Full Text
REGD. No. D. L.-33004/99
THE GAZETTE OF INDIA
EXTRAORDINARY
PART I—Section 1
PUBLISHED BY AUTHORITY
No. 86]
NEW DELHI, THURSDAY, MARCH 28, 2024/CHAITRA 8, 1946
CG-DL-E-05042024-253510
2340 GI/2024 (1)
MINISTRY OF COMMERCE AND INDUSTRY
(Department of Commerce)
(DIRECTORATE GENERAL OF TRADE REMEDIES)
FINAL FINDINGS
New Delhi, the 28th March 2024
Case No. AD (OI)-03/2023
Subject: Anti-dumping investigation concerning imports of 'Sodium Cyanide (NaCN) originating in or exported from
China PR, European Union, Japan and Korea RP.
F. No. 6/03/2023-DGTR.—Having regard to the Customs Tariff Act, 1975, as amended from time to time
(hereafter also referred to as “the Act”) and the Customs Tariff (Identification, Assessment and Collection of Anti-
Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 thereof, as amended from time to
time (hereinafter referred to as “AD Rules”);
BACKGROUND OF THE CASE
1. Hindusthan Chemical Company (HCC) and UPL Limited (UPL) (“hereinafter referred to as the ‘applicants’ or
the ‘domestic industry’) filed an application before the Designated Authority (hereinafter referred to as the
‘Authority’) in accordance with the Customs Tariff Act, 1975 (hereinafter referred to as the ‘Act’) and the
Anti-Dumping Rules, 1995 (hereinafter referred to as the ‘Rules’) for the initiation of an anti-dumping
investigation concerning imports of “Sodium Cyanide (NaCN)” (hereinafter also referred to as the ‘product
under consideration’ or the ‘PUC’, or the ‘subject goods’) from China PR, European Union, Japan and Korea
RP (hereinafter also referred to as the ‘subject countries’).
2. The Authority, on the basis of sufficient prima-facie evidence submitted by the applicants, issued a public
notice vide Notification No. 6/03/2023-DGTR dated 31st March, 2023, published in the Gazette of India –
Extraordinary, initiating the subject investigation in accordance with the Section 9A of the Act read with Rule
5 of the Rules to determine the existence, degree and effect of the alleged dumping of the subject goods
originating in or exported from the subject countries and to recommend the amount of anti-dumping duty,
which if levied, would be adequate to remove the alleged injury to the domestic injury.
PROCEDURE
3. The procedure described below has been followed with regard to the subject investigation:
i. The Authority notified the embassies of the subject countries in India about the receipt of the present anti-
dumping application before proceeding to initiate the investigation in accordance with Rule 5(5) of Rules.
ii. The Authority issued a public notice dated 31st March 2023 published in the Gazette of India –
Extraordinary, initiating the anti-dumping investigation concerning imports of the subject goods from the
subject countries.
iii. The Authority sent a copy of the initiation notification dated 31st March 2023 to the embassies of the
subject countries in India, the known producers and exporters from the subject countries, the known
importers/users in India, and the other interested parties, as per the details made available by the
applicants. The interested parties were requested to provide relevant information in the form and manner
prescribed in the initiation notification and make their submissions in writing within the time limits
prescribed in the initiation notification.
iv. The Authority provided a copy of the non-confidential version of the application to the known
producers/exporters and to the embassies of the subject countries in India in accordance with Rule 6(3) of
the Rules.
v. The embassies of the subject countries were sent a copy of the letter and questionnaire sent to the
producers/exporters with the request to advise the exporters/producers from their respective subject
countries to submit their responses to the questionnaire within the time limit prescribed by the initiation
notification.
vi. The interested parties were granted an opportunity to present their comments on the scope of the PUC and
propose product control numbers (PCNs), if required, within a period of 15 days from the date of the
circulation of the non-confidential application.
vii. The Authority also issued an economic interest questionnaire (hereafter referred to as ‘EIQ’) to the
interested parties including the Department of Chemicals & Petrochemicals seeking inputs on the
economic impact of the proposed duties.
viii. The Authority sent questionnaires to the following known producers/exporters from the subject countries,
whose contact details were provided by the domestic industry in the application, in accordance with Rule
6(4) of the Rules.
+-------+------------------+-------------------------------------------------+
| S. No. | Country | Producer/Exporter |
+=======+==================+=================================================+
| 1 | China PR | i. Hebei Chengxin Co. Ltd. |
| | | ii. Zhejiang Chemicals Import and Export. |
| | | iii. JSM (Shenzhen) Enterprise Company Limited. |
| | | iv. Asambly Chemicals Company Limited. |
| | | v. Anhui Anquing Shunchuang Chemical. |
+-------+------------------+-------------------------------------------------+
| 2 | European Union | i. Cyplus Gmbh (Evonik Subsidiary) |
| | | ii. Evonik Industries Ag |
| | | iii. Draslovka Holding B.V. |
| | | iv. Union Group Chemical Company S. L. |
+-------+------------------+-------------------------------------------------+
| 3 | Japan | i. Sojitz Corporation |
+-------+------------------+-------------------------------------------------+
| 4 | Korea RP | i. Hanwha Corporation |
| | | ii. Unid Global Corporation |
| | | iii. Dk Metal World Ltd. |
+-------+------------------+-------------------------------------------------+
ix. In response to the above notification, the following producers/exporters of the product under
consideration from the subject countries have registered as an interested party.
+-------+------------------+-----------------------------------------+
| S. No. | Country | Producer/Exporter |
+=======+==================+=========================================+
| 1 | China PR | i. Hebei Chengxin Co. Ltd |
+-------+------------------+-----------------------------------------+
| 2 | European Union | i. CyPlus GmbH |
| | | ii. Lučební závody Draslovka a.s. Kolín |
+-------+------------------+-----------------------------------------+
| 3 | Japan | ii. Nippon Soda Co. Ltd. |
| | | iii. Sojitz Corporation |
+-------+------------------+-----------------------------------------+
| 4 | Korea RP | i. Taekwang Industrial Co. Ltd |
+-------+------------------+-----------------------------------------+
x. The producers/exporters from the subject countries who have not submitted the questionnaire response or
have not cooperated in the investigation have been treated as non – cooperative in the investigation.
xi. The Authority also sent questionnaires to the following known importers/users of the product under
consideration in India calling for necessary information in accordance with Rule 6(4) of the Rules.
+-------+----------------------------------------------+
| S. No. | Importers/Users |
+=======+==============================================+
| 1. | Arshiya Logistics Service Limited |
| 2. | Ascent Finchem Private Limited |
| 3. | Ashoka Meta Chem Industries |
| 4. | Asian Chemtech Private Limited |
| 5. | Benzo Chem Industries Private Limited |
| 6. | Bharat Rasayan Limited |
| 7. | Chemplast Sanmar Limited |
| 8. | Chemtech Intermediates Private Limited |
| 9. | DCM Shriram Industries Limited |
| 10. | Deccan Fine Chemicals (India) Private Limited |
| 11. | Divis Laboratories Limited |
| 12. | Emmennar Pharma Private Limited |
| 13. | Eurofine Chemicals |
| 14. | Gharda Chemicals Limited |
| 15. | Grauer & Weil (I) Limited |
| 16. | Hemani Industries Limited |
| 17. | Heranba Industries Limited |
| 18. | Hikal Limited |
| 19. | Hindustan Zinc Limited |
| 20. | Honour Lab Limited |
| 21. | Inventys Research Company Limited |
| 22. | Jaggo Overseas |
| 23. | M.B. Sales Corporation |
| 24. | Mahavir Expochem Limited |
| 25. | Meghmani Organics Limited |
| 26. | Premier Intermediates Private Limited |
| 27. | Rathoure Trading Company |
| 28. | Sabari Chemicals Private Limited |
| 29. | Sanjay Chemicals (I) Private Limited |
| 30. | Shree Ganesh Chemicals |
| 31. | Shyamal Chemical Industries |
| 32. | Tagros Chemicals India Private Limited |
| 33. | Techno Commercial traders |
| 34. | Teva Api India Private Limited |
| 35. | Yamuna Meta Chem |
+-------+----------------------------------------------+
xii. The following importers/users of the product under consideration in India have registered as an
interested party in the present investigation.
