Council Regulation (EC) No 96/1999 of 12 January 1999 amending Regulation (EC) No 1950/97 imposing a definitive anti-dumping duty on imports of sacks and bags made of polyethylene or polypropylene originating in India, Indonesia and Thailand and collecting definitively the provisional duty imposed
Date: 1999-01-12
Institutions: Council of the European Union
Subjects: anti-dumping legislation, import policy, originating product, packaging product, plastics, third country

16. 1. 1999

EN

Official Journal of the European Communities

L 11/1

I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 96/1999

of 12 January 1999

amending Regulation (EC) No 1950/97 imposing a definitive anti-dumping duty
on imports of sacks and bags made of polyethylene or polypropylene originating
in India, Indonesia and Thailand and collecting definitively the provisional duty
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
the European
Community (1) (hereinafter referred to as ‘the basic Regu-
lation'), and in particular Article 11(4) thereof,

not members

of

Having regard to the proposal submitted by the Commis-
sion after consulting the Advisory Committee,

Whereas:

A. PREVIOUS PROCEDURE

(1)

(2)

By Regulation (EC) No 1950/97 (2), the Council
imposed, inter alia, a definitive anti-dumping duty
of 36,0 % on imports of sacks and bags made of
polyethylene or polypropylene (hereinafter ‘product
concerned') originating in India, with the exception
imports from several Indian companies spe-
of
cifically mentioned, which were either subject to a
lesser rate of duty or to no duty at all. The product
classifiable within CN codes
is
6305 32 81,
ex 3923 21 00,
ex 3923 29 10 and ex 3923 29 90.

6305 33 91,

currently

B. CURRENT PROCEDURE

The Commission subsequently received applica-
tions for a review of the measures currently in
force, namely a request for the initiation of a ‘new
exporter' review of Regulation (EC) No 1950/97,
pursuant to Article 11(4) of the basic Regulation,
from the Indian producers Hyderabad Polymers
Pvt. Ltd, Pithampur Poly Products Ltd, Sangam
Cirfab Pvt. Ltd and Synthetic Fibres (Mysore) Pvt.
Ltd (hereinafter
‘the companies
referred to as
concerned'). The companies concerned claimed

(1) OJ L 56, 6. 3. 1996, p. 1. Regulation as last amended by
Regulation (EC) No 905/98 (OJ L 128, 30. 4. 1998, p. 18).

(2) OJ L 276, 9. 10. 1997, p. 1.

that they were not related to any of the exporting
producers in India subject
to the anti-dumping
measures in force with regard to the product
they
concerned. Furthermore,
had not exported the product concerned during the
original period of investigation (1 April 1994 to 31
March 1995), but had exported the product
concerned to the Community since then.

they claimed that

The Commission examined the evidence submitted
by the Indian exporting producers concerned and
considered it sufficient to justify the initiation of a
review in accordance with the provisions of Article
11(4) of the basic Regulation. After consultation of
the Advisory Committee and after the Community
industry concerned had been given the opportunity
to comment, the Commission initiated, by Regula-
tion (EC) No 802/98 (3), a review of Regulation (EC)
No 1950/97 with regard to the
companies
concerned and commenced its investigation.

By Regulation (EC) No 802/98, the Commission
also repealed the anti-dumping duty imposed by
Regulation (EC) No 1950/97 with regard to imports
of the product concerned produced and exported to
the Community by the companies concerned and
directed customs authorities, pursuant to Article
14(5) of the basic Regulation, to take appropriate
steps to register such imports.

The product covered by the current review is the
same product as the one under consideration in
Regulation (EC) No 1950/97.

The Commission officially advised the companies
concerned and the representatives of the exporting
country. Furthermore, it gave other parties directly
concerned the opportunity to make their views
known in writing and to request a hearing.
However, no such request was received by the
Commission.

(3)

(4)

(5)

(3) OJ L 115, 17. 4. 1998, p. 3.

