2015 (3) TMI 992 - AT - Customs

Withdrawal of Levy of anti dumping duty on imports of Pentaerythritol, originating in or exported from Sweden to India - whereas levy was continued for import from china - It is contended that the authority was incorrect in drawing an inference of no likelihood of injury, based on the fact that there were negligible imports from Sweden - Held that - After the imposition of duties on Sweden, there has been almost a cessation of exports from Sweden. It has been argued that the exporter needs to dump to sell substantial volumes in India. Attention was invited to the international practice, where the decline in import volumes or cessation of exports after the imposition of duties is considered to be highly probative of the likelihood of continuation of recurrence of dumping. We find that while the exports from Sweden have declined to negligible levels, the exports from Germany have increased. However, the Authority also notes that the exports from Sweden to other countries are also negligible, and therefore, cessation of exports to India is not indicative of likelihood of dumping and injury if antidumping duty was removed. Indeed, in such a situation, it can not be said, notwithstanding the contention of the appellant, that exports to India dropped to negligible level due to anti-dumping duty when exports from Sweden to other countries too were negligible. The existence of possibility does not necessarily mean the existence of likelihood . Thus, the DA was in no way contracting himself when he found the possibility but not likelihood of dumping. As has been reiterated in the recent judgment of the Delhi High Court in the case of M.P. Goenka vs. CC, (Preventive) 2015 (2) TMI 263 - DELHI HIGH COURT , it is not the task of the Court exercising appellate power to review or second guess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis-appreciation of law or non-appreciation of mind. - No sufficient merit/ basis to warrant any appellate intervention vis- -vis the DA s findings/ conclusion and the consequent discontinuation of antidumping duty in respect of imports of subject goods from Sweden - Decided against assessee.

Summary

Issues Involved:
1. Imposition and discontinuation of anti-dumping duty on imports from Sweden.
2. Likelihood of recurrence of dumping or injury upon revocation of duties.
3. Examination of evidence and arguments presented by the domestic industry and the Designated Authority.
4. Legal standards and interpretations regarding sunset reviews under the Customs Tariff Act, 1975 and WTO Agreement on Anti-Dumping.

Detailed Analysis:

1. Imposition and Discontinuation of Anti-Dumping Duty on Imports from Sweden:
The Central Government had initially imposed anti-dumping duty on Pentaerythritol imports from China PR and Sweden by Notification No. 37/2006-Cus dated April 20, 2006. The domestic industry (M/s Kanoria Chemicals Ltd.) appealed against the sunset review notification No. 47/2011-Cus dated June 14, 2011, which discontinued the anti-dumping duty on imports from Sweden while continuing it for imports from China PR. The Designated Authority in its Final Findings dated March 25, 2011, concluded that the minimal imports from Sweden during the investigation period (81MT) were not representative for determining individual dumping margins.

2. Likelihood of Recurrence of Dumping or Injury Upon Revocation of Duties:
The Designated Authority concluded that there was no likelihood of continuation or recurrence of injury from Sweden if the anti-dumping duty was revoked. The Authority noted the negative margins of both dumping and injury concerning imports from Sweden and the low volume of imports, which did not indicate a threat to the domestic industry. The domestic industry argued that the reduction in imports was due to the existing anti-dumping duty and that Perstorp, the sole producer in Sweden, could resume dumping from Sweden if duties were revoked, given its significant exports from Germany at dumped prices.

3. Examination of Evidence and Arguments Presented:
The domestic industry contended that the Designated Authority failed to consider the potential for resumed dumping from Sweden and the existing dumping from Germany. They argued that the cessation of exports from Sweden was not indicative of the absence of dumping risk and that the Authority should have considered the likelihood of recurrence based on international practices and patterns of export behavior. The Designated Authority, however, found no substantial evidence to support the claim that revocation of duties would lead to resumed dumping from Sweden. The Authority also noted that exports from Sweden to other countries were negligible, which did not support the argument that the drop in exports to India was solely due to anti-dumping duties.

4. Legal Standards and Interpretations Regarding Sunset Reviews:
The Tribunal referred to Section 9A (5) of the Customs Tariff Act, 1975, and Article 11.3 of the WTO Agreement on Anti-Dumping, which require examining the likelihood of continuation or recurrence of dumping and injury upon duty revocation. The Tribunal cited the Supreme Court judgment in Rishiroop Polymers, which emphasized that the review inquiry should determine whether conditions have changed significantly to justify the continuation or discontinuation of duties. The Tribunal also referred to the Delhi High Court's judgment in Indian Metal and Ferro Alloys Ltd. and other relevant case laws, affirming that the findings of the Designated Authority at the time of initial imposition of duties should continue to hold unless significant changes are established.

Conclusion:
The Tribunal upheld the Designated Authority's decision to discontinue the anti-dumping duty on imports from Sweden, finding no sufficient merit or basis for appellate intervention. The appeal was rejected, affirming that the Authority's findings were based on a reasoned analysis of the available evidence and aligned with legal standards for sunset reviews. The Tribunal clarified that the possibility of dumping does not equate to the likelihood of dumping, and the cessation of exports from Sweden to other countries supported the conclusion that revocation of duties would not likely lead to resumed dumping and injury.