9911796707
TMI Blog2003 (6) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ltd. the Indian Indenting Agent of M/s. Kumho filed an appeal against the imposition of duty before this Tribunal and that appeal was rejected by this Tribunal under its Order No. 22/2000-AD, dated 2-2-2000 [2000 (119) E.L.T. 157 (Tribunal)]. Appeal against this order of the Tribunal is pending in the Supreme Court. 1.1 Two years later in 1999, DA initiated a mid-term review of the duty imposed in 1997. Again, based on a petition by the Domestic Industry. However, this investigation was not completed. It was terminated at the request of domestic industry. Subsequently, in May 2000, the DA initiated a suo motu review proceeding. This proceeding led to the issue of final findings dated 20, July, 2000. This finding also confirmed the earlier finding of 1997 that there was dumping, inter alia, by Kumho and recommended continuation of anti-dumping duty. However, the amount of anti-dumping duty was reduced from US $ 264 PMT to US $ 248.35 PMT. The Ministry of Finance accepted the review findings and issued Notification No. 91/2001, dated 7-9-2001 imposing duty at the revised reduced rate recommended by the DA. 2. The present appeals have been filed against the Customs Notification an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the required information in the manner sought by the Designated Authority. It is mentioned that the appellant exporter furnished data for the financial year 1999, while the period of investigation was April, 1999 to March, 2000. Later on, when the data was furnished for the period January, 2000 to March, 2000 it was noted that the original data showed a lower raw-material cost of over 57 US $ PMT. The Designated Authority also has observed that the information is deficient in respect of items mentioned at page 85 of the Gazette Notification dated 20th July, 2001 (final finding). The final finding also points out that the allocation of Sales and General Administration Expenses (SGA), among various products, by the appellant is improper inasmuch as the allocation is made on volume basis and not on turn-over basis. It is the DA's finding that a volume based allocation of costs has given an entirely skewed picture of costing inasmuch as products like steam have a higher weightage in allocating of SGA than more valuable inputs. In view of the discrepancies and deficiencies in the informations furnished by the exporter, the D.A. fixed the normal value of NBR produced by M/s. Kumho by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been carried out and non-injurious price fixed after disallowing 55 percentage of the cost claimed by the domestic industry. It has also been emphasized that the DA has made injury analysis according to the relevant parameters mentioned in Annexure II to Anti-dumping Rules. 3.4 On the question whether the Korean exporter was a co-operating party, the DA's Counsel has pointed out that treating the appellant as a non-co-operating exporter was quite inevitable in the face of inadequate, contradictory and irrelevant and tangential data filed by them. He has pointed out that in the Original investigations of 1977, the period selected for investigation was October, 1994 to 31st March, 1995. Despite the period overlapping two calendar years, the appellant had filed data for the entire period of Investigations. However, quite inexplicably, in the present investigation, the exporter chose to furnish data in the questionnaire response for the calendar year 1999 while period of investigation was April, 1999 to March, 2000. And the explanation, that they keep accounts calendar yearwise. There is no evidence that the appellant changed their accounting year since 1997. Further, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted by the DA during hearing brings out differences and contradictions in data filed from time to time. Apart from this is the problem with the allocation of SGA. Allocation of SGA and interest on the basis of volumes of various products makes the whole cost of productions computation skewed. Particularly when steam constituted 77% of total production by volume. These problems and difficulties are difficult to cope with in an investigation involving two countries. Therefore, the Designated Authority resorted to relying partly on the data furnished by the appellants and partly on the data from other sources for determining normal value, thus, treating M/s. Kumho as a non-co-operating exporter. This cannot be faulted in the peculiar circumstances of the case. Annexure 1 to Anti-dumping Rules makes it clear that a normal value has to satisfy the requirement that the same is above cost of production. The relevant position reads as follows :- "1. The elements of costs referred to in the context of determination of normal value shall normally be determined on the basis of records kept by the exporter or producer under investigation, provided such records are in accordance with the gene ..... X X X X Extracts X X X X X X X X Extracts X X X X
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