TMI Blog2014 (1) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... st US, EU, Singapore, Chinese Taipei and South Africa as well as South Korea. The Authority considered that the data provided by the domestic industry was for a period of nine months and that was inadequate to investigate into various aspects of the exports as per standard practice since POI normally comprises a period of twelve months. None of the findings of the DA appears to be without evidence or legal basis. Therefore, it is not possible to impeach the findings in absence of cogent evidence to the contrary brought to our notice by the appellant - when investigation against export from subject country was initiated, the exporters of all those countries were equally treated having their export above de minimus level. But exports from South Korea were below the de minimus level. That made the basis unequal, calling for separate treatment by a separate Notification and investigation. That was rightly done by DA following the basic principle that equals are equally treated. Therefore, the term ‘simultaneous investigation’ is to be read in the context of language employed in 1995 Rules specifying that import of product from more than one country, if subjected to investigation und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dumped imports from subject countries; 3. During currency of levy of definitive antidumping duty by the customs notification aforesaid, sunset review has also been initiated. 4.1. Hindustan Organic Chemicals Ltd. Mumbai and M/s Schenectady Herdiallia Ltd. Mumbai (Renamed as SI Group Ltd.) constituting domestic industry, producing 100% of total production of Acetone in India, made an application dated 27.02.2006 to the Designated Authority alleging dumping of subject goods originating in or exported from subject countries including South Korea. The said authority observing that the data provided by Domestic Industry related to a period of nine months and that was inadequate for conducting investigation, issued deficiency letters to the domestic industry to respond to the same for consideration. 4.2. In response to the deficiency letter, the domestic industry expressed difficulty in procuring import data as well as stated that dumping of subject goods from subject countries including from South Korea aggravated from October 2005. Prima facie, noticing that there was dumping of subject goods and injury was caused by such dumping, the DA took steps for initiation of investigatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings, provisional antidumping duty was levied by the Ministry of Finance by Customs Notification No. 77/2007-Cus dated 19/06/2007. 5. Subsequent to levy of provisional antidumping duty, detailed investigation was carried out by the DA. He considered the data/information of the following exporters from the subject countries to determine the dumping and dumping margin as well as to make injury analysis and noted submission of M/s Dow Chemicals to treat it as interested party even though that producer did not export subject goods during POI. 1. M/s Formosa Chemicals Fibre Corporation, Taiwan 2. M/s Sasol Solvents, South Africa 3. M/s Taiwan Prosperity Chemicals Corporation, Taiwan 4. M/s Mitsui Co. Ltd., Singapore 5. M/s Sumitomo Corporation, Singapore and M/s Petrochem Middle East, UAE. 6. The data/information of the following importers were used by DA to cross check the information provided by above exporters and outcome thereof was considered to arrive at the final findings :- 1. M/s National Organic Chemical Industries Ltd., Mumbai 2. M/s Ranbaxy Laboratories Ltd., Gurgaon 3. M/s Lanxess India Pvt. Ltd., Thane, Maharashtra 4. M/s Crescent Chemsol Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exclude that company from purview of domestic industry did not get appreciation by DA. Both the producers constituted domestic industry. DETERMINATION OF NORMAL VALUE, EXPORT PRICE AND DUMPING MARGIN BY DA 10.1. No exporters of USA and EU responded to the initiation Notification. The DA taking the average price reported in ICIS LOR (US Gulf) and ICIS LOR (EUROPE) for the POI determined normal value of exports for these two countries. 10.2. In so far as normal value relating to exports from Singapore is concerned, when the DA found that M/s Mitsui Co. Ltd., an exporter of Singapore although responded to initiation Notification was not a producer, but the export of Acetone to India from Singapore was by M/s Mitsui Phenol Singapore Pte Ltd., and no information was provided by that exporter. In absence of date from them, the D.A, resorted to Rule 6(8) of1995 Rule to determine normal value. 10.3. The DA also noticed that exports of subject goods were made from Singapore by Sumitomo Corporation of Singapore and Petrochem Middle East of UAE. But Sumitomo Corporation was not a producer of subject goods. It made export of subject goods to India. Sumitomo Corporation raised invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was determined in the same manner as that was determined for USA. 11.2. Mitsui Co. Ltd. of Singapore having provided transactions wise information relating to exports, those data were verified and making permissible adjustments towards certain expenses, Ex-factory price of bulk goods was determined accordingly. Sumitomo Corporation of Singapore having raised invoices on M/s Petrochem Middle East, UAE, transaction wise information provided by the said exporters was considered and export price of bulk goods was determined making necessary adjustments for UAE exports made to India in Para 35 of final finding. So far as non-cooperating exporters are concerned, their export price was determined taking data from data bank of DGCI S for exports of bulk goods from Singapore, making necessary adjustments towards permissible expenses. 