Reexamine imposition of anti-dumping duty on Viscose Staple Fibre: CESTAT Delhi

Association of Man-Made Fibre Industry of India Vs Designated Authority (CESTAT Delhi)

Facts- The appellants prayed that the final findings dated 30.07.2021 of the designated authority rendered in the Second Sunset Review be modified and it be held that there is a likelihood of recurrence of dumping and injury in the event of expiry of duty. They further prayed “to hold that anti- dumping duty on the subject goods needs to continue for further period of five years against subject countries”. The appellant has also sought quashing of the Customs Notification No. 44/2021-Customs (ADD) dated 12.08.2021 issued by the Central Government with a direction to the Central Government to issue a notification levying anti-dumping duty for a period of five years.

Conclusion- Anti-Dumping Appeal is allowed to the extent that the designated authority shall re­examine and give a fresh finding as to whether cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. The final findings dated 30.07.2021 of the designated authority, therefore, stand modified to this extent.

FULL TEXT OF THE CESTAT DELHI ORDER

Anti-Dumping Appeal No. 51490 of 2021 has been filed by the Association of Man Made Fibre Industry of India¹ with a prayer that “the final findings dated 30.07.2021 of the designated authority rendered in the Second Sunset Review be modified and it be held that there is a likelihood of recurrence of dumping and injury in the event of expiry of duty”. A further prayer has been made “to hold that anti- dumping duty on the subject goods needs to continue for further period of five years against subject countries”. The appellant has also sought quashing of “the Customs Notification No. 44/2021-Customs (ADD) dated 12.08.2021 issued by the Central Government with a direction to the Central Government to issue a notification levying anti-dumping duty for a period of five years”.

2. Anti-Dumping Appeal No. 51832 of 2021 has been filed by the Southern India Mills Owners Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayer in the appeal is to hold that “the final finings dated 30.07.2021 of the designated authority is void in law to the extent it has been challenged” and to further hold that “the Government of India erred in allowing the domestic industry to unilaterally alter the product under consideration at the initial stage in the Second Sunset Review investigation”. The appellant has also been impleaded as respondent no. 16 in Anti-Dumping Appeal No. 51490 of 2021.

3. Anti-Dumping Appeal No. 51833 of 2021 has been filed by the Indian Spinners Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayers made in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 19 in Anti-Dumping Appeal No. 51490 of 2021.

4. Anti-Dumping Appeal No. 51834 of 2021 has been filed by the Indian Manmade Yarn Manufacturers Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayers made in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 18 in Anti-Dumping Appeal No. 51490 of 2021.

5. Anti-Dumping Appeal No. 51868 of 2021 has been filed by the Tamil Nadu Spinning Mills Association, claiming itself to be an association comprising of the users of the subject goods imported by its members through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 17 in Anti-Dumping Appeal No. 51490 of 2021.

6. Anti-Dumping Appeal No. 51869 of 2021 has been filed by Pallava Textiles Private Limited claiming itself to be an importer/user of the subject goods in India imported by the appellant through different ports in India. The prayers in the appeal are similar to the prayers made in Anti-Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent no. 10 in Anti-Dumping Appeal No. 51490 of 2021.

7. Anti-Dumping Appeal No. 51872 of 2021 has been filed by PT Asia Pacific Rayon. It claims to be a producer and exporter of the product in Indonesia, for which product anti-dumping duty was recommended to be withdrawn by the designated authority in the final findings dated 31.07.2021. The prayer in the appeal is “to hold that the rejection/non-consideration of the grounds raised in this appeal by the designated authority in the final findings dated 31.07.2021 is bad, perverse and incorrect, and to confirm the grounds raised in this appeal as additional reasons for reaching the recommendation”. A further prayer is “to uphold the final findings dated 31.07.2021 insofar as it recommends the withdrawal of the anti-dumping duty”. This appellant has also been impleaded as respondent no. 5 in Anti-Dumping Appeal No. 51490 of 2021.

8. Anti-Dumping Appeal No. 50570 of 2022 has been filed by PT South Pacific Viscose, Indonesia stating therein that it has a plant in Indonesia to manufacture the product under consideration and that it has been exporting the said product to India. The prayers made in this appeal are similar to the prayers made in Anti Dumping Appeal No. 51832 of 2021. This appellant has also been impleaded as respondent No. 6 in Anti-Dumping Appeal No. 51490 of 2021.

9. Earlier, on the basis of the final findings dated 17.05.2010 of the designated authority, the Central Government by a notification dated 26.07.2010 imposed anti-dumping duty on import of “Viscose Staple Fibre(VSF)” originating in or exported from China PR and Indonesia² for a period of five years. Under section 9A(5) of the Customs Tariff Act, 1975³, anti-dumping duty imposed under section 9A shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. A sunset review investigation was, however, initiated on 22.07.2015 and the Central Government, by a notification dated 08.08.2016, on the basis of the final findings dated 08.07.2016 of the designated authority, extended the anti-dumping duties for another period of five years.

10. The appellant filed an application before the expiry of the aforesaid period of five years on behalf of M/s. Grasim Industries Limited for initiation of a second sunset review for imposition of duty on a narrower scope of Viscose Stable Fibre by limiting it to Grey Viscose Stable Fibre, excluding Bamboo Fibre. This product is widely used in apparel, home textiles, dress materials and knit wears. In the said application filed on behalf of the domestic industry, it was claimed that :

(a) The exports from subject countries are being made at dumped prices despite anti-dumping duty being in force;

(b) The imports from subject countries are significant and adversely impacting the performance of the domestic industry, as import prices are below the Non-Injurious Price⁴;

(c) There is a strong likelihood of continuation or recurrence of injury as about 68% of exports from China and 88% of exports from Indonesia to third countries are at injurious prices;

(d) Based on the Report of Wood Mackenzie in the Red Book 2020, the surplus capacity available is 36% in China and based on Hawkins Wright September 2020 Report, the surplus capacity in Indonesia is 51%;

(e) The domestic industry has provided adequate evidence of dumping, injury, causal link, likelihood of continuation or recurrence of dumping and injury, as was reasonably available to the domestic industry and thus discharged its obligations under section 9A (5) of the Tariff Act read with rule 23(1B) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995⁵;

11. A notification dated 22.02.2021 was thereafter issued by the Ministry of Commerce & Industry initiating sunset review anti­dumping investigation to review the need for continued imposition of the duties in force in respect of the subject goods originating in or exported from the subject countries and to examine whether the expiry of such duty was likely to lead to continuation or recurrence of dumping and injury to the domestic industry. Paragraphs 16,18,21,22 & 23 of the said notification are reproduced below:

“Initiation of sunset review investigation

16. On the basis of the duly substantiated written application by or on behalf of the domestic industry, and having satisfied itself, on the basis of the prima facie evidence submitted by the domestic industry, substantiating likelihood of continuation/recurrence of dumping and injury of product under consideration originating in or exported from the subject countries, and in accordance with Section 9A of the Act read with Rule 5 of the Rules, the Authority, hereby, initiates a sunset review investigation to review the need for continued imposition of the duties in force in respect of the subject goods, originating in or exported from the subject countries and to examine whether the expiry of such duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry.

Period of Investigation

18. The period of investigation for the present investigation is 1st September 2019 – 31st October 2020 (12 months). The injury investigation period will cover the period from 1st April, 2017 – 31st March 2018, 1st April, 2018 – 31th March, 2019, 1st April, 2019 – 31st March, 2020 and the period of investigation.

Submission of Information

21. In view of the special circumstances arising out of COVID-19 pandemic, all communication should be sent to the Designated Authority via email at email address adg12-dgtr@gov.in, adv13-dgtr@gov.in dir16-dgtr@gov.in and dash@nic.in. It should be ensured that the narrative part of the submission is in searchable PDF/ MS Word format and data files are in MS Excel format.

22. The known producers/exporters in the subject countries, Government of the subject countries through their Embassies in India, the importers and users in India known to be concerned with the subject goods and the domestic industry are being informed separately to enable them to file all the relevant information in the form and manner prescribed within the time-limit set out below.

23. Any other interested party may also make its submissions relevant to the investigation in the form and manner prescribed within the time-limit set out below.”

12. As the anti-dumping duty imposed by the notification dated 08.08.2016 was to come to an end on 07.08.2021 and the designated authority had not given the final findings, the Central Government, by a notification dated 30.06.2021, extended the imposition of anti-dumping duty upto 31.10.2021.

13. In terms of rule 6 of the Anti-Dumping Rules, all interested parties including foreign exporters and producers, were given opportunity to furnish information in the prescribed questionnaire format. The questionnaire called upon the exporters to provide not only company specific information, but also details of total China/Indonesia production, sales of other producers in the domestic market, total demand in China/Indonesia, other producer‟s exports to third countries, etc. As regards China, the designated authority sent the exporter questionnaires to twenty eight companies in China, out of which only one company, Sateri (Fujian) Fibre Co., Ltd. filed its questionnaire response. It was declared in the response, that Sateri Group consisted of five companies concerned with the product under consideration in China and one entity in Indonesia, namely, PT Asia Pacific Rayon. As regards Indonesia, two producer exporters filed response, namely, PT Asia Pacific Rayon (part of Sateri Group) and PT South Pacific Viscose.

14. An oral hearing was held by the designated authority on 09.07.2021, pursuant to which written and rejoinder submissions were filed by the parties. Verification of the information submitted by the interested parties was also carried out by the designated authority.

