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TMI Blog2007 (2) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... notification has been issued on the basis of the final findings and recommendations of the Designated Authority reached pursuant to the New Shipper review as per the Notification dated 29-12-2005 issued under Rule 18 of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. 3. The Designated Authority had received a request to initiate review under Rule 22 of the said Rules from the said producer and exporter who declared that they were not related to any of the exporters/producers in China PR subject to the anti-dumping measures in force with regard to the product concerned and that they had not exported the subject product concerned during the original period of investigation. The Designated Authority after examining the application, prima facie considered it sufficient to justify the initiation of a review under Rule 22. The review proceedings were initiated by notification dated 25-8-2004. The anti-dumping duty had been imposed under the notification issued by the Central Government Bearing No. 73/2003-Cus., dated 1-5-2002 with effect from the imposition of the provisional anti-dumping du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation period was wholly irrelevant and misleading. It was further submitted that the declarations made by SBM and NZYC were found to be false and incorrect even by the Designated Authority, during the proceedings and therefore, this review was not warranted. The learned Counsel argued that the material on record established that SBM was directly related to NZYC Co. Ltd. which had participated in the previous investigation proceedings and was subject to anti-dumping duties in force. Moreover, the SBM was also related to at least eleven other companies producing the same product. It was submitted that no verification had been carried out with respect to the said eleven companies whose names were mentioned in the verification report. It was, therefore, argued that the application made by the producer SBM under Rule 22 was not maintainable and the initiation ought to have been terminated since, admittedly, SBM was related to exporters and producers who were subject to anti-dumping duties. It was also argued that the statements made by both the applicants were found to be false and incorrect by the authority and they had taken contradictory and varying stand from time to time to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Counsel for the respondent-exporter submitted that the authority to impose duty is only in respect of the article exported by any exporters or producers, as they existed during the initial period of investigation. It was submitted that a separate dumping margin was to be determined for all known exporters or producers and the residual duty covered all exporters or producers that are either unknown or were non-cooperative. In the absence of exports during the period of investigation, no dumping margin could have been determined for such non-exporting parties. Referring to the provisions of Sections 9A(1), 9AA, Rules 2(3), 6, 8, 10, 16, 17(3) and 18(2), it was contended that the expression exporter or producer did not include a producer whose article had not been exported to India and that there was no sanction for imposition of duty on any exporters or producers who did not export during the period of investigation. It was further submitted that there were companies some of which were in existence during the period of investigation and were related to the applicant; but, such companies did not make any exports to India during the initial period of investigation. It wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the earlier period of investigation and were subject to anti-dumping duty. Reasons : 7. Rule 22 which falls for our consideration reads as under : 22. Margin of dumping, for exporters not originally investigated.- (1) If a product is subject to anti-dumping duties, the designated authority shall carry out a periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on the product. (2) The Central Government shall not levy anti-dumping duties under sub-section (1) of Section 9A of the Act on imports from such exporters or producers during the period of review as referred to in sub-rule (1) of this rule. Provided that the Central Government may resort to provisional assessment and may ask a guarantee from the importer if the designated authority so recommends and if such a review results in determination of dumping in respect of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 9. Anti-dumping duty is levied upon importation of the subject articles to India under a notification issued under Section 9A(1) of the Act. The scheme of the Act and the Rules framed thereunder provides for determination of individual dumping margins, which is the very basis of the levy. The period of investigation for initial imports of anti-dumping duty as also for the mid-term and sun-set reviews is anterior to the initiation of the investigation by the Designated Authority. The period of investigation for review under Rule 22 (the so-called new shipper review), however, as stated by both the sides, is usually taken subsequent to initiation of investigation under Rule 22. In the context of fixing a dumping margin this would, in our opinion, leave ample room for the new shippers to doctor their figures for a no dumping margin , and this possibility must be kept in mind by the designated authority while deciding to fix the period of investigation to initiate the review under Rule 22. However, since there is no quarrel against the period of investigation chosen for the new shipper review, we need not delve on that aspect any further. 10. In respect of the initial peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who exports the product that is subject to duty, on importation when the notification imposes it on all imports from the exporting country by virtue of exports by any exporter/producer therefrom. Such a construction will, however, not answer the purpose underlying Rule 22, create incongruous situation, and will become unworkable, as will be presently seen. 11.1 When the notification imposes anti-dumping duty on the exporters specified therein, they obviously would be of the class who had dumped the article in India from the exporting country and were, therefore, upon requisite determination being made by the designated authority, made subject to anti-dumping duty. All others not named, though they may have exported in the period of investigation but did not dump would not be subject to anti-dumping duty. In such cases, the exporters/producers falling in the category of those who did not export the product to India during the earlier period of investigation and whose individual dumping margin is required to be determined, should not be related to any of the exporters or producers specified in the notification as being subject to anti-dumping duty. Since the relationship issue is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y because the notification applied to all imports from the exporting country making the product subject to anti-dumping duty. On the other hand, if the classification between exporters who exported in the period of investigation and new shippers who did not do so is recognized for the purpose of judging whether the latter was related to the former, it will make Rule 22 workable and the new shipper can demonstrate that it is not related to any of those who exported in the earlier period of investigation. Inter-related news shippers who did not export in the earlier period of investigation cannot be debarred from being considered for their individual dumping margins when they are not related to those who exported in the earlier period of investigation from the exporting country. Therefore, the expression exporters or producers in the exporting country who are subject to anti-dumping duties on the product in Rule 22(1), would mean only those who had exported in the earlier period of investigation. If they are specified in the notification, only those; and if all exporters/producers are covered, then all such exporters/producers who exported in the earlier period of investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the material in that investigation period. Should you require any further information/clarification we would be pleased to provide the same. Yours sincerely, Yours faithfully, Sd/- A.K. Gupta For the petitioner 12.1 It will be seen from the above communication that the declarations were made as required by Rule 22, and no prejudice was caused to the interested parties by initiation of the new shipper review on the ground alleged. In this context, the Designated Authority while considering the contentions against initiation, which have been repeated before us, held that the applicant was a new entrant to the market in the exporting country, since the commercial production of the subject goods was commenced only from 30-5-2003. The period of the original investigation was from 1-4-2000 to 31-3-2001 and, therefore, they could not have exported during the original period of investigation. The applicant had produced certificates with regard to the fact that they were not related to any known producer or exporter in the exporting country. The Designated Authority, on the basis of the material on record, found that the essential facts which were stated in the disclosure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies with whom the applicants were related could have exported the subject articles only after September 2001, i.e., after the original period of investigation. There is no reason to take a different view of the matter on such findings reached by the Designated Authority. The Designated Authority has, therefore, for valid reasons given in the final findings, with which we agree, rightly held that the new shipper review investigation was initiated in accordance with the provisions of Rule 22 and that there was no evidence found regarding any exports during the original period of investigation. 13. The Designated Authority has examined the issues of normal value and export price in accordance with the provisions relating to such determinations and has come to a finding that considering the normal value and export price as determined, dumping margins of vitrified/porcelain tiles were negative. In other words, there was no dumping by the new shipper applicants. We agree with the reasoning and findings of the Designated Authority on these aspects. The Designated Authority has, for valid reasons given in the context of these two new shipper applicants SBM and NZYC, rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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