2004 (6) TMI 360 - AT - Customs

Summary

Issues Involved:
1. Imposition of definitive Anti-Dumping duty on imports of Polyester Staple Fibre (PSF) from Korea, Malaysia, Taiwan, and Thailand.
2. Alleged material injury to the domestic industry.
3. Alleged improper period of investigation and data analysis by the Designated Authority.
4. Allegations of price undercutting and price suppression by dumped imports.
5. Threat of injury due to excess production capacity in dumping countries.

Issue-wise Detailed Analysis:

1. Imposition of definitive Anti-Dumping duty on imports of PSF:
The appeals challenge the imposition of definitive Anti-Dumping duty on imports of PSF from Korea, Malaysia, Taiwan, and Thailand under Notification No. 43/2003-Cus., dated 21st March 2003, based on the Final Finding (Notification No. 22/1/2001 DGAD, dated 24th December 2002) by the Designated Authority in the Ministry of Commerce. The Designated Authority concluded that the subject goods were dumped, causing material injury and threat to the domestic industry.

2. Alleged material injury to the domestic industry:
The importers argued that there was no material injury to the domestic industry from the purported dumping. They contended that the conclusion of material injury was reached through a distorted and improper presentation and analysis of data. They criticized the assumption that the domestic industry should have a fixed return on capital every year, which they argued was contrary to open market norms and created an artificial risk-free environment for the domestic industry. The Tribunal agreed that the claim of material injury was not justified by the data, especially considering the domestic industry's healthy return on capital in the year 1999-2000 and the absence of significant price suppression.

3. Alleged improper period of investigation and data analysis by the Designated Authority:
The importers pointed out that the Designated Authority chose an improper period of investigation (January 2000 to September 2000), which straddled parts of two financial years and could not yield reliable data for proper financial analysis. They alleged that this choice was made to obfuscate and favor the domestic industry. The Tribunal found no reason to be detained by these contentions, given the data available during the appeal proceedings.

4. Allegations of price undercutting and price suppression by dumped imports:
The importers argued that there was no significant price undercutting or price suppression by the dumped imports. The Tribunal noted that the domestic industry's sale prices were higher than the prices of imported goods during the last six months of the Period of Investigation and that the domestic industry was able to raise selling prices during this period. The Tribunal concluded that the finding of price suppression or undercutting was not tenable given the actual data and the independent movement of domestic and import prices.

5. Threat of injury due to excess production capacity in dumping countries:
The domestic industry claimed a threat of injury due to the surplus production capacity in the dumping countries. The Tribunal emphasized that the Anti-Dumping Rules require a clearly foreseen and imminent threat of injury. Since the dumped prices were not causing material injury, the existence of surplus production capacity could not be considered a threat of injury.

Conclusion:
The Tribunal concluded that the findings regarding material injury and threat of injury were not sustainable. Consequently, the imposition of Anti-Dumping duty was not permissible. The appeals of the importers were allowed, and Notification No. 43/2003-Cus. imposing duty was set aside. The appeal of the domestic manufacturers of PSF was rejected.