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BASF Petronas Chemicals, Petronas Chemicals Mktg. and Petronas Chemicals Derivatives Versus UOI/DA

2016 (10) TMI 640 - CESTAT NEW DELHI

Imposition of ADD - Butanol - imported from European Union (EU), Malaysia, Singapore, South Africa and USA - the injury suffered by the DI is not on account of dumped imports but was on account of other factors like long closure of unit due to non-availability of main raw materials, etc - the cost of construction to arrive at the NIP was not disclosed to the appellants to make fair defence - Held that: - the Domestic Industry suffered production loss due to disruption in raw materials supplied b .....

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bmitted during investigation. No contrary evidences have been submitted. - ADD rightly imposed - appeal dismissed - decided against appellant. - AD/52182/2016 with AD/Stay/51167/2016, AD/52283/2016 with AD/Stay/51270/2016 and AD/52284/2016 with AD/Stay/51271/2016 - AD/A/53522-53524/2016-CU[DB] - Dated:- 14-9-2016 - Mr. Justice (Dr.) Satish Chandra, President, Shri S.K. Mohanty, Member (Judicial) and Mr. B. Ravichandran, Member (Technical) Shri Balbir Singh, Shri Shiraz Pataodia, Shri Ashish .....

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nti-Dumping and Allied Duties, Ministry of Commerce and Industry and Notification No. 13/2016-Customs ADD dated 13.04.2016, imposing duties on normal Butanol "subject goods" exported from European Union (EU), Malaysia, Singapore, South Africa and USA. The appellants are producers/exporters of subject goods from Malaysia. 2. Ld. Counsel for the appellants, BASF Petronas Chemicals submitted that there is only one producer of subject goods in India. Injury, if any, caused to the Domestic .....

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ar products and not in a combined summary manners. 3. Ld. Counsels, Shri Dhruv Gupta and Shri Darpan Bhuyan on behalf of M/s.Petronas Chemicals Marketing and Petronas Chemicals Derivatives, while supporting the submissions of the Id. Counsel for other appellant, also submitted that the allocation of fixed cost has not been properly made while arriving at the NIP for DI. There is a substantial variation in cost parameters for POI when compared to the previous three years. This shows that the cost .....

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on of landed value with the NIP for subject goods without consideration of nature of shipment of bulk or nonbulk. She submitted that the said plea was never made in the appeal papers and as such, it is not tenable for the appellant to raise a fresh issue before the Tribunal. 5. Regarding the construction of non-injurious price, it was submitted that the based on best utilization of raw materials and utilities, the findings were arrived. The normated cost has been arrived in terms of principles g .....

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appellant's raising fresh issue regarding the price comparison of bulk or non-bulk product at the appellate stage. However, on merit, he submitted that the comparison has been correctly made on saline type of items only. 6. Shri G.R. Wadhwa, Advisor to the DA, with the permission of Bench, submitted that the NIP has been arrived at after due adjustments for the closure period of DI. Further, the bulk imports are compared with bulk domestic sales trade for fair comparison, Wherever the impor .....

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the appeal records including the written submissions. 9. The imposition of AD duty on subject goods is challenged mainly on the ground that the injury suffered by the DI is not on account of dumped imports but was on account of other fact01's like long closure of unit due to non-availability of main raw materials, etc. It was alleged that the cost construction to arrive at the NIP was not disclosed to the appellants to make fair defence. We have examined the points raised by the appellants .....

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the DA. The over-all average is arrived at after such analyses. We also noticed from the report that the return on capital employed is significantly negative. The appellants strongly contested the fixed cost allocation while arriving at the NIP. The DA has examined the various parameters and noted as below:- "74. It is seen that both costs as well as selling price of the domestic industry increased over the injury period. Whereas the costs have increased significantly; the domestic industry .....

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e to non-remunerative prices and shortage of raw material. The petitioner has segregated cost incurred on account of idle time from the total cost to assess the injury caused by dumped imports. It has been further claimed by the petitioner that even if the domestic industry had been able to achieve normal production in the POI, the cost would have been significantly higher than the selling price. 75. Annual reports of the domestic industry for various period of injury were examined. It is seen t .....

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wer market selling prices for the products, new capacities that have come up and further capacities coming up in the normal scenario, poor product prices and consequently unit shut down for prolonged period and dumping of the product. The Authority notes in this regard that the actors aj ecting the domestic industry can be broadly divided into the following- (a) increase in cost of production due to increase in input prices or general increase in cost of production due to lower production (becau .....

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ndustry is expected to move its prices up or down in tandem with the increase or reduction in cost of production in a normal market situation. If the domestic industry has been faced with the increase in the cost of production on account of factors such as raw material price increases, power rate increases or general inflation, and if the domestic industry is unable to increase its prices in proportion to these increases, it could be that the domestic industry has been prevented from increasing .....

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on, it is also due to availability of low priced imports. It is however appreciated that the increase in the cost of production due to lower production cannot be passed onto the consumers and business enterprises are not expected to charge higher prices merely because they want to maintain their pro M levels and the production (and consequently) sales were lower due to other factors. 11. The DA has taken note of the fact that the Domestic Industry suffered production loss due to disruption in ra .....

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