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TMI Blog2011 (6) TMI 656X X X X Extracts X X X X X X X X Extracts X X X X ..... any interference. appeals filed by the appellants are dismissed - AD/2-3/2010 - AD/13-14/2011(PB), - Dated:- 17-6-2011 - Justice R.M.S. Khandeparkar, Dr. Chittaranjan Satapathy, Shri M.V. Ravindran, JJ. Shri Prabhat Kumar, L.P. Asthana and Ms. Reena Khair, Advocates, for the Appellant. Shri Ameet Singh and Ms. Pooja Sharma, Advocates, for the Respondent. [Order per : M.V. Ravindran, Member (J)]. These appeals are directed against the final findings dated 6-11-2009 of the Designated Authority (hereinafter referred as DA) and notification dated 19th March, 2007 issued by Central Govt., of India in exercise of power conferred by sub-section-1 read with sub-section-5 of section-9A(5) of the Customs Tariff Act, 1975 and rules made thereunder of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, imposing the Anti-dumping duty on the imports of Saccharin originating in or exported from China PR as indicated in the notification. Anti-dumping duty imposed for the impugned notification was ordered to be levied w.e.f. 19-3-2007. 2. Brief relevant facts of the case are that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination of injury. It is also his submission that there was no support from other domestic producers as claimed by DA, as the applicant Vishnu Chemicals Ltd. did not approach other domestic producers as required under the law. It is also his submission that on the date of initiation, all the four producers extended the support is incorrect and false and misquoted. It is also his submission that the letters of support issued to the applicants, is in the absence of any agreement between the product under consideration and the product for which the support was extended. It is his submission that in the absence of a proper support of these domestic producers, the applicant did not represent the major proportion of the total domestic production of the Saccharin and hence cannot be construed as the domestic industry as provided in the Anti-dumping Rules. It is his submission that the Vishnu Chemicals Ltd. had not started production and was only than six months industry at the time of request for mid term review. 4.2 It is his submission that mid term review was not warranted and is full of illegalities as the mid term review should be initiated only after a lapse of sufficient time. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the Govt., in the Ministry of Corporate Affairs, SEBI, Stock Exchange, shareholders and different Govt., authorities like Income Tax, Excise Authorities and so on. (e) For the purpose of injury analysis, years 2004-05, 2005-06 and 2006-07 have been considered as a base year when the petitioner was non-existent in the Saccharin production and sales. The whole injury analysis was incorrect as the same was done on non-existent and manipulated data of 2004-05. (f) No data was collected from the original four petitioners for determination of injury to the domestic industry. Since data of other producer not collected and no taken into account for injury analysis, there is a serious violation of law. 4.5 In support of this statement, he would rely on decision of Apex Court in the case of Reliance Industry, which, he submits was totally ignored by the DA. 4.5 It is his submission that there is no injury to Vardyaini Chemicals P. Ltd., one of the original applicants, he would draw our attention to the balance sheet of Vardyaini Chemicals P. Ltd. and submit that there is no loss reported and all the parameters were showing positive trend for the year 2005-06, 2006-07, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elow the cost of production. The normal value must therefore be determined on the basis of cost of production, duly adjusted for selling, general and administrative expenses and profit. The above statement is contrary to the facts. Copies of Annual Reports of Shree Vardayini, AS Chemopharma, Swati Petrochem Ltd. show that they are earning sufficient profit. Hence, the selling price in India is above cost and now below the cost as concluded by the Authority. 4.8 It is his submission that whole injury analysis of the DA is vitiated by the fact that Vishnu Chemicals has understated its sales value in the published audited Annual Reports for the year 2006-07. It is his submission that the argument of the petitioner regarding reason for selling of the product at Rs. 80 per kg. by Vishnu Chemicals Ltd. at a time when the import price was Rs. 140 per kg. DA has concluded that domestic industry was not able to getting the cost of production. It is his submission that in view of this, the entire injury analysis is vitiated. It is his submission that Vishnu Chemicals records are non-injurious and there is no case for imposition of anti-dumping duty based on such data. He would draw our at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the submission that in a situation where exporters intensified dumping after initiation, the domestic industry is clearly entitled to consider such subsequent period as the period of investigation in a subsequent review in order to seek enhancement of anti-dumping duties against intensified dumping, even after initiation of investigations and the domestic industry cannot seek redressal against such intensified dumping. (vii) It is the submission that the issues raised by the importers regarding extension of time for completion of investigation is baseless and not relevant for challenging Final Findings with regard to dumping and