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2015 (12) TMI 243 - CESTAT NEW DELHI (LB)

2015 (12) TMI 243 - CESTAT NEW DELHI (LB) - 2016 (334) E.L.T. 552 (Tri. - Del.) - Levy of anti dumping duty - Interested party - right to participate in the proceedings - Held that:- Unless a party demonstrates to the Authority that it is an importer / exporter of the subject article, it does not acquire the right to participate in the proceedings as an interested party. In respect of exporters, who have not filed the response to the Exporter Questionnaire, the Authority has considered them to b .....

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treated as an interested party. - Authority has extensively and analytically dealt with the issue and has correctly held that the imported product is in commercial competition with the domestic product and its import would cause injury to the Domestic Industry. - Appellant came to know of the investigations and filed written submissions, which have been dealt with on merits in the Final Findings. On the contention relating to improper maintenance of Public File, while ld. Counsel for De .....

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ppellant’s contention relating to excessive confidentiality, we find that no such grievance was raised before the Authority during the course of investigations. Even otherwise, the appellant has not been able to bring out the specific information which was not provided to it and how that had the effect of disabling him in exercising its right of defence. - Exclusion of the imports from Robin Resources would not have any impact on the economic factors and indices mentioned in Para (iv) above. .....

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was based on a claim made by Domestic Industry. That claim was not controverted with evidence at any stage nor was there any ground/reason to suspect any manipulation on the part of Domestic Industry in that regard. - No merit in appeal - Decided against appellant. - Application No.AD/MISC/758/2010-CU[DB], Application No.AD/STAY/1185/2010-CU[DB] in Appeal No.AD/7/2010-CU[DB] - Final Order No.53541/2015 - Dated:- 27-11-2015 - Justice G. Raghuram, President, Mr. R.K. Singh, Member (Technical) And .....

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ina PR, Malaysia, New Zealand, Thailand and Sri Lanka. Arguments on behalf of Appellant 2. The appellant has essentially contended as under:- (i) The Authority forwarded a copy of the notice of initiation only to the parties mentioned in the petition filed by Domestic Industry. By not forwarding the copy of the notice to the other interested parties including the appellant, the Designated Authority acted contrary to Rule 6(2) of the Customs Tariff (Identification, Assessment and Collection of An .....

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petition. Even otherwise, M/s. Shirdi Industries Ltd., being an importer was not eligible to form part of Domestic Industry, in terms of Rule 2(b) of the Rules. In this context, reliance was placed on the letter dated 19.09.2008, wherein details of imports made by M/s. Shirdi Industries Ltd. were given. (iii) The product made by Domestic Industry is not comparable to the imported article in terms of size, level of emissions, thickness and applications. MDF of smaller sizes are made in India and .....

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he cases of Andhra Petrochemicals Ltd. Vs. Designated Authority [2006 (201) ELT 481 (T)], Indian Refractory Makers Association Vs. Designated Authority [2000 (119) ELT 319 (T)], Magnet Users Association Vs. Designated Authority [2003 (157) ELT 150 (T)] and Videocon Narmada Glass Vs. Designated Authority [2003 (151) ELT 80 (T)]. (iv) Import data considered by the Authority was not appropriate as it included imports of products, other than MDF, of heading 44.11. It was also submitted that even aft .....

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as also not issued to the appellant. (vi) On a comparison of the duty table, with the dumping margin given in the Final Findings, it was contended that the duty imposed was in excess of the margins determined in the Findings. It was also contended that the duties for the non-cooperating exporters should be based on a best judgement assessment, as provided for in Rule 6(i) of the Rules. Reliance was placed on the decision in the cases of Addiseo France S.A.S. Vs. Designated Authority [2003 (155) .....

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om Robin Resources have been taken into account for purposes of injury determination which is contrary to the WTO Panel Report in the case EC Salmon, wherein it has been held that the investigations are to be terminated qua the exporter whose exports are found to be de mininus. (ix) The Non-Injurious Price has been determined considering 22% return on capital employed without justification. Reference was made to decisions in the cases of Bridgestone Tyre Manufacturing (Thailand) Vs. Designated A .....

