Custom, Excise & Service Tax Tribunal
M/S Sasol Solvents vs The Designated Authority on 10 December, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
ANTI DUMPING APPEAL No. 15 of 2008
(Arising out of Notification No.33/2008-Customs dated 11.3.2008 passed by Govt. of India, Ministry of Finance, Department of Revenue, New Delhi)
M/s Sasol Solvents
Appellant/Applicant
Vs.
Union of India through
Ministry of Finance,
Department of Revenue
AND
The Designated Authority
Respondent
Appearance
Shri Sohail Nathani, Advocate with
Shri Vikram Nayak, Advocate - For the Appellant
Shri Govind Dixit, D.R. - For the Respondent - 1
Shri Amit Singh Advocate - For Designated Authority,
Respondent - 2
Ms.Reena Rawat, Adv.
and Shri Rajesh Sharma, Adv. - For Domestic Industry
Coram :
Honble Mr. Justice G. Raghuram, President
Honble Mr. D.N. Panda, Judicial Member
Honble Mr. Sahab Singh, Technical Member
Heard and Reserved on: 11.10.2013
Pronounced on: 10.12.2013
Final Order No.58521/2013
Per D.N. Panda
CHALLENGE IS TO LEVY
OF DEFINITIVE ANTI DUMPING DUTY
1. Customs Notification No.33/2008-Cus dated 11/03/2008 imposing definitive anti dumping duty with effect from 19 June 2007 (i.e. the date of imposition of provisional anti dumping duty) on import of acetone (hereinafter referred to as the subject goods) originating in or exported from EU, Chinese Taipei, Singapore, South Africa and USA (hereinafter referred to as the subject countries) and final finding of the Designated Authority (hereinafter referred to as the DA) made by Notification No. 4/04/2006-DGAD dated 04/01/2008 as amended by Notification No. 14/04/2006-DGAD dated 28.01.2008 recommending the said levy equal to the lesser of margin of dumping and margin of injury are under challenge in this appeal by the exporter appellant M/s Sasol Solvents from South Africa.
2. The period of investigation (POI) relating to dumping involved in this appeal was 1st July 2005 to 30th June 2006 and injury investigation covered the period April 2003-March 2004, April 2004-March 2005 and April 2005- March 2006 and the POI. Recommendation for the levy aforesaid was made by DA drawing following conclusions:
(a) That the subject goods were exported to India from the subject countries below its normal value;
(b) The domestic industry has suffered material injury; and
(c) The injury was caused by the dumped imports from subject countries;
3. During currency of levy of definitive anti dumping duty by the customs notification aforesaid, sunset review has also been initiated.
4.1. Hindustan Organic Chemicals Ltd. Mumbai and M/s Schenectady Herdiallia Ltd. Mumbai (Renamed as SI Group Ltd.) constituting domestic industry, producing 100% of total production of Acetone in India, made an application dated 27.02.2006 to the Designated Authority alleging dumping of subject goods originating in or exported from subject countries including South Korea. The said authority observing that the data provided by Domestic Industry related to a period of nine months and that was inadequate for conducting investigation, issued deficiency letters to the domestic industry to respond to the same for consideration.
4.2. In response to the deficiency letter, the domestic industry expressed difficulty in procuring import data as well as stated that dumping of subject goods from subject countries including from South Korea aggravated from October 2005. Prima facie, noticing that there was dumping of subject goods and injury was caused by such dumping, the DA took steps for initiation of investigation considering nine months data with the expectation that updated date for 12 months would be provided by applicant in the meantime. Accordingly POI was fixed for the period July 2005 to June 2006 and injury analysis period fixed for April 2003-04, to April 2004-05 and the POI.
4.3. In the mean time, the authority also conducted study on the complaint made by domestic industry. Being satisfied that investigation can be initiated against exports from subject countries in view of their exports above de minimus level and there was dumping of subject goods as well as injury made to domestic industry while Korean exports were below de minimus level, issued initiation notification dated 07.09.2006 to initiate investigation concerning import of subject goods originating in or exported from subject countries to determine the existence, degree and effect of the alleged dumping and to recommend the levy of anti dumping duty which if levied would be adequate to remove the injury to the domestic industry.
4.4. Subsequently, when in November, 2006 accurate and adequate evidence for a total period of one year against exports of subject goods from South Korea and Russia was provided by domestic industry, justifying initiation of investigation against their exports, Notification dated 12.02.2007 was issued in that behalf. Upon investigation, the DA, made final findings recommending imposition of definitive antidumping duty on import of subject goods from South Korea by Notification dated 09.05.2008. Basing on such recommendation, Customs Notification imposing definitive anti dumping duty was issued on 10.06.2008 against imports of subject goods from South Korea. However, investigation against Russian Exports was terminated by a Notification dated 14.03.2008.
4.5. Following due process of law, the DA, carried out preliminary investigation against exports from subject countries. On the basis of evidence came to its record, the authority found that there was price under cutting and price under selling. Therefore as an interim measure, the authority recommended imposition of provisional antidumping duty in terms of preliminary finding notified on 25/04/2007 as amended by Notification dated 25.05.2007. While recommending the levy of provisional anti dumping duty, the DA also indicated the procedure to be followed for detailed investigation subsequently. Based on the preliminary findings, provisional anti dumping duty was levied by the Ministry of Finance by Customs Notification No. 77/2007Cus dated 19/06/2007.
5. Subsequent to levy of provisional antidumping duty, detailed investigation was carried out by the DA. He considered the data/information of the following exporters from the subject countries to determine the dumping and dumping margin as well as to make injury analysis and noted submission of M/s Dow Chemicals to treat it as interested party even though that producer did not export subject goods during POI.
1. M/s Formosa Chemicals & Fibre Corporation, Taiwan
2. M/s Sasol Solvents, South Africa
3. M/s Taiwan Prosperity Chemicals Corporation, Taiwan
4. M/s Mitsui & Co. Ltd., Singapore
5. M/s Sumitomo Corporation, Singapore and M/s Petrochem Middle East, UAE.
6. The data/information of the following importers were used by DA to cross check the information provided by above exporters and outcome thereof was considered to arrive at the final findings :-
1. M/s National Organic Chemical Industries Ltd., Mumbai
2. M/s Ranbaxy Laboratories Ltd., Gurgaon
3. M/s Lanxess India Pvt. Ltd., Thane, Maharashtra
4. M/s Crescent Chemsol Pvt. Ltd., Vadodara
7. The other exporters and importers who did not submit any information were treated as non-cooperating exporters and importers. Public hearing was granted to the interested parties and upon hearing them, they were informed to file written submissions on the views expressed orally in the course of hearing. Such submissions were considered by DA, who also verified the information provided by the domestic industry to the extent that was considered necessary for final finding. Transaction wise imports data provided by DGCI&S were also taken into consideration by DA for the purpose of determination of the export price and injury analysis. He made available the non-confidential version of the information presented by various parties in the public file and kept that open in the public domain for inspection by the interested parties.
8. The complainants were considered by DA to be producers of domestic industry as they accounted for 100% production of subject goods in India, under Rule 2(b) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the 1995 Rules). It was noticed by DA that approximately 83% of imports made by SI Group (who was one of the complainant) were under Duty Exemption Scheme for export of goods manufactured out of import of the subject goods. The interested parties had grievance that SI Group being the major player was importing subject goods i.e. Acetone duty free for which that should be excluded from consideration as domestic producer. But the DA opined that the real purpose of levy of anti-dumping duty shall be defeated if that concern is excluded from the constitution of domestic industry when imported acetone by SI group were not available for sale in domestic market.
