Council Regulation (EC) No 2852/2000 of 22 December 2000 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of polyester staple fibres originating in India and the Republic of Korea
Date: 2000-12-22
Institutions: Council of the European Union
Subjects: India, South Korea, anti-dumping duty, import, man-made fibre, originating product

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Official Journal of the European Communities

L 332/17

COUNCIL REGULATION (EC) No 2852/2000

of 22 December 2000

imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed
on imports of polyester staple fibres originating in India and the Republic of Korea

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 members of the European Community (1) and in
particular Article 9 thereof,

Having regard to the proposal submitted by the Commission
after consulting the Advisory Committee,

Whereas:

the finding in that investigation that there was no likeli-
hood of a recurrence of dumping. In this respect,
it
should be noted that the finding that there was no
likelihood of a recurrence of dumping was based on
findings related to a twelve month investigation period
i.e. two years before the
ending in September 1997,
In addition, the
initiation of the current proceeding.
Commission had examined the new evidence submitted
in the complaint of August 1999 and considered this
evidence sufficient to initiate the present investigation.

(5)

The Commission continued to seek and verify all infor-
mation deemed necessary for its definitive findings.

(1)

(2)

(3)

(4)

A. PROCEDURE

1. Provisional measures

By Commission Regulation (EC) No 1472/2000 (2) (‘the
provisional Regulation’) provisional anti-dumping duties
were imposed on imports into the Community of poly-
ester
falling within CN code
5503 20 00 and originating in India and the Republic of
Korea.

staple

(‘PSF’)

fibres

2. Subsequent procedure

Following the imposition of provisional anti-dumping
duties, several parties submitted comments in writing. In
accordance with the provisions of Article 6(5) of
Council Regulation (EC) No 384/96 (‘the basic Regula-
tion’), the parties which so requested were granted an
opportunity to be heard. Parties were informed of the
essential facts and considerations on the basis of which
it was intended to recommend the imposition of a defin-
itive anti-dumping duty and the definitive collection, at
the level of the definitive duty, of amounts secured by
way of provisional duty. They were also granted a period
within which to make representations subsequent to this
disclosure.

The oral and written comments submitted within the
deadlines set for that purpose by the interested parties
were considered and, where deemed appropriate, duly
taken into account for the definitive findings.

Certain interested parties claimed that the initiation stan-
dards applied by the Commission were improper and
arbitrary. They further claimed that the initiation of a
new proceeding against
the Republic of Korea two
months after the termination of a previous proceeding
(see recital 7 of the provisional Regulation), contradicted

(1) OJ L 56, 6.3.1996, p. 1. Regulation as last amended by Regulation

(EC) No 2238/2000 (OJ L 257, 11.10.2000, p. 2).

(2) OJ L 166, 6.7.2000, p. 1. Regulation as amended by Regulation

(EC) No 1899/2000 (OJ L 228, 8.9.2000, p. 24).

(6)

(7)

(8)

B. PRODUCT CONCERNED

A users' association claimed that the Notice of Initiation
of the present proceeding did not cover PSF types for
non-spinning applications, and that consequently these
PSF
should have been excluded from the
types
proceeding.

It should be noted that the Notice of Initiation, as well
as the complaint, clearly reproduce the description of
the relevant CN code which covers all types of PSF
imported from the exporting producers of the countries
concerned and produced by the Community industry
irrespective of their use. The wording of the description
of the relevant CN code was understood correctly by all
interested parties to this proceeding except for the users'
association mentioned, that repeated a claim that had
already been rejected in an earlier investigation on
imports of PSF from Australia, Indonesia and Thailand
contained in Regulation (EC) No 1522/2000 (3).

Some interested parties also argued that, in any event, a
differentiation should be made between PSF types used
for spinning applications (also called woven, hereafter
referred to as PSF-Sp) and PSF used for non-spinning
applications (also called non-woven or fibrefill, hereafter
referred to as PSF-NW) because of different specific basic
physical characteristics, determining the end-use of the
imported
product. Accordingly,
fibres should be subject to neutral laboratory certificates
attesting these
it was
alleged that interchangeability,
if any, between PSF-Sp
and PSF-NW was very limited and only concerned
certain types of fibres originally intended for PSF-Sp
which might be used as PSF-NW. PSF-NW therefore, if
not excluded from investigation, should at least have
been examined in a separate proceeding.

characteristics. Furthermore,

it was claimed that

(3) OJ L 175, 14.7.2000, p. 10.

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(9)

(10)

Regarding the use of the product concerned, significant
overlapping,
substitution and competition between
different types of PSF was found. The investigation has
shown that there is no clear dividing line between the
various types which would establish a unique link
between physical product characteristics and the use of
the product and that,
the available
evidence does not allow a product differentiation on this
basis. In that respect, it is also underlined that the results
of
laboratory analysis cannot possibly
determine definitely the ultimate use of the product.
Consequently, the various types of PSF involved should
be considered as forming one single product for the
purposes of this proceeding.

consequently,

independent

it

is considered that
received regarding the definition of

the
Based on the foregoing,
comments
the
product concerned, are not such as to invalidate the
conclusions of recital 18 of the provisional Regulation.
Consequently, these conclusions, which are in line with
the conclusions
in
reached for
previous investigations, are hereby confirmed.

the same product

C. DUMPING

1. India

(11) No claims were made concerning the decision not to
sample Indian exporting producers and, therefore, the
findings set out in recitals 20 to 25 of the provisional
Regulation are hereby confirmed.

1.1. Normal value

(12)

Following the adoption of provisional measures, one
exporting producer requested that the cost of produc-
tion of certain second quality product types sold in the
domestic market should be adjusted downwards for the
ordinary course of trade test. This request cannot be
accepted because the company reported identical costs
of production for different qualities of each product type
in its questionnaire response.

(13) No other claims were made concerning the deter-
mination of the normal value. The conclusions set out in
recital 46 of
the provisional Regulation are hereby
confirmed.

1.2. Export price

(14) No claims were made concerning the determination of
the export price. The conclusions set out in recital 47 of
the provisional Regulation are hereby confirmed.

