NOTIFICATION No. 37/1/2001-DGAD DATE 04/02/2003
Anti-dumping investigation concerning import into India of Vitrified/ Porcelain Tiles originating in or exported from China PR and UAE- Final Findings.Having regard to the Customs Tariff Act, 1975 as amended in 1995 and the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, thereof;
A. PROCEDURE
1. The Procedure described below has been followed:
(i) The Designated Authority (hereinafter also referred to as the Authority) notified Preliminary Findings vide Notification No. 37/1/2001-DGAD dated the 3rd December, 2001 with regard to Anti Dumping investigations concerning imports of Vitrified/ Porcelain Tiles (hereinafter referred to as subject goods) originating in or exported from China PR and UAE (hereinafter referred to as subject countries) and requested the interested parties to make their views known in writing within forty days from the date of its publication;
(ii) The Authority forwarded a copy of the Preliminary Findings to known interested parties, who were requested to furnish their views, if any, on the Preliminary Findings within forty days of the date of the letter;
(iii) The Authority also forwarded copy of the Preliminary Findings to the Embassies of subject countries in New Delhi with a request to furnish their views on the Preliminary Findings;
(iv) The Authority held a public hearing on 2nd July 2002 to hear the interested parties orally, which was attendedby representatives of the domestic industry, importers and exporters from UAE. The parties attending the public hearing were requested to file written submissions/rejoinders of views expressed orally. The written submissions/rejoinders thus received from interested parties have been considered by Designated Authority in this finding;
(v) The Authority made the public file available to all interested parties containing non-confidential version of theevidence submitted by various interested parties, for inspection, upon request;
(vi) Arguments raised by interested parties before announcing of Preliminary Findings, which have been broughtout in the Preliminary Findings dated 3rd December, 2001 have not been repeated herein for sake of brevity.However, arguments raised by the interested parties have been appropriately dealt with in the PreliminaryFindings and/or these findings;
(vii) In accordance with Rule 16 of the Rules supra, the essential facts/basis considered for these findings weredisclosed to known interested parties on 17th January, 2003 and comments received on the same have alsobeen duly considered in these findings;
(viii) Investigation was carried out for the period starting from 1st April, 2000 to 31st March, 2001.(ix) The on site verification of exporter’s data was carried out at the premises of exporter, i.e. M/s RAK Ceramics at UAE.
(ix) **** in the Notification represents information furnished by interested parties on confidential basis and soconsidered by Authority under the Rules.
B. VIEWS OF PETITIONERS, EXPORTERS, IMPORTERS AND OTHER INTERESTED PARTIES ANDEXAMINATION BY AUTHORITY:
2. Views of Interested parties on other Issues:
a) VIEWS OF THE DOMESTIC INDUSTRY:
(i) We have preliminary objection with regard to certain importers to appear before the oral hearing beforethe Designated Authority. As per Sub-Rule 6(4), the information called by the Designated Authority shallbe furnished by the persons in writing. Therefore there is unambiguous obligation under Rule 6 on theinterested parties to provide information. The scope and the obligations of Rule 6(4) and 6(6) are notlinked to each other since the Rule 6 follows a sequential order giving the rights and obligations todifferent interested parties. Therefore it is our submission that the Authority may kindly not takecognizance of the submissions made by all those interested parties who have failed to fulfill their legalobligations under the Rules. We also object to the opportunity being given to certain interested partiesto comment on the case of the petitioners without the balancing right being made available to thepetitioners which is violation of the principle of natural justice.
(ii) It has been argued by importers/exporters that it is not in consumer interest to levy anti dumping duty.The major exporter M/s RAK Ceramics from UAE have themselves admitted that they supply 3rd and 4thquality tiles to India. Consumer interests cannot be furthered by bringing in 3rd and 4th quality products.
(iii) The judgement of Hon’ble Supreme Court in the case of Designated Authority Vs. M/s Haldor Topsoe isrelevant regarding the issue of right of interested parties to make the oral submissions and in this regardwe reiterate our submissions as made earlier.
(iv) It has been mentioned that the petitioners were required to submit costing, selling price and otherinformation on model to model and grade to grade basis and that in absence of this, application cannotbe considered. It has also been argued that this mistake cannot be rectified at this stage. In this regard,it is submitted that the Domestic Industry has submitted the information as per Rule 5(1) and (2).Designated Authority has examined the standing of the petitioner and has indicated in its initiationnotification dated 6.8.2002.
(v) The Anti dumping Rule 5(3) is two-fold viz.
(i) a determination prior to initiation is required to be done by the Designated Authority only withrespect to the issue of ‘standing’ and not for dumping, injury or the causal link
(ii) an examination of the accuracy and adequacy of evidence, coupled with the satisfaction of theDesignated Authority, as to the sufficiency of such evidence. The argument of therepresentative of the exporter that there must be a complete determination on all issues, isentirely contrary to the sequential basis of conducting such proceedings under the statutoryprovisions. As long as there is satisfaction as to the sufficiency of evidence, there is no furtherrequirement of a determination let alone a determination on a model to model or grade tograde basis.
b) VIEWS OF BUILDER ASSOCIATION OF INDIA:
(i) The availability of imported products has been a boon to the industry and Indian consumers and haveplayed a major role in substantially expanding market for Vitrified Tiles.
c) VIEWS OF M/S TRISHLA DISTRIBUTORS:
(i) The Authority has not acknowledged the submissions made by hundreds of consumers organizations,traders, importers and distributors who have filed their submissions well before the preliminary findings.
d) VIEWS OF M/S KENT CERAMIC TILES COMPANY PVT. LTD. & M/S KAJARIA CERAMICS:
(i) The petitioners have misconstrued the provisions of Rule 6. The Rule 6(4) and 6(6) are clearlyindependent. The Hon’ble Supreme Court in case of Haldor Topsoe has considered the issue on themethod of determination of Normal Value and not the issue regarding whether importers are barredfrom making submissions under Rule 6.
(ii) The failure and continued reluctance of the petitioner to separately categorise different types of Vitrifiedtiles so as to enable a proper appreciation of whether adequate evidence has been provided toestablish dumping, material injury and causal link is contrary not only to technical and commercialunderstanding but is also strictly in the teeth of the Dispute Settlement Panel Report of Argentina vs.Italy in respect of the import of Ceramic Floor tiles case.
(iii) The failure of the importers to submit information could if at all affect the issues of export price andquantum of imports. This however does not deny the importers and other interested parties from anissue to make submissions on the issues of product under consideration, accuracy or adequacy ofevidence, absence of material injury and absence of a causal link of alleged dumping .
e) VIEWS OF M/S NITCO TILES:
(i) As per Rule 2 (c), the term interested party is not defined as an exporter or an importer who havesubmitted a questionnaire response. It refers to an exporter or importer per se without any furtherqualification. The term interested party includes even an association of importers, association ofexporters and the Government of exporting country. These interested parties are not required to fileresponse to any questionnaire prescribed by the Authority. Sending questionnaires and participating inan oral hearing are two different aspects of investigation. The only legal requirement under Rule 6(6) isthat the said oral information should be taken into consideration only when it is reproduced in writing.Therefore objection by Domestic Industry is unfounded. We are grateful to the Authority for overrulingthis objection at the hearing itself. We have separately sent response to the importers questionnaire(both confidential and non-confidential version).
(ii) The Domestic Industry should be directed to index the figures in various tables and that the nonconfidentialsummary should be provided as per Article 6.5.1. Designated Authority should direct theDomestic Industry to resubmit the non-confidential version of the petition giving index figures where ***appears.
(iii) The reference by the Domestic Industry to the case of M/s Haldor Topose Vs. Designated Authority hasno relevance to the facts of the present case. In that case, an exporter did not furnish the informationthat was available in his possession and in that case the Supreme Court had held that the exportercannot argue about the best information that the Authority has used. The Supreme Court did not saythat as a consequence Haldor Topsoe cannot at all participate in the proceedings. In this case theresponse to importer’s questionnaire has nothing to do with the submissions on material injury andcausal link.
(iv) The import data it appears has been complied from the DGCI&S data by manual identification of theproduct under consideration. This methodology could be subjected to manipulation by the DomesticIndustry. Clubbing all the product prices into one product has distorted the entire picture. In absence ofany clear cut definition of product under consideration, all the subsequent stages of dumping, materialinjury and causal link have been distorted and cannot be termed as objective and unbiased.
f) VIEWS OF M/S RAK CERAMICS, UAE:
(i) The initiation of the investigation is bad and is not as per Rule 5. The complainant have not providedsufficient evidence in the application which is mandatory to establish prima facie dumping, injury andcausal link. The applicants in their application have concealed the vital fact regarding several modelsand sizes for the two duct and their prices and continue to do so in spite of reminders to discloseinformation to that effect.
(ii) The vital information on the product cannot be corrected retrospectively in view of the expressedprovisions of Rule 5(3) (b) of anti dumping duties 1995. The complainant has been pursuing the productas one model and type for the purpose of determination of dumping and injury and underselling andundercutting phenomena and also NIP. The computation for model to model, grade to grade isessential. The initiation of the case in light of improper product description has therefore not passed thetest of accuracy and adequacy of evidence and therefore the initiation is bad.
