Council Regulation (EC) No 1646/2005 of 6 October 2005 amending Regulation (EC) No 2604/2000 imposing definitive anti-dumping duties on imports of certain polyethylene terephthalate (PET) originating, inter alia, in India
Date: 2005-10-06
Institutions: Council of the European Union
Subjects: India, anti-dumping duty, anti-dumping legislation, import, originating product, plastics

L 266/10

EN

Official Journal of the European Union

11.10.2005

COUNCIL REGULATION (EC) No 1646/2005

of 6 October 2005

amending Regulation (EC) No 2604/2000 imposing definitive anti-dumping duties on imports of
certain polyethylene terephthalate (PET) originating, inter alia, in India

THE COUNCIL OF THE EUROPEAN UNION,

B. CURRENT PROCEDURE

Having regard to the Treaty
Community,

establishing the European

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)
(the
basic Regulation), and in particular Article 11(4) thereof,

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

Whereas:

A. MEASURES IN FORCE

(1)

(2)

The Council, by Regulation (EC) No 2604/2000 (2),
imposed a definitive anti-dumping duty on imports of
certain polyethylene terephthalate (PET) with a coefficient
of viscosity of 78 ml/g or higher, according to DIN
product
(Deutsche
CN code
concerned)
3907 60 20 originating,
in India. The
take the form of a specific duty rate of
measures
imports
EUR 181,7 per tonne with the exception of
from several companies expressly mentioned which are
subject to individual duty rates.

53728
declared within

Industrienorm)
normally

inter

alia,

(the

The Council, by Regulation (EC) No 2603/2000 (3),
the same time a definitive countervailing
imposed at
duty of EUR 41,3 per
into the
Community of the same product originating in India,
with the exception of imports from several companies
expressly mentioned which are subject to individual duty
rates.

tonne on imports

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

(EC) No 461/2004 (OJ L 77, 13.3.2004, p. 12).

(2) OJ L 301, 30.11.2000, p. 21. Regulation as last amended by Regu-

lation (EC) No 83/2005 (OJ L 19, 21.1.2005, p. 1).

(3) OJ L 301, 30.11.2000, p. 1. Regulation as amended by Regulation

(EC) No 822/2004 (OJ L 127, 29.4.2004, p. 3).

(3)

(4)

(5)

(6)

1. Request for a review

Subsequent to the imposition of definitive measures, the
Commission received an application to initiate a ‘new
exporter’
review of Regulation (EC) No 2604/2000,
pursuant to Article 11(4) of the basic Regulation, from
an Indian exporting producer, i.e. South Asian Petrochem
Limited (the company). The company claimed that it was
not related to any of the exporting producers in India
to the anti-dumping measures in force with
subject
it
concerned.
regard to the product
claimed that it had not exported the product concerned
during the original period of investigation (1 October
1998 to 30 September 1999), but had exported the
product concerned to the Community after that period.

Furthermore,

2. Initiation of a ‘new exporter’ review

The Commission examined the evidence submitted by
the company and considered it sufficient to justify the
initiation of a review in accordance with Article 11(4) of
the
the basic Regulation. After
Advisory Committee and after the Community industry
concerned had been given the opportunity to com-
the Commission initiated, by Regulation (EC)
ment,
No
(EC)
company and
No 2604/2000 with regard to the
commenced its investigation.

the consultation of

33/2005 (4),

review of

Regulation

a

imposed

to Regulation (EC) No 33/2005,
by Regulation
duty

the anti-
Pursuant
dumping
(EC) No
2604/2000 was repealed with regard to imports of the
concerned produced and exported to the
product
Community by the company. Simultaneously, customs
authorities were directed, pursuant to Article 14(5) of
the basic Regulation,
to
register such imports.

to take appropriate steps

At the same time and on the same grounds, following a
request from the company, the Commission initiated an
accelerated review of Regulation (EC) No 2603/2000
pursuant to Article 20 of Council Regulation (EC) No
2026/97 of 6 October 1997 on protection against
subsidised imports from countries not members of the
European Community (5).

(4) OJ L 8, 12.1.2005, p. 9.
(5) OJ L 288, 21.10.1997, p. 1. Regulation as last amended by Regu-

lation (EC) No 461/2004.

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Official Journal of the European Union

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(7)

(8)

3. Parties concerned

The Commission officially informed the company and
representatives of India (the exporting country) of the
initiation of the ‘new exporter’ review. 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.

a

received

reply within the

The Commission sent a questionnaire to the company
and
deadline. The
Commission also sought and verified all the information
deemed necessary for the determination of dumping. A
verification visit was carried out at the premises of the
company.

