TMI Blog2020 (6) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... Notification initiating anti-dumping duty was that the bottom layer has necessarily of real wood. It appears that in the final findings, the Designated Authority merely reiterated what was stated in the disclosure statement that the product under consideration can be of two or three layers without examining that the Appellants had sought exclusion of two layer products which had the bottom layer of ply board. The Notification issued by the Central Government on 27 March, 2018 and the subsequent corrigendum Notification issued on 10 May, 2018 also do not address this issue - It is, therefore, clear that the scope of the product under consideration has been enlarged by the Designated Authority by including two layer products having plywood as the bottom layer. Whether the products having inlay work on the top layer should also have been excluded from the scope of the product under consideration? - HELD THAT:- The Designated Authority, while dealing with this aspect, noted that the domestic producer, being a new industry, may not be producing each and every kind of product falling within the Veneered Engineered Wooden Flooring , but still it did not exclude such products. It need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Notification in the Official Gazette. The Appellants are also aggrieved by the corrigendum Notification dated 10 May, 2018 which seeks to substitute the Explanation contained in the earlier Notification dated 27 March, 2018. 2. The Appellants, Exotic D cor and Lotus Kaleen are trading companies engaged in the business of Engineered Wooden Floorings and similar products. Greenlam Industries Limited filed an application before the Designated Authority under rule 5 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury), Rules, 1995 for imposition of anti-dumping duty on imports of Veneered Engineered Wooden Flooring originating in or exported from China PR, Malaysia, Indonesia and the European Union . The Designated Authority issued a Notification dated 17 February, 2017 initiating anti-dumping investigation concerning imports of the subject goods from the subject countries. The period of investigation was notified to be from October, 2015 to September, 2016 and the examination of the trends in the context of injury analysis covered the period 2013-14, 2014-15 and 2015-16 as also the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e top layer should also have been excluded from the scope of the product under consideration; and (C) The Designated Authority should have provided a soft copy of the import data in excel format to the Appellants as it is in this format and manner that the data was taken on record for the purpose of investigation. 6. Elaborating the aforesaid three submissions, Shri Sharad Bhansali, learned Counsel appearing for the Appellants assisted by Shri Jitendra Singh, Advocate, made the following submissions. (A) TWO LAYER PRODUCTS HAVING PLY BOARDS AS THE BOTTOM LAYER SHOULD ALSO HAVE BEEN EXCLUDED FROM THE SCOPE OF THE PRODUCT UNDER CONSIDERATION : (i) The product under consideration in the present investigation is restricted to wooden flooring having three layers, necessarily having the top and bottom layer of real wood. Therefore, it is apparent that the initiation notification intended to cover only those products which had three layers. Thus, all products having only two layers, including the two-layer products having Ply wood' and not real wood as the bottom layer, could not have been a part of the product under consideration. (ii) The initiation notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under consideration. (C) THE DESIGNATED AUTHORITY SHOULD HAVE PROVIDED A SOFT COPY OF THE IMPORT DATA (IN EXCEL FORMAT) TO THE APPELLANTS AS IT IS IN THIS FORMAT AND MANNER THAT THE DATA HAS BEEN TAKEN ON RECORD FOR THE PURPOSE OF INVESTIGATION : (i) It was incumbent upon the Designated Authority to provide the import data in the same form and manner in which the same was taken on record for the purpose of investigation. However, the Designated Authority, as a matter of practice, does not provide the soft copy of the import data used in the investigations in the same format as received from the domestic producer or from the Directorate General of Commercial Intelligence Statistics (DGCI S). This practice of the Designated Authority severely curtails the right and the ability to make appropriate comments on various aspects of the investigation, including but not limited, to the injury analysis; (ii) In the absence of the soft copy in excel or similar format, it is practically impossible to offer comments, and assist the Designated Authority in arriving at a correct conclusion; (iii) The present practice of providing the import data in PDF format defeats t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... import data in excel format. 9. Shri Rakesh Kumar, learned Authorized Representative of the Department supported the impugned order and for this purpose has adopted the submissions made by Shri Ameet Singh, learned Counsel for the Designated Authority. 10. Despite notices having been issued to the domestic producer, no one has appeared on behalf of the domestic producer. 11. The submissions advanced by learned Counsel for the parties have been considered. 12. As noticed above, the Appellants are trading companies engaged in the business of Engineered Wooden Flooring and similar products. The domestic producer had filed an application under rule 5 of the 1995 Rules for initiation of investigation for imposition of Anti-Dumping duty on imports of Veneered Engineered Wooden Flooring originating in or exported from China PR, Malaysia, Indonesia and the European Union. 13. The issue that arises for consideration is about the product under consideration and in this context two issues have been raised by the Appellants. The first is that two layer products having ply wood as a bottom layer should be excluded from the scope of the product under consideration and the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en cut to size as per the required length and width. The planks so produced then go through calibrating sanding and profiled in T G or Click and Lock profile and then coated with UV lacquers for giving a long lasting finish and surface resistance properties like abrasion resistance, scratch resistance and impact resistance. The coated planks are then packed in corrugated boxes and then shrink wrapped and then shipped out to the customer as per the requirement. 9. Veneered engineered wooden flooring are normally produced and sold in certain standard sizes. They can, however, be produced in sizes as per the requirements of customer. 15. Thereafter, the Ministry of Commerce Industry issued the Notification dated 17 February, 2017 for initiation of anti-dumping investigation and the relevant portion of the Notification is reproduced below : A. Product allegedly being dumped and like Article 2. The applicant have alleged that the imports of Veneered Engineered Wooden Flooring specifically excluding following kind of floorings from the countries named in the present notification are entering the Indian market at dumped prices and such imports are causing inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and commercially substitutable and, hence, should be treated as like article under the Rules. For the purpose of the present investigation, the Authority has treated the subject goods produced by the domestic industry in India as Like Article to the subject goods being imported from the subject country. 