(iii) The proposed provisional anti dumping duty is contrary to the provisions of Rule 13, Rule 17(3) ofRules, 1995, Article 6.10 and Article 2.4 of the Anti Dumping Agreement. The Authority has failed tomake any adjustments for these apparent physical differences which affect the price comparability. Theadjustments on level of trade, quantity discounts and credit cost have not been considered.
g) VIEWS OF M/S. AL-KHALEEJ CERAMICS, UAE:
M/s. Al Khaleej did not provide response as per the prescribed questionnaire. Subsequent to the preliminaryfindings, the exporter has made certain submissions which are as under:
(i) In the initiation and the preliminary findings, there are glaring breaches of the WTO Agreement on AntiDumping. In the present proceedings, the product is aggregated without the distinction of variousgrades which are of different quality and price. Even in proceedings such as Cold Rolled Steel plates,there were references to different grades. The aggregation of grades does not lead to an accuratedetermination of dumping, injury and causal link. Indian tiles manufactured at USD 2 per square mt.cannot be injured by the imports of tiles at USD 13 per square mt. or vice-versa.
(ii) The initiation is not as per Article 5.3 and 5.8. The application lacks adequate and accurate evidences.The application is therefore not fully documented since it does not lead to grade to grade analysis of theproduct under consideration.
C. 3. VIEWS OF INTERESTED PARTIES ON DISCLOSURE STATEMENT ISSUED BY THE DESIGNATEDAUTHORITY:
(i) VIEWS OF DOMESTIC INDUSTRY:
(a) The gradation of RAK is done on the basis of quality of the vitrified tiles which are determined only afterthe tile is fully produced. The Designated Authority has consistently held that quality is not an issue foranti dumping matter. This position has also been confirmed by the CEGAT.
(b) We have repeatedly requested that the classification of vitrified tiles into various grades must besupported by differences in physical specifications. These specifications have not been made known tous for our comments. Accordingly, the approach of the Designated Authority to carry out comparison onthe basis of grade is wholly erroneous.
(c) The Authority has rightly rejected the claim of RAK on apportionment of the cost of production of varioustypes of tiles on the basis of sales realization.
(d) A correct method of overhead absorption is essential for arriving at an objective cost estimate. Thedecision of the Designated Authority to apportion selling and distribution expenses and interest costs onthe basis of sales realisation is erroneous. Interest cost is a factory overhead and needs to be allocatedon the basis of direct cost and not on the basis of sales realisation. Allocating selling expenses on thebasis of sales realisation misses a crucial point that the effort involved in selling the product remainssame irrespective of size/grade/model. To distribute this component of cost the correct method will besize-wise allocation of selling overheads. Distribution cost will not vary with the sales realisation.Allocation of distribution cost on the basis of sales realisation is erroneous.
(e) In light of the above, the domestic industry has requested Designated Authority to rework the dumpingmargin for M/s RAK Ceramics.
(f) Adjustments on packing cost can be claimed only to the extent that the packing for the goods meant fordomestic consumption is different for the goods meant for exports. Packing expenses cannot bededucted from the cost of production for the purpose of carrying out the ordinary course of trade test.
(g) M/s RAK Ceramics has not submitted Appendix 3 to Appendix 10 in the non-confidential version of theExporter Questionnaire. In the absence of information relating to the share of interest cost, selling anddistribution expenses in the total cost of the exporter we cannot definitely say what impact theerroneous method will have on the normal value and hence the dumping margin in the case of particularexporter.
(ii) VIEWS OF EXPORTER:
M/S RAK CERAMICS, UAE:
(a) They have already submitted complete details regarding sales in the domestic market alongwith basison which the level of trade adjustments has been claimed. This information was submitted by RAKalongwith submissions to the exporters questionnaire and during the investigation proceedings. Now asindicated and desired by the Authority that for the purpose of adjustments for level of trade, comparisonneeds to be done grade wise, model wise for a particular size between end-users and traders in thedomestic market this information. This information has been adequately submitted to the DesignatedAuthority. Based on the data submitted by M/s RAK the exporter has claimed the adjustment for thelevel of trade as **** %.
(b) The Authority has accepted that the subject goods are being exported into country by RAK and alsoproduced and sold by the Domestic Industry in different sizes, grades, models, polished andunpolished. Therefore prices of the subject goods vary according to these different features. Since thelanded costs of different tiles of different sizes, grades and models vary substantially, giving onereference price will lead to a situation where all grades will be bench marked at one reference price. atone reference price. This will contradict the basic findings of the Designated Authority regardingacceptance of grades/sizes and models. The levy of anti dumping duty at a reference price will result ina situation where effective duty is higher than Dumping Margin in number of sizes/grades/models. Insupport of the argument raised above the exporter has cited three cases where the Authority hasrecommended anti dumping duty on reference price basis in the Preliminary Findings and in the FinalFindings the Authority has recommended fixed duty. The exporter has submitted that if at all antidumping duty is recommended, the same may be a fixed duty against variable duty imposed in thePreliminary Findings.
(c) On issue pertaining to Injury and Causal link the exporter has reiterated his arguments as raised duringthe course of investigation.
(iii) VIEWS OF IMPORTERS:
(i) M/S. NITCO TILES LIMITED:
(a) The Authority has correctly recognized and proposed to determine different normal values fordifferent sizes, models/grades etc. for M/s RAK Ceramics from UAE. This logic cannot be ignoredwhen it comes to China. Accordingly it is necessary to arrive at a constructed normal value fordifferent sizes/models/grades. The single normal value indicated for China does not reflect thechanges that are required due to differences in sizes, models, grades, level of polish etc. TheAuthority shall determine different normal value for tiles of different sizes, models, grades etc. andcompare the same with the export price of respective sizes, models and grades.
(b) The imports starting coming into the country with effect from 1.4.2000. Earlier to the same thedomestic industry was having a 100% market share. The domestic industry cannot hope toretain 100% of the market even after imports were allowed into India. The mere fact thatdomestic industry does not enjoy 100% market share does not indicate any injury.
(c) As proposed in the disclosure statement the Authority shall evaluate all the 15 injuryparameters.
(d) The price undercutting shall be determined not at CIF level of import but only at the prices atwhich the imported goods are resold in the domestic market.
(e) The Authority should disclose the methodology of calculating Non Injurious Price of thedomestic industry similar to non-confidential disclosure of the dumping margin.
(ii) M/S. TRISHLA DISTRIBUTORS:
(a) The cost price of the local manufacturer do not appear to have been taken into consideration.(b) Because of non-receipt of information from manufacturer from China, it is unfair to the importerthat his views are not considered. Therefore views of the importer from China may also beconsidered.
(c) If the Authority feels to levy anti dumping duties the local manufacturer prices should also beconsidered and the quantum of anti dumping duty needs to be reduced. ‘From the price list ofM/s HR Johnson India it is clear that while a local manufacturer price before payment of exciseduty is only USD *** and USD *** respectively, the import price before payment of additionalduty to be adopted as per proposal is USD 13.62. This is clearly discriminatory and as suchwithout prejudice to the contention that no anti dumping duty is to be imposed.
4. EXAMINATION BY AUTHORITY:
(i) The Authority notes the submissions made by various interested parties regarding the opportunity to begranted to those importers who have not filed the questionnaire response as per the prescribed format of theDesignated Authority for participating in the public hearing. The Authority also notes submissions made byvarious interested parties that a number of consumers/traders and users of the Vitrified Tiles had filedinformation to the Designated Authority for consideration before the preliminary findings which have notbeen acknowledged. The Authority also notes the representations received from certain interested partiesthat they have not been invited for the public hearing.
(ii) The Authority in this regard holds that filing of a questionnaire and participating in a public hearing as perRule 6 are two independent obligations and that is in the interest of the investigation and natural justice thateven though an interested party has not filed any information as such on the issue of export price may makesubmissions on issues which may not be emanating from his response had he filed the same. The Authorityalso holds that though various submissions were made by various architects/dealers/users in favour of nonimposition of anti dumping duty keeping in view the wider availability of good quality tiles from the subjectcountry, a number of submissions have also been received in support of levy of anti dumping duty. Thosesupporting anti dumping duty have indicated the imports from the subject country being of low quality withunder-invoiced pricing and hitting the Domestic Industry adversely.
(iii) The Authority notes that these are generic issues in support or against imposition of anti dumping dutyrather than on specific technical aspects of dumping, injury and causal link which the Authority is to examineunder the relevant Anti Dumping Rules. The Authority therefore has examined those issues which arepertinent to investigation and have a bearing on the critical parameters of the investigation. The Authorityhas also considered the submissions on quality and choice of consumers in light of its consistent practice ofaddressing the aspect of increased competition and the wider availability of goods as being considered in itsearlier determinations. As regards those who have informed that they were not invited to participate in thepublic hearing, the Authority in view of the observations in the above para, has taken on board the relevantissues pertaining to investigation as provided in their submissions.
(iv) As against initiation of the case, the Authority notes that the case was initiated in accordance with Rule 5(3)(a) and (b). The fact of dumping from PR China is not disputed as there is no response and the prima facieevidence of dumping from UAE was referenced on the basis of a price list which is a reasonable evidencefor the purpose of initiating an investigation. The issue pertaining to exclusion of specific products, andappropriate comparison of dumping and injury has appropriately deal with in the Final Findings.
(v) All issues raised by various interested parties in response to the Disclosure Statement have been examinedby the Authority and appropriately dealt in the Final Findings.
5. PRODUCT UNDER CONSIDERATION AND LIKE ARTICLE:
(a) VIEWS OF THE DOMESTIC INDUSTRY:
(i) The description of the product under consideration has been done on the basis of the technicalspecifications, national and international standards. The criterion of water absorption of less than orequal to 3% is also based on national and international standards. We would like to reiterate that all tilesfalling under the scope of product under consideration should be subjected to anti dumping dutiesirrespective of the custom classification under which they are cleared.
