DGAD Initiates Sunset
Review Investigation on Metronidazole from China after High Court Order
Intervention
[File No. 7/6/2017-DGAD dated 29
August 2017]
Case No.
SSR- 09/2017
Sub: - Initiation of Anti-Dumping Sun Set Review investigation
concerning imports of “Metronidazole” originating in or exported from China PR.
This Initiation
Notification is subject to the final outcome of the Writ Petition No. WP (C)
No. 7464/2017 being heard in the High Court of Delhi, at New Deli.
Having regard
to the Customs Tariff Act, 1975 as amended in 1995 and thereafter (hereinafter also
referred 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, the Designated Authority (hereinafter also referred as the Authority) initiated
anti dumping investigations on imports of “Metronidazole”
(hereinafter also referred as the subject goods), originating in or exported from
China PR (hereinafter also referred as the subject country) vide Notification No.
17/1/99-DGAD dated 29th July 1999, and recommended imposition of provisional
anti dumping duty vide Notification No. 17/1/99-DGAD
dated 21st February 2000. The provisional antidumping duty in the original
investigation was imposed on imports of Metronidazole from China PR vide customs
notification no. 44/2000-Customs dated 17th April 2000. The final findings
were notified by the Authority vide notification dated 14th July 2000 and the Department
of Revenue imposed definitive anti dumping duties on the
subject goods from subject country vide Notification No. 115/2000-Customs dated
31st August 2000.
2. Pursuant
to the first sunset review, the Authority notified its Final Findings vide
Notification No. 15/9/2003-DGAD dated 5th April 2006 and recommended
continued imposition of anti-dumping duty, on the imports of the subject goods,
originating in or exported from the subject country. As per the recommendations
of the Authority, the anti-dumping duty was imposed by the Central Government vide
Notification No. 61/2006–Customs dated 15th June, 2006.
3. Pursuant
to the second sunset review, the Authority notified its final findings vide
Notification No. 15/18/2010 - DGAD dated 29th June, 2011 and recommended
continued imposition of the anti-dumping duty on the imports
of the subject goods, originating in or exported from the subject country. As per
the recommendations of the Authority, the anti- dumping duty was imposed by the
Central Government vide Notification No. 40/2012-Customs dated 30th August,
2012.
4. Pursuant
to mid-term review conducted at the behest of M/s Hubei Hongyuan
Pharmaceutical Technology Company Ltd. formerly known as M/s Hubei Hongyuan Pharmaceutical Co. Ltd. requesting change in name of
the exporter, the Authority notified final findings recommending the above change
vide Notification No. 15/11/2015-DGAD dated 7th March 2016. The Central
Government notified the above change vide Notification No. 19/2012- Customs dated
20th October, 2011.
5. Whereas,
M/s Aarti Drugs Ltd. (hereinafter referred to as ‘petitioner’)
have filed a duly substantiated petition before the Authority, in accordance
with the Act and the Rules alleging likelihood of continuation or recurrence of
dumping of the subject goods, originating in or exported from China PR and consequent
injury to the domestic industry and have requested for review and continuation of
the anti-dumping duties, imposed on the imports of the subject goods, originating
in or exported from the subject country.
6. Whereas,
the Authority duly examined this petition and based on that examination issued an
Order dated 22nd August, 2017 that it ‘does not find it appropriate to initiate the sunset review investigation
concerning import of “Metronidazole” originating in or exported form China PR at this stage’. Thereby, it rejected the petition.
7. Whereas,
the petitioner M/s Aarti Drugs Ltd. filed a Writ Petition
- WP(C) No. 7464/207 and CM. No. 30761/2017 in the Hon’ble High ort of Delhi. The
Hon’ble High Court in its Order dated 25th August, 2017 has directed
that the Authority to initiate the SSR in this case no later than 29th
August, 2017. The operative by portion of order is as below:
“3. Considering that the date of expiry
of the Anti-Dumping Duty in the present case is 29th August, 2017, the
Court directs the Respondents to initiate the SSR in the Petitioner’s case not later
than 29th August, 2017. The SSR notification shall clearly state
that the proceedings would be subject to the final outcome of the writ petition.
