TaxTMI 
TaxTMI 
2018 (12) TMI 803
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.... Vinyls Deutschland GMBH and Ineos Vinyls Sales GMBH. The said two petitioners today (VWG and VB) are aggrieved by the refusal of the Designated Authority (DA) to accede to their request to record them as a successor in interest of their previous corporate entities. If the DA were to accede to their request, the petitioners would benefit to the extent that a lower rate of anti-dumping duty would be applicable to it. 2. After certain legal proceedings and corporate restructuring, a reorganization - accompanied by corporate re-christening occurred, of the previous entities. Also the shareholding pattern of two companies, i.e. Inovyn Sverige AB and Inovyn Chlorvinyls Ltd. to the extent of 50% was transferred to Solvay SA. The other 50% shareholding remained, with Ineos AG. Ineos AG was the original holding company of all these four companies. After reorganization, the shareholding of Inovyn Sverige AB and Inovyn Chlorvinyls Ltd. was completely that of a joint venture company - Inovyn JV. The shareholding of this joint venture company was equally held by Ineos AG and Solvay SA. 3. The four companies had faced investigations for anti- dumping which culminated in final findings dated 0....
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....e petitioner companies on the basis of injury margin already computed for them by the Authority in the original investigation. 14. In view of the facts and circumstances explained above and keeping in view the relevant legal provisions, the Authority notes that the request of the petitioners to amend the names of the concerned companies in the duty table simply vide a corrigendum notification is not feasible. Moreover, after issuing final findings, the Designated Authority becomes functus officio and it is not legally permissible to revisit the findings and the recommendations without initiating and undertaking a review investigation as per the Anti-Dumping Rules." 4. In the earlier round of litigation, this court recorded as follows: "It was pointed on behalf of the petitioner that Solvay SA had, in the meanwhile, restructured and divested itself of the shareholding in the joint venture company, i.e. Inovyn JV, and that this transaction was approved by the concerned regulatory body on 08.06.2016. It relies upon the copy of the order of the Directorate General, Competition European Commission. 7. This Court has considered the submissions. 8. The basic enquiry as to the present....
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....rs of the petitioner companies initially on 19.01.2017 and then further on 19.04.2017. On 19th April 2017 the solicitors after not having been able to answer all the queries satisfactorily made a written request seeking further adjournment to ascertain further details from their clients. Based on their request, the final oral hearing was kept on 2nd May 2017. 10. During the course of the all these hearing, the solicitors were asked to explain the shareholding pattern and ownership structure of these entities, whose name(s) were sought to be changed, at different stages (i.e. during the period of investigation, as on 01.07.2015-the date of entry of Solvay and as on 07.07.2016 - the date of exit of Solvay) Based on the information furnished by the solicitors regarding the shareholding pattern and ownership structure of these companies, the flow chart of these entities (German, Belgian, British and Swedish) with their status at different stages were prepared which is depicted in the Table I, II, III and IV enclosed with the order. 11. It was submitted by the solicitors that the companies by the name of Inovyn Sverige AB, Sweden, Inovyn Chlorvinyls Limited, UK, Vynova Wilhelmshaven G....
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....uest for change of names of the German and Belgian entities namely Ineos Vinyl Deutschland GmbH and IneosVinyls Sales GmbH to Vynova Wilhelmshaven GmbH and Ineos Chlorvinyls Belgium NV to M/s. Vynova Belgium NV. 13. Whereas the scrutiny of facts of the case also revealed that even in case of entities belonging to UK and Sweden namely M/s. Inovyn Sverige AB, Sweden and M/s. Inovyn Chlorvinyls Ltd., UK, Solvay had joined as 50% equity holder in the Inovyn Limited, which was a second stage 100% subsidiary of the holding company M/s. Ineos AG and did not exist during the period of investigation. Therefore, fresh revelations by the solicitors of the petitioners to the effect that M/s. Inovyn Ltd as a company did not exist at all during the period of investigation under any name whatsoever and that it was a fresh entrant in the chain of holding companies subsequent to the period of investigation go to establish that the exit of Solvay from Inovyn Limited would not restore the status quo ante, as erroneously claimed by the petitioner before the Hon'ble Court. The petitioners' contention would have had merit if the name of these entities e.g. Ineos ChlorVinyls Ltd & Ineos Sverige AB would....