(ii) The petitioners has claimed that all types of unglazed tiles are classified in chapter heading 69.07.However, unglazed tiles are also being imported under chapter heading 69.14 as other articles ofporcelain. In addition, glazed porcelain tiles are being imported under chapter heading 69.14 withvarious descriptions like G.P. Tiles, Porcelain Tiles, Gres Porcelenato Tiles, Porcelain Vitrified Tiles,etc. It has further been stated that the Glazed Porcelain Tiles, being imported under chapter heading69.14 are substitutable with the unglazed tiles of chapter heading 69.07 in terms of properties, uses,functions, distribution channels etc. Petitioners have further submitted that Glazed Porcelain Tiles areerroneously being classified under chapter heading 69.14 by many importers. These products arerightly classifiable under chapter heading 69.08 as Glazed Tiles. Therefore, petitioners requested thatthe investigations be carried out against the product under consideration irrespective of theclassification under which they are being imported.
(iii) As regards the argument by the Counsel for RAK Ceramics that the Domestic Industry does not makevitrified tiles in sizes 98 x 98 cm or 120 x 180 cm, it is submitted that the said sizes do compete directlywith the product range of the Domestic Industry and would be adequately covered by the scope of theterm ‘like article’ under the Anti Dumping Rules. The claim of RAK that the Domestic Industry does notmanufacture Rustic, Stone, Opficium, Antica, Mosaico, Metallica, Al-hambra etc. is of no consequenceas these are names given to their designs. Our plants can make similar designs and effects andtherefore, there is no reason to agree to the exclusion of certain manufacturer-specific design names.
(b) VIEWS OF M/S TRISHLA DISTRIBUTORS:
(i) The product under consideration is Vitrified or Porcelain Tiles of water absorption upto 3%. Thepetitioners also produce Vitrified Tiles having water absorption levels as 0.5%. The tiles are sold innumber of sizes, colours and designs and their costs as well as prices vary. This issue has beenconveniently overlooked by the petitioners companies who have also sold their products at prices whichvary significantly in terms of per square metre. All different types of products cannot be combined.
(ii) The scope of investigation is not clearly defined. The present investigation also tends to includeCeramic Mosaic tiles.
(c) VIEWS Of M/S KENT CERAMIC TILES COMPANY PVT. LTD. & M/S KAJARIA CERAMICS:
(i) The product under consideration is of a wide coverage. It also includes Ceramic Mosaic Tiles which arenot commercially substitutable and are imported at prices much less than vitrified tiles.
(ii) The tiles are of different characteristics, style, prices and uses. The ISO 13006 is of internationalstandard for tiles and it recognizes the different categories of Tiles as A: extrudes, B: dry pressed andC: tiles made by other processes. On the basis of the water absorption capacities, it recognizes themunder Group 1 to Group III. Further the categories are also categorized under sub-categories.
(iii) The product description adopted by the petitioners covers products of various prices. The Porselanorange of HRJ for a 60 x 60 tile is priced at Rs.884/- per sq. mt and the Chinese Vitrified tiles have anMRP of Rs.1022/- per sq. mt. While the HRJ Marbonite range of tiles have MRP of Rs.1,111/- per sq.mt., the Porselano range of HRJ and the Marbonite range of HRJ, both of which fall under the productdescriptions are clearly competition interse, with Porselano range being priced even lower than theimports.
(iv) It is submitted that Ceramic Mosaic Tiles be excluded from anti dumping duty and the proceedings beterminated under Rule 14(b) and that there should be no anti dumping duty on imports from China andthat the reference price should be lower as the margin of dumping has been miscalculated.
(d) VIEWS OF M/S NITCO TILES :
The product under consideration has not been defined in sufficient details to enable the Authority to analysethe existence of dumping, injury and causal link. The product under consideration should be defined properlybefore sending questionnaire to the exporter and for evaluating injury to the Domestic Industry as also thecausal link. Since this has not been done, the investigation should be terminated.
(e) VIEWS OF M/S RAK CERAMICS, UAE:
There are certain models of 98 x 98 cm or 120 x 180 cm or variety of any tiles like rustic, stone, antica,mosaic, opficium, metallica, A1-Hambra etc. for which the Domestic Industry does not have productionfacility, technology or know-how. To that extent, there is no causal link for these products.
(d) VIEWS OF M/S. AL-KHALEEJ CERAMICS, UAE:
The Authority has unilaterally and without opportunity extended, the proceedings beyond its initial scope byalso considering data in the context of Mosaic ceramic tiles which were never subject matter of the originalproceedings initiated.
6. EXAMINATION BY AUTHORITY:
(i) The Authority notes that the product under consideration has been defined as "Unglazed tiles in polished orunpolished finish and Glazed Porcelain/Ceramic tiles both with less than 3% water absorption (commonlyknown as Vitrified Tiles/Porcelain Tiles)" originating in or exported from subject countries" in the preliminaryfindings dated 3rd December, 2001 under Para F. Many interested parties have indicated that the productunder consideration is too generic and should have been categorised under various categories of grades,models, sizes, etc. at the time of initiation itself. It has also been indicated by certain interested parties thattiles like Mosaic tiles which are different from Vitrified Tiles are also covered under under scope ofinvestigation. It has also been submitted by one of the interested parties that certain superior quality tiles likerustic, stone, antica, mosaic, opficium, metallica, A1-Hambra are not being manufactured by the DomesticIndustry. The Authority after examining various submissions has considered the product under considerationas defined in the preliminary finding. On the argument on exclusion of Mosaic Tiles it is reiterated thatMosaic tiles are excluded from the scope of investigation which would not fall under the category of theproduct under consideration as defined in Para F of the preliminary findings dated 3.12.2001. Since VitrifiedTiles have been specifically defined with water absorption less than 3%, to that extent the product is clearlydefined and the Authority confirms the same in the final findings. The names of the tiles provided by theexporter, M/s RAK Ceramics, UAE are commercial names and as have not been demonstrated byappropriate evidence to be outside the scope of investigation.
(ii) With regard to the claim of the Domestic Industry that the subject goods are being imported under differentcustoms classifications the Authority reiterates its consistent position that Anti dumping investigations are onthe product under consideration, irrespective of customs classification. So long as the imported productconfirms the product under consideration it will attract anti dumping duty. Customs classifications areindicative only and are in no way binding on the scope of the present investigation.
(iii) As regards the issue of categorization of the product is concerned, the Authority holds that the aspect ofcategorization is relevant for the purpose of determining dumping margin appropriate as per Article 2.4 ofthe WTO Agreement and Para 6 of Annexure 1 of the Indian Anti Dumping Rules and also Para (vi) ofAnnexure II of Anti Dumping Rules. However, the aspect of categorization does not alter the definition andscope of product under consideration as was defined in the preliminary findings dated 3rd December, 2001under Para F.
(iv) With regard to Rule 2(d) of the Anti Dumping Rules which defines "Like Article" the exporters/importers haveargued that the tiles imported by them are of different quality. However, no evidence has been adduced bythem to indicate that the imported tiles are not substituting the domestically produced tile either technically orcommercially. The Authority notes that the vitrified/porcelain tiles produced by the Domestic Industry hascharacteristics which are similar to those of the tiles imported from the subject countries. The channels ofdistribution, end-use etc., also indicate that the imported tiles are like articles to the product underconsideration. In view of the above, the Authority holds that Vitrified/Porcelain tiles produced by theDomestic Industry and those being imported from the subject countries are "Like Articles" within themeaning of the Rules.
(b) DOMESTIC INDUSTRY:
(i) As per Rule 2(b) of the Anti Dumping Rules, "domestic industry means the domestic producers as a wholeengaged in the manufacture of the like article and any activity connected therewith or those whose collectiveoutput of the said article constitutes a major proportion of the total domestic production of that article exceptwhen such producers are related to the exporters or importers of the alleged dumped article or arethemselves importers thereof in which case such producers shall be deemed not to form part of domesticindustry."
(ii) The definition of Domestic Industry given above is further clarified by Rule 5 of Rules which reads asfollows:-
"----------------- the application shall be deemed to have been made by or on behalf of the domestic industry, ifit is supported by those domestic producers whose collective output constitute more than fifty percent of thetotal production of the like article produced by that portion of the domestic industry expressing either supportfor or opposition as the case may be to the application.
(iii) STANDING OF DOMESTIC INDUSTRY:
The petition has been filed by M/s. SPL Ltd., M/s. H&R Johnson India Ltd. and M/s. Murudeshwar CeramicsLtd. The petitioners account for almost 60% of the total Indian production in terms of Sq. Meters of thesubject goods. The Authority notes that the submissions have been made regarding wrong initiation underRule 5. The issue of standing has also been argued by certain interested parties to extent that the productunder consideration was not specifically categorized. The Authority in view of the above clarification for theproduct under consideration confirms the standing of the Domestic Industry as held in the preliminaryfindings dated 3rd December, 2001 in Para H. As the product under consideration is unaltered, no re-look onthe standing issue is required, the Authority therefore confirms the standing as defined in the preliminaryfindings.