15. In terms of rule 16 of the Anti-Dumping Rules, a disclosure statement was issued by the designated authority, wherein the essential facts were disclosed as under :

(i) The imports from China and Indonesia are being made at dumped prices. The dumping margin is substantial in the range of 10% to 70%;

(ii) The volume of dumped imports continues to remain significant despite the imposition of anti-dumping duty;

(iii) About 90% of the exports to third countries from China and Indonesia are at dumped prices;

(iv) About 50% of the exports in respect of China and about 80% of the exports in respect of Indonesia to third countries are made at injurious prices, that is below the NIP of the domestic industry, as determined by the designated authority;

(v) There is surplus production capacity of about 36% in China and 64% in Indonesia based on the Hawkins Wright Report and Wood Mackenzie Red Book. As per questionnaire response, participating exporters from Indonesia have surplus capacity. In addition to the existing surplus capacity, these exporters have further plan for expansion of capacity;

(vi) As regards the responding exporter from China, Sateri (Fujian) Fibre Co. Ltd., one of its related company has significant surplus capacity; and

(vii) The Profits and Return On Capital Employed of the domestic industry have declined sharply during the period of investigation.

16. After having discussed the aforesaid essential factors, the designated authority proceeded to record its conclusion on the likelihood of continuation or recurrence of dumping and injury in the following manner:

“Conclusion on Likelihood of continuation or recurrence of dumping and injury

134. It is noted that there is a likelihood of continuation of dumping from subject countries. However, the likelihood of recurrence of injury is not strong enough to warrant continuation of duties beyond 11 years. The information on record shows that there are insignificant surplus capacities with the responding producers/exporters in subject countries. Imports from subject countries have reduced during the POI. Imports from subject countries are not undercutting the prices of domestic industry. The landed price of imports during the POI is significantly higher than the cost of sales, selling price and NIP of the domestic industry. Therefore, the imports cannot be said to be causing any price effect on the domestic industry.”

(emphasis supplied)

17. The interested parties, including the appellant filed their comments to the disclosure statement and, thereafter, the designated authority, in the final findings dated 31.07.2021, concluded that there was no justification for recommending continuation of anti-dumping duty. The conclusion is reproduced below:

“M. Conclusion  

154. Having regard to the contentions raised, information provided, submissions made and facts available before the Authority as recorded in these findings and on the basis of the determination of dumping and consequent injury to the domestic industry made hereinabove, the Authority concludes that:

a. Considering the normal value and export price for subject goods, the dumping margins for the subject goods from each of the subject countries have been determined, and the margins are significant. There is a likelihood of continuation of dumping from subject countries.

b. Considering various parameters relating to material injury, the Authority notes that the volume of dumped imports from the subject countries have declined in the POI as compared to the previous two financial years. The domestic industry has seen a decline in the production and sales during POI. However, the decline in production and sales can be attributed to the fall in demand due to Covid-19 pandemic. The imports from subject countries are not undercutting the prices of the domestic industry and price underselling is also negative. The profitability of the domestic industry has declined during the POL. However, profit earned by the domestic industry during POI are still reasonable. The landed price of imports during the POI is significantly higher than the cost of sales, selling price and NIP of the domestic industry. The domestic industry enjoys a dominant position in the Indian market and the market share of imports from subject countries is very low Therefore, the imports cannot be said to be causing any price and volume effect on the domestic industry.

c. From the information available on record, it is noted that there is a likelihood of continuation of dumping from subject countries. However, the likelihood of recurrence of injury to the domestic industry is not strong enough to warrant continuation of duties beyond 11 years. There are insignificant surplus capacities with the responding producers/exporters in subject countries, which can be used to increase their exports to India in event of revocation of duty.

d. Therefore, based on objective examination of information on record, it is concluded that there is no justification for recommending continuation of anti-dumping duly in the present case.”

(emphasis supplied)

18. The designated authority accordingly, made the following recommendation:

“155. In view of above, the Authority considers it appropriate to recommend withdrawal of antidumping duty on import of subject goods from the subject countries recommended vide Notification No. 15/09/2015-DGAD dated 8^th July 2016 and enforced vide Customs Notification No. 43/2016-Customs (ADD) dated 8^th August 2016 which was further extended vide Customs Notification No. 39/2021-Customs (ADD) dated 30^th June 2021 till 31^st October 2021.”

(emphasis supplied)

19. Thereafter, the Central Government issued a notification dated 12.08.2021 rescinding the notification dated 08.08.2016, which was last amended by notification dated 30.06.2021. The said notification dated 12.08.2021 is reproduced below:

“G.S.R. 572(E).–In exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), the Central Government revokes the anti-dumping duty imposed on “Viscose Staple Fibre excluding Bamboo Fibre”, falling under tariff item 5504 10 00 of the First Schedule to the said Act, originating in or exported from People’s Republic of China and Indonesia, and imported into India and hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) Notification No. 43/2016-Customs (ADD) dated 8^th August 2016, published in the Gazette of India. Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R. 777(E), dated the 8^th August, 2016, except as respects things done or omitted to be done before such rescission.

Note: The principal Notification No. 43/2016-Customs (ADD) dated 8^th August 2016 was published vide number G.S.R. 777(E), dated the 8th August, 2016 and last amended by notification No. 39/2021-Customs (ADD) dated the 30^th June, 2021 published vide number G.S.R. 455(E), dated the 30^th June, 2021.”

20. Dr. Abhishek Manu Singhvi, learned senior counsel appearing for the appellant assisted by Ms. Reena Khair, Shri Rajesh Sharma and Ms. Shreya Dahiya, made the following submissions :

(i) The impugned final findings of the designated authority have been issued without regard to the statutory mandate of section 9A (5) of the Tariff Act that contemplates formation of an opinion that cessation of anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury;

(ii) The final findings are based on the prices and volumes of current imports, and their impact on the domestic industry. There is no determination made by the designated authority as regards the projected or likely volume and prices at which imports would be made on the expiry of the anti-dumping duty and its consequential impact on the domestic industry. Further, the degree and extent of dumping and consequent injury to the domestic industry during the period of investigation is not of much relevance but it has been wrongly relied upon by the designated authority. In this connection, reliance has been placed on the following decisions:

i. SI Group India Private Ltd. Designated Authority, Directorate General of Anti-Dumping and Allied Duties, New Delhi 6;

ii. Hubei Tri-Ring Forging Co. Ltd. Designated Authority, DGAD, MOF,⁷;

iii. Vinati Organics Ltd. Designated Authority⁸;

iv. T. Asahimas Chemicals vs. Designated Authority, Ministry of Finance⁹;

v. Thai Acrylic Fibre Co. Ltd Designated Authority¹⁰; and

vi. Union of India Kumho Petrochemicals Company Ltd.¹¹

(iii) The likelihood of injury on the revocation of anti-dumping duty has to be ascertained from the sale prices of the exports to third countries, where no anti-dumping duties are in operation. Although the designated authority notes that exports to third countries are at injurious prices, it fails to draw the obvious conclusion that on expiry of the duty, the imports are likely to come to India at third country export prices, which would result in significant injury to the domestic industry;

(iv) The likelihood of diversion of exports from other markets to India is to be examined with reference to the price attractiveness of the Indian market. The export price to third countries are much lower than the export prices from the subject countries to India. Hence, on the expiry / revocation of the anti-dumping duty, the possibility of diversion of substantial quantities to India is extremely high. Thus, if anti-dumping duty is revoked, India becomes the most attractive destination for dumping, since India yields much better prices;

(v) Likelihood of injury is also established from the fact that about 62% of the exports from China, and about 24% exports from Indonesia to India, are below the NIP of domestic industry. A significant quantity of exports made during the period of investigation are already at injurious prices. Despite noting this fact, the designated authority fails to draw the conclusion that future prices would also be below NIP and would cause significant injury to the domestic industry;

(vi) In the present case, there is no dispute that there is continued dumping by the subject countries in India, despite imposition of anti-dumping duty. The long period of levy is not on account of the appellant, but is occasioned by the fact, that there is a long history of dumping of subject goods from Indonesia and China;

(vii) The impugned order has been passed on an over simplistic basis that the continued levy of anti-dumping duty for 11 years is ipso facto and ipso jure sufficient ground for its expiry or revocation. This is per se application of an ultra vires test, unknown to law for continuation of anti-dumping duty especially in a sunset review proceeding. The only test to be applied is not a test rooted in the past (viz a test looking backward at the anti-dumping already lapsed) but instead on a test looking for the future, as to whether the mischief for which the anti-dumping duty was originally imposed, continues to subsist and on economic analysis, projections and assessments, is highly likely to so continue, thereby necessitating a continuation of the expiring duty for a further period of five years. The fundamental error on which alone the impugned order is liable to be set aside is that the past / backward test has overwhelmed the future test, which has reduced to vanishing point by the approach of the impugned order;

(viii) The level of future imports cannot be evaluated solely on basis of surplus capacity of the producers, who have exported their goods during the period of investigation or those who have participated in the investigations. In respect of China, there are a large number of producers of the subject goods, who are not exporting to India currently, on account of the anti-dumping duty being in force. On the expiry of the duty, these exporters would resume exports, due to the idle capacities available with them. In order to evaluate the projected level of dumped imports to India, the surplus or idle capacity would have to be examined for the country as a whole, or the sum total of the producers and exporters in China and Indonesia. By relying on the information of a small subset of the total exporters and producers in China (about 5% to 10% or 1 out of 28 producers identified in the final findings) for the likelihood analysis, the authority has reached erroneous conclusions;

