Notification No. 22/1/2001 –DGAD dated the 24 th December, 2002
Anti-Dumping investigation concerning imports of Certain Polyester Staple Fibres (PSF) originating in orexported from Korea R P, Malaysia, Taiwan and ThailandHaving regard to the Customs Tariff Act, 1975 as amended in 1995 and the Customs Tariff (Identification,Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995,thereof.
A. PROCEDURE:2. The (procedure described below has been followed with regard to the investigations:-
i) The Designated Authority (hereinafter referred to as Authority), under the above Rules, received a writtenpetition from M/s. Association of Synthetic Fibres Industry (ASFI) representing the Indian domestic PSF industry,alleging dumping of Certain Polyester Staple Fibres (PSF) originating in or exported from Indonesia, Korea R P,Malaysia, Taiwan and Thailand.
ii) The preliminary scrutiny of the application revealed certain deficiencies, which were subsequently rectified bythe petitioner.
The petitioners in their petition had suggested the 'period of investigation' as 'March 2000 to November 2000'. It was explained that the November data is the most recent data available on the subject while March data has beenincluded in the POI as the custom duties on PSF were reduced from 35% to 20%w.e.f. 1st March, 2000. Since theduties become effective immediately after the presentation of the Budget, the petitioners consider, that the real effect of injury would be captured if the POI starts from 1st March, 2000. It was added that the importers as well as the exporters from the subject countries were fully aware of the reduction of duties as the same were brought down due to the Indo-US and indo-EU MOU.
The authority considered the above views and instead suggested that the POI be revised emphasizing that the POIshould be on quarter wise basis as that would help in making appropriate analysis. While considering the proposedPOI, due regard was given to the various draft recommendations of the WTO's Committee on Anti-dumping practices. Accordingly, the petitioner submitted a revised petition taking 1st January 2000 to 30 September 2000 as the 'Period of investigation. The petition was therefore considered as properly documented.
iii) The Authority on the basis of sufficient evidence submitted by the Petitioner decided to initiate investigationsagainst alleged dumped imports of Certain Polyester Staple Fibres (PSF) originating in or exported from Korea R P,Malaysia, Taiwan and Thailand. The Petitioner decided to exclude Indonesia from the scope of these investigations,as imports of the subject goods were below the de-minims level from Indonesia during the ‘POI’. The Authoritynotified the Embassies of the subject countries about the receipt of dumping allegation before proceeding to initiate investigations in accordance with sub rule 5(5) of the Rules;
iv) The Authority issued a Public Notice dated 25th June, 2001; published in-the Gazette of India Extraordinaryinitiating anti-dumping investigations concerning imports of Certain Polyester Staple Fibres (PSF) being clearedunder Chapter 55 of the Customs Tariff Act, 1975, originating in or exported, from Korea R P, Malaysia, Taiwan andThailand. No specific data is available with DGCIS on the import and export of this product, as the subject goodsconstitutes only a part of the HS code 5503.20 at the 6-digit level.
v) The Authority forwarded a copy of the Public Notice to the Associations of manufacturers in the respectivecountry of export (whose details were made available by the Petitioner) and gave them an opportunity to make their views known in writing within forty days from the date of the letter;
vi) The Authority forwarded a copy of the Public Notice to the known porters and the known uses of CertainPolyester Staple Fibres (PSF)(whose details were made available by the petitioner) and advised them to make theirviews known in writing within forty days from the date of the letter;
vii) Request was made to the Central Board of Excise and Customs to arrange details of imports of CertainPolyester Staple Fibres (PSF);
viii) The Authority provided copies of the non-confidential version of the Petition to the known exporters and theEmbassies of the subject countries in accordance with Rule 6(3) supra;
ix) The Embassies of the subject countries were informed about the initiation of the investigation in accordancewith Rule 6(2) with a request to advise the exporters/producers from their country to respond to the questionnairewithin the prescribed time. A copy of the fetter, petition and questionnaire sent to the exporters was also sent to them, along with a list of known Associations of manufacturers in the respective country of export.
x) A questionnaire was sent to the known importers/users (as per details in the preliminary findings) of CertainPolyester Staple Fibres (PSF) in India calling for necessary information in accordance with Rule 6(4);
(xi) The Authority notified preliminary findings vide notification dated 16th January 2002 and requested theinterested parties to make their views known in writing within forty days from the date of its publication;
(xii) The Authority also forwarded a copy of the preliminary findings to the Embassies/ High Commission of subjectcountries in India with a request that the exporters/producers of subject goods and other interested parties may be advised to furnish their views on the preliminary findings in the time frame as stipulated above;
(xiii) The Authority forwarded a copy of the preliminary findings to all the known exporters and Associations ofmanufacturers in the respective country of export (whose details were made available by the Petitioner) otherexporters why responded to the initiation notification, importers and user industry associations in India and they were requested to furnish their views, if any, on the preliminary findings within forty days from the date of the letter;
(xiv) The Authority provided an opportunity to the interested parties to present their views orally on 23.07.2002. All parties presenting views were requested to fife written submissions of their views expressed. The parties wereadvised to collect copies of the views expressed by the opposing parties and offer rebuttals, if any;
(xv) The Authority made available to all interested parties the public file containing non-confidential version ofevidence submitted by various interested parties for inspection, upon request as per Rule 6(7);
(xvi) Arguments made by the interested parties before announcing the preliminary findings, which have been brought out in the preliminary findings notified have not been repeated herein for sake of brevity. However, the arguments raised by the interested parties subsequently have been appropriately dealt in the disclosure statement and these findings;
(xvii) In accordance with Rule 16 of the Rules supra, the essential facts/basis considered for these findings weredisclosed to known interested parties on 3.12.2002 vide a disclosure statement and comments received on the same have also been duly considered in these findings;
(xviii) Cost investigations including spot verification (as, deemed necessary) of the domestic industry were alsoconducted to work out optimum cost of production and cost to make and sell the subject goods in India on the basis of Generally Accepted Accounting Principles (GAAP) and the information furnished-by the Petitioner.
(xix) The Authority conducted on the spot verification of information furnished by exporter M/s Far Eastern TextileLtd., Taiwan;
(xx) *** in this notification represents information furnished by the interested parties on confidential basis and soconsidered by the Authority under the Rules;
(xxi) The investigation covered the period from 1st January, 2000 to 30th September, 2000.
B. VIEWS OF PETITIONERS, EXPORTERS, IMPORTERS AND OTHER INTERESTED PARTIES ANDEXAMINATION BY AUTHORITY.3. The views expressed by, various interested parties have been discussed in the preliminary findings and also inthe disclosure statement. The views which have not been discussed earlier in the preliminary findings and disclosure statement and those now raised in response to the disclosure statement are discussed in the relevant paragraphs herein below to the extent these are relevant as per rules and have a bearing upon the case. The arguments raised by the interested parties have been examined, considered and, wherever appropriate, dealt in the relevant paragraphs herein below.
4. At the Preliminary Findings stage responses been received from the following:
Exporters:–(i) M/s Kangwal Polyester Co., Ltd., Thailand.
(ii) M/s Tuntex (Thailand) Public Co. Ltd., Thailand.
