KANORIA CHEMICALS & INDUSTRIES LTD. Vs. DESIGNATED AUTHORITY DIRECTOR GENERAL OF ANTI DUMPING AND ALLIED DUTIES
CUSTOMS EXCISE AND GOLD(CONTROL) APPELLATE TRIBUNAL
KANORIA CHEMICALS AND INDUSTRIES LTD.
Designated Authority Director General Of Anti Dumping And Allied Duties
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R.K. Singh, Member (T) -
(1.)BY Notification No. dated April 20, 2006 the Central Government imposed anti -dumping duty on the imports of Pentaerythritol, originating in or exported from China PR and Sweden to India. The present appeal has been filed by the domestic industry, (M/s. Kanoria chemicals Ltd.), under Section 9C of the Customs Tariff Act, 1975 against the sunset review notification No. dated 14.06.2011 of the Central Government read with Final Findings dated March 25, 2011 of the Designated Authority, in terms of which anti -dumping duty was discontinued in respect of imports of subject goods from Sweden, though anti -dumping duty continued in respect of imports of subject goods from china PR.
(2.)IN the Final Findings dated March 25, 2011 the Authority has held that the total imports from Sweden during the period of investigation were barely 81MT, which can not be treated as a representative volume of import for determination of individual dumping margin. On the issue of likelihood of recurrence of dumping or injury, in the event of revocation of duties, the Authority in para 58 of the final findings held as under:
"58. The Authority has taken note of the information on record. It is noted that the margins of both dumping and injury are negative so far as imports from Sweden are concerned besides low volume of imports from Sweden considering total demand in Indian market. No evidence have been placed on record by any interested party that in the event of discontinuation of antidumping duties on imports of subject goods from Sweden, the injury to the domestic industry is likely to recur. It can therefore be concluded that in the event the duty is revoked, there is no likelihood of continuation or recurrence of injury from Sweden."
The Authority thus concluded that there is no likelihood of continuation of recurrence of injury to the domestic industry, and accordingly recommended the duties on imports from Sweden be discontinued.
Arguments on behalf of Appellant Domestic Industry
It is contended that the authority was incorrect in drawing an inference of no likelihood of injury, based on the fact that there were negligible imports from Sweden. It is submitted that the reduction in imports was a direct consequence of the antidumping duty in force and gave no indication of the scenario which may emerge, were the duties to be revoked. The Authority also failed to consider the material fact that Perstorp, the sole producer of subject goods in Sweden, had another plant in Germany, from where it was exporting large volumes to India at dumped prices, for which antidumping investigations had already been initiated based on a prima facie satisfaction of the Authority. On the revocation of duties in respect of Sweden and levy of duties in respect of Germany, it was highly probable that Perstorp would resume dumping from Sweden. It was submitted that while Perstorp participated in the investigations relating to its unit in Germany, it chose not to participate in the investigations for its unit in Sweden, even though both investigations were taking place at almost the same time.
(3.)PENTAERYTHRITOL is sold in two grades - technical grade and nitration grade; the only difference being of purity. Out of the total imports into India of subject goods from all sources, about 99% is of technical grade and 1% is nitration grade. The Authority has found a positive dumping margin for technical grade as reflected in paragraph 19 of the Findings. This indicates that were the imports to resume in future, they would be predominantly of technical grade, for which dumping continues in spite of antidumping duties being in force. In these circumstances, likelihood of recurrence of dumping and injury can not be ruled out. The appellant also submitted that after revocation of duties by the impugned notification, substantial imports were coming from Sweden. They also stressed the point that in a sunset review, there is a rebuttable presumption that the conditions as they existed at the time of original investigations, continue to exist, and therefore the onus is on the exporter and not the domestic industry to rebut such presumption. They referred to a few case laws etc. which have been taken into account in the analysis below.
Arguments of the Designated Authority
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