Judgment:
1. Association of Seamless Tubes manufactures filed a petition before the Designated Authority, Ministry of Commerce, Govt. of India alleging dumping into India of seamless tubes originating in or exported from Austria, Czeck Republic, Russia, Romania and Ukraine. Upon satisfaction that there was sufficient evidence regarding dumping, the Designated Authority initiated Anti Dumping investigation against the imports from these countries in respect of seamless tubes by issue of Public Notice dated 21st May, 1999. The authority published its preliminary findings vide notification dated 10th November, 1999. The preliminary findings recommended imposition of Provisional Anti Dumping duties.
Subsequently, at the conclusion of investigations, which included hearing of the interested parties who took part in the investigations, the Authority notified its Final Findings on 19th May, 2000. The Final Findings recommended levy of Definitive Anti Dumping duties. The Anti Dumping duty was recommended at the difference between Reference Price mentioned in column 4 of the table to the Final Finding and the landed value of the imports. Ministry of Finance, Department of Revenue issued notification No.91/2000-Custom dated 21st June, 2000 imposing Definitive anti Dumping duties at the rates recommended in the Final Findings of the Designated Authority. The present appeals, though seeking opposite reliefs, are with regard to the imposition of Definitive Anti Dumping duty.
2. The appeal of M/s Volzhsky Pipe Plant, the foreign supplier from Russia, seeks the setting aside of the Anti Dumping duty imposed on their supplies and the appeal of Association of Seamless Tubes Manufacturers, India seeks modifications of the Anti Dumping duty imposed, that too in US $ terms. As both the appeals are in regard to the same issue, we considered it advantageous to take up both the appeals together for consideration. Accordingly, they were heard together and are disposed of under this common order.
3. The grievance of M/s Volzhsky is mainly on two grounds. The first ground is that the Designated Authority has acted illegally in taking into account the overall operating position of the exporter while determining the question of dumping of imported goods. The second ground is that, despite their furnishing all the information called for by the Designated Authority during the investigation, normal price for the goods exported by them has been fixed by working out constructed cost, discarding the data furnished by them.
3.1 With regard to the overall operating position of the appellant, the contention is that, Anti Dumping investigation being limited to the allegation regarding underselling of particular export goods, the only factors relating to the alleged undersold article can rightly be taken into account while investigating the matter. The appellants have relied on the decision of this Tribunal in the case of M/s Automotive Tyre Manufacturers' Association & Anr. Versus Designated Authority reported in 2000 (38) RLT 19 (CEGAT) in support of their submission that the Designated Authority should not have taken the overall operating losses of the appellant into account, while investigating the charge of Dumping of Seamless tubes. The learned Counsel representing the appellants also submitted that, in any event, there was no justification for fixing the normal value for their export goods based on constructed cost.
3.2 With regard to determination of normal value, it is the appellants' submission that they had co-operated with the investigation and made available full information of their domestic sale prices, cost of production etc. The Learned Counsel submitted that normal price in the instant case should have been determined in terms of Annexure -I, to Anti Dumping Rules.He submitted that this Tribunal has already held in the case of M/s Thai Acrylic Fibre Co. Ltd. Versus Ministry of Finance and Others in Appeal No. C/266/2000-AD with C/Cross/304/2000-AD that domestic sale price should be accepted as the normal price of the article in question, provided that price is not below unit cost of production. The Learned Counsel submitted that in the instant case, since full data about domestic sales and cost of production had been made available, the Authority should have ascertained the normal price from such data and compared the export price with the normal price in order to determine whether dumping was involved and in case it was observed that export prices were dumped prices, that should be the dumping margin. The Learned Counsel submitted that the Designated Authority had violated the principles governing normal value determination while deciding this case.
4. As against the aforesaid submissions of the Learned Counsel for the appellant exporter, Learned Counsel representing the Association of Seamless Tubes submitted that the association had pointed out that the data supplied by the exporter did not appear to reflect the prevailing cost of materials, finance etc. Such a circumstance, according to him, justified the adoption of constructed cost as the normal price. He, therefore, justified fixing of reference price based on the constructed cost in respect of all the exporting countries involved in the present proceedings. He also submitted that the Designated Authority should have fixed the Anti Dumping duty in US$ terms. He pointed out that it is settled position that Anti Dumping duty is to be fixed in US$ in view of the decisions of this Tribunal in the case of M/s Pig Iron Mfrs.Asscn. Versus Designated Authority, Min. of Commerce reported in 2000 (116) ELT 67 (Tribunal).
