TMI Blog2017 (12) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... started operation in the year 2012 and engaged in commercial production and sale of the PUC with gradual increase in production and sales in India. The various relevant parameters which will determine the material injury of the DI has been examined by the Original Authority and as already noted, we have no reason to interfere with the same. Accordingly, there is no merit in the appeals filed by the user–importer of PUC in India. On the appeals filed by Hyosung Corporation, Hyosung Vietnam we note that Hyosung group had stated that no commission has been paid to Hyosung Delhi office, however, Hyosung Vietnam provides monetary support to Hyosung Delhi office which undertakes various activities on their behalf. We note that the DA had asked Hyosung Corporation and Hyosung Vietnam to respond to the representation of DI regarding payment of large commission to their Delhi office - The adjustments on account of inland freight, overseas freight, handling charges, marine insurance, credit cost, bank charges and drawback reimbursement have been accepted after necessary verification. An additional adjustment has been made on account of commission paid to their Delhi office. The DA accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocate (For Sl. No. 3) and Govind Dixit, Authorized Representative (DR), for the Respondent ORDER Per. B. Ravichandran :- These five appeals are against final findings dated 24/03/2017 of the Designated Authority (DA), Directorate General of Anti Dumping and Allied Duties, Department of Commerce, Ministry of Commerce and Industry, New Delhi and Customs Notification No. 15/2017 CUS (ADD) dated 03/05/2017 issued by the Ministry of Finance, Department of Revenue, Government of India, New Delhi imposing Anti Dumping duty on Elastomeric Filament Yarn (EFY or product under consideration PUC), originating in or exported from China PR, Korea, Taiwan and Vietnam (subject countries) and imported into India. 2. The DA based on a request from M/s Indorama Industries Limited (Domestic Industry DI) initiated Anti Dumping investigations regarding import of subject goods from the subject countries. On completion of the detailed enquiry in terms of Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the DA published notification dated 24/03/2017 containing his final findings. He recomm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Nirma Limited (SCA NO. 16426 of 2016). 6. The investigation conducted for safeguard duty concluded that there is no injury to DI during the material time. The period examined for safeguard duty was almost same which is considered by the DA in the present case. Admittedly, the DI increased the profit and capacity utilization. The increase in inventory is not due to any injury attributable to imports. Drawing specific reference to para 96 of the final finding, the learned Counsel submitted that the conclusion drawn is based on wrong appreciation of facts. 7. The principles of natural justice have been violated in the present investigation. The appellants were not called at the time of third oral hearing which denied them the opportunity to putforth their case in full. They have not been provided full details of DGCIS statistics which deprived them the chance to defend their case. 8. Finally, the learned Counsel submitted that the goods manufactured by the DI cannot be considered as like articles with imports. The goods produced in India have low finished quality, stretching in the fabric is not as per the desired level, growth and recovery of the fabric upon stretchi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat they should not have been included in the notification for imposition of AD duty. The DA recommended nil duty rate. However, the name of the appellant was included in the table for AD duty overlooking the requirement of termination of investigation in situations where the dumping margin is less than 2% of the export price. A reference was made to Rule 14 of AD Rules. Relying on various decisions, the learned Counsel submitted that the anti dumping investigation against the appellant should have been terminated. He prayed for removing the name of appellant from the customs notification. 12. Rebutting the submission made by the learned Counsel for Hyosung Vietnam and Hyosung Korea, the learned Counsel for the DI submitted that the appellant did not give details of commission and other income properly before the DA. There was no clear and transparent disclosure of income and other financial transactions by the appellant (Hyosung Vietnam) with reference to their India office. By non-disclosure of relevant facts, the appellant actually suppressed material evidence and cannot plead against the findings of the DA. 13. On appeal filed by the Hyosung Korea, the learned Counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is having good commercial return and there is no apparent injury caused to the DI due to import of the subject goods. In this connection, we note that the various submissions with reference to increased capacity utilization, better financial position of the DI were specifically taken into account by the DA while examining the parameters for investigation. It is clear that in spite of cost of sales of DI declining during POI and the DI operating on full capacity, still could not make profits due to price pressure exerted by the dumped imports from the subject countries. It is also to be noted that the DI was forced to match the discounted landed price offers by the exporters for subject goods. Even though the selling price has shown upward trend upto 2013-2014 it declined in the POI. The selling price consistently remained below the cost of sales of the DI resulting in continued loses due to overall pressure on the selling prices. A detailed analysis made by the DA regarding the status of the DI vis- -vis the imports of subject goods clearly brings out that in spite of improved commercial parameters like capacity utilization, market share etc. the DI could not make any profit. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2004) 170 E.L.T. 144, the Tribunal observed that the DI should consider whether there has been a significant price under cutting by the dumping import as compared with the price of like product in India. Applying the facts as recorded in the said case, the Tribunal rejected the appeal by the DI. As noted earlier in this order, all commercial parameters with reference to DI have been examined in detail and such facts are not identical to the cases relied upon. Further, it is relevant to note that there is only one unit in the DI which started operation in the year 2012 and engaged in commercial production and sale of the PUC with gradual increase in production and sales in India. The various relevant parameters which will determine the material injury of the DI has been examined by the Original Authority and as already noted, we have no reason to interfere with the same. Accordingly, there is no merit in the appeals filed by the user importer of PUC in India. 19. We have also considered the other submissions with reference to principles of natural justice. We note that more than one hearing was held with due notice. The appellants did submit their side of the case. In our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the claim made by the appellant for termination of the investigation only for them. In any case, as already noted no AD duty has been recommended or imposed on the exports made by the Hyosung Corporation, as mentioned in Sl. No. 7 of the table attached to the Customs Notification dated 03/05/2017. As such, there is no merit in the present appeal. 23. Finally, we take up the appeal by the DI. The DI is partially aggrieved by the impugned final findings and customs notification. We have perused the grounds of appeal. The various points raised by the appellant are generic in nature lacking in specific details. These are nothing but a general assertions. On careful consideration of the grounds mentioned by the DI, we are unable to discern any specific point of grievance with supporting details to enable us for a detailed examination to address such grievance. The DI appeared to be mainly concerned with individual dumping margin for different combination of producers/exporters. This, they apprehend, will result in dilution of effect of AD duty as producer will supply through entity having lowest dumping margin. We are not able to appreciate such assertion. The relationship between ..... X X X X Extracts X X X X X X X X Extracts X X X X
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