Xinyi Energy Smart (Malaysia) SDN BHD Vs Union of India (CESTAT Delhi)
CESTAT Delhi held that interest free advances received by the foreign exporter not includible in the value of goods supplied to India when advances are for expansion of production facility and future production activity.
Facts- Anti-Dumping Appeal has been filed by M/s. Xinyi Energy Smart (Malaysia) for setting aside the imposition of anti-dumping duty so far as the exports by Xinyi Energy are concerned by customs notification dated 11.11.2020 read with the final findings dated 20.08.2020. The submission is that its exports to India by Xinyi Energy are not at dumped prices, and the determination of the dumping margin by the designated authority in the final findings is erroneous for the reason that it is based on a faulty determination of the normal value and export price.
Anti-Dumping Appeal Numbers have been filed by M/s. Asahi India Glass Ltd, M/s. Gold Plus Glass Industry Ltd., M/s. Saint Gobain India Pvt Ltd. and M/s. Sisecam Flat Glass India Pvt. Ltd., respectively, as domestic industry, with a prayer that Xinyi Energy should have been treated as a non-co-operating exporter by the designated authority and/or relegate Xinyi Energy to residuary antidumping duty for the reason that Xinyi Energy had consciously provided incorrect information to the designated authority and also suppressed material facts from the designated authority.
Conclusion- Thus, the interest free advances received by the foreign exporter from the parent company are for expansion of the production facility and future production activity, and not relatable to the production and export of subject goods to India during the period of investigation.
The designated authority was not justified in holding that the cost of the product under consideration was understated to the extent of the impact of interest of such loans received towards future expansion and, therefore, was required to be adjusted by imputing notional interest cost.
FULL TEXT OF THE CESTAT DELHI ORDER
Anti-Dumping Appeal No. 50322 of 2021 has been filed by M/s. Xinyi Energy Smart (Malaysia), Sdn Bhd1 for setting aside the imposition of anti-dumping duty so far as the exports by Xinyi Energy are concerned by customs notification dated 11.11.2020 read with the final findings dated 20.08.2020. The submission is that its exports to India by Xinyi Energy are not at dumped prices, and the determination of the dumping margin by the designated authority in the final findings is erroneous for the reason that it is based on a faulty determination of the normal value and export price.
2. Anti-Dumping Appeal Numbers 50412 of 2021, 50413 of 2021, 50414 of 2021 and 50418 of 2021 have been filed by M/s. Asahi India Glass Ltd, M/s. Gold Plus Glass Industry Ltd., M/s. Saint Gobain India Pvt Ltd. and M/s. Sisecam Flat Glass India Pvt. Ltd.2, respectively, as domestic industry, with a prayer that Xinyi Energy should have been treated as a non-co-operating exporter by the designated authority and/or relegate Xinyi Energy to residuary antidumping duty for the reason that Xinyi Energy had consciously provided incorrect information to the designated authority and also suppressed material facts from the designated authority.
3. It transpires from the records that the domestic industry had filed an application before the designated authority for imposition of anti-dumping duty on imports of Clear Float Glass3 originating in or exported from Malaysia and a notification dated 23.08.2019 was issued for initiating an investigation to determine existence, degree and effect of the alleged dumping of the subject goods and recommend the amount of anti-dumping duty, which, if levied, would be adequate to remove the alleged injury to the domestic industry. The period of investigation for the purpose of investigation was notified to be from 01.04.2018 to 31.03.2019. The injury investigation period was to cover the previous three years i.e., April 2015- March 2016, April 2016-March 2017, April 2017-March 2018 and the period of investigation.
4. Xinyi Energy claims that pursuant to the initiation notification dated 23.08.2019, it communicated its intention to the designated authority to participate in the investigation and submitted confidential and non-confidential responses to the Exporter‟s Questionnaire. The designated authority granted an opportunity of oral hearing to the interested parties on 08.01.2020 and 15.07.2020, and all the parties who attended the oral hearing were asked to file written submission of the views expressed orally by them. The parties were also advised to collect written submission made by the opposing party and submit rejoinder. The essential facts of the investigation were disclosed to the interested parties by a disclosure statement dated 28.07.2020 and time was granted to the parties to provide comments on the disclosure statements.
5. The final findings were notified by the designated authority on 20.08.2020. A recommendation was made to the Central Government for imposition of anti-dumping duty on import of the subject goods originating in or exported from Malaysia from the date of notification to be issued by the Central Government.
6. The Central Government, thereafter, issued a notification dated 11.11.2020, which was published on the same date in the Gazette of India, imposing anti-dumping duty at the rate equal to the difference between the landed value of subject goods and the amount indicated in the corresponding entry in column (7). The said Table is reproduced below:
