TaxTMI 
TaxTMI 
2023 (11) TMI 570
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....om imposition of anti-dumping duty retrospectively w.e.f. 6-12-2021 and for refund of the excess/additional duty so collected on the import of 'colour coated aluminium coils' w.e.f. 6-12-2021. 2. It transpires from the records that Hindalco Industries Limited [Hindalco], which has been impleaded as respondent No. 3 in this appeal, had filed an application before the designated authority on behalf of the domestic industry under the provisions of the Customs Tariff Act, 1975 [the Tariff Act] and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and Determination of Injury) Rules, 1995 [the 1995 Rules] for initiation of anti-dumping investigation on the imports of certain flat rolled products of aluminium [the subject goods] originating in or exported from China PR [the subject country]. The investigation was initiated by the designated authority by a notification dated 8-9-2020 to determine the existence, degree and effect of the alleged dumping and to recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the injury to the domestic industry. The investigation was conducted for the period from 1-....
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....e domestic industry has significantly deteriorated in respect of profits, cash profits and return on capital employed. The domestic industry has suffered financial losses, cash losses and negative return on investments in the period of investigation. (c) The material injury suffered by the domestic industry has been caused by the dumped imports. M. RECOMMENDATION 128. The Authority notes that the investigation was initiated and notified to all the interested parties and adequate opportunity was given to the domestic industry, the exporters, the importers and the other interested parties to provide information on the aspects of the dumping, the injury and the causal link. Having initiated and conducted the investigation into dumping, injury and causal link in terms of the provisions laid down under the Rules, the Authority is of the view that imposition of anti-dumping duty is required to offset the dumping and the injury. Therefore, the Authority recommends imposition of the anti-dumping duty on the imports of subject goods originating in or exported from the subject country. 129. Having regard to the lesser duty rule foll....
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....coil since it produces ACP stock only which requires further processing for making colour coated aluminium coils. The appellant also contends that colour coated aluminium coil was earlier excluded from the final findings notification dated 29-5-2009 issued in connection with the safeguard duty investigation against imports of aluminium flat rolled products and aluminium foil into India from China PR. The appellant also contends that colour coated aluminium coil was also excluded from the scope of product in the decision of the Tribunal rendered on 9-10-2017 in M/s. G.M. Alloys Pvt. Ltd. v. Union of India and Others [Anti-Dumping Appeal No. 51344 of 2017, decided on 9-10-2017]. 5. Based on these facts, Shri Pragyan Sharma, Learned Counsel for the appellant, made the following submissions : (i) The designated authority committed an error in including colour coated aluminium coils within the scope of the subject goods ignoring the fact that the domestic industry did not manufacture/produce colour coated aluminium coils in any commercial volumes nor they were sold in the market in commercial volumes and in fact the domestic industry does not ev....
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....initiation nor responded to the submissions of the appellant at the time of oral hearing or post hearing written submissions and the designated authority, for the first time in the disclosure statement, stated that the domestic industry has shown some sale invoices. In fact, the designated authority only in the final findings disclosed that the domestic industry has given evidence that it produces the product and engages job worker for merely applying the colour to the products based on customer specifications; (viii) The designated authority has relied upon certain material and facts, which facts did not form part of the disclosure statement and to which the appellant had no opportunity to respond; (ix) The findings of the designated authority are in violation of the 1995 Rules; and (x) The determination made in the present case is contrary to the past determination made by the designated authority. 6. Shri S. Seetharaman assisted by Shri Atul Sharma and Shri Darpan Bhuyan, Learned Counsel appearing for the Hindalco, which is the domestic industry, however, supported the final findings of the designated authority an....
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....excluded from the product on which anti-dumping duty has been levied. Anti-dumping duty has been levied on imports of flat rolled products of aluminium originating in or exported from China PR. The appellant is a manufacturer of Aluminium Composite Panel sheets in India, and uses different types of colour coated coils as a raw material to manufacture the finish goods i.e. ACP. Thus, imposition of anti-dumping duty on colour coated coils would work to the prejudice of the appellant. The main contention urged by the Learned Counsel for the appellant is that the domestic industry produces only ACP stock, which is a raw material for the production of colour coated coil and the domestic industry does not produce colour coated coil. 10. It would, therefore, be useful to reproduce the paragraphs of disclosure statement of the designated authority that deal with product under consideration. 11. The key submissions made by the domestic industry have been recorded by the designated authority in the following manner : '5. The following are the key submissions made by the domestic industry with regard to the product under consideration and the like article : (a) &n....