(ix) Based on the information furnished by Sateri Group in its exporter questionnaire response, the designated authority in the disclosure statement holds that there is significant surplus capacity available with the Sateri Group. After the issuance of disclosure statement, the designated authority appears to have collected fresh information from the Sateri Group, not shared with domestic industry, to conclude that there is no surplus capacity with the Sateri Group. The stage for collection and verification of information under rule 6 read with rule 8 is over prior to the issuance of disclosure statement under rule 16. The designated authority could not have accepted new evidence at the fag end of the investigations, that also without making available such evidence to opposing interested parties, for concluding that there is no surplus capacity available with the Sateri Group;

(x) In the final findings, it is held by the designated authority that the capacity utilisation of the Sateri Group was low, as only the first line of production had started in December 2019, and the production stabilised in post period of investigation. On this basis, the authority concluded that there was no surplus capacity with the Sateri Group. Even if this were to be accepted for the sake of argument, it was incumbent on the authority to ascertain whether the production of the Sateri Group in the post period of investigation period was exported to India or to other third countries, and what were the prices at which such exports were made. and whether these exports were at dumped and injurious prices. The designated authority failed to make any enquiries or render any findings in this regard;

(xi) As regards Indonesia, the designated authority has held that PT Asia Pacific Rayon is a new producer and, therefore, cannot be expected to achieve 100% capacity utilisation immediately. Even if that is accepted for the sake of argument, there is no examination and finding as to whether India was the intended market for the subject goods when full capacity utilisation would be reached. The conclusions in the findings are based on an incomplete examination of the issue;

(xii) In the disclosure statement, the designated authority has examined the surplus capacity for the country as a whole and has found surplus capacity of 36% in respect of China and 64% in respect of Indonesia. The designated authority failed to examine whether there are alternate markets available to absorb the surplus capacity. If no alternate markets are identified, then it can safely be concluded that the goods are likely to be exported to India on revocation of the duty. The inescapable conclusion which follows is that there is a strong likelihood of injury due to increased imports at lower prices, from subject countries including almost all or a predominant part of the aforesaid 36% for China and 64% for Indonesia;

(xiii) Similarly, the exporting companies from Indonesia have admitted surplus capacity, in the range of (0%-10%) for PT Asia Pacific Rayon and (40% to 50%) for PT South Pacific Viscose. The designated authority failed to examine the availability of alternate markets, which is other than India, where the exporter could sell its goods. In the absence of any alternate markets for the surplus capacity, it follows that the surplus capacity is likely to be used for production of goods for export to the Indian market. The designated authority failed to consider that the surplus capacity was significant, having regard to the demand and consumption in India. Again the overwhelming bulk of the excess capacity will undoubtedly be dumped in India;

(xiv) Instead of examining such relevant aspects, the designated authority observed that no producer can be expected to operate at 100% capacity. It has also accepted that the idle capacity for PT Asia Pacific Rayon is high due to the covid pandemic. The designated authority failed to consider that Covid Pandemic affected the production as well as the demand for the products. In a situation of declining demand, it was imperative for the designated authority to ascertain whether there were alternate markets for the products once the unit resumes operation at full capacity. The designated authority based its conclusions on extraneous factors, not relevant to the proceedings;

(xv) In the course of the investigations, including up to the stage of issuance of the disclosure statement, the designated authority based its conclusions on the Hawkins Report and the Wood Mackenzie Red Book. These reports which were reliable in the disclosure statement became unreliable in the final findings, without assigning any reason for the same, though these reports have been relied upon by the designated authority in other investigations;

(xvi) The designated authority failed to consider that the imports from the subject countries are at dumped prices. The dumping margin is significant in the range of 10% to 70%. Even more than 80% to 90% of the exports to third countries by subject countries are at dumped prices. There can be no doubt that dumping continues and is likely to continue; and

(xvii) Despite certain parameters considered relevant for an affirmative sunset review determination in other jurisdictions such as Canada, Australia, EU, and USA, the designated authority concluded that there is no likelihood of injury.

21. Shri Jitender Singh, learned counsel appearing for respondent nos. 6, 10, 16, 17, 18 & 19 assisted by Shri Sharad Bhansali and Shri Akshay Soni, Advocates, Shri Jinendra Singhvi, Consultant and Shri Shailendra Dubey, Chartered Accountant, made the following submissions :

(i) The appeal filed by the appellant is not maintainable. The sole domestic producer of the subject goods, i.e., Grasim has not filed an appeal against the determination of the Designated Authority;

(ii) Relief sought cannot be granted as anti-dumping duty in force was already invalid. The original duties were recommended by the designated authority by notification dated 17.05.2010 and definitive anti-dumping duty was imposed by the Central Government on the imports of the subject goods, originating in or exported from the subject countries by notification dated 26.07.2010. Certain interested parties filed appeals before the Tribunal to challenge the final findings dated 17.05.2010 and the notification dated 26.07.2010. The Tribunal remanded the matter back to the designated authority by order dated 11.08.2011 under the premise that hearing by one and decision by another was bad in law. In other words, the notification dated 26.07.2010 was, by implication, quashed for a fresh determination after affording hearing, opportunity of written submissions and rejoinder submissions, issue of disclosure statement etc. The remand direction dated 11.08.2011 effectively restored the proceedings to the stage of oral hearing. Thus, the same nullified the final findings dated 17.05.2010 and the consequent notification dated 26.07.2010;

(iii) The designated authority, by notification dated 10.04.2012 issued fresh final findings as per remand directions of the Tribunal. The final findings issued post remand by the Tribunal confirmed the earlier final findings dated 17.05.2010, but no notification was issued by the Central Government accepting the recommendation dated 10.04.2012 of the designated authority;

(iv) Power to extend period under section 9A(5) of the Tariff Act could only be exercised during the life of the duties. Gap in continuation of duty invalidated continuation of duty assuming that the earlier notification dated 26.07.2010 was valid till 25.07.2015, a hiatus was created in continuation of duties when the notification dated 06.08.2015 was issued, which extended the anti­dumping duty till 25.07.2016. In other words, there was no duty between 26.07.2015 and 05.08.2015. It is settled law that non-existent levy could not have been extended in the exercise of power under section 9A(5) of the Tariff Act;

(v) The second extension of duties by notification dated 08.08.2016, for similar reasons, is bad in law as duties had lapsed on 25.07.2016. The earlier notification dated 06.08.2015 extended the duties till 25.07.2016 only. In other words, there was no duty between 26.07.2016 and 07.08.2016;

(vi) Thus, the relief sought by the appellant for the continued imposition of anti-dumping duty cannot be granted as the continuation of duty was already without authority of law at the time of initiation and final findings in the impugned investigation;

(vii) The appeal filed against the previous final findings and notification should be heard before hearing this appeal challenging the impugned order. In fact, all appeals arising out of the impugned orders should be heard together;

(viii) The customs notification cannot be challenged before the Tribunal as the same is operating outside the purview of jurisdiction of the Tribunal under section 9C of the Tariff Act which allows an appeal against “determination or review thereof regarding the existence, degree and effect of any subsidy or dumping”. In the present case, the impugned notification dated 12.08.2021 is not a determination regarding the existence, degree and effect of dumping as envisaged under section 9C of the Tariff Act. The notification is issued as a consequence of futility of extension of duties under second proviso to section 9A(5) of the Tariff Act when the final findings were recorded in terms of rule 17. The notification has not been issued in terms of rule 18 as no power is contained therein when negative final findings are recorded under rule 23(1B);

(ix) The Tribunal does not have power of remand under section 9C of the Tariff Act;

(x) The impugned order for the revocation of anti-dumping duty is in accordance with the article 11.3 of the 1994 Agreement on ant-dumping, section 9A(5) of the Tariff Act and rule 23(1)(1)(B) of the Anti-Dumping Rules;

(xi) Anti-competitive behaviour of the domestic industry penalised for abusing its dominant position in the market and manipulating prices in the market has to be taken into consideration;

(xii) The appellant failed to establish the likelihood of dumping and injury before the designated authority;

(xiii) There is no information on record to indicate or even suggest that the revocation of duty would lead to a situation in which the dumping would cause injury;

(xiv) The likelihood factors unfounded in law that have been mentioned by the respondent in the Appeal are not required to be dealt with;

(xv) The issues relating to the violation of principle of natural justice are baseless;

(xvi) The appellant failed to lead any evidence to demonstrate continuation or likelihood of injury vis- a-vis the product under consideration in the present investigation i.e., grey VSF. All the documents presented by them were for a vast variety of products and did not contain exclusive information with respect to the product under consideration. Further, no effort was made by the appellant to ever justify that the information relating to VSF as a whole can be taken for making an objective examination of the product under consideration, which was only one of the types of VSF; and

(xvii) In any case, the evidence and arguments presented by the domestic industry were only with respect to the capacities in China. The only argument advanced by the appellant was that the capacity of one producer in China cannot be equated with the total capacity of production under consideration in China. In other words, no argument was made by the appellant to establish any factor of likelihood of injury against the imports from Indonesia. Thus, as far as Indonesia is concerned, the appellant failed to submit any evidence establishing the likelihood of injury.

