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2015 (3) TMI 992 - CESTAT NEW DELHI (LB)

2015 (3) TMI 992 - CESTAT NEW DELHI (LB) - 2015 (324) E.L.T. 154 (Tri. - Del.) - Withdrawal of Levy of anti dumping duty on imports of Pentaerythritol, originating in or exported from Sweden to India - whereas levy was continued for import from china - It is contended that the authority was incorrect in drawing an inference of no likelihood of injury, based on the fact that there were negligible imports from Sweden - Held that:- After the imposition of duties on Sweden, there has been almost a c .....

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ority also notes that the exports from Sweden to other countries are also negligible, and therefore, cessation of exports to India is not indicative of likelihood of dumping and injury if antidumping duty was removed. Indeed, in such a situation, it can not be said, notwithstanding the contention of the appellant, that exports to India dropped to negligible level due to anti-dumping duty when exports from Sweden to other countries too were negligible.

The existence of possibility does .....

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horities 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-appreciation of mind. - No sufficient merit/ basis to warrant any appellate intervention vis-`-vis the DA s findings/ conclusion and the consequent discontinuation of antidumping duty in respect of imports of subject goods from Sweden - Decided against assessee. - Appeal No. AD/23/2011-CU[DB] - Final Order No. AD/A/50526/2015-CU(DB) - .....

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Kanoria chemicals Ltd.), under Section 9C of the Customs Tariff Act, 1975 against the sunset review notification No. 47/2011-Cus dated 14.06.2011 of the Central Government read with Final Findings dated March 25, 2011 of the Designated Authority, in terms of which anti-dumping duty was discontinued in respect of imports of subject goods from Sweden, though anti-dumping duty continued in respect of imports of subject goods from china PR. 2. In the Final Findings dated March 25, 2011 the Authorit .....

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ive 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 .....

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tidumping duty in force and gave no indication of the scenario which may emerge, were the duties to be revoked. The Authority also failed to consider the material fact that Perstorp, the sole producer of subject goods in Sweden, had another plant in Germany, from where it was exporting large volumes to India at dumped prices, for which antidumping investigations had already been initiated based on a prima facie satisfaction of the Authority. On the revocation of duties in respect of Sweden and l .....

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s into India of subject goods from all sources, about 99% is of technical grade and 1% is nitration grade. The Authority has found a positive dumping margin for technical grade as reflected in paragraph 19 of the Findings. This indicates that were the imports to resume in future, they would be predominantly of technical grade, for which dumping continues in spite of antidumping duties being in force. In these circumstances, likelihood of recurrence of dumping and injury can not be ruled out. The .....

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sis 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 Fin .....

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t review, Section 9A (5) of the Customs Tariff Act, 1975 requires the examination of the likelihood of continuation or recurrence of dumping and injury in the event of revocation of the duties. The relevant provision in the WTO Agreement on Anti-Dumping is Article 11.3, which reads as under: 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive antidumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent rev .....

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eview. In the Report USA Anti-dumping Duty on DRAMS, the WTO Panel has interpreted Article 11.3 of the Agreement as under: We note that, with regard to dumping, the sunset provision in Article 11.3 of the AD Agreement envisages inter alia an examination of whether the expiry of an anti-dumping duty would be likely to lead to continuation or recurrence of dumping. If, as argued by Korea, an anti-dumping duty must be revoked as soon as present dumping is found to have ceased, the possibility (expl .....

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force. Korea s interpretation therefore renders part of Article 11.3 ineffective. As stated by the Appellate Body in Gasoline, [a]n interpreter is not free to adopt a reading that would result in reducing whole clauses or paragraphs of a treaty to redundancy or inutility . An interpretation of Article 11.2 which renders part of Article 11.3 meaningless is contrary to the customary or general rules of treaty interpretation, and thus should be rejected. In the present case, Perstorp is a producer, .....

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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 shi .....

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The World Trade Atlas compiles data based on calendar year. It was seen that export volumes from EU to world increased 9 times (from ***MT to ***MT), for the calendar year 2009 over 2008. During the same period the export to India increased from nil to *** MT. The data shows highest quantity of exports to India at **% of the total export in the POI. This shows the potential of diversion of material to India, in case of withdrawal of duty. In the event for withdrawal of duty, the possibility of .....

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ty with Chinese producers is mentioned to be 150000 tons in para 22 of the Disclosure Statement. 8. After the imposition of duties on Sweden, there has been almost a cessation of exports from Sweden. It has been argued that the exporter needs to dump to sell substantial volumes in India. Attention was invited to the international practice, where the decline in import volumes or cessation of exports after the imposition of duties is considered to be highly probative of the likelihood of continuat .....

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ndia dropped to negligible level due to anti-dumping duty when exports from Sweden to other countries too were negligible. The 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 .....

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meters. 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 appellant has accepted the position that determination of injury by the Designated Authority was proper and in conformity with the requirements of Annexure-II of the Anti-Dumping Rule .....

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der Section 9A (1), 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 Authority is empow .....

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t is, therefore, clear that unless the Designated Authority suo-motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field. 37. The final findings recorded by the Designated Author .....

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ually 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 c .....

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scheme of the abovementioned provisions of the statute, once anti-dumping duty has been initially imposed it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed. It is therefore, clear that unless the Designated Authority suo motu or the applicant f .....

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d States & Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5 decided on 28th November, 2003) in which India was the Third Participant. The question in that appeal related to a complaint by Japan against the United States regarding the continuation of anti-dumping duties on certain corrosion-resistant carbon steel flat products from Japan following the conduct of a five-year, or sunset , review of those duties. This is being mentioned .....

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unset reviews, by the Tribunal in case of Kumho Petrochemicals Company Limited vs. DA [2011 (280) ELT 720]; and Thai Acrylic Fiber Company Limited vs. DA [2010 (253) ELT 564 (T)]. 9. The D.A after his analysis, in respect of Sweden (in paras 23, 24 of the Final Findings quoted below and Para 58 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 .....

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ever, 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 to exami .....

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China PR, the Authority notes that existing volumes of exports to India is substantial. Further, considering freely disposable capacities available in China PR and Indian demand, the surge in dumped imports from China cannot be ruled out. This fact is apart from the establishment of continued dumping from China PR is likely to lead to recurrence of dumping. Likelihood of Continuation/ recurrence of injury. 58. The Authority has taken note of the information on record. It is noted that the margin .....

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f recurrence of injury from Sweden. It is evident that there was significant change in the situation vis-vis the situation obtaining at the time of imposition of A.D. duty. The exports from Sweden came down to negligible levels. Also, there can scarcely be any reasonable basis to infer that this drastic reduction in imports from Sweden to India was necessarily a consequence of anti-dumping duty, because, as noted by the D.A. the exports from Sweden to other countries were also negligible. Thus i .....

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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 appel .....

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