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TMI Blog2010 (4) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... e R.M.S. Khandeparkar, President, Dr. Chittaranjan Satapathy, Member (T) and Shri D.N. Panda, Member (J) S/Shri R. Parthsarthy, S. Seetharaman, Uday Tiwari and Subham Yogi, Advocates, for the Appellant. S/Shri Ameet Singh, Advocate and M.K. Anand, Director for the Designated Authority, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. - This appeal is directed against Ministry of Finance Notification No. 15/2008-Cus., dated 5-2-2008, which has been issued pursuant to the Final Findings dated 26th December, 2007, of the Designated Authority (D.A.) in the Ministry of Commerce and Industry in the Sunset Review recommending continuance and revision of the Anti-dumping duty on Flexible Slabstock Polyol originating in/exported from Singapore in so far as the present appellants are concerned. 2. On the basis of an application filed by the domestic industry, the D.A. initiated Anti-dumping investigation on 21-9-2001 on imports of Flexible Slabstock Polyol originating in/exported from the European Union, Japan, Singapore and United States of America. The provisional Anti-dumping duty was imposed by Customs Notification No. 17/2002-Cus., dated 11-2-2002 bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Uday Tiwary, learned Advocate appearing for the appellant importer, states that Section 9A(5) of the Customs Tariff Act does not talk about the rate of Anti-dumping duty which is covered under Section 9A(1). In view of the provision of Section 9A(1) the Anti-dumping duty should not be continued in the absence of positive dumping margin. 6. Learned Advocate for the appellant importer also states that the D.A. cumulated both dumped and un-dumped imports for determining dumping margin and injury margin which is illegal in view of Annexure-II to the Anti-dumping Rules in terms of clause (i) and (iii) thereof. In this connection, he also cites decision of the Tribunal in the case of Forum of Acrylic Fibre Ltd. v. Designated Authority/Ministry of Finance and Ors. - 2006 (202) E.L.T. 257 (Tri. - Del.) = 2006 (137) E.C.R. 13. 7. Shri Ameet Singh, learned Advocate appearing for the D.A. reiterates the findings of the said authority and states that Section 9A(5) permits variation in the Anti-dumping duty after sunset review. He also states that cummulation is provided in Annexure-II to the Anti-dumping Rules for determination of injury. 8. Shri M.K. Anand, Director in the Anti-dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on exports originating in/from EU but we do not find the same substantiated or pressed. Similarly their challenge in regard to determination against exports originating in/from Japan is also unsubstantiated and not pressed. Hence, we confine ourselves to the challenge in these appeals to the determination made by the D.A. in respect of exports originating in/from Singapore only, which was argued before us. 14. This appeal relates to a case of sunset review by the D.A. We have considered at length issues relating to such review in our Final order in the case of M/s. Thai Acrylic Fibre Co. Ltd. v. D.A. in Appeal No. AD/4/2009 [2010 (253) E.L.T. 564 (Tribunal)]. Our findings therein are extracted below : "10. We are dealing in this case with the final findings arising out of a sunset review. As provided under Article 11.3, a sunset review can be initiated : • on the D.A.'s own initiative; or • upon a duly substantiated request made by or on behalf of the domestic industry, and filed within a reasonable time prior to the five-year anniversary of the imposition of anti-dumping duties. In the context of sunset reviews, two important questions have arisen in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essation of anti-dumping duty would lead to continuation or recurrence of dumping and injury to the domestic industry. The error that the Central Government has made in its interpretation of the municipal law is that it has given a very restricted meaning to Section 9A(5) of the Act read with Rule 23 of the Rules." 13. Unlike original investigations, sunset reviews are prospective in nature, as they focus on the likelihood of the continuation or recurrence of dumping and injury, in case anti-dumping duties are removed. With respect to the question whether dumping is likely to occur in the event that the antidumping duties are removed, the D.A. has to consider relevant economic facts which might indicate that in the event the anti-dumping duty is removed, dumping will recur. With respect to the injury determination, if the anti-dumping duty has had the desired effect, the condition of the domestic industry would be expected to have improved during the period the anti-dumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, not because they are inherent, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. While laying down the above principles, in UOI v. Paras Laminates (P) LTD. - 1990 (49) E.L.T. 322 (S.C.), the Hon'ble Supreme Court has quoted from Maxwell on Interpretation of Statutes, (eleventh edition) to the effect that 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution'. 