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TMI Blog2006 (5) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... d-term review, for a period of five years. Appeal No. C/706/04-AS and C/988/04-AD which have been filed by the Indian Plasticizers Manufacturers Association and Lubrizol India (P) Ltd. who are the importers of the subject goods into India also seek the same relief. 2.1 The appellant of Appeal No. C/519/04-AD - Iran Petrochemicals Commercial Company also an exporter has challenged the imposition of the duty under the impugned notification on the ground that they had not dumped any of the subject articles and that there was no justification for the imposition of duty. 2.2 In Appeal No. C/993/05-AD, the domestic industry, Andhra Petrochemicals Ltd., has challenged the impugned notification and the impugned final findings on the ground that the mid term review was illegal and untenable, being against the mandate of the statute and the rules governing anti-dumping duty and that withdrawal of anti-dumping duty in respect of Korea and Indonesia was not justified. They also seek a prayer for holding that the designated authority had committed an error in excluding the product Iso Deconol from the purview of anti-dumping duty and that the dumping margin worked out in case of imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived from some exporters and as per the methodology for other non-co-operative exporters, the authority assessed the dumping margin on the basis of the principles governing the determination of normal value, export price and margin of dumping as laid down in Annexure I of the said Rules. Accordingly, at the stage of the disclosure statement, dumping margin was worked out in case of Saudi Arabia at 3.43% for 2- EHA; in respect of Iran at 14.78% for 2-EHA and 17.07% for NBA, in case of Poland at 37.80% for NBA; in case of USA at 59.49% for NBA and at 50.79% for IBA and in case of EU at 31.02% for NBA and 14.91% for IBA. In respect of exporters from Russia, Republic of Korea and Indonesia the same dumping margin as for the original investigation, was adopted. 3.5 In the disclosure statement, the authority found that the margin of dumping in respect of the subject countries was more than 2% and the volume of exports collectively was 24.55% of the total imports. The authority found that it was appropriate to cumulatively assess the effect of imports of the subject goods on the domestically produced "like articles" in the light of the conditions of competition between the imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, during that period they had exported 2 EHA to Pakistan and the exports to that country were of a higher quantity during that period. Having regard to the geographical proximity of Pakistan to India, exports of sufficient quantity to Pakistan and the same period of exports were factors considered sufficient to indicate that the export price to Pakistan was comparable representative price to an appropriate third country in accordance with Section 9A(1)(c) of the Act. The authority found that the information furnished by the exporter was sufficient to determine the normal value and export price of the goods, as recorded in the final findings (paragraph 10). The non-confidential version of the exporter's response was provided to the domestic industry and they were able to offer their comments. 4.2 The exporter IPCC, Iran (Appeal No. C/519/04-AD) had furnished information regarding their domestic sales and export of NBA, 2-EHA and Iso Butanol. They had made exports of 2-EHA and NBA during the period of investigation. The normal value of 2-EHA and NBA was worked out by the authority on the weighted average sales price in their domestic market after making necessary adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from subject countries, the domestic industry had suffered injury. It was of the view that the domestic industry was suffering from injury and it may not be appropriate to withdraw the existing anti-dumping measures as such withdrawal may lead to continuance and recurrence of dumping and injury. It, therefore, considered it appropriate to continue to impose anti-dumping duty. The designated authority concluded that : (i) Subject Oxo Alcohols have been exported below their Normal value from Poland, Saudi Arabia, Russia, Iran, USA and European Union. There was no evidence of dumping from Republic of Korea and Indonesia during them POI of this review; (ii) The domestic industry continued to suffer material injury on account of dumped imports from Poland, Saudi Arabia, Russia, Iran, USA and European Union; (iii) The injury had been caused to the domestic industry by the dumped imports from Poland, Saudi Arabia, Russia, Iran, USA and European Union; and (iv) The Authority considered it appropriate that anti-dumping duties may continue to be imposed in respect of imports from Poland, Saudi Arabia, Russia, Iran, USA and European Union and withdrawal thereof would lead to continuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducer and hence there was no Injury to the domestic industry. He argued that where there was no dumping and hence no injury, there could not be any justification for continuance of the anti-dumping duty. Arguments on behalf of the Domestic Industry : 6. The learned counsel appearing for the domestic industry contended that the criteria of de minimis did not apply to mid-term review since there was no question of terminating mid-term review. He contended that the very initiation of the mid-term review was bad because there were no sufficient grounds for initiating mid-term review. He submitted that changed circumstances were not indicated, nor was any positive information warranting initiation indicated by the designated authority. He further contended that mid-term review was required to be completed within twelve months and since the final findings and the notification were issued beyond twelve months, the entire mid term review was vitiated. He also argued that twelve months' period could not have been extended by the government because Rule 23 did not provide for extension and therefore, the extension in the present case by the government was not justified. He then argu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing from paragraph 150 that though the situation of the community industry had improved in the period considered, it was observed that it did not fully recover from past dumping and continued to be weak. Referring to the EU report dated 2-6-2003 [Council Regulation (EC) No. 964/2003], it was pointed from paragraph 76 of the report that recovery from the effects of past dumping was a material aspect required to be considered. On that aspect it was noted in the report, on the basis of the listed indicators, that the economic situation of the community industry had recovered from the injurious effect of dumped imports originating from the two countries concerned, but thereafter the situation deteriorated again resulting from the effect of increased dumped imports from other third countries. It was submitted that the designated authority ought to have considered all these aspects. The report of the panel (WT/DS 244/R dated 14-8-2003) on US-Sunset Review of Anti-Dumping Duties Corrosion-Resistant Carbon Steel Flat Products from Japan was referred and it was submitted, on the basis of paragraph 7.88, that the de minimis is standard of Article 5.8 did not apply