Customs, Excise and Gold Tribunal - Delhi
M/S. Oxo Alcohols Industries' ... vs Designated Authority on 27 April, 2001
ORDER K.Sreedharan, J.
1. These appeals arise out of Notification No. 109/2000-Customs dated 18-8-2000 issued by Government of India,Ministry of Finance, Department of Revenue, New Delhi.As per this notification, anti-dumping duty has been imposed on Oxo Alcohols falling under Heading 29.05 of the first Schedule of the Customs Tariff act, 1975 originating in or exported from Poland, South Korea, Indonesia, Saudi Arabia,Russia,Iran, USA and European Union. Appellants herein are manufacturer, exporter, importer and domestic industry. Since the issue raised in these appeals arise out of the same notification, we consider it advantageous to take up all the appeals together and dispose of the same by a common order.
2. Appellant in appeal No.C/41/2000 manufactures and exports to India EHA out of the ten Oxo Alcohols, which investigated by the Designated Authority. They had no domestic sale in their country, but they made available all required details relating to the cost of production. They fully cooperated with the investigation taken up by the Designated Authority. Normal value of their product was fixed on the basis of the date submitted by them. They challenge the fixation of dumping duty made by the Designated authority on the ground that the principles contemplated in annexure 1 to the Anti Dumping Rule have not been properly followed.
3. Appellant in appeal C/411/2000 questions the inclusion of Normal Hexanol in the category of Oxo Alcohol on which anti-dumping duty has been imposed.According to the appellant, Normal Hexanol is not a "like article" contemplated by the Rules compared to the article under investigation.
4. Appellant in appeal C/407/2000 is M/s. Oxo Alcohol Industries' Association, the domestic industry at whose instance the investigation was initiated. According to the appellant, the Designated Authority was not justified in excluding four items of Oxo Alcohols from imposition of anti-dumping duty. At the time of argument, learned counsel representing this appellant strenuously pressed for inclusion of Nonanol in the category of "like article" on which anti-dumping duty should be imposed.
5. On the basis of application put in by the domestic industry, anti-dumping investigation was initiated by the Designated Authority by issue of Notification No. F.15(1)/99-DGAD dated 29th July, 1999 concerning import of Oxo Alcohols from Poland, South Korea, Indonesia, Saudi Arabia, Russia, Iran, USA and European Union. As per this notification, the period of investigation was from 1-4-1998 to 31-3-1999. The products involved in that notification were:-
(1)2-Ethyl Hexanol (also known as 2-EHA) (2) Normal Butanol(also known as NBA) (3) Iso Butanol (also known as IBA) (4) Iso Octanol (5) Iso Decanol (6)Normal Hexanol (7) Heptanol(Iso Heptanol and Normal Heptanol), (8)Nonanol(Iso Nananol and Normal Nananol) (9)Tri Decanol (10)Propl Heptanol Pursuant to the notification, manufacturer exporters and importers filed their evidence.Based on the said evidence produced by the parties, Designated Authority published a Preliminary Finding in the Gazette dated 3rd December 1999. As per that notification, the Designated Authority decide to restrict the investigation to Normal Butanol, Iso Butanol, Iso Decanol, Iso Octanol, 2-Ethyl Hexanol and Normal Hexanol. Even though the Designated authority found that Oxo Alcohols being manufactured in Indian are only Normal Butanol, Iso Butanol, Iso Decanol, Iso Octanol and 2-Ethyl Hexanol, the said Authority included Normal Hexanol in the investigation on the ground that it is also being imported into India. After the Preliminary Finding and further investigation pursuant to the disclosure, Designated Authority notified its Final Finding in the Gazette dated 17th July 2000. In the said Final Finding also the Designated Authority treated the above mentioned six types of Oxo Alcohols as being dumped into India and corresponding duty on them was suggested. Government of India accepted the suggestion and issued final notification dated 18th August, 2000. It is under challenge.
6. First, we will take up appeal C/412/2000 filed by M/s. Al-Jubail Fertilizer Company (SAMAD - Manufacturer). As stated earlier, the main issue in this appeal is whether the designated authority followed annexure 1 to the Anti-dumping Rules framed under the Customs Tariff Act, 1975 in finding the dumping margin.According to the learned counsel representing the appellant, the appellant exported Oxo Alcohols as being dumped into India and corresponding duty on them was suggested. Government of India accepted the suggestion and issued final notification dated 18th August, 2000. It is under challenge.
6. First, we will take up appeal C/412/2000 filed by M/s. A1-Jubail Fertilizer Company (SAMAD-Manufacturer). As stated earlier, the main issue in this appeal is whether the Designated Authority followed annexure 1 to the Anti-dumping Rules framed under the Customs Tariff Act, 1975 in finding the dumping margin.According to the learned counsel representing the appellant, the appellant exported Oxo Alcohol to India on three occasions.They were on 1st July, 1998, 20th August, 1998 and 12th November, 1998. Export price of the consignment sent on 1st July was compared with normal value assessed on the cost of production in the month of May, because the indent for the consignment was place in May, 1998. The cost of production in the month of May, it is alleged, could not be the basis for finding out the normal value, because the goods manufactured were being simultaneously exported to other countries. The goods that were despatched to India on 1st July, 1998 were manufactured towards the end of June, 1998 and so cost of production during the month of May had no relevance. Likewise for finding out whether the goods consigned during the months of August and November, 1998 were dumped, the margin of dumping should have been found out after assessing the normal value based on the cost of its production. Dates of actual production of those consignments were alone relevant for finding out normal value and not dates of indent.Learned counsel placed reliance on clause (i) of paragraph 6 of annexure 1 in support of this contention. This provision enjoins the Designated Authority to make a fair comparison between the export price and normal value for finding out the margin o dumping. In so making the comparison, it is amendatory that the comparison should be at the same level of trade and in respect of sales made at as nearly as possible the same time. In view of this provision, the Designated Authority should have compared the export price and the normal value at as nearly as possible the same time. In other words, when export takes place on a particular date, its price should be compared with the normal price at as nearly as possible the same time. It cannot be projected backwards by a few months. In the instant case, the Designated authority did not follow such a course. For finding out the dumping margin the cost of production for the month of May was compared with the export price of the consignment dated 1st July, 1998. Such a course was repeated in the other consignments sent in August and November 1998. Learned counsel representing the Designated Authority and Central Govt. has not succeeded in showing any legal basis for finding out the normal value with reference to the date of indent.In the absence of such a legal provision, we are clear in our mind that the designated Authority was not justified in comparing the export price with normal value assessed on the dates on which order were placed for the said consignments.
