2016 (10) TMI 639 - AT - Customs

Imposition of ADD - Hot Rolled Flat Products of Stainless steel - import from Malaysia - N/N.28/2015-Cus ADD dated 5.6.2015 - volume of imports from Malaysia - Held that - in terms of Rule 14 (d) of, the DA shall terminate the investigation if the value of import from particular country accounts for less than 3% of the total import of subject goods. In the present case, admittedly during POI the imports from Malaysia is above 3%. Correctness of the import data - Held that - the issue regarding the country of origin has been examined at length by the DA. It is seen from ASEAN-India FTA Agreement provides for concessional customs duty leviable on imports from Malaysia. It is noted that the DA specifically pointed out the possible misdeclaration of country of origin in order to avail preferential duty on imports. As per data analysed by the DA the subject goods coming from Malaysia covered by the certificate of origin issued by the concerned authorities in Malaysia are considered for volume analysis. The argument of the appellant has been rejected by the DA who recorded that the appellant cannot be treated as producer of the subject goods and individual treatment cannot be granted to them for determination of their dumping margin. For the purpose of construction the normal value in Malaysia the international price of major raw material and most efficient conversion of goods has been considered along with reasonable profit. The decision in the case of Kumho Petrochemicals Co. Ltd. vs. Designated Authority 2015 (9) TMI 715 - CESTAT DELHI not applicable as it was held that DA should disclose the international price which form the basis for construction of normal value. In the present case, the normal value has been arrived at by keeping the data furnished by the DI due to non-cooperation of Malaysian exporter. In such situation, DA is justified in examining the best available data in arriving at the constructed value. POI data - Held that - when the import during POI gave a fair indication about quantum being above 3% there is no need to look into post POI data for investigation. Appeal rejected - ADD rightly imposed - decided against appellant.

Summary

Issues:
Challenge to imposition of anti-dumping duty on imports from Malaysia based on de-minimis import volume and violation of natural justice.

Analysis:
The case involves an appeal against the imposition of anti-dumping duty on Hot Rolled Flat Products of Stainless steel imported from Malaysia. The Designated Authority (DA) recommended the imposition of anti-dumping duties on goods imported from China PR, Korea RP, and Malaysia. The Ministry of Finance issued a notification imposing specific anti-dumping duties on the subject goods from these countries. The appellant contested the imposition of duties, arguing that the import volume from Malaysia was de-minimis, constituting only 3.59% of total imports during the Period of Investigation (POI). The appellant claimed that the DA did not disclose crucial data, leading to a violation of natural justice. Additionally, it was argued that imports from Malaysia were too insignificant to cause injury to the Domestic Industry (DI).

The Domestic Industry supported the imposition of anti-dumping duty, highlighting the verification of data from various sources by the DA. The Designated Authority and Revenue supported the findings, refuting the appellant's claim of de-minimis imports from Malaysia. The DA terminated the investigation if the import value from a particular country accounted for less than 3% of the total imports, which was not the case during the POI for Malaysia. The DA examined the issue of 'country of origin' extensively, considering the ASEAN-India FTA Agreement and possible misdeclaration of origin to avail preferential duty. The DA rejected the appellant's arguments, stating that individual treatment could not be granted for determining the dumping margin.

The construction of normal value in Malaysia was based on international prices of raw materials and efficient conversion of goods, with reasonable profit considered. The Tribunal's decision in a previous case was deemed inapplicable to the present case, as the normal value was determined based on data from the Domestic Industry due to non-cooperation from Malaysian exporters. The appellant's plea to consider post-POI import data was rejected, as the POI data indicated imports above 3%.

After thorough consideration, the Tribunal found no merit in the appeal and upheld the imposition of anti-dumping duties. The appeal was consequently rejected, and the judgment was pronounced on 09.09.2016.