2003 (9) TMI 387 - AT - Customs

Summary

Issues Involved:
1. Initiation of anti-dumping investigation based on limited import data.
2. Confidentiality of import data from Kandla port.
3. Reliance on trade journal for determining normal value.
4. Accuracy and reliability of trade journal data.
5. Consideration of German market price provided by BASF.
6. Examination of data accuracy by the Designated Authority.
7. Opportunity for domestic users to examine data accuracy.
8. Impact of anti-dumping duty on domestic consumers.

Issue-Wise Detailed Analysis:

1. Initiation of Anti-Dumping Investigation Based on Limited Import Data:
The appellants contended that the Designated Authority should not have initiated the anti-dumping investigation since imports from the European Union occurred only during four months of the nine-month investigation period. The Designated Authority, however, proceeded with the investigation based on the data provided by the domestic industry.

2. Confidentiality of Import Data from Kandla Port:
The appellants argued that the Designated Authority violated natural justice and Rule 7 of the Anti-Dumping Rules by treating the Kandla port import data as confidential. This prevented the appellants from verifying the accuracy of the import data used to determine the export price.

3. Reliance on Trade Journal for Determining Normal Value:
The Designated Authority relied exclusively on the European prices of Aniline reported in the 17-11-99 issue of "Chemical Week" to determine the normal value. The appellants argued that this reliance was contrary to the Supreme Court's ruling in Designated Authority v. Haldor Topsoe, which questioned the reliability of trade journals.

4. Accuracy and Reliability of Trade Journal Data:
The appellants contended that data published in trade journals are often inaccurate, misleading, and exaggerated. They argued that the Designated Authority should have considered the German market price provided by BASF, which was lower than the prices reported in the trade journal.

5. Consideration of German Market Price Provided by BASF:
The Designated Authority did not consider the information provided by BASF regarding home market sale prices of Aniline, as it was deemed insufficient to determine the normal value. The Authority noted that BASF did not link the data to their audit and accounts, nor did they establish that the product was sold above the cost of production.

6. Examination of Data Accuracy by the Designated Authority:
The appellants argued that the Designated Authority violated Rule 8 of the Anti-Dumping Rules by not examining the accuracy of the data furnished by the domestic industry. The Authority relied on the trade journal data without verifying its authenticity.

7. Opportunity for Domestic Users to Examine Data Accuracy:
The appellants claimed that the Designated Authority contravened Rule 6 of the Anti-Dumping Rules by denying domestic users of Aniline the opportunity to examine the accuracy of the claims made by the domestic industry. The Authority did not provide an opportunity for domestic users to furnish relevant information regarding dumping, injury, and causality.

8. Impact of Anti-Dumping Duty on Domestic Consumers:
The appellants argued that the Designated Authority neglected to consider the impact of the anti-dumping duty on domestic consumers of Aniline. The imposition of the duty would adversely affect industries dependent on Aniline.

Conclusion:
The Tribunal found that the Designated Authority's determination of the normal value of Aniline in the European Union was based on erroneous data from the trade journal "Chemical Week." The Tribunal noted that the journal data did not constitute relevant facts and were not specific to the European Union. Consequently, the finding of dumping against European Union exporters was unsustainable. The anti-dumping duty imposed under Customs Notification No. 71/2001 was set aside, and the appeals were allowed.