D. NORMAL VALUE,EXPORT PRICE AND DUMPING MARGIN:
7. Under Section 9A(1)( c), normal value in relation to an article means:-
(i) The comparable price, in the ordinary course of trade, for the like article when meant for consumption in theexporting country or territory as determined in accordance with the rules made under sub-section (6); or
(ii) When there are no sales of the like article in the ordinary course of trade in domestic market of the exportingcountry or territory, or when because of the particular market situation or low volume of the sales in thedomestic market of the exporting country or territory, such sales do not permit a proper comparison, thenormal value shall be either:-
(a) Comparable representative price of the like article when exported from the exporting country or territoryor an appropriate third country as determined in accordance with the rules made under sub-section (6);or
(b) The cost of production of the same article in the country of origin along with reasonable addition foradministrative, selling and general costs and for profits, as determined in accordance with the rulesmade under sub-section (6);
(c) Provided that in the case of import of the article from a country other than the country of origin andwhere the article has been merely transhipped through the country of export or such article is notproduced in the country of export or there is no comparable price in the country of export, the normalvalue shall be determined with reference to its price in the country of origin.
(d) The Authority provided opportunity to the exporters from subject countries to furnish informationrelevant to the investigations and offer comments, if any, in accordance with the Section cited above.The Authority wrote to the Embassies of subject countries in India also.
8. VIEWS OF THE DOMESTIC INDUSTRY:
(i) M/s RAK Ceramics, the only cooperating exporter from UAE have themselves admitted that they areengaged in supplying 3rd and 4th quality and residual grades and quality tiles to India. Therefore M/s RAKCeramics is not only indulging in price dumping but also resorting to dumping of sub-standard goods toIndia.
(ii) The product under consideration is not covered under a dedicated head of DGCI&S and therefore DomesticIndustry had to rely upon sources other than DGCI&S to compile the exporter information. Para 7 ofAnnexure-II of the WTO Agreement merely cautions the Authorities to exercise special circumspection whileusing the secondary data. Since the exporter has submitted grossly deficient information, the Authority hasrightly resorted to Rule 6(8).
(iii) The Designated Authority has relied upon the price list of the exporter himself and therefore the rigors ofPara 7 of Annexure-II are also satisfied.
(iv) It has been alleged by M/s RAK Ceramics that prima facie evidence with regard to the normal value is bad inlaw as reliance has been placed on unbinding price list of one of the UAE producers. The importers havealso mentioned that the evidence is bad as the petitioners have not supplied even a evidence of aconcluding contract. The Domestic Industry in view of the negotiated price cannot be expected legally or inpractice to get the confidential documents of two commercial entities. As per Para 1 (a) of Para III of theApplication proforma, price list can be a reasonable indication of the Normal Value in the market of theexport.
(v) It has been argued by M/s RAK Ceramics that the Domestic Industry ought to have given model-wiseinformation to Designated Authority for initiation of the case. Article 2.4 of WTO was referred in this regard. Itis submitted that the reliance of M/s RAK Ceramics on Article 2.4 is totally misconceived as this Articlepertains only to the comparison of Normal Value and export price for the purpose of dumping margin. Thereis no mention of such a comparison to be made between the models of the exports and the products of theDomestic Industry. We request the Designated Authority to confirm the preliminary findings in this regard.
9. VIEWS OF BUILDER ASSOCIATION OF INDIA:
(i) The order passed by the Hon’ble High Court of Gujarat at Ahmedabad in Special Civil Application No.11935of 2001, with Civil Application No.96 of 2002 and Civil Application No.148 of 2002 in the matter of SurfacesPlus through Partner Dilip Shah versus Union of India on January 9, 2002 held that:-
"By our earlier order dated 27.12.2001, we allowed the petitioner (M/s Surfaces Plus through Partner Mr.Dilip Shah) to make a representation to the Central Government on the preliminary findings. However, at thisstage, we direct the Central Government, before issuing the notification of provisional duty, to consider therepresentation of the petitioner in accordance with law. The intervenors shall also be given an opportunity tomake a representation along with other parties.
(ii) However to our great dismay, we learn that provisional anti dumping duties of 300% have been levied onimports of such tiles from China and UAE. It is not clear as to why a uniform prices at US$ 13.62 per squaremeter can be arrived at for all Vitrified tiles which can be quite dissimilar to each other on various matterslike size, design, method of decoration etc.
10. VIEWS OF M/S TRISHLA DISTRIBUTORS:
The Normal Value in case of M/s RAK Ceramics has been taken on the basis of a price list which only an offerprice and there are further discounts depending upon quantity offered and competition. The price lists are alsonot static. The dumping margin has to be evaluated in accordance with the provisions of Custom Tariff Act,1975 while looking at the domestic selling price of the exporters.
11. VIEWS OF M/S KENT CERAMIC TILES COMPANY PVT. LTD. & M/S KAJARIA CERAMICS:
(i) The information has been taken by petitioners from the International Business Information Service. Thepetitioner has also included in the export price the import price of Mosaic Tiles and which has reduced thelanded value. The petitioner has sought to fill in the gap that the importer should provide such information.The provision places a strict onus of proof on the petitioners and the proceedings cannot be initiated wherethe petitioner hopes to pick up essential information during the course of the proceedings.
(ii) The Dispute Settlement Body has issued a Panel Report dated October, 2001 as to Ceramic Floor tiles fromItaly in proceedings initiated by Argentina. In the report, it is seen that three distinct categories based on sizeand determining the dumping margin and all other issues were based on three categories. The petitionershave failed to make the appropriate categorisation of the product and consequently the entire proceedingsare ill-defined. The indices on sales volume, sales value, per unit realisation, capacity utilisation andproduction have been positive for the Domestic Industry. Also the imports constitute 3.36% of the marketdemand. The average selling price of indigenous production is above the reference price fixed by theDesignated Authority
(iii) The levy of anti dumping duty at a reference price is not sustainable as there could be situations whereeffective levy is higher than both the margin of dumping and the margin as determined during the POI.
(iv) As regards the information from secondary sources, export prices have been reworked by the petitioner. Inthese circumstances, the caution particularly in view of that as even the secondary source information hasbeen reworked by the petitioner is accepting this data be followed.
12. VIEWS OF M/S RAK CERAMICS, UAE:
(i) The petitioners have accepted the provision of Article 2.4 though late. The provisions of Article 2.4 wouldalso be ipso facto apply on determining of price undercutting and underselling margins for which thecomparison have to be done model to model, grade to grade and then a weighted average margin has to bedone at without actually zeroing. In the absence of model to model, cost of production information in theDomestic Industry, it would also be difficult to determine as to whether the domestic sales of model used incomparison are in normal course of trade or not.
(ii) M/s RAK Ceramics subsequent to the preliminary findings have also provided information pertaining totechnical specifications of their various models and grades, sales price structure for domestic sales andexports to India on a non-confidential basis, additional information to the exporters questionnaire on aconfidential basis indicating the statement of raw material consumption and resale for the POI and the costof production for various grades.
(iii) M/s RAK have also provided on a confidential basis the costing principles from a secondary source insupport for computation of costing done by them on model to model and grade to grade. Comparison usingthe cost of production as evaluated for a specific model or grade has also been demonstrated indicating theweighted average dumping margin which is evaluated as de-minimis.
(iv) The grounds on which the exporter’s data has been rejected for the purpose of preliminary findings areunsustainable, on unfounded premises and on false attributes. M/s RAK has provided the non-confidentialsummary of the confidential information filed by them and that it is only their business information which hasnot been provided in the non-confidential version.
(v) M/s RAK was never informed of further evidence or information which was required by the Authority or that theinformation submitted with the response were being rejected along with the reasons thereof and that no opportunity was granted to them to explain or provide any further information. The rejection of information submitted by them is also inconsistent with the provisions of Article 17.6 of the WTO’s Anti Dumping Agreement.
(vi) Vide letter dated 16.12.2002 and 17.12.2002, M/s RAK Ceramics have responded to the letter dated1.11.2002 and 15.11.2002 of the Directorate General of Anti Dumping and Allied Duties and have submittedthe information on Normal Value, cost of production and adjustments thereof.
13: M/S AL-KHALEEJ CERAMICS, UAE :
The reference price mechanism would result in a situation wherein in the levy of anti dumping duty would be in excess of lower of the margin of injury and dumping. This is unsustainable under Article 9.1 and 9.3 of the WTO Agreement.
14. EXAMINATION BY AUTHORITY:
(i) M/S RAK CERAMICS, UAE:
The Authority notes that subsequent to the preliminary findings, the exporter had filed information vide theirletters dated 28.12.2001 and 25.6.2002 indicating the scheme of categorization of grades, reconciliation ofthe raw material and cost of production, domestic sales realisation and has highlighted the principlepertaining to which they had evaluated the cost of production of different grades and tiles as per joint costingprinciples. The Authority also notes that subsequent to the public hearing, the verification dates for 19th and20th August, 2002 were finalised in consultation with the exporter for verification of their data at theirpremises. When on account of certain administrative reasons, the verification could not be conducted on19th and 20th August, 2002, verification dates of 31st August and 1st September, 2002 were agreed.However, vide fax dated 24.8.2002, M/s RAK Ceramics informed Directorate General of Anti Dumping &Allied Duties that the verification needs to be postponed by two months until end of October, 2002. TheAuthority vide letter dated 1st November, 2002 desired the exporter to submit additional information andclarification including that the information in Appendix 4 of Volume 8 and the information provided in Volume4 of the submissions does not tally and that sample invoices for exports and domestic sales indicating size,grade and model of tiles be given. Appropriate invoices/names of the buyers and the evidence regardingsale to end users so as to consider the level of trade adjustments, documentary evidence pertaining todiscounts, freight and packing on the domestic sales, evidence on cost of credit on the domestic sales werealso called for. Subsequently the Authority vide letter dated 15th November, 2002 had desired informationpertaining to average cost of different sizes/types of such types manufactured during the period ofinvestigation in Appendixes 8, 9 and 10. It was stated that the cost indicated in these appendices shouldalso reconcile with books of accounts/profit and loss account. Vide letter dated 5th December, 2002, therepresentative of the exporter desired 10 days to file the information pertaining to the letters dated IstNovember, 2002 and 15th November, 2002 sent by the Authority. Thereafter vide letter dated 16.12.2002and 17.12.2002, the representative of the exporter filed information in response the letters dated 1stNovember, 2002 and 15th November, 2002. Clarifications were also provided by the exporter. The Authority,thereafter, carried out the verification at the premises of M/s. RAK Ceramics on 6th/7th January 2003 andverified the cost of production and various adjustments on the domestic and export price.