22. Shri Bhargav Mansatta, learned counsel appearing for respondent nos. 3, 5 & 8 assisted by Shri Dhruv Gupta and Ms. Shivani Bhatnagar made the following submissions :

(i) Anti-dumping duty cannot be continued beyond 10 years in the absence of special circumstances;

(ii) Determination by the designated authority regarding absence of likelihood of injury is based on clear factual and legal basis;

(iii) Economic parameters of domestic industry during the injury investigation period and not third country dumping and injury should form the relevant basis for likelihood analysis;

(iv) The recommendation of the impugned final findings is in accordance with its consistent practice in other sunset review investigations;

(v) The impugned customs notification cannot be quashed even if the final findings are set aside;

(vi) Anti-dumping duty on the product under consideration cannot be directed to be continued summarily without further examination; and

(vii) Anti-dumping duty rate for the respondents cannot exceed nil rate of duty or rate of duty determined for co­operating producer/exporter in the first sunset review.

23. Shri Ameet Singh, learned counsel appearing for the designated authority assisted by Ms. Albeena Wali made the following submissions:

(i) The discontinuation of anti-dumping duty on the product under consideration from subject countries pursuant to the second sunset review does not foreclose the right of the appellant to get protection from dumped imports in future. If at any point of time, the appellant suffers actual material injury or threat of material injury due to dumped imports of the product under consideration from the subject countries, the appellant can file a fresh application for initiation of anti-dumping duty investigation on import of the product under consideration from the subject countries;

(ii) The likelihood of continuation/recurrence of injury in the subject investigation was not strong enough to warrant continuation of duties beyond 11 years;

(iii) For determination of likelihood of injury, there are no clear guidelines under the Anti-Dumping Rules and the designated authority is required to conduct an objective examination of facts after considering all the facts and information on record;

(iv) The final findings were issued by the designated authority after elaborate investigation and after reviewing complete information filed by domestic industry and by other interested parties containing factual and legal basis for recommending discontinuation of anti-dumping duty;

(v) The final findings note that in absence of guidelines under Anti-Dumping Rules regarding likelihood analysis to be conducted in a sunset review, Annexure II, paragraph (vii) of the Anti-Dumping Rules should be applicable for conducting likelihood analysis. The final findings issued by the designated authority analysed all the criteria mentioned in Annexure II, paragraph (vii) of the Anti-Dumping Rules and also other relevant factual information for examining likelihood of injury;

(vi) Various interested parties participating in the investigation raised concerns regarding the authenticity of Hawkins Wright Report provided by the applicant for the purpose of likelihood analysis. Since there are only three producers of subject goods in Indonesia namely (i) PT Asia Pacific Rayon (ii) PT South Pacific Viscose & (iii) PT Indo Bharat Rayon and all these three producers had participated and provided relevant information in the subject investigation, the designated authority deemed it appropriate to rely on information provided by the participating producers rather than on the above-mentioned report for the purpose of determining surplus capacity in subject countries; and

(vii) The designated authority has relied not only on a single economic parameter or criterion but host of factors for concluding that there was no justification for recommending continuation of duty.

24. Shri Nagendra Yadav, learned authorized representative appearing for the Revenue supported the findings recorded by the designated authority and in this connection placed various paragraphs of the final findings given by the designated authority. Learned authorized representative also placed reliance on the judgment of the Delhi High Court in Eveready Industries India Ltd. vs. Union of India¹².

25. The submissions advanced on behalf of the parties have been considered.

26. Section 9A of the Tariff Act deals with anti-dumping duty on dumped articles. It provides that if any article is exported by an exporter or producer from any country to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Margin of dumping has been defined to mean the difference between the export price and the normal value. The export price means the price of the article exported from the exporting country. Normal value has been defined to mean the comparable prices for the like article when destined for consumption in the exporting country. Section 9A(1) of the Tariff Act is reproduced below:

“Section 9A. Anti-dumping duty on dumped articles.-

(1) Where any article is exported by an exporter or producer from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.”

27. Sub-section (5) of section 9A of the Tariff Act provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The first proviso stipulates that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuance or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension. The provisions of sub-section (5) of section 9A of the Tariff Act are reproduced below:

“9A(5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:

Provided that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period upto five years and such further period shall commence from the date of order of such extension:

Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti­dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.”

28. Rule 23 of the Anti-Dumping Rules deals with review and it is reproduced below:

“Rule 23. Review

(1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping, which is causing injury.

(1A) The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiative or upon request by any interested party who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or varied and is therefore no longer warranted.

(1B) Notwithstanding anything contained in sub-rule or (1A), any definitive anti dumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on its own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to the expiry of that period, that the expiry of the said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry.

(2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review.

(3) The provisions of rules 6,7,8,9,10,11,16,17,18, 19, and 20 shall be mutatis mutandis applicable in the case of review.”

29. It would be seen that in view of the provisions of rule 23(3), rule 11 of the Anti-Dumping Rules would be applicable to ^„sunset reviews‟. Rule 11 deals with determination of injury and sub-rule (2) of rule 11 of the Anti-Dumping Rules is reproduced below:

“Rule 11:

(i) xxxxxxxxx

(ii) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules.”

30. Rule 11(2) refers to the principles set out in Annexure II to the Anti-Dumping Rules which deal with the principles for determination of injury and the relevant portion of the said Annexure is reproduced below:

Principles for determination of injury

“The designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, hereinafter referred to as “injury” and causal link between dumped imports and such injury, shall inter alia, take following principles under consideration –

(i) xxxxxxxxx

(ii) While examining the volume of dumped imports, the said authority shall consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative to production or consumption in India. With regard to the affect of the dumped imports on prices as referred to in sub-rule (2) of rule 18 the designated authority shall consider whether there has been a significant price under cutting by the dumped imports as compared with the price of like product in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increase which otherwise would have occurred, to a significant degree.

(iii) xxxxxxxxxx

(iv) xxxxxxxxxx

(v) xxxxxxxxxx

(vi) xxxxxxxxxx

(vii) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the designated authority shall consider, inter alia, such factors as:

(a) a significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation;

(b) sufficient freely disposable, or an imminent, substantial increase in, capacity of the exporter indicating the likelihood of substantially increased dumped exports to Indian markets, taking into account the availability of other export markets to absorb any additional exports;

(c) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports; and

(d) inventories of the article being investigated.

31. At this stage, it would also be pertinent to refer to the „Agreement on Implementation of article VI of the General Agreement on Tariffs and Trade 199413‟. Article 1 deals with principles, while article 11 deals with duration and review of anti­dumping duties and price undertakings. These articles are reproduced below:

“Article 1

Principles

An anti-dumping measure shall be applied only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigations initiated and conducted in accordance with the provisions of this Agreement. The following provisions govern the application of Article VI of GATT 1994 in so far as action is taken under anti­dumping legislation or regulations.

Article 11

Duration and Review of Anti-Dumping Duties and Price Undertakings

11.1 An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury.

11.2 The authorities shall review the need for the continued imposition of the duty, where warranted, on their own initiative or, provided that a reasonable period of time has elapsed since the imposition of the definitive anti­dumping duty, upon request by any interested party which submits positive information substantiating the need for a review. Interested parties shall have the right to request the authorities to examine whether the continued imposition of the duty is necessary to offset dumping, whether the injury would be likely to continue or recur if the duty were removed or varied, or both. If, as a result of the review under this paragraph, the authorities determine that the anti-dumping duty is no longer warranted, it shall be terminated immediately.”

“11.3 Notwithstanding the provisions of paragraphs 1 and 2, any definitive anti­dumping duty shall be terminated on a date not later than five years from its imposition (or from the date of the most recent review under paragraph 2 if that review has covered both dumping and injury, or under this paragraph), unless the authorities determine, in a review initiated before that date on their own initiative or upon a duly substantiated request made by or on behalf of the domestic industry within a reasonable period of time prior to that date, that the expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. The duty may remain in force pending the outcome of such a review.

11.4 The provisions of Article 6 regarding evidence and procedure shall apply to any review carried out under this Article. Any such review shall be carried out expeditiously and shall normally be concluded within 12 months of the date of initiation of the review.

11.5 The provisions of this Article shall apply mutatis mutandis to price undertakings accepted under Article 8.”

32. It would be necessary to consider the preliminary objections raised on behalf of some of the respondents before examining the issues on merits.

33. Shri Jitender Singh learned counsel for the respondents no. 6 submitted that the present appeal filed by the association of Man-Made Fibre Industry of India is not maintainable for the reason that the association is not an ^„aggrieved party‟ or a ^„person aggrieved‟. According to learned counsel for the respondent, a person aggrieved must be one who has suffered a legal grievance and against whom a decision has been pronounced which wrongfully deprives him of something or wrongfully effects his title to something. Learned counsel pointed out that unlike rule 23 of the Anti-Dumping Rules, section 9C of the Tariff Act does not permit filing of an appeal by any person ^„for an on behalf of the domestic industry‟. In this connection, learned counsel pointed out that the statutory language of rule 23 of the Anti-Dumping Rules allows an application to be filed before the designated authority by or on behalf of the domestic industry but section 9C of the Tariff Act does not provide for filing of an appeal ^„on behalf of the domestic industry‟. Learned counsel also pointed that no averment has been made by the appellant in this appeal that may permit the appellant to file the appeal on behalf of Grasim Industries, nor there is any power of attorney or letter of authorization by Grasim Industries permitting the present appellant, which is an association, to file the appeal.

