1. Facts: Both the appeals though against different final findings and notifications have been preferred by the same domestic industry and are argued together in view of common legal issues involved.
2. Customs Appeal No. 848 of 2005-AD has been preferred by the domestic industry under Section 9C of the Customs Tariff Act, 1975 against the impugned notification dated 19th May, 2005 rescinding the earlier notification dated 9-10-2002 by which anti-dumping duty was imposed on the subject goods, accepting the final findings of the designated authority in its mid-term dated 7th April, 2005, recommending withdrawal of anti-dumping duty on imports of acrylic fibre originating in or exported from the subject countries, namely, U.K., Germany, Bulgaria and Brazil.
2.1 On the basis of a written application from the International Rayon and Synthetic Fibres Committee (CIRFS), Brussels on behalf of the exporters from U.K. and Germany for review of anti-dumping duty imposed on imports of the subject goods (acrylic fibre) due to changed circumstances with regard to injury, supported by European Commission (EC), a mid-term review of anti-dumping duty imposed on imports of acrylic fibre originating in or exported from U.K. Germany, Brazil and Bulgaria into India was initiated by the designated authority by its notification dated 3rd September, 2004 under Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.
2.2 The original investigation concerning imports of acrylic fibre from the subject countries was initiated on 28th August, 2001, the preliminary findings were issued by the designated authority on 7-12-2001 and provisional duty was imposed by notification dated 31-12-2001, The final findings were issued on 27-8- 2002 and the definitive anti-dumping duty was imposed by Customs Notification No.105/2002-Customs, dated 9th October, 2002, for the statutory duration of five years.
2.3 Public hearing was held on 21-12-2004 and disclosure statement was issued under Rule 16 on 21-2-2005. The relevant period of investigation was from 1st April, 2003 to 31st March, 2004. The injury analysis period covered the three preceding years, namely, 2000-2001, 2001-2002, 2002-2003 and the POI.2.4 None of the exporters made a response to the questionnaire, nor did the applicant CIRFS make any response. Markische Faser AG, Premnitz Germany informed that they had closed the production of acrylic fibre in mid- nineties and they were not dealing with acrylic fibre.
2.5 According to the domestic industry, there was no justification for the mid-term review investigation, because the alleged circumstances did not constitute changed circumstances warranting a mid-term review.
There was no positive and sufficient information on record to justify initiation of mid-term review. Price undercutting as alleged was just one parameter relating to the injury to the domestic industry. It was contended that there were number of other parameters which would show that not only there was dumping but also injury being caused to the domestic industry. Moreover, the claim of the exporter that there was negative price undercutting was not established. Due to continued dumping in the domestic market, the profitability of the domestic industry was not up to the mark, though it had improved.
3. The designated authority held that the CIRFS had furnished positive information regarding the changed circumstances of absence of price undercutting. The designated authority had, prima facie, examined the veracity of the information before initiating the review and noted that, absence of price undercutting was also one of the significant parameters in the injury examination. It was, therefore, held that the review was undertaken in accordance with Rule 23 of the said Rules and Article 11.2 of the Agreement.
4. On the basis of information furnished by the domestic industry regarding the estimated normal value in the written submissions subsequent to the public hearing and the information contained in trade journal Tecnon (17th March, 2004 issue) which showed domestic price of acrylic fibre prevailing in April 2003-March 2004 in different regions in Europe, the designated authority, after making an adjustment, worked out normal value at US $ 1731.85 PMT. In the same way normal value was worked out at US $ 1627.35 PMT for Brazil by relying on average domestic price of acrylic fibre for USA as reported in the said journal. The constructed normal value in respect of Bulgaria was determined at US $ 1449 PMT on the basis of the information furnished by the domestic industry regarding estimate of cost of production in Bulgaria taking into account the international price of major raw material acrylonitrile and other chemicals and by making necessary corrections.
4.1 The export price on the basis of DGCI&S data relating to imports of acrylic fibre from various countries was worked out at US$ 1846.12 PMT for U.K., US $ 1498.13 PMT for Germany and US $ 1161.36 PMT for Bulgaria. As per DGCI&S data there were no exports from Brazil during the period of investigation.
