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TMI Blog2006 (4) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... tant injury that may be caused to them on account of discontinuation of anti-dumping duty. We find that it has been argued by the Domestic Industry that the Designated Authority has given adjustment of 20% on account of quality difference without further examination of their quality during the period of investigation for review. While determining the normal value, the Designated Authority has considered that consumption of China electrodes is higher by 20% and therefore, the landed value of import is required to be increased by 20% or alternatively, cost of production is required to be reduced by 20% while comparing the domestic industry prices for determining the injury. We find that in the disclosure statement dated 27-12-2002, the D.A. has notified that electrodes of China s exporters continued to be inferior as was admitted by the Indian Producer at the time of oral hearing. Due to inferior quality, the consumption of China s electrodes is higher by 20% as compared with the electrodes produced by the Domestic Industry. The Authority has acknowledged this in the original investigation also. In response to this, no rebuttal was given by the Domestic Industry and Panchmahal Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imports and injury resulting therefrom. The opposite conclusion was reached with regard to exporters in China, Poland, Russia and Ukraine, which significantly undercut prices charged by the Community. Therefore D.A. has correctly recommended the withdrawal of anti-dumping duty on imports of U.H.P. electrodes. Thus, we do not find merit in the appeal and the appeal is, accordingly, rejected. - HON'BLE R.K. ABICHANDANI, J. (PRESIDENT), K.C. MAMGAIN (T) AND M.V. RAVINDRAN (J), MEMBERS For the Appellant: R.P. Bhatt, Sr. Advocate, Jitender Singh, Ms. Meenakshi Arora and Chander Prakash, Advocates, For the Respondent: Shri Amit Singh, Advocate, S/Shri Ravinder Nath, Mrs. Kumkum Sen, Prabhat Kumar, Diwakar Maheshwari, Rajesh Roshan, Mrs. Reena Khair, Shalinder Saini, and Rajesh Sharma, Advocates Order K.C. Mamgain, Member (T) 1. This appeal is filed on behalf of domestic industry challenging the findings of the Designated Authority dated 9-2-2003 in so far as they relate to U.S.A., Italy, France, Spain, Austria, Belgium and Germany, recommending discontinuation of anti-dumping duty on graphite electrodes (U.H.P.) exported to India from the subject countries and withdrawal of duty on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghai Carbon Plant (Producer) and Liaoning Jiayi Metals and Minerals Co. Ltd. (Trader) at the rate of U.S.$ 234.54 per MT and on all other residuary exporters/producers from China at rate of U.S. $ 508.506 per MT. Based on the recommendation of the Designated Authority, the Central Government issued Notification No. 101/2003-Customs, dated 7-7-2003 notified anti-dumping duties on import of graphite electrodes originating in or exported from China PR, by Tianjin Jinghai Carbon Plant (Producer) and Liaoning Jiayi Metals and Mineral Co. Ltd. (Trader) and all other residuary exporters/producers from China who did not co-operate in the investigation and rescinded notification No. 20/1998-Cus., dated 5-5-98 by notification No. 102/2003-Cus., dated 7-7-2003. 3. Arguments on behalf of the domestic industry It was argued that the Designated Authority has failed to examine the parameters of sunset review which are different from material injury test. The D.A. has failed to take into consideration the tests which are required to be applied under Section 9A(5) of the Customs Tariff Act. The tests and parameters applicable for assessment of material injury cannot be applied in a case of sunset r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not material. The imported goods and domestically produced goods have the same use and have been correctly held to be like article by the Designated Authority. Reliance was also placed in the case of DSM Idemitsu Limited v. Designated Authority, reported in 2000 (119) E.L.T. 308, where it was held that - the plea of the appellants counsel is not convincing since he did not adduce any evidence/technical literature with reference to process of manufacture to show that product manufactured by the domestic manufacturers was different from that exported into India.---------Difference in quality will not make an article as different and Designated Authority was right in observing that the fact that qualities may be different, does not imply that the imported product and the domestic are not like articles. M/s. Panchmahal Steel has given opinion that China s product are as good as Indian product. Therefore, there was no need to give 20% adjustment in quality. 3.2 It was also argued that under Section 9A(5) designated authority can either recommend continuation of such duty or cessation of such duty but he cannot modify the quantum of duty. It was pointed out to the Designated Authority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g duty imposed under Section 9A(1). Therefore, the challenge of the domestic industry for reduction of duty for imports from China in case of producers whose goods were exported by Liaoning Jiayi Metals and Minerals Co. Ltd. is as per provisions of law. It was also argued that in sunset review, the entire procedure for determination of fresh anti-dumping duty is followed. All the interested parties are allowed to participate in it. Therefore, the separate duties can be fixed for separate exporter based on the evidence produced by them. Sunset review cannot remain limited to only those very exporters who earlier participated in an initial imposition of definitive anti-dumping duty. During sunset review, if from the same country, new exporters come forward and cooperate with the investigation and establish from their record that they are not dumping or margin of dumping is less than what was fixed at the initial stage of definitive anti-dumping duty, then they can do so as there is no prohibition for the same under the law. 4.1 It was also argued that where landed value of imported goods is more than non-injurious price, then there is no reason for imposing anti-dumping duty in such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any anti-dumping duty. M/s. S.G.L. Carbon had supplied the entire information which was necessary. 