Full Judgment Text & Judicial Ruling

2018 P T D (Trib.) 1831 [Anti-Dumping Appellate Tribunal] Before Mian Fasih Ul Mulk, Chairman and Ahmed Owais Pirzada, Member Messrs SIDDIQSONS TINPLATE LTD. Versus NATIONAL TARIFF COMMISSION and 2 others Appeal No.103 of 2017, decided on 16th November, 2017. Anti-Dumping Duties Act (XIV of 2015)--- ----Ss. 18, 20, 23, 24, 27, 37, 39, 43 & 70---Anti-Dumping Duties Rules, 2001, R.7---Importing/dumping goods causing material injury to the domestic industry---Investigation for said dumping and injury---Imposition of anti-dumping duty---Respondent claimed to be the domestic manufacturer and moved application before 'National Tariff Commission' (NTC) to the effect that imported goods were being dumped in Pakistan, thereby causing material injury to the domestic industry---National Tarrif Commission, after investigation, found sufficient evidence of alleged dumping of goods in question and injury being caused to the domestic industry---Commission, after making final determination, concluded that imposition of anti-dumping duty was needed to prevent material injury being caused to domestic industry---Appellant had contended that provisional anti-dumping duty was imposed, without affording adequate hearing---National Tarrif Commission stated that ample opportunity was provided to all the parties including the appellant in accordance with rules and Anti-Dumping Law and plea of the appellant that preliminary determination was made without affording adequate hearing to the appellant, was not tenable---Appellant further contended that goods in question were two different products and were not liable to anti-dumping duties---No reason existed to accept that said goods were as two different products, especially when both were capable of serving the same purpose or similar end uses having their identical practical utility---Appellant also contended that manufacturers, were of not being capable of producing the goods in question---Manufacturer were not only capable of producing the goods of the specification required by the appellant/importer, but also produced and supplied the same to their Customers including to the appellant in commercial quantity---Said position was not only supported by the sale invoices provided by the respondents to the National Tarrif Commission and the Tribunal, but was also affirmed during Commission's team, on the spot investigation---No reason existed to accept the stance of the appellant that the domestic industry was not capable of manufacturing the goods of required thickness---Contention of the appellant that the dumped product was identical as the same was classified under one PCT headings, was not understandable---National Tarrif Commission in its detailed investigations, took into account various aspects of the case on the basis of the information collected in that behalf---Before imposing even provisional duty for only four months period, the Commission first ensured that goods produced by the domestic industry and imported were comparable in terms of physical and chemical characteristics, products' specifications, chemical formulation and usage and tariff classification of the goods etc.---Investigated product and domestic like products were technically and commercially identical---Anti-dumping duties were imposed on the basis of detailed investigation carried out by the Commission---Creation of separate PCT sub-heading for goods would not be having any impact with reference to levy of anti-dumping duty on the dumping products involved in the matter---Plea of the appellant that separate PCT Heading of goods could affect the outcome of investigation carried out by Commission had no substance---Issues raised by the appellant in its appeal before the Tribunal did not warrant any interference in the final determination report issued by the National Tariff Commission (NTC) in the matter---Appeal being devoid of merits was dismissed, in circumstances. Najeeb ur Rehman Abbasi for Appellant. Ahmed Sheraz, Chief Legal Advisor, NTC for Respondent No.1. Saif Ullah Khan for Respondents Nos.2 and 3. Dates of hearing: 12th, 19th October and 3rd November, 2017. JUDGMENT AHMED OWAIS PIRZADA, MEMBER.---This judgment disposes of the appeal under section 70 of the Anti-Dumping Duties Act, 2015, filed by Messrs Siddiqsons Tinplates Ltd., against notice of final determination report dated 19.01.2017 and levy of definitive Anti-dumping duties on dumped imports of Cold Rolled Coils / Sheets into Pakistan originating in and / or Exported from the People Republic of China and Ukraine. 