1.3. Comparison

(15)

Following the adoption of provisional measures, one
exporting producer argued that the product types sold
on the domestic market which were compared to those
exported to the Community had different physical and
technical characteristics and different end-uses. The
company, therefore, requested an adjustment for phys-
ical characteristics and submitted new information to
support its request. It was found that the new informa-
tion submitted following the adoption of provisional
measures concerned additional product characteristics
which had never been requested by the Commission or
identified by the company in its questionnaire response.
At this stage of the investigation it was not possible to
change the basis of product comparison which is set out
in the specifications table of the Commission's question-
naire and concerns all cooperating exporting producers.
In addition, the new information contradicted that previ-
ously received and, therefore, the request for an adjust-
ment for physical characteristics was rejected.

(16) Another exporting producer argued that differences due
to the thickness of the fibres, expressed in denier or
decitex, should be ignored and that consequently all
product types should be treated as one. In this respect,
in order to ensure a fair and meaningful comparison
between the products sold in the domestic and export
markets, products manufactured by all exporting produ-
cers are compared on a type-by-type basis as defined in
the Commission's questionnaire. Consequently, the argu-
ment of limiting the comparison to one product type
cannot be accepted.

(17) One exporting producer submitted new information to
support a duty drawback claim which had been rejected
by the Commission at the provisional stage. This request
cannot be accepted since this information, although
requested in the questionnaire, had not been submitted
in good time and thus could not be verified.

(18)

The same exporting producer further argued that since
the claim for a duty drawback adjustment had already
been proven in the context of a previous proceeding
initiated some ten years ago (Council Regulation (EEC)
No 54/93 (1)),
it should not be reinvestigated. In this
connection, it should be borne in mind that each anti-
dumping proceeding is assessed on its own merits and is
its own factual and legal
examined on the basis of
circumstances which may
in each
proceeding. As indicated in the previous recital, this
exporting producer failed to provide evidence capable of
supporting its claim in the framework of this invest-
igation. In particular, it was not shown that any duty
was borne during the IP by the like product destined for
domestic consumption. The claim was therefore rejected.

different

be

(1) OJ L 9, 15.1.1993, p. 2. Regulation as last amended by Regulation

(EC) No 907/97 (OJ L 131, 23.5.1997, p. 1).

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(19) Within the context of the duty drawback issue, two
exporting producers claimed that this adjustment should
be granted automatically as
soon as duties were
refunded on the export side and that the question of
whether these duties were incorporated on the domestic
side was immaterial. Pursuant to Article 2(10)(b) of the
basic Regulation, a duty adjustment
is only granted
provided two conditions are met cumulatively: first, it
must be shown that import charges are borne by the like
product and by materials physically incorporated therein
when intended for consumption in the exporting
country and second, these import charges are refunded
or not collected when the product is exported to the
Community. If one of the requirements is not fulfilled,
the adjustment for duty drawback cannot be granted.

(20) One exporting producer claimed that certain import
duties were incorporated in the product sold in the
domestic market in excess of the amount granted by the
Commission in the provisional findings. This additional
claim was examined and it was found that import duties
paid for certain materials incorporated in the product
sold domestically were indeed in excess of the amount
previously established. Therefore, the provisional calcu-
lations were revised accordingly.

evidence demonstrating that the tax was included in the
domestic invoices. This request was therefore rejected.

1.4. Dumping margin

(24)

The comparison of
the revised, where appropriate,
weighted average normal value with the weighted
average export price by product type on an ex-factory
basis showed the existence of dumping for all investi-
gated exporting producers. Since the level of coopera-
tion was high, the dumping margin for all other compa-
nies is set at the level of the highest dumping margin
established for a cooperating exporting producer.

(25)

The definitive dumping margins as a percentage of the
cif import price duty unpaid are as follows:

Indian Organic Chemicals Limited, Mumbai

JCT Limited, New Delhi

Reliance Industries Ltd, Mumbai

All other companies

23,3 %

32,6 %

35,4 %

35,4 %

(21) However,

this exporting producer's new claim for a
further adjustment on import duties for a material
imported and paid for by a related company cannot be
accepted since this claim was neither made in good time
nor demonstrated to affect price comparability and in
addition, the new information submitted in this respect
was not verifiable at this stage of the investigation.

2. The Republic of Korea

2.1. Normal value

requested an adjustment

(22) One exporting producer claimed that as a result of the
Indian Government's policy to encourage the setting up
of plants in less developed areas, companies were
exempted from the payment of sales tax owed to the
government and it
to be
granted to that effect. The information submitted shows
that all sales invoices concerning products from these
exempted factories state that no sales taxes are to be
collected by the State and that the buyer is not entitled
to claim any drawback, set off or refund of any sales tax.
In these circumstances, since no sales tax is paid, no
adjustment can be granted. However,
in cases where
sales invoices concerning products manufactured from
other factories included sales taxes collected by the State,
it was considered that an adjustment was warranted and
the calculations were revised accordingly.

(26)

(27)

(28)

Following the adoption of provisional measures, three
exporting producers argued that the exclusion of ‘local
export’ sales from the domestic sales listings used to
establish normal value was wrong or unreasonable.

They argued that the exclusion was in contradiction with
the provisions of Article 2 of the basic Regulation and
with the Commission's normal practice and that it was
inconsistent with the approach adopted by other WTO
member countries. Two of these exporting producers
also argued that the Commission did not explain the
legal basis on which these sales were excluded.

further

indicated that

The exporting producers
in
previous proceedings concerning the Republic of Korea
(e.g. PSF expiry review in Council Regulation (EC) No
1728/1999 (1) and stainless steel wires in Council Regu-
lation (EC) No 1600/1999 (2) and Commission Decision
No 1999/483/EC (3)), the Commission had not objected
to the exporting producers' categorisation of
‘local
export’ sales within the domestic sales listing and in one
inclusion in the
cited instance had requested their
domestic sales listing.

(23) One exporting producer contended that the payment of
income tax related only to the profit generated on the
domestic and not on the export market, thus affecting
price comparability. In this respect, it should be noted
that the income tax constitutes a charge levied on the
company's profit,
if any, and as such it is calculated
retroactively at the end of each financial year. It cannot,
therefore, be taken into account when the price is estab-
lished. In addition, the company did not provide any

(1) OJ L 204, 4.8.1999, p. 3.
(2) OJ L 189, 22.7.1999, p. 19.
(3) OJ L 189, 22.7.1999, p. 50.

