2017 (1) TMI 345 - AT - Customs

Imposition of ADD - Purified Terephthalic Acid - import from China PR, Iran, Indonesia, Malaysia and Taiwan - wrongful exclusion of Reliance Industries Ltd. (RIL) from the purview of domestic industry - principles of natural justice - Held that - the related company of RIL, located in Malaysia, is exporting substantial quantity to India. We find that the DA s findings on this ground cannot be assailed. Correctness of considering MCPI as a domestic industry for injury analysis in view of the fact that the said unit is sick and is under BIER - Held that - MCPI suffered technical problems in their plant but that is not the only cause of injury. The DA found that the imports had adversely affected the profits, cash flow, return on investment of MCPI. The injury of domestic industry has been properly analysed and we find no reason to disagree with the DA on this account. The dumping margin in the case of China is 20 to 30% and the quantum of export is above 3%. The subject goods imported from China are in direct competition with the like articles made in India. As such, the conditions for commutations are met. Principles of natural justice - Held that - though originally the IOCL was only supporting the petitions filed by the other domestic industry, later they have provided some data regarding production, sales and profitability of subject goods during the POI, on confidential basis. We note that the DA has not considered the said data for injury analysis and investigation. This has been clearly recorded in para 155 (vi) of the Final Findings by the DA. As such, we find no ground to sustain the plea of the appellant regarding violation of principles of natural justice. Separate analysis and investigation for Malaysia and other subject countries - Held that - injury on account of dumping of the subject goods from various countries is to be determined in respect of the domestic industry only. As already noted, RIL has been disqualified as an eligible domestic industry for the reason of their related company situated in Malaysia producing and exporting the subject goods to India. We find no justification on legal basis for a separate investigation with reference to Malaysia and other countries. Appeal rejected - decided against appellant.

Summary

Issues: Challenge against the imposition of Anti-dumping duty on import of Purified Terephthalic Acid ("PTA") into India from subject countries.

Analysis:
1. Exclusion of RIL from the purview of domestic industry:
The appellants contested the exclusion of Reliance Industries Ltd. (RIL) from the domestic industry, arguing that the Directorate General of Anti-dumping and Allied Duties (DA) did not exercise discretion properly. However, the tribunal found that RIL had to be excluded due to its relationship with the Malaysian producer of the subject goods, which was exporting substantial quantities to India. The tribunal upheld the DA's decision based on Rule 2(b) of the Anti Dumping Rules and dismissed the appellant's challenge as unreasonable.

2. Injury analysis based on data of a sick company:
The appellants raised concerns about the injury analysis being based on data from a sick company, MCCPTA India Corporation Pvt. Ltd. The tribunal noted that while MCPI faced technical problems, imports had adversely affected its profits and other financial aspects. The tribunal agreed with the DA's analysis and found no reason to disagree on this ground.

3. Cumulative assessment and separate analysis for Malaysia:
The appellants argued for separate assessments for Malaysia and other subject countries, but the tribunal found that cumulative assessment was appropriate given specific conditions. The tribunal highlighted the dumping margin and export quantities from China, supporting the DA's decision for cumulative analysis. Additionally, the tribunal clarified that separate investigations for different subject countries were not justified under the Anti Dumping Rules.

4. Violation of principles of natural justice:
The appellants alleged a violation of natural justice during the investigation, citing undisclosed data provided by Indian Oil Corporation Ltd. (IOCL). However, the tribunal noted that the DA did not consider this data for injury analysis, as recorded in the final findings. Consequently, the tribunal found no grounds to support the appellant's claim of a breach of natural justice.

5. Overall decision:
After thorough examination of all arguments and records, the tribunal concluded that the appellants failed to establish a case against the final findings and customs notifications challenged in the appeals. Therefore, the appeals were rejected, and related applications were disposed of accordingly.

This detailed analysis of the issues raised and the tribunal's findings provides a comprehensive overview of the judgment regarding the challenge against the imposition of Anti-dumping duty on the import of PTA into India from subject countries.