TMI Blog2022 (8) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation. As could be seen from the averments in the Petition as well as the Rules, the finding has to be given by the Directorate General of Anti-Dumping and Allied Duties in the Department of Commerce, Ministry of Commerce and Industry, Government of India. Subsequently, there is a clarification issued by the Directorate General of Anti-Dumping and Allied Duties on 1st February, 2018 which is quoted earlier. Therefore, it is quite clear that clad as well as clad with compatible non-clad or unclad aluminium foil has been excluded from anti-dumping duty. Respondent No.4 therefore was not justified in insisting on payment of anti-dumping duty for clearance of unclad or non-clad consignment of aluminium foil, more so, when the same product is allowed to be imported from other ports without insisting on payment of levy of anti-dumping duty. Thus, it is declared that levy and collection of ADD on unclad or non-clad aluminium foils for automobile industry imported from China PR in terms of Notification No.23/2017-Cus.(ADD) dated 16.05.2017, is incorrect and contrary to Section 9A read with 9B(b)(iii) of the Customs Tariff Act, 1975 and read with paragraph(s) 9(ii)(c), 12, 31, 79 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in India and hence, there will be no question of injury to the domestic industry. Based on the representations, domestic industry agreed to exclude both clad as well as unclad/non-clad aluminium foils from the purview of the investigation itself since the said imported goods were not manufactured in India. As stated in the Petition, these goods have been exempted from levy of safeguard duty vide Notification dated 19th June, 2009. The investigation culminated into issuance of Final Findings dated 10th March, 2017, copy whereof is annexed at Exhibit B to the Petition, by Respondent No.5 with respect to levy of additional anti-dumping duty on import of aluminium foil from China PR. The Final Findings also record the acceptance of the domestic industry to exclude the following products from scope of the investigation : Aluminium Manganese Silicon based and/or clad Aluminium Manganese Silicon based alloys, whether clad or unclad: with post brazing yield strength greater than 35 MPA, falling under tariff heading 7607 for use in heat exchangers including radiators, charge air coolers, condensers, oil coolers, heater cores, evaporators, heat ventilation and air c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bruary, 2018 reads as under :- 4. In the aforesaid final findings read with the customs notification, eight (8) exclusions have been granted from the product scope. The exclusion (vii) as given in the aforesaid notification is worded as follows :- Clad with compatible non clad Aluminium Foil : Clad with compatible non clad Aluminium Foil is a corrosion-resistant aluminium sheet formed from aluminium surface layers metallurgically bonded to high-strength aluminium alloy core material for use in engine cooling and air conditioner systems in automotive industry; such as radiator, condenser, evaporator, intercooler, oil cooler and heater. 5. The aforesaid exclusion was granted as the domestic industry had admitted that it could not produce the above products, namely i) clad aluminium; and ii) compatible unclad aluminium. This is also recorded in the final findings at several places, extracts of which are given below: ii. Exclusion accepted by the domestic industry : c. Clad with Non Clad Aluminium - Aluminium Manganese Silicon based and/or clad Aluminium Manganese Silicon based alloys, whether clad or unclad : with post brazing yie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... situation of dumping or export subsidization; (b) the Central Government shall not levy any countervailing duty or anti-dumping duty - (i) under section 9 or section 9A by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes; (ii) under sub-section (1) of each of these sections, on the import into India of any article from a member country of the World Trade Organisation or from a country with whom Government of India has a most favoured nation agreement (hereinafter referred as a specified country), unless in accordance with the rules made under sub-section (2) of this section, a determination has been made that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India; and (iii) under sub-section (2) of each of these sections, on import into India of any article from the specified countries unless in accordance with the rules made under sub-section (2) of this section, a preliminary finding has been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules, the finding has to be given by the Directorate General of Anti-Dumping and Allied Duties in the Department of Commerce, Ministry of Commerce and Industry, Government of India. In such a preliminary finding to be made, before anti-dumping duty is levied by the Government of India the following preconditions have to be met :- (a) it has to be an import into India; (b) of an article from a specified country; (c) there has to be a preliminary finding of subsidy or dumping given in the country of export; (d) that such a subsidy or dumping would result in consequent injury to domestic industry; and (e) a further determination that a duty is necessary to prevent injury being caused during the investigation. 11. Therefore, unless these pre-conditions are complied with, the Central Government shall not levy any anti-dumping duty. Admittedly, there is no such preliminary finding for clad or unclad or non-clad aluminium foil. On the contrary, the report issued by the Directorate General of Anti-Dumping and Allied Duties on 10th March, 2017, provides the following exclusions have been accepted by the domestic industry :- c. Clad with non clad Alumini ..... X X X X Extracts X X X X X X X X Extracts X X X X
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