TaxTMI 
TaxTMI 
2010 (4) TMI 389
X X X X Extracts X X X X
X X X X Extracts X X X X
....-dumping investigation on 13-9-1996. Its final findings recommending a definitive anti-dumping duty on imports of Acrylic Fiber originating in or exported from Thailand and other exporting countries were notified on 14-10-97. A midterm review was undertaken and continuance of anti-dumping duty was recommended under final finding dated 19-4-2000 and revised anti-dumping duty based on the said final findings was imposed under Notification No. 86/2000-Cus., dated 8-6-2000. Subsequently, the first sunset review of the anti-dumping duty was initiated on 7-8-2001 and the final findings were issued on 6-8-2002, leading to re-imposition of definitive anti-dumping duty under Notification No. 106/2002-Cus., dated 9-10-2002. Thereafter, a second midterm review was initiated on 6-7-2006 and definitive anti-dumping duty was recommended vide final findings dated 3-10-2007. The subsequent second sunset review was initiated on 8-10-2007 which has resulted in the final finding dated 3-10-08 and anti-dumping Notification No. 123/08-Cus., dated 20-11-2008, leading to the present appeal. The Period of Investigation (POI) was 2006-07 and the injury analysis covered the years 2003-04, 2004-05, 2005-06 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ngs, it was specifically mentioned that the Customs Tariff Heading was indicative only and did not determine the scope of investigations. The Anti-Dumping Notification issued by the Government also levies duty on Acrylic Fibre of Chapter 55. In the case of Oswal Woollen Mills Ltd. v. D.A. reported in 2000 (118) E.L.T. 275 (Tribunal) it has been held that a reference to Acrylic Fibre in the Anti-Dumping Notification would mean all forms of Acrylic Fibre, i.e. Acrylic Staple Fibre, Acrylic Tow and Acrylic Top. (2) M/s. Vardhaman Acrylic Ltd. and M/s. Pasupathi Acrylon Ltd. did not merit automatic exclusion from being included in the domestic industry. The imports by them were insignificant in quantity as compared to their production and sales and also very insignificant compared to the Indian production and demand in the country. Moreover, the imports were made under advance licence exclusively for manufacture of export products and, therefore, the imports have not entered the Indian Market. Hence, there was no justifiable reason to exclude them from being included in the domestic industry. (3) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....supplements the submissions made by the ld. Advocates for the Domestic Industry and the D.A. and states that all submissions made by the appellant exporter before the D.A. have been duly considered before arriving at the final findings. He states that no causal link is necessary to be established in a review proceeding. He also makes available copies of the final findings and records of the D.A. inclusive of the confidential portion for perusal of the Bench. Finding 6. We have carefully considered the submissions made on behalf of the appellant foreign exporter, the Domestic Industry and the D.A. We briefly note that antidumping duty is a trade remedy measure designed to countenance dumping, imposition of which is authorised under the WTO Agreement, to which India is a signatory, and also under the national law. Its economic rationale is that with greater liberalisation of international trade, domestic industry needs to be protected against unfair trade practices. Through the national law enacted under the Customs Tariff Act, 1975 (CTA) and the rules made there under do not provide a perfect mirror image of the international agreement, yet both are perfectly compatible and he....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ew initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year. Rule 23 "(1) The Designated Authority shall, from time to time, review the need for the continued imposition of the anti-Dumping Duty and shall, if it is satisfied on the basis of information received by it that there is no justification for the continued imposition of such duty recommend to the central government for its withdrawal." (2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review. (3) The provisions of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review." Article 11 : Duration and Review of Anti-Dumping Duties and Price Undertakings. 11.1 "An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury. 11.2 The authorities shall review the need for the continued imposition of the duty, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... on an accelerated basis, compared to normal duty assessment and review proceedings in the importing Member. No anti-dumping duties shall be levied on imports from such exporters or producers while the review is being carried out. The authorities may, however, withhold appraisement and/or request guarantees to ensure that, should such a review result in a determination of dumping in respect of such producers or exporters, anti-dumping duties can be levied retroactively to the date of the initiation of the review." 10. We are dealing in this case with the final findings arising out of a sunset review. 