2003 (6) TMI 35 - AT - Customs

Summary

Issues Involved:
1. Determination of Normal Value
2. Injury Analysis
3. Cooperation of the Exporter

Detailed Analysis:

1. Determination of Normal Value:
The appellants argued that the Designated Authority (DA) erroneously found that there was dumping of Acrylonitrile Butadiene Rubber (NBR) by them, asserting that a correct evaluation of their data would have shown no dumping. They contended that the DA should have worked out the correct cost of production from the data they provided instead of relying on other sources. The DA declared the appellant a non-cooperative exporter and determined the Normal Value based on "facts available" under Rule 6(8) of the Anti-dumping Rules. The DA noted discrepancies in the data provided, such as the appellant furnishing data for the financial year 1999 instead of the investigation period (April 1999 to March 2000) and inconsistencies in raw material costs. The DA also found issues with the allocation of Sales and General Administration Expenses (SGA) on a volume basis rather than a turnover basis, leading to a skewed picture of costing. Due to these discrepancies, the DA selectively utilized the appellant's data and adopted data from other sources to determine the Normal Value.

2. Injury Analysis:
The appellants contended that the injury analysis norms should be the same in both new and review investigations. They emphasized the improvement in the Domestic Industry's performance after the initial imposition of anti-dumping duty. The DA, however, argued that in a review proceeding, the standard of analysis is "recurrence." The DA's findings showed a significant increase in the appellant's exports and a steep fall in unit prices during the review period. The DA emphasized that the domestic industry continued to face intense price competition despite the anti-dumping duty. The DA's injury analysis was based on relevant parameters mentioned in Annexure II to the Anti-dumping Rules, concluding that price undercutting would lead to serious consequences if the duty were withdrawn. The Tribunal found the DA's injury analysis justified by the factual data presented.

3. Cooperation of the Exporter:
The DA treated the appellant as a non-cooperative exporter due to inadequate, contradictory, and irrelevant data provided. The DA noted that the appellant furnished data for the calendar year 1999 instead of the investigation period and failed to provide requested additional information promptly. The DA's compilation exposed discrepancies in raw material consumption data, price of raw materials, and NBR production. The appellant argued that they had diligently cooperated by responding to every letter from the DA and that the DA should have reverted to them if any information was found inadequate. The Tribunal found that the data provided by the appellant had gaps, discrepancies, and contradictions, justifying the DA's decision to treat them as a non-cooperative exporter and rely on data from other sources.

Conclusion:
The Tribunal concluded that the DA's determination of Normal Value based on "facts available" was justified due to the discrepancies and gaps in the data provided by the appellant. The injury analysis conducted by the DA was also found to be sound and justified by the factual data. Consequently, the appeals were rejected.