2010 (6) TMI 204 - AT - Customs

Anti-dumping duty- Margin of dumping- This Appeal preferred by Domestic Industries through the Appellant Association is against the result of sunset review notifying continuation of levy of Antidumping Duty at a reduced rate per MT of the Partially Oriented Yarn of any specification. During currency of the levy, a review was initiated by the Designated Authority (hereinafter referred to as DA ) in terms of Notification No. 15/9/2005 - DGAD dated 20.12.2005 and such review ended by final finding notified vide Notification No. 15/9/2005 - DGAD dated 18.6.2007, giving rise to issuance of the impugned Notification, under challenge before Tribunal in the present appeal. Held that- For the reasons advanced by the D.A. and in view of the law relating to power of D.A. and object of law relating to levy of antidumping duty, action of D A, should be free from criticism when interest of domestic industry warranted the levy of anti dumping duty to the extent, the D.A. and the Central Government considered appropriate. Merited action of D.A as well as of the Central Government does not call for interference in this appeal finding the grounds of appellant pulpable. For the reasons aforesaid and conclusions drawn, the appeal is dismissed being devoid of merit.

Summary

Issues Involved:
1. Whether the Central Government can vary the anti-dumping duty in a review proceeding under Section 9A(5) of the Customs Tariff Act, 1975.
2. Whether individual dumping margin can be determined for an exporter who has no exports and hence no export price to India.

Issue-wise Detailed Analysis:

1. Variation of Anti-Dumping Duty in Review Proceedings:

The appellant argued that Section 9A(5) of the Customs Tariff Act, 1975, only empowers the Central Government to extend the period of anti-dumping duties and not to vary them. The appellant cited the Supreme Court decision in Rishiroop Polymers case and the Delhi High Court decision in Kalyani Steels Ltd. to support their claim that the power under Section 9A(5) is limited to extending the period of duties and does not include varying the duties. They contended that any variation should be done through a mid-term review under Rule 23(1) and not under Section 9A(5).

The respondent, however, argued that the sunset review provision under Section 9A(5) allows the Central Government not only to extend the period of imposition of anti-dumping duty but also to re-determine or alter the duty as deemed appropriate. The Tribunal agreed with the respondent, stating that the Designated Authority (DA) has the power to review and recommend the variation of duties based on the current economic factors and injury analysis. The Tribunal emphasized that the DA's powers are broad and include the ability to recommend changes to the duty to ensure it effectively counters dumping and protects the domestic industry.

The Tribunal concluded that the Central Government has the power to vary the anti-dumping duty in a sunset review, as the review process involves examining whether the conditions that existed at the time of imposition have changed and whether the duty needs to be continued, varied, or withdrawn.

2. Determination of Dumping Margin for Exporters with No Exports to India:

The appellant argued that the DA cannot determine an individual dumping margin for an exporter who has no exports to India and hence no export price. They contended that the DA improperly used the provisions of Section 9A(1)(c)(ii)(a) to create a deemed export price based on exports to third countries, which is not legally or logically permissible.

The respondent countered that the anti-dumping law allows the DA to determine the export price to India based on a country's export price to third countries when there are no exports to India during the Period of Investigation (POI). The DA used the actual export prices to other countries to determine the likely export price and dumping margin, which is a rational approach in the absence of direct exports to India.

The Tribunal supported the respondent's approach, stating that the DA has the authority to use third-country export prices to determine the likely export price to India and the corresponding dumping margin. This method is necessary to assess the likelihood of dumping and injury if the anti-dumping duties are removed. The Tribunal emphasized that the DA's analysis of likely injury and the extent of dumping, even in the absence of direct exports, is within the scope of its powers and is necessary to protect the domestic industry.

Tribunal's Decision:

The Tribunal dismissed the appeal, affirming that the Central Government has the power to vary the anti-dumping duty during a sunset review and that the DA can determine the likely export price and dumping margin based on third-country exports in the absence of direct exports to India. The Tribunal found the DA's actions to be logical, based on sound principles of law, and necessary to protect the domestic industry from injury due to dumping. The appeal was deemed devoid of merit and was dismissed.