1996R2160 — EN — 13.11.1996 — 000.001 — 1
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►B COUNCIL REGULATION (EC)No 2160/96
of 11 November 1996
imposing definitive anti-dumping duties on imports of polyester textured filament yarn originating
in Indonesia and Thailand, terminating the proceeding concerning imports of polyester textured
filament yarn originating in India and collecting definitively the provisional duties imposed
(OJ L 289, 12.11.1996, p. 14)
Corrected by:
►C1 Corrigendum, OJ L 294, 19.11.1996, p. 27 (2160/96)
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COUNCIL REGULATION (EC)No 2160/96
of 11 November 1996
imposing definitive anti-dumping duties on imports of polyester
textured filament yarn originating in Indonesia and Thailand,terminating the proceeding concerning imports of polyestertextured filament yarn originating in India and collecting defin-
itively the provisional duties imposed
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community,
Having regard to Council Regulation (EC) No 384/96 of 22 December
1995 on protection against dumped imports from countries not membersof the European Community (
1), and in particular Article 23 thereof,
Having regard to Council Regulation (EEC) No 2423/88 of 11 July
1988 on protection against dumped or subsidized imports from coun-tries not members of the European Economic Community (
2), and in
particular Article 12 thereof,
Having regard to the proposal submitted by the Commission after
consulting the Advisory Committee,
Whereas:
A.PROVISIONAL MEASURES
(1) The Commission, by Regulation (EC) No 940/96 (3) (hereinafter
referred to as the ‘provisional Regulation') imposed provisionalanti-dumping duties on imports of polyester textured filamentyarn (hereinafter referred to as ‘PTY' or ‘product concerned'),originating in Indonesia and Thailand, and falling within CNcodes 5402 33 10 and 5402 33 90.
(2) With the same Regulation, it was provisionally concluded thatimports of the product concerned originating in India, essentiallydue to their negligible import volume, had not contributed to thematerial injury suffered by the Community industry, and there-fore it was considered unnecessary to impose provisional protec-tive measures on these imports at that stage of the investigation.
(3) By Council Regulation (EC) No 1370/96 (4), the provisional
duties were extended for a period of two months, up to 1December 1996.
B.SUBSEQUENT PROCEDURE
(4) The provisional Regulation set up a time limit within which the
parties concerned could make known their views in writing andapply to be heard orally by the Commission.
(5) Immediately after the imposition of the provisional measures onimports of PTY from Indonesia and Thailand, the interestedparties were informed of the essential facts and considerations onthe basis of which provisional measures had been adopted.
Comments thereon were received in writing from the following
interested parties within the time limit set:
(1) OJ No L 56, 6. 3. 1996, p. 1.
(2) OJ No L 209, 2. 8. 1988, p. 1. Regulation as last amended by Regulation
(EC) No 522/94 (OJ No L 66, 10. 3. 1994, p. 10).
(3) OJ No L 128, 29. 5. 1996, p. 3.
(4) OJ No L 178, 17. 7. 1996, p. 1.
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1.Producers in Indonesia:
— PT Panasia Indosyntec (formerly: PT Hadtex Indosyntec),
— PT Indo Rama Synthetics,— PT Polysindo Eka Perkasa,— PT Susilia Indah Synthetic Fibres Industries,— PT Vastex Prima Industries.
2.Producers in Thailand:
— Sunflag (Thailand) Ltd,
— Tuntex (Thailand) plc.
(6) Parties who so requested were also granted an opportunity to be
heard orally by the Commission services.
(7) Parties were informed of the essential facts and consideration onthe basis of which it is intended to recommend the imposition ofdefinitive measures and the definitive collection of amountssecured by way of provisional duties. They also were granted aperiod within which they could make representations subsequentto this disclosure.
(8) The parties’ oral and written comments were considered and,where appropriate, the provisional determinations were modifiedto take account of these comments.
C.PRODUCT AND LIKE PRODUCT
(9) The product under consideration is PTY, directly derived from
polyester oriented yarn (‘POY'). PTY is used in both the weavingand the knitting sectors to make polyester or polyester/cottonfabrics.
