2011 (8) TMI 577 - AT - Customs

Anti dumping duty - Designated Authority had imposed definitive Anti-dumping duty on NBR originating in or exported out of Germany and Korea - first sunset review continued the duty - Held That - Duty is imposable to protect the interest of domestic industry. Validity of Sunset review - Held That - Sunset review can be initiated by the Designated Authority, to ascertain the need for continuance of definite Anti-dumping duty and hence is prospective in nature. Since the continuance of Anti-dumping duty is of prospective nature, it is also settled law, that the Designated Authority need not follow the rigours of the original investigation initiated for imposition of definitive Anti-dumping duty.

Summary

Issues Involved:
1. Legality of the likelihood of injury determination.
2. Alleged violation of principles of natural justice.
3. Accuracy of injury determination and dumping margin.
4. Appropriateness of the Anti-dumping duty amount.
5. Correctness of the single weighted average normal value determination.
6. Disclosure of evidence and data by the Designated Authority.

Detailed Analysis:

1. Legality of the Likelihood of Injury Determination
The appellants argued that the likelihood of injury determination by the Designated Authority was based on presumptions and conjectures rather than relevant facts or objective data. They contended that the Designated Authority's conclusion about future capacity expansion was unsupported by substantive evidence, relying instead on undisclosed press reports. The Tribunal, however, upheld the Designated Authority's findings, emphasizing that the sunset review focuses on the likelihood of continuation or recurrence of dumping and injury if duties are removed, which was properly analyzed.

2. Alleged Violation of Principles of Natural Justice
The appellants claimed a gross violation of principles of natural justice, asserting that critical facts and evidence were not disclosed, and they were not given sufficient time to respond to the revised disclosure statement issued on 4-10-2008. The Tribunal noted that the Designated Authority had issued a disclosure statement on 23-9-2008 and a partly revised disclosure statement on 4-10-2008, which contained minor modifications. The Tribunal found that the Designated Authority had followed due process, and the appellants were given opportunities to present their comments, thus upholding the findings.

3. Accuracy of Injury Determination and Dumping Margin
The appellants argued that the injury determination and dumping margin calculation were illegal and unsustainable, citing errors in the use of data and rejection of actual consumption factors without reasons. They contended that the Designated Authority's conclusion about import volumes and export prices was erroneous. The Tribunal found that the Designated Authority's analysis was based on hard facts and evidence, and the injury determination was properly conducted. The Tribunal held that the Designated Authority's findings on the likelihood of continuation of dumping and injury were valid.

4. Appropriateness of the Anti-dumping Duty Amount
The appellants contended that the amount of duty recommended by the Designated Authority was contrary to the provisions of Section 9A(1) of the Customs Tariff Act and Rule 18 of the AD Rules. They argued that the definitive Anti-dumping duty of US $ 38.73 was disproportionate to the determined dumping margin of 1.69%. The Tribunal upheld the Designated Authority's determination, noting that the duty amount was based on a thorough analysis of the data and evidence.

5. Correctness of the Single Weighted Average Normal Value Determination
The appellants challenged the determination of a single weighted average normal value for Korea RP, arguing it was incorrect and unwarranted. The Tribunal found that the Designated Authority had computed a single average normal value for both companies and weighted it to arrive at the country-specific normal value, in line with the Supreme Court ruling. The Tribunal upheld the Designated Authority's approach, finding it consistent with legal standards.

6. Disclosure of Evidence and Data by the Designated Authority
The appellants argued that the non-disclosure of press reports, transaction-wise DGCIS data, WTA Statistics, and reasons for rejecting actual consumption data affected their defense rights. The Tribunal noted that the Designated Authority had disclosed essential facts and provided opportunities for the appellants to submit comments. The Tribunal held that the Designated Authority had followed due process and that the non-disclosure claims did not invalidate the final findings.

Conclusion
The Tribunal upheld the Designated Authority's final findings dated 4-10-2008 and the Notification No. 1/2009, dated 2-1-2009, imposing definitive Anti-dumping duty on NBR imported from Korea RP. The appeals were rejected, and the stay petitions were disposed of accordingly.