2003 (6) TMI 211 - AT - Customs

Summary

Issues Involved:
1. Legal justification for imposing anti-dumping duty on exports from the appellant French producer.
2. Determination of normal value for the appellant French producer.
3. Applicability of the "facts available" rule.
4. Comparison of export prices with normal value.
5. Verification of data and cooperation by the appellant.

Detailed Analysis:

1. Legal Justification for Imposing Anti-Dumping Duty:
The appellant argued that there was no legal justification for the imposition of duty on their exports. They contended that since BASF, Germany, was found not to be dumping, the same should apply to them as both companies operate in similar markets and have comparable CIF prices for exports to India. The appellant provided complete details of their sales, asserting that their export prices to India were above the domestic sales prices in France and the European Union, thus not constituting dumping.

2. Determination of Normal Value:
The appellant argued that the normal value determined for BASF should be applicable to them as well since both are located within the European Union. They cited the Supreme Court's judgment in Designated Authority v. Haldor Topsoe A/S, which held that normal value is to be determined for a country or territory, not specific exporters. The Designated Authority, however, treated the appellant as a non-cooperating exporter and used constructed cost information provided by the domestic industry to determine a higher normal value.

3. Applicability of the "Facts Available" Rule:
The Designated Authority argued that due to the appellant's non-cooperation, they had to rely on the "facts available" rule to determine the normal value, which included data from the domestic industry. The appellant countered that they had provided all necessary information and should not be considered non-cooperating. They argued that the Designated Authority should have used the verified normal value for BASF as the basis for determining their normal value.

4. Comparison of Export Prices with Normal Value:
The appellant's export prices to India were above the normal value determined for BASF, suggesting no dumping. The Designated Authority and the domestic industry argued that due to the appellant's non-cooperation, a separate higher normal value should be determined using the "facts available" rule. However, the Tribunal found that the normal value determined for BASF should apply to the appellant, as both operate under similar market conditions within the European Union.

5. Verification of Data and Cooperation by the Appellant:
The Tribunal noted that the appellant had provided all required information, and the Designated Authority should have verified this data instead of treating them as non-cooperating. The Tribunal emphasized that the Designated Authority should seek corroboration for secondary information under the "facts available" rule and found that the constructed cost information provided by the domestic industry was unreliable compared to the verified normal value for BASF.

Conclusion:
The Tribunal concluded that the normal value determined for BASF should be applied to the appellant's exports, resulting in a finding of no dumping. Consequently, there was no legal justification for imposing anti-dumping duty on the appellant's exports. The appeal was allowed, and the Customs Notification was amended to exclude the appellant from the anti-dumping duty.

Amendment to Customs Notification No. 53/2002:
The Tribunal ordered the amendment of Column (3) under S.No. (1) in the Table to Customs Notification No. 53/2002, dated 21-5-2002, to exclude M/s. Addisseo France SAS along with M/s. BASF Aktiengesellschaft, Germany, from the imposition of anti-dumping duty. The appeal was disposed of accordingly.