By TIOL News Service

NEW DELHI, FEB 18, 2014: VIDE Customs Notification No. 33/2008 dated 11/03/2008, definitive anti dumping duty was imposed with effect from 19th June 2007 on import of acetone (hereinafter referred to as the subject goods) originating in or exported from EU, Chinese Taipei, Singapore, South Africa and USA. The ADD was imposed based on the final finding of the Designated Authority vide Notification No. 4/04/2006-DGAD dated 04/01/2008 as amended by Notification No. 14/04/2006-DGAD dated 28.01.2008 recommending the said levy equal to the lesser of margin of dumping and margin of injury. These Notifications are under challenge in this appeal by the exporter appellant M/s Sasol Solvents from South Africa.

The appellant mainly contended that:

The subject goods originating or exported from South Korea and Russia were not subjected to initiation of investigation by Notification dated 7th September 2006. Such piecemeal initiation of the investigation did not comply to the rule of simultaneous investigation for which the final findings were vitiated. Further, investigation against exporters from above two countries although was initiated, investigation against Russian exporters was terminated on 14.3.2008.

Preliminary finding made by the Designated Authority by Notification dated 25.4.2007 did not cover exports from South Korea although by Notification dated 10.6.2008, anti-dumping duty was imposed on the subject goods in or exported from South Korea. Such approach of investigation has resulted in failure of determination of dumping and injury correctly. Therefore Designated Authority should have followed a consistent practice for simultaneous investigation in respect of subject goods exported from subject countries as well as South Korea and Russia. Designated Authority (DA) made a wrong approach for which final finding of DA is liable to be set aside.

Without considering the Russian exports and South Korean exports, there was a break in causal link for which imposition of definite anti dumping duty was uncalled for. The appellant discharged its onus of proof bringing out the material facts for simultaneous investigation when export of subject goods from Russian and South Korean figured. Investigation should have been done along with the subject countries initiated by Notification dated 7th September 2006.

After hearing all parties, the Tribunal held:

We have examined records of DA with respect to investigation into the export of subject goods from subject countries as well as investigation into exports from South Korea and Russia. No departure to the basic rule of investigation was noticed by us from such records. While investigating into exports of South Korea was considered by DA, he also considered export figures and consequence thereof relating to subject countries in the final findings against exports from South Korea. No deviation to law was noticeable.

The plea of the appellant that exclusion of South Korea rendered the investigation futile is devoid of merit for the reason that investigations can be carried out by different initiation notifications at different point of time on the basis of complaint from domestic industries against different countries at that particular time subject to testing of de minimis level of export and prima facie conclusion of dumping and injury to domestic industry.

Plea of the appellant that initiation of investigation was ab-initio void is without any force, in the absence of any cogent evidence led by appellant to set aside the investigation. Evidence led by domestic industry proved dumping and dumping injury as apparent from the records of the DA for initiation of investigation. Evidence also shows that the exports of subject goods from subject country were above de minimis level.

When dumping of subject goods due to export from subject countries was proved from the facts and figures on record of DA, working of dumping margin by him in Para 46 of the final finding remained un-rebutted by appellant. Authority brought out dumping margin percentage in respect of export from different countries considering normal value as well as export price, beginning from Para 23 to Para 45 of his final findings. Difficulties experienced by the DA for non cooperation of the exporters of different countries compelled it to arrive at reasonable basis for calculation of normal value and export price to determine dumping margin. Appellant failed to challenge the normal value or export price as ill founded without bringing any cogent and credible evidence. Therefore such calculation cannot be said to have suffered any legal infirmity. Thus plea of appellant that calculation of dumping margin is wrong is baseless

Appellant misconceived the concept of simultaneous investigation pleading that exclusion of exports from South Korea did not result in simultaneous investigation. Such plea is untenable because DA cannot postpone investigation into dumped exports above de minimus level awaiting such level to be achieved by the exports of another country as South Korean exports in the present case. Trade remedy measure is to be expeditiously provided without any loss of time when the DA is prima facie satisfied as to dumping and injury.

Injury margin was calculated by DA taking Non Injurious Price (NIP) into consideration and landed value of the exports. That shall not change either by exclusion or inclusion of any country with exports from other countries for the reason that calculation of NIP is based only on domestic industry figures. Appellant failed to demonstrate truth of its plea that exclusion of South Korean Exports made the injury analysis faulty. Therefore its appeal on this count also fails. Domestic industry, DA and Ministry of Finance was right to argue that even by inclusion of exports from South Korea with the exports of subject countries no relief could be granted to the appellant.

Accordingly, the appeal filed by the exporter was dismissed.

(See 2014-TIOL-252-CESTAT-DEL)