The Anti-dumping Bench of the CESTAT, in two separate decisions, has allowed exclusion of ‘clad with compatible non-clad aluminium foil’ and ‘Lithograde aluminium coils above 1150 mm’ from the scope of the product - certain flat rolled products of aluminium, in a dispute involving imposition of anti-dumping duty on flat rolled products of aluminium from China PR.
Clad with compatible non-clad aluminium foil
The CESTAT in this regard relied upon Article 3.10 of the Manual of Standard Operating Practices for Trade Remedy Investigations issued by the Directorate General of Trade Remedies, Department of Commerce, Government of India, according to which mere competence without any production or merchant sales may not be sufficient, to include an item in the definition of the product under consideration. The Tribunal hence held that an item which has not been sold by the domestic industry in commercial quantities should not be included in the scope of the product under consideration by the domestic industry. It noted that the domestic industry also failed to substantiate that it had made commercial supplies of clad with compatible non-clad aluminium foil during the period of investigation.
Allowing importer’s appeal, the Tribunal in Mahle Anand Thermal Systems Private Limited v. Designated Authority also observed that a cladded coil or clad with compatible non-clad aluminium foil is not a simplicitor flat rolled product of aluminium, but it is a coil which has been manufactured out of three flat rolled products of aluminium, and that the present investigation was only on certain flat rolled products of aluminium and not on products that are manufactured out of flat rolled products of aluminium.
Lithograde aluminium coils above 1150 mm
In another dispute regarding exclusion of Lithograde aluminium coils above 1150 mm from the scope of anti-dumping duty on flat rolled products of aluminium, the CESTAT has also allowed the appeal of the importers.
The Tribunal in this case also noted that when the domestic industry does not manufacture/produce lithograde aluminium coils above 1150 mm on a commercial basis, this product would have to be excluded from scope of the product on which anti-dumping duty has been imposed under the customs notification dated 6 December 2021.
Allowing importer’s appeal, the Tribunal also observed that for the period from Financial Year 2019-2020 to 2022-2023, domestic industry only supplied miniscule quantities, on trial basis to the appellant (importer) during the period of investigation but no supply of higher width coils was made to the appellant either pre or post period of investigation. It noted that only 2% of the requirement of the appellant of higher width coils were supplied on trial basis during the period of investigation and 25% of the supplies were rejected because they did not meet the technical manufacturing requirements.
The Tribunal in Technova Imaging Systems Private Limited v. Union of India also rejected the plea of the domestic industry that wide width coil (above 1150 mm) can substitute lower width coil (less than 1150 mm width) which will ultimately lead to circumvention of the imposed anti-dumping duty. It, in this regard, noted that the contention was not only an afterthought as it was not a point taken before the designated authority, but it was also not tenable and technically not possible. Agreeing with the pleadings of the appellant-importer, the Tribunal noted that the length of the coated coil cannot be transposed as width of the plate while mounting in the press.
Similarly, the plea of the domestic industry that they are setting up a new line for wide width coil to be produced in future, was also rejected by the Tribunal while it observed that the anti-dumping law requires consideration of period of investigation data and not future commitments which is entirely subjective.