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TMI Blog2015 (12) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... n only to the parties mentioned in the petition filed by Domestic Industry. By not forwarding the copy of the notice to the other interested parties including the appellant, the Designated Authority acted contrary to Rule 6(2) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Duped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as 'Rules'). The Designated Authority was duty bound to obtain the names of all importers from other sources, so as to comply with the requirement of issuing notice to all interest parties. (ii) M/s. Shirdi Industries Ltd., one of the producers failed to disclose that it had imported the subject goods during the period of investigation despite the specific requirement of such disclosure in the petition. Even otherwise, M/s. Shirdi Industries Ltd., being an importer was not eligible to form part of Domestic Industry, in terms of Rule 2(b) of the Rules. In this context, reliance was placed on the letter dated 19.09.2008, wherein details of imports made by M/s. Shirdi Industries Ltd. were given. (iii) The product made by Domestic Industry is not comparable to the imported artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustry. Reference was made to WTO Appellate Body Report in the case of Hot Rolled Steel Products; WTO Panel Report in Thailand H Beam and WTO Panel Report on EC Pipe Fittings. (viii) The injury analysis is faulty as undumped imports from Robin Resources have been taken into account for purposes of injury determination which is contrary to the WTO Panel Report in the case EC Salmon, wherein it has been held that the investigations are to be terminated qua the exporter whose exports are found to be de mininus. (ix) The Non-Injurious Price has been determined considering 22% return on capital employed without justification. Reference was made to decisions in the cases of Bridgestone Tyre Manufacturing (Thailand) Vs. Designated Authority [2011 (270) ELT 696 (T)] and Indian Spinners Association Vs. Designated Authority [2004 (170) ELT 144 (T)]. Arguments on behalf of Domestic Industry 3. The ld. counsel for the Domestic Industry submitted that:- (i) The appellant has not established before the Authority that it was an interested party under the Rules, as it failed to file an importer-questionnaire giving details of its imports of subject goods from subject countr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that MDF panels of higher sizes beyond 8 X 4 are also produced in India, which has been verified by the Authority. There is no material on record to substantiate the claim that the indigenous MDF is not suitable for low pressure melamine applications. The Domestic Industry also pointed out that they had manufactured MDF of 6mm and more during the period of investigation. The Domestic Industry relied upon the decisions in the cases of Kajaria Ceramics Vs. Designated Authority [2006 (195) ELT 146 (T)] and DSM Idemitsu Vs. Designated Authority [2000 (119) ELT 308 (T)] to the effect that quality is not a relevant criterion. (vii) It was submitted that the Authority has examined other factors listed in the Rules, which may be causing injury to the Domestic Industry. Factors, other than the listed ones, are required to be considered only when the parties have pleaded existence of such other factors and substantiated their claims with evidence. The appellant has not brought any other factor to the notice of the Designated Authority in the course of the investigations. (viii) There is no challenge by the exporters to the dumping margin nor have they contended that the dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the subject countries during the period of investigation. In terms of Rule 2(c) of the Rules, an interest party has been defined as under:- 'Interested Party' includes- (i) An exporter or a foreign producer or the importer of an article subject to investigation for being dumped in India or a trade or business association a majority of which are producers, exporters or importers of such an article- (ii) x x x x x (iii) x x x x x" 6. The words, 'article subject to investigation' means the allegedly dumped article, that is, the article imported from subject countries during the period for which investigations are being carried out. Unless a party demonstrates to the Authority that it is an importer / exporter of the subject article, it does not acquire the right to participate in the proceedings as an interested party. In respect of exporters, who have not filed the response to the Exporter Questionnaire, the Authority has considered them to be non-cooperating. This principle would apply equally to the importers. It was, therefore, incumbent on the importer to establish that it was an interested party by furnishing the information as required in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted would substitute the D.I.s products. When there is a variety of grades available in vitrified / porcelain tiles that would in itself give a leverage to the consumer to substitute from one type/size/pattern to another type/size/pattern of vitrified / porcelain tiles. In technical terms a vitrified / porcelain tile of 1000 x 1000 mm will equivalent to four vitrified / porcelain tiles of size of 500 x 500 mm but the price of the 1000 x 1000 mm tiles will not be the price of four tiles of 500 x 500mm. It would be lesser than the price of the four tiles of smaller size. Hence technically and commercially the dumped imports of different sizes may substitute the vitrified/ porcelain tiles manufactured by D.I., even though the D.I. may not manufacture the particular size of tile which is dumped." In the case of In the case of DSM Idemitsu Vs. Designated Authority (supra), CESTAT held as under:- "Learned counsel, appearing for the appellants, submitted that article manufactured by the domestic manufacturer is different from the article exported into India relying upon the information furnished by one of the Importers. He contended that Designated Authority erred in treating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing whether the domestic product is like article to the imported product. (i) product specifications, which includes physical & chemical characteristics, (ii) manufacturing process & technology, (iii) raw materials (iv) functions & uses, (v) pricing, (vi) distribution & marketing and (vii) tariff classification of the goods. (f) On the basis of above mentioned criteria, the Authority is required to come to a conclusion whether the two are technically and commercially substitutable. The Authority has consistently considered the above factors in coming to a conclusion on like article. The same criteria have