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(29)

It is considered that the specific administrative arrange-
ments applicable to the ‘local export’ sales, whereby they
were not subject to domestic sales tax, were normally
invoiced in USD and paid for by letters of credit and
were subject to duty drawback arrangements, evidenced
the fact that these sales were made through a specific
export oriented sales channel with a particular market
situation. The exporting producers concerned specifically
identified these sales in their accounting records as being
destined for incorporation in products for export. Given
their particular market situation, it was concluded that
such ‘local export’ sales were not made in the ordinary
course of trade and therefore, that their inclusion in the
normal value calculations would not permit a proper
and fair comparison with the export price in accordance
with Article 2 of the basic Regulation. The Commission
does not accept
the past practice has been to
expressly include such sales in the normal value calcula-
tions. Their
inclusion in previous proceedings may
reflect the fact that they were not specifically identified
or that their inclusion was not considered to have a
significant impact on the results. In this case however,
for the reasons given above,
‘local export’ sales have
been excluded from the domestic sales listing used to
establish normal value.

that

(30) One exporting producer argued that certain raw mate-
rials were purchased from a related supplier at an arm's
length price, and therefore, the Commission was not
justified in determining a higher market value purchase
price and increasing the cost of production accordingly.
They further argued that in any case the adjustment was
excessive as it did not take account of technical and
price differences between the raw material principally
purchased from the related supplier and a similar raw
material purchased from other suppliers.

(31)

It was found that the relationship with the supplier was
such that the exporting producer would be in a position
to exercise significant influence on the purchase price.
Furthermore, as the average price for the raw material
purchased from the related supplier was significantly
lower than the average price of the same raw material
purchased from unrelated suppliers and as the purchase
price appeared to be at a loss for the supplier, the raw
material prices were considered to be unreliable transfer
prices. In these circumstances, the calculation methodo-
logy in determining an arm's length purchase price by
increasing the price of the raw materials purchased from
the related supplier
in proportion to the weighted
average difference in purchase price of the raw material
which was purchased from the related supplier and from
unrelated suppliers has been maintained.

were nearly all profitable. The calculations were there-
fore adjusted accordingly.

(33) One exporting producer argued that the Commission
foreign exchange gain
incorrectly rejected the net
included in the selling, general and administrative
expenses, used in determining the full cost of produc-
tion, for use in establishing constructed normal value
and in the ordinary course of trade test. It argued further
that this should be reconsidered because part of the
foreign currency translation gain was
realised and
furthermore, that a turnover basis was the most appro-
priate basis
foreign
the allocation of
exchange gain to different markets.

the net

for

(34)

It was found that the exchange gain related mainly to
translation gains on the re-statement of
long-term
foreign currency liabilities, rather than pertaining to
production and sales in the ordinary course of trade in
the domestic market during the investigation period (1
October 1998 to 30 September 1999 ‘IP’). Since such
exchange gains or losses are not taken into account in
anti-dumping investigations, whether realised or not, the
argument was rejected.

2.2. Export price

for

sales

it was not

to unrelated customers

(35) One exporting producer argued that its related company
in the Community only had a minor role in the sales
in the
process
Community and therefore,
justifiable to
deduct profit in constructing the export price. It also
argued that there was no basis for establishing the level
of the profit margin used. In accordance with Article
2(9) of the basic Regulation, the items for which adjust-
ment should be made in order to construct the export
price include a reasonable margin of profit. It is consid-
ered that the profit deducted in order to construct the
export price was reasonable, as compared to informa-
tion available from cooperating independent importers.
The claim is, therefore, rejected.

(36) No other claims were made concerning the deter-
mination of the export price. Therefore, the conclusions
set out in recital 54 of the provisional Regulation are
hereby confirmed.

2.3. Comparison

(32) One exporting producer argued that the normal value
for one product
type should have been based on
domestic price rather than constructed value. This argu-
ment was accepted as it was found that sales of this
product type were made in representative quantities and

(37) One exporting producer argued that they had mistakenly
included the same adjustments, concerning credit costs,
in different columns of the export sales listing and there-
fore, the Commission was double counting the deduc-
tions in establishing the export price for a fair compar-
ison with the normal value. The credit costs reported by

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the company in the response to the questionnaire in
relation to the payment terms agreed in each transaction
were examined and this claim was accepted where justi-
fied.

(38) One exporting producer argued that the basis of the
Commission's calculation underestimated the amount of
duty drawback, as it was based on duty paid on imports
of raw materials physically incorporated in the like
product rather than duty drawback received on exports
of the product concerned to the Community, during the
IP. It argued further that the Commission's calculation
was unreasonably based on duty paid during the first
import
eight months of the IP divided by the total
volume for the whole IP. The first argument was rejected
as the amount paid during the IP was lower than the
amount refunded as provided in Article 2(10)(b) of the
the
basic Regulation. However,
company, the duty drawback per kilogram was recalcu-
lated based on the import volume for the first eight
months.

requested by

as

(39) Another exporting producer argued that in calculating
the duty drawback allowance per kilogram, the Commis-
sion should have divided the total import duties incor-
porated in purchases of certain imported raw materials
by the quantity of imported raw materials only and not
by the total quantity of raw materials purchased both
locally and imported.
the duty
drawback allowance to be deducted from the normal
value should be based on the average duty incorporated
in the cost of domestic sales, as the product sold domes-
tically would incorporate raw materials purchased both
domestically and imported. This argument is therefore
rejected.

is considered that

It

(40)

Two exporting producers argued that
the approach
followed by the Commission in rejecting claimed credit
cost adjustments under an open account system, because
the payments could not be clearly linked to the invoices,
was without legal basis. However, it was not possible to
verify that payments made under the ‘open account’
system were made in accordance with any agreed
payment terms. In these circumstances, there was no
reason to assume that contractual payment terms were a
factor taken into account in the determination of the
prices charged and therefore the claims were rejected.

2.4. Dumping margin

(41)

The comparison of the appropriately revised weighted
average normal value with the weighted average export
price by product type on an ex-factory basis showed the
existence of dumping for all
investigated exporting
producers. Since the level of cooperation was high, the
dumping margin for all other companies is set at the

level of the highest dumping margin established for a
cooperating exporting producer.

