GOVERNMENT OF INDIA
MINISTRY OF COMMERCE & INDUSTRY
(DEPARTMENT OF COMMERCE)
DIRECTORATE GENERAL OF ANTI DUMPING & ALLIED DUTIES

NOTIFICATION

New Delhi, the 26^th March 2003.

PRELIMINARY FINDINGS

Subject: Anti-dumping investigation concerning imports of Borax Decahydrate originating in or exported from the Turkey and China PR Preliminary Findings,

No. 14/40/2002-DGAD - Having regard to the Customs Tariff Act, 1975 as amended in 1995 and the Customs Tariff (Identification, Assessment and Collection of Anti Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, thereof;

A. PROCEDURE:

2.    The procedure described below has been followed:-

(i)    The Designated Authority (hereinafter referred to as Authority), under the above Rules, received a written    petition from M/s. Borax Morarji Limited, Mumbai. on behalf of the domestic industry, alleging dumping of Borax Decahydrate also known as Di-Sodium Tetra Borate Decahydrate originating in and exported from Turkey, China PR and USA;

(ii) The petitioner withdrew the application against USA after examination by the Authority that there is no prima facie evidence of imports from the USA as per the data submitted by the petitioner.

(iii) The Authority notified the Embassy of Turkey and China PR in India about the receipt of petition requesting imposition of Anti Dumping duty concerning imports of Borax Decahydrate from China PR and Turkey. made by the petitioner before proceeding to initiate the investigation in accordance with sub-rule (5) of Rule 5 supra;

(iv) The Authority issued a Public Notice dated 25^th November 2002 published in the Gazette of India, Extraordinary, initiating anti dumping proceedings concerning imports of Borax Decahydrate falling under Chapter 28 heading 2840.19 of Schedule I of the Customs Tariff Act.

(v) The Authority forwarded copy of the said public notice to the known exporters, importers, industry associations and to the complainant and gave them an opportunity to make their views known in writing as per 6(2) of the Anti-Dumping Rules.

(vi) According to sub-rule (3) of Rule 6 supra, the Authority provided a copy of the petition to all the known exporters and Diplomatic Missions of subject countries in India.

(vii) The Authority sent questionnaires, to elicit relevant information, to the following known exporters from Turkey and China PR as per Rule 6(4) of the Anti-Dumping Rules.

TURKEY AND CHINA PR:

Turkey

M/s ETI Holding A.S., Eti Pazarlama VE, DIS TICAREY A.S.,

Anit CAD No.* 06570 Tandogan-Ankara

China, PR

M/s Teelon Chemicals , 1908, China Life Insurance Tower 26,

Renmin Rd, Dalina China

Anhui Chemicals Imp. &Ep. Co Ltd., Jinan Mansion, 306 Tunxi Rd,

Hefei, Anhui China – 230001

Sinochem Hebei ( Qinhuangdao) Import & Export Corporation

No. 119 Yanshan Street,

Quinhangdao,

Hebei,

China – 066001

M/s. ETI Holdings, Turkey have responded to the Exporter’s Questionnaire and their submissions have been dealt in appropriate headings.

(viii) The Embassy of Turkey and China PR in New Delhi were also informed about the initiation of investigation and requested to advise the exporters/producers from their countries to respond to the questionnaire within the prescribed time. M/s. Dalian Chem Import & Export Group Co. Ltd., PR China has responded to the exporter’s questionnaire.

(ix) The questionnaire was sent to the following known users/importers of subject goods:-

1) M/s Bhalla Chemicals Works Pvt. Limited

Daulatabad Road,Gurgaon,Haryana – 122001.

2) M/s Sahaj Cerchem ( P) Limited,

7/25, Ansari Road , Darya Ganj, New Delhi – 110002

                    3) M/s Prashant Glass Works ( P) Limited

Motiwala Industrial Estate,P.O. Bhullanpur P.A.C.Varanasi – 221010

4) M/s Avon Cycles Limited , Dhandari Kalan Ludhiana – 141003

5) M/s Hero Cycles , Plot No. 8, Site 4, Sahibabad,

Uttar Pradesh, - 201010

6) M/s Grow – More Group Of Companies ,

Athwagate Surat – 1

7) M/s Bright Ceramics , Morbi- 363642

8) M/s Matrix Cera Enamel Co., 226, GIDC

8- A National Highway,Rafaleshwar, Morbi

9) M/s Mohan Meakin Limited , Mohan Nagar,

Gaziabad – 201007 ( UP)

10) M/s Om Glass Works Pvt. Limited,

105, Hanuman Ganj,Firozabad – 283203

11) M/s Meera Glass Industries

Agra Road, Firozabad – 283203

12) M/s Jagadish Glass Works Pvt. Limited,

No.2, Agra Road, Firozabad – 283203

13) M/s Bhanu Cerglaze Pvt. Limited,

8-2-331/14, Plot No.14, Hyderabad – 500034

14 M/s Ivax Paper Chemicals Limited,

Ivax House, H.No.6-3-248/B,

Hyderabad – 500076

15. M/s ITW Signode India Limited,

Plot No.34 to 37, Phase – II, IDA, Medak District

,Andhra Pradesh

16. M/s Vijay Porceilien Products Limited.

West Godavari Distict,

Andhra Pradesh- 534351

17. M/s Burn Standard Co Limited

Salem – 636005

Tami Nadu

18. M/s Karnataka Agro Chemicals

Bangalore- 560086

19. M/s Kanara Plywood Industries Limited

Mangalore – 575002, Karnataka.

