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TMI Blog2015 (3) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... hough anti-dumping duty continued in respect of imports of subject goods from china PR. 2. In the Final Findings dated March 25, 2011 the Authority has held that the total imports from Sweden during the period of investigation were barely 81MT, which can not be treated as a representative volume of import for determination of individual dumping margin. On the issue of likelihood of recurrence of dumping or injury, in the event of revocation of duties, the Authority in para 58 of the final findings held as under: "58. The Authority has taken note of the information on record. It is noted that the margins of both dumping and injury are negative so far as imports from Sweden are concerned besides low volume of imports from Sweden considering total demand in Indian market. No evidence have been placed on record by any interested party that in the event of discontinuation of antidumping duties on imports of subject goods from Sweden, the injury to the domestic industry is likely to recur. It can therefore be concluded that in the event the duty is revoked, there is no likelihood of continuation or recurrence of injury from Sweden." The Authority thus concluded that there is no likeli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s etc. which have been taken into account in the analysis below Arguments of the Designated Authority 5. The counsel for the Designated Authority argued that since the appellant had not filed the comments to the Disclosure Statement, it was estopped from raising any grounds before this Hon ble Tribunal. The Authority was fully justified in discontinuing the duties, as interested parties had not provided adequate information on the relevant parameters. He supported the reasoning given in the Final Findings of the Authority. He submitted that the Findings were based on the material available before the Authority and that the appeal was without merit. Arguments of Revenue 6. The learned Authorised Representative invited attention to various paragraphs of the Final Findings, and added that the appellant had not filed comments on the Disclosure Statement. He submitted that the Authority had passed a reasoned order, setting out clearly the grounds for the discontinuance of the duty, which did not warrant any interference. Analysis 7. In a sunset review, Section 9A (5) of the Customs Tariff Act, 1975 requires the examination of the likelihood of continuation or recurrence of dumping ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cations, including in Sweden and Germany. It is argued by the appellants that after imposition of duties on Sweden, the exports of Perstorp to India from Sweden reduced to insignificant levels, whereas there was a substantial increase in the exports from Germany, for which a second investigation was initiated by the Authority. Perstorp has co-operated which the Authority, in so far its exports from Germany are concerned, but has chosen to not provide information relating to its operations in Sweden, in the review proceedings. It is contended by the appellant that (i) Perstorp was earlier dumping from Sweden, and once the duties were imposed on Sweden, it started dumping its goods into India from Germany and that this being a sunset review, the Authority was required to look into the likelihood or recurrence of dumping and injury, based on the pattern of exports of the foreign exporter, (ii) The fact that Perstorp was earlier dumping from Sweden, and shifted to exporting substantial quantities from Germany at dumped prices, indicates that in the event of revocation of duties from Sweden, Perstorp is likely to resume dumping from Sweden, so argued the appellant. The Authority has du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in the case of Rishiroop Polymers, 2006 (196) ELT (SC) has held as under: "35. Otherwise also, we are of the opinion that scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is not longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domestic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer. 36. It is of vital importance to note that in the initial imposition of duty, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Authority in suo motu review or by the applicant seeking review. " Although the above observations are in the context of a midterm review, the Delhi High Court in the case of Indian Metal and Ferro Alloys Ltd. Vs DA - 2008(224) ELT 375 (Del), has clearly held that this ratio is equally applicable to Sunset reviews as is evident from the following paragraphs quoted from the said judgment. "A sunset review: 20. The concept of a sunset review has been recognized by the Supreme Court. In Rishiroop Polymers (p) Ltd. V. Designated Authority and Others, [2006 (196) E.L.T. 385 (S.C.) =(2006) 4 SCC 303] the Supreme Court considered the scope of Section 9A (5) of the Act and observed as follows: "Under Section 9-A (5), the said initial imposition of anti-dumping duty is ordinarily contemplated to be continued and remain in effect for a full period of five years, at the end of which it would be subject to Sunset Review, the possible consequence of which would be the extension of the operation of the period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof re-quoted below) notes as under:- "23. As regards Sweden, it has been submitted that the sole producer of Pentaerythritol in Sweden has a facility for production of the product under consideration in Germany. It is noted that the company is already exporting significant volumes from Germany. In view of prima-facie evidence of imports from Europe (excluding Sweden) causing injury to the domestic industry, the Authority has already initiated investigations in respect of imports from Europe (excluding Sweden). 24. The Authority has considered the submissions as above. As regards the submission of domestic industry that Swedish producer, Perstrop is having capacity of 27,000 MT per annum. However, no evidence in support has been placed before the Authority substantiating dumping evidence of subject goods from Sweden. As already detailed above, the total imports from Sweden during POI, as reported in IBIS data source is barely, 81 MT, which cannot be treated as a representative volume of imports for determination and reliance on the individual DM. In absence of any information/ cooperation by the Swedish exporters, the data provided in the World Trade Atlas was also analyzed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners Guide to Sunset Reviews in Australia, Canada, EU and the U.S. by Tereace P. Stewart and Amy Dwyer), in the present case, even these factors, in our view, are far from weighing enough to alter the DA s findings/ conclusion. It needs to be noted again that the appellant had not filed any written submission to the Disclosure Statement and the DA s findings/ conclusion were based on the material available to him. As has been reiterated in the recent judgment of the Delhi High Court in the case of M.P. Goenka Vs. CC (Preventive) [2015-TIOL-282-HC-Del-Cus], it is not the task of the court exercising appellate power to review or second guess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis-appreciation of law or non-application of mind. 10. It was attempted to be stated that there is contradiction in the contents of para 24 of the Disclosure Statement wherein it was inter- alia stated that in the event of withdrawal of duty possibility of diversion of cheaper exports to India can not be ruled out an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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