injury. In this proposition, judgment of Tribunal in the case of Haldor Topsoe A/S v. Designated Authority, Ministry of Finance [2000 (116) E.L.T. 377 (Tribunal)] was relied upon and it was pointed out that the said judgment has been upheld by the Hon ble Supreme Court. (viii) It is the submission that extension of time can be sought by the DA without any notice to the parties or with providing any opportunity to offer comments being given to interested parties. Nor the DA is required to intimate the parties in this regard. (ix) It is the submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oved after imposition of anti-dumping duties or whether existing measures are achieving the intended results in removing the injury previously established, significant improvement in production and whether sales were at levels that were expected as a result of imposition of anti-dumping duty. The final findings for the mid term review are correct and needs to be upheld. 6. Shri Ameet Singh, Advocate, appearing on behalf of Designated Authority would submit that it is wrong to say that Vishnu Chemicals did not participate in the initial investigation. It is his submission that the said Vishnu Chemicals did participate in the original investigation and their submissions were considered by the DA when he arrived at the conclusion of imposition of definitive anti-dumping duty. It is his submission that DA in the mid term review has verified the information filed by the Vishnu Chemicals to the authorities in the original as well as mid term review. It is his submission that it is wrong to say that other domestic industries did not participate in the mid term review as the current application filed by Vishnu Chemicals was duly supported by initial four applicants. It is his submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be done if the DA is satisfied, on the basis of information received by it for mid term review, DA can act on the basis of information received from interested parties. It is seen that during the investigation after it is initiated, the disputes may arise as to the efficacy of such information, however, the initiation need not be held incorrectly initiated if the DA on the basis of information received by it and being satisfied that review was called for in view of the assertion whether there was no need for continued imposition of Anti-dumping duty. 8. On the basis of factual matrix, it could be seen from the case in hand that one of the producers of Saccharin in India, undisputedly is interested party as per the definition in dumping rules, as the said mid term review application filed by the petitioner dated 11-2-2008. It is seen from the provisions of the Rule 23 of the of the said rules, there has to be some information, on the basis of which the DA can initiate a review which in this case is in existence by the petition filed by the said Vishnu Chemicals which is undisputed. It is also to be seen that the provisions of Rule 23 does not indicate any specific time period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olicy will apply in the context of Rule 23 of anti dumping rules. We find that in the present case fact, there is no dispute that the period for completing the investigation was extended and the review proceedings were concluded within the extended period, these findings are recorded by us after perusal of the files provided by the Designated Authority, which indicated an extension is being granted to the DA for arriving at a conclusion within another six months. Hence, the contention raised on behalf of appellants against the validity of the impugned final findings and the notification on the ground that they are beyond the period prescribed by the Rules, therefore, cannot be accepted. 11. In review proceedings initiated under Rule 23, the DA is required to examine whether the injury caused is likely to as continue or reoccur if removed, in our view, the impact of various determination made in the review investigation needs to be considered and a conclusion has to be arrived after satisfying as to Whether or not there is justification in continued or enhanced imposition of duty. We find that while considering the scope of mid term review, the Hon ble Supreme Court in para 35-3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated Authority has taken into consideration the various relevant parameters for coming to a conclusion on the issues of dumping margin and injury and causal links. The DA had also seen injury parameters, after verifying the data in respect of domestic industry for year 2006-07, has noted that for a total volume of the product under consideration despite growing is affected due to dumped imports, thereby showing less price than the actual. The DA on comparative parameters for the year 2005-06 has come to the conclusion despite the domestic selling price increasing, there is under recovery of cost of production. It is also recorded by the DA that he has relied on the transaction by transaction data provided by DGCIS. The DA has also noted that the production of Saccharin was Started by the Vishnu Chemicals in the year 2004, that he vetted the same form the excise returns filed. It is seen from the findings of the DA that though the capacity of the domestic industry has increased but the capacity utilization as remained low (i.e., 31%) only which was despite the imposition of Anti-dumping duty vide notification dated 19-3-2007. It is recorded clearly in the findings that the amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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