5. The Learned Counsel representing the Designated Authority submitted that even though the impugned order states that the Designated Authority has taken into account the overall losses revealed by the exporters Balance Sheet, a perusal of the records of the case would show that imposition of Anti Dumping duty was fully justified in the instant case as the export price was below the normal value. He, therefore, submitted that in the instant case what was called for was the modification of the Anti Dumping levy, if called for, based on the data available in the files of the Designated Authority. He stressed that this is not a case warranting the setting aside of anti-dumping duty. He urged that the Designated Authority may be permitted to recast the data furnished by the exporters so as to determine the correct Normal Value, Dumping Margin and Reference Price. He also submitted that this procedure was permitted by the Tribunal in the case of M/s Thai Acrylic Fibre Co. Ltd. Vs. Ministry of Finance in Appeal No.C/266/2000-AD with C/Cross/304/2000-AD.6. A perusal of the relevant Anti Dumping provisions in Customs Tariff Act, 1975 and Anti Dumping Duty Rules, 1975 makes it very clear that Anti Dumping investigations are to be carried out with regard to alleged dumping of specific goods and not with regard to the overall operations of the exporter or exporters. Section 9A of the Custom Tariff Act states that where "any article" is exported from 'any country' to India at less than its normal value, Central Government may impose an Anti Dumping duty in relation to such articles. The definitions of "Margin of Dumping" "Export Price" and "Normal Value", contained in Section 9A are all in respect of the article of export. It is clear from these that the investigation should be focussed on the article alleged to be dumped and not the overall operating loss/profit of the exporter. Therefore, the Designated Authority was clearly in error in taking into account the overall operating losses of the exporter while investigating the complaint of the Association of Seamless Tubes that seamless tubes were being dumped into India. The complaint was that the dumping of seamless tubes from the named countries was causing injury to the domestic industry, that such underselling of the goods was an unfair trade practice and action was to be taken for imposing Anti Dumping duty under the provisions of Customs Tariff Act, 1975. The overall business operations of the exporters of the named countries were not of any relevance or consequence to the Indian Manufacturers of Seamless tubes. Therefore, in law as well as on the facts of the complaint, the Designated Authority was in error in taking into account the overall operating losses of the exporter.
7. Normal value, Export Price and Margin of Dumping are required to be determined in terms of Annexure-I to the Anti Dumping rules. In the instant case M/s Volzhsky from Russia and M/s Silcotub and M/s Petrotub from Romania made available during the investigation to the Designated Authority full data about their domestic sale prices and cost of production. The Designated Authority should have determined the normal value based on the domestic sale price, provided such domestic sale prices were not below per unit cost of production plus administrative selling and general cost as provided in Annexure-I. Accordingly, we accepted the suggestion of the Learned Counsel for the appellant exporter and the Learned Counsel for the Designated Authority that normal price, export price and dumping margin should be worked out afresh, taking into account the data supplied by the exporters and based on the principles governing the determination of Normal value, Export Price and Margin of Dumping contained in Annexure-I of the Anti Dumping rules and directed the representatives of the D.A. to carry out the exercise with the participation of the representatives of the appellant exporters. It was also directed that provisions towards handling charge is not to be made in the computation of landed price/Reference Price, as we have already held that handling charges are not one of the elements to be considered while fixing the landed price. It was further directed that Anti Dumping duty or Reference Price is to be fixed in US$ terms in view of our earlier orders on this subject. The Designated Authority has re-worked the Reference Price in respect of exports of Casting Pipes by M/s Volzhsky Pipe Plant (directly by them and through Mitsui & Co. Ltd.) at US$ 757 per MT.Similarly, in respect of exports of boiler pipes by M/s Silcotub S.A.Reference Price has been worked out at at US$ 945 per M.T. In respect of exports from non-cooperating countries (Austria, Czech Republic and Ukraine) and other categories of seamless tubes and pipes, a reference price of 1001 US$ per M.T. has been worked out based on constructed cost.
8. Anti dumping duty, at the rate of differential amounts between the revised Reference Prices and the landed values of exports from these countries is required to be imposed, as the investigation has established dumping, injury and casual link. The Act Dumping duties imposed under Notification No. 91/2000 dated 21st June, 2000 are required to be modified so as to bring the Anti Dumping duties in line with the revised Reference Prices. In view of the reference prices refixed by the Designated Authority, anti dumping duty on the subject goods should be as shown in the table given below.
Volzhsky Pipe Plant the manufacturer & M/S Mitsui & Co. Ltd., Tokyo, the exporter 3. All other exporters of allcategories of seamless pipe/tubes as described in the above All other exporters of all categories of seamless pipes/tubes as described in the above para.
All exporters of all categories of seamless pipes/tubes as described in the above para All exporters of all categories of seamless pipes/tubes as described in the above para.
All exporters of all categories of seamless pipes/tubes as described in the above para 9. The anti dumping duty as given in the table above should be the duty realisable by the Central Govt. In other words the table attached to Notification No. 91/2000 dated 21.6.2000 should stand modified as above. We order accordingly and amend the above notification. Appeals are thus disposed of modifying the impugned notification in accordance with the table given a above.