Commission Decision No 841/2002/ECSC of 21 May 2002 amending Decision No 283/2000/ECSC imposing a definitive anti-dumping duty on imports of certain flat rolled products of iron or non-alloy steel, of a width of 600 mm or more, not clad, plated or coated, in coils, not further worked than hot-rolled, originating, inter alia, in India and accepting an undertaking
Date: 2002-05-21
Institutions: European Commission
Subjects: India, anti-dumping duty, flat product, import, originating product, plate

22.5.2002

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Official Journal of the European Communities

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COMMISSION DECISION No 841/2002/ECSC

of 21 May 2002

amending Decision No 283/2000/ECSC imposing a definitive anti-dumping duty on imports of
certain flat rolled products of iron or non-alloy steel, of a width of 600 mm or more, not clad,
plated or coated, in coils, not further worked than hot-rolled, originating, inter alia, in India and
accepting an undertaking

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

(4)

Having regard to the Treaty establishing the European Coal and
Steel Community,

Having regard to Commission Decision No 2277/96/ECSC of
28 November 1996 on protection against dumped imports
from countries not members of the European Coal and Steel
last amended by
Community (1)
Decision No 435/2001/ECSC (2), and in particular Article 11(4)
thereof,

(‘the basic Decision’), as

After consulting the Advisory Committee,

Whereas:

(1)

(2)

A. PREVIOUS PROCEDURE

By Decision No 283/2000/ECSC (3), (‘the definitive Deci-
sion’), as corrected by Decision No 2009/2000/ECSC (4),
the Commission imposed,
inter alia, a definitive anti-
dumping duty of 10,7 % on imports of hot-rolled coils
(‘product concerned’) originating in India, with the
Indian companies
exception of
specifically mentioned, which are either subject to a
lesser rate of duty or to no duty at all.

imports from several

B. CURRENT PROCEDURE

Industries Ltd.

The Commission subsequently received an application to
initiate a ‘new exporter’ review of the definitive Decision,
pursuant to Article 11(4) of the basic Decision, from the
Indian exporting producer Ispat
(‘the
company’). This company claimed that it was not related
to any of the exporting producers in India subject to the
anti-dumping measures in force with regard to the
product concerned. Furthermore, it claimed that it had
not exported the product concerned during the original
period of investigation (1 January 1998 to 31 December
1998), but had exported the product concerned to the
Community since then.

(3)

The product covered by the current review is the same
product as the one under consideration in the definitive
Decision.

(1) OJ L 308, 29.11.1996, p. 11.
(2) OJ L 63, 3.3.2001, p. 14.
(3) OJ L 31, 5.2.2000, p. 15.
(4) OJ L 240, 23.9.2000, p. 12.

The Commission examined the evidence submitted by
the company and considered it sufficient to justify the
initiation of a review in accordance with the provisions
of Article 11(4) of the basic Decision. After consultation
of the Advisory Committee and after the Community
industry concerned had been given the opportunity to
comment, the Commission initiated, by Decision No
2113/2000/ECSC (5), a review of the definitive Decision
pursuant to Article 11(4) of the basic Decision with
regard to the company and commenced its investigation.

(5)

(6)

(7)

By the Decision initiating the review, the Commission
also repealed the anti-dumping duty imposed by the
definitive Decision with regard to imports of the product
concerned produced and exported to the Community by
the company and directed customs authorities, pursuant
to Article 14(5) of the basic Decision, to take appro-
priate steps to register such imports.

The Commission informed the company and the repre-
sentatives 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 Commis-
sion.

The Commission sent a questionnaire to the company
and received a reply within the deadline. The Commis-
sion also sought and verified all the information deemed
necessary for the determination of dumping. A verifica-
tion visit was carried out at
the
company.

the premises of

(8)

The investigation of dumping covered the period from 1
July 1999 to 30 June 2000 (‘the investigation period’).

C. RESULTS OF THE INVESTIGATION

1. New exporter qualification

(9)

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

(5) OJ L 252, 6.10.2000, p. 3.

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(10)

the company was able to satisfactorily
Furthermore,
demonstrate that it 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.

(11) Accordingly, it is confirmed that the company should be
considered a new exporter in accordance with Article
the basic Decision, and thus an individual
11(4) of
dumping margin should be determined for it.

2. DUMPING

Normal value

(12) As

the determination of normal value
the Commission first established,

is
far as
concerned,
for the
company, whether its total domestic sales of hot-rolled
coils were representative in comparison with its total
export sales to the Community.
In accordance with
Article 2(2) of the basic Decision, domestic sales were
considered representative since the total domestic sales
volume of the exporting producer was at least 5 % of its
total export sales volume to the Community.