+-------+-------------------------------------+
| S. No. | Importer/User |
+=======+=====================================+
| 1 | Asian Chemtech Private Limited |
| 2 | Bharat Rasayan Limited |
| 3 | Chemtech Intermediates Private Limited |
| 4 | DCM Shriram Industries Limited |
| 5 | Eurofine Chemicals Limited |
| 6 | Emmennar Pharma Private Limited |
| 7 | Hemani Industries Limited |
| 8 | M B Sales Corporation |
| 9 | Meghmani Organics Limited |
| 10 | Premier Intermediates Private Limited |
+-------+-------------------------------------+
xiii. The Directorate General of Commercial Intelligence and Statistics (DGCI&S) was requested to provide
transaction-wise details of the imports of the subject goods for the injury investigation period and the
period of investigation. The Authority has relied upon the same for the subject investigation.
xiv. The period of investigation (POI) for the purpose of the present investigation is 1st October 2021 to 30th
September 2022 (12 months). The injury analysis period covers 1st April 2019 to 31st March 2020, 1st
April 2020 to 31st March 2021, 1st April 2021 to 31st March 2022 and the period of investigation (POI).
xv. In accordance with Rule 6(6) of the Rules, the Authority provided an opportunity to the interested parties
to present their views orally regarding the subject investigation through a public hearing held on 7th
December 2023. The interested parties who presented their views in the oral hearing, were requested to
file written submissions of the views expressed orally, followed by rejoinder submissions, if any. The
interested parties were further directed to share the non-confidential version of the written submissions
submitted by them with the other interested parties.
xvi. The non-injurious price (hereinafter referred to as the ‘NIP’) has been determined based on the cost of
production and reasonable profits of the goods in India, based on the information furnished by the
domestic industry on the basis of Generally Accepted Accounting Principles (GAAP) and Annexure-III
to the Rules so as to ascertain whether anti-dumping duties lower than the dumping margin would be
sufficient to remove injury to the domestic industry.
xvii. The information submitted by the applicants has been examined and verified during on site-verification
to the extent deemed necessary and has been relied upon for the present final finding.
xviii. The information submitted by the cooperating producers/exporters from the subject countries was also
examined through desk verification to the extent deemed necessary and have been relied upon for the
purpose of the present disclosure statement.
xix. The Authority made available the non-confidential version of the evidence presented by various
interested parties in the manner prescribed through Trade Notice No. 01/2020 dated 10th April 2020.
The information/submissions provided by the interested parties on a confidential basis were examined
concerning the sufficiency of such confidentiality claims.
xx. The Authority has considered all the arguments raised and information provided by all the interested
parties, to the extent the same are supported with evidence and considered relevant to the present
investigation.
xxi. A disclosure statement containing the essential facts of the investigation which have formed the basis of
the final findings was issued to the interested parties on 19th March, 2024 and the interested parties were
allowed time up to 24th March 2024 to comment on the same. The comments to disclosure statement
received from the interested parties have been considered, to the extent found relevant and non-
repetitive, in this final finding notification.
xxii. ‘***’ in this document represents information furnished by an interested party on a confidential basis
and so considered by the Authority under Rules 7 of Rules.
xxiii. The exchange rate for the POI (October 2022 – September 2023) adopted by the Authority for the
subject investigation is 1 US $=Rs 77.48.P
PRODUCT UNDER CONSIDERATION AND LIKE ARTICLE
4. The product under consideration as defined at the stage of initiation is as follows:
“3. The product under consideration for the present investigation is 'Sodium Cyanide' which is a moderately
strong base. It is a poisonous compound with the formula NaCN. It is white in colour and is a water-soluble
solid. Cyanide cation has a high affinity for metals, thus, attributing high toxicity to this base.
4. Uses: Sodium Cyanide is used for extraction of gold and silver from their respective ores, in electroplating,
heat treatment of metals (case hardening), manufacturing insecticides, dyes, pigments, bulk drugs and in many
organic syntheses, agrochemicals, nylon intermediates, gelating compounds, ore flotation and pharmaceutical
intermediates.
5. Tariff classification: The product under consideration is classified under Chapter 28 of the Customs Tariff
Act, 1975 under subheading 283711 of the Customs Tariff Classification. However, in the past, the PUC has
also been imported under other sub-headings as well, such as 28371990, 28372090, 28372040, 28391100 and
28371910.
C.1 Submissions made by the other interested parties.
5. The other interested parties have submitted as follows with regard to the product under consideration and like
article:
a. The product under consideration, sodium cyanide (NaCN) exists in powder or cylindrical tablet forms
whereas UPL only produces liquid sodium cyanide as a by-product. The petition and initiation
notification failed to address the different forms of sodium cyanide that are produced, sold, and imported
and it seems the Authority has overlooked this important detail.
b. The product is sold in the market in powder, tablets and liquid form and the concentration varies. Prices of
the product vary depending upon the form in which it is sold.
c. Authority did not seek comments from the interested parties on the need for PCN methodology.
d. UPL has faced problems on maintaining quality of the product as purity level of product has not been at
98% level.
C.2 Submissions made on behalf of the applicants.
6. The applicants have submitted as follows with regards to the product under consideration and like article:
a. The product under consideration is sodium cyanide which is a moderately strong base. It is a poisonous
compound with the formula NaCN. It is white and is a water-soluble solid.
b. The product under consideration is classified under Chapter 28 of the Customs Tariff Act, 1975 under
subheading 283711 of the Tariff Classification. However, in past, the product has also been imported
under other sub-headings as well, such as 28371990, 28372090, 28372040, 28391100 and 28371910.
c. All producers of the product produce first in liquid form. However, it is preferred to be transported in solid
form considering the nature of the product, economics and difficultly in selling the product in liquid form.
d. The product is eventually consumed in liquid form after being dissolved in water to make a 30% solution.
It is entirely irrelevant if the product is transacted in solid or liquid form.
e. The mere fact that sodium cyanide is also transported and used in liquid form does not make sodium
cyanide in solid and liquid form different products.
f. The product manufactured by the applicants is ‘like article’ to the product being imported from the subject
countries.
g. Emmennar Pharma Pvt. Ltd.'s claim that the applicants cannot provide the desired purity lacks merit. In
fact, the purity content provided by the domestic industry exceeds 98%, matching the quality of imports.
While the user previously did not source any material domestically, they have recently begun to partially
shift their requirements to the domestic industry.
C.3 Examination by the Authority
7. The submissions made by the interested parties and the domestic industry with regard to the product under
consideration have been examined and addressed hereunder.
8. As regards the submission that the applicants are unable to provide the product with 98% purity level as
required by the user industry, the Authority notes that the applicants have provided sales invoices and certificate
of analysis showing sales of the product with 98% purity. The applicants have additionally highlighted that
Emmennar Pharma Private Limited has shifted its requirement from imports to domestic industry and while the
respondent was earlier sourcing its entire requirement from imports but has now shifted some portion of its
requirements to the domestic industry. In view of the above, the contention of the interested party that the
applicants do not provide the product with the desired standard cannot be accepted.
9. With respect to the form of product being sold in the domestic market, it is seen that sodium cyanide is initially
produced and ultimately consumed in liquid form. However, considering the nature of the product, ease of
transportation and the economics involved, it is preferred to be converted into solid form i.e., in the form of
tablets/briquettes for transportation purpose. The Authority through its clarification letter for the PUC & PCNs
issued on 6th August 2023 clarified that the product under consideration is sodium cyanide, regardless of its
form. Liquid form of sodium cyanide is nothing but just the product mixed with water. Liquid form can be
converted into solid, and the solid form can be re-converted into liquid with ease and without any change in the
chemical properties of the product. The solid form and liquid form produced by all producers are comparable in
terms of all essential characteristics of the product.
10. As regards the contention that the Authority did not seek comments on the need for PCNs, it is noted that post
initiation of the investigation letters were sent to all the interested parties, which clearly established the timelines
of various submissions, including 15 days’ time to file comments on PUC/PCNs. However, barring one
interested party, Hebei Chengxin Co. Ltd., which submitted that PCN-wise analysis is not required in this case,
none of the interested parties in the investigation availed the above opportunity and made any comments on the
PCNs within the stipulated time. Hence, the Authority finds this contention to be totally baseless.
11. The product under consideration in the present investigation is sodium cyanide which is a moderately strong
base. It is a poisonous compound with the formula NaCN. It is white in colour and is a water-soluble solid.
Cyanide cation has a high affinity for metals, thus, attributing high toxicity to this base.
12. The product under consideration is used for extraction of gold and silver from their respective ores, in
electroplating, heat treatment of metals (case hardening), manufacturing insecticides, dyes, pigments, bulk drugs
and in many organic syntheses, agrochemicals, nylon intermediates, gelating compounds, ore flotation and
pharmaceutical intermediates.
13. In view of the above, the Authority concludes that the scope of the product under consideration is sodium
cyanide, regardless of its form. The product under consideration is classified under Chapter 28 of the Customs
Tariff Act, 1975 under subheading 283711 of the Customs Tariff Classification. However, in the past, the PUC has
also been imported under other sub-headings as well, such as 28371990, 28372090, 28372040, 28391100 and
28371910. However, the customs classification is only indicative and is not binding on the scope of the product under
consideration or the levy of anti-dumping duty.