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icipation in the investigations is confined to the interested parties and the appellant was not entitled to the disclosure statement. (ii) In terms of Rule 5 of the Rules, the adequacy and accuracy of the evidence provided in the application is to be seen with reference to dumping, injury and causal link. The initiation cannot be termed bad merely because the list of known importers given in the petition does not cover each and every importer. The Authority has made all reasonable efforts to com .....

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the decision in the case of Automotive Tyre Manufacturers Association Vs. Designated Authority [2011 (270) ELT 727 (T)] and Union of India Vs. Ganesh Das Bhojraj [2000 (116) ELT 431 (SC)]. (iii) M/s. Shirdi Industries Ltd. has imported a very small quantity of 43.056 CBM. The import invoice as well as the Bill of Lading were issued prior to the period of investigation. These imports were not mentioned in the petition due to oversight as the goods were shipped before the period of investigation. .....

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description of the product and not by chapter heading alone. The petition, therefore, gives details of imports of subject goods only. (vi) The Domestic Industry further submitted that they can make E0 emission MDF by using a different raw-material mix MDI Binder instead of formaldehyde. It was also submitted that MDF panels of higher sizes beyond 8 X 4 are also produced in India, which has been verified by the Authority. There is no material on record to substantiate the claim that the indigenou .....

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actors listed in the Rules, which may be causing injury to the Domestic Industry. Factors, other than the listed ones, are required to be considered only when the parties have pleaded existence of such other factors and substantiated their claims with evidence. The appellant has not brought any other factor to the notice of the Designated Authority in the course of the investigations. (viii) There is no challenge by the exporters to the dumping margin nor have they contended that the duties levi .....

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challenge the dumping margin determined for the exporters (participating/ non-participating) as has been held by CESTAT in AIIGMA Vs. Designated Authority [2000 (19) ELT 333 (T)] and Automotive Tyre Manufacturers Association Vs. Designated Authority (supra). (xi) The Domestic Industry, in its petition had claimed 22% return on investment as a reasonable return for purposes of computation of Non-Injurious Price. None of the parties objected to this claim. This was also consistent with the practi .....

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iled in the course of investigations. Ld. Departmental Representative pointed out that the second letter filed by the appellant was disrespectful to the Authority and indicated that the claims of the appellant were not bona fide. On the argument that adequate disclosures were not made, it was submitted that no such grievance was made before the Designated Authority with regard to either confidentiality or maintenance of Public File. Analysis and Findings 5. Before dealing with the merits of the .....

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under:- Interested Party includes- (i) An exporter or a foreign producer or the importer of an article subject to investigation for being dumped in India or a trade or business association a majority of which are producers, exporters or importers of such an article- (ii) x x x x x (iii) x x x x x 6. The words, article subject to investigation means the allegedly dumped article, that is, the article imported from subject countries during the period for which investigations are being carried out. .....

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formation as required in the importer questionnaire in the course of the investigations. Failure to do so would be fatal to its claim as an interested party. The appellant did not file any information before the Authority to demonstrate that it was an importer of the article under investigation and hence could not be treated as an interested party. 7. We find that the appellant filed only two letters dated 19.09.2008 and 28.02.2009 before the Designated Authority. The main thrust of its argument .....

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sion of certain types/grades of the product from the investigation is permissible where the imported product is not in commercial competition with the indigenous product and its import, therefore, would not cause any injury to the Domestic Industry. In the case of Kajaria Ceramics Vs. Designated Authority (supra), it has been held as under:- 6.6 Under the scheme of the imposition of Anti-Dumping Duty, the Designated Authority is required to determine whether the dumped products caused injury to .....

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of vitrified / porcelain tiles would be an efficient substitute for the vitrified / porcelain tiles manufactured by the D.I.A. consumer would readily compromise on the size/patter of tiles as long as it satisfies his need for vitrified / porcelain tiles. The products imported by the appellant would technically substitute the D.I. s product of vitrified / porcelain tiles and commercially also the product imported would substitute the D.I.s products. When there is a variety of grades available in .....