(13)

(14)

The Commission subsequently identified those types of
hot-rolled coils sold domestically by the company that
were identical or directly comparable to the types sold
for export to the Community. The investigation showed
that
the product
concerned exported into the Community by the
company are identical or comparable to the products
sold on the domestic market.

and dimensions of

the grades

For each type sold for export to the Community by the
exporting producer and found to be directly comparable
to the type sold on its domestic market, it was estab-
lished whether domestic sales were sufficiently repres-
entative for the purposes of Article 2(2) of the basic
Decision. Domestic sales of all types were considered
sufficiently representative.

(15) An examination was also made as to whether the
domestic sales of each type could be regarded as having
been made in the ordinary course of trade, by estab-
lishing the proportion of profitable sales to independent
customers of the type in question. In cases where the
sales volume of the product concerned sold at a net sales
price equal to or above the calculated cost of production
(‘profitable sales’) represented 80 % or more of the total
sales volume and where the weighted average price of
that type was equal to or above cost of production,
normal value was based on the actual domestic price,
calculated as a weighted average of the prices of all

domestic sales made during the investigation period,
irrespective of whether all these sales were profitable or
not. In cases where the volume of profitable sales of the
product concerned represented less than 80 % but 10 %
or more of the total sales volume, normal value was
based on the actual domestic price, calculated as a
weighted average of profitable sales only.

(16)

In cases where the volume of profitable sales of any type
of the product concerned represented less than 10 % of
the total sales volume, it was considered that this partic-
ular type was sold in insufficient quantities for the
domestic price to provide an appropriate basis for the
establishment of the normal value.

(17) Wherever domestic prices of a particular type sold by
the company could not be used, constructed normal
value had to be used in preference to domestic prices of
other exporting producers or to domestic prices of other
similar types. Due to the fact that only one company is
concerned by this investigation, the former option was
not available. As to the use of similar types, the number
of different types and the variety of factors affecting
them, would have meant in this case making numerous
adjustments, most of which would have had to be based
on estimates.
the
constructed value of the company formed a more appro-
priate basis to establish normal value.

therefore considered that

It was

(18) As a result of the above tests, for 33 types normal value
calculations were based on the actual domestic sales
prices of hot-rolled coils whilst for all other types (1006)
normal value had to be calculated, in accordance with
Article 2(3) of the basic Decision, on the basis of a
constructed value that was determined by adding to the
manufacturing costs of the exported models, a reason-
able percentage for selling, general and administrative
expenses (SG & A) and reasonable profit margin.

(19)

To this end, the Commission examined whether the
SG & A incurred and the profit realised by the company
on the domestic market constituted reliable data. Actual
domestic SG & A expenses were considered reliable since
the domestic sales volume of the company concerned
could be regarded as representative when compared to
the volume of export sales to the Community. The
domestic profit margin was determined on the basis of
domestic sales made in the ordinary course of trade.

(20)

The company has claimed an adjustment to its cost of
production for start-up costs because of low capacity
utilisation rate, pursuant to Article 2(5) of the basic
Decision.

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(21)

It was found that the company's costs for the invest-
igation period were affected by the use of new produc-
tion facilities that required a very substantial investment
and that were characterised by low capacity utilisation
rates.
It was also established that these low capacity
utilisation rates were partially due to start-up operations.
Consequently, pursuant
the basic
Decision, the Commission has adjusted the company's
cost of production for the entire investigation period to
reflect the actual costs incurred during the last three
months thereof, which corresponded to the moment
when the company was considered as commercially put
to use pursuant to the applicable Indian law.

to Article 2(5) of

Export price

(22)

Since all export sales to the Community were made to
independent customers in the Community, the export
price was established in accordance with Article 2(8) of
the Basic Decision, namely on the basis of export prices
actually paid or payable.

Comparison

(23)

For the purpose of ensuring a fair comparison between
normal value and export price, due allowance in the
form of adjustments was made for differences affecting
price comparability in accordance with Article 2(10) of
the basic Decision.

actually been imported at all. Since the company only
imported negligible quantities of raw materials, it could
not demonstrate that the imported materials were physi-
cally incorporated in the final product when sold on the
domestic market of the exporting producer. This allow-
ance cannot therefore be granted as it does not satisfy
the requirements of the basic Decision.

Dumping margin

(27) According to Article 2(11) of the basic Decision, the
dumping margin was established on the basis of a
comparison between the weighted average normal value
by type and the weighted average export price.

(28)

This weighted average dumping margin established for
the company, expressed as a percentage of the free-at-
Community-frontier price, amounts to 46,5 %.

D. AMENDMENT OF THE MEASURES BEING REVIEWED

(29)

In the light of the foregoing,
it is considered that a
definitive anti-dumping duty should be imposed at the
level of the dumping margin found, but, in accordance
with Article 9(4) of the basic Decision should not be
higher than the countrywide injury margin established
for India by the definitive Decision in the original anti-
dumping investigation.