20. M/s Tata Coffee Limited,

Bangalore- 560020

21. M/s Ashoka Marketing Agencies,

Chennai – 600001

22. M/s Pack Aid Products

Chennai – 600039

23. M/s Borax India Ltd.

Pondicherry – 607009

24. M/s Pharma Chem Traders

Calcutta – 700001

25. M/s Sun Borax Industries

Memnagar Road,

Ahemadabad - 380052

26. M/s Bhansali Chemicals

Chennai – 600003

27. M/s Chemi Pharma

Madras – 600003

28. Parth Chem Impex

Mumbai - 400003

29 .M/s Asia Trade International

Navi Mumbai- 400701

30. M/s R.K. International,

Calcutta - 700055

31. M/s Krishna Associates

Calcutta – 700055

32. M/s Prashant Glass Works

Uttar Pradesh – 221 108

33. M/s Sha Kanajee Juharmal

Chennai 600001

34. M/s Vijay Chemicals Works

Pune - 411030

35. M/s Calcutta Overseas Corporation

Calcutta – 700027

Questionnaire was also issued to the following known producers of the subject goods.

Indo Boarx Chemicals Limited, Mumbai.

Indian Borax, Gujarat

M.V. Steels Pvt. Ltd. New Delhi

Northern Borates, Kanpur

Bhansali Chemicals Mfg. Co., Chennai

Raj Industries, Mumbai

Sun Borax Industries, Ahmedabad

None of the importers, users as well as other producers has submitted information pertaining to the Questionnaire.

(x) The Authority kept available non-confidential version of the evidence presented by various interested parties in the form of a public file maintained by the Authority and kept open for inspection by the interested parties;

(xi)    **** in this notification represents information furnished by the interested parties on confidential basis and so considered by the Authority under the Rules;

(xii) The investigation covered the period from 1^st January 2002 to 30^th September 2002.

(xiii) Copies of initiation notice were also sent to FICCI, CII, ASSOCHAM etc., for wider circulation.

 B. PETITIONER’S VIEWS:

3. The name of the product for which the present petition is being filed and which is being dumped in the Indian market by the exporters from China, and Turkey is "Borax Decahydrate", commercially known as "Borax". Its chemical name is Di Sodium Tetra Borate Decahydrate and chemical formula is Na2B4O710H2O. It is an inorganic chemical. It is produced in Technical and IP grades. However, both the grades are like articles. It can be produced in various physical forms such as granules, crystal and powder.

i) Borax Decahydrate is produced from Ulexite reacting it with Soda Ash and Sodium bi Carbonate. Similar is the process followed by the petitioner. However, the starting raw material could be different in respect of different producers in the subject countries. Borax Decahydrate can be produced using "Borax Pentahydrate", "Tincal", "Kernite" or "Ulexite" as the raw material. Whatever be the starting raw material, the technology is largely similar. Manufacturing process is also similar, except that the product falls through short manufacturing process in case the raw material used is Borax Pentahydrate, whereas the production process is fairly longer in case the raw material used is Ulexite. The advantage gained in shorter production process is off-setted by the higher cost of raw material itself, i.e., while production process is fairly longer in case the raw material used is Ulexite, however, cost of Ulexite is much lower as compared to Tincal or Borax Pentahydrate.

ii)The Petitioner has procured information from secondary source, which shows that Borax Decahydrate have been cleared under other custom subheadings such as 284011, 28402001,252810,252890 also. Further imports of Borax Pentahydrate, Boric Acid and Chem Borax have been reported under 2840.19. Further, import information procured from other sources clearly show that imports of Borax Pentahydrate have also been cleared under the same customs sub-classification. Since imports have been allowed under a number of customs classifications, it is requested that the anti-dumping duty may please be recommended on Borax Decahydrate regardless of custom subheadings.

iii)This petition is being filed by Borax Morarji Limited. The Petitioner is major producer of Borax Decahydrate in India. The Company satisfies the standing to file the present petition and constitute "domestic industry" within the meaning of the Rules. There were more than a dozen manufacturers of the subject goods in India earlier. However, various small producers have stopped their production and few of them are working as traders now by importing the subject goods and selling them locally in Indian market.

iv)There is no significant difference in Borax Decahydrate produced by the Indian industry and Borax Decahydrate exported from China and Turkey. Borax Decahydrate produced by the petitioner and imported from China and Turkey are comparable in terms of characteristics such as physical & chemical characteristics, manufacturing process & technology, functions & uses, product specifications, pricing, distribution & marketing and tariff classification of the goods. The two are technically and commercially substitutable. The consumers have used the two interchangeably. Borax Decahydrate produced by the petitioner and imported from China and Turkey should be treated as like articles in accordance with the anti-dumping Rules.

v)The petitioner has submitted that in the recent amendment made under Customs Notification No.28/2001 (N.T.) dated 31^st May 2001, China has been declared as non-market economy. Accordingly they have submitted constructed normal value as an indicator of normal value in China PR. As regards determination of normal value in Turkey, Efforts were made to get information about the price lists of the exporters in Turkey for their sales in the home market or commercial invoices raised by them or other traders for sales made in Turkey. However, no reasonable, accurate and reliable information published or otherwise, could be traced from any authentic and reliable source with regard to actual sales transactions in Turkey. Petitioner has, however, been able to get evidence of the volume and value of Borax Decahydrate exported from Turkey to EU member countries. The information provided is average export price from Turkey to EC member countries and, thus, is a good indicator of the average price at which Borax Decahydrate has been exported from Turkey to European Union.

vi) Export prices at the Ex factory level have been taken out after making adjustments for Ocean Freight, Marine Insurance, Commission, Inland Transportation in the country of export, Port handling and port charges. It may be seen from the above that dumping margin is not only more than de- minimus but also very substantial.

C. EXPORTERS, IMPORTERS’ AND USERS’ VIEWS:

        4. EXPORTERS:

5. M/s ETI Holdings, Turkey

M/s Borochemie, Singapore

M/s ETI Holdings, A.S., located in Ankara, Turkey is a wholly stated owned company under the Ministry of Energy and Natural Resources. ETI Holdings, A.S exports the products produced by its subsidiaries. ETI Bor A.S. is a manufacturer of the product under consideration and is a 100% subsidiary company of ETI Holdings A.S. which is owned by the Govt. of Turkey.