L 11/2

EN

Official Journal of the European Communities

16. 1. 1999

(6)

(7)

(8)

(9)

The Commission sent a questionnaire to the
companies concerned and received full
replies
within the deadline. The Commission sought and
verified all information it deemed necessary for the
purpose of the investigation and carried out veri-
fication visits at the premises of the companies
concerned.

The investigation of dumping covered the period
from 1 April 1996 to 31 December 1997 (herein-
after referred to as the ‘investigation period').

The same methodology as that used in the original
invest-
investigation was applied in the current
igation.

C. SCOPE OF THE REVIEW

As no request for a review of the findings on injury
was made in this investigation,
this review was
limited to dumping.

D. RESULTS OF THE INVESTIGATION

1. New exporter qualification

The investigation confirmed that the companies
concerned had not exported the product concerned
during the original period of investigation and that
they had begun exporting to the Community after
this period.

Furthermore, according to documentary evidence
the companies concerned were able
submitted,
satisfactorily to demonstrate that they did not have
any links, direct or indirect, with any of the Indian
exporting producers subject to the anti-dumping
measures in force with regard to the product
concerned.

Accordingly, it is confirmed that the companies
concerned should be considered new exporters in
accordance with Article 11(4) of the basic Regula-
tion and thus individual dumping margins should
be determined for them.

2. Dumping

A. Normal value

(10)

In accordance with Article 2(2) of the basic Regula-
tion it was examined whether the volume of each
company’s sales of the product concerned on the
domestic market constituted overall at least 5 % of
the volume of the exports of the like product to the
Community. For all companies concerned it was
established that the volume of domestic sales of the
like product was at a level considerably in excess of
the said 5 % threshold.

For each type of sacks and bags exported to the
Community, it was then examined whether or not
there were representative domestic sales of identical
or directly comparable types. For each product
type, the volume sold in India during the invest-
igation period represented 5 % or more of
the
quantity of the comparable type of sacks and bags
sold for export to the Community. Domestic sales
of each product
type exported were therefore
considered to have been made in sufficient quant-
ities within the meaning of Article 2(2) of the basic
Regulation.

For the purposes of examining whether sales of the
like product had been made in the ordinary course
of trade, information supplied on cost of produc-
tion was verified.

A number of material errors in the costs reported
by the companies concerned were corrected. Most
importantly, this related to the main component of
the cost of production, the cost of raw materials,
which had to be thoroughly revised for three of the
said companies.

One company, which sustained losses throughout
the investigation period, claimed that these losses
should be considered as start-up losses and that its
profitability should therefore be established on the
basis of its ‘normal' costs. This claim was rejected
on the grounds that
the start-up
phase exceeded the appropriate initial portion of
the period for cost recovery, as referred to in Article
2(5) of the basic Regulation.

the length of

The Commission subsequently examined whether
the domestic sales of each type of sacks and bags
exported to the Community by the companies
concerned could be considered to have been made
in the ordinary course of trade, pursuant to Article
2(4) of the basic Regulation.

For those product types where it was determined
that the weighted average selling price was equal to,
or higher than, the weighted average unit cost and
that the volume of sales below unit cost was 20 %
or less of the total sales being used to determine
normal value, all domestic sales were regarded as
having been made in the ordinary course of trade.
In accordance with Article 2(1) of the basic Regula-
tion, normal value was thus based on the weighted
average prices of all domestic sales of these product
types corresponding to those exported to the
Community.

For one product type where the volume of sales
below unit cost was more than 20 % of the total

16. 1. 1999

EN

Official Journal of the European Communities

L 11/3

sales being used to determine normal value, normal
value was established on the basis of the weighted
average prices actually paid for the remaining prof-
itable domestic sales.

For one exporting producer, which did not have
sufficient domestic sales made in the ordinary
course of trade, normal value was established on
the basis of the weighted average of the prices
charged by the other exporting producers subject to
the investigation for representative sales of
the
corresponding product
types on the domestic
market made in the ordinary course of trade.

only to distributors. However, that producer was
unable to demonstrate consistent and distinct
differences in functions and prices for the allegedly
different levels of trade on the Indian domestic
market. In view of the above, no adjustment was
granted for differences in level of trade.