9. Similarly HOCL which was also a complainant domestic producer was a BIFR company being sick and there was complete erosion of funds due to accumulated losses suffered. But the DA considered it proper not to disqualify that company to constitute domestic industry and seek relief under Anti-dumping law. That Authority allowed HOCL to constitute domestic industry for the reason that it shall further sustain injury due to import of subject goods if deprived of the benefit of the trade remedy measure. The objection of appellant to exclude that company from purview of domestic industry did not get appreciation by DA. Both the producers constituted domestic industry.
DETERMINATION OF NORMAL
VALUE, EXPORT PRICE AND
DUMPING MARGIN BY DA
10.1. No exporters of USA and EU responded to the initiation Notification. The DA taking the average price reported in ICIS LOR (US Gulf) and ICIS LOR (EUROPE) for the POI determined normal value of exports for these two countries.
10.2. In so far as normal value relating to exports from Singapore is concerned, when the DA found that M/s Mitsui & Co. Ltd., an exporter of Singapore although responded to initiation Notification was not a producer, but the export of Acetone to India from Singapore was by M/s Mitsui Phenol Singapore Pte Ltd., and no information was provided by that exporter. In absence of date from them, the D.A, resorted to Rule 6(8) of1995 Rule to determine normal value.
10.3. The DA also noticed that exports of subject goods were made from Singapore by Sumitomo Corporation of Singapore and Petrochem Middle East of UAE. But Sumitomo Corporation was not a producer of subject goods. It made export of subject goods to India. Sumitomo Corporation raised invoice on M/s Petrochem of UAE which in turn raised invoices on the Indian exporters. In absence of any data provided by them, the DA adopted principles laid down in Rule 6(8) of 1995 Rules to determine normal value.
10.4. Normal value for exports from Singapore and UAE was constructed taking the price of Benzene from the data bank of DGCI&S and propylene data from ICIS LOR (ASIA). Consumption norms of the efficient producer of the domestic industry and SION were relied upon. The information relating to rates of utilities available from exporting country was taken. Conversion cost of domestic industry was applied. SGA including interest were taken from the Annual Reports of the major producers of Exporting country. Profit of 5% was taken on the cost of production. Adopting all these basis, normal value of bulk material was determined. For packed material, the cost of packing material of the efficient producer of the domestic industry was taken into account. Thus normal value of exports from Singapore was determined as above.
10.5. The normal value in respect of South Africa exports by Sasol Solvents was determined considering transaction wise details of domestic sales provided by the exporter in the course of preliminary finding. But after such finding, no evidence was provided in respect of excluded transactions and expenses. All expenses claimed by exporters were adjusted to determine weighted average normal value. The normal value in respect of bulk goods and packed goods was determined.
10.6. Normal value in respect of exports from Chinese Taipei was determined in Para 41 of the final findings taking into account transaction wise details provided by M/s Formosa Chemicals & Fibre Corporation (FCFC) and M/s Taiwan Chemical Corporation (TPCC). Disregarding sales made by (FCFC) to affiliated parties not made in the ordinary course of business, the DA adopted the sale made to non affiliated parties and determined normal value of exports of bulk and packed goods from Chinese Taipei making adjustment of various expenses on weighted average basis.
11.1. The ex-factory export price of bulk exports from USA was determined taking data from DGCI&S data bank, allowing necessary adjustments since the exporters from USA were non-cooperating exporters. Similarly the exporters from EU being non-cooperating exporters, the export price of bulk goods from that country was determined in the same manner as that was determined for USA.
11.2. Mitsui & Co. Ltd. of Singapore having provided transactions wise information relating to exports, those data were verified and making permissible adjustments towards certain expenses, Ex-factory price of bulk goods was determined accordingly. Sumitomo Corporation of Singapore having raised invoices on M/s Petrochem Middle East, UAE, transaction wise information provided by the said exporters was considered and export price of bulk goods was determined making necessary adjustments for UAE exports made to India in Para 35 of final finding. So far as non-cooperating exporters are concerned, their export price was determined taking data from data bank of DGCI&S for exports of bulk goods from Singapore, making necessary adjustments towards permissible expenses.
11.3. The export price of Sasol Solvents, the appellant exporter from South Africa, was determined taking the data relating to bulk goods and packed goods provided by that exporter and ex-factory export price was determined making necessary adjustment for permissible expenses. In so far as non-cooperating exporters of South Africa is concerned, the export data from data bank of DGCI&S was taken and making necessary adjustments towards export price, ex-factory export price of bulk and packed goods was determined.
11.4. In so far as export price of cooperating exporters from Chinese Taipei is concerned, the verified data relating to bulk goods of Formosa chemical and Fibre corporation (FCFC) and packed goods data of Taiwan prosperity chemical corporation (TPCC) was considered and making necessary adjustments, the ex-factory export price of bulk goods and packed goods was determined. In respect of non-cooperating exporters of Chinese Taipei, the export data from Data Bank of DGCI&S was taken and making necessary adjustments towards expenses, export price of bulk goods was determined.
12. On the basis of normal value and export price determined in Para 26 to 45 of final findings, dumping margins in respect of cooperating exporters and non-cooperating exporters were worked out in the following table appearing in Para 46 of the final finding with the observation in Para 47 that the dumping margin so determined were significant and above de minimus.
Exporter/
producer
Normal Value- Bulk (US$)
Normal
Value-
Packed
(US$)
Export Price- Bulk (US$)
Export Price- Packed (US$)
Dumping Margin- Bulk
(US$)
Dumping Margin- Packed (US$)
Dumping Margin- Weighted
Average (US$)
Singapore
M/s Mitsui & Co. Ltd.
***
*** *** *** *** *** *** 52.52% M/s Sumitomo Corporation and M/s Petrochem Middle East, UAE *** *** *** *** *** *** *** 47.84% Non-cooperating Exporters *** *** *** *** *** *** *** 65.38% South Africa M/s Sasol Solvents *** *** *** *** *** *** *** 24.50% Non-cooperating Exporters *** *** *** *** *** *** *** 35.68% Chinese Taipei M/s Formosa Chemicals *** *** *** *** *** *** *** 14.43% M/s Taiwan Prosperity *** *** *** *** *** *** *** 13.84% Non-cooperating exporters *** *** *** *** *** *** *** 38.78% USA Non-cooperating exporters *** *** *** *** *** *** *** 80.57% European Union Non-cooperating exporters *** *** *** *** *** *** *** 86.83%INJURY ANALYSIS AND CUMULATIVE ASSESSMENT BY DA.
13.1. Considering submissions of domestic industries and cooperating exporter as well as importer, the Designated Authority made Volume Effect analysis of the dumped imports from subject countries simultaneously and impact of dumping on domestic industry. Cumulative assessment of the injury caused due to dumping was made to make proper recommendation for levy of antidumping duty on the subject goods originating or exported form subject countries. According to the data gathered from DGCI&S, the DA noted that imports of subject goods from EU, South Africa, Singapore, Chinese Taipei and USA constituted 26.93%, 15.36%, 18.36%, 16.99% and 10.03% respectively and the imports from subject countries were more than de minims individually. So also the DA noted that the share of subject countries in imports was 89.55% in 2003-04 increased to 94.06% in 2004-05 before declining to 91.05% in 2005-06 and 87.68% in POI. The authority observed that the share of imports from other countries was 10.45% in 2003-04 declined to 5.94% in 2004-05 and increased to 8.95% in 2005-06, 12.32% in POI. The trend indicated that imports from the subject countries were facing competition from imports of other countries.
