VYNOVA WILHELMSHAVEN GMBH Vs. GENERAL OF ANTI-DUMPING AND ALLIED DUTIES, DEPARTMENT OF COMMERCE & ANR

JUDGEMENT

(1.) The two petitioner companies, i.e. Vynova Wilhelmshaven Gmbh (known "VWG") and VYNOVA BELGIUM NV- hereafter "VB" (previously "Vynova Tessenderlo NV") were earlier known by different names- Inovyn Chlorvinyls Ltd. was earlier known as Ineos Chlorvinyls Ltd.; Inovyn Svergie AB was known as Ineos Sverige AB; Vynova Tessenderlo NV (now known "VB") was known as Ineos Chlorvinyls Belgium NV and Vynova Wilhelmshaven GMBH was known as Ineos Vinyls Deutschland GMBH and Ineos Vinyls Sales GMBH. The said two petitioners today (VWG and VB) are aggrieved by the refusal of the Designated Authority (DA) to accede to their request to record them as a successor in interest of their previous corporate entities. If the DA were to accede to their request, the petitioners would benefit to the extent that a lower rate of anti-dumping duty would be applicable to it.

(2.) After certain legal proceedings and corporate restructuring, a reorganization - accompanied by corporate re-christening occurred, of the previous entities. Also the shareholding pattern of two companies, i.e. Inovyn Sverige AB and Inovyn Chlorvinyls Ltd. to the extent of 50% was transferred to Solvay SA. The other 50% shareholding remained, with Ineos AG. Ineos AG was the original holding company of all these four companies. After reorganization, the shareholding of Inovyn Sverige AB and Inovyn Chlorvinyls Ltd. was completely that of a joint venture company - Inovyn JV. The shareholding of this joint venture company was equally held by Ineos AG and Solvay SA.

(3.) The four companies had faced investigations for anti- dumping which culminated in final findings dated 04.04.2014 and the notification dated 13.06.2014 whereby all these four entities were treated as belonging to one group and anti-dumping duty at the rate of US$ 39.65 per MT was imposed. For the other manufacturers/importers to India, i.e. other companies, they recommended and finally imposed rate of duty as US$ 189.99 per MT. Solvay SA, at the relevant time did not participate in the investigations which led to the final report and the notification and thus had to suffer a higher rate of anti-dumping duties for the exports to Indian markets. The petitioners had approached this Court earlier complaining that their application for apprising the Designated Authority about the name change pursuant to re-organization had been rejected. The Court had by its order dated 02.06.2016 directed the authority to consider the application and pass appropriate orders. The DA, by its order dated 28.06.2016 finally rejected the application [in W.P.(C) 7603/2016]. The DA's reasoning was that although the INEOS group of companies participated and co-operated with it by filing exporter questionnaire response, Solvay did not participate in the investigation and thereby remained non-cooperative. It was commented by the DA that the dumping margin and injury margin for INEOS group were determined on weighted average basis by treating them as a single entity. On the basis of this analysis as well as injury margins considered, a lesser single duty was recommended and imposed by the Central Government. The DA felt that Rule 23 (1) and (1A) mandated that the duty recommended had to remain in force "so long as and to the extent necessary, to counteract dumping, which is causing injury" and that ; "The various entities of the INEOS group were individually examined for the determination of dumping and injury margins and a determination was made, on weighted average basis, to arrive at a common anti-dumping duty for the INEOS group as a whole. Since the ownership of the subsidiary companies are now transferred to different holding companies, this now warrants determination of fresh individual dumping and injury margins for each entity separately through a review investigation.