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TMI Blog2017 (12) TMI 1113X X X X Extracts X X X X X X X X Extracts X X X X ..... he DI in terms of explanation (ii) of Rule 2 (b) of AD Rules - It is clear that the DA on careful consideration arrived at the conclusion that NPL was not to be considered as a related company of Solvay. It was further recorded that the provision of Companies Act or provision relating to special resolutions are not relevant for the present investigation. We are in agreement with the findings recorded by the DA. DA is well within his powers to consider the scope of DI who were importing or related to the exporters of subject goods. There is no legal sanction against considering such DI in the investigation. Sickness and mis-management of DI - Held that: - there is no bar in consideration of a sick unit as a DI. There is no evidence to support the contention of the appellants that the sickness or the deterioration of DI is caused by factors other than import of subject goods. The impact of import on the DI has been elaborately discussed by the DA on all aspects and we are not inclined to interfere with such findings in the absence of any specific contra evidence. The grievance of the appellant (NPL) as a DI on the calculation of net return/ adjusted return as made by the DA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Duty on Dumped Articles for Determination of Injury) Rules, 1995, the DA came to the conclusion that the subject goods have been exported to India from subject countries (other than Indonesia) below its normal value; the Domestic Industry has suffered material injury; and the injury has been caused by the dumped imports from subject countries. He accordingly recommended various rates of AD duty to be imposed on such imports. Accepting the recommendation the Customs Notification dated 14/06/2017 was issued. 3. Two appeals (AD/51592-51593/2017) have been filed by the exporters from Bangladesh, one appeal (AD/51515/2017) was filed by the exporter from Thailand and two more appeals (AD/50833/2017 and AD/50834/2017) were filed by the Domestic Industry. While the appellant/exporter sought reduction or setting aside the imposition of Anti Dumping Duty, the DI sought enhancement of the said duty. 4. The learned Counsel Shri Sanjeev Sachdeva appearing for exporter from Thailand (M/s Solvay Peroxythai Limited) submitted that the appellant could not participate in the investigations as they were having financial interest in NPL, during the period of investigation. However, later they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent has been double accounted resulting in error in factual appreciation of relevant date. 9. Countering the submissions of the exporter/appellant of subject goods from Bangladesh, the learned Counsel for DI submitted that the DI were not related to any exporter or importer in terms of explanation (ii) of Rule 2 (b) of the AD Rules. The foreign partner did not have a controlling interest in NPL. There was no Directors in the Board of NPL since 2006. Relying on various decisions of the Tribunal [ final order No.57057-57063/2017 dated 09/10/2017 in Reliance case , M/s Huawei Technologies Vs. DA 2016 (334) E.L.T. 339 (T) and M/s Merino Panel Products vs. DA 2016 (334) E.L.T. 552 (T)] it was submitted that the DA is correct in appreciating the scope of DI. 10. Ms. Reena Khair, learned Counsel appearing for the Domestic Industry submitted that they have filed two appeals contesting the quantum of AD duty recommended/imposed on the subject goods. Before proceeding with the appeal, she pleaded that there is a delay of 28 days in filing the appeals and prayed for condonation of the said delay. 11. Noting the contents of the miscellaneous petition for condonation of delay, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the appeal filed by the exporter from Thailand first. M/s Solvay were provided adequate opportunities to participate in the investigations even during the initiation stage itself. The appellant had chosen not to cooperate in the proceeding before the DA. Now in the present appeal for the first time the appellant is raising question regarding methodology adopted for determining the injury and dumping margin. We note that the appellant is a non-cooperative exporter. Rule 6 (8) of the AD Rules provides for the Designated Authority to record its finding on the basis of facts available to it and make such recommendations to the Central Government as it deemed fit under such circumstances. In this connection, we refer to the decision of Hon ble Supreme Court in Haldor Topsoe (supra), the Hon ble Supreme Court observed as below :- We also think that the respondent is not entitled to raise these objections about the comparable price of M/s Sud Chemie before us for the following further reasons. In the instant case, the entire exercise before the Authority would have been simplified if only the respondent had produced its export price of its catalyst to an appropriate third country ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustry may be construed as referring the rest of the producers. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall be deemed to comprise two or more competitive markets and the producers within each of such market a separate industry, if - (i) the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - For the purposes of this clause,- (i) producers shall be deemed to be related to exporters or importers only if,- a) one of them directly or indirectly controls the other; or b) both of them are directly or indirectly controlled by a third person; or c) together they directly or indirectly control a third person subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers. (ii) a producer shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NPL with exporter from Thailand is subject matter of dispute. NPL is a joint venture of M/s Bombay Dyeing and Manufacturing Company Limited and M/s Solvay SA which holds about 25.10% shares in NPL. The claim of the appellant is that Solvay SA is related to the DI in terms of explanation (ii) of Rule 2 (b) of AD Rules. We note that in spite of having share holding, M/s Solvay SA had no person in Board of Directors of NPL. During the relevant period M/s Solvay had not attended any of the meetings of Board of Directors or share holders. In May 2006 M/s Solvay SA intimated the termination of their relationship for contribution and only share holding continued. It is noted that no EGM has taken place in NPL and M/s Solvay SA has not participated in any of the AGM since 2013. 21. We have specifically referred to the findings recorded by the DA at para 14, 15 and 16 of final finding dated 11/04/2017. It is clear that the DA on careful consideration arrived at the conclusion that NPL was not to be considered as a related company of Solvay. It was further recorded that the provision of Companies Act or provision relating to special resolutions are not relevant for the present investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. We take up the appeals by the DI with reference to quantification of AD duty. The appellants are not pressing the points as originally raised in the appeal by HOCL. However, they pleaded that with reference to appeal by NPL, inadequate and incorrect return on capital employed has resulted in incorrect fixation of Anti Dumping duty. We have carefully considered the submissions of the appellant in this regard. As already noted there was a period of shut down of NPL. The DA as per the normal practice arrived at the optimum production which will address the issue of closure for part period, for computation of NIP. Apparently, the actual production is not taken into consideration. The optimum production is arrived at based on a notional or higher level of production during the last 4 years. Hence, the factor of shut down of NPL for a period loses its significance. We are also informed that the consistent practice is that once the notional /optimum production level is arrived at, the net return on capital employed is arrived at thereafter. We note that there is no mandate in the AD Rules to further adjust the notional return which was arrived at based on optimum utilization of capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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