TaxTMI 
TaxTMI 
2006 (10) TMI 248
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....hi High Court (in Writ Petition No. 21603/05, dated 18-11-2005) [2006 (206) E.L.T. 155 (Del.)]. The Hon'ble High Court had disposed off the writ petition by granting liberty to the petitioner to file an appeal before this Tribunal, holding that if a Notification is gazetted predicated on the impugned final findings in review between that date and the date on which the interim stay application of the petitioner was listed for hearing before this Tribunal, its operation shall be held in abeyance in that interregnum. Central Government in the meanwhile accepted the mid-term review findings of the D.A. and issued Notification No. 99/05-Cus., dated 25-11-2005. The present appeal in challenging inter alia the withdrawal of Anti Dumping duties imposed earlier against EU and Canada and reduction of Anti Dumping duties against USA and Japan, on the following grounds : (i) Initiation of mid term review under Rule 23 was bad as the applicant-exporter did not file relevant information/evidence and also absented himself from the proceedings; (ii) In view of the judgment of the Hon'ble the Supreme Court in Rishiroop Polymers v. Designated Aut....
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....it would not be appropriate to calculate injury margin when it was not at all necessary. A distinction was sought to be made between fresh imposition under Rule 18 and the criteria laid down under Section 9A(5) and Rule 23 by referring to the judgment of the Hon'ble the Supreme Court in Rishiroop Polymers case. 6. It was submitted that Rule 23 provided only for full or partial withdrawal of duties imposed for a period of five years, if it was amply demonstrated that the continuation of such duties was no longer warranted. The conspicuous absence of Rule 4(d) which obligates the application of "lesser duty" in rule 23(3) was also emphasized. On this basis, it was argued by D.I.'s representative that the incorrectly calculated negative injury margin cannot be sustained in law. To support this contention, the ratio of the order of this Tribunal in Saudi Basic Industries Corporation and Others v. Designated Authority - 2006 (200) E.L.T. 488 (Tribunal) (Final Order No. 20-24/06-AD, dated 4-5-2006) that Rule 14(d) which provides for de-minimis dumping margin, was not applicable for reviews under Rule 23 as the said Rule was conspicuously absent in Rule 23(3). According to the lea....
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.... v. Designated Authority reported in 2006 (199) E.L.T. 722 (T). Excerpts from paragraph 6 of the said judgment relied upon for the interpretation of 'recurrence' of injuries are reproduced below :- "6. Under Section 9A(5) of the Customs Tariff Act, 1975, the anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition subject to condition that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. The review is done by the Designated Authority under Rule 23 of Anti Dumping Rules. According to Rule 23 of Anti Dumping Rules, the Designated Authority shall from time to time, review the need for continued imposition of anti-dumping duty and shall, if it is satisfied on the basis of information received by it that there is no justification for continued imposition of such duty recommend to Central Gover....
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....this would ipso facto mean that causal link between dumping and material injury is severed and hence absent. We find that even in the case of review, the duty was to be imposed in terms of Section 9A(1) read with Section 9A(5) and Rule 23. As Section 9A specifically provides that the duty should not exceed the margin of dumping, it implies that a determination was required as to whether a duty lower than the margin of dumping was adequate to address the injury suffered by the domestic industry. It was, therefore, mandatory for the Designated Authority to determine the injury margin both in the case of mid-term review as well as in sunset review. 13. According to the learned Counsel for the exporter, the determination of NIP has never been challenged in this case and that the landed value was determined in respect of series 300 - 400 based on the data identified from DGCI&S data. In view of this, the findings on causal link can never be questioned. A perusal of D.A's record by us indicates that sufficient information was made available by the exporter, enough to ignite the process of review. It is our considered opinion that it is for the Designated Authority to find the inf....
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....ead. The consequence of restructuring of Jindal (D.I.) based not only the press report but also its annual report (2002-2003), reflecting the profitability of its core operation stood highlighted. In addition data relating to series 300 - 430 to support the contention of the applicant exporter that its export prices were above the non-injurious price level was also found adequate mention. 16. The details indicated hereinabove in our view cannot be brushed aside as inadequate grounds and sketchy data as argued before us. Miles and miles of forests can be burnt into ash, with just a spark of fire. While a heap of data can prove meaningless, a word or a syllable can work wonders as a mool mantra or beej mantra. 17. Coming back to the essential reasons to introduce a favourable treatment to the EU and Canada, the impugned notification has made detailed analysis. During the review proceedings, the appellant D.I. had furnished information regarding injury, cost of production besides arguments, valid enough to treat the appellant company as domestic industry within the meaning of Rule 2(b). It is also on record that some exporters namely M/s. Acerinox SA Spain, M/s. JFE St....
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....e following dumping margins in respect of EU 19.90% and Canada 150.90% respectively. In their arguments before the Designated Authority, the D.I. had been emphatic that the export price of the exporter being above the NIP of the domestic industry was not sufficient ground to initiate review. It was also argued that the exporter could seek refund of duty under Section 9AA of the Customs Tariff Act if they felt that their dumping margin during a particular period was less than the dumping margin ascertained during the original POI. 20. We find that the authority has analyzed the various injury parameters of domestic industry on aggregate basis in respect of like articles of subject goods; this is as per the requirement of Rule 11(2). He has also relied upon the data relating to volume of imports as per DGCI&S data. While examining the price undercutting, the authority considered the sales realization of the domestic industry for subject goods and compared it with the landed value of imports from subject countries. The price undercutting in respect of two series namely 300 - 400 indicated negative value in respect of EU. He also examined the price undercutting on an aggregate ....
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....price undercutting on the domestic sales of the industry. There was Price undercutting in the case of dumped imports from Japan and USA. Cash flow has improved. There is also no price underselling from the imports from EU and Canada. The losses in sales of subject product have declined. These trends indicate that the domestic industry is in the path to recovery. The improved performance by the domestic industry on parameters like production, capacity utilization, sales, improved market share, higher productivity and growth can also be attributed to the anti-dumping duty imposed in year 2001 as well as to the general improvement in the state of steel industry worldover. The domestic industry continued to suffer losses in the sale of subject goods, though the losses have declined significantly. Thus the domestic industry continued to suffer material injury. 36. Causal Link and Likelihood of recurrence of dumping and injury : As per the above evaluation, the authority found that the demand of the subject goods has been rising. There was an increase of 71% in demand during the POI over the year 2000-2001. The domestic industry has increased the production capacity of 90,000 ....
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....ain share of imports from EU being at less than NIP, the Authority did not find the averment as correct as the total imports from EU as per injury analysis were 14984 MT and not 8079 MT as contended by the domestic industry. The share of 1786 MT allegedly claimed to be sold at below NIP is 11.9% and not 22% as contended by the domestic industry. Even assuring this as correct, this is not considered significant by the Authority. In addition the Authority also found the trend of sales realization of the domestic industry increasing during POI. In respect of imports from Canada also the Authority found that the injury margin in respect of imports from Canada is negative as the landed value of dumped imports is higher than the Non-injurious Price of the domestic industry for subject goods in the comparison made at the aggregate level of imports. As regards the argument of the domestic industry that price-underselling evaluation is of no relevance in this review investigation due to the existing duties on a reference price basis, the Authority's views are that the Authority invariably determines NIP in every review investigation. Moreover, the same export prices have been used for deter....