Per K.C. Mamgain:

These appeals are filed by importers, M/s. Hindustan Lever Ltd and M/s. National Aluminium Company Ltd. challenging recommendation of Designated Authority notified under Notification No. 14/39/2002 - DGAD dated 1.10.2003 and Notification No. 168/2003-Cus dated 14.1.2003 issued by the Government of India, imposing anti-dumping duty on Caustic Soda when imported from Chinese Taipei, Indonesia and European Union (excluding France).

2. On the basis of written application received from M/s. Alkali Manufacturer Association of India (AMAI) on behalf of Domestic Industry alleging dumping of Sodium Hydroxide commonly known as Caustic Soda originating in or exported from Chinese Taipei, Indonesia and European Union (excluding France), investigations were initiated into the alleged dumping in terms of Section 9 A of Customs Tariff Act, 1975 read with Customs Tariff (Identification Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as Anti-Dumping Rules). After following the prescribed procedure, preliminary findings were notified under Notification No, 14/39/2002-DGAD dated 8.1.2003. Investigation was carried out for the period from 1st Jan. 2002 to 30.9.2002. The copy of the preliminary findings were forwarded to all interested parties. Public hearing was held on 22nd April, 2003. The written submissions received from interested parties were considered by the Designated Authority. Non-confidential version of the evidence presented by various interested parties were kept open for inspection by interested parties in the public file under Rule 6(7). In terms of Rule 16 of the Anti-dumping Rules, essential facts/basis considered for arriving at the findings were disclosed to all interested parties and comments received on the same were Considered in the final findings.

Argument on Behalf of the importers

3. On behalf of Hindustan Lever, it was argued that the appellants fully complied with the procedure as required by the Anti-Dumping Rules and filed a detailed reply to questionnaire in the form and manner required by the due date. No notice was received by the appellants at any stage of proceedings when the preliminary findings were issued, public hearing was scheduled and re-scheduled. The appellants learnt about the issuance of the final findings through a press article. The investigation was wrongly initiated based on prima facie mis-leading data, by relying on privately sourced import data which was kept confidential and proof of normal value was also kept confidential. The domestic industry provided import data under proforma IV A for the period Jan. to July, 2002 whereas the injury analysis has been made for the period of investigation i.e. Jan. to Sept., 2002. The Designated Authority has relied on different import figures for the same product, for the same period, albeit in different investigations. The Designated Authority failed to recognise Revenue realisation from both Chlorine and Caustic Soda, which are co-products arising out of the electrolytic splitting of common salt while determining the injury. It is a commercial reality that the realization of both Chlorine and Caustic Soda is intrinsically linked to each other and manufacturers determine the price of each in terms of output measured in electrochemical unit. For fixing non-injurious price for domestic industry and its constituents without considering the Cost Accounting Records, (Caustic Soda) Rules, 1967. Reliance was placed on this Tribunal's Final Order Nos. 26-28/ 05-AD dated 23.12.05 in case of M/s. Alkali Manufacturer's Association of India and Others vs. Designated Authority [reported in 2006 (72) RLT 643 (CESTAT-Del.)] where the final findings of DA were set aside on the ground that Chlorine should be treated as ex-product as per para 12 of Armexure-III to Cost Accounting Records (Caustic Soda) Rules, 1967.

3.1 In considering the profitability of domestic Chlo