(42)

Following disclosure of the provisional
findings, two
exporting producers, Samyang Corporation and SK
Chemicals Co. Ltd informed the Commission that they
would merge their polyester business activities into one
i.e. Huvis Corporation. These
jointly-owned company,
exporting producers provided additional
information
with regard to this change of circumstances on request
by the Commission and as a result it was decided that a
single dumping margin should be definitively established
for Huvis Corporation. This dumping margin was there-
fore established as the weighted average of the revised
dumping margins of
the two exporting producers
concerned. The dumping margin for the related trading
company in Korea was set at the same level as for Huvis
Corporation.

(43)

The definitive dumping margins as a percentage of the
cif import price duty unpaid are as follows:

Daehan Synthetic Fibre Co. Ltd,
Seoul

0,9 % (de minimis)

Huvis Corporation, Seoul

Saehan Industries Inc, Seoul

SK Global Co. Ltd, Seoul

4,8 %

20,2 %

4,8 %

Sung Lim Co. Ltd, Seoul

0,05 % (de minimis)

All other companies

20,2 %

D. INJURY

1. Procedural issues

(44)

(45)

It was claimed that by combining both the anti-dumping
proceedings concerning the Republic of Korea and India,
it was unfair to establish the same IP for the exam-
ination of possible injurious dumping caused by imports
from these countries. With respect to the latter country,
this meant omitting the last three months of 1999 and it
was argued that, given the increase in oil prices, this
would have an impact on the results of the examination
of sales price, cost of production and profitability in the
injury investigation.

It should be recalled that, as stated in recital 8 of the
provisional Regulation, the combination of the proceed-
ings regarding India and the Republic of Korea was
carried out for administrative reasons. The determination
of the IP is covered by Article 6(1) of the basic Regula-
tion, which inter alia stipulates that the IP shall normally
cover a period of not less than six months immediately
prior to the initiation of the proceeding. In the case of
India,
the investigation occurred in
December 1999. Thus the period by which the IP could

the initiation of

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have been shifted was at most two months. It must also
be recalled that imports from both countries can be
cumulatively assessed since the criteria mentioned in
Article 3(4) of the basic Regulation have been met (see
recital 65 of the provisional Regulation). Finally, in order
to take the underlying concerns into account, the influ-
ence of increased cost of raw materials for 1999 were
analysed and compared to the IP.

(50) An additional request was made by some exporting
producers to exclude another Community producer
from the definition of the Community industry, given its
located outside the
relationship with an importer
Community, although not
the countries
concerned. It was alleged that the Community producer
caused injury to the Community industry by importing
PSF from its related importer.

in one of

(51)

(52)

(53)

(54)

(46)

(47)

(48)

The investigation showed that prices of the main raw
material used in PSF production, namely the terephthalic
acid (PTA) and the monoethyleneglycol (MEG), increased
both in 1999 and during the IP. It also showed that PSF
sales prices in the Community in 1999 were 2,6 %
higher than during the IP. Notwithstanding these find-
ings, the Community industry was shown to be more
profitable during the IP than in 1999.

Some exporting producers claimed that the Commission
had not verified the information submitted by the
Community industry. In this respect, it is confirmed that
substantial parts of the information submitted by the
Community industry had already been verified during a
related anti-dumping proceeding. All other information
received from the Community industry has been exam-
ined for accuracy in accordance with Article 6(8) of the
basic Regulation.

2. Definition of the Community industry

Recital 63 of the provisional Regulation stated that the
related to Indonesian
two Community producers
exporting producers were not found to be shielded from
the effect of dumping, or to be unduly benefiting from
dumping practices, or even participating in dumping
practices.
In this respect some exporting producers
claimed that the two companies should be excluded
from the assessment of the situation of the Community
industry, by reference to other anti-dumping cases,
namely magnetic disks in Commission Regulations (EC)
No 534/94 and (EC) No 2426/95 (1) and microwave
ovens in Commission Regulation (EC) No 1645/95 (2).

(49)

In this case no arguments were put

It is to be noted that any exclusion of Community
producers from the definition of Community industry
may only be warranted on the basis of the facts of each
case.
forward
regarding the facts of the case and no evidence was
submitted to substantiate the claim for an exclusion of
the two producers. On this basis, the above request is
not founded and is therefore rejected.

(1) OJ L 68, 11.3.1994, p. 5 and OJ L 249, 17.10.1995, p. 3.
(2) OJ L 156, 7.7.1995, p. 5.

Firstly, the Commission found no evidence of imports of
PSF from this importer over the period considered,
namely from 1996 up to the IP. In addition, the fact that
a Community producer is related to an importer located
outside the Community cannot as such be a reason to
exclude this producer
the
Community industry. Given that no other arguments
were put
the Community
industry as contained in recital 60 of the provisional
Regulation is confirmed.

from the definition of

the definition of

forward,

3. Imports of PSF into the Community from the

countries concerned

3.1. Cumulative assessment of imports

Two Indian exporting producers claimed that a cumula-
tive assessment of imports was unjustified because the
growth as well as the absolute volume of Indian imports
was insignificant when compared to Korean imports and
to the sales volume of the Community industry. Also it
was argued that the Indian exporting producers had to
be considered as price followers and not as price leaders.
Furthermore, on the basis of Eurostat data,
Indian
imports were lower than stated in the provisional Regu-
lation.

These arguments were analysed in the light of the provi-
sions of Article 3(4) of the basic Regulation. In this
respect, it is recalled that the margin of dumping found
for India is above the de minimis level. In addition, the
volume of imports originating in India is not negligible,
being above de minimis level during the IP.

In fact, the growth of imports over the period 1996 up
to the IP is even more pronounced for Indian imports
(around 600 % increase)
than for Korean imports
(around 300 % increase). As to the average price level of
Indian imports, this was consistently below that of the
Korean exporting producers prices and it declined more
sharply over the period 1996 up to the IP. This does not
suggest a behaviour of price followers. Finally, as
concerns the discrepancy between Eurostat figures and
the findings of the Commission, the Community institu-
tions have based their findings on verified questionnaire
replies given that higher imports were reported than
those recorded in the Eurostat statistics. The claims of
the Indian exporting producers are therefore rejected.