It was concluded at the provisional stage of the investigation that
PTY sold on the domestic markets of India, Indonesia and Thai-land has similar basic characteristics and uses compared to thatexported from those countries to the Community. Similarly, thePTY manufactured by the Community industry and sold on theCommunity market has similar basic characteristics and useswhen compared to that exported to the Community from thecountries in question.
(10) Since no new arguments were put forward by any of the partiesconcerned on the Commission’s provisional findings on theproduct under consideration and the considerations made on likeproduct, the facts and findings as set out in recitals 9 and 10 ofthe provisional Regulation, are confirmed by the Council.
D.DUMPING
1.India
(11) It was provisionally established by the Commission that the
Indian exporters who cooperated in the proceeding had exportedPTY to the Community during the investigation period atdumped prices, individual dumping margins ranging from 0,3 %to 42,9 %.
(12) Since no new arguments were advanced by any of the partiesconcerned as to the Commission’s provisional conclusions onnormal value, export price, comparison and hence the dumpingmargins provisionally established for exports to the Communityof PTY originating in India, the facts and findings as set out inrecitals 12 to 18 and 29 to 35 of the provisional Regulation areconfirmed by the Council, as far as India is concerned.
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2.Indonesia
Normal value
(13) The Indonesian exporters argued that, when their costs of produc-
tion were compared to the corresponding domestic selling pricesin order to assess whether domestic sales were made in theordinary course of trade within the meaning of Article 2 (4) ofRegulation (EEC) No 2423/88 (hereinafter referred to as the‘basic Regulation'), certain directly related selling expenses suchas inland freight and packing had been included in the costs,whereas they had been deducted from the domestic prices.
After verification of additional data submitted in that respect by
the companies concerned and retracing of the individual claims tothe audited accounts of the companies, the provisional calcula-tions on normal values, where warranted, were duly revised.
(14) The production of PTY of first quality, which was the only yarnexported by the Indonesian producers concerned to theCommunity, implies the manufacturing of PTY of inferiorquality, so called substandard PTY. However, the Indonesianproducers did not keep separate accounting data for each qualityand, therefore, the costs associated with the first quality exportedto the Community were not reasonably reflected in the producers’records.
At the provisional stage of the investigation, and in order to
establish the cost of production of first quality PTY, the Commis-sion estimated the cost of production of the substandard PTY byreference to the average variable manufacturing costs associatedwith the overall production of PTY only. This approach wasconsidered reasonable, in particular given the relatively limitedproduction of substandard PTY and its inevitable linkage with theproduction of first quality PTY. Furthermore, the allocation ofthe full cost of production on the basis of turnover did not appearto be an appropriate method, as not all the elements in the cost ofproduction appeared to be associated with the production and saleof substandard PTY.
One Indonesian producer asked the Commission to reconsider the
possibility of accepting the cost allocation method leading to thecosts reported in the reply to the Commission’s questionnaire,and which has been historically utilized by the exporterconcerned.
Following this request, the Commission reviewed its provisional
findings and considered the allocation method in question accept-able, though only to the extent that it reasonably reflected thecosts associated with the production and sale of both qualities ofPTY. This approach was extended to all Indonesian producers,since they all replied to the Commission’s questionnaire using thesame allocation method.
(15) At the request of the Indonesian producers, the Commissionrevised its provisional findings as regards the amount of financialexpenses, as well as the criteria for the allocation of the netfinancial costs to the product concerned.
In this respect it was considered appropriate to offset against
financial expenses only financial income, which showed a clearlink with the production and sale of PTY. Furthermore, theallocation of net financial expenditure, which at the provisionalstage of the proceeding had been made by reference to turnover,was modified to take separate account of products manufacturedor merely traded.
(16) Since no further arguments were pursued by any of the partiesconcerned as to the Commission’s provisional conclusions onnormal value for Indonesia, the facts and findings as set out inrecitals 19 to 23 of the provisional Regulation are confirmed bythe Council, considering also the revisions made under recitals 13and 14 above.