4.2 On the basis of the determinations of normal price and the export price, the margin of dumping was worked out at minus 6.19% for U.K.(i.e. no dumping), 15.60% for Germany and 24.77 for Bulgaria. Thus dumping margin for Germany and Bulgaria was found to be positive and significant; while the export price from U.K. being US $ 1846.12 as against the normal value of US $ 1731.85, it was held that there was negative dumping margin of minus 114.27 which means there was no dumping by such imports from U.K.4.3 Having worked out the dumping margin, the designated authority proceeded to examine the other important aspect, namely, injury to the domestic industry and after taking into consideration the rival contentions, it was held that there was no price undercutting from U.K.and Germany and though there was price undercutting in the range of 5-15% as a result of imports from Bulgaria/ on a cumulative analysis basis, the authority did not find any price undercutting from the imports of the subject countries.
4.4 Taking note of the trend over the preceding three years of the injury period, it found that the losses had reduced and during the period of investigation there was indexed profit of 2.27 in the context of the base index of 2000-01 (-100), to the domestic industry. It was, therefore, held that profit of the domestic industry had improved during the POI. From the evaluation of the injury parameters, the designated authority found that most of the parameters like output, sales, market share, productivity, return on investment, and utilization of capacity, showed improved performance by the domestic industry during the POI. It was found that imports from U.K. were not at a dumped price and though exports from Germany were found to be dumped with a dumping margin of 15.6%, they did not cause any price undercutting on the domestic sales of the industry. There was no price undercutting in respect of imports from U.K. also. It was held that even with the price undercutting from Bulgaria, there was no cumulative price undercutting. It was, therefore, found that there was no present material injury evident to the domestic industry.
4.5 On the aspect of likelihood of recurrence of dumping and injury, the designated authority found that there was no present injury to the domestic industry though dumping was continuing from Germany and Bulgaria. The exports from U.K. were at undumped prices and the trend of exports from U.K. did not indicate any likelihood of their increase.
It was also held that the price of acrylic fibre exported from U.K. was invariably higher and thus there was no likelihood of dumping from U.K.The volume of imports from Bulgaria had shown declining trend except for the year 2002-03, There were no exports from Brazil since 2001-02 and there was no evidence of any significant build-up of surplus capacity of exports from Brazil. The authority did not foresee any likelihood of dumping from Brazil. As regards likelihood of recurrence of injury, it was found that dumping continued during the review investigation from Germany and Bulgaria but there was no perceptible adverse impact on the prices of the domestic industry and the general state of the domestic industry in respect of various essential parameters. It was observed that almost all the parameters showed improved performance and there was no material injury to the domestic industry by continued dumping from Bulgaria and Germany. The demand of the product had remained constant during the injury analysis period and based on the available information, it could not be concluded that dumping would intensify, should the anti-dumping duty be removed. It was held that the authority did not find any likelihood of recurrence of injury, in case the anti-dumping duty was removed. It, therefore, recommended withdrawal of anti-dumping duty imposed on imports of acrylic fibre originating in or exported from the subject countries under Rule 23 of the said rules, which recommendation came to be accepted by the Central Government issuing the impugned notification.