34. Learned senior counsel appearing for the appellant however pointed out that it is the appellant association which had filed an application seeking initiation of the sunset review investigation stating clearly that Grasim Industries, which was the domestic industry, was the only producer of the subject goods in India. It was further stated that the applicant considers that the cessation of the present anti-dumping duty was likely to lead to continuation of dumping and injury to the domestic industry. It was also stated in the application that Grasim Industries had provided the required information and should be considered as the domestic industry. It was on the basis of this duly substantiated application that a sunset review investigation was initiated by notification dated 22.02.2021. The designated authority, in its final findings dated 31.07.2021, recommended withdrawal of anti-dumping duty earlier imposed by the notification dated 08.07.2016. Paragraph 1 of the Memo of Appeal mentions that the appeal was being filed against the final findings of the designated authority as also the notification issued by the Central Government not recommending extension of anti­dumping duty. The vakalatnama has been signed by Mr. S.P. Katnauria Secretary General of Association of Man-made Fibre Industry of India and at page 186 of the Memorandum of Appeal is a letter dated 17.09.2021 sent by the Secretary General of the association to the Tribunal stating therein that it is the association that had filed an application before the designated authority for imposition of anti-dumping duty and the designated authority had AD/51490/2021 & ors given its final findings on 31.07.2021. The letter also states that the association, it is meeting held on 16.09.2021, had decided that an appeal be filed under section 9C of the Tariff Act against the final findings dated 31.07.2021 and the notification dated 12.08.2021 before the Tribunal and so the association was filing the appeal.

35. Section 9C of the Tariff Act provides that an appeal against the order of the determination or review thereof shall lie to the Tribunal in respect of the existence, degree and effect of dumping in relation to import of any article. Thus, when the present appellant had filed an application before the designated authority for initiation of a sunset review investigation claiming that Grasim Industries was the domestic industry and was the only producer of the subject goods in India, the present appeal on behalf of the association would be maintainable. It is at the instance of the association that the designated authority had passed an order regarding dumping in relation to import of the subject goods leading to the issuance of a notification by the Central Government withdrawing the anti-dumping duty, earlier levied by the notification dated 12.08.2021. There is, therefore, no good reason to not permit the association to file the appeal against the order passed by the designated authority and the notification issued by the Central Government. The preliminary objection raised on behalf of the respondent no. 6 is, therefore, rejected.

36. Shri Bhargav Mansatta, learned counsel appearing on behalf of respondent no‟s. 3, 5 & 8 raised an objection that the anti-dumping duty cannot be continued beyond ten years in the absence of special circumstances. The contention is that the general rule is that anti­dumping duty would expire at the end of five years, but continuance of anti-dumping duty beyond five years is an exception to the general rule carved out by way of proviso to section 9A(5) of the Tariff Act. Learned counsel pointed out that anti-dumping duty was originally imposed by notification 26.07.2010 and the same has been in force for more than ten years and, therefore, in the absence of special circumstances, the appellant cannot seek continuance of anti­dumping duty for another period of five years.

37. It is not possible to accept this contention advanced on behalf of respondent no‟s. 3, 5 & 8. Neither article 11.3 of the 1994 Agreement nor section 9A(5) of the Tariff Act require any existence of special circumstances for extension of anti-dumping duty beyond a period of five years. The pre-requisites for every extension of duty, whether for five years or upto five years, are the same and they are that there should be a likelihood of continuation or recurrence of dumping and injury.

38. Shri Jitendra Singh learned counsel for the respondent also submitted that Anti-Dumping Appeal No. 50571 of 2022 has been filed by respondent no. 6-PT South Pacific Viscose, Indonesia to assail the final findings dated 08.07.2016 of the designated authority and the notification dated 08.08.2016 issued by the Central Government imposing anti-dumping duty and so this appeal should be decided before these appeals are decided. This contention requires no determination as the said Appeal No. 50571 of 2022 is being decided by order of date.

39. Shri Jitendra Singh learned counsel for the respondent also submitted that the appeals filed by other parties against the impugned orders should also be heard together. As the other appeals are being decided by this common order, this submission does not also require consideration.

40. The contention advanced on behalf of the respondent that relief cannot be granted in the appeal filed by Association of Man-Made Fibre Industry of India for the reason that the anti-dumping duty that was imposed was invalid for the reason that there were two breaks in the imposition of duties has been dealt with at length in the order of date passed in Anti-Dumping Appeal No. 50571 of 2022 filed by PT South Pacific Viscose, Indonesia.

41. The submissions advanced by the learned senior counsel for the appellant to assail the final findings of the designated authority and the notification issued by the Central Government need to be now considered.

42. As noticed above, section 9A(5) of the Tariff Act provides that if the Central Government, in a review, is of the opinion that the cessation of anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extended the period of imposition of anti-dumping duty for a further period of five years. In the present case, the designated authority concluded that there was a likelihood of continuation of dumping from the subject countries and also that there was a likelihood of continuation or recurrence of injury to the domestic industry but such injury was not strong enough to warrant continuation of the anti­dumping duties beyond eleven years. This was for the reason that the volume of dumped imports from the subject countries had declined during the period of investigation as compared to the earlier two financial years because of Covid-19 pandemic. The designated authority also observed that the profit earned by the domestic industry during the period of investigation was reasonable and that the imports would not cost any price and volume effect on the domestic industry. The designated authority also observed that there were insignificant surplus capacities with the responding producers/exporters in the subject countries, which capacities could be used to increase the exports to India in the event duty was revoked. The Central Government thereafter issued a notification dated 12.08.2021 rescinding the earlier notification dated 08.08.2016, which had imposed anti-dumping duty.

43. It has, therefore, to be examined whether the likelihood of continuation or recurrence of injury would warrant continuation of anti-dumping duty for a further period of five years.

44. In regard to the likelihood of continuation or recurrence of injury, the designated authority noted the four factors contained in clause (vii) of Annexure II of the Anti-Dumping Rules, as also other relevant factors that could have a bearing on the likelihood of continuation or recurrence of dumping and its consequent injury to the domestic industry. In this connection, it examined the import of subject goods from subject countries, the surplus capacities available with the Sateri Group and PT South Pacific Viscose, Indonesia. It noted that the though Sateri Group had surplus capacities available with it, but the capacity during the period of investigation was low because the first line of production started during December 2019 and the second line of production began in April 2020. It, therefore, observed that there was no surplus capacity with the Sateri Group. The third country dumping and third country injurious exports were also examined. After examination of the post-disclosure comments, the designated authority again concluded that there was likelihood of continuation of dumping from subject countries, but the likelihood of continuation or recurrence of injury was not strong enough to warrant continuation of anti-dumping duties beyond eleven years.

45. Learned counsel appearing for the appellants in Anti-Dumping Appeal Nos. 51832 of 2021, 51833 of 2021, 51834 of 2021, 51868 of 2021 and 51869 of 2021, submitted that the designated authority committed an error in holding that there was a likelihood of continuation and recurrence of injury.

46. It is not possible to accept this contention. This finding has been recorded by the designated authority after a careful consideration and analysis of the relevant factors, as can be seen from the findings of the designated authority.

47. Learned senior counsel for the appellant submitted that the final findings have been issued by the designated authority without regard to the statutory mandate of section 9A(5) of the Tariff Act, which requires formation of an opinion that cessation of anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury. The contention is that in a review the focus is not whether there is current dumping or injury, but whether there is a likelihood of continuation or recurrence of dumping and injury on the expiry of the anti-dumping duty. According to the learned senior counsel, the assessment whether injury will continue or recur would entail analysis of future events based on projected levels of dumped imports, prices and impact on domestic producers. The submission is that the final findings of the designated authority are based on the prices and volumes of current imports and the impact on the domestic industry but there is no determination by the designated authority regarding the projected or likely volume and prices at which imports would be made on the expiry of the anti-dumping duty and its consequential impact on the domestic industry. Learned senior counsel pointed out that the degree and extent of dumping and consequent injury to the domestic industry during the period of investigation is not of much relevance, but still it has been relied upon to a great extent by the designated authority.

48. Learned counsel appearing for the respondents have refuted the aforesaid submissions advanced on behalf of the appellant and it has been submitted that the designated authority, after a careful consideration of the materials on record, recommended withdrawal of anti-dumping duty on import of subject goods from the subject countries. The contention of the learned counsel for the respondent is that all the appropriate factors mentioned in paragraph (vii) of Annexure II of the Anti-Dumping Rules have been analysed in the final findings of the designated authority.

49. Paragraph (vii) of Annexure II reads as follows:

“(vii) A determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility. The change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. In making a determination regarding the existence of a threat of material injury, the designated authority shall consider, inter alia, such factors as:

(a) a significant rate of increase of dumped imports into India indicating the likelihood of substantially increased importation;

……………….”

50. Learned senior counsel for the appellant, however, submitted that the likelihood analysis is not confined to the analysis of the factors mentioned in paragraph (vii) of Annexure II to the Anti-Dumping Rules and the pre-conditions for extension of anti-dumping duty in terms of section 9A (5) of the Tariff Act i.e. likelihood of continuation or recurrence of dumping and injury are required to be seen. The contention is that in the present case there is current dumping as well as likelihood of future dumping. The further contention is that the factors mentioned in the aforesaid paragraph (vii) are not exhaustive as the expression ^„inter-alia‟ has been used which indicates that the list is not exhaustive and the injury will not be limited to the four factors only.

