2017 (11) TMI 621 - AT - Customs

ADD - faulty initiation of Anti-Dumping investigation - import of various jute products from Bangladesh or Nepal - case of appellant is that Rule 5 of AD Rules has not been strictly followed by the DA. It is submitted that Rule 5 (3) mandates that unless the DA determines that the application has been made by or on behalf of DI and accuracy and adequacy of the evidence provided in the application satisfies regarding dumping, injury and causal link between dumped imports and alleged injury no investigation can be initiated. Held that - The term jute products comprises of more than one article and the DA has fallen in error in identifying three different products and clubbing them under the category of jute products. We, on careful examination of the facts of the case, note that the only source of these products is raw jute. There is no substantial transformation in the formation of jute yarn/twine to fabric or sacks. In our considered opinion the definition of like article under Rule 2 (d) of AD Rules, 1995 rightly covers the determination as done by the DA. The products under consideration need not be identical or homogenous with each other - there is no infirmity in defining the scope of product under consideration in the present investigation. It is not tenable to have a separate investigation for jute yarn, fabric and bag. Such type of action, apart from being impractical, will result in certain anomalous results as these products are closely interlinked in trade and usage. As such, to consider them together as jute products for the purpose of Anti-Dumping investigation is proper and justified. In any case, we note that the conclusion arrived at by the DA in the final finding specified different description of goods like yarn, bag, fabric and recommended different duty rates for imposition with justified reasons. Accordingly, we find no merit in the submissions of the appellants against the process adopted by the DA. Regarding the submission of the appellants that the DI is importing jute products we note that the DA examined the scope of DI and acted within his discretion in terms of Rule 2 (b) of the AD Rules. Even if some of the entities in DI were importing or related to importers of jute products, the DA is not prevented in considering those entities in DI while arriving at the overall scope of DI. The DA also examined this aspect and recorded his finding at paras 38, 40 and 45. It is specifically recorded that the imports made in investigation period alone are relevant. In cases where domestic producer has bought jute from a trader who procured the same from Bangladesh or Nepal, such procurement by the producer does not disqualify them from being treated as DI. We find that the DA has examined at length the submissions of all the interested parties including the DI and proceeded as per the mandates of AD Rules, 1995. As noted already, we can examine only specific areas which are contested with contrary facts. In the absence of the same, we find that the detailed findings based on the established procedure cannot be interfered with. Accordingly, we are of the considered view that there is no merit in the present appeal by the DI also. Appeal dismissed - decided against appellant.

Issues Involved:
1. Faulty initiation of Anti-Dumping investigation by the Designated Authority (DA).
2. Improper defining of the scope of Domestic Industry (DI).
3. Delay in filing the appeal by the Domestic Industry (DI).
4. Determination of dumping margin and export prices.
5. Confidentiality and disclosure of data by the DA.
6. Miscellaneous points raised by appellants regarding injury analysis, sales turnover, and construction of normal value.

Issue-wise Detailed Analysis:

1. Faulty initiation of Anti-Dumping investigation by the Designated Authority (DA):
The appellants argued that the DA did not strictly follow Rule 5 of the AD Rules, which mandates that the application must be made by or on behalf of the DI, and the evidence provided must satisfy the criteria of dumping, injury, and causal link. They contended that the DA failed to appreciate the distinctions between different jute products and should have conducted separate investigations for each type. The Tribunal noted that the DA initiated the investigation based on prima facie evidence of dumping and published a public notice, which was in compliance with Rule 5. The Tribunal found no infirmity in the DA's initiation process.

2. Improper defining of the scope of Domestic Industry (DI):
The appellants claimed that the DA failed to exclude entities within the DI that were importing jute products from Bangladesh/Nepal, thereby improperly defining the scope of DI. The Tribunal referred to Rule 2(b) of the AD Rules, which defines "domestic industry" and allows for the inclusion of entities even if they import jute products, provided their import volume is low. The Tribunal found that the DA acted within its discretion and correctly defined the scope of DI, noting that the DA included as many producers of like products in India as possible.

3. Delay in filing the appeal by the Domestic Industry (DI):
The DI filed an appeal contesting certain aspects of the DA's findings but with a delay of 42 days. The Tribunal condoned the delay, considering the administrative reasons provided by the DI and the principle of substantial justice.

4. Determination of dumping margin and export prices:
The DI argued that the DA should have considered jute yarn, fabric, and bags as one article and not determined individual dumping margins for exporters. They also contended that the export prices claimed were high and not supported by comprehensive data. The Tribunal referred to Rule 18 of the AD Rules, which allows for a fair comparison between export price and normal value, and found that the DA correctly evaluated the dumping margin and injury margin. The Tribunal upheld the DA's findings, noting no irregularity in the process.

5. Confidentiality and disclosure of data by the DA:
The appellants questioned the DA's handling of confidential data, particularly the DGCIS data, and claimed that the DA should have disclosed more information under Rule 7 of the AD Rules. The Tribunal noted that the DA had placed the DGCIS data in the public file, allowing adequate opportunity for examination and comment by the appellants. The Tribunal found no issue with the DA's handling of confidential data, noting that the cost of production and related data are commercially sensitive and cannot be disclosed.

6. Miscellaneous points raised by appellants regarding injury analysis, sales turnover, and construction of normal value:
The appellants raised various other points, such as the DA's failure to consider government procurement of jute bags in the injury analysis, the static sales turnover of the DI, and the improper construction of normal value. The Tribunal found that the DA had made a comprehensive injury analysis, considering government procurement, and based its findings on verified data provided by the DI. The Tribunal also found no fault in the DA's construction of normal value, which was based on cost of production and reasonable return.

Conclusion:
The Tribunal dismissed all the appeals filed by the exporters from Bangladesh, Indian importers, and the DI, finding no merit in their arguments against the DA's final findings and the customs notification imposing Anti-Dumping duty. The Tribunal upheld the DA's investigation process, scope definition, and determination of dumping margin and export prices, and found no irregularity in the handling of confidential data or the injury analysis.

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