14. As per the information available on record, the Authority notes that the product produced by the domestic
industry is like article to product under consideration imported from the subject countries. The product produced
by the domestic industry is comparable to the goods imported from the subject countries in terms of physical &
chemical characteristics, manufacturing process & technology, functions and uses, product specifications,
pricing, distribution & marketing, and tariff classification of the goods. The two are technically and
commercially substitutable. The consumers have used and are using the two interchangeably. Thus, the
Authority concludes that the product manufactured by the domestic industry constitutes like article to the subject
goods being imported into India from the subject countries in the terms of Rule 2(d).
SCOPE OF DOMESTIC INDUSTRY AND STANDING
D.1 Submissions made by the other interested parties
15. The other interested parties have submitted as follows with regards to the scope of domestic industry and
standing:
a. HCC, UPL and Hindusthan Engineering & Industries Limited, the parent company of HCC, are
habitual/regular importers and traders of the subject goods in substantial volumes, before, during and after
the period of investigation.
b. The applicants have imported the PUC from the subject countries and traded it because of their inability to
produce and supply due to regular stoppage of production on account of environmental issues, technical
issues and regulatory ban on them from time to time.
D.2 Submissions made by the applicants.
16. The applicants have submitted as follows with regards to the scope of the domestic industry and standing:
a. The applicants are the only producers of the product under consideration in India.
b. HCC (formerly known as Cyanides & Chemicals Company) is a unit of Hindusthan Engineering &
Industries Limited and has been engaged in the production of the product under consideration for more
than 35 years.
c. UPL Limited had recently set up a new plant in India with an investment of Rs 500 cr. and has
commenced its production of the product under consideration from April 2021.
d. Both the producers had imported the product under consideration in the past. While UPL imported for
captive consumption before start of commercial production, Hindusthan Chemical Company imported
in 2019-20 and 2020-21 for trading purpose to meet the customers requirements.
e. Imports by HCC were made in 2019-20 when its plant was shut down. These imports were from non-
subject countries.
f. The applicants have not imported the product under consideration in the period of investigation.
g. The applicants are not related to any of the producer/exporters in the subject countries or any importers of
the subject goods in India.
D.3 Examination by the Authority.
17. The application has been filed by Hindusthan Chemical Company and UPL Limited.
18. Rule 2(b) of the Anti-Dumping Rules defines domestic industry as under:
"(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture
of the like article and any activity connected therewith or those whose collective output of the
said article constitutes a major proportion of the total domestic production of that article except
when such producers are related to the exporters or importers of the alleged dumped article or are themselves importers thereof in such case the term ‘domestic industry’ may be
constructed as referring to the rest of the producers”.
19. As regards the submission of applicants being regular importers and traders, the Authority has examined
transaction wise import data for the injury period and has found that the entire imports by HCC are in the period
2019-20 and 2020-21. There are no imports made by HCC in the period of investigation. Further, the parent
company of HCC has also not imported any product in the period of investigation.
20. The table below shows the imports made by HCC over the years.
+-------+---------------------------------------+-------+----------+----------+----------+-----------+
| S. No. | Particulars | Units | 2019-20 | 2020-21 | 2021-22 | POI |
+=======+=======================================+=======+==========+==========+==========+===========+
| 1 | Imports from subject countries | MT | *** | *** | | |
| | | | | | | No imports |
| 2 | Imports from non-subject countries | MT | *** | *** | | |
| 3 | Imports in relation to subject countries imports | % | *** | *** | | |
| 4 | Imports in relation to production | % | *** | *** | | |
+-------+---------------------------------------+-------+----------+----------+----------+-----------+
21. Further, it has been submitted by the other interested parties that the parent company of HCC has
imported the product in the period of investigation. The Authority notes that the transaction wise
import data does not show any imports made by Hindusthan Engineering & Industries Limited in the
POI.
22. It has been submitted that UPL imported in 2019-20 and 2020-21. The imports were made prior to
commencement of commercial production by UPL. The Authority notes that there are no imports by
UPL in the period of investigation.
23. The table below shows the imports made by UPL over the years.
+-------+---------------------------------------+-------+----------+----------+----------+------------+
| S.No. | Particulars | Units | 2019-20 | 2020-21 | 2021-22 | POI |
+=======+=======================================+=======+==========+==========+==========+============+
| 1 | Imports from subject countries | MT | *** | *** | | |
| | | | | | | No imports |
| 2 | Imports from non-subject countries | MT | *** | *** | | |
| 3 | Imports in relation to subject countries imports | % | *** | *** | | |
| 4 | Imports in relation to production | % | | | | No |
| | | | | | | production |
+-------+---------------------------------------+-------+----------+----------+----------+------------+
24. The Authority notes that the interested parties’ portrayal that the imports were being made by the
applicants only due to shut downs cannot be accepted since the applicants have imported the subject
goods in the past to primarily cater to the demand supply gap and to retain its customers. The
Applicants have contended that there was no dumping in the years 2019-20 and 2020-21 and the
imports by the applicants were at un-dumped prices.
25. The Authority is required to examine if an applicant has imported in such large volumes that its nature
has turned to be of an importer or a trader. The Authority notes that both the applicants had imported in
past to primarily cater to the Indian demand. However, one of the applicants has even undertaken
substantial investment of Rs 500 cr. to set up a new plant for production of the PUC. The Authority is
also required to examine if an applicant has imported the product under consideration in the period of
investigation. The Authority notes that the applicants have not imported in the period of investigation.
The applicants have also certified that they are not related to any importer in India or exporter of the
product under consideration in the subject countries. The Authority, therefore, concludes that the
applicants satisfy the requirements of Rule 2(b) of the Rules.
26. The Authority further notes that HCC and UPL are the only producers in India and together constitute
100% of the total Indian production and considers that the application satisfies the criteria of standing
in terms of Rule 5(3) of the Rules.
CONFIDENTIALITY
E.1 Submissions made by the other interested parties.
27. The other interested parties have submitted as follows with regards to confidentiality:
a. The applicants suffer from excess confidentiality as relevant information has been kept
confidential. Relevant information has not been given even in the indexed form.
b. Costing formats, price undercutting, price underselling, profitability in percentage and dumping
margin have been claimed completely confidential.
c. The applicants have blackened the information on self-imports in the period of investigation.
d. Details of production being suspended have been claimed confidential.
E.2 Submissions made by the applicants.
28. The applicants have submitted as follows with regards to confidentiality:
a. The applicants have not claimed any excessive confidentiality. Entire information has been
disclosed as per Trade notice 10/2018 dated 7th September 2018.
b. The information given in the costing formats, price undercutting, price underselling and
profitability is business sensitive information and is not amenable to summarization.
c. As regards the argument that the applicants have blackened the information on self-imports in the
period of investigation, it is clarified that there are no imports in the period of investigation.
E.3 Examination by the Authority.
29. The Authority made available non-confidential version of the information provided by various
interested parties to all interested parties as per Rule 6(7) and Trade Notice 10/2018 dated 7th
September 2018 read with Trade Notice 01/2020 (as extended by the Authority till further notice).
30. With regard to confidentiality of information, Rule 7 of AD Rules, 1995 provides as follows:
Confidential information: (1) Notwithstanding anything contained in sub-rules (2), (3)
and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and subrule (4) of rule 17,
the copies of applications received under sub-rule (1) of rule 5, or any other information
provided to the designated authority on a confidential basis by any party in the course of
investigation, shall, upon the designated authority being satisfied as to its confidentiality,
be treated as such by it and no such information shall be disclosed to any other party
without specific authorization of the party providing such information.
(2) The designated authority may require the parties providing information on
confidential basis to furnish non-confidential summary thereof and if, in the opinion of a
party providing such information, such information is not susceptible of summary, such
party may submit to the designated authority a statement of reasons why summarization is
not possible.
(3) Notwithstanding anything contained in sub-rule (2), if the designated authority is
satisfied that the request for confidentiality is not warranted or the supplier of the
information is either unwilling to make the information public or to authorise its
disclosure in a generalized or summary form, it may disregard such information.”
31. The Hon'ble Supreme Court in Reliance Industries relied on its decision in Sterlite Industries (India)
Ltd. V. Designated Authority. Sterlite Industries had emphasized upon the importance of
confidentiality. In para 3 of said decision it was reaffirmed that:
3 .... confidentiality under Rule 7 is not something which must be automatically assumed.
Of course, in such cases there is need for confidentiality as otherwise trade competitors
would obtain confidential information which they cannot otherwise get. But whether
information supplied is required to be kept confidential has to be considered on a case-to-
case basis. It is for the Designated Authority to decide whether a particular material is
required to be kept confidential.
32. The Authority reviewed the confidential information submitted by the interested parties, evaluating
the adequacy of the confidentiality claims. Upon finding the claims substantiated, the Authority has
granted approval for the confidentiality requests where deemed necessary, thereby ensuring that such
sensitive information remains undisclosed to other interested parties. In situations where it was
feasible, entities that furnished confidential information were advised to provide ample non-
confidential renditions of the confidentially submitted information. The Authority facilitated the
distribution of the non-confidential versions of the evidence presented by various interested parties,
instructing them to share these non-confidential versions of their submissions via electronic
communication.
