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2016 (10) TMI 470 - CESTAT NEW DELHI

2016 (10) TMI 470 - CESTAT NEW DELHI - 2016 (342) E.L.T. 582 (Tri. - Del.) - Quantification of ADD - carbon black used in rubber applications - import from China PR, Russia and Thailand - sunset review - Customs Notification No. 54/2015 - CUS (ADD) dated 18/11/15 - whether the DA should have arrived NIP on actual cost data submitted by DI instead of constructed costing based on best utilization of raw material/utilities by the DI? - was the best utilization principle to fix price correct? - Held .....

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ction capacities are to be considered. The reason is mentioned in the said principles. This is to nullify injury, if any, caused to DI due to inefficiency. It is not necessary for the DA to specifically identify such inefficiencies while constructing cost in normal situation, and the cost construction has to be followed in terms of the principles laid down under para 4 of Annexure III. Wherever there is identified 'other causes' which are causing injury to the DI, apart from dumping of subject g .....

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es laid down in Annexure III - no reason to interfere with the findings of the DA - appeal dismissed - quantification justified - decided against appellant. - Anti Dumping Appeal No. 50208 of 2016 with Misc. Application No. 51481 of 2016 - Final Order No. 53485/2016 - Dated:- 12-9-2016 - Shri Justice Dr. Satish Chandra, President Shri S.K. Mohanty, Member (Judicial) and Shri B. Ravichandran, Member (Technical) Ms. Reena Asthana Khair, Shri Rajesh Sharma and Ms. Rita Jha, Advocates - for the appe .....

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Authority (DA), Directorate General of Anti Dumping and Allied Duties, Ministry of Commerce and Industry on 26/12/2008. Based on preliminary finding provisional AD duty was imposed vide Customs Notification dated 30/07/2009. Based on final finding dated 24/12/2009, a definitive anti dumping duty was imposed vide Notification dated 28/1/2010. A mid-term review was also conducted and the AD duty was continued after enhancement vide Notification dated 26/4/2013. Based on application from the appel .....

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t the calculation of Non-Injuries Price (NIP) for DI is erroneous. When there is a clear finding by the DA on the causal link between dumping of subject goods and the injury to DI, the method adopted by the DA to construct NIP based on best utilization of raw materials, utilities and of production capacities over the past three years and the period of investigation is not correct. It is the case of the appellant that the cost construction should be on actual basis unless there is a finding that .....

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cels of statutory provisions. Para 4 of Annexure III categorically states that the following elements of cost of production are required to be examined for working out the non-injuries price, namely . :- "(i) The best utilization of raw materials by the constituents of domestic industry, over the past three years period and the period of investigation, and at period of investigation rates may be considered to nullify injury, if any, caused to the domestic industry by inefficient utilization .....

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injury, if any, caused to the domestic industry by inefficient utilization of production capacities". He further submitted that though various representations have been received from the DI on this issue as the provisions stand now it is clear that best utilization of raw material or utilities are to be considered. Legally, such principle is to be adopted by the DA. Any contrary method will be against the statutory provisions. The learned AR for Revenue supported the findings of the DA and .....

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The only point raised in the appeal is that the DA should have arrived NIP on actual cost data submitted by DI instead of constructed costing based on best utilization of raw material/utilities by the DI. We have examined the principles laid down in Annexure Ill of AD Rules, 1995. We note that India is following lesser duty rule for fixing anti dumping duty. Article 9 of the Agreement on Anti Dumping specifically provides that the amount of anti dumping duty should not exceed the margin of dumpi .....

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