INDIAN GRAPHITE MANUFACTURERS Vs. MINISTRY OF FINANCE, DESIGNATED

JUDGEMENT

(1.) THIS appeal is filed on behalf of domestic industry challenging the findings of the Designated Authority dated 9.2.2003 in so far as they relate to USA, Italy, France, Spain, Austria, Belgium and Germany, recommending discontinuation of anti -dumping duty on graphite electrodes (UHP) exported to India from the subject countries and withdrawal of duty on graphite electrodes (NPG) originating in and exported from China by M/s. Chengdu Rongguang Carbon Co. Ltd. (Producer) and Liao Yang Carbon Factory (Producer and exporter) and Lioning Jiayi Metals and Minerals Co. Ltd., (Trader) and recommending reduction of anti -dumping duty in case of Tianjin Jinghai Carbon Plant (Producer) and exported through Liaoning Jiayi Metals and Minerals Co. Ltd. (Trader) and notification No. 101/2003 -Cus. dated 7.7.2003 and notification No. 102/2003 -Cus. dated 7.7.2003 giving effect to the recommendation of the Designated Authority.

(2.) STATEMENT of Facts. On the basis of the complaint filed by M/s. Indian Graphite Manufacturers Association on behalf of the domestic industry and on the basis of the final findings of Designated Authority dated 27.3.1998, recommending imposition of anti -dumping duty on import of graphite electrodes originating in and exported from USA, China PR, Italy, France, Spain, Austria, Belgium and Germany, the Central Government imposed anti -dumping duty vide notification No. 20/98 -Cus. dated 5.5.98. Sunset review of this notification was initiated before the expiry of 5 years from the date of issue of this notification and under notification No. 109/2002 -Cus. dated 10.10.2002 and notification No. 12/2003 -Cus. dated 20.1.2003 anti -dumping duties were extended up to 20.4.2003. In terms of Section 9A(5) of the Customs Tariff Act read with Rule 23 of the Customs Tariff (Identification, Assessment and Collection of Anti -Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as Anti Dumping Rules) the Designated Authority initiated the sunset review vide notification dated 17.5.2002 to examine the continuation of imposition of anti -dumping duty on imports of graphite electrodes. The period of investigation was from 1.4.2001 to 31.3.2002. Public hearing was given by the designated authority on 9.9.2002 and written submissions were submitted by the appellants on 16.9.2002. The appellants received copies of the written submissions filed by various interested parties to the investigation and filed rejoinder to such written submissions on 23.9.2002. The Designated Authority issued disclosure statement on 27.12.2002. After receipt of the comments on disclosure statement, the Designated Authority issued final findings on 9.4.2003 recommending anti -dumping duty on Tianjin Jinghai Carbon Plant (Producer) and Liaoning Jiayi Metals and Minerals Co. Ltd. (Trader) at the rate of U.S. 234.54 per MT and on all other residuary exporters/producers from China at rate of U.S. 508.506 per MT. Based on the recommendation of the Designated Authority, the Central Government issued notification No. 101/2003 -Customs dated 7.7.2003 notified anti -dumping duties on import of graphite electrodes originating in or exported from China PR, by Tianjin Jinghai Carbon Plant (Producer) and Liaoning Jiayi Metals and Minerals Co. Ltd. (Trader) and all other residuary exporters/producers from China who did not co -operate in the investigation and rescinded notification No. 20/1998 -Cus. dated 5.5.98 by notification No. 102/2003 -Cus. dated 7.7.2003.

(3.) ARGUMENTS on behalf of the domestic industry. It was argued that the Designated Authority has failed to examine the parameters of sunset review which are different from material injury test. The D.A. has failed to take into consideration the tests which are required to be applied under Section 9A(5) of the Customs Tariff Act. The tests and parameters applicable for assessment of material injury cannot be applied in a case of sunset review. It was argued that as per Article 11.3 of W.T.O. Agreement, the purpose and scope of an expiry review is to establish whether or not the expiry would be likely to lead to a continuation or recurrence of dumping and injury. It has to be indicated by evidence of continued dumping and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that circumstances of the exporters, or market conditions, are such that they would indicate the likelihood of further injurious dumping. The focus shifts in an expiry review to the likelihood of continuation or recurrence of dumping and injury. If there is still dumping and/or injury it can be concluded that the expiry or the repeal of the measures will lead to continuation of dumping and injury. If dumping and/or injury have totally or partly been removed the question is whether or not there is a likelihood of a recurrence of dumping and/or injury. The circumstances in the review proceedings are necessarily affected by the measures in force because the situation of the domestic industry would usually be worse without the protection against unfair competition. The existence of anti -dumping measures implies the elimination of injury. A review investigation should lead to a finding of no injury because of the existing measures. Consequently, within the framework of a review investigation, the various injury factors cannot be interpreted meaningfully in the same way as in an original anti -dumping initiation. Reliance was placed on the decision of the Tribunal in the case of Vinati Organics Ltd. v. Designated Authority, .