51. It is not possible to accept this contention of the learned counsel for the respondent, as the list contained in paragraph (vii) of Annexure II is not exhaustive. The Tribunal in SI Group also observed that third country dumping, surplus capacity, export attractiveness of the Indian market, and other parameters used internationally for a likelihood analysis are relevant for sunset reviews.

52. It needs to be remembered that the nature of exercise to be undertaken in a ^„sunset review‟ is different from the initial exercise that is undertaken for determining whether anti-dumping duty is to be levied or not. In a review, the focus is on whether withdrawal of anti-dumping duty would lead to continuance or recurrence of dumping as well as injury to the domestic industry. The assessment whether injury will continue or recur would entail a factual analysis of future events based on projected levels of dumped imports, prices and impact on domestic producers.

53. In this connection reference can be made to a decision of the Tribunal in Thai Acrylic Fibre Ltd. vs. Designated Authority¹⁴ wherein it was observed:

“13. Unlike original investigations, sunset reviews are prospective in nature, as they focus on the likelihood of the continuation or recurrence of dumping and injury, in case antidumping duties are removed. With respect to the question whether dumping is likely to occur in the event that the anti-dumping duties are removed, the D.A. has to consider relevant economic facts which might indicate that in the event the anti-dumping duty is removed, dumping will recur. With respect to the injury determination, if the anti-dumping duty has had the desired effect, the condition of the domestic industry would be expected to have improved during the period the anti­dumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers. Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted.

14. Sunset review entails a likelihood determination in which present levels of dumping is obviously not so relevant as is the likelihood of continuance or recurrence of dumping. Moreover, during the investigation period, the anti-dumping duty would be in force and hence, the current level of dumping may be non-existent or minimal. The exporters under investigation may also sell at a non-dumped price during this period knowing fully well that a sunset review would be in progress. Hence, the criteria under Section 9A(1) that the anti-dumping duty should not exceed the dumping margin would have no practical application for continuance of the duty under Section 9A(5). There is also no such warrant in law under the said Section 9A(5) to do so.”

(emphasis supplied)

54. In Rishiroop Polymers (P) Ltd. Designated Authority & Additional Secretary¹⁵, the Supreme Court observed as follows:

“36. Otherwise also, we are of the opinion that scope of the review inquiry by the Designated Authority is limited to the satisfaction as to whether there is justification for continued imposition of such duty on the information received by it. By its very nature, the review inquiry would be limited to see as to whether the conditions which existed at the time of imposition of anti-dumping duty have altered to such an extent that there is no longer justification for continued imposition of the duty. The inquiry is limited to the change in the various parameters like the normal value, export price, dumping margin, fixation of non-injury price and injury to domestic industry. The said inquiry has to be limited to the information received with respect to change in the various parameters. The entire purpose of the review inquiry is not to see whether there is a need for imposition of anti-dumping duty but to see whether in the absence of such continuance, dumping would increase and the domestic industry suffer.”

(emphasis supplied)

55. In APAR Industries Ltd. Designated Authority¹⁶, the Tribunal followed the aforesaid observations of the Supreme Court and held:

“It is to be borne in mind that the scope of the sunset review by the designated authority is limited. He has to satisfy himself as to whether there is justification for continued imposition of anti-dumping duty and that also based on the information received by him. It seems that the sunset review by its very nature, would be limited to see as to whether conditions which existed at the time of imposition of antidumping duty have altered to such an extent that there is no longer justification for continued imposition of duty or to ascertain that if such duty is revoked there is imminent danger of the material injury to the domestic industry. The inquiry is limited to the change in the various parameters like the normal value; export price, dumping margin, fixation of non-injurious price and injury to domestic industry. The sunset review is undertaken for the purpose of not for imposition of anti-dumping duty but to see whether the revocation of such anti-dumping duty, dumping would increase and whether the domestic industry will suffer.”

(emphasis supplied)

56. In Borax Morarji Limited vs. Designated Authority¹⁷, the Tribunal noted that:

“10. With respect to the injury determination, if the anti-dumping duty had the desired effect, the condition of the domestic industry would be expected to have improved during the period the antidumping duty was in effect. Therefore, the assessment whether injury will continue, or recur, would entail a counter-factual analysis of future events, based on projected levels of dumped imports, prices, and impact on domestic producers. Thus the D.A. has to address the question as to whether the domestic industry is likely to be materially injured again, if duties are lifted.”

57. The Tribunal in M/s SI Group India Private Limited vs. Designated Authority and The Union of India¹⁸ also observed as follows:

“12. Thus, the object and purpose of the sunset review as explained in the aforesaid judgments, precisely is to examine as to whether on removal of anti dumping duty, there is likelihood of recurrence of dumping and injury to the domestic industry. It has also been held that the degree and extent of dumping and consequent injury to the domestic industry during the POI is not of much relevance.

13. The mandate or requirement under Section 9A(5) of CTA,1975 read with Rule 23 of Anti dumping Rules,1995 and Annexure-II (vii) is that the authority has to examine all relevant aspects to ascertain the likelihood of dumping and injury, once the present anti dumping duty is removed. It is obvious that such determination cannot be based on a guess work or on mere assumption & presumption, but definitely to rest on the past & present facts, influencing the trend of dumping, resultant injury, performance and other relevant economic and other factors relating to the domestic Industries as well as the exporting Industries/countries to analyse and arrive at a probable situation of continuation of dumping and injury in future to the domestic industry. There is no dispute or quarrel on the fact that it should be on the basis of some tangible evidence. Therefore, the procedure prescribed to address the interest of all interested parties for imposition of anti dumping duty are also applicable to the sun set review proceedings even though with different objective.”

(emphasis supplied)

58. What transpires from the aforesaid discussion is that though the anti-dumping duty imposed under sub-section (1) of section 9A of the Tariff Act shall cease to have effect on the expiry of five years from the date of such imposition, but under sub-section (5) of section 9A, the Central Government, in a review, can extend the period of such imposition for a further period of five years if the Central Government is of the opinion that cessation of such duty is likely to lead to continuance or recurrence of dumping and injury. Rule 23 of the Anti-Dumping Rules provides that though the definitive anti­dumping duty shall be effective for a period not exceeding five years from the date of its publication, but an exception has been culled out namely that the designated authority can extend the period provided the designated authority comes to a conclusion upon a duly substantiated request by the domestic industry that the expiry of the anti-dumping duty would likely lead to continuation or recurrence of dumping and injury to the domestic industry. It also provides that rule 11 of the Anti-Dumping Rules would also be applicable to sunset reviews and rule 11 of the Anti-Dumping Rules requires the designated authority to determine threat of injury to the domestic industry taking into account all relevant facts in accordance with the principles set out in Annexure II of the Rules. Clause (vii) of Annexure II provides that a determination of a threat of material injury shall be based on facts and not merely on allegation, conjecture or remote possibility and that the change in circumstances which would create a situation in which the dumping would cause injury must be clearly foreseen and imminent. This has also been provided in the 1994 Agreement. It, therefore, follows that under the aforesaid statutory scheme, the designated authority is mandated to undertake a rigorous examination of all the following three factors before deciding to continue the anti-dumping duty:

(i) There is a ^„duly substantiated request‟ made by the domestic industry which implies that the domestic industry has to provide cogent evidence to substantiate its claim;

(ii) There is a likelihood of continuation or recurrence of dumping in case duties are revoked; and

(iii) There is likelihood of continuation or recurrence of injury to the domestic industry in case duties are revoked.

59. Leaned senior counsel for the appellant submitted that the likelihood of injury on the revocation of anti-dumping duty has to be ascertained from the sale prices of exports to third countries where no anti-dumping duties are in operation and in the present case the designated authority itself found as a fact that 50-60 percent of the exports to third countries by the participating producer/ exporters from China PR are at prices below the NIP and in the case of Indonesia 80-90 percent of exports to third countries by PT Asia Pacific Rayon and PT South Pacific Viscose are at prices below the NIP. The submission, therefore, is that though the designated authority noted that export to third countries are at injurious prices but it failed to draw the obvious conclusion that on the expiry of the duty, the imports were likely to come to India at third country export prices, which would result in significant injury to the domestic industry. In this connection learned senior counsel placed a Table from the final findings contained is paragraphs 129 and 130 and the same is a follows:

“129. Information with respect to third country injurious exports in case of responding producers/exporters from subject countries is given below:

Particulars	Total Exports to third countries (MT)	Exports to third countries  at prices below NIP (MT)	% of Exports to third  countries at prices below NIP	% of Exports to third countries at prices below NIP (range)
Sateri (Fujian) Fibre Co., Ltd.	***	***	***	50-60
PT Asia Pacific Rayon	***	***	***	80-90
PT South Pacific Viscose	***	***	***	80-90

130. It can be seen that 50-60% of the exports to third countries by the participating producer/exporter from China PR are at prices below the NIP. In case of Indonesia, 80-90% of exports to third countries by APR and SPV are at prices below the NIP.”