13.2. The market share and demand including captive consumption was examined by Designated Authority in Para 70 of the final finding and the trend was recorded in Para 71 & 72 as under:-
71 The demand (including captive consumption) of subject goods has shown rising trend. It grew by 43% during POI as compared to the base year. The trend indicates that the share of domestic industry which was at 65.75% in 2003-04 declined to 37.78% during POI. During the same period the share of subject countries which was 30.67% in 2003-04 rose to 56.65% in 2004-05 and 54.64% during POI. The share of imports from other countries has also risen from 3.58% in the base year to 7.68% during POI. The imports from other countries include imports from Russia and Korea ROK. The anti-dumping investigations against these countries have also been initiated.
72. The demand (excluding captive consumption) of subject goods shows similar trend. It grew by 53% during POI as compared to the base year. The trend indicates that the share of domestic industry which was at 63.02% in 2003-04 declined to 37.02% during POI. During the same period the share of subject countries which was 33.10% in 2003-04 rose to 62.20% in 2004-05 and 55.22% during POI.[Emphasis supplied] 13.3. Price underselling and price undercutting was examined by Designated Authority in Para 74 in respect of the import of subject goods from subject countries as tabulated below:
Unit 2003-04 2004-05 2005-06 July05 to June06 Selling price-DI Rs/MT *** Trend Indexed 100 131 119 113 Customs Duty % 25 20
14.79 14.17 Landed Value USA Rs/MT 32723 48653 38394 37553 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 1-10% NIP *** Price Underselling *** Price Underselling% 5-15 Europe Rs/MT 33244 47052 43764 37763 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 1-10 NIP *** Price Underselling *** Price Underselling% 5-15 South Africa Rs/MT 32977 47426 39536 36745 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 2-12 NIP *** Price Underselling *** Price Underselling% 5-20 Singapore Rs/MT 31838 49826 38033 36529 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 5-15 NIP *** Price Underselling *** Price Underselling% 5-20 Chinese Taipei Rs/MT 43584 47830 43850 38148 Price Undercutting Rs/MT *** *** *** *** Price Undercutting % *** *** *** 2-12 NIP *** Price Underselling *** Price Underselling% 5-15*** were confidential in nature for which not depicted by DA.
13.4. On examination of injury Parameters i.e. profit and actual and potential effects on the cash flow, return on investment and ability to raise capital, productivity, growth, investment, magnitude of dumping, factors affecting prices, and other known factors, the DA made cumulative assessment of such parameters of injury and found that there was causal link between dumping and injury.
13.5. The table appearing under Para 102 shows the magnitude of injury margin relating export of bulk goods and packed goods with weighted average of aggregate export of both kinds. Magnitude of injury margin was determined in Para 102 of the final findings to recommend levy of definitive anti dumping duty. Amendment to the final findings dated 04.01.2008 was notified on 28.1.2008 to modify the duty table appearing under Para 106 of the said finding. Taking that into consideration, the Customs Notification levying definitive antidumping was issued vide Customs Notification No. 33/2008-Cus dated 11.3.208.
ARGUMENTS ON BEHALF OF APPELLANT.
14.1. Customs Notification as well as the final finding was challenged on behalf of the appellant submitting that the subject goods originating or exported from South Korea and Russia were not subjected to initiation of investigation by Notification dated 7th September 2006. Such piecemeal initiation of the investigation did not comply to the rule of simultaneous investigation for which the final findings were vitiated. Further, investigation against exporters from above two countries although was initiated, investigation against Russian exporters was terminated on 14.3.2008.
14.2. Preliminary finding made by the Designated Authority by Notification dated 25.4.2007 did not cover exports from South Korea although by Notification dated 10.6.2008, anti-dumping duty was imposed on the subject goods in or exported from South Korea. Such approach of investigation has resulted in failure of determination of dumping and injury correctly. Therefore Designated Authority should have followed a consistent practice for simultaneous investigation in respect of subject goods exported from subject countries as well as South Korea and Russia. DA made a wrong approach for which final finding of DA is liable to be set aside.
14.3. It was also submitted by the appellant that M/s Hindustan Organic Chemicals Ltd. (HOCL) being a BIFR company which had already accumulated losses for its own inefficiency of performance, neither had right to complain nor could be considered as producer of domestic industry.
14.4. Appellant further submitted that while antidumping investigation related to Acetone, Phenol was excluded from the purview of subject goods in the investigation which was unwarranted. When SI Group was importing Phenol there was no need to exclude the Phenol from the purview of investigation since that importer was considered by DA as producer of the domestic industry.
14.5. It was further argued on behalf of appellant that the constitution of the domestic industry was erroneous when the goods produced by the producers were different. The appellant relied on the decision in Thai Acrylic Fibre Co. Ltd. Vs. Designated Authority - 2010 (253) ELT 564 (Tri.-Del.) and particularly placing reliance on para-22 of the reported decision and para-56 and para-57 of the final findings appearing in para-81 of the appeal folder it was submitted by the appellant that since SI group imported Acetone under Duty Exemption Scheme and HOCL being a sick company, they cannot be domestic industry.
14.6. SI Group having imported subject goods had no right to complain of dumping individually because duty free imports should be excluded for the purpose of injury analysis. The Authority committed error to exclude such duty free import when injury analysis was made while it was required to include entire import. Relying on the decision reported in the case of S & S Enterprises vs. Designated Authority - 2005 (181) ELT 375 (SC) it was submitted by Appellant that there was lack of application of mind by designated authority to make final findings when export from Russia was favoured and investigation was terminated against that country. Injury analysis was therefore faulty.
14.7. Relying on para-82 of the Notification dated 9.5.2008 relating to Korean exports of Acetone, it was submitted by the appellant that there was gross violation of provisions of anti dumping law and provisions of Anti dumping agreement, by designated authority in terminating investigation against Russian exports. Termination of investigation against exports from that country should not have been made.
14.8. Without considering the Russian exports and South Korean exports, there was a break in causal link for which imposition of definite anti dumping duty was uncalled for. The appellant discharged its onus of proof bringing out the material facts for simultaneous investigation when export of subject goods from Russian and South Korean figured. Investigation should have been done along with the subject countries initiated by Notification dated 7th September 2006.
14.9. It is also the grievance of the appellant that no adequate disclosure was made although appellant was entitled to that. In absence of proper discharge of the duty, the DA committed an error to determine the dumping and injury. The DA failed to comply with Rule 7 of the 1995 Rules. He did not disclose the deficiency in the application of domestic industry. He should have followed the law laid down by Apex Court in the case of Commissioner of Police Bombay vs. Gordhandas Bhaiji in AIR-1952-SC-16: MANU/SC/2/1951 holding that Public Authority should act publicly and particularly reading Para 14 of the said judgment the appellant submitted that the designated authority failed in his duty to disclose the relevant information. Accordingly, for lack of discloser by DA, his findings are unsustainable.
14.10. It was also submitted by Appellant that the finding of the designated authority was ab initio void due to exclusion of South Korea and Russia from the purview of investigation. In this regard, Article-5 of the WTO Agreement was relied upon to submit that an application for investigation should contain certain particulars. When that was lacking, there should not have been any investigation. The designated authority initiated investigation against exports from South Korea differently which has caused prejudice to the appellant. Reliance was placed on Para 323 of page 381 of the Panel report in Guatimala case in this regard.
14.11. On the above grounds it was prayed by appellant that the appeal may be allowed quashing the final finding of DA as well as customs Notification levying anti dumping duty.
CONTENTION OF REVENUE 15.1. On behalf of the Department of Revenue, Ministry of Finance it was submitted by its representative that existence, degree and effect of dumping and injury was determined by proper investigation by DA and that having been done, neither his recommendations nor the Customs Notification can be set aside following the decision of Honble High Court of Gujarat in the case of 2013 (291) ELT 327 (Guj.).
