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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 ..... file any information before the Authority to demonstrate that it was an importer of the article under investigation and hence could not be treated as an interested party. Authority has extensively and analytically dealt with the issue and has correctly held that the imported product is in commercial competition with the domestic product and its import would cause injury to the Domestic Industry. Appellant came to know of the investigations and filed written submissions, which have been dealt with on merits in the Final Findings. On the contention relating to improper maintenance of Public File, while ld. Counsel for Designated Authority stated that there was no deficiency in the maintenance of Public File, we are surprised that the appellant did not raise any objection on this aspect immediately after it inspected the Public File for the first time. The appellant is also unable to give the dates on which it inspected the Public File. In these circumstances, we are of the view that the appellant has not been able to make even a prima facie case that the Public File was not properly maintained. As regards the appellant’s contention relating to excessive confidentiality, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 article in terms of size, level of emissions, thickness and applications. MDF of smaller sizes are made in India and they cannot substitute for the imported panels of large size; Domestic Industry does not have the capability to make MDF of E0 emission level whereas imported MDF can be without emissions; indigenous MDF is not suitable for Low Pressure Melamine Applications; Domestic Industry does not make MDF below 8mm width. Since, these types/grades o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter 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 countries during the period of investigation. The right of participation in the investigations is confined to the interested parties and the appellant was not entitled to the disclosure statement. (ii) In terms of Rule 5 of the Rules, the adequacy and accuracy of the evidence provided in the application is to be seen with reference to dumping, injury and causal link. The initiation cannot be termed bad merely because the list of 'known importers' given in the petition does not cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ] 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 duties levied are in excess of dumping margin. The appellant not being an exporter has no locus to raise this ground. (ix) It was also submitted that variable/bench mark duties are consistent with the Anti-Dumping Rules and refund mechanism under Section 9AA of Customs Tariff Act, 1975 can be invoked for cases where duties levied may exceed the dumping margin. Reliance was placed on the WTO Panel Report ' Argentina ' Definitive Anti-Dumping Duties on the Poultry from Brazil. (x) An importer is not competent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 the importer questionnaire in the course of the investigations. Failure to do so would be fatal to its claim as an interested party. The appellant did not file any information before the Authority to demonstrate that it was an importer of the article under investigation and hence could not be treated as an interested party. 7. We find that the appellant filed only two letters dated 19.09.2008 and 28.02.2009 before the Designated Authority. The main thrust of its argument is that the imported product cannot be substituted by indigenous product havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the 'like article' without taking into consideration of the quality difference in between the article manufactured by the Domestic Industry and the article exported into India. The plea of the appellants' counsel is not convincing since he did not adduce any evidence/technical literature with reference to process of manufacture to show that product manufactured by the domestic manufacturers was different from the goods exported into India. He failed to substantiate that they are not similar and interchangeable except stating that they were different grades. Differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 various other types of MDF imported in India. The claim made by various interested parties seeking exclusion of MDF manufactured from tropical hardwood is not sustainable as the end product in either case is MDF and is a like article to the one produced and marketed by the Domestic Industry. The imported Plain MDF Board can be substituted by the one manufactured by the Domestic Industry and has therefore correctly being included within the scope of product under consideration. (ii) Manufacturing process - All interested parties agree that Medium Density Fibre can be produced through following two processes: (a) Continuous P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 Density * Surface Soundness * Formaldehyde Emissions * Dimensional Stability (i) The Domestic Industry stated that core density, surface density and surface soundness are linked to/related to density of board and are therefore gets addressed by density prescribed under BIS standards. Dimensional stability has not been argued as a critical parameter by any interested party, nor has any interested party claimed differences between the imported and domestic product on the basis of dimensional stability. (j) The interested parties have argued that the domestic product is not a like article to the imported product in terms of difference in emission standards. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 switch over to imported low emission MDF, if such imported product be cheaper than domestic product. In any case, there is significant overlap between the two types and even though there may not be complete interchange-ability, it is undisputed that the product involved is interchangeable. (iii) Large Size Panels: The responding exporters as well as other interested parties have claimed that the Domestic Industry do not manufacture MDF Board exceeding sizes 1220x2440 MM (4-x8-). The Domestic Industry has claimed that they are capable to manufacture large size panels. On analysis of data received from DGCI&S, it has been observed that large 31 size panels exceeding the size 1220x2440 MM (4-x8-) eithe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stries 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, which has set up a new plant during the Period of Investigation for production of the subject goods, which has been far less than 1% of the total sales of the Domestic Industry. The Authority has noted that it would not be appropriate to exclude M/s. Shirdi Industries Ltd. from the scope of Domestic Industry. As regards mis-declaration before initiation, the Authority has noted that the facts on record and circumstances of the present case have not shown a situation that the petitioner deliberately & consciously resorted to mis-declaration, particularly when the volume of imports has been so low and petitioner was 26 likely to succeed in its claim for consideration as eligible Domestic Industry in view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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. The appellant is unable to demonstrate what impact the exclusion of such imports would have on the injury analysis. Further exclusion of exports from Robin Resources would amount to exclusion of the higher priced imports from Malaysia, which would reflect a higher and not a lower injury to the Domestic Industry on price front. Thus, non-exclusion of exports of Robin Resources in any case has not prejudiced the appellant in that regard. 13. As regards the volume effect, we find that Annexure-II to the Rules read with Rule 14, makes it clear that the volume effect is to be examined in respect of a country, after cumulative assessment of imports and not for an individual exporter. An extract of the relevant p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 capital investment. No evidence was produced that margin of profit is unreasonable. Therefore, profit taken is reasonable." We, therefore, are not inclined to interfere with the Authoritys findings on this account. 15. On the contention that the import data considered in the petition includes non-subject goods, we find that in the petition it is specifically clarified that imports have been selected based on description and not tariff heading. Further, the Final Findings are based on DGCIS data and not merely on the information filed in the petition. Thus, this contention is not sustainable. 16. The contention that the Authority has failed to examine factors, other than the imports, which may be causing injury to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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