TaxTMI 
TaxTMI 
2013 (12) TMI 763
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....ti-dumping duty pursuant to the recommendations of the D.A. Subsequently, the D.A. issued the impugned final findings on 15-10-2009 recommending definitive anti-dumping duty @ 10% adv. on imports of TCPs of sizes upto 130". Pursuant to the said final findings, Customs Notification dated 8-1-2010 has been issued by the Central Government, levying anti-dumping duty @ 10% adv. on imports of TCP of sizes of 130" from China PR. The present appeal seeks to challenge the impugned final findings dated 15-10-2009 and the impugned Customs Notification dated 8-1-2010. 2. Ms. Moushami Joshi, ld. Advocate appearing for the appellants argues that TCPs are highly customized capital goods and specific sizes of machines are used to manufacture particular types of tyres and therefore the D.A. was wrong in treating TCPs of different sizes as 'like articles'. She also states that TCPs of different sizes are not interchangeable or substitutable with each other. She takes objection to the D.A. determining the dumping margin and injury margin on the basis of weighted average method and determining the same size-wise. According to her, certain sizes having negative injury margin should have been exc....
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....ld. Advocate Shri Rajesh Sharma. It has been submitted on behalf of the D.I. that the domestic industry has produced 130" TCP in the POI and relevant evidence including invoices were provided to the D.A. as recorded in paras 12 to 14 of the final findings. As such, there can be no basis or justification for excluding 130" TCP from the scope of investigation. As a part of the written submission, the following details of supply of TCP beyond 91" have been submitted :- Market Size Quantity Export 91" 36 Export 93" 5 Export 104" 9 Domestic 91" 46 Domestic 93" 24 Domestic 104" 15 Domestic 130" 2 The D.I. has also submitted that the information could not have been disclosed to the appellants and other interested parties for the reason that the same constituted business sensitive commercial information to the domestic industry to which Rule 7 of the A.D. Rules, is applicable. 7. As regards substitutability of different types of TCP, the D.I. has submitted as follows :- "(a) It is incorrect to state that 45", 48", 65.5", 91" and 130" TCP do not constitute one article. As stated at Paragraphs 3 & 4 of the Final Findings, the product under consideration i....
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....ss of manufacturing of tyres. All these TCP follow the same pricing (although actual prices shall vary depending on size). All these TCP falls in same HS Classification. Thus, essentially, different sizes of TCP constitute one article. The difference in different types of TCP is only in terms of values of the specifications and eventual end application. However, an article is considered as one article if different types can be produced interchangeably by the producers concerned or different types can be consumed interchangeably. In other words, the product should either be substitutable from producers' point of view or it should be substitutable from consumers' point of view. It may be substitutable both for producers and consumers as well. The mere fact that a particular consumer cannot interchangeably use different types of TCP for production of different types of tyres does not imply that they do not constitute one article. For example, trousers are made in different sizes. A trouser with a 36 waist size, would not fit a fat person, and would be suitable only for a person with a small waist. Therefore, a large person cannot wear a trouser of small size. Although, from the consum....
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....ation made by the European Communities against Bed linen exported from India. 11. The D.I. has also argued against the challenge of the appellants to determination of injury to the domestic industry by the D.A. The D.A. has in para 93-96 of the final findings held that the capacity utilization of the D.I. was in the range of 70 - 80% even when the demand and sales in the domestic industry have increased in India. The domestic industry lost orders to Chinese manufacturers and dumped imports were under cutting the domestic prices. The D.I. has pointed out that Annexure II, para (iv) of the A.D. Rules clearly refers to natural and (potential) decline in sales as one of the relevant parameters. The D.I. on the whole supports the final findings arrived at by the D.A. 12. The ld. Advocate Mr. A. Singh, appearing for the D.A. states that all the issues and submissions made by all the interested parties including the appellants have been duly considered by the D.A. The D.A. has not adopted any arbitrary approach. The IBIS data relied upon by the D.A. was kept in the public file and the same is also available at page-98 of the appeal. He also states that the D.A. has considered ....
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....liability of IBIS data, calculation on a weighted average basis, and injury analysis done by the D.A. After considering the detailed oral submissions made on various aspects of the case and also written submissions filed after conclusion of the hearing of the case, we find that the D.A. had evidence regarding capability of domestic industry to produce 130" TCPs and that TCP of that size was actually produced. We find that the product under consideration was "Tyre Curing Presses" also known as Tyre Vulcanizers or Rubber Processing Machineries for tyres. The product consideration taken up for anti-dumping investigation was not limited to any particular size. However, in paragraph-4 of the final findings, the D.A. has clearly indicated different sizes required for manufacture of Scooter Tyres, Passenger cars/LCV Tyres, Truck Tyres, Tractor and agricultural equipment tyres and OTR tyres for Mining and special equipment. As such, it is clear that the D.A. was aware of different sizes of TCPs for manufacture of different sizes of tyres meant for different uses. Further, even though the product under consideration was broadly described and was not limited to any size specification, the D.....
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....ight to each size and each margin whether positive or negative. This has been done by the D.A. and the methodology adopted by him cannot therefore be faulted with. In fact, the practice of 'zeroing' by EC was outlawed by the WTO for this reason, as it was ignoring negative and zero dumping margins, resulting in a higher dumping margin by averaging only the positive margins. 18. As regards the use of IBIS data, we find that it is from an independent 3rd source and the same is being used by the D.A. in different anti-dumping investigations for different products. The D.A. cannot be accused of any bias or malice using the said data source. In fact, the import volumes indicated by the appellants on the basis of imports by their members is rather low and does not take into account the imports by non-members. Since, IBIS has captured the data on a more comprehensive basis, the use of such data by the D.A. cannot be found fault with. 19. The ld. Advocate for the appellants is merely raising a suspicion that the NIP must have been calculated incorrectly as in the absence of complete information, the appellants are not in a position to check the authenticity of the calculation. ....
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....t years, therefore performance improved in 2006-2007. However, as compared to base year, the financial performance of domestic industry declined significantly in POI. "94. The above analysis indicates that though domestic industry was in position to increase sales both in value and volume basis, however, there was sharp decline in profitability showing injury to the domestic industry. "95. The Authority has noted that on production and sales, the domestic industry has been able to show improvement in performance. However, examination of the imports of the product and performance of domestic industry clearly shows that the imports of the product under consideration have increased in absolute terms and has also increased in relation to production and consumption in India. The imports are significantly under cutting the prices of the domestic industry in the market and the effect of the dumped imports was to suppress the prices of the domestic industry in the market. The prices have not increased in proportion to increase in the cost of production. It is thus concluded that there has been a significant increase in the dumped imports both in absolute terms and relative to p....
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.... of performance of the domestic industry in respect of various parameters. The domestic industry may respond to unfair practice of dumping depending upon the means available and strength of domestic industry. It is not necessary that decline should be recorded in all or majority of the lego-economic parameters. Even one or more of lego-economic parameter indicating injury may be sufficient to assess that domestic industry has suffered injury (article 3.2 of A.D. agreement). It is further noted that it is not necessary that domestic industry may immediately approach the authority for initiation of investigation on the commencement of dumping. The domestic industry may respond differently depending upon the strength of the domestic producers. However, when the domestic industry is unable to compete with unfair trade, then it may approach the authority for investigation. The sign of injury in such a case would be available in the preceding years as well and the sharp decline would be missing in the period of investigation. That is why the injury analysis is conducted for more than one year whereas, for the purpose of determination of dumping margin, the period is only one year." 21.&....