TMI Blog2006 (3) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... rs listed in para (iv) of Annexure-II. This contention had not been urged either before the Designated Authority or the Tribunal and, therefore, cannot be permitted to be urged for the first time in these appeals. Further, the records produced before us unambiguously shows that all the relevant parameters had been considered. Appeal dismissed. - 773 of 2001 - - - Dated:- 23-3-2006 - Ashok Bhan and G.P. Mathur, JJ. [Judgment per : Ashok Bhan, J.]. - Leave granted in Special Leave Petition (Civil) Nos. 22905-22906 of 2003. 2.This judgment shall dispose of Civil Appeal No. 773 of 2001 against the Final Order No. 22 of 2000-AD in Appeal No. C/330/97-AD, dated 2-2-2000 passed by the Customs, Excise Gold (Control) Appellate Tribunal, New Delhi [for short "the Tribunal"]; Civil Appeals arising out of SLP © Nos. 22905-22906 of 2003 against the Final Order No. 10/03-AD and Misc. Order No. 9/03-AD, dated 13-6-2003 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi in Appeal No. C/586/2001-AD with C/Misc./100/2002-AD; Civil Appeal Nos. 7159-7161 of 2004 against the Final Order Nos. 14-16/2004-NB(A), dated 1-7-2004 passed by the Customs, Excise and Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby it became permissible for the Central Government to impose Anti-Dumping duty on importation of foreign articles which were found to be dumped in India at a price which was lower than the normal price of such imported goods in their country of manufacture/origin. It defines the margin of profit, normal value and export price. It also provides for duration of levy of anti-dumping duty, its review from time to time as well as its continuance for a further period of five years, if the cessation of duty is likely to lead to continuance or recurrence of dumping and injury. This duty is over and above any other duty in force. 6.Section 9(A) of the Tariff Act reads as under : "9A. Anti-dumping duty on dumped articles. - (1) Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. - For the purposes of this section, - (a) " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined : - (a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti-dumping duty; and (b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced. Notwithstanding anything contained in(2A) sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent export-oriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation: - For the purposes of this section, the expressions "hundred per cent export-oriented undertaking", "free trade zone" an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty. Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. The provisions of the Customs Act, 1962(8) (52 of 1962) and the rules and regulations made thereunder, relating to, the date for determination of rate of duty, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." [Emphasis supplied] 7.Method of determination of the injury and the procedure to be followed is provided in Section 9B of the Tariff Act, relevant portion of which is extra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case such producers may be deemed not to form part of domestic industry. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if - (i) the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - For the purposes of this clause, - (i) producers shall be deemed to be related to exporters or importers only if, - (a) one of them directly or indirectly controls the other; or (b) both of them are directly or indirectly controlled by a third perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterested parties, begins. Other interested parties, who are likely to be affected by the duty are also heard and objections are invited from them within a period of 30 days. The representative of consumer organizations also sometimes are heard, depending on the situation. Under Rule 11 of the Rules, the designated authority is required to determine the injury to the domestic industry, threat of injury to domestic industry, material retardation to the establishment of the domestic industry, a causal link between the dumped imports and the injury. This is done by taking into account all relevant factors including the volumes of dumped imports, their effect on the price in the domestic market. The principles on which the determination are done is indicated in Annexure II to the Rules. Rule 11 reads: Determination of Injury."11. - (1) In the case of imports from specified countries, the designated authority shall record a further finding 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. The designated authority shall determine the injury to domestic indus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed against the final order of the Tribunal upholding the final order passed by the Designated Authority under Rule 17, recommending levy of anti-dumping duty consequent upon which, the Central Government imposed anti-dumping duty under Rule 18. 14.Appellant is the sole agent of Acrylonitrile Butadiene Rubber [for short "NBR"] as manufactured by Korea Kumho Petrochemicals Limited [for short "KKPC"]. The subject goods are oil resistance rubber and are of various grades like : KOSYN KNB 35 L KOSYN KNB 35 LL KOSYN KNB 35 LM KOSYN KNB 35 LH KOSYN KNB 0230 KOSYN KNB 0230 L KOSYN KNB 0230 H The subject goods are being imported into India for near about a decade. The appellant's entire activities/trading activities and earning is from the sale of the subject goods as are imported from time to time in lawful manner subject to the policy laid by the concerned authorities. 15.The subject anti-dumping duty proceedings relate to NBR which is the commercially known name of the said type of goods. Broadly speaking NBR is a synthetic rubber mainly used in the manufacture of other rubber articles such as oil-seals, hoses, automobile product, rice dehusking rolls etc. