2018 (3) TMI 779 - AT - Customs

Imposition of ADD - Styrene Butadiene Rubber (SBR) of 1500 series and 1700 series - import from EU, Korea RP or Thailand - whether or not the DA has erred in examining the scope of DI and in analyzing the injury to the DI as claimed by the submissions made by the appellants? - Held that - In the present case, we have two units constituting DI and both are admittedly in a very nascent stage of viable commercial production and stable operation. This much has been admitted by all the parties as the same cannot be contested on facts. In such a situation, if the DA is called upon to examine the possibility of existence of dumping causing injury to domestic industry, it is not incorrect on the part of DA to examine the status of these two new industries, though in different stages of commercial production in time line. Admittedly, both are engaged in the manufacture of the impugned goods which were being imported by users in India. It is clear that while examining the impact of such imports on these DI, the DA has to apply specific economic criteria for a due conclusion. The DA, noting that the production, domestic sales and capacity utilization of DI had increased as these units commenced their production and accordingly there was an upward trend in domestic production and sales also recorded that the upward trend is not significant which can be construed as growth of DI. These three appellants have not made out any case against the final finding and the customs notification imposing AD duty on the impugned goods - appeals dismissed.

Issues Involved:
1. Delay in filing appeals by Domestic Industry (DI)
2. Faulty initiation of Anti-Dumping (AD) investigation
3. Analysis of material injury and material retardation to Domestic Industry (DI)
4. Exclusion of certain product grades from investigation
5. Excessive confidentiality and denial of principles of natural justice
6. Correctness of individual dumping margin fixed for LG Chem Ltd., Korea

Detailed Analysis:

1. Delay in Filing Appeals by Domestic Industry (DI):
The Domestic Industry (DI) requested condonation for a three-day delay in filing their appeals. The Tribunal condoned the delay and proceeded to decide on the merits of the appeals.

2. Faulty Initiation of Anti-Dumping (AD) Investigation:
The appellants argued that the initiation of the AD investigation by the Designated Authority (DA) was faulty. They contended that the determination of material injury to M/s ISRPL and material retardation to M/s RIL was contrary to the provisions of Annexure-II and Rules 17 of AD Rules. The Tribunal found that the DA had correctly followed the guidelines available in Annexure-II to AD Rules.

3. Analysis of Material Injury and Material Retardation to Domestic Industry (DI):
The appellants argued that the DA erred in finding that M/s ISRPL suffered material injury and M/s RIL suffered material retardation, as these concepts require different scopes of investigation. The Tribunal concluded that the appellants were taking a hyper-technical view and that the DA had correctly examined the status of the two new industries. The Tribunal agreed with the DA's findings that material injury and material retardation are not mutually exclusive and can be examined simultaneously.

The Tribunal also noted that the DI need not be homogeneous and can contain units in various stages of establishment. The DA's analysis of the volume effect of dumped imports on DI and the economic parameters of nascent DI was found to be correct.

4. Exclusion of Certain Product Grades from Investigation:
The appellants argued that product grades E-SBR 1739 and E-SBR 1789 should have been excluded from the investigation as they are not manufactured by the DI. The Tribunal agreed with the DA's finding that the DI can produce and supply different grades and that all "like articles" should be treated together for investigation.

5. Excessive Confidentiality and Denial of Principles of Natural Justice:
The appellants contended that the DA granted excessive confidentiality to DI, prejudicing their ability to submit their case. The Tribunal found that the DA followed established procedures and provisions contained in AD Rules and Annexure thereto during the investigation, with no serious deviation calling for intervention.

6. Correctness of Individual Dumping Margin Fixed for LG Chem Ltd., Korea:
The DI contested the methodology adopted for determining the non-injurious price and the individual dumping margin fixed for LG Chem Ltd., Korea. They argued that the DA did not consider the selling and general administrative expenses and profit of LG Chem Ltd. and its affiliates in India. The Tribunal found that the DA had correctly analyzed the inter-relationship between various group companies of LG Chem Ltd., Korea, and made due adjustments while computing the dumping margin. The Tribunal found no merit in the appeals against the DA's analysis and computation.

Conclusion:
The Tribunal dismissed all the appeals filed against the final finding and the customs notification imposing AD duty on the impugned goods. The connected miscellaneous applications were also disposed of. The Tribunal found no legal or factual infirmity in the DA's findings and upheld the imposition of definitive Anti-Dumping duty on Styrene Butadiene Rubber (SBR) originating in or exported from EU, Korea RP, or Thailand.

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