2023 (5) TMI 613 - AT - Customs

Levy of Anti-Dumping Duty - certain flat rolled products of aluminium - seeking to grant exclusion to clad with compatible non-clad aluminium foil from the scope of the product on which anti-dumping duty has been imposed - Inclusion of clad with compatible non-clad aluminium foil in the product scope holding that the domestic industry can manufacture cladded coil - applicability of customs notification dated 06.12.2021 - period of April 2019 to March 2020 - HELD THAT - The radiator is a safety critical item which ensures engine cooling of a vehicle. During movement of the vehicle at high speeds, the radiator should not fall apart. Therefore, the brazing operation should ensure that the fin perfectly join with the tubes, header plate and end plate - Since the customs notification 16.05.2017 already excluded several articles including clad with compatible non-clad aluminium foil, the appellant had requested the designated authority to provide detailed descriptions of the said exclusions mentioned in the said customs notification rather than merely referring the customs notification number for excluding the products. It needs to be noted that the Manual of Standard Operating Practices for Trade Remedy Investigations issued by the Directorate General of Trade Remedies, Department of Commerce, Government of India provides in Article 3.10 that mere competence without any production or merchant sales may not be sufficient, to include an item in the definition of the product under consideration - thus, an item which has not been sold by the domestic industry in commercial quantities should not be included in the scope of the product under consideration by the domestic industry. What, however, transpires is that the domestic industry could not demonstrate that it had made any commercial supplies of clad with compatible non-clad aluminium foil during the period of investigation and that clad with compatible non-clad aluminium foil cannot be considered as flat rolled products of aluminium since the cladded coil is made of several surface layers of flat rolled products of aluminium that are metallurgically bonded to high strength aluminium alloy core. It is not possible to hold that clad with compatible non-clad aluminium foil should not be excluded from the scope of product under consideration as has been contended by learned counsel for some of the respondents for the reason that the imported article is a like article under investigation or that Hindalco has the capability and has produced and sold clad with compatible non-clad aluminium foil - clad with compatible non-clad aluminium foil has to be excluded from the product under consideration and, accordingly, the customs notification dated 06.12.2021 is modified to exclude clad with compatible non-clad aluminium foil from the scope of product under consideration. Appeal disposed off.

Summary

Issues Involved:
1. Inclusion of "clad with compatible non-clad aluminium foil" within the scope of the anti-dumping duty.
2. Examination of whether the domestic industry had made commercial supplies of the said product during the period of investigation.
3. Historical context and previous anti-dumping investigations related to aluminium foil and flat rolled products of aluminium.

Summary:

1. Inclusion of "clad with compatible non-clad aluminium foil" within the scope of the anti-dumping duty:
Mahle Anand Thermal Private Limited [the appellant] filed an appeal challenging the inclusion of "clad with compatible non-clad aluminium foil" in the scope of the anti-dumping duty imposed by the Central Government on certain flat rolled products of aluminium from China PR. The appellant argued for the exclusion of this product from the scope of the anti-dumping duty.

2. Examination of whether the domestic industry had made commercial supplies of the said product during the period of investigation:
The designated authority, in its final findings, included "clad with compatible non-clad aluminium foil" within the product scope, holding that the domestic industry could manufacture cladded coil. However, the appellant contended that the domestic industry did not substantiate that it had made commercial supplies of this product during the period of investigation. The Bombay High Court, in a related case, noted that the domestic industry had admitted its inability to produce these products, which led to their exclusion in previous investigations.

3. Historical context and previous anti-dumping investigations related to aluminium foil and flat rolled products of aluminium:
The product has a history of anti-dumping investigations. In the first investigation (April 2014 to March 2015), "clad with compatible non-clad aluminium foil" was excluded from the product scope. The second investigation (April 2019 to March 2020) also excluded this product. The third investigation (sunset review) continued this exclusion. The present investigation (April 2019 to March 2020) included this product, contrary to the previous findings.

Conclusion:
The Tribunal concluded that "clad with compatible non-clad aluminium foil" should be excluded from the scope of the product under consideration. The customs notification dated 06.12.2021 was modified to reflect this exclusion. The Anti-Dumping Appeal was allowed to the extent indicated above.