TaxTMI 
TaxTMI 
2005 (7) TMI 132
X X X X Extracts X X X X
X X X X Extracts X X X X
....uty on Dumped Articles and for Determination of Injury) Rules, 1995, imposing anti-dumping duty on imports of Poly-Iso-Butene (PIB) at the rate which is equivalent to the difference between the amount specified in column 4 of the table (non-injurious price) and the landed value in US Dollars per MT of such imported PIB exported from the countries specified in column 2 of the table, namely, People's Republic of Korea, Brazil, Japan and Singapore. The anti-dumping duty imposed under the impugned Notification was ordered to be levied with effect from the date of imposition of the provisional anti-dumping duty i.e. 16-1-2002. 3. In the proceedings before the Designated Authority pursuant to initiation of the investigation concerning imports of PIB against six countries/territories European Union, Brazil, Japan, Korea, Singapore and Thailand, the appellants had filed responses to the initiation notification of 16-1-2001. The Designated Authority published the preliminary findings on 12-12-2001 recommending levy of provisional anti-dumping duty on the imports of PIB from Korea, Brazil, Japan and Singapore and no duty was recommended against imports from European Union and Thailand....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dered by the Government it is voice of the Industry that is being looked into but with the overriding fact kept in mind that such actions should not put the consumer/pubic at disadvantage." 7. In the Notification of final findings dated 5-9-2002, the objections of the appellants are reflected in the joint representation made by the six oil industries, as reproduced in paragraph D-4 of the final findings. 8. The Designated Authority had received an application from M/s. Kothari Sugar and Chemicals Ltd. alleging dumping of PIB originating in or exported from European Union, Brazil, Japan, Republic of Korea, Singapore and Thailand. The Designated Authority on the basis of the evidence submitted by the petitioner, decided to initiate investigation against the subject countries and issued public notice dated 12-9-2001 published in the Gazette of India, Extraordinary initiating the investigation. A copy of public notice was forwarded to the known exporters of whom only M/s. BASF, Germany and M/s. DAELIM Corporation, Korea, responded. A questionnaire was sent to the known importers and consumers of the subject goods of whom the appellant, Lubrizol (India) Ltd. and Indian Additives L....
X X X X Extracts X X X X
X X X X Extracts X X X X
....riced that at indigenous price of feedstock and conversion cost, their margins had a great stress. It was submitted that in the tenders floated by the Indian Oil Corporation, exporters had quoted significantly lower price, which if they were forced to match, their margins will be eroded to such extent that viability of business will become questionable. It was also submitted that dumping was resulting in significant injury to the domestic industry, and that the situation demanded immediate imposition of anti-dumping duty on dumped imports from the subject countries. 9.1 Kochi Refineries Ltd., one of the manufacturers of the goods, also supported the anti-dumping duty petition filed by Kothari and in response to the questionnaire, they submitted the cost details stating that due to dumping of the product by the foreign agencies on the Indian market, they had to reduce their prices, far below the cost of production so as to match the landed price of the imported product to sustain operation of the plant. They had to drastically cut down the price to match with the prices offered by the foreign venders in the tenders floated by a major marketing company India (IOC). They also state....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y sufficient evidence to prove dumping, injury and causal link. It was submitted that the Designated Authority had not determined injury to domestic industry but had determined injury to one domestic producer i.e. Kothari who did not constitute a major proportion of the total domestic output of PIB. It was argued that the injury to the domestic industry contemplated under the first part of Rule 11(2), was required to be an injury to the collective output of the domestic producers of the article which constituted more than 50% of the total domestic production of that article. It was also contended that significant increase in dumped imports was not established and that all of the fifteen mandatory injury parameters were not properly evaluated by the Designated Authority. It was contented that the causal link between the alleged dumped imports and injury to the domestic industry was not established, and that the reference price, i.e. non-injurious price was only of the single producer and not of the domestic industry. It was, therefore, contended that the final findings were in violation of the provisions of Rule 5 and Rule 11 read with Rule 2(b) and clauses (ii), (iv) and (v) of Ann....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wing decisions in support of his contentions : (A) National Thermal Power Company Ltd. v. Commissioner of Income Tax reported in 1998 (99) E.L.T. 200 (S.C.) was cited for the proposition that the Tribunal has jurisdiction to examine a new ground raising a question of law which arises from the facts as found by the authorities below, even though the said question was not raised before the lower authorities nor in the appeal memorandum before the Tribunal and was sought to be added later on as an additional ground. (B) Amines Plasticizers Ltd. v. Commissioner of Income Tax reported in 1997 (223) ITR 173 was cited to point out that the Gauhati High Court held therein that if the additional ground was urged by the assessee at the time of hearing of the appeal, the Tribunal ought to have appreciated the additional ground and it would be the duty of the Tribunal to give sufficient opportunity to the other side for being heard. (C) Ramgopal Ganpatrai & Sons Ltd. v. Commissioner of Excess Profit Tax, Bombay City reported in 1953 (XXIV) ITR 362, was cited for the proposition that when a statute confers a right of appeal and permits an order of the trial court to b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d the findings of the Designated Authority to point out that all the injury parameters were duly considered by the authority who was fully conscious of the requirements of Rule 11 and Annexure II while deciding causal link between the dumped imports and the injury to the domestic industry. He supported the reasoning and findings of the Designated Authority and contended that the petitioner was fully supported by IPCL who manufactured the article through its job workers Gujarat Petrosynthese Ltd. (GPL) and Maharashtra Polybutenes Ltd. (MPL). 