1. The request for adjournment on behalf of M/s. Mahaveer Mirror Industries is declined by the separate order. Heard learned Counsel Mr.
Ameet Singh, Advocate and Mr. Devender Kumar, Jr. Advocate for Designated Authority and Ms. Meenakshi Arora, Advocate, Mr. Jitendra Singh, Advocate and Mr. Chander Prakash, Advocate on behalf of the Domestic Authorities at length. All the appeals are filed against the Notification No. 165/2003-Cus. dated 12th November, 2002 issued by the Central Government under Sub-section (1) of Section 9A of the Customs Tariff Act, 1975 read with Rules 18 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [hereafter referred to as 'rules'] imposing anti-dumping duty on Float Glass of thickness 2mm to 12 mm (both thickness inclusive) of clear as well as tinted variety (other than Green glass) but not including processed glass meant for decorative, industrial or automotive purposes, originating in, or exported from, the Peoples' Republic of China and Indonesia, and imported into India as shown in the Table to the Notification.
2. The Designated authority issued a Public Notice dated 5^th July, 2002 initiating anti-dumping proceedings concerning imports of Float glass covered under Chapter heading 70.05 of the Schedule 1 of the Customs Tariff Act on the petition filed by All India Float Glass Manufacturers' Association (AIFGMA). The Designated Authority notified preliminary findings by Notification-dated 20.11.2002 and recommended imposition of Anti-dumping duty on provisional basis, which was notified by Notification No. 7/2003-Cus. dated 7^th January, 2003.
3. The Designated Authority thereafter, provided an opportunity to the interested parties to present their view orally in public hearing held on 19^th February, 2003. The Designated Authority thereafter, in accordance with Rule 16 of the Rules issued disclosure statement to known interested parties on 25^th June, 2003. After receipt of the comments by the interested parties the Designated Authority recommended imposition of Anti-dumping duty by the Final Findings dated 22^nd August, 2003. In pursuance to the recommendation by the Designation Authority, the impugned Notification No. 165/2003-Cus. dated 12^th November, 2003 imposing Anti-dumping duty w.e.f., 17.1.2003 was issued.
We have gone through the grounds of the appeal in the appeals filed by the appellants and we find that the impugned notification is being challenged on the following grounds: (ii) that petitioners did not give a proper non-confidential summary of the petition; (iii) that disclosure statement was discriminatory between various categories of interested parties; (iv) that determination of material injury is contrary to the evidence on record; (v) that determination of casual link is contrary to the evidence on record; (vi) that the scope of the product under investigation shall not include varieties of glasses that are not manufactured by the domestic industry; (vii) that the Final anti-dumping duty shall not be levied retrospectively for the period when no provisional duties were in force; 4. As against these contentions of the appellants, the contention of the learned Counsel, appeared on behalf of the Designated Authority and on behalf of the Domestic Industries is that all the issues now been raised by the appellants are dealt with by the Designated Authority after taking into consideration the information supplied by the exporters. It is also pointed out by the respondents that M/s. Mahaveer Mirror Industries, Vijayawada (Appeal No. C/148/2005-AD) never participated in the proceedings before the Designated Authority.
5. In respect of the appellant M/s. Mahaveer Mirror Industries, Chennai, sole proprietory concern of Shri Madan Lal, only responded to the Public Notice, vide which proceedings were initiated but after preliminary findings by the Designated Authority this appellant never appeared nor participated in the proceedings before the Designated Authority. In respect of the M/s. Navakar Impex Pvt Ltd. (Appeal No.C/150/05-AD), it is pointed out by the respondent that in response to the initiation notification they wrote two letters dated 31.8.2002 and letter dated 6.9.2002 showing their interest in the proceedings by asking for the copy of questionnaire. The Designated Authority issued the questionnaire on 05.7.2002 and the reply was to be filed within forty days i.e. by 15^th August, 2002. Therefore, the Designated Authority did not send the questionnaire as the request was made after 15.8.2002. Thereafter, Designated Authority issued a Notice for Public hearing to M/s. Navakar Impex Pvt. Ltd. but instead of appearing they wrote a letter dated 14.3.2003 asking not to proceed with the enquiry as the Writ Petition was pending in the Hon'ble High Court.
6. The respondents also pleaded that all the issues now being raised by the appellant were not raised before the Designated Authority as M/s.
Mahaveer Mirror Industries, Chennai had not participated after preliminary findings and other two appellants did not participate. Even in the case of M/s. Navakar Impex Pvt Ltd. the notice of public hearing was not responded.
7. After going through the record we find all the contentions now raised by the appellants are well considered by the Designated Authority. The appellants raised the contention regarding accuracy of import data on the ground that the final findings are based on the import statistics provided by the petitioners, the basis of which was not submitted to the authority. In the absence of information about the source, the question of authority evaluating the accuracy and satisfying itself on the accuracy of the information did not arise.
