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M/s Indian Wind Turbine Manufacturers Association Versus Designated Authority, DGAD. MoF.

2016 (10) TMI 607 - CESTAT NEW DELHI

Imposition of CVD - Castings for Wind Operated Electricity Generators - imported from China PR - N/N. 1/20 16-Cus (CVD) dated 19.01.2016 - basis for initiating investigation by DA - Rule 6 of CVD Rules - scope of investigation by DA - Held that: - The DA had examined volume effect of the subsidised imports on domestic industry, price effect (underselling), other economic parameters. When the interested parties do not co-operate to the fullest extent, then reliance upon best available facts is ac .....

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ures - investigation carried out by DA devoid of any limitations - CVD rightly imposed - appeal rejected - decided against appellant. - Anti Dumping Stay No. 50726 of 2016 and Anti Dumping Appeal No. 51295 of 2016 - Order No. 53401/2016 - Dated:- 7-9-2016 - Mr. Justice (Dr.) Satish Chandra, President, Ms. Archana Wadhwa, Member (Judicial) and Mr. B. Ravichanclran, Member (Technical) Appellant By: Sh. S. Seetharamlan. Sh. Aman B, Ms. Radhika Sharma and Sh. Ankur Sharma, Advocates Sh. Amit Singh, .....

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of the case are that M/s Larsen & Toubro Limited (Petitioner/DI approached the DA for initiation of anti-subsidy Countervailing Duty investigation concerning imports of Castings for Wind Operated Electricity Generators' (subject goods) originating in or exported from China PR. The DA initiated such investigation vide Public Notice dated 29.05.2014. After following the procedure as set out in Customs Tariff (Identification, Assessment and Collection of Countervailing Duty on Subsidised A .....

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supported by evidence of subject, injury and the causal link. The DA initiated the investigation without sound basis and supporting evidence. 4. The Id. Counsel argued that the basis and principles adopted in calculating the subsidy margin are erroneous. In relation to grants, the subsidy margin should have been calculated for every program as per provisions of Annexure-IV paragraph B. Totalling the subsidy margin of all programs under grants is not correct. While the DA determined that Jiali Wi .....

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o the exact nature of public body' and 'private intermediaries' who are involved in the grant of such benefits. The support drawn from U.S. authorities Finding is misplaced. The raw materials involved there were wire rod and zinc. Further. the subsidy margin cannot be arrived at based on world market prices as benchmark. 6. The subsidy margins for various programs Nos. 8 to 13, 25 have been arrived at without any specific supporting data. There is no evidence to indicate Counsel that .....

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rits of present appeal the Id. Counsel for DI submitted that neither the Government of China nor the producers in China (except Jiali) co-operated fully with the DA by furnishing complete details. She drew our attention to Rule 7(8) of CVD Rules which provides the DA to record his Findings on the basis of available information. It was further argued that programs for grant cannot be denied as details are ascertained by the DI and furnished to the DA. When the producers / exporters not co-operate .....

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ch scenario the DA followed the options available as per CVD Rules and also on findings, wherever relevant. of other country authorities. 11. Ld. AR for Revenue supported the customs notification. In view of non-cooperation by the producers and China, it is for the DA to follow the legal option available to draw adverse conclusions based on available information. 12. We have heard all the parties as above, perused the appeal records and written submissions. The CVD levied on subject goods from C .....

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he imposition CVD. The importers in India are only contesting the same. This creates a peculiar situation wherein, the importer though suffers CVD, has no supporting material evidence of their own to put up a clear and precise challenge to the Findings of the DA. In the present appeal, the grounds focus mainly on purported incorrect calculation of subsidy margin attributable to various programs in China. As could be seen, the appellant repeatedly states that there is no clear empherical conclude .....

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of a case for investigation, the DA issued notice to all the interested parties for providing information. He had also listed 45 programs which are claimed to be connected to actionable subsidies. 14. It is relevant to note here that full and comprehensive information on all the related parameters -like existence of such program. connection to producer/ exporter, connection to subject goods, quantum of financial / material support, the status and role of institution providing such support, count .....

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ngs the DA records: 6. The Authority notes that despite adequate opportunities provided to the Government of China(GOC) through the deficiency letters and otherwise, to provide detailed information concerning the various alleged subsidy schemes, the bene Its provided to the Chinese producers/ exporters under the same and the countervalability o the same vis-a-vis the Subsidy Agreement, the GOC neither provided the complete information, nor consented or the on the spot verification offered by the .....

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are pubic bodies and whether the alleged programs are countervailable under the law. Since GOC did not extent the required cooperation, the Authority had to look or and rely upon other best available information . 15. The DA proceeded stage by stage and followed the procedure set out in CVD Rules before Final Findings. The appellant who were also issued notice before initiation of investigation as well as disclosure details also did not submit any supporting data to sustain their contest against .....

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ese programs has been individually dealt with, though with limited data available. We have perused programewise findings. 17. We note that based on the information furnished by the only co-operating producers/ exporter (Jiali Wind Power) and after analysis, the DA fixed a programwise as well as total subsidy margin to the said exporter. For, others who did not co-operate, based on legal option the subsidy margins were constructed by the DA. Neither the co-operated exporter nor the non-co-operate .....

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y to any industry established in India, or materially retards the establishment of any industry in India . 113. Annexure I to the Countervailing Duty Rules, 1995, as amended in 2006 deals with the principles governing the determination of injury. Paragraph 1(l), (2) and (3) o the Annexure read as follows. "1. (l) A determination of injury for purposes of rule 13 shall be based on positive evidence and involve an objective examination of both (a) the volume of the subsidized imports and the .....

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ed authority shall, consider whether there has been a significant price undercutting by the subsidized imports CIS' compared with the price of a like article in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or to prevent price increases, which otherwise would have occurred, to a significant degree. 114. Para 1 (5) of the Annexure I to the Rules lists relevant economic parameters to the evaluated by the designated authority: (5) The design .....

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