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TMI Blog2005 (7) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner also decreased to 75.31% during the period of investigation. During the last five months period of investigation, the average sales realisation for the petitioner had drastically decreased. The average cost of production of the subject goods had substantially increased during the period of investigation. The increase in the sales realisation during the earlier period did not compensate the increase in cost of production during the same period over the previous year. During the period of investigation, the petitioner had incurred heavy losses from the subject goods. The closing stock of the domestic industry during the period of investigation increased by 351% over the previous year of 1999-2000. On consideration of the relevant factors, we are satisfied that the Designated Authority had rightly concluded that, the domestic industry had suffered material injury from the dumped imports, that the parameters cumulatively indicated that the petitioner had suffered material injury, and that the injury had been caused due to the dumped imports of the subject goods. The contentions raised on behalf of the appellants cannot, therefore, be accepted. We, accordingly, hold that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty was recommended against imports from European Union and Thailand. The Designated Authority recommended the reference price of US $ 1037 per MT for imports from these four countries subjected to the provisional anti-dumping duty. The appellants participated also in the public hearing held on 28-2-2002 by the Authority and filed their written submissions contesting the proposed imposition of anti-dumping duty on PIB imports from these countries. 4. The appellant, Lubrizol (India) Private Ltd. was authorized to make a joint representation for the oil industries including importers who had authorised it to represent them by letters issued on 12-8-2002. The appellant, Castrol India Pvt. Ltd had also issued similar authorisation on 12-8-2002 in favour of Lubrizol (India) Private Ltd. by a communication addressed to the Designated Authority. 5. The product involved is Poly-Iso-Butene (PIB) which is a synthetic hydrocarbon polymer manufactured by polymerization of C4 olefins stream consisting of mainly iso-butene. It has applications in various fields like lube oil additives, cable filling compounds, rubber modifiers, leather chemicals, oil insulators, adhesives, etc. It is classified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zol (India) Ltd. and Indian Additives Ltd. responded. 8.1 According to the petitioners, the imports of PIB from the subject countries had increased significantly in absolute terms, and the export price from the subject countries had significantly declined. The selling price of the domestic industry which was increasing till 2000-2001 reduced significantly in 2001-02. The increase in the selling price in 2000-2001 over 1999-2000 was much lower than the increase in the cost of production, resulting in significant financial losses to the domestic industry. It was alleged that the dumped imports caused severe price undercutting to the domestic industry in the market. Referring to the international tender quoted by the Indian Oil Corporation for procurement of the product at three places in India, namely Trombay, Chennai and Calcutta, it was alleged that the price quoted by the exporters in their tenders, could not permit recovery of even cost of production and the quotations by the exporters had resulted in severe price suppression/depression in the Indian Market. It was further stated that the domestic industry had been forced to reduce the prices below the cost of production as a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting company India (IOC). They also stated that a net loss of several crores (figure kept as confidential) against the total turnover was suffered by them in the financial year 2001-01 and that they were selling the subject goods below the cost of production, due to severe market pressures. 10. The Designated Authority on the basis of the views of Petitioners/exporters and other interested parties and on a detailed consideration of the contentions raised in the joint representation headed by Lubrizol (India) Pvt. Ltd., keeping in view all the relevant principles and factors required to be considered for making the determinations as regards the dumped imports and their causal link with the material injury suffered by the domestic industry, for the reasons detailed in the final findings, concluded that PIB originating in or exported from Brazil, Japan, Korea RP and Singapore, had been exported into India below normal value resulting in dumping; that the Indian Industry had suffered material injury on account of price under-cutting, price suppression and significant increase in the volume of dumped imports of PIB from these four countries; and that the injury was caused cumulatively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d clauses (ii), (iv) and (v) of Annexure II of the said Rules. The learned counsel argued that, comparison of dumped imports in absolute terms dropping in the period of investigation with the previous year was ignored, though required by rules. It was also contended that capacity utilisation was more than 100% in 1999-2000 and 2000-2001 as found in the published balance sheets given by the shareholders, but different figures were given to the Designated Authority who did not correct its earlier findings. It was then contended that the domestic prices were lowered due to fierce inter se competition between the domestic producers, as the IPCL lowered the prices and landed prices of imported goods were above the domestic selling prices at all times. It was submitted that there was no finding that the price under-cutting for the domestic producers was due to the dumped imports. The learned Counsel had initially argued that export price calculation for Japan and Singapore was wrongly made in the preliminary findings, but gave up that contention during the course of his arguments. It was submitted that the petitioner- company could not increase its prices to the level of the