2000 (12) TMI 291 - AT - Customs

Summary

Issues Involved:
1. Validity of the Designated Authority's initiation of anti-dumping investigation.
2. Definition and scope of "domestic industry."
3. Determination of normal value for Optical Fibre.
4. Disclosure of essential facts and data by the Designated Authority.
5. Assessment of non-injurious price and injury to domestic industry.

Issue-wise Detailed Analysis:

1. Validity of the Designated Authority's initiation of anti-dumping investigation:
The appellants challenged the notification issued by the Government of India imposing anti-dumping duty on Optical Fibre from Korea. M/s. Sterlite Industries Ltd. had filed an application to initiate an investigation. The Designated Authority issued a public notice and conducted an investigation, culminating in Preliminary and Final Findings. The appellants argued that M/s. Sterlite Industries Ltd., having imported Optical Fibre, could not represent the domestic industry, thus invalidating the initiation of the investigation. The Tribunal overruled this contention, stating that domestic producers who are not importers of the alleged dumped article from the subject country are not excluded from the definition of "domestic industry." Therefore, M/s. Sterlite Industries Ltd. was deemed a proper representative of the domestic industry.

2. Definition and scope of "domestic industry":
The appellants contended that M/s. Sterlite Industries Ltd. should be excluded from the definition of domestic industry as they imported Optical Fibre. The Tribunal clarified that the exclusion applies only to domestic producers who import the alleged dumped article from the subject country (Korea). Since M/s. Sterlite Industries Ltd. imported Optical Fibre from Malaysia, they were not excluded from being considered domestic industry. Thus, the Designated Authority's initiation of proceedings was deemed proper.

3. Determination of normal value for Optical Fibre:
The appellants argued that there should be only one normal value for Optical Fibre manufactured in Korea. The Tribunal noted that Rule 17(3) requires the Designated Authority to determine individual margins of dumping for each exporter or producer. Therefore, different normal values for different producers were justified. The Tribunal also addressed specific contentions regarding the normal value determination for M/s. Samsung Electronics Ltd. and M/s. Taihan Electric Wire Co. Ltd., finding no merit in the appellants' arguments.

4. Disclosure of essential facts and data by the Designated Authority:
The appellants argued that the Designated Authority did not disclose essential data, preventing them from making an effective appeal. The Tribunal emphasized that Rule 16 requires the Designated Authority to inform interested parties of the essential facts under consideration. The Tribunal found that the Designated Authority did not adequately inform the parties about the conclusions reached on the data provided by them, which undermined the principle of fair play.

5. Assessment of non-injurious price and injury to domestic industry:
The Tribunal found that the Designated Authority incorrectly assumed that M/s. Sterlite Industries Ltd. had an annual capacity of 10 lakh KMs during the period of investigation. The actual capacity was lower, and the injury should have been assessed accordingly. The Tribunal noted that M/s. Sterlite Industries Ltd. did not provide a project report for their capacity expansion, leading to an erroneous assessment by the Designated Authority. Consequently, the Tribunal concluded that the Designated Authority did not properly assess the injury caused to the domestic industry.

Conclusion:
The Tribunal allowed the appeals on the ground that the Designated Authority did not properly assess the injury caused to the domestic industry. The Government of India notification imposing anti-dumping duty on Optical Fibre from Korea was set aside.