TMI Blog2006 (3) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... nd not 39; that as per note no. 2(h) of Chapter 39, synthetic rubbers and articles thereof, which are covered under Chapter 40, do not fall under Chapter 39. The Designated Authority had recorded a firm finding that "Elastomer Resin KHS 68" was not covered for the purpose of imposing duty. The finding recorded by the Designated Authority was categorical and not a clerical omission, as has been observed by the Tribunal. It was not correct on the part of the Tribunal to hold on its own motion that "this is a clerical omission which is required to be corrected." Finding recorded by the Tribunal in this respect deserves to be set aside. We do so. Finding recorded by the Designated Authority in this respect is restored. Dealing with the penultimate argument, it may be stated that the Designated Authority had imposed the duty in rupee value but the Tribunal converted the same in US dollar terms, without there being any prayer for such conversion by either of the parties. Learned counsel appearing for the Department conceded that the Tribunal was not justified in converting the anti-dumping duty in US dollar terms and, after taking instructions, stated that he has no objection to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was further alleged that in spite of the cost of production in the subject countries, exporters from there were reducing their export price consistently which has forced the domestic industry to reduce its selling price of various grades of SBR. That the selling price realised by the domestic industry is so low that it is unable to recover even the cost of production. That the dumped materials had retarded the growth of domestic industry in spite of installation of new plant and machinery. The expansion programme could not be commissioned as the dumped imports threatened to cause injury for future also due to sufficient freely disposable production capacity in the subject countries. 4.The Designated Authority, on the basis of the application filed by Respondent No. 3 initiated anti-dumping investigation against the subject countries concerning imports of SBR classified under customs sub-heading 4002.19 of Schedule I of the Tariff Act, originating in or exported from the subject countries. The period of investigation was fixed by the Designated Authority for 17 months, i.e., from 1st April, 1996 to 31st August, 1997. 5.The Designated Authority on the basis of the material colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings, the Tribunal imposed fixed duties. Tribunal imposed fixed duty in respect of 1500 and 1700 series of SBR imported from Korea Kumho. By a Corrigendum Miscellaneous Order No. 1/2000-AD (which was certified on 16th of February, 2000 and communicated to the appellant on 21st February, 2000), anti-dumping duty was also imposed in respect of the 1900 series of SBR. 8.The submission of the counsel appearing for the appellant that the Designated Authority while assessing injury to the domestic industry in case of certain parameters, had taken into consideration the data relating to the year immediately preceding the period of investigation was rejected by the Tribunal by observing, thus: "...... Even though data for 1994-95 was also noted in the work-sheet, assessments were made based on the data relating to the year 1995-96 only. Compared to 1995-96 there was noticeable increase in stock of various grades of SBR with the domestic industry; that there was considerable increase of imports from subject countries; there was loss in the profitability on the manufacture of SBR and in relation to average realization. On going through those data we are convinced that the domestic indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d party. 12.We do not find much substance in the submission relating to the first point. The Tribunal in its order has noted that even though data for the year 1994-95 was also noted in the work-sheet, assessment was based on the data relating to the year 1995-96 only. In order to satisfy ourselves, we sent for the original confidential file. After going through the same, we find that though data for 1994-95 was noted by the Designated Authority in the work-sheet, but the assessment was made on the basis of the data relating to the year 1995-96 only. Compared to 1995-96 there was considerable increase in the stock of various grades of SBR with the domestic industry. There was a loss in the profitability in the manufacture of SBR in relation to the average realization. Having gone through the confidential records produced before us and the data for the years 1995-96 and 1996-97, we are satisfied that the domestic industry suffered drastic decline in all the relevant parameters during the period of investigation compared to those of the immediately preceding financial year 1995-96. We find no justification to take a view other than what has been taken by the Designated Authority an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 1000 series is not produced by the petitioner and thus are not product under consideration." Para 7 of the final finding of the Designated Authority15. reads thus: "The Authority observes that, in the preliminary findings it was inter alia held that product under consideration in the present investigation is Styrene Butadiene Rubber (SBR) originating in or exported from the subject countries classified under Customs sub-heading 4002.19 of the Customs Tariff Act which was explained at para 5 of the preliminary findings dated 21st January, 1999. The Authority had inter alia held that product under consideration is SBR of 1500 series, 1700 series and 1900 series under Customs sub-heading 4002.19 of Customs Tariff Act. None of the interested parties has raised any argument in this regard and therefore the Authority confirms it preliminary findings in this regard. The Authority notes that petitioner is claiming that SBR is also being cleared under customs chapter 39 Entry No. 3903.90 (polymers of styrene in primary forms) and therefore the anti-dumping duty should be imposed under this head also. On the contrary it is argued by exporter and importer that chapter 39 relates to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect of Customs Heading 4002.19 only; that Chapter 39 covers "Plastic and Articles thereof" whereas Chapter 40 covers "Rubber and Articles thereof" Styrene Butadiene Rubber, as the name suggests, is a synthetic rubber and would be covered under Chapter 40 and not 39; that as per note no. 2(h) of Chapter 39, synthetic rubbers and articles thereof, which are covered under Chapter 40, do not fall under Chapter 39. The Designated Authority had recorded a firm finding that "Elastomer Resin KHS 68" was not covered for the purpose of imposing duty. The finding recorded by the Designated Authority was categorical and not a clerical omission, as has been observed by the Tribunal. It was not correct on the part of the Tribunal to hold on its own motion that "this is a clerical omission which is required to be corrected." Finding recorded by the Tribunal in this respect deserves to be set aside. We do so. Finding recorded by the Designated Authority in this respect is restored. 17.Dealing with the penultimate argument, it may be stated that the Designated Authority had imposed the duty in rupee value but the Tribunal converted the same in US dollar terms, without there being any prayer for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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