landed price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l court to be challenged, the Appellate Court has full jurisdiction to reverse or modify that order on any ground, which is open to it in law, even on a point of law taken by itself suo motu, without being asked to do so by the appellant. Arguments on behalf of the respondents : 12. The learned Counsel appearing for the respondent-Domestic Industry (Kothari) and the learned Counsel for the Designated Authority raised a preliminary objection that the appellants were not persons aggrieved, and therefore, the appeals were not maintainable at their instance under Section 9C of the Tariff Act. It was argued that the appellants not being importers during the period of investigation were not "interested parties" within the meaning of Rule 2(c) of the said Rules. It was submitted that an appeal under Section 9C could be filed only by those persons against whom a decision on determination has been pronounced depriving such person of something or wrongfully refusing such person something. It was submitted that only the domestic industry and/or exporter would have a right to file appeal against an order of determination made against it with reference to existence, degree and effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... new grounds. It will be noticed from the said judgment that this was the contention of the senior counsel reproduced in para 5 of the judgment. The Tribunal in para 7 holding that the objection raised on behalf of the appellants was beyond their competence, rejected the same. (C) Designated Authority v. Haldor Topsoe A/S reported in 2000 (120) E.L.T. 11 (S.C.), was cited for the proposition that when information was not furnished for no valid reason and the authority was compelled to rely on other material available to it and resort to the best judgment valuation, in such a situation the complaint of the respondent against the material relied upon by the authority cannot be countenanced (paragraph 19). Reasons : 13. A preliminary objection has been raised on behalf of the respondent-domestic industry and the Designated Authority against the maintainability of this appeal on the ground that the appellant was not a "person aggrieved", because during the period of investigation it had no imports. It was argued that a person does not get a right of appeal and is not even an interested party by virtue of any post-investigation imports. It was also submitted that for those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the inferior judicial or quasi judicial forums, in relation to appeals from their proceedings, are within the expression "person interested". A person whose interests are adversely affected by the decision from which an appeal lies has a standing, to challenge such decision. The expression "person aggrieved" is not confined only to persons who can establish that they have a legal interest at stake in the making of the decision - it would also cover a person who can show a grievance which will be suffered as a result of the decision complained of, because the decision directly affects the existing or future legal rights of such person. The decision may affect the person in the conduct of business or may affect his rights against third parties. In the present case, the rules recognize the importer as an interested party and since the appellant as a known importer, was allowed all through to participate in the anti-dumping duty proceedings, he would be entitled to file an appeal being a party aggrieved by the decision imposing the anti-dumping duty. 13.3 The expression "interested party" has an inclusive definition in Rule 2(c) and includes under sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir collective output of the said article did not constitute a major proportion of the total domestic production of the article. The contention is, however, raised now, in the context of definition of "domestic industry" in Rule 2(b) and Rule 11(2) as also clauses (ii), (iv) and (v) of annexure 2 to the Rules which are reproduced hereunder : 2(b) "domestic industry" means the domestic2(b) producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producer are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in which case (such producers may be deemed) not to form part of domestic industry. (emphasis added) 11."Determination of injury. - In(1) the case of imports from specified countries the Designated Authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the domestic industry. The demonstration of a casual relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of relevant evidence before the Designated Authority. The Designated Authority shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injury caused by these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and the productivity of the domestic industry." 15. Admittedly, the IPCL has supported the petition. IPCL supplied raw material to MPL and GPL who manufactured the subject product for it on job work basis. This borne out from paragraph 13 of the final findings in which it is held that M/s. Kochi Refineries Ltd. and IPCL have submitted their support to the petition for imposition of anti-dum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stry for captive consumption and therefore, "the petitioner who represents below 25% of the total production in India cannot be construed as "domestic industry". This contention was rejected as factually incorrect. In paragraph 13 of the final findings, the Designated Authority found that : "the petitioner accounts for more than 25% of the domestic production during the period of investigation of the subject goods in India. The argument of M/s. Daelim that the petitioner accounts for less than 25% of domestic production is factually incorrect. M/s. Kochi Refineries Ltd. and M/s. Indian Petrochemicals Corporation Ltd. (IPCL) have submitted their support to the petition for imposition of anti-dumping duty on the import of the subject goods from the subject countries. M/s. Kochi Refineries and M/s. Maharashtra Polybutene have even provided information relating to their cost of production. The Authority in the preliminary findings held that the petitioner fulfils the requisite criteria to represent