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Export prices
(17) Two of the Indonesian producers sold PTY for export to theCommunity through two related trading companies located inSingapore. In the provisional determinations, the export priceswere established by reference to the prices actually paid orpayable for the products concerned when sold for export to theCommunity by the related trading companies in Singapore, sincethe prices charged by the Indonesian producers to the relatedSingaporean traders were considered as being influenced by thisrelationship, and thus not being reliable.
To establish a reliable export price to the Community from
Indonesia, the prices charged from Singapore were adjusted to anex-Indonesia level by deducting from the prices charged by therelated companies in Singapore to the independent customers inthe Community an average amount of 4 % of these prices, whichwas calculated by reference to the selling, general and adminis-trative expenses incurred by the related companies in respect ofthe sales under consideration.
This approach was contested by the two Indonesian producers
concerned, who argued that the said adjustment was too high.Alternatively, these producers proposed their own calculationmethod by singling out only some allegedly directly relatedselling expenses, thus ignoring the vast majority of all otherexpenses incurred by the related trading companies in Singapore.
The Council, however, confirms the provisional approach taken
by the Commission, considering the degree of involvement of therelated traders in the selling activities of the Indonesian produ-cers. Furthermore, on the basis of the accounting data of therelated traders, no additional information was provided by thelatter, which would indicate that the adjustment applied wasinappropriate.
(18) Since no further arguments were made by any of the partiesconcerned as to the Commission’s provisional conclusions onexport prices for exports to the Community of PTY originating inIndonesia, the facts and findings as set out in recital 29 of theprovisional Regulation are confirmed by the Council as far asIndonesia is concerned.
Comparison
(19) Since no new arguments were made by any of the parties
concerned as to the Commission’s provisional conclusions on thecomparison made between normal value and export prices, thefacts and findings as set out in recitals 31 and 32 of the provi-sional Regulation are confirmed by the Council as far as Indo-nesia is concerned.
Dumping margins
(20) Taking into account the abovementioned revisions, the Council
confirms, in applying the same methodology as used for theprovisional assessment (see recital 34 of the provisional Regula-tion), the definitive dumping margins for the cooperating Indone-sian exporters concerned as follows:
— PT Indo Rama Synthetics: 1,7 %
— PT Panasia Indosyntec (formerly: P.T. Hadtex Indo-
syntec): 5,4 %
▼C1
— PT Polysindo Eka Perkasa: 8,8 %
— PT Susilia Indah Synthetic Fibres Industries: 8,3 %
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— PT Vastex Prima Industries: 20,2 %
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(21) Confirming the method chosen for the provisional assessment
(see recital (35) of the provisional Regulation), the Councilconsidered that the dumping margin for non-cooperating produ-cers in Indonesia should be based on facts available and verifiedduring the investigation. On that basis, it is considered that thehighest definitive dumping margin, i.e. 20,2 %, found with regardto a producer in Indonesia which had cooperated in the invest-igation, should also apply to non-cooperating producers in thatcountry.
3.Thailand
Normal value
(22) One Thai producer realized that the costs data, which it had
submitted, contained an arithmetical material error. Indeed, inallocating the costs for two raw materials produced by thiscompany and used both in the production of PTY and in otherpolyester end-products, the company erroneously added to thePTY cost of production the total transformation costs of theaforementioned two raw materials, instead of considering theappropriate proportion for PTY only.
After verifying the revised additional data submitted in that
respect by the company concerned, the Commission duly revisedthe normal value where warranted.
(23) One Thai producer argued that its costs during the investigationperiod were affected by the use of new production facilities, andcertain cost items should therefore be adjusted accordingly.
The Commission could not share this approach, since no adjust-
ment had been claimed in the Company’s reply to the question-naire or prior to the verification visit. Furthermore, the capacityutilization rates as well as the production costs of the companyduring the investigation period, which commenced eight monthsafter the start-up of the production, appeared reasonable and inline with those incurred by most of the other PTY producers. Theclaim was therefore disregarded by the Commission.
(24) One Thai producer argued that its depreciation rate of 10 % onmachinery, as reflected in its costs, was too high as compared toother Thai producers, and that its costs should therefore beadjusted accordingly by using a 5 % rate.