been applied in the instant case as well. The Authority examined the product types for which exclusion has been sought, whether like article is being offered by the Domestic Industry and the position is as under: 28 (i) Product characteristics - The types of MDF for which exclusion has been sought were compared with MDF produced and supplied by the Domestic Industry. It is noted that the MDF produced and supplied by the Domestic Industry is comparable in terms of essential product characteristics to the var ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , handicrafts purpose etc. While it is possible that some MDF might have some specific end applications, there is clear overlap in the function and use of different types of MDF. In any case, complete interchangeability by all consumers is never considered as definitive criteria for determination of like product. So long as the two products are having over lapping use, the two have to be considered as like product. (v) Tariff classification: Different types of Medium Density Fibre Boards fall in the same tariff classifications. (g) Having regard to the above criteria normally applied for deciding whether the Domestic Industry produces and supplies like article to the imported product and considering the elaborate submissions made by various interested parties, the Authority compared the product catalogues of number of exporters/producers and the Domestic Industry. (h) It is noted that the specifications under various standards and product specifications of the various foreign producers and Indian Producers also specify these parameters. Additionally, a number of specifications also provide for following product parameters - * Core Density * Surface ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and commercially not substitutable to MDF 6 MM thickness and above. On the basis of this conclusion, it was considered appropriate to exclude MDF below 6MM thickness in the Preliminary Findings. After careful consideration of the submissions made by various interested parties, the preliminary conclusion in this regard are confirmed in the Final Findings. (ii) Low formaldehyde emission MDF -Domestic Industry has argued that technically, low emission standard can be achieved by use of appropriate resin and therefore, all producers of MDF are in a position to produce and supply MDF with different emission standards. Commercially, low or no emission standard MDF board merely requires a more expensive resin, thus leading to higher cost and resultant price of MDF .If low emission MDF price be lower than high emission MDF, there can be no dispute that the consumers would readily switch to the cheaper low emission MDF. In other words, if low emission MDF is removed from the purview of proposed measures, according to Domestic Industry, the dumping would switch to such low emission MDF. It is not the argument of any interested parties that the consumers of Indian MDF cannot switc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product and its import would cause injury to the Domestic Industry. 9. It is also contended by the appellant in its two letters that the petitioners did not constitute Domestic Industry, as M/s. Shirdi Industries Ltd. was itself an importer of the article under investigation. We find that the import made by M/s. Shirdi Industries Ltd. was shipped prior to the period of investigation (and that too a small quantity) and there were no imports by M/s. Shirdi Industries Ltd. after the start of commercial production by it. The appellant has been unable to show that the details given along with its letters related to subject goods. In any case, we find that the Authority verified the claim of M/s. Shirdi Industries Ltd. with reference to the DGCIS import data as is evident from paragraphs 16, 17 and 20 (E19) of the Findings. An extract of the findings is reproduced below:- "E.19Imports by Petitioner: (i) A number of parties have repeated their arguments with regard to imports made by one of the petitioner companies and therefore the issue has been reexamined. It is noted that a small volume of 43.06 CBM of the subject goods have been imported by one of the petitioner companies, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch was not provided to it and how that had the effect of disabling him in exercising its right of defence. 11. In so far as the appellant's contention that the duty imposed is in excess of the dumping margin, it is pertinent to state that the details of normal value, export price and dumping margin are disclosed only to the concerned exporters / producers and not to the importers. Since the appellant being an importer is not privy to this information, we are unable to understand the very basis for this contention. We also do not find any merit in the argument that the normal value for the residual category has not been correctly determined. In the findings, the normal value has been fixed by taking the weighted average normal value of co-operating exporters, for which information was available with the Authority. To treat it to be a fair estimate of the normal value of the remaining unknown / non-cooperating exporters / producers is not unreasonable, irrational or arbitrary from any possible angle. 12. The appellant has argued that the exports made by Robin Resources are liable to be excluded from the injury analysis as a negligible dumping margin has been found for this exporter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... margin of dumping would only increase after exclusion of imports from Robin Resources which would accentuate the extent of injury. Therefore, we do not agree that the exclusion of imports from Robin Resources would have altered the injury assessment to the advantage of the appellant. 14. As regards the return on investment adopted for the determination of NIP, we find that apart from being consistent with the practice followed by the Authority, it was based on a claim made by Domestic Industry. That claim was not controverted with evidence at any stage nor was there any ground/reason to suspect any manipulation on the part of Domestic Industry in that regard. In the case of Alkali Manufacturers Association of India Vs. Designated Authority (supra), CESTAT inter alia held as under:- "22.1It was also argued that the Designated authority has? erroneously taken 22% of the capital investment of the domestic industry as profit for working out the non-injurious price. It was clarified for the DA that this has been taken on the basis of the standard adopted, and same standard is adopted in all other cases. Nobody will invest money for manufacture if one does not get reasonable profit on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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