5. It was contended on behalf of the learned Counsel appearing for the appellant-domestic industry that the initiation of mid-term review was based on insufficient factual information and that there was no information provided with regard to the prices of the domestic industry. Moreover, the statements made in the application were without any supporting evidence. It was contended that the authority wrongly considered that no price undercutting in a review implied no injury. It was argued that the final findings recorded by the designated authority at the time of initial imposition of anti-dumping duty in respect of existence of injury to the domestic industry must be considered to continue to remain valid unless it was proved to be otherwise either by the designated authority in suo motu review or by the applicant seeking such review. Reliance was placed on the decision of the Supreme Court in Rishiroop Polymers Pvt. Ltd. v. Designated Authority and Additional Secretary argued that the designated authority had ignored a significant margin of dumping and price undercutting with respect to imports from Bulgaria, Despite holding that there was price undercutting by imports from Bulgaria, the designated authority erred in reaching the conclusion, on the basis of cumulative analysis, that there was no price undercutting and no likelihood of injury to the domestic industry. It was submitted that Paragraph (iii) of Annexure II to the Rules did not permit such cumulative assessment because the conditions precedent were not satisfied, in view of imports from Germany being 1.37% and Bulgaria 2.39% volume of imports which was less than 3% individually and 7% collectively. It was further contended that the designated authority overlooked the fact that volume of dumped imports from Bulgaria went up to 20.60% in 2002-03, which was an increase of about 100% over the previous years' imports. It was also argued that the landed price of the subject goods Rs. 7,80,913/- PMT, was lower than the non-injurious price of Rs. 803,300/-. Thus, the domestic imports continued to come at a price much lower than the non-injurious price, thereby implying continuance and likelihood of "injury" to the domestic industry, because the said injury margin was lower than the dumping margin of imports from Bulgaria.
6. The learned Counsel appearing for the respondent-designated authority submitted that the quantity imported from Bulgaria of 300 MTs was insignificant and there was no material injury or threat of injury caused by such a low volume of imports from Bulgaria. It was submitted that the designated authority has correctly found that there was no injury because on cumulative assessment there was no price undercutting by the dumped imports from the countries which were under investigation for review purpose. He submitted that though there was dumping from Germany, it was only to the extent of 1.37% which was insignificant.
Moreover, there was no price undercutting by dumped imports from Germany. As regards U.K., there was no dumping and hence no price undercutting. He also submitted that the domestic industry did not show signs of injury because it was making profit during the period of investigation and its sales and productivity had increased.
7. The provisions of Section 9A(5)(1) of the Act prescribing the duration of five years for the anti-dumping duty definitively imposed anticipate that the measures would normally apply for the legislative five years period unless exceptional circumstances arise. Request for revocation needs to demonstrate that there would not be any recurrence of dumping that would lead to material injury to the domestic industry or likelihood of such injury. During the course of his arguments, the learned Counsel for the appellant expressly confined the claim of the domestic industry in this appeal only against withdrawal of the antidumping duty in respect of the dumped imports from Bulgaria. The designated authority while holding that there was significant dumping margin of 24.77% from Bulgaria and also that there was price undercutting by the dumped imports from Bulgaria to the extent of 5.15%, has chosen to withdraw anti-dumping duty even in respect of the dumped imports from Bulgaria.
8. For determination of injury to the domestic industry or threat of injury to the domestic industry, all relevant facts are required to be taken into account including the volume of dumped imports and effect of such dumped imports on the price in the domestic market for like articles and for this purpose principles are set out in Annexure II to the rules for etermination of injury. These principles are to be invoked with the purpose of finding out the effect of the volume of dumped imports on the price in the domestic market of the like article, under Rule 11(2). For the effect of dumped imports on price in the domestic market, the injury analysis will require consideration of the aspects of price undercutting, depressed prices, and prevention of price increase, that would have been otherwise due, while the economic factors and indices enumerated in Paragraph (iv) of Annexure II have a bearing on the state of the domestic industry. The causal link between the dumped imports and injury to domestic industry is to be demonstrated on the basis of relevant evidence. The question whether injury is attributable to known factors, other than the dumped imports is also required to be examined by the designated authority. The likelihood of injury, inter alia, entails enquiry of the factor whether imports are entering at a price that will have a significant impact on domestic prices and was likely to increase demand for further imports.
