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TMI Blog2023 (11) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... spectively w.e.f. 6-12-2021 and for refund of the excess/additional duty so collected on the import of 'colour coated aluminium coils' w.e.f. 6-12-2021. 2. It transpires from the records that Hindalco Industries Limited [Hindalco], which has been impleaded as respondent No. 3 in this appeal, had filed an application before the designated authority on behalf of the domestic industry under the provisions of the Customs Tariff Act, 1975 [the Tariff Act] and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and Determination of Injury) Rules, 1995 [the 1995 Rules] for initiation of anti-dumping investigation on the imports of certain flat rolled products of aluminium [the subject goods] originating in or exported from China PR [the subject country]. The investigation was initiated by the designated authority by a notification dated 8-9-2020 to determine the existence, degree and effect of the alleged dumping and to recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the injury to the domestic industry. The investigation was conducted for the period from 1-4-2019 to 31-3-2020 and the injury analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts, cash profits and return on capital employed. The domestic industry has suffered financial losses, cash losses and negative return on investments in the period of investigation. (c) The material injury suffered by the domestic industry has been caused by the dumped imports. M. RECOMMENDATION 128. The Authority notes that the investigation was initiated and notified to all the interested parties and adequate opportunity was given to the domestic industry, the exporters, the importers and the other interested parties to provide information on the aspects of the dumping, the injury and the causal link. Having initiated and conducted the investigation into dumping, injury and causal link in terms of the provisions laid down under the Rules, the Authority is of the view that imposition of anti-dumping duty is required to offset the dumping and the injury. Therefore, the Authority recommends imposition of the anti-dumping duty on the imports of subject goods originating in or exported from the subject country. 129. Having regard to the lesser duty rule followed by the Authority, the Authority recommends imposition of the anti-dumping duty equal to the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant also contends that colour coated aluminium coil was earlier excluded from the final findings notification dated 29-5-2009 issued in connection with the safeguard duty investigation against imports of aluminium flat rolled products and aluminium foil into India from China PR. The appellant also contends that colour coated aluminium coil was also excluded from the scope of product in the decision of the Tribunal rendered on 9-10-2017 in M/s. G.M. Alloys Pvt. Ltd. v. Union of India and Others [Anti-Dumping Appeal No. 51344 of 2017, decided on 9-10-2017]. 5. Based on these facts, Shri Pragyan Sharma, Learned Counsel for the appellant, made the following submissions : (i) The designated authority committed an error in including colour coated aluminium coils within the scope of the subject goods ignoring the fact that the domestic industry did not manufacture/produce colour coated aluminium coils in any commercial volumes nor they were sold in the market in commercial volumes and in fact the domestic industry does not even have the capacity/capability/own plant and equipment to manufacture it and the appellant had been importing it only for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t time in the disclosure statement, stated that the domestic industry has shown some sale invoices. In fact, the designated authority only in the final findings disclosed that the domestic industry has given evidence that it produces the product and engages job worker for merely applying the colour to the products based on customer specifications; (viii) The designated authority has relied upon certain material and facts, which facts did not form part of the disclosure statement and to which the appellant had no opportunity to respond; (ix) The findings of the designated authority are in violation of the 1995 Rules; and (x) The determination made in the present case is contrary to the past determination made by the designated authority. 6. Shri S. Seetharaman assisted by Shri Atul Sharma and Shri Darpan Bhuyan, Learned Counsel appearing for the Hindalco, which is the domestic industry, however, supported the final findings of the designated authority and made the following submissions : (i) Colour coated aluminium coil was produced and sold by the domestic industry during the period of investigation. Hindalc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Composite Panel sheets in India, and uses different types of colour coated coils as a raw material to manufacture the finish goods i.e. ACP. Thus, imposition of anti-dumping duty on colour coated coils would work to the prejudice of the appellant. The main contention urged by the Learned Counsel for the appellant is that the domestic industry produces only ACP stock, which is a raw material for the production of colour coated coil and the domestic industry does not produce colour coated coil. 10. It would, therefore, be useful to reproduce the paragraphs of disclosure statement of the designated authority that deal with product under consideration. 11. The key submissions made by the domestic industry have been recorded by the designated authority in the following manner : '5. The following are the key submissions made by the domestic industry with regard to the product under consideration and the like article : (a) The product under consideration is "Flat Rolled Products of Aluminium" (FRP). FRP is made in the form of Aluminium Rolled Coils, or Aluminium Rolled Sheets of various dimensions. FRP is made from primary or secondary aluminium which may un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ium coil should be excluded from the present investigation as well. (xiii) The domestic industry has not sold any colour coated coil to the consumers despite such a large demand in the country. This can be verified from the PCN-wise sales information that must have been provided by the present domestic industry." 