ORDER
C.N.B. Nair, Member (T)
1. Both the appeals are directed against the same “Final Findings” dated 24th December, 1998 – of the Designated Authority with regard to imposition of anti-dumping duty on imported Acrylic Fibre from Japan, Portugal, Spain and Italy. M/s Marubeni Corporation are the foreign exporters from Japan while M/s Oswal Woollen Mills Ltd. are Indian importers of the goods.
2. The Designated Authority gave the following findings in the order dated 24th December, 1998 :-
“54. The Authority, after considering the foregoing, concludes that : (a) Acrylic fibre has been exported from Japan, Portugal, Spain and Italy has been exported to India, below its normal value resulting in dumping of acrylic fibre; (b) the domestic industry has suffered material injury; (c) the causal link between dumping and injury is established.
55. The Authority confirms the preliminary findings with regard to imposition of Anti-dumping duty and recommends imposition of definitive anti-dumping duties on all imports of acrylic fibre falling under customs sub-heading Nos. 5501.30 and 5503.30 of the Customs Tariff Act as specified under para relating to product under consideration originating in or exported from Japan, Spain, Portugal and Italy. The anti-dumping duty shall be the difference between the amount mentioned in column 4 and the landed price of imports per Kg., subject to a minimum of anti-dumping duty per Kg. as mentioned in column 5 below.
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S. Country Name of the producer Amount Amount
No. (Rs. per Kg.) (Rs. per
Kg.)
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1 2 3 4 5
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1. Japan Asahi Chemical Industries Ltd. 81.36 7.63
Mitsubishi Rayon Co. Ltd. 79.57 4.69
Toyobo Co. Ltd. 77.09 2.69
Any other exporter 81.36 7.63
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2. Spain any exporter 82.00 14.14
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3. Portugal any exporter 74.22 4.97
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4. Italy any exporter 81.12 10.66
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56. Landed value of imports for the purpose shall be the assessable value as determined by the customs under the Customs Act, 1962 and all duties of customs except duties levied under Section 3, 3A, 8B. 9 and 9A of the Customs Tariff Act, 1975.”
3. M/s. Marubeni Corporation submits that they are an export house engaged in the export of, inter aha, acrylic fibre to India. The acrylic fibre in question is not manufactured by them. It is manufactured by the producers mentioned in the impugned order i.e. Asahi Chemicals Industries Ltd., Mitsubishi Rayon Co.Ltd. and Toyobo Co. Ltd. The producers themselves were not exporting the goods to India. The investigation by the Designated Authority had covered the Japanese producers as well as the exporter. The investigation also reached the finding that the appellants were not dumping the goods but the sale price of the Japanese producers to the export house was lower than their normal domestic sale price. Accordingly, anti-dumping duties have been imposed on the three producers and “any other exporter”. It has been submitted that the Customs authorities have been adopting the landed price of Rs. 81.36 which is the residuary rate for the exports of “any other exporter” in respect of all exports by the appellants irrespective of whether the goods were the produce of producers in whose case lower landed price at Rs. 77.09 and Rs. 79.57 have been fixed under the final findings and subsequently notified by the Central Government. It has been submitted that adopting the landed price of Rs. 81.36 without regard to the manufacturer of the exported goods is contrary to law as well as the findings in the order of the D.A. Reference in this context has been made to Rule 17(3) of Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumpted Articles and for Determination of Injury) Rules, 1985 which stipulates that “The Designated Authority shall determine individual margin of dumping for each known exporter or producer concerned of the article under investigation.” The appellants contend that in the instant case since dumping margin has been determined for the three producers, the duty should be as applicable to the produce of each of the producers and not as applicable to other exporters. The appellants also submit that the goods in question are easily identifiable as the produce of individual manufacturers in view of the brand names used etc. and they would be in a position to satisfy the Customs authorities at the time of import of the goods that the goods in question are the produce of particular producers.
3.1. The appellants have also submitted that the imposition of minimum anti-dumping duty per Kg. as mentioned in Column 5 of the Table contained in the order is also not legally correct. Reliance in this regard was placed on the decision of the Tribunal in the case of B.L.A. Industries and Ors. vide Final Order No. C/6-15/2000-AD, dated 21-1-2000 [2000 (116) E.L.T. 67 (T)].
