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TMI Blog2022 (5) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... e export price and the normal value. The export price means the price of the article exported from the exporting country. Normal value has been defined to mean the comparable prices for the like article when destined for consumption in the exporting country - Sub-section (5) of section 9A of the Tariff Act provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuance or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension. What also transpires from the final findings is that continued dumping by the subject countries in India has continued despite the imposition of anti-dumping duty. The designated authority, while examining the aspect of likelihood of injury , recorded a finding that likelihood or recurrence of injury to the domestic industry was not strong enough to warrant co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified to this extent. X X X X Extracts X X X X X X X X Extracts X X X X ..... Anti-Dumping Appeal No. 51868 of 2021 has been filed by the Tamil Nadu Spinning Mills Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 17 in Anti-Dumping Appeal No. 51490 of 2021. 6. Anti-Dumping Appeal No. 51869 of 2021 has been filed by Pallava Textiles Private Limited claiming itself to be an importer/user of the subject goods in India imported by the appellant through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 10 in Anti-Dumping Appeal No. 51490 of 2021. 7. Anti-Dumping Appeal No. 51872 of 2021 has been filed by PT Asia Pacific Rayon. It claims to be a producer and exporter of the product in Indonesia, for which product anti-dumping duty was recommended to be withdrawn by the designated authority in the final findings dated 31.07.2021. The prayer in the appeal is "to hold that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (b) The imports from subject countries are significant and adversely impacting the performance of the domestic industry, as import prices are below the Non-Injurious Price [NIP]; (c) There is a strong likelihood of continuation or recurrence of injury as about 68% of exports from China and 88% of exports from Indonesia to third countries are at injurious prices; (d) Based on the Report of Wood Mackenzie in the Red Book 2020, the surplus capacity available is 36% in China and based on Hawkins Wright September 2020 Report, the surplus capacity in Indonesia is 51%; (e) The domestic industry has provided adequate evidence of dumping, injury, causal link, likelihood of continuation or recurrence of dumping and injury, as was reasonably available to the domestic industry and thus discharged its obligations under section 9A (5) of the Tariff Act read with rule 23(1B) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [Anti-Dumping Rules]; 11. A notification dated 22.02.2021 was thereafter issued by the Ministry of Commerce & Industry initiating sunset review anti-dumping investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may also make its submissions relevant to the investigation in the form and manner prescribed within the time-limit set out below." 12. As the anti-dumping duty imposed by the notification dated 08.08.2016 was to come to an end on 07.08.2021 and the designated authority had not given the final findings, the Central Government, by a notification dated 30.06.2021, extended the imposition of anti-dumping duty upto 31.10.2021. 13. In terms of rule 6 of the Anti-Dumping Rules, all interested parties including foreign exporters and producers, were given opportunity to furnish information in the prescribed questionnaire format. The questionnaire called upon the exporters to provide not only company specific information, but also details of total China/Indonesia production, sales of other producers in the domestic market, total demand in China/Indonesia, other producer's exports to third countries, etc. As regards China, the designated authority sent the exporter questionnaires to twenty eight companies in China, out of which only one company, Sateri (Fujian) Fibre Co., Ltd. filed its questionnaire response. It was declared in the response, that Sateri Group consisted of five companies c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t continuation of duties beyond 11 years. The information on record shows that there are insignificant surplus capacities with the responding producers/exporters in subject countries. Imports from subject countries have reduced during the POI. Imports from subject countries are not undercutting the prices of domestic industry. The landed price of imports during the POI is significantly higher than the cost of sales, selling price and NIP of the domestic industry. Therefore, the imports cannot be said to be causing any price effect on the domestic industry." (emphasis supplied) 17. The interested parties, including the appellant filed their comments to the disclosure statement and, thereafter, the designated authority, in the final findings dated 31.07.2021, concluded that there was no justification for recommending continuation of anti-dumping duty. The conclusion is reproduced below: "M. Conclusion 154. Having regard to the contentions raised, information provided, submissions made and facts available before the Authority as recorded in these findings and on the basis of the determination of dumping and consequent injury to the domestic industry made hereinabove, the Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 43/2016-Customs (ADD) dated 8th August 2016 which was further extended vide Customs Notification No. 39/2021-Customs (ADD) dated 30th June 2021 till 31st October 2021." (emphasis supplied) 19. Thereafter, the Central Government issued a notification dated 12.08.2021 rescinding the notification dated 08.08.2016, which was last amended by notification dated 30.06.2021. The said notification dated 12.08.2021 is reproduced below: "G.S.R. 572(E).-In exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), the Central Government revokes the anti-dumping duty imposed on "Viscose Staple Fibre excluding Bamboo Fibre", falling under tariff item 5504 10 00 of the First Schedule to the said Act, originating in or exported from People's Republic of China and Indonesia, and imported into India and hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 43/2016-Customs (ADD) dated the 8th August, 2016, published in the Gazette of India. Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 777(E), dated the 8th August, 2016, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the designated authority notes that exports to third countries are at injurious prices, it fails to draw the obvious conclusion that on expiry of the duty, the imports are likely to come to India at third country export prices, which would result in significant injury to the domestic industry; (iv) The likelihood of diversion of exports from other markets to India is to be examined with reference to the price attractiveness of the Indian market. The export price to third countries are much lower than the export prices from the subject countries to India. Hence, on the expiry / revocation of the anti-dumping duty, the possibility of diversion of substantial quantities to India is extremely high. Thus, if anti-dumping duty is revoked, India becomes the most attractive destination for dumping, since India yields much better prices; (v) Likelihood of injury is also established from the fact that about 62% of the exports from China, and about 24% exports from Indonesia to India, are below the NIP of domestic industry. A significant quantity of exports made during the period of investigation are already at injurious prices. Despite noting this fact, the designated authority fails t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the likelihood analysis, the authority has reached erroneous conclusions; (ix) Based on the information furnished by Sateri Group in its exporter questionnaire response, the designated authority in the disclosure statement holds that there is significant surplus capacity available with the Sateri Group. After the issuance of disclosure statement, the designated authority appears to have collected fresh information from the Sateri Group, not shared with domestic industry, to conclude that there is no surplus capacity with the Sateri Group. The stage for collection and verification of information under rule 6 read with rule 8 is over prior to the issuance of disclosure statement under rule 16. The designated authority could not have accepted new evidence at the fag end of the investigations, that also without making available such evidence to opposing interested parties, for concluding that there is no surplus capacity available with the Sateri Group; (x) In the final findings, it is held by the designated authority that the capacity utilisation of the Sateri Group was low, as only the first line of production had started in December 2019, and the production stabilised in po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, having regard to the demand and consumption in India. Again the overwhelming bulk of the excess capacity will undoubtedly be dumped in India; (xiv) Instead of examining such relevant aspects, the designated authority observed that no producer can be expected to operate at 100% capacity. It has also accepted that the idle capacity for PT Asia Pacific Rayon is high due to the covid pandemic. The designated authority failed to consider that Covid Pandemic affected the production as well as the demand for the products. In a situation of declining demand, it was imperative for the designated authority to ascertain whether there were alternate markets for the products once the unit resumes operation at full capacity. The designated authority based its conclusions on extraneous factors, not relevant to the proceedings; (xv) In the course of the investigations, including up to the stage of issuance of the disclosure statement, the designated authority based its conclusions on the Hawkins Report and the Wood Mackenzie Red Book. These reports which were reliable in the disclosure statement became unreliable in the final findings, without assigning any reason for the same, though these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs as per remand directions of the Tribunal. The final findings issued post remand by the Tribunal confirmed the earlier final findings dated 17.05.2010, but no notification was issued by the Central Government accepting the recommendation dated 10.04.2012 of the designated authority; (iv) Power to extend period under section 9A(5) of the Tariff Act could only be exercised during the life of the duties. Gap in continuation of duty invalidated continuation of duty assuming that the earlier notification dated 26.07.2010 was valid till 25.07.2015, a hiatus was created in continuation of duties when the notification dated 06.08.2015 was issued, which extended the anti-dumping duty till 25.07.2016. In other words, there was no duty between 26.07.2015 and 05.08.2015. It is settled law that non-existent levy could not have been extended in the exercise of power under section 9A(5) of the Tariff Act; (v) The second extension of duties by notification dated 08.08.2016, for similar reasons, is bad in law as duties had lapsed on 25.07.2016. The earlier notification dated 06.08.2015 extended the duties till 25.07.2016 only. In other words, there was no duty between 26.07.2016 and 07.08.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence to demonstrate continuation or likelihood of injury vis- a-vis the product under consideration in the present investigation i.e., grey VSF. All the documents presented by them were for a vast variety of products and did not contain exclusive information with respect to the product under consideration. Further, no effort was made by the appellant to ever justify that the information relating to VSF as a whole can be taken for making an objective examination of the product under consideration, which was only one of the types of VSF; and (xvii) In any case, the evidence and arguments presented by the domestic industry were only with respect to the capacities in China. The only argument advanced by the appellant was that the capacity of one producer in China cannot be equated with the total capacity of production under consideration in China. In other words, no argument was made by the appellant to establish any factor of likelihood of injury against the imports from Indonesia. Thus, as far as Indonesia is concerned, the appellant failed to submit any evidence establishing the likelihood of injury. 