(30) No individual injury margin can be established in a new
to
is limited to the

exporter review since the investigation, pursuant
Article 11(4) of the basic Decision,
examination of the individual dumping margin.

(24) All of the export sales allowances with the exception of
for commissions, which was double accounted,
that
could be accepted. These relate to inland freight, other
freight, bank charges, other charges and packing.

(31)

(25) All

the domestic sales allowances claimed by the
company with the exception of that for duty drawback
could be accepted.

In accordance with Article 24(1) of Commission
Decision No 1889/98/ECSC (3) and Article 14(1) of the
basic Decision, no product shall be subject
to both
anti-dumping and countervailing duties for the purposes
of dealing with one and the same situation arising from
dumping or from export subsidisation. As anti-dumping
duties should be imposed on imports of the product
concerned it is necessary to determine whether, and to
what extent, the subsidy and the dumping margin arise
from the same situation.

(26)

The duty drawback allowance that was claimed was
calculated on the basis of the credits gained on the basis
the Duty Entitlement Passbook Scheme (DEPB)
of
scheme described in recital 40 of Commission Decision
No 284/2000/ECSC (1), as corrected by Decision No
2071/2000/ECSC (2), that imposed a definitive counter-
vailing duty on imports of the product concerned origin-
ating in India. This scheme depends on the export sales
quantities irrespective of whether or not any import
duties have been paid or whether any raw materials have

(32)

In the case in question the schemes investigated in India
have been found to constitute export subsidies within
the meaning of Article 3(4)(a) of the above Decision No
1889/98/ECSC. As such, the subsidies can affect the
export prices of the Indian exporting producers, thus
leading to increased margins of dumping.
In other
words, the dumping margin established is wholly or
partly due to the existence of export subsidies. In these
to be
circumstances
adjusted to reflect the actual dumping margin remaining
after the imposition of the countervailing duties offset-
ting the effect of the export subsidies.

the anti-dumping duty needs

(1) OJ L 31, 5.2.2000, p. 44.
(2) OJ L 246, 30.4.2000, p. 32.

(3) OJ L 245, 4.9.1998, p. 3.

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E. ADJUSTMENT OF THE ANTI-DUMPING DUTY APPLICABLE TO JINDAL VIJAYANAGAR STEEL

LTD

(33)

Jindal Vijayanagar Steel Ltd applied for an accelerated review pursuant to Article 20 of Decision No
1889/98/ECSC, but did not apply, at the initiation of this review, for a review of the anti-dumping
duty applicable to it. Following the initiation of a review (1) an individual countervailing duty rate
was established at 5,7 % for this company. Given that pursuant to recital 255 of Decision No
283/2000/ECSC the anti-dumping duty is determined as the difference between the injury margin
and the export subsidy established, the anti-dumping duty applicable has to be adjusted. The injury
margin attributed to Jindal Vijayanagar Steel Ltd is the residual injury margin of 23,8 %. Conse-
quently, the anti-dumping duty applicable to products exported to the Community by this company
has to be fixed at 18,1 %.

(34) Accordingly, the rate of duty applicable to the free-at-Community-frontier price, before duty and

taking into account the results of the parallel anti-subsidy proceeding, shall be:

Company

Dumping
margin

Injury margin

Export subsidy
margin

(%)

Proposed
countervailing
duty

Anti-dumping
duty to be
imposed

Ispat Industries Ltd

Jindal Vijayanagar Steel Ltd

46,5

56,3

23,8

23,8

9,8

5,7

9,8

5,7

14

18,1

(35) Meanwhile, Jindal Vijayanagar Steel Ltd has requested a review of the anti-dumping duty applicable
to it. This review was initiated by Commission Decision No 1699/2001/ECSC (2) which shall remain
in force.

F. RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY

(36) As the review has resulted in a determination of dumping in respect of the company Ispat Industries
Ltd, the anti-dumping duty applicable to this company shall also be levied retroactively from the date
of initiation of this review on imports which have been made subject to registration pursuant to
Article 3 of Decision No 2113/2000/ECSC.

G. UNDERTAKING

(37)

The company, Ispat Industries Ltd, offered a price undertaking concerning its exports of the product
concerned to the Community,

in accordance with Article 8(1) of the basic Decision.

(38) After examination of the offer, the Commission considered the undertaking as acceptable since it
would eliminate the injurious effects of dumping pursuant to Article 8(1) of the basic Decision.
Moreover, the regular and detailed reports which the company undertook to provide to the
Commission will allow effective monitoring. Furthermore, the nature of the product and the sales
structure of the company is such that the Commission considers that the risk of circumvention is
limited.

(39)

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 to the customs service of the Member State concerned a valid
‘Commercial invoice’ issued by Ispat Industries Ltd and containing the information listed in the
Annex. 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 in order to
ensure the effective application of the undertaking.

