2017 (12) TMI 1113 - AT - Customs

ADD - Hydrogen Peroxide - Import from Bangladesh, Taiwan, Korea RP, Indonesia, Pakistan and Thailand - methodology adopted for determining the injury and dumping margin - it was alleged that the subject goods have been exported to India from subject countries (other than Indonesia) below its normal value; the Domestic Industry has suffered material injury; and the injury has been caused by the dumped imports from subject countries - Held that - the appellant is a non-cooperative exporter. Rule 6 (8) of the AD Rules provides for the Designated Authority to record its finding on the basis of facts available to it and make such recommendations to the Central Government as it deemed fit under such circumstances. NPL is a joint venture of M/s Bombay Dyeing and Manufacturing Company Limited and M/s Solvay SA which holds about 25.10% shares in NPL. The claim of the appellant is that Solvay SA is related to the DI in terms of explanation (ii) of Rule 2 (b) of AD Rules - It is clear that the DA on careful consideration arrived at the conclusion that NPL was not to be considered as a related company of Solvay. It was further recorded that the provision of Companies Act or provision relating to special resolutions are not relevant for the present investigation. We are in agreement with the findings recorded by the DA. DA is well within his powers to consider the scope of DI who were importing or related to the exporters of subject goods. There is no legal sanction against considering such DI in the investigation. Sickness and mis-management of DI - Held that - there is no bar in consideration of a sick unit as a DI. There is no evidence to support the contention of the appellants that the sickness or the deterioration of DI is caused by factors other than import of subject goods. The impact of import on the DI has been elaborately discussed by the DA on all aspects and we are not inclined to interfere with such findings in the absence of any specific contra evidence. The grievance of the appellant (NPL) as a DI on the calculation of net return/ adjusted return as made by the DA requires re-examination. The learned Counsel for the DA also admitted that there has been no past instance of such second adjustment while arriving at the return on capital employed - the matter has to go back to the DA for a limited purpose of verifying the correctness of the return on investment as arrived at by the DA based on optimum production of 15 months and again by adjustment in the net return. There is no merit in the appeals filed by the exporters against the levy of anti dumping duty on the subject goods and the appeal filed by HOCL against the final finding - Appeal dismissed.

Summary

Issues Involved:
1. Imposition of Anti Dumping Duty on Hydrogen Peroxide.
2. Methodology adopted for determining dumping and injury margin.
3. Status and scope of Domestic Industry (DI).
4. Calculation of export price and profit margin.
5. Selection of the Period of Investigation (POI).
6. Calculation of return on investment and optimum production.

Issue-wise Detailed Analysis:

1. Imposition of Anti Dumping Duty on Hydrogen Peroxide
The appeals were against the final findings of the Designated Authority (DA) and Customs Notification imposing Anti Dumping duty on Hydrogen Peroxide originating from Bangladesh, Taiwan, Korea RP, Indonesia, Pakistan, and Thailand. The DA concluded that the subject goods were exported to India below their normal value, causing material injury to the Domestic Industry (DI).

2. Methodology Adopted for Determining Dumping and Injury Margin
The methodology adopted by the DA was contested by the exporters from Thailand, who argued that it was not in conformity with Article 6.8 of the Anti Dumping Agreement and Rule 6 (8) of the AD Rules. The DA, however, determined the dumping and injury margin separately for cooperating and non-cooperating exporters, which was upheld by the Tribunal, referencing the Supreme Court decision in Haldor Topsoe.

3. Status and Scope of Domestic Industry (DI)
The status of DI was contested by the exporters from Bangladesh, arguing that the DI suffered losses due to inefficiency and mismanagement, not dumping. The DA, however, concluded that the DI was not related to any exporter or importer and was correct in its appreciation of the scope of DI. The Tribunal upheld this finding, referencing various decisions and the WTO agreement on anti-dumping duty.

4. Calculation of Export Price and Profit Margin
The exporters from Bangladesh contested the export price and profit margin determined by the DA, arguing errors in the calculation. The DA's findings were based on transaction-wise data and were upheld by the Tribunal, which found no infirmity in the determination.

5. Selection of the Period of Investigation (POI)
The POI of 15 months was contested by the appellants, arguing that it was selected without proper reasoning. The Tribunal noted that there is no statutory provision fixing or prohibiting any POI and upheld the DA's discretion in selecting the POI.

6. Calculation of Return on Investment and Optimum Production
The DI contested the calculation of return on investment, arguing that the DA's method was not in conformity with Annexure III to the AD Rules. The Tribunal found that the DA's calculation of optimum production and return on capital employed required re-examination. The matter was remanded to the DA for limited re-examination of the return on investment, with the current levy to continue during this period.

Conclusion:
The Tribunal upheld the imposition of anti-dumping duty on Hydrogen Peroxide, dismissing the appeals by the exporters. The appeal by the DI regarding the calculation of return on investment was remanded to the DA for re-examination. The DA was directed to complete this re-examination within three months, providing adequate opportunity for the appellants to present their case.