Commission Decision No 1043/2002/ECSC of 14 June 2002 amending both 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 Decision No 284/2000/ECSC imposing a definitive countervailing duty on the same products, and accepting an undertaking
Date: 2002-06-14
Institutions: European Commission
Subjects: India, anti-dumping duty, flat product, import, monetary compensatory amount, originating product

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Official Journal of the European Communities

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COMMISSION DECISION No 1043/2002/ECSC

of 14 June 2002

amending both 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
Decision No 284/2000/ECSC imposing a definitive countervailing duty on the same products, and
accepting an undertaking

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

according to Article 2 of the definitive countervailing
Decision.

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
Community (1), as last amended by Decision No 435/2001/
ECSC (2) (the basic Decision), and in particular Article 11(4)
thereof,

Having regard to Commission Decision No 1889/98/ECSC of 3
September 1998 on protection against subsidised imports from
countries not members of
the European Coal and Steel
Community (3) (the basic anti-subsidy Decision), and in partic-
ular Article 20 thereof,

After consulting the Advisory Committee,

Whereas:

A. PREVIOUS PROCEDURE

(1)

(2)

By Commission Decision No 283/2000/ECSC (4) (defin-
last amended by
itive anti-dumping Decision), as
Decision No 841/2002/ECSC (5),
the Commission
inter alia, a definitive anti-dumping duty of
imposed,
10,7 % on imports of hot-rolled coils
(product
concerned) originating in India, with the exception of
imports
specifically
mentioned, which are either subject to a lesser rate of
duty or to no duty at all which are exempted from the
anti-dumping duty since the Commission accepted price
undertakings from these companies according to Article
2 of the definitive Decision.

Indian companies

from several

By Decision No 284/2000/ECSC (6) (the definitive coun-
tervailing Decision), the Commission imposed, inter alia,
a definitive countervailing duty of 13,1 % on imports of
hot-rolled coils (product concerned) originating in India,
with the exception of
Indian
companies specifically mentioned, which are exempted
from the countervailing duty since the Commission
from these companies
accepted price undertakings

imports from several

(1) OJ L 308, 29.11.1996, p. 11.
(2) OJ L 63, 3.3.2001, p. 14.
(3) OJ L 245, 4.9.1998, p. 3.
(4) OJ L 31, 5.2.2000, p. 15.
(5) OJ L 134, 22.5.2002, p. 11.
(6) OJ L 31, 5.2.2000, p. 44.

(3)

(4)

(5)

(6)

(7)

By Commission Decision No 842/2002/ECSC (7)
the
Commission imposed definitive countervailing duties on
two further Indian exporting producers not covered in
the original
including Jindal Vijayanagar
Steel Limited (the company).

investigation,

B. CURRENT PROCEDURE

The company submitted an application to initiate a ‘new
exporter’ review of the definitive anti-dumping Decision,
pursuant to Article 11(4) of the basic Decision. The
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.
it claimed that it had not exported the
Furthermore,
product concerned during the original period of invest-
igation (1 January 1998 to 31 December 1998), but had
exported the product concerned to the Community since
then.

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

The Commission examined the evidence submitted by
the company and considered it sufficient to justify the
initiation of a new exporter 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
Commission Decision No 1699/2001/ECSC (8), a review
of the definitive Decision pursuant to Article 11(4) of
the basic Decision with regard to the company and
commenced its investigation.

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.

(7) OJ L 134, 22.5.2002, p. 18.
(8) OJ L 231, 29.8.2001, p. 3.

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(8)

(9)

(10)

(11)

(12)

The Commission officially informed the company and
the representatives of
India (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.

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

The investigation of dumping covered the period from 1
November 1999 to 30 June 2001 (the investigation
period). The length of
the investigation period was
necessary in order to cover a sufficiently representative
volume of exports of the product concerned to the
Community by the company.

C. RESULTS OF THE INVESTIGATION

1. New exporter qualification

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.

Furthermore,
the company was able to satisfactorily
demonstrate that it did not have any links, direct or
indirect, with any of the Indian exporting producers
to the anti-dumping measures in force with
subject
regard to the product concerned.