15.2. When both producers were manufacturing 100% of the domestic output, they had right to complain when there was dumping of subject goods and they suffered injury. They cannot be deprived of trade remedy measure because one was importing subject goods for use in manufacture of final goods meant for export without such goods being domestically sold and the other had suffered losses in the past and also due to contingency of flood. They were all along producers of domestic industry. Domestic industry shall be ruined if the trade remedy measure is understood to the advantage of appellant in a narrow sense. Appellant had no right to oppose the levy without proving dumping and injury to the domestic industry. Any leniency to the appellant will retard growth of domestic industry.
15.3. The DA rightly acted under law to investigate simultaneously into the exports made by different countries under a common Notification of initiation. The exports of South Africa being below de minimus at the time of initiation of investigation as per data of domestic industry, separate investigation was initiated against exports of that country upon receipt of information from domestic industry in November 2006.
15.4. While dumping and dumping margin was rightly assessed by DA, he did not fail to make cumulative assessment of injury parameters prescribed by 1995 Rules in respect of injury caused by the dumped imports of subject goods from different countries simultaneously investigated covered by same initiation Notification. Therefore his assessments cannot be faulted nor can he be blamed when he acted in accordance with law.
15.5. Customs Notification having been issued on legal basis, that sustains and appeal fails for the baseless grounds therein as well as fallacious arguments advanced to derive undue advantage from dumped imports.
ARGUMENTS ON BEHALF OF DOMESTIC INDUSTRY 16.1. On behalf of Domestic Industry it was argued that the appellant being an exporter failed to show that there was neither dumping nor any injury caused to domestic industry by its exports. There is no ground in the grounds of appeal of the appellant in appeal memo in this regard.
16.2. There was a proper determination of dumping, dumping margin and injury made by the DA. Relying on Para 46 of the appeal paper book, appearing at page 79 thereof, it was submission of domestic industry that dumping margin in respect of exports from subject countries were significant and most particularly export of appellant from South Africa, was 24.50% of the export value. Similarly, magnitude of injury margin is recorded by DA in Para 102 at page 93 of the appeal folder. Therefore, DA has rightly recommended anti dumping duty and that was rightly acted upon by Customs Notification dated 11.3.2008.
16.3. Both the requirements of the levy i.e. dumping and injury followed by causal link being satisfied, domestic Industry had right to complain for protection by the levy. The appeal is, therefore, liable to be dismissed.
16.4. The DA rightly considered the constitution of domestic industry and entertained the complaint against dumping and injury under Rule 2(b) of the 1995 Rules. The import of subject goods by SI group under advance license was for use in manufacture of final goods meant for export without sale thereof in the domestic market; it was not liable to be excluded from constitution of domestic industry having suffered injury being manufacturer of subject goods. Relying on the decision in the case of Gujarat Fertilizers & Chem. Ltd. Vs. Addl. Secy & DA - reported in 2012 (286) ELT 348 (Cal.) (para 13) it was submitted that an importer can also be an applicant as a domestic industry and there is no bar in law to be so.
16.5. Relying on Para 39 of the decision in the case of Nirma Ltd. Vs. Saint Gobain Glass Industry reported in 2012 (281) ELT 321 (Mad) read with the clarification dated 19.6.2012, it was submitted by domestic industry that the DA has power to include even an importer in the constitution of domestic industry. The SI group having suffered injury was rightly considered to be a producer of subject goods and falling within the scope of the definition of domestic industry under Rule 2(b) of 1995 Rules. It was also argued by domestic industry that if SI Group is excluded from the purview of domestic industry, even then, Hindustan Organic Chemicals Ltd (HOCL) shall constitute domestic industry within the frame work of law as laid down by Honble High Court of Madras in above reported decision. Further, HOCL being a BIFR company and a domestic producer is not barred under law to be a complainant unless any contrary intention thereto appears in law. Appellant failed to establish its stand that HOCL had no right to complain as a BIFR company.
16.6. There is no bar in law to exclude SI Group from the purview of domestic industry since it was also manufacturer of subject goods. To submit so, reliance was placed on the decision in Kasturi & Sons Ltd. Vs. CC - 2008 (22) ELT 161 (Del). It was further submitted that even the appellant supports the case of domestic industry in para 6 at page 56 of the paper book filed.
16.7. When price under cutting and price under-selling prevailed, that compelled the DA to impose anti dumping duty. Therefore, DA has not acted contrary to law. Accordingly appeal fails on this ground also in the absence of any evidence by appellant to the contrary.
16.8. Law permitted the DA under Rule 14 of 1995 Rules to terminate investigation against Russian exporters. There is no justification by the appellant to submit that by not including South Korea and Russia the recommendations in the final findings are vitiated. Since investigation against South Korea was initiated separately when accurate data and information was provided, the appellant exporter has no right to seek relief on the ground of separate initiations.
16.9. The appellant did not challenge determination of normal value or export price. When complete data of one year was available for the POI, investigation for the said period against the export of subject goods from subject countries was rightly done. There was nothing wrong to initiate anti dumping investigation in existence of dumping and injury. The DA was justified to initiate investigation properly against exports from subject countries considering the de minimus criteria and to initiate separate investigation against exports of South Korea by a subsequent initiation Notification which is not denied by law.
16.10. Proper consideration of injury Parameters having been made while conducting investigation simultaneously against exports from subject countries, under a single initiation Notification; final finding of DA as well as customs Notification cannot be assailed. It was further argued that even if Koran exports are included for calculation of dumping margin and injury analysis that shall not bring any difference to the investigation result as well as recommendations made by the DA. Rather the injury shall be more since export prices of Korea exports were lower than the normal value and appellants case shall be worse. Therefore appeal is liable to be dismissed in limini. Argument of the appellant that exclusion of South Korea from the purview of investigation has made the investigation erroneous is not tenable without demonstrating how the appellant is prejudiced. Therefore such fallacious argument has no basis to survive.
16.11. It was further submitted by domestic industry that when by a separate notification for investigation against export from South Korea was issued; the dumping margin and injury margin in respect of such exports were calculated by the DA, taking into account the figures in respect of such margins pertaining to the export from subject countries. That bars the appellant to plead that the finding of DA and customs Notifications are unsustainable.
16.12. It was also argued on behalf of domestic industry that dumping and injury being important criteria to determine the levy of anti dumping duty and that having been demonstrated from exports of subject countries, any interference to the findings of designated authority shall result in frustrating justice. To submit so, the Appellant relied on the decision in the case of Sterlite Industries (India) Ltd. vs. Designated Authority reported in 2003 (158)ELT 673 (SC) (para 4). It was submitted that once dumping of the goods and injury to domestic industry is established, Tribunal cannot set aside findings of DA as well as Customs Notification imposing Anti-dumping duty.
16.13 Following the law laid down in Sterlite Industries (India) Ltd. vs. Designated Authority reported in 2003 (158)ELT 673 (SC), it was submitted that it is for the DA to decide whether a particular material is required to be kept confidential. Also where confidentiality is required, it will always be open for Tribunal to look into the relevant file. The DA made every information available in public file for perusal of the interested parties. Without specifying which information was denied, the appellant makes vague plea without any rhyme or reason. Therefore, appeal should be dismissed.
16.14. Alternatively, it was submitted by the domestic industry that if at all Tribunal decides to include South Korea export figures in the calculation of dumping margin and injury margin for injury analysis with the export of subject goods from subject countries, in a remand following decision of Tribunal in the case of Allied Enterprises Vs. Designated Authority - 2011 (272) ELT 127 (Tri.-Del) and BASF South East Asia Pte. Ltd. Vs. DA - 2010 (253) ELT 554 (Tri.-Del), no benefit shall accrue to the appellant since the rate of duty shall not vary nor dumping margin change. So also injury margin remains unaltered. Therefore, the Designated Authority should not be burdened with an academic exercise by remand when it is a proven case of existence of dumping and injury as well as causal link between the dumping and injury. It was also submitted that when non-injurious price (NIP) was determined rightly on the basis of figures of domestic industry, that shall not change in any circumstances or by any means since domestic figure remain unchanged and appellant shall not get any relief. Therefore appeal should be dismissed.
