2015 (12) TMI 243 - AT - Customs

Appeal Dismissed: Challenge to Customs Notification & MDF Imports Findings Rejected

The Tribunal dismissed the appeal challenging Notification No.116/2009-Cus and Final Findings on imports of Medium Density Fibreboard (MDF). The ... Levy of anti dumping duty - Interested party - right to participate in the proceedings - Held that:- Unless a party demonstrates to the Authority that it is an importer / exporter of the subject article, it does not acquire the right to participate in the proceedings as an interested party. In respect of exporters, who have not filed the response to the Exporter Questionnaire, the Authority has considered them to be non-cooperating. This principle would apply equally to the importers. It was, therefore, incumbent on the importer to establish that it was an interested party by furnishing the information as required in the importer questionnaire in the course of the investigations. Failure to do so would be fatal to its claim as an interested party. The appellant did not file any information before the Authority to demonstrate that it was an importer of the article under investigation and hence could not be treated as an interested party. Authority has extensively and analytically dealt with the issue and has correctly held that the imported product is in commercial competition with the domestic product and its import would cause injury to the Domestic Industry. Appellant came to know of the investigations and filed written submissions, which have been dealt with on merits in the Final Findings. On the contention relating to improper maintenance of Public File, while ld. Counsel for Designated Authority stated that there was no deficiency in the maintenance of Public File, we are surprised that the appellant did not raise any objection on this aspect immediately after it inspected the Public File for the first time. The appellant is also unable to give the dates on which it inspected the Public File. In these circumstances, we are of the view that the appellant has not been able to make even a prima facie case that the Public File was not properly maintained. As regards the appellant’s contention relating to excessive confidentiality, we find that no such grievance was raised before the Authority during the course of investigations. Even otherwise, the appellant has not been able to bring out the specific information which was not provided to it and how that had the effect of disabling him in exercising its right of defence. Exclusion of the imports from Robin Resources would not have any impact on the economic factors and indices mentioned in Para (iv) above. Further, as stated earlier, the magnitude of margin of dumping would only increase after exclusion of imports from Robin Resources which would accentuate the extent of injury. Therefore, we do not agree that the exclusion of imports from Robin Resources would have altered the injury assessment to the advantage of the appellant. As regards the return on investment adopted for the determination of NIP, we find that apart from being consistent with the practice followed by the Authority, it was based on a claim made by Domestic Industry. That claim was not controverted with evidence at any stage nor was there any ground/reason to suspect any manipulation on the part of Domestic Industry in that regard. - No merit in appeal - Decided against appellant. Issues Involved:1. Notification No.116/2009-Cus and Final Findings concerning imports of Medium Density Fibreboard (MDF).2. Non-compliance with Rule 6(2) of the Customs Tariff Rules by Designated Authority.3. Eligibility of M/s. Shirdi Industries Ltd. as part of Domestic Industry.4. Comparability of Domestic Industry's product with imported MDF.5. Appropriateness of import data considered by the Authority.6. Alleged procedural violations regarding non-confidential documents and excessive confidentiality.7. Duty imposed exceeding the dumping margin.8. Examination of other factors causing injury to Domestic Industry.9. Inclusion of undumped imports in injury analysis.10. Determination of Non-Injurious Price (NIP).Issue-wise Detailed Analysis:1. Notification No.116/2009-Cus and Final Findings concerning imports of Medium Density Fibreboard (MDF):The appeal was filed challenging the Notification No.116/2009-Cus and Final Findings regarding the imports of MDF from specific countries. The appellant contended that the Designated Authority (DA) failed to follow due process and did not comply with the relevant rules and regulations.2. Non-compliance with Rule 6(2) of the Customs Tariff Rules by Designated Authority:The appellant argued that the DA did not forward the notice of initiation to all interested parties, including the appellant, which was contrary to Rule 6(2). The DA was required to obtain the names of all importers to comply with the notice requirement. The Tribunal found that the appellant did not establish itself as an 'interested party' by failing to file an importer-questionnaire or demonstrate its status as an importer during the investigation period.3. Eligibility of M/s. Shirdi Industries Ltd. as part of Domestic Industry:The appellant contended that M/s. Shirdi Industries Ltd. should not be considered part of the Domestic Industry due to its imports of the subject goods. The Tribunal found that the imports by M/s. Shirdi Industries Ltd. were minimal and occurred before the investigation period. The DA verified the claims and concluded that M/s. Shirdi Industries Ltd. was rightly considered part of the Domestic Industry.4. Comparability of Domestic Industry's product with imported MDF:The appellant argued that the Domestic Industry's product was not comparable to imported MDF in terms of size, emissions, thickness, and applications. The Tribunal upheld the DA's detailed analysis that the Domestic Industry's product was comparable and substitutable for the imported product. The Tribunal referenced previous decisions to support the conclusion that differences in quality do not necessarily imply non-substitutability.5. Appropriateness of import data considered by the Authority:The appellant claimed that the import data included products other than MDF. The Tribunal found that the DA considered imports based on product description rather than tariff heading and used DGCIS data for the Final Findings, making the appellant's contention unsustainable.6. Alleged procedural violations regarding non-confidential documents and excessive confidentiality:The appellant contended that relevant non-confidential documents were not made available and excessive confidentiality was claimed by the Domestic Industry. The Tribunal found no merit in this argument, noting that the appellant did not raise such objections during the investigation and failed to demonstrate how the alleged lack of information affected its defense.7. Duty imposed exceeding the dumping margin:The appellant argued that the duty imposed exceeded the dumping margin. The Tribunal noted that details of normal value, export price, and dumping margin are disclosed only to exporters/producers, not importers. The Tribunal found no basis for the appellant's contention and upheld the DA's determination of normal value for non-cooperating exporters.8. Examination of other factors causing injury to Domestic Industry:The appellant claimed that the DA failed to examine other factors causing injury to the Domestic Industry. The Tribunal found that the DA examined the relevant factors listed under Annexure I to the Rules and that the appellant did not highlight any other unexamined factors.9. Inclusion of undumped imports in injury analysis:The appellant argued that undumped imports from Robin Resources should be excluded from the injury analysis. The Tribunal found that excluding these imports would reflect a higher injury to the Domestic Industry and that the DA's cumulative assessment was appropriate.10. Determination of Non-Injurious Price (NIP):The appellant contended that the NIP was determined considering an unjustified 22% return on capital employed. The Tribunal upheld the DA's determination, noting that the return on investment was consistent with the Authority's practice and was not contested with evidence by any party.Conclusion:The Tribunal dismissed the appeal, finding no merit in the appellant's arguments. The appeal and related applications were disposed of accordingly.