1996R2160 — EN — 23.08.1998 — 001.001 — 1
This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents
►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)
Amended by:
Official Journal
No page date
►M1Council Regulation (EC) No 1822/98 of 14 August 1998 L 236 3 22.8.1998
Corrected by:
►C1Corrigendum, 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,
Havingreg ard to the Treaty establishingthe 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,
Havingreg ard to the proposal submitted by the Commission after
consultingthe 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-dumpingduties on imports of polyester textured filamentyarn (hereinafter referred to as ‘PTY' or ‘product concerned'),orig inatingin Indonesia and Thailand, and fallingwithin 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 writingandapply 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 writingfrom 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 knittingsectors 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 proceedinghad exportedPTY to the Community duringthe investig ation 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 correspondingdomestic sellingpricesin order to assess whether domestic sales were made in theordinary course of trade within the meaningof 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 retracingof 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 manufacturingof PTY of inferiorquality, so called substandard PTY. However, the Indonesianproducers did not keep separate accountingdata 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 acceptingthe cost allocation method leadingto thecosts reported in the reply to the Commission’s questionnaire,and which has been historically utilized by the exporterconcerned.
Followingthis 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 usingthesame 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, consideringalso 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 tradingcompanies in Sing apore, sincethe prices charged by the Indonesian producers to the relatedSingaporean traders were considered as being influenced by thisrelationship, and thus not beingreliable.
To establish a reliable export price to the Community from
Indonesia, the prices charged from Singapore were adjusted to anex-Indonesia level by deductingfrom the prices charg ed 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 relatedsellingexpenses, thus ig noringthe vast majority of all otherexpenses incurred by the related tradingcompanies in Sing apore.
The Council, however, confirms the provisional approach taken
by the Commission, consideringthe deg ree of involvement of therelated traders in the sellingactivities of the Indonesian produ-cers. Furthermore, on the basis of the accountingdata 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)Takinginto account the abovementioned revisions, the Council
confirms, in applyingthe same methodolog y as used for theprovisional assessment (see recital 34 of the provisional Regula-tion), the definitive dumpingmarg ins for the cooperatingIndone-sian exporters concerned as follows:
— PT Indo Rama Synthetics: 1,7 %
— PT Panasia Indosyntec (formerly: P.T. Hadtex
Indosyntec):5,4 %
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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)Confirmingthe method chosen for the provisional assessment
(see recital (35) of the provisional Regulation), the Councilconsidered that the dumpingmarg in for non-cooperatingprodu-cers in Indonesia should be based on facts available and verifiedduringthe investig ation. 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, inallocatingthe 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 consideringtheappropriate proportion for PTY only.
After verifyingthe 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, consideringalso 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 verifyingthe 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)Takinginto account the abovementioned revisions, the Council
confirms, in applyingthe same methodolog y as used for theprovisional assessment (see recital 34 of the provisional Regula-tion), the definitive dumpingmarg ins for the cooperatingThaiexporters concerned as follows:
— Tuntex (Thailand) plc: 6,7 %
— Sunflag(Thailand) Ltd: 13,5 %— ChareonsawattStretchedYarn Co. Ltd: 20,2 %
(30)Confirmingthe method chosen for the provisional assessment
(see recital 35 of the provisional Regulation), the Council consid-ered that the dumpingmarg in for non-cooperatingproducers 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-cooperatingproducers 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 representingmore 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 remainingdumped 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,notwithstandinga certain increase in the Community consump-tion of PTY, which demonstrates that this industry has suffered
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material injury within the meaningof Article 4 (1) of the basic
Regulation.
G.CAUSATION OF INJURY
(34)It was provisionally concluded that, notwithstandingthe 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 destabilizingimpact on theCommunity market by loweringthe price level on that market,and has led the Community industry to suffer a loss of profit-ability, thus causingmaterial 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-dumpingmeasures.
(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-dumpingmeasures 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-dumpingduty should be imposed and that the proceedingshould be terminated in respect of this country.
Indonesia and Thailand
(39)For the purpose of establishingthe 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 dumpingmarg ins 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 dumpingmarg ins definitively established.
(41)With regard to the Indonesian company PT Indo RamaSynthetics, the Council confirms, consideringthat the individualdefinitive dumpingmarg in established is de minimis , that the
investigation be terminated without measures although thecompany shall remain subject to the proceedingand may bereinvestigated in any subsequent review carried out for Indonesia.
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Duty Taric
additional
Code
Duty Tarif addi-
tional
CodeJ.COLLECTION OF THE PROVISIONAL DUTY
(42)In view of the dumpingmarg ins definitively established and the
substantial injury caused to the Community industry, the Councilconsiders that the amounts secured by way of the provisionalanti-dumpingduties should be definitively collected at the levelof the amounts of duties definitively imposed,
HAS ADOPTED THIS REGULATION:
Article 1
1. A definitive anti-dumpingduty is hereby imposed on imports of
polyester textured filament yarn, fallingwithin CN codes 5402 33 10and 5402 33 90 and originating in Indonesia and Thailand.
2. The rate of the definitive anti-dumpingduty applicable to the net,
free-at-Community-frontier price, before duty, shall be as follows:
Indonesia
— PT Panasia Indosyntec (formerly: PT Hadtex
Indosyntec)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 Indonesiancompany PT Indo Rama Synthetics (Taric additional Code 8885)►
M1nor to such imports produced and exported by PT Polyfin
Canggih (TARIC additional code 8885) ◄.
Thailand
— Tuntex (Thailand) PLC 6,7 % 8 889
— Sunflag(Thailand) Ltd 13,5 % 8 907— Others 20,2 % 8 891
3. No anti-dumpingduty shall be applicable to imports of the product
specified in paragraph 1 and originating in India. The proceedingconcerningimports of the product orig inatingin India shall be termi-nated.
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-dumpingduties shall be released.
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2. The provisions referred to in Article 1 (4) shall also apply to thedefinitive collection of the amounts secured by way of the provisionalanti-dumpingduties.
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.