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TMI Blog2015 (2) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... or a further period of 5 years on the imports of caustic soda from EU (Excluding France) and Indonesia, and discontinued on the imports from Taiwan 2. Based on an application filed by the Alkali Manufacturers Association of India, (domestic Industry), sunset review investigations were initiated by the Designated Authority on 7.3.2008 to ascertain the need for continued imposition of duties and whether the expiry of anti-dumping duties would lead to continuation or recurrence of dumping, injury or both. In respect of the appellant, the Authority held that the exports, had been made at a price above their normal value, that is at un-dumped prices but since the exports had been made only during a limited period, they were considered to be temporary and unreliable. On this basis, it was concluded that the likelihood of recurrence of dumping and injury can not be rules out. The exports by other exporters from Indonesia and EU were found to be dumped, that is at prices below their normal value. The Authority found that there was a likelihood of continuation or recurrence of dumping and injury both for Indonesia and EU(excluding France), were the duties to be revoked. The Authority accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion was also invited to the final findings, wherein the Authority had noted that the appellant s exports to India were confined to a particular period, and that there were no exports either before or after the period of investigation. This fact gives a clear indication, that the exports were stage managed to get a negative dumping margin, and were not representative of the usual business practices of the appellant, as reflected in the WTA statistics. The Designated Authority rightly concluded that likelihood of recurrence of dumping and injury can not be ruled out in the event of revocation of duty. In response to the appellant s argument that they were not given adequate details of the dumping margin, the domestic industry argued that no prejudice had been caused to them as the Authority had determined a negative dumping margin based on the details furnished by the appellant. Arguments on behalf of the respondent Designated Authority 6. The learned counsel for the Designated Authority supporting the reasoning contained in the Final Findings and the validity of the impugned notification contended that since the appellant had made no exports after the levy of duties, except duri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tcome of such a review for a further period not exceeding one year. It is evident from the perusal of the above-quoted Section that unlike original investigations, sunset reviews are prospective in nature as they focus on the likelihood of the continuation or recurrence of dumping and injury in the event of revocation of duties. Sunset review entails a likelihood determination in which present levels of dumping are obviously not so relevant as is the likelihood of continuance or recurrence of dumping. In the case of Rishiroop Polymers Pvt. Ltd Vs. Designated Authority 2006 (196) ELT 385 (S.C.), the Supreme Court held as under: "Otherwise also, we are of the opinion that scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited to the change in the various para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry will suffer. In the case of Borax Morarji Limited vs. Designated Authority - 2007 (215) E.L.T. 33 (Tri-Del) Cestat noted that "Proviso to Section 9A(5) of Customs Tariff Act, 1975 primarily intends to undertake review to examine whether cessation of duty on the expiry of five years is likely to lead to continuance/recurrence of dumping and injury Expression likely to lead to recurrence would cover situation where dumping and injury may not exist at time of review due to continuance of anti-dumping duty." During the period of investigation, the anti-dumping duty would be in force and hence, the current level of dumping may be non-existent or minimal. The exporters under investigation may also sell at a non-dumped price during this period knowing fully well that a sunset review would be in progress. Hence, the criteria under Section 9A(1) that the anti-dumping duty should not exceed the dumping margin would have no practical application for continuance of the duty under Section 9A(5). There is also no such warrant in law under the said Section 9A(5) to do so. 10. With respect to the injury determination, if the anti-dumping duty had the desired effect, the condition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sia to the world and it has been noted that average exports prices by cooperating exporter i.e. M/s PT Asahimas Chemical Ltd. were reported lower than that of reported in WTA. (It has also matched with the data reported in the DGCI&S, though no exports have been reported by the cooperating exporter in the preceding years). The cooperating exporter has not reported any exports to India during the preceding years, however during the POI major quantity of the exports have been accounted for by the cooperating exporter in the total imports in India. During the POI exports have been made to be at un-dumped price, however, in view of the variation and lower prices by the exporter than the average prices reported in WTA it can not be safely concluded that M/s PT Asahimas would not resort to dumping in future particularly when M/s PT Asahimas has exported goods to India only during POI. Therefore, in view of the aforesaid, it appears that the export prices by M/s PT Asahimas are temporary and unreliable so that the dumping margin during the POI could be avoided though the same is not supported by the pattern of prices by the exporter. In view of the above, the Designated Authority has reje ..... X X X X Extracts X X X X X X X X Extracts X X X X
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