TMI Blog2022 (5) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... ined for consumption in the exporting country - Sub-section (5) of section 9A of the Tariff Act provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuance or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension. What also transpires from the final findings is that continued dumping by the subject countries in India has continued despite the imposition of anti-dumping duty. The designated authority, while examining the aspect of likelihood of injury , recorded a finding that likelihood or recurrence of injury to the domestic industry was not strong enough to warrant continuation of duties beyond 11 years - What was required to be examined by the designated authority was whether withdrawal of anti-dumping duty would lead to continuance or recurrence of dumping as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DILIP GUPTA, PRESIDENT, MS. SULEKHA BEEVI C.S., MEMBER (JUDICIAL) and MR. P.V. SUBBA RAO, MEMBER (TECHNICAL ) Dr. Abhishek Manu Singhvi, Senior Advocate, Ms. Reena Khair, Shri Rajesh Sharma and Ms. Shreya Dahiya, Advocates for the Appellant Shri Bhargav Mansatta, Shri Dhruv Gupta and Ms. Shivani Bhatnagar, Advocates for the Respondent Nos. 3, 5 8 Shri Jitender Singh, Shri Sharad Bhansali Shri Akshay Soni, Advocates, Shri Jinendra Singhvi, Consultant, Shri Shailendra Dubey, Chartered Accountant for Respondent Nos. 6, 10, 16, 17, 18 19 Shri Ameet Singh and Ms. Albeena Wali, Advocates for Designated Authority Shri Nagendra Yadav, Authorized Representative for the Revenue Mr. Jitender Singh, Mr. Sharad Bhansali, Mr. Akshay Soni, Mr. Bhargav Mansatta, Mr. Dhruv Gupta and Ms. Shivani Bhatnagar Advocates, Mr. Jinendra Singhvi, Consultant and Shri Sailendra Dubey, Chartered Accountant for the appellants Ms. Reena Khair, Shri Rajesh Sharma and Ms. Shreya Dahiya, for the Domestic Industry Mr. Ameet Singh and Ms. Albeen Wali, Advocates for the Designated Authority Mr. Rakesh Kumar, Authorised Representative for the Revenue. ORDER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 51490 of 2021. 5. Anti-Dumping Appeal No. 51868 of 2021 has been filed by the Tamil Nadu Spinning Mills Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 17 in Anti-Dumping Appeal No. 51490 of 2021. 6. Anti-Dumping Appeal No. 51869 of 2021 has been filed by Pallava Textiles Private Limited claiming itself to be an importer/user of the subject goods in India imported by the appellant through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 10 in Anti-Dumping Appeal No. 51490 of 2021. 7. Anti-Dumping Appeal No. 51872 of 2021 has been filed by PT Asia Pacific Rayon. It claims to be a producer and exporter of the product in Indonesia, for which product anti-dumping duty was recommended to be withdrawn by the designated authority in the final findings dated 31.07.2021. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prices despite anti-dumping duty being in force; (b) The imports from subject countries are significant and adversely impacting the performance of the domestic industry, as import prices are below the Non-Injurious Price [NIP]; (c) There is a strong likelihood of continuation or recurrence of injury as about 68% of exports from China and 88% of exports from Indonesia to third countries are at injurious prices; (d) Based on the Report of Wood Mackenzie in the Red Book 2020, the surplus capacity available is 36% in China and based on Hawkins Wright September 2020 Report, the surplus capacity in Indonesia is 51%; (e) The domestic industry has provided adequate evidence of dumping, injury, causal link, likelihood of continuation or recurrence of dumping and injury, as was reasonably available to the domestic industry and thus discharged its obligations under section 9A (5) of the Tariff Act read with rule 23(1B) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [Anti-Dumping Rules]; 11. A notification dated 22.02.2021 was thereafter issued by the Ministry of Commerce I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cribed within the time-limit set out below. 23. Any other interested party may also make its submissions relevant to the investigation in the form and manner prescribed within the time-limit set out below. 12. As the anti-dumping duty imposed by the notification dated 08.08.2016 was to come to an end on 07.08.2021 and the designated authority had not given the final findings, the Central Government, by a notification dated 30.06.2021, extended the imposition of anti-dumping duty upto 31.10.2021. 13. In terms of rule 6 of the Anti-Dumping Rules, all interested parties including foreign exporters and producers, were given opportunity to furnish information in the prescribed questionnaire format. The questionnaire called upon the exporters to provide not only company specific information, but also details of total China/Indonesia production, sales of other producers in the domestic market, total demand in China/Indonesia, other producer s exports to third countries, etc. As regards China, the designated authority sent the exporter questionnaires to twenty eight companies in China, out of which only one company, Sateri (Fujian) Fibre Co., Ltd. filed its questionnaire respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of dumping from subject countries. However, the likelihood of recurrence of injury is not strong enough to warrant continuation of duties beyond 11 years . The information