2. Facts of this matter gleaned from record, briefly stated, are that the National Tariff Commission (hereafter to be referred to as "The Commission"), received an application on 11.06.2015 under section 20 of the Anti-Dumping Duties Ordinance, 2000 from Messrs Aisha Steel Mills Limited, Karachi, respondent No.2 herein, claiming itself to be the domestic manufacturer of the Tinplates producing Cold Rolled Coils / Sheets (the investigated product). The applicant stated, in brief, that the imported quantities originated in and/or exported from exporting countries namely People's Republic of China and Ukraine (hereafter to be referred to as "the exporting countries") were being dumped in Pakistan and thereby the same caused material injury to the domestic industry producing "Domestic like product". The investigated product involved herein is with thickness of 0.15 - 2.50 mm. The Commission initiated anti-dumping investigation on 16.07.2015 on the afore-mentioned application within terms of section 23 of the Ordinance and set the period of investigation for the dumping and the injury, as follows:- For determination of dumping: 01.04.2015 to 31.03.2015 For determination of injury: 01.04.2012 to 31.03.2015 3. The Commission made Preliminary Determination order on 13.01.2016 under section 37 of the Act, aggrieved there-against, imposing provisional anti-dumping duty on the investigated product. Further, the Commission in pursuance of section 39 ibid issued Final Determination Report on 13.01.2017, impugned herein, concluded that it was needed to prevent injury being caused to the domestic industry in accordance with section 43 of the Anti-Dumping Duties Act. 4. Being aggrieved, the appellant preferred instant appeal under section 70 of the Anti-dumping Act, 2015 on the following grounds:-- i) The provisional anti-dumping duty was imposed without affording adequate hearing to the appellant. ii Other factors, mentioned in the impugned order, were neither explained nor mentioned as to how the same could not apply to the case in hand. iii) The product imported by appellant was not like the one in question before the respondent No-1. iv) Tin Mill Black Plate Coils / Specific Cold Rolled Coils suitable for tinning of 0.30 mm thickness and lower were not produced locally, therefore, not liable to anti-dumping duties. v) The finding of the respondent that both the distinct products were classified under one of the PCT (sic). vi) The fact that Messrs Aisha Steel Mills Ltd was not producing Tin Mill Black Plate Coils / Specific Cold Rolled Coils suitable for tinning of 0.30 mm thickness or lower was acknowledged by the representative of Messrs Aisha Steel Mills during his presence in the hearing, which was further ratified by their attorney as well during the said proceedings. In this regard a confirmatory letter was sent to the respondent and no rebuttal was ever received. vii) The decision was taken not on the basis of proceedings, held during the final hearing but on the basis of some afterthought / reconsideration best known to respondent No.1. It has been prayed that the Hon'ble Tribunal may set-aside the impugned order for levy of Anti-dumping duty on appellant's import. 5. In the comments on behalf of respondent No.1, it was stated that the application under sections 20 and 24 of the Anti-Dumping Duties Act, 2015 was received from Messrs Aisha Steel Mills Ltd which was examined by the Commission in accordance with section 23 of the Act and it was found that there was sufficient evidence of alleged dumping of Cold Rolled Coils/Sheets into Pakistan from the exporting countries, causing material injury to the domestic industries. Accordingly, the notice was issued under section 27 of the Act to initiate investigation. The Commission made a preliminary determination in its investigation on January 13th, 2016 in terms of section 37 of the Act. In pursuance of section 39 of the Act, the Commission made final determination on 13th January, 2017, concluding that imposition of anti-dumping duty was needed to prevent material injury being caused to the domestic industry in accordance with section 43 of the Act. It was stated in the comments that the Commission established that the investigated product was Cold Rolled Coils / Sheets or primary and secondary quality with the thickness of 0.15-2.50 mm and width of above 600 mm, which the respondent No.2 was manufacturing. It was stated that after publication of notice of preliminary determination, the Commission held hearing on 18th October, 2016 which was attended by the interested parties and the Commission kept the record of hearing on public file, maintained in this behalf. During the hearing, the applicant and International Steel Industry Ltd not only claimed that the domestic industry had capability to produce the thickness ranging from 0.15 - 0.30 mm but they had also produced and sold the same to its customers including Messrs Siddiqsons Tinplates Ltd. The final determination was made after considering views and comments from the interested parties including Messrs Siddiqsons Tinplates Ltd. It was further stated that Aisha Steel Mills Ltd. clarified its position by writing a letter to the Commission on November 18th, 2016 that confirmation by the representative of the applicant with regard to its inability to produce the investigated product was the result of some misunderstanding. It was further