Designated Authority Anti-Dumping ... vs M/S. Haldor Topsoe A/S. on 20 July, 2000
9. Contentions have been raised by both sides, as to how normal value is to be ascertained relying on the judgment of the Apex Court in the case of Designated Authority v. Haldor Topsoe (supra). A careful reading of that decision leaves no doubt that normal value is irrespective of manufacturer. Normal Value is determined for a country or a territory. It has also been made clear that where normal value information is available in respect of one manufacturer located in a country or territory, that normal value can be applied to other exporters in that country or territory for the purpose of determining whether the exports by those units are dumped exports. It was the specific situation in that case that the Designated Authority treated the European Union sale price of a European manufacturer as constituting normal value for determination of dumping by another non-co-operating exporter from the European Union. Further, resort was being made to such a course by the Designated Authority under "facts available" rule. In the judgment, the Apex Court held that statutory guidelines for determination of Normal Value have been placed in a preferential sequence, for example, "if acceptable material is available in regard to the comparable price in ordinary course of trade in the exporting country or territory itself, then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available, then the Authority has been given a choice under Section 9A(1)(c)(ii)(2) and (b)" [emphasis added]. In the present case, Designated Authority has determined that the sale price of BASF for AD3 in Germany satisfies the requirement of normal value. This 'comparable price' has to be treated as normal price "of similar articles sold under similar circumstances irrespective of the manufacturer". AD3 manufactured by BASF Germany and M/s. Addisseo France SAS are admittedly similar articles. They are also sold under similar circumstances, inasmuch as both are sold in competitive conditions in the European Union. So a "comparable price" for the AD3 of one rightly constitutes the "comparable price" for the other, in other words normal value. It is not in dispute that the export price to India of M/s. Addisseo France SAS for AD3 is well above the normal value determined for BASF i.e. for European Union. In such a situation, it has to be held that there was no dumping of AD3 by M/s. Addisseo France SAS. Consequently, there was no legal justification for imposing anti-dumping duty on AD3 manufactured by Addisseo France SAS and exported to India. In the view we have taken on the issue of normal value, the objections raised by the Counsel for the Designated Authority and the Domestic Industry on the ground of adverse inference etc. have to fail.