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing duty not exceeding the margin of dumping in relation to such article. Export price in relation to an article has been defined to mean the price of the article exported from the exporting country and the normal price has been defined to mean the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country. The designated authority after considering the entire data of facts came to the conclusion that the article NBR exported to India from Korea and Germany was not de minis as the difference in price in the local market (India) and the price at which it was sold in the country of export was more than 2% and further the total quantity exported from Korea was more than 3% of the total imports. That the injury was caused to the domestic industry. In so far as causal link was concerned, it was held that because of the NBR exported to the country a material injury had been caused to the domestic industry. In determining whether the material injury to the domestic industry was caused by the dumped goods, the authority took into consideration the following facts : "(a) The imports of the product from the subject count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic industry, causal link and cumulation of imports from Germany and Korea for injury assessment during the course of arguments before us. The only argument pressed before us is regarding the conversion of anti-dumping duty from US Dollar terms by the Tribunal on its own volition even though there was no prayer by the appellant or a cross appeal/objection by the respondent. Another aspect highlighted by the learned counsel for the appellant is relating to violation of para (iv) of Annexure II of the Rules while assessing injury. 23.Shri A. Sharan, learned Addl. Solicitor General of India, after taking instruction from the Union of India conceded that the Tribunal erred in converting the anti-dumping duty in US Dollar terms in the absence of any appeal or cross appeal by the respondent. He conceded that the order passed by the Tribunal in converting the anti-dumping duty in US Dollar terms be set aside and order of the designated authority in imposing the anti-dumping duty in rupee term be restored. It is so ordered. 24.Regarding non-consideration of the various parameters laid down in para (iv) of Annexure II, it was submitted by him that since this issue had not been raised be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o impose an anti-dumping duty not exceeding the margin of dumping on an article exported to India at less than its normal value. However, this is subject to the provisions of Section 9B. Section 9B(1)(b)(ii) provides, that the Central Government shall not levy anti-dumping duty on articles imported from a specified country (members of the WTO and those with whom India has a Most Favoured Nation (MFN) agreement) unless in accordance with the Rules made under Section 9B(2) a determination has been made that the import of such article causes material injury to an industry in India. In terms of Rule 11 of the Rules framed under Sections 9A(6) and 9B(2), recording of a finding on material injury is sine qua non for imposition of the duty. Sub-rule (2) of Rule 11 provides that 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 domes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the interested party or suo motu by the Designated Authority. 30.Before considering the rival submissions advanced by the counsel for the parties, it may be stated that the Designated Authority had considered the appellant to be a non-cooperative exporter and determined the normal value of NBR produced by it on "facts available basis". This finding of the Designated Authority has been confirmed by the Tribunal in the impugned order. The Tribunal has further held that in the facts and circumstances of the present case, the normal value arrived at by the Designated Authority was not required to be disturbed in the absence of reliable alternative basis provided by the appellant. 31.The Tribunal further observed that in respect of injury analysis, while the appellants may be right in maintaining that all the parameters stipulated in para (iv) of Annexure-II to the Anti-Dumping Rules were required to be considered by the Designated Authority, but Annexure-II does not stipulate a separate injury analysis for a review investigation, as the parameters mentioned therein were not a check list. It is not necessary to faithfully mention each of the criteria and an appropriate notation ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g consideration, the argument of the appellant that all relevant factors have not been considered has no factual foundation. 35.Otherwise also, we are of the opinion that scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domestic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer. 36.It is of vital importance to note that in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise, either by the Designated Authority in suo motu review or by the applicant seeking review. In the present case, the review had been initiated by the Designated Authority. Neither the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given by the Designated Authority at the stage of initial anti-dumping duty. In the absence of any new material, the Designated Authority is not required to apply afresh all parameters or criteria enumerated in para (iv) of Annexure-II, which had already been done at the initial stage of imposition of anti-dumping duty. There is no material on record to show that there was a change in the parameters or the criteria relating to the injury which would warrant withdrawal of anti-dumping duty. Nevertheless, the Designated Authority has still analysed the issue of injury in detail in the Mid Term Review findings and has considered all the criteria or parameters enumerated in Annexure-II. There is, therefore, no merit or substance in the appellant's contention regarding non-compliance with Annexure-II. 38.The Designated Authority in the Mid Term Review has reduced the anti-dumping du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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