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....was conditional upon divesture of some of the INEOS' SPVC plants and related assets (which included INEOS Chlorovinyl Belgium NV and production and sales assets of all INEOS Vinyls Deutschland GmbH and INEOS Vinyls Sales GmbH - a JV). 7. To comply with the EU's order, INEOS entered into share purchase agreement with International Chemical Investors Group SE (ICIG) by which ICIG agreed to purchase the divested business. It is stressed that ICIG - a privately held industrial holding company, prior to the share purchase agreement, was not active in the production/sale of S-PVC. ICIG on 29.04.2015, complied with the EU merger policy and notified its intention to acquire the divested business. The Commission approved the acquisition by the ICIG. It is thereafter that on 01.07.2015, the creation of Inovyn JV Was implemented. This necessitated change of name of INEOS Chlorovinyls Belgium NV and Vinyl Wilhelmshaven GmbH after which shares of the companies were transferred to ICIG on 01.08.2015. 8. It is stated that as a result of this restructuring, the erstwhile companies were directly held on the International Chemical Investors Group SE (ICIG). It is submitted that although the origin....
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.... DS's reasoning do not sub-serve the objective to be achieved and are not legitimate. It is submitted that by repeated rejection of the bona fide request for name change, the respondents have erroneously ruled it out rendering the goods liable to higher rates in the determination of anti-dumping duty. 11. It is further stated that the DA overlooked the fact that it had already paid the individual dumping and injury margin for the petitioner companies and in the absence of any reasoning, the rejection of request for change of name results in unnecessary burden and amounts to repetition of injury which are both substantially impermissible. 12. It was argued on behalf of the DA by Mr. Ahluwalia that there was clear suppression of facts or misrepresentation which was evident from the fact that Solvay had not participated in the German or Belgium entity and its claim of joining it at any stage of investigation does not arise. The exit of Solvay really had no bearing and that this Court should give due consideration to that fact. What stood different was that the change of name of the corresponding change in the corporate structure was post period of investigation Inovyn's exit on 01.0....
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....ed by two Supreme Court rulings in S&S Enterprise v. Designated Authority, (2005) 3 SCC 337, when it was noted that ; "the purpose behind the imposition of the duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding the domestic markets with goods at rates which are lower than the rate at which the exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to the domestic market. The levy of dumping duty is a method recognized by GATT, which seeks to remedy the injury and at the same time balances the right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute „dumping', are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry." 16. In Reliance Industries Ltd. v. Designated Authority (2006) 10 SCC 368, it was explained that industries built after independence with great difficulty should not be allowed : "to be destroyed by unfair competition of some foreign ....
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.... Solvay- a complicating factor for the petitioner, because Solvay had stayed out of the investigation and therefore was subjected to the residual, higher rate of duty (rather than the considerably lower anti-dumping duty rate imposed on the petitioner's predecessors). 20. The petitioner had to approach this court, because on the previous occasion the DA felt that since the relevant facts were investigated at the determination of injury margin stage, it had become functus officio. The court therefore, directed the examination of the relevant facts and also stated that if indeed Solvay had exited from the JV, the DA could consider granting the petitioner's request. Now, the DA has re-examined the petitioner's contentions and concluded yet again that the amendment sought is unfeasible. The petitioners, naturally cry foul and attack that order as arbitrary and contrary to the previous order of this court. 21. On a first reading, it would appear that that this court had required the DA to reconsider the issue and if it was found that Solvay had indeed exited from the holding JV, to grant the relief to the petitioner. 22. The fresh order of the DA, states as follows: "The petitioners....