2000 (1) TMI 191 - AT - Customs

Issues Involved:
1. Volume of dumped imports and their effect.
2. Cumulation of imports from the three countries.
3. Comparison of SAIL's stockyard prices with the landed price of imports at the port.
4. Evaluation of injury to domestic producers due to Essar's entry.
5. Consideration of the de minimis injury argument under Rule 14(1)(e).
6. Fixation of minimum duty versus maximum duty.
7. Basis for determining the cost of production in Russia.
8. Consideration of Novolipetsk's submission and cost of production.
9. Determination of dumping margin for Zaporhistal, Ukraine.

Detailed Analysis:

1. Volume of Dumped Imports and Their Effect:
The Designated Authority (DA) initially found a 1% dumping margin for JSC Severstal in the preliminary findings, which was later revised to 113% in the final findings. The Tribunal noted that the DA focused on the volume of imports in the preliminary findings but shifted emphasis to price in the final findings. The Tribunal found this approach inconsistent and emphasized that both volume and price effects should be considered under Rule 11(2) of the Customs Tariff (Determination of Injury) Rules. The DA's failure to consistently consider the volume of dumped imports was deemed an error.

2. Cumulation of Imports from the Three Countries:
The Tribunal highlighted that the DA should have excluded imports from Kazakhstan, which were de minimis, from the cumulative assessment of injury. The DA's inclusion of these imports without proper justification was found to be erroneous. The Tribunal stressed that the DA should follow the principles outlined in Annexure-II of the Rules, which require separate consideration of imports from countries with insignificant volumes.

3. Comparison of SAIL's Stockyard Prices with the Landed Price of Imports at the Port:
The appellants argued that the DA incorrectly compared SAIL's stockyard prices with the landed price of imports at the port. The Tribunal found merit in this argument, noting that such a comparison could distort the injury analysis. The DA's approach was found to lack a proper basis for determining injury to the domestic industry.

4. Evaluation of Injury to Domestic Producers Due to Essar's Entry:
The Tribunal observed that the DA did not adequately evaluate the impact of Essar's entry into the market, which significantly affected the production, consumption, and market share of hot-rolled coils. The Tribunal agreed with the appellants that the DA should have considered this factor in the injury analysis.

5. Consideration of the De Minimis Injury Argument:
The Tribunal noted that the DA failed to consider the de minimis injury argument under Rule 14(1)(e). The DA's oversight in this regard was found to be a significant lapse, as the rule mandates consideration of whether the injury is negligible.

6. Fixation of Minimum Duty Versus Maximum Duty:
The appellants contended that the DA erred in fixing a minimum duty instead of a maximum duty. The Tribunal found that the DA's approach was inconsistent with the principles of anti-dumping duty, which should not exceed the margin of dumping and should be adequate to remove injury to the domestic industry.

7. Basis for Determining the Cost of Production in Russia:
The appellants argued that the DA incorrectly based the cost of production in Russia on the claims of the petitioners rather than considering Kazakhstan's cost. The Tribunal agreed that the DA should have used the cost of production specific to the exporter under investigation, as per Section 9A of the Customs Tariff Act.

8. Consideration of Novolipetsk's Submission and Cost of Production:
The Tribunal found that the DA did not adequately consider Novolipetsk's submission and the cost of production provided in response to the questionnaire. The DA's failure to consider this information was found to be contrary to the provisions of the Anti-dumping Rules.

9. Determination of Dumping Margin for Zaporhistal, Ukraine:
The Tribunal noted that the DA did not show the dumping margin for Zaporhistal, Ukraine, in the final findings, although it was provided in the preliminary findings. This omission was found to be a procedural lapse that needed rectification.

Conclusion:
The Tribunal concluded that the DA's findings were flawed due to inconsistencies in the analysis of volume and price effects, improper cumulation of imports, inadequate consideration of market dynamics, and procedural lapses in evaluating submissions and determining costs. Consequently, the Tribunal set aside the impugned order and allowed the appeals.

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