33. As regards the submission on HCC’s production being suspended being claimed confidential, the
Authority notes that the same was disclosed in the application and the written submissions filed by
the applicants. Therefore, the contention is incorrect.
34. As regards information given in costing formats, on price undercutting, price underselling and
profitability being claimed confidential, the Authority notes that the information relating to these
parameters are business sensitive information which cannot be disclosed. The applicants were
required to disclose the confidential information as per the Trade notice 08/2018 dated 7th September
2018 and the applicants have complied with the requirements.
MISCELLANEOUS ISSUES
F.1 Submissions made by the other interested parties
35. The other interested parties have submitted as follows with regards to miscellaneous issues:
a. As per Trade Notice No. 04/2012 dated 23rd May 2012, applicants were required to circulate
the information presented in the public hearing to the other interested parties one day prior.
The applicants did not circulate the information.
b. The Authority had not given sufficient time for filing of comments or the exporter
questionnaire response.
c. Authority has not given any opportunity to interested parties to suggest PCN methodology.
d. Since the product is sold in both solid and liquid form, they should form a basis of PCN, and
the dumping margin and injury margin should be determined based on PCN methodology.
e. Information regarding the shutdown of plant of HCC by Gujarat Pollution Control Board has
been deliberately suppressed by the applicants.
f. Interestingly, while there is no actual decline in prices, a new concept called ‘prime cost’ has
been introduced by the applicants to confuse the Authority. As noted above, the applicant
HCC has been earning supernormal profits both pre and post POI with huge
contribution/profitability from the PUC. This contribution/profitability declined marginally in
the POI because of temporary increase in the prices of the basic raw materials as stated above
which is being camouflaged as impact of dumped imports by deliberately selecting a
truncated period.
g. Domestic industry has selectively chosen this period as the period of investigation to paint a
picture of injury where none existed. During this period, there was a temporary upsurge in
prices of ammonia and caustic soda lye which has also caused a significant increase in import
prices as well.
h. Czech Republic accounts for less than three per cent of the total imports of the subject goods
in India. The de minimis test as per Article 5.8 / Rule 14(d) is to be applied to a particular
‘country’ and not to a ‘territory’. Therefore, of the only two producers in EU, (respondent
from Czech Republic whose imports alone are not above de-minimis limit and ‘CyPlus
GmbH’ from Germany whose imports alone are above the de-minimis limit) the imports from
Czech Republic alone are to be considered.
i. The Czech Republic's share in India's total imports of subject goods accounts for less than 3%
of the total imports. The investigation should be terminated immediately if the share of
imports from a country is less than 3% of the total imports into India.
j. The application was originally filed against China PR, Japan, and Korea RP as evidenced
from para no. 8 of the initiation notification and not against Czech Republic.
F.2 Submission made on behalf of the applicants.
36. The applicants have submitted as follows with regards to miscellaneous issues:
a. Entirety of information provided by the applicants in the public hearing is part of the written
submissions filed with the Authority and circulated with the other interested parties. The other
interested parties had opportunity to comment on the same.
b. Barring the year 2019-20 when HCC’s plant was shut down due to government restrictions,
there have been no other regulatory ban on the applicants.
c. Information regarding plant shutdown by HCC is part of the application. The information has
not been suppressed.
d. Being unstable in nature due to its hazardous nature, the product cannot be exported in liquid
form as it is and there are no imports of the product in liquid form. Therefore, there is no need
for PCN methodology.
e. As regards the contention that the period of investigation has been chosen selectively, a 12-
month period is considered appropriate by global investigating authorities for examining
dumping and injury. The applicants have suffered material injury in the period of
investigation as well as the financial year immediately preceding it and it cannot be
considered that it was a temporary phenomenon.
f. The words used in Section 9A of the Customs Tariff Act, 1975 are ‘country or territory’. The
Rules cannot override the Act or restrict the ambit of the Act. The rules have to be consistent
with the Act. The anti-dumping rules are framed under the Customs Tariff Act, 1975. The
rules and law should be read as a whole and one provision should be construed with reference
to other provisions so as to make a consistent enactment of the whole statute. When the term
used in the Customs Tariff Act is country or territory, it cannot be interpreted that because the
Rules use the word ‘country’, they restrict the scope of the law.
g. The opposing interested parties have submitted that the domestic industry has introduced a
new concept of “prime cost”. It is seen that the prime cost has been calculated to evaluate the
price trends over the years. It has been claimed that the import price has not moved in line
with the changes in the cost of production. An examination of the evolution of the price has
been consistently examined by the Authority. The factors considered to examine the evolution
of price have varied from investigation to investigation based on the facts of the case. In cases
where there has been no change in the raw material prices, the Authority has simply examined
the import price over the years. In cases where the raw material price has fluctuated
significantly, the Authority has compared the import price with the raw material prices. In the
present case, all the parties have accepted that the prices of the raw materials and utilities
have increased over the years. The interested parties have also argued that since UPL has
recently begun commercial production, the cost of UPL will be higher on account of fixed
costs. Therefore, a comparison of prime cost (Raw material Cost + Utility Cost + Direct
Expense) with the landed price is appropriate since it does not take into consideration the
fixed costs.
F.3 Examination by Authority
37. It has been submitted by the interested parties that the applicants did not circulate the information
presented in the public hearing to the other interested parties one day prior to the hearing. The
Authority notes that all the interested parties, including the applicants who presented their views in
the oral hearing, were required to file whatever was orally presented in the form of written
submissions. The other parties too had the opportunity to file their rejoinders to the information
shared in the written submission. The Authority notes that no prejudice has been caused to any
interested party since information which was presented orally but not provided to the Authority in
written submissions/rejoinders has not been considered for the purpose of the present final finding.
38. As regards the submission of the interested parties that sufficient time was not provided to file
comments or exporter questionnaire responses, the Authority notes that post initiation of the
investigation letters were sent to all the interested parties, which clearly established the timelines of
various submissions, including 15 days time to file comments on PUC/PCNs and further 15 days
time to file the questionnaire responses upon finalization and publishing of the final PCN
methodology.
39. The Authority further notes that barring Hebei Chengxin Co. Ltd., which submitted that PCN-wise
analysis is not required in this case, none of the interested parties in the investigation availed the
above opportunity and made any comments on the PCNs within the stipulated time. CyPlus GmbH
sought exclusion of the PUC in the liquid form from the scope of the product under consideration.
40. The Authority issued a clarificatory letter regarding the scope of the product under consideration and
the PCNs wherein it was informed to all the interested parties that the scope of the product under
consideration is sodium cyanide, regardless of its form. It was further clarified that since no
proposals were received for construction of PCNs hence, no PCN methodology is being adopted for
the investigation and accordingly the interested parties were asked to submit questionnaire responses.
41. Interestingly, the Authority finds a concerning pattern of inconsistency and shifting arguments in the
submissions made by Emmennar Pharma Pvt. Ltd. In its email dated 13th May 2023, Emmennar,
while seeking extension of time to file questionnaire response, suggested that PCN determination
might not be relevant in this case. Later in the submissions post the oral hearing it reversed its
course, claiming a lack of communication on PUC/PCNs and asserting the necessity of a PCN
methodology despite the fact that the Authority vide its letter of 6th August 2023, unambiguously
clarified the product scope of the investigation and PCN methodology. The Authority recommends
that interested parties should maintain consistency in their submissions.
42. The Authority, in view of the above, does not agree with the contentions of interested parties that
sufficient time was not provided to them to suggest PCNs and file questionnaire responses.
43. The Authority notes that the Anti-Dumping Agreement (ADA) uses the term "country" within the de
minimis context (Article 5.8). While the interested party suggests "country" and "territory" are
distinct within the ADA, there's no clear legal distinction established.
44. The Authority also recognizes that both the EU and its member states individually are the members
of WTO in their own rights and the words ‘country’ and ‘territory’ are used interchangeably for
members of WTO. Hence, the EU being a member of WTO, the subject investigation has been
initiated in respect of imports from European Union (EU) as ‘the subject country’ and not against
individual countries within the EU. It is not in dispute that the Authority is entitled to initiate
investigations in respect of EU. The EU itself has not contended in contrary. In this subject
investigation, since imports originate from the EU as the subject country and are above de-minimis
levels, therefore the contention of termination of case against an individual member within the EU
does not hold merit.
45. It has been submitted by the other interested parties that the period of investigation has been
selectively chosen by the applicants to build up a case for injury. The Authority notes that the period
of investigation must be recent and should be long enough to reflect a representative picture of the
industry's condition. A period of 12 months is considered sufficiently long enough to allow for
proper assessment of trends. The Authority notes that the POI in the present case is a 12 month
period which is in accordance with the Rules. It is also seen that the applicants suffered losses in the
POI as well as the year prior to that. None of the parties have established that there is no dumping of
the product under consideration in the period of investigation. Hence the Authority finds it difficult
to accept that the period of investigation has been selectively chosen to build up a case.