11.3. The export price of Sasol Solvents, the appellant exporter from South Africa, was determined taking the data relating to bulk goods and packed goods provided by that exporter and ex-factory export price was determined making necessary adjustment for permissible expenses. In so far as non-cooperating exporters of South Africa is concerned, the export ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Formosa Chemicals *** *** *** *** *** *** *** *** 14.43% M/s Taiwan Prosperity *** *** *** *** *** *** *** *** 13.84% Non-cooperating exporters *** *** *** *** *** *** *** 38.78% USA Non-cooperating exporters *** *** *** *** *** *** *** *** 80.57% European Union Non-cooperating exporters *** *** *** *** *** *** *** *** 86.83% INJURY ANALYSIS AND CUMULATIVE ASSESSMENT BY DA 13.1. Considering submissions of domestic industries and cooperating exporter as well as importer, the Designated Authority made Volume Effect analysis of the dumped imports from subject countries simultaneously and impact of dumping on domestic industry. Cumulative assessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit 2003-04 2004-05 2005-06 July 05 to June 06 Selling price-DI Rs/MT Trend Indexed 100 131 119 113 Customs Duty % 25 20 14.79 14.17 Landed Value USA Rs/MT 32723 48653 38394 37553 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 1-10% NIP *** *** Price Underselling 5-15 Europe Rs/MT 33244 47052 43764 37763 Price Undercutting Rs/MT *** *** *** Price Undercutting % NIP *** Price Underselling% Price Underselling 1-10 5-15*** were confidential in nature for which not depicted by DA. 13.4. On examination of injury Parameters i.e. profit and actual and potential effects on the cash flow, r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be considered as producer of domestic industry. 14.4. Appellant further submitted that while antidumping investigation related to Acetone, Phenol was excluded from the purview of subject goods in the investigation which was unwarranted. When SI Group was importing Phenol there was no need to exclude the Phenol from the purview of investigation since that importer was considered by DA as producer of the domestic industry. 14.5. It was further argued on behalf of appellant that the constitution of the domestic industry was erroneous when the goods produced by the producers were different. The appellant relied on the decision in Thai Acrylic Fibre Co. Ltd. Vs. Designated Authority - 2010 (253) ELT 564 (Tri.-Del.) and particularly placing reliance on para-22 of the reported decision and para-56 and para-57 of the final findings appearing in para-81 of the appeal folder it was submitted by the appellant that since SI group imported Acetone under Duty Exemption Scheme and HOCL being a sick company, they cannot be domestic industry. 14.6. SI Group having imported subject goods had no right to complain of dumping individually because duty free imports should be excluded for the pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation. In this regard, Article-5 of the WTO Agreement was relied upon to submit that an application for investigation should contain certain particulars. When that was lacking, there should not have been any investigation. The designated authority initiated investigation against exports from South Korea differently which has caused prejudice to the appellant. Reliance was placed on Para 323 of page 381 of the Panel report in Guatimala case in this regard. 14.11. On the above grounds it was prayed by appellant that the appeal may be allowed quashing the final finding of DA as well as customs Notification levying anti dumping duty. CONTENTION OF REVENUE 15.1. On behalf of the Department of Revenue, Ministry of Finance it was submitted by its representative that existence, degree and effect of dumping and injury was determined by proper investigation by DA and that having been done, neither his recommendations nor the Customs Notification can be set aside following the decision of Hon ble High Court of Gujarat in the case of 2013 (291) ELT 327 (Guj.). 15.2. When both producers were manufacturing 100% of the domestic output, they had right to complain when there was dump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m South Africa, was 24.50% of the export value. Similarly, magnitude of injury margin is recorded by DA in Para 102 at page 93 of the appeal folder. Therefore, DA has rightly recommended anti dumping duty and that was rightly acted upon by Customs Notification dated 11.3.2008. 16.3. Both the requirements of the levy i.e. dumping and injury followed by causal link being satisfied, domestic Industry had right to complain for protection by the levy. The appeal is, therefore, liable to be dismissed. 