7. Clause(iv)of paragraph 6 of the Anti-dumping Rules,inter alia, states that the existence of margin of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value and export prices. The Designated Authority did not resort to such a course in finding out the dumping margin in relation to the goods exported by M/s.SAMAD.Learned counsel representing the appellant filed statement showing the comparison of weighted average normal value to weighted average export prices. The correctness of that statement has been conceded by the experts representing the Designated Authority who were present before this Tribunal and by the learned counsel representing the Designated authority.As per that statement,the dumping margin works out to 11% ort US$38 per metric tonne.On the facts and circumstances of this case.in view of the legal position contained in annexure 1, we hold that the said dumping margin can alone be the basis for imposing anti-dumping duty on the goods exported by SAMAD in Saudi Arabia.Final notification issued by the Government of India imposes anti-dumping duty at US $ 47 per metric tonne on the subject goods exported from Saudi Arabia.We alter that duty to US $ 38 per metric tonne.
8. Now coming to appeal C/411/2000,the question to be tackled is whether Normal Hexanol is a "like article" like the articles under investigation.As stated earlier.Normal Hexanol has been included in the other categories of the subject under investigation only on the ground that it is also being imported into India.That fact by itself cannot make Normal Hexanol a like article. In the final finding the Designated Authority categorically observed:
"It is noted that though normal Hexanol may not be a substitute for 2-Entryl Hexanol,the products these are used to manufacture substitute each other and hence exclusion of one from anti dumping duty investigation will have an impact on the usage of others."
From this it is clear that the Designated Authority has not come to the conclusion that Normal Hexanol and other Oxo Alcohols are interchangeable or can substitute each other.The Designated Authority has not come to the conclusion that Normal Hexanol has characteristics closely resembling those of the other articles under investigation.What the Authority found is that the products manufactured by uses of Normal Hexanol can substituted the products manufactured by other Oxo Alcohols.Even it the products manufactured using these two types of alcohols are interchangeable, they cannot be treated as "like article" in the absence of a finding that they themselves have characteristics closely resembling each other.This is so because of the definition of "like articles" in the Rules.
9. Sufficient literature has not been placed before us on behalf of the domestic industry or by the Designated authority to support the stand taken by the Authority that Normal Hexanol is a "like article"Materials now made available show that 2-Ethyl Hexanol can produce DOP plasticizer and Normal Hexanol can produce DnHP, another variety of plasticizer.It further states that DnHP can be blended with plasticizer like DOP,DIOP,DIDIP to obtain performance characteristics of DnHP.DOP,DIOP and DIDP are plasticizers manufactured by using 2-Ethyl Hexanol, Iso Hexanol, Iso Octanol and Iso Decanol. Decanol. DnHP, which is made out of Normal Hexanol, ils not substitute for these products but is capable of being blended with them to obtain performance characteristics of DnHP. In this view of the matter also,we hold that the Designated Authority was not correct in saying that the products manufactured out of the two types of alcohols are substitutable or interchangeable. The result, therefore, is that the Designated Authority was not correct in treating Normal Hexanol as a "like article" with the articles under investigation. Further, Normal Hexanol is not one manufactured or produced by Domestic Industry. So, its import cannot cause injury to Domestic Industry.Therefore,anti-dumping duty imposed on Normal Hexanol imported into India is only to be vacated and we do so.
10. The question that remains to be considered n appeal C/407/2000 is whether the Designated Authority was justified in excluding Nonanol from the investigation.According to learned counsel representing this appellant,the domestic industry, Nonanol is a "like article" compared to the other alcohols under investigation and so Designated Authority should have treated it as a "like article" and anti-dumping duty imposed after finding out the dumping margin.Chemical formula of Nonanol is C9OH.This alcohol can be used for product in plasticizer called DNP,DINP (Diony1 Pathaloate/Di Iso Nony1 pathaloate).This type of plasticizer is not shown in the literature to be similar to other type of plasticizers obtained from Oxo Alcohol which were the article under investigation. The Designated Authority has also not come to the conclusion that Nonalol has any characteristic similar to the articles under investigation. In such a situation,we are not in a position to agree with the learned counsel that Nonanol is an article similar to the articles under investigation.Therefore,we do not find any ground of interfere with the final finding arrived at by the Designated Authority and the consequent notification issued by the Central Government.
11. In view of what has been above, we dismiss the appeal Nos.C/407/2000 and allow appeal C/411/2000 is allowed by reducing the anti-dumping duty imposed on 2-Ethy1 Hexanol imported into India from Saudi Arabia to US $ 38 per metric tonne.
12. In the result appeal are disposed of by amending the table attached to Notification No. 109/2000-Customs dated 18th by fixing anti-dumping duty of US $ 38 per metric tonne on goods mentioned in Column 5 thereto originating on or exported from Saudi Arabia and by deleting Normal Hexanol from the goods included in the said Column(5).