Inter-Continental Oils and Fats Pte. Ltd. Vs Union of India (CESTAT Delhi)
CESTAT Delhi with regard to anti-dumping duty on imports provided the relief of modification of the ‘product under consideration’ to ‘Saturated Fatty Alcohol with a carbon chain length of C12, C14, C16 and C18.
Facts- The two issues that have been raised in these appeals are as to:
1. Whether the designated authority can, on its own accord, increase the scope of the ‘Product Under Consideration’ beyond the scope of the ‘Product Under Consideration’ described in the application filed by the domestic industry for initiation of anti-dumping investigation; and
2. Whether the designated authority erred by covering such products within the scope of the ‘Product Under Consideration’, which are not manufactured by the domestic industry and which could not have caused injury to the domestic industry during the ‘Period of Investigation’.
Conclusion- Held that there is no error in the finding recorded by the designated authority in including pure cuts C12 and C14 in the product under consideration.
The only relief that can be granted to the appellants is the modification of the ‘product under consideration’ to ‘Saturated Fatty Alcohol with a carbon chain length of C12, C14, C16 and C18 including single, blends and unblended which includes blends of a combination of carbon chain lengths C12-C14, C12-C16, C12-C18, C16-C18 and C14-C16.
FULL TEXT OF THE CESTAT DELHI ORDER
The principal relief that has been claimed in all the aforesaid Anti-Dumping Appeals, which have been filed by exporters and importers, is for quashing the final findings dated 23.04.2018 of the designated authority recommending imposition of anti-dumping duty as also the consequential Customs Notification dated 25.05.2018 issued by the Central Government imposing anti-dumping duty. The appellants have also sought the quashing of the Corrigendum Notification dated 13.07.2018 issued by the designated authority to the final findings and the consequential Corrigendum Notification dated 25.09.2018 issued by the Central Government to the Customs Notification dated 25.05.2018.
2. The two issues that have been raised in these appeals are as to:
i. Whether the designated authority can, on its own accord, increase the scope of the „Product Under Consideration‟ beyond the scope of the „Product Under Consideration‟ described in the application filed by the domestic industry for initiation of anti-dumping investigation; and
ii. Whether the designated authority erred by covering such products within the scope of the „Product Under Consideration‟, which are not manufactured by the domestic industry and which could not have caused injury to the domestic industry during the „Period of Investigation‟
3. In order to examine these submissions it would be useful to first examine the relevant provisions of the Customs Tariff Act, 19751, and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 19952.
4. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where 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. The margin of dumping, the export price and the normal price have all been defined in section 9A(1) of the Tariff Act. Sub-section (5) of section 9A 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. Sub-section (6) of the section 9A of the Tariff Act provides that the margin of dumping has to be ascertained and determined by the Central Government, after such enquiry as may be considered necessary and the Central Government may, by notification in the Official Gazette, make rules for the purpose of this section.
5. In exercise of the powers conferred by sub-section (6) of section 9A and sub-section (2) of the section 9B of the Tariff Act, the Central Government framed the 1995 Anti-Dumping Rules. The duties of the designated authority are contained in rule 4. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. Rule 6 deals with the principles governing investigation.
6. Rule 17 deals with final findings. It is reproduced below:
“Final findings.-
(1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding–
(a) as to, –
(i) the export price, normal value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;
(iii) a casual link, where applicable, between the dumped imports and injury;
(iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy:
xxxxxxx
(b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to rules.”
7. Rule 18 deals with levy of duty and the relevant portion is reproduced below:
“18. Levy of duty.-
(1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.”
8. It transpires that M/s VVF (India) Ltd., a domestic industry, filed an application before the designated authority for initiation of anti-dumping investigation under the provisions of the Tariff Act and the 1995 Anti-Dumping Rules. The product under consideration for the purpose of the proceedings was described in the application filed by the domestic industry in the following manner:
Product description
“The product under consideration for the purpose of the present petition is “Saturated Fatty Alcohols with carbon chain length of C8, C10, C12, C14, C16 and C18 including single, blends and unblended (not including branched isomers) which includes blends of combination of carbon chain lengths, C12-C14, C12-C16, C12-C18, C16-18 and C14-C16 (commonly categorized as C12-C14)” (hereinafter referred to as the “subject goods”). By way of abundant precaution, it is clarified that unsaturated fatty alcohols are excluded from the scope of the product under consideration, as the same are not produced in India. It is submitted that fatty alcohols of all the above carbon chain types be considered as product under consideration, whether produced as a main product by the petitioner or as a by product.”
(emphasis supplied)
9. The domestic industry, in the said application, also indicated the four digit Product Control Number of the various carbon chains in order to allow a reasonable and fair comparison of normal value and export price and the same is reproduced below:
Description of Product Concerned