M/s. ETI Bor A.S. manufactures the product and sells itself in the domestic market while for export purposes it sells the products to its holding company ETI Holdings AS who exports it all over world including India. They add that during the POI and previous two years, their only customer to their record was M/s. Borochemie International Pte. Limited Singapore who is ETI Holdings’ exclusive agent for India.

They have commented on the lack of evidence for initiation in this anti dumping investigations by the Authority. As regards normal value determination, they have submitted that it has been based on the price at which Borax Decahydrate BDH has been exported from Turkey to EU. However, there is no mention anywhere in this Annexure or in the Non-Confidential Version as the basis of source of this data to establish its authenticity. They submit that Turkey has been exporting BDH at international prices at hence it would be difficult to establish dumping based on export price to any other country. In order to overcome this difficulty, the petitioner has inflated the export price to EU without any basis or source.

As regards import data, they submit that for imports from China, the petitioner has not included the data from the secondary sources as has been done in the case of Turkey. They further comment that the use of such different varieties of sources creates a doubt as to the truth and accuracy of the data as points to an ulterior motive in the petition.

The exporter has represented that the import data from USA have been deliberately suppressed by the petitioner. The exporter has commented that there is no prima facie evidence of material injury during the POI and in the previous years. As the selling price of the petitioner has remained more or less steady in 2000-01 and the POI, there is no price depression or price undercutting from the allegedly dumped imports from Turkey and China.

The exporter has also held that since January 2001 the petitioner has started manufacturing BDH from raw materials Ulexite, imported from South America and this route consumes other raw materials also resulting into still higher costs which is primarily due to due to incorrect project appraisal.

M/s. Northern Borates Pvt. Ltd. who had originally given a letter of support has subsequently withdrawn the support. They have opposed in writing the inclusion of Turkey in the investigation. Similarly, three other domestic producers viz. M/s. Indo Boarx &Chemicals Limited. M/s. M.V. Steels Pvt. Limited, and M/s. Sun Borax Industries have also given in writing their opposition to the inclusion of Turkey in the investigation. On this ground also, the investigation is liable to be terminated.

Borochemie International Pte. Limited.

M/s. Borochemie International Pte. Limited is registered in the Republic of Singapore and is not a producer of Borax Decahydrate. The company is an exclusive agent of ETI Holdings A.S. ETI Bor A.S. is a producer of the Borax Decahydrate. They have submitted the details pertaining to various appendices mentioned in the exporter’s questionnaire which has been examined in the appropriate headings in the findings.

D. OTHER PRODUCERS/OTHER IMPORTERS/USERS

The manufacturer of the subject goods has submitted that they produce borax decahydrate from Borax Penta-hydrate and sell it in the Northern part of India. They find that import of borax decahydrate is creating material injury to their production and sales in the market and have requested to keep their letter on record as their support to the petition for the subject investigations.

M/s. Northern Borates Private Limited had pledged their support to the petitioner before the Initiation of the subject investigation. They had informed that they have ceased to manufacture borax decahydrate because of low price imports from China. On December 4, 2002, they had informed that they support the current investigation concerning import of subject goods from China PR and Turkey. On another communication dated December 26, 2002 they had informed that they have withdrawn their support to the petition so far as anti dumping duty is to be imposed on Turkey.

The manufacturer of the subject goods has supported the petition filed by M/s. Borax Morarji Limited for anti dumping on import borax decahydrate from China PR & Turkey.

M/s. Indian Borax has given a comprehensive submissions on the state of the borax industry in India. They have added that Borax Morarji Limited, Mumbai enjoyed the monopoly of borax decahydrate in India till 1989. Subsequent to 1989 the monopoly of the international supplier as well as Borax Morarji Limited were disturbed after the tariff concession was allowed to all crude sodium borate in place of Kernite and Resorite -46 in India. They have submitted that the petitioner who are already enjoying benefits of import duty concessions on raw material should not be given further protection of anti dumping duty.

M/s. Sun Borax Industries has represented that they have stopped their production in 1996-97 since it was management decision. They have asked the Authority to make a note that they had not stopped production because of the import of subject goods from Turkey

The importers have represented that no anti dumping duty should be levied on borax decahydrate from Turkey.

E. EXAMINATION AND FINDING BY AUTHORITY: 

6. The submission made by the domestic industry, exporters and other interested parties have been examined and considered while arriving at these findings and wherever appropriate have been dealt hereinafter.

PRODUCT UNDER CONSIDERATION

7. The product concerned is Borax Decahydrate, commonly known as Borax (hereinafter referred to as subject goods). Its chemical name is Di-Sodium Tetra Borate Decahydrate. It falls under Chapter 28 of the Customs Tariff Act. This product is used in glass, textiles, leather, adhesives, detergents, polishes, ceramics etc.

The domestic industry has represented that Borax decahydrate have been cleared under other customs sub-headings such as 284011, 284020 and 284019. The Authority notes after examining the transaction-wise data from DGCI&S and from secondary sources (IBIS, Mumbai) that this product is imported under various heads as mentioned above into this country. It is further noted that the present investigation is against the product under consideration irrespective of the classification under which it is imported. Customs classification is indicative only and is in no way binding on the scope of the present investigation.

LIKE ARTICLE:

8. Rule 2(d) of the Anti Dumping rule specifies that Like Article is an article, which is identical and alike in all respects to the product under investigation or in absence of such an article, another article having characteristics closely resembling those of the articles under examination.

The Petitioner has claimed that the goods produced by them are like articles to the goods originating in or exported from subject country. No dispute has been raised on the definition of the product under consideration and like article by any interested party in the investigation. The Authority notes that the imported products and the products manufactured by domestic industry and the product sold in the market of both the exporting countries are similar in their essential physical and technical characteristics and in their uses. In view of the above, the Authority holds that Borax Decahydrate produced by the domestic industry and those being imported from the subject countries are Like Articles within the meaning of the rules.