In response to the Disclosure Statement the exporter has further tried to establish/justify his claim foradjustment on account of level of trade by providing detailed comparison of grade wise, model wise sale fora particular size between end-users and traders in the domestic market. Since this information has beensubmitted by M/s. RAK after the verification and issue of Disclosure Statement the Authority holds thatacceptance of the same at this stage is not appropriate. Hence, the claim of the Exporter with regard toadjustment on account of level of trade has not been considered.
NORMAL VALUE:
(a) The Authority notes that the exporter has claimed different cost of production for different grades of thevitrified tiles manufactured and exported by them. The Authority in this regard also notes that theprinciple adopted by the exporter on apportionment of the cost of production is not realistic. The directcosts which have gone into the manufacturing of each grade cannot be apportioned on the basis of thelower sales realisation, if any, realised from the market. The Authority has considered the actual costsexcept selling and distribution and interest costs size wise, and has apportioned the selling anddistribution and interest cost on the basis of sales realisation for each size/grade/model.
(b) In view of this, grade-wise/model wise cost of production pertaining to a particular size of vitrified tileshas been evaluated . Further as the tiles have been indicated as polished and unpolished, the costs forpolished and unpolished have also been evaluated separately. The Authority has therefore evaluatedthe cost of production for different sizes of vitrified tiles grade-wise/model wise for both polished andunpolished tiles. The Authority has considered cost of production including raw materials, utility, labourcost, depreciation and manufacturing overheads for each size of Vitrified Tiles. SGA, and interest costhas been allocated on the basis of sales value of different models and grades of tiles so as to arrive atthe total cost of each grade/model type of tile. During verification it was noted that the exporter is sellingthe product Vitrified Tiles both in domestic and export markets as various grades. This was alsoevidenced from the commercial documents of domestic and export sales. Also different grades ofceramic tiles were distinguished in terms of their physical characteristics during the production andsorting process. Data made available by the Domestic Industry and other interested parties alsoevidences the categorization of the product under consideration on grades based on quality pertainingto the production and sales of the Domestic Industry. The Authority in view of the fact that the grades ofVitrified/Ceramic tiles are clearly distinguishable considers it appropriate to apply the ordinary course oftrade test as per Annexure 1 for different sizes/models at the grade level. The Authority also notes thatthe exporter has sought adjustments on freight, credit cost, level of trade adjustment, discounts andpacking. The Authority has considered adjustments as evidenced on all these adjustments except levelof trade , wherein the Authority notes that regarding level of trade exporter has not provided appropriateinformation on comparison grade wise and model wise for a particular size between the end user andtrader in domestic market during verification and that the comparison made on an average basis doesnot appear to be realistic. The Authority notes that as regards export sales also, the exporter has notsubstantiated that the sales to India have been made exclusively to traders only. The Authority hasconsidered adjustments on account of freight, discounts, credit costs and packing only and hasevaluated the Normal Value size-wise, grade-wise and model wise separately for polished andunpolished category.
The weighted averaged Normal Value comes to ***$/square mt.
EXPORT PRICE:
(a) As regards the export price, the Authority has allowed adjustments on account of freight and packing asclaimed by the exporter on C&F and also noted during verification that a credit of *** days is granted onexport sales. 0.5% insurance has been added on the C&F value to arrive at CIF price so as to evaluatethe landed value for determining the price undercutting.
(b) The Authority therefore has evaluated dumping margin of the subject goods exported to India by makingcomparisons size-wise, grade-wise and for polished and unpolished category separately wherever oneto one comparison of a particular model is not feasible on account of no domestic sales, the weightedaverage cost of production with appropriate profit has been referenced for a particular grade and size.The weighted average ex-factory export price comes to ***$/square mt.
The dumping margin comes to 13.27%
15. OTHER EXPORTERS/PRODUCERS (OTHER THAN M/S RAK CERAMICS) FROM UAE:
The Authority has considered the Normal Value of the subject goods for the non-cooperating exporters as perthe methodology considered in the preliminary findings on the basis of the petitioners data with appropriateadjustments and has considered the ex-factory export price for such exporters by referencing the averageexport price evidenced from the data submitted by the cooperating exporter. The dumping margin is assessedas 99%.
16. ALL EXPORTERS/PRODUCERS FROM PR CHINA:
NORMAL VALUE:
The Authority notes that after the Preliminary Findings also, response has not been filed by any of theexporters/producers from PR China in the prescribed questionnaire and therefore there has been nocooperation from any of the producers/exporters from PR China. The Authority therefore confirms themethodology as indicated in the preliminary findings dated 3rd December, 2001 and adopt the Normal Value forsuch producers/exporters on the basis of best available information as per Rule 6.8 as done the in thePreliminary Findings.
The Normal Value is considered as ***$/square mt.
EXPORT PRICE:
As regards the export price, the Authority notes the submission that DGCI&S data is not appropriate forevaluating the export price as also held in Para 12 of the Preliminary Findings dated 3rd December, 2001. It wasindicated by certain interested parties in the public hearing and thereafter also in their submissions made to theAuthority that the price of Mosaic Tiles is also included in the export price as per the secondary informationprovided by the petitioners. It has also been mentioned that these are not part of the product underconsideration and by their being at a lower price, the landed value has been lowered thereby inflating the injurymargin. In view of the submissions, the Authority reconfirms the information as available from the secondarysource and provided by the petitioner by considering those transactions which are relevant for the productunder consideration. The Authority also notes that subsequent to the public hearing, one of the importers M/sNITCO Tiles have provided information of their imports of the subject goods during the period of investigationfrom PR China. The Authority has correlated this with the information on the export price as available from thesecondary source provided by the petitioners. The Authority has referenced the information on CIF as providedby M/s NITCO Tiles and as by the petitioner for imports other than those made by M/s NITCO who haveprovided the actual imports data made by them and consider adjustments on ocean freight and oceaninsurance as per importer’s information and port expenses, inland freight and commission adjustment on CIF asper the consistent norm of considering these @***%, ***% and ***% of CIF respectively.The ex-factory export price comes to ***$/square mt.
The dumping margin on the basis of the above comes to 290%.
E. INJURY AND CAUSAL LINK:
17. Rule 11 of Anti Dumping Rules reads as follows:
“Determination of Injury:
(i) In the case of imports from specified countries, the Designated Authority shall record a further finding thatimport of such article into India causes or threatens material injury to any established industry or materiallyretards the establishment of any industry in India;
(ii) The Designated Authority shall determine the injury to Domestic Industry, threat of injury of DomesticIndustry, material retardation to establishment of Domestic Industry and a causal link between dumpedimports of injury, taking into account all relevant facts, including the volume of dumped imports their effecton price in the domestic market for like articles and the consequent effect of such imports on domesticproducers of such articles and in accordance with the principles set out in Annexure II to these rules."
18. The principles for determination of injury set out in Annexure-II of the Anti-Dumping Rules lay down that:
(i) A determination of injury shall involve an objective examination of both (a) the volume of dumped importsand the effect of the dumped imports on prices in the domestic market for like article and (b) the consequentimpact of these imports on domestic producers of such products.
(ii) While examination the volume of dumped imports, the said Authority shall consider whether there has beena significant increase in the dumped imports, either in absolute terms or relative to production orconsumption in India. With regard to the effect of the dumped imparts on prices as referred to in sub-rule (2)of Rule 19 the Designated Authority shall consider whether there has been a significant price under-cuttingby the dumped imports as compared with the price of like product in India, or whether the effect of suchimports is otherwise to depress prices to a significant degree or prevent price increase which otherwisewould have occurred to a significant degree.
F. CUMULATIVE ASSESSMENT OF INJURY:
19.(a) Annexure II (iii) under Rule 11 supra further provides that "in case where imports of a product from morethan one country are being simultaneously subjected to Anti Dumping investigation , the DesignatedAuthority will cumulatively assess the effect of such imports , only when it determines that the margin ofdumping established in relation to the imports from each country is more than two percent expressed aspercentage of export price and the volume of the imports from each country is three percent of the imports ofthe like article or where the export of the individual country is less than three percent ,the importscumulatively accounts for more than seven percent of the imports of like article, and cumulative assessmentof the imports is appropriate in light of the conditions of competition between the imported article and the likedomestic articles".
(b) The Authority notes that the margin of dumping and quantum of imports from subject countries are morethan the limit prescribed above. Cumulative assessment of the effect of the imports from UAE and ChinaP.R. is appropriate since the export prices from these countries were directly competing with the pricesoffered by the Domestic Industry in the Indian market and displacing domestic producers here.
20. For the examination of the impact of the imports on the domestic industry in India, the Authority consideredsuch indices having a bearing on the state of the industry as production, capacity utilisation, sales quantum,stock, profitability, net sales realisation, the magnitude and margin of dumping, etc. in accordance withAnnexure II (iv) of the Rules supra.
