2013 (12) TMI 1246 - AT - Customs

Imposition of anti-dumping duty - Imports of NTCF from China - manner of decision - principles of natural justice - Held that - Anti Dumping Duty was rightly imposed in the fitness of the circumstances of the case. Recommendations of DA notifying no cessation of antidumping duty are not at all faulty since he had carried out a detailed examination of various facts to come to the conclusion that the subject goods originating in or exported from Chinese Taipei Indonesia and EU (excluding France) have been exported below their normal value resulting in dumping. He also came to the conclusion that in the case of revocation of anti dumping duties the dumped imports from these countries are likely to continue to cause injury to Domestic Industry. The resultant customs notification issued by Ministry of Finance imposing anti-dumping duty is based on sound reasons. Both the notifications are therefore upheld. All the grounds raised by the appellant in the present appeal against mid-term review initiated at its instance being devoid of merit the appeal is liable to be dismissed. If one person hears and other decides then personal hearing becomes an empty formality. In the present case admittedly the entire material had been collected by the predecessor of the DA; he had allowed the interested parties and/or their representatives to present the relevant information before him in terms of Rule 6(6) but the final findings in the form of an order were recorded by the successor DA who had no occasion to hear the appellants herein. In our opinion the final order passed by the new DA offends the basic principle of natural justice. Thus the impugned notification having been issued on the basis of the final findings of the DA who failed to follow the principles of natural justice cannot be sustained. It is quashed accordingly. The appellants cannot claim refund of duty already levied in as much as they have not specifically challenged the findings of the sunset review and therefore the findings in relation to the existence of dumped imports material injury to domestic industry and causal link between dumped imports and material injury to domestic industry remain unchallenged - Following decision of AUTOMOTIVE TYRE MANUFACTURERS ASSOCIATION Versus THE DESIGNATED AUTHORITY & ORS. 2011 (1) TMI 7 - SUPREME COURT OF INDIA - Decided against assessee.

Issues Involved:
1. Continuation of anti-dumping duty.
2. Composition of Domestic Industry.
3. Confidentiality of information.
4. Determination of Normal Value and Export Price.
5. Likelihood of dumping and injury.
6. Cumulative assessment of injury.

Detailed Analysis:

1. Continuation of Anti-Dumping Duty:
The appeal by Hindustan Lever Ltd. challenges the continuation of anti-dumping duty on caustic soda imports from the EU (excluding France), Indonesia, and Chinese Taipei. The duty was initially imposed based on a recommendation by the Designated Authority (DA) and was continued following a mid-term review. The appellant argued that the conditions of dumping and injury had changed, warranting the withdrawal of the duty. However, the Tribunal found that the DA's analysis was thorough and justified the continuation of the duty to offset dumping and prevent injury to the domestic industry.

2. Composition of Domestic Industry:
The appellant contended that the composition of the domestic industry had changed between the original investigation and the mid-term review, leading to an erroneous injury analysis. The Tribunal noted that the DA had considered producers whose collective output constituted a major proportion of the total domestic production, satisfying the legal requirements. The Tribunal upheld the DA's approach, emphasizing that the review process focuses on the likelihood of continued or recurring dumping and injury, rather than re-examining the composition of the domestic industry.

3. Confidentiality of Information:
The appellant claimed that the DA did not provide relevant information due to excessive confidentiality claims. The Tribunal found that the DA had made all necessary information available in the public domain and allowed for inspection. The appellant's representatives had accessed the public file, and there was no evidence of excessive confidentiality that hindered the appellant's ability to argue its case.

4. Determination of Normal Value and Export Price:
The appellant argued that the DA followed inconsistent practices in determining the normal value and export prices. The Tribunal found that the DA had used reliable data, including third-country export prices and the Chlor Alkali Market Report, to construct the normal value and export prices. The DA's methodology was deemed rational and consistent with the Anti-Dumping Agreement and municipal law.

5. Likelihood of Dumping and Injury:
The DA's analysis concluded that the subject goods were likely to continue entering the Indian market at dumped prices, causing injury to the domestic industry if the duty was withdrawn. The Tribunal supported this conclusion, noting that the DA had considered various factors, including surplus capacities of exporters, price undercutting, and price underselling, which indicated a likelihood of continued or recurring injury.

6. Cumulative Assessment of Injury:
The Tribunal upheld the DA's cumulative assessment of injury, which considered the combined effects of imports from the subject countries. The DA found significant dumping margins and potential injury, justifying the continuation of the anti-dumping duty. The Tribunal agreed that the DA's approach was appropriate and supported by evidence.

Conclusion:
The Tribunal dismissed the appeal, affirming the DA's findings and the continuation of the anti-dumping duty. The DA's investigation was deemed thorough, transparent, and in accordance with legal requirements. The Tribunal emphasized the importance of concise and well-structured grounds of appeal to facilitate effective hearings.

← Previous Next →