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Judgment
The appellants are aggrieved by the Final Findings dated 19/11/2011 of the Designated Authority (the DA), Ministry of Commerce and Industry and
Notification No.3/2012-CUS (ADD) dated 13/1/2012 of Ministry of Finance.
The above findings and notification are consequent upon sunset review conducted by the DA of the AD duty imposed on Nylon Filament Yarn
(subject goods) imported from China PR, Chinese Taipei, Malaysia, Indonesia, Thailand and Korea RP. Originally, the AD duty was imposed on the
basis of Final Findings dated 03/7/2006 vide Notification No. 85/2006-CUS dated 29/8/2006. The DA initiated sunset review investigation on
27/8/2010. The AD duty was extended upto 26/8/2011 and further extended to 28/11/2011. After following the procedure set out under Customs
Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Industry) Rule 1995, the DA
recommended imposition of definitive AD duty on subject goods. The DA recommended specific AD duty on various categories of imports of subject
goods. The appellants are only aggrieved with Proviso B category of subject goods, after the main table in the Customs Notification No.3/2012.
Proviso B relates to AD duty on Nylon Monofilament Yarn. No AD duty on such yarn is leviable at specific rates if their landed price is above US $
5.17. In other words, such goods will have no AD duty if the landed price upon import is not below US$ 5.17.
The learned Counsel for the appellant submitted that such special treatment to a class of subject goods based on bench mark reference price is not
justifiable. When the Final Finding on dumping and injury is categorical, the exemption to one variety of subject goods linking to bench mark landed
price is arbitrary and does not meet the requirement of protecting DI from injury. The price of caprolactum, the main raw material, to manufacture
subject goods, increased not only within the POI but also subsequently. There is no justification for dual form of duty on the same subject goods. The
constituents of domestic industry are selling significant volumes of mono filament yarn in the present period, though it was low during the period of
original investigation. The injury caused to DI has been recognized by the DA. However, exclusions made in proviso to the table is contradictory.
Learned Counsel, representing respondent Nos. 6 and 13 (Foreign exporter and Indian importer) submitted that the present appeal is frivolous. The
appellant had not contested the form of AD duty at the time of Final Finding or mid-term review. They cannot raise this issue at such a belated stage.
India follows the lesser duty rule. The DA recommended duty only to the extend to remove injury. No rule prescribes that the DA should follow a
particular method of calculation of AD duty. The exemption based on bench mark price as per proviso is in consonance with past practice of the DA.
The learned Counsel for DA and learned AR for Revenue supported the findings of the DA and Customs notification for AD duty.
We have heard all the parties as above. We have carefully perused the appeal records and written submissions. The proviso B clause of the
Notification No.3/2012-CUS (ADD) dated 03/1/2012 is under challenge. While the table in the notification fixes various specific amounts of AD duty
on subject goods, the proviso provides for exemption to certain class of subject goods if their landed price is above a particular bench mark price. In
other words there will be AD duty if the price goes below this mark.
We were informed that originally, the bench mark price was fixed at Rs.172/- k.g. for all types of categories. Later, the same was enhanced to 4.24
US$ and 5.17 US$ for two distinct groups for purpose of exemption. Proviso B group, which is now in dispute carries a bench mark landed price of
5.17 US $. Thus we note that the DA had taken note of trend in normal price, NIP with reference to changed parameters including price fluctuation
for caprolactum. The concern of DI in this regard has been dealt by the DA. In para 68 of his final findings the DA had noted his analysis of the
stocks of raw material, purchases of raw material and its consumption. No unusual trends were noticed during POI. After assessing various factors
like, volume effect of dumped imports, demand, market share, price effect, price suppression/depression and economic parameters affecting the DI,
the DA concluded that the subject goods are entering the Indian market at dumped prices and dumping margin is significant. Without AD duty the
price undercutting and price underselling are significant from these countries. The DI continued to suffer material injury on account of continued
dumping of subject countries. Hence, the DA recommended extension of AD duties. The exemptions I subject to certain conditions of bench mark
prices, are also out come of these detailed analysis.
We find the appellant in the present appeal have not brought out any material evidence to interfere with the final finding of the DA. Accordingly the
appeal is dismissed as being without merit.
(Order pronounced in the open court on 31/08/2016.)