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2016 (10) TMI 900 - CESTAT NEW DELHI

2016 (10) TMI 900 - CESTAT NEW DELHI - TMI - Imposition of ADD - N/N. 7/2012 -Cus (ADD) dated 7.1.2012 - Sunset review - Saccharin - the period of investigation, for the purpose of sunset review was adopted as 15 months instead of 12 months normally adopted by the Designated authority - Held that: - Sunset review, which is mandatory in nature is undertaken by the authorities to adjudge as to whether the Anti Dumping duties imposed, shall unless revoked earlier ceased to have effect on expiry of .....

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xed. In the absence of any period of investigation prescribed in the law, for the sunset review, we do not find any merits in the contention of the learned advocate that the period of 15 months for sunset review, adopted by the Designated Authority, was unjustified. - In case of doubt of export price during POI, DA is free to look into the other corroborative evidence and to arrive at a finding. - During the course of sunset review, the rate of duty cannot be enhanced - Held that: - We h .....

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any variation in the rate of duty and only relates to the extension of period. - Reliance placed on the decision of Indian Graphite Manufacturers Association vs. Designated Authority [2006 (4) TMI 274 - CESTAT, NEW DELHI ] where it was held that a cumulative reading of the section 9A(1), 9 A(5) and 9AA, read together, empowers the Designated Authority for recommending the amount of Anti Dumping Duty different from the amount of duty imposed at the time of initial imposition of definitive Ant .....

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pta, Advocate Shri Amit Singh, Advocate for the Designated Authority, Ministry of Commerce Revenue By: Shri Govind Dixit, A.R. Ms. Reena Khair, Shri Rajesh Sharma and Ms. Rita Jha, Advocate for the Domestic Industry ORDER Per Archana Wadhwa (for the Bench): The challenge in the present appeal is to the Final Finding of the Designated Authority dated 7.12.2011 passed in Sunset review and the consequent Notification No. 7/2012 -Cus (ADD) dated 7.1.2012 issued by the Ministry of Finance, Government .....

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tes were revised in respect of the present appellant. It may be noted here that though the duty rate was revised for the present appellant, the same were still less compared to other Chinese exporters. There was no challenge to the original Final Finding as also to the Mid-term Review Finding of the Designated Authority. 3. Thereafter the Sunset review was initiated by Designated Authority on 8.12.2010, by adopting the period of investigation of 15 months starting from 1.4.2009 to 30.6.2010. The .....

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riod of investigations, the exports by the appellant to India was very low and at higher prices. As per facts on record during the period of investigation, there were only two exports of 5 MT to one M/S. Eljay Impex at USD 14 per Kg and export of 1 MT of peppermint traders through M/S. Majestic International Trading Company Ltd at USD 8.35 per Kg. By taking note of the low exports during the period of investigation at higher transaction values, the DA had come to a finding that the exports durin .....

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their exports during the period prior to POI and post POI. Accordingly, he rejected the exports price of the appellant and also increased the rate of Anti Dumping duty, and recommended that there is likelihood of continuation and intensification of dumping and injury on account of import of subject goods from the subject country. He accordingly recommended the extension of Anti Dumping duty for a further period of 5 years along with recommendation for increase in the Anti Dumping duty. 5. Based .....

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by the Designated Authority was of 15 months as against normal practice of adoption of 12 months for a Sunset review. Learned Advocate submits that there was no justification on the part of the Designated Authority to resort to the export price of the appellant during the POI inasmuch as the appellant could not have foreseen that the Designated Authority is going to adopt 15 months period of investigation and as such, could not have staged managed their exports. Inasmuch as the initial levy of A .....

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question were low and at a higher price as the duty was increased during Mid term review and in view of higher Anti Dumping duties, they could not have got any orders from India till several months later. Regular orders started coming only after August, 2010 and the regular exports started and continued during September, October and November, 2010. By that time the Designated Authority had not initiated the Sunset review and no one could have thought that August November, 2010 would not form par .....

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commended continuation of the earlier rate. 7. We have heard Ms. Reena Khair, Shri Rajesh Sharma and Ms. Rita Jha, learned advocates for the interested party, Shri Dhruv Gupta, learned Advocate appearing for the Appellant and Shri Amit Singh, learned Advocate appearing for the Designated Authority and Shri Govind Dixit, learned DR appearing for the Revenue. 7. After carefully considering the submissions made by all the sides, we find that the appellants main grievance is that the period of inves .....

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nset reviews undertaken by the Designated Authority. However, we do not feel convinced with the above argument of learned advocate. Sunset review, which is mandatory in nature is undertaken by the authorities to adjudge as to whether the Anti Dumping duties imposed, shall unless revoked earlier ceased to have effect on expiry of 5 years from the date of such imposition and whether expiry of duty is likely to lead to continuation or reoccurrence of the dumping and injury. In normal circumstances, .....

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of investigation ranging from 6 months to 18 months is usually fixed. In the absence of any period of investigation prescribed in the law, for the sunset review, we do not find any merits in the contention of the learned advocate that the period of 15 months for sunset review, adopted by the Designated Authority, was unjustified. Learned Advocate has not been able to show any provisions of law to support his above stand. Accordingly, we do not find any merits in the above contention of the learn .....

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he period of investigation of sunset review. It has not been rebutted before us that fact of low exports at higher price during the POI is not correct reflection of the facts. The explanation of the exporters that they could not get the orders during POI period on account of enhancement of duty during Mid-term review are self-contradictory to their own stand that post POI, there was increase in the exports. It cannot be held to be a mere coincidence that prior to POI and subsequent to POI, there .....

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