TMI Blog2006 (10) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... 5) [2006 (206) E.L.T. 155 (Del.)]. The Hon ble High Court had disposed off the writ petition by granting liberty to the petitioner to file an appeal before this Tribunal, holding that if a Notification is gazetted predicated on the impugned final findings in review between that date and the date on which the interim stay application of the petitioner was listed for hearing before this Tribunal, its operation shall be held in abeyance in that interregnum. Central Government in the meanwhile accepted the mid-term review findings of the D.A. and issued Notification No. 99/05-Cus., dated 25-11-2005. The present appeal in challenging inter alia the withdrawal of Anti Dumping duties imposed earlier against EU and Canada and reduction of Anti Dumping duties against USA and Japan, on the following grounds : (i) Initiation of mid term review under Rule 23 was bad as the applicant-exporter did not file relevant information/evidence and also absented himself from the proceedings; (ii) In view of the judgment of the Hon ble the Supreme Court in Rishiroop Polymers v. Designated Authority reported in 2006 (196) E.L.T. 385, (paragraph 37) and Kalyani Steel Ltd. v. Designated Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition under Rule 18 and the criteria laid down under Section 9A(5) and Rule 23 by referring to the judgment of the Hon ble the Supreme Court in Rishiroop Polymers case. 6. It was submitted that Rule 23 provided only for full or partial withdrawal of duties imposed for a period of five years, if it was amply demonstrated that the continuation of such duties was no longer warranted. The conspicuous absence of Rule 4(d) which obligates the application of lesser duty in rule 23(3) was also emphasized. On this basis, it was argued by D.I. s representative that the incorrectly calculated negative injury margin cannot be sustained in law. To support this contention, the ratio of the order of this Tribunal in Saudi Basic Industries Corporation and Others v. Designated Authority - 2006 (200) E.L.T. 488 (Tribunal) (Final Order No. 20-24/06-AD, dated 4-5-2006) that Rule 14(d) which provides for de-minimis dumping margin, was not applicable for reviews under Rule 23 as the said Rule was conspicuously absent in Rule 23(3). According to the learned Counsel for the appellant D.I., the Hon ble the Supreme Court in Rishiroop Polymers case has already held that the entire purpose of revie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 9A(5) of the Customs Tariff Act, 1975, the anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition subject to condition that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. The review is done by the Designated Authority under Rule 23 of Anti Dumping Rules. According to Rule 23 of Anti Dumping Rules, the Designated Authority shall from time to time, review the need for continued imposition of anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for continued imposition of such duty recommend to Central Government for its withdrawal. In case of review, the provisions of Rules 6 to 11 and 16 to 20 of the Anti Dumping Rules are applicable. The sunset review has therefore to be undertaken under Section 9A(5) before expiry of five ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty should not exceed the margin of dumping, it implies that a determination was required as to whether a duty lower than the margin of dumping was adequate to address the injury suffered by the domestic industry. It was, therefore, mandatory for the Designated Authority to determine the injury margin both in the case of mid-term review as well as in sunset review. 13. According to the learned Counsel for the exporter, the determination of NIP has never been challenged in this case and that the landed value was determined in respect of series 300 - 400 based on the data identified from DGCI S data. In view of this, the findings on causal link can never be questioned. A perusal of D.A s record by us indicates that sufficient information was made available by the exporter, enough to ignite the process of review. It is our considered opinion that it is for the Designated Authority to find the information adequate or inadequate and that in this case the information supplied was found adequate enough to trigger the review proceedings. The applicant had fairly demonstrated that the landed value was much fatter than the minimum import price and that the moods of inflation were also tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export prices were above the non-injurious price level was also found adequate mention. 16. The details indicated hereinabove in our view cannot be brushed aside as inadequate grounds and sketchy data as argued before us. Miles and miles of forests can be burnt into ash, with just a spark of fire. While a heap of data can prove meaningless, a word or a syllable can work wonders as a mool mantra or beej mantra. 17. Coming back to the essential reasons to introduce a favourable treatment to the EU and Canada, the impugned notification has made detailed analysis. During the review proceedings, the appellant D.I. had furnished information regarding injury, cost of production besides arguments, valid enough to treat the appellant company as domestic industry within the meaning of Rule 2(b). It is also on record that some exporters namely M/s. Acerinox SA Spain, M/s. JFE Steel Corporation, Japan and M/s. Otokumpu had raised certain points before D.A. though none of them or any other exporter has furnished questionnaire response. This in no way can prevent the application of mind on the part of D.A., who is, in our opinion, adequately armed vide Rule 4 to establish dharma. He is rath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er could seek refund of duty under Section 9AA of the Customs Tariff Act if they felt that their dumping margin during a particular period was less than the dumping margin ascertained during the original POI. 20. We find that the authority has analyzed the various injury parameters of domestic industry on aggregate basis in respect of like articles of subject goods; this is as per the requirement of Rule 11(2). He has also relied upon the data relating to volume of imports as per DGCI S data. While examining the price undercutting, the authority considered the sales realization of the domestic industry for subject goods and compared it with the landed value of imports from subject countries. The price undercutting in respect of two series namely 300 - 400 indicated negative value in respect of EU. He also examined the price undercutting on an aggregate basis by comparing the weightedge average sales realization of domestic industry for all series. It was found that there was negative price undercutting in respect of imports from EU and marginal negative price undercutting imports from Canada. It was also found that the domestic industry had increased its production capacity in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the path to recovery. The improved performance by the domestic industry on parameters like production, capacity utilization, sales, improved market share, higher productivity and growth can also be attributed to the anti-dumping duty imposed in year 2001 as well as to the general improvement in the state of steel industry worldover. The domestic industry continued to suffer losses in the sale of subject goods, though the losses have declined significantly. Thus the domestic industry continued to suffer material injury. 36. Causal Link and Likelihood of recurrence of dumping and injury : As per the above evaluation, the authority found that the demand of the subject goods has been rising. There was an increase of 71% in demand during the POI over the year 2000-2001. The domestic industry has increased the production capacity of 90,000 MT, the domestic industry achieved a capacity utilization of 61.61% during POI. Their share in total demand has also increased to 63.51% from 54.64%. These trends indicate that the domestic industry is on the path to recovery. However, the available data regarding imports showed dumping from subject countries in different magnitude. The improved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Even assuring this as correct, this is not considered significant by the Authority. In addition the Authority also found the trend of sales realization of the domestic industry increasing during POI. In respect of imports from Canada also the Authority found that the injury margin in respect of imports from Canada is negative as the landed value of dumped imports is higher than the Non-injurious Price of the domestic industry for subject goods in the comparison made at the aggregate level of imports. As regards the argument of the domestic industry that price-underselling evaluation is of no relevance in this review investigation due to the existing duties on a reference price basis, the Authority s views are that the Authority invariably determines NIP in every review investigation. Moreover, the same export prices have been used for determining dumping margins. Therefore, the export prices are relevant and so also the analysis of price under cutting and price underselling. The Authority therefore, is of the view that since the injury margin is negative in respect of imports from EU and Canada, anti dumping duty may not be recommended on imports of subject goods from EU and Canada ..... X X X X Extracts X X X X X X X X Extracts X X X X
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