TMI Blog2017 (4) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... from Australia in October 2013. Hence, there is no basis in the submission, that the losses are because of high coal prices, when importing from relating party. Each one of the point raised by the appellants have been dealt with adequately on legal and factual basis by the DA. - Levy of ADD upheld - Decided against the appellant. - Anti Dumping Appeals No. 50377-50378 of 2017 with Stay Applications No. 50189-50190 of 2017 - Final Order No. 52735-52736/2017 - Dated:- 7-4-2017 - Hon ble Shri Justice Dr. Satish Chandra, President, Hon ble Shri S.K. Mohanty, Member (Judicial) And Hon ble Shri B. Ravichandran, Member (Technical) Shri Adarsh Ramanujan and Ankur Sharma, Advocates for the appellant Shri Ameet Singh, Advocate for DA and Suhail Nathani, Advocate for DI and Govind Dixit, Authorized Representative (DR) for the Respondent ORDER Per. B. Ravichandran These two appeals are filed against the final findings dated 20/10/2016 of the Designated Authority (DA), Directorate General of Anti Dumping and Allied Duties, Department of Commerce, Ministry of Commerce and Industry,and Customs Notification No. 53/2016 CUS (ADD) dated 25/11/2016 issued by the Min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the DI from import of metallurgical coke having ash content less than 12.5% as the DI barely produces any metallurgical coke in such category ; (iii) The DA has wrongly determined the scope and standing of the DI. The captive producers and users cannot be excluded to determine the standing of DI. There is no specific reason for exclusion of captive users. Rule 2 (b) of AD Rules has not been correctly applied by the DA. The appellate body report of the WTO in the case of U.S. Cotton Yarn and U.S. Hot Rolled Steel should have been considered while determining the scope of DI. India in its representation before the WTO, submitted that even captive consumers should be regarded as domestic producers for the purpose of determining whether injury has been suffered by DI. Reliance is specifically placed on the decision of the Appellate Body on U.S. Hot Rolled Steel products to reiterate the submission that captive producers cannot be excluded from the scope of DI for injury analysis. Exclusion of Bengal Energy and Visa Sun Coke from DI is not correct. In the absence of complete information from these two industry, the appellant is not able to contest the finding. (iv) The various e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body never considered the issue whether captive production must be considered while determining the standing of an applicant. No ratio was laid down on this principle by the appellate body. The Tribunal s decision in Pig Iron Manufacturers Association vs. DA reported in 2000 (116) E.L.T. 67 (Tribunal) is clear. It is categorically held that captive consumption producers and producers for marketing constitute different categories for AD Rules ; (b) the DA has correctly determined the scope of subject goods. The reference made by the appellants to the earlier investigations are not relevant to the present case. It is clearly recorded that metallurgical coke having ash content upto 15% is commercially substitutable with metallurgical coke of ash content above 15%. In fact, manufacturers are using coke of higher ash content and documentary evidences for the same are submitted. On the issue regarding DI cannot manufacture metallurgical coke with ash content less than 12.5%, it is submitted that documentary evidences will clearly show one of the major domestic manufacturer continued to procure metallurgical coke with ash content of 12.5% from domestic sources. (c) DI suffered inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indings of the DA and the customs notification imposing anti-dumping duty on the subject goods. He reiterated the submissions made by the learned Counsels for the DI and the DA. 7. We have heard all the parties involved in the present dispute and examined the appeal records carefully. The written submissions made by the parties were also scrutinized. The appellants challenged the imposition of AD duty on subject goods imported from specified countries. We have examined each one of the points submitted in support of their challenge. 8. Rule 5 of AD Rules provides for the power of DA to initiate investigation to determine the existence, degree and effect of dumping, only upon receipt of a written application by or on behalf of the Domestic Industry. The petition should be supported by clear evidence of (a) dumping (b) injury and (c) a causal link between such dumping and injury. The DA is mandated to examine the correctness and sufficiency of evidence produced, in the application before initiating the investigation. Admittedly, such satisfaction is based on prima facie analysis of all the relevant data submitted. No detailed enquiry or definitive finding is drawn during such in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent between 15%-18% is technically and commercially substitutable with the Met Coke below 15%. The impact of using Met Coke between 15%-18% in place of Met Coke below 15% would be reduction in productivity and that it would be compensated with the cost savings on account of lower price of Met Coke with ash content between 15-18% as compared to Met Coke of ash content below 15%. Further, the input-output norms laid down by the DGFT are not binding on the product definition in the anti-dumping investigations as they are prescribed for different purpose. With regard to the exclusion of Met Coke containing low ash (upto 12.5%), low phosphorous (up to 0.018%) and low sulphur (upto 0.65%) or with moisture content of upto 5% from the scope of the product under consideration, it is noted that the domestic industry has provided sufficient evidence to show that they have produced and supplied the subject goods of the above description. The Authority also notes that there is no case for exclusion of lump coke from the scope of the product under consideration. It is noted from the third party test reports supplied by the domestic industry that it manufactures Met Coke with ash content below 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were also submitted to show similar supplies during injury period and proof of import low ash coking coal by DI. We have perused these documentary evidences, which were claimed as confidential information, and we find that the findings of the DA on the scope of subject goods cannot be faulted either in law or on fact. 11. The appellants strongly contested the findings of the DA on the ambit and scope of Domestic Industry as considered by the DA. The main thrust of the argument is that captive consumption producers should not have been excluded from consideration. In this connection, we note that the DA recorded as below :- 16. The application has been filed by the Indian Metallurgical Coke Manufacturers Association (IMCOM) on behalf of the domestic producers of Low Ash Metallurgical Coke in India, namely, Saurashtra Fuels Pvt. Ltd., Gujarat NRE Coke Ltd., Carbon Edge Industries Ltd., Bhatia Coke and Energy Ltd. and Basudha Udyog Pvt. Ltd. Further, the applicant has stated the present application is filed by or on behalf of the manufacturers who are marketing / selling their production of Met Coke. It is stated that there are two different categories of producers of Met Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he DI regarding the scope of those decisions, recorded earlier in this order. We find no infirmity in the conclusion of the DA while determining the scope of DI in the investigation. 13. The appellants strongly contested that there is no injury to domestic industry due to import of subject goods from the specified countries. The loss or injury, if any, to the domestic industry is not relatable to import of subject goods but are due to other reasons. The AD duty is not legally sustainable as there is no causal link between the injury and the import. In this connection, we have examined the findings of the DA on the injury to the Domestic Industry. It is clearly recorded that import of subject goods, from subject countries, have significantly increased during POI. As compared to base year 2011-2012, the increase in import is almost 15 times. The import in relative terms has also increased by about 43%. It was concluded that the imports in relation to production and consumption have significantly increased over the injury investigation period. On careful analysis of the price under cutting and price under-selling, the DA recorded there is a high level of price under selling and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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