2000 (2) TMI 344 - AT - Central Excise

Summary

Issues Involved:
1. Imposition of anti-dumping duty on Dead Burnt Magnesite (DBM) from China.
2. Determination of normal value and export price.
3. Classification of DBM as a 'like article'.
4. Causal link between imports and injury to domestic industry.
5. Procedural fairness in the investigation by the Designated Authority (DA).

Detailed Analysis:

1. Imposition of Anti-Dumping Duty on DBM from China:
The appeal challenges the DA's final findings recommending the imposition of anti-dumping duty on DBM originating from China. The DA concluded that Chinese DBM was exported to India below its normal value, causing material injury to the domestic industry. The DA recommended specific anti-dumping duties for various exporters.

2. Determination of Normal Value and Export Price:
The appellants argued that the investigation was unfair as the materials used for determining the normal value were confidential. They also contended that the method of determining the export price at the FOB level instead of the CIF level was ultra vires. The DA defended the confidentiality under Rule 7 of the Anti-Dumping Rules and justified the use of FOB level prices, stating that the relevant comparison is between the export price and the domestic sale price in the exporting country.

3. Classification of DBM as a 'Like Article':
The appellants contended that DBM with less than 4% silica imported from China is not a 'like article' compared to domestically produced DBM. The DA, however, maintained that the definition of 'like article' under Rule 2(d) of the Anti-Dumping Rules includes articles with characteristics closely resembling those under investigation.

4. Causal Link Between Imports and Injury to Domestic Industry:
The appellants argued that the high-grade DBM with less than 4% silica is not produced in India and thus does not compete with domestic products. They provided technical and commercial evidence to support this claim. The DA's findings, however, stated that imported DBM substituted domestically produced DBM both commercially and technically, without addressing the specific materials and evidence presented by the appellants.

5. Procedural Fairness in Investigation by DA:
The appellants claimed that the investigation violated principles of natural justice due to the non-disclosure of information used to determine the normal value. The DA countered that Rule 7 mandates confidentiality and that Indian importers lack access to domestic pricing information in China, especially given China's non-market economy status.

Judgment:
The tribunal found that the DBM with less than 4% silica content is a different grade/type from what is produced in India. The imported DBM does not compete commercially with domestic DBM and thus does not cause material injury to the domestic industry. The tribunal concluded that the imposition of anti-dumping duty on such DBM was unjustified. Consequently, the final findings of the DA were modified to exclude DBM with less than 4% silica from the anti-dumping duty imposition. The appeal was allowed to this extent.