Anti-dumping duty on MDF - Appellant did not file any information as required in questionnaire before Authority to demonstrate that it was an importer of article under investigation - such failure is fatal and hence appellant cannot be treated as interested party: CESTAT
By TIOL News Service
NEW DELHI, DEC 18, 2015: APPEAL has been filed by an importer impugning Notification No.116/2009-Cus, dated 08.10.2009 which imposed Anti-dumping duty and against Final Findings dated 26.08.2009 concerning imports of Medium Density Fibreboard (MDF) from China PR, Malaysia, New Zealand, Thailand and Sri Lanka.
Elaborate submissions were made by the appellant challenging this levy and the following citations were adverted to viz. Andhra Petrochemicals Ltd. Vs. Designated Authority - 2006-TIOL-557-CESTAT-DEL-LB , Magnet Users Association Vs. Designated Authority - 2003-TIOL-59-CESTAT-DEL-LB , Addiseo France S.A.S. Vs. Designated Authority - 2003-TIOL-15-CESTAT-DEL-LB , Dye Stuff Manufacturers Association of India Vs. Govt. of India - 2003-TIOL-55-CESTAT-DEL-LB Indian Spinners Association - 2004-TIOL-587-CESTAT-DEL-LB .
On behalf of the domestic industry it was inter alia submitted that the appellant had not established before the Authority that it was an 'interested party' under the Rules, as it failed to file an importer-questionnaire giving details of its imports of subject goods from subject countries during the period of investigation. Inasmuch as the right of participation in the investigations is confined to the interested parties and the appellant was not entitled to the disclosure statement. They also relied on the following case laws justifying their stand - Automotive Tyre Manufacturers Association - 2011-TIOL-1465-CESTAT-DEL and Ganesh Das Bhojraj - 2002-TIOL-233-SC-CUS , Kajaria Ceramics Vs. Designated Authority - 2006-TIOL-207-CESTAT-DEL-LB , Alkali Manufacturers Association of India - 2006-TIOL-75-CESTAT-DEL-LB .It is also emphasized that there is no challenge by the exporters to the dumping margin nor have they contended that the duties levied are in excess of dumping margin. Furthermore, since the appellant is not an exporter he has no locus to raise this ground.
The Counsel for the Designated Authority and Departmental Representative adopted the arguments made by Domestic Industry and also submitted that the claims of the appellant were not bona fide .
The CESTAT observed -
++ The words, 'article subject to investigation' (in rule 2(c)) means the allegedly dumped article, that is, the article imported from subject countries during the period for which investigations are being carried out. Unless a party demonstrates to the Authority that it is an importer / exporter of the subject article, it does not acquire the right to participate in the proceedings as an interested party. In respect of exporters, who have not filed the response to the Exporter Questionnaire, the Authority has considered them to be non-cooperating. This principle would apply equally to the importers.
++ It was incumbent on the importer to establish that it was an interested party by furnishing the information as required in the importer questionnaire in the course of the investigations. Failure to do so would be fatal to its claim as an interested party. The appellant did not file any information before the Authority to demonstrate that it was an importer of the article under investigation and hence could not be treated as an interested party.
++ Under the scheme of imposition of Anti-Dumping Duty, the Designated Authority is required to determine whether the dumped products were causing injury to the Domestic Industry. Exclusion of certain types/grades of the product from the investigation is permissible where the imported product is not in commercial competition with the indigenous product and its import, therefore, would not cause any injury to the Domestic Industry.
++ In the present case, the issue of exclusion has been dealt with extensively in the Final Findings as is evident from the paragraph E.20- Scope of product under consideration and like article.
++ In view of the above, we hold that the Authority has extensively and analytically dealt with the issue and has correctly held that the imported product is in commercial competition with the domestic product and its import would cause injury to the Domestic Industry.
The decisions relied upon by the appellant were distinguished and it was observed that they do not come to their rescue. By placing reliance on the findings contained in paragraph E.19 of the designated authority, it was further held that M/s. Shirdi Industries Ltd. did constitute domestic industry.
Other arguments made by the appellant were also held to be without any basis and unsubstantiated.
Holding that the Bench is not inclined to interfere with the Authority's findings, the appeal was dismissed.
(See 2015-TIOL-2706-CESTAT-DEL)