De Minimus Limits:

9. After examination of the import data from the subject countries for the POI, the Authority notes that the import of the subject goods from the subject countries during the POI is above de minimus levels.

F. DOMESTIC INDUSTRY:

10. The petition has been filed by M/s Borax Morarji Limited, Mumbai. The petitioner is the major producer of the subject goods in India and has accounted for 74.5%of the domestic production of the subject goods. The Authority notes that M/s Northern Borates had supported the petitioner before the initiation of the investigations. However in a further communication, they have withdrawn their support. M/s M.V.Steels and M/s Raj Industries have given their support to the petitioner.

The Authority notes the petitioner accounts for a major proportion of the total domestic production of the subject goods in India under Rule 2(b) of the Anti Dumping Rules. Accordingly, the petitioner satisfies the criteria of standing to file the petition on behalf of the Domestic Industry in terms of Rule 5(3) (a) of the Rules supra.

G. NORMAL VALUE, EXPORT PRICE AND DUMPING MARGIN:

 11. Under Section 9A(1) (c) of the Customs Tariff Act 1975, 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

(b) 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)";

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 transhipped 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.

            12.    TURKEY AND CHINA PR:

The Authority sent questionnaires to all the known exporters for the purpose of determination of normal value in accordance with Section 9A(1)(c). Only one of the exporters from China PR i.e. M/s. Dalian Chem Import and Export Group Co, PR China. has responded to the Authority. It has been observed that M/s. Dalian Chem Import and Export Group Co, PR China has obtained the data and support from M/s. Dashiqiao Huaxin Chemi Co. Liaoning Province China PR ,who is a producer and has exported to the extent of 40% of the total exports made by M/s. Dalian Chem Import and Export Group Co, PR China. has no domestic sales during the POI . In the Appendix II, they have submitted an account of transaction wise details of exports to India giving the customers name and address. In the Appendix III, they have submitted sales of the subject goods to India and exports to other countries. In the Appendix IV and VI, they have submitted sales price structure for exports to India and countries other than India along with various adjustments before and after FOB to arrive at Ex-factory price. The producer of the subject goods M/s Dashiqiao have submitted some information relating to the information relating to the sales in the Home market under Appendix I as well as information pertaining to Appendix II, III and IV. It is noted that the exporter has submitted all the information for 95% grade and 99% grade of the subject goods for all the Appendices to the exporters questionnaire. They have also submitted Appendix II, III and IV. The have also submitted Appendix V relating to the sales price structure for domestic sales. In this Appendix they have not shown any adjustment of the inland freight, insurance, storage and other expenses. They have not submitted any information in the Appendix VII for the POI relating to the statement showing the licensed capacity and information about the production of the other products. In the Appendix VIII and IX, they have not submitted any information about the various overheads associated with the factory cost and profit of the subject goods. They have not submitted any data regarding depreciation, financing costs, interest costs, and packing costs of the subject goods and they have also not included net profit/loss before tax to arrive at Unit selling price at the ex factory level. It is also noted that exporter as well as the producer of the subject goods have also not submitted the Profit and Loss account and balance sheet for the complete POI.

As communicated to the known exporters and to the Embassy of China PR the Authority proposes to examine the claim of the petitioner in the light of Para 7 and 8 of the Annexure I of the Anti dumping Rules as amended. The Authority notes that since the information supplied by the exporter is not in accordance with the format of exporters questionnaire and they have not submitted information as indicated in the abovementioned paragraph, the test of domestic sales in the ordinary course of trade is not possible in the given circumstances and a determination of normal value as per provisions contained in Section 9A(i) c (i) & (ii) read with rule 2 (i) and (ii) of the Annexure I of the Anti dumping rules can not be made. The Authority also notes that the exporter has not furnished necessary information/sufficient evidence as mentioned in the sub paragraph (3) of the paragraph 8 to enable the Designated Authority to consider the following criteria as to whether

(i). the decision of concerned firms regarding prices, costs and inputs, including raw materials, cost of technology and labour, output, sales and investment, are made in response to the market signals reflecting supply and demand and without significant State interference in this regard, and whether costs of major inputs substantially reflect market values;

(ii) the production cost 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 via compensation of debts;

(iii) such firms are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of the firms; and

(iv)    the exchange rate conversions are carried out at the market rate"

The Authority notes that in the absence of information as mentioned above, a determination of normal value as per provisions contained in Section 9A(i) c (i) & (ii) read with rule 2 (i) and (ii) of the Annexure I of the Anti dumping rules can not be made. The Authority is therefore unable to apply the principles set out in the paragraph 1 to 6 of Annexure-1 and is constrained to proceed as per the facts available.

Under the circumstances Normal value under the rules is determined on the basis of facts available as per Rules 6 (8). Therefore the information available on the estimated costs of the production in the country of origin plus selling, administrative and general expenses and a reasonable amount of profit after making reasonable adjustments has been taken as the basis for working out the normal value of the subject goods in China PR.

The Normal value determined by the Authority for M/s M/s. Dalian Chem Import & Export Group Co, PR China comes to US$ ****/MT

EXPORT PRICE:

13. The export price for M/s. Dalian Chem Import & Export Group Co., PR China, has been established on the basis of the prices actually paid or payable for the product when sold to India. The Authority notes that ****MTs of the subject goods have been exported to India by the exporter during the POI for US $ ****. The exporter has made adjustments towards discounts, transport, insurance, handling, loading and other expenditures to arrive at ex-factory export price. The Authority has accepted various adjustments made by the exporter and the producer of the subject goods to arrive at export price at ex-factory level for the limited purpose of the preliminary determination subject to further examination and verification. The net export price at ex factory level comes to US $****/MT.

The Authority notes that the Exporter has exported the subject goods under 95% and 99.9% grade. It is noted that the active ingredient in the subject goods are contents of B2O3, which are 36.5% for the subject goods having 99.9% grade. The Authority has compared the normal value and export price for 99.9% grade taking the active ingredient of B2O3 as 36.5%.

