2017 (12) TMI 463 - AT - Customs

ADD - Elastomeric Filament Yarn (EFY) - import from China PR, Korea, Taiwan and Vietnam (subject countries) - It is claimed that there is no injury to the DI and there is no reason for imposition of AD duty. The thrust of the argument is that the DI is doing well and is having good commercial return and there is no apparent injury caused to the DI due to import of the subject goods - Held that - There is no ground to support the claim of the appellants that there is no material injury to the DI due to imports of subject goods. It is clear that a comparison of landed values with the non-injury prices of the DI reveals significant price under selling. The DA had concluded that the performance of DI remained negative in respect of profit, return on investment and inventory level. In the face of such conclusion based on facts we have no reason to arrive at any contrary finding. It is relevant to note that there is only one unit in the DI which started operation in the year 2012 and engaged in commercial production and sale of the PUC with gradual increase in production and sales in India. The various relevant parameters which will determine the material injury of the DI has been examined by the Original Authority and as already noted, we have no reason to interfere with the same. Accordingly, there is no merit in the appeals filed by the user importer of PUC in India. On the appeals filed by Hyosung Corporation, Hyosung Vietnam we note that Hyosung group had stated that no commission has been paid to Hyosung Delhi office, however, Hyosung Vietnam provides monetary support to Hyosung Delhi office which undertakes various activities on their behalf. We note that the DA had asked Hyosung Corporation and Hyosung Vietnam to respond to the representation of DI regarding payment of large commission to their Delhi office - The adjustments on account of inland freight, overseas freight, handling charges, marine insurance, credit cost, bank charges and drawback reimbursement have been accepted after necessary verification. An additional adjustment has been made on account of commission paid to their Delhi office. The DA accordingly arrived at normal value and export price for the producer/exporter. We find no infirmity in such process. Accordingly, there is no merit in the appeal filed by Hyosung Vietnam. On the appeal filed by Hyosung Corporation, Korea we note the DA had recommended nil duty rate for PUC produced and exported by Hyosung Corporation from South Korea. The Customs notification also did not impose any anti dumping duty on such imports - we find no justification in the claim made by the appellant for termination of the investigation only for them. In any case, as already noted no AD duty has been recommended or imposed on the exports made by the Hyosung Corporation, as mentioned in Sl. No. 7 of the table attached to the Customs Notification dated 03/05/2017. As such, there is no merit in the present appeal. Appeal by the DI - The DI is partially aggrieved by the impugned final findings and customs notification - Held that - In the absence of specific instances, we could not identify the source of grievance for the DI. The applicability of Rule 7 of AD Rules to various data submitted by interested parties have been examined by the D.A. The sufficiency of the claim of confidentiality has been recorded by D.A. As such, we find no merit in the present appeal filed by the DI. Principles of Natural Justice - Held that - We note that more than one hearing was held with due notice. The appellants did submit their side of the case. In our opinion, there is no breach of due process in the present case. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Injury and causal link determination
2. Determination of Non-Injurious Price (NIP)
3. Violation of principles of natural justice
4. Determination of "like article"
5. Calculation of net ex-factory export price
6. Inclusion of Hyosung Corporation in the notification for imposition of AD duty
7. Excessive claims of confidentiality by exporters

Detailed Analysis:

1. Injury and Causal Link Determination:
The appellants argued that the injury and causal link determination by the Designated Authority (DA) was not in accordance with Annexure II of the Anti Dumping (AD) Rules. They contended that the volume effect, evaluated in terms of sales, market share, capacity utilization, production, and inventory levels, showed no adverse impact due to the import of subject goods. They claimed that the Domestic Industry (DI) had increased sales and met more domestic demand, with imports decreasing during the investigation period. The DA, however, found that despite the DI operating at full capacity, it could not make profits due to price pressure from dumped imports. The DA's detailed analysis revealed that the DI had to match discounted landed prices, resulting in continued losses despite improved commercial parameters. The tribunal agreed with the DA's findings, noting no contrary evidence.

2. Determination of Non-Injurious Price (NIP):
The appellants claimed that the determination of NIP was not in accordance with Annexure III of the AD Rules. They argued that the DA examined "price under selling," which is not an injury parameter. The DA, however, found significant price under selling when comparing landed values with the non-injury prices of the DI. The tribunal upheld the DA's conclusion that the DI's performance remained negative in terms of profit, return on investment, and inventory levels.

3. Violation of Principles of Natural Justice:
The appellants argued that the principles of natural justice were violated as they were not called for the third oral hearing and were not provided full details of DGCIS statistics. The tribunal noted that multiple hearings were held with due notice, and the appellants had the opportunity to present their case. The tribunal found no breach of due process in the investigation.

4. Determination of "Like Article":
The appellants contended that the goods manufactured by the DI could not be considered "like articles" with imports, citing differences in quality and performance. The DA examined the question of quality comparison and found no infirmity in the findings. The tribunal upheld the DA's determination that the subject goods were "like articles" as per Rule 2(d) of the AD Rules.

5. Calculation of Net Ex-Factory Export Price:
Hyosung Vietnam and Hyosung Korea argued that the calculation of the net ex-factory export price was incorrect, with the entire income of Hyosung India office being applied for adjustment instead of the commission amount for the product under consideration (PUC). The DA examined the submissions and made adjustments for inland freight, overseas freight, handling charges, marine insurance, credit cost, bank charges, and drawback reimbursement. An additional adjustment was made for the commission paid to the Delhi office. The tribunal found no infirmity in the DA's process.

6. Inclusion of Hyosung Corporation in the Notification for Imposition of AD Duty:
Hyosung Corporation argued that they should not have been included in the notification for imposition of AD duty as the DA recommended a nil duty rate. The tribunal noted that Rule 14 of the AD Rules does not contemplate part closure of investigation and that the DA must consider the overall import picture for the PUC. The tribunal found no merit in the claim for termination of the investigation for Hyosung Corporation.

7. Excessive Claims of Confidentiality by Exporters:
The DI contended that the DA erred in accepting excessive claims of confidentiality by exporters and that several additional documents were taken on record without following Rule 7 of the AD Rules. The tribunal found that the DI's points were generic and lacked specific details. The DA examined the sufficiency of the claims of confidentiality and recorded findings accordingly. The tribunal found no merit in the DI's appeal.

Conclusion:
The tribunal dismissed all the appeals, finding no merit in any of the arguments against the final findings and the customs notification imposing anti-dumping duty on the subject goods imported from the subject countries. The DA's investigation and conclusions were upheld as methodical and in accordance with the prescribed rules.