60. Learned senior counsel for the appellant also submitted that the likelihood of diversion of exports from other markets to India has to be examined with reference to the price attractiveness of the Indian market. In this connection learned senior counsel pointed out that the designated authority itself found that 55-65 percent of the exports to third countries by the participating producer/exporter from China PR are at prices below the export price to India and in the case of Indonesia 65-75 percent of exports to third countries by PT Asia Pacific Rayon are at prices below the export prices to India and 85-95 percent of exports to third countries by PT South Pacific Viscose are at prices below the export price to India. It is for this reason that the learned senior counsel submitted that since the export price to third countries are much lower than the export prices from the subject countries to India, there is a good possibility of diversion of substantial quantities to India on expiry of the anti-dumping duty. Thus, if the anti-dumping duty, according to the learned senior counsel, is revoked India would become the most attractive destination for dumping since it would be offering much better prices. The Table contained in the final findings, on which reliance has been placed, is reproduced below:

“131. Information with respect to price attractiveness in case of responding producers is given below:

Particulars	Total Exports to third countries (MT)	Exports to third countries at prices below export price to India	% of Exports to third  countries at prices below export price to India	% of Exports to third countries at prices below export price to India (range)
Sateri (Fujian) Fibre Co., Ltd.	***	***	***	55-65%
PT Asia Pacific Rayon	***	***	***	65-75%
PT South Pacific Viscose	***	***	***	85-95%

132. It can be seen that 55-65% of the exports to third countries by the participating producer/exporter from China PR are at prices below the exports price to India. In case of Indonesia, 65-75% of exports to third countries by APR are at prices below the export price to India and 85­95% of exports to third countries by SPV are at price below the export price to India.”

61. Learned senior counsel for the appellant also submitted that the likelihood of injury is also established from the fact that 62 percent of the exports from China and about 24 percent of the exports from Indonesia to India were below the NIP of domestic industry. In this connection learned senior counsel pointed out that a significant quantity of exports made during the period of investigation were already at injurious prices but still the designated authority failed to draw a conclusion that future prices would also be below NIP and would cause significant injury to the domestic industry. Paragraph 133 of the final findings, which have been placed in this connection, are is reproduced below:

“133. The Authority has examined the volume of imports which are below the NIP and NSR of the domestic industry and is shown below. It is seen that there are significant imports below the NIP and NSR of the domestic industry.

SN.	Particulars	UOM	China PR	Indonesia
1.	Total imports (excluding imports for April-June 2020 quarter)	MT	2,112	14,526
2.	Imports below NIP	MT	1,308	3,539
3.	Imports below NSR	MT	1,331	4,967
4.	% of injurious imports	%	62%	24%
5.	% of imports below NSR	%	63%	34%

62. These are some of the relevant factors which were required to be examined by the designated authority to determine whether it was necessary to extend the period of anti-dumping duty for a further period of five years after cessation of the existing anti­dumping duty, but they have not been taken into consideration in the final findings.

63. What also transpires from the final findings is that continued dumping by the subject countries in India has continued despite the imposition of anti-dumping duty. The designated authority, while examining the aspect of ^„likelihood of injury‟, recorded a finding that likelihood or recurrence of injury to the domestic industry was not ^„strong enough to warrant continuation of duties beyond 11 years‟. The designated authority further held that ^„there are in insignificant surplus capacities with the responding producers/exporters in the subject countries, which can be used to increase their exports to India in event of revocation of duty. What was required to be examined by the designated authority was whether withdrawal of anti-dumping duty would lead to continuance or recurrence of dumping as well as injury to the domestic industry. Mere continued levy of anti-dumping duty for 11 years cannot be made a ground to conclude that there is no requirement to continue anti-dumping duty. 64. This apart, the level of future imports cannot be evaluated by taking into consideration only the surplus capacity of the producers who have exported goods during period of investigation or those who have participated in the investigations. There are a large number of producers of the subject goods in China, who may not be exporting the subject goods to India on account of the anti-dumping duty in force. These exporters may start exporting the subject goods to India due to idle capacities available with them. The surplus or idle capacity has to be examined for both China and Indonesia as a whole and information in regard to a small percentage of the total exporters and producers in China for the likelihood analysis would not be a correct method for determination. In fact, in the disclosure statement, the designated authority had examined the surplus capacity for these countries as a whole and found surplus capacity of 36% in China and 64% in Indonesia. It needs to be noted that on the basis of the information furnished by the Sateri Group in China, the disclosure statement recorded that there are significant surplus capacity available with the Sateri Group, but after the disclosure statement the designated authority concluded that there is no surplus capacity with the Sateri Group for the reason that the capacity utilisation of the Sateri Group was low since the production had started only in December 2019. It was incumbent on the designated authority to have examined the relevant factors, including ascertaining whether the production of the Sateri Group in the post period of investigation was exported to India and at what prices. The same error appears to have been committed by the designated authority in the case of PT Asia Pacific Rayon, Indonesia. The exporting companies from Indonesia also admitted surplus capacity in the range of 0-10 percent for PT Asia Pacific Rayon and 40-50 percent for PT South Pacific Viscose.

65. The information of the participating producers in China constitutes less than 10% of the total capacity in China. It would also be pertinent to refer to the capacity determined by the designated authority in the previous sunset review final findings dated 08.07.2016 and the relevant portion is reproduced below:

“122. In case of China also there are huge production capacities in the country. The total Indian demand is in the range of 300,000 MT which is less than 10% of the total installed capacity in China. In case of cessation of Anti-Dumping Duties, the Indian market will become very attractive to the exporters and there is every likelihood that imports at dumped prices from the subject countries will further intensify.”

66. The findings recorded in the earlier sunset review assume importance unless it is demonstrated, as a fact, that the surplus capacity in China has reduced sufficiently, more particularly when the data furnished by the Sateri group is not representative of China as a whole. In fact it has been pointed is that the capacities available with the Sateri group alone are nearly 4.90 times of the total demand in India for the subject goods. The Indian market will, therefore, become very attractive for this group, in case of cessation of anti­dumping duty.

67. The designated authority had, in this connection, relied upon the Hawkins Report and the Wood Mackenzie Red Book in the disclosure statement, but has discarded them in the final findings without assigning any good reason and relied solely on the data of the participating producers.

68. The contention of learned counsel for the respondent is that the Hawkins Report and the Wood Mackenzie Red Book cannot be taken into consideration as they have not been disclosed to the interested parties.

69. This report was relied upon by the appellant to substantiate that there existed unutilized surplus capacity of the subject goods with the exporting countries. A claim for the confidentiality of the report was made on the following basis:

“The documents containing the capacity, demand and production of subject goods in the subject countries are third party information which the applicant is not authorized to disclose. Applicant has provided the source of the information and the actual information.”

70. Learned senior counsel for the appellant submitted that since the reports were confidential and the appellant was specifically barred from sharing these report with third parties, the same could not have been disclosed but a non-confidential version of the report had been supplied. In this connection reliance has been placed on article 6.5 of the 1994 Agreement, which is reproduced below:

“6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it.”

71. The designated authority correctly allowed the claim for confidentiality made by the appellant in terms of rule 7 of the Anti-Dumping Rules.

72. The appellant had also provided a non-confidential summary of the information, which is as follows:

S.N.	Particulars	2018	2019	2020	2021	2022
A	China PR
6.	Capacity	4,405	5,010	5,310	5,405	5,455
7.	Production	3,710	3,880	3,405	4,155	4,500
8.	Surplus capacities	695	1,130	1,905	1,250	955
9.	Surplus capacities	16%	23%	36%	23%	18%
B	Indonesia
10.	Capacity	600	635	875	875	875
11.	Production	374	395	312	395	407
12.	Surplus capacities	226	240	563	480	468
13.	Surplus capacities	38%	38%	64%	55%	53%

73. According to the appellant, the information contained in the aforesaid two reports have been summarized in the aforesaid table and that even otherwise the capacity of the exporting country is in the knowledge of the foreign exporters and producers. The claim made by the domestic industry based on these reports could have been rebutted by the exporters by providing evidence regarding the actual capacity in the subject countries. In fact the exporters questionnaire part-II requires the participating exporters and producers to not only provide information relating to their own production and sales but also of other producers in domestic market. However, the foreign exporters failed to provide such information.

74. The designated authority, therefore, completely mis-directed itself in restricting the surplus capacity of the producers to those who had exported the goods during the period of investigation instead of examining the capacity of both China and Indonesia as a whole.

75. Learned authorised representative for the Department has, however, placed reliance upon the decision of the Delhi High Court in Eveready Industries India Ltd. to contend that the Tribunal should refrain from deciding the correctness of the final findings of the designated authority.

76. This decision would not come to the aid of the respondent for the reason that the High Court had, in a Writ Petition under article 226 of the Constitution, refused to interfere with the final findings of the designated authority since the final findings addressed all the legal requirements. This decision does not hold that the final findings of the designated authority cannot be examined by the Tribunal. The relevant observations of the High Court, contained in paragraph 42 of the judgment, are reproduced below:

“42. The Court cannot don the mantle of an economic analyst to decide whether the DA adopted the correct approach; as long as the final findings addressed all the legal requirements, and considered the factors outlined in the rules (as the DA did in this case) without a showing of procedural irregularity or illegality, the Court cannot interfere under Article 226 of the Constitution.”

77. Learned counsel for the respondent also submitted that the aforesaid two reports contain information on capacity of all types of viscose staple fibre, including the categories that were excluded from the scope of the product under consideration.

78. Learned senior counsel for the appellant, however, submitted that it is not open to the respondent to raise this issue for the first time before the Tribunal as this objection was not raised in the written submissions filed pursuant to the public hearing nor such objection is recorded in the disclosure statement. Even otherwise, according to the learned senior counsel, the production process and the plant for all types of viscose staple fibre other than Lyocell are similar.

79. When the respondent had not raised this objection at the appropriate time, it is not open to them to raise this objection for the first time in this appeal.