DUMPING MARGIN:

14. The principles governing the determination of normal value, export price and the dumping margin as laid down in the Custom Tariff Act and the Anti Dumping Rules are elaborated in Annexure I to the Rules. The normal value for China P.R. based on the best information available works out to US$ ****/MT. The net ex factory export price worked out on the basis of similar parameters and allowing adjustments works out to US$ ****/MT. The dumping margin for exports of the subject goods from China PR is assessed by the Authority at US $ ****/MT or 96.5% of the export Price.

15. The Authority provided opportunity to the known exporters from China PR to furnish information relevant to the investigations and offer comments, if any, in accordance with the Section cited above. The Authority wrote to the Embassy of China in India also. However, no other exporters from China have responded to the Authority’s request for information. The claim made by the petitioner with the regard to the determination of normal value has also not been disputed by the other interested party (ies). Under the circumstances Normal value under the rules is determined on the basis of facts available as per rules 6 (8). Therefore the information available on the estimated costs of the production in the country of origin plus selling, administrative and general expenses and a reasonable amount of profit after making reasonable adjustments has been taken as the basis for working out the normal value of the subject goods in China PR.

The Normal value determined by the Authority for other exporters from China PR comes to US$ ****/MT. The export price for other exporters from China PR has been calculated taking into account the lowest export price transaction made by co-operating exporter M/s Dalian Chem Import and Export Co, Ltd for exports made to India during the POI. The export price at ex-factory for other exporters comes to US $ ****/MT.

Thus, the dumping margin in case of Non-co-operative/other exporters of Borax Decahydrate from China PR is assessed by Authority at US$ ****/MT or 132.84% of Export price.

TURKEY:

M/s. ETI Holdings A.S. Turkey, and M/s. Borochemie International Pte. Limited, Singapore.

16. M/s ETI Holdings, A.S. exported borax decahydrate to India during the POI and previous two years through their agent M/s. Borochemie International Pte. Limited, Singapore. M/s. ETI Holdings A.S. has submitted that its 100% subsidiary M/s. ETI Bor A.S. manufactures the subject goods and sells in the domestic market thorough its depots throughout the country. However, ETI Bor, A.S. does not export the product directly as its sells the product to its holding company ETI Holdings A.S. who exports to India through M/s. Borochemie International Pte. Limited, Singapore. Both the producers as well as the exporter have submitted response to the exporter’s questionnaire. The producer of the subject goods has submitted appendix-I giving transaction-wise information relating to sales in the home market. In the appendix II, they have submitted the information relating to exports to India in terms of quantity and invoice value. M/s Borochemie International has submitted the transaction wise information in the appendix II giving customers names and addresses. They have also indicated various costs in relating to exports to India in terms of ocean freight and ocean insurance. In the appendix III M/s. Borochemie International has submitted month wise information with regard to exports to India and to other countries. M/s. ETI Holdings A.S. has submitted appendices IV & V giving an account of sales price structure for exports to India and domestic sales, In the appendix VIII, they have submitted a statement showing the licensed capacity as well as the stock positions with regard to subject goods and other products manufactured by the company during the POI. They have also submitted appendix VIII & IX giving an account of factory cost and profit of exports to India and profit of domestic sales which show that their domestic sales have been made under the ordinary course of trade. They have also submitted the Balance Sheet of their 100% subsidiary M/s. ETI Bor A.S for the year 2000 and 2001.

The domestic industry has represented that their principal raw material "tincal" should be valued at the cost at which it is sold in the domestic market in the country of export as well as to the other countries. They have requested the Authority to take into account a proforma offer of the input tincal where a price of US $****has been quoted for its sale.

The exporter has represented that their principal raw material ‘tincal’ mined by M/s ETI Bor A.S is consumed by the said company itself for the manufacture of product under consideration and cost of mining ‘tincal’ is part of the cost of production of the subject goods. ‘Tincal’ is also not procured by ETI Bor A.S. from any other related company. They have clarified that ‘tincal’ produced and captively consumed in the manufacture of borax decahydrate has been valued at actual cost of production. They have also added that it is only the actual cost of producing that input which has been included in the cost of production of the subject goods. They have further added that their view is supported by the decision of the CEGAT in Reliance Industries Limited Vs DA (2001-13- ELT) where the CEGAT had set aside the method adopted by the DA and had directed the DA to re-compute the NIP by adopting the cost of production of paraxyline and its transfer price

The Authority after examining the contention of both exporters as well as the domestic industry notes that tincal, the principal raw material for the manufacture of subject goods has not been exported by ETI Bor or ETI Holdings to any other country during the POI. The Authority is, therefore, inclined to provisionally accept the cost price of tincal as submitted by the exporter under the appendix VIII & IV subject to further verification and investigation.

It is noted that M/s. ETI Bor A.S. has sold **** MT of the subject goods for a price of TL **** and the weighted average, normal value during the period of investigation comes to US $ **** per MT. The sales price at the ex factory level for the domestic sales has been established after making adjustments towards the handling charges as indicated by M/s. ETI Bor A.S. The weighted average normal value for ETI Bor A.S. at the ex-factory level comes to US **** per MT.

EXPORT PRICE

17. The export price for M/s. ETI Holdings A.S through exporter M/s Borochemie international has been established on the basis of the prices actually paid or payable for the product when sold to India. The Authority notes that **** MTs of the subject goods have been exported to India during the POI for US $ ****. The exporter has made adjustments towards discounts, transport, insurance, handling, loading and other expenditures to arrive at ex-factory export price. The Authority has provisionally accepted various adjustments made by the exporter and the producer of the subject goods to arrive at export price at ex-factory level for the limited purpose of the preliminary determination subject to further examination and verification. The weighted net export price at ex -factory level comes to US $ ****/MT.

