TaxTMI 
TaxTMI 
TaxTMI 
2011 (6) TMI 656
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....ation was ordered to be levied w.e.f. 19-3-2007. 2. Brief relevant facts of the case are that the DA having regard to the Customs Tariff Act, 1975 and the rules made thereunder, recommended imposition of provisional Anti-dumping duty on the imports of Saccharin originating in or exported from China PR. The preliminary findings were published in the notification dated 1-3-2006 and provisional duty was imposed on the said Saccharin by Customs Notification dated 6-6-2006 and afterwards definitive Anti-dumping duty was imposed by notification dated 19-3-2007. The DA in terms of Section-9A(5) of the Customs Act and the Rule 23 of Anti-dumping rules received an application from M/s. Vishnu Chemicals Ltd., Hyderabad, requesting for review and enhancement of Anti-dumping duty on Saccharin as imposed by notification dated 19-3-2007. The applicant claimed that the enhancement was required as cost of a major raw material used for manufacturing of Saccharin has significantly increased and the existing anti-dumping duty is not sufficient to address the injury of the domestic industry. Upon receiving the said application filed by the said Vishnu Chemicals Ltd. on 11-5-2008, the DA initiate....
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....rranted and is full of illegalities as the mid term review should be initiated only after a lapse of sufficient time. It is also his submission that imposition of definitive Anti-dumping duty was done vide Customs Notification dated 19-3-2007 and mid term review has been Initiated before the lapse of one year. He would draw our attention to Article 11.2 of the GATT and submits that 'The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative, provided that a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty'. It is his submission that the period of investigation was chosen in two financial years, which is deliberately chosen to suppress the facts. 4.3 It is his submission that there are number of irregularities in the investigation conducted in the mid term review and hence final findings and the consequent notification issued for imposition of enhancement of Anti-dumping duty is bad in law. It is his submission that the investigation was not conducted within 12 months of the initiation of the investigation and proper procedure was not followed for the grant of extension ....
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....Chemicals P. Ltd., one of the original applicants, he would draw our attention to the balance sheet of Vardyaini Chemicals P. Ltd. and submit that there is no loss reported and all the parameters were showing positive trend for the year 2005-06, 2006-07, 2007-08 and 2008-09. It is his submission that due to this, the dumping margins arrived at was based on wrong data and hence there is wrong determination of normal value. It is his submission that determination of normal value for the Final Findings were defective for the following reasons : (a) Cost of production of Vishnu cannot be considered as cost of production in India for determination of Constructed Normal value in isolation of the other domestic producers which constitute major proportion of total domestic production in India. The other producers manufacture the product from the basic stage and need to be considered. Costing of Vishnu has been considered as the costing of the Chinese manufacturers, which is totally wrong. (b) Production route of Saccharin for Vishnu is through intermediate goods OTS, imported from China, whereas other manufacturers in India follow from base....
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....oduct at Rs. 80 per kg. by Vishnu Chemicals Ltd. at a time when the import price was Rs. 140 per kg. DA has concluded that domestic industry was not able to getting the cost of production. It is his submission that in view of this, the entire injury analysis is vitiated. It is his submission that Vishnu Chemicals records are non-injurious and there is no case for imposition of anti-dumping duty based on such data. He would draw our attention to the Annual Report of Vishnu Chemicals. It is his submission that domestic producers made sufficient profits even otherwise and imports were inevitable, hence there was no case for imposing anti-dumping duty, domestic producers are not capable to meet the demand. 5. Shri L.P. Asthana, Advocate and Ms. Reena Khair, Advocate appeared for the domestic industry and submitted as under : (i) It is not correct that Vishnu Chemicals did not participate in the original investigation. Vishnu Chemicals not only participated in the original investigation but also provided all necessary information relating to injury to the domestic industry and the said information was duly verified by the Designated Authority at the ....