(iii) M/s Far Eastern Textile Ltd., Taiwan
(iv) M/s Teijin Polyester (Thailand) Ltd.
(v) M/s Teijin (Thailand) Ltd.
(vi) M/s Penfibre SDN.BHD., Malaysia.
(vii) M/s Huvis Corporation, Seoul, Korea
Importers & Users (including Associations)1. M/s Rajasthan Spinning & Weaving Mills Ltd.
2. M/s Shree Rajasthan Texchem Ltd.
3. M/s APM Industries Ltd.
4. M/s Priyadarshini Spinning Mills Ltd.
5. M/s Sutlej Industries
6. M/s Bhoruka Textiles Limited
7. M/s Bhoruka Industries
8. M/s Visaka Industries Ltd.
9. Ws Deepak Spinners Ltd.
10. M/s Banswara Syntex Ltd.
11. M/s The Bombay Dyeing & Mfg. Co. Ltd.
12. M/s Madura Coats Ltd. '
13. M/s Shri Rajasthan Texchem Limited
14. M/s Indian Rayon and Industries Limited (M/s Jaya Shree textiles)
15. Northern India Textiles Mills' Association.
16. Indian Spinners Association
17. Southern India Milts' Association
The submissions made by various interested parties had been dealt within the preliminary findings and these are not being repeated here for the sake of brevity.
Submissions made subsequent to the Preliminary Findings:
5. Submissions made by M/s by M/s Madura Coats Ltd. M/s Teiijn Polyester, (Thailand) Ltd.; M/s Teijin(Thailand) Ltd., M/s Penfibre SDN.BHD. Malaysia and M/s Sree Karpanambal Mills Limited Tamilnadu.5.1) The petitioners have not made disclosure of material information which is relied upon by the Authority andwhich is by nature non-confidential. The following information was purported to be treated as confidential by theAuthority on the request of the petitioners although there was no basis for such information to be treated asconfidential. Non-disclosure of the following information has resulted in a denial of natural justice and has prevented interested parties to present arguments on matters of facts and law.
a. Constructed normal value data has been treated as confidential. It is admittedly an estimate, based oninternational prices of raw materials. It is stated by the petitioners that there are no significant differences in thelevels of technology or operations. It is therefore submitted that an estimate based on international prices of rawmaterials and standardised production processes could not have been treated as confidential and its disclosure tointerested parties was of no significant advantage to the competitor. The said information is however significant tothe interested parties as constructed normal value data provided by the petitioners has been accepted by theauthority for initiating the investigation and for determining normal value and margin of dumping.
b. The consumption norm for production of PSF as per certain Dewitt and Co. report to arrive at raw material costhas been treated as confidential, the same did not warrant confidentiality as these are standardised norms basedon a report. The Dewitt and Co. Report itself has not been disclosed. Moreover, these norms are stated to havebeen adopted to arrive at constructed normal value which itself did not warrant any confidentiality.
c. The prices of key raw materials based on monthly PCI Report ought not to have been treated as confidentialmore so when the figures are widely published and internationally accepted as claimed by the petitioner. It is notdisclosed which all monthly reports have been relied upon.
d. The conversion cost used in determining constructed normal value purportedly based on the said Dewitt andCo. report is not disclosed.
e. Even "other fixed costs" for arriving at constructed normal value, the basis of arriving at these costs and/or asto what these costs are have not been disclosed.
f. The “costs of exports" claimed by the petitioners as adjustment for arriving at estimated ex-factory export pricehave not been disclosed. These costs are admittedly based on petitioners' experience and general trade practicesand were therefore not confidential. It is pertinent to note that estimated/constructed export price from subjectcountries as finally calculated was disclosed.
g. The volume and value of subject goods production by the petitioners and the domestic industry has not beendisclosed. The same could not be of any significant competitive advantage to a competitor more so whenpercentage share of petitioners and supporting companies in the production of subject goods is disclosed and theproduction of PSF is available from petitioners' balance sheets. The above information was necessary as thesame was used by the Authority for the purposes of determining the standing of the petitioners and for injurydetermination.
h. The petitioners installed capacity for subject goods has not been disclosed. The installed capacity of PSF isreadily available from petitioners balance sheet. Moreover, petitioners' capacity utilisation in percentage terms hasbeen disclosed. The installed capacity of companies which are under the legal and operational control of RIL hasalso not been disclosed. This information has a bearing in injury determination.
i. The petitioners have presented annualised figures of their sales volume during POI when actual figures wereavailable at the time of submitting the application. The actual/annualised sales volume figures have not beendisclosed. This aspect strangely has hot even been dealt with in the disclosure statement.
j. The market demand data for subject goods which is by nature non-confidential has not been disclosed. Thisdata has been extensively relied upon by the Authority in evaluating injury determination.
k. Annualised import figures which have not been disclosed have been used to suggest increase in volume ofimports when actual figures were available. Actual import figures for the POI or even the annualised import figureswrongly relied upon have not been disclosed at all.
I. Optimum (not any actual) cost of production for producing subject goods has not been disclosed. m.Optimum (not any actual) level of capacity utilisation for the domestic industry has not been disclosed.n. It has not been shown as to how fair selling price or non-injurious price has been worked out and what are thecosts involved and the underlying assumptions. The non-injurious price proposed to be relied upon is also notdisclosed.
o. The alleged normative basis of working out fair selling price has not been disclosed. It is not shown as to howinjury to the domestic industry on account of some unexplained "other factors" is nullified. What are these otherfactors, the same is also not disclosed.
p. The results of cost investigation/on sport verification of the domestic industry allegedly conducted by theAuthority has not been disclosed. It is riot explained how actual cost of production differ from optimum costallegedly arrived at. No reasons for variance if any are shown. It is not explained whether there were materialdifferences in the elements of costs of production of domestic industry. RIL had confirmed in its publishedbalance, sheet that majority of domestic industry lacks economies of scale. RlL his been consistently acquiringadditional PSF capacity.
q. It is not discto6ed how customers/users of subject goods tried to take, advantage of the lowest offers fromexporters of subject goods as alleged by the petitioners.
r. There is no material disclosed to prove that domestic industry was forced to respond to lowest quotes offeredin the market Place to protect its increasing market share and to ensure that customers did not go away.
s. What is the, fair on investments to which the domestic industry is allegedly entitled to, has not been disclosed.What is the fair level of investment on which fair returns have been assumed has not been shown.
t. The analysis of financial information if provided by the domestic industry and the results of verificationallegedly done by the Authority to purportedly examine the impact of imports on domestic industry's ROCE hasnot been disclosed. The methodology adopted has not been disclosed.
u. The alleged analysis of the Authority to suggest that negative cash flow of lRSL was a function of several otherfactors has not been disclosed. What are these "other factors" have also not been disclosed.
v. The Authority his not disclosed "other factors" that are said to have resulted in sales price improvement of thedomestic industry and the extent to which the sates price increase was accounted for by increase in raw materialprice has not been disclosed.
w. It is not disclosed' as to how quarter-wise information in respect of POI was helpful to the Authority in makingappropriate analysis. The Authority has not disclosed the "appropriate analysis" allegedly tried out in respect ofthe information submitted by the petitioners.