Another exporting producer claimed an allowance
for differences between the quantities supplied and
those contractually agreed. This claim could not be
accepted since the difference in quantities was not
related to differences in discounts and rebates and
therefore did not affect price comparability.

B. Export price

D. Dumping margin

(11)

Export prices were established on the basis of the
prices actually paid or payable for the product
concerned when sold for export to independent
customers in the Community, in accordance with
Article 2(8) of the basic Regulation.

C. Comparison

(12)

In accordance with Article 2(11) of the basic Regu-
the weighted average normal value by
lation,
product type was compared, on an ex-factory basis,
with the weighted average export price at the same
level of trade.

For the purpose of a fair comparison, due allow-
ance in the form of adjustments was made for
differences which were claimed and demonstrated
to affect prices and price comparability. These
adjustments were made, in accordance with Article
2(10) of the basic Regulation, in respect of physical
characteristics,
and
rebates, transport, insurance, handling and ancillary
costs, packing, credit costs and commissions.

charges, discounts

import

far as

requests

As
for adjustments concerning
import charges are concerned, it should be noted
that none of those adjustments could be allowed in
full. In accordance with Article 2(10)(b) of the basic
the requests were fully or partially
Regulation,
rejected wherever it was found that the like product
and the materials physically incorporated therein
sold by the exporting producers in question on
their domestic market and intended for consump-
tion within that country, did not bear any import
charges.

One exporting producer claimed an allowance for
different levels of trade, pursuant to Article 2(10)(d)
of the basic Regulation, on the grounds that on the
domestic market the product was sold only to end-
users, whereas on the export market it was sold

(13)

The comparison showed that no dumping existed
for exports of
the product concerned to the
Community made by Hyderabad Polymers Pvt. Ltd
and Pithampur Poly Products Ltd during the
investigation period.

With regard to Sangam Cirfab Pvt. Ltd and
Synthetic Fibres (Mysore) Pvt. Ltd, it was found that
both companies had the same managing director
therefore
and the same shareholders.
concluded that only one dumping margin, based
on the weighted average of the dumping margins
found for both, should be established for the two
companies. The comparison revealed the existence
of a de minimis dumping margin of 1,7 % for
these two companies.

It was

E. AMENDMENT OF THE MEASURES BEING

REVIEWED

(14)

it

is considered that

Based on the findings made during the invest-
imports into the
igation,
Community of
sacks and bags produced and
exported by the companies concerned should not
be subject to an anti-dumping duty. Regulation
(EC) No 1950/97 should therefore be amended
accordingly.

F. DISCLOSURE AND DURATION OF THE

MEASURE

(15)

The companies concerned were informed of the
facts and considerations on the basis of which it is
intended to propose the amendment of Regulation
(EC) No 1950/97, and were given the opportunity
to comment. Comments were received and taken
into account where appropriate.

(16)

The review carried out does not affect the date on
which Regulation (EC) No 1950/97 will expire
pursuant to Article 11(2) of the basic Regulation,

L 11/4

EN

Official Journal of the European Communities

16. 1. 1999

HAS ADOPTED THIS REGULATION:

Article 2

Article 1

Article 1(2)(a) of Regulation (EC) No 1950/97 is hereby
amended by adding the following to the section headed
‘India':

Customs authorities are hereby directed to discontinue
registration pursuant to Article 3 of Regulation (EC) No
802/98.

‘— Hyderabad Polymers Pvt Ltd

— Pithampur Poly Products Ltd

— Sangam Cirfab Pvt Ltd

— Synthetic Fibres (Mysore) Pvt Ltd

0,0

0,0

0,0

0,0

8 106

8 155

8 156

8 157'.

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.

Done at Brussels, 12 January 1999.

For the Council

The President

E. BULMAHN