on record shows that there are insignificant surplus capacities with the responding producers/exporters in subject countries. Imports from subject countries have reduced during the POI. Imports from subject countries are not undercutting the prices of domestic industry. The landed price of imports during the POI is significantly higher than the cost of sales, selling price and NIP of the domestic industry. Therefore, the imports cannot be said to be causing any price effect on the domestic industry. (emphasis supplied) 17. The interested parties, including the appellant filed their comments to the disclosure statement and, thereafter, the designated authority, in the final findings dated 31.07.2021, concluded that there was no justification for recommending continuation of anti-dumping duty. The conclusion is reproduced below: M. Conclusion 154. Having regard to the contentions raised, information provided, submissions made and facts available before the Authority as recorded in these finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port of subject goods from the subject countries recommended vide Notification No. 15/09/2015-DGAD dated 8th July 2016 and enforced vide Customs Notification No. 43/2016-Customs (ADD) dated 8th August 2016 which was further extended vide Customs Notification No. 39/2021-Customs (ADD) dated 30th June 2021 till 31st October 2021. (emphasis supplied) 19. Thereafter, the Central Government issued a notification dated 12.08.2021 rescinding the notification dated 08.08.2016, which was last amended by notification dated 30.06.2021. The said notification dated 12.08.2021 is reproduced below: G.S.R. 572(E). In exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), the Central Government revokes the anti-dumping duty imposed on Viscose Staple Fibre excluding Bamboo Fibre , falling under tariff item 5504 10 00 of the First Schedule to the said Act, originating in or exported from People's Republic of China and Indonesia, and imported into India and hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 43/2016-Customs (ADD) dated the 8th August, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f injury on the revocation of anti-dumping duty has to be ascertained from the sale prices of the exports to third countries, where no anti-dumping duties are in operation. Although the designated authority notes that exports to third countries are at injurious prices, it fails to draw the obvious conclusion that on expiry of the duty, the imports are likely to come to India at third country export prices, which would result in significant injury to the domestic industry; (iv) The likelihood of diversion of exports from other markets to India is to be examined with reference to the price attractiveness of the Indian market. The export price to third countries are much lower than the export prices from the subject countries to India. Hence, on the expiry / revocation of the anti-dumping duty, the possibility of diversion of substantial quantities to India is extremely high. Thus, if anti-dumping duty is revoked, India becomes the most attractive destination for dumping, since India yields much better prices; (v) Likelihood of injury is also established from the fact that about 62% of the exports from China, and about 24% exports from Indonesia to India, are below the NIP o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in China and Indonesia. By relying on the information of a small subset of the total exporters and producers in China (about 5% to 10% or 1 out of 28 producers identified in the final findings) for the likelihood analysis, the authority has reached erroneous conclusions; (ix) Based on the information furnished by Sateri Group in its exporter questionnaire response, the designated authority in the disclosure statement holds that there is significant surplus capacity available with the Sateri Group. After the issuance of disclosure statement, the designated authority appears to have collected fresh information from the Sateri Group, not shared with domestic industry, to conclude that there is no surplus capacity with the Sateri Group. The stage for collection and verification of information under rule 6 read with rule 8 is over prior to the issuance of disclosure statement under rule 16. The designated authority could not have accepted new evidence at the fag end of the investigations, that also without making available such evidence to opposing interested parties, for concluding that there is no surplus capacity available with the Sateri Group; (x) In the final findings, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capacity, it follows that the surplus capacity is likely to be used for production of goods for export to the Indian market. The designated authority failed to consider that the surplus capacity was significant, having regard to the demand and consumption in India. Again the overwhelming bulk of the excess capacity will undoubtedly be dumped in India; (xiv) Instead of examining such relevant aspects, the designated authority observed that no producer can be expected to operate at 100% capacity. It has also accepted that the idle capacity for PT Asia Pacific Rayon is high due to the covid pandemic. The designated authority failed to consider that Covid Pandemic affected the production as well as the demand for the products. In a situation of declining demand, it was imperative for the designated authority to ascertain