16.15. It was the further argument of the domestic industry that the antidumping duty having been imposed that shall continue to be realised till de novo adjudication order is passed in the event remand is made and the result of de novo order shall also apply from the date of levy of provisional anti dumping duty. Therefore remand is also unwarranted on such ground. Domestic industry relied on the decision in the case of DIT Vs. Puranmall Sons & Others (1175) 4-SCC 568 and in the case of CIT Vs. National Taj Traders (1980)-1-SCC-370. Learned Counsel for domestic industry also highlighted that the order of remand made by the Tribunal has been upheld by Honble Supreme Court in the case of Tejas Networks Ltd. Vs. Union of India - 2011 (273) ELT 161 (SC) without doubting power of Tribunal to order remand. There is no disagreement to such proposition of law in view of order of Apex Court in the above case.
16.16. The export from South Korea being below the de minimus level before initiation of investigation into the export by subject countries, there was nothing wrong in the cumulation effect of injury parameters worked out by DA in respect of imports from subject countries. Therefore findings of DA were not at all faulty when there was no departure to the rule of analysis of injury margin followed by the DA. Relying on Para 37 of the judgment in the case of Rajasthan Textile Mills Association Vs. Director General of Anti Dumping - 2002 (149) ELT 45 (Raj), it was submitted by the domestic industry that the proposal for initiation of investigation against export from subject countries was correct to prescribe levy of definitive antidumping duty. Exports from Korea being below de minimis, Domestic industry also relied on the decision in the case of Automotive Tyre Manufacturers Asscn. Vs. Designated Authority - 2011 (270) ELT 727 (Para 13) to support its contention above and prayed for dismissal of the appeal.
SUBMISSIONS OF DA.
17.1 It was submitted on behalf of the Designated Authority that against the application dated 27th February, 2006 of the domestic industry; complaint against dumping and injury was examined thoroughly even though the data pertained to a nine month period. But South Korean exports being below limit, that country was excluded from the purview of initiation notification dated 07/09/2006. Correspondences were made with domestic industry to provide data relating to 12 months period in respect of import from subject countries. But the domestic industry having expressed difficulties to gather such data, initiation notification above was issued with the expectation that the domestic industry would update the information during progress of investigation. The DA acted bonafide and issued initiation notification to protect the domestic industry against dumped imports from subject countries. Therefore action of DA is not faulty and not liable to criticism.
17.2 HOCL and SI Group being the two producers of domestic industry producing 100% of the domestic production of subject goods, their locus standi cannot be challenged when dumping and injury was demonstrated by them for their protection by anti dumping levy. Evidence furnished by them being found adequate and their information accurate, trade remedy measure cannot be denied to them.
17.3. It was further submitted on behalf of the DA that following the mandate of Rule 5 of the 1995 Rules, investigation having been initiated and done simultaneously against exports of different countries covered by the Notification dated 07/09/2006, there was no violation of rules of investigation or any prejudice caused to the appellant.
17.4 In November 2006, when total data came from domestic industry for initiation of investigation against exports from South Korea and Russia, Notification dated 12.2.2007 was rightly issued. Appellant was no way prejudiced without appreciating facts and circumstance of each case while dumped goods above de minimus level before Korea reached to that level warranting investigation against its exports. Therefore exclusion of Korean exports from the purview of initiation Notification dated 7.9.2006 was nothing wrong in law. Findings of DA being well founded on good grounds and sound logic, those are not liable to be impeached.
17.5. Investigation was lawfully carried out against the import of subject goods originating or exported from subject countries following due process of law and proper norms, disclosing entire information on public record and also taking into account accurate and adequacy of evidence into record. The appellant without demonstrating which information was denied to it, raises an evasive plea to gain sympathy which is liable to be dismissed. DA cannot be blamed by appellant without having any cogent evidence against its breach of duty brought on record. Appeal not showing any ground to raise plea of breach of duty is devoid of merit.
17.6 There was no challenge to the preliminary finding notified on 25.4.2007 by the designated authority nor further detailed investigation challenged by the appellant at any stage. No grievance of appellant is on record. All pleas raised before Tribunal are baseless. Definitive anti-dumping duty having been imposed following the due process of law, and sunset review being in progress, the appellant has no right to be enriched at the cost of domestic industry.
17.7 Both the domestic manufacturers constituted domestic industry being qualified to be so under Rule 2 (b) of 1995 Rules. Therefore they cannot be denied to lodge complaint against dumping and injury caused to them by export of subject goods by subject countries. Plea of industrial sickness by HOCL and import of subject goods by SI group for use in manufacture of final goods meant for export do not disqualify them to be producer of domestic industry. Therefore their complaint was valid and their pleas tenable to initiate investigation. Appeal should therefore be dismissed.
17.8. Ld. Counsel for the designated authority relying on Para 69 of the final findings submitted that there was no legal infirmity in the findings recorded by the DA since dumping margin and injury was determined taking the normal value and export price properly and also cost data of domestic industry considered. Therefore DAs finding being based on evidence and is not liable to be set aside when dumping and injury was patent. Material injury to domestic industry by dumped imports was found by DA. Considering volume effect, in Para 65 of the finding and also various relevant parameters of injury being examined as is apparent from Para 66 to Para 102 of the final findings, recommendation for levy was proper. Magnitude of injury margin was found to be substantial as has been recorded in Para 102 of final finding to recommend appropriate dose of duty Therefore, final findings of DA are unassailable. Similarly Customs Notification having based on sound logic and basis is not liable to be set aside.
17.9. Appellants challenge that there was no cumulation of injury parameters is baseless when export from different countries under common notification for initiation was simultaneously investigated. There was transparency at all levels of investigation and exports by appellant proved dumping with substantial dumping margin and injury margin for which it has no right to challenge lawful action of DA.
17.10. DA rightly terminated investigation against Russia under Rule 14 of 1995 Rules. Appellant fails to show any reason to challenge that the termination was unwarranted. Therefore appeal also fails on this count for which both the Notifications are sustainable.
FINDINGS AND CONCLUSION OF TRIBUNAL
18. It is experienced that in the multilateral trading system if dumping takes place, it might result in unfair trade as domestic industry of the importer country might suffer injury as a result of dumping. Therefore action against dumping is taken if dumping takes place accompanied by consequent injury to the domestic industry. The purpose of anti dumping investigation is to ascertain whether dumping has taken place to cause injury to the domestic industry of the importing country. Thus dumping is discouraged by the trade remedy measure of levy of anti dumping duty. This basic principle has been laid down by the apex court in the case of Sterlite Indutries (I) Ltd. vs. DA - 2003 (158) ELT 673 (SC). Honble court held that once DA comes to the conclusion that there was dumping and that domestic industry was injured by such dumping; the anti dumping duty is leviable. These two conditions are sine qua non for initiation of anti dumping investigation. The domestic industries requiring protection against dumping cannot be sacrificed.