22. Shri Bhargav Mansatta, learned counsel appearing for respondent nos. 3, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies containing factual and legal basis for recommending discontinuation of anti-dumping duty; (v) The final findings note that in absence of guidelines under Anti-Dumping Rules regarding likelihood analysis to be conducted in a sunset review, Annexure II, paragraph (vii) of the Anti-Dumping Rules should be applicable for conducting likelihood analysis. The final findings issued by the designated authority analysed all the criteria mentioned in Annexure II, paragraph (vii) of the Anti-Dumping Rules and also other relevant factual information for examining likelihood of injury; (vi) Various interested parties participating in the investigation raised concerns regarding the authenticity of Hawkins Wright Report provided by the applicant for the purpose of likelihood analysis. Since there are only three producers of subject goods in Indonesia namely (i) PT Asia Pacific Rayon (ii) PT South Pacific Viscose & (iii) PT Indo Bharat Rayon and all these three producers had participated and provided relevant information in the subject investigation, the designated authority deemed it appropriate to rely on information provided by the participating producers rather than on the above-mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of such duty is likely to lead to continuance or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension. The provisions of sub-section (5) of section 9A of the Tariff Act are reproduced below: "9A(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year." 28. Rule 23 of the Ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules." 30. Rule 11(2) refers to the principles set out in Annexure II to the Anti-Dumping Rules which deal with the principles for determination of injury and the relevant portion of the said Annexure is reproduced below: Principles for determination of injury "The designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, hereinafter referred to as "injury" and causal link between dumped imports and such injury, shall inter alia, take following principles under consideration - (i) xxxxxxxxx (ii) While examining the volume of dumped imports, the said authority shall consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative to production or consumption in India. With regard to the affect of the dumped imports on prices as referred to in sub-rule (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and to the extent necessary to counteract dumping which is causing injury. 11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately." "11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti-dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion which had filed an application seeking initiation of the sunset review investigation stating clearly that Grasim Industries, which was the domestic industry, was the only producer of the subject goods in India. It was further stated that the applicant considers that the cessation of the present anti-dumping duty was likely to lead to continuation of dumping and injury to the domestic industry. It was also stated in the application that Grasim Industries had provided the required information and should be considered as the domestic industry. It was on the basis of this duly substantiated application that a sunset review investigation was initiated by notification dated 22.02.2021. The designated authority, in its final findings dated 31.07.2021, recommended withdrawal of anti-dumping duty earlier imposed by the notification dated 08.07.2016. Paragraph 1 of the Memo of Appeal mentions that the appeal was being filed against the final findings of the designated authority as also the notification issued by the Central Government not recommending extension of anti-dumping duty. The vakalatnama has been signed by Mr. S.P. Katnauria Secretary General of Association of Man-made Fibre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and the same has been in force for more than ten years and, therefore, in the absence of special circumstances, the appellant cannot seek continuance of anti-dumping duty for another period of five years. 37. It is not possible to accept this contention advanced on behalf of respondent no's. 3, 5 & 8. Neither article 11.3 of the 1994 Agreement nor section 9A(5) of the Tariff Act require any existence of special circumstances for extension of anti-dumping duty beyond a period of five years. The pre-requisites for every extension of duty, whether for five years or upto five years, are the same and they are that there should be a likelihood of continuation or recurrence of dumping and injury. 38. Shri Jitendra Singh learned counsel for the respondent also submitted that Anti-Dumping Appeal No. 50571 of 2022 has been filed by respondent no. 6-PT South Pacific Viscose, Indonesia to assail the final findings dated 08.07.2016 of the designated authority and the notification dated 08.08.2016 issued by the Central Government imposing anti-dumping duty and so this appeal should be decided before these appeals are decided. This contention requires no determination as the said Appeal No. 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government thereafter issued a notification dated 12.08.2021 rescinding the earlier notification dated 08.08.2016, which had imposed anti-dumping duty. 43. It has, therefore, to be examined whether the likelihood of continuation or recurrence of injury would warrant continuation of anti-dumping duty for a further period of five years. 44. In regard to the likelihood of continuation or recurrence of injury, the designated authority noted the four factors contained in clause (vii) of Annexure II of the Anti-Dumping Rules, as also other relevant factors that could have a bearing on the likelihood of continuation or recurrence of dumping and its consequent injury to the domestic industry. In this connection, it examined the import of subject goods from subject countries, the surplus capacities available with the Sateri Group and PT South Pacific Viscose, Indonesia. It noted that the though Sateri Group had surplus capacities available with it, but the capacity during the period of investigation was low because the first line of production started during December 2019 and the second line of production began in April 2020. It, therefore, observed that there was no surplus capacity with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. 