5.2) The period of investigation i.e. January-September, 2000 is only nine months which of two uneven periodsdrawn from two different accounting years of tile petitioners in total disregard of the nom. The POI has been revised backward by the Authority purportedly based on draft recommendations of WTO Committee on Anti Dumping practices which are the Authority. It is also not clear why four full quarters comprised in the year 2000-2001 was never considered by the Authority.
5.3) Standing of M/s Reliance Industries Ltd. (RIL)-The petitioners were required but failed to provide detailsof imports of subject goods during the previous two years and the current year to the dated of application. In theOrder dated 15.10.2001 and preliminary findings dated 16.1.02 the Authority has stated that the domestic industry did not import subject goods during the POI. RIL made imports of subject goods during period Novermber, 2000 –January, 2001. RIL therefore, profiteered form the alleged dumping practice. RIL is, therefore, deemed not to formpart of the domestic industry and therefore, ineligible to make the application by virtue of Rule 2 (b) read with Rule 5(3) (a).
5.4. Standing of M/s. Indo Rama Synthetics Ltd. (IRSL)-IRSL is related to P. T. Indo Rama Synthetics TBK,Indonesia (P. T. Indo Rama). It is state in the Annual Report of P.T. Indo Rama that P. T. Rama and Poly (Thailand)Limited are related parties which have the same management. Indo Poly (Thailand) Limited is an exporter of PSF toIndia. As both IRSL and P.T. Indo Rama are directly and indirectly controlled by members of the Lohia family who are related to each other and together exercise legal and operational restraint and direction over the two companies, IRSL and P.T. Indo Rama shall be deemed to be related to each other.
5.5) Import Data-The petitioners have stated that data of imports through Mumbai and Manglore has beencompiled by Trade India Import Data, Mumbai end for imports through other ports tike Cochin, Chennai, Tuticorin,Kolkata and Haldia have been compiled from Customs daily lists of from the respective ports and that the data doesnot cover JNPT; ICDs and some minor ports. The petitioners then state that the said data is the "Best- InformationAvailable" for the subject goods in terms of pare 8 of Article 6 in Annexure II of WTO Anti-Dumping Agreement. Thepetitioners have themselves failed to provide complete data in respect of imports of subject goods which wasnecessary initiating, the investigation.
5.6) Like Article-The petitioners have made urn incorrect statement that the petitioners products are likearticles as the product alleged to be dumped and that the alleged dumped imports are technically and commerciallysubstitutable to the goods manufactured by the Domestic Industry. The petitioners did not clarify that the productunder the general description of PSF fall under the three different categories Le (i) Fibre suitable for manufacture of high quality sewing threads and industrial textiles which is of 'Super High Tenacity'(SHT Fibre); (ii) Fibre suitable for manufacture of apparels fabrics which is of 'Normal, Tenacity (NT Fibre) and (iii) Fibre -fill PSF mainly used as filling material. SIT and NT fibre are not interchangeable and substitutable commoditlee. Therefore SHT fibre ought to have been excluded from the article subject to the investigation as it is a distinct and different commodity from the article subject to investigation. M/s. Pen Fibre, Malaysia have argued that petition fails to set out the technical specification of the product manufactured by the petitioners i.e. in terms of tenacity, elongation, number of crimp, degree of crimp, fibre length and Ti02 content. Further it has been argued that Pen Fibre's product are known by the specifications of super bright having a TI02 content of Zero whereas the domestic, industry products in variably have a Ti02 content.
5.7) Domestic PSF Prices-It has been claimed by the domestic industry that the increase in prices of subjectgoods is due to increase in the cost of raw materials. Moreover the Authority has confirmed that the entire increase in the domestic prices is not on account of increase in raw material prices. This clearly suggests that the domestic price increase recovered more than the increase in cost of raw materials.
5.8) Loss In Sale of PSF by Domestic Industry-It needs to be investigated why domestic industry presentedcosting data to show losses on sales when reliable studies show that at the prevailing domestic prices during POI, the domestic industry was in fact generating profit.
5.9) No Price Suppression-There was no price suppression taking place during POI, much '6ss due to importsof PSF. Domestic PSF price movement was quite independent of landed value of imports of PSF during the relevanttime. In any event the domestic industry was able to fully recover price increase in. raw material and earn tent margin. During POI the domestic prices of PSF were not suppressed and in fact registered a marginal increase from Rs.55.50 per kg in January, 2000 to Rs.58/- per kg in September, 2000 (semi-dull PSF) and from Rs.58/- per kg to Rs.58.50 per kg (HT-PSF). "These prices were significantly higher than the fair selling prices fixed for Penfibre and Teijin Thailand Ltd. The domestic industry therefore, did not suffer material injury as a result of imports of subject goods.
5.10) Evaluation of Injury by the Authority:
a) it -has been stated that sales volume of PSF on an annualized basis declined by a mere 1.34% during thePOI over the preceding financial year 1999-2400. While the decline in sales volume computed on anannualized oasis is not significant, it is relevant to note that IRSL significantly increased sales volumescontinuously for three years i.e. 1999-00, 200001 and 2001-02. The annualized data of sales volumerelied upon by the Authority may not depict true picture of sales volume actually recorded by the domesticindustry for the subject goods and the same will not be a correct yardstick for evaluating impact of impartsof PSF on the domestic industry.
b) The market share of domestic industry fell from 97.46% in the year 1909-2000 to 96.12% during the POI.Here again the annualized data has been compared by the Authority without disclosing total market sizeand market share of domestic industry. The Authority was required to compare actual data for the relevantperiod and not any annualized which hay only presented a distorted picture and unfair finding.
c) It is relevant to note that imports of PSF from subject countries are mere 2% of the domestic production ofPSF and a still lower percentage of total market demand: In such circumstances, the volume of importsfrom subject countries are required to be analyzed with reference to the production or consumption ofPSF, in India. The conclusion reached by the Authority that there has been an increase in the dumpedimports it absolute terms as well as relative to production and demand in India is not correct and is notbased on facts.
d) The inventory levels of domestic industry have declined during. POI. The sales price also improved. Thedomestic industry did not provide evidence to suggest it lost contracts as a result of imports exceptsuggest that 8000 MT of PSF arrived in India which is less than 2% domestic industry's production of PSF.The imports from subject countries were not shown to have any impact on the employment and wagelevels the domestic industry.
From the above analysis, it is clear that the domestic industry is"" materially injured much less as a resultof meager and declining imports PSF.
5.11) The recommended Anti-Dumping Duties are in excess of the margin of dumping determined by the Authority.This is contrary to the Rules.
5.12) Exclusion of SAD from landed value of imports is not in accordance with law. SAD is a cost in the hands ofimporters/users and ought to be included in the landed value of imports.
5.13) The, recommendations of Anti-Dumping Duties in US Dollars is beyond the purport of the law. The Anti-Dumping Duty which is based on dumping margin and injury margin for each exporter would fluctuate with fluctuation in exchange rate at variance with the margin of dumping and injury margin determined.
