TaxTMI 
TaxTMI 
2000 (1) TMI 191
X X X X Extracts X X X X
X X X X Extracts X X X X
....igation resulting in the order impugned was initiated on an application filed by M/s. SAIL and M/s. Essar and supported by M/s. Lloyds and M/s. TISCO. The period of investigation was 1st April, 1996 to 31st March, 1997. The Designated Authority sent questionnaire to the exporters and importers to elicit relevant information. Additional information regarding injury was also sought from the petitioners. On considering the response to the questionnaire and information furnished by the exporters, importers and several other interested parties, the Designated Authority found that since TISCO was related to M/s. Tata SSL, an importer, TISCO would not form part of the domestic Industry. The Authority was also of the view that there was no causal link between the dumped import and the material injury to the domestic Industry observing that there was not enough evidence to suggest that the reasons for declining profitability, rising stock and inability to increase prices could be attributed to the imported goods. Accordingly, preliminary finding was issued by the Auhority on 17th June, 1998. Further public hearing in the above case was held on 4th August, 1998. Opportunity was given to expo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ocate for the Designated Authority. The learned Counsel for the respective parties have taken us through the details of record of investigation, final findings and the materials available on record. 6. The product under consideration in the present case are hot rolled Coils and hot rolled sheets (plates and strips) originating in or exported from Russia, Kazakhstan and Ukraine. 7. Dumping, Injury and causal link are the important factors in determining the Anti-dumping duty. Dumping per se will not attract duty unless material injury is caused to the Domestic Industry and causal link in between material injury to the Domestic Industry and dumped imports. Anti-dumping duty shall not exceed the margin of dumping i.e. the difference between the export price and normal value and further amount of duty shall not exceed the amount which has been found adequate to remove the injury to domestic Industry as envisaged under Section 9A(1) of the Customs Tariff Act and under the provisions of Anti-Dumping Rules respectively. It is also settled position now that anti-dumping duty is exporter specific and exporting country specific as it was held in the case of Haldor Topsoe A/S ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....representative price of that article when he exports to an appropriate country, can be the basis for finding the normal value. Normal value of the article can also be assessed as per the second alternative provided therein, namely, the cost of production of the article in the country of origin along with reasonable addition for administrative selling and general cost and for profits. 9. A proper understanding of clause C of Section 9A shows that for finding out the normal value, Designated Authority has got three options before it. The first and the foremost option is to find out the comparable price for the like article in the ordinary course of trade when meant for consumption in the exporting country or territory of the same manufacturer or exporter. If the exporter is not having a domestic market in the exporting country, then his price of the article to an appropriate third country can be the basis. In the absence of such an export price to an appropriate third country, then the third alternative that is permissible is to find out the cost of production of the said article in the country of origin incurred by the exporter and add to it administrative, selling and gener....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me of imports in the domestic Industry as it was pointed out by the appellants' Counsel. It was submitted by the Counsel that the DA has gone wrong in comparing the selling prices of SAIL at stockyard level with the landed price of import at Port level. It was further said that the production, capacity utilisation, sales volumes, market share held by the Indian Industry does not indicate that domestic Industry has suffered any injury. Declining of profitability due to increase in stock of SAIL was due to new entrant i.e., ESSAR which has taken major share of production, consumption and market share. 13. As regards volume of Dumped Imports, the DA has held in para 20 of the preliminary findings that dumping margin is of 1% by the appellant/Exporter JSC Severstal. With reference to the injury analysis and causal link, she observed in para 25 of the preliminary findings that "the Authority notes that factors like decrease in volume of imports in absolute terms, increase in production and sales, capacity utilisation as analysed do not show injury to the domestic industry. Factors such as increase in closing stocks, inability to increase selling price and decline in profitabilit....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hose attributable to imports no anti-dumping duty can be levied as there was no injury due to such imports. While determining the injury to domestic Industry and causal link between dumped imports and injury, the DA should take all relevant factors including the volume of dumped imports and their effect on the price in the domestic market as stated in 11(2) of Customs Tariff (Determination of Injury D.A.) Rules. Rule 11(2) is as under :- "The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure-II to these rules." 15.  It was contended on behalf of the appellants that DA was in error in cumulating volume of imports from the three countries i.e., Russia, Ukraine and Kazakhstan in determining the Injury and the causal link. Since t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....was purely point of law, and DA should have looked into the relevant Rules as they were, the action of the DA was justified in cumulating for the purpose of assessment referring to the finding in para 5 of the final findings. 'The issue of each of these hot rolled products being different assumes importance only from the view point of determination of dumping margin and injury margin. The Authority has, for the purpose of determination of dumping or injury margin, considered each hot rolled product as separate item for those exporters who have furnished necessary information separately. In case an exporter has furnished combined information, the Authority has had no choice but to assess such exporter collectively. The Authority has merely combined the four products for the purpose of assessment of injury, as stated in the preliminary findings, for the reason set out in the para relating to injury. 17.  It was urged on behalf of the appellants that determination of injury and causal link should have been with reference to countrywise/ productwise and even if products are combined i.e. Hot rolled coils and Hot rolled sheets together, still dumping margin from Kazakhstan will ....