12.1 The learned counsel for the domestic industry placed reliance on the following decisions in support of his contentions :- (A) Ahimsa Mines & Minerals Ltd. v. Designated Authority reported in 2002 (142) E.L.T. 71 (Tri. - Del.), was cited for the proposition that an appeal at the instance of the appellant who is not aggrieved by the order impugned, is not maintainable. (B) Cyanides & Chemicals Ltd. v. Designated Authority reported in 2000 (120) E.L.T. 822 (Tribunal), was cited to point out that 'interested party' in an anti-dumping appeal was in the position of an intervener who cannot raise new grounds. It will b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2-12-2001. The appellant Lubrizol had sent its response as stated therein showing that they had imported 533.14 MTs of PIB in 1999-2000. Under the heading "views of importers", the views of the appellant were set out in para 5(ii) of that notification, as reproduced herein above. All throughout the proceedings, the appellant participated and opposed the imposition of the anti-dumping duty and the Designated Authority considered their views while making the determinations. The appellants were, therefore, parties to the proceedings before the Designated Authority. They would be persons aggrieved against the imposition of anti-dumping duty, because the anti-dumping duty would cause an additional burden on the importers wanting to import the subject goods from the subject countries. 13.2 The words "person aggrieved" are of wide import and should not be subjected to a narrow interpretation. They do not include, of course, a mere busy body, who is interfering in things which do not concern him, but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interest. Parties to the proceedings of the inferior judicial or quasi ju....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mporter, who, like the appellant, Lubrizol (India) Private Ltd., had in fact participated in the proceedings and had shown past imports in response to the questionnaire and was authorised to oppose on behalf of the importers [the appellant, Castrol (India) Private Ltd.] who had signed letters of authorisation in its favour, would, in our view, be an interested party who is aggrieved by the imposition of the anti-dumping duty on all the exporters from the subject countries that would directly affect their duty liability on the imports from such countries. There is, therefore, no substance in the preliminary objection raised against the maintainability of these appeals under Section 9C at the instance of the appellants-importers, who are parties aggrieved against the orders. 14. From the arguments raised and reproduced in paragraph D-4 of the final findings, it is evident that the appellants and other members of oil industry who made a joint representation, did not raise the contention that the petitioner was not a "domestic industry" within the meaning of Rule 2(b) read with Rule 11(2) on the ground that their collective output of the said article did not constitute a major propo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ffect of the dumped imports on prices as referred to in sub-rule (2) of Rule 11 of the Designated Authority shall consider whether there has been a significant price under cutting by the dumped imports as compared with the price of like production in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increase which otherwise would have occurred, to a significant degree. (iii) .... (iv) The examination of the impact of the dumped imports on the domestic industry concerned, shall include an evaluation of all relevant economic factors and indices having a bearing on the stake of the industry, including natural and (potential) decline in sales, profits, output, market share, productivity, return on investments or utilisation of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital investments. (v) It must be demonstrated that the dumped imports are, through the effects of dumping, as set forth in paragraphs (ii) and (iv) above, causing injury to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted the petition have stated that imports of Poly-Iso-Butylene have increased significantly in the past few years. The imports are so low priced that at indigenous price of feedstock and conversion cost their margins are at great stress. In the recent tenders floated by Indian Oil Corporation, exporters have quoted significantly lower price, which if they are forced to match, their margins will be eroded to such extent that viability of business will be questionable. The dumping is resulting in significant injury to the Indian industry. The situation demands immediate imposition of anti-dumping duty on dumped imports from subject countries." Paragraph 11 of the final findings also records that IPCL who was selling the article produced by MPL and GPL had supported the petition and that "the petitioner, therefore, satisfies the standing of the domestic industry in accordance with the rules". The only objection that was raised in the above background as referred to in paragraph 12 of the final findings for the "importers and exporters" was the one raised by the Korean exporter Daelim, that BPCL should be excluded from the scope of domestic industry for captive consumption and there....