ORDER
C.N.B. Nair, Member (T)
1. The Ministry of Finance imposed Anti-dumping Duty on Vitamin. AD3 500/100 imported from European Union and Singapore under Notification No. 53/2002, dated 21-5-2002. The operative part of the Notification reads as under :
“NOW, THEREFORE, in exercise of the powers conferred by Sub-section (1) of Section 9A of the said Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid final findings of the designated authority, hereby imposes on the said Vitamin AD3, 500/100 falling under Chapter 23 or 29 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, the European Union and Singapore, and when exported by the exporters mentioned in Column (3) of the Table annexed hereto, and imported into India, an antidumping duty at the rate which is to be calculated as the difference between the amount mentioned in Column (4) of the said Table and the landed value of such imported Vitamin AD3 500/100 per kilogramme.
S.No.
Name of Country/Territory
Name of the Producer/Exporter
Amount (in US dollar per kilogramme)
(1)
(2)
(3)
(4)
1.
European Union
All Exporter /producers (other than M/s. BASF Ak-tiengesellschaft, Germany through M/s. BSEA, Singapore)
41.13
2.
Singapore
All other Exporter/producers
41.13″
It is to be noted from the Table above that in respect of European Union producers/exporters, the levy was on all exporters/producers other than M/s. BASF, Germany. Same is the position in respect of exports from Singapore also. The Customs Notification was issued pursuant to and in conformity with the recommendation contained in the Final Findings dated 18th March, 2002 of the Designated Authority in the Ministry of Commerce and Industries. The present appeal of M/s. Addisseo France SAS is directed against the said Customs Notification and the Final Findings.
2. The substance of the appeal is that there was no legal justification for the imposition of duty on the exports from the appellant French Producer. It is pointed out that the appellant as well as M/s. BASF had taken part in the anti-dumping investigations carried out by the designated authority and, since on investigation finding had been reached that there was no dumping of AD3 by BASF of Germany, that finding would be equally applicable to the case of the appellant also. It is submitted that BASF, Germany and the appellant French Co. are engaged in the manufacture and sale of said goods in direct competition with each other in European Union as well as in the international market. It is also pointed out that CIF price of AD3 exports to India by both BASF, Germany and appellant French Co. are in a close range. It is the appellant’s contention that since the sale price of the BASF has been found to an undumped price, there is no reason to treat the comparable sale price of the appellant French manufacturer as a dumped price or for treating them on a different footing. During the hearing of the case, learned Senior Counsel for the appellant pointed out that the appellant French Co. had furnished complete details of all their sales in the domestic market and abroad to the Designated Authority, and since the export price to India is above the sale price for domestic sales in France and European Union, the Designated Authority should have accepted that there was no dumping by the appellant. The Senior Counsel submitted that anti-dumping duty is attracted only in a case of sale for export to India of goods below the sale price for home consumption in the country or territory of export; that it is settled law [Designated Authority v. Haldor Topsoe A/S – 2000 (120) E.L.T. 11 (S.C)] that normal value of export goods is to be determined in regard to a country of territory; that once the Designated Authority was satisfied about normal value from a particular country or territory, the question of dumping by all exporters from that country or territory is to be examined by comparing their export prices with that normal value. Learned Senior Counsel pointed out that the Apex Court had held in the case of Haldor Topsoe A/S that European Union is one territory for the purpose of determination of normal value. It is his contention that once the Designated Authority had determined (from the data furnished and considered) the normal value for AD3 manufactured by BASF that amount was required to be treated as the normal value for exports from the entire European Union. It was contended that the domestic and export to India prices of BASF and the appellant were in close proximity, the treatment given to BASF’s export should have been granted to that of appellant French Company also i.e. no duty should have been imposed on their exports, as their exports were also above the normal value, thus, involving no dumping.