This order is without prejudice to the rights and conditions of the parties and
will continue till further orders.
4. As regards the question of Continuation
of the ADD… learned counsel for the respondents seeks time for instructions”.
8. In compliance with the above stated directions of
the Hon’ble High Court, a sunset review case is hereby initiated with the following
details:
Country Involved
9. The subject country in the present sunset review
investigation is China PR.
Product under
Consideration and Like Article
10. The
product under consideration in the present investigation is “Metronidazole”. Metronidazole
is anti-diarrhea and anti-microbial drug. It is used in cases of Amoebiasis, Trichomoniasis,
post-operative infection after surgery, giardiasis, acute ulcerative and gingivitis,
anaerobic, vaginosis treatment of infection caused by anaerobic micro formation.
11. Metronidazole
is an organic chemical classified under Chapter 29 subheading 29332920 of the Custom
Tariff Act, 1975. However, the customs classification is indicative only and is
in no way binding on the scope of the present investigation.
Like Article
12. Rule
2(d) with regard to like article provides as under: -
“like article" means an article
which is identical or alike in all respects to the article under investigation
for being dumped in India or in the absence of such article, another article which
although not alike in all respects, has characteristics closely resembling
those of the articles under investigation;”
13. Petitioner
has claimed that there is no known difference in subject goods produced by them
and exported from the subject country. The product under consideration produced
by the petitioner and imported from the subject country are having comparable characteristics
in terms of parameters such as physical & chemical characteristics, manufacturing
process & technology, functions & uses, product specifications, pricing,
distribution & marketing and tariff classification of the goods. The petition
filed is for the review and continuation of the anti- dumping duty in force, and
the issue of like article has been already dealt with in the previous investigations.
In the earlier investigations, the Authority has already held that the subject goods
produced by the domestic industry are like article to the same imported from the
subject country.
Domestic Industry
& Standing
14. The petition
has been filed by M/s. Aarti Drugs Ltd., Mumbai. The petitioner
has imported the subject goods from China PR during the period of investigation.
The petitioner has explained that the imports are under advance license, i.e. on
a duty free basis for production of Metronidazole Benzoate and thereby to meet their
export obligation of this product. The petitioner is not related to any other producer/exporter
of subject goods in the subject country or any importer in India. The issue of the
imports of the subject goods from the subject country by the petitioner during the
POI which was one of the grounds for declining the application for initiation of
SSR vide the Authority’s Order dated 22 August 2017 will be taken into consideration
on merits as per the applicable Rules during the investigation now being initiated.
15. Unichem Laboratories Ltd. is the other known producer of the
subject goods in India. However, Unichem produces the
product primarily for export.
16. It is
seen that the production of the petitioner is about 91% of the total Indian production.
The petitioner in any case is the majority producer of the subject goods in India
and is eligible domestic industry within the meaning of Rule 2(b) read with Rule
5(3) of the Rules of Anti- Dumping Rules.
Initiation
of Sunset Review of Anti-Dumping Duty
17. Whereas
the petitioner has filed a detailed petition in accordance with Section 9A(5) of
the Act, read with Rule 23 of the Anti-dumping Rules, the Authority hereby initiates
a Sunset review investigation to review the need for continued imposition of
the duties in force in respect of the subject goods, originating in or exported
from the subject country and to examine whether the expiry of such duty is likely
to lead to continuation or recurrence of dumping and injury to the domestic industry
in terms of the interim Order of The Hon’ble High Court of Delhi dated
25th August,
2017 on Writ Petition No. WP (C) No. 7464/2017 filed by the petitioner wherein
the Hon’ble High Court has directed that the Authority inter alia initiate the SSR in this case no later than 29th August,
2017.