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3.2. Imports from the Republic of Korea

(55) An exporting producer claimed that certain non-dumped
imports originating in the Republic of Korea should be
excluded from the injury analysis.

in the underselling

However, it was found that the customs duty was erro-
neously omitted
calculations
regarding two Indian exporting producers. At the same
time a request for changing the weighing method and a
specific level of trade adjustment were also accepted.
the underselling margins for the two
Consequently,
Indian exporting producers were revised accordingly.

(56)

In this respect, when the country-wide dumping margin
(representing a weighted average margin including all
the companies under investigation) has been found to be
above the de minimis level, in accordance with Article
9(3) of the basic Regulation,
it is the practice of the
Commission to assess the effects of the dumped imports
on a country-wide level.

(61)

The results of the undercutting calculations, taking into
the lowered undercutting found for another
account
Indian exporting producer mentioned in recital 75,
range between 0 % and 27,7 % for India and remain
between 14,8 % and 56,7 % for the Republic of Korea.
The weighted average undercutting margin was 19,9 %
for India and 23,3 % for the Republic of Korea.

3.3. Price undercutting and underselling

(57) An exporting producer claimed that the calculation of
injury margins based on families grouping various types
of PSF was unjustified, given that further information on
the characteristics of individual types of PSF was asked
for in the questionnaires. He also claimed that the details
of individual transactions were ignored, and that it was
wrong to exclude negative undercutting/underselling
from the overall result of the calculations.

(58) On reexamination of the differences attributed to charac-
teristics such as length, thickness, elongation, tenacity,
crimp, shrinkage, lustre and spin finish, it is concluded
that the product types within the defined families were
sufficiently comparable. On this basis,
it is confirmed
that the undercutting and underselling exercises at the
level of product families are meaningful. In addition,
they provide a representative result in terms of number
of transactions as laid down by Article 3(3) of the basic
Regulation. Furthermore, it is considered that the infor-
mation per transaction was indeed taken into account in
the price comparison exercises. However, it is confirmed
that no compensation was made for the amount which
did not undercut/undersell Community industry prices
in the final comparison at the level of product families.
Since no further arguments were put forward, the above
claims were rejected.

4. Economic situation of the Community industry

4.1. General

(62)

(63)

It was claimed by some exporting producers that,
pursuant to the provisions of Article 3.4 of the WTO
Anti-Dumping Agreement,
the
economic situation of the Community industry required
an assessment of all relevant economic factors and
indices having a bearing on the state of that industry.

the examination of

This examination would include factors not commented
upon in the provisional Regulation such as the impact of
the magnitude of the margin of dumping, productivity,
return on investment, cash flow, wages, growth and the
ability to raise capital. In this respect, the following has
been found.

4.1.1. T h e

i m p a c t o f
m a r g i n o f d u m p i n g

t h e m a g n i t u d e o f

t h e

(64) As concerns the impact on the Community industry of
the magnitude of the actual margin of dumping, given
the volume and the prices of the imports from the
countries concerned, this impact cannot be considered
to be negligible.

(59) An exporting producer requested that an adjustment
should be applied to its cif prices in the undercutting
and underselling calculations because such adjustment
was indicated in the complaint.

(60)

In this respect, it should be recalled that the Commission
collected information by means of questionnaires and
verified it by means of on-site inspection and it did not
base itself on the figures mentioned in the complaint.

4.1.2. P r o d u c t i v i t y

(65)

the production of

The productivity of the Community industry, calculated
the product concerned per
as
employee, shows an improvement from 92,1 tonnes in
1996 to 127,1 tonnes during the IP (+38 %). This
improvement is mainly a consequence of the decline in
employment described in recital 85 of the provisional
Regulation.

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(66)

(67)

4.1.3. R e t u r n o n i n v e s t m e n t

4.1.8. C o n c l u s i o n

investments

Return on investment was calculated by relating the net
profit before taxes and extra-ordinary items to the net
related to the product
book-value of
concerned. The return on investment for the product
concerned increased from 4,6 % in 1996 to 16,7 % in
1997 and 25,7 % in 1998. Subsequently, it fell back to
5,5 % during the IP. The evolution of this indicator is
similar to the evolution of profitability described in reci-
tals 81 to 83 of the provisional Regulation.

(71)

It is considered that in the provisional Regulation, all
factors and indices which were decisive for a meaningful
analysis of the state of the Community industry were
analysed. The description of
indicators not
commented upon in the Provisional Regulation as
presented under recitals 65 to 70 here above,
indeed
reinforces the conclusions mentioned in the provisional
Regulation.

the

4.1.4. C a s h f l o w

4.1.9. S t o c k s

The cash flow of
the Community industry for the
product concerned increased considerably from 1996 to
1997 (+84 %) and from 1997 to 1998 (+28 %) as a
consequence of the good results of these two years.
From 1998 to the IP, cash flow dropped by 60 % to
arrive at a level that was 6 % lower than in 1996. The
improvement of cash flow in 1997 and 1998 is less
pronounced than that of profitability. Moreover, for the
IP, the cash flow is lower than in 1996, whereas net
profit and profitability are higher.

4.1.5. W a g e s

(68) Wages form a part of the analysis of the cost of produc-
tion as described in recitals 79 and 80 of the provisional
Regulation. The Community industry's wages increased
by 10 % from 1996 to 1997, but significantly decreased
from 1997 to 1998 and the IP, where the absolute level
of wages was 24 % and 23 % respectively lower than in
1996.

4.1.6. G r o w t h

(69)

The growth of the market of the product concerned was
commented upon in recital 64 of the provisional Regu-
lation. The (negative) growth of the market share of the
Community industry was mentioned in recital 76 of the
provisional Regulation.

4.1.7. A b i l i t y t o r a i s e c a p i t a l

(72) An exporting producer argued that

the comparison
made by the Commission in recital 77 of the provisional
Regulation concerning the level of stocks at the end of
1998 and at the end of 1999 was irregular and in
contravention of the basic Regulation. It was claimed
that comparing the stocks at the end of the month of
September (1999) with those at year-end (1998) was the
only valid, unbiased and objective method to analyse the
evolution of PSF stocks.

