TaxTMI 
TaxTMI 
2006 (3) TMI 143
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....peal Nos. C/260/2002-AD, C/596/2002-AD and C/687/2002-AD; and Civil Appeal No. 7162 of 2004 against the Final Order No. 17/2004-NB(A), dated 1-7-2004 passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi [for short, "the Tribunal"] in Appeal No. C/14/2003-AD. 3.These appeals are interconnected and pertain to the same cause of action. Civil Appeal No. 773 of 2001 is against the final order imposing anti-dumping duty for a period of five years, Civil Appeals arising out of SLP© Nos. 22905-22906 of 2003 are directed against the orders passed in "Mid Term Review" and Civil Appeal Nos. 7159-7162 of 2004 are against the order passed for continuance of anti-dumping duty in the "Sunset Review" for another period of five years. 4.Common facts giving rise to the cause of action and the litigation are as follows : Before adverting to the issues raised in these appeals it will be relevant to mention the historical background of the relevant statute and the Rules. Keeping in tune with the changing international economic scenario, the Government of India adopted the path of liberalisation in its fiscal/economic policies. The focus changed from a closed economic se....
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...."margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means - (i) the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii)&nbs....
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....case may be, shall not apply to articles imported by a hundred per cent export-oriented undertaking or a unit in a free trade zone or in a special economic zone. Explanation: - For the purposes of this section, the expressions "hundred per cent export-oriented undertaking", "free trade zone" and "special economic zone" shall have the meanings assigned to them in Explanation 2 to sub-section (1) of section 3 of the Central Excise Act, 1944 (1 of 1944). If the Central Government, in respect of the dumped article under inquiry, is of the opinion that - (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously under-mine the remedial effect of the anti-dumping duty liable to be levied, the Central Government may, by notification in the Offic....
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....on-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." [Emphasis supplied] 7.Method of determination of the injury and the procedure to be followed is provided in Section 9B of the Tariff Act, relevant portion of which is extracted below : No levy under section 9 or section 9A in"9B. certain cases. - (1) Notwithstanding anything contained in section 9 or section 9A: - (a) ......... (b) the Central Government shall not levy any countervailing duty or anti-dumping duty - (i) under section 9 or section 9A by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes; (ii) under sub-section (1) of each of these sections, on the import into India of any article from a member country of the World Trade Organi....
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.... the producers within such a market sell all or almost all of their production of the article in question in that market; and (ii) the demand in the market is not in any substantial degree supplied by producers of the said article located elsewhere in the territory; Explanation. - For the purposes of this clause, - (i) 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 subject to the condition that are grounds for believing or suspecting that the effect of the relationship is such as to cause the producers to behave differently from non-related producers. (ii) a producer shall be deemed to control another producer when the former is legally or operationally in a position to exercise restra....
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....y to domestic industry, material retardation to the establishment of the domestic industry, a causal link between the dumped imports and the injury. This is done by taking into account all relevant factors including the volumes of dumped imports, their effect on the price in the domestic market. The principles on which the determination are done is indicated in Annexure II to the Rules. Rule 11 reads: Determination of Injury."11. - (1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with....
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....bber [for short "NBR"] as manufactured by Korea Kumho Petrochemicals Limited [for short "KKPC"]. The subject goods are oil resistance rubber and are of various grades like : KOSYN KNB 35 L KOSYN KNB 35 LL KOSYN KNB 35 LM KOSYN KNB 35 LH KOSYN KNB 0230 KOSYN KNB 0230 L KOSYN KNB 0230 H The subject goods are being imported into India for near about a decade. The appellant's entire activities/trading activities and earning is from the sale of the subject goods as are imported from time to time in lawful manner subject to the policy laid by the concerned authorities. 15.The subject anti-dumping duty proceedings relate to NBR which is the commercially known name of the said type of goods. Broadly speaking NBR is a synthetic rubber mainly used in the manufacture of other rubber articles such as oil-seals, hoses, automobile product, rice dehusking rolls etc. NBR is a generic term. It has various grades and physical forms. Various grades have different purposes and are put to use as raw material for the production of various types of finished products. 16.The rubber industry in India is a vital industry and has a bearing on the economic health of the country. ....