whether there were alternate markets for the products once the unit resumes operation at full capacity. The designated authority based its conclusions on extraneous factors, not relevant to the proceedings; (xv) In the course of the investigations, including up to the stage of issuance of the disclosure statement, the designated authority based its conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of oral hearing. Thus, the same nullified the final findings dated 17.05.2010 and the consequent notification dated 26.07.2010; (iii) The designated authority, by notification dated 10.04.2012 issued fresh final findings as per remand directions of the Tribunal. The final findings issued post remand by the Tribunal confirmed the earlier final findings dated 17.05.2010, but no notification was issued by the Central Government accepting the recommendation dated 10.04.2012 of the designated authority; (iv) Power to extend period under section 9A(5) of the Tariff Act could only be exercised during the life of the duties. Gap in continuation of duty invalidated continuation of duty assuming that the earlier notification dated 26.07.2010 was valid till 25.07.2015, a hiatus was created in continuation of duties when the notification dated 06.08.2015 was issued, which extended the anti-dumping duty till 25.07.2016. In other words, there was no duty between 26.07.2015 and 05.08.2015. It is settled law that non-existent levy could not have been extended in the exercise of power under section 9A(5) of the Tariff Act; (v) The second extension of duties by notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v) The likelihood factors unfounded in law that have been mentioned by the respondent in the Appeal are not required to be dealt with; (xv) The issues relating to the violation of principle of natural justice are baseless; (xvi) The appellant failed to lead any evidence to demonstrate continuation or likelihood of injury vis- a-vis the product under consideration in the present investigation i.e., grey VSF. All the documents presented by them were for a vast variety of products and did not contain exclusive information with respect to the product under consideration. Further, no effort was made by the appellant to ever justify that the information relating to VSF as a whole can be taken for making an objective examination of the product under consideration, which was only one of the types of VSF; and (xvii) In any case, the evidence and arguments presented by the domestic industry were only with respect to the capacities in China. The only argument advanced by the appellant was that the capacity of one producer in China cannot be equated with the total capacity of production under consideration in China. In other words, no argument was made by the appellant to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is required to conduct an objective examination of facts after considering all the facts and information on record; (iv) The final findings were issued by the designated authority after elaborate investigation and after reviewing complete information filed by domestic industry and by other interested parties containing factual and legal basis for recommending discontinuation of anti-dumping duty; (v) The final findings note that in absence of guidelines under Anti-Dumping Rules regarding likelihood analysis to be conducted in a sunset review, Annexure II, paragraph (vii) of the Anti-Dumping Rules should be applicable for conducting likelihood analysis. The final findings issued by the designated authority analysed all the criteria mentioned in Annexure II, paragraph (vii) of the Anti-Dumping Rules and also other relevant factual information for examining likelihood of injury; (vi) Various interested parties participating in the investigation raised concerns regarding the authenticity of Hawkins Wright Report provided by the applicant for the purpose of likelihood analysis. Since there are only three producers of subject goods in Indonesia namely (i) PT Asia Pacific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to such article. 27. Sub-section (5) of section 9A of the Tariff Act provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuance or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension. The provisions of sub-section (5) of section 9A of the Tariff Act are reproduced below: 9A(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e (2) of rule 11 of the Anti-Dumping Rules is reproduced below: Rule 11: (i) xxxxxxxxx (ii) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. 30. Rule 11(2) refers to the principles set out in Annexure II to the Anti-Dumping Rules which deal with the principles for determination of injury and the relevant portion of the said Annexure is reproduced below: Principles for determination of injury The designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, hereinafter referred to as injury and causal link between dumped imports and such injury, shall inter alia, take following princip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti-dumping legislation or regulations. Article 11 Duration and Review of Anti-Dumping Duties and Price Undertakings 11.1 An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury. 11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rment has been made by the appellant in this appeal that may permit the appellant to file the appeal on behalf of Grasim Industries, nor there is any power of attorney or letter of authorization by Grasim Industries permitting the present appellant, which is an association, to file the appeal. 