clarified that the domestic Industry not only had the capability to produce dumped products but also producing and selling it to its customers including Messrs Siddiqsons Tinplates Ltd. Evidence in this regard was also submitted before the Commission. The investigation team of the Commission also conducted On-the-Spot investigation at the office of the applicant and verified the sales figure which showed that Messrs Siddiqsons Tinplates Ltd was one of their main customers of CR Coils of less than 0.30 mm thickness. It was stated in the comments that in accordance with section 18(2) of the Act, the Commission also examined factors other than dumped import of the investigated products which could at the same time cause material injury to the domestic industry. Finally after due consideration, the Commission concluded that the domestic industry did not suffer material injury due to the imports of CR Coils / Sheets from sources other than dumped sources during the period of investigation. 6. In the written comments submitted by Respondents Nos. 2 and 3, it was stated that mere assertion by the appellant that the respondent No.2 did not manufacture the required type of CRC as was used by Messrs Siddiqsons Tinplates Ltd., was not an evidence. Both respondents Nos. 2 and 3 produced Cold Rolled Coils of thickness of less than 0.30 mm and copies of invoices for their sales made to Messrs Siddiqsons Tinplates Ltd., during the period of investigation were provided to the Commission. It was added that the investigation team of NTC, during their On-the-Spot investigation, also confirmed the aforesaid position that Messrs Siddiqsons Tinplates Ltd., was one of their main customers of CR Coils of less than 0.30 mm thickness. It was further stated that due opportunity of hearing was provided to the appellant by the NTC during the anti-dumping proceedings. Statement of Essential Facts was also provided to all the interested parties including the appellant before the final determination, the comments added. It was clarified in the comments that other factors identified in section 18(3) of the Act were duly considered by the Commission in order to ensure the possibility of injury to be caused by other factors. The Commission however concluded that:-- i. The domestic industry did not export, therefore, there is no effect on export performance and productivity of the domestic industry. ii. There was no change in trade restrictive practices and competition between foreign producers other than producers from the Exporting Countries and domestic producers; and iii. There is no considerable change in technology. It was, therefore, concluded that the domestic industry did not suffer any material injury due to other factors. 7. It was mentioned in the comments that the product imported by the appellant in the form of CRC was the same as was being produced by the domestic industry. Moreover, it was submitted that the Commission after detailed investigation and hearing the parties rightly determined that the investigated product and the domestic product were like products meaning thereby that product being dumped into Pakistan ranging from 0.15 mm - 2.5 mm was being produced by the domestic industry. In these circumstances, plea of the appellant regarding exclusion of CRC, ranging from 0.15 - 0.30 mm from the scope of investigated product was not justified. It was stated that in response to the appellant's letter addressed to the Commission to exclude the CRC of thickness less than 0.5 mm, the Respondent No.2 wrote a detailed letter to the Commission with the supporting evidence in the form of sales invoices and proved that not only the domestic industry had capacity and capability to produce required specification of the appellant but had also sold such product to the appellant in commercial quantity at different point in time. It was observed that the appellant kept on changing its stance on the thickness of the CRC just to confuse the authorities. 8. While arguing, the learned counsel for the appellant stated that during the public hearing it was submitted by Messrs Aisha Steel Mills that they are not manufacturing the sizes such as 0.14 mm to 0.34 mm which were imported by Messrs Siddiqsons Tinplates Ltd. After public hearing, a confirmatory letter in this regard was sent to NTC by Messrs Siddiqsons Tinplates Ltd. Later on anti-dumping duty was slapped by NTC on 19th January, 2017 through a public notice even on sizes which were not manufactured by Messrs Aisha Steel Mills Ltd., and International Steel Mills Ltd. It was further stated that several attempts to purchase TMBP from Messrs International Steel Mills Ltd., were made but they could not supply the raw material as was evident from International Steel Mill's e-mail placed on record. It was mentioned that NTC was aware of the fact that Messrs International Steel Mills Ltd., and Messrs Aisha Steel Mills Ltd., were not capable of manufacturing/ supplying TMBP/imported by Messrs Siddiqsons