TMI Blog2016 (10) TMI 752X X X X Extracts X X X X X X X X Extracts X X X X ..... suffered by the DI is due to dumped imports. Cost of subject goods cannot be accepted on its face value as the producers in Saudi Arabia and UAE enjoy undue advantage regarding energy price due to Government intervention - Held that: - in terms Section 9A (1) (c) to ascertain normal value questionnaires were sent to known exporters of these countries. Where responses were filed, the DA determined individual dumping margin in respect of those companies. If the domestic sale value is representative and viable for permitting determination of normal values, the same is considered. When the ordinary course of trade test was not satisfied, the cost of production was considered after verification and adding 5% for profit for arriving normal value. The DA has followed the provisions of Rule 6 (8) of AD Rules in cases where producers/exporters not cooperated. The normal value was arrived at based on available facts. We note that the DA determined normal value, export price and dumping margin for each producer/exporter accordingly. Regarding additional information provided during verification visit, we note the disclosure by DA contained all relevant information. Due opportunity has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Counsel for M/s Obeikan Glass Company, a producer/exporter of subject goods from Saudi Arabia, appellant, contested the final finding of the DA. Though in appeal the appellant took various grounds, the learned Counsel restricted his arguments mainly on two points. (a) the data relied upon in arriving at final findings was not made available to the interested parties. It was only in the penultimate stage of investigation, the DA disclosed that it is relying on DGCI S data. Timely opportunities were thus denied to the appellant which is a violation of Article 6.4 of WTO Anti-Dumping Agreement, (b) the appellant is entitled to start-up adjustment which was wrongly rejected by the DA. In terms of para 3 (ii) to Annexure - 1 to Rule 8 of AD Rules, the DA should make appropriate adjustments for those non-recurring items of cost which benefits further and/or current production or for circumstances in which costs during the period of investigation are affected by start-up operation. The POI in the present case is 01/10/2011 to 31/12/2012. Appellant started commercial production in July 2011 which is just 3 months prior to POI. As such the cost structure was high on account of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to various known exporters in subject countries and known importers/users in India. Request was made to DGCI S to obtain details of imports for POI and proceeding three years. The same was obtained and relied upon. Spot verifications of information provided by DI and producers/exporters were also conducted. We note that the producer/exporters submitted before the DA that it has to examine the data of not only the petitioner companies but also other domestic producers in the market. The DA noted that the petitioner companies constitutes DI and as per rules there is no need to examine the data of supporting companies. The volume effect of dumped imports was analysed with the help of import data procured from DGCI S. The appellant main grievance regarding DGCI S data appears to be on account of inconsistencies and mismatch in the same. The subject goods are classified under Chapter 70 of the Customs Tariff as glass and glassware . The specific classification is 70051090. However, it is seen that the item has been classified at the time of import under various different headings. The DA proceeded to take data of import of subject goods considering the customs classification as indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Boards originating in or exported from China PR, Indonesia, UAE, etc. cited by Obeikan, the concerned producer/exporter had achieved a capacity utilization of *** % as against *** % projected in the Project Report. Since, the capacity utilization achieved by the concerned exporter was almost *** % of the projected capacity, the Authority had considered the adjustment on account of start up cost in that case. (d) The Authority holds that any new company requires time to market its product and, therefore, in the initial period of operation, it is one of the constraints for achieving optimum capacity utilization. In this connection, the Authority notes that Obeikan started its operations in April, 2011 and the inventories at the end of POI were high as compared to the Inventories at the end of 2013 when Obeikan claims that it had achieved optimum level of capacity utilization. This shows that Obeikan could have increased its production during 2013 when the market had picked up. The Authority, therefore, holds that the contention of Obeikan that its production in POI was affected due to start up operations and it got stabilized only during 2013 is not correct. (e) The Authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed that producers in Saudi Arabia and UAE enjoy undue advantage regarding energy price due to Government intervention. Hence, the cost of subject goods cannot be accepted on its face value. However, DI did not provide any data based evidence to this effect. The DA noted this objection and recorded that in terms Section 9A (1) (c) to ascertain normal value questionnaires were sent to known exporters of these countries. Where responses were filed, the DA determined individual dumping margin in respect of those companies. If the domestic sale value is representative and viable for permitting determination of normal values, the same is considered. When the ordinary course of trade test was not satisfied, the cost of production was considered after verification and adding 5% for profit for arriving normal value. The DA has followed the provisions of Rule 6 (8) of AD Rules in cases where producers/exporters not cooperated. The normal value was arrived at based on available facts. We note that the DA determined normal value, export price and dumping margin for each producer/exporter accordingly. 13. Regarding additional information provided during verification visit, we note the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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