48. Learned counsel appearing for the respondents have refuted the aforesaid submissions advanced on behalf of the appellant and it has been submitted that the designated authority, after a careful consideration of the materials on record, recommended withdrawal of anti-dumping duty on import of subject goods from the subject countries. The contention of the learned counsel for the respondent is that all the appropriate factors mentioned in paragraph (vii) of Annexure II of the Anti-Dumping Rules have been analysed in the final findings of the designated authority. 49. Paragraph (vii) of Annexure II reads as follows: "(vii) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the designated authority shall consider, inter alia, such factors as: (a) a significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umping will recur. With respect to the injury determination, if the anti-dumping duty has had the desired effect, the condition of the domestic industry would be expected to have improved during the period the anti-dumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers. Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted. 14. Sunset review entails a likelihood determination in which present levels of dumping is obviously not so relevant as is the likelihood of continuance or recurrence of dumping. Moreover, during the investigation period, the anti-dumping duty would be in force and hence, the current level of dumping may be non-existent or minimal. The exporters under investigation may also sell at a non-dumped price during this period knowing fully well that a sunset review would be in progress. Hence, the criteria under Section 9A(1) that the anti-dumping duty should not exceed the dumping margin would have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew is undertaken for the purpose of not for imposition of anti-dumping duty but to see whether the revocation of such anti-dumping duty, dumping would increase and whether the domestic industry will suffer." (emphasis supplied) 56. In Borax Morarji Limited vs. Designated Authority [2007 (215) E.L.T. 33 (Tri. - Del.), CESTAT], the Tribunal noted that: "10. With respect to the injury determination, if the anti-dumping duty had the desired effect, the condition of the domestic industry would be expected to have improved during the period the antidumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers. Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted." 57. The Tribunal in M/s SI Group India Private Limited vs. Designated Authority and The Union of India [Anti-Dumping Appeal No. 50430 of 2019 decided on 28.11.2019] also observed as follows: "12. Thus, the object and purpose of the sunset review as explained in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y lead to continuation or recurrence of dumping and injury to the domestic industry. It also provides that rule 11 of the Anti-Dumping Rules would also be applicable to sunset reviews and rule 11 of the Anti-Dumping Rules requires the designated authority to determine threat of injury to the domestic industry taking into account all relevant facts in accordance with the principles set out in Annexure II of the Rules. Clause (vii) of Annexure II provides that a determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility and that the change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. This has also been provided in the 1994 Agreement. It, therefore, follows that under the aforesaid statutory scheme, the designated authority is mandated to undertake a rigorous examination of all the following three factors before deciding to continue the anti-dumping duty: (i) There is a 'duly substantiated request' made by the domestic industry which implies that the domestic industry has to provide cogent evidence to substantiate its claim; (ii ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity itself found that 55-65 percent of the exports to third countries by the participating producer/exporter from China PR are at prices below the export price to India and in the case of Indonesia 65-75 percent of exports to third countries by PT Asia Pacific Rayon are at prices below the export prices to India and 85-95 percent of exports to third countries by PT South Pacific Viscose are at prices below the export price to India. It is for this reason that the learned senior counsel submitted that since the export price to third countries are much lower than the export prices from the subject countries to India, there is a good possibility of diversion of substantial quantities to India on expiry of the anti-dumping duty. Thus, if the anti-dumping duty, according to the learned senior counsel, is revoked India would become the most attractive destination for dumping since it would be offering much better prices. The Table contained in the final findings, on which reliance has been placed, is reproduced below: "131. Information with respect to price attractiveness in case of responding producers is given below: Particulars Total Exports to third countries (MT) Exports to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that continued dumping by the subject countries in India has continued despite the imposition of anti-dumping duty. The designated authority, while examining the aspect of 'likelihood of injury', recorded a finding that likelihood or recurrence of injury to the domestic industry was not 'strong enough to warrant continuation of duties beyond 11 years'. The designated authority further held that 'there are in insignificant surplus capacities with the responding producers/exporters in the subject countries, which can be used to increase their exports to India in event of revocation of duty. What was required to be examined by the designated authority was whether withdrawal of anti-dumping duty would lead to continuance or recurrence of dumping as well as injury to the domestic industry. Mere continued levy of anti-dumping duty for 11 years cannot be made a ground to conclude that there is no requirement to continue anti-dumping duty. 64. This apart, the level of future imports cannot be evaluated by taking into consideration only the surplus capacity of the producers who have exported goods during period of investigation or those who have participated in the investigations. