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M/s Vardhman Textiles Limited, M/s Arvind Limited, M/s Indorama Industries Limited, M/s Hyosung Vietnam Co. Ltd., M/s Hyosung Corporation Versus Union of India/DA

2017 (12) TMI 463 - CESTAT NEW DELHI

ADD - Elastomeric Filament Yarn (EFY) - import from China PR, Korea, Taiwan and Vietnam (subject countries) - It is claimed that there is no injury to the DI and there is no reason for imposition of AD duty. The thrust of the argument is that the DI is doing well and is having good commercial return and there is no apparent injury caused to the DI due to import of the subject goods - Held that: - There is no ground to support the claim of the appellants that there is no material injury to the DI .....

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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 t .....

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ursement have been accepted after necessary verification. An additional adjustment has been made on account of commission paid to their Delhi office. The DA accordingly arrived at normal value and export price for the producer/exporter. We find no infirmity in such process. Accordingly, there is no merit in the appeal filed by Hyosung Vietnam. - On the appeal filed by Hyosung Corporation, Korea we note the DA had recommended nil duty rate for PUC produced and exported by Hyosung Corporation .....

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DI - The DI is partially aggrieved by the impugned final findings and customs notification - Held that: - In the absence of specific instances, we could not identify the source of grievance for the DI. The applicability of Rule 7 of AD Rules to various data submitted by interested parties have been examined by the D.A. The sufficiency of the claim of confidentiality has been recorded by D.A. As such, we find no merit in the present appeal filed by the DI. - Principles of Natural Justice - He .....

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Chandra, President, Hon ble Shri S.K. Mohanty, Member (Judicial) And Hon ble Shri B. Ravichandran, Member (Technical) S/Shri V. Lakshmikumaran, Darpan Bhuyan, Advocates (forappellant No. 1,2), S/Shri Jitender Singh and Sharad Bhansali (For appellant No. 3,4), S/Shri Sanjeev Sachdeva, AshishChandra, Tanvi Praveen and Tarun Bhati (for appellant No. 4,5) -for the appellants. S/Shri Ameet Singh, Ms. Albeena Advocate for DA, M.P. Devrath,Advocate (For Sl. No. 3 - R - 13,14,15,16) and Ms. Reena Khair .....

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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 enqu .....

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rdhman Textiles Limited and M/s Arvind Limited filed appeals in their capacity as user and importer of subject goods on which AD duty was imposed. M/s Hyosung Vietnam Company Limited and Hyosung Corporation, Korea RP filed appeals in the capacity as exporters of the subject goods to India. The DI is partially aggrieved by the above-mentioned final findings and Customs notification to the extent different quantum of AD duty should not have been fixed for different exporters. 3. First, we take up .....

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S data relating to imports from subject countries have not been made available to the interested parties. All the interested parties have not been called for the third oral hearing ; (d) the determination of like article is not in accordance with Rule 2 (d) of the AD Rules. 4. The learned Counsel appearing for these two appellants elaborated the above points during his submission. He submitted that the volume effect is to be evaluated in terms of sales, market share, capacity utilization, produc .....

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price under selling which is not an injury parameter at all. Reliance was placed on the decision of Hon ble Gujarat High Court 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 .....

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o 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 stretching is not as desired by the user industry. The finding by the DA was not based on actual facts as there is no basis to submit on machine compatibility as the same is irrelevant. The impor .....

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he injury period. Further, the learned Counsel for the respondent DI submitted that the investigation for safeguard duty is not directly relevant for a finding by the DA. The findings for safeguard duty were not appealable and are for a different scope. Contesting the reliance placed by the appellants on the decision of Hon ble Gujarat High Court in Nirma Limited (supra), the learned Counsel submitted that the same is with reference to injury margin not to be connected to price under selling. 10 .....

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s. The income under commission received by Hyosung India is on account of sales and marketing services. The Commissioner relatable to PUC only should have been taken for consideration. The factual position was brought to the notice of the DA. If proper data was considered by the DA then the net exfactory export price would have resulted in de minimis dumping margin. Further, there is violation of principles of natural justice. The DA has not considered the evidences submitted by the appellants a .....

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s 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 .....

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consider the overall import picture for the PUC and determine various connected parameters before recommending any further action. As such, he supported the findings of the DA with reference to notification of AD duty on the export made by these two appellants to India. 14. M/s Indorama Industries Ltd. (DI) filed an appeal to contest, partially, the findings of the DA. The learned Counsel appearing for the DI submitted that the DA erred in accepting excessive claims of confidentiality on the pa .....

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g of individual dumping margin for combination of producers/exporters. Such dumping margins will dilute the effect of AD duty as the producer will resort to supply through an entity with lowest dumping margin. 15. The learned Counsel for the DA and the learned AR for Revenue supported the final findings as well as Customs notification imposing anti dumping duties. They drew our attention to specific findings recorded by the DA with reference to each one of the contentions now raised by the appel .....

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filed by the domestic importers and users we note that the main contest is with reference to imposition of anti dumping duty. It is claimed that there is no injury to the DI and there is no reason for imposition of AD duty. The thrust of the argument is that the DI is doing well and 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 uti .....

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he 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-à-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 are in agr .....

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njury to the DI due to imports of subject goods. It is clear that a comparison of landed values with the non-injury prices of the DI reveals significant price under selling. The DA had concluded that the performance of DI remained negative in respect of profit, return on investment and inventory level. In the face of such conclusion based on facts we have no reason to arrive at any contrary finding. 18. We have also considered the decision of Hon ble Gujarat High Court in Nirma Limited (supra). .....

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ng recorded by the DA. In the facts of the present case, as recorded by the DA elaborately at para 94 and 95 of the final finding. We note that the reliance placed by the appellants on the case laws are not appropriate. In Bridge Stone Tyre Manufacturing (Thailand) vs. Designated Authority - (2011) 270 E.L.T. 696. The Tribunal was examining a situation where the DI made increased profit. Considering the facts of the said case, the Tribunal held that there is no injury to the DI considering vario .....

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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 .....

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ld with due notice. The appellants did submit their side of the case. In our opinion, there is no breach of due process in the present case. 20. On the question of like articles we have noted the detailed examination by the DA. The subject goods are described in deniers. DI has full range of capacity; presently producing upto 150D only. The question of quality comparision also has been examined by D.A. We find no infirmity in the findings by D.A. 21. On the appeals filed by Hyosung Corporation, .....

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actory export price for Hyosung group. In fact, the producer had exported directly to India. 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 accordingly arrived at normal value and export price for the producer/exporter. We find no infirmity in su .....

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perused Rule 14 of AD Rules. The said rule provides for the Designated Authority to issue public notice terminating an investigation under various circumstances. The said rule does not provide for part termination of investigation with reference to single exporter or producer. A combined reading of the said rule indicates that the termination of investigation is with reference to a particular PUC which will include like products . As such, we find no justification in the claim made by the appell .....

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