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

2. Dumping

Normal value

In accordance with Article 2(2) of the basic Decision, the
Commission first examined, whether
the company's
total domestic sales of hot-rolled coils were repres-
entative in comparison with its total export sales to the
Community. Since these sales amounted to more than
5 % of its total export sales volume to the Community,
they were considered representative.

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
the product
that

and dimensions of

the grades

(14)

(15)

concerned exported into the Community by the
company are identical or comparable to the products
sold on the domestic market.

(16)

For the single type sold for export to the Community by
the exporting producer and found to be directly compar-
able to the type sold on its domestic market, it was then
examined whether domestic sales were sufficiently
representative with respect to the corresponding export
sales. Since the domestic sales were significantly above
the 5 % threshold, they were considered representative.

(17) An examination was also made as to whether the
domestic sales could be regarded as having been made in
the ordinary course of trade, by establishing the propor-
tion of the sales volume of the product concerned sold
at a net sales price equal to or above the calculated cost
of
independent
customers of the type in question. Since 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.

production

(profitable

sales)

to

Export price

(18) According to Article 2(8) and (9) of the basic Decision,
the export price is the price actually paid or payable for
the product in question when sold for export from the
exporting Country to the Community, unless the export
price so established is found to be unreliable as it is not
paid by an independent buyer. Since the export sales to
the Community were found to be made to independent
customers in the Community,
the export price was
established on the basis of export prices actually paid or
payable.

Comparison

(19)

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.

(20) All the allowances claimed by the company on export
sales have been accepted. These allowances relate to
inland freight, terminal handling and similar charges,
ocean freight, bank charges and credit costs. On
domestic sales,
the company claimed allowances for
rebates and sales discounts and credit costs, which were
also accepted.

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Dumping margin

(21)

In accordance with Article 2(10) and (11) of the basic
Decision, the dumping margin was established on the
basis of a comparison between the weighted average
normal value per product type level and the weighted
average export price at ex-factory level for the same
product type and at the same level of trade.

(22)

The dumping margin established for
the company,
expressed as a percentage of the free-at-Community-
frontier price, amounts to 30,0 %.

countries not members of the European Coal and Steel
Community (the basic anti-subsidy Decision) 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 are to be imposed on imports of
is necessary to determine
the product concerned it
whether, and to what extent,
the subsidy and the
dumping margin arise from the same situation.

D. AMENDMENT OF THE MEASURES BEING REVIEWED

(26)

(23)

it is considered that a
In the light of the foregoing,
In
definitive anti-dumping duty should be imposed.
accordance with Article 9(4) of the basic Decision this
should not be higher than the injury margin, in case the
injury margin is lower than the actual dumping margin
found.

(24) No individual injury margin can be established in a new
to
exporter review since the investigation, pursuant
is limited to the
Article 11(4) of the basic Decision,
examination of the individual dumping margin. There-
fore the dumping margin established was compared to
the country-wide injury margin (as established for India
by the definitive Decision). Since the latter was lower
than the dumping margin, the level of the measures
should be based on the injury margin.

(25)

By Decision No 842/2002/ECSC a definitive counter-
vailing duty of 5,7 % was imposed on the company's
exports of the product concerned to the Community. In
accordance with Article 24(1) of Decision No 1889/98/
ECSC on protection against subsidised imports from

the export prices of

In the case of Decision No 842/2002/ECSC, the subsidy
schemes investigated in India have been found to consti-
tute export subsidies within the meaning of Article
3(4)(a) of the basic anti-subsidy Decision. As such, the
subsidies can affect
the Indian
exporting producer, thus leading to increased margins of
dumping. In other words, the dumping margin estab-
lished can be wholly or partly due to the existence of
export subsidies. In these circumstances it is not consid-
ered appropriate to impose both countervailing and anti-
dumping duties to the full extent of the relevant subsidy
and dumping margins established. Therefore the anti-
dumping duty needs to be adjusted to reflect the actual
dumping margin remaining after the imposition of the
countervailing duties offsetting the effect of the export
subsidies.