8.1 The relevant economic factors and indices having a bearing on the state of industry, as enumerated in Paragraph (iv) of Annexure II, include: 9. The factors for ascertaining the effect of volume of dumped imports on domestic price of the article are of paramount importance. Adverse effect on the domestic prices by cheaper equivalent substitutes in the form of dumped imports would be due to the normal reaction of the consumer who will get diverted to buying the dumped imports rather than pay higher price for the domestic like products. This situation would raise demand for further dumped imports at such lower prices. In order to retain its domestic buyers and prevent them from going for cheaper dumped articles, there will be a real pressure on the domestic industry to bring down its prices nearer the price of the dumped imports, or perish if the dumped imports are in a position to take over the entire domestic demand at an injuriously low price. That is why it becomes necessary to work out a price of dumped imports, which will not be injurious to the domestic industry. The value of goods to those who ultimately consumed them is reflected in the prices that purchasers are willing to pay. If a good is worth more to a consumer than its cost to produce, it gets produced; if not, it does not. It is easy to understand that the demand for like articles produced by the domestic industry will diminish if their price is higher than the price of the dumped article. If the cost of production of the domestic like article does not warrant lowering of such price and there are no adequate buyers at the higher price, the domestic industry will have to work on losses and ultimately close down. The fixation of price of dumped imports which is non-injurious to the domestic industry would be the outcome of the entire exercise of determining the impact of the volume of dumped imports on the price of like articles in the domestic market as per the parameters laid down in Rule 11(2) read with Annexure II of the said Rules, and would be a barometer in a midterm review, ringing an alarm if the landed value of dumped imports is lower than the non-injurious price fixed for the dumped imports.
9.1 The effect of the dumped imports on the price of the domestic like articles is one of the most important aspects needed to be considered for assessing injury. All the economic factors enumerated above have ultimately an effect on domestic prices. The phenomenon of price determination is inextricably linked with the market processes. The market determines the prices of factors of production in the same way in which it determines the prices of consumer goods. In a market economy the relationship between the price of a good and the quantity supplied depends on the cost of making it. Prices are considered to be determined simultaneously by cost and demand considerations. Any price determined on a market is the necessary outgrowth of the interplay of the forces operating, i.e., demand and supply. Whatever, the market situation which generated this price may be, with regard to it, the price is always adequate, genuine and real. It cannot be a higher price if no bidder ready to offer a higher price turns up, and it cannot be lower, if no seller ready to deliver at a lower price turns up. Only appearance of such people ready to buy or sell can alter prices. It is the very essence of prices that they are the offshoot of the actions of individuals and groups of individuals acting on their behalf. Prices are generated by the market processes and are the pith of market economy and there is no such thing as prices outside the market, nor can prices be constructed synthetically. They are the resultant of a certain constellation of market data, of actions and reactions of the members of a market society. Prices are by definition, determined by peoples' buying and selling or abstention from buying and selling.
Thus, assuming that there is sufficient demand in the domestic market for all the dumped imports offered for sale, the price of such dumped imports will have a direct bearing on the price of the like products of the domestic industry.
9.2 In a market economy the things that can be sold for money consideration are marked with money prices. The driving force of the market processes is provided by the promoting and speculating entrepreneurs who are intent upon profiling by taking advantage of differences in prices. The profit element in price is an important life line for continuance of entrepreneurial activity required for industrial production. Theory of profit, however, has remained one of the most unsatisfactory and controversial division of economic doctrines. The theory recognizes that profits arise for several reasons. First, the innovator who introduces a more efficient new technique can produce at a cost below the market price and thus earn entrepreneurial profits. Secondly, changes in consumer tastes may cause revenues of some producers to increase giving rise to windfall profits.
The third type of profit is monopoly profit, which occurs when the producer restricts output so as to prevent prices from falling to the level of costs. In the business usage, the excess of revenue over total cost during a specified period of time is profit. In economics, profit is the excess over the returns on capital, land and labour. To the economist, much of what is classified in business usage as profit, consists of the implicit wages of manager-owners, the implicit rent on land owned by the producer and the implicit interest on the capital invested by the owner producer. Profit in short, is yield minus costs.
In the monetary calculus profit appears as a surplus of money received over money expended, and loss as a surplus of money expended over money received. Profit and loss can be expressed in definite amounts of money. An excess of total amount of profits over that of losses is a proof of the fact that there is economic progress and an improvement in the standard of living of all strata of the population. Capital does not beget profit and profit is not necessarily related to or dependent on the amount of capital employed by the entrepreneur. Profit and loss depend upon the success or failure of the entrepreneur to adjust production to the demand of consumers. The amount of money to be invested in every branch of profit-seeking industrial venture is regulated by the behaviour of consumers. Production for profit is necessarily for use, as profits can only be earned by providing the consumer with those things, which they most urgently want to use. A fortiori, when consumers get diverted to buying dumped imports at prices lower than the non-injurious price, the domestic industry can hold them back only at injurious price levels that would deny them reasonable profit. This would be relevant on the aspect of injury so long the injury margin is lower than the dumping margin, otherwise of course, dumping margin will alone be relevant where it is lower than the injury margin.