19. Domestic industry seeking protection of trade measure comprises producers thereof who are required to satisfy either of the conditions mentioned in Rule 2(b) of 1995 Rules to complain dumping and injury for the trade remedy measure. Record revealed that the applicants were the only producers of the subject goods in India and this remained un-refuted by appellant. When DA found that the applicant producers constituted domestic industry he was prima facie satisfied about veracity of the complaint against dumping and injury to the domestic industry. He was of the view that examination of the existence of dumping, degree thereof and effect of such dumping was substantial, for which he initiated investigation on 7.9.206 against subject countries although the application for initiation of investigation was against US, EU, Singapore, Chinese Taipei and South Africa as well as South Korea. The Authority considered that the data provided by the domestic industry was for a period of nine months and that was inadequate to investigate into various aspects of the exports as per standard practice since POI normally comprises a period of twelve months. But he found that the exports from US, EU, Singapore, Chinese Taipei and South Africa were above de minimus level, while exports from South Korea was below such level since its exports were 2.7% while 3% is minimum requirement for initiation of investigation. Accordingly investigation against export from South Korea was postponed on the ground of de-minimis level of export. Records of DA demonstrate these facts. Honble High Court of Calcutta in the case of State of Gujarat Fertilisers & Chem. Ltd V. Addl. Secy. & Designated Authority 2012 (286) ELT 348 (Cal) held that it is incumbent for the Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the Rule 2(b) of the 1995 Rules in the following terms:
13.?Bearing aforesaid legal position it is incumbent for this Court to see what could be real and rational object for employing the definition of domestic industry and this could be gathered upon reading the object of the said Rule. The Supreme Court has explained why the aforesaid rule has been framed by the legislature. In case of Reliance Industries Ltd. v. Designated Authority and Others reported in (2006) 10 SCC 368 = 2006 (202) E.L.T. 23 (S.C.) in paragraph 48 it is clearly mentioned the object of framing this Rule. We cannot do better than to reproduce the paragraph 48 of the said report :-
The anti-dumping law is, therefore, a salutary measure which prevents destruction of our industries which were built up after independence under the guidance of our patriotic, modern-minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialisation in our country, to make India a modern, powerful, highly industrialised nation.
14.?Thus it is very clear that the definition of the importer as mentioned in Rule 2(b) has to be understood in the context of protecting indigenous industry producing same material. Here we notice on fact of course going by the statement made in the complaint of the appellant made to the appropriate authority that nearly 15% of its total production is imported by it and that too casually and to meet customers demand during the time when the production was disrupted, and this quantity of import is very insignificant portion of the total import from the same exporting countries. According to us realistic and logical meaning should be the person who is carrying on business of import exclusively for trading purpose is the importer under the said Rule. We have examined the object clause of the Memorandum of Association of the appellant and nowhere we find that it carries on business principally, of import of Melamine. It is carrying on business amongst other of manufacturing of heavy chemicals of every description, whether required for civil, commercial or military defence purposes. We record the learned Trial Judge did not decide with examination of object clause of Memorandum of Association. We think this exercise is paramount and without the same the appellant could not be held to be importer in the sense as it is intended by the said Rule. [Emphasis supplied]
20. Simultaneous investigation into the exports of all countries covered by initiation Notification dated 7.9.2006 was done. The DA acted in accordance with law expecting that in the mean time domestic industry would update statistics relating to the export of subject country for the period of investigation covering July, 05 to June, 06. That was in fact done in the course of investigation and final findings based on such statistics and injury analysis was also made accordingly for the period as stated at the very outset of this order. The authority issued separate Notification dated 12.2.2007 for initiation of investigation into export from South Korea and Russia against application of domestic industry for that purpose, received in November, 2006. At that time, South Korean exports were above de minimus level. However, DA faced non cooperation of South Korea exporters as result of which it was time consuming to reach the final finding which was ultimately notified against South Korean exports on 9.5.2008 and Customs Notification issued on 10.6.2008. A record relating to investigation into the South Korea exports was examined and nothing found to be discrepant for which action of DA cannot be criticised.
21. We have examined records of DA with respect to investigation into the export of subject goods from subject countries as well as investigation into exports from South Korea and Russia. No departure to the basic rule of investigation was noticed by us from such records. While investigating into exports of South Korea was considered by DA, he also considered export figures and consequence thereof relating to subject countries in the final findings against exports from South Korea. No deviation to law was noticeable.
22. The appellants contention that for no good reason, investigation against South Korea was dropped is baseless when the Authority acted in accordance with law as stated aforesaid and well narrated in this order at the very outset as well as the contentions raised by domestic industry and the DA. The plea of the appellant that exclusion of South Korea rendered the investigation futile is devoid of merit for the reason that investigations can be carried out by different initiation notifications at different point of time on the basis of complaint from domestic industries against different countries at that particular time subject to testing of de minimus level of export and prima facie conclusion of dumping and injury to domestic industry. Learned Counsel for appellant relied on the panel report in Guatemala report of the penal reported in WT/DSI56/R decided on 24th October, 2000 to submit that DA initiated investigation against export from South Korea differently has caused prejudice to the appellant. It may be stated that panel has made a finding that investigating authority must have before it evidence of threat of material injury as defined in Article 3 of the Anti-dumping Agreement. The panel also found that Guatemala has acted inconsistently with its obligations under Anti-dumping agreement. Such violation is fundamental in nature and pervasive. To reach to such conclusion the panel in Para 9.1 found various difficulties which led to conclude that there was inconsistent practice by Guatemala. The said Para reads as under:
In light of the findings above, we conclude that Guatemalas initiation of an investigation, the conduct of the investigation and imposition of a definitive measure on imports of grey Portland cement from Mexicos Cruz Azul is inconsistent with the requirements in the AD Agreement in that:
(a) Guatemalas determination that there was sufficient evidence of dumping and threat of injury to initiate an investigation, is inconsistent with Article 5.3 of the AD Agreement
(b) Guatemalas determination that there was sufficient evidence of dumping and threat of injury to initiate an investigation and consequent failure to reject the application for anti-dumping duties by Cementos Progreso is inconsistent with Article 5.8 of the AD Agreement.
(c) Guatemalas failure to timely notify Mexico under Article 5.5 of the AD Agreement is inconsistent with that provision.
(d) Guatemalas failure to meet the requirements for a public notice of the initiation of an investigation is inconsistent with Article 12.1.1 of the AD Agreement.
(e) Guatemalas failure to timely provide the full text of the application to Mexico and Cruz Azul is inconsistent with Article 6.1.3 of the AD Agreement.
(f) Guatemalas failure to grant Mexico access to the file of investigation is inconsistent with Articles 6.1.2 and 6.4 of the AD Agreement.
(g) Guatemalas failure to timely make Cementos Progresos 19 December 19965 submission available to Cruz Azul until 8 January 1997 is inconsistent with Article 6.1.2 of the AD Agreement.
(h) Guatemalas failure to provide two copies of the file of the investigation as requested by Cruz Azul is inconsistent with Article 6.1.2 of the AD Agreement.
(i) Guatemalas extension of the period of investigation requested by Cementos Progreso without providing Cruz Azul with a full opportunity for the defence of its interest is inconsistent with Article 6.2 of the AD Agreement.
(j) Guatemalas failure to inform Mexico of the inclusion of non-governmental experts in the verification team is inconsistent with paragraph 2 of Annex I of the AD Agreement.
(k) Guatemalas failure to require Cementos Progresos to provide a statement of the reasons why summarization of the information submitted during verification was not possible is inconsistent with Article 6.5.1 of the AD Agreement.
(l) Guatemalas decision to grant Cementos Progresos 19 December submission confidential treatment on its own initiative is inconsistent with Article 6.5 of the AD Agreement.
(m) Guatemalas failure to inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures is consistent with Article 6.9 of the AD Agreement.
(n) Guatemalas recourse to best information available for the purpose of making its final dumping determination is inconsistent with Article 6.8 of the AD Agreement.
(o) Guatemalas failure to take into account imports by MATINSA in its determination of injury and causality is inconsistent with Articles 3.1, 3.2 and 3.5 of the AD Agreement.
