2004 (4) TMI 326 - AT - Customs

Summary

Issues Involved:
1. Inclusion of metallised films in the anti-dumping investigation.
2. Acceptance of price undertaking by M/s. Al Khaleej Polypropylene Products Company.
3. Appropriateness of the Designated Authority's injury analysis.

Issue-wise Detailed Analysis:

1. Inclusion of Metallised Films in the Anti-Dumping Investigation:
The contention raised by M/s. Paper, Film & Foil Converters' Association and M/s. Al Khaleej Polypropylene Products Company was that the investigation should pertain only to BOPP films and not include metallised films. The appellants argued that metallised films, being distinct commodities, were wrongfully included in the scope of the investigation. However, the Designated Authority had initiated the investigation based on a complaint from the domestic industry, which included manufacturers of metallised films. Throughout the investigation, the Designated Authority had disclosed to the interested parties that metallised films were part of the investigation. This was evident from the disclosure statement and the responses from the interested parties, including objections from M/s. Al Khaleej. The Tribunal found merit in the Designated Authority's inclusion of metallised films, as it was consistently communicated and objected to during the investigation process.

2. Acceptance of Price Undertaking by M/s. Al Khaleej Polypropylene Products Company:
M/s. Al Khaleej contended that once their price undertaking was accepted by the Designated Authority, further investigation into injury and causal link should have ceased. However, the Tribunal noted that the investigation was not limited to M/s. Al Khaleej alone but included other exporters as well. The Designated Authority was required to determine the injury, causal link, and dumping margin for all exporters. The acceptance of the price undertaking did not prejudice M/s. Al Khaleej, and the Tribunal found no grounds to halt the investigation solely based on the price undertaking. Consequently, the appeal by M/s. Al Khaleej was rejected.

3. Appropriateness of the Designated Authority's Injury Analysis:
The domestic industry argued that the Designated Authority erred in accepting a single price undertaking from M/s. Al Khaleej for various grades and qualities of BOPP films, which could potentially harm the domestic industry. The Tribunal agreed, noting the significant price difference between metallised and non-metallised films and the various grades of BOPP films. The Designated Authority had specifically requested separate schedules for each grade in their questionnaire, but the exporters and importers failed to provide this information. Therefore, the Designated Authority relied on the domestic industry's data to determine the normal price and assess the injury. The Tribunal found that the Designated Authority had thoroughly examined factors such as production, capacity utilization, market share, profitability, and return on investment to arrive at a non-injurious price. As a result, the Tribunal set aside the acceptance of the price undertaking and modified the rates of anti-dumping duty as indicated in the revised table.

Conclusion:
The Tribunal allowed the appeal by the domestic industry, modifying the anti-dumping duty rates, while rejecting the appeals filed by M/s. Paper Films Foil Converter Association and M/s. Al Khaleej Polypropylene Products Company.