46. The opposing interested parties have claimed that the raw material prices have declined in the post
period of investigation. It is noted that examination of post-POI data is not warranted in an original
investigation unless factual circumstances warrant the same. It is noted that conclusions regarding
dumping and injury is to be reached based on the POI data. It is only when conclusive evidence
regarding the above cannot be based on the POI data, the post-POI data may be examined. However,
the facts of the POI in the present investigation establish that the applicant has suffered injury during
the POI and therefore, the question of examination of post-POI data does not arise.
47. The Authority notes that while it has been contended by the opposing interested parties that prime
cost is a new concept, nothing in contrary has been provided by them to show that such comparison
is not appropriate. The Authority notes that the concept of prime cost takes into consideration only
the variable cost of production, i.e. raw material cost, utility cost, packing cost and consumables.
Prime cost is not a new concept but is only a part of the total cost of production. The Authority is
required to examine the price trend of imports over the year. When the global cost of production
remains stable throughout the injury period, a simple import price examination should be sufficient.
However, if costs of production have fluctuated, a broader analysis beyond just import prices can be
undertaken. Since all the opposing interested parties have accepted that the raw material prices have
increased in the injury period and have also contended that UPL is a new producer and will therefore
have high fixed costs, the Authority, therefore, notes that comparing the import price with the prime
cost will be an appropriate approach in the factual matrix of the case. The Authority has also
compared the import price over the injury period with the monthly global raw material prices.
48. The Authority has examined the trend of yearly import prices over the injury period. Further, the
same were compared with the costs directly associated with production of the product, i.e. prime cost
(raw material cost, utility cost, packing cost and cost of consumable). The domestic industry had
contended that since UPL is a new producer, prime cost may be considered for HCC alone, in order
to avoid distortion due to different composition of the domestic industry over the injury period. The
domestic industry calculated prime cost based on the data of HCC alone, but The Authority notes
that injury analysis is required to be undertaken for the domestic industry as a whole and not just
selectively based on constituents of domestic industry. The Authority has accordingly considered
aggregate data for both HCC and UPL fair comparison purpose to analyse the impact of landed value
vis-à-vis cost of the domestic industry as a whole.
NORMAL VALUE, EXPORT PRICE & DUMPING MARGIN
F.1 Submissions made by other interested parties.
49. The other interested parties have submitted as follows with regards to market economy treatment,
normal value, and export price:
a. 15 years for disregarding the domestic prices or costs of Chinese producers not being on
market economy conditions as provided in para 15(a)(ii) of the Protocol of Accession of the
People's Republic of China to WTO, has expired on 11th December 2016 in terms of para
15(d).
b. Proper evidence has not been provided by the applicants for the calculation of the actual
normal value.
c. The normal value calculation as done by the applicants is imaginary. If the normal value
calculated was so high, there is no reason why the exporters would have sold at this price.
d. No evidence of adjustment to export prices has been provided by the domestic industry.
e. The comparison made by the applicants in the domestic prices of the exporters and the export
price to India is based on the indexed data and cannot be relied upon. Draslovka has not
engaged in the dumping of the product in the Indian market.
f. Normal value should be determined based on the cost of the most efficient domestic producer.
The claim of the applicants that HCC cannot be considered for normal value is misleading.
g. The applicants export the product at the same price in which the product is imported in the
Indian market. This shows that there is no dumping, and the import price is the actual price.
F.2 Submissions made by the applicants.
50. The applicants have submitted as follows with regards to market economy treatment, normal value,
and export price:
a. Even though the provisions of Article 15(a)(ii) have expired, WTO members are required to
considered domestic prices or costs in China PR only if the producers under investigation can
clearly show that market economy conditions prevail in the industry producing the like
product with regard to the manufacture, production and sale of that product as per Article
15(a)(i), which the Chinese producers in the present case have not shown.
b. No verifiable evidence of the actual selling price or cost in a market economy third country is
available for determining normal value for China PR.
c. The product is being produced majorly in the subject countries and the export prices from
these countries to other countries also appear to be at dumped prices.
d. The producers in the subject countries were not dumping the product in the Indian market
when there was a demand supply gap. The producers have started dumping their product in the
market as soon as UPL started production.
e. As normal value for China PR cannot be determined on the basis of other parameters laid
down under Annexure-I, Paragraph 7 of the AD Rules, the normal value is to be determined
based on price actually payable in India.
f. No interested party has provided any information with respect to domestic price, cost of sales
or export price in market economy country.
g. The only participating Chinese producer Hebei Chengxin Co. Ltd has not filed market
economy treatment questionnaire.
h. Normal value cannot be determined based on cost of production of HCC alone as the
company’s plant being old has a depreciated, depreciation cost is low in cost of production,
have no interest cost and the purchase price of natural gas for the company is in not reflective
of the market prices.
i. Nippon Soda Limited and Sojitz Corporation Limited, Japan had filed a letter withdrawing its
exporter questionnaire response. Therefore, Authority is requested to apply adverse facts.
j. There is no response from Korea RP in the present investigation and the claims of the
domestic industry with respect to dumping from Korea RP are undisputed.
k. Information regarding raw material and natural gas prices in the subject countries have been
provided by the applicants as part of its non-confidential version of the application for the
purpose of calculating actual normal value.
l. Evidence of ocean freight has been provided by the applicants within the application while
other adjustments have been provided as per the standard adjustments allowed by the
Authority.
m. Exporters are selectively dumping the product in the Indian market. Analysis of trend of the
prices as per the non-confidential response shows that they have increased the prices in their
domestic market and other countries.
F.3 Examination by the Authority
51. The Authority notes that the following exporters of the subject goods have filed exporter’s
questionnaire responses: -
a) Hebei Chengxin Co. Ltd., China PR.
b) Lučební závody Draslovka a.s. Kolín., European Union.
c) Nippon Soda Co. Ltd. and Sojitz Corporation, Japan.
F.3.1 Pricing pattern of the participating producers from the subject countries.
52. The Authority has examined the domestic selling prices and the export prices of the participating
producer over the injury period.
53. The information regarding the domestic selling price and the export price of the Lučební závody
Draslovka a.s. Kolín, European Union is given in the table below.
+-------+-------------+---------+----------+----------+----------+-----+
| S.No. | Particular | UOM | 2019 | 2020 | 2021 | POI |
+=======+=============+=========+==========+==========+==========+=====+
| A | Domestic | | | | | |
| 1 | Sales volume | MT | *** | *** | *** | *** |
| 2 | Sales value | USD’000 | *** | *** | *** | *** |
| 3 | Price | USD/MT | *** | *** | *** | *** |
| 4 | Price Trend | | 100 | 100 | 96 | 136 |
+-------+-------------+---------+----------+----------+----------+-----+
| B | Export | | | | | |
| 1 | Sales volume | MT | *** | *** | *** | *** |
| 2 | Sales value | USD’000 | *** | *** | *** | *** |
| 3 | Price | USD/MT | *** | *** | *** | *** |
| 4 | Price Trend | | 100 | 103 | 87 | 99 |
+-------+-------------+---------+----------+----------+----------+-----+
54. It is seen from the questionnaire response filed by the producer that while its domestic sales price has increased
over the period and more importantly in the period of investigation, the export price to India has declined.
55. Examination of the price trend over the years shows that the sharp price decline has been selectively in case of
the Indian market when UPL set up its plant and the demand supply gap was bridged.
F.3.2 Normal value and export price for the subject countries.
56. Under section 9A(1)(c), the 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
the exporting 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 the domestic market of the
exporting country or territory, or when because of the particular market situation or low volume of the sales
in the domestic market of the exporting country or territory, such sales do not permit a proper comparison,
the normal value shall be either:
(a) comparable representative price of the like article when exported from the exporting country or
territory or an appropriate third country as determined in accordance with the rules made under sub-
section (6); or
the cost of production of the said article in the country of origin along with reasonable addition for
administrative, selling and general costs, and for profits, as determined in accordance with the rules
made under sub-section (6).
(b)Provided that in the case of import of the article from a country other than the country of origin and
where the article has been merely transshipped through the country of export or such article is not
produced in the country of export or there is no comparable price in the country of export, the normal
value shall be determined with reference to its price in the country of origin.
F.3.3 Normal value and export price for China PR.
F.3.3.a Normal value for China PR
Market Economy Status for Chinese Producers
57. Article 15 of China’s Accession Protocol in WTO provides as follows: "Article VI of the GATT 1994, the
Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 ("Anti-
Dumping Agreement") and the SCM Agreement shall apply in proceedings involving imports of Chinese
origin into a WTO Member consistent with the following:
(a) In determining price comparability under Article VI of the GATT 1994 and the Anti-Dumping Agreement,
the importing WTO Member shall use either Chinese prices or costs for the industry under investigation or a
methodology that is not based on a strict comparison with domestic prices or costs in China based on the
following rules:
(i) If the producers under investigation can clearly show that market economy conditions prevail in the
industry producing the like product with regard to the manufacture, production and sale of that product,
the importing WTO Member shall use Chinese prices or costs for the industry under investigation in
determining price comparability;
(ii) The importing WO Member may use a methodology that is not based on a strict comparison with
domestic prices or costs in China if the producers under investigation cannot clearly show that market
economy conditions prevail in the industry producing the like product with regard to manufacture,
production and sale of that product.