Tinplates Ltd., and that was the reason that they wrote a letter to FBR to notify separate PCT headings of TMBP and CRC. It was stated that splitting one PCT heading for the purpose of anti-dumping duty was nothing new. NTC had done it in the past in the case of BOPP Films and it could be done for TMBP and CRC as well. Discussing burden of proof, the learned counsel for the appellant submitted that it lied with Messrs Aisha Steel Mills and Messrs International Steel Mills Ltd., to prove that TMBP of the size from 0.14 mm to 0.3 mm were being manufactured by them in sufficient quantity to get anti-dumping duty slapped on imports of TMBP. The Learned counsel stated that even TMBP imported and used by Messrs Siddiqsons Tinplates Ltd., was not incorporated in the list of Custom General Order No-02/2017 dated 19th April, 2017. The learned counsel also furnished a copy of the Annual Report of Messrs International Steel Mills Ltd, referring its page No-18, wherein it was mentioned that Cold Rolled Steel manufactured by ISL was available in thicknesses ranging from 0.25 mm to 3.0 mm and was offered in a maximum width of 1250 mm. The learned counsel finally submitted that the Hon'ble Tribunal might graciously suspend the notification remanding the case to the National Tariff Commission with the direction that through any public sector Agency following two aspects be ascertained:-- i) Whether Messrs Aisha Steel Mills and Messrs International steel are capable of manufacturing TMBP of the sizes such as 0.14mm to 0.34 mm. ii) Whether their existing production capacity utilization can meet the requirement of Siddiqsons. 9. The learned counsel for respondents Nos.2 and 3 during the course of arguments provided summaries of the material, sold to the Siddiqsons Tinplates Ltd as an evidence of production of CRC of thickness 0.3 mm or below. It was stated that the invoices in this regard which were also provided to NTC clearly showed that both respondents Nos.02 and 03, produced and sold CRC of thickness less than 0.3 mm and M/s Siddiqsons Tinplate was one of the recipient of their product during the last three years. It was submitted that during the course of investigation conducted by NTC, the appellant had been claiming that both the respondents (domestic industry) were not producing CRC of 0.5 mm thickness (letter dated August 17, 2015 placed at page No. 124 of reply of memo of appeal by private respondents). However, during the hearing held in NTC the appellant changed its stance and started arguing that the domestic industry was not producing CRC of thickness 0.3 mm or below. The learned counsel further stated that lately during hearing before the Tribunal the appellant raised an argument that respondents Nos.2 and 3 were not producing CRC / TMBP below 0.23 mm, which was not mentioned before the NTC previously. In response to the plea taken by the appellant that during the hearing the representative of the respondent confirmed that domestic industry were not producing CRC thickness of 0.30 mm. The learned counsel for the respondents referred to the letter, submitted to the Commission clarifying that not only Messrs Aisha Steel Mills Ltd., had the capability to produce TMBP as per the specifications required by Messrs Siddiqsons Tinplates Ltd., but the Messrs Aisha Steel Mills Ltd., had already sold the same product to Messrs Siddiqsons Tinplates Ltd., and other units in the local market. The learned counsel took the plea that Statement of Essential Facts was not the final document, the Commission provided time of 15 days to file comments / input if any, to all the interested parties in this behalf upon issuance of the Statement of Essential Facts. In its final determination report the Commission noted that domestic industry was not only capable of producing the thickness ranging from 0.15 mm to 0.3 mm but had also sold such product to its customers including Messrs Siddiqsons Tinplates Ltd. It was mentioned that the appellant was free to import CRC from sources other than China and Ukraine without payment of anti-dumping duties. Clarifying the position with regard to the difference between TMBP and CRC, the learned counsel for the respondents submitted that Internationally TMBP was also known as CRC. In this regard, the learned counsel provided chemical composition report of Japanese Industrial Standard (JIS) on Cold-reduced Carbon Steel Sheets and Strips and EDB certificates, showing that there was no difference between TMBP and CRC. Even one of the world's largest steel producer, Arcelormittal also categorized TMBP as CRC or Cold-reduced Steel for which the learned counsel provided an extract from the website of Arcelormittal. The learned counsel stated that the respondents also provided Mill Test Certificate of POSCO for matching specification before supplying Trial Lot to ensure supply of quality material. Learned counsel also referred to Customs General Order (CGO) 02/2017 dated 19th April 2017, wherein PCT number- 7209.180, 7209.1810 