21. VIEWS OF THE DOMESTIC INDUSTRY:
(i) It has been mentioned by M/s RAK Ceramics and some importers that there is no injury to DomesticIndustry. Some excerpts from the Director’s Report of M/s HRJ where an increase in demand by ***% for thenext few years has been indicated has been cited. It is submitted that the mention made in Director’s Reportis generally indicative of the entire tile industry.
(ii) It has been stated that M/s SLP’s plant came in operation in November, 2000 and has been used for fourmonths during the year. M/s SPL Vitrified Tiles plant actually commenced commercial production in March,2000 and not in November, 2000.
(iii) As regards injury, Designated Authority is bound to look into the factors relating only to product underconsideration and not company as a whole. It has been submitted by the importers/exporters that the killerearthquake in Gujarat in January, 2001 has affected the production of M/s SPL. It is submitted that the plantof M/s SPL is located in Haryana.
(iv) Extensive arguments have been made that the injury analysis ought to have been made on model to modelor grade to grade basis. While making this contention, the opposing parties have completely lost sight ofPara 6 of Annexure II of Anti Dumping Rules. The same is reproduced below for ready reference.
"(vi) The effect of the dumped imports shall be assessed in relation to the domestic production of the like articlewhen available data permit the separate identification of that production on the basis of such criteria as theproduction process, producers’ sales and profits. If such separate identification of that production is notpossible, the effects of the dumped imports shall be assessed by the examination of the production of thenarrowest group or range of products, which includes the like product, for which the necessary informationcan be provided."
(v) This particular provision has been added precisely due to the reason that model to model or grade to gradeis inconceivable as separate identification of the production of the Domestic Industry on the basis of suchcriteria as the production process, producers’ sales and profits is not feasible. In fact, this provision givesenough powers to the Designated Authority to take a larger range of products than the product underconsideration under certain circumstances Therefore, there is no basis to claim that the injury analysis oughtto be done for a subset of the product under consideration.
(vi) It has been mentioned that the Domestic Industry has made goods profits and therefore their claim of injuryis not justified. In this regard, it is submitted that the injury analysis is required to be done only for theproduct under consideration and not for company as a whole. CEGAT Case Law no.2000(117) ELT-625(CEGAT), Automotive Tyre Manufacturers Association Vs. Designated Authority is relevant in this regard.
(vii) The importers from the subject countries account for more than 70% of the total imports and that the importshave been able to capture 3.66% of the total demand in a short period of nine months which is verysignificant. The market share of the Domestic Industry could have been higher by better capacity utilisationbut for the dumped imports resulting in depressed demand for the domestic producers.
(viii) One of the importers has argued that examination of price undercutting is not proper and that the DomesticIndustry has charged 2.34 times of the landed value of imports and that it has caused injury to them. It hasbeen argued that price undercutting is to be done at the distributors stage as there is a vast differencebetween the landed value and that the price to the ultimate consumers. Further it has also been mentionedthat retail price should be considered for determining the price undercutting. It has been mentioned thatNITCO tiles has been selling the products in India at a significant margin compared to landed value of suchproducts. This difference is adequate to conclude that the NITCO tiles has more than sufficient marginavailable to them because of the dumped prices. They import the product and are therefore in a position todepress the price in domestic industry at their will. his is in stark comparison with the submissions of NITCOTiles Ltd. and RAK Ceramics that even though the price of the dumped imports is very low, the domesticresale price of the same is very high. The Domestic Industry has submitted the actual data pertaining to theproduct under consideration with regard to the issue of price undercutting and price underselling, which hasbeen the basis of the preliminary findings by the Authority.
(ix) It was also argued by the Counsel for Kajaria Ceramics that the competition has been from the small scalesector and that dumping would not have caused injury to the Domestic Industry. The argument of importer ismisleading as SSI sector does not manufacture Vitrified Tiles at all.
22. VIEWS OF BUILDER ASSOCIATION OF INDIA:
(i) The prices of different grades and types of Vitrified Tiles vary quite substantially not only internationally butalso in local market and therefore a common benchmark reference price cannot be set. Before doing anyanalysis of dumping injury and causal link, identification of different varieties/types of Vitrified Tiles bothmanufactured within and imported into the country should be done.
(ii) Domestic producers have themselves admitted that their sales volumes as well as realisations have gone upand therefore they cannot claim injury on account of imports.
23. VIEWS OF M/S TRISHLA DISTRIBUTORS:
(i) The production of different grades depends upon the efficiency of a producer and that they are not producedseparately. Higher the production of premium quality tiles, higher is the sales realisations. The gradation oftiles is done well before packing. The petitioners have not disclosed the production of their different typesand whether they can produce as per international standards. The injury to the petitioners companies is dueto their inability to produce higher quality product and as such it is important to note that expenditureincurred remains the same irrespective of grade/quality.
(ii) Size, colour, grade and designs of tiles affect costs and price. The production of tiles also results in wastagebecause of breakage. The wastage levels of Indian producers is very very high. The consumers cannot bepenalised for this inefficiency of the Indian producers.
(iii) The injury to the petitioners could be on account of having high work in progress or the inventories. Theproject report of the petitioner should be called for and the standards taken in project report for type-wiseproduction should be considered.
(iv) The petitioners companies are multi-product companies producing different types of tiles and that they havesharing facilities. It is possible that costs incurred on other types of tiles have been allocated to Vitrified Tileswith regard to items like overheads and utilities.
(v) The petitioners companies were crying about losses in Ceramic Tiles. They are now crying about losses inVitrified Tiles but these companies have been showing good profits and all along and there is no change inthe profitability of the ceramic industry. Therefore we wonder where from the industry makes profits.
(v) The product is a consumer product and has soled primarily at retail level. The price at which the material isimported and is finally resold to the consumers is vastly different. After importation a number of expensesare incurred by the importers. There would be no price undercutting at the ultimate retail level.
(vi) The imports of Vitrified tiles was permitted without restriction only from 1.4.2000 and that the period ofinvestigation also starts from 1.4.2000. It is not the case of sudden increase of imports and therefore thequestion of comparing the imports with the previous period when no imports were permitted is not possible.
(vii) The Domestic Industry has mentioned that the demand has gone up and therefore the production, capacityhas also increased. In absence of any details regarding increase in imports in absolute terms or relativeterms, question of levy of anti dumping duty is not proper.
(viii) The Domestic Industry has failed to provide any concrete evidence to show that they have suffered injurybecause of imports. The margin of profit is only one of the factors and itself is not sufficient to conclude theinjury.
(ix) Before injury is examined, the issues pertaining to inefficiency, fair return, sales and profits have to beconsidered.
(x) The Domestic Industry manufacture both premium and second grade tiles and there is appreciable pricedifference and therefore the data submitted by the Domestic Industry relating to market realisation by themis fundamentally wrong and flawed.
(xi) The Designated Authority may also see that prior to imports and after imports, the price realisation of theDomestic Industry has remained same. The prices of GF 109 and GF 200 indicate the same.
(xii) The MRP price of Domestic Industry cannot be compared with landed cost of imports. Suitable adjustmentshave to be given before any attempt is made to determine the extent of injury.
24. VIEWS OF M/S KENT CERAMIC TILES COMPANY PVT. LTD. & M/S KAJARIA CERAMICS:
(i) On the issue of price under-selling, the Authority must disclose the ingredients and elements of Non-Injurious Price to the interested parties. Also as per the Panel Report in EU-Argentina Ceramic Tiles case,the onus is on Designated Authority to distinctly examine each of the 15 indications for injury as perAnnexure II to the Rules. The Director’s Report of M/s HRJ also shows that competition is expected fromimports and also from small scale sectors. Therefore the petitioners are subjected to a competition fromsources other than imports as well.
(ii) Domestic manufacturers control 96.34% of the market and the impact of different products made by thedomestic manufacturers is far more significant than the impact of imports.
(iii) The Authority has not considered factors other than dumping which would have caused injury to theDomestic Industry. The product is of mass usage in almost all households, commercial establishments,government offices, hospitals, colleges, etc. and that 400 submissions have been filed which arerepresenting the user interests. Designated Authority should follow some yardstick of a consideration of theinterest of domestic users.
25. VIEWS OF M/S NITCO TILES :
(i) The objective assessment of injury under Annexure II requires examination of volume of dumped imports,effect of dumped imports and the consequent impact of these imports on domestic producers. It alsorequires evaluation of 15 parameters spelt out in para (iv) of Anneuxre II. The Authority has evaluated only 6out of the 15 indicators. As per Article 3.4 of the Anti Dumping Agreement and the case of Bed Linen fromIndia, Panel on Mexico-HFCS , all 15 parameters need to be evaluated. Therefore examination of materialinjury to Domestic Industry is not objective.
(ii) The price undercutting and underselling are not the injury parameters listed in Para (iv) of Annexure II.(iii) It is factually incorrect that the Domestic Industry has lost market share due to imports from subjectcountries. The Authority appears to have held a view that the Domestic Industry has lost market share to anextent of 3.66%.
(iv) Imports of Vitrified Tiles was restricted till 1999-2000. Imports to an extent of of 3.66% market demandcannot be treated as significant for the material injury to Domestic Industry. Actually the petitioners companymarket share has increased from 51% to 65.8% in the period of investigation. The total demand increasedby 37.5% in 2000-2001 over 1999-2000 and the sales of the Petitioners Company increased by 76.1%. Theprofitability/ ROI analysis in the preliminary findings had not been attempted to analyze as to how theprofitability has changed after 1999-2000 to period of investigation especially when M/s SPL has also comeinto the market.
