2010 (4) TMI 379 - AT - Customs

Anti-dumping duty- Continuing and revision of anti dumping on flexible slabstock polyol originating in, or exported from, Singapore. Notification No. 15/2008-Cus.. dated 5.2.2008 challanged. Dumping margin found to be negative for appellant exporter. Injury factors considered with findings on absence of injury to domestic industry. Analysis in impugned order sketchy and bordering on conjuncture and not supporting conclusion on likelihood of intensification of dumping or recurrence of dumping. Findings of designated authority to be reasoned. DA to draw conclusion based on proper analysis of attendant factors. Findings cumulating both dumped and non dumped imports and the same not provided for in provisions. Parties complaining that submission not considered. Held that- impugned final findings and notification relating to Singapore set aside. Matter remanded to DA for fresh determination. Anti dumping duty to continue on provisional basis till fresh decision.

Issues Involved:
1. Negative dumping margin and unjustified continuation/enhancement of Anti-dumping duty.
2. Failure to determine the likelihood of recurrence of dumping.
3. Speculative, unreasonable, and arbitrary determination by the Designated Authority (D.A.).
4. Lack of reasonable grounds for conclusions about trade direction shifts and domestic demand.
5. Unsubstantiated determination of recurrence of injury to the domestic industry.
6. Violation of Section 9A(1) and 9A(6) of the Customs Tariff Act by levying Anti-dumping duty without a positive dumping margin.
7. Improper injury analysis by the D.A.
8. Cumulation of dumped and un-dumped imports by the D.A.
9. Inadequate provision of non-confidential information to the domestic industry.
10. Use of fresh data without providing non-confidential versions to the domestic industry.
11. Request for Anti-dumping duty in Rupee terms not considered.

Issue-wise Detailed Analysis:

1. Negative Dumping Margin and Unjustified Continuation/Enhancement of Anti-dumping Duty
The appellants argued that despite a negative dumping margin for exporters from Singapore, the Anti-dumping duty was not only continued but also enhanced without justification. The Tribunal acknowledged that the D.A. found the dumping margin to be negative for the appellant exporters from Singapore, as noted in para 54 of the findings.

2. Failure to Determine Likelihood of Recurrence of Dumping
The appellants claimed that the D.A. failed to determine the likelihood of recurrence of dumping by the appellants or for Singapore as a whole. The Tribunal observed that the D.A.'s analysis on this aspect was sketchy and bordered on conjecture, lacking a proper basis for the conclusion that there is a likelihood of recurrence of dumping.

3. Speculative, Unreasonable, and Arbitrary Determination
The appellants argued that the determination by the D.A. was speculative, unreasonable, and arbitrary. The Tribunal found that the D.A.'s conclusions were not supported by a proper analysis of all attendant factors and were based on conjecture rather than concrete evidence.

4. Lack of Reasonable Grounds for Conclusions About Trade Direction Shifts and Domestic Demand
The appellants contended that the D.A. provided no reasonable grounds for concluding that a shift in trade direction would attract a greater share of imports due to growing domestic demand. The Tribunal agreed, noting that the D.A.'s finding on this matter was speculative and lacked a solid basis.

5. Unsubstantiated Determination of Recurrence of Injury to the Domestic Industry
The appellants argued that the determination of recurrence of injury to the domestic industry had no basis. The Tribunal found that many injury factors examined by the D.A. did not indicate injury to the domestic industry, and the overall assessment showed that the domestic industry had not continued to suffer material injury.

6. Violation of Section 9A(1) and 9A(6) of the Customs Tariff Act
The appellants claimed that levying Anti-dumping duty without determining a positive dumping margin violated Section 9A(1) and 9A(6) of the Act. The Tribunal noted that the criteria under Section 9A(1) that the Anti-dumping duty should not exceed the dumping margin would have no practical application for the continuance of the duty under Section 9A(5).

7. Improper Injury Analysis by the D.A.
The appellants argued that the injury analysis conducted by the D.A. was improper and contrary to rules. The Tribunal found that the D.A.'s analysis of likelihood of continuation or recurrence of dumping and injury was sketchy and did not support the conclusion drawn.

8. Cumulation of Dumped and Un-dumped Imports
The appellants contended that the D.A. cumulated both dumped and un-dumped imports for determining dumping margin and injury margin, which was illegal. The Tribunal agreed, noting that such cumulation did not find support in the Anti-dumping rules.

9. Inadequate Provision of Non-confidential Information to the Domestic Industry
The domestic industry argued that sufficient non-confidential information was not provided to them, nor were they given an adequate opportunity to present their case. The Tribunal acknowledged this complaint but did not provide a detailed analysis on this point.

10. Use of Fresh Data Without Providing Non-confidential Versions to the Domestic Industry
The domestic industry contended that the D.A. relied on fresh data collected during verification for which no non-confidential version was given to them. The Tribunal noted this issue but did not provide a detailed analysis.

11. Request for Anti-dumping Duty in Rupee Terms Not Considered
The domestic industry argued that the D.A. did not consider their request to recommend the imposition of Anti-dumping duty in Rupee terms. The Tribunal did not provide a detailed analysis on this point.

Conclusion:
The Tribunal set aside the impugned final findings and the notification issued pursuant thereto concerning exports originating from Singapore. The matter was remanded for fresh determination by the D.A., preferably within six months, after giving adequate opportunity of hearing to the appellants and other interested parties. The Anti-dumping duty was ordered to continue provisionally at the same rates as during the sunset review until the fresh determination by the D.A.

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