2011 (3) TMI 103 - AT - Customs

Anti-dumping duty - In terms of Notification No.116/2009-Cus dated 08.10.2009, plain medium density fibre board of thickness 6 mm and above originating in or exported from Malaysia, among others, attracts anti-dumping duty at a rate expressed in terms of the difference between the amount indicated in column 9 of the Table annexed to the said notification and landed value of imports - Under the GATT provisions, the national authorities cannot impose duties higher than the margin of dumping - The reasons, if any, for not defining the expression landed value in the impugned Notification No.116/09 is not ascertainable In respect of Notification No.116/09 dated 8.10.2009 the landed value has to be taken to mean the assessable value as determined under the Customs Act, 1962 (52 of 1962) and includes all duties of customs except duties levied under sections 3, 8B, 9 and 9A of the said Customs Tariff Act, 1975 as has been defined in the case of other anti-dumping notifications from time to time - Accordingly, the impugned order is set aside and the appeal is allowed

Summary

Issues: Interpretation of anti-dumping notification for determination of anti-dumping duty on imported goods.

In this case, the appellants imported medium density fibre board from Malaysia and filed a bill of entry at Tuticorin Custom House. The issue revolved around the calculation of anti-dumping duty under Notification No.116/2009-Cus, specifically regarding the definition of "landed value." The department argued that landed value should not include basic customs duty, while the appellants contended that it should. The appellants relied on a Ministry of Commerce guide stating that landed value includes assessable value under the Customs Act, 1962, plus basic customs duty. The tribunal noted that while Section 9A of the Customs Tariff Act, 1975 defines various terms for anti-dumping duty, it does not define landed value. Anti-dumping duties can be imposed in different ways, such as a specific amount or a percentage, or as the difference between fair selling price and landed value. The tribunal highlighted that many anti-dumping notifications define landed value as assessable value under the Customs Act, 1962, plus all customs duties except specific ones. The tribunal emphasized that the purpose of anti-dumping duty is to remove injury caused by dumping and provide a level playing field for domestic producers. Therefore, the calculation of landed value should include basic customs duty to ensure the anti-dumping duty is sufficient to address the injury margin.

The tribunal also examined the final findings of the Designated Authority, which recommended imposing anti-dumping duty equal to the lesser of the margin of dumping and the margin of injury to remove injury to the domestic industry. This recommendation aligned with India's lesser duty rule, which restricts anti-dumping duty to the lower of the dumping margin and the injury margin. The tribunal emphasized that defining landed value as assessable value under the Customs Act, 1962, plus all customs duties except specific ones, enables the correct computation of anti-dumping duty to address injury caused by dumping. The tribunal concluded that in the absence of a valid reason for not defining landed value in the impugned notification, the calculation should align with other anti-dumping notifications to ensure fairness and prevent unintended advantages to domestic industries. Therefore, the tribunal held that for Notification No.116/2009, landed value should include assessable value under the Customs Act, 1962, plus all customs duties except specific ones, as defined in other anti-dumping notifications, setting aside the impugned order and allowing the appeal.