2020 (8) TMI 114 - AT - Customs

Levy of ADD - initiation of New Shipper Review - Notification dated January 01 2018 - determination of individual margins of dumping for them - litigant himself fails to avail opportunity to bring the correct facts to the notice of the authority - violation of principles of natural justice or not - HELD THAT - In the present case it was the producer/exporter who had filed an application for determination of individual margins of dumping for them since anti-dumping duty on the subject goods from the subject country had already been levied earlier in the original investigation and the two sunset reviews. The producer/exporter came out with a case that they had not exported the product to India during the original period of investigation or the sunset reviews and therefore instead of imposing the anti-dumping duty as was contained in the Customs Notification dated January 28 2016 issued on the basis of the second sunset review individual margins of dumping should be determined for them. It was for the producer / exporter as noticed above to have at the initial stage itself not only informed the Designated Authority whether the normal value should be determined on the basis of a non- market economy country or market economy country and which of the three options available under paragraph 7 of Annexure-I to the 1995 Rules should be adopted by the Designated Authority but for reasons best known to the producer/ exporters such information was not divulged to the Designated Authority. In such circumstances it does not lie in the mouth of the producer/ exporter to contend that hearing should have been granted to the producer / exporter by the Designated Authority before the issue of the disclosure for taking Qatar as a surrogate country. Determination of the normal value under the second option provided for in paragraph 7 of Annexure-I to the 1995 Rules - HELD THAT - The contention of the producer and the exporter is that the third country should have been selected by the Designated Authority at the stage of initiation itself. This submission cannot be accepted because as noticed above the producer or the exporter did not even indicate which of the three criteria stipulated in the paragraph 7 of the Annexure-I of the 1995 Rules should have been adopted for determination of the normal value. There is also no error in the determination of the normal value by the Designated Authority by resorting to the second method mentioned in paragraph 7 of Annexure-I to the 1995 Rules as none of the parties had suggested applying the first criteria set out in paragraph 7 - The producer / exporter is also not justified in asserting that Qatar could not have been taken as a surrogate country as the level of development is not similar to that of China. The level of development would be relevant only if the domestic sale price or cost of production of a market economy third country is adopted since the level of development affects the price and cost. The price in international trade is a function of demand and supply in the international market and it is not affected by the level of development of the supplier country. It is apparent that normal value for non market economy is dealt with on a case to case basis and the producer/ exporter is not justified in asserting that in the present case the Designated Authority should have also determined the normal value under the third condition contained in paragraph 7 - There is therefore no substance in any of the submissions advanced on behalf of the producer/ exporter and the appeals filed by the producer and the exporter deserve to be dismissed. When the Designated Authority proceeded to determined the margin of dumping in relation to an article on the basis of the facts available on record it will not be prudent to set aside the final findings of the Designated Authority or the Customs Notification merely for the reason that the producer/ exporter did not apprise the Designated Authority at the initial stages about the method to be adopted for determination of normal value. The export price that has been calculated by the Designated Authority is not the price of the exporter was increased substantially in order to lower the anti-dumping duty but on the basis of the ex-factory price of the producer. There is therefore no merit in this appeal - appeal dismissed.

Summary

Issues Involved:

1. Imposition and continuation of anti-dumping duty on "Melamine" from China.
2. Initiation and findings of the New Shipper Review under Rule 22 of the 1995 Rules.
3. Determination of individual margins of dumping for the producer and exporter.
4. Selection of Qatar as a surrogate country for determining normal value.
5. Allegations of procedural flaws and violation of natural justice.
6. Submissions from the Domestic Industry, importer, and Designated Authority.
7. Final determination of anti-dumping duties and the validity of the Customs Notification.

Issue-wise Detailed Analysis:

1. Imposition and Continuation of Anti-Dumping Duty:
The Government of India initially imposed anti-dumping duty on "Melamine" from China for five years through a Customs Notification dated November 16, 2004. This duty was extended twice, each for a further period of five years, through notifications dated February 19, 2010, and January 28, 2016, respectively.

2. Initiation and Findings of the New Shipper Review:
A New Shipper Review was initiated at the request of M/s Kuitun Jinjiang Chemical Industry Co. Ltd. (producer) and Foshan Kaisino Building Material Co. (exporter) to determine individual margins of dumping. The Designated Authority initiated the review on January 1, 2018, and determined individual anti-dumping duties based on the findings.

3. Determination of Individual Margins of Dumping:
The Designated Authority computed the normal value following the second method in paragraph 7 of Annexure-I to the 1995 Rules, which involves using the price from a market economy third country. Qatar was selected as the surrogate country, and individual anti-dumping duties were imposed based on the determined margins.

4. Selection of Qatar as Surrogate Country:
The Designated Authority chose Qatar as the surrogate country due to its significant export volume to India and the absence of anti-dumping duties on imports from Qatar. The normal value was determined after making necessary adjustments, and the methodology was disclosed to the interested parties.

5. Allegations of Procedural Flaws and Violation of Natural Justice:
The producer and exporter alleged procedural flaws, including not being informed about the selection of Qatar as a surrogate country and not being provided with the normal value computation. However, the Tribunal found that the producer/exporter failed to provide necessary information at the initial stages and did not suggest any specific criteria for determining the normal value.

6. Submissions from the Domestic Industry, Importer, and Designated Authority:
The Domestic Industry argued that the exporter failed to provide information for determining the normal value and alleged manipulation of export prices. The importer contended that the application for the New Shipper Review was not maintainable due to fictitiously high export prices. The Designated Authority defended its methodology and the selection of Qatar as a surrogate country.

7. Final Determination of Anti-Dumping Duties and Validity of Customs Notification:
The Tribunal upheld the Designated Authority's findings and methodology, dismissing the appeals filed by the producer, exporter, Domestic Industry, and importer. The final anti-dumping duties were imposed based on the determined individual margins of dumping, and the Customs Notification dated September 6, 2019, was validated.

Conclusion:
The Tribunal dismissed all four appeals, affirming the Designated Authority's determination of individual margins of dumping and the imposition of anti-dumping duties. The methodology adopted, including the selection of Qatar as a surrogate country, was found to be reasonable and in accordance with the 1995 Rules. The procedural objections raised by the producer/exporter were not upheld, and the final findings and Customs Notification were maintained.