4. The appeal of M/s Oswal Woollen Mills Ltd. submits that the order has been passed without supplying all the relevant information to the appellants. It has been submitted that as the Designated Authority treated information with regard to important relevant materials like normal value of exported goods as confidential, the appellants were not able to make effective representation of their case. The appellant also contends that the finding regarding injury to domestic industry is not borne out by facts. Further, the D.A. was incorrect in bringing Tow within the scope of the enquiry.
5. With regard to the injury to the domestic industry, the finding of the D.A. is that the domestic manufacturers were unable to sell their produce at fair price and earn reasonable profit on the sale of the goods. It has been submitted on behalf of the appellants that these findings are contrary to the data on record. The appellants point out that the domestic industry was making profits and was operating at high capacity utilisation. The learned counsel referred in particular to their submission that M/s. Indian Acrylics Ltd. had made a profit of Rs. 1234.11 lacs after absorbing manufacturing and other costs of Rs. 9585 lacs. In fact, M/s Indian Acrylics Ltd. was making a net profit of Rs. 4770.80 per MT after absorbing all manufacture, administrative, managerial, financial, excises expenses and also absorbing 1156.88 lacs on account of depreciation [para (D) at page 87 of their appeal paperbook]. Therefore, the finding that the domestic industry was injured by the exports is not tenable.
5.1. With regard to including tow within scope of enquiry, it has been submitted that the petition of the domestic industry was for imposition of anti-dumping duty on acrylic fibre falling under Customs Code 5503.30 while tow is a distinct commodity which falls under tariff entry 5501.30. Tow was not a subject-matter of investigation. Therefore, including tow in the investigation was without jurisdiction.
6. We have heard the learned counsel representing the Designated Authority with regard to the issues raised in the two appeals. The learned counsel has refuted the submissions with regard to confidentiality, scope of enquiry and injury. With regard to confidentiality, it has been submitted that Rule 7 of Anti-Dumping Rules specifically states that any information provided to the Designated Authority on a confidential basis by any party during the course of investigation shall be treated as such by it and not disclosed to any other party without authorisation of the party providing such information. It has been submitted that the data relating to domestic sale price of the Japanese producers are confidential information from the Indian importers and D.A. could not have disclosed such information to the appellant without violating the specific bar in the aforesaid Rule. With regard to the finding regarding injury to domestic industry, the learned counsel referred us to the data furnished by the domestic industry along with their petition which showed that the domestic industry had incurred loss continuously for four years from 1993-94 to 1996-97 to the tune of Rs. 8361.37, Rs. 4664.25, Rs. 7141.06 and Rs. 5362.59 (in lacs) respectively. He also referred to the balance sheet of M/s. Indian Acrylics Ltd. which showed that the profit of Rs. 12.34 crores was possible in 1996-97 only on account of the write off/waiver of large amounts of loans which the appellants had defaulted. He referred in particular to the following entry in the balance sheet :-
“14. Rehabilitation Package and treatment of Interest on Loans and depreciation :
In terms of Financial package approved by IFCI, the lead Institution, company have been granted certain waivers and relief in interest and commitment charges. Relief of Rs. 20,51,57,343/- pertaining to the year 1992-93 have been adjusted in cost of the Fixed Assets. Relief of Rs. 17,94,51,698/- pertaining to the year 1993-94 and 1994-95 have been shown as prior period adjustment. Interest for the current year have been provided in terms of package sanctioned by IFCI, ADB & BANKS are yet to give approval for their share in waiver & reliefs amounting Rs. 5,72,19,000/- up to 31-3-1993 and Rs. 6,72,83,0007- for 1993-94 to 1995-96 for which, discussions are in progress with ADB and the Banks. However the Annual Accounts have been prepared after accounting for these reliefs in anticipation of the specific approval from ADB and Banks. All interest due up to 31-12-1995 have been transferred to funded Interest Term Loan Account, except for IFCI & ICICI as the amount of their share has been converted into Non convertible Debentures.”
