2000 (2) TMI 139 - AT - Customs

Dismissal of Appeals on Anti-Dumping Duty for Calcium Carbide Imports from China and Romania

The appeals arising from an anti-dumping investigation on the import of calcium carbide from China and Romania were dismissed. The Designated Authority's ... Competence of domestic industry to initiate anti-dumping investigation - Determination of normal value and challengeability by importers - Injury and causal link in anti-dumping investigations - Currency denomination of anti-dumping dutyDetermination of normal value and challengeability by importers - Importers are not entitled to challenge the Designated Authority's determination of the normal value based on exporters' records. - HELD THAT: - Annexure 1 to the Rules requires determination of normal value to be based on records maintained by the exporter or producer in accordance with generally accepted accounting principles and reflecting costs of production and sale. In the present case exporters and producers in the subject countries did not cooperate and the Designated Authority applied the procedure authorised by the Rules. Since the normal value is founded on exporters' or producers' records, its fixation can be challenged only by those exporters or producers, and not by Indian importers who are not manufacturers or exporters from the subject countries. [Paras 3]Appellants (importers) have no locus to challenge the correctness of the normal value fixed by the Designated Authority.Competence of domestic industry to initiate anti-dumping investigation - The petition filed by the domestic producers satisfied Rule 5(3) and the Explanation and was competent to initiate the investigation. - HELD THAT: - Rule 5(3) requires that an application be filed by domestic producers accounting for not less than 25% of total domestic production; the Explanation deems an application to be on behalf of the domestic industry if supported by domestic producers whose collective output constitutes more than 50% of the production of that portion of domestic industry expressing support or opposition. The Tribunal explained that the 25% threshold is the basic maintainability requirement at the initial stage and the 50% test applies to the portion of industry expressing support or opposition. The Designated Authority found that the applicants accounted for more than 33% of domestic production and that no portion of the domestic industry opposed the application; petitioners thus represented more than 50% of the production of persons before the Authority. Accordingly the application met both the preliminary 25% requirement and the Explanation's 50% criterion. [Paras 4, 5, 6]The domestic producers who filed the petition had standing; the challenge to competence is rejected.Injury and causal link in anti-dumping investigations - The Designated Authority's findings of injury to the domestic industry and a causal link with imports from the subject countries are upheld. - HELD THAT: - The Designated Authority examined relevant parameters and assessed injury adopting fair selling price and optimum level of efficiency; cost of production and sale price were fixed using generally accepted accounting principles. The Tribunal perused the worksheet and concluded that the Authority acted on sound principles and acceptable data. On that basis the Tribunal found no reason to interfere with the Authority's findings on the extent of injury or on the causal link between dumped imports and the injury to the domestic industry. [Paras 7]Findings on injury and causal link are sustained; no interference with the Designated Authority's determinations.Currency denomination of anti-dumping duty - Anti-dumping duty must be denominated in United States dollars; the duties fixed in Indian rupees are to be converted into US$ at the exchange rate prevailing during the investigation period. - HELD THAT: - The Tribunal noted its consistent view that anti-dumping duty should be fixed in US$ to protect the domestic industry from exchange rate effects; if fixed in Indian currency the effective protection would be reduced by appreciation of the US$ against the rupee. The Designated Authority had imposed duties in rupees; the Tribunal directed conversion of those rates into US$ using the investigation period exchange rate (Rs. 35.93 = US$1) and quantified the converted rates per metric ton for the subject countries accordingly. [Paras 8]Anti-dumping duties fixed in Indian rupees are converted and substituted by equivalent amounts in US$ at the investigation-period exchange rate.Final Conclusion: The Designated Authority's final findings (including injury and causal link) are affirmed. The petitioners' standing to initiate the investigation is upheld and importers cannot challenge the normal value; anti-dumping duties originally fixed in Indian rupees are to be converted into US dollars at the exchange rate prevailing during the period of investigation. Subject to this modification, the appeals are dismissed. Issues involved: Appeals arising from Final Findings in Anti-dumping investigation on import of calcium carbide from China and Romania. Challenges to domestic industry's locus and injury caused by imports.Domestic Industry's Locus: The appellants, as Indian importers, cannot challenge the normal value fixed by the Designated Authority as only exporters or manufacturers can do so. The Rules specify that normal value determination should rely on records kept by the exporter or producer, which the appellants are not. Therefore, they lack standing to question the normal value.Competence of Domestic Industry: Rule 5(3) requires domestic producers initiating proceedings to produce at least 25% of the total like articles in India. The petitioners need not constitute producers of more than 50% of the total production, as long as they meet the 25% threshold. In this case, the petitioners satisfied the 25% requirement and were validly representing the domestic industry.Injury to Domestic Industry: The Designated Authority found that the domestic industry suffered injury due to imports from China and Romania. The assessment of injury was based on fair selling price and cost of production, using generally accepted accounting principles. The Authority established a causal link between the injuries and the imports.Anti-dumping Duty: The Tribunal emphasized that anti-dumping duty should be in US $ to protect the domestic industry's interests. The duty imposed in Indian Currency was converted to US $ at the prevailing exchange rate during the investigation period. The duty rates for calcium carbide from China and Romania were adjusted to 13.88 US $ and 24.29 US $ per metric ton respectively. The order was confirmed with this modification.In conclusion, the appeals were dismissed with the confirmation of the Designated Authority's order, subject to the adjustment of anti-dumping duty to be in US $.