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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 ..... Order No. 50883-50887/2018 ORDER Per. B. Ravichandran These five appeals are against the impugned final finding dated 12/07/2017 of the Designated Authority (DA), Directorate General of Anti-Dumping and Allied Duties, Ministry of Commerce and Customs Notification No.43/2017 CUS-ADD dated 30.08.2017 issued by the Ministry of Finance. The final finding recommended and the customs Notification imposed definitive Anti-Dumping duty on Styrene Butadiene Rubber (SBR) of 1500 series and 1700 series originating in or exported from EU, Korea RP or Thailand. Three appeals (M/s Trinseo Europe GmbH, BST Elestomers Co. Ltd and M/s Automotive Time Manufacturers Association) are against the imposition of the said AD duty on the impugned goods. M/s Trinseo and M/s BST are producers/exporters of BSR. M/s ATMA are importers and users of BSR in India. Two more appeals (M/s Indian Synthetic Rubber Pvt Ltd (ISRPL) and M/s Reliance Industries Limited (RIL) are by domestic producers of BSR in India. They constitute domestic industry (DI). 2. Before proceeding with the merits of these appeals, the learned Counsel for the DI submitted that there was a delay of three days in filing their appeals and pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial retardation in the same investigation. The same is improper. 5. The learned Counsel further submitted that the parameters of Annexure-II para (ii) were incorrectly examined by the DA. The volume parameters were incorrectly applied. Sales of M/s ISRPL had increased substantially and this has not been considered. The determination of price suppression and price depression was completely erroneous. These are not due to dumped imports but are attributable to inferior quality goods. The selling price of the DI was not dictated by the landed price of the imports. When the landed price of imports increased by 13 points, the same for DI has increased only by 2 points during a particular quarter. Similar calculations can be made for various periods under investigation. 6. The learned Counsel also contested the finding on causal link between dumped imports and injury suffered by the DI. The conditions for such link are missing in the present investigation. The DA failed in proper analysis of material retardation. M/s RIL commenced production only from 30/09/2016 whereas the DA discussed about material retardation for 2014-15 to Post POI up to 31/03/2016. The performance of M/s RIL sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e injury to them is common in the sense that their survival and continued commercial existence is at stake. The learned Counsel for the DI distinguished the case laws relied upon by the above appellants regarding the scope of DI and different aspects of injury. When the DI constituted by nascent and early stage industry being set- up or just set-up in India, the injury analysis has to be accordingly modified. Specific reference was made to various categorical findings recorded by then DA in the final finding. 10. The learned Counsel for the DA, supporting the findings recorded by the DA, submitted that the appellants are trying to make a huge distinction between the material injury and material retardation ignoring the fact that the overall injury to the DI has different shades. He supported the findings of the DA which examined the nascent stage of development of the DI which require level playing field in view of the various economic parameters affecting them by the dumped imports of the impugned goods. 11. The learned AR for Revenue supported the customs notification and imposition of Anti-Dumping Duty on the impugned goods. 12. We have heard all the sides of the disputes rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... production in time line. Admittedly, both are engaged in the manufacture of the impugned goods which were being 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. We have closely examined the finding of DA in this regard. 13. Examining the volume effect of dumped imports on DI from the subject countries for the period from 2012-13 to POI, the DA concluded as below: "46. The analysis of the above indicates the following: * Imports from the subject countries have increased in absolute terms till 2014-15 and declined in POI because of commencement of the production by the petitioners. * Imports from the subject countries have remained significant in terms of total imports as well as in relation to consumption and production in India in spite of the sufficient capacity available with the petitioners. * Imports from the subject countries have remained significant and has prevented the domestic industry from increasing its production and sales. The imports have been significant enough to prevent Domestic Industries from selling the goods to an optional extent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysis of the DA. As already noted, it is not anybody's case that all units of DI should be in the same category either as fully manufacturing unit or all units yet to commence manufacture. There will be always a situation where one or more units have commenced commercial production and further some more units are being set up for such commercial production or in the early stage of commercial production. Such mix of units in DI cannot be the reason for not proceedings with the investigation to determine the possible dumping of goods in Indian market and the circumstances of such dumping for a finding for imposing AD duty. 16. While analyzing the above principle regarding material injury/material retardation, we have to determine the basic principle for AD investigation. The Hon'ble Supreme Court in M/s Reliance Industries Ltd (supra) observed as below: "33. The purpose of imposition of duty is both to redress injury and to prevent material retardation of the establishment or growth of that industry (vide Section 9-B (1) (b) (ii), Rules 11, 17 (a) (ii) and Annexure II). In the present case by fixing a NIP based upon specific advantages in the matter of electricity that the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further rapid industrialization in our country, to make India a modern, powerful, high industrialized nation." 17. Having examined closely the objections raised by the appellants and the analysis made by the DA, we are of the considered view that the economic parameters of nascent DI was examined in correct perspective to arrive at his findings. We find no legal or factual infirmity in his findings. We have also examined the case laws relied upon by the appellants. It is clear that the facts dealt with in the present case could not be compared to the issues detailed therein. As already noted, there are only two units in the DI in the present case and the status of the said units were examined in correct perspective by the DA. 18. Regarding the point raised by ATMA in their appeal for exclusion of two grades of SBR on the ground that the same are not made in India and are specifically for high speed tyres, we note that foreign manufacturers can manufacture SBR series 1500, 1700 interchangeable and, therefore, the DI can also manufacture. We note that SBR grades were characterized by the level of co-polymer and various physical attributes of manufacturing. The different grades are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng margin. It is prayed that the questionnaire response filed by LG Chem Ltd., Korea as interested party should be rejected as full factual particulars were not disclosed. 22. The learned Counsel for LG Chem Ltd., Korea opposed the above appeals by the DI. She submitted that all the relevant factors have been considered by the DA and as correctly analyzed in para 92 of the final findings due adjustment have been made by the DA while computing the dumping margin wherever required. 23. The learned Counsel for the DA opposing the appeal by DI submitted that LG Petro Chem India Pvt. Ltd. is a service provider to LG Chem Ltd., Korea who has manufacturing plant of polymers (non-PUC) in India with the name of LG Polymers India Pvt. Ltd., whose holding company is LG Chemical India P. Ltd. Explaining the analysis made by the DA on the factual inter- relationship between various group companies of LG Chem Ltd., Korea, the learned Counsel for DA submitted that there is no infirmity in the quantification of AD duty in respect of LG Chem Ltd., Korea. 24. Having heard all the sides, we have carefully perused the final findings on this dispute. We note LG Chem Ltd., Korea exported almost 98% d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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