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TMI Blog2000 (12) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessment and Collection of Anti-dumping duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred as the Rules) for initiating investigation to determine the existence, degree and effect of alleged dumping of Optical Fibre originating in or exported from South Korea. On the basis of that application, Authority issued a Public Notice dated 1st July, 1999 in the Gazette of India initiating Anti-dumping investigation. In response to that notification and the questionnaire sent by the Designated Authority, appellants herein and others furnished details. Authority also conducted on the spot investigation. Preliminary Findings arrived at by the Authority were notified in the Gazette dated 5-11-1999. After completing the further investigations, the Designated Authority got its Final Findings notified in the Gazette dated 14th June, 2000. 3. The period of investigation fixed by the Designated Authority in the instant case was from 1-4-1998 to 28-2-1999. M/s. Sterlite Industries Ltd., as stated earlier, moved the Designated Authority for initiating proceedings under the Anti-dumping law in relation to import of Optical Fibre from Korea Republic. Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rters thereof are to be grouped along with domestic producers related to exporters of the alleged dumped article and domestic producers related to importers of the alleged dumped article. So taken, the domestic producers who are themselves importers should mean domestic producers who are themselves importers of alleged dumped article. In other words, domestic producers who are not importers of alleged dumped article from the subject country are not to be excluded from the definition of domestic industry. 5. What is meant by alleged dumped article? Alleged dumped article in the instant case can only be Optical Fibre imported from Korea Republic. Korea Republic is the subject country. The article with which investigation was initiated is Optical Fibre. So, the Optical Fibre originating in or exported from Korea Republic alone can be treated alleged dumped article. Optical Fibre imported to India from other country cannot be taken as alleged dumped article. Optical Fibre imported to India from other countries are not articles dumped into India. Therefore, domestic producers, who and related to exporters or importers of Optical Fibre from Korea as also those domestic producer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mal value. On going through the records, there appears to be no error in what the Designated Authority did, because the price shown in the invoice was excluding VAT. This fact was not taken into consideration while notifying the Preliminary Findings. Manufacturer, M/s. Taihan Electric Wire Co. Ltd. admitted before the Designated Authority that VAT was not added in the invoice. Consequently, the Designated Authority rightly did not exclude VAT from the amounts shown in the invoice. This means that the fixation of normal value of Optical Fibre manufactured by M/s. Taihan Electric Wire Co. Ltd. was correctly done by the Designated Authority. 8. Another argument advanced by all the learned Counsel representing the appellants was that there can be only one normal value for Optical Fibre manufactured in Korea. That normal value having been fixed on the basis of the data furnished by M/s. Taihan Electric Wire Co. Ltd., Designated Authority, according to learned Counsel, went wrong in attempting to find out the normal value in relation to Optical Fibre manufactured by the other three manufacturers. This argument is advanced based on the wordings of Section 9A(1) of the Customs Tariff Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e found out. 10. Learned Counsel representing the appellant, M/s. Samsung Electronics Ltd., attacked the manner in which normal value for their goods was fixed by the Designated Authority. In finding out the normal value, the Designated Authority adopted the comparable representative price on exports to China and Hong Kong. The cash credit given to the Chinese importers, according to Counsel, should have been deducted. This having not been done, it is contended that the Designated Authority was not correct in fixing the normal value of the Optical Fibre manufactured by M/s. Samsung Electronics Ltd. We do not find any merit in this contention. The entire invoice evidencing sale to China as also to India were seen in the records of the Designated Authority. The price of the goods shown in the invoice was on terms of delivery and payment - CIF Shantou COD 90 day from shipment date. This means the credit was inbuilt in the price itself. Sales to India were also on identical terms. Therefore, there is no merit in the contention that the normal price should have been lower than the price shown in the invoice on account of the credit made available to purchaser. 11. On behalf of M/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by referring to Rule 7 of the Rules. According to the learned Counsel, Rule 7 prevents the Designated Authority from disclosing any such detail that may adversely affect the producers, exporters and importers as also the domestic industry. The stand taken by the Designated Authority was that before giving Final Findings, essential facts which were being considered by the Authority which form the basis or its decision were divulged to the parties as contemplated by Rule 16 and so each one was aware of the details of the decision. Consequently, it was argued that each party was told by the Designated Authority about the final conclusions arrived at on the data furnished by each of them. 13. Rule 16 enjoins the Designated Authority to inform all interested parties of the essential facts under consideration which form the basis of its decision before giving its Final Finding. As a matter of practice, this disclosure is not made immediately before the final decision. After making the disclosure statement available to interested parties, they are allowed to represent to the Authority. On the basis of that representation, the Authority comes to its own conclusion. The said conclusion ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of the Designated Authority adversely affects the civil rights of the parties before it. The party so aggrieved has a statutory right of appeal to this Tribunal. For making an effective appeal, the conclusions reached by the authority, on the basis of materials collected and acted upon in the proceedings will have to be made public. This is more so when it is seen that at no point of time the Authority had informed the parties about its conclusions arrived at on the datas provided by them even. 16. We are now to examine whether the Designated Authority considered the non-injurious price of the dumped article so as to save the domestic industry in a proper manner. It is also worthwhile to examine whether the Designated Authority properly appreciated the injury caused to domestic industry on account of the alleged dumped imports from Korea Republic. In the Preliminary Finding, while dealing with production capacity and capacity utilisation of the domestic industry, namely, M/s. Sterlite Industries Ltd., it was observed : The Authority notes that the installed capacity of the petitioner, which was 2,00,000 KM per annum during the periods 1996-97 and 1997-98, has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculiar situation in the case of Sterlite Industries was that company has expanded the capacity from 2 lakh KMs to 10 lakh KMs during the POI. The capacity has been installed in a phased manner during the POI itself. This is a clearly erroneous conclusion arrived at by the Designated Authority. 18. Designated Authority did not correctly decide the non-injurious price to be fixed for protecting domestic industry. In finding out the non-injurious price and the fair selling price the Designated Authority should have had considered the actual production capacity and the injury that is caused to domestic industry on account of alleged dumping. As stated earlier, Designated Authority fell in error in presuming that the capacity of the domestic industry was 10 lakh KMs per year. When that authority wrongly fixed actual capacity of the domestic industry at 10 lakhs KM per year all resultant conclusions must fail. 19. Regarding the non-availability of the project report, the note file states : However, it is stated that only one internal appraisal was made by the company for which relevant papers have been provided by the company. It is the case of M/s. Sterlite Industries Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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