(b) In proceedings under Parts II, III and V of the SCM Agreement, when addressing subsidies described in
Articles 14(a), 14(b), 14(c) and 14(d), relevant provisions of the SCM Agreement shall apply; however, if
there are special difficulties in that application, the importing WTO member may then use methodologies for
identifying and measuring the subsidy benefit which take into account the possibility that prevailing terms
and conditions in China may not always be available as appropriate benchmarks. In applying such
methodologies, where practicable, the importing WTO Member should adjust such prevailing terms and
conditions before considering the use of terms and conditions prevailing outside China.
(c) The importing WTO Member shall notify methodologies used in accordance with subparagraph (a) to the
Committee on Anti-Dumping Practices and shall notify methodologies used in accordance with
subparagraph (b) to the Committee on Subsidies and Countervailing Measures.
(d) Once China has established, under the national law of the importing WTO Member, that it is a market
economy, the provisions of subparagraph (a) shall be terminated provided that the importing Member's
national law contains market economy criteria as of the date of accession. In any event, the provision of
subparagraph (a)(ii) shall expire 15 years after the date of accession. In addition, should China establish,
pursuant to the national law of the importing WTO member, that market economy conditions prevail in a
particular industry or sector, the nonmarket economy provisions of subparagraph (a) shall no longer apply
to that industry or sector."
58. It is noted that while the provision contained in Article 15 (a) (ii) have expired on 11.12.2016, the provision
under Article 2.2.1.1 of WTO, read with obligation under 15 (a) (i) of the Accession Protocol require the
criterion stipulated in Para 8 of the Annexure I of the Rules to be satisfied through the information/data to be
provided in the supplementary questionnaire on claiming the market economy status. It is noted that since the
responding producers/exporters from China PR have not submitted response to questionnaire in the form and
manner prescribed, the normal value computation is required to be done as per the provisions of Para 7 of
Annexure I of the Rules.
59. As none of the producers from China PR have claimed determination of normal value on the basis of their own
data/ information, the normal value has been determined in accordance with para 7 of Annexure I to the Rules
which read as under:
“7. In case of imports from non-market economy countries, normal value shall be determined on the basis
of the price or constructed value in a market economy third country, or the price from such a third country
to other countries, including India, or where it is not possible, on any other reasonable basis, including the
price actually paid or payable in India for the like product, duly adjusted if necessary, to include a
reasonable profit margin. An appropriate market economy third country shall be selected by the designated
authority in a reasonable manner [keeping in view the level of development of the country concerned and
the product in question and due account shall be taken of any reliable information made available at the
time of the selection. Account shall also be taken within time limits; where appropriate, of the investigation
if any made in similar matter in respect of any other market economy third country. The parties to the
investigation shall be informed without unreasonable delay the aforesaid selection of the market economy
third country and shall be given a reasonable period of time to offer their comments.
8. (1) The term "non-market economy country" means any country which the designated authority
determines ds not operating on market principles of cost or pricing structures, so that sales of merchandise
in such country do not reflect the fair value of the merchandise, in accordance with the criteria specified in
subparagraph (3).
(2) There shall be a presumption that any country that has been determined to be, or has been treated as, a
non-market economy country for purposes of an antidumping investigation by the designated authority or
by the competent authority of any WO member country during the three year period preceding the
investigation is a non-market economy country. Provided, however, that the non-market economy country
or the concerned firms from such country may rebut such d presumption by providing information and
evidence to the designated authority that establishes that such country is not a non-market economy
country on the basis of the criteria specified in sub-paragraph (3).
(3) The designated authority shall consider in each case the following criteria as to whether: (a) the
decisions of the concerned firms in such country regarding prices, costs and inputs, including raw
materials, cost of technology and labour, output, sales and investment, are made in response to market
signals reflecting supply and demand and without significant State interference in this regard, and whether
costs of major inputs substantially reflect market values; (b) the production costs and financial situation of
such firms are subject to significant distortions carried over from the former non-market economy system,
in particular in relation to depreciation of assets, other write-offs, barter trade and payment vid
compensation of debts; (c) such firms are subject to bankruptcy and property laws which guarantee legal
certainty and stability for the operation of the firms, and (d) the exchange rate conversions are carried out
at the market rate. Provided, however, that where it is shown by sufficient evidence in writing on the basis
of the criteria specified in this paragraph that market conditions prevail for one or more such firms subject
to anti-dumping investigations, the designated authority may apply the principles set out in paragraphs I to
6 instead of the principles set out in paragraph 7 and in this paragraph.
(4) Notwithstanding, anything contained in sub-paragraph (2), the designated authority may treat such
country as market economy country which, on the basis of the latest detailed evaluation of relevant criteria,
which includes the criteria specified in sub paragraph (3), has been, by publication of such evaluation in a
public document, treated or determined to be treated as a market economy country for the purposes of anti-
dumping investigations, by a country which is a Member of the World Trade Organization.”
60. Para 7 lays down hierarchy for determination of normal value and provides that normal value shall be
determined on the basis of price or constructed value in a market economy third country, or the price from such
a third country to any other country, including India, or where it is not possible, on any reasonable basis,
including the price actually paid or payable in India for the like article, duly adjusted, if necessary, to include a
reasonable profit margin. Thus, the Authority notes that the normal value is required to be determined having
regard to the various sequential alternatives provided under Annexure-I.
61. The Authority notes that none of the interested parties have provided any information with regard to domestic
price, constructed value or export price of the product in an appropriate market economy third country. The
Authority notes that it is required to select an appropriate country on the basis of information and evidence
brought on record by the interested parties. Since neither the applicants nor the interested parties have provided
any verifiable information, the normal value could not be determined on this basis. Therefore, the normal value
for China PR has been determined based on price actually paid or payable in India for the like article. The
normal value has been determined considering the cost of production in India after addition for the selling,
general & administrative expenses, and the reasonable profits.
62. The normal value so determined is given below in the dumping margin table.
F.3.3.b Export price for China PR
Export price for co-operative producer – Hebei Chengxin Co. Ltd.
63. The producer has reported *** MT as exports of the product under consideration to India. The producer has
claimed that it has directly exported the product to India and no other related/unrelated party is involved in the
export of the product under consideration. The producer has claimed adjustment on account of ocean freight,
marine insurance, port expenses, credit cost and inland transportation.
64. The Authority has undertaken desk verification and examined the claims made by the respondent. The
adjustments claimed by the respondent have been allowed. The export price so determined is given below in
the dumping margin table.
Export price for non-co-operative exporters/producers.
65. The export price for non-cooperative producers/exporters from China PR has been determined based on facts
available in terms of Rule 6(8) of the Rules. The net export price so determined is mentioned in the dumping
margin table below.
F.3.4 Normal value and export price for European Union.
66. CyPlus GmbH and Lučební závody Draslovka a.s. Kolín have registered as interested parties. However,
CyPlus GmbH did not file a questionnaire response and has been treated as non-cooperative.
F.3.4.a Normal value for European Union
Normal value for co-operating producer - Lučební závody Draslovka a.s. Kolín
67. The producer has reported domestic sales of *** MT in the period of investigation. The producer has claimed
that all domestic sales are to unrelated parties. The producer has claimed adjustment on account of inland
transportation and credit cost. The Authority has undertaken desk verification and examined the claims made
by the respondent. The claims made have been accepted. The normal value so determined is given below in the
dumping margin table.
Normal value for non-cooperating producers.
68. The normal value for non-cooperative producers/exporters from the European Union has been determined
based on facts available in terms of Rule 6(8) of the Rules. The normal value so determined is mentioned in the
dumping margin table below.
F.3.4.b Export price for European Union
Export price for co-operating producer - Lučební závody Draslovka a.s. Kolín
69. The producer has reported *** MT as exports of the product under consideration to India during the period of
investigation. The producer has claimed that it has directly exported the product to India and no other
related/unrelated party is involved in the export of the product under consideration. The producer has claimed
adjustment on account of ocean freight, marine insurance, credit cost, commission and inland transportation.
70. The Authority has undertaken desk verification and examined the claims made by the respondent. The
adjustments claimed by the respondent have been allowed. The net export price so determined is given below
in the dumping margin table.
Export price for non-co-operative exporters/producers.
71. The export price for non-cooperative producers/exporters from the European Union has been determined based
on facts available in terms of Rule 6(8) of the Rules. The net export price so determined is mentioned in the
dumping margin table below.
F.3.5 Normal value and export price for Japan.
