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TMI Blog2006 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... roducer and exporter) and Lioning Jiayi Metals & Minerals Co. Ltd., (Trader) and recommending reduction of anti-dumping duty in case of Tianjin Jinghai Carbon Plant (Producer) and exported through Liaoning Jiayi Metals & Minerals Co. Ltd. (Trader) and Notification No. 101/2003-Cus., dated 7-7-2003 and Notification No. 102/2003-Cus., dated 7-7-2003 giving effect to the recommendation of the Designated Authority. 2. Statement of Facts 2.1 On the basis of the complaint filed by M/s. Indian Graphite Manufacturers Association on behalf of the domestic industry and on the basis of the final findings of Designated Authority dated 27-3-1998, recommending imposition of anti-dumping duty on import of graphite electrodes originating in and exported from USA, China PR, Italy, France, Spain, Austria, Belgium and Germany, the Central Government imposed anti-dumping duty vide notification No. 20/98-Cus. dated 5-5-98. Sunset review of this notification was initiated before the expiry of 5 years from the date of issue of this notification and under notification No. 109/2002-Cus., dated 10-10-2002 and notification No. 12/2003-Cus. dated 20-1-2003 anti-dumping duties were extended up to 20-4-2003. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpiry would be likely to lead to a continuation or recurrence of dumping and injury. It has to be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping. The focus shifts in an expiry review to the likelihood of continuation or recurrence of dumping and injury. If there is still dumping and/or injury it can be concluded that the expiry or the repeal of the measures will lead to continuation of dumping and injury. If dumping and/or injury have totally or partly been removed the question is whether or not there is a likelihood of a recurrence of dumping and/or injury. The circumstances in the review proceedings are necessarily affected by the measures in force because the situation of the domestic industry would usually be worse without the protection against unfair competition. The existence of anti-dumping measures implies the elimination of injury. A review investigation should lead to a finding of no injury because of the existing measures. Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s likely to lead to recurrence of dumping from the same sources all over again. No examination was done by the Designated Authority on this ground. It was also argued that when duty was imposed, there was only one exporter from China but in the sunset review, three persons have been included. Reliance was also placed on the decision of W.T.O. Panel in WT/DS 244, Volume AB/R dated 15-12-2004, report of U.S. Sunset on Carbon Steel imports from Japan ( Para 103-104). 3.3 The Designated Authority has not checked the accuracy of information given by M/s. S.G.L. Carbon regarding their price as required under Rule 8 of the Anti-Dumping Rules. Commercial behaviour of S.G.L. by diverting their exports from Poland and dumping there from and not exporting the goods during the period of investigation shows that their prices cannot be relied upon without investigation. They have not responded to the questionnaire and did not send information except the broad prices for a particular region. It was also argued that U.C.A.R. did not participate at any stage but no finding has been given about this company by the D.A. 4. Arguments on behalf of exporters/importers Rule 23 of Anti-Dumping Rules co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Authority is required to examine the conditions prevalent at the time of sunset review and to come to the conclusion whether there is likelihood of injury on the basis of such situation. W.T.O.'s decision referred to by the appellants in the case of carbon steel imports from Japan is for whether anti-dumping duty to be continued or not but it does not relate to whether duty can be modified or not. According to Indian law, as stated above, duty can be modified and, accordingly, duty of U.S.$ 234.54 per M.T. was correctly recommended by the Designated Authority. The adjustment of 20% in quality of electrodes was based on the evidence on record. This was disclosed in the disclosure statement and no contrary evidence was submitted by the domestic industry to challenge this position. The adjustment of quality is permitted. Reference was made to para 48 of the Commission Regulation (E.E.C No. 406 to 88 of 23-12-1988). 4.3 On behalf of M/s S.G.L. Carbon, it was argued that under sunset review, according to Section 9A(5) of the Customs Tariff Act, the Designated Authority is required to frame an opinion whether cessation of anti-dumping duty is likely to lead to continuation or recur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umping Rules, the Designated Authority is required to satisfy itself as to the accuracy of the information supplied by the interested parties upon which its findings are based. The information can be found to be correct not necessarily by visiting the manufacturing unit of the supplier of the information and working out the costs but it can be based on other objective basis like information available on record of the Designated Authority, information contained in published International magazine where prices are published for different products for different regions. Therefore, the appellant's plea that verification of the prices was not done in respect of M/s. S.G.L. Carbon should