded on the basis that it had the discretion to reject the evidence produced by the respondent, the Tribunal held that the Authority had no such discretion in view of the fact an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry. It was also open to the Designated Authority to adopt the normal price of Indian manufacturer. Learned Counsel submitted that in the present case, the Designated Authority has gone by constructed cost information provided by the petitioner after suitably moderating the data. This action could not be faulted. Learned Counsel for the Designated Authority has submitted that Apex Court had specifically approved of resorting to facts available standard under Rules 6(8) in such cases, in its judgment in the case of Designated Authority v. Haldor Topsoe A/S - 2000 (120) E.L.T. 11 (S.C.). Learned Counsel for the appellants has specifically drawn our attention to Para 16 of this judgment of the Apex Court which is reproduced below : 16. That apart, the use of the words sale of like articles and comparable representative price of the like articles in Section 9(A)(1)(c) referred to hereinabove, also indicates that the statute intended that while determining the normal value the Authority has the discretion to rely on such material as is available before it which reflects the comparable value of the articles concerned; meaning thereby that the authority is not bound to look into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the submissions made by the Counsels representing all the parties. An Anti-dumping duty rests on a tripod. Its three limbs being dumping of foreign made goods to the domestic area, injury to domestic manufacturing industry and casual link between the two. Therefore, the very first question to be answered in an Anti-Dumping investigation is whether there is dumping as alleged in the petition filed by the domestic industry. And Dumping means exporting of any article from any country or territory to India at less than its normal value. Normal value in relation to any article has been defined in Section 9A(1)(c) as the comparable price in the ordinary course of trade for the like article when meant for consumption in the exporting country or territory as determined in accordance with the Rules made under sub-section 6 . In the present case, the investigation has proceeded on the basis that European Union is one territory. During investigation, the Designated Authority had received questionnaire responses from BASF, Germany and the present appellant. The data furnished by the exporters covered information relating to normal value arid other aspects. After due verification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for the secondary information made available to it while seeking to determine normal value under facts available rule. In the present case, the information about normal value in the European Union had sufficient corroboration from the BASF. The constructed cost based information furnished by the domestic industry with regard to normal value for AD3 in European Union also has been shown to be quite unreliable by the normal value determined for BASF. Viewed in that light also the Designated Authority should have accepted the normal value determined for BASF for the present appellant s AD3 export also, rather than the constructed cost put forth by the domestic industry petitioner. 9. Contentions have been raised by both sides, as to how normal value is to be ascertained relying on the judgment of the Apex Court in the case of Designated Authority v. Haldor Topsoe (supra). A careful reading of that decision leaves no doubt that normal value is irrespective of manufacturer. Normal Value is determined for a country or a territory. It has also been made clear that where normal value information is available in respect of one manufacturer located in a country or territory, that nor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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