5.14) The Authority has failed to rely upon the information submitted by co-operative exporters in estimating thenormal value and export price for the purposes of determining margin of dumping in the case of other non-cooperative exporters and countries.
5.15) The Authority must re-compute the margin of dumping based upon information received from co-operativeexporters.
5.16) The Authority may note that RIL in the Annual Report of 1999-00 and 2000-01 has not alluded to dumping ofsubject goods as reason for material injury to domestic industry. RIL has claimed in the Annual Report to be the only profitable producer in the Polyester business in India. IRSL too recorded impressive performance during the year ended 31.3.00 and 31.3.01.
5.17) The determination of a threat of material injury is required to be based on facts and not merely allegations,conjecture or remote possibility. None of the four factors, as mentioned in the Rules make out a case of a threat ofmaterial injury to the domestic industry. The Authority has not compared actual import data for period of investigation with January-September, 1999 and has presented a distorted-picture.
5.18) As per Rule 17, a time limit of one year from the date of initiation of an investigation has been mandated for the Designated Authority to submit to the Central Government its final findings. The Designated Authority has failed to comply with the time limit prescribed in Rule 17. As such, the Designated Authority does not have any jurisdiction to come to any final determination or to recommend the imposition of any Anti-Dumping Duty in the present investigation.
5.19) Investigations must be non-discriminatory-It would be the duty of the Designated Authority under Rule 19to also simultaneously investigate into the imports from Indonesia, including imports from P.T. Indo Rama Synthetics, Indonesia and other countries.
5.20) It is denied that there is any margin of dumping as alleged by the Applicant or otherwise.
5.21) Termination of Investigation in respect of M/s Teijin Polyester (Thailand) Ltd. (TPL)-There is no margin ofdumping in respect of TPL above the de-minimis amount and therefore, no provisional Anti-Dumping Duty wasrecommended in respect thereof. The Designated Authority should issue a Public Notice under Rule 14 (c)terminating the investigation on the ground that it has determined that the margin of dumping for TPL is less than 2% of the export price.
5.22) There must be a specific determination of the causal link between the material injury alleged to have beencaused or the threat of any material injury. It is unreasonable for the ASFI to make out a claim that any allegedmaterial injury caused to the domestic industry could be on account of the miniscule quantity of imports of the subject goods from the subject countries. Such a negligible quantity of imports from the subject countries cannot cause any material injury to the domestic industry as armed or otherwise.
5.23) The onus was upon the petitioners to show and demonstrate the information given and which has been treated as confidential, and which if disclosed would confer a significant competitive advantage to their competitors and would have a significant adverse effect on the petitioners. If the Authority finds that a request for confidentiality is not warranted or if the supplier of information: is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the Authority must-disregard such information.
5.24) As regards. normal value determination, M/s. Penfibre, Malaysia have stated that it has not been disclosed what the normal value has been worked out. It is also incorrectly observed that the domestic sales were affected at a loss.The fact is that some part- of the domestic sales were at a minor loss but major part of the sales were not at a loss. Not knowing as to what percentage has been added towards profits, Penfibre is not in a position to challenge this finding. Based on the cost of production, setting and administrative cost as provided by Penfibre and adding a margin of 2% (if a margin of 2.9% is taken as reasonable in India as per CRIS INFAC), the normal value would be much less than worked out by the Designated Authority.
5.25) As regards export price for Penfibre, it had been pointed out that there is a special price offered to MaduraGoats who have a high level of purchase from Penfibre an in effect a quantity count is provided to them. In terms of sub-clause 6(1) of Annexure I to the Anti-Dumping Rules, the Authority should make due allowance for difference in conditions and term of sale, quantities and other differences demonstrated to affect price comparability.
5.26) In the case of Penfibre, a comparison of normal value when properly computed and the export price after taking into consideration the discount for Coats Group and appropriate inland freight, overseas freight commission etc. demonstrate that there is no dumping. It is, therefore, incorrect to hold that there is a margin of dumping at 8.64% of export price.
6. Submissions made by M/s Tuntex (Thailand) Public Company Limited, Bangkok, Thailand.i) During the period of investigation, exports of PSF from Tuntex (India) were cleared for export productiononly and riot for domestic production stream. The export of Tuntex did not enter the domestic market inIndia.
ii) The exports did not impact the market share and domestic market price in India.
iii) The Designated Authority instead of levying the duty at the determined rate has by its own formulaconverted the margin into a reference value and recommended Anti-Dumping Duty at the rate which shallbe calculated as the difference between the corresponding amount mentioned in column (4) of the saidTable, reference value given in the said notification and the landed value of such imported subject goods inUS$ per kg.
iv) The Anti-Dumping Duty is applied on a flat percentage basis worldwide to ensure that the domestic industryis protected by the margin of dumping established by the investigation.
v) According to the rules, Anti-Dumping Duty should be equal to the dumping margin and “while arriving atmargin of dumping the Designated Authority shall make fair comparison between export price and normalvalue. The comparison shall be made at the same level of trade, normally at ex-factory level and in respect,of sales made at as nearly as possible the same time". The method followed by the Designated Authorityinstead compares the current landed value (July 2002 onwards) with the landed value pertaining to theperiod of investigation i.e. January-September, 2000, which is not in conformity with the rules. The Rulesdo not permit calculation of anti-dumping duty by the method adopted by the Designated Authority in thiscase, as it is contrary to those.
vi) Initiation of this anti-dumping investigation is not justified: It is based on incorrect and inadequate evidenceof import data.
(vii) M/s Reliance Industries Ltd. has continuously expanded sales volume sales value and average unit value.IRSL has attained a sales growth of 32.48% over base year 1997-98. Alongwith the growth in salesvoluem, the average unit value too has risen leading to a substantial increase in earning on sales.
(viii) For analyzing changes in market share held by India producers, the figures have been annualized. It isdifficult to accept its accuracy and adequacy. The right course, perhaps, could be to annualize the dataavailable for POI or rely upon data published by the Officer of Textile Commissioner.
(ix) Import of PSF has neither restrained upward movement of price nor caused a price depression.
(x) The financial performance of the petitioner companies as per their annual reports do not show that thesecompanies suffered from negative return on the capital employed.
xi) It is amply established that Indian industry has not suffered from injury or threat of injury from imports fromthe subject countries. Since imports of PSF have not caused injury to the Indian PSF producers, thequestion of their causal link does not arise.