6.1. With regard to the scope of enquiry, it has been submitted on behalf of the Designated Authority that Tow rightly has been considered as Acrylic Fibre. Reference in particular has been made to discussions in para 2 to 8 in the final findings which observed that some of the exporters themselves have included information on tow while responding to the questionaire on acrylic fibre. The order has also noted that tow can easily be converted to acrylic fibre by cutting into shorter pieces. He, therefore, submitted that the contention of the appellants on this point has no merit.
6.2. With regard to treating all exports by M/s. Marubeni Corporation as liable to anti-dumping duty as applicable to “any other exporter”, the learned counsel of the D.A. submitted that this issue has to be decided within the legal position that anti-dumping duties are exporter specific.
7. We have perused the records and have considered the rival submissions. We have already held in our decision in the case of Haider Topsoe (Final Order No. C/10/99-AD, dated 13-12-1999 [2000 (116) E.L.T. 377 (T)] in A. No. C/291/98-AD) that anti-dumping duties are exporter specific. In the instant case, we find that during the investigation, the Designated Authority, after examining the data of the various Japanese manufacturers and the appellant trading house, has come to the conclusion that in respect of each of the three producers namely, M/s. Asahi Chemical Industries Ltd., M/s. Mitsubishi Rayon Co. Ltd., and M/s. Toyobo Co. Ltd., the anti-dumping duty is required to be imposed at different rates. This has been done after taking into account the normal values of the goods in question and their export prices. Therefore, the goods produced by these producers are required to be subject to anti-dumping duties at the rates applicable to each one of the producers, irrespective of whether the goods are directly exported by the producers themselves or by an export house. This is the requirement under Rule 17(3) of the Anti-Dumping Rules. We, therefore, hold that wherever the imported goods are identified to the satisfaction of the jurisdictional Customs authorities as the produce of any of the three Japanese producers, they shall be subjected to anti-dumping duties at the rates fixed for the goods produced by those producers. This shall be the position even when the export is by or through a trading house. Accordingly, the appeal of M/s. Marubeni Corporation on this issue is allowed.
7.1. With regard to the rate of anti-dumping duty, we have already held in our order in the case of B.L.A. Industries that the duty has to be imposed in US Dollar terms and not in Indian Rupees. That decision covers the issue in this case also. We have also held in the same order that imposition of minimum anti-dumping duty is not permissible in law. Therefore, the recommendations in the final findings insofar as they relate to imposition of minimum anti-dumping duty are set aside.
8. Coming to the appeal of M/s Oswal Woollen Mills Ltd., in respect of the issue regarding treating information as confidential, we find that Rule 7 of the Anti-Dumping Rules specifically provides that information provided on a confidential basis by parties to the anti-dumping proceedings should be treated as such by the Designated Authority. Needless to say, domestic price of the exporters, the quantity sold by them to various buyers etc. are confidential and were supplied on that basis to the Designated Authority. Therefore, the appellate authority cannot be faulted for not disclosing them to the Indian importers. This cannot be a reason for holding the anti-dumping investigations as conducted to be contrary to the principles of natural justice. Similarly, with regard to injury to domestic industry caused by the importers, we find that petition filed by the domestic industry clearly revealed that the industry was in continuous loss for four years. The marginal improvement in their profit was on account of pardoning of huge loans and not on account of realisation of an economic sale price. With regard to the scope of the investigation, we find that the D.A. has discussed this issue in detail in the final finding order and indicated the justification for including tow. The exporters themselves are treating tow as acrylic fibre. Tow is converted to fibre without much effort and uses are also one and the same. In these facts and circumstances, we find no error or illegality in the final findings as reached in the order of the Designated Authority. Therefore, the appeal of M/s. Oswal Woollen Mills Ltd. fails and is dismissed.
9. To sum up, subject to the modifications as mentioned in para Nos. 7 & 7.1 of this order, the impugned order is confirmed and appeals disposed of accordingly. Consequently, the table under Para 55 of the Final Findings of the Designated Authority is modified as under :-
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S.No. Country Name of the producer/ Amount (US
$ per Kg.)
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1 2 3 4
1. Japan Asahi Chemical Industries Ltd. 2.28
Mitsubishi Rayon Co. Ltd. 2.23
Toyobo Co. Ltd. 2.16
Any other producer 2.28
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2. Spain any exporter 2.30
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3. Portugal any exporter 2.08
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4. Italy any exporter 2.28
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