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.... judgment of Tribunal in the case of Haldor Topsoe A/S v. Designated Authority, Ministry of Finance [2000 (116) E.L.T. 377 (Tribunal)] was relied upon and it was pointed out that the said judgment has been upheld by the Hon'ble Supreme Court. (viii) It is the submission that extension of time can be sought by the DA without any notice to the parties or with providing any opportunity to offer comments being given to interested parties. Nor the DA is required to intimate the parties in this regard. (ix) It is the submission that there was no defect in the petition, as the DA has considered all the information relevant for recording the finding at the stage of petition. (x) It is the submission that DA had established that Vishnu Chemicals had production of Saccharine in 2004-05 and in a situation where petitioner had an existence for the period lower than the injury period, the WTO guidelines on period of investigation clearly provide that the authorities were empowered to consider such shorter period for injury assessment. It is the submission that as regards the data from other Indian producers, the DA in fact called data from other domestic p....
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.... in the original investigation and their submissions were considered by the DA when he arrived at the conclusion of imposition of definitive anti-dumping duty. It is his submission that DA in the mid term review has verified the information filed by the Vishnu Chemicals to the authorities in the original as well as mid term review. It is his submission that it is wrong to say that other domestic industries did not participate in the mid term review as the current application filed by Vishnu Chemicals was duly supported by initial four applicants. It is his submission that in the original investigation, the application was filed by M/s. AS Enterprises, Mumbai; M/s. Swati Petrochemicals P. Ltd., Thane and M/s. Shree Vardhyani Chemical Industry Co. Ltd., Gujarat and their supporters representing All India Saccharin Manufacturers Association, Mumbai. It is his submission that mid term review investigation can be initiated based on an application filed by an interested party who can be a foreign producer, domestic producer, importer or consumer. It is submitted that the DA has correctly considered the data available and produced to him for the purpose of arriving at the dumping margin a....
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....he case in hand that one of the producers of Saccharin in India, undisputedly is interested party as per the definition in dumping rules, as the said mid term review application filed by the petitioner dated 11-2-2008. It is seen from the provisions of the Rule 23 of the of the said rules, there has to be some information, on the basis of which the DA can initiate a review which in this case is in existence by the petition filed by the said Vishnu Chemicals which is undisputed. It is also to be seen that the provisions of Rule 23 does not indicate any specific time period for initiation of mid term review, which is in the Article 11.2 of GATT agreement. The DA on being satisfied that a review can be called for the need for continued imposition, mid term review of enhancing Anti-dumping duty can be initiated. In this case, it is seen that the final findings were issued in the initial investigation on 19-3-2007 and mid term review was sought in February, 2008 which was more or less within a year after the imposition of Anti-dumping duty. In the absence of any specific time period indicated in Rule 23 of the anti-dumping rules, the mid term review in the case in hand cannot be held as....
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....hat they are beyond the period prescribed by the Rules, therefore, cannot be accepted. 11. In review proceedings initiated under Rule 23, the DA is required to examine whether the injury caused is likely to as continue or reoccur if removed, in our view, the impact of various determination made in the review ' investigation needs to be considered and a conclusion has to be arrived after satisfying as to Whether or not there is justification in continued or enhanced imposition of duty. We find that while considering the scope of mid term review, the Hon'ble Supreme Court in para 35-37 in the judgment in the case of Rishiroop Polymers Pvt. Ltd. v. Designated Authority & Addl. Secretary as reported in 2006 (196) E.L.T. 385 (S.C.). "35 .................. 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 imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is no lo....
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....is under recovery of cost of production. It is also recorded by the DA that he has relied on the transaction by transaction data provided by DGCIS. The DA has also noted that the production of Saccharin was Started by the Vishnu Chemicals in the year 2004, that he vetted the same form the excise returns filed. It is seen from the findings of the DA that though the capacity of the domestic industry has increased but the capacity utilization as remained low (i.e., 31%) only which was despite the imposition of Anti-dumping duty vide notification dated 19-3-2007. It is recorded clearly in the findings that the amount of duty imposed vide notification dated 19-3-2007 is low and has failed to provide relief to the domestic industry to the subject of originating country, i.e., China PR. It is also seen from the findings of the DA that out of 14 injury parameters, it is not required that all the 14 parameters be indicative factor to come to a conclusion for non-injury. Few parameters indicating deterioration or adverse performance is sufficient to establish injury. 14. As regards point raised by the appellant that the applicant Vishnu Chemicals Ltd. did not participate in the initial....