10. Admittedly, the non-injurious price (NIP) for the subject goods was fixed by the designated authority for both the investigations undertaken for the purpose of mid-term review at Rs. 80.033 per kg. In the determination of non-injurious price for the domestic industry, the authority examined and analyzed the relevant factors such as usage of raw material, usage of utilities, such as power, water, etc., interest cost, cost of labour, the depreciation cost and selling and administrative expenses including factors such as investments made in the plant and capacity utilization. The non-injurious price for the domestic industry is stated to have been determined by addition of a reasonable profit margin on the capital employed the petitioner to the cost of production.
11 Though the dumped imports from Bulgaria came at the landed value of Rs. 71,932/- PMT as against the domestic sale price of Rs. 77,551/- PMT and there was admittedly price undercutting of Rs. 5,619/- PMT, which was significantly injurious price undercutting, the designated authority, on the basis of cumulative assessment, held that there was no price undercutting even in respect of Bulgaria.
12. The only ground on which price undercutting by dumped imports from Bulgaria was undermined by the designated authority was by an adoption of cumulative assessment basis for assessing price undercutting. The learned designated authority, in Paragraph 22 of the final findings, worked out negative price undercutting of minus 15-25% for Germany and minus 40-50% for the U.K. and produced a negative cumulative price undercutting for all the countries under investigation including Bulgaria. This takes us to the consideration of Paragraph (iii) of Annexure II to the rules which reads as under: (iii) In cases where imports of a product from more than country are being simultaneously subjected to anti-dumping investigation, the designated authority will cumulatively assess the effect of such imports, only when it determines that (a) the margin of dumping established in relation to the imports from each country is more than two per cent expressed as percentage of export price and the volume of the imports from each country is three 1 Paragraph number as per certified copy. percent of the import of like article or where the export of individual countries less than three per cent, the imports collectively accounts for more than seven per cent of the import of like article and (b) cumulative assessment of the effect of imports is appropriate in light of the conditions of competition between the imported article and the like domestic articles.
12.1 In assessing the injury that may be caused by dumped imports from multiple countries, the effect may be considered of all the imports as one entity. This practice is referred to as cumulation. The key factor in cumulation is that it is not required that imports from each country need to be found to be individually causing "material" injury.
Cumulation of imports may occur only when it is determined that it is appropriate, in light of the conditions of competition between the imported products and the like domestic product. Cumulative assessment of the effect of imports of a product from more than one country under anti-dumping duty investigation is permissible only if: (i) margin of dumping established in relation to the imports from each country is more than 2 per cent expressed as a percentage of export price.
(ii) volume of the imports from each country is more than three percent of the import of like article or they collectively account for more than seven percent of the total imports of like article.
(iii) cumulative assessment of the effect of imports is appropriate in light of the conditions of competition between the imported article and the like domestic articles.
12.2 Therefore, no cumulative assessment can be done if the margin of dumping is less than two per cent in any one of the countries under antidumping investigation and the value of imports of like article from any one of such countries is less than 3 per cent or collectively 7 per cent, 12.3 In the present case, there was no margin of dumping from the United Kingdom, being one of the countries under anti-dumping review investigation, since it was minus 6.19%. The effect of U.K. imports, therefore, could not have been cumulatively assessed. The first mandatory requirement of margin of dumping from each country being two per cent not being satisfied, no cumulative assessment could have been done in this case. Therefore, the price effect of the imports from Germany and Bulgaria were required to be separately assessed. From Germany there was no price undercutting, while from Bulgaria it was significant, as noted above. Therefore, there was no warrant to hold that the dumped imports from Bulgaria were not injurious. The injury as reflected from price undercutting by dumped imports from Bulgaria was clearly of a significant degree and likelihood of its continuance was very real warranting no revocation of the anti-dumping duty imposed on Bulgaria.