80. Learned counsel for the respondent also submitted that the domestic industry unilaterally altered the scope of the product and consideration in the sunset review, which alteration was wrongly accepted by the designated authority.

81. This submission cannot be accepted. The applicant had requested for imposition of anti-dumping duty on a narrower scope of the product under consideration and had not made any claim for enlargement of the product under consideration in the sunset review proceedings. It is the prerogative of the domestic industry to make a claim for imposition of duty on the types of product and neither section 9A (5) of the Tariff Act nor rule 23 of the Anti-Dumping Rules bars the designated authority from restricting the scope of the product under consideration in a sunset review. No prejudice can be said to have been caused to the foreign exporters if the product under consideration is restricted in a sunset review and in fact the foreign exporters would benefit if the anti-dumping duty is not levied on the products excluded from the scope of the product under consideration. The designated authority in the final findings had rejected this contention of the respondents and the observations are as follows:

“14…… In the application for current sunset review investigation, the applicant requested Authority to exclude Modal Fibre, Non-Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre. The exclusion request was accepted by the Authority at the time of the initiation of the investigation and accordingly the scope of the product under consideration was restricted/ narrowed down. The Authority notes that there is no bar either under the Act or under the Rules on narrowing down the scope of product under consideration in a sunset review particularly when the domestic industry has itself requested for narrowing down the scope of production under consideration as they no longer need protection on the excluded grades/types.

15. The Authority has restricted the scope of product under consideration in several sunset review investigations in the past at the time of initiation. Further, it has not been established by the interested parties how curtailment of the scope of the product under consideration has caused prejudice to their interests. The Domestic industry did make the request for limiting the scope of the product under consideration at the initiation stage itself. Had the Authority proceeded with the investigation without acceding to the request for the exclusion of these type/ grades of production under consideration, it might have resulted in imposition of anti-dumping duty on the types/grades for which the applicant/domestic industry did not want any protection. Moreover, curtailment of the scope of product under consideration cannot cause prejudice to the interested parties opposing imposition of anti- dumping duty. Therefore, the scope of product under consideration was curtailed at the stage of initiation itself.

139. With regard to the submission concerning exclusion of certain product types from the scope of the production under consideration at the time of initiation itself, the Authority notes that Article 11 of Anti­dumping Agreement states that an anti- dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping, which is causing injury. This implies that it is within the powers of the Authority to restrict the scope of production under consideration at the time of initiation itself if the domestic industry has categorically made a request that it no longer requires extension of anti-dumping duty on certain product types. It is noted that Article 11.1 of the Anti-Dumping Agreement which sets the applicable requirement for a Review Investigation reads as under:

“An anti-dumping duty shall remain in force only as long as and to the extent necessary to counteract dumping which is causing injury.”

Similarly, Rule 23 (1) of the Anti-Dumping Rules, 1995 is an umbrella provision for review investigations which puts forth an obligation on the Authority that an anti­dumping duty imposed under Section 9A of the Act, shall remain in force only for the time period and to the extent it is necessary to counteract dumping which is causing injury.

Ordinary meaning of the word extent is “point, degree, or limit” and the meaning of the term necessary is “needed to be done, achieved, or present; essential.”

Thereby Rule 23(1) provides for a limitation on the Authority while carrying out a Sunset Review Investigation under Rule 23(1B) that an extension of the duty/imposition of duty is an exceptional circumstance and this extension can only be done to the extent necessary to counteract dumping causing injury.

In consonance with the above Rules and as per the request made by applicant to exclude Modal Fibre, Non-Woven Fibre, Flame Retardant Fibre, Eco Fibre, Spun Dyed Fibre, Tencel Fibre (or Lyocel) and Outlast Viscose Fibre, the Authority has considered the request particularly when the applicant itself is not interested in extension of duty on the above product types which were earlier within the scope of the product under consideration. Therefore, by applying Article 11.1 which sets a guiding principle for review investigations and Rule 23(1), which is verbatim Article 11.1 for the Indian Review Investigations, the Authority has restricted the product scope applying the principle “to the extent necessary” as envisaged under Rule 23(1) at the stage of initiation itself preventing the futile exercise by the Authority. Had the Authority initiated the review investigation on the above said products despite the request of the domestic industry, it would have been a waste of resource and time.”

82. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the designated authority should re­examine whether the cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. It needs to be noted that the designated authority had recorded a categorical finding that cessation of anti-dumping duty would lead to continuation or recurrence of dumping and even with regard to the injury aspect, the designated authority did hold that cessation of anti-dumping duty would lead to continuation or recurrence of injury, but it further held that such injury was not strong enough to warrant continuation of anti-dumping duty for a further period of five years. Thus, all that would have to be re-examined by the designated authority, on remand, is as to whether cessation of anti-dumping duty would likely lead to continuation or recurrence of injury warranting imposition of anti-dumping duty for a further period of five years.

83. In Anti-Dumping Appeal No. 51832 of 2021, Anti-Dumping Appeal No. 51833 of 2021, Anti-Dumping Appeal No. 51834 of 2021, Anti-Dumping Appeal No. 51868 of 2021, Anti-Dumping Appeal No. 51869 of 2021 and Anti-Dumping Appeal No. 50570 of 2022 the following submissions have been made:

(i) The designated authority committed an error by initiating and conducting investigation when anti­dumping duties had already lapsed;

(ii) The scope of the product under consideration was unilaterally altered in the sunset review investigation;

(iii) The designated authority committed an error in holding that there was a likelihood of continuation and recurrence of injury; and

(iv) The designated authority committed an error in this regarding the findings recorded by the Competition Commission of India against the domestic industry.

84. The first, second and third submissions have already been considered and rejected.

85. The fourth contention is that the findings recorded by the Competition Commission of India against the domestic industry have been disregarded.

86. This submission cannot be accepted. The findings recorded by the Competition Commission of India would have no relevance when the designated authority proceeds to take a decision in the context of imposition of anti-dumping duty for the reason that the Tariff Act and the Competition Act, 2002 operate in different fields. This apart, the period examined by the Competition Commission for determining anti-competitive behavior was upto financial year 2016-17, whereas the injury period in the sunset review was for 2017-18, 2018-19, 2019-20 and 01.10.2019 to 30.09.2020. This issue has also been correctly appreciated by the designated authority in its final findings and the relevant portion is reproduced below:

“34. Interested parties have referred to the decision of the CCI. It is noted that CCI decision has been challenged by the domestic industry before Appellate Court and the matter is sub-judice and has not yet attained any finality. Moreover, if there are any contraventions of the provisions of Competition Act, it is for the concerned authority to take appropriate action thereon. Any decision in that matter would not prejudice objective examination of the need for continuation of duty, which is based on the likelihood of continuation or recurrence of dumping and injury in the event of revocation of the existing anti-dumping duty. The Authority also notes that the period examined by CCI for determining anti- competitive behaviour of Grasim Industries Limited was upto financial year 2016-17. The injury period being examined by the Authority in the present sunset review investigation is 2017-18, 2018-19, 2019-20 and 1st October 2019 to 30 September 2020.”

87. Anti-Dumping Appeal No. 51872 of 2021 has been filed raising the following issues:

(i) Initiation of the second sunset review by the designated authority was illegal because there was no legally valid anti-dumping duty in force;

(ii) The revision of the scope of the product under consideration by the designated authority was arbitrary and unjustified;

(iii) Complete disregard of Competition Commission of India report by the designated authority; and

(iv) Non-consideration of post-investigation period data of domestic industry was against established principles.

88. The first three issues raised have already been considered and rejected. It needs to be noted that the designated authority, in its final findings, has considered the information for the injury investigation period, including the post investigation period data in paragraph 143 of the final findings.

89. In the result, for all the reasons stated above,

(i) Anti-Dumping Appeal No. 51490 of 2021 is allowed to the extent that the designated authority shall re­examine and give a fresh finding as to whether cessation of anti-dumping duty would likely lead to continuation or recurrence of injury so as to warrant imposition of anti-dumping duty for a further period of five years. The final findings dated 30.07.2021 of the designated authority, therefore, stand modified to this extent. The final findings shall thereafter, be submitted to the Central Government for further action in accordance with the provisions of the Tariff Act;

(ii) Anti-Dumping Appeal Nos. 51832 of 2021, 51833 of 2021, 51834 of 2021, 51868 of 2021, 51869 of 2021, 51872 of 2021 and 50570 of 2022 are dismissed.

(Order pronounced on 19.05.2022)

Notes:-

1 the appellant

2 the subject countries

3 the Tariff Act

4 NIP

5 Anti-Dumping Rules

6 Anti-Dumping Appeal No. 50430 of 2019 decided on 28.11.2019

7 2016 (342) ELT 473 (Tri-Del)

8 2001 (127) ELT 629 (Tri-Del)

9 2015 (328) E.L.T. 417 (Tri-Del)

10 2010 (253) E.L.T 564 (Tri. – Del.)

11 2017 (351) ELT 65 (SC)

12 2019 (367) ELT 53 (Del)

13. 1994 Agreement

14. 2010 (253) E.L.T. 564 (Tri.-Del)

15. (2006) 4 Supreme Court Cases 303

16. 2006 (200) E.L.T. 34 (Tri.-Del.) CESTAT

17. 2007 (215) E.L.T. 33 (Tri. – Del.), CESTAT

18. Anti-Dumping Appeal No. 50430 of 2019 decided on 28.11.2019