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TMI Blog2005 (8) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... g dumped into India from European Union, Brazil, Japan, Korea R.P., Singapore and Thailand and that those dumped imports were causing injury to the domestic manufacturers (domestic industry) of Poly Iso Butylene. The appellant sought relief from the adverse effect of dumped imports by way of imposition of Anti-dumping duty on such dumped imports. 3. In the Final Finding DA concluded that dumping was being practiced by the said foreign suppliers and that the domestic industry was injured by dumping and anti-dumping duty was required to be imposed. But exports from European Union and Thailand were excluded from the levy as those exports did not cause injury to the domestic industry. Ministry of Finance imposed anti-dumping duty as recommended by the D.A. The present appeal challenges the exclusion of the exports from European Union and Thailand from the levy of anti-dumping duty. 4. During the hearing, the plea against exports from Thailand was given up on the ground that appellant did not have any specific evidence in regard to exports from that country. In view of this, we are not required to go into that part of the appeal. 5. The contention of the appellant is that the Desi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verage price or average landed value. The learned Counsel for the appellant also emphasized that the method followed by the D.A. is contrary to Principles for Determination of Injury mentioned in Annexure-II to the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (the Rules) inasmuch as injury and causal link are to be determined based on an objective examination of all dumped imports and the effect of the dumped import on prices in the domestic market for like article. The learned Counsel for the appellant has further pointed out that sub-clause (ii) of Annexure-II of the Rules specifically requires that With regard to the effect of the dumped imports on prices as referred to in sub-rule (2) of Rule 18, the Designated Authority shall consider whether there has been a significant price under cutting by the dumped imports . According to the learned Counsel, this provision makes it clear that supplies below non-injurious prices alone are relevant for causal link analysis inasmuch as those prices alone under cut the sale prices of domestically produced goods and prevent price increase, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner earnestly submits that dumping margin and/or injury margin may kindly be determined on the basis of these low priced imports. 6. Determination of dumping margin and/or injury margin on the above lines, petitioner earnestly submits, would not adversely affect the consumers in respect of those imports, which are at higher prices. At the same time, it would protect the domestic industry from those imports, which are made at lower prices. 7. The petitioner submits that in a situation wherein the exporters sell the product at higher as well as lower prices, the petitioner is forced to bench, mark its prices with reference to those imports which are at lower prices. Under the circumstances, the petitioner cannot seek higher prices by citing higher import prices. 8. Imports from EU and Thailand have earlier caused material injury to the domestic industry. The domestic industry would not be able to adequately protect itself from unfairly priced dumped imports, should the imports from these countries not be covered under anti-dumping duty. In view of the above, it is submitted that the final anti-dumping duty may kindly be recommended on imports from EU and Thailand al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Counsel for the Indian importers contended that only if majority of the dumped imports (50% and above on a weighted average basis) are below the injurious price, it could be correctly concluded that dumped imports are causing injury. The learned Counsel would also contend that a different method of analysis in regard to causal link determination is not in consonance with the rules inasmuch as Annexure-I to the Rules (which relates to principles governing the determination of normal value export price and margin of dumping) clearly speaks in terms of determination based on weighted average per unit cost. 10. The learned Counsels for the Designated Authority and Indian importer have also brought to our attention Panel decision World Trade Organisation Report of the Panel in the case of European Communities. Anti-dumping duties on Imports of Cotton-Type Bed Linen from India in support of their contention that causal link analysis should also be based on dumped imports as a whole and imports alone injurious price cannot be excluded while making the analysis. 11. We may note certain peculiar features of this case before going into the rival contentions. The Designated Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge sales realisation during the last five months of the period of investigation decreased to ****. This shows a steep decline of domestic sales realisation with in the Period of Investigation itself. However, it has further been observed that the average Cost of Production of the subject goods has increased during the Period of Investigation over 1999-2000 by Rs. **** per MT. Accordingly, the increase in sales realisation during the Period of Investigation has not compensated the increase in cost of production during the same period over the last year. (f) PROFITABILITY It has been observed that the petitioner was earning a net profit of Rs. **** per MT of subject goods during 1999-2000. However, during the Period of Investigation the petitioner incurred a loss of Rs. **** per MT from the subject goods . The above finding leaves no scope for doubt that dumped prices prevent price increase which otherwise would have occurred, to a significant degree , the situation specifically recognised in (ii) of Annexure-II. Further, there were major price swings during the Period of Investigation. It is also to be noted that the share of European Union in the dumped imports was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atile situation the exclusion of one country, or area, would leave a yawning gap in the umbrella provided by anti-dumping duty. That too when data was refused by the exporters from that area and the data available in the public domain (Directorate General of Commercial Intelligence and Statistics) did not cover the entire Period of Investigation and figures available were on gross basis without period wise or transaction wise break up. Clearly, injury finding based on average price in such a volatile situation cannot be a reliable assessment. This is apart from the well-known vulnerabilities of any decision based on averages . 16. The case for exclusion of a country/area would have been strong only if it was found that, either by way of quantity or by way of price difference, such low priced imports from that country/area are insignificant (de minimus) and would not pull down domestic prices. In the present case, neither the export quantity nor export price of supplies warranted the overlooking of dumped supplies from the European Union. 17. A decision reached based on average price is being defended, solely based on the provisions in the Rules. It is being pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent periods cannot be taken into account. An analysis to be sensitive has to see price effects at different price slabs and periods. That too based on correct and full data. In fact Annexure-II directs a comprehensive analysis by taking into account all factors, including the effect of undumped imports and factors other than dumping. If the volume of imports at a particular price level is sufficient enough to have adverse impact on domestic selling prices, the same should be taken into account and given due weightage in the analysis. 20. We also do not think the Panel Report in the case of Bed Linen has application to the present case. That was a case where the exporters had co-operated with the investigation and filed full data about normal and export prices. The parties had, however, complained about inclusion/exclusion of the prices of certain varieties. The product under consideration was vast in variety. That was also not a case where duty was imposed on variable basis. In such a case, the effect of substantial imports below the non-injurious price from one country does not arise, Relevance of and weightage for various parameters differ in injury and causal link analysis de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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