72. Nippon Soda Co. Ltd. has filed a questionnaire response. However, pursuant to the oral hearing, the respondent
filed a letter withdrawing its questionnaire response. The letter dated 15th December 2023 reads as below: -
i. We are writing this letter to inform the Authority that Nippon Soda Co. Ltd., is withdrawing its participation
from the subject anti-dumping investigation.
ii. Management of Nippon Soda Co. Ltd. has now taken a decision that it will withdraw participation from this
anti-dumping investigation as it will not be possible for Nippon Soda Co. Ltd., to export sodium cyanide
to India from April 2024 due to rapidly changing business environment.
73. The producer has accordingly been treated non-cooperative. Therefore, the normal value and export price has
not been determined based on the data provided by the respondent. Hence, it is noted that there is no
participating producer from Japan.
F.3.5.a Normal value for Japan
74. The normal value for Japan has been determined based on facts available in terms of Rule 6(8) of the Rules.
The normal value so determined is mentioned in the dumping margin table below.
F.3.5.b Export price for Japan.
75. The net export price for Japan has been determined based on facts available in terms of Rule 6(8) of the Rules.
The net export price has been calculated from the customs data. Since the data reported is at CIF level,
adjustments have been made for ocean freight, marine insurance commission, inland freight, port expenses and
bank charges. The net export price so determined is mentioned in the dumping margin table below.
F.3.6 Normal value and export price for Korea RP.
76. Taekwang Industrial Co. Ltd., Korea RP had registered as an interested party. However, the producer did not
file a questionnaire response. Therefore, the producer has been treated as non-cooperative. It is noted that there
is no participating producer from Korea RP.
F.3.6.a Normal value for Korea RP.
77. The normal value for Korea RP has been determined based on facts available in terms of Rule 6(8) of the
Rules. The normal value so determined is mentioned in the dumping margin table below.
F.3.6.b Export price for Korea RP.
78. The net export price for Korea RP has been determined based on facts available in terms of Rule 6(8) of the
Rules. The net export price has been calculated from the customs data. Since the data reported is at CIF level,
adjustments have been made for ocean freight, marine insurance commission, inland freight, port expenses and
bank charges. The net export price so determined is mentioned in the dumping margin table below.
F.3.7 Dumping margin.
79. Based on the normal value and export price determined above, the dumping margin for the participating and
non-participating producers has been determined and is shown below.
+-------+-------------------------------------+--------------+--------------------+--------------------+-----------------+-----------------+
| SN | Particular | Normal value | Net export price | Dumping margin | Dumping margin | Dumping margin |
| | | USD/MT | USD/MT | USD/MT | % | Range |
+=======+=====================================+==============+====================+====================+=================+=================+
| 1 | China PR | | | | | |
| a | Hebei Chengxin Co. Ltd. | *** | *** | *** | *** | 40-50 |
| b | Any other | *** | *** | *** | *** | 70-80 |
+-------+-------------------------------------+--------------+--------------------+--------------------+-----------------+-----------------+
| 2 | European Union | | | | | |
| a | Lučební závody Draslovka a.s. Kolín | *** | *** | *** | *** | 100-110 |
| b | Any other | *** | *** | *** | *** | 120-130 |
+-------+-------------------------------------+--------------+--------------------+--------------------+-----------------+-----------------+
| 3 | Japan | | | | | |
| a | Any other | *** | *** | *** | *** | 30-40 |
+-------+-------------------------------------+--------------+--------------------+--------------------+-----------------+-----------------+
| 4 | Korea RP | | | | | |
| b | Any other | *** | *** | *** | *** | 20-30 |
+-------+-------------------------------------+--------------+--------------------+--------------------+-----------------+-----------------+
80. The Authority notes that an inadvertent typographical error occurred in the disclosure statement in mentioning
the ‘dumping margin range’ of the producer Lučební závody Draslovka a.s. Kolín as well as ‘any other
producer’ from the European Union. The dumping margin range has now been corrected in the above table in
these final findings.
EXAMINATION OF INJURY AND CAUSAL LINK
G.1 Submissions made by other interested parties.
81. The other interested parties have submitted as follows with regards to injury to the domestic industry:
a. There is no increase in imports from the subject countries in absolute terms or relative to production or
consumption in India.
b. Analysis of “unnecessary imports” does not have any basis either in the Act or AD Rules. The increase
in imports should be examined objectively in absolute terms or in relation to production or
consumption in India.
c. Imports from the European Union cannot be a cause of injury. Imports from the European Union have
declined at a much higher rate as compared to other countries.
d. Cumulative assessment of imports from EU with imports from other countries is not justified as EU
prices are 10% higher than Chinese prices, 6% higher than the average price and 13% higher than the
import prices from other countries. Price undercutting is negative for the European Union.
e. Imports from Japan cannot be a cause of adverse price impact as the imports from China were in major
proportion whereas the imports from Japan were only 10% of the market share.
f. The price undercutting has declined over the injury period. Losses in 2021-22 cannot be due to imports
from the subject countries when the volume of imports came down significantly.
g. Production of the domestic industry has increased throughout the injury period. It has increased by
537% in the period of investigation as compared to the base year.
h. The domestic industry has not explained the reason for the increase in cost of sales. The change in cost
is because of a temporary rise in raw material prices and capacity addition.
i. UPL has been exporting products under consideration from December 2021 at prices much below the
price at which goods are imported from the subject countries.
j. As UPL has set up a new unit, the Authority should undertake a separate injury analysis for it and
compare its actual information with the projection.
k. Actual capacity utilization of UPL cannot be considered for determining NIP since UPL is a new
producer.
l. Quarterly utilization over the period of investigation should be adopted for raw material cost and cost
of utilities for determination of NIP.
m. Injury parameters are impacted due to startup operations and inefficiency of UPL.
n. The mindless enhancement in capacity is causing injury to the domestic industry. The production
capacity is much higher than the demand of the subject merchandise in India.
o. The applicants have requested injury determination to be considered after including captive
consumption as well. The Authority should adopt that methodology which is permissible under the AD
Rules, and which is consistently being followed.
p. The domestic industry’s request for more than 22% return on capital employed for NIP should be
rejected because 22% is already high and was fixed as a standard when the interest rates were very
high.
q. The domestic industry has already captured a major share of demand as the imports have drastically
decreased.
r. The closing stock of the domestic industry has declined by 62% in the period of investigation as
compared to the immediately preceding year.
s. The increase in stock is due to (a) HCC’s production suspension for regulatory reasons, (b) UPL setting
up a new plant and (c) imports of massive quantity by HCL.
t. The domestic industry has selectively chosen the period of investigation to paint a picture of injury
where none existed. During this period, there was a temporary upsurge in prices of ammonia and
caustic soda lye which has also caused a significant increase in import prices as well.
u. Shutdown of HCC’s plant and COVID-19 lockdown took place during the first quarter of 2021-22 and
have negatively affected the business, sales, and profits.
v. Shutdown of the UPL plant was also not because of the dumped imports since the imports had declined
when UPL had first started its production.
w. Injury might be due to high depreciation and interest cost.
x. Demand for imports is guided by various other factors including prices, technology, quality, timely
supply, etc.
y. Import price from European Union are 10% higher than Chinese prices and 6% higher than the average
price. Further, the import prices from European Union remained stable throughout the period of
investigation.
z. Price undercutting is negative for European Union.
aa. The market share of the applicants has increased by 550% and the import share has declined to a mere
9% and yet the applicants have claimed injury on account of these imports.
bb. The capacity of the applicants has increased by 637% in just one year. Similarly, production and
domestic sales have increased by 496% and 431%. The applicants expect the capacity to be fully
utilised within one year. The Authority has initiated this investigation based on such an absurd
argument/claim.
cc. Temporary stock piling is also due to import of massive quantity by HCC. The company’s capacity
utilization and market share were close to 90%.
dd. The injury parameters are adversely impacted due to startup operations of UPL and inefficiency of the
applicants.
ee. As required under Article 3.5, in completing an adequate “non-attribution” analysis, the investigating
authority must ensure that injury caused by any other known factors is not wrongly attributed to the
dumped imports. As a result, they must "separate and distinguish the injurious effects of the dumped
imports from the injurious effects of those other factors".
ff. The comparison of the export price and domestic selling price is inappropriate since the claim is based
on indexed numbers. The export price to India is higher than the domestic selling price during the base
year.
gg. The increase in price of raw material has been abnormal and temporary in nature. The raw material
prices have started normalizing in the post period of investigation.
hh. The rise in raw material prices was due to Russia-Ukraine war. The decline in delta is due to several
factors which do not account for dumping.
ii. The claim by the domestic industry to calculate non injurious price on domestic production and not on
domestic merchant sales is baseless since the duty protection is available for domestic sales and not
captive consumption. While calculating the NIP, more weightages should be given to HCC since its
share in the domestic sales is significant as compared to UPL.
jj. The reason for decline in delta was because the raw material prices were at an all-time high and not
because of dumping by the producers in the subject countries.
kk. The imports were needed due to demand and supply gap. Considering the shutdown of the plant of UPL,
there was a demand and supply gap of at least 35%.
ll. The argument of the domestic industry that the delta has declined was due to the fact that the raw
material prices increased globally in the period of investigation. The raw material prices have declined
again in the post period of investigation.
mm. The methodology proposed by the applicants to calculate price undercutting based on same profit as in
the past is incorrect as price information is required to be considered based on the accounting records.
nn. UPL plant faced disruptions as they imported secondhand plant from China PR with glass reactors. It
has replaced some glass line reactors but is still struggling with the second-hand inefficient machines.
