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TMI Blog2015 (3) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... gligible, and therefore, cessation of exports to India is not indicative of likelihood of dumping and injury if antidumping duty was removed. Indeed, in such a situation, it can not be said, notwithstanding the contention of the appellant, that exports to India dropped to negligible level due to anti-dumping duty when exports from Sweden to other countries too were negligible. The existence of possibility does not necessarily mean the existence of likelihood . Thus, the DA was in no way contracting himself when he found the possibility but not likelihood of dumping. As has been reiterated in the recent judgment of the Delhi High Court in the case of M.P. Goenka vs. CC, (Preventive) [2015 (2) TMI 263 - DELHI HIGH COURT], it is not the task of the Court exercising appellate power to review or second guess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis-appreciation of law or non-appreciation of mind. - No sufficient merit/ basis to warrant any appellate intervention vis-`-vis the DA s findings/ con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the duties on imports from Sweden be discontinued. Arguments on behalf of Appellant Domestic Industry 3. It is contended that the authority was incorrect in drawing an inference of no likelihood of injury, based on the fact that there were negligible imports from Sweden. It is submitted that the reduction in imports was a direct consequence of the antidumping duty in force and gave no indication of the scenario which may emerge, were the duties to be revoked. The Authority also failed to consider the material fact that Perstorp, the sole producer of subject goods in Sweden, had another plant in Germany, from where it was exporting large volumes to India at dumped prices, for which antidumping investigations had already been initiated based on a prima facie satisfaction of the Authority. On the revocation of duties in respect of Sweden and levy of duties in respect of Germany, it was highly probable that Perstorp would resume dumping from Sweden. It was submitted that while Perstorp participated in the investigations relating to its unit in Germany, it chose not to participate in the investigations for its unit in Sweden, even though both investigations were taking place at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the WTO Agreement on Anti-Dumping is Article 11.3, which reads as under: 11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive antidumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review. In the Report USA Anti-dumping Duty on DRAMS, the WTO Panel has interpreted Article 11.3 of the Agreement as under: We note that, with regard to dumping, the sunset provision in Article 11.3 of the AD Agreement envisages inter alia an examination of whether the expiry of an anti-dumping duty would be likely to lead to continuation or recurrence of dumping. If, as argued by Korea, an anti-dumping d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Authority has considered that in the absence of any information / co-operation by the Swedish exporter, the data provided in World Trade Atlas was also analysed to examine the likelihood of dumping. The World Trade Atlas compiles data based on calendar year. It was seen that export volumes from EU to world increased 9 times (from ***MT to ***MT), for the calendar year 2009 over 2008. During the same period the export to India increased from nil to *** MT. The data shows highest quantity of exports to India at **% of the total export in the POI. This shows the potential of diversion of material to India, in case of withdrawal of duty. In the event for withdrawal of duty, the possibility of diversion of cheaper export to India can not be ruled out. The Authority has also compiled the information concerning the available capacity in Sweden. It is noted that the capacity of Swedish producer is 27000 MT per annum. As regards China PR, the Authority notes that existing volumes of exports to India is substantial. Further considering freely disposable capacity available in China PR and Indian demand the surge in dumped imports from China can not be ruled out. The freely disposable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry by the Designated Authority was proper and in conformity with the requirements of Annexure-II of the Anti-Dumping Rules. The appellant did not challenge the final finding of the Designated Authority before the Tribunal that parameters mentioned in para (iv) of Annexure-II had not been considered or satisfied. We have declined the permission to the appellant to raise this point before us in Civil Appeal Nos. 773 and 774 of 2001 which were directed against the final findings recorded by the Designated Authority based on which the Government of India had imposed the anti-dumping duty for a period of five years. Under Section 9A (1), the said initial imposition of anti-dumping duty is ordinarily contemplated to be continued and remain in effect for a full period of five years, at the end of which it would be subject to sunset review, the possible consequence of which would be the extension of the operation of the period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. Having regard t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d form time to time. Having regard to the scheme of the abovementioned provisions of the statute, once anti-dumping duty has been initially imposed it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed. It is therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field. 21. Learned Counsel for the Petitioner drew our attention to a decision rendered by the Appellate Body of the World Trade Organization in United States Sunset Review of Anti-Dumping Duties on Corrosion-Resistant Carbon Steel Flat Products from Japan (AB-2003-5 decided on 28th November, 2003) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... world trade atlas data it is seen that there is no exports volume from Sweden to other countries during POI and previous year. Thus, it is noted that there is no substantiated evidence on record which signifies that in the event of revocation of duty on Sweden, the import of subject goods would start coming at dumped prices. The authority, therefore, holds that there is no likelihood of continuation/ recurrence of dumping from Sweden. As regards the China PR, the Authority notes that existing volumes of exports to India is substantial. Further, considering freely disposable capacities available in China PR and Indian demand, the surge in dumped imports from China cannot be ruled out. This fact is apart from the establishment of continued dumping from China PR is likely to lead to recurrence of dumping. Likelihood of Continuation/ recurrence of injury. 58. The Authority has taken note of the information on record. It is noted that the margins of both dumping and injury are negative so far as imports from Sweden are concerned besides low volume of imports from Sweden considering total demand in Indian market. No evidence have been placed on record by any interested party that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was held by the DA that there is no likelihood of continuation/recurrence of dumping from Sweden. We do not see any contradiction here as possibility only means a thing may happen while likelihood connotes that a thing would happen rather than not happen. The existence of possibility does not necessarily mean the existence of likelihood . Thus, the DA was in no way contracting himself when he found the possibility but not likelihood of dumping. As has been reiterated in the recent judgment of the Delhi High Court in the case of M.P. Goenka vs. CC, (Preventive) [2015-TIOL-282-HC-DEL-CUS], it is not the task of the Court exercising appellate power to review or second guess (or even third guess, at times) the factual findings based on evidence considered by the lower authorities but only to correct an order if it is based on irrelevant or manifestly incorrect construction of the facts or if based on mis-appreciation of law or non-appreciation of mind. 11. In view of the foregoing, we do not find sufficient merit/ basis to warrant any appellate intervention vis-`-vis the DA s findings/ conclusion and the consequent discontinuation of antidumping duty in respect of imports of subjec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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