(73)

In this respect, attention is drawn to the seasonal nature
of stockbuilding in the PSF industry. Indeed, stock levels
fluctuate during the calendar year and, consequently, a
comparison of stock levels between 1998 and the IP
only makes sense if corresponding points in time during
the year are considered. Therefore, the stock level at the
end of 1998 (31 December) cannot be compared to the
one at the end of the IP (30 September).

4.2. Cost of production

(74) An exporting producer submitted that

the cost of
production for one Community industry producer was
too high in comparison with the other producers in
order to be used in determining the underselling margin.

(75)

The costs attributed to the product concerned by each
company were verified by the Commission. As a result,
no reasons were found to exclude any company from
the underselling calculation on the basis of the absolute
level of its cost of production.

(70) As far as the ability to raise capital is concerned, present
cash flow is on average considered as being still suffi-
cient to make the necessary replacement investments.
The depressed situation of the market however has nega-
tively affected the ability of the Community industry to
attract additional external funding in the form of bank
loans or increased involvement of shareholders for the
initiation of new projects. Especially when other prod-
ucts are manufactured, the comparison of return on
investment of PSF with that of those other products is
unfavourable, causing difficulties in allocating budgets to
the product concerned.

(76) Another exporting producer claimed that a producer
that produces PSF from dimethyl terephthalate (DMT)
and MEG instead of PTA and MEG should be excluded
because this allegedly does not represent the cheapest
production method.

(77) On the basis of the reasoning set out in recital 75,
neither the production process as such nor the cost of
production pertaining to it can constitute criteria on the
basis of which companies should be eliminated from the
scope of the investigation.

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4.3. Conclusion

(78)

Based on the foregoing, it is considered that the above
arguments and claims are not such as to change the
findings made in the provisional Regulation. Conse-
quently, the contents of recitals 86 to 90 of the provi-
sional Regulation
the
the
Community industry suffered material injury during the
IP are hereby confirmed.

conclusion

that

and

E. CAUSATION

1. Effect of dumped imports

(79) An exporting producer claimed that the only factor that
explained the low profitability of
the Community
industry during the IP was raw material prices and not
the effect of dumped imports. It was also claimed that
the improvement in the Community industry's profit-
ability from 2,30 % to 3,38 % over the period 1996 to
the IP excluded injury caused by dumped imports over
this period.

(80)

It is to be noted that the presence of dumped imports
exercised a downward pressure on the sales prices
thereby prohi-
prevailing in the Community market,
biting sales prices to correctly reflect increases in raw
material prices.

(81) As to the low increase in profitability from 1996 to the
IP, the investigation has shown that the improvement of
profitability was mainly the result of the restructuring
process undertaken by the Community industry. This
also included the reduction in selling, general and
administrative costs.

(82) As indicated in recital 87 of the provisional Regulation
regarding the conclusions on the economic situation of
the Community industry, the low profitability achieved
by the industry could not be considered satisfactory. On
the contrary, it must be considered to be unduly low as
a consequence of the price-suppressive effects of the
dumped imports. Additional negative indicators were
the decrease in sales volume, the loss of market share,
the reduction of production capacity and employment,
and the increase of stock levels.

the IP. Definitive anti-dumping measures imposed on
imports of PSF originating in the Republic of Korea were
repealed in August 1999 by Regulation (EC) No 1728/
99 (1).

(85)

the measures imposed on
It must be recalled that
imports of PSF originating in the Republic of Korea were
repealed because it was considered there was no likeli-
hood of recurrence of dumping following the findings of
the investigation period of which
an expiry review,
covered from 1 January 1996 to 30 September 1997.
During the IP of
the current proceeding however,
dumping was established and the above argument is
therefore not valid.

2. Other imports

(86) An exporting producer claimed that the Commission
should also have examined possible effects of imports
from Poland, Turkey and the Czech Republic.

(87) On the basis of Eurostat information it was determined
that the price levels at which these imports entered the
Community were significantly higher than the import
prices of the countries under investigation (from 12,3 %
to 30,5 % during the IP). Consequently there was no
reason to classify these imports within the same import
price range as the one for the countries under invest-
igation nor to consider that any injury which may have
been caused by them was such as to break the causal
link between the injury found to be suffered and the
dumping by exporting producers
in the countries
concerned.

3. Conclusion

(88) Given the above,

the conclusion that

the dumped
imports have caused material injury to the Community
industry, as stated in recital 102 of the provisional Regu-
lation,

is hereby confirmed.

F. COMMUNITY INTEREST

1. Interest of the Community industry

(89)

Since no comments were received in this respect, the
findings on the interest of the Community industry cited
in recitals 104 to 106 of the provisional Regulation are
hereby confirmed.

Based on the foregoing the conclusion as set out in
recital 87 of
the provisional Regulation is hereby
confirmed.

(90)

(83)

(84)

It was further claimed by an exporting producer that any
injury suffered by the Community industry could not
have been caused by imports from the Republic of Korea
given that anti-dumping measures were already in place
for most of the period from January 1996 to the end of

(1) OJ L 204, 4.8.1999, p. 3.

2. Impact on importers and users

It was claimed by a users' association and also, sepa-
rately, by a user, member of this association, that certain
PSF types were not on offer from Community producers
and that consequently, users were forced to source
outside the Community. Another user claimed that the
Community producers could not satisfy the Community
demand.

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(91)

The investigation has established that although certain
types of PSF were not produced by the Community
industry during certain periods, this does not mean that
the Community industry would not be in a position to
produce those types.
Indeed, only small adaptations,
such as changing of a spinerette and omission or addi-
tion of an additive, requiring low investment, would be
needed. Rather, at particular moments in time, certain
PSF types were not available because the Community
producers could not deliver the quantities involved at
the depressed price levels which users were willing to
pay.

the duties proposed,

(92) As concerns Community consumption, given the level
imports from the countries
of
concerned will continue to be able to enter
the
Community market albeit at non-dumped prices. As
the Community industry,
concerns
although these are likely to increase, this increase should
be limited given that imports from other third countries
also exist. In view of the above the impact of the anti-
dumping measures will not endanger sufficient choice
and supply to the Community users.

the prices of

(93)

Clarification has been requested for recital 109 of the
provisional Regulation, mentioning that the proposed
measures may have the impact of increasing the cost of
production of users by 0,6 % to 1,2 %.