(p) Guatemalas failure to evaluate all relevant factors for the examination of the impact of the allegedly dumped imports on the domestic industry is inconsistent with Article 3.4. [Emphasis supplied] Reading of the aforesaid conclusion, it is not possible to appreciate appellants plea that exclusion of South Korean exports from investigation was inconsistent practice followed by D.A. Investigation of separate investigation by DA is different from committing irregularities of aforesaid nature. Such defects not being present in the present appeal it cannot be said that DA followed inconsistent practice when export from South Korea was below de minimus level for initiation of investigation by a common Notification dated 07/09/2006.
23. DA examined relevant data provided by the applicants as to whether they constitute domestic industry in terms of Rule 2 (b) of 1995 Rules. It was found that they were the only producers of subject goods domestically. He applied above rule to hold that they constitute domestic industry. This status of applicants remained uncontroverted by the appellant. The Authority was aware that HOCL was a sick company and contingent loss was incurred by that company. But to recover from sickness that company deserved trade remedy measure. Similarly, he was also aware that 83% of import of subject goods by SI Group under advance license was meant for use in final goods manufactured for export thereof without sales of such subject goods domestically. The DA therefore rightly considered their complaint to redress in accordance with law providing them protection of trade remedy measure. That cannot be said to be faulty and for no good reason advanced by appellant.
24. Rule 5 of 1995 Rules has made provision for initiation of anti dumping investigation. Authority complied with the provisions thereof and made investigation validly in law. Plea of the appellant that initiation of investigation was ab-initio void is without any force, in the absence of any cogent evidence led by appellant to set aside the investigation. Evidence led by domestic industry proved dumping and dumping injury as apparent from the records of the DA for initiation of investigation. Evidence also shows that the exports of subject goods from subject country were above de minimus level.
25. It was contended by the appellant that DA did not disclose the fact of deficiency in the application of the applicant. Such contention has no force since records of DA are public records; the entire information was in public domain and the appellant did not bring out denial by DA to our notice. Apex court has categorically held in the case of Sterlite (supra) that the decision is left to the DA to examine the confidential nature of certain information under Rule 7 of the 1995 Rules. That Authority needs to be satisfied as to the confidentiality of the material. If the material is confidential, the DA has to ask the party to provide non-confidential summary thereof. If such statement is not being furnished, a statement of reasons why summary is not possible is to be stated to the DA. While Rule 7 expects transparency it also expects that information which would cause injury to trade competitors cannot be shared. Supply of information is to be kept confidential on case to case basis. It is therefore for the DA to decide whether particular information is required to be kept confidential. Even where confidentiality is claimed it is always open for the Tribunal to look into the relevant files. Appellant only pleaded no disclosure of information was made without showing denial thereof by DA for our scrutiny. Therefore such plea is not tenable which was made for the sake of argument. Accordingly appellants contention on this count fails. Reliance was placed by the appellant on the Apex Court decision in the case of Commissioner of Police, Bombay vs. Gordhandas Bhaiji, reported in AIR 1952 SC 16 to submit that public authority should act publicly. We have no difference to this proposition of law. D.A. has not acted privately. It made every information public on public record and entire information was available in public domain. Therefore, appellants plea that it was deprived of information is inconceivable.
26. Honble Rajasthan High Court in the case of Rajasthan Textile Mills Association vs. Director General of Anti Dumping Duty -2002 (149) ELT 45 (Raj.)has given guide line about confidential nature of information in following language:
The petitioners have also half heartedly challenged the validity of sub-rule (7) of Rule 6, which pertains to confidentiality of the information. The rule provides that any information provided to the Designated Authority on a confidential basis by any party shall not be disclosed to any other party without specific authorisation of the party providing the information, if the Designated Authority is satisfied that it is confidential. Any information, which is by nature confidential, for instance the information the disclosure of which would be significant competitive advantage to a competitor or because its disclosure would have a significant adverse effect upon a person supplying the information or upon a person from whom the person acquires the information, is treated as confidential. The evidence relating to the normal value, export price, costing, profitability, specific adjustment in pricing, etc., are examples of such information, which is usually accepted by the Authority as confidential. Such a confidentiality being in the larger public interest, we do not find any illegality with the said provision.
27. When dumping of subject goods due to export from subject countries was proved from the facts and figures on record of DA, working of dumping margin by him in Para 46 of the final finding remained un-rebutted by appellant. Authority brought out dumping margin percentage in respect of export from different countries considering normal value as well as export price, beginning from Para 23 to Para 45 of his final findings. Difficulties experienced by the DA for non cooperation of the exporters of different countries compelled it to arrive at reasonable basis for calculation of normal value and export price to determine dumping margin. Appellant failed to challenge the normal value or export price as ill founded without bringing any cogent and credible evidence. Therefore such calculation cannot be said to have suffered any legal infirmity. Thus plea of appellant that calculation of dumping margin is wrong is baseless.
28. Similarly the plea of injury analysis is bad, has no force when price under cutting and under selling was worked out by DA properly and injury analysis made applying all parameters prescribed by 1995 Rules in respect of simultaneously investigated exports of subject countries covered by a single and common initiation Notification. Appellant misconceived the concept of simultaneous investigation pleading that exclusion of exports from South Korea did not result in simultaneous investigation. Such plea is untenable because DA cannot postpone investigation into dumped exports above de minimus level awaiting such level to be achieved by the exports of another country as South Korean exports in the present case. Trade remedy measure is to be expeditiously provided without any loss of time when the DA is prima facie satisfied as to dumping and injury.
29. Price under cutting and price under selling appearing in Para 74 of the final finding along with the Table thereunder demonstrates how domestic industry was facing injury. The DA also brought out magnitude of injury in Para 102 of the final finding unerringly. All these statistical and material facts remain uncontroverted by the appellant, in absence of any cogent and credible evidence to the contrary, to disturb the final findings and Notifications prescribing levy of anti dumping duty required to set off injury. The Appellant itself proved that its exports resulted in dumping with the dumping margin to the extent of 24.5% of the export value. So also exports of non-cooperating exporters proved their exports resulting in 35.68% dumping margin. Appellants plea for exclusion of South Korean exports has disturbed dumping margin calculation and injury analysis, is baseless and de-merited. It is surprising how dumping margin calculation shall vary if South Korea exports are included with the export of subject countries when the DA has calculated independent margins in respect of each export from each country which is the basis of law in the final finding under respective Notifications. Dumping margin in respect of South Korean exports was calculated in the respective Notification recommending levy of anti dumping duty in respect of its exports taking normal value of subject goods in South Korea and export price of the subject goods from that country. The DA also compared all essential elements of levy in the South Korea Notification taking the figures of the final findings relating to subject countries.
30. Injury margin was calculated by DA taking Non Injurious Price (NIP) into consideration and landed value of the exports. That shall not change either by exclusion or inclusion of any country with exports from other countries for the reason that calculation of NIP is based only on domestic industry figures. Appellant failed to demonstrate truth of its plea that exclusion of South Korean Exports made the injury analysis faulty. Therefore its appeal on this count also fails. Domestic industry, DA and Ministry of Finance was right to argue that even by inclusion of exports from South Korea with the exports of subject countries no relief could be granted to the appellant.
31. The appellant contended that SI group imported Phenol and Phenol should have been included for investigation. We are surprised how such contention is urged when from 9.6.2007 the appellant submitted to the preliminary investigation only in respect of investigation into the subject goods exported from subject countries. Therefore, no contention at this stage is entertainable for the reason that appeal is confined to the subject goods only.