DUMPING MARGIN:

18. The principles governing the determination of normal value, export price and the dumping margin as laid down in the Custom Tariff Act and the Anti Dumping Rules are elaborated in Annexure I to the Rules. The dumping margin has been established on the basis of a comparison of weighted average normal value with weighted average export price. The dumping margin for exports of the subject goods from Turkey is assessed by the Authority at US $ ****/MT or 15.41% of the export Price.

19. The Authority provided opportunity to the known exporters from Turkey China PR to furnish information relevant to the investigations and offer comments, if any, in accordance with the Section cited above. The Authority wrote to the Embassy of Turkey in India also. However, no other exporters from Turkey have responded to the Authority’s request for information. The claim made by the petitioner with the regard to the determination of normal value has also not been disputed by the other interested party (ies). Under the circumstances Normal value under the rules is determined on the basis of facts available as per rules 6 (8). Therefore the information available on the estimated costs of the production in the country of origin plus selling, administrative and general expenses and a reasonable amount of profit after making reasonable adjustments has been taken as the basis for working out the normal value of the subject goods in Turkey.

The Normal value determined by the Authority for other exporters from Turkey comes to US$ ****/MT. The export price for other exporters from Turkey has also been calculated taking into account the lowest export price transaction made by M/s. ETI Holdings A.S for exports made to India. The export price at ex-factory for other exporters comes to US $ ****/MT.

Thus, the dumping margin in case of Non-co-operative/other exporters of Borax Decahydrate from Turkey is assessed by Authority at US$ ****/MT or 79.44% of Export price.

INJURY:

20. Submissions made by the petitioner

                    (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.

The margins of dumping from each of the subject country are more than the limits prescribed above, as may be seen from the previous section. Quantum of imports from various countries is contained in the statement of imports enclosed with this petition.

Whether the data published by the DGCI&S is considered or data provided by Secondary Sources is relied upon, it would be seen that the quantum of imports from each of the subject country is more than the prescribed limits. Cumulative assessment of the effects of imports is thus, appropriate since the exports from the subject countries directly compete with the like goods offered by the domestic industry in the Indian market. The Authority is, therefore, requested to assess injury to the domestic industry cumulatively from the subject countries.

Petitioner submits that while DGCI&S data may not be appropriate, as other products have been cleared in this classification, data compiled by the secondary sources is not exhaustive, as all the ports are not covered by this source. The imports reported by the Secondary Sources should, therefore, be considered as minimum known imports. With regard to China, since information on exports from China has become available to the petitioner, the same has been relied upon. It is seen that the actual volume of imports from the two countries are in the region of 10,000 MT. Further, it is submitted that the imports are more in volume from China than Turkey.

Import statistics show that the quantum of imports from subject countries have increased in a significant way. The petitioner has also submitted that the imports are more involving from China PR and import from Turkey.

The petitioner has submitted various economic parameters suggesting that they have suffered injury due to import from subject countries. These include substantial increase in imports from subject countries, along with significant increase in their share to the total imports as well as to the production of the domestic industry and demand of the subject goods in India. Though the production, sales volumes and capacity utilization of the domestic industry increased, these must be seen the context of other Indian producers suspending their production. Other economic parameters include loss in the selling price of the subject goods in the domestic market, price undercutting, price suppression or depression as the landed value of the imports are not only below the net selling price of the domestic industry but are also below the cost of production and Non injurious price of the domestic Industry. The petitioner has further submitted that the losses of domestic industry are increasing year by year they have been forced to a situation of losses from a situation of profits due to dumped imports. The petitioner has submitted other parameters like employment, which have gone down, and lost sales which is evident from the increased market size and reduced sales volume. They have stated that their ROI is negative and their ability to raise fresh capital is difficult due to continuous losses.

M/s ETI Holdings, Turkey

1. As regards import data, they submit that for imports from China, the petitioner has not included the data from the secondary sources as has been done in the case of Turkey. They further comment that the use of such different varieties of sources creates a doubt as to the truth and accuracy of the data as points to an ulterior motive in the petition.
2. The exporter has represented that the import data from USA have been deliberately suppressed by the petitioner. They have represented further that the export price to India from Turkey is determined keeping in view the price at which the USA supplies BDH to India. The non-inclusion of import data from USA is to ensure that the investigation is only against Turkey and China to enable the petitioners to collude with USA thereby reducing competition. They have also enclosed evidence of imports by the domestic industry from USA.
3. The exporter has commented that there is no prima facie evidence of material injury during the POI and in the previous years. The production and capacity utilization of petitioner have increased during the POI while the decline in the sales volume is easily attributable to the imports from China PR whose volume has more than trebled in the POI and the previous year. The quantities and increase in volume from Turkey is not significant.
4. As the selling price of the petitioner has remained more or less steady in 2000-01 and the POI, there is no price depression or price undercutting from the allegedly dumped imports from Turkey and China.
5. The submission that the petitioner has been forced to a situation of losses from a situation of profits due to dumped imports is also falls as they had incurred losses for the year 2000-01 when there was no allegation of dumping. The exporter has added that since January 2001 the petitioner has started manufacturing BDH from raw materials Ulexite, imported from South America. The manufacturer of BDH from this route is much longer and complicated production process than the manufacture from Penta-Hydrate. As this route consumes other raw materials also, the total cost resulting from additional conversion costs as a result of the long manufacturing process goes up significantly. This increased cost is entirely due to shifting of the manufacturing process form Pentahydrate to Ulexite and is due to incorrect project appraisal.

Examination by the Authority

21. Under Rule 11 supra, Annexure –II, when a finding of injury is arrived at, such finding shall involve determination of the 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   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.

     CUMULATIVE ASSESSMENT OF INJURY

22.    Annexure II (iii) under Rule 11 supra further provides that "in case where imports of a product from more than one country are being simultaneously subjected to   Anti Dumping investigation, the Designated Authority will cumulatively assess the effect of such imports, only when it determines that 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 of the imports of the like article or where the export of the individual country is less than three percent ,the imports cumulatively accounts for more than seven percent of the imports of like article, and cumulative assessment of the imports is appropriate in light of the conditions of competition between the imported article and the like domestic articles"

The Authority notes that the margin of dumping and quantum of imports from subject countries are more than the limit prescribed above. Cumulative assessment of the effect of the imports from China P.R. and Singapore is appropriate since the export prices from these countries were directly competing with the prices offered by the Domestic Industry in the Indian market and displacing domestic producers here.