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d MPL who were engaged in the activity of manufacture on job work basis for the IPCL far exceeded 50% of the total domestic production. Therefore, even if a narrow meaning, as argued on behalf of the appellant, is inflicted on the expression "major proportion of the total domestic production" in Rule 2(b) so as to mean more than 50% of the total production, there is no substance in the contention now raised, which was rightly not raised, in the above background, during the proceedings before the Designated Authority. 15.1 We may note here that the words "major proportion of the total production" in Rule 2(b) defining the 'domestic industry' are also capable of being construed so as to mean significant proportion or important part of the total production which may not necessarily exceed 50%. The word "major", as per the Oxford Dictionary, means "important, serious or significant". The word "proportion", in the context, would mean share. Therefore, the expression "major proportion" would, in the context, of total production of domestic industry, mean significant or important share. Such an interpretation is clearly permissible and going by it, the share of the petitioner i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed from the graph prepared on behalf of the appellant and submitted to the Designated Authority. It was initially argued that, the export price for Japan and Singapore was wrongly determined in the preliminary findings and no correction was made in the final findings, but this contention was specifically abandoned during the course of the arguments, since the landed price was in fact below the NIP even in respect of the exports from these two countries. 16.1 The term 'injury' as contemplated under the Rules means material injury or threat of material injury to a domestic industry or material retardation of the establishment of such an industry. A determination of injury, for the purpose of Rule 11, is required to be based on positive evidence and involves an objective examination of the volume of the dumped imports and the effect of the dumped imports on the prices in the domestic market for like products and the consequent impact of these imports on the domestic producers of such articles. 17. The fact that the article in question was being dumped from the countries named in the final findings, as held by the Designated Authority in consonance with Rule 10 read with ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly the learned Counsel for the appellants argued that the fact that the dumped imports had dropped in absolute terms during the period of investigation as compared with the previous year was ignored by the Designated Authority though mandated in the rules, he gave up this contention as the arguments progressed and rightly so, because, the Designated Authority in paragraph 26(a) of the final findings, on the basis of information published by DGCI&S, Calcutta, did take note of the fact that the market share of imports of the subject goods from the subject countries which cumulatively was 73.60% during 1999-2000 had increased to 86.62% during the period of investigation and thus, the total dumped imports had increased by 13% during the period of investigation over the year 1999-2000. Therefore, even if there was a decline in total imports due to a sluggish demand, the share of dumped imports had increased as against the share of undumped imports, which in a sinking market would have a greater adverse impact on the domestic industry than by increase in the undumped imports. 18.Much time was devoted by the learned Counsel for the appellants to demonstrate from a graph of price trends....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... for the appellant and attached with the modified graph, that when IPCL sold the goods between Rs. 37 to Rs. 41.35/- per Kg. during June, 1999 to September, 2000, KSCL (Petitioner) sold them between Rs. 36.22 and Rs. 40.22 per Kg. Again, between November 2001 and January 2002 the article was sold at Rs. 41/- per Kg. by IPCL and at Rs. 42.50 per kg. by KSCL (petitioner). It appears from the invoices under which IPCL is said to have sold the goods at Rs. 35/- per Kg. to the appellant, Lubrizol (India) Private Ltd. that, there was a contractual arrangement between them for supply of the subject goods over a long period of time at the rate of Rs. 35/- per Kg. stipulated thereunder which later came to be revised in the extended period of contract to Rs. 41/- per Kg. Such Individual contractual arrangement in the domestic market between IPCL (who supplied raw material for getting goods manufactured from GPL and MPL) and the appellant-Lubrizol who had no imports during the investigation period, cannot be made the basis for attributing the depressed price of Rs 41/- per Kg. of the petitioner-Kothari which was much lower than the NIP of Rs. 47.29 per Kg., to any internal rivalry. In fact, w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Since the tenders were opened during the period of investigation disclosing dumped prices at which the exporters committed to offer the goods, the domestic industry was injured not only by loss of contract but there arose a real threat of material injury which also is to be considered as "injury", as defined in the opening part of Annexure II to the rules. Since such threat of injury became a real, in view of the firm offers made below the non-injurious price in the tenders by the exporters, the Designated Authority rightly took that aspect into consideration in paragraph F(6)(iii) of the final findings along with the other relevant factors. 20. It is evident from the impugned final findings, particularly paragraphs 24 to 27 that, the Designated Authority was fully conscious of all the relevant principles and factors, required to be considered under Rule 11 and Annexure II to the rules for injury determination and the causal link and the determination had been made on the basis of the relevant parameters. The Designated Authority has rightly found that the total dumped imports had relatively increased by 13% during the period of investigation. The total production of the petiti....