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TMI Blog2006 (6) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... emicals Industries Limited with regard to imposition of anti-dumping duty on the alleged dumping of Mica Pearl Pigment originating in or exported from China PR, Japan, USA and EU. The designated authority notified the embassies and representatives of the subject countries and also forwarded a copy of the public notice of initiation to all known exporters and importers and industry/user associations. The authority also made available the public file to all interested parties containing non-confidential version of the evidence submitted by various interested parties for inspection upon request. A public hearing was held on 29th April 2004 and all the interested parties attending the public hearing were directed to file their comments and submissions expressed orally, in writing. The authority issued a disclosure of essential facts on 30th November 2004, as required under Rule 16 of Customs Tariff (Identification, Assessment and collection of Anti-Dumping Duties on Dumped Articles and for Determination of Injury) Rules, 1995. The authority after considering all the evidence on record and submissions made, in final findings concluded that, Mica Pearl Pigment were exported to India ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater on, after being pointed out, excluded from the scope of the investigation the Mica Pearl Pigment of cosmetic and automotive grades. The current investigation is restricted to the industrial grade. It is his submission that the price of the pigment in the industrial grade will also depend upon the contents of the pigment in relation to the particle size of the mica, quality of the titanium dioxide used and the micron size of the pigment. It was submitted that the authority in its final findings has noted this point but the product under consideration was not correctly defined by the authority, which though being agitated was not considered while arriving at the conclusion of imposition of anti-dumping duty. It was submitted the imports made by the appellant is of off spec grade i.e. the quality of the imported goods could not be compared with the like products manufactured by the domestic industry as the quality difference is very wide and the imports could not be equated with the first grade of material manufactured by the domestic industry. It was further submitted that the authority has worked out the normal value of all the imported products separately but applied the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot like the products manufactured by the domestic industry. It was also argued that the exporter had given data only for the two types of the Mica Pearl Pigments to enable the authority to arrive at the normal value and export price hence, the appellant is precluded from challenging the findings of the authority. Arguments on behalf of the Designated authority : 6. The learned advocate appearing for the designated authority submits that the authority has concluded the findings of dumping based on the verification of the data submitted by the domestic industry and exporter. It was submitted that the co-operating exporter has filed information in respect of only two of the articles imported, which comprised of bulk of the imports in to India. It was his submission that authority has verified the information and has correctly worked out the non-injurious price of the products manufactured by the domestic industry and has correctly allocated the cost. Reasons : 7.1 The advocate for the respondent has raised a preliminary objection regarding the maintainability of the appeal by the appellant an importer in this case. An appeal lies to the Tribunal against the final findings and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 does not indicate who can be an appellant and who is aggrieved by the order of final findings of the authority recommending the anti-dumping duty. In plain sense, it can be construed that any person whose is affected by the final findings recommending the imposition of the anti-dumping duty would be eligible to file an appeal before the appellate authority, if he has participated before the authority during the investigation proceedings. In this case the appellant is a importer of the article who filed responses to the importers questionnaire and also represented before the authority during investigation and is affected by the imposition of the anti-dumping duty. Hence we hold that the appellant has a right to seek redressal of his grievances against the final findings before this appellate forum. 7.2. We find that this Tribunal in its order in the case of AIIGMA v. Designated Authority - 2000 (119) E.L.T. 333 (Tri.) in paragraph 3 held as under : Before proceeding with the above contentions, if may be mentioned here that the learned Counsel representing the appellants tried to challenge the normal value fixed by the Designated Authority in the final order. Argument was that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tual findings, the tribunal restricted the importers from challenging the normal value and held that the findings based on the records maintained by the exporter could, at best, be assailed by the exporter only. In this case we find that the importer is subsidiary of the co-operating exporter from EU. Being a subsidiary of the exporter, to preclude importer from filing an appeal would be denial of justice. Since we find that the appellant importer can file an appeal, it would not be appropriate if it is not allowed to raise the challenge against the determination of normal value and export price, as these two are the main elements which determine the margin of dumping of the article and go to the root of imposition or non-imposition of the anti-dumping duty. Hence we hold, that, as the importer is a subsidiary of the co-operating exporter, it would be well within his rights to file an appeal and challenge the final findings recommending the anti-dumping duty. 8.1 The next question that arises for consideration is whether the articles imported by the appellant would be covered for the impost of the anti-dumping duty as per the final findings of the authority. In this case the au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be an incorrect proposition on the part of the appellant importer. 8.3 It was argued that the imported articles can never be considered as technically and commercial substitute for the products manufactured by the domestic industry for the reason that the articles imported were off spec . It was submitted that off spec means sub-standard quality. We find that this issue is a non-est in as much that the exporter while responding to the designated authority s questionnaire, never indicated that the exports were of off spec quality. If the exporter himself has indicated that the quality of the exported article is of a regular quality, it would be futile for the importer appellant to argue that the article imported is of off spec quality. When we perused the records we found there was no indication in the invoices as to the quality of the product being off spec . In the absence of the any such indication it cannot now be said that the article imported was not technically substitutable. Nevertheless, the authority examined this point and on verification found that the articles imported were in fact technically and commercially substituting the products manufactured by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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