For the examination of the impact on the domestic industry in India, the Authority also considered such further indices having a bearing on the state of industry as capacity utilization, production, sales, net sales realization, profitability, etc. The Authority took into account various parameters indicating injury to the domestic industry, which are as follows:

23. For the determination of volume injury from imports from Turkey, the Authority has taken the data submitted by the sole producer and exporter from Turkey for determination of volume of imports from that country for the POI and the previous years. As the exporter has submitted data on calendar year basis, these have been suitably normated for financial year for the period 2000-2001 for the purpose of provisional findings. The data for 1999-2000 has been taken from the transaction wise information from secondary sources as DGCIS data from Turkey comprises of both Borax Decahydrate as well as Borax Pentahydrate.

As regards China, the Authority has taken into account transaction wise data made available by DGCI&S for POI as well as previous years as all imports from China PR consist of borax decahydrate only.

For other countries import during the POI and previous years, the Authority has taken transaction wise data of the subject goods from secondary sources (IBIS) for the purpose of preliminary findings.

For the calculation of apparent consumption (demand) of the subject goods in India, the Authority has added the sales volume of the domestic industry and other producers to the total imports made into the country.

24. The volume of imports of the subject goods from subject countries has significantly increased during the Period of Investigation as compared to previous years. In fact, the imports have consistently increased from 1999-00 to the period of investigation. The volume of imports from other countries has declined significantly during the POI from 1999-00.

The Authority notes that imports from the subject countries have also increased in absolute terms as well as in relation to the production of the domestic industry and also in relation to the demand of the subject goods in India. The imports from subject countries have increased by 305% over the same period in the preceding year in absolute terms and their share to the total imports has gone up from 57.44% in 99-00 to 98.34% during the POI. The share of subject countries in the total demand has increased from 22.34% to 54.26% while that of the domestic industry has declined

From 48.83% in 99-00 to 38.10%.

25. Imports from the subject Country

Country/Territory		99-00(MT)	00-01(MT)		Ap-Dec01(MT)		Jan-Sep02(MT)
Sub Count	842			2767		2517	7687.9
Others	624			0		20	130
Total	1466			2767		2537	7817.9

Share of Imports (%)
Country	99-00	00-01	Apr-Dec01	Jan-Sep02
Imp from Subj. Count	57.44	100.00	99.21	98.34
Other countries	42.56	0	0.49	1.62
Total	100	100	100	100

PRODUCTION:

26. It is noted that the production of the domestic industry has increased during the POI as compared to previous years. It is also noted that their capacity utilization has declined only marginally during the period of investigation as compared to the previous nine months.

SALES VOLUME & GROWTH

27. It is noted that the sales volume of the domestic industry have declined in the investigation period as compared to previous years. While the demand of the subject goods have increased by 25% during the POI against previous year, the sales volume of the domestic Industry have declined by 15.79% during the POI as compared to previous period.

Sales Prices

The domestic industry average net sales price for the subject goods produced ands sold in domestic market declined by 1.82% between 99-00 and POI. The evolution in the prices should be seen in comparison with the unit cost of the production, which increased by 2.95% from 99-00 to the POI.

STOCKS:

28. The closing stocks of the domestic industry have increased significantly during the POI as compared to the previous years.

PROFITABILITY:

29. Though the unit cost of production of the domestic industry has increased during the POI since 1999-2000, their unit-selling price has declined during the POI since 1999-2000. The Authority notes that petitioner is incurring a loss on this product since 1999-2000. Though the actual amount of loss has come down during the POI, it is still significant.

RETURN ON CAPITAL & CASH PROFIT

30. The return on the capital of the domestic industry as well as the cash profit has deteriorated during the POI as compared to 1999-2000 though it has improved from 2000-2001.

PRODUCTIVITY & EMPLOYMENT:

31. The productivity of the domestic industry has increased during the POI form 1999-2000. However, the Authority also notes that the same could be on account of the decline in the level of employment.

32. Price Undercutting and Price Underselling

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 product in India, or whether the effect of such imports is otherwise to depress prices to a significant degree. The Authority has compared the landed value of imports of subject goods from subject countries during the POI with the net sales realization and has found that there has been a significant price under-cutting by the dumped imports from subject country/territory. The landed value of imports has been found to be lower than the domestic industry’s net sales realization.

The Authority has also examined the claim of the petitioner that the domestic industry is suffering on account of the losses. The Authority notes that price underselling is an important indicator to make an assessment of the injury. The Authority has worked out the Non-injurious price for the product under consideration and compared the same with the landed value to arrive at the extent of price underselling. The analysis shows a significant incidence of price underselling causing injury to the domestic industry. The imports have had significant suppressing/ depressing effect on the prices in the domestic market, as the domestic industry has not been able to raise its selling price in view of the dumped imports.

The authority notes that selling prices of the domestic industry is significantly below the price, which would have permitted the domestic industry, a fair recovery of its cost of production and earn a reasonable return. Thus, the dumped imports have prevented the domestic industry from effecting legitimate price increase to realize a reasonable price. Though the losses from this product have come down during the POI as compared to previous years, these could be seen in the backdrop of other producers of the subject goods closing down and increase in the productivity of the domestic industry. However the industry has suffered material injury on account of depressed selling prices resulting in non-recovery of cost of production and has therefore suffered financial losses.