16.4. The DA rightly considered the constitution of domestic industry and entertained the complaint against dumping and injury under Rule 2(b) of the 1995 Rules. The import of subject goods by SI group under advance license was for use in manufacture of final goods meant for export without sale thereof in the domestic market; it was not liable to be excluded from constitution of domestic industry having suffered injury being manufacturer of subject goods. Relying on the decision in the case of Gujarat Fertilizers Chem. Ltd. Vs. Addl. Secy DA - reported in 2012 (286) ELT 348 (Cal.) (para 13) it was submitted that an importer can also be an applicant as a domestic industry and there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect goods from subject countries was rightly done. There was nothing wrong to initiate anti dumping investigation in existence of dumping and injury. The DA was justified to initiate investigation properly against exports from subject countries considering the de minimus criteria and to initiate separate investigation against exports of South Korea by a subsequent initiation Notification which is not denied by law. 16.10. Proper consideration of injury Parameters having been made while conducting investigation simultaneously against exports from subject countries, under a single initiation Notification; final finding of DA as well as customs Notification cannot be assailed. It was further argued that even if Koran exports are included for calculation of dumping margin and injury analysis that shall not bring any difference to the investigation result as well as recommendations made by the DA. Rather the injury shall be more since export prices of Korea exports were lower than the normal value and appellants case shall be worse. Therefore appeal is liable to be dismissed in limini. Argument of the appellant that exclusion of South Korea from the purview of investigation has made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant since the rate of duty shall not vary nor dumping margin change. So also injury margin remains unaltered. Therefore, the Designated Authority should not be burdened with an academic exercise by remand when it is a proven case of existence of dumping and injury as well as causal link between the dumping and injury. It was also submitted that when non-injurious price (NIP) was determined rightly on the basis of figures of domestic industry, that shall not change in any circumstances or by any means since domestic figure remain unchanged and appellant shall not get any relief. Therefore appeal should be dismissed. 16.15. It was the further argument of the domestic industry that the antidumping duty having been imposed that shall continue to be realised till de novo adjudication order is passed in the event remand is made and the result of de novo order shall also apply from the date of levy of provisional anti dumping duty. Therefore remand is also unwarranted on such ground. Domestic industry relied on the decision in the case of DIT Vs. Puranmall Sons Others - (1175) 4-SCC 568 and in the case of CIT Vs. National Taj Traders - (1980)-1-SCC-370. Learned Counsel for domest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducers of domestic industry producing 100% of the domestic production of subject goods, their locus standi cannot be challenged when dumping and injury was demonstrated by them for their protection by anti dumping levy. Evidence furnished by them being found adequate and their information accurate, trade remedy measure cannot be denied to them. 17.3. It was further submitted on behalf of the DA that following the mandate of Rule 5 of the 1995 Rules, investigation having been initiated and done simultaneously against exports of different countries covered by the Notification dated 07/09/2006, there was no violation of rules of investigation or any prejudice caused to the appellant. 17.4 In November 2006, when total data came from domestic industry for initiation of investigation against exports from South Korea and Russia, Notification dated 12.2.2007 was rightly issued. Appellant was no way prejudiced without appreciating facts and circumstance of each case while dumped goods above de minimus level before Korea reached to that level warranting investigation against its exports. Therefore exclusion of Korean exports from the purview of initiation Notification dated 7.9.2006 wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant parameters of injury being examined as is apparent from Para 66 to Para 102 of the final findings, recommendation for levy was proper. Magnitude of injury margin was found to be substantial as has been recorded in Para 102 of final finding to recommend appropriate dose of duty Therefore, final findings of DA are unassailable. Similarly Customs Notification having based on sound logic and basis is not liable to be set aside. 17.9. Appellants challenge that there was no cumulation of injury parameters is baseless when export from different countries under common notification for initiation was simultaneously investigated. There was transparency at all levels of investigation and exports by appellant proved dumping with substantial dumping margin and injury margin for which it has no right to challenge lawful action of DA. 17.10. DA rightly terminated investigation against Russia under Rule 14 of 1995 Rules. Appellant fails to show any reason to challenge that the termination was unwarranted. Therefore appeal also fails on this count for which both the Notifications are sustainable. FINDINGS AND CONCLUSION OF TRIBUNAL 18. It is experienced that in the multilateral t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of investigation. Accordingly investigation against export from South Korea was postponed