2016 (10) TMI 640 - AT - Customs

Tribunal upholds Anti-Dumping duty, dismisses appeals on Domestic Industry injury, NIP calculation, and goods comparison.

BASF Petronas Chemicals, Petronas Chemicals Mktg. and Petronas Chemicals Derivatives Versus UOI/DA

The Tribunal dismissed the appeals challenging the imposition of Anti-Dumping (AD) duty on subject goods, finding no justification to interfere with the ... Imposition of ADD - Butanol - imported from European Union (EU), Malaysia, Singapore, South Africa and USA - the injury suffered by the DI is not on account of dumped imports but was on account of other factors like long closure of unit due to non-availability of main raw materials, etc - the cost of construction to arrive at the NIP was not disclosed to the appellants to make fair defence - Held that: - the Domestic Industry suffered production loss due to disruption in raw materials supplied by HPCL. It is also a fact noted by the DA that the DI curtailed production due to un-remunerative price of its product. It is not a situation where entirety of production loss was due to raw material non-availability. There is no substance in the plea made by the appellants regarding improper comparison of subject goods due to nature of trade (bulk or non-bulk) as explained by the Counsel for the DA and the Advisor to the DA. The comparison has been kept to similar items as per the data submitted during investigation. No contrary evidences have been submitted. ADD rightly imposed - appeal dismissed - decided against appellant. Issues:Challenging imposition of Anti-Dumping (AD) duty on subject goods; Allegation of injury to Domestic Industry due to factors other than dumped imports; Disclosure of non-injurious price (NIP) calculation; Proper comparison of subject goods in bulk and non-bulk forms.Analysis:1. Challenging Imposition of AD Duty:The appellants contested the imposition of AD duty on subject goods, arguing that the injury to the Domestic Industry was not solely due to dumped imports but also resulted from factors like the closure of units and non-availability of raw materials. They claimed that the cost construction for NIP was not disclosed to them, hindering their ability to defend adequately. The Tribunal noted that the calculation for NIP involves confidential parameters under Annexure-III of AD Rules, and such details cannot be fully disclosed to competing parties.2. Injury to Domestic Industry:The appellants raised concerns about the fixed cost allocation while determining NIP, pointing out significant cost variations due to the closure of units. The Tribunal examined the DA's findings, which highlighted that the Domestic Industry faced challenges such as non-remunerative prices, raw material shortages, and inability to increase selling prices in proportion to cost increases. The DA considered various factors affecting the Domestic Industry's performance, including raw material availability, production costs, and market conditions.3. Disclosure of NIP Calculation:The DA determined the NIP for the Domestic Industry based on consumption norms, fixed expenses, and return on capital employed, following Annexure-III of AD Rules. The NIP calculation considered best capacity utilization over the injury period and factored in idle time due to other reasons. The Tribunal found that the NIP determination was in line with the rules and did not disclose any violation of principles of natural justice.4. Comparison of Subject Goods:The appellants raised a preliminary objection regarding the comparison of subject goods in bulk and non-bulk forms. However, the DA and its advisor clarified that the comparison was made based on similar items as per the data submitted during the investigation. The Tribunal found no merit in the appellants' argument regarding improper comparison, as no contrary evidence was presented.In conclusion, after thorough analysis and discussions, the Tribunal found no justification to interfere with the final findings of the DA. Consequently, the appeals challenging the imposition of AD duty on subject goods were dismissed, along with the miscellaneous and stay applications linked to the appeals.