2007 (6) TMI 326 - AT - Indian Laws

Tribunal Confirms No Dumping of Borax Decahydrate from Turkey; Validates Methodology, Upholds Duty Withdrawal.

The appellate tribunal upheld the designated authority's findings, concluding there was no dumping margin or likelihood of continued dumping for borax ... Withdrawing the Anti-dumping duty - ‘Borax decahydrate’ imported from Turkey - reduction in the normal value - CIF export price to India of the subject goods increased - landed value was higher than the reference price fixed - challenges the Notification dated 20-4-2006 issued by the Government of India and the Notification dated 3-2-2006 issued - Admittedly, the producer ETI Maden of Turkey did not export the product itself, but the product was exported from Turkey to India through Boro Chemi International Pvt. Ltd., Singapore - HELD THAT:- It has been clearly established that there was a negative dumping margin of 1.38% determined in the final findings of the designated authority. We are satisfied that the dumping margin has been worked out, by correctly applying the principles governing the determination of normal value, export price and the dumping margin, in Annexure-I to the said Rules. In this context, we may refer to the provisions of Rule 14, which contemplates termination of investigation immediately, if the designated authority determines that the margin of dumping is less than 2% of the export price under clause (c) of the said Rules. This clause reflects what is known as rule of de minimis. Therefore, upto 2%, the margin of dumping is to be ignored i.e. it will be taken as if there was no dumping margin for the purpose of the levy. In this context, an established negative margin of dumping of minus 1.38%, which was the figure given to us by both the sides as the correct figure, cannot be brushed aside or ignored. We therefore, find ourselves in agreement with the reasoning of the learned designated authority for concluding that there was no dumping margin for the subject goods established with regard to imports of Turkey and that there was no likelihood of continued dumping of the subject goods from Turkey. In fact, the designated authority had verified that the Indian importers had resold the imported goods at a significantly higher price than the price at which they were imported. The finding that there was no dumping was based on verification of the factual data relating to the period of investigation for the review. When the export price of the subject goods were significantly lower than the prices at which they were exported by the producer to other countries, and the importers in India had resold the product at a significantly higher price to the end users in India, it clearly showed that the Indian market was capable of absorbing the price, as rightly held by the learned designated authority. Thus, we do not find any warrant for interference with the impugned notification or the final findings, on any of the grounds urged on behalf of the appellant. The appeal is therefore, dismissed. Issues Involved:1. Challenge to Notifications withdrawing anti-dumping duty on borax decahydrate imports from Turkey.2. Validity of mid-term review initiation and methodology.3. Determination of 'normal value' and 'export price.'4. Examination of likelihood of continued dumping and injury.5. Appropriateness of deductions in determining export price.6. Validity of the methodology for calculating the dumping margin.7. Justification for the continuation or withdrawal of anti-dumping duty.Issue-wise Detailed Analysis:1. Challenge to Notifications Withdrawing Anti-Dumping Duty:The appellant domestic industry challenged the Notifications dated 20-4-2006 and 3-2-2006, which concluded that there was no dumping margin for borax decahydrate imports from Turkey and no likelihood of continued dumping, leading to the withdrawal of anti-dumping duty.2. Validity of Mid-Term Review Initiation and Methodology:The mid-term review was initiated following a request under Rule 23 of the Customs Tariff Rules, 1995. The designated authority concluded that the review was correctly initiated after considering objections from the domestic industry. The review covered the period from 1st January 2004 to 31st December 2004, with injury examination spanning from 2000-2001 to the end of the period of investigation (POI).3. Determination of 'Normal Value' and 'Export Price':The authority found that the domestic sales invoices of the subject goods in Turkey carried the invoice amount in U.S. Dollars based on the exchange rate of the sale date. The same methodology used in the initial imposition of duty was adopted for determining the domestic price. The export price was determined by deducting ocean freight, marine insurance, and other expenses from the final export price to arrive at the ex-factory export price. The authority concluded that the export price was correctly determined based on the material on record.4. Examination of Likelihood of Continued Dumping and Injury:The authority found that the applicants had significant exports to countries other than India and that domestic sales in Turkey remained high. The resale price in India was consistently higher than the landed price, indicating no likelihood of continued dumping. The authority concluded that the continued imposition of anti-dumping duty was not necessary.5. Appropriateness of Deductions in Determining Export Price:The authority found that Boro Chemi India was not involved in the sales or after-sales service of the product in India. The deductions for expenses incurred by Boro Chemi India, bank charges incurred by the Turkish producer, and the reasonable profit of Boro Chemi, Singapore, were correctly handled. The entire profit margin of Boro Chemi International, Singapore, was deducted to arrive at the ex-factory price.6. Validity of the Methodology for Calculating the Dumping Margin:The authority adopted the same methodology as in the original investigation, converting domestic sales transactions into U.S. Dollars based on the exchange rate on the sale date. The comparison between the normal value and export price was fair and justified. The authority concluded that the dumping margin was negative.7. Justification for the Continuation or Withdrawal of Anti-Dumping Duty:The authority concluded that there was no likelihood of recurrence of dumping, based on significant exports to other countries, high domestic sales in Turkey, and a negative dumping margin of -1.38%. The facts indicated that the Indian market could absorb higher prices, and there was no justification for continuing the anti-dumping duty.Conclusion:The appellate tribunal upheld the designated authority's findings and methodology, concluding that there was no dumping margin and no likelihood of continued dumping. The appeal was dismissed, and the withdrawal of anti-dumping duty on borax decahydrate imports from Turkey was deemed justified.