2016 (9) TMI 1166 - AT - Customs

Enhancement of Anti Dumping Duty - rubber chemicals known as PX13 (6 PPD) - Mid Term Review - Notification No. 92/2011-Cus. dated 20.09.2011 - imports of subject goods from PR China and Korea RP - Rule 23 of Anti Dumping Rules indicate the powers of the DA to review the need for continued imposition of any AD duty on its own initiative or upon request by any interested party - Held that - the decision in the case Rishiroop Polymers Pvt. Ltd. vs. Designated Authority Addl. Secretary 2006 (3) TMI 143 - SUPREME COURT OF INDIA is relied upon. It was held if there is significant change in the facts and circumstances that it is considered necessary either to withdraw or modify appropriately the AD duty which has been imposed the DA can act accordingly. The procedure envisaged has been followed by the DA. The DA has considered volume effect of dumped margin, price effect, price under selling, price suppression and depression and other economic parameters relating to domestic industry before reaching the conclusion. The injury to the domestic industry is likely to recur in case the present AD duties are not modified. The definitive AD duty has been revised based on such recommendation by the DA - the imposition of AD duty per-se cannot be challenged. Appeal dismissed - decided against appellant.

Summary

Issues:
Challenge to Notification No. 92/2011-Cus. dated 20.09.2011 and Final Findings on Mid Term Review dated 05.08.2011 by Appellants.

Analysis:

1. Jurisdiction of Designated Authority (DA) in Mid Term Review:
The appellants contested the enhancement of Anti-Dumping (AD) duty by the DA through a Mid Term Review. They argued that the DA lacked the jurisdiction to revise the AD duty before its expiry, citing Section 9A(5) and the proviso granting powers to the Central Government for review. They claimed that the AD duty imposed on a definite finding cannot be increased in a review. Additionally, they challenged the determination of normal value, injury analysis, and the DA's decision on price under cutting/underselling. The appellants argued that the DA erred in enhancing the AD duty as there was no injury to the domestic industry during the relevant period.

2. Challenge by NOCIL:
NOCIL, representing the domestic industry, filed an appeal against the Final Finding recommending definitive AD duty on subject goods. They contended that their earlier appeal was disposed of by the Tribunal, remanding the matter to the DA for re-determination. NOCIL stated that they had no points to press in the present appeal due to developments in the case during the intervening period.

3. Defense of Impugned Findings:
The DA and Revenue defended the impugned findings and notification, asserting that the DA followed the prescribed procedure and arrived at the Mid Term Review findings with categorical reasons. They argued that the DA had the power to conduct such a review under Rule 23. The defense highlighted that the DA correctly compared raw material costs and export prices, and considered data related to the domestic industry during the relevant period.

4. Tribunal's Decision:
The Tribunal examined the appeal records and found that the challenge to the DA's power lacked legal basis. Citing previous judgments, the Tribunal affirmed the DA's authority to conduct a Mid Term Review. The Supreme Court's ruling emphasized the DA's power to modify AD duty in case of significant changes in circumstances. The Tribunal upheld the methodology adopted by the DA in modifying the AD duty, considering various economic parameters and circumstances related to the domestic industry. After detailed analysis, the Tribunal dismissed the appeals, finding no serious infirmity in the DA's methodology or procedure. The imposition of AD duty was upheld, and the appeals were dismissed.

This comprehensive analysis covers the jurisdiction of the DA in a Mid Term Review, challenges raised by the appellants, defense arguments, and the Tribunal's decision based on legal precedents and detailed examination of the case.