7. Submissions made by M/s Far Eastern Textiles Ltd., Taiwani) The deficiencies noticed by the authority in FET’s response as stated in the Preliminary Findings arefactually incorrect in view of the following.
a) The contention that sample copies of invoices relating to domestic sales or export sales had not beenfurnished was unwarranted as the same was not asked for in the questionnaire.
b) The contention that reasons for the sub-classification made in the subject goods exported had notbeen furnished was factually incorrect as the exporter had given the requisite explanation in theresponse.
c) The contention that details of each raw material and its ratio in the final product as required underAppendix-8, 9 & 10, as well as the basis of apportionment had not been furnished was factuallyincorrect as the exporter had given the required details in the response.
d) The response cannot be treated as grossly deficient merely on the ground that details of otherproducts i.e. products not covered under the
e) The contention that evidence regarding adjustments to normal value and extort pace had not beenfurnished was factually incorrect as transaction-by-transaction details of every adjustment had beenfurnished in the response,
ii) Contrary to Para 6 of Annex II to WTO-Anti-dumping Agreement, the authority has wrongly rejectedFET's response and resorted to facts available.
iii) FET should be treated as a co-operating exporter in this investigation.
iv) Contrary to Rule 11(2), causal link between dumped imports and injury has not been established.
v) Contrary to Rule 11 (2), injury to the domestic industry has not been established in view of the following
a) Use of annualized figures for imports, domestic sales, etc. is unwarranted as the actual figures areavailable for the investigation period (violation of Rule 8).
b) Alleged dumped imports are failing steeply and do not show significant increase (violation of firstsentence of Para (ii) of Annexure II).
c) All imports from the subject countries should not be considered for injury analysis. Only dumpedimports should be considered (Violation of first sentence of Para (ii) of Annexure ii).
d) Volume of imports is insignificant.
e) Determination of the authority that sales of the domestic industry came down during POI is wrongas there was an increase in production and a fall in inventories.
f) Many of the injury parameters do not show arty injury at all. Authority failed to establish as towhether and how such positive movements were outweighed by other factors and indices whichmoved in a negative direction during the POI. There was no factor which moved in a negativedirection during POI.
vi) Contrary to Paragraph (vii) of Annexure II, threat of material injury has not been established in view of thefollowing
a. Basic conditions for a threat of material injury not satisfied.
b. Actual data for almost two years after the period of investigation do not support the fear of 'threat ofinjury'.
c. Threat of material injury is not a fall back option.
vii) Petitioners did not furnish full details regarding their status.
viii} Petitioners have faded to furnish a proper non-confidential version of their petition and other submissionsmade by them from time to time {violation of Rule 7(2)}
ix) Selection of investigation period is not recent enough to be representative.
x) Contrary to Para 7 of Annex 11 to WTO - Anti-Dumping Agreement, normal value calculation based onbest information available is wrong.
8. Submissions by the Rajasthan Textile Mitts Association(i) The investigation should have been from 1St April, 2000 to 31st March, 2001 or at least 1St April, 2000 to31st December; 2000. This would also satisfy the requirement of quarterly information as desired by theDesignated Authority.
(ii) The petitioners have not relied upon the data published by themselves because they did not want themonths of December, 2000 to March, 2001 to be included in POI. This has been done to avoiddisqualification of RIL who imported large qua Lilies PSF in November and December; 2000. The choice ofPOI was not very proper and the defective fixation of POI and the dubious method of annualization haveyielded misleading conclusions.
(iii) Imports of subject goods by Reliance Industries tantamount to insider trading. If the petitioner company itselfis indulging in commercial imports on a large scale, it stands to be disqualified under Rule 2 (b). Since RILhas 55% share in domestic market the petition deserves to be rejected on this ground.
(iv) Indo Rama India and lndo Poly Thailand Ltd. have: common management as some of the Directors arecommon. The whole matter should .be thoroughly gone into by the Deptt. of Company Affairs to arrive at thetrue position.
(v) There have to be significant increase in the volume of dumped imports either in absolute or relative terms.However, in the instant case, volume of imports have come down drastically year after year.
(vi) It is unbelievable that Reliance industries which is the second largest producer of PSF in the world, has noaccess to domestic prices in exporting countries. The method of constructing normal value opted is grosslyincorrect.
(vii) Without prejudice to our contention that no anti-dumping duty should be imposed on subject goods, wesubmit that if at all an anti dumping duty is imposed, it should provide for a mechanism, whereby the Anti-dumpingduty is reduced consequent upon the fall in prices of raw materials.
(viii) In tire determination of landed value, the element of SAD should be considered along with custom duty.
(ix) The Authority should conduct a detailed examination of the extent- of price under cutting price depressionand/or price suppression.
(x) As regards market share, if correct figure of imports of 8351 MT including imports made under AdvanceLicences and EOUs is taken into account, it will be seen that the market share which was 97.46% in 1999-2000 as reported in Preliminary Findings improved to 98.61 % in 2000-01.
(xi) The Preliminary Findings that the return on capital employed has been negative is not all correct. Sinceprofits have been made, return has to be positive. Further, the effect of losses of previous years need to beadjusted to find out the exact operating profit of the year 2000-01 and if that profit is new for R4l, there is a.good return on investment. The whole confusion is that domestic industry made losses in the previous yearsbecause of inter-company competition and new capacities installed by Petitioners. These losses are beingreflected in the Balance Sheet of Indo Rama and it has effect on the results of year under review also. Ifthose effects are removed, the correct picture shall emerge out.
(xii) The claim of the applicant that there is a threat of material injury is unsubstantiated by relevant evidence. Itfalls within the description of being a ‘mere allegation, conjecture or remote possibility'.
(xiii) There are no findings on causal link in the Preliminary Findings.
9. Submissions made on behalf of the domestic industry9.1 It may kindly be recalled that during the course of the public hearing, the representative of M/s Madura Coatsand several other representatives of the Spinning Mills attempted to raise the issues relating to the jurisdictionof the Designated Authority as well as the adequacy, accuracy and sufficiency of the application filed by thedomestic industry.
9.2 We had brought the notice of the Hon'ble Designated Authority that it is no longer open to the opposing partiesto raise arty of the issues before the Designated Authority on which an order has-been passed by a HighCourt. It was also clarified that our objection bras not that the opposing parties do not have rights to make theirsubmissions on dumping, injury or the causal link but our limited submission was that the issues relating to thevalidity of the application which have been settled by the Rajasthan High Court cannot be revisited by theHon'ble Designated Authority. The Hon'ble Rajasthan High Court after hearing all the sides on various aspectsof the case dismissed the writs and upheld the validity of the initiation notification dated 25.6.2001 as well as ofthe preliminary findings dated 16th January, 2002 issued by the Designated Authority.
9.3 The relevant extracts from the Order dated of the Hon'ble Rajasthan High Court may be referred to.
9.4 In view of the above, we would respectfully submit that the actions of the Designated Authority upto andincluding the stage of preliminary findings have merged with the Order dated 29.5.2002 passed by the Hon'bleRajasthan High Court and it is no longer open to the opposing parties to raise the same issues before theDesignated Authority. It also unfair on the part of the opposing parties to expect the Designate Authority topass any orders with regard to those issues which already stand settled by the Rajasthan High Court. We alsodraw the attention of the Designated Authority to the decision of the Hon'ble Supreme Court in the case ofKunhavammed Versus State of Kerala, [2001 (129) ELT 11 (SC)], the ratio of which is directly applicable to thefacts and circumstances of the case.
9.5 Notwithstanding the above, we reserve our rights to comment on such issue such the opposing parties areallowed to raise as a part their written submissions.
9.6 Right of interested parties to make Oral SubmissionsIt may be recalled that we had expressed our concern with regard to non-submission of relevant information bythe importers despite a clear obligation cast upon them by the Anti-dumping Rules and the procedures therein.No reasons were advanced by the individual importers or the Associations as to why they cannot cooperatewith the Designated Authority by providing information which they are in possession of In many other cases,the non-confidential versions of the submissions made by the exporters/importers have also not been given. Inthis connection, kind attention is invited to Rule 6 of the Anti-dumping Rules which provides for the procedureto be followed by the Authority while investigating any case.