and 7209.1890 at Sr. Nos. 270 and 271 mentioned Cold Rolled Coils of Thickness of less than 0.5 mm. As per this CGO, the respondent No-3 was the registered / certified producer of CRC of thickness less than 0.5 mm. On this very ground the learned counsel stated that the Hon'ble Tribunal could not pass any adverse order against the respondents. The learned counsel further stated that TMBP was not mentioned in the CGO and the appellant itself imported CRC and also purchased CRC from the domestic industry for Tinning process which means that the TMBP and CRC was interchangeable product. Learned counsel argued with regard to the scope of anti-dumping investigation that anti-dumping investigation was of Cold Rolled Coils sheets of thickness ranging from 0.15 - 2.50 mm. The NTC carried out on-the-spot verification of the foreign producers / exporters of CRC in the exporting countries and weighted average export price of CRC of thickness of 0.15 mm -2.50 mm from their data. The NTC also determined weighted average normal value of CRC of the same thicknesses from their data as well and calculated the dumping margin. Hence at this stage, reviewing this whole exercise to get out certain thickness of CRC / TMBP from the scope of anti-dumping duties would not be appropriate. The learned counsel further submitted that there was no such provision in the Anti-Dumping Duties Act to get such investigation done by any agency other than NTC. The learned counsel submitted that accepting the plea to change the position came out of the investigation carried out by the NTC would neither be legal nor appropriate. Referring the letter written by NTC to the FBR, the learned counsel stated that the said change would not be having any impact on levy of anti-dumping duty. 10. The learned counsel for NTC (respondent No-1) while responding to the points, raised by counsel for the appellant and respondents Nos. 2 and 3 stated that the investigated product was Cold Rolled Coils / Sheets of primary and secondary quality with a thickness of 0.15 mm 2.50 mm and width of above 600 mm. It was stated that the domestic industry proved through their invoices of sales and transactions, requesting the Commission to impose definitive anti-dumping duty on TMBP / Cold Rolled Coils / Sheets of thickness ranging from 0.15 mm - 2.50 mm by ignoring false claims made by Siddiqson Tinplates Ltd. The learned counsel further stated that the misunderstanding created by the representative of Aisha Steel Mills Ltd that domestic industry could not produce such product was later clarified by Aisha Steel Mills Ltd by writing a letter dated 11th November, 2016 to NTC. The learned counsel submitted that the NTC carried out the whole investigation very carefully, completing all codal / legal formalities. It was further stated that in order to verify information data provided by the applicant (domestic industry) and to obtain further information (if any), officers of the Commission conducted On-the-Spot investigation at the offices of exporters and local manufacturers. It was submitted that the Commission maintained a public file under rule 7 of the Anti-dumping Duties Rules, 2001 to maintain record of the non confidential version of the application, responses to the questionnaires, submissions, notices, correspondence and other documents for disclosure to the interested parties. It was stated by the learned counsel that after having gone through the data / information provided by 13 exporters / producers, it was concluded by the NTC that during the said period of investigation, the said product was being dumped and after completing all legal formalities, anti-dumping duty was imposed on the investigated product. 11. After going through the appeal, comments of the respondents and other documents provided by the parties and hearing their counsel, we reached to the conclusion that the following issues emerged out of this appeal for consideration:-- i) Whether hearing opportunity was duly provided to the appellant during the proceedings in the NTC? ii) Whether there is a difference between TMBP and CRC? iii) Whether the domestic industry has been producing TMBP / Cold Rolled Coils ranging from 0.15 to 2.5 mm? iv) Whether the separate PCT code for TMBP could be helpful to refrain from levying of anti-dumping duty? The aforesaid issues were examined one by one in detail, summary of which is given as under. 12. The appellant stated in its appeal that the respondent No.1, initiated an anti-dumping investigation on 16th August, 2015 under section 23 of the Anti-dumping Duties Ordinance, 2000 after receiving an application under section 20 of the aforesaid Ordinance on 11th June 2015, lodged by Aisha Steel Mills Ltd., on behalf of domestic industry producing Cold Rolled Coils/Sheets (CRC). Accordingly, it was concluded that the product under investigation was being dumped in Pakistan Market and consequently a provisional Anti-dumping duty was…

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