32. Appellants contention that SI group being importer of subject goods under advance license is not qualified to be a producer of domestic industry to constitute domestic industry has no substance in absence of any such prohibition in Rule 2(b) of 1995 Rules. Similarly, erosion of funds of HOCL on account of accumulated losses does not support the contention of the appellant for exclusion of the said producer from the constitution of domestic industry, in absence of any contrary intention in law to exclude a loss making company who aspires to recover from the losses and seeks protection by the measure of Anti-dumping duty. Reliance was placed by the appellant on the decision of Thai Acrylic Fibre Co. Ltd 2010 (253) ELT (Tri Del) to submit that import under advance licence does not entitle an importer to become part of domestic industry. Reading of para 22 of the decision of the Tribunal throws light that in that case two importers imported insignificant quantity under advance license for export of products. Tribunal held that there was no justification to exclude those two producers from being included in domestic industry. We may say that in the case of State of Gujarat Fertilizers & Chem. Ltd. vs. Add. Secy. & Designated Authority -2012 (286) ELT 348 (Cal), Honble High Court Calcutta elucidated meaning of domestic industry in Para 13 & 14 of the said judgement holding that the realistic and logic meaning of import is to be understood to determine who is importer. In the present case it is clear finding by D.A. that SI group was not a trader but importing the subject goods under advance license was for use in manufacture of final goods meant for export. Therefore, appellant misplaced on the decision of Thai Acrylic (supra).
33. Domestic industry can only be protected by trade remedy measure irrespective of its status of profit or loss making. Law does not discriminate or distinguish a profit making unit from a loss making one to disadvantageously place a healthy producer of domestic industry, since trade remedy measure is meant for the domestic industry as a whole. The advance license enjoyed by SI group not being to import of subject goods for domestic sale the appellant shall not succeed in his plea to deprive that producer from the purview of domestic industry to get trade remedy measure.
34. We have set out material facts noticed from the final findings of D.A. at the very outset to appreciate the factual background of investigation, the basis of investigation as well as necessity for issuance of Customs Notification. None of the findings of the DA appears to be without evidence or legal basis. Therefore, it is not possible to impeach the findings in absence of cogent evidence to the contrary brought to our notice by the appellant.
35. It has been held by the Honble High Court of Madras in the case of Nirma Ltd. (supra) that antidumping law is an economic legislation rather than a fiscal law. It must be construed with intention of developing domestic industry. Fiscal law is construed strictly and economic legislation is construed with intention of developing domestic industry. So also it was held that Rule 2(b) had been consistent in giving discretion to Designated Authority for nearly 11 years from 1999 to 2010 to take cognizance of application under Rule 5 of the 1995 Rules deciding constitution of domestic industry. The DA rightly took cognizance of the application made by applicants.
36. Termination of investigation against Russian exports being within the power of DA, in view of the specific power under Rule 14 vested with the DA, there is no error. The appellant failed to bring out any material to show that termination was wrongful. Therefore, nothing can be inferred in the absence of any malafide alleged or established. The appellant relied on the decision of S & S Enterprises (supra) to submit that D.A. did not apply his mind to terminate Russia from its purview of investigation. It may be stated that the purpose behind imposition of antidumping duty is to curb unfair trade practice. In the judgment of S & S Enterprises (supra) it was held that if the import is below de minimus level investigation terminates. The appellant did not bring out any reason why investigation into Russian exports was terminated except contending that investigation from Russia was terminated. Therefore, we have no scope to look into the bald plea of the appellant.
37. The DA clearly brought out on record that while making final findings as Notified on 9th May, 2008 against South Korean exports, the investigation results appearing in the final findings relating to export from subject countries were considered at appropriate place to make injury analysis in respect of South Korean exports. Volume effect of South Korean exports was examined taking into consideration the volume effect of export from subject industries already notified by final finding dated 4.1.2008 relating to subject countries. Therefore, the plea of inclusion and exclusion of South Korea exports does not survive.
38. The demand and market share in Para 58 of the Notification dated 9.5.2008 in respect of South Korean exports was calculated taking found figures of subject countries. Similarly, evaluation of export price in Para 61 of the Notification dated 9.5.2008 in respect of South Korean export was calculated taking figures of subject countries notified by Notification dated 04.01.2008. While calculating the injury margin, the DA rightly noted that the injury margin relating to the exports from subject industries has no bearing to the exports of South Korea. Therefore, appellants plea of inclusion of South Korean export was warranted in the investigation of exports from the subject countries has no legs to stand.
39. It was also argued that for exclusion of South Korean export there was failure in cumulation of injury effect since there was no simultaneous investigation. It may be stated that Article 3 of Anti-dumping agreement makes it clear that investigating authority must address certain factors in conducting injury analysis. Such a provision is given due weightage in 1995 Rules (Annexure II). Injury compasses the concept of material injury to a domestic industry; threat of material injury to a domestic industry or material retardation of the establishment of a domestic industry. The material injury is determined on the basis of positive evidence and involves an objective examination of specific factors prescribed by 1995 Rules. The DA has examined all the factors prescribed by law in respect of subject goods exported from subject countries as well as from South Korea and notified in two different Notifications.
40. Appellant also contended that there was no simultaneous investigation. But 1995 Rules states that in case where imports of a product from more than one country are being simultaneously subjected to Anti-dumping investigation, the DA will cumulatively assess the effect of such imports. The DA acting under initiation Notification dated 7.9.2006 in respect of export of subject goods from subject countries determined the dumping margin of the export from different countries under investigation. There were five countries namely U.S., E.U., Singapore, Chinese Taipei and South Africa covered by initiation Notification dated 07.09.2006. These several countries being under single investigation for investigation into export from those countries there was simultaneous investigation into such exports, by DA. He also examined the magnitude of injury margin under Para 102 read with Para 74 of final findings. The dumping margin table appears under Para 46 of final finding. The evaluation of the volume of imports and price effect of imports is relatable to cumulative assessment. The appellant misconceived that volume effect and price effect of South Korean export was not considered with export of subject countries and that shall amount to failure in making cumulative assessment. This is inconceivable since cumulation does not affect the data concerning the economic indicators concerning the performance and conditions of the domestic industry which has already suffered. When at the time of commencement of the investigation into the export of subject countries, the export of South Korea was below de minimus level; there is no substance in arguing that exclusion of South Korean export made the cumulation effect faulty.
41. The essential requirement of 1995 Rules is that investigation into dumped imports should be done where such import is above de minimus level and all such imports above de minimus level must be happening at the same time. Thus where an investigation is also in progress satisfying the de minims criteria before an investigation into export of a different country is initiated, there cannot be any assessment possible to be cumulatively done by virtue of unlike cases of different exports. The basic principle is that all equal should be treated equally. In the present case when investigation against export from subject country was initiated, the exporters of all those countries were equally treated having their export above de minimus level. But exports from South Korea were below the de minimus level. That made the basis unequal, calling for separate treatment by a separate Notification and investigation. That was rightly done by DA following the basic principle that equals are equally treated. Therefore, the term simultaneous investigation is to be read in the context of language employed in 1995 Rules specifying that import of product from more than one country, if subjected to investigation under a Notification, in that circumstance simultaneous investigation is done in respect of exports of such countries and cumulative assessment of the effect of imports from such country is mandated. Therefore, the appellants fail to establish that there was no simultaneous investigation done. The appellant also fails in its contention that there was no cumulative assessment done. The DA acted within the framework of the law for which none of its finding can be disturbed. So also the Customs Notification is not liable to be set aside since that is based on reasons and findings of DA as well as evidence. Accordingly, appeal fails and is dismissed on all counts.
(Pronounced in the Open Court on ___10.12.2013____)
(SAHAB SINGH) (D.N. PANDA) (JUSTICE G. RAGHURAM)
TECHNICAL MEBER JUDICIAL MEMBER PRESIDENT
41
AD APPEAL NO. 15 OF 2008