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TMI Blog2001 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... stituted the reference price for determining whether there was dumping and where the Landed Value of an imported consignment was less than the Reference Landed Value, the difference between Reference Landed Value and the landed value of the imported consignment became payable as anti-dumping duty. Notification No. 149/2000-Customs was issued pursuant to the final findings of the Designated Authority, Ministry of Commerce, published in the Gazette of India, Extraordinary, Part-1, Section 1, dated 24th October, 2000. The present appeal is directed against the imposition of duty under the Customs Notification No. 149/2000, dated 21-12-2000. The appellant is aggrieved with the imposition of duty under Sl. No. 2 of the notification in respect of their imports of Black and White Photographic Paper in Jumbo rolls of French origin. The reference price fixed in respect of such jumbo roll was US $ 2.87 per sq. mtr. of Black and White Photographic Paper. 3. The appellants have submitted that Anti-dumping duty has been recommended by the Designated Authority without making available to them, the data constituting the basis of computation of anti-dumping duty. He submitted that basis of calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is based on the fair selling price of the domestic industry rather than the very high cost of production of an inefficient domestic unit. He clarified that Designated Authority did not take into account the production cost of M/s. Hindustan Photofilm Ltd. as their cost of production was found to be high and if anti-dumping duty was fixed based on their cost of production the rate of duty would have been too high. 6. The learned Counsel representing M/s. Hindustan Photofilm Ltd. and M/s. New India Industries submitted that it is not in dispute in the present case that imported goods were being dumped and the domestic industry suffered injury on account of such dumping. He submitted that anti-dumping duty in such circumstances was fully justified and the Designated Authority had gone by the best data available. He submitted that the appellant could not have any objection to the method adopted by the Designated Authority inasmuch as fixing the rate of anti-dumping duty based on the non-injurious price of M/s. New India Industry has worked to the benefit of the appellant. He pointed out that if the Designated Authority had fixed rate of anti-dumping duty based on the non-injurio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry is established, imposition of anti-dumping can be resorted to. This position is also clear from Principle for Determination of Injury contained in Annexure II to the Anti-dumping Rules. The annexure stipulates that the Designated Authority, while determining the injury to domestic industry and causal link between dumped imports and such injury, shall carry out an objective examination of both the volume of the dumped imports and effect of dumped imports on prices in the domestic market for like article and the consequent impact of these imports on domestic producers of such products. Clause (iv) of Annexure II states that the examination of the impact of dumped import on domestic industry shall include an evaluation of all relevant economic factors and indices having bearing on the state of the industry. Clause (v) of the said annexure states that it must be demonstrated that the dumped imports are, through the fact of dumping, causing injury to domestic industry. This clause also states that the demonstration of causal relationship between the dumped imports and the injury to domestic injury shall be based on an examination of relevant evidence before the Designated Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recommendation for imposition of anti-dumping duty can be made only if investigation established the existence of these criteria. In the present case, the investigation was taken up based on an application filed by M/s. New India Industry M/s. Hindustan Photo Films (HPL). It is a requirement under Rule 5 of Anti-Dumping Rules that such an application is by or on behalf of domestic industry and that the application enjoys the required support from domestic industry. On the basis of information and evidence provided, the Designated Authority concluded that there were only two domestic producers in India, namely, the applicant New India Industry and HPL. The Designated Authority also concluded that New India Industry was required to be excluded from the scope of domestic industry and that with the exclusion of New India Industry, HPL is the sole domestic industry. This finding of the Designated Authority was in view of the definition of domestic industry as contained in Rule 2(b) of the Anti-Dumping Rules. This definition of domestic industry, which is reproduced below specifies that excluded domestic producers shall not form part of domestic industry . Rule 2 (b) domestic in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the cost of production data of the excluded producer namely, New India Industry. M/s. HPF does not find a place in the investigation. The authority has specifically stated in the final findings that Authority has therefore, calculated NIP by referencing and normalising the cost data furnished by M/s. New India Industry. Thus, in the present case, injury analysis for domestic industry and causal link between dumping and injury to domestic industry has shown that there was no causal link between the dumped imports and injury to the sole domestic industry, namely, HPF. 9. As already noted earlier in this order, injury to domestic industry and causal link between that injury and dumped imports is a sine qua non for imposition of anti-dumping duty. In the present case, the sickness and inefficiency of the only domestic industry, namely, HPL was not caused by the dumped imports of Black and White Photographic Paper. Thus, circumstance permitting imposition of anti-dumping duty on dumped imports of Black and White Photographic Paper did not exist. Imposition of anti-dumping duty in such a situation, based on the injury suffered by an excluded producer and his non-injurious price wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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