34. Learned senior counsel appearing for the appellant however pointed out that it is the appellant association which had filed an application seeking initiation of the sunset review investigation stating clearly that Grasim Industries, which was the domestic industry, was the only producer of the subject goods in India. It was further stated that the applicant considers that the cessation of the present anti-dumping duty was likely to lead to continuation of dumping and injury to the domestic industry. It was also stated in the application that Grasim Industries had provided the required information and should be considered as the domestic industry. It was on the basis of this duly substantiated application that a sunset review investigation was initiated by notification dated 22.02.2021. The designated authority, in its final findings dated 31.07.2021, recommended withdrawal of anti-dump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n years in the absence of special circumstances. The contention is that the general rule is that anti-dumping duty would expire at the end of five years, but continuance of anti-dumping duty beyond five years is an exception to the general rule carved out by way of proviso to section 9A(5) of the Tariff Act. Learned counsel pointed out that anti-dumping duty was originally imposed by notification 26.07.2010 and the same has been in force for more than ten years and, therefore, in the absence of special circumstances, the appellant cannot seek continuance of anti-dumping duty for another period of five years. 37. It is not possible to accept this contention advanced on behalf of respondent no s. 3, 5 8. Neither article 11.3 of the 1994 Agreement nor section 9A(5) of the Tariff Act require any existence of special circumstances for extension of anti-dumping duty beyond a period of five years. The pre-requisites for every extension of duty, whether for five years or upto five years, are the same and they are that there should be a likelihood of continuation or recurrence of dumping and injury. 38. Shri Jitendra Singh learned counsel for the respondent also submitted that Anti- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e domestic industry during the period of investigation was reasonable and that the imports would not cost any price and volume effect on the domestic industry. The designated authority also observed that there were insignificant surplus capacities with the responding producers/exporters in the subject countries, which capacities could be used to increase the exports to India in the event duty was revoked. The Central Government thereafter issued a notification dated 12.08.2021 rescinding the earlier notification dated 08.08.2016, which had imposed anti-dumping duty. 43. It has, therefore, to be examined whether the likelihood of continuation or recurrence of injury would warrant continuation of anti-dumping duty for a further period of five years. 44. In regard to the likelihood of continuation or recurrence of injury, the designated authority noted the four factors contained in clause (vii) of Annexure II of the Anti-Dumping Rules, as also other relevant factors that could have a bearing on the likelihood of continuation or recurrence of dumping and its consequent injury to the domestic industry. In this connection, it examined the import of subject goods from subject countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the projected or likely volume and prices at which imports would be made on the expiry of the anti-dumping duty and its consequential impact on the domestic industry. Learned senior counsel pointed out that the degree and extent of dumping and consequent injury to the domestic industry during the period of investigation is not of much relevance, but still it has been relied upon to a great extent by the designated authority. 48. Learned counsel appearing for the respondents have refuted the aforesaid submissions advanced on behalf of the appellant and it has been submitted that the designated authority, after a careful consideration of the materials on record, recommended withdrawal of anti-dumping duty on import of subject goods from the subject countries. The contention of the learned counsel for the respondent is that all the appropriate factors mentioned in paragraph (vii) of Annexure II of the Anti-Dumping Rules have been analysed in the final findings of the designated authority. 49. Paragraph (vii) of Annexure II reads as follows: (vii) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Unlike original investigations, sunset reviews are prospective in nature, as they focus on the likelihood of the continuation or recurrence of dumping and injury, in case antidumping duties are removed. With respect to the question whether dumping is likely to occur in the event that the anti-dumping duties are removed, the D.A. has to consider relevant economic facts which might indicate that in the event the anti-dumping duty is removed, dumping will recur. With respect to the injury determination, if the anti-dumping duty has had the desired effect, the condition of the domestic industry would be expected to have improved during the period the anti-dumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers . Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted. 14. Sunset review entails a likelihood determination in which present levels of dumping is obviously not so relevant as is the likelihood of continua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch existed at the time of imposition of antidumping duty have altered to such an extent that there is no longer justification for continued imposition of duty or to ascertain that if such duty is revoked there is imminent danger of the material injury to the domestic industry. The inquiry is limited to the change in the various parameters like the normal value; export price, dumping margin, fixation of non-injurious price and injury to domestic industry. The sunset review is undertaken for the purpose of not for imposition of anti-dumping duty but to see whether the revocation of such anti-dumping duty, dumping would increase and whether the domestic industry will suffer. (emphasis supplied) 56. In Borax Morarji Limited vs. Designated Authority [2007 (215) E.L.T. 33 (Tri. - Del.), CESTAT], the Tribunal noted that: 10. With respect to the injury determination, if the anti-dumping duty had the desired effect, the condition of the domestic industry would be expected to have improved during the period the antidumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on proj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o continuance or recurrence of dumping and injury. Rule 23 of the Anti-Dumping Rules provides that though the definitive anti-dumping duty shall be effective for a period not exceeding five years from the date of its publication, but an exception has been culled out namely that the designated authority can extend the period provided the designated authority comes to a conclusion upon a duly substantiated request by the domestic industry that the expiry of the anti-dumping duty would likely lead to continuation or recurrence of dumping and injury to the domestic industry. It also provides that rule 11 of the Anti-Dumping Rules would also be applicable to sunset reviews and rule 11 of the Anti-Dumping Rules requires the designated authority to determine threat of injury to the domestic industry taking into account all relevant facts in accordance with the principles set out in Annexure II of the Rules. Clause (vii) of Annexure II provides that a determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility and that the change in circumstances which would create a situation in which the dumping would cause injury mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... *** 50-60 PT Asia Pacific Rayon *** *** *** 80-90 PT South Pacific Viscose *** *** *** 80-90 130. It can be seen that 50-60% of the exports to third countries by the participating producer/exporter from China PR are at prices below the NIP. In case of Indonesia, 80-90% of exports to third countries by APR and SPV are at prices below the NIP. 60. Learned senior counsel for the appellant also submitted that the likelihood of diversion of exports from other markets to India has to be examined with reference to the price attractiveness of the Indian market. In this connection learned senior counsel pointed out that the designated authority itself found that 55-65 percent of the exports to third countries by the participating producer/exporter from China PR are at prices below the export price to India and in the case of Indonesia 65-75 percent of exports to third countries by PT Asia Pacific Rayon are at prices below the export prices to India and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation were already at injurious prices but still the designated authority failed to draw a conclusion that future prices would also be below NIP and would cause significant injury to the domestic industry. Paragraph 133 of the final findings, which have been placed in this connection, are is reproduced below: 133. The Authority has examined the volume of imports which are below the NIP and NSR of the domestic industry and is shown below. It is seen that there are significant imports below the NIP and NSR of the domestic industry. SN. Particulars UOM China PR Indonesia 1. Total imports (excluding imports for April-June 2020 quarter) MT 2,112 14,526 2. Imports below NIP MT 1,308 3,539 3. Imports below NSR MT 1,331 4,967 4. % of injurious import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority had examined the surplus capacity for these countries as a whole and found surplus capacity of 36% in China and 64% in Indonesia. It needs to be noted that on the basis of the information furnished by the Sateri Group in China, the disclosure statement recorded that there are significant surplus capacity available with the Sateri Group, but after the disclosure statement the designated authority concluded that there is no surplus capacity with the Sateri Group for the reason that the capacity utilisation of the Sateri Group was low since the production had started only in December 2019. It was incumbent on the designated authority to have examined the relevant factors, including ascertaining whether the production of the Sateri Group in the post period of investigation was exported to India and at what prices. The same error appears to have been committed by the designated authority in the case of PT Asia Pacific Rayon, Indonesia. The exporting companies from Indonesia also admitted surplus capacity in the range of 0-10 percent for PT Asia Pacific Rayon and 40-50 percent for PT South Pacific Viscose. 