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TMI Blog2018 (3) TMI 779X X X X Extracts X X X X X X X X Extracts X X X X ..... ing imported by users in India. It is clear that while examining the impact of such imports on these DI, the DA has to apply specific economic criteria for a due conclusion. The DA, noting that the production, domestic sales and capacity utilization of DI had increased as these units commenced their production and accordingly there was an upward trend in domestic production and sales also recorded that the upward trend is not significant which can be construed as growth of DI. These three appellants have not made out any case against the final finding and the customs notification imposing AD duty on the impugned goods - appeals dismissed. - Anti Dumping Appeals No. 51809, 51811 and 51827-51829 of 2017 with COD Applications No. 50967-50968 of 2017 and Stay Applications No. 50962-50963 of 2017 - Final Order No. 50883-50887/2018 - Dated:- 12-3-2018 - Hon ble Shri Justice Dr. Satish Chandra, President, Hon ble Shri S.K. Mohanty, Member (Judicial) Hon ble And Shri B. Ravichandran, Member (Technical) S/Shri V. Lakshmi Kumaran, Dhruv Gupta, Darpan Bhuyan, Balbeer Singh, Shiraz Patodi, Divya Sharma, Myank Singhal, Ashish Chandra, Tarun Bhati, Ms. Tanvi Parveen, Rajesh Sharm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommenced production only in February, 2014. When M/s ISRPL was not fully established, the question of material injury to them due to import does not arise. c) Determination of M/s RIL as constituent of DI and thereafter determination of material retardation to M/s RIL is erroneous. Rule 2(b) of AD Rules only provides discretion to the DA to determine DI. Since M/s RIL had not commenced commercial production, the DA erred in including M/s RIL as DI. Even while deciding material retardation to M/s RIL, interested parties were not given an opportunity to submit their side of the case. d) The DA has not conducted a proper injury analysis for DI. Reference was made to the decision of Hon ble Supreme Court in M/s Reliance Industries (2006) 20 SCC 368. The injury analysis should be for the domestic industry as a whole. e) There is no volume/price injury to M/s ISRPL and M/s RIL. There is negative price under selling. During the period of investigation and the previous financial years the parameters are in favour of the DI. f) The DA should not have rejected the questionnaire response filed by M/s Trinseo. The DA has erroneously fixed residual dumping margin to M/s Trinseo. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent set of facts. The finding that M/s ISRPL suffered material injury and M/s RIL material retardation is anomalous. 8. The learned Counsel further submitted that product grades E-SBR 1739 and E-SBR 1789 are not manufactured by the DI. These products should have been excluded from the investigation. Further, the DA granted excessive confidentiality to DI with reference to actual figures of capacity, production, sales and capacity utilization. This has prejudiced the appellants in submitting their case. When there is no accepted legal principle to find-out material retardation, it is not clear what criteria has been followed by the DA for his findings. Reference was made to decided cases, namely, M/s Korea case under old GATT provisions and M/s US Steel case in WTO regarding analysis of injury. 9. The learned Counsel for the DI opposed the above three appeals. Regarding initiation of investigation, it is submitted that the guidelines available in Annexure-II to AD Rules are correctly followed. For examining material retardation only the perspective will change. The learned Counsel, with the help of invoices submitted that production and clearances made by both units of DI w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different connotation. We have examined the essential undisputed facts involved in the present investigation. It is clear that the DI need not be homogeneous either in their economic level or in production time line. It is nobody s case that the AD investigation can determine the existence of dumping calling for imposition of duty only based on existing and producing units of DI (material injury) and not based on impact on units yet to commence production (material retardation). It cannot be said that DI cannot contain units in various stages some with commercial production and some being set up. It is clear that during industrialization, different units are started for manufacture and they will be in different stages of establishment, production and volume of sales. The plea of the appellants that the principles for material injury are entirely different from the principles to determine material retardation, is not fully correct. Material injury is for existing unit, while retardation is an injury for a possible establishment of a new unit. In the present case, we have two units constituting DI and both are admittedly in a very nascent stage of viable commercial production and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of eligible domestic producers in accordance with the Rule 2 (b) of the AD Rules. The macro assessment of material injury done for Domestic Industry as a whole may contain variation in incidence of injury parameters for different domestic producers. A part of Domestic Industry may suffer various injury while another part may suffer price injury. An overall assessment of industry may suffer volume injury while another part may suffer price injury. An overall assessment of Domestic Industry as a whole cumulates and averages such impacts. While this happens for material injury assessment at parameter level, a similar phenomena can happen in terms of different injury forms to different parts of Domestic Industry. Thereafter it is likely that a producer which is part of Domestic Industry may face material injury while another may face material retardation. The Anti-Dumping Rules do not prevent simultaneous examination of both these forms. It cannot be held that the 3 forms of injury are mutually exclusive. The Authority holds that both ISRPL and RIL have made genuine commitment by setting up production facilities of SBR. Both are nascent and new industry as ISRPL started commercial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 47. Before parting with this case, we would like to state that our national aim must be to create India as a modern, highly industrialized, powerful State. The real world today is cruel and harsh. It respects power, not poverty or weakness, and power comes from a high level of industrialization. Hence, if we wish to get respect in the comity of nations, we must make India a modern, powerful, highly industrialized State. The truth is that today India is poor. As Rajni Palme Dutt wrote in his book India, India is a rich country with poor people. We are rich in raw materials, rich in industrial skills, we have outstanding scientists, engineers, technicians and managers. Despite all this we are a poor nation. Hence, if we want to command respect in the comity of nations, we must rapidly industrialize and make India a powerful modern, highly industrialized nation. It is industrialization alone which can generate the wealth which we require for the welfare of our people and for progress. Hence our national aim must be rapid industrialization as that is the solution to our co0untry s problems. Industrialization will also provide large-scale employment to our people, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation in such principles calling for intervention by the Tribunal. 20. In view of the above discussion and analysis, we are of the considered view that these three appellants have not made out any case against the final finding and the customs notification imposing AD duty on the impugned goods. Accordingly, these appeals are dismissed. 21. There are two appeals by the DI contesting the final finding and the customs notification mainly on the ground that individual dumping margin fixed for LG Chem Ltd., Korea is not correct and sustainable. The DI contested that the methodology adopted for determining non-injurious price is not correct and accordingly prayer was made for re-quantifying the injury margin and upward revision of anti dumping duty. The learned Counsel for the DI mainly submitted that M/s LG Chem Ltd., Korea did not disclose the essential facts to the DA during investigation. LG Chem Ltd. And LD Petro Chem India are involved in marketing and sale of subject goods in India. Therefore, the selling and general administrative expenses and profit of these two entities are required to be reduced from the CIF export price for arriving at ex-factory export price of the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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