2016 (9) TMI 1227 - AT - Customs

Legality and correctness of levy of Anti-Dumping duties - digital plates imported from China and Japan - Customs Notification No. 3/2012 -CUS (ADD) - Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 - Chinese producers should have been considered as operating in market economy conditions - Held that - the DA has recorded that in the past three years China PR has been treated as non-market economy in the anti-dumping investigations by other WTO Members. Hence, a rebuttable presumption of non-market economy status has been made in terms of para 8 (2) of Annexure I of AD Rules. The DA on analyzing the responses provided by the producers/exporters of the subject goods from China PR and the DI, concluded that there is significant government interference in the aluminium industry in China. Reliance was also placed on the findings of Canadian authorities in their anti-dumping and subsidy investigation. It was concluded that the price of major raw material, aluminium, is not market determined and hence, the market economy treatment was denied by the DA to the appellants. Impact of safeguard duty on imported raw material - Held that - the transitional, product specific, safeguard duty was in force on the imports of aluminium coils from China PR from 23/3/2009 to 22/3/2011. Safeguard duty of 14% and 12% for first and second year were imposed. The duty was to remedy the market disruption caused by increased imports. The DA examined the impact of this duty on domestic industry who use this as raw material to produce subject goods. Noting that such imports by DI are only negligible, the DA concluded that the impact of safeguard duty on arriving at NIP is not significant. Erroneous fixation of NIP by the DA - Held that - the methodology adopted for arriving at the NIP is well within the guidelines framed under AD Rules. The rate of return, costing parameters, differential treatment to violet and thermal plates, exclusion of selling/distribution cost, exchange note fluctuation etc. have all been taken into consideration by the DA - No material point found to interfere with the reasoning adopted by the DA while arriving at the NIP. Wrong determination of injury to DI - Held that - there is material injury to DI caused by the dumped imports of subject goods. Recommendation was, thereupon, made for imposition of AD duties. - no material ground with supporting evidence to interfere with the findings of the DA and the final customs notification imposing AD duties. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
- Condonation of delay in filing appeals challenging customs notification
- Challenge to the Final Findings of the Designated Authority (DA) regarding anti-dumping duties on digital plates from China and Japan
- Market economy status of Chinese producers
- Impact of safeguard duty on imported raw material and determination of Normal Value (NIP)
- Correctness of NIP calculation by the DA
- Determination of injury to the Domestic Industry (DI) due to dumped imports

Condonation of Delay in Filing Appeals:
The appeals challenged a customs notification issued on 03/12/2012, with a statutory filing period under Section 9C of the Customs Tariff Act, 1975. The appeals were filed late, and the appellants sought condonation of the delay due to the Counsel's illness. The delay was explained, supported by medical records, and was condoned by the Tribunal.

Challenge to Final Findings of the Designated Authority (DA):
The DA initiated an investigation based on an application regarding dumping of digital plates from China and Japan. After following the prescribed procedure, the DA issued Final Findings recommending anti-dumping (AD) duties on Chinese goods. The appellants challenged these findings, arguing errors in interpretation of facts and legal provisions, including issues related to injury, NIP calculation, and market share analysis. The DA's conclusions were supported by the Counsel for the DA and the Revenue.

Market Economy Status of Chinese Producers:
The key issue was whether Chinese producers should be considered as operating under market economy conditions. The DA concluded that significant government interference in the aluminum industry in China justified denying market economy treatment to the appellants. The Tribunal found no reason to differ from this finding, given the evidence presented.

Impact of Safeguard Duty on Imported Raw Material and NIP Calculation:
The impact of safeguard duty on imported raw material by the DI and its effect on determining the Normal Value (NIP) were contested. The DA concluded that the safeguard duty on aluminum coils from China did not significantly impact the DI's NIP calculation, as the imports were negligible. The Tribunal found this conclusion reasonable based on the evidence.

Correctness of NIP Calculation by the DA:
The appellants contested the DA's NIP calculation, arguing that the methodology was flawed. However, the Tribunal found that the DA's methodology for determining NIP complied with AD Rules, considering various factors like costing parameters, return rates, and exchange rate fluctuations. The Tribunal found no grounds to interfere with the DA's reasoning.

Determination of Injury to the Domestic Industry:
The DA's determination of injury to the DI due to dumped imports was challenged by the appellants. The DA found significant price undercutting by dumped imports, impacting domestic prices. Various factors like capacity, production, sales, profits, and employment were considered in assessing injury. The Tribunal upheld the DA's findings, concluding that there was material injury to the DI caused by dumped imports, leading to the imposition of AD duties.

In conclusion, the Tribunal dismissed the appeals, holding that they lacked merit and upheld the final customs notification imposing AD duties.