2017 (2) TMI 1159 - AT - Customs

Tribunal upholds anti-dumping duty on fibre board imports, dismisses appeals

The Tribunal dismissed the appellant's appeal challenging the levy of anti-dumping duty on imports of Plain Medium Density Fibre Board from Indonesia and ... Levy of ADD - Plain Medium Density Fibre Board having thickness of 6 mm and above - import from Indonesia and Vietnam - Held that: - the DA arrived at the ex-works export price and thereafter dumping margin. The grievance of the appellant is that full particulars of the document verification have not been made available to them. We note that the DA cannot make available sensitive cost data of the exporting company. The same is protected by the provision of Rule 7 of AD Rules. If the DA has formed a opinion regarding correctness of the claim made by the party about confidentiality then he is within his rights to withhold such information and make available only the general non-confidential summary relevant for investigation. We find no infirmity in the proceedings by the DA in arriving at the quantum of definitive anti dumping duty on subject goods. Escaping from the condition of period of limitation by filing cross appeal - Held that:- Section 9C (5) of Customs Tariff Act, provides for constitution of special Bench of three Members headed by the president, to decide the case of anti dumping duty. Whereas appeal u/s 129A of Customs Act is heard by a single or a division Bench. The court fee applicable for the appeal under Customs Act as well as under Customs Tariff Act for anti dumping duty are different. The appeal against determination of anti dumping duty is clearly provided u/s 9C of the Customs Tariff Act. An appeal u/s 9C of Customs Tariff Act is required to be filed within the time prescribed to challenge the determination or imposition of anti dumping duty. There is no provision of filing cross objection to be treated as a separate appeal under the said section. The provisions of Section 9A (8) only applies 'as far as may apply'. When there is a specific provision under Customs Tariff Act for filing appeal against anti dumping duty, the provisions of said section should only apply. Appeal dismissed - decided against appellant. Issues Involved:1. Levy of anti-dumping duty on import of Plain Medium Density Fibre Board from Indonesia and Vietnam.2. Examination of cost of production and export price by the Designated Authority (DA).3. Confidentiality of verification report and data disclosure.4. Maintainability of cross appeal in anti-dumping matters.Detailed Analysis:1. Levy of Anti-Dumping Duty:The appellant challenged the levy of anti-dumping duty on imports of Plain Medium Density Fibre Board (6 mm and above) from Indonesia and Vietnam, imposed via Customs Notification 34/2016-CUS (ADD) dated 14/07/2016. The duty was recommended by the DA based on final findings dated 05/05/2016, following a request for investigation by the appellant and M/s Mangalam Timber Products Ltd., supported by M/s Rushil Decor Ltd.2. Examination of Cost of Production and Export Price:The appellant argued that the DA failed to properly examine the cost of production and export price of VRG Donghwha MDF Joint Stock Company, Vietnam, leading to an incorrect fixation of the dumping margin. The DA's analysis of the balance sheet, shareholding pattern, and borrowing was claimed to be inadequate. However, the Tribunal noted that the DA had conducted detailed verification of data from various exporters, including on-the-spot verification, and arrived at the average cost of production based on verified cost data and additional information. The DA considered only profitable domestic sales for determining the normal value and adjusted the export price based on verified interest rates.3. Confidentiality of Verification Report and Data Disclosure:The appellant contended that the DA did not provide a non-confidential version of the verification report, citing confidentiality. The Tribunal found that the DA had made available a general summary and verification details to interested parties and that the non-disclosure of sensitive cost data was justified under Rule 7 of AD Rules. The Tribunal referenced the Supreme Court's decision in Meghmany Organics Ltd., emphasizing that the DA could treat information as confidential if claimed by the provider and that there was no excessive confidentiality or non-disclosure prejudicing the appellant.4. Maintainability of Cross Appeal:The cross appeal by M/s VRG Donghwha MDF JSC sought to set aside the final findings and Customs Notification imposing AD duty. The appellant's Counsel opposed the cross appeal, arguing it was not maintainable under Section 9C of the Customs Tariff Act, 1975, which does not provide for cross appeals. The Tribunal agreed, referencing previous decisions (Apar Industries and Ahimsa Mines and Minerals Ltd.), and clarified that the appeal against anti-dumping duty must be filed within the prescribed time under Section 9C and that the provisions of Section 9A (8) of the Customs Tariff Act do not apply to the determination of anti-dumping duty. The cross appeal was dismissed as not maintainable both on time limit and legality.Conclusion:The Tribunal dismissed the appellant's appeal, finding no merit in the arguments against the DA's fixation of anti-dumping duty rates and the handling of confidential information. The cross appeal by M/s VRG Donghwha MDF JSC was also dismissed as not maintainable. The order was pronounced in open court on 24/01/2017.