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TMI Blog2016 (10) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... AMAI) filed an application for imposition of Anti Dumping duty on caustic soda (subject goods) originating in or exported from China P.R. and Korea R. P. in accordance with the provisions of Customs Tariff Act, 1975. The Designated Authority (DA) proceeded to investigate the matter by issuing Notification dated 14.05.2002. The Period of Investigation (POI) was 01.04.2001 to 31.03.2002. After following the procedure set out in Customs Tariff (Identification, Assessment and Collection of Duty or Additional Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (AD Rules), the DA recommended AD duty on subject goods originating in or exported from the above said countries vide Final Finding dated 04.08.2003. Earlier, based on preliminary finding dated 21.09.2002 provisional AD duty was imposed vide Notification No. 142/2002-Cus. dated 26.12.2002. Based on Final Finding Customs Notification No. 142/2003-Cus dated 23.09.2003 was issued imposing definitive AD duty on the subject goods. 2. AMAI challenged the recommendation of the DA on the ground that he had not recommended AD duty on M/s Hanhwa Chemical Corporation. M/s National Aluminium Co. Limited (NALCO) and M/s Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Supreme Court set-aside the above mentioned order of the Tribunal and remanded the matter for a fresh decision. The Hon'ble Supreme Court directed the Tribunal to specifically examine the concept of "Equal Economic Importance" in a rational basis to decide the status of chlorine - whether a by-product or a co-product. The Tribunal has been directed to take into account the generally acceptable accounting principle and keep in view the statutory concept and commercial use "Equal Economic Importance" and determining the controversy. It will be permissible to look at any other material to determine the same. 5. In line with the directions of the Hon'ble Supreme Court as above, the matter was listed before this Tribunal and the submissions of all involved parties were heard elaborately. 6. Ms. Reena Khair, and Sh. Rajesh Sharma, Id. Counsels appearing on behalf of AMAI submitted that electrolysis of solt solution (brine) results in generation of three products simultaneously, namely caustic soda, chlorine gas and hydrogen. Chlorine gas cannot be stored or transported to long distance as it is a hazardous product. It should be consumed immediately for further process or con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or analysing the injury, the data is submitted only to highlight the treatment of chlorine as by-product by the said industry. 8. Ld. Counsels for AMAI sought to demonstrate by illustrative calculations as to how the treatment of chlorine as a by-product or co product will impact the quantification of injury and thereby AD duty leviable. To sum up it is the case of AMAI that chlorine cannot be considered as a co-product or product of "Equal Economic Importance" for the domestic industry in order to arrive at the NIP for domestic industry. 9. Sh. Sohail Nathani, Id. Counsel appearing on behalf of M/s Hindustan Lever Limited (HLL) submitted that the DA has erred in considering the chlorine as a by-product for domestic industry. The determination of "Equal Economic Importance" is to be done by taking into account (a) statutory concept, (b) commercial use and (c) any other material. In terms of 1967 Rules dealing with costing of caustic soda, only in cases where chlorine gas is not fully utilised for production of other products or for sale, the company instead allocating joint cost could credit the sales value of the quantities actually utilised. A reference was also made to Cost Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect link with the industry profile and the nature of usage of chlorine. The DA has examined the status of DI with reference to treatment of chlorine and correctly arrived at the decision considering chlorine as a by-product. There is no large scale integration of downstream manufacturing using chlorine in India. 13. Ld. AR supported the impugned customs Notification imposing AD duty on subject goods. 14. We have heard all the sides as above and perused the appeal records. We have also carefully examined the written submissions made by the parties. These appeals are considered afresh in line with the direction of the Hon'ble Supreme Court order dated 07.01.2016. The Hon'ble Supreme Court directed for a fresh consideration of the status of chlorine emerging during the manufacture of caustic soda. This is relevant to arrive at correct methods of costing having direct bearing on the NIP and thereafter on the AD duty. The central point of dispute is whether or not the chlorine emerging during the process of manufacture of subject goods has "Equal Economic Importance". In order to consider chlorine a joint product of the status equal to caustic soda we have to examine the guide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting in economic consumption of substantial quantum of chlorine in the DI has not reached a level which will make chlorine a product of "Equal Economic Importance" to the producer. This is mainly due to constraint in full usage of chlorine captively in the vinyl chain and the difficulty in storing and transporting the said product. It is also linked to the demand and capacity to obsorb the downstream products made by PVC etc. in the domestic economy. We note that various major units in DI, as submitted by the Id. Counsel for the DI, have been selling substantial portion of chlorine, not consuming the same for value added downstream products. Considering the constraints in storage and transport and also lack of integrated capacity to use, the realisation towards such sale only can be considered to fix the economic importance of chlorine. Based on the submissions made by the parties, admittedly, such realisation will not give chlorine the status of "Equal Economic Importance" when compared to the subject goods. Further, fluctuation in chlorine price even substantially increase during certain times do not make chlorine as a product of equal importance for DI. 16. We have perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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