(1) OJ C 201, 14.7.2000, p. 2.
(2) OJ L 231, 29.8.2001, p. 3.

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(40)

The information requested pursuant to the Annex has been updated. In order to ensure consistency
in the monitoring of undertakings this revised Annex should apply also to all the companies referred
to in Article 2(1) of Decision No 283/2000/ECSC.

(41)

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

H. REPEAL OF COMMISSION DECISION No 1357/2001/ECSC (1)

(42) Decision No 1357/2001/ECSC contained certain errors and should consequently be repealed and
replaced with effect from the date of its entry into force by the present Decision. Any anti-dumping
and countervailing duties collected in excess of the country-wide injury margin of 23,8 % for India
should therefore be reimbursed.

I. DISCLOSURE AND DURATION OF THE MEASURES

(43)

(44)

The companies were informed of the facts and considerations on the basis of which it was intended
to impose the amended definitive anti-dumping duty on their exports to the Community.

This review does not affect the date on which Decision No 283/2000/ECSC will expire pursuant to
Article 11(2) of the basic Decision,

HAS ADOPTED THIS DECISION:

Decision No 1357/2001/ECSC is hereby repealed.

Article 1

Article 2

Decision No 283/2000/ECSC is amended as follows:

1. In the table in Article 1(2) the section headed ‘India’

is replaced by the following:

Country

Company

Rate of anti-
dumping duty
(%)

TARIC
additional code

‘India

Essar Steel Ltd, 27th KM, Surat Hazira Road, Hazira
394 270, Dist: Surat, State: Gujarat

The Steel Authority of
Organisation, Transport & Shipping Department,
Bhawan 40, Jawaharlal Nehru Road, Calcutta 700 071

India Limited, Central Marketing
Ispat

Tata Iron & Steel Company Limited, 43 Chowringhee Road,
Calcutta 700 071

Ispat Industries Ltd, “Park Plaza”, 71 Park Street, Calcutta
700 016

Jindal Vijayanagar Steel Ltd, Jindal Mansion, 5-A. G. Desh-
mukh Marg, Mumbai 400 026

All other companies

1,5

11,5

0

14

18,1

10,7

A076

A077

A078

A204

A270

A999’

2. In the table in Article 2(1), the following row is inserted:

Company

Country

TARIC additional code

‘Ispat Industries Ltd, “Park Plaza”, 71 Park Street, Calcutta
700 016

India

A204’

(1) OJ L 182, 5.7.2001, p. 27.

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3. In Article 2(2), the reference to an ‘undertaking invoice’

is replaced by ‘Commercial Invoice’.

The Annex to Decision No 283/2000/ECSC is replaced by the Annex to this Decision.

Article 3

Article 4

Where a countervailing duty was collected pursuant to Decision No 284/2000/ECSC in addition to the
anti-dumping duty imposed by Decision No 283/2000/ECSC on either:

(a) goods produced by Ispat Industries Ltd, which were imported between 7 October 2000 and the date of

publication of this Decision, and

(b) goods produced by Jindal Vijayanagar Steel Ltd, which were imported between 6 July 2001 and the

date of publication of this Decision,

the amount of anti-dumping duty collected which exceeded the combined duty of 23,8 % shall be
reimbursed.

Decision No 1699/2001/ECSC, initiating a ‘new exporter’ review of Decision No 283/2000/ECSC in respect
of Jindal Vijayanagar Steel Ltd, continues to apply.

Article 5

This Decision shall enter into force on the day following its publication in the Official Journal of the

1.
European Communities.

2.

Article 2(2) shall apply from 6 July 2001.

Article 6

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

Done at Brussels, 21 May 2002.

For the Commission

Pascal LAMY

Member of the Commission

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ANNEX

Information necessary for commercial invoices accompanying sales made subject to the undertaking
(Article 2(2))

1. The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING’.

2. The name of the company issuing the commercial

invoice.

3. The commercial

invoice number.

4. The date of issue of the commercial

invoice.

5. The TARIC additional code under which the goods on the invoice are to be customs-cleared at the Community frontier

(as specified in the Decision).

6. The exact description of the goods,

including:

— the company product code number (CPC) (if applicable),
— the product code number (PCN) (as established in the undertaking offered by the producing exporter in question),
— the technical specification of the PCN,
— CN code,
— quantity (to be given in tonnes).

7. The description of the terms of the sale,

including:

— price per tonne,
— the applicable payment terms,
— the applicable delivery terms,
— total discounts and rebates.

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

9. The name of the official of the company that has issued the commercial 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 … (name of company), and
accepted by the European Commission through Decision No 841/2002/ECSC. I declare that the information provided
in this invoice is complete and correct.’