65. The information of the participating producers in China constitutes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese report with third parties, the same could not have been disclosed but a non-confidential version of the report had been supplied. In this connection reliance has been placed on article 6.5 of the 1994 Agreement, which is reproduced below: 6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 71. The designated authority correctly allowed the claim for confidentiality made by the appellant in terms of rule 7 of the Anti-Dumping Rules. 72. The appellant had also provided a non-confidential summary of the information, which is as follows: S.N. Particulars 2018 2019 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he surplus capacity of the producers to those who had exported the goods during the period of investigation instead of examining the capacity of both China and Indonesia as a whole. 75. Learned authorised representative for the Department has, however, placed reliance upon the decision of the Delhi High Court in Eveready Industries India Ltd. to contend that the Tribunal should refrain from deciding the correctness of the final findings of the designated authority. 76. This decision would not come to the aid of the respondent for the reason that the High Court had, in a Writ Petition under article 226 of the Constitution, refused to interfere with the final findings of the designated authority since the final findings addressed all the legal requirements. This decision does not hold that the final findings of the designated authority cannot be examined by the Tribunal. The relevant observations of the High Court, contained in paragraph 42 of the judgment, are reproduced below: 42. The Court cannot don the mantle of an economic analyst to decide whether the DA adopted the correct approach; as long as the final findings addressed all the legal requirements, and considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation, the applicant requested Authority to exclude Modal Fibre, Non-Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre. The exclusion request was accepted by the Authority at the time of the initiation of the investigation and accordingly the scope of the product under consideration was restricted/ narrowed down. The Authority notes that there is no bar either under the Act or under the Rules on narrowing down the scope of product under consideration in a sunset review particularly when the domestic industry has itself requested for narrowing down the scope of production under consideration as they no longer need protection on the excluded grades/types. 15. The Authority has restricted the scope of product under consideration in several sunset review investigations in the past at the time of initiation. Further, it has not been established by the interested parties how curtailment of the scope of the product under consideration has caused prejudice to their interests. The Domestic industry did make the request for limiting the scope of the product under consideration at the initiation stage itself. Had the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant to exclude Modal Fibre, Non- Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre, the Authority has considered the request particularly when the applicant itself is not interested in extension of duty on the above product types which were earlier within the scope of the product under consideration. Therefore, by applying Article 11.1 which sets a guiding principle for review investigations and Rule 23(1), which is verbatim Article 11.1 for the Indian Review Investigations, the Authority has restricted the product scope applying the principle to the extent necessary as envisaged under Rule 23(1) at the stage of initiation itself preventing the futile exercise by the Authority. Had the Authority initiated the review investigation on the above said products despite the request of the domestic industry, it would have been a waste of resource and time. 82. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the designated authority should re-examine whether the cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sunset review was for 2017-18, 2018-19, 2019-20 and 01.10.2019 to 30.09.2020. This issue has also been correctly appreciated by the designated authority in its final findings and the relevant portion is reproduced below: 34. Interested parties have referred to the decision of the CCI. It is noted that CCI decision has been challenged by the domestic industry before Appellate Court and the matter is sub-judice and has not yet attained any finality. Moreover, if there are any contraventions of the provisions of Competition Act, it is for the concerned authority to take appropriate action thereon. Any decision in that matter would not prejudice objective examination of the need for continuation of duty, which is based on the likelihood of continuation or recurrence of dumping and injury in the event of revocation of the existing anti-dumping duty. The Authority also notes that the period examined by CCI for determining anti- competitive behaviour of Grasim Industries Limited was upto financial year 2016-17. The injury period being examined by the Authority in the present sunset review investigation is 2017-18, 2018-19, 2019-20 and 1st October 2019 to 30 September 2020. 87. Ant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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