    H.    CAUSAL LINK:

                    b.   Effect of the dumped imports

Between 1999-2000 and POI, dumped imports from the subject countries as a proportion to total imports increased significantly in volume (57.44% to 98.34%) and in market share 6.04% in 1999-00 to 54.26% in the POI. As regards the export prices, they decreased during the whole period and undercut the domestic industry prices during POI on average by ****% and ****% (from ETI Holdings A.S and M/s Dalian Chem Import and Export Co respectively). Moreover, undercutting figures did not show the full impact of the dumped imports, since domestic industry prices were depressed. Price of the dumped imports were below those of the domestic industry throughout the POI and exerted a pressure on them which forced the domestic industry to decrease prices in spite of increasing cost of production. It is, therefore, considered that the dumped imports caused material injury to the domestic industry.

1. c.  Effect of other factors

(i) Performance of other producers

One domestic producer M/s. Northern Borates Private Limited, Kanpur who had supported the petition closed its production facility before the POI. The petitioner has claimed that there were more than a dozen manufacturers of the subject goods in India. However, these small producers have now stopped their production and few of them are working as traders. Therefore, it can be concluded that the product produced and sold by the other producers did not contribute to the injury suffered by the domestic industry.

(ii)    Self inflected injury due to change in process or technology

It has been submitted by the exporter that injury to the domestic industry has been caused by its changing the raw material to Ulexite. The exporter has further represented that manufacturer of the subject goods from this raw material is a lengthy and costly process since other materials are also consumed which further raise its manufacturing costs. The domestic industry has represented that Ulexite route is cheaper in the sense that raw material costs are less and the overall cost of manufacturer from this route is less despite the fact that other raw materials are also used in the process.

The Authority notes from submissions made before it (various literature and journals) that manufacture of subject goods from Ulexite may be a viable route. It has further worked out a cost of production of the subject goods from this route as well as from Borax pentahydrate after on the spot verification at the premises of the domestic industry and notes that domestic industry choice of raw material for manufacture of the subject goods has nothing to do with its losses.

iii) Imports from USA

Some interested parties have argued that the petitioner has not included the investigation from USA deliberately and imports from USA are above de-minimus. The Authority notes that the petition was filed for imports coming from Turkey, China PR and USA. After careful examination of the import data from IBIS, Mumbai, the Authority noted that there are no imports from that country and hence the investigation was initiated against Turkey and China PR. After the initiation of the investigation, the Authority has examined the data from DGCIS for imports from USA (in the aggregate form) and found that these imports are priced much higher than imports from the subject countries. Pending further examination, the Authority provisionally concludes that these imports could be for Borax pentahydrate, which are priced higher than decahydrate, and since these are priced higher than the imports from subject countries, these could not have contributed to the injury caused to the domestic Industry.

d) Contraction of demand and other factors

The Authority could not find any evidence of contraction of demand, change in pattern of consumption, trade restrictive practices of and competition between the foreign and domestic producers. It is also noted that developments in technology has not been a cause for injury to the domestic industry. These parameters collectively and cumulatively indicate that the petitioner has suffered material injury due to the dumped imports.

I. INDIAN INDUSTRY'S INTEREST:

35. The purpose of anti dumping duties in general is to eliminate dumping which is causing injury to the domestic industry and to re-establish a situation of open and fair competition in the Indian market, which is in the general interest of the country.

The Authority recognizes that the imposition of anti dumping duties might affect the price levels of the products manufactured using subject goods and consequently might have some influence on relative competitiveness of these products. However, fair competition on the Indian market will not be reduced by the anti dumping measures. On the contrary, imposition of anti dumping measures would remove the unfair advantages gained by dumping practices, would prevent the decline of the domestic industry and help maintain availability of wider choice to the consumers of subject goods.

The Authority notes that the imposition of anti dumping measures would not restrict imports from Turkey and China PR in any way, and therefore, would not affect the availability of the product to the consumers. The consumers could still maintain two or even more sources of supply.

  J. CONCLUSIONS:

36. The Authority has, after considering the foregoing, come to the conclusion that:

(i) Borax Decahydrate has been exported to India from Turkey and China PR below its normal value;

(ii) The Indian industry has suffered material injury

(iii) The injury has been caused cumulatively by the imports of subject goods from the subject countries.

The Authority considers it necessary to impose an anti dumping duty provisionally, pending final determination, on all imports of Borax Decahydrate from subject countries in order to remove the injury to the domestic industry. The margin of dumping determined by the Authority is indicated in the paragraphs above. The Authority proposes to recommend the amount of anti dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry. For the purpose of determining injury, the landed value of imports has been compared with the non-injurious price of the petitioner company determined for the period of investigation.

Accordingly, the Authority recommends that the provisional anti dumping duties be imposed from the date of notification to be issued in this regard by the Central Government on all imports of Borax Decahydrate falling under Custom Heading 2840 originating in or exported from Peoples Republic of China and Turkey pending final determination. The Anti-Dumping duty shall be the difference between the amount mentioned in column 3 of the following table and the landed value of imports per MT to be imposed from the date of Notification to be issued in this regard by the Central Govt. on all the imports of subject goods falling under Chapter 28 of the Customs Tariff, originating in or exported from the countries mentioned below: -

Landed value of imports for the purpose shall be the assessable value as determined by the Customs under the Customs Act, 1962 and all duties of customs except duties under sections 3, 3A, 8B, 9 and 9A of the Customs Tariff Act, 1975.

K. FURTHER PROCEDURE:

37. The following procedure would be followed subsequent to notifying the preliminary findings: -

(a) The Authority invites comments on these findings from all interested parties and the same would be considered in the final findings;

(b) Exporters, importers, petitioner and other interested parties known to be concerned are being addressed separately by the Authority, who may make known their views, within forty days from the date of preliminary findings. Any other interested party may also make known its views within forty days from the date of publication of these findings;

(c) The Authority would provide opportunity to all the interested parties for making oral submissions, which have to be rendered thereafter in writing;

(d) The Authority would conduct further verification to the extent deemed necessary;

(e) The Authority would disclose essential facts before announcing final findings.

(L.V. SAPTHARISHI)
DESIGNATED AUTHORITY

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