16. The Appellants filed written submissions dated 05 December, 2017 pursuant to the public hearing that was held on November 28, 2017. The written submissions in regard to the product under consideration are reproduced below : 13 From the above, it is clear that the following products are clearly excluded from the purview of investigations: a. Where the Description contains Laminated woods and Ply woods referred to in Item (a) above. In other words, any Veneered Engineered Wooden Flooring having plywood as its base is admittedly not a part of the Product under Consideration. b. Veneered Engineered Wooden Flooring having the core (middle layer) of any material other than fibre board, as mentioned by the Domestic Industry itself in its application under Item (f). In other words, all Veneered Engineered Wooden Flooring having real wood as the core (or middle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e made of one strip of wood, two strips of wood or three strips of Wood. Middle Layer is real wood, which forms core of the overall construction. It can be made of either solid wood or fibre board (MDF/HDF) . Bottom Layer is real wood which provides support to the overall construction. The PUC can however be of two or three layers also. 27. Veneered engineered wooden flooring is a wood product. The top layer of wood called the veneer ranges from 0.5 mm to 6 mm thickness. Overall board thickness ranges from 8 mm to 25 mm. Due to its multiply structure the engineered wooden flooring is more suitable than solid wood and is less susceptible to shrinking and expanding with changes in temperature and humidity. 28. The PUC is normally produced and sold in certain standard sizes and specifications. It can, however, be produced in different sizes to meet the requirements of customer. Different product types can be categorized on the basis of different sizes (veneer thickness, board thickness, length, width) and specifications of the wood (pine, oak, teak, walnut etc). 29. As regards the contention of the interested parties regarding exclusion of products having inlay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and supplied by the Domestic Industry: xxxxxxx xxxxxxx xxxxxxx B. No comments can be offered on the Injury Parameters in the absence of Segregated Import data 16. We humbly reiterate our request to provide us the segregated import data used for initiation and for the purpose of the disclosure statement (proposed final findings) so that we can appropriately comment on the injury parameters. You would kindly appreciate that in the absence of the segregated data, our rights to comment upon the same have been severely jeopardized. We reserve our right to place our comments on the same as soon as we receive the requested information for the Authority. We also request you to kindly provide us the soft copy of the import data as the same already forms a part of the official record of the Authority. 19. The final findings were notified by the Designated Authority on 13 February, 2018 and the relevant portion is as follows: L.3 Examination by the Authority 128. The Authority notes that most of the submissions are repetitive in nature and were already examined suitably, adequately and appropriately addressed earlier in the disclosure statement. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two strips of wood or three strips of Wood. Middle Layer which forms core of the overall construction and it can be made of fibre board (MDF/HDF) . Bottom Layer is real wood which provides support to the overall construction. The PUC can however be of two or three layers also . 20. It is in the light of the above, that the submissions advanced by learned Counsel for the Appellants that two layer products were not to be included since the product under consideration was restricted to wooden flooring having three layers with top and the bottom layer of the real wood and middle layer of ply wood or fibre board has to be examined. 21. As noticed above, the application that was filed by the domestic producer for initiation of anti-dumping duty made reference to Veneered Engineered Wooden Flooring and Wooden Flooring was described as having three layers of wood. The top layer was stated to be of real wood; the middle layer could be either solid wood or fibre board and the bottom layer was again to be of real wood. This is also clear from the diagram indicated in paragraph 7 of the application. It clearly shows top layer (decorative veneer); middle layer (solid wood of fibre b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic producer that it had not produced or sold products having inlay work on the top layer. 25. The final findings of the Designated Authority do not address the aforesaid issues raised by the Appellants in the comments filed to the disclosure statement. No finding has been recorded by the Designated Authority as to how two layer products having fibre board as the bottom layer could be included in the product under consideration because what was stated by the domestic producer as also in the Notification initiating anti-dumping duty was that the bottom layer has necessarily of real wood. It appears that in the final findings, the Designated Authority merely reiterated what was stated in the disclosure statement that the product under consideration can be of two or three layers without examining that the Appellants had sought exclusion of two layer products which had the bottom layer of ply board. The Notification issued by the Central Government on 27 March, 2018 and the subsequent corrigendum Notification issued on 10 May, 2018 also do not address this issue. 26. It is, therefore, clear that the scope of the product under consideration has been enlarged by the Designated Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of that grade DBM from PR China and the injury, if any, experienced by the Indian DBM industry. 30. The same view was taken by the Anti-Dumping Bench of the Tribunal in Oxo Alcohols Industries Association vs Designated Authority 2001 (130) ELT 58 (Tri.-Del). The relevant paragraph is reproduced below: 8. Now coming to appeal C/411/2000, the question to be tackled is whether Normal Hexanol is a like article like the articles under investigation. As stated earlier, Normal Hexanol has been included in the other categories of the subject under investigation only on the ground that it is also being imported into India. That fact by itself cannot make Normal Hexanol a like article. In the final finding the Designated Authority categorically observed : It is noted that though normal Hexanol may not be a substitute for 2-Ethyl Hexanol, the products these are used to manufacture substitute each other and hence exclusion of one from anti-dumping duty investigation will have an impact on the usage of others. From this it is clear that the Designated Authority has not come to the conclusion that Normal Hexanol and other Oxo Alcohols are interchangeable or can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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