2012 (10) TMI 918 - AT - Customs

Appeal Granted: Reduced Anti-Dumping Duty Reflects Fair Assessment Criteria

The Tribunal partially allowed the appeal by reducing the anti-dumping duty from US$ 55.61 to US$ 39.42 based on the revised calculation of the dumping ... Anti-Dumping Duty - Status of Domestic Industry - Appellant contended that they had concealed material information from the D.A. Even though they had stated that they had never imported the subject material from the subject country, they had actually imported the penultimate intermediate product namely Ceftriaxone Sodium (non-sterile) from there. They had also concealed their relationship with some of the Chinese exporters. The learned counsel for the appellants further states that for the purpose of injury analysis M/s. Orchid Chemicals has been wrongly excluded on the ground that it was a 100% EOU. Similarly, other domestic units have also been excluded from the consideration thereby restricting the domestic industry to comprise only the petitioners.Held that:- Domestic industry status granted by the D.A to the sole petitioner is justified. Market Economy Status - Appellant contended that one of the grounds taken by the D.A. that they are buying power from state controlled public utility is not a valid ground as the D.A. has taken no such objection in respect of some of the other anti-dumping cases. Market economy assessment is an overall assessment of the entity involved, covering several aspects and not an isolated examination of single parameter, which could give a decisive indication of the status of the entity. Held that:- Import prices at which the appellants are sourcing only about 5% of their raw material requirement internationally are quite low compared to the international import prices prevailing in India as per DGCIS data, which goes to indicate that the appellants are not operating in a Market Economy scenario. Determination of normal price - Held that:- Lower normal value calculated by the first method of construction adopting the average consumption norms of the cooperative exporters is required to be applied for the purpose of calculating the dumping margin and anti-dumping duty - Appeal is thus partly allowed by reducing the anti-dumping duty. Issues:Challenge to Final Findings and Notification imposing anti-dumping duty; Consideration of domestic industry; Denial of Market Economy Status; Excessive confidentiality in determining normal price.Analysis:The appellants contested the Final Findings and Notification imposing anti-dumping duty on Ceftriaxone Sodium sterile. The primary issues raised were the consideration of the domestic industry, denial of Market Economy Status, and excessive confidentiality in determining the normal price.The appellants argued that the domestic industry status was wrongly granted to a single petitioner, excluding other domestic producers and a 100% EOU. They claimed that the petitioner had concealed importing intermediate products and had relationships with Chinese exporters. However, the Designated Authority (D.A.) found that the petitioner produced a significant portion of the goods and did not import the subject goods, leading to the status being upheld.Regarding Market Economy Status denial, the appellants contended that the D.A. had not considered various aspects, such as procurement practices and pricing. The D.A. justified its decision by highlighting distortions in raw material costs and utility pricing in China, leading to the denial of Market Economy Status after a detailed assessment.The appellants also raised concerns about excessive confidentiality affecting their ability to challenge the anti-dumping margin. Upon review, it was found that the D.A. had adopted a method for constructing the normal value based on raw material import prices, leading to a higher anti-dumping duty. However, the Tribunal determined that the initial method of constructing normal value was more appropriate, resulting in a reduced anti-dumping duty for the appellants.In conclusion, the Tribunal partially allowed the appeal by reducing the anti-dumping duty from US$ 55.61 to US$ 39.42 based on the revised calculation of the dumping margin. The judgment emphasized fair assessment criteria, proper consideration of domestic industry dynamics, and transparent procedures in anti-dumping investigations.