2016 (11) TMI 33 - AT - Customs

Sunset review - imposition off ADD in the sunset review - whether it is justified to hold that appellant should have been excluded from the sunset review as in the initial final finding it was recorded that the dumping margin was less than 2% and as such in the sunset review imposition of AD duty on the appellant was not legally tenable? - Plain Medium Density Fiber Board - imported from Malaysia - Held that - the DA can consider where an exporter was awarded zero duty in the original investigation and has now found to be dumping which is likely the cause injury to DI, then AD duty can be considered for imposition with reference to dumping margin and injury margin established during the review. We note that the DA followed the requirements of Article 2 & 3 of the ADA and the relevant provisions of AD Rules. We also note that regarding appellants, the DA has examined and reviewed all the aspects of original investigation and in addition examined whether expiry of initial Notification is likely to lead a recurrence of dumping/ injury to the DI. As already noted that this is like a fresh investigation in so far as appellant is concerned and we find no legal infirmity in such action by the DA - no merit in present appeal - appeal rejected - decided against appellant.

Summary

Issues:
Challenge against imposition of anti-dumping duty following sunset review based on initial finding of de minimis dumping margin.

Analysis:
The appellant, an exporter of Plain Medium Density Fiber Board, challenged the imposition of anti-dumping (AD) duty following a sunset review by the Directorate General of AD & allied duty. The main contention was that the appellant should have been excluded from the review due to the initial finding of a dumping margin less than 2%. The Domestic Industry argued that in India, even producers with nil duty are subject to review during sunset reviews, and there is no legal flaw in this practice. The DA supported the findings, stating that the imposition of AD duty was based on the analysis of material injury to the Domestic Industry.

The Tribunal noted that a previous appeal against the DA's final finding had been decided, where the injury analysis was challenged. The Tribunal clarified that investigations are to be terminated concerning exporters with de minimis exports, not individual exporters. The DA's consideration of zero duty in the initial investigation and subsequent imposition of AD duty during the review was found to be in compliance with relevant ADA provisions and AD Rules. The Tribunal emphasized that the DA's actions regarding the appellant were akin to a fresh investigation, with no legal infirmity found in the imposition of AD duty following the sunset review.

After thorough analysis, the Tribunal found no merit in the appellant's challenge and rejected the appeal. The decision was pronounced in open court on 15-09-2016.