Period of
Investigation
18. The period
of investigation (POI) is April 2016 – March 2017 (12 months) for the purpose of
present investigation. The injury investigation period will however cover the periods
April 2013-March 2014, April 2014 - March 2015, April 2015-March 2016 and the POI.
The data beyond POI may also be examined to determine the likelihood of dumping
and injury.
Procedure
19. The present
sunset review covers all aspects of Notification No. 15/18/2010 -DGAD dated 29th June 2011 (final findings of the second sunset review investigation)
and Notification No. 15/11/2015-DGAD dated 7th March
2016 (final findings of the mid-term review).
20. The provisions
of Rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 of the Rules supra shall be mutatis
mutandis applicable in this review.
Submission
of information
21. The known
exporters in the subject country, the government of the subject country through
its embassy in India, the importers and users in India known to be concerned with
the product are being addressed separately to submit relevant information in the
form and manner prescribed and to make their views known to the Authority at the
following address:
Government of India Ministry of Commerce & Industry
Department of Commerce
Directorate General of Anti-Dumping and Allied Duties
4th Floor, Jeevan Tara Building
5, Parliament Street, New Delhi – 110001 dgad.india@gov.in
22. Any other
interested party may also make its submissions relevant to the investigation in
the prescribed form and manner within the time limit set out below. Any party
making any confidential submission before the Authority is required to submit a
non-confidential version of the same to be made available to the other parties.
Time Limit
23. Any
information relating to the present review and any request for hearing should be
sent in writing so as to reach the Authority at the address mentioned above not
later than forty days (40 Days) from the date of issuance of such letter. Any
other interested party, whose address is not available, may also submit
comments/ information within 40 days from date of publication of this notification.
Submission
of information on confidential basis
24. In case
confidentiality is claimed on any part of the questionnaire response/submissions,
the same must be submitted in two separate sets (a)marked as Confidential (with
title, index, number of pages, etc.) and (b) other set marked as Non-Confidential
(with title, index, number of pages, etc.). All the information supplied must be
clearly marked as either “confidential” or “non-confidential” at the top of each
page and accompanied with soft copies.
25. Information
supplied without any confidential marking shall be treated as non- confidential
and the Authority shall be at liberty to allow the other interested parties to inspect
any such non-confidential information. Two (2) copies of the confidential version
and two (2) copies of the non-confidential version must be submitted by all the
interested parties.
26. For information
claimed as confidential, the supplier of the information is required to provide
a good cause statement along with the supplied information as to why such information
cannot be disclosed and/or why summarization of such information is not possible.
27. The non-confidential
version is required to be a replica of the confidential version with the confidential
information preferably indexed or blanked out /summarized depending upon the
information on which confidentiality is claimed. The non-confidential summary
must be in sufficient detail to permit a reasonable understanding of the substance
of the information furnished on confidential basis. However, in exceptional circumstances,
parties submitting the confidential information may indicate that such information
is not susceptible to summarization; a statement of reasons why summarization is
not possible must be provided to the satisfaction of the Authority.
28. The Authority
may accept or reject the request for confidentiality on examination of the nature
of the information submitted. If the 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 authorize its disclosure in generalized or
summary form, it may disregard such information.
29. Any submission
made without a meaningful non-confidential version thereof or without a good cause
statement on the confidentiality claim may not be taken on record by the Authority.
The Authority on being satisfied and accepting the need for confidentiality of the
information provided; shall not disclose it to any party without specific authorization
of the party providing such information.
Inspection
of public file
30. In terms of rule 6(7) of the Rules, any interested
party may inspect the public file containing non-confidential version of the evidences
submitted by other interested parties.
Non-cooperation
31. In case
any interested party refuses access to and otherwise does not provide necessary
information within a reasonable period, or significantly impedes the investigation,
the Authority may declare such interested party as non-cooperative and record its
findings on the basis of the facts available to it and make such recommendations
to the Central Government as deemed fit.