2014 (1) TMI 383 - AT - Customs

Imposition of anti dumping duty - import of acetone originating in or exported from EU, Chinese Taipei, Singapore, South Africa and USA - Goods were exported to India from the subject countries below its normal value - Investigation against exports - Held that - Domestic industry seeking protection of trade measure comprises producers thereof who are required to satisfy either of the conditions mentioned in Rule 2(b) of 1995 Rules to complain dumping and injury for the trade remedy measure. Record revealed that the applicants were the only producers of the subject goods in India and this remained un-refuted by appellant. When DA found that the applicant producers constituted domestic industry he was prima facie satisfied about veracity of the complaint against dumping and injury to the domestic industry. He was of the view that examination of the existence of dumping, degree thereof and effect of such dumping was substantial, for which he initiated investigation on 7.9.206 against subject countries although the application for initiation of investigation was against US, EU, Singapore, Chinese Taipei and South Africa as well as South Korea. The Authority considered that the data provided by the domestic industry was for a period of nine months and that was inadequate to investigate into various aspects of the exports as per standard practice since POI normally comprises a period of twelve months. None of the findings of the DA appears to be without evidence or legal basis. Therefore, it is not possible to impeach the findings in absence of cogent evidence to the contrary brought to our notice by the appellant - when investigation against export from subject country was initiated, the exporters of all those countries were equally treated having their export above de minimus level. But exports from South Korea were below the de minimus level. That made the basis unequal, calling for separate treatment by a separate Notification and investigation. That was rightly done by DA following the basic principle that equals are equally treated. Therefore, the term simultaneous investigation is to be read in the context of language employed in 1995 Rules specifying that import of product from more than one country, if subjected to investigation under a Notification, in that circumstance simultaneous investigation is done in respect of exports of such countries and cumulative assessment of the effect of imports from such country is mandated. Therefore, the appellants fail to establish that there was no simultaneous investigation done. The appellant also fails in its contention that there was no cumulative assessment done. The DA acted within the framework of the law for which none of its finding can be disturbed. So also the Customs Notification is not liable to be set aside since that is based on reasons and findings of DA as well as evidence - Decided against assessee.

Issues Involved:
1. Levy of definitive anti-dumping duty.
2. Period of investigation and injury analysis.
3. Constitution of domestic industry.
4. Determination of normal value, export price, and dumping margin.
5. Injury analysis and cumulative assessment.
6. Arguments by the appellant against the findings.
7. Contentions of the Revenue and domestic industry.
8. Findings and conclusions of the Tribunal.

Comprehensive, Issue-wise Detailed Analysis:

1. Levy of Definitive Anti-Dumping Duty:
The Customs Notification No. 33/2008-Cus dated 11/03/2008 imposed definitive anti-dumping duty on imports of acetone from specified countries. The Designated Authority (DA) recommended this levy based on the final findings that the subject goods were exported to India below their normal value, causing material injury to the domestic industry.

2. Period of Investigation and Injury Analysis:
The period of investigation (POI) was from 1st July 2005 to 30th June 2006, and the injury investigation covered April 2003 to March 2006. The DA concluded that the domestic industry suffered material injury due to dumped imports from the subject countries. A sunset review was also initiated during the currency of the definitive anti-dumping duty.

3. Constitution of Domestic Industry:
Hindustan Organic Chemicals Ltd. (HOCL) and SI Group Ltd. were considered domestic industry, producing 100% of acetone in India. Despite objections, the DA included them in the domestic industry, considering their significant production and the impact of dumped imports on their operations. SI Group's imports under the Duty Exemption Scheme and HOCL's status as a BIFR company were deemed insufficient to exclude them from the domestic industry.

4. Determination of Normal Value, Export Price, and Dumping Margin:
The DA determined the normal value and export price for various exporters from the subject countries, using transaction-wise data and making necessary adjustments for expenses. For non-cooperating exporters, data from DGCI&S was used. The dumping margins were calculated and found to be significant and above de minimus levels.

5. Injury Analysis and Cumulative Assessment:
The DA conducted a volume effect analysis and cumulative assessment of injury caused by dumped imports from the subject countries. The market share and demand trends indicated a decline in the domestic industry's share and an increase in imports from subject countries. Price underselling and undercutting were also examined, demonstrating the adverse impact on the domestic industry.

6. Arguments by the Appellant Against the Findings:
The appellant challenged the Customs Notification and the DA's findings on several grounds, including the piecemeal initiation of investigation, the inclusion of HOCL as a domestic producer despite its BIFR status, and the exclusion of Phenol from the investigation. The appellant also argued that the DA failed to disclose deficiencies in the domestic industry's application and that the investigation against South Korea and Russia was not conducted simultaneously with other subject countries.

7. Contentions of the Revenue and Domestic Industry:
The Revenue and domestic industry defended the DA's findings, arguing that the investigation was conducted properly, and the domestic industry was rightly constituted. They emphasized that the DA followed due process, and the Customs Notification was based on sound logic and evidence. The domestic industry argued that dumping and injury were clearly established, and the appellant's contentions were baseless.

8. Findings and Conclusions of the Tribunal:
The Tribunal upheld the DA's findings and the Customs Notification, concluding that the investigation was conducted in accordance with the law. The DA's determination of normal value, export price, and dumping margin was found to be accurate. The Tribunal dismissed the appellant's arguments, stating that the DA acted within the legal framework, and the domestic industry's right to protection against dumping was justified. The appeal was dismissed on all counts.

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