not be accepted. The prices were disclosed to the various interested parties in the disclosure statement. Since nobody has objected to the price declared by M/s S.G.L. Carbon for the different regions, therefore, the Designated Authority was satisfied about its accuracy and taken it into account in forming his opinion on continuation or cessation of anti-dumping duty. 5.2 It was also argued that although U.C.A.R. has not participated in these proceedings but non-cooperation itself does not mean that a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Anti Dumping Rules are applicable. The sunset review has therefore to be undertaken under Section 9A(5) before expiry of five years and for recommending continuation or cessation of such duty. The Designated Authority has to frame opinion whether cessation of such duty is likely to lead to continuation or recurrence of dumping and injury. Thus, the test required for framing the opinion whether the cessation of anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury, the relevant factors to come to such conclusion have to be taken into consideration. The relevant factors may be the change in the pattern of the production, demand and requirement of the dumped product in the importing country since the imposition of anti-dumping duty. The change in the prices in the exporting countries and International market has also to be considered. The prescribed parameter for injury to the domestic industry and also whether domestic industry is exploiting the situation by raising the prices above the International level by taking advantage of anti-dumping duty, is also required to be considered. After taking into consideration these relevant factors, the Des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent evidence that if the anti-dumping duties were withdrawn, the dumping and injury will recur." In para D(b) under heading conclusion, the Designated Authority has given finding that "the various economic indicators and injury parameters imply that the cessation of anti-dumping duty on the subject goods will not lead to continuation or recurrence of dumping and injury and therefore the Authority recommends discontinuance of anti-dumping duty on Graphite Electrodes (U.H.P.) exported to India from subject countries except China. 7. In respect of Normal Power Grade, the Authority under para 5 at page 56 of the paper book, has examined the requirement under Section 9A(5) for cessation or continuation of the anti-dumping duty and observed at page 57 of the paper book that - "since under the present investigation it is to be evaluated as to whether cessation of anti-dumping duties would lead to continuance or recurrence of dumping and injury, the Authority has considered appropriate injury parameters as indicated in Annexure II(iv) of the Rules to evaluate this aspect and after examining the economic parameters in the case of domestic industry relating to Normal Power Grade Electrod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, the landed value of import is required to be increased by 20% or alternatively, cost of production is required to be reduced by 20% while comparing the domestic industry prices for determining the injury. We find that in the disclosure statement dated 27-12-2002, the D.A. has notified that electrodes of China's exporters continued to be inferior as was admitted by the Indian Producer at the time of oral hearing. Due to inferior quality, the consumption of China's electrodes is higher by 20% as compared with the electrodes produced by the Domestic Industry. The Authority has acknowledged this in the original investigation also. In response to this, no rebuttal was given by the Domestic Industry and Panchmahal Steel on whose letter now the appellants are placing reliance has only stated that they have not experienced any technical problem. The letter is silent on consumption pattern. On the other hand, M/s. Arihant Sinotech Corp. has stated that Chinese electrodes are inferior in quality and their consumption is 20% higher. Therefore, we find that in the absence of any evidence contrary to what was disclosed to the domestic industry in the disclosure statement, the Design ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definitive anti-dumping duty. Section 9A(1) of the Customs Tariff Act, gives power to the Central Government for imposing anti-dumping duty not exceeding the margin of dumping. Section 9AA of the Customs Tariff Act provides that where an importer proves to the satisfaction of the Central Government that he has paid any anti-dumping duty imposed under sub-section (1) of Section 9A on any article, in excess of the actual margin of dumping in relation to such article, he shall be entitled to refund of such excess duty. Thus if Sections 9A(1), 9A(5) and 9AA are read together, the effect will be that by review under Section 9A(5) the Designated Authority can recommend the amount of anti-dumping duty which can be equal to the margin of dumping and if he is of the opinion that withdrawal of duty will cause injury to the domestic industry, he may recommend any amount up to the margin of dumping to remove the injury for continued protection of the domestic industry. Therefore, the D.A. can recommend the amount of anti-dumping duty different from the amount of duty imposed at the time of initial imposition of definitive anti-dumping duty). The D.A. has correctly recommended the anti-dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X
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