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3. The submission of the PR exporters with regard to standing is that the petition did not satisfy the major proportion criterion under Rule 5 of Customs Tariff (Identification, Assessment and collection of Anti-Dumping Duty, on dumped articles and for determination of injury) Rules 1995 for the petition to be considered to have been made by or on behalf of the domestic industry. It has been submitted that the petition was opposed by M/s. Rashtriya Ispat Nigam Ltd. (RINL) a major manufacturer of Metcoke and once the production of RINL also is taken into account, the petition would not have the required support of domestic industry and thus, the petition would have no standing. It is not in dispute that if the production of RINL is taken into account, the pettion would not have the required support. They have submitted that the designated authority's action in exlcuding RINL for the purpose of computing support/opposition of domestic industry was not correct. The D.A. had excluded RINL on the ground that the product under consideration, i.e. Metcoke, imported from China was below 15% ash content while the Met Coke, produced by RINL contained more than 15% ash, making their product not like article. The authority had also held that the production of RINL is excluded also on the ground that RINL was a captive consumer of its product of Metcoke and was not selling their product in the market.

3.1 The submission of the PR exporters is that the average ash content in the Met Coke produced by M/s RINL during the period of investigation was 15.72%. They contend that the exclusion of this quality coke was not reasonable at all as this quality is also low ash met coke used for the same purposes as the coke under import from China. Further, even on granting of normal tolerance with regard to ash content, their produce would be qualified to be like article as compared to the less than 15% ash content met coke under import from China. With regard to exclusion of RINL on the ground of captively consumed production it has been contended that such exclusion is permissible only for the purpose of determining injury under Rule 11(3) and not for the purpose of deciding standing as domestic industry. It has also been submitted that this decision is not GATT compatible as other countries do not exclude captive consumption while considering domestic industry. Reliance has also been placed on a clarification to this effect from one Indian Mission to WTO (World Trade Organisation).

5. PR exporters' contention regarding lack of Standing of M/s BLA to file petition for imposing of Anti-Dumping duty on met coke is based on the exclusion of RINL, a major producer of low ash content met coke, while deciding support/opposition of domestic industry. The exclusion has been sought to be justified on many grounds. It has been submitted that the exporters' own criterion that only below 15% ash met coke could be treated as like products warranted such exclusion. Further, at the time of initiation, RINL had supported the levy and its later opposition is on account of pressure exerted on it by the Steel Ministry. Reference has been made in this connection to that Ministry's letter dated 29-12-1997 opposing the levy. It has also been pointed out that Steel Authority of India and RINL are under the same Ministry, and therefore, should be treated as commonly controlled (and related) and both excluded once SAIL has been found to be ineligible to form part of domestic industry. The exclusion has been justified on the grounds that at the time of initiation of proceedings RINL was in support and the requirement for support is only at the stage of initiation and not for continuing with an already intiated investigation. The D.A. had also held RINL to be liable to be excluded as it produced met coke for its own use only.

5.2 Exclusion of RINL was justified on account of its produce being used captively also. It is admitted position that its manufacture of metcoke is not for marketing, but is for use by itself in further manufacture. Therfore, its production is not in competition with the imported goods. The economics of producers for captive consumption and of producers for sale are very different. The former saves on the costs of marketing sales, inventory etc. Therefore, these producers are, justifiably, treated as a separate market while computing domestic industry. This is the practice in European Union also. That RINL had sold a part of their produce during the period of investigation does not change their position from that of a producer for captive use. Rule 2(b) defines domestic industry as the domestic producers as a whole of the like article. However, proviso to this definition states that in exceptional circumstances, the domestic industry shall be deemed to comprise two or more competitive markets and the producers within each of such markets be deemed as a separate industry. As the captive consumption producers and producers for marketing constitute different categories of producers, under the proviso, they could be dealt with as separate domestic industries. Thus, RINL's exclusion is legally .correct in the light of the proviso to Rule 2(d) also. In the circumstances, we are not able to find merit in the submissions on standing made by the PR exporters.