(v) The analysis that the landed values of imported products from China and UAE are substantially lower thanthe average selling price of injurious products and there is price undercutting, actually hides more than itreveals. The fact that the Domestic Industry has charged 2.34 times of the landed value of the importsshows that the landed value of imports has not caused any effect on the domestic pricing. The point at whichthe price undercutting is to be evaluated is not the landed value vis-à-vis the average selling price but theprice at which the imported goods are resold to the distributors vis-à-vis the average selling price of theindigenous industry.
(vi) The resale prices of M/s NITCO after importing from China is significantly higher than the landed value.
(vii) As per the calculations on the basis of the index figures, the price undercutting analysis shows that theDomestic Industry has actually been able to realise price higher than its NIP which implies a total absence ofmaterial injury.
(viii) As per the project report filed by M/s HRJ, the realisation has gone up in POI thereby implying no pricedepression and price suppression.
(ix) The standard of causal link analysis which has to be established by concluding that dumped imports mustbe a pre-dominant cause of injury has not been demonstrated.
(x) The Authority has not considered the factors other than dumping accordance with Para (v) of Annexure II.The fact of existence of M/s SPL in POI and effect of supply demand and price in the Domestic Industry hasnot been evaluated.
(xi) The CIF prices from other countries are also lower than the NIP of USD 13.62 per sq. metre which alsoneeds to be evaluated and the effect of imports from other sources should also be evaluated.
(xii) The Domestic Industry for the product Marbonite has four grades and the price difference between premiumgrade and other grades is quite significant. The investigation has been completely skewed because thecomparison and price undercutting and under selling have been based on one selling price of the DomesticIndustry and one NIP.
(xiii) The injury to the Domestic Industry is self-inflicted because of the inefficiencies and Authority may call forand examine for the last three years the ratio of production of premium and other qualities in order toevaluate whether the alleged injury is self-inflicted.
(xiv) From the submissions on material injury and causal link in Para 12 to Para 17, it is seen that none of thesubmissions deals with the specific points raised by us in regard to the absence of material injury and causallink. The submissions contain paras which are very general and do not address the specific issues raised byus during the public hearing.
26. VIEWS OF M/S RAK CERAMICS, UAE:
(i) The injury determination lacks objectivity which is necessary as per Annexure II of the Anti Dumping Rules.It is seen from the examination of Designated Authority that there is no price depression in the prices. In factthe prices have increased. There is non-fulfillment of obligation to provide evidence on model to model basisand also that the causal link is not established. The sales volume and sales value have increased over thetwo years for the Domestic Industry. The market share in terms of quantity has increased significantly for theDomestic Industry and the cash flow and employment has significantly increased. There is a position ofstrong profitability by the Domestic Industry which is evidence from the case of Murudeshwar Ceramics Ltd.There is no reason that bigger players like HR Johnson and SPL could suffer any losses. Hence, the causallink is not established between the alleged dumped imports and alleged injury.
(ii) RAK products are selling at higher prices than those of the comparable product of the Domestic Industry,which is evident from the analysis done and provided by RAK.
(iii) The competition triggers at the level of resale and the resale price in a consumer product which may havepositive or negative impact on the domestic prices. Conceptually and principally the resale price isequivalent to the landed value which is to be used for the purpose of determining price undercutting andunderselling margins. The Authority should also examine other known factors which could have had impacton the Domestic Industry viz. imports from other countries, increase in the costs and other costs includingproduction, inefficiencies and breakages etc.
27. VIEWS OF AL-KHALEEJ CERAMICS, UAE:
(i) The preliminary findings have failed to consider the various submissions made by the interested partiesparticularly the importers. The Authority in Para 19 of the preliminary findings has relied upon a non-injuriousselling price by considering the optimum cost of production but the factors of optimum cost and capacityutilisation are not explained in any manner in the preliminary findings.
(ii) The Authority has held in the findings that there is increased sales volume and value and has also held thatthe prices have been suppressed due to imports from China and UAE. The unit price realisation has alsogone up as indicated in preliminary findings but at the same time it states that there is suppression of prices.This is inconsistent and contradictory.
(iii) As regards injury, there are clear discrepancies viz. increase in unit price realisation needs to be examinedin the context of return on investment by the Domestic Industry. The sales volume of Domestic Industry havegone up and on the issue of profitability, the Authority has proceeded on the basis of that the DomesticIndustry as a whole has negative returns. In a situation where the Domestic Industry is selling above thenon-injurious price, i.e. USD 13.62 per square mt., there is no question of injury and causal link.
(iv) The issue of causal link is to be examined in terms of Para 5 of Annexure II of the Rules which are reflectiveof article 3.5 of the WTO Agreement. Such analysis has not been done in the present case.
28. EXAMINATION BY AUTHORITY:
(a) The Authority notes the submissions made by various interested parties regarding evaluating injury as perAnnexure 3.4 and evaluating 15 parameters of injury as also held in various Panel judgements of WTO. TheAuthority also notes that various interested parties have indicated that while Article 2.4 pertains to evaluation ofthe dumping margin ipso facto, it also implies that the price undercutting and underselling should also becalculated after appropriate categorisation of product under consideration. It has also been argued that one ofthe producers M/s Murudeshar Ceramics Ltd. is making huge profits and that there is no reason why the twoother domestic producers should not be making profits. Various excerpts from the Annual Reports have beencited indicating that the ceramic industry is in profits and that there is no injury caused to the domesticproducers. The Authority also notes that the submissions have been made regarding the opening up of theimports of vitrified tiles from 1.4.2000 onwards indicating that there is no history before to make anycomparison regarding increase in imports and therefore injury to the Domestic Industry on account of imports.
(b) As regards the inefficiencies in the production system of the Domestic Industry are concerned, the Authorityhas considered the methodology of normating the cost of production by benchmarking best utlisationpractice of capacity, raw materials and utilities for evaluating the Non-Injurious Price(NIP) for the DomesticIndustry.
(c) The Authority also notes that the submissions have been made regarding evaluating other factors likeimports from other countries, inefficiencies in the production system and low market share in demand of theimported tiles to be considered while evaluating the causal link. The Authority has considered these factorsas per Article 3.5 of the WTO and Para V of Annexure II of Anti Dumping Rules.
(d) Analysis of injury to the domestic industry has been done on the basis of the information available on recordand the verification done by the officials of the Directorate General of Anti-dumping & Allied Duties. Thefollowing parameters have been analyzed for the purpose of assessment of injury to the domestic industry:
(i) SALES VOLUME:
The domestic industry has claimed that the vitrified tiles industry is not very old in India. It was preciselywhen the industry was hoping to come out of the red in the last financial year, dumping from the subjectcountries resulted in increase in losses despite some improvement in sales volume over the last twoyears. The Authority notes that while there is an increase in the sales volume over the last two years,this increase is primarily on account of the additional capacities that had been created during thisperiod.
(ii) MARKET SHARE OF THE IMPORTS FROM CHINA AND UAE:
An examination of the import data for the subject goods would indicate that the imports (as a percent ofthe total imports) from the subject countries namely, China and UAE have gone up from NIL in theyears 1998-1999 and 1999-2000 to about 71% during the period of investigation.
| Year | Imports from subjectcountries (Sq mtrs.) | Total Imports(Sq mtrs.) | % share |
|---|
| 1998-99 | 0.00 | 121.00 | 0.00% |
| 1999-2000 | 0.00 | 8.22 | 0.00% |
| April 2000-March 2001 | 119570.00 | 169246.70 | 70.65% |
The Authority being aware that the imports of the subject goods were restricted in the years 1998-1999and 1999-2000, decided to carry out an inter se trend analysis within the period of investigation. Anexamination of the import figures indicates that the imports from the subject countries have risendrastically in the second half of the period of investigation as compared to the first half. Of the totalimports from the subject countries made during 2000-2001 i.e.. the period of investigation, only 6.42%came during the first half while 93.58% was imported in the second half. Thus, it is clear that the importsfrom the subject countries show an alarmingly increasing trend within the period of investigation. Thereis an increase of over fifteen times in imports in the second half as compared to the first half
of theperiod of investigation. The Authority notes that the total imports also show a similar trend over duringthe very first year of opening up of imports but the change is not as drastic and marked as in the case ofthe subject countries. The rate of growth of imports within the period of investigation is a sufficientindicator of injury to the domestic industry. This fact has also to be viewed in the context of theabnormally low prices from the subject countries.
(iii) MARKET SHARE OF IMPORTS FROM SUBJECT COUNTRIES (% OF TOTAL DEMAND):
The Authority has assessed the total demand in the country by adding the total imports to the sales ofthe entire domestic industry including the petitioners as well as other producers of the product underconsideration. The Authority notes that the imports from the subject countries could acquire a marketshare of 3.66% of the total demand in a very short period of one year. Considering that vitrified tiles arein the nature of consumer goods, a market share of 3.66% clearly constitutes a significant proportion. Ifonly the second half of the period of investigation is considered, the market share of dumped imports ismuch higher. Moreover, the share of imports from the subject countries could be much more as thecurrent estimates are only from select ports. Further, it is important to note that the imports from thesubject countries account for more than 70% of the total imports whereas the WTO Agreement as wellas the Indian law considers any import above 3% as significant.
| Year | Imports from subjectcountries (Sq mtrs) | Total Demand (Sq mtrs.) | % share |
|---|
| 1998-1999 | 0.00 | 1884870 | 0.00% | | 1999-2000 | 0.00 | 2372081 | 0.00% | | April 2000-Mar 2001 | 119570 | 3262558 | 3.66% |
(iv) PRODUCTION, OUTPUT & LOWER CAPACITY UTILIZATION
It has been stated by the domestic industry that the demand for the subject goods has grown in thecountry at a healthy rate and that its use over the conventional floor and wall coverings is steadilycatching up. It has further been claimed that despite the existence of a growing market, their losseshave gone up due to indiscriminate dumping by the subject countries. The Authority observes that thecapacity utilization by the domestic industry in terms of square meters has gone up over the years. Thedomestic industry has argued that the capacity utilization as a factor of injury can not be of muchsignificance in a product like vitrified tiles as the same would vary significantly depending upon theproduct mix of the tiles of different sizes being produced during a particular period. Thus, capacityutilization is not being considered as a valid indicator of the health of the industry for a product like tileswhere the installed capacity is also a variable depending upon various factors.