on the ground of de-minimis level of export. Records of DA demonstrate these facts. Hon ble High Court of Calcutta in the case of State of Gujarat Fertilisers Chem. Ltd V. Addl. Secy. Designated Authority - 2012 (286) ELT 348 (Cal) held that it is incumbent for the Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the Rule 2(b) of the 1995 Rules in the following terms: 13.Bearing aforesaid legal position it is incumbent for this Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the said Rule. The Supreme Court has explained why the aforesaid rule has been framed by the legislature. In case of Reliance Industries Ltd. v. Designated Authority and Others reported in (2006) 10 SCC 368 = 2006 (202) E.L.T. 23 (S.C.) in paragraph 48 it is clearly mentioned the object of framing this Rule. We cannot do better than to reproduce the paragraph 48 of the said report:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 for initiation of investigation into export from South Korea and Russia against application of domestic industry for that purpose, received in November, 2006. At that time, South Korean exports were above de minimus level. However, DA faced non cooperation of South Korea exporters as result of which it was time consuming to reach the final finding which was ultimately notified against South Korean exports on 9.5.2008 and Customs Notification issued on 10.6.2008. A record relating to investigation into the South Korea exports was examined and nothing found to be discrepant for which action of DA cannot be criticised. 21. We have examined records of DA with respect to investigation into the export of subject goods from subject countries as well as investigation into exports from South Korea and Russia. No departure to the basic rule of investigation was noticed by us from such records. While investigating into exports of South Korea was considered by DA, he also considered export figures and consequence thereof relating to subject countries in the final findings against exports from South Korea. No deviation to law was noticeable. 22. The appellants contention that for no g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... las failure to meet the requirements for a public notice of the initiation of an investigation is inconsistent with Article 12.1.1 of the AD Agreement. (e) Guatemala s failure to timely provide the full text of the application to Mexico and Cruz Azul is inconsistent with Article 6.1.3 of the AD Agreement. (f) Guatemala s failure to grant Mexico access to the file of investigation is inconsistent with Articles 6.1.2 and 6.4 of the AD Agreement. (g) Guatemalas failure to timely make Cementos Progresos 19 December 19965 submission available to Cruz Azul until 8 January 1997 is inconsistent with Article 6.1.2 of the AD Agreement. (h) Guatemalas failure to provide two copies of the file of the investigation as requested by Cruz Azul is inconsistent with Article 6.1.2 of the AD Agreement. (i) Guatemalas extension of the period of investigation requested by Cementos Progreso without providing Cruz Azul with a full opportunity for the defence of its interest is inconsistent with Article 6.2 of the AD Agreement. (j) Guatemalas failure to inform Mexico of the inclusion of non-governmental experts in the verification team is inconsistent with paragraph 2 of Annex I of the AD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r use in final goods manufactured for export thereof without sales of such subject goods domestically. The DA therefore rightly considered their complaint to redress in accordance with law providing them protection of trade remedy measure. That cannot be said to be faulty and for no good reason advanced by appellant. 24. Rule 5 of 1995 Rules has made provision for initiation of anti dumping investigation. Authority complied with the provisions thereof and made investigation validly in law. Plea of the appellant that initiation of investigation was ab-initio void is without any force, in the absence of any cogent evidence led by appellant to set aside the investigation. Evidence led by domestic industry proved dumping and dumping injury as apparent from the records of the DA for initiation of investigation. Evidence also shows that the exports of subject goods from subject country were above de minimus level. 25. It was contended by the appellant that DA did not disclose the fact of deficiency in the application of the applicant. Such contention has no force since records of DA are public records; the entire information was in public domain and the appellant did not bring out de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stance the information the disclosure of which would be significant competitive advantage to a competitor or because its disclosure would have a significant adverse effect upon a person supplying the information or upon a person from whom the person acquires the information, is treated as confidential. The evidence relating to the normal value, export price, costing, profitability, specific adjustment in pricing, etc., are examples of such information, which is usually accepted by the Authority as confidential. Such a confidentiality being in the larger public interest, we do not find any illegality with the said provision. 