Customs, Excise and Gold Tribunal - Delhi
Cyanides And Chemicals Limited vs Designated Authority on 22 August, 2000
Equivalent citations: 2000(71)ECC631, 2000(120)ELT822(TRI-DEL)
ORDER C.N.B. Nair, Member (T)
1. This appeal is directed against the imposition of anti-dumping duty on imports of 'Sodium Cyanide' under notification No. 83/2000, dated 6-6-2000. The duty imposed is the difference between the amount mentioned in Column (4) of the Table in the notification and the landed value of imported sodium cyanide per metric tonne.
2. The only grievance raised by the appellants is with regard to currency in which anti-dumping duty has been imposed. The appellants had canvassed in the investigation proceedings carried out by the Designated Authority that the duty should be imposed in US dollars in order to ensure that the protection provided to domestic industry through imposition of anti-dumping duty does not get eroded, during the validity period of the said duty, on account of depreciation of the Indian rupee. However, this plea of the appellant was not accepted by the Designated Authority and that Authority recommended anti-dumping duty in Indian rupee. The Ministry of Finance which issued the impugned notification also imposed duty, following the recommendations of the Designated Authority, xxxxxxxxxxxxxxx in rupee terms.
3. During hearing, the learned counsel for the appellants emphasised that their request for imposition of duty in rupee terms is in conformity with several decisions of this Tribunal on the subject. He relied on the following observations of the CEGAT in final order Nos. 6 to 16/2000-AD, dated 21-1-2000 [2000 (116) E.L.T. 67 (Tribunal)] in appeal Nos. C/692 to 697/98-AD and Appeal Nos. C/63 to 66/99-AD :-
"Anti-dumping duty is fixed after a finding that the foreign goods are sold at less than their normal value in the Indian market causing injury to the domestic producers. The amount of dumping margin is worked out in dollar terms as all aspects of trade are in US $. Section 9A stipulates that anti-dumping duty shall not exceed dumping margin. Thus the law's intention and purpose is to a protection to the domestic industry at rate not exceeding the dumping margin and injury margin. We are, therefore, of the firm opinion that antidumping duty should be fixed in dollar terms so that erosion of the quantum of protection does not take place on account of changes in the exchange rate."
This decision was followed in final order No. 20 & 21/2000-AD, dated 2-2-2000 [2000 (112) E.L.T. 625 (Tribunal)] in appeal Nos. C/264/99-AD and C/332/99-AD with C/Stay/1383/99-AD with the observations as under :-
"In BLA Industries & Others final order Nos. 6-15/2000-AD, dated 21-1-2000, we took the view that the Anti-Dumping Duty should be imposed on US $. Otherwise, the effect of that duty will be eroded on account of the change in the exchange value of Rupee vis-a-vis US $."
These decisions were followed in later orders Nos. 29-30/2000- AD, dated 9-2-2000 [2000 (119) E.L.T. 308 (Tribunal)] in appeal Nos. C/267/99-AD with C/COD/217/99-AD and appeal No. C/22/2000-AD with C/COD/31/2000-AD.
4. Learned Senior Counsel representing the Government agrees with the plea of the appellants. However, learned counsels representing 'Interested Parties' submitted that imposition of variable duty as done in the present case can lead to situations where, on account of subsequent xxxxxxxxxxxxxxxxxxx xxxxxxxx changes in export price and rate of import duty, the anti dumping duty imposed can turn out to be more than the injury margin or dumping margin, as the case may be, and that would be in violation of the provisions of law relating to anti-dumping duty, as such duty cannot be in excess of injury margin or clumping margin, whichever is less.
5. The learned senior counsel for the Government has opposed the plea raised by learned counsel for the interested parties stating that an interested party in an anti-dumping appeal is in the position of an intervener and an intervener can only support or oppose the appeal can not raise new grounds. He referred us to the decision of the Apex Court in the case of N. Suiain and Anr. v. B.K. Mohapatra and Ors. - 1970 (3) Supreme Court Cases 321.
6. The issue raised in the appeal has already been considered by us in the decisions cited by the appellant and it has been held that anti-dumping duty should be fixed in dollar terms so that erosion of the quantum of production does not take place on account of changes in the exchange rate. The appeal is, thus, required to be allowed on merits. We do so. Consequently, the Table in notification No. 83/2000 dated, 6-6-2000 relating to duty is modified as stated herein below :-
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Sl. Country/Territory Exporter/Producer Amount (US$ No. per MT)
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(1) (2) (3) (4)
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1. United States of All exporters 1608.16 America.
2. European Union (i) M/s Degussa Huls. 1608.16
(ii) All other exporters. 1608.16
3. Czech Republic All exporters 1608.16
4. Korea RP All exporters 1608.16
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7. We find the objection raised on behalf of the interested parties to be beyond their competence. Accordingly, the same is rejected.