to sunset review. He also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been strongly contended by the domestic industry that the initiation of mid-term review was unwarranted. Rule 23 provides for review of the need for the continued imposition of anti-dumping duty which can be done by the designated authority from time to time. Such review may be done if the designated authority is satisfied on the basis of information received by it that there is no justification for the continued imposition of such duty. At the stage of initiating such mid-term review, the designated authority can act on the basis of information received by it from the interested parties. It is during the investigation, after it is initiated, that disputes may arise as to the nature and efficacy of such information. However, the initiation will not be vitiated, if the designated authority has acted on the basis of information received by it by being satisfied that a review was called for with a view to ascertain whether there was need for the continued imposition of the anti-dumping duty. 8.1 Under the provisions of sub-rule (3) of Rule 23 of the said rules, the other provisions of the Rules, namely, 6 to 11, 16 to 20 have been made applicable mutatis mutandis in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the context of such review by sub-rule (3) of rule 23. Under Rule 17, though it is stated in sub-rule (1) that the designated authority shall within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit its final findings to the central government, it has been provided in the first proviso to sub-rule (1) of Rule 17, that the central government may in its discretion, in special circumstances, extend further the aforesaid period of one year by six months. The said first proviso would also be applicable mutatis mutandis in the context of sub-rule (2) of Rule 23, which requires the review proceedings to be concluded within a period not exceeding twelve months from the period of investigation of such review. Therefore, the initial period of twelve months laid down in sub-rule (2) of Rule 23 for concluding the review can be extended by the central government, by reading the first proviso of Rule 17(1) in Rule 23(3), by six months. In the present case, there is no dispute that the period was so extended and that the review proceedings were concluded within the extended period. It was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being below 2%. The imposition of anti-dumping duty would have the effect of suppressing imports at a higher dumping margin. Moreover, marginal decrease below the de minimis line, as in the instant case, while the anti-dumping duties are operative will not warrant discontinuance of anti-dumping duty on the ground that injury has ceased because, no such inference can be drawn, due to the difference in situation of the dumping margin going below de minimis line during the anti-dumping duty regime and earlier its being below the de minimis line when no anti-dumping duty was yet imposed. It is, therefore, difficult to agree with the contention that the analogy of Rule 14(c) should be applied where the dumping margin is found to be below 2%. The volume of imports from Saudi Arabia were large and we find that the authority has cumulatively assessed the injury holding that the margin of dumping in respect of each of the subject country was more than 2% and the volume of imports from these countries was 24.55% of the total imports (paragraph 22 of the final findings). 9.1 As regards the SABIC from Saudi Arabia, the authority had noted that it had made only two export consignments to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factured in India, there could arise no question of any injury or threat of injury to the domestic industry in the context of that product. We agree with the reasoning and findings of the designated authority for excluding the said product. 11. As regards exclusion of Republic of Korea and Indonesia, it is evident from the record that there were no exports from these countries of the subject alcohols during the period of investigation. When there were no exports from these countries, no dumping margin could have been determined and in the absence of determination of dumping margin, there could arise no question of imposing anti-dumping duty. There was no situation where dumping margin and injury margin could be compared, when there were no exports. If the contention that the possibility of recurrence of exports is to be countenanced, when admittedly there have been no exports, on the ground that the exports may have discontinued because of the imposition of duty, then it would not be possible to discontinue duty earlier imposed in any case where there have been no exports. Such an extreme position would not be warranted. There was nothing placed on record before the designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be required to be terminated as per Rule 14, would not govern the issue of deciding whether there is no justification for continued imposition of duty because, they have a bearing on imposition of duties rather than on the impost being continued. Section 9A(5) contemplates revocation of anti-dumping duty even earlier than the period of its expiry after five years from the date of imposition. Therefore, it contemplates not only a "sunset review", but also a "mid-term review" and as per the first proviso, the period of imposition could be extended for five years, if in a review, the central government is of the opinion that the cessation of such duty was likely to lead to continuation or recurrence of dumping and injury. Therefore, dumping and injury are two important aspects which are required to be kept in mind by the designated authority while deciding whether cessation of duty is likely to lead to continuation or recurrence of dumping and injury. 12.2 While considering the scope of mid-term review the Hon'ble Supreme Court has in paragraphs 35 and 37 of the judgment in Rishiroop Polymers Pvt. Ltd. v. Designated Authority and Additional Secretary reported in 2006 (196) E.L.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because, the notification issued pursuant to a mid-term review cannot be given such retrospective effect from the date of the imposition of provisional anti-dumping duty. Under Rule 20, the anti-dumping duty levied under Rule 18 will take effect from the date of its publication in the official gazette. Sub-rule (2)(a) of Rule 20, which speaks of levying anti-dumping duty from the date of imposition of provisional duty is clearly intended to apply to the initial imposition of the final duty under rule 18 and not to the continued imposition of duty pursuant to a mid-term review. Even the learned counsel for the designated authority was not in a position to support such retrospective effect given to the impugned notification. In fact, the Ministry of Commerce by letter dated 22-8-2005 had pointed out that normally the anti-dumping duty recommended under mid-term review has a prospective effect. We, therefore, while dismissing all these appeals direct that the anti-dumping duty imposed under the impugned notification shall be levied with prospective effect i.e. from the date of the notification dated 20-4-2004 and paragraph 2 of the impugned notification will be accordingly amended by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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