G.2 Submissions made on behalf of the applicants.
82. The applicants have submitted as follows with regards to injury to the domestic industry:
a. A cumulative assessment of imports from the subject countries is required as requirements of Annexure
II (iii) of the AD Rules have been satisfied.
b. Imports from subject countries declined with HCC’s plant becoming operational in 2019-20 and
commencement of production by UPL in 2021-22 thereby closing the demand-supply gap.
c. If the imports necessary due to the demand-supply gap are removed, the imports from the subject
countries have increased very significantly in the period of investigation.
d. The exporters from the subject countries have not increased their export prices in line with the increase
in the prime cost resulting in significant dumping.
e. The landed price of imports in the period of investigation is below the selling price of applicants
resulting in positive price undercutting despite company selling the product at losses.
f. As regards the submission that the price undercutting has declined, a decline in price undercutting
shows increasing competition between the domestic and imported products. The price undercutting has
declined because the domestic industry is selling at losses. Had the domestic industry not sacrificed
profits, the price undercutting would have been higher.
g. The imports have had a suppressing impact on the prices of the applicants in the period of investigation
and price depression over the injury period.
h. While capacity in India was sufficient in 2021-22 and the period of investigation to meet the demand,
the increase in production was much less than the demand-supply gap in the same period due to
dumping from the subject countries.
i. Profitability has declined significantly in 2021-22 and the period of investigation.
j. The applicants are bleeding financial losses and a negative return on capital employed in the proposed
period of investigation.
k. Cash profits of the applicants have significantly declined over the injury period.
l. The market share of the applicants is below the level to which it can cater.
m. The inventory with the applicants has increased over the injury period. The decline in inventories to
some extent in the period of investigation is a result of suspension of production to contain inventories.
n. Even at the normated cost of production, the applicants are suffering losses, cash losses and negative
return on capital employed.
o. If changes in prime cost are taken into consideration, the import price is at least 20% below the price it
should have been.
p. The applicants have recorded significantly negative and adverse growth.
q. While UPL has recently invested more than 500 Cr. in the product, no producer would want to invest in
their business considering the current performance.
r. Injury to the domestic industry is not because of any other factors but rather due to dumped imports
from the subject countries.
s. The decline in demand is not a cause for injury as demand for the subject goods has increased over the
injury period.
t. Imports from the subject countries hold 39% share in the Indian demand in a situation where the
demand in the country was only 85% of the capacity of the domestic industry. The imports were
preventing utilisation of production capacities and caused adverse volume effects on the Indian
industry.
u. While delta between import price into India and raw material prices was more than 1600 USD/MT
before UPL commenced production, the delta steeply declined post the commencement of production.
Delta towards end of the period of investigation was only 300 USD/MT.
v. The period of investigation saw a steep increase in the prime cost of more than Rs 34,000 per MT but
the increase in import price was only Rs 8000 per MT.
w. Had the domestic industry kept the same profit per unit as was being earned in the base year, the price
undercutting would have increased in the period of investigation to a staggering level of 54%.
x. As regards the submission of Emmennar Pharma Pvt. Ltd. on demand for imports being guided by
various other factors, Emmennar Pharma Pvt. Ltd. has partly started sourcing its requirements from
UPL in 2021-22 and the period of investigation. Therefore, the contention cannot be accepted.
y. The quality of material supplied by the domestic industry is better as UPL’s technology is superior to
exporters.
z. The lead time of the domestic industry is lower than that of the exporters.
aa. The inventory as % of sales have increased over the injury period. The inventory as % of sales have
declined in the period of investigation only because UPL decided to suspend production for some time
in the period of investigation to ease off rising inventories.
bb. As regards the argument on export sales made by UPL at same prices in which the product is imported,
UPL has been forced to export the product under consideration from December 2021 because of
difficulty in selling the same in the Indian market because of dumped imports. UPL is suffering in
exports as well.
cc. As regards high finance costs being a cause of injury, the interest cost charged in the cost of production
is nil in the case of HCC and less than 0.1% in the case of UPL.
dd. As regards depreciation being a cause of injury, the cost of production as depreciation cost is
insignificant. The domestic industry is suffering at the normal cost of production as well.
ee. As regards the argument that the domestic industry is suffering due to inherent issues, the domestic
industry would have been profitable had the exporters adjusted their prices in line with the change in the
prime cost.
ff. While the injury analysis is required for the domestic industry as a whole and not selectively for only
one of the participating producers, an analysis of the individual performance of the domestic industry
will show that both the producers are suffering injury.
gg. HCC has been producing for more than 20 years and the plant is highly depreciated. A return on capital
employed of 22% will not be reasonable for NIP calculation. 22% would imply a profit which will be
insufficient to cover any future interest cost, fresh investments, and taxes. The Authority may consider
past profits as a basis to determine the non-injurious price.
hh. Had HCC procured natural gas at market prices, it would have suffered losses.
ii. UPL Limited has achieved a capacity utilization of 90% in the injury period and the Authority may
consider it for calculation of its non-injurious price. For UPL, 22% return on capital employed can be
considered for NIP calculation as it is a new plant and requires complete protection from dumping.
G.3 Examination by the Authority
83. Rule 11 of the Rules read with Annexure II provides that an injury determination shall involve examination of
factors that may indicate injury to the domestic industry, “… taking into account all relevant facts, including
the volume of dumped imports, their effect on prices in the domestic market for like articles and the consequent
effect of such imports on domestic producers of such articles…”. In considering the effect of the dumped
imports on prices, it is considered necessary to examine whether there has been a significant price undercutting
by the dumped imports as compared with the price of the like article in India, or whether the effect of such
imports is otherwise to depress prices to a significant degree or prevent price increases, which otherwise would
have occurred, to a significant degree.
84. The submissions made by the domestic industry and other interested parties during the course of investigation
with regard to injury and causal link and considered relevant by the Authority are examined and addressed
below under the relevant parameters.
85. The Authority notes that it is not necessary that all parameters of injury show deterioration. Some parameters
may show deterioration, while some others may not. The Authority considers all injury parameters and,
thereafter, concludes whether the domestic industry has suffered injury or is likely to suffer injury due to
dumping. The Authority has examined the injury parameters objectively considering the facts and arguments
submitted by the domestic industry and the other interested parties.
Cumulative assessment of imports.
86. Article 3.3 of WTO agreement and Para (iii) of Annexure II of the AD provide that in case where imports of a
product from more than one country are being simultaneously subjected to anti-dumping investigation, the
Authority will cumulatively assess the effect of such imports, in case it determines that:
a. The margin of dumping established in relation to the imports from each country is more than two
percent expressed as percentage of export price and the volume of the imports from each country is
three percent (or more) of the import of like article or where the export of individual countries is less
than three percent, the imports collectively account for more than seven percent of the import of like
article and
b. Cumulative assessment of the effect of imports is appropriate in light of the conditions of competition
between the imported article and the like domestic articles.
87. The Authority notes that:
a. Imports of the product under consideration from China PR, European Union, Japan and Korea RP are
at dumped prices.
b. The margins of dumping from each of the subject countries are more than the de minimis limits
prescribed under the AD Rules.
c. The volume imports from these countries are above the de minimis limits prescribed under the AD
Rules.
88. In order to ascertain whether cumulative assessment of the effect of imports is appropriate in light of the
conditions of competition between the imported article and the like domestic articles, the following parameters
have been examined: -
a. Products supplied by different parties are like articles and are comparable in properties.
b. Domestically produced products and the imported products are interchangeable. Consumers are using
domestic material and imported material interchangeably and the exporter and the domestic industry
have sold the same product to same set of customers.
c. There is direct competition between the domestic product and the imported product and inter-se
between the imported products.
d. Import price from the subject countries have moved in tandem with each other.
89. The Authority notes that the domestic industry has provided evidence that the domestic producers and exporters
from the subject countries sell the like product to the same category of customers and both are competing in the
same market. Both products are being used by the consumers interchangeably. The same has also been
ascertained by the Authority through DG Systems data.
90. The table and graph below show the import price from the subject countries.
+-------+------------------+---------+----------+----------+----------+----------+
| SN | Country Name | UOM | 2019-20 | 2020-21 | 2021-22 | POI |
+=======+==================+=========+==========+
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