TMI Blog2011 (8) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... for the Respondent. [Order per : M.V. Ravindran, Member (J)]. These two appeals are directed against Notification No. 1/2009, dated 2-1-2009 issued by the Government of India, Ministry of Finance (Department of Revenue) that imposed definitive Anti-dumping duty on the goods Acrylonitrile Butadiene Rubber (hereinafter referred to as NBR) originating in or exported from Korea RP, Germany, pursuant to the findings recorded by the Designated Authority vide his final findings dated 4-10-2008 in second sunset review of Anti-dumping duty on imports of NBR. 2. The relevant fact that arise for consideration are the Designated Authority had imposed definitive Anti-dumping duty on NBR originating in or exported out of Germany and Korea RP and in the first sunset review, the Designated Authority recommended for continuation of the definitive Anti-dumping duty on the said NBR originating in or exported from Germany and Korea, which was done by the government vide Notification No. 109/2007-Customs dated 9-10-2007, which was valid up to 8-10-2008. The current proceedings are in the second sunset review which was initiated on a petition filed by the domestic industry. The initiation N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant is illegal and is in contravention to the AD Rules. ❖ Amount of duty recommended by the Designated Authority is contrary to the provisions of Section 9A(1) of Customs Tariff Act and read with Rule 18 of AD Rules. ❖ Single weighted average normal value for the exporting country i.e., Korea RP was determined by the Designated Authority is incorrect and unwarranted. (ii) It is his further submission that the Designated Authority has concluded that the appellant had proposals to create reasonably higher additional capacities in the near future is not based on any substantive evidence but on certain press reports, though the said press reports were never disclosed to the appellants to contradict or to defend the same. It is his submission that on the contrary appellants had stated very categorically that there were no plans for capacity expansion. (iii) It is his submission that while determining the volume of imports, data given by the exporters have been used for the period of investigation but the Designated Authority continued to use DGCIS data for the previous years, hence, the conclusion that the volume of imports from the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation was in violation of the provisions, import volume was not properly determined, as consequence entire injury analysis was flawed and positive performance of the domestic industry across a number of examined factors were not given due weight. (viii) It is his submission that dumping margin determined for the appellant was wrong in view of the fact that certain grades of NBR, actual consumption factors reported by the appellants were rejected without assigning any reasons; SGA expenses and financial expenses were not allocated based on turnover following the standard practice and while calculating weighted average normal value, weight given to various grades of product concerned sold in the domestic market and export market was not uniform resulting into a skewed weighed average normal value. It is his submission that the definitive Anti-dumping duty imposed of US $ 38.73 is disproportionate to the dumping margin which is determined as 1.69% for the exports made from Korea RP. Hence, determination of single normal value for Korea as whole is not in accordance with law. 4. Learned counsel appearing on behalf of the Designated Authority would submit that the dumping and inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsuance of the Supreme Court ruling in the Civil Appeal No. 1294 of 2001. It is his submission that this normal value has been compared with the export price for the individual exporters to determine individual dumping margins of the exporters. It is his submission that though the dumping margin was determined less in sunset review, authority considered the Anti-dumping which was imposed previously should be continued. 5. We have considered the submissions made at length by both sides and perused the records. At the outset, it is recorded that the appellants herein are challenging the continuance of definitive Anti-dumping duty imposed on goods originating in or from Korea RP. 5.1 The undisputed fact in these cases is that, mid-term review initiated by the Designated Authority vide initiation Notification dated 8-10-2007 was well within the powers of the Designated Authority as per the provisions of Rule 16 of the AD Rules. It is also undisputed that all the interested parties were informed about the initiation of mid-term review by the Designated Authority. It is also undisputed that all the interested parties filed their submissions to the Designated Authority during the inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of definitive Anti-dumping duty. 5.3 We are fortified in our view by the judgment of the Apex Court in the case of Rishiroop Polymers Pvt. Ltd. v. Designated Authority Addl. Secretary - 2006 (196) E.L.T. 385 (S.C.) wherein their Lordship in paragraph 37, clearly spelt out the role of the Designated Authority in the case of sunset or mid-term review, which is as under : 37. The final findings recorded by the Designated Authority at the time of initial imposition of anti-dumping duty on the existence of injury to the domestic industry must be considered to continue to remain valid, unless it is proved to be otherwise, either by the Designated Authority in suo motto review or by the applicant seeking review. In the present case, the review had been initiated by the Designated Authority. Neither the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given by the Designated Authority at the stage of initial anti-dumping duty. 5.4 In these cases before us in hand, the Designated Authority has recorded the likelihood of continuance of the dumping and the injury in Paragraph 109, 110, 111 and 112, which is as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of capacity expansion given the rising export volumes. There are also reports of LGC s and KKPC s planned capacity expansion in the press. ❖ Total sales have remained close to production levels or exceeded them, particularly in the POI, which again supports the possibility of capacity expansion. 112. It is also a fact that despite anti-dumping duty in place for 10 years, the imports from Korea have not shown any decline. On the contrary, as KKPC has its admitted, the quantities exported by them to India have consistently remained at about 30% of total demand in the country. Demand itself has been growing rapidly during the injury period. After recording the above examination, the Designated Authority has held that the subject goods are being dumped from the Korean RP and there is likelihood export to India continuing at the dumped prices leading to consequential injury to the domestic industry and that a domestic industry is likely to continue to incur loses if the duties are either revoked or reduced in terms of imports from Korea. It is also recorded that the domestic industries continue to suffer material injury on account of low per unit realization due to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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