17. We thus conclude with reference to the two questions raised in the course of hearing that the Government has the power to vary the antidumping duty while continuing the same on conclusion of a sunset review under Section 9A(5) of CTA. However, there is no warrant under the said Section 9A(5) to determine the current dumping margin and limit the antidumping duty to such limit as under Section 9A(1). However, if the Government wants to vary the anti-dumping duty under Section 9A(5) instead of merely continuing the duty initially imposed under Section 9A(1), it must be for a good and sufficient ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -dumping duty is ordinarily contemplated to be continued and remain in effect for a full period of five years, at the end of which it would be subject to sunset review, the possible consequence of which would be the extension of the operation of the period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. Having regard to the scheme of the above mentioned provisions of the statute, once antidumping duty has been initially imposed, it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed. It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at thereof at the time of the original investigation. In contrast, Article 11.3 requires an investigating authority, in order to maintain an anti-dumping duty, to review an anti-dumping duty order that has already been established-following the pre-requisite determinations of dumping and injury-so as to determine whether that order should be continued or revoked. 280. Given the absence of textual cross-references, and given the different nature and purpose of these two determinations, we are of the view that, for the "review" of a determination of injury that has already been established in accordance with Article 3, Article 11.3 does not require that injury again be determined in accordance with Article 3. We therefore conclude that investigating authorities are not mandated to follow the provisions of Article 3 when making a likelihood-of-injury determination." (ii) US - Sunset Reviews of Anti-dumping Measures on CRCS Flat Products from Japan : WT/DS244/AB/R dated 15-12-2003 : "149. We turn first to Article 11.3, which is the main provision of the Anti-Dumping Agreement addressing sunset reviews. As discussed above, Article 11.3 requires the termination of an anti-dumping d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18% from the base year. The Authority noted the domestic production was about half the domestic demand so that imports are necessary to meet the shortfall in supply." While examining the price effects of dumped imports, the D.A. has come to the conclusion that there is no price depression vide para 77 of his findings. The D.A. examined several other injury factors, many of them do not indicate injury to the domestic industry. This is reflected in the following conclusions of the D.A. : - "G.4 Overall assessment 89. The above analysis of the factors shows that despite the large volume of imports, the domestic industry has been able to maintain its share in the market and has not suffered injury over the relevant period since a majority of the parameters have shown improvement over the base year. There is no price undercutting, price suppression or price depression caused by subject country imports, but price underselling of 19% is seen. G.5 Conclusions on injury 90. The Authority noted that the volume effect of subject country imports has been relatively insignificant despite their increase in absolute terms and the price effect is restricted to price under-selling. Most ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It is not surprising that all parties to the dispute, namely the exporters, the importers and the domestic industry are aggrieved by the above finding as expressed through their appeals and arguments before us. The D.A.'s finding has to be reasoned and the same should speak for itself. By a proper analysis of all attendant factors he must come to a conclusion as to whether there is or not a likelihood of continuation or recurrence of dumping and injury, and whether the anti-dumping duty should continue and if so, whether at the same rate, enhanced rate or reduced rate. He can not be seen to be conjecturing "should a shift in the direction of trade in the subject product occur in the exporting country, the growing domestic demand would attract a greater share of imports" as he has done without indicating any basis. Moreover, he has cumulated both dumped and non-dumped imports in his finding which does not find support in the Anti-dumping rules, nor his counsel was able to show us any legal provision in support of such cumulation. Further, all parties to the dispute have complained before us that many of their submissions were not considered before issuing the final findings. 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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