2016 (10) TMI 129 - AT - Customs

Extension of anti-dumping duty in sunset review - Domestic Industry - metronidazole - whether the investigation on anti dumping should have continued on the domestic industry, being one of the major importer of subject goods? - Held that - DA has excluded M/s Aarti Drugs from the purview of domestic industry. It was concluded that M/s Unichem Laboratories Constitutes, the domestic industry, being the only remaining producer of the subject goods and satisfy the requirement of Rule 2(b) of the AD Rules. The Hon ble Madras High Court in Nirma Limited vs. Saint Gobain Glass India Ltd. - 2012 (10) TMI 832 - MADRAS HIGH COURT held that even if the only producer of subject goods in the country produced only 4%, by a combined reading of Rule 2(b) and Rule 5(3) proviso the said producer is considered as a domestic industry and is entitled to maintain the application for investigation. Calculation of injury margin - Held that - the Central Government by Notification dated 04.08.2008 had fixed the maximum sales price of subject goods at ₹ 526/ kg. which was applicable during the POI - 01.01.2010 to 31.12.2010. The price was fixed at ₹ 514/ kg. vide Notification dated 01.07.2011 and again at ₹ 588/ kg. Notification dated 16.11.2012. The DA has correctly applied the rate of ₹ 526/ kg. applicable to the relevant time. Establishment of the casual link for likelihood of dumping/ injury in the event of revocation of AD duties - D.A. examined the possibility of intensified dumping in case AD duty is revoked - Held that - There is continued dumping which may intensify unless AD duty measures are taken. The known capacities available with the Chinese producers (about 24000 MT) and the Indian demand (less than about 2000 MT) indicate the strong likelihood that the entire Indian demand may be met by Chinese producers - DA s finding on this count is well reasoned and backed by clear data and analysis. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Challenge against the extension of anti-dumping duty in subset review.
2. Contention regarding termination of investigation due to domestic industry being a major importer.
3. Incorrect calculation of injury margin due to wrong DPCO price.
4. Lack of causal link for likelihood of dumping/injury in case of AD duty revocation.

Analysis:
1. The appeal challenged the extension of anti-dumping duty recommended by the Designated Authority (DA) in the subset review. The DA initiated a sunset review investigation based on applications by specific companies. The appellant contested the findings of the DA on various grounds, including the termination of the investigation due to the domestic industry being a major importer. However, the DA excluded one company from the domestic industry, concluding that the remaining producer satisfied the requirements. The Tribunal cited a previous judgment to support this decision, emphasizing that even a producer with a small market share can be considered part of the domestic industry. The Tribunal found no merit in the appellant's argument on this issue.

2. The appellant raised concerns about the incorrect calculation of the injury margin by using the wrong Drugs Price Control Order (DPCO) price. The Tribunal noted that the government had set specific prices for the subject goods during relevant periods, and the DA correctly applied these prices in its calculations. The Tribunal found that the DA's approach to determining the injury margin was in line with the applicable regulations and notifications, dismissing the appellant's contention on this point.

3. Another issue raised was the lack of a causal link between dumping/injury and the potential revocation of the anti-dumping duties. The appellant argued that there was no evidence to support the likelihood of dumping or injury if the duties were removed. However, the Tribunal observed that Chinese producers continued to export goods at dumped prices despite the imposition of anti-dumping duties. The DA's analysis indicated a significant dumping margin, with a strong possibility of intensified dumping if the duties were revoked. The Tribunal found the DA's findings well-reasoned, supported by clear data and analysis, and concluded that there was a strong likelihood of Chinese producers meeting the entire Indian demand through dumping. Therefore, the Tribunal upheld the DA's decision on this issue.

In conclusion, after thorough examination and analysis of all arguments and evidence presented, the Tribunal found that the appeal lacked merit and dismissed it accordingly. The judgment was pronounced on 31.08.2016.