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TMI Blog2003 (9) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... essential for vital industries viz. manufacturers of dyes, drugs, rubber chemicals, photographic chemicals and other important chemicals such as MDI) falling under Customs Tariff sub-heading 2921.41 and originating in, or exported from, the European Union, and the Central Government (1st respondent) implemented the recommendation. The Designated Authority had made its recommendation on the basis of the following findings : (a) Aniline originating in, or exported from, European Union was exported to India below normal value, resulting in dumping; (b) The Indian industry suffered material injury; (c) The injury was caused to the domestic industry by the dumping of Aniline originating in, or exported from, European Union. The above findings, notified on 28-5-2001, had been recorded at the end of an anti-dumping investigation initiated by the Designated Authority at the instance of the domestic industry represented by the 3rd, 4th and 5th respondents in these appeals. In their joint petition for initiating such investigation, the dome ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fact that the data published in trade journals are often inaccurate, misleading and exaggerated; (v) that the authority should have considered the German market price of the goods provided by M/s. BASF, which was significantly lower than the prices reported by the trade journal; (vi) that the authority acted in violation of Rule 8 of the Anti-Dumping Rules by not examining the accuracy of the data furnished by the domestic industry; (vii) that the authority contravened the provisions of Rule 6 of the said Rules by denying to the domestic users of the goods an opportunity to examine the accuracy of the claim made by the domestic industry; and (viii) the authority neglected to consider the impact of anti-dumping duty (on Aniline) on the domestic consumers of the product. 4. We have heard Counsel for the appellants (importers/users of Aniline in India), respondents 3 to 5 (domestic manufacturers of the product) and respondent No. 2 (Designated Authority) and have considered their submissions. It is not in dispute that, for determining the normal value of Aniline in the European Union, the 2nd respondent relied exclusively on the 1999 November, 17 issue of "Chemical Week" - a w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts 3 to 5 (domestic industry) submitted that, through these appeals, the importers of the product were indirectly challenging what they could not challenge directly. Relying on the Tribunal's decision in the AIIGMA case, he contended that they were not entitled to challenge the Designated Authority's findings on normal value of the product directly or indirectly. The Counsel for the respondents heavily relied on the Supreme Court's decision in the Haldor Topsoe case in support of their contention that, in the facts and circumstances of the instant case, it was open to the Designated Authority under Rule 6(8) of the AD Rules to record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deemed fit under such circumstances. Where the exporters who actually exported the product to India during the period of investigation did not co-operate with the Designated Authority, the latter had the discretion to consider the facts which were made available by the domestic industry through the trade journal. No material was supplied by the importers/consumers to controvert such facts. The Designated Authority, therefore, resorted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t as a new shipper - Rule 22 supra. 8.4 As regards to M/s. BASF furnishing information on normal value, and some interested parties claim that the determination of normal value for Germany to be based on the same. Authority notes that the information provided by the company is not sufficient to determine normal value. The company has furnished factory cost and profit of domestic sales for the period of investigation and exports to countries other than India, they have not furnished any details/working calculations linking to their audit and accounts which would demonstrate that the product was sold above cost of production. It also does not establish that they have sold the subject goods in their home market or to the countries other than India in ordinary course of trade. The Annual Report for 1999 seems to be consolidated one. Very little is reported about the product under consideration. The company has furnished some selective invoices with respect to their home sale in German language without corresponding English version. Authority further notes that when the company has not exported the good under consideration the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as "USD 880-925/m.t. cif list". The sources of this report were indicated as "SRI International (Menlo Park, CA)" and "company reports". But, the source materials have not been disclosed, nor the authenticity thereof established, by the Designated Authority. This apart, the Aniline prices shown in page 41 of the journal of 17-11-99, wherefrom the Designated Authority claims to have obtained the best available information in terms of Rule 6(8) ibid, do not appear to be any trade data published for the week. They are, ex facie, part of an article on Aniline, which mainly gives an account of the global trends in Aniline industry. The article also briefly mentions the technology of the industry, gives a graphic account of the global capacity shared by Europe and other parts of the world and provides a list of the major Aniline producers of the world. We have also seen the next page [42] of the same magazine. This page appears to contain the weekly report of U.S. and European prices of a number of chemicals and polymers. But, Aniline is nowhere in this price list. We have also seen a similar price report in page 31 of the 1999, October 6 issue of Chemical Week produced by the Counsel fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Designated Authority has had the "best information" of European Union home market prices of Aniline from Chemical Week, not claimed to be an official publication. On the other hand, it quotes a judicial authority vide Tianjin Machinery Import & Export Corporation v. United States - 806 F. Supp. 1008, 14 I.T.R.D. 2149 (C.I.T. 1993) to state the long settled law that "best information available" is a rule of reasonable adverse inference against non-cooperating exporters. We have already found that the journal data in question do not constitute "facts" and are irrelevant to the subject investigation in Aniline. Such data can be no reasonable basis for adverse inference in this case. 9. In the result, we hold that the Designated Authority has determined normal value of Aniline in the European Union for the period of investigation on a grossly erroneous basis and, consequently, its finding of dumping against European Union exporters of Aniline for the said period is not sustainable. The error does not get obliterated by arguments (as advanced by the Counsel for the 2nd respondent) such as that the dumping margin would have been higher than 166.17% of the export price if the norm ..... X X X X Extracts X X X X X X X X Extracts X X X X
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