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ically and commercially the dumped imports of different sizes may substitute the vitrified/ porcelain tiles manufactured by D.I., even though the D.I. may not manufacture the particular size of tile which is dumped. In the case of In the case of DSM Idemitsu Vs. Designated Authority (supra), CESTAT held as under:- Learned counsel, appearing for the appellants, submitted that article manufactured by the domestic manufacturer is different from the article exported into India relying upon the infor .....

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ent from the goods exported into India. He failed to substantiate that they are not similar and interchangeable except stating that they were different grades. Difference in quality will not make an article as different and Designated Authority was right in observing that the fact that qualities may be different, does not imply that the imported products and the domestic are not like articles. We do not find any valid reason to disturb the findings given by the Designated Authority on this issu .....

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characteristics closely resembling those of the articles under investigation; (i) Evidently, there are two parts to the above definition - (a) article which is alike or identical in all respects to the imported article; and (b) article which although not like has characteristics closely resembling to the imported article. In other words, the rules itself clearly envisage the situation where an identical article is not produced in India. In a situation where identical article is not produced in .....

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like article to the imported product. (i) product specifications, which includes physical & chemical characteristics, (ii) manufacturing process & technology, (iii) raw materials (iv) functions & uses, (v) pricing, (vi) distribution & marketing and (vii) tariff classification of the goods. (f) On the basis of above mentioned criteria, the Authority is required to come to a conclusion whether the two are technically and commercially substitutable. The Authority has consistently co .....

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supplied by the Domestic Industry is comparable in terms of essential product characteristics to the various other types of MDF imported in India. The claim made by various interested parties seeking exclusion of MDF manufactured from tropical hardwood is not sustainable as the end product in either case is MDF and is a like article to the one produced and marketed by the Domestic Industry. The imported Plain MDF Board can be substituted by the one manufactured by the Domestic Industry and has .....

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r quality product. The investigations have in fact shown that thin MDF below 6MM cannot be produced on day light presses. Further, the length of the Board can be controlled on continuous process, whereas the same is fixed in case of Day Light Press. The Domestic Industry itself, therefore, agreed that Medium Density Fibre below 6MM could be excluded from the purview of proposed duties and the same was done in the preliminary finding. (iii) Raw-material: The responding exporters as well as other .....

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erences in values of some of the product properties does not mean that the two products are dislike articles. It only means that the two are not identical articles. However, as noted before, merely because an identical article has not been offered by the Domestic Industry does not mean that the goods produced by them are not like article to the imported article. (iv) Functions & uses: All MDF have application in building and construction, furniture, industrial, handicrafts purpose etc. While .....

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. (g) Having regard to the above criteria normally applied for deciding whether the Domestic Industry produces and supplies like article to the imported product and considering the elaborate submissions made by various interested parties, the Authority compared the product catalogues of number of exporters/producers and the Domestic Industry. (h) It is noted that the specifications under various standards and product specifications of the various foreign producers and Indian Producers also speci .....

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nor has any interested party claimed differences between the imported and domestic product on the basis of dimensional stability. (j) The interested parties have argued that the domestic product is not a like article to the imported product in terms of difference in emission standards. In particular, it has been claimed that MDF with E0, E1 emission standards is not produced and supplied in India. Domestic Industry rebutted by stating that MDF with different emission standards is produced by us .....

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f a more expensive resin thus leading to higher cost and resultant price of MDF. (k) Based on the above, the Authority considered the claims of interested parties for exclusion of some types of MDF. (i) MDF below 6 MM - The Authority considered whether Domestic Industry produce and supply MDF below 6 MM or some other product which could be considered as like article to MDF below 6 MM thickness imported in India. The Investigations have shown that different technology and plant & equipment is .....

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rcially not substitutable to MDF 6 MM thickness and above. On the basis of this conclusion, it was considered appropriate to exclude MDF below 6MM thickness in the Preliminary Findings. After careful consideration of the submissions made by various interested parties, the preliminary conclusion in this regard are confirmed in the Final Findings. (ii) Low formaldehyde emission MDF -Domestic Industry has argued that technically, low emission standard can be achieved by use of appropriate resin and .....