13. The imports from Bulgaria were 300 MTs during the period of investigation, and on the basis of such low volume of dumped imports, it was urged that there was no significant increase in the dumped imports and hence no threat of injury from Bulgaria. It was argued that the effect of price undercutting was to be judged in the context of the domestic sale price only and not with reference to the non-injurious price fixed by the designated authority as reflected in the disclosure statement, even though the injury margin was lower than the dumping margin, 13.1 Paragraph (i) of Annexure II, inter alia, requires examination of the volume of the dumped imports and their effect on prices in the domestic market for the like article. The designated authority has to consider while examining volume of dumped imports whether there has been a significant increase in the dumped imports either in absolute terms or relative to production or consumption in India as envisaged in Paragraph (ii) of Annexure II. On a combined reading of these provisions, it is clear that the effect of volume of dumped imports from a country is to be examined in its comparison with the volume of domestic production. If the volume of dumped imports is wholly insignificant in its comparison with the volume of domestic production and also insignificant in the context of the volume of consumption, it may render the issue of price undercutting causing injury meaningless.
For example, a volume of 100 MTs as against the volume of domestic production of 1,00,000 MTs in the POI will cause an injurious dumping only to a degree limited to 100 MTs of sale of domestic product and thenceabove, for the rest of the domestic sales, there will be no dumped imports to cut below the sale price. Therefore, the injurious effect of small quantity of dumped impotts (small in comparison with the domestic production and also the consumption), on the domestic industry when examined on an objective basis may have no deleterious effect on the performance of the domestic industry and it cannot be said to be causing material injury. However, in the same instance if the consumption in domestic market is around 100 MTs only then the price undercutting by the dumped imports of even 100 MTs can pose a threat of material injury, because the consumers are likely to be diverted to the cheaper i.e. less-priced like goods. In such a case the volume of dumped imports is significantly higher, relative to domestic consumption, though it may not be high, relative to production.
However, in a mid-term review, material injury and its threat are not to be seen only for the period of investigation in isolation, but the trend over the injury period of three years prior to the POI is also to be examined to assess the possibility of continuance and recurrence of injury or threat of injury, if duty was removed.
13.2 In the period of investigation from 1-4-2003 to 31-3-2004 the dumped imports from Bulgaria were 300 MTs and despite the imposition of antidumping duty, the volume of dumped imports had significantly increased during the injury period from 540 MTs in 2000-01 to 873 MTs in 2001-2002 to 2060 MTs. in the year 2002-2003, though during the period of investigation this fell to 300 MTs which was soon followed by the move of mid-term review at the instance of the exporters. When there was continuous increase of dumped imports despite imposition of the anti-dumping duty, then their sudden fall from 2060 MTs in the year preceding the POI to 300 MTs in the POI could be viewed in the context of the application seeking rnid-term review which followed soon thereafter by the exporters. The trend of dumped imports from Bulgaria during the injury period shows that after imposition of anti-dumping duty they had increased significantly with continued price undercutting in the period of investigation during which the dumped imports had declined to 300 M.Ts. In comparison with the base year, the dumped imports remained substantial even in the period of investigation and there was a distinct possibility of their increase on withdrawal of the anti-dumping duty. Therefore, even on the ground of threat of material injury by dumped imports from Bulgaria, revocation of anti-dumping duty so far Bulgaria was concerned, was not at all justified. The impugned final findings and the notification to the extent the anti-dumping duty on Bulgaria is withdrawn, therefore, deserve to be set aside.
