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TMI Blog2013 (12) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... lability of the products to the consumers. Accordingly, he has recommended anti-dumping duty of 10% adv. on TCPs upto the size 130” imported from Chinese PR leading to the impugned customs notification - No reason to interfere with the impugned final findings and the impugned customs notification issued pursuant to the same - Decided against assessee. - AD/4/2010 - Final Order No. AD/29/2011(PB) - Dated:- 3-8-2011 - R.M.S. Khandeparkar, Dr. Chittaranjan Satapathy and Shri M.V. Ravindran, JJ. Ms. Moushami Joshi with Shri Bhupender Singh, Advocates, for the Appellant. Shri Ameet Singh with Ms. Pooja Sharma, Advocates, for the Respondent. Shri L.P. Asthana with Mrs. Reena Khair, Advocates, for the Interested Parties. ORDER The appellants represent the tyre manufacturers in India who are importers of the impugned goods namely Tyre Curing Press (TCP). The domestic manufacturer of TCP M/s. L T Ltd., representing the Domestic Industry (D.I.) filed an application before the Designated Authority (D.A.) for initiating Anti-dumping action against imports of TCPs from China PR. The D.A. issued the initiation Notification on 16-10-2008. D.A. issued the preliminary find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... She states that similar differences were taken note of in the case of anti-dumping investigations in respect of Non Brass Metal Flashlight and Ball Bearings and parts. 4. According to her, the D.A. has calculated the price underselling and price undercutting margins for each size which has not been disclosed by the D.A. But the D.A. has computated a single injury/undercutting margin by the weighted average method. 5. She states that the D.A. has not disclosed the NIP for each size and therefore there is no way even to assume the NIP is correctly calculated. Similarly, she states that the dumping margin has not been indicated for each size and only the weighted average dumping margin has been calculated, which according to her is not correct. The ld. Advocate also states that no material injury has been suffered by the D.I. and the finding of the D.A. in regard to injury is not tenable. She also states that it is surprising that the D.A. has found a causal link between imports and injury to the D.I. when almost all parameters have shown improvement in the POI. 6. The contentions raised by the ld. Advocate for the appellants have been strongly countered during hearing by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he press size increases it can accommodate a bigger diameter mold and hence it can cure bigger tyres. The broad classification of press sizes for various tyre segments are as shown below : 24 - 36 - Scooter tyres 40 - 52 - Passenger car and LCV tyres 55 - 65.5 - Truck tyres 78 - Tractor and agricultural equipment tyres 85 - 185 - OTR tyres (Mining and special equipment) (b) Various types of tyre curing presses constitute one article on the basis of product parameters such as product properties, manufacturing process technology, functions uses, pricing, distribution marketing and tariff classification. Both domestic industry and Chinese Producers can interchangeably produce different types/sizes of TCP and in particular the sizes mentioned by the appellant in the same plant using the same production technology, following same manufacturing process, same raw materials and components (albeit with difference in specifications) and same manpower. In other words, man, machine and materials - the three essential ingredients of manufacturing are the same for different size of TCP. Only difference in different types of TCP is in specific applications whenever the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable and that the D.A. has been routinely adopting IBIS data which represents 3rd party independent information. Further, the D.I. has stated that the appellants do not represent all tyre manufacturers in the country and that the small volume as indicated by them does not take into account the imports made by non-members whereas, IBIS data includes all imports. 9. As regards determination of one dumping margin for different sizes of TCPs, the D.I. has submitted that the D.A. has clearly stated in para - 48 of the final findings regarding comparison of normal value with export price for same type/size of TCP. Thereafter, the D.A. has proceeded to determine the weighted average dumping margin. This is in conformity with the general practice where the product under consideration involves a number of different types. The D.I. has submitted that the D.A. is required to determine the dumping margin for the product under consideration and is barred from determining several dumping margins for one product. Reference has been made in this regard to Rules 10, 12, 17 and Annexure 1 to the A.D. Rules. 10. The D.I. has referred to the WTO Appellate Body Report No. WT/DS141/AB/R, dated 1-3- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has also issued a disclosure statement on 7-10-2009 to all interested parties, wherein principles of methodology for determination of NIP was disclosed but the cost information used for NIP determination was kept confidential as required. 14. The ld. Advocate for the D.A. also states that while examining various economic factors, the D.A. has taken note of positive developments for the domestic industry as well as the negative developments in profit and return on investments. The D.A. has taken an overall view of various economic factors and has come to a fair conclusion regarding the injury suffered by the domestic industry. The D.A. has also segregated profitability in the domestic and export market of the D.I. for the purpose of injury determination. The injury determination made by the D.A. has a factual basis and is not arbitrary. 15. In rejoinder, the ld. Advocate for the appellants has stated that no evidence has been given by the ld. Advocates for the D.A. and the D.I. regarding additional imports. She further reiterates that IBIS data is not reliable. She also states that WTO Appellate Body decision was specifically in the context of the practice of zeroing and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to difference of value added features, the penetration and resolution difference between different models and hence, the investigation was restricted in that case, only to two models which were imported during the POI Moreover, such instances of separately considering products of different kinds are very few and far between apart from being on account of very valid and special reason as has been indicated in the case of X-Ray Baggage Inspection System. The general practice is to determine one dumping margin for one product under consideration irrespective of the different sizes of the product imported and taken into consideration. This is a regular practice of the D.A. followed over time and there is no reason why he should have made an exception in this case. As has been pointed out on behalf of the D.A., the requirement under the A.D Rules is clearly to calculate one dumping margin and impose one single rate of anti-dumping duty on a product under consideration. To be able to determine one dumping margin and one anti-dumping duty rate for one exporter, it is well established practice to workout such margin and duty rate by adopting weighted average method, taking into account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also concluded that import of the subject goods from the subject countries have increased substantially. The D.A. has examined the relevant economic indicators, as well as the volume and price effects of the dumped imports in paragraphs 93-96 of the Final Findings and come to the following conclusion on injury :- 93. The demand of goods in terms of numbers has increased from 162 in base year to 338 in POI, i.e., increase by 109%. In terms of weight also, it increased by 236%. The domestic sales have increased by 154% during the same period. As noted earlier, the equipment utilization is in the range of 70-80%. Therefore, the domestic industry continues to take advantage of increase in demand in the market. However, the domestic industry has lost orders to Chinese manufacturers. The under-cutting is in the range of (-)1% to 19%. The cost of sales increased by 221% whereas sales value increased only by 156%. Consequently, the profit (PBIT) declined by 62% as compared to base year and the return on investment declined sharply by 90%. It has been noted that in 2005-2006, there was sharp decline in financial performance. It has been explained that the domestic industry suffered fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have instead declined significantly indicating the material injury suffered by the domestic industry as can be seen from the trend from the base year. 96. The Authority notes that the rules require examination and assessment of performance of the domestic industry over the period, by considering a number of parameters listed under the rules. Further, while rules provide for examination and assessment of all listed parameters, it does not provide that the performance of the domestic industry must deteriorate in terms of each and every parameter. Further, the rules provide for assessment of whether the performance of the domestic industry has deteriorated or declined in respect of these parameters and whether such deterioration is significant. The rules, however, do not provide, for example, that the domestic industry must suffer financial losses for concluding that the domestic industry has suffered material injury. In case, the performance of the domestic industry has deteriorated in respect of one or few parameters only, the authority must conclude that the domestic industry has suffered material injury, provided that the authority comes to a conclusion that the deterioration i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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