3. The learned Senior Counsel also pointed that the Designated Authority should have treated the normal value determined for BASF as applicable to the present appellant too, even if the appellant was to be treated as a non-co-operating exporter and normal price determined under “facts available” standard in terms of Rule 6(8) of Anti-dumping Rules. He pointed out that verification of the data furnished by the BASF should have convinced the Designated Authority as to what was the actual normal price in European Union for AD3 and how exaggerated and unreliable was the normal value for European Union producers constructed by the sole domestic industry producer, M/s. Nicholas Piramal India Ltd. According to him the Designated Authority proceeded, quite erroneously, to determine the question of dumping by the French Exporter by treating the normal value constructed by the Indian domestic industry as the normal value for the French Co. Learned Sr. Counsel pointed out that in the final findings the Designated Authority had sought to justify this action on the ground that appellant firm was required to be treated as a non-co-operating exporter and that normal value in the case of a non-co-operating exporter was required to be fixed on the basis of “facts available” in terms of Rule 6(8) of Anti-dumping Rules. Learned Senior Counsel pointed out that this was entirely illegal and unwarranted in the facts of this case. Firstly because the appellants had not refused to co-operate and had made available all the information required for determining normal value by supplying full information about their sales in the domestic market (France), in the domestic territory (European Union) and all other countries. It is the submission of the learned Sr. Counsel that once the required data was made available, the Designated Authority should not have treated the appellant as non-co-operating exporter. Secondly, even if the Designated Authority found the information furnished by the French exporter lacking in some particulars and if it was proceeding to determine the normal value of the French supplier on the facts available basis, the only reasonable course to follow would have been to treat the normal value of BASF as the normal value for the French exporter also since both Germany and French exporters were in the same territory. In this connection, strong reliance has been placed by the appellants Counsel on the judgment of the Apex Court in the case of Designated Authority v. Haldor Topsoe A/S. Learned Counsel, in particular, referred to the following observations of the Apex Court in paragraphs 14 and 15 of this judgment :
“14. From a perusal of the provisions reproduced hereinabove, it is clear that the statute has given sufficient guidelines to the Authority to be adopted in the process of determining the ‘normal value’. To some extent these guide-lines have been placed in a preferential sequence. For example, if acceptable material is available in regard to the comparable price in the ordinary course of trade in the exporting country or territory itself then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available then the Authority has been given a choice under Section 9A(1)(c)(ii)(a) and (b). The said choice is between the comparable representative export price and cost of production in the country of origin of the goods. The question, therefore, for our consideration is whether an Investigating Authority has any discretion to reject the material produced by one of the party to the proceeding in regard to the alternatives enumerated in Section 9A(1)(c)(ii)(a) and (b) and prefer any other material to establish the normal value. As notices above while the Authority proceeded on the basis that it had the discretion to reject the evidence produced by the respondent, the Tribunal held that the Authority had no such discretion in view of the fact antidumping duty is exporter specific. It would be appropriate at this stage to extract the actual wordings of the Tribunal in regard to this finding;
“Since the anti-dumping duty is exporter specific or manufacture specific price of similar article manufactured by other exporters/manufacturers cannot be the basis for finding out the normal value”. (Para 12 of the Tribunal’s order).
15. With respect, we are unable to accept this finding of the Tribunal. From a careful reading of Section 9A of the Tariff Act and Rule 6 of the Rules, it is clear that the statute has nowhere put such a restriction on the Investigating Authority. On the contrary, a perusal of the said provisions clearly shows the ‘normal value’ will have to be determined with reference to comparable price, the word “comparable price” in the context can only be with reference to the price of similar articles sold under similar circumstances irrespective of the manufacturer. By holding anti-dumping duty to be exporter specific, the Tribunal could not have restricted the scope of the investigation only to materials to be produced by a party against whom an investigation is being conducted. Such an interpretation of the statute is wholly contrary to the very scheme of the statute. It is to be noticed that the statute has given much wider power to the Investigating Authority than what is understood by the Tribunal which is evident from the language of Section 9A(1)(c)(i) of the Tariff Act and Rule 6(8) of the Rules. As noticed hereinabove, Rule 6(8) of the Rules specifically empowers the Authority to record its findings on the basis of the facts available to it in cases where an interested party refuses access to or otherwise does not provide the necessary information to it.”