To apply a straight depreciation rate of 10 % on machinery is not
uncommon. Furthermore, this rate is reflected in the accountingrecords of the company. The claim was therefore disregarded bythe Commission.
(25) Since no further arguments were proffered by any of the partiesconcerned as to the Commission’s provisional conclusions onnormal value for Thailand, the facts and findings as set out inrecitals 24 to 28 of the provisional Regulation are confirmed bythe Council, considering also the revision made under recital 22above.
Export prices
(26) Since no new arguments were put forward by any of the parties
concerned as to the Commission’s provisional conclusions onexport prices for exports to the Community of PTY originating inThailand, the facts and findings as set out in recital 29 of theprovisional Regulation are confirmed by the Council.
Comparison
(27) One Thai producer argued that the normal credit rates applicable
in respect to the currency expressed on the export invoice shouldbe corrected.
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After verifying the additional data submitted, the Commission
duly revised, where warranted, the allowance for credit costsgranted for the sales under consideration.
(28) Since no further arguments were advanced by any of the partiesconcerned as to the Commission’s provisional conclusions on thecomparison made between normal value and export prices, thefacts and findings as set out in recitals 31 to 33 of the provisionalRegulation are confirmed by the Council, with the exception ofthe revision under recital 27 above and as far as Thailand isconcerned.
Dumping margins
(29) Taking into account the abovementioned revisions, the Council
confirms, in applying the same methodology as used for theprovisional assessment (see recital 34 of the provisional Regula-tion), the definitive dumping margins for the cooperating Thaiexporters concerned as follows:
— Tuntex (Thailand) plc: 6,7 %
— Sunflag (Thailand) Ltd: 13,5 %— Chareonsawatt Stretched Yarn Co. Ltd: 20,2 %
(30)
Confirming the method chosen for the provisional assessment
(see recital 35 of the provisional Regulation), the Council consid-ered that the dumping margin for non-cooperating producers inThailand should be based on facts available and verified duringthe investigation. On that basis, it is considered that the highestdefinitive dumping margin, i.e. 20,2 %, found with regard to aproducer in Thailand which had cooperated in the investigation,should also apply to non-cooperating producers in this country.
E.COMMUNITY INDUSTRY
(31) In the absence of new evidence or any further substantiated
argument put forward by any of the parties concerned, the factsand findings set out in recitals 36 to 39 of the provisionalRegulation are confirmed by the Council, i.e. the complainantCommunity producers representing more than 50 % of theCommunity output of PTY constitute the Community industry, inaccordance with Article 4 (5) of the basic Regulation
F.INJURY
(32) As mentioned under recital 20, the individual definitive dumping
margin established for one of the Indonesian exporters is de
minimis . Whether, under these conditions, the imports in question
should be excluded from the injury assessment, does not need tobe decided in the present case.
Indeed, even if these producers’ imports were excluded from the
injury assessment, the volume and the Community market shareof the remaining dumped imports from Indonesia were stillsignificant enough to justify the Commission’s provisionalconclusions in this respect.
(33) Since no new arguments were advanced by any of the partiesconcerned as to the provisional findings concerning the injurysuffered by the Community industry, the Council confirms thosefindings as established in recitals 40 to 55 of the provisionalRegulation, i.e. the exclusion of imports of PTY originating inIndia from the injury assessment due to its negligible marketshare, as well as the precarious situation of the Communityindustry, in particular the deterioration of its financial results, thedecline in production, capacity utilization and market share,notwithstanding a certain increase in the Community consump-tion of PTY, which demonstrates that this industry has suffered
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material injury within the meaning of Article 4 (1) of the basic
Regulation.
G.CAUSATION OF INJURY
(34) It was provisionally concluded that, notwithstanding the fact that
imports from other third countries might have contributed to theinjury suffered by the Community industry, the surge of Indone-sian and Thai dumped imports of PTY into the Community atlow prices has had a particular destabilizing impact on theCommunity market by lowering the price level on that market,and has led the Community industry to suffer a loss of profit-ability, thus causing material injury to this industry.
(35) Since no new arguments were advanced by any of the partiesconcerned as to the Commission’s provisional conclusions oncausation of injury, the facts and findings as set out in recitals 56to 81 of the provisional Regulation are confirmed by the Council.