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the subject countries will further intensify." 66. The findings recorded in the earlier sunset review assume importance unless it is demonstrated, as a fact, that the surplus capacity in China has reduced sufficiently, more particularly when the data furnished by the Sateri group is not representative of China as a whole. In fact it has been pointed is that the capacities available with the Sateri group alone are nearly 4.90 times of the total demand in India for the subject goods. The Indian market will, therefore, become very attractive for this group, in case of cessation of anti-dumping duty. 67. The designated authority had, in this connection, relied upon the Hawkins Report and the Wood Mackenzie Red Book in the disclosure statement, but has discarded them in the final findings without assigning any good reason and relied solely on the data of the participating producers. 68. The contention of learned counsel for the respondent is that the Hawkins Report and the Wood Mackenzie Red Book cannot be taken into consideration as they have not been disclosed to the interested parties. 69. This report was relied upon by the appellant to substantiate that there existed unutiliz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd producers. The claim made by the domestic industry based on these reports could have been rebutted by the exporters by providing evidence regarding the actual capacity in the subject countries. In fact the exporters questionnaire part-II requires the participating exporters and producers to not only provide information relating to their own production and sales but also of other producers in domestic market. However, the foreign exporters failed to provide such information. 74. The designated authority, therefore, completely mis-directed itself in restricting the surplus capacity of the producers to those who had exported the goods during the period of investigation instead of examining the capacity of both China and Indonesia as a whole. 75. Learned authorised representative for the Department has, however, placed reliance upon the decision of the Delhi High Court in Eveready Industries India Ltd. to contend that the Tribunal should refrain from deciding the correctness of the final findings of the designated authority. 76. This decision would not come to the aid of the respondent for the reason that the High Court had, in a Writ Petition under article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he scope of the product under consideration in a sunset review. No prejudice can be said to have been caused to the foreign exporters if the product under consideration is restricted in a sunset review and in fact the foreign exporters would benefit if the anti-dumping duty is not levied on the products excluded from the scope of the product under consideration. The designated authority in the final findings had rejected this contention of the respondents and the observations are as follows: "14........ In the application for current sunset review investigation, the applicant requested Authority to exclude Modal Fibre, Non-Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre. The exclusion request was accepted by the Authority at the time of the initiation of the investigation and accordingly the scope of the product under consideration was restricted/ narrowed down. The Authority notes that there is no bar either under the Act or under the Rules on narrowing down the scope of product under consideration in a sunset review particularly when the domestic industry has itself requested for narrowing down the scope of prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g injury. Ordinary meaning of the word extent is "point, degree, or limit" and the meaning of the term necessary is "needed to be done, achieved, or present; essential." Thereby Rule 23(1) provides for a limitation on the Authority while carrying out a Sunset Review Investigation under Rule 23(1B) that an extension of the duty/imposition of duty is an exceptional circumstance and this extension can only be done to the extent necessary to counteract dumping causing injury. In consonance with the above Rules and as per the request made by applicant to exclude Modal Fibre, Non- Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre, the Authority has considered the request particularly when the applicant itself is not interested in extension of duty on the above product types which were earlier within the scope of the product under consideration. Therefore, by applying Article 11.1 which sets a guiding principle for review investigations and Rule 23(1), which is verbatim Article 11.1 for the Indian Review Investigations, the Authority has restricted the product scope applying the principle "to the extent necessary" as e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry have been disregarded. 86. This submission cannot be accepted. The findings recorded by the Competition Commission of India would have no relevance when the designated authority proceeds to take a decision in the context of imposition of anti-dumping duty for the reason that the Tariff Act and the Competition Act, 2002 operate in different fields. This apart, the period examined by the Competition Commission for determining anti-competitive behavior was upto financial year 2016-17, whereas the injury period in the sunset review was for 2017-18, 2018-19, 2019-20 and 01.10.2019 to 30.09.2020. This issue has also been correctly appreciated by the designated authority in its final findings and the relevant portion is reproduced below: "34. Interested parties have referred to the decision of the CCI. It is noted that CCI decision has been challenged by the domestic industry before Appellate Court and the matter is sub-judice and has not yet attained any finality. Moreover, if there are any contraventions of the provisions of Competition Act, it is for the concerned authority to take appropriate action thereon. Any decision in that matter would not prejudice objective examination ..... X X X X Extracts X X X X X X X X Extracts X X X X
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