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TMI Blog2003 (6) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... 27-3-2002 imposing anti-dumping duty on the basis of the recommendation. Appeal Nos. C/331 334/2002 are filed by M/s. Simalin Chemical Industries and M/s. Rockhard Petro Chemicals Ltd. They are the domestic industry, which filed petition before the Designated Authority for imposition of anti-dumping duty on dumped import of Hexamine from Saudi Arabia and Russia. The prayer in the appeal of M/s. Simalin is for modifying the quantum of dumping margin, injury margin and anti-dumping duty on exports from Russia by adopting correct data. In the appeal filed by M/s. Rockhard apart from the above prayer regarding exports from Russia there is prayer for enhancement of the anti-dumping duty on the exports from Saudi Arabia. We heard learned Counsel Shri N.K. Bajpai on behalf of the Designated Authority, Shri Rakesh Tikkoo on behalf of the domestic industry and Senior Counsel Shri A.C. Sundaram on behalf of the exporter from Saudi Arabia. There is no appearance on behalf of the exporter from Russia. 3. A petition was filed by M/s. Simalin Chemicals Industries Ltd., Baroda and M/s. Rockhard Petro Chemical Industries Ltd., Indore alleging dumping of Hexamine originating in or exported from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted by 60.40% of the production, whereas in the preliminary finding it is recorded that the petitioner has the support of only 44.19% of the production. Initiation was on the basis of wrong facts which is a defect that cannot be cured and, therefore, the entire proceeding is vitiated. Rule 5(3)(a) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as Anti-dumping Rules) provides that the Designated Authority shall not initiate an investigation pursuant to an application made under sub-rule (1) of Rule 5 unless it is determined that the application has been made out on behalf of the domestic industry. It is also provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than 25% of the total production of the like articles by the domestic industry. Rule 2(b) defines domestic industry as follows : domestic industry means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Anti-Dumping Rules which contain Principle for Determination of Injury. It reads as follows :- In cases where imports of a product from more than one country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when it determines that (a) the margin of dumping established in relation to the imports from each country is more than two per cent expressed as percentage of export price and the volume of the imports from each country is three per cent of the import of like article or where the export of individual countries less than three per cent, the imports collectively accounts for more than seven per cent of the import of like article and (b) cumulative assessment of the effect of imports is appropriate in light of the conditions of competition between the imported article and the like domestic articles. He points out that this Tribunal had occasion to consider the distinction between Indian Law on this issue and the WTO Anti-Dumping Agreement under European Law in Rishiroop Polymers Pvt. Ltd. - 2000 (119) E.L.T. 157. In the above case a contention was raised by the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity had failed to appreciate the relevant rules which had provided for using the profit margin of the sales to third countries as an ingredient for constructed normal value under any of the three circumstances mentioned in paragraph 4 of the Annexure-I to the Anti-Dumping Rules. It is further contended that the designated authority should have accepted the claim of the appellant to consider the sales to Spain for the purpose of determination of normal value. In reply the learned Counsel for the Designated Authority submits that it is evident from the final finding that the exporter had requested that normal value may be determined in accordance with the cost of production of the product as they do not sell any Hexamine in domestic market. Apart from the above, except making an alternative prayer to treat Spain as the third country and to fix the normal value on the basis of the third country sale, the appellant had not given any details regarding its export to Spain. Under these circumstances, the Designated Authority is fully justified in proceeding to determine the normal value on the basis of cost of production. 12. We will now examine whether the challenge against the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or utilization of capacity; factors affecting domestic prices, the magnitude of the margin of dumping; actual and potential negative effects on cash flow inventories, employment, wages, growth, ability to raise capital investments. 14. Learned Counsel for M/s. SFCCL would contend that consideration of all the 15 parameters by the Designated Authority should be reflected in the final finding. It is not necessary that all the 15 parameters should be satisfied. But the Designated Authority should refer to each of them, discuss the relevant facts and enter a finding on its application. Such a consideration is not there in the final finding in the present case. The order is therefore, vitiated. Learned Counsel would further submit that the Designated Authority being a quasi judicial authority his decision should be supported by the reasoning and material in the order itself. If the reasons are not given in the order it should be set aside. In support of the contention that reference to and consideration of the 15 parameters in the order is mandatory, Learned Counsel for M/s. SFCCL placed reliance on the Report of the Panel on Thailand Anti-Dumping Duties on Angles, Shapes and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of a particular case that certain factors enumerated in Article 3.4 are not relevant, that their relative importance or weight can vary significantly from case to case, or that some other non-listed factors could be deemed relevant. Rather, we are of the view that Article 3.4 requires the authorities properly to establish whether a factual basis exists to support a well-reasoned and meaningful analysis of the state of the industry and a finding of injury. This analysis does not derive from a mere characterization of the degree of relevance or irrelevance of each and every individual factor, but rather must be based on a thorough evaluation of the state of the industry and, in light of the last sentence of Article 3.4 must contain a persuasive explanation as to how the evaluation of relevant factors led to the determination of injury. 17. Apart from the legal position that Panel Report as above has only persuasive value as far as present proceedings are concerned, we do not find that the above report would support the contention taken by the appellant. The Appellate Body under order dated 12-3-2001 has upheld the panel interpretation on Article 3.4 while it rever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IS forwarding a clarification. It is stated therein that on verification of the details of the generated table in the DGCIS, Calcutta in respect of the import of Hexamine for the period April, 1999 to Sept., 2000 certain inaccuracies were detected in the expression of quantity as per Indian Trade Classification Commodity Description Code (HSN). Learned Counsel submitted that during the course of investigation DGCIS forwarded provisional data of imports of the subject goods from Russia, Saudi Arabia and all other sources to the Designated Authority. The Designated Authority had for the purpose of recording his final finding initially calculated the CIF price of Hexamine from Russia on the basis of the quantity of 45,000 Kg. of value of Rs. 11,86,945/- as reported by DGCIS. After the final finding was notified DGCIS has now corrected the quantity of imports from Russia as 59,000 Kgs. valued 11,86,945/-. Average CIF price of the subject goods from Russia therefore, came down from Rs. 26,376.5 PMT (as adopted in the final findings) to Rs. 20,117.7 PMT on correction of the figures. The anti-dumping duty for imports from Russia worked out in the final finding was US$ 3.77 PMT. On the bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y is required to be accepted. 23. In view of the above, it is clear that normal value is required to be correctly worked out in respect of SFCCL after allocating SGA and financing costs correctly on turnover basis. Officers of Designated Authority have indicated that Dumping margin would work out to US$ 158.51 per MT as a result of reworking of costs of production and that, injury margin at US$ 130.98 per MT being less than the dumping margin anti-dumping duty is liable to be fixed at the lesser of the two at US$ 130.98 per MT. 24. In the light of the above finding, we modify the anti-dumping duty imposed under Notification No. 31/2002-Cus., dated 27-3-2002 on the exports of Hexamine to India from Russia as US$ 204.08 per MT and from Saudi Arabia as US$ 130.98 per MT. The anti-dumping duty as modified will be as follows :- Country Producer/exporter Amount of Duty (USD/MT) Saudi Arabia All producers/exporters 130.98 Russia All producers/exporters 204.08 25. Appeal 335/2002 filed by M/s. SFCCL is dismissed and Appeals 331/2002 and 334/2002 filed by M/s. Simalin Chemical Industries and M/s. Ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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