4. Learned Counsel for the Designated Authority has contended that the Designated Authority had sought additional information from the appellants after the appellant had filed their questionnaire response. However, since they did not furnish the information called for, the Designated Authority had no option but to draw adverse inference and proceeded to determine the normal value in respect of the French Exporter based on the facts available. Learned Counsel also pointed out that “facts available” rule permitted the Designated Authority to determine normal value based on the data furnished by the petitioner domestic industry. It was also open to the Designated Authority to adopt the normal price of Indian manufacturer. Learned Counsel submitted that in the present case, the Designated Authority has gone by constructed cost information provided by the petitioner after suitably moderating the data. This action could not be faulted. Learned Counsel for the Designated Authority has submitted that Apex Court had specifically approved of resorting to facts available standard under Rules 6(8) in such cases, in its judgment in the case of Designated Authority v. Haldor Topsoe A/S – 2000 (120) E.L.T. 11 (S.C.). Learned Counsel for the appellants has specifically drawn our attention to Para 16 of this judgment of the Apex Court which is reproduced below :
“16. That apart, the use of the words ‘sale of like articles’ and ‘comparable representative price of the like articles’ in Section 9(A)(1)(c) referred to hereinabove, also indicates that the statute intended that while determining the normal value the Authority has the discretion to rely on such material as is available before it which reflects the comparable value of the articles concerned; meaning thereby that the authority is not bound to look into the material which is produced by the interested party. Therefore, any argument which restricts the discretion of the Authority in the area of appreciation of evidence on the ground that the anti-dumping duty is manufacturer specific, will have to be rejected.”
5. Another point made by the learned Counsel for the Designated Authority is that in a case of non-co-operation by a foreign exporter, the Designated Authority should take the highest domestic sale price of a cooperating exporter of that territory or country and should treat that price as the normal value. It has been pointed out that if the highest price of BASF had been taken as the normal value for the French exporter, the appellant’s exports would have been rendered liable to an even higher rate of antidumping duty.
6. Learned Counsel appearing for the Domestic Industry (in its capacity as an interested party) has submitted that the complaint of the French exporter is entirely misconceived inasmuch as, on account of its non-cooperation, the Designated Authority could not verify the data filed by it and unverified data cannot form the basis for determination of normal value. He referred to Annexure-I to Anti-Dumping Rules which lays down the principles governing determination of Normal Value, Export price and Margin of Dumping and pointed out that Para 2 of the Annexure-I made it clear that sales of like product in the domestic market in the country of export or sales to a third country at a price below per unit (fixed and variable) costs of production plus administrative selling and general costs may be treated as not being in the ordinary course of trade by reason of price. Learned Counsel pointed that it is clear from this provision that, in the absence of verification of data furnished by an exporter, the Designated Authority cannot accept such data. In the present case according to Counsel, since no verification of data furnished by the French exporter had taken place, its case was required to be determined based on “facts available” rule. Learned Counsel also pointed out that since facts available rule is by its very nature a rule of adverse inference, the authority was right in not adopting the normal value of BASF for the purpose of determining normal value of French Co., though both the exporters are located within the European Union.
7. We have perused the records and have considered the submissions made by the Counsels representing all the parties. An Anti-dumping duty rests on a tripod. Its three limbs being dumping of foreign made goods to the domestic area, injury to domestic manufacturing industry and casual link between the two. Therefore, the very first question to be answered in an Anti-Dumping investigation is whether there is dumping as alleged in the petition filed by the domestic industry. And Dumping means exporting of any article from any country or territory to India at less than its normal value. Normal value in relation to any article has been defined in Section 9A(1)(c) as “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“. In the present case, the investigation has proceeded on the basis that European Union is one territory. During investigation, the Designated Authority had received questionnaire responses from BASF, Germany and the present appellant. The data furnished by the exporters covered information relating to normal value arid other aspects. After due verification of the particulars of data furnished by BASF, the Designated Authority reached the finding that export price to India of that manufacturer was above “the comparable price for the like article when meant for home consumption in European Union”. It was also satisfied that comparable price in sale for domestic consumption was above the cost of production. Thus, the normal value also satisfied the requirement of being above cost of production as stipulated in Annexure-I. No dumping is involved when goods are exported to India at or above their normal value. Since the export price to India of BASF was above the normal value, the Designated Authority reached the finding that there was no dumping of AD3 by BASF into India and recommended the exclusion of that company’s exports from proposed levy of Anti-dumping duty. The question that is raised in the present appeal is whether the Designated Authority should have treated the normal value determined for BASF as applicable to the appellant French Co. also, compared their export price to India with normal value of BASF and determined the question of dumping. Both domestic industry and the Designated Authority plead no because the appellant did not co-operate in the investigations and therefore, rule of adverse inference applies and a separate higher normal value should be determined going by the “facts available” rule. Contrarily, the appellant French exporters and Indian importers (who need AD3 for cattle feed production) emphatically plead that normal value is not exporter wise, but country or territory wise and therefore, once a normal value is determined for a country or territory, it should be applied to determine whether other exporters from that country or territory are dumping. The export prices of the French Co. to India are known and it is not disputed that those prices are above the normal value determined for BASF. Therefore, if it is held that normal value determined for BASF should constitute the basis for determining whether there is dumping by the French exporter also, the result would be a finding that there was no dumping by the French Co. also, their export prices to India being above the normal value determined for BASF, i.e. normal value for European Union.