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) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of anti-dumping duty would lead to continuation or recurrence of dumping and injury to the domestic industry. The error that the Central Government has made in its interpretation of the municipal law is that it has given a very restricted meaning to Section 9A(5) of the Act read with Rule 23 of the Rules." 13. Unlike original investigations, sunset reviews are prospective in nature, as they focus on the likelihood of the continuation or recurrence of dumping and injury, in case antidumping duties are removed. With respect to the question whether dumping is likely to occur in the event that the anti-dumping duties are removed, the D.A. has to consider relevant economic facts which might indicate that in the event the anti-dumping duty 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 domest....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t because they are inherent, but because it is the legislative intent that the power which is expressly granted in the assigned field of jurisdiction is efficaciously and meaningfully exercised. While laying down the above principles, in UOI v. Paras Laminates (P) Ltd. - 1990 (49) E.L.T. 322 (S.C.), the Hon'ble Supreme Court has quoted from Maxwell on Interpretation of Statutes, (eleventh edition) to the effect that 'where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution'. 17. We thus conclude with reference to the two questions raised in the course of hearing that the Government has the power to vary the anti-dumping duty while 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 antidumping 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 reas....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e possible consequence of which would be the extension of the operation of the period of anti-dumping duty for another period of five years. This is subject to the provisions of sub-rule (1) of Rule 23 of the Anti-Dumping Rules, under which the Designated Authority is empowered to review the anti-dumping duty imposed from time to time. Having regard to the scheme of the above mentioned provisions of the statute, once antidumping duty has been initially imposed, it would be ordinarily continued for five years unless on a review it is found by the Designated Authority that 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w an anti-dumping duty order that has already been established-following the pre-requisite determinations of dumping and injury-so as to determine whether that order should be continued or revoked. 280. Given the absence of textual cross-references, and given the different nature and purpose of these two determinations, we are of the view that, for the "review" of a determination of injury that has already been established in accordance with Article 3, Article 11.3 does not require that injury again be determined in accordance with Article 3. We therefore conclude 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at if anti-dumping duties are removed, the appellant will export surplus quantities to India at dumped prices. The D.A. has also taken into account the surplus capacity available with the exporters from Thailand while coming to the conclusion that there is likelihood of continuance and recurrence of dumping. 20. We find that the D.A. has also undertaken an injury analysis, and has considered the price and volume of effects of the dumped imports as also other injury parameters. Having examined all relevant factors, the D.A. has concluded that even though the domestic industry has improved its performance during the POI, the situation of domestic industry continues to be fragile, and dumped imports continue to cause substantial injury for the domestic industry, and further that, if the anti-dumping duties are revoked, injury to the domestic industry is likely to continue and intensify. He has also come to the conclusion that the quantum of antidumping duties in force need not be revised. 21. We find that the D.A. has asked for and considered all relevant information from the appellants, the domestic industry and other interested parties. His findings are also reasoned and detai....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... anti-dumping duty or not. He also cites the following decisions in support of his argument :- (i) CC, Nhava Sheva v. Adarsh Woollen Industries - 2007 (212) E.L.T. 68 (Tri. - Mum.) (ii) CC, Amritsar v. Sharman Woollen Mills - 2009 (244) E.L.T. 485 (Tri. - Del.) (iii) Beeta Exports v. CC, Amritsar - 2003 (153) E.L.T. 632 (Tri. - Del.) We find that in these three decisions rendered by 3 Divisions Benches of the Tribunal, it has been held that anti-dumping duty is not leviable on Acrylic Tow since the same has been imposed on Acrylic Fibre. 24. The submission of the ld. Advocate for the Domestic Industry, in this regard is recorded in paragraph 4(1) above. In addition, she refers to the decision of the Tribunal in the case of Oswal Woollen Mills Limited v. D.A. - 2000 (118) E.L.T. 275 (Tribunal) which has held as follows :- "With regard to the scope of the investigation, we find that the D.A. has discussed this issue in detail in the final finding order and indicated the justification for including tow. The exporters themselves are treating to....