9.7 In this connection, we would also like to draw your kind attention to the principles laid down by the Hon'bleSupreme Court in the case of Halder Topsoe Vs Designated Authority about the powers of the DesignatedAuthority in case of non-cooperation by any interested party.
9.8 Comments on Exporters Responses .As mentioned in the preceding paras, the questionnaire response of the exporters have to be accompanied by a non-confidential version in the absence of which, it is our humble submission, that the response itself is liable to berejected. Serious prejudice will be caused to the rights of the domestic industry to make submissions on the exporter's response in the absence of any non-confidential version. Without prejudice to the above we would like to give comments on the submissions made by various exporters who have been mentioned in the preliminary findings.
(i) M/s Penfibre SDN. BHD. Malaysia
It has been admitted by the exporter their exports to Madura Coats, India were part of a larger businessconducted between Penfibre and Global Group of companies to which Madura Coats was affiliated. It hasfurther been admitted that Penfibre's relationship with Madura Coats was related to the level ofrelationship which Penfibre has with the multinational group. We would like to submit that 'relationship' isan aspect which the Authority ought to have examined even prior to the preliminary findings. We however,urge the Hon'ble Designated Authority to go into the details before accepting the data furnished by theexporter.
(ii) M/s Far Eastern Textile Ltd., Taiwan
The information submitted by Far Eastern in the non-confidential version is wholly inadequate andunreliable. It is submitted that the exporter has failed to provide crucial information in their non-confidentialversion and no reasons have been advanced as to why the same need to be kept confidential.Specifically, we would like to point out as follows:
(a) On page 4 of the non-confidential version of the exporter's response, the exporter has not evenindicated the location of the plant. The address as well as the other details are said to be a part of theconfidential version. The exporter may please be compelled to submit full and relevant information forus to comment upon the same. It is also not clear from the reply whether the exporter is involved inthe production of any other kind of PSF or not. It is submitted that in terms of the Appendicesprovided in the exporters questionnaire, the information to be supplied by the exporters has to becomplete and meaningful.
(b) On page 5, in response to Question No. B.3, the exporter has also unilaterally divided the product intofour categories. In terms of the questionnaire, they are required to give the information for all theproducts manufactured sold by them. Such categorization is not warranted as the exporter mustnecessarily give the information far each and every type of PSF produced and sold by them.
(c) On page 7, in response to question No. C.1, the exporter has claimed ‘quality discount’ from thedomestic prices to arrive at the normal value of the product under consideration. No details havebeen given about the nature of this adjustment or the methodology of calculation. Without prejudice tothe above, it is submitted that ‘quality discount' which is neither determinable at the time of sale nor isquantifiable cannot be allowed as a permissible adjustment for arriving at the normal value.
(d) On page 10, in response to question No. D.4, the exporter has not submitted either the informationrelated to financial and cost accounting system or the audited financial statements. No reasons havebeen given for claiming confidentiality on the same.
(e) On page 11, in response to question No. D.5, the exporter has stated that the costs have beendetermined by them on the basil of Far Eastern’s accounting system. In this connection, it submittedthat the costs for the purpose of normal value must be determined- in accordance with the GAAP ofthe exporting country. We urge that the officers of the Designated Authority may kindly examine thisaspect in detail as and when the verification is carried out after the exporter fulfills all its legalobligations.
(iii) M/s Teijin Polyester (Thailand) Ltd.
M/s Teijin (Thailand Ltd.
The Designated Authority in its preliminary findings has calculated separate dumping margins for TeijinPolyester (Thailand) Ltd. & Teijin (Thailand) Ltd. treating them as two separate companies. In the absenceof any non-confidential version, we are not aware whether the two companies had brought the facts abouttheir relationship to the notice of the Designated Authority or not. Since, the Authority has determinedseparate dumping margins for two related companies, we presume that such critical information abouttheir relationship was not brought to the Designated Authority. In this connection, we submit that the twocompanies are related to each other and, therefore, there is no reason to determine separate dumpingmargins for them. It was also incumbent upon, them to have declared their relationship to the DesignatedAuthority as a part of their response to the exporters questionnaire. In support of our claim about theirrelationship, we draw your kind attention to Annexure A, the relevant portions of which are excerptedbelow:
"Teijin presence today spans many fields. Apart from Teijin Polyester Thailand, it has establishedTeijin (Thailand) for the production of Polyester Staple Fibre and Polyester Filament Yam"Teijin (Thailand) was previously owned 49% by Teijin Polyester (Thailand) and 51% by Teijin ofJapan. After the capital increased, Teijin Japan held 75.5% and Teijin Polyester (Thailand) the rest."
(iv) M/s Tuntex (Thailand) Public Co. Ltd.
It was argued by the representative of the exporter that they should be excluded as their supplies are onlyto EOUs and against advance licenses. It is submitted the fact that any particular exporter has suppliedonly to the exempted category of buyers during the period of investigation does not imply that it should beexcluded from the purview of investigations.
10. Submission made. by interested parties subsequent to the Disclosure Statement.10.1 M/s Madura Coats Ltd; M/s Teijin Polyester (Thailand) Ltd.; M/s Teijin (Thailand) Ltd. and M/s PenfibreSDN.BHD.. Malaysia have made following submissions: -
(i) We have on 12.07.2002 requested the Designated Authority to disclose material information which isrelied upon by the Authority and which is by nature non-confidential, but treated as confidential by theAuthority. '
(ii) The Authority has in a casual and arbitrary manner disposed-off our request dated 12.07.2002 in thedisclosure statement.
(iii) The designated Authority has failed to apply his mind to determine whether information claimed to beconfidential warranted such confidentiality in accordance with the definition there of as applicable to therules and consistent with Article 6.5 of the WTO Anti-dumping Agreement. Rule 7 of the Anti-DumpingRules deals with confidential information but consistent with the provisions of the WTO Anti-DumpingAgreement provides that if the Designated Authority is satisfied that the request for confidentiality is notwarranted or that the supplier of the information is not willing to make information public or to authoriseits disclosure in generalised or summary form; it may disregard such information.
(iv) In addition to the above, the Disclosure Statement does not disclose methodology for arriving at non-injuriousprice. The methodology can never be treated as a confidential information.
(v) The Authority has also not disclosed the proposed non-injurious price. The same can never beconfidential. The same was duty disclosed in the preliminary findings.
(vi) While the preliminary findings clearly mentioned that cost investigations including spot verification of thedomestic industry was conducted to work out optimum cost of production and cost to make and sell thesubject goods In India on the basis of GAAP, the Authority now proposes to use actual cost of productionof the subject goods to determine the optimum cost of production for the domestic industry. TheAuthority has not explained that when it already determined the optimum cost of production at theoptimum level of capacity utilisation; then why is there a need now to predetermine non-injurious basedon actual cost of production. The optimum cost of production and capacity utilisation remain undisclosed.We reserve the right to contest the non-injurious price relied upon in the, preliminary findings as thesame is not based on facts.