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....s excluded in the previous safeguard investigation concerning imports of Aluminium Flat Rolled Products. Colour coated aluminium foil was also excluded from the scope of the product under consideration by the CESTAT in the anti-dumping investigation concerning imports of aluminium foil originating in and exported from China PR. Accordingly, colour coated aluminium coil should be excluded from the present investigation as well. (xiii) The domestic industry has not sold any colour coated coil to the consumers despite such a large demand in the country. This can be verified from the PCN-wise sales information that must have been provided by the present domestic industry." 13. The designated authority examined the matter in the following manner : "C.3 Examination by the Authority 7. Various interest parties have raised a number of issues with regard to the scope of the product under consideration in the present case. Interested parties have sought exclusion of certain products from the scope of the PUC on the grounds that the domestic industry is not capable of producing the product type or supply the product in the desired product type, or the quality of ....
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....ating machines. 15. The designated authority recorded the following final findings with regard to colour coated coils : "I.3 Examination by the Authority 123. The analysis and the decision of the Authority on the issues raised above are as below : xx xx xx (xiii) With respect to exclusion on colour coated, the Authority notes that the domestic industry has given the evidence that it produces the product and engages job workers for merely applying the colour to the products based on the customer specifications. Mere job working with respect to application colour/paint does not warrant exclusion of the product. The domestic industry does not part with title of the goods. In any event, the cost towards colour coating is not significant and, therefore, it will be incorrect to say that the domestic industry does not manufacture colour coated aluminium coil." 16. What needs to be noticed is that in the disclosure statement all that was recorded by the designated authority was that the domestic industry had supplied the product to various customers in the period of investigati....
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....reason that there is no potential production of said goods in India to cater the entire demand. 19. In this connection, it needs to be noted that production of colour coated coil requires installation of production facilities and significant investments. It requires a coating machine and installation of one coating machines facility would cost about Rs. 5 crores to give a production of about 150 MT. For a demand of 40,000 MT colour coated coil in India, atleast 20 coating machines would be required to be installed involving an expenditure of Rs. 100 crores. The process of converting ACP stock, which is a raw material for production of colour coated coil and which is produced by the domestic industry, to colour coated aluminium coils requires an elaborate process and not a simple colouring of the aluminium coil. The domestic industry did not provide any production quantity in regard to the colour coated coil nor the same have been examined by the designated authority in the final findings. There is nothing on the record which may indicate that the domestic industry is present in the market in any commercial way. It is only at the stage of rejoinder, a copy of which was not even m....
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....ty are as follows : '61. The fact that M/s. Hindalco does not manufacture colour coated coil as referred by the interested parties is not in dispute as M/s. Hindalco has never argued that they manufacture such coils. xx xx xx 62. M/s. Hindalco has contended that imported colour coated coil has direct adverse impact on the sales of the bare ACP coils sold by the Aluminium FRP industry. In other words, if the coated coils are imported from China it would directly replace the domestic sales of bare ACP coils by the India FRP industry. In order to analyze the contention of domestic industry and interested parties a comparison have been made between imported colour coated coils and bare Aluminium coils of similar thickness which is manufactured by Hindalco. 63. As admitted by the "domestic industry" the aluminium coils manufactured by Hindalco are used as input in the manufacture of colour coated coil. The process of manufacturing of colour coated coil is quite elaborate and requires separate plant of high investment. The manufacturing process is not a minor process which does not....
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....article to the bare aluminium coils manufactured by Hindalco.' (Emphasis supplied) 21. It also needs to be noted that colour coated aluminium foil was also excluded from the scope of product under consideration by the Tribunal in the decision rendered on 9-10-2017 in G.M. Alloys (supra). The appeals had been filed before the Tribunal against the final findings of the designated authority and the Notification issued by the Central Government as colour coated aluminium foil had not been excluded from the scope of product under consideration for imposition of anti-dumping duty. The relevant portions of the decision of the Tribunal are as follows : '5. The Learned Counsel appearing on behalf of the 5 appellants who are pleading for exclusion of colour coated aluminium foil from the scope of product under consideration, submitted that the DA did not record separate finding on the request made by the appellants for exclusion of colour coated aluminium foil from the scope of investigation and imposition of AD duty. The said colour coated aluminium foil is a basic and main raw material for manufacture of aluminium composite panel. The Learned Counsel submitted that though th....