H.COMMUNITY INTEREST
(36) The Commission concluded at the provisional stage of the invest-
igation that, after examining the various interests involved, it is inthe Community interest to prevent a further decline in the alreadyprecarious situation of the Community industry and to re-estab-lish, with the imposition of remedial measures, a fair and compet-itive economical environment in the Community market. Further-more, it was considered necessary to ensure a non-discriminatorytreatment with regard to imports of PTY originating in Indonesiaand Thailand as compared to imports of PTY originating in otherthird countries at present subject to anti-dumping measures.
(37) On this basis, the Council confirms, as set out in recitals 82 to 93of the provisional Regulation, that the Community interest callsfor the imposition of definitive anti-dumping measures onimports of PTY originating in Indonesia and Thailand.
I.DEFINITIVE DUTY
India
(38) Given the above confirmed provisional conclusions with regard
to exports of PTY to the Community originating in India (insig-nificant market share), the Council confirms that no definitiveanti-dumping duty should be imposed and that the proceedingshould be terminated in respect of this country.
Indonesia and Thailand
(39) For the purpose of establishing the level of the definitive meas-
ures to be imposed, and in line with the same methodologyapplied at the provisional stage of the investigation, the Counciltook account of the dumping margins found and the level of dutynecessary to eliminate the injury sustained by the Communityindustry.
(40) It is confirmed at this definitive stage that for all Indonesian andThai exporters concerned the level of the injury margins werehigher than the dumping margins found, both being expressed asa percentage of the CIF Community frontier price. Consequently,in accordance with Article 13 (3) of the basic Regulation, it isconfirmed that the level of the duty should be based on the levelof the dumping margins definitively established.
(41) With regard to the Indonesian company PT Indo RamaSynthetics, the Council confirms, considering that the individualdefinitive dumping margin established is de minimis , that the
investigation be terminated without measures although thecompany shall remain subject to the proceeding and may bereinvestigated in any subsequent review carried out for Indonesia.
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J.COLLECTION OF THE PROVISIONAL DUTY
(42) In view of the dumping margins definitively established and the
substantial injury caused to the Community industry, the Councilconsiders that the amounts secured by way of the provisionalanti-dumping duties should be definitively collected at the levelof the amounts of duties definitively imposed,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumping duty is hereby imposed on imports of
polyester textured filament yarn, falling within CN codes 5402 33 10and 5402 33 90 and originating in Indonesia and Thailand.
2. The rate of the definitive anti-dumping duty applicable to the net,
free-at-Community-frontier price, before duty, shall be as follows:
Indonesia
Duty Taric addi-
tional Code
— PT Panasia Indosyntec (formerly: PT Hadtex Indo-
syntec)5,4 % 8884
— PT Polysindo Eka Perkasa 8,8 % 8886
— PT Susilia Indah Synthetic Fibres Industries 8,3 % 8887— Others 20,2 % 8888
The duties shall not apply to imports of the products specified in paragraph 1
which are produced and exported by the Indonesian company PT Indo RamaSynthetics (Taric additional Code 8885).
Indonesia
Duty Tarif addi-
tional Code
— Tuntex (Thailand) PLC 6,7 % 8 889
— Sunflag (Thailand) Ltd 13,5 % 8 907— Others 20,2 % 8 891
3. No anti-dumping duty shall be applicable to imports of the product speci-
fied in paragraph 1 and originating in India. The proceeding concerning importsof the product originating in India shall be terminated.
4. Unless otherwise specified, the provisions in force concerning customs
duties shall apply.
Article 2
1. The amounts secured by way of the provisional anti-dumping
duties under Regulation (EC) No 940/96 shall be definitively collectedat the rate of the duties definitively imposed. Amounts secured in excessof the definitive rate of anti-dumping duties shall be released.
2. The provisions referred to in Article 1 (4) shall also apply to the
definitive collection of the amounts secured by way of the provisionalanti-dumping duties.
Article 3
This Regulation shall enter into force on the day following that of its
publication in the Official Journal of the European Communities .
This Regulation shall be binding in its entirety and directly applicable in
all Member States.