the domestic industry, as required under Rule 5(a) and (b) and Rule 2(b)". Subsequent to the preliminary findings, MPL also provided information relating to cost ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, mean significant or important share. Such an interpretation is clearly permissible and going by it, the share of the petitioner in the total domestic production, being more than 31%, was undoubtedly a significant or important share i.e. a major proportion thereof. The words "major proportion of total domestic production" cannot be viewed from the angle of solving a mathematical sum involving comparative measurements or size of different parts of a whole. The phrase is used in the context of the production output of domestic producers and admits of a broad interpretation so as to take in its sweep collective output that constitutes a significant or important share of the total domestic production of the article by the producers engaged in the manufacture or engaged in any activity connected with the manufacture of such article, as contemplated by Rule 2(b). The contention raised for the appellant that there was no valid determination of injury under Rule 11(2) to the "domestic industry", as defined under Rule 2(b) of the said Rules, therefore, fails because : (i) the collective output of the petitioner and the GPL and MPL who manufactured the article on job ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the article in question was being dumped from the countries named in the final findings, as held by the Designated Authority in consonance with Rule 10 read with the principles laid down in Annexure I to the Rules, is not disputed. The appellants, however, have alleged in these appeals that the determination of injury in the final findings is flawed. 17.1 Under Rule 11(1), since the imports were admittedly from these specified countries, the Designated Authority was required to record a further finding that the imports of the article in India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. Rule 11(2) mandates the Designated Authority to take into account all relevant 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 the domestic producers of such articles and make the determination in accordance with the principles set out in Annexure II to the rules which are to be considered by the Designated Authority while determining the "injury" and causal link between dumped imports and su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tic industry than by increase in the undumped imports. 18.Much time was devoted by the learned Counsel for the appellants to demonstrate from a graph of price trends of PIB, that it was the IPCL dive in the price during the investigation period bringing it down to Rs. 35/- per Kg., which had forced the petitioner-Kothari to fix the price around Rs. 40-41/- per Kg. and not to raise it near about the level of the landed price of the dumped imports which was around Rs. 45/- to Rs. 50/- per Kg as per the graph. We pointed out to the learned Counsel that the graph which was on record did not show the non-injurious price line. The learned Counsel, therefore, prepared a fresh graph showing the non-injurious price (NIP) which was determined at Rs. 47.29 per Kg. This exercise brought down the contention earlier canvassed that anti-dumping duty ought not to have been imposed on Japan and Singapore, because it became clear that the dumped imports from these two countries were also below the NIP and were, therefore, injurious to the domestic industry. The learned Counsel, therefore, rightly bid adieu to the contention that no anti-dumping duty should have been imposed on the imports from thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibuting the depressed price of Rs 41/- per Kg. of the petitioner-Kothari which was much lower than the NIP of Rs. 47.29 per Kg., to any internal rivalry. In fact, what is relevant, is the consideration of the price at which the goods were dumped and whether that was injurious on the basis of the NIP, and not the internal differences below the NIP in the local prices of the like products. The IPCL, connected with the manufacture of the subject article through GPL and MPL on job work basis, had fully supported the petition and there was no reason for it to sell the product at a price lower than the NIP but for the landed price of the dumped imports being lower than the NIP. When the domestic producers were not in a position to meet with the demand for the product and there was enough market for their total domestic production, there was no need for any cut-throat internal competition or rivalry, which, in any event, was hardly relevant in view of the principles and factors, required to be considered for determining the injury and its impact. It is, therefore, rightly held by the Designated Authority that the dumped imports from the subject countries being below the NIP had resulted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignated Authority has rightly found that the total dumped imports had relatively increased by 13% during the period of investigation. The total production of the petitioner company of the subject goods during 1999-2000 was 6111 MTs which decreased to 5648 MTs during the period of investigation representing a decrease of about 7.58%. The total sales volume of the petitioner decreased by about 18.38%. The average capacity utilisation of the petitioner also decreased to 75.31% during the period of investigation. During the last five months' period of investigation, the average sales realisation for the petitioner had drastically decreased. The average cost of production of the subject goods had substantially increased during the period of investigation. The increase in the sales realisation during the earlier period did not compensate the increase in cost of production during the same period over the previous year. During the period of investigation, the petitioner had incurred heavy losses from the subject goods. The closing stock of the domestic industry during the period of investigation increased by 351% over the previous year of 1999-2000. On consideration of the relevant fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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