2020 (6) TMI 286 - AT - Customs

Levy of Anti-Dumping Duty - Domestic injury - imports of Veneered Engineered Wooden Flooring originating in or exported from China PR, Malaysia, Indonesia and the European Union - Customs Notification dated 27 March, 2018 alongwith the Corrigendum issued by the Designated Authority on 02 April, 2018 and by Central Government on 10 May, 2018 - scope of the product under consideration - Two layer products having Ply Board as the bottom layer - Products having inlay work on the top layer - requirement of providing soft copy of the import data in excel format to the Appellants by the Designated Authority. Whether the two layer products having Ply Board as the bottom layer should also have been excluded from the scope of the product under consideration? - HELD THAT - No finding has been recorded by the Designated Authority as to how two layer products having fibre board as the bottom layer could be included in the product under consideration because what was stated by the domestic producer as also in the Notification initiating anti-dumping duty was that the bottom layer has necessarily of real wood. It appears that in the final findings, the Designated Authority merely reiterated what was stated in the disclosure statement that the product under consideration can be of two or three layers without examining that the Appellants had sought exclusion of two layer products which had the bottom layer of ply board. The Notification issued by the Central Government on 27 March, 2018 and the subsequent corrigendum Notification issued on 10 May, 2018 also do not address this issue - It is, therefore, clear that the scope of the product under consideration has been enlarged by the Designated Authority by including two layer products having plywood as the bottom layer. Whether the products having inlay work on the top layer should also have been excluded from the scope of the product under consideration? - HELD THAT - The Designated Authority, while dealing with this aspect, noted that the domestic producer, being a new industry, may not be producing each and every kind of product falling within the Veneered Engineered Wooden Flooring , but still it did not exclude such products. It needs to be remembered that it had been specifically pointed out by the Appellants that the products not manufactured by the domestic producer cannot possibly be the cause of any material injury to the domestic producer. It is also not even the case of the domestic producer that products having inlay work on the top layer were manufactured by it. As such, no material injury could have been caused to the domestic producer by this product - Thus, products having inlay work on the top layer have to be excluded from the scope of the product under consideration. Whether the Designated Authority should have provided a soft copy of the import data in excel format to the Appellants as it is in this format and manner that the data was taken on record for the purpose of investigation? - HELD THAT - Neither the domestic producer has claimed any confidentiality on the soft format of the import data, nor it can possibly claim such confidentiality. Learned Counsel appearing for the Respondent has not been able to justify the practice adopted by the Designated Authority. Though this aspect would have no bearing in this case as the first two submissions advanced by the Appellants have found favour of the Bench, yet it is appropriate to accept the contention advanced on behalf of the Appellants that the Designated Authority, as a matter of practice, should provide the import data in the same form and manner in which it was taken on record. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Exclusion of two-layered products having ply board as the bottom layer.
2. Exclusion of products having inlay work on the top layer.
3. Provision of soft copy of import data in excel format to the appellants.

Detailed Analysis:

(A) Exclusion of Two-Layered Products Having Ply Board as Bottom Layer:
1. Appellants' Argument: The product under consideration was defined as having three layers with the top and bottom layers of real wood and the middle layer of either solid wood or fibre board. Thus, two-layer products with ply board as the bottom layer should not be included.
2. Designated Authority's Stand: Initially, the product was described as having three layers of wood, but the final findings included two-layer products as well.
3. Tribunal's Observation: The application by the domestic producer and the initiation notification both described the product as having three layers. The inclusion of two-layer products with ply board as the bottom layer was beyond the scope defined initially. The Designated Authority did not adequately address the objections raised by the appellants regarding this inclusion.
4. Conclusion: The scope of the product under consideration was improperly expanded to include two-layer products with ply board as the bottom layer.

(B) Exclusion of Products Having Inlay Work on the Top Layer:
1. Appellants' Argument: Products with inlay work on the top layer should be excluded as they were not manufactured by the domestic producer and thus could not cause any material injury to the domestic industry.
2. Designated Authority's Stand: The Designated Authority acknowledged that the domestic producer, being a new industry, might not produce every type of product within the veneered engineered wooden flooring category but did not exclude such products.
3. Tribunal's Observation: The Tribunal noted that products not manufactured by the domestic producer cannot cause material injury to it. Citing previous decisions, the Tribunal emphasized that products not produced domestically should be excluded from anti-dumping duties.
4. Conclusion: Products with inlay work on the top layer should be excluded from the scope of the product under consideration.

(C) Provision of Soft Copy of Import Data in Excel Format:
1. Appellants' Argument: The appellants argued that the Designated Authority should provide the import data in the same format (excel) as it was taken on record to allow proper analysis and comments.
2. Designated Authority's Stand: The Designated Authority typically provides import data in PDF format, which the appellants claimed made it difficult to analyze.
3. Tribunal's Observation: The Tribunal agreed with the appellants that providing data in PDF format hinders proper analysis. It noted that the domestic producer did not claim confidentiality on the soft format of the import data.
4. Conclusion: The Tribunal suggested that the Designated Authority should provide import data in the same format as it was received to ensure transparency and facilitate proper analysis.

Judgment:
The Appeals were allowed, and the following products were excluded from the product under consideration in the Customs Notification dated 27 March 2018, and the Corrigendum Notification dated 10 May 2018:
1. Veneered Engineered Wooden Flooring of two layers having plywood as the bottom layer.
2. Veneered Engineered Wooden Flooring having inlay work on the top layer.

The judgment was pronounced in the open Court on 12 June 2020.

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