2006 (6) TMI 231 - AT - Customs

Summary

Issues Involved:
1. Maintainability of the appeal by the importer.
2. Basis of imposition of anti-dumping duty.
3. Technical and commercial substitutability of imported articles.
4. Injury to the domestic industry.

Detailed Analysis:

1. Maintainability of the Appeal by the Importer:
The respondent raised a preliminary objection on the maintainability of the appeal, arguing that the importer, being only an "interested party," could not be affected by the findings of the authority. They cited the case of AIIGMA, asserting that the importer cannot challenge findings on normal value and export price. However, the appellant countered that as an importer, they are defined as an "interested party" and have the right to appeal. The tribunal found that Section 9C of the Customs Tariff Act, 1975, allows any aggrieved party to file an appeal if they participated in the investigation. Since the appellant participated and was affected by the imposition of anti-dumping duty, the tribunal held that the appeal was maintainable.

2. Basis of Imposition of Anti-Dumping Duty:
The appellant argued that the basis for imposing anti-dumping duty was faulty, as the investigation initially included all Mica Pearl Pigments but later excluded cosmetic and automotive grades, focusing only on industrial grade. They contended that the authority did not correctly define the product under consideration and incorrectly applied the principle of weighted average for determining dumping. The tribunal found that the appellant did not raise these issues during the investigation and that the authority had worked out the cost of production and non-injurious price based on the information provided by the exporter. The tribunal held that the appellant could not challenge the findings on these grounds for the first time in the appellate forum.

3. Technical and Commercial Substitutability of Imported Articles:
The appellant claimed that the imported articles were of 'off spec' quality and could not be compared with the products manufactured by the domestic industry. The tribunal noted that the exporter never indicated that the exports were of 'off spec' quality during the investigation. The authority examined and verified that the imported articles were technically and commercially substitutable with the domestic products. The tribunal found no merit in the appellant's argument and upheld the authority's findings.

4. Injury to the Domestic Industry:
The appellant argued that the domestic industry did not suffer injury, as the sales volume, production capacity, and export sales had increased during the investigation period. They also contended that the return on investment was wrongly calculated and that the injury was self-inflicted due to increased production capacity despite sluggish market conditions. The tribunal found that the designated authority had thoroughly scrutinized the data and concluded that there was injury to the domestic industry due to dumped imports. The tribunal agreed with the authority's reasoning and findings, and found no warrant for interference with the final findings and the notification.

Final Order:
The tribunal dismissed the appeal, holding that the contentions raised by the appellant were misconceived and could not be accepted. The final findings and the notification imposing anti-dumping duty were upheld.