(v) SELLING PRICE/PROFITABILITY
The domestic industry has stated that they have made substantial investments and was trying toestablish itself in the last two to three years. It has further been argued that the incidence of dumping tosuch a large extent has inflicted considerable injury to the domestic industry and their losses haveincreased at a time when the domestic industry was hoping to get out of the loss making situation. TheAuthority notes that the domestic industry as a whole had negative returns on their investments.
(vi) PRICE UNDERCUTTING
It has been claimed by domestic industry that dumping by China and UAE has had a significant impacton the net sales realization by the domestic industry for the subject goods. The Authority notes that tohold on to its market share, the petitioners had to compete with low priced and dumped imports ofsubject goods from China & UAE. The landed value of the dumped imports also indicates that there isserious price under-cutting taking place to the extent of over ****% in case of China and over ****% incase of imports from UAE.
It has been argued by one of the importers that the examination of price undercutting is not proper. Ithas been stated that the fact that the domestic industry has charged 2.34 times the landed value ofimports shows that the landed value of imports had not caused any effect on the indigenous pricing. It isfurther claimed that there is no price undercutting as importers/distributors are selling the goods in Indiain retail at much higher prices and that the retail price should be considered for determining the extentof price undercutting. In this connection, it should be noted that the argument of the importer that thecomparison for the purpose of price undercutting should be the distributor level has no support of law orlogic. Price undercutting is to be seen in the context of the landed value of the imports and not the priceat which the goods are sold to the end-users. The Authority nevertheless has made the comparisons ofthe landed values with the ex-factory prices of the domestic industry, as per the consistent practicefollowed by the Designated Authority.
(vii) PRICE UNDERSELLING
The Authority has also examined the claim of the domestic industry that the domestic industry issuffering on account of losses or abnormally low return on their investments due to price undersellingresorted to by the exporters from subject countries. The Authority has worked out the Non-InjuriousPrice for the product under consideration and compared the same with the landed value to arrive at theextent of price underselling. The analysis shows a significant level of price underselling causing injury tothe domestic industry. Examination of the available evidence also shows that the domestic industry as awhole has suffered losses on its sales of vitrified tiles.
(viii) EVIDENCE OF LOST CONTRACTS
The complainant domestic industry tried its best to hold on to the customers and expand its market. Yetthe fact that 119570 sq. mtrs of dumped imports arrived into India during POI is adequate evidence thatit lost potential customers.
(ix) EMPLOYMENT & WAGES
The manpower strength has increased from 537 in 1999-2000 to 606 during the period of investigation.But this increase has to be seen in the context of the additional capacities that had been created duringthis period. There was no impact on wages as it is not feasible under the existing situation to vary thewages in line with the financial performance of the company.
(x) INVENTORIES
Analysis of the stocks show that there is an increase in stocks to the extent of about 14% at the end ofthe year 2000-2001 as compared to the previous year.
(xi) PRODUCTIVITY & GROWTH:
The demand for the subject goods is showing a healthy growth and decline in demand is not a factor ofinjury to the domestic industry. However, the petitioners have lost market share. It may be noted thatimports from subject countries in a relatively short period time have been able to capture as high as3.66% of the total demand. There is no direct impact shown by the domestic industry on labourproductivity but the productivity of capital is under pressure as is revealed from the losses incurred bythe domestic industry.
(xii) RETURN ON INVESTMENT (CAPITAL EMPLOYED)
Due to severe underselling by the subject countries, the petitioner companies were operating at a loss.Thus the Return on Investments were negative.
(xiii) CASH FLOWS & ABILITY TO RAISE CAPITAL OR INVESTMENTS
All the petitioner companies are multi-product companies and it would not be feasible to judge the abilityto raise capital as it is a company specific function and not related to the performance of any particularproduct.. The cash flows on account of vitrified tiles business is obviously under pressure as there aredirect losses in this business. The domestic industry has also claimed that with the present state offinancial losses, it would not be feasible for them to make any further investments in this business.
29. In considering the effect of the dumped imports on prices, it is considered necessary to examine whether therehas been a significant price undercutting by the dumped imports as compared with the price of the like productin India, or whether the effect of such imports is otherwise to depress prices to a significant degree. For theexamination of the impact on the domestic industry in India, the Authority considered such further indiceshaving a bearing on the state of industry as production, sales, stock, profitability, net sales realisation etc. Onexamination of the evidence, it has been found there has been a sharp price undercutting. Domestic Industry isprevented from utilising its present capacity and capacity utilisation is very low. However, the most significantparameter evidencing injury is the price undercutting as per the evidence available with the Authority. The rateof increase of imports within the period of investigation especially the corresponding fall in the sales realizationof the domestic industry are the parameters clearly showing the injury being suffered by the domestic industry.On the basis of the evidence available before the Authority, it is determined that the domestic industry hassuffered injury.
G. CAUSAL LINK:
30. In determining whether injury (material/threat/material retardation) to the domestic industry was caused by thedumped imports, the Authority took into account the following facts: -
(i) Imports of subject goods from UAE and China PR at dumped prices forced the domestic industry to reduceits selling prices to un-remunerative level, which has resulted in a situation of price undercutting in the Indianmarket.
(ii) The imports from China PR and UAE suppressed the prices of the product in the Indian market to such anextent that the domestic industry was prevented from recovering its full cost of production and earn areasonable profit from the sale of subject goods in India.
31. The Authority, therefore, notes from the above that the imports from the subject countries have been at a price below the selling price of the domestic industry. Further, the imports into India have been at a price lower than the non-injurious price for the Domestic Industry. As a consequence thereof the Domestic Industry is sufferingfinancial losses. The petitioner was also prevented from attaining a reasonable level of capacity utilisation.These parameters collectively and cumulatively indicate that the petitioner has suffered material injury due tothe dumped imports.
H. INDIAN INDUSTRY'S INTEREST:
32. The purpose of anti dumping duties in general is to eliminate dumping which is causing injury to the domesticindustry and to re-establish a situation of open and fair competition in the Indian market, which is in the generalinterest of the country.
33. The Authority recognizes that the imposition of anti dumping duties might affect the price levels of the products manufactured using subject goods and consequently might have some influence on relative competitiveness of these products. However, fair competition on the Indian market will not be reduced by the anti dumping measures. On the contrary, imposition of anti dumping measures would remove the unfair advantages gained by dumping practices, would prevent the decline of the domestic industry and help maintain availability of wider choice to the consumers of subject goods.
34. The Authority notes that the imposition of anti dumping measures would not restrict imports from China PR andUAE in any way, and therefore, would not affect the availability of the product to the consumers. The consumerscould still maintain two or even more sources of supply.
I. CONCLUSIONS:
35. The Authority has, after considering the foregoing, come to the conclusion that:
(i) Vitrified/ Porcelain Tiles have been exported to India from UAE and China PR below its normal valueresulting in dumping;
(ii) The Indian industry has suffered material injury;
(iii) The injury has been caused cumulatively by the imports from the subject countries.
36. The Authority considers it necessary to impose anti dumping duty on all imports of Vitrified/ Porcelain Tiles fromsubject countries in order to remove the injury to the domestic industry. The margin of dumping determined bythe Authority is indicated in the paragraphs above. The Authority recommends the amount of anti dumping dutyequal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry. For thepurpose of determining injury, the landed value of imports is compared with the weighted average non-injuriousprice of the Petitioner Companies determined for the period of investigation.
Accordingly, the Authority recommends that definitive anti dumping duties as set out below be imposed from thedate of notification to be issued in this regard by the Central Government on all imports of subject goods i.e.,Vitrified/ Porcelain Tiles, as described in para 6 above and falling under Chapter 69 of the Customs Tariff,originating in or exported from subject countries. The anti dumping duty shall be equal to the amount mentionedin column 3 on all exporters/manufacturers from the countries named in column 2 of the table below:-
SI.No.
(1) | Countries/exporters
(2) | Amount of Duty US $/Sq. metre
(3) |
|---|
| 1. | China P.R.
All exporters/producers |
8.28 | | 2. | UAE
1. M/s RAK Ceramics
2. All other exporters/producers |
0.74
5.54 |
|---|
37. Landed value of imports for the purpose shall be the assessable value as determined by the Customs under theCustoms Act, 1962 and all duties of customs except duties under sections 3, 3A, 8B, 9 and 9A of the CustomsTariff Act, 1975.
38. Subject to the above, the Authority confirms the Preliminary Findings dated 3rd December. 2001.
39. An appeal against this order shall lie before the Customs, Excise and Gold (Control) Appellate Tribunal inaccordance with the Act, supra.
Sd/-
(L.V. Saptharishi)
Designated Authority
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