(vii) The Authority by withholding crucial information from interested parties has taken away the right of theinterested parties to offer their views and comments on the same for being considered before finalfindings are announced.
(viii) In terms of Rule 18 of the Anti-dumping Rules, the Designated Authority is duty bound to inform allinterested parties of the essential facts under consideration which form the basis for its decision. It issubmitted that no essential facts have been disclosed to any interested party and that what is disclosedis an edited/selective summarisation of the submissions made by various interested parties and a simplereiteration of the views already expressed by the Authority in the preliminary findings.
(ix) It is submitted that the Authority by issuing Disclosure Statement as late as on 05.12.2002 has virtuallyparalysed the rights of the interested parties to present their views in sufficient time. The Authority had 4 1/2 months at its disposal to disclose non-confidential information in its possession after the holding of thepublic hearing.
(x) It is submitted that the Authority must disclose all non-confidential information as detailed above in thisletter, and provide a reasonable opportunity to all interested parties to present their views and offercomments and defend their interests in this investigation.
10.2 On behalf of M/s Indian Spinners Association; it has been stated that :(i) Petitioners have failed to furnish a proper non-confidential version of their petition.
(ii) Contrary to Rule 11 (2), causal link between dumped imports and injury has not been established.
(iii) Contrary to Rule 11 (2), injury to domestic industry has not been established.
(iv) Contrary to Paragraph (vii) of Annexure II, threat of material injury has not been established.
10.3 The Rajasthan Textile Mills Association, Jaipur has reiterated their views on following :(i) Period of Investigation was selected incorrectly.
(ii) Standing of domestic industry-RIL has imported subject goods and should stand disqualified as part ofthe domestic industry.
(iii) Assessment of normal value; export price and dumping margin-Pitfalls in the methodology of normalvalue calculation by constructed value route to be taken note of.
(iv) Injury determination-various arguments on injury parameters to be considered by the DesignatedAuthor.
10.4 M/s Tuntex (Thailand) Public Co. Ltd., Thailand has made following comments :(i) Profitable Sales-The domestic sales of Tuntex show an overall profit when compared with the ex-factorycost including SGA. The normal value should be the weighted average of all the domesticprofitable sales made during the said period. The method followed by the Designated Authority todetermine the profitable sales by reducing the invoice price of each transaction with adjustments resultsin the profitable sates of Tuntex turning into non-profitable sales which consequently affects the dumpingmargin adversely. This does not seem to be appropriate.
(ii) Injury Defense-We do not agree with the conclusion on injury to the domestic industry. The Indianindustry has not been adversely impacted by PSF imports.
11. Various Court proceeding in this investigation :i) It may be mentioned that some of the interested parties approached the Hon'ble Karnataka High Court byway of a writ petition challenging, inter-alia, the issue of jurisdiction as well as certain other issues. On thedirections dated 6.9.2001 of the Hon'ble High Court, the Authority granted hearing to the interested partiesand passed its Order dated 15.10.2001. This Order was subsequently challenged which was disposed ofvide Hon’ble High Court Order dated 4.12.2001. An appeal was filed before the Division Bench, which hasbeen admitted without any interim relief to the petitioners.
ii) The Rajasthan Textile Mills Association and others had filed civil writ petition No.4629/2001 and 718/2002before the Bench of Hon'ble High Court of Rajasthan, Jodhpur challenging the Initiation of Investigation.Notification dated 25.6.2001 and the Preliminary Findings dated 16th January, 2002. The Hon'ble HighCourt, Jodhpur in their judgment dated 29.5.2002 has held that there is no illegality in the order of Initiationof Investigation, much less the jurisdictional error. The order further states that "the Designated Authorityrightly issued a Public Notice of Initiation of Investigation dated 25.6.2001 which calls for no interference bythis Court …"
The relevant extracts from the Order dated 29.5.2002 of the Hon'ble Rajasthan High Court are as under:
"36. We have considered the contention raised carefully. As far as the objection as to the applicantbeing a domestic industry and as such no locus to file the application, is concerned, the DesignatedAuthority has considered the same in para 3 of the initiation notification. He has found that there isan unsubstantiated and misdirected allegation that the application viz. Reliance Industries, hasadmitted that they are importers on the basis of response to query at S. No. 6 of the proforma. TheDesignated Authority found that there is no such indication of admission in response to query at S.No. 6. The Designated Authority also found that the applicants have the support of unit accountingfor more than 83% of the production during investigation. Thus, there is no substance in thecontention raised by the petitioner on the question of standing or locus of the applicants in filling theapplication before the Designated Authority.
37. The main thrust of the contention of learned counsel for the petitioner is the lack of jurisdiction onthe ground that the evidence available was inadequate and inaccurate for issuing the initiationnotification. Rule 5(3) (b) of the Anti Dumping Rules requires the Designated Authority, before itinitiate an investigation to examine the accuracy and adequacy of the evidence provided in theapplication with regard to dumping, injury and casual link…..
....... At the stage of justification of initiation of investigation, the Designated Authority is not requiredto hold a detailed injury but he has to prima facie satisfy as to whether the application is supportedby the evidence in relation to dumping, injury and casual link between the dumped import andalleged injury. A reading of the orders or the Designated Authority dated 25.06.2001 and 15.10.2001individually or collectively clearly shows that the authority has ana!yzed the information and materialon record and on being satisfied of adequacy and accuracy of the evidence issued the impugnedinitiation notification .......
"…..Thus, there is a prima facie evidence of huge over capacity causing material injury to theapplicant domestic industry: It was found that the capacity would not only effect the Indian industrymaterially but also obliterate the Indian industry in total. In the opinion of the Designated Authority,there was prima facie evidence to shave that the Indian industry has not only suffered material injuryat the hinds of the four dumping countries but the dumping continues to be threat of material injury tothe Indian industry. It was further found that there is import from other countries also but the same isnegligible or de-minus, therefore, the imports from other countries did not cause injury to thedomestic industry: Thus there is continuous increase in the demand and hence contraction indemand is not possible reason for injury. The applicant claims to have suffered losses from sale ofsubject goods from the subject countries and have failed to realise the fair price for subject goodsdue to dumped imports. This has indicated the casual link between the dumping and injury of thedomestic industry. The Designated Authority also found that the normal value as claimed by theapplicant i.e. the domestic industry on the constructed cost of production of the like article withreasonable addition for administrative selling costs and for profits. The Designated Authority foundthat the price has been determined an the basis of the international price of raw materials and inview of the fact that there are no significant differences in the levels of technology and operations.The Designated Authority has given the figures which we need not refer but suffice it to say that theyconfirm and justify the claim of domestic industry with regard to the normal value based on the costof production. Thus the Designated Authority on analysis of the material in the application found thatthe market share of the subject goods from the subject countries had increased significantly forcingthe domestic industry to market their goods at a selling price lower than their cost of production or atnegligible profits. Thus, the Designated Authority prima facie satisfied itself of the existence ofevidence to the effect that import of certain PSF originating in or exported from Korea R.P. Malaysia,Taiwan and Thailand constituted dumping and have caused injury to the domestic industry. Thus, inour opinion there is no illegality in the order of initiation of investigation, much less the jurisdictionalerror. Accordingly the Designated Authority rightly issued a public notice of initiation of investigationdated 25.46.2001 which calls for no interference by this court in exercise of powers under Articles226 or 227 of the constitution of India.”