(94) On the basis of information received by the few cooper-
ating Community users, it was found that the impact of
anti-dumping measures on PSF originating in India and
the Republic of Korea on their cost of production would
range from 0,6 % to 1,2 %. This finding was arrived at
by taking into account the importance of PSF in the cost
of production of
the
average anti-dumping duty provisionally imposed on
imports from the Republic of Korea and India and the
market share of Korean and Indian imports compared to
Community consumption during the IP.

finished products,

these users'

(95)

(96)

It is clear that the situation in which a particular user
finds itself
is dependent on the degree to which it
imports from the countries and exporting producers
concerned, and on its own cost structure. The average
impact quoted therefore depicts a company with a
representative average behaviour of alternative sourcing,
of which the Republic of Korea and India account for
14,7 %.

Following the publication of the Provisional Regulation,
a number of Community users claimed that the imposi-
tion of anti-dumping duties would have negative effects
on their competitiveness in the downstream products'
markets and would ultimately endanger their survival. In
their opinion, the imposition of anti-dumping duties
would trigger price increases which users would need to
reflect in their downstream products' prices. This devel-
opment would in turn cause an increase in imports of
lower-priced downstream products from other third

countries and from the countries concerned by this
investigation and would oblige certain Community
producers of downstream end-products incorporating
PSF to relocate their production outside the Community.

(97) However, the analysis of the maximum average impact
of the proposed measures on users indicates that the
imposition of anti-dumping measures is not likely to
cause a significant
increase in the import of cheap
downstream products into the Community. This conclu-
sion is also reached in the absence of any evidence from
the users concerned substantiating their claim, and
indeed such effects were not in evidence during the
period of validity of past measures concerning PSF.
Moreover, it should be noted that woven finished prod-
ucts (such as used in clothing and household furniture)
fall under the quantitative restrictions of the textiles
quota system.

(98) As the examination of the above arguments submitted
by the user companies does not lead to new conclusions,
the considerations of recitals 109 and 111 of the provi-
sional Regulation on the likely impact of the proposed
measures on the users is hereby confirmed.

3. Conclusion

(99)

The new arguments
received regarding the deter-
mination of the Community interest, are not considered
to be such as to reverse the conclusion that no compel-
ling reasons exist against
the imposition of anti-
dumping measures. The provisional findings are there-
fore confirmed.

G. DEFINITIVE DUTY

(100)

In view of the conclusions reached regarding dumping,
injury, causation and Community interest, it is consid-
ered that definitive anti-dumping measures should be
imposed in order to prevent further injury being caused
to the Community industry by dumped imports from
India and the Republic of Korea.

1. Injury elimination level

(101) As explained in recital 116 of the provisional Regula-
tion, a non-injurious level of prices was determined
which would cover the Community industry's full cost
of production and a reasonable profit which would be
obtained in the absence of dumped imports from the
countries concerned.

(102) Some exporting producers argued that 6 % should be
used as a reasonable profit, referring to cases on PSF and
polyester textured filament yarn (PTY) preceding the
investigation against Australia et al. However,
in this
latter proceeding, the reasonable profit had been deter-
mined at a level of 10 %, as was also the case for the
current investigation. Other exporting producers argued
that the reasonable profit should even be lower, such as
4 %, since the overall profitability of the Community
industry was better now than at
those
former proceedings relating to Belarus in Regulation
(EC) No 1490/96 (1) and Indonesia in Regulation (EC)
No 2160/96 (2).

the time of

(1) OJ L 189, 30.7.1996, p. 13.
(2) OJ L 289, 12.11.1996, p. 14. Regulation as amended by Regulation

(EC) No 1822/98 (OJ L 236, 22.8.1998, p. 3).

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(103)

It should be noted that the Commission indicated in recital 116 of the provisional Regulation that a
margin of 10 % should be considered as the level of profit that could have been achieved in the
absence of dumped imports.

(104) The level of profit that is considered reasonable is determined on the basis of what the Community
industry would be likely to obtain in the absence of injurious dumping. As the IP of previous
investigations were different and the price depressive effects of dumping established in those cases,
were of a different order, there is no reason to suppose that the Community industry would have
achieved the same level of profit. Consequently, previous levels of profit are not necessarily
appropriate in the present case. In this respect, reference is furthermore made to the reasoning as
contained in recital 117 of the provisional Regulation.

(105) Consequently, based on the foregoing, the conclusions as contained in recital 117 of the provisional

Regulation are hereby confirmed.

2. Form and level of the duty

(106)

In accordance with Article 9(4) of the basic Regulation, the following anti-dumping duty rates
correspond to the dumping margins when these are found to be lower than the injury margins. This
is the case for all but one company.

Country

Company

Rate of duty

India

Indian Organic Chemicals Limited

JCT Limited

All other companies

The Republic of Korea Daehan Synthetic Fibre Co. Ltd

Huvis Corporation

SK Global Co. Ltd

Sung Lim Co. Ltd

All other companies

14,7 %

32,6 %

35,4 %

0 %

4,8 %

4,8 %

0 %

20,2 %

(107) The individual company anti-dumping duty rates were established on the basis of the findings of the
present investigation. Therefore, they reflect the situation found during that investigation with
respect to these companies. These duty rates (as opposed to the country-wide duty applicable to ‘all
other companies’) are thus exclusively applicable to imports of products originating in the country
concerned and produced by the companies and thus by the specific legal entities mentioned.
Imported products produced by any other company not specifically mentioned in the operative part
of any Regulation with its name and address,
including entities related to those specifically
mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all
other companies’.

(108) Any claim requesting the application of these individual company anti-dumping duty rates (e.g.
following a change in the name of the entity or following the setting up of new production or sales
entities) should be addressed to the Commission (1) forthwith with all relevant information,
in
particular any modification in the company's activities linked to production, domestic and export
sales associated with e.g. that name change or that change in the production and sales entities. The
Commission, if appropriate, will, after consultation of the Advisory Committee, amend any Regula-
tion accordingly by updating the list of companies benefiting from individual duty rates.

(1) European Commission, Directorate-General Trade, Directorate B, TERV — 0/13, Rue de la Loi/Wetstraat 200, B-1049

Brussels/Belgium.

