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2016 (9) TMI 1166 - CESTAT NEW DELHI

2016 (9) TMI 1166 - CESTAT NEW DELHI - TMI - Enhancement of Anti Dumping Duty - rubber chemicals known as PX13 (6 PPD) - Mid Term Review - Notification No. 92/2011-Cus. dated 20.09.2011 - imports of subject goods from PR China and Korea RP - Rule 23 of Anti Dumping Rules indicate the powers of the DA to review the need for continued imposition of any AD duty on its own initiative or upon request by any interested party - Held that: - the decision in the case Rishiroop Polymers Pvt. Ltd. vs. Desi .....

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onomic parameters relating to domestic industry before reaching the conclusion. - The injury to the domestic industry is likely to recur in case the present AD duties are not modified. The definitive AD duty has been revised based on such recommendation by the DA - the imposition of AD duty per-se cannot be challenged. - Appeal dismissed - decided against appellant. - Anti Dumping Appeal Nos. 3, 4 and 14 of 2012 - Final Order Nos. 53159-53161/2016 - Dated:- 23-8-2016 - Justice (Dr.) S .....

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eral of Anti Dumping and Allied Duties, Ministry of Commerce and Industry are challenged in these three appeals by the appellants. M/s Kumho Petrochemical Co. Limited, Korea are manufacturers and exporters of rubber chemicals known as PX13 (6 PPD) falling under chapter 29 and 38 of the Customs Tariff Act (subject goods), M/s Rishiroop Polymers Pvt. Limited legal representatives in India of the said Korean company in India and M/s National Organic Chemical Industries Limited (NOCIL), Mumbai repre .....

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nd for Determination of Injury) Rules, 1995 gave his findings which resulted in provisional AD duty for imports of subject goods from PR China and Korea RP vide Customs Notification No. 61/2008 Cus. dated 05.05.2008. The Final Finding was notified on 01.10.2008 and definitive AD duty on the subject goods were notified vide Notification No. 133/2008-Cus. dated 12.12.2008. The DA received an application from NOCIL pleading for the need of a Mid Term Review of the AD duty on the subject goods origi .....

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ent of AD duty consequent upon Mid Term Review by the DA. His submission may be summarised as below: (i) DA has no jurisdiction to revise the AD duty before its expiry. Section 9A(5) provides for period for which such duty can be imposed. The proviso to the said section grants powers to the Central Government to review for extension of such duty and DA has no power. (ii) The AD duty imposed on a definite finding cannot be increased in a review. (iii) Rule 23 of the AD Rules only refers to contin .....

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. The domestic sales of the subject goods have increased as well as the profit margin and cash flow has also improved over the injury period with reference to domestic industry. (vi) The determination of DA on price under cutting/ price under selling has no consequence. The investigation and analyses in Mid Term Review is different from that of sun-set review. In sun-set review likelihood of recurrence of injury is examined for extension of AD duty for further period. The DA has erred in enhanci .....

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No. 54808 - 54810/2014 dated 26.12.2012 of the Tribunal. The Tribunal remanded the matter to the DA to re-determine the export price, normal value and the dumping margin with reference to the subject goods which has been complied with by the DA. The Mid Term Review now the subject matter of the present appeals has resulted in the increase in AD duty on the subject goods. This Mid Term Review has been initiated on the application of NOCIL. Ld. Advocate submitted that as of now they have no points .....

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nts No. 1 and 2 that the DA has no such power is devoid of any merit. Rule 23 empowers the DA to conduct such review. Regarding the correctness of the finding of DA on the raw material cost and export price, it is submitted that the DA has followed the correct procedure by comparing the raw material cost of international by accepted price. The data relating to domestic industry during the relevant period has been examined and it has been recorded by the DA in his finding. The fact that the domes .....

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need for continued imposition of any AD duty on its own initiative or upon request by any interested party. In the present case, M/s NOCIL has approached the DA with information to substantiate the need for Mid Term Review and for appropriate action by DA in terms of the above said Rules. We have perused the findings of DA. He has exercised the powers under Rule 23 and followed the procedure as stipulated which are substantially as applicable to the initial investigation as mentioned in Rule 23 .....

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lue resulting in injury to the domestic industry. To achieve this object, the Central Government has been authorised to impose anti-dumping duty not exceeding the margin of dumping. If it is proved that anti-dumping duty has been imposed in excess of margin of dumping, the importer is entitled to refund under Section 9AA. The Rules provide for manner in which the effect of dumping and margin of dumping are determined. Designated Authority is to be appointed by Central Government not below the ra .....

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the injury and also to review the need for continuance of anti-dumping duty from time to time. Order of determination or review is appealable under Section 9C. The Rules have stood the test of time. The petitioner never felt aggrieved by the levy of anti-dumping duty and no appeal is stated to have been filed. Moreover, dumping margin in exports from different countries could be different. There is, thus, nothing in the rules which may go against the mandate of the statute. Conferment of such p .....

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g satisfied that a review can be called for the need for continued imposition, mid term review of enhancing Anti-dumping duty can be initiated. In this case, it is seen that the final findings were issued in the initial investigation on 19.3.2007 and mid term review was sought in February, 2008 which was more or less within a year after the imposition of Anti-dumping duty. In the absence of any specific time period indicated in Rule 23 of the anti-dumping rules, the mid term review in the case i .....

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y the DA. 9. Considering the methodology adopted by the DA in arriving at the recommendations for modifying the imposition of AD duty consequent upon such Mid Term Review. We find that the procedure envisaged has been followed by the DA. The DA has considered volume effect of dumped margin, price effect, price under selling, price suppression and depression and other economic parameters relating to domestic industry before reaching the conclusion. We have perused the said analyses and found no m .....

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