Therefore, the findings are violative of Rule 8 and therefore, the entire findings should be set aside.
8. We find that the Designated authority received response from following exporters: The Designated Authority after taking into consideration the information supplied by the exporters arrived at normal value and export price in terms of Metric Tonne of various thickness of Float Glass. Hence, it cannot be said that accuracy of import data is not established.
9. In respect of the contention of the appellants regarding that the Petitioners did not give a non-confidential summary in the petition, we find that the Designated Authority after taking into consideration the information furnished by the exporters on confidential basis and the information supplied by the domestic industry on confidential and non-confidential basis arrived at the findings. Further, we find that appellants had not participated in the proceedings before the Designated Authority. Therefore, now, the appellants cannot say that non-supply of non-confidential summary by the Petitioners will in any way affect the proceedings and findings of the Designated Authority.
10. The appellants contended that the disclosure statement was discriminatory between various categories of interested parties. We find that as the appellants had not participated in the proceedings during the investigation, there was no question of any discrimination in respect of the disclosure statement against the appellants.
11. Appellants also raised the issue that domestic industry does not represent a major portion of the total domestic production, and therefore, no proceedings can be initiated on such petition. We find that after taking into consideration the production of subject goods during the period of investigation the Designated authority held that the petitioners are having 54.75% share of the total production. This finding of fact is not controverted by the appellant by producing any evidence to show that the quantity of production taken into consideration by the Designated Authority was wrong.
12. The appellants also contended that determination of Injury and Causal Link was wrongly made in the final finding. In this connection we find that the following conclusions are made by the Authority regarding various injury parameters affecting the domestic industry: i) There has been an increase in imports of subject goods from subject countries in absolute terms as well as in relation to the demand of subject goods in the country.
ii) The market share of the dumped imports from the subject countries has increased.
iii) The selling price of the domestic industry increased during the POI as compared to year 2000-01. However, the same has been below the non-injurious price (NIP) on account of dumped imports.
iv) The industry has suffered injury due to price undercutting by the dumped imports.
v) The domestic industry has suffered injury due to price suppression. They have not been able to raise their selling price so as to realize a fair return on the investments as the landed value of the dumped imports has considerably depressed the selling price of the domestic industry.
vi) Sales Volume of the domestic industry increased during the POI which is on account of increase in the production capacity of the domestic industry. This increase in sales cannot by itself be attributed to an improvement in the performance.
vii) There has been an increase in the inventory at the end of December, 2001 in comparison to previous year closing on March, 2001.
viii) There has been no impact on the employment level of the domestic industry.
x) The Authority concludes that the most significant cause of injury to the domestic industry has been the price undercutting and price underselling. As a result of lower landed value of imports of subject goods from subject countries, the domestic industry has not been able to realize a fair and reasonable price for its products.
This has led to very marginal return on investment. The investments in the Float glass industry are quite heavy and the low return achieved on the investment by the industry reflects the injury suffered by the industry.
xi) The above economic parameters cumulatively and collectively establish that domestic industry has suffered material injury on account of dumping.
As regards the impact of the dumped imports on the domestic industry the Authority has examined the effect of the dumped imports in accordance with principle (v) of Annexure-II of the Anti-Dumping Rules.
The Authority finds that the most significant cause of the injury to the domestic industry has been the price under cutting and price under selling as a result of the dumped imports from subject countries. As a result of lower landed value of imports of subject goods from subject countries, the domestic industry has not been able to realize a fair and reasonable price for its products. This has led to very marginal return on investment. The investments in the Float glass Industry are quite heavy and the low return achieved on the investment by the industry reflects the injury suffered by the industry. The demand of the subject goods has not decreased but has instead increased and therefore, contraction of demand cannot be attributed as a cause of injury. The Authority also notes that the domestic industry is globally competitive and changes in technology or competition amongst the domestic producers are not the cause of injury. No technological development in the industry or any other such factory which could have resulted in injury to the domestic industry has been noticed. On the basis of the 'facts available', it is observed that the imports of the subject goods from "other countries" are below the de-minimis level during the period of investigation. The Authority therefore, concludes that the injury to the domestic industry has been caused by the dumped imports of subject goods from subject countries.
13. We find that the appellant had not produced any evidence by way of producing data or information to controvert these findings. Therefore, we find no merit in this contention of the appellant.
14. The appellants also contended that the Anti-dumping duty cannot be levied for the period when there is no provisional duty. We find that this issue is already settled by the Tribunal in the case of Apollo Tyres Ltd. and Ors. v. Union of India, and Designated Authority Ministry of Finance and Ors. vide CESTAT, New Delhi Final Order No.17-21/05-AD dated 09.09.2005 against the importer/exporter.
15. In these circumstances, we find ourselves in full agreement with the reasoning and findings of the Designated Authority and find no infirmity in the final findings and the impugned notification. All the three appeals are therefore dismissed.