14. Customs Appeal No. 849 of 2006 has also been filed by the domestic industry against the final findings dated 19-4-2005 of the designated authority and the Notification No. 49/2005 pursuant to recommendation made thereunder by which the earlier notification dated 12-9-2002 imposing anti-dumping duty on the imports of acrylic fibre (below 1.5 Denier, 1.65 DS) originating in or exported from Italy was rescinded, thereby withdrawing the anti-dumping duty earlier imposed. In this matter also the mid-term review was initiated at the instance of the International Rayon and Synthetic Fibres Committee (CIRFS), Brussel on behalf of the exporter from Italy for review of anti-dumping duty imposed on the imports of subject goods on account of changed circumstances with regard to injury. The designated authority has rightly held that there was sufficient information for initiating the mid-term review. It was held that CIRFS had furnished positive information regarding the changed circumstances of absence of price undercutting and resultant injury to the domestic industry. The authority had, prima facie, examined the veracity of the information before initiating the review and observing that absence of price undercutting was also one of the significant parameters in the injury examination, held that the review was undertaken in accordance with Rule 23 of the said Rules and Article 11.2 of the Anti-Dumping Agreement. We may just observe here that while international agreements are to be respected and the municipal law when not in conflict will be interpreted, in the spirit of such agreement to which India may be party, the authorities are expected to function under the Indian Rules and when mid-term review is initiated, it is always under the Indian legal provisions, namely, Section 9A(5) of the said Act read with Rule 23 of the said Rules and not under Article 11.2 of the Anti-Dumping Duty Agreement. The authorities stated under the Act are duty bound to function under the provisions of the Act and the rules and the proceedings under the said Act and the rules would be proceedings only under the Indian law and not under any provisions of the International Agreement. The superiority of the law of a nation is the hallmark of the exercise of its sovereign power, and the authorities created under it are expected to function under that law and act as per the text and the spirit of the Indian law. Whenever there may be variance, the authorities would be expected to strictly abide by the Indian legal provisions.
15. In this case also the period of investigation was from 1-4-2003 to 31-3-2004 and the injury analysis period was three preceding years i.e.
2000-01, 2001-02, 2002-03 and the period of investigation. The dumping margin in respect of exports from Italy based on the normal value and export price was worked out by the designated authority at 24.20% which was a significant dumping margin and has not been questioned. On injury analysis the designated authority has held that the volume of imports had increased from the subject countries from 8.27% in the base year 2000-01 to 9.09% in the period of investigation. On the issue of price undercutting, the designated authority came to the conclusion that there was no price undercutting by the imports from Italy. We have verified this fact from the record and in fact, during the course of the hearing, the figures disclosed showed that, while the net sales realization of the domestic industry was Rs. 77,551/- PMT, the landed value was Rs. 85,856/- and thus there was negative price undercutting of 10.71%. Not only was there no price undercutting and the landed price was substantially higher than the net sales realization PMT, the landed value was higher even than the non-injurious price which was fixed at Rs. 80.33 per kg, i.e. Rs. 8,03,300/- PMT. Thus, when the landed value was much higher than the sale price of like articles in the domestic market and even higher than the non-injurious price fixed for imports from Italy, there was obviously no likelihood of material injury to the domestic industry on the basis of this data. It is in the light of this important fact which demonstrates that there was no adverse effect on the price of like products in the domestic market by the volume of dumped imports from Italy, that the other aspects such as growth in parameters like sales output, production, and improved cash flow assume significance reassuring that there was no real threat of injury or likelihood of revival of injury on the basis of the data gathered in the mid-term review investigation. Therefore, we find that there is no valid reason for interfering with the conclusions reached by the designated authority in its final findings recommending withdrawal of the anti-dumping duty on acrylic fibre below 1.5 denier, originating in or imported from Italy and the impugned notification dated 19-5-2005 issued by the Central Government accepting the recommendation and rescinding the notification dated 12-9-2002 by which the anti-dumping duty was earlier imposed. This appeal, therefore, deserves to be dismissed.
16. For the foregoing reasons, we pass the following orders:Customs Appeal No. 848 of 2005-AD: 16.1 The impugned notification and the final findings to the extent they purported to withdraw the anti-dumping duty which was imposed on the dumped imports from Bulgaria are hereby set aside; and, as a result, the antidumping duty imposed by the notification dated 9-10-2002 will continue to operate so far the dumped imports from Bulgaria are concerned for its full statutory period of five years. The appeal is, accordingly, partly allowed with no order as to costs.