27. When dumping of subject goods due to export from subject countries was proved from the facts and figures on record of DA, working of dumping margin by him in Para 46 of the final finding remained un-rebutted by appellant. Authority brought out dumping margin percentage in respect of export from different countries considering normal value as well as export price, beginning from Para 23 to Para 45 of his final findings. Difficulties experienced by the DA for non cooperation of the exporters of different countries compelled it to arrive at reasonable basis f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding under respective Notifications. Dumping margin in respect of South Korean exports was calculated in the respective Notification recommending levy of anti dumping duty in respect of its exports taking normal value of subject goods in South Korea and export price of the subject goods from that country. The DA also compared all essential elements of levy in the South Korea Notification taking the figures of the final findings relating to subject countries. 30. Injury margin was calculated by DA taking Non Injurious Price (NIP) into consideration and landed value of the exports. That shall not change either by exclusion or inclusion of any country with exports from other countries for the reason that calculation of NIP is based only on domestic industry figures. Appellant failed to demonstrate truth of its plea that exclusion of South Korean Exports made the injury analysis faulty. Therefore its appeal on this count also fails. Domestic industry, DA and Ministry of Finance was right to argue that even by inclusion of exports from South Korea with the exports of subject countries no relief could be granted to the appellant. 31. The appellant contended that SI group imported Ph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hy producer of domestic industry, since trade remedy measure is meant for the domestic industry as a whole. The advance license enjoyed by SI group not being to import of subject goods for domestic sale the appellant shall not succeed in his plea to deprive that producer from the purview of domestic industry to get trade remedy measure. 34. We have set out material facts noticed from the final findings of D.A. at the very outset to appreciate the factual background of investigation, the basis of investigation as well as necessity for issuance of Customs Notification. None of the findings of the DA appears to be without evidence or legal basis. Therefore, it is not possible to impeach the findings in absence of cogent evidence to the contrary brought to our notice by the appellant. 35. It has been held by the Hon ble High Court of Madras in the case of Nirma Ltd. (supra) that antidumping law is an economic legislation rather than a fiscal law. It must be construed with intention of developing domestic industry. Fiscal law is construed strictly and economic legislation is construed with intention of developing domestic industry. So also it was held that Rule 2(b) had been consist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring to the exports of South Korea. Therefore, appellants plea of inclusion of South Korean export was warranted in the investigation of exports from the subject countries has no legs to stand. 39. It was also argued that for exclusion of South Korean export there was failure in cumulation of injury effect since there was no simultaneous investigation. It may be stated that Article 3 of Anti-dumping agreement makes it clear that investigating authority must address certain factors in conducting injury analysis. Such a provision is given due weightage in 1995 Rules (Annexure -II). Injury compasses the concept of material injury to a domestic industry; threat of material injury to a domestic industry or material retardation of the establishment of a domestic industry. The material injury is determined on the basis of positive evidence and involves an objective examination of specific factors prescribed by 1995 Rules. The DA has examined all the factors prescribed by law in respect of subject goods exported from subject countries as well as from South Korea and notified in two different Notifications. 40. Appellant also contended that there was no simultaneous investigation. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evel. But exports from South Korea were below the de minimus level. That made the basis unequal, calling for separate treatment by a separate Notification and investigation. That was rightly done by DA following the basic principle that equals are equally treated. Therefore, the term simultaneous investigation is to be read in the context of language employed in 1995 Rules specifying that import of product from more than one country, if subjected to investigation under a Notification, in that circumstance simultaneous investigation is done in respect of exports of such countries and cumulative assessment of the effect of imports from such country is mandated. Therefore, the appellants fail to establish that there was no simultaneous investigation done. The appellant also fails in its contention that there was no cumulative assessment done. The DA acted within the framework of the law for which none of its finding can be disturbed. So also the Customs Notification is not liable to be set aside since that is based on reasons and findings of DA as well as evidence. Accordingly, appeal fails and is dismissed on all counts. (Pronounced in the Open Court on 10.12.2013) - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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