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2017 (12) TMI 463

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 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. - 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 .....

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eir side of the case. In our opinion, there is no breach of due process in the present case. - Appeal dismissed - decided against appellant. - Anti Dumping Appeals No. 51318, 51400, 51397 and 51406-51407 of 2017 with Misc. Applications No. 50674- 50675 of 2017 and Stay Applications No. 50627, 50669 of 2017 - Final Order No. 58202-58206/2017 - Dated:- 5-12-2017 - Hon ble Shri Justice Dr. Satish Chandra, President, Hon ble Shri S.K. Mohanty, Member (Judicial) And Hon ble Shri B. Ravichandran, Member (Technical) 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, Advocate for DI, S/Shri Jitender Singh and Sharad Bhansali, 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 Gen .....

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tion 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, production and inventory levels. Doing the cumulative analysis of each of these parameters it can be clearly seen that there was no adverse volume effect due to import of subject goods. It is submitted that the sale by DI has increased and more demands were met domestically. The imports have come down during the period of investigation. As such, it is contended that there is no injury to the DI due to imports. 5. The learned Counsel also submitted that there is no price under cutting. The DA examined 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. Admittedl .....

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t price was incorrect. The entire income of Hyosung India office was applied for adjustment instead of commission amount for the PUC received by Hyosung India. Hyosung India deals with several products. 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 and acted in a pre-determined manner. The order was not reasoned based on the evidences submitted. 11. The learned Counsel elaborating the grounds of appeal filed by Hyosung Corporation Korea submitted that 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 les .....

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ic findings recorded by the DA with reference to each one of the contentions now raised by the appellants. It is submitted that there is nothing in the present appeals which can legally or factually contest the findings recorded by the DA. The DA has gone through the process of investigation and final finding in a methodical and prescribed way. They prayed for dismissing the appeals as having no merit. 16. We have heard all the parties to the dispute as summarized above. We have carefully considered the final findings and the customs notifications alongwith the appeal papers. 17. On the appeal 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 utilization, better financial position of the DI were specifically taken into account by the DA while e .....

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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 various parameters like production, sales, profitability etc. Similarly, in Forum of Acrylic Fibre Manufacturers vs. Designated Authority - (2006) 202 E.L.T. 257, the Tribunal was examining a case of no dumping for imports from U.K. It was also recorded that the profits of domestic industry have improved during the POI. Further, in Indian Spinners Association vs. Designated Authority - (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 i .....

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filed by Hyosung Corporation, Korea we note the DA had recommended nil duty rate for PUC produced and exported by Hyosung Corporation from South Korea. The Customs notification also did not impose any anti dumping duty on such imports. The appellants claimed that the DA should have terminated the anti dumping investigation against the appellant on the ground of de minimis dumping margin. We have 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 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 .....

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