TaxTMI 
TaxTMI 
2010 (4) TMI 379
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....ated Anti-dumping investigation on 21-9-2001 on imports of Flexible Slabstock Polyol originating in/exported from the European Union, Japan, Singapore and United States of America. The provisional Anti-dumping duty was imposed by Customs Notification No. 17/2002-Cus., dated 11-2-2002 based on preliminary findings dated 14-12-2001. Definitive Anti-dumping duty was imposed by Customs Notification No. 120/2002-Cus., dated 31-10-2002 based on final findings dated 19-9-2002. Subsequently, sunset review was initiated on 27-12-2006 and Anti-dumping duty was extended for a period of one year up to 10-2-2008 under Notification No. 12/2007-Cus., dated 6-1-2007. Period of investigation for sunset review was 1-4-2005 to 30-6-2006. The sunset review has resulted in the final findings dated 26-12-2007 and Customs Notification No. 15/2008-Cus., dated 5-2-2008, leading to the present appeals. 3. Shri Parthsarthy, learned Advocate appearing for the appellant foreign exporters, argues as follows :- (i) Though a negative dumping margin has been determined in respect of the appellant exporters from Singapore, the Anti-dumping duty has not only continued but has been enhanced upwa....
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.... Singh, learned Advocate appearing for the D.A. reiterates the findings of the said authority and states that Section 9A(5) permits variation in the Anti-dumping duty after sunset review. He also states that cummulation is provided in Annexure-II to the Anti-dumping Rules for determination of injury. 8. Shri M.K. Anand, Director in the Anti-dumping Directorate states that it is generally noticed that the exporters increase the price of export to the reference price level during the period of sunset review and, therefore, lack of positive dumping margin during the period of review may not warrant withdrawal of duty, if there is a finding regarding recurrence of dumping or injury. He cites the decision of the Hon'ble Supreme Court in the case of Rishiroop Polymers (P) Ltd., v. Designated Authority - 2006 (196) E.L.T. 385 (S.C.), which approves continuance of Anti-dumping duty after review. 9. He also states that apart from disclosing necessary details to the appellant exporters, the Anti-dumping Authority reviewed the data given by the exporters themselves which is available with the exporters themselves and, therefore, they cannot complain that the data was not given to them. ....
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..... As provided under Article 11.3, a sunset review can be initiated : • on the D.A.'s own initiative; or • upon a duly substantiated request made by or on behalf of the domestic industry, and filed within a reasonable time prior to the five-year anniversary of the imposition of anti-dumping duties. In the context of sunset reviews, two important questions have arisen in the course of arguments which require to be answered first. These are : - (i) Whether the D.A. is required to determine, for the purpose of sunset review, dumping margin and injury in the same manner as required for the initial determination and whether the duty imposed should be limited by the dumping margin and injury so determined? (ii) Whether the Government has the power to vary the anti-dumping duty upwards or downwards while continuing the same after a sunset review under Section 9A(5) of CTA? 11. We have carefully considered submissions made before us in this regard. We note that Section 9A(1) of CTA authorises levy of the anti-dumping duty. Once imposed, it can remain in force for 5 years unless revoked earlier as pro....
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.... is removed, dumping will recur. With respect to the injury determination, if the anti-dumping duty has had the desired effect, the condition of the domestic industry would be expected to have improved during the period the anti-dumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers. Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted. 14. Sunset review entails a likelihood determination in which present levels of dumping is obviously not so relevant as is the likelihood of continuance or recurrence of dumping. Moreover, during the investigation period, the anti-dumping duty would be in force and hence, the current level of dumping may be non-existent or minimal. The exporters under investigation may also sell at a non-dumped price during this period knowing fully well that a sunset review would be in progress. Hence, the criteria under Section 9A(1) that the anti-dumping duty should not exceed the dumping margi....
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....hile continuing the same on conclusion of a sunset review under Section 9A(5) of CTA. However, there is no warrant under the said Section 9A(5) to determine the current dumping margin and limit the antidumping duty to such limit as under Section 9A(1). However, if the Government wants to vary the anti-dumping duty under Section 9A(5) instead of merely continuing the duty initially imposed under Section 9A(1), it must be for a good and sufficient reason to be indicated in the D.A.'s findings on sunset review. One such reason as indicated earlier can be the current or anticipated non - injurious price to the domestic producers." 15. We were also guided in that case by the following observations contained in the decisions of the Hon'ble Supreme Court and the WTO Panel and Appellate Body : - "18. The scope of a review, albeit in the context of midterm review, was considered by the Hon'ble supreme Court in the case of Rishiroop Polymers v. D.A. - 2006 (196) E.L.T. 385 (S.C.) as follows : - "35. Otherwise also, we are of the opinion that scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued impos....
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....at there has been such a significant change in the facts and circumstances, that it is considered necessary either to withdraw or modify appropriately the anti-dumping duty which has been imposed. It is, therefore, clear that unless the Designated Authority suo motu or the applicant for review is in a position to establish clearly that there has been a significant change in the facts and circumstances relating to each of the basic requirements or conditions precedent for imposing duty, the finding given by the Designated Authority at the time of initial imposition of anti-dumping duty must be considered to continue to hold the field. 37. The final findings recorded by the Designated Authority at the time of initial imposition of anti-dumping duty on the existence of injury to the domestic industry must be considered to continue to remain valid, unless it is proved to be otherwise, either by the Designated Authority in suo motu review or by the applicant seeking review. In the present case, the review had been initiated by the Designated Authority. Neither the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given....
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....that investigating authorities are not mandated to follow the provisions of Article 3 when making a likelihood-of-injury determination." (ii) US - Sunset Reviews of Anti-dumping Measures on CRCS Flat Products from Japan : WT/DS244/AB/R dated 15-12-2003 : "149. We turn first to Article 11.3, which is the main provision of the Anti-Dumping Agreement addressing sunset reviews. As discussed above, Article 11.3 requires the termination of an anti-dumping duty "after five years unless investigating authorities determine in a sunset review that the expiry of the duty would be likely to lead to continuation or recurrence of dumping. We reiterate that Article 11.3 does not prescribe any particular methodology to be used by investigating authorities in making a likelihood determination in a sunset review. In particular, Article 11.3 does not expressly state that investigating authorities must determine that the expiry of the duty would be likely to lead to dumping by each known exporter or producer concerned. In fact, Article 11.3 contains no express reference to individual exporters, or interested parties. This contrasts with Article 11.2, which does refer to "any interested party" an....
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....od since a majority of the parameters have shown improvement over the base year. There is no price undercutting, price suppression or price depression caused by subject country imports, but price underselling of 19% is seen. G.5 Conclusions on injury 90. The Authority noted that the volume effect of subject country imports has been relatively insignificant despite their increase in absolute terms and the price effect is restricted to price under-selling. Most parameters of the domestic industry do not reflect injury. Therefore, the Authority concludes that the domestic industry has not continued to suffer material injury." 17. In view of the above findings, the analysis of likelihood of continuation or recurrence of dumping and injury assumes more significance in the case of a sunset review under Section 9A(5). Unfortunately, the D.A. has only recorded the following in this regard in his findings under para 103 : - "In the case of Singapore, the Authority notes that the current dumping margin of the cooperating exporters have been determined to be negative on the basis of a single country specific normal value determined in pursuance to Supreme Court Judgment. The resid....