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H. COLLECTION OF THE PROVISIONAL DUTY

(109)

In view of the magnitude of the dumping margins found for the exporting producers, and in light of
the seriousness of the injury caused to the Community industry, it is considered necessary that the
amounts secured by way of provisional anti-dumping duty under Commission Regulation (EC) No
124/2000 (1) be definitively collected to the extent of the amount of definitive duties imposed if this
amount is equal or lower than the amount of the provisional duty. Otherwise, only the amount of
the provisional duty should be definitively collected. Amounts secured in excess of the rate of the
definitive anti-dumping duty shall be released.

(110) Following the merger of the polyester business activities of Samyang Corporation and SK Chemicals
Co. Ltd into one jointly owned company i.e. Huvis Corporation, definitive collection of provisionally
imposed duties should be made for these companies with reference to the definitively imposed duty
for Huvis Corporation.

I. UNDERTAKING

(111) Subsequent to the imposition of provisional anti-dumping measures, one exporting producer in India

offered a price undertaking in accordance with Article 8(1) of the basic Regulation.

(112) The Commission considers that the undertaking offered by Reliance Industries Limited can be
accepted since it eliminates the injurious effect of the dumping. Moreover, the regular and detailed
reports which the company undertook to provide to the Commission will allow effective monitoring
and the structure of the company is such that the Commission considers that the risk of circumven-
tion of the undertaking is minimised.

In order to ensure the effective respect and monitoring of the undertaking, when the request for
release for free circulation pursuant to the undertaking is presented, exemption from the duty is
conditional upon presentation of a commercial invoice containing the information listed in the
Annex which is necessary for customs to ascertain that shipments correspond to the commercial
document at the required level of detail. Where no such invoice is presented, or when it does not
correspond to the product presented to customs, the appropriate rate of anti-dumping duty should
be payable.

(113)

In the event of a suspected breach, breach or withdrawal of the undertaking an anti-dumping duty
may be imposed, pursuant to Articles 8(9) and (10) of the basic Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1.
A definitive anti-dumping duty is hereby imposed on imports of synthetic staple fibres of polyesters,
not carded, combed or otherwise processed for spinning, falling within CN code 5503 20 00 and origin-
ating in India and the Republic of Korea.

The rate of the definitive duty applicable to the net free-at-Community-frontier price, before duty, for

2.
products produced by the companies indicated shall be as follows:

Country

Company

India

Indian Organic Chemicals Limited,
Bhupati Chambers
3rd floor, 13 Mathew Road,
Mumbai — 400 004, India

JCT Limited,
Thapar House, 124 Janpath,
New Delhi — 110 001, India

Rate of duty

TARIC additional
code

14,7 %

A148

32,6 %

A149

All other companies

35,4 %

A999

(1) OJ L 16, 21.1.2000, p. 30.

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Country

Company

Rate of duty

TARIC additional
code

The Republic of Korea Daehan Synthetic Fibre Co. Ltd,

0 %

A150

162-1 Changchoong-dong
Chung-gu,
Seoul, Korea

Huvis Corporation,
77-1 Garak-dong,
Songpaku,
Seoul, Korea

SK Global Co. Ltd,
36-1, 2Ga, Ulchiro,
Chung-Gu
Seoul, Korea

Sung Lim Co. Ltd,
Rum 502, Shinhan Building,
Youido-Dong
Youngdungpo-Ku
Seoul, Korea

4,8 %

A151

4,8 %

A153

0 %

A154

All other companies

20,2 %

A999

Notwithstanding Article 1(1), the definitive duty shall not apply to imports released for free circula-

3.
tion in accordance with the provisions of Article 2.

4.

Unless otherwise specified, the provisions in force concerning customs duties shall apply.

Article 2

Goods produced by the following company and imported in accordance with paragraph 2 shall be

1.
exempted from the duty in Article 1:

Company

Reliance Industries Limited,
Marker Chamber IV, 3rd Floor
222, Nariman Point,
Mumbai 400 021

Country

India

TARIC additional code

A212

2.
Imports declared under TARIC additional code A212 shall be exempt from the anti-dumping duties
imposed by Article 1 if they are produced and directly exported (i.e. invoiced and shipped) to a company
acting as an importer in the Community by the company mentioned in paragraph 1, provided that the
commercial invoice presented to the relevant customs authorities at the same time as the request for free
circulation contains the information listed in the Annex.

Exemption from the duties shall further be conditional on the goods declared and presented to

3.
customs corresponding precisely to the description on the commercial

invoice.

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Article 3

1.
The amounts secured by way of the provisional anti-dumping duty on imports originating in India
and the Republic of Korea under Regulation (EC) No 1472/2000 shall be collected at the rate of the duty
definitively imposed by this Regulation. Amounts secured in excess of the rate of definitive anti-dumping
duty shall be released. In cases where the rate of the definitive duty imposed is higher than the rate of the
provisional duty, only the amounts secured at the level of the provisional duty should be definitively
collected.

2. With regard to Samyang Corporation and SK Chemicals Co. Ltd, the amounts secured by way of the
provisional anti-dumping duty shall be collected at the level of the duty definitively imposed by this
Regulation on Huvis Corporation. Amounts secured in excess of the rate of the definitive duty imposed on
Huvis Corporation should be released.

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the
European Communities.

Article 4

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 22 December 2000.

For the Council

The President

C. PIERRET

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ANNEX

Necessary information for the commercial invoices accompanying sales made subject to an undertaking

Elements to be indicated in the commercial

invoice referred to in Article 2(2):

1. The invoice number.

2. The TARIC additional code under which the goods on the invoice may be customs-cleared at Community borders (as

specified in the Regulation).

3. The exact description of the goods,

including:

— the product reporting code number (PRC) (as established in the undertaking offered by the producing exporter in

question);
— CN code;
— quantity (to be given in kg).

4. The description of the terms of the sale,

including:

— price per kg;
— the applicable payment terms;
— the applicable delivery terms;
— total discounts and rebates.

5. Name of the company acting as an importer to which the invoice is issued directly by the company.

6. The name of the official of the company that has issued the undertaking invoice and the following signed declaration:
‘I, the undersigned, certify that the sale for direct export to the European Community of the goods covered by this
invoice is being made within the scope and under the terms of the undertaking offered by … [company], and accepted
by the European Commission through Decision 2000/818/EC. I declare that the information provided in this invoice is
complete and correct.’