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, according to Domestic Industry, the dumping would switch to such low emission MDF. It is not the argument of any interested parties that the consumers of Indian MDF cannot switch over to imported low emission MDF, if such imported product be cheaper than domestic product. In any case, there is significant overlap between the two types and even though there may not be complete interchange-ability, it is undisputed that the product involved is interchangeable. (iii) Large Size Panels: The respon .....

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t countries. The Domestic Industry has stated that if large size panels are kept out of the purview of the investigations, the dumped imports shall occur and cause injury to the Domestic Industry as higher sizes can be brought into the country and can be cut into lower sizes and this amounts to substitutability. The Authority holds that the large size panels constitute the product under consideration. The decisions relied upon by the appellant, as analysed below, do not come to its rescue. In th .....

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Users Association Vs. Designated Authority (supra) was allowed, as the imported product admittedly did not offer any competition to the indigenous product. The decision in the case of Videocon Narmada Glass Vs. Designated Authority (supra) was decided based on a concession given by Domestic Industry that it was not being injured by import of strontium in granular form. In view of the above, we hold that the Authority has extensively and analytically dealt with the issue and has correctly held th .....

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ere no imports by M/s. Shirdi Industries Ltd. after the start of commercial production by it. The appellant has been unable to show that the details given along with its letters related to subject goods. In any case, we find that the Authority verified the claim of M/s. Shirdi Industries Ltd. with reference to the DGCIS import data as is evident from paragraphs 16, 17 and 20 (E19) of the Findings. An extract of the findings is reproduced below:- E.19Imports by Petitioner: (i) A number of parties .....

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clude M/s. Shirdi Industries Ltd. from the scope of Domestic Industry. As regards mis-declaration before initiation, the Authority has noted that the facts on record and circumstances of the present case have not shown a situation that the petitioner deliberately & consciously resorted to mis-declaration, particularly when the volume of imports has been so low and petitioner was 26 likely to succeed in its claim for consideration as eligible Domestic Industry in view of the discretion given .....

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e Authority had not sent the notice of initiation to all interested parties including the appellant. We do not consider this contention to be of any consequence since admittedly the appellant came to know of the investigations and filed written submissions, which have been dealt with on merits in the Final Findings. On the contention relating to improper maintenance of Public File, while ld. Counsel for Designated Authority stated that there was no deficiency in the maintenance of Public File, w .....

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was raised before the Authority during the course of investigations. Even otherwise, the appellant has not been able to bring out the specific information which was not provided to it and how that had the effect of disabling him in exercising its right of defence. 11. In so far as the appellant s contention that the duty imposed is in excess of the dumping margin, it is pertinent to state that the details of normal value, export price and dumping margin are disclosed only to the concerned expor .....

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e a fair estimate of the normal value of the remaining unknown / non-cooperating exporters / producers is not unreasonable, irrational or arbitrary from any possible angle. 12. The appellant has argued that the exports made by Robin Resources are liable to be excluded from the injury analysis as a negligible dumping margin has been found for this exporter. The appellant is unable to demonstrate what impact the exclusion of such imports would have on the injury analysis. Further exclusion of expo .....

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f imports and not for an individual exporter. An extract of the relevant portion of Annexure-II to the Rules are given below for ready reference:- (iii) In cases where imports of a product from more than one country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when it determines that (a) the margin of dumping established in relation to the imports from each country is more than two per cent ex .....

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pact of the dumped imports on the Domestic Industry concerned, shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including natural and potential decline in sales, profits, output, market share, productivity, return on investments or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, abili .....

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of the appellant. 14. As regards the return on investment adopted for the determination of NIP, we find that apart from being consistent with the practice followed by the Authority, it was based on a claim made by Domestic Industry. That claim was not controverted with evidence at any stage nor was there any ground/reason to suspect any manipulation on the part of Domestic Industry in that regard. In the case of Alkali Manufacturers Association of India Vs. Designated Authority (supra), CESTAT .....

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