5. Arguments on behalf of the Designated Authority 5.1 It was argued that under Section 9A(5) of the Customs Tariff Act, the Designated Authority is required to examine whether after withdrawal of anti-dumping duty, it will not lead to continuation or recurrence of dumping and injury. The sunset review under Section 9A(5) is done to examine the effect of anti-dumping measures taken during the period of imposition of definitive anti-dumping duty and the period of its likely expiry. If the Designated Authority, on examination, comes to conclusion that removal of duty will not cause injury to the domestic industry, he can recommend cessation of anti-dumping duty. However, when he finds that removal of anti-dumping duty will cause injury to domestic industry or there may be a recurrence of dumping, he may recommend continuation of anti-dumping duty at the level of dumping margin or non-injurious price. The D.A. has given his opinion about the continuation or cessation of anti-dumping duty at page 65 of the paper book. It was also argued that information regarding prices of graphite el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of the product were higher than the non-injurious prices fixed for the product, therefore, the Designated Authority was correct in recommending cessation of duty for graphite (U.H.P.). Reasons 6. We have considered the submissions of all sides. Under Section 9A(5) of the Customs Tariff Act, 1975, the anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition subject to condition that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. The review is done by the Designated Authority under Rule 23 of Anti Dumping Rules. According to Rule 23 of Anti Dumping Rules, the Designated Authority shall, from time to time, review the need for continued imposition of anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for continued imposition of such duty recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustry. Thus, there is an unambiguous indication that cessation of anti-dumping duties is likely to lead to recurrence of dumping from the same sources all over again. The authority notes that M/s. S.G.L. Carbon have indicated their export prices to other parts of the globe during 2001. The average export prices to the Far East, Middle East is *** $/MT. The average export price of their global exports is ***$/MT. With the exchange rate and customs duties as prevalent during the P.O.I. on the basis of the export prices for the Asian region, it is noticed that the average landed value if exported to India at the price of the Asian region would come to ***$/MT (Rs.***/MT). The Non Injurious price for the U.H.P. grade during this period has been worked out to Rs. ***/MT (***$/MT). This implies that the presumption that the injury would have reoccurred if the anti-dumping duty is withdrawn is not tenable since even without the levy of anti-dumping duties, the landed value is more than the Non-Injurious Price. Also it may not be appropriate to presume that M/s. S.G.L. Carbon is dumping the goods all over the globe and is facing severe losses. Even if their least export price of ***$/MT i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ries except China and recommended the amount of anti-dumping duty equal to the margin of dumping or lower so as to remove the injury to the domestic industry accrued on account of dumping in case of Normal Power Grade originating in or exported from People s Republic of China. Thus, it is clear that the claim of the Domestic Industry that Designated Authority has not examined the parameters for sunset review which are different from material injury test, is not correct. The D.A. has taken into consideration the tests which are required to be applied under Section 9A(5) of the Customs Tariff Act. The Designated Authority has interpreted various factors meaningfully and their effect on likely injury in future. Thus, the Designated Authority has taken into consideration the possible threat to the domestic industry and resultant injury that may be caused to them on account of discontinuation of anti-dumping duty. 8. We find that it has been argued by the Domestic Industry that the Designated Authority has given adjustment of 20% on account of quality difference without further examination of their quality during the period of investigation for review. While determining the normal value ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. From the first proviso, it is clear that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years. The meaning of such duty in this sub-section is the definitive anti-dumping duty. It cannot be quantum of duty. The quantum of duty is determined in the review proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem on the basis of the record produced before the Designated Authority. Therefore, there is no merits in this argument. 12. In case of U.C.A.R., since they were exporting only U.H.P. electrodes, therefore, even if they have not participated in the sunset review, the finding of the Designated Authority that there have been import of U.H.P. electrodes at a price higher than non-injurious price, the withdrawal of anti-dumping duty on U.H.P. graphite electrodes is also correctly applicable on U.C.A.R. also. Similar decision is mentionied in para 11.21 of the E.C. Anti-Dumping Law - A Commentary on Regulation 384/96 by Dr. Wolf-Gang Meller, D.G.-I, E.C., Nicholas Kaan, Barrister, Legal Service, E.C. and Dr. Hans-Adolf Neumann, Director D.G.-I, E.C., 1998 Edition, where in the review proceedings, concerning silicon carbide from China, Norway, Poland, Russia ad Ukraine, were considered and Norwegian exporters did not co-operate but evidence available indicated that the Norwegian product was mostly present in the high quality market segment, where higher prices prevailed. It appeared unlikely that the expiry of the undertakings previously in force would lead to an imminent recurrence of d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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