13. The designated authority examined the matter in the following manner : "C.3 Examination by the Authority 7. Various interest parties have raised a number of issues with regard to the scope of the product under consideration in the present case. Interested parties have sought exclusion of certain products from the scope of the PUC on the grounds that the domestic industry is not capable of producing the product type or supply the product in the desired product type, or the quality of the product produced and supplied by the domestic industry is not satisfactory. The arguments of interested parties have been examined after calling relevant information from the parties and examined the same during the table verification and also taking into account the evidence submitted on record by the interested parties." 8. to 20. xx xx&nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e domestic industry has given the evidence that it produces the product and engages job workers for merely applying the colour to the products based on the customer specifications. Mere job working with respect to application colour/paint does not warrant exclusion of the product. The domestic industry does not part with title of the goods. In any event, the cost towards colour coating is not significant and, therefore, it will be incorrect to say that the domestic industry does not manufacture colour coated aluminium coil." 16. What needs to be noticed is that in the disclosure statement all that was recorded by the designated authority was that the domestic industry had supplied the product to various customers in the period of investigation, but in the final findings it has been recorded that the domestic industry has given evidence that it produces the product and engages job workers for merely applying the colour to the products based on customer specifications. 17. It needs to be noted that the Manual of Standard Operating Practices for Trade Remedy Investigations issued by the Directorate General of Trade Remedies, Department of Commerce, Government of India provides in Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be installed involving an expenditure of Rs. 100 crores. The process of converting ACP stock, which is a raw material for production of colour coated coil and which is produced by the domestic industry, to colour coated aluminium coils requires an elaborate process and not a simple colouring of the aluminium coil. The domestic industry did not provide any production quantity in regard to the colour coated coil nor the same have been examined by the designated authority in the final findings. There is nothing on the record which may indicate that the domestic industry is present in the market in any commercial way. It is only at the stage of rejoinder, a copy of which was not even made available to the appellant, that the domestic industry produced an invoice which led the designated authority to record a finding in the disclosure statement that the domestic industry supplied colour coated aluminium coil to various customers and despite specific comments having being filed by the appellant to the disclosure statement, a general statement has been made by the designated authority in the final findings. It was imperative for the domestic industry to have come out with specific de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported from China it would directly replace the domestic sales of bare ACP coils by the India FRP industry. In order to analyze the contention of domestic industry and interested parties a comparison have been made between imported colour coated coils and bare Aluminium coils of similar thickness which is manufactured by Hindalco. 63. As admitted by the "domestic industry" the aluminium coils manufactured by Hindalco are used as input in the manufacture of colour coated coil. The process of manufacturing of colour coated coil is quite elaborate and requires separate plant of high investment. The manufacturing process is not a minor process which does not change the physical or chemical characteristics. The coating is done by fluorine carbon (PVDF) or polyester (PE). In case of PVDF coating the aluminium coil is subjected to fluorine carbon resin, pigment, ester solvent, and after high temperature roasting and baking the paint is solidified with dry films with super weather resistance. The process is repeated 2-3 times for coating and baking. The colour coated coil so manufactured has anti-acid and anti-alkali properties. In contrast to that Aluminium coils are active to acid as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r imposition of anti-dumping duty. The relevant portions of the decision of the Tribunal are as follows : '5. The Learned Counsel appearing on behalf of the 5 appellants who are pleading for exclusion of colour coated aluminium foil from the scope of product under consideration, submitted that the DA did not record separate finding on the request made by the appellants for exclusion of colour coated aluminium foil from the scope of investigation and imposition of AD duty. The said colour coated aluminium foil is a basic and main raw material for manufacture of aluminium composite panel. The Learned Counsel submitted that though the appellants submitted elaborate details regarding non-availability or non-manufacture of colour coated aluminium foil by D.I., no specific finding was recorded by the DA. In fact, it would appear that, by error, the impugned final findings excluded aluminium composite panel from the scope of product under consideration instead of colour coated aluminium foil. The Learned Counsel submitted that the said colour coated aluminium foil was excluded from safeguard duty in 2009 and the same reason is valid even now. The Domestic Industry (DI) has no capacity t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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