(27) Accordingly, the rate of duty applicable to the free-at-
Community-frontier price, before duty and taking into
account
anti-subsidy
the
proceeding, shall be:

the parallel

results of

Company

Dumping margin
(%)

Injury margin
(%)

Export subsidy
margin
(%)

Countervailing duty
(%)

AD duty to be
imposed
(%)

Jindal Vijayanagar
Steel Limited

30,0

23,8

5,7

5,7

18,1

(28)

The individual company anti-dumping duty rate specified in this Decision was established on the
basis of the findings of the present investigation. Therefore, it reflects the situation found during that
investigation with respect to this company. This duty rate (as opposed to the country-wide duty
applicable to ‘all other companies’) is thus exclusively applicable to imports of products originating
in the country concerned and produced by the company and thus by the specific legal entity
mentioned. Imported products produced by any other company not specifically mentioned in the
operative part of this Decision with its name and address, including entities related to the one
specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate
applicable to ‘all other companies’.

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(29) Any claim requesting the application of this individual company anti-dumping duty rate (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, for example, that name change or that change in the production and sales
entities. The Commission, if appropriate, will, after consultation of the Advisory Committee, amend
the Decision accordingly by updating the list of companies benefiting from individual duty rates.

E. RETROACTIVE LEVYING OF THE ANTI-DUMPING DUTY

(30)

In accordance with Article 11(4) of the basic Decision, as the review has resulted in a determination
of dumping in respect of the company, the anti-dumping duty applicable to this company shall 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 1699/2001/ECSC.

F. UNDERTAKING

(31)

The company, Jindal Vijayanagar Steel Limited, offered a price undertaking, regarding its exports of
the product concerned, to the Community, in accordance with Article 8(1) of the basic Decision and
Article 13(1) of the basic anti-subsidy Decision

(32) After examination of the offer, the Commission considered the undertaking as acceptable since it
would eliminate the injurious effects of dumping and subsidisation. Moreover, the regular and
detailed reports which the company undertook to provide to the Commission will allow effective
monitoring of the undertaking, and 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.

(33)

(34)

It should be recalled that the company had already been the object of a review of the definitive
countervailing duties but, at that time, did not offer a price undertaking. Since the offer for an
undertaking covers both the anti-dumping measures and the countervailing measures, the Commis-
sion accepts the undertaking for both proceedings.

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 duties is
conditional upon presentation to the customs service of the Member State concerned a valid
‘Commercial Invoice’ issued by Jindal Vijayanagar Steel Limited and containing the information listed
in the Annex to Decision No 283/2000/ECSC. Where no such invoice is presented, or when it does
not correspond to the product presented to customs, the appropriate rates of anti-dumping and
countervailing duties should be payable in order to ensure the effective application of the under-
taking.

G. DISCLOSURE AND DURATION OF THE MEASURES

(35)

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

(36)

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,

(1) European Commission

Directorate-General Trade
Directorate B
J-79 5/16
Rue de la Loi/Wetstraat 200
B-1049 Brussels.

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HAS ADOPTED THIS DECISION:

Article 1

1.

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

— In the section headed ‘India’ of the table in Article 1(2), the following row is inserted:

Country

Company

‘India

Jindal Vijayanagar Steel Ltd, Jindal
Mansion, 5 — A. G. Deshmukh Marg,
Mumbai — 400 026

Rate of AD duty
(%)

TARIC additional code

18,1

A270’

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

Company

‘Jindal Vijayanagar Steel Ltd, Jindal
Mansion, 5 — A. G. Deshmukh Marg,
Mumbai — 400 026

Country

India

TARIC additional code

A270’

The duty imposed shall be levied retroactively on imports of the product concerned which have been

2.
registered pursuant to Article 3 of Commission Decision No 1699/2001/ECSC.

Article 2(1) of Commission Decision No 284/2000/ECSC is hereby amended by inserting the following row
in the table:

Article 2

Company

‘Jindal Vijayanagar Steel Ltd, Jindal
Mansion, 5 — A. G. Deshmukh Marg,
Mumbai — 400 026

Country

India

TARIC additional code

A270’

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

Article 3

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

Done at Brussels, 14 June 2002.

For the Commission

Pascal LAMY

Member of the Commission