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....he like article when meant for consumption in the exporting country. The designated authority after considering the entire data of facts came to the conclusion that the article NBR exported to India from Korea and Germany was not de minis as the difference in price in the local market (India) and the price at which it was sold in the country of export was more than 2% and further the total quantity exported from Korea was more than 3% of the total imports. That the injury was caused to the domestic industry. In so far as causal link was concerned, it was held that because of the NBR exported to the country a material injury had been caused to the domestic industry. In determining whether the material injury to the domestic industry was caused by the dumped goods, the authority took into consideration the following facts : "(a) The imports of the product from the subject countries cumulatively increased significantly in absolute terms and relative to the production and consumption of the product in India. The share of the subject countries in the total imports also increased significantly. As a direct consequence, the domestic industry lost market to....
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....on of anti-dumping duty from US Dollar terms by the Tribunal on its own volition even though there was no prayer by the appellant or a cross appeal/objection by the respondent. Another aspect highlighted by the learned counsel for the appellant is relating to violation of para (iv) of Annexure II of the Rules while assessing injury. 23.Shri A. Sharan, learned Addl. Solicitor General of India, after taking instruction from the Union of India conceded that the Tribunal erred in converting the anti-dumping duty in US Dollar terms in the absence of any appeal or cross appeal by the respondent. He conceded that the order passed by the Tribunal in converting the anti-dumping duty in US Dollar terms be set aside and order of the designated authority in imposing the anti-dumping duty in rupee term be restored. It is so ordered. 24.Regarding non-consideration of the various parameters laid down in para (iv) of Annexure II, it was submitted by him that since this issue had not been raised before the appellate Tribunal the appellant cannot be permitted to raise the same for the first time in this Court as the finding recorded by the Designated Authority on this score is essentially a fi....
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....on 9B(1)(b)(ii) provides, that the Central Government shall not levy anti-dumping duty on articles imported from a specified country (members of the WTO and those with whom India has a Most Favoured Nation (MFN) agreement) unless in accordance with the Rules made under Section 9B(2) a determination has been made that the import of such article causes material injury to an industry in India. In terms of Rule 11 of the Rules framed under Sections 9A(6) and 9B(2), recording of a finding on material injury is sine qua non for imposition of the duty. Sub-rule (2) of Rule 11 provides that the Designated Authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure-II of these Rules, which reads thus : The examination of the impact of the"(iv) dumped imports on th....
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....Authority had considered the appellant to be a non-cooperative exporter and determined the normal value of NBR produced by it on "facts available basis". This finding of the Designated Authority has been confirmed by the Tribunal in the impugned order. The Tribunal has further held that in the facts and circumstances of the present case, the normal value arrived at by the Designated Authority was not required to be disturbed in the absence of reliable alternative basis provided by the appellant. 31.The Tribunal further observed that in respect of injury analysis, while the appellants may be right in maintaining that all the parameters stipulated in para (iv) of Annexure-II to the Anti-Dumping Rules were required to be considered by the Designated Authority, but Annexure-II does not stipulate a separate injury analysis for a review investigation, as the parameters mentioned therein were not a check list. It is not necessary to faithfully mention each of the criteria and an appropriate notation against each of them, but a sound appreciation of the situation based on the relevant criterion. 32.We have considered the rival submissions put forth by the counsel for the parties. The....
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....he 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 longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domestic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer. 36.It is of vital importance to note that in the initial imposition of duty, the appellant has accepted the position that determination of injury by the Designated Authority was proper and in conformity with the requirements of Anne....
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....either the Designated Authority nor the appellant had placed any material on record which could possibly displace the findings given by the Designated Authority at the stage of initial anti-dumping duty. In the absence of any new material, the Designated Authority is not required to apply afresh all parameters or criteria enumerated in para (iv) of Annexure-II, which had already been done at the initial stage of imposition of anti-dumping duty. There is no material on record to show that there was a change in the parameters or the criteria relating to the injury which would warrant withdrawal of anti-dumping duty. Nevertheless, the Designated Authority has still analysed the issue of injury in detail in the Mid Term Review findings and has considered all the criteria or parameters enumerated in Annexure-II. There is, therefore, no merit or substance in the appellant's contention regarding non-compliance with Annexure-II. 38.The Designated Authority in the Mid Term Review has reduced the anti-dumping duty from US dollar 264 per MT to US dollar 248 per MT. This again shows that all the relevant material facts had been taken into consideration by the Designated Authority while anal....