9911796707
TMI Blog2006 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... rochemicals and importer Rishirpop Polymers Ltd., are challenging the impugned final findings and the notification by which the anti-dumping duty imposed on the exporter was continued, at an enhanced rate pursuant to the mid-term review. 3.The designated authority had initiated mid-term review investigation of the anti-dumping duty that was extended after sunset review. The designated authority on a request by the exporter Korea Kumho Petrochemicals initiated this mid-term review. The period of investigation for the mid-term review was 1st January, 2003 to 31st December, 2003. The designated authority sent questionnaires to the known exporters and importers. The exporter from Germany did not co-operate and the exporter from Korea co-operated and responded to the exporter's questionnaire. The importer of the subject goods also responded to the importer's questionnaire. The designated authority conducted a public hearing on 15th July, 2004 and invited comments from all interested parties. The designated authority conducted on the spot verification of the records of the exporter and domestic industry. The authority sent the verification report of the exporters record to the expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... price it is submitted that the authority has calculated the export price based on the evidences submitted by the appellant. It was contended that the authority has reduced from the export price additional amount of inland freight charges and packing cost. It is his submission that all the exports made by the appellant is from Ulsan port and only few are made thru Busan port, that the appellant has rate contract for the transportation of NBR to Ulsan and Busan port and also for domestic sales. It is submitted that they had produced the rate contract and the evidences supporting their claim, despite verification of the records the authority has arrived at the weighted average of the transportation cost and reduced the same from the export price. As regards the packing cost it is submitted that for the export to India the appellant uses only paper bags for packing NBR and for domestic sales wooden pallets are used. In support of his claim they produced the Invoices and packing list of the exports made during the POI and contends that the authority has deducted additional amount of packing cost from the export price. It is his submission that the net effect of all these is that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile seeking the mid-term review but for the reduction in Tariff rate of the customs, in the absence of any material evidence, the designated authority has erred in initiating the mid-term review. It was also submitted that the domestic industries were not served with the copy of application, which in turn has deprived an opportunity of filing objections to initiations of mid-term review. Arguments on behalf of Designated authority 6.The learned Advocate appearing for the designated authority submits that the designated authority has initiated the mid-term review on an application by the exporter due to change in the circumstances. It is his submission that the reduction in customs duty will warrant a mid-term review in view of the fact the extended anti dumping duty was imposed on the reference price basis. It was also his submission that the authority did not initiate the mid-term review only on this ground, but considered the overall situation and then took a decision of mid-term review. It is his submission that the exporter from Germany did not co-operate while the exporter from Korea co-operated. It was further submitted that the designated authority had issued a verifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y it that there is no justification for the continued imposition of such duty. At the stage of initiating such mid-term review, the designated authority can act on the basis of information received by it from the interested parties. It is during the investigation, after it is initiated, that disputes may arise as to the nature and efficacy of such information. However, the initiation will not be vitiated, if the designated authority has acted on the basis of information received by it by being satisfied that a review was called for with a view to ascertain whether there was need for the continued imposition of the anti-dumping duty." In the case before us we find that the designated authority initiated the mid-term review not only based on the request letter of the exporter/importer, but also on his appreciation of the situation. It is on record that the designated authority had called for the information from DGCIS, the import prices of the subject goods, and found that the same has gone up substantially. We are of the opinion that the prejudice test is the test that weighs in the mind of designated authority in these kinds of cases. Rule 23 contemplates that the designated auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent in foreign exchange for such purchases. It is also on record that the said raw material is transported through pipelines. The designated authority has not brought on record that there was an additional payment from the appellant's side to the supplier of raw material over and above the amount shown in the Invoices. The appellant had produced exemption granted by the Korean authorities from payment of VAT if the payment is made in foreign exchange, which is not rebutted. In the absence of any evidence indicating additional payment over and above the invoice price shown by the appellant in the purchase register, we find strong force in the appellant/exporter's contention. We are of the view that the enhancement of the cost of raw material by 10% by the designated authority is unwarranted and not in consonance with principles of arriving at the cost of production. 7.2As regards the cost of inland freight adjustments made in the export price of the subject goods, we find that the appellant/exporter had produced contracts entered by them with the transporters. It is on record that the appellant had contracted three different rates for the transportation of his goods. It is also on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, the designated authority should not have summarily discarded this evidence. A mere absence of the goods packed in paper bags, in the factory of the appellant/exporter could not be a ground for enhancing or increasing the packing cost, for deduction from the export price. On this ground also we find much force in the contentions of the appellant. 7.4In the present case, however, we find that the authority has correctly come to the conclusion that there was dumping of the subject goods from the appellant exporter, but has wrongly arrived at the dumping margin without considering legitimate claims of the appellant/exporter, which has resulted in the enhancement of the anti-dumping duty on the subject goods. We are unable to agree with the designated authority on the margin of dumping and the amount of anti-dumping duty imposed on the subject goods when imported from the appellant/exporter for the reasons mentioned above. On a specific query, as what will be the effect on antidumping duty if the adjustments as claimed by the appellant/exporter are allowed, the designated authority was unable to indicate the exact amount. 7.5At the same time, the learned Advocate appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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