2016 (10) TMI 752 - AT - Customs

Imposition of ADD - clear float glass - import from Pakistan, Saudi Arabia and UAE - N/N.48/2014 - CUS (ADD) dated 11/12/2014 - Non-disclosure of relied up on data, especially sourced from DGCI&S - Held that - while disclosing the details of import, the particulars of importers are kept confidential. Here the DA considered the data for subject goods (irrespective of their varying customs classifications at 8 digit level) for analysis. Summary of such data has been made available to the interested parties. Non-consideration of adjustment for start up cost - Held that - such adjustments are made only in exceptional cases with strong and valid reasons. We note that the appellant s plea on this is only on certain legal provisions without any supporting evidence. In spite of increased production and sales during POI, as compared to the base year, the DI s performance has declined in the POI - injury suffered by the DI is due to dumped imports. Cost of subject goods cannot be accepted on its face value as the producers in Saudi Arabia and UAE enjoy undue advantage regarding energy price due to Government intervention - Held that - in terms Section 9A (1) (c) to ascertain normal value questionnaires were sent to known exporters of these countries. Where responses were filed, the DA determined individual dumping margin in respect of those companies. If the domestic sale value is representative and viable for permitting determination of normal values, the same is considered. When the ordinary course of trade test was not satisfied, the cost of production was considered after verification and adding 5% for profit for arriving normal value. The DA has followed the provisions of Rule 6 (8) of AD Rules in cases where producers/exporters not cooperated. The normal value was arrived at based on available facts. We note that the DA determined normal value, export price and dumping margin for each producer/exporter accordingly. Regarding additional information provided during verification visit, we note the disclosure by DA contained all relevant information. Due opportunity has been given to all interested parties to give their comments. These were examined and thereafter final conclusion arrived. No specific instance of denial of information has been brought to our notice. In the name of principles of natural justice we, apparently, cannot create a situation of indefinite cycle of disclosure, comments, counter comments, further disclosure, again comments etc. We note that the DA followed the procedure set out in the AD Rules and there is no instance of serious procedural breach brought to our notice with evidence. ADD rightly imposed - appeal rejected - decided against appellant.

Summary

Issues:
Challenging imposition of anti-dumping duty on clear float glass imported from Pakistan, Saudi Arabia, and UAE, non-disclosure of data, adjustment for start-up costs, determination of normal value, volume of imports determination, assessment of negligibility of injury, improper quantification of injury, violation of principles of natural justice in considering post-public hearing data.

Analysis:
The six appeals challenged the final findings of the Designated Authority (DA) imposing anti-dumping duty on clear float glass imported from Pakistan, Saudi Arabia, and UAE. The Indian manufacturers approached the DA for an anti-dumping investigation, leading to the imposition of the duty. The appeals mainly contested non-disclosure of data, adjustment for start-up costs, determination of normal value, and volume of imports from Pakistan. The DA relied on data from DGCI&S, conducted spot verifications, and analyzed the volume effect of dumped imports. The DA's reliance on DGCI&S data was criticized due to inconsistencies and mismatch in the data, but the DA considered the data for analysis, maintaining confidentiality of importers' particulars. The appeals also raised concerns about the rejection of start-up cost adjustment by the DA, which was found to be reasonable by the tribunal, noting that adjustments are made in exceptional cases with strong reasons.

The appeals from the Pakistani producers/exporters contested the volume of imports and the assessment of negligibility of injury. Import data did not include imports through Wagah Customs Port, but the DA considered Pakistan for injury analysis. The DA concluded that the injury to domestic industries was due to dumped imports after analyzing all factors. The appeals by the domestic industries raised issues regarding the determination of normal value, alleging undue advantage enjoyed by producers in Saudi Arabia and UAE due to government intervention in energy prices. However, the DI did not provide data-based evidence to support this claim. The DA followed the AD Rules in determining normal value, export price, and dumping margin for each producer/exporter accordingly.

Regarding the post-public hearing data, the DA provided all relevant information and opportunities for comments to interested parties, following the procedure set out in the AD Rules. The tribunal found no serious procedural breach and rejected all appeals after a careful analysis of the issues raised. The judgment was pronounced on 07/09/2016.