2004 (7) TMI 109 - AT - Customs

Summary

Issues Involved:
1. Initiation of sunset review.
2. Extension of anti-dumping duty during sunset review.
3. Levy of variable duty.
4. Confidentiality of information.
5. Determination of normal value, dumping margin, and reference price.

Detailed Analysis:

1. Initiation of Sunset Review:
The initiation of the sunset review by the Designated Authority was contested by M/s. Puneet Resins Limited and M/s. Korea Kumho Petrochemicals Co. Ltd. The appellants argued that the review was initiated within 23 days of the publication of Notification No. 91/2001, dated 7-9-2001, contrary to Trade Notice No. 1/99, dated 21-4-1999, which stipulates that an application for interim review can only be accepted after one year from the imposition of anti-dumping duty. However, the Tribunal found that the Trade Notice does not apply to sunset reviews, which are necessary at the end of five years to assess the need for continued imposition of anti-dumping duty.

2. Extension of Anti-Dumping Duty During Sunset Review:
The appellants argued that the imposition of anti-dumping duty was extended up to 30-9-2002, but the notification for continuation was issued on 10-10-2002, making it unsustainable. The Tribunal held that the anti-dumping duty imposed by Notification No. 111/2002, dated 10-10-2002, was permissible under Section 9A of the Customs Tariff Act, and thus, the arguments of the appellants were without merit.

3. Levy of Variable Duty:
The appellants and the intervener, Kothari Sugars Chemicals Limited, contended that the levy of variable duty was prejudicial, especially since the customs duty was reduced after the period of investigation. The Tribunal noted that the variable duty method, which bases the duty on the difference between the reference price and the landed value of the consignment, could cause prejudice due to changes in customs duty. The Tribunal found that there was no material justification for changing from a fixed duty to a variable duty in the sunset review. Consequently, it was held that the anti-dumping duty on imports from M/s. Korea Kumho Petrochemicals Co. Ltd. should be imposed as a fixed duty.

4. Confidentiality of Information:
M/s. Korea Kumho Petrochemicals Co. Ltd. argued that the Designated Authority disclosed confidential information, contravening Rule 7 of the Anti-Dumping Rules. The Tribunal noted that this issue was pending before the Hon'ble Delhi High Court in a writ petition and refrained from addressing it.

5. Determination of Normal Value, Dumping Margin, and Reference Price:
M/s. Apar Industries Limited requested a re-determination of the normal value, dumping margin, and reference price. The Tribunal found that the Designated Authority had considered the data furnished by the appellants and had excluded transactions not made in the ordinary course of trade. The methodology of weighted average to weighted average grade comparison was adopted for evaluating normal value, cost of production, and export price. The Tribunal found no merit in the appellants' contention that the Designated Authority had erred in its determination.

Conclusion:
The appeal filed by M/s. Korea Kumho Petrochemicals Co. Ltd. was allowed, and the entry in Sl. No. 1 in Notification No. 111/2002-Cus., dated 10-10-2002, relating to M/s. Korea Kumho Petrochemicals Co. Ltd. was deleted. Imports of Acrylonitrile Butadiene Rubber from Korea R.P. by M/s. Korea Kumho Petrochemicals Co. Ltd. were subjected to a fixed anti-dumping duty of US $106.16 per Metric Tonne. All other appeals were dismissed.