"41. ……Thus in our opinion, the Designated Authority has undertaken the exercise and shownfairness more than what is required under the scheme of investigation under Rule (6). As regardssub rule (7) of rule 6, the Authority may make available the evidence presented to it by oneinterested party to other interested party participating In the investigation in the form of inspection ofpublic file. This public file was made available to every interested party, who wanted to inspect it onthe date decided as per the mutual convenience. Thus, the Designated Authority has recorded thefinding after adhering to both the substantive as well as procedural requirements of the AntiDumping rules."
While delivering the above judgment the Hon'ble High Court has gone into the various submissions made bythe petitioners challenging the Initiation of nvesstigation on the ground of adequacy and accuracy ofinformation, sufficiency of information, Period of Investigation, standing arid status of domestic industry,reliability of import statistics, imports made by M/s Reliance Industries Ltd., estimates of normal value andconfidentiality.
On the issue of legality of the Preliminary Findings dated 16.1.2002 also the Hon'bte High Court ofRajasthan in their order dated 29.5.02 has held that the finding of fact recorded by the Designated Authoritydoes not call for interference. The relevant extracts of the order of the Hon'ble High Court are as under :
"44 . …..On consideration and analyzing the entire material, the Designated Authority found that thedumped imports of subject goods from the subject countries have caused material injury to thedomestic industry. Accordingly, it recommended for the provisional anti-dumping duty in respect ofimports of certain PSF originating in/or exported from Korea R.P., Malaysia, Taiwan and Thailand.On independent consideration of the entire material and careful consideration of the contentionsraised by the learned counsel, which we have dealt with in preceding paras, the finding of factrecorded by the Designated Authority does not call for interference by us, in exercise of powersunder Articles 226 and 227 of the Constitution of India."
iii) M/s Sree Karpagambal Mills Ltd., Tamilnadu and M/s Pallipalayam Spinners Pvt. Ltd., Tamilnadu hadfiled writ petition No.3008, 3009, 4905 & 4906 of 2002 and W.MP. Nos. 4242., 4243, 6939, 6940 and 10193of 2002 before the Hon'ble High Court of Madras challenging the validity of the Preliminary Findings dated16.1.2002 of the Designated Authority. The Hon'ble High Court of Madras in its order dated 15.5.2002 hasheld the view that the petitioners (i.e. the above importers) have not suffered any prejudice on account of thealleged illegality or irregularity in the proceedings of the Respondent No.1 (i.e. the Designated Authority).The writ petitions were accordingly dismissed by the Hon'ble High Court of Madras.
iv) M/s Sree Karpagambal Mills Ltd., Tamitnadu had tiled another appeal before the double bench of theHon'ble High Court of Madras in W.A. Misc. No.2850 of 2002, inn W.A. 1636 of 2002 seeking stay ofoperation of Preliminary Findings dated 16.1.02. The Hon’ble High Court in their order dated 6th June, 2002have ordered "having regard to the facts and circumstances of the case and balance of convenience, we allthe Central Govt. to proceed upto the stage of Rule 13; i.e. consideration of the Preliminary Findings of theDesignated Authority and should the order go adverse to the appellant, the same be kept in abeyance untilfurther orders."
v) M/s Madura Coats Ltd.. Madurai had filed misc. Petition No.50024 and 60025 of 2002 in W.P. No.33829and 33830 of 2002 before the Hon'ble High Court of Madras seeking stay of operation of the PreliminaryFindings dated 16.1.2002 and seeking stay of operation of Customs Notification No.69/2002-Customs dated10.7.20Q2. The Hon'ble Court of single judge, Madras in their order dated 23.8.02 has passed similar ordersas in the W.A. 1636/2002 of M/s Sree Karpagambal Mills Ltd., i.e. giving directions to the Central Govt., tokeep in abeyance the consequences of the Preliminary Findings of the designated Authority, in the event,they Designated Authority comes to a conclusion adverse to the appellant.
vi) M/s Precot Mills Ltd. Coimbatore filed W.P. Misc. Petition No.50987 and 50988 of 2002 in W.P. 34250 of2002 before the Hon'ble High Court of Madras seeking stay of operation of the Preliminary Findings dated16.1.2002 and seeking stay of operation of Customs Notification No.69/2002-Customs dated 10.7.2002. TheHon'ble High Court of Madras in its order dated 25th September, 2002 dismissed the writ petitions.
vii) M/s Precut Mills Ltd. Coimbatore filed W.A. Misc. Petition No.5169 and 5170 of 2002 in W.A. 3093 aad3094 of 2002 before the Hon'ble High Court of Madras seeking stay of operation of the Preliminary Findingsdated 16.1.2002 and seeking stay of operation of Customs Notification No. 69/2002-Customs dated10.7.2002. The Hon’ble High Court of Madras has passed orders dated 11th October, 2002 stating that theproceedings under Rule 13 dated 10.7:02 shall be kept in abeyance until further orders.
viii) As per the above orders of the Hon’ble High Court, Madras in the appeals, it re seen that the Hon'bleCourt has only directed the Central Govt. to keep in abeyance if it would decide to impose the provisionalduty on the basis of Preliminary Findings sent to the Government by the Designated Authority. The otherstatutory exercises contemplated under the Customs Tariff (Identification, Assessment and Collection of AntiDumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 cannot be construed to havebeen stayed. In view of the above orders of the Hon'ble Court, the Designated Authority can in thecircumstances, proceed to submit its final report to the Government under Rule 17, but it would not be opento the Government to accept the Final Findings of the Designated Authority in case it has recommended forthe levy of the Anti Dumping Duty and take final decision thereon as regards the imposition of such duty inview of the aforesaid orders of the Court, since the Government has been directed to keep in abeyance anydecision even in the case of imposition of provisional duty on the basis of Preliminary Findings. These FinalFindings also will be subject to the result of the above Writ Appeals.
ix) Another petition No.WPMP 66173-66174 in WP 45286-45287 was filed by M/s Madura Coats Ltd. beforethe Hon'ble High Court of Madras challenging the validity of the Disclosure Statement dated 3.12.02 issuedby the Designated Authority. The Hon'ble Court in its interim order dated 17.12.02 ordered that :
"There shall be an order of interim injunction against the second Respondent not to give his Final Findingsunder Rule 17 of Anti Dumping Rules, so far as it relates to the petitioner, until further orders. "
On the counter affidavit filed on behalf of the Designated Authority, the Hon'ble High, Court in its order dated20.12:02 has modified the above order to the effect that the Designated Authority is permitted to submit itsFinal Findings under Rule 17. However, the same may not be implemented in the case of the petitioner. Thesaid order of modification will be without prey to the rights of the pates.
(Anti-dumping duty on Certain Polyester Staple Fibres (PSF) vide CUS NTF NO.45/2003 DATE 21/03/2003)