TaxTMI 
TaxTMI 
2017 (12) TMI 1113
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.... of the Designated Authority (DA), Directorate General of Anti Dumping and Allied Duties, Department of Commerce, Ministry of Commerce and Industry, New Delhi and Customs Notification No. 28/2017 - CUS (ADD) dated 14/06/2017 issued by the Ministry of Finance, Department of Revenue, Government of India, New Delhi imposing Anti Dumping duty on Hydrogen Peroxide (subject goods) originating in, or exported from Bangladesh, Taiwan, Korea RP, Indonesia, Pakistan and Thailand (subject countries) and imported into India. 2. The DA initiated Anti Dumping investigation based on an application filed jointly by M/s National Peroxide Limited (NPL) and M/s Hindustan Organic Chemicals Ltd. (HOCL), hereinafter referred to as Domestic Industry (DI), that there is dumping of subject goods from subject countries in India. After conducting the detailed investigation as mandated by Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles for Determination of Injury) Rules, 1995, the DA came to the conclusion that the subject goods have been exported to India from subject countries (other than Indonesia) below its normal value; the Domestic Industry has suffer....
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....consistent past practice as well as statutory provisions of Rule 6 (8) of AD Rules. 6. Shri Jitender Singh appearing for exporters of subject goods from Bangladesh submitted mainly on two grounds :- (i) with reference to error in export price arrived at by the DA ; (ii) with reference to abnormal profit on export price as determined by the DA. 7. The learned Counsel also submitted that the scope of DI in terms of Rule 2 (b) has not been properly applied by the DA. The DI is suffering losses due to its own inefficiency and mis- management and not due to any dumping. The DA selected 15 months as POI without recording any proper reason. The DA has no discretion to take any unit as DI when they have imported the subject goods. 8. Contesting the finding of the DA, the learned Counsel further elaborated that calculation of dumping margin is not correct. There is a road transport as well as sea freight, the freight element has been double accounted resulting in error in factual appreciation of relevant date. 9. Countering the submissions of the exporter/appellant of subject goods from Bangladesh, the learned Counsel for DI submitted that the DI were not relat....
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....ision to record reason for arriving at POI. The Parliamentary report on the performance of HOCL brings out the injury suffered by the unit. There is no mis-management of NPL during the material period. The injury is mainly attributable to the declining import price. The learned Counsel also mentioned that Pakistan also imposed AD duty for export from Bangladesh. Regarding computation of return on capital for NPL, he submitted that optimum production has been arrived at based on average. When pointedly asked regarding adjusted return again on such optimum production he submitted that this is the first time such second adjustment has been made while calculating the return. 15. The learned AR appearing for Revenue supported the findings as well as customs notification imposing AD duty. He drew our attention to specific findings on the points raised by various appellants. 16. We have heard all the sides and perused the appeal records. We take up the appeal filed by the exporter from Thailand first. M/s Solvay were provided adequate opportunities to participate in the investigations even during the initiation stage itself. The appellant had chosen not to cooperate in the proceedin....
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....ces enumerated in Rule 6 (8) of the Rules". 17. As the present appellant is nowhere in the picture during the investigation by the DA, as per the consistent practice the export by the appellant were put under residual category for determining the quantum of AD duty. We find no infirmity in such action. 18. Regarding the appeals by the exporters from Bangladesh, we note that the appellants contested status of DI on various grounds. The Domestic Industry is defined under Rule 2 (b) of AD Rules as under :- "(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term "domestic industry" may be construed as referring the rest of the producers. Provided that in exceptional circumstances referred to in sub-rule (3) of Rule 11, the domestic industry in relation to the article in question shall b....
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....to exist even where a major portion of the total domestic industry is not injured, provided there is a concentration of dumped imports into such an isolated market and provided further that the dumped imports are causing injury to the producers of all or almost all of the production within such market. For the purpose of this paragraph, producers shall be deemed to be related to exporters or importers only if (a) one of them directly or indirectly controls the other; or (b) both of them are directly or indirectly controlled by a third person; or (c) together they directly or indirectly control a third person, provided that there are grounds for believing or suspecting that the effect of the relationship is such as to cause the producer concerned to behave differently from non-related producers. For the purpose of this paragraph, one shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter". 20. The relationship of NPL with exporter from Thailand is subject matter of dispute. NPL is a joint venture of M/s Bombay Dyeing and Manufacturing Company Limited and M/s Solvay SA which holds abo....
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....note that there is no specific instance brought to our notice of violation of Rule 7 of Anti Dumping Rules. With reference to calculation of freight, we note that the freight details were given by the exporters only. There is no ground to question the finding just based on the submissions made by the appellants. The data which was relied upon by the DA has not been contested even during the spot verification carried out by the officers of DA. Any contest after the full disclosure is not tenable. In such circumstances, there can be no revision of data, post-disclosure. In this connection, we refer to para 33 of the final finding. The DA correctly recorded that he is unable to take into consideration fresh set of data made available to the appellant very belatedly, post-disclosure statement. He also recorded that the profit margin has been re-determined considering the claim made by the exporter and the dumping margin is arrived at on such re-determination only. We find no infirmity in such determination. 26. We take up the appeals by the DI with reference to quantification of AD duty. The appellants are not pressing the points as originally raised in the appeal by HOCL. However, ....