8. While “facts available” rules is a rule of adverse inference, it is also a rule of prudence that the Designated Authority should seek corroboration for the secondary information made available to it while seeking to determine normal value under “facts available” rule. In the present case, the information about normal value in the European Union had sufficient corroboration from the BASF. The constructed cost based information furnished by the domestic industry with regard to normal value for AD3 in European Union also has been shown to be quite unreliable by the normal value determined for BASF. Viewed in that light also the Designated Authority should have accepted the normal value determined for BASF for the present appellant’s AD3 export also, rather than the constructed cost put forth by the domestic industry petitioner.
9. Contentions have been raised by both sides, as to how normal value is to be ascertained relying on the judgment of the Apex Court in the case of Designated Authority v. Haldor Topsoe (supra). A careful reading of that decision leaves no doubt that normal value is irrespective of manufacturer. Normal Value is determined for a country or a territory. It has also been made clear that where normal value information is available in respect of one manufacturer located in a country or territory, that normal value can be applied to other exporters in that country or territory for the purpose of determining whether the exports by those units are dumped exports. It was the specific situation in that case that the Designated Authority treated the European Union sale price of a European manufacturer as constituting normal value for determination of dumping by another non-co-operating exporter from the European Union. Further, resort was being made to such a course by the Designated Authority under “facts available” rule. In the judgment, the Apex Court held that statutory guidelines for determination of Normal Value have been placed in a preferential sequence, for example, “if acceptable material is available in regard to the comparable price in ordinary course of trade in the exporting country or territory itself, then the normal value will have to be determined on that basis, if such material in regard to comparable price is not available, then the Authority has been given a choice under Section 9A(1)(c)(ii)(2) and (b)” [emphasis added]. In the present case, Designated Authority has determined that the sale price of BASF for AD3 in Germany satisfies the requirement of normal value. This ‘comparable price’ has to be treated as normal price “of similar articles sold under similar circumstances irrespective of the manufacturer”. AD3 manufactured by BASF Germany and M/s. Addisseo France SAS are admittedly similar articles. They are also sold under similar circumstances, inasmuch as both are sold in competitive conditions in the European Union. So a “comparable price” for the AD3 of one rightly constitutes the “comparable price” for the other, in other words normal value. It is not in dispute that the export price to India of M/s. Addisseo France SAS for AD3 is well above the normal value determined for BASF i.e. for European Union. In such a situation, it has to be held that there was no dumping of AD3 by M/s. Addisseo France SAS. Consequently, there was no legal justification for imposing anti-dumping duty on AD3 manufactured by Addisseo France SAS and exported to India. In the view we have taken on the issue of normal value, the objections raised by the Counsel for the Designated Authority and the Domestic Industry on the ground of adverse inference etc. have to fail.
10. In the light of the above findings, the appeal of M/s. Addisseo France SAS is allowed and Column (3) under S. No. (1) in the Table to Customs Notification No. 53/2002, dated 21-5-2002 is amended as under:
SI. No.
Name of country/ territory
Name of the producer
/exporter
Amount (in US $ per Kilogramme)
(1)
(2)
(3)
(4)
1.
European Union
All exporters/producers (other
than M/s. BASF Aktiengesellschaft, Germany and M/s. Addisseo France
SAS) whether imported into India directly from European Union
or through Singapore or other sources.
41.13
The appeal is disposed of as above.