4. Investigation period

(9)

The investigation of dumping covered the period from 1
October 2003 to 30 September 2004 (the investigation
period).

(10)

(11)

C. RESULT 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.

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.

or directly comparable to the types sold for export to the
Community.

(15)

The investigation revealed that only two product types
exported to the Community are identical or directly
sold on the domestic
comparable to the products
market. For each of
types it was
then examined whether domestic sales were sufficiently
representative with respect to the corresponding export
sales. Since the domestic sales of each of these types were
significantly above the 5 % threshold, both product types
were considered representative.

these two product

(16) An examination was also made as

to whether

the
domestic sales of each product type could be regarded
as having been made in the ordinary course of trade, by
establishing the proportion of the sales volume of the
like product sold at a net sales price equal to or above
the cost of production (profitable sales) to 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 of
each type only.

Export price

(17) Since all export sales of the product concerned to the
Community were made
independent
customers in the Community, the export price was estab-
lished in accordance with Article 2(8) of the basic Regu-
lation, namely on the basis of export prices actually paid
or payable.

directly

to

Comparison

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

(18)

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 Regulation.

2. Dumping

Normal value

(13)

In accordance with Article 2(2) of the basic Regulation,
the Commission first examined whether the company’s
total domestic sales of PET were representative in
comparison with
the
total
Community. Since these sales amounted to more than
5 % of its total export sales volume to the Community,
they were considered representative.

export

sales

its

to

(14)

The Commission subsequently identified those types of
PET sold domestically by the company that were identical

(19) All the allowances claimed by the company on export
sales have been accepted. These allowances are related to
commissions,
insurance,
handling charges, packaging expenses and bank charges.

inland freight, ocean freight,

(20) On domestic sales, allowances claimed for commissions,
inland freight,
insurance, packaging expenses and bank
charges were accepted. However, allowances claimed by
the company for indirect tax and import charges on the
basis of Article 2(10)(b) of
the basic Regulation and
branch office expenses on the basis of Article 2(10)(k)
of the basic Regulation were rejected for the reasons set
out below.

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(21)

The claimed allowance for indirect taxes is based on the
argument that the company’s domestic customers paid a
non-recoverable amount of excise duty when purchasing
the product concerned on the domestic market, whereas
the company’s export customers were not subject to such
duty. This non-recoverable excise duty amount was
claimed as an adjustment
to normal value. However,
the normal value which was compared to the export
price was established on the basis of the net domestic
sales price excluding all taxes. Therefore, normal value
did not include any excise duty having an impact on
price and price comparability within the meaning of
Article 2(10) of
it
was considered that the tax liability of the exporting
producer’s domestic customers does not qualify for an
adjustment under Article 2(10)(b) of the basic Regulation
since such duty is not ‘borne by the like product and by
materials physically incorporated therein’. The excise duty
paid by the company’s domestic customers is charged
upon the company’s net sales price and does not have
any impact on the company’s production cost and price
setting. As any difference in indirect duties on the
domestic and the export market has already been taken
fully into consideration by comparing the company’s net
domestic sales prices with its net export sales prices, the
company’s claim for allowance was rejected.

the basic Regulation. Furthermore,

(24)

it

insofar

comparability,

indirect taxes.

affected price

(22) Upon disclosure, the company argued that it would be
irrelevant whether the comparison between normal value
and export price was made on the basis of net prices, i.e.
excluding all
It further argued that the
excise duty would be borne by the like product and
that
that
domestic clients would not be fully reimbursed and
had ultimately to pay a portion of
the excise duty.
Therefore,
its clients would pay a higher price on the
domestic market than customers on the export market.
However, as mentioned above, the domestic price used as
a normal value already excluded the excise duty and
therefore, price comparability could not have been
affected. Furthermore, the company did not submit any
information or evidence showing that the comparability
of the normal value and the export price was otherwise
affected. These
arguments had consequently to be
rejected.

case goods produced by these companies were sold on
the domestic market. Since no such excise duty is
payable on export sales,
the company requested the
normal value to be adjusted accordingly. The claim was
rejected as the company purchased raw materials duty
free, regardless of whether the final product
is sold
domestically or is being exported. Therefore, no import
duties were borne by the like product and by materials
incorporated therein when intended for
physically
and not
domestic market,
consumption on the
collected or
the product
exported to the Community as
required by Article
2(10)(b) of the basic Regulation. Thus, price compar-
ability between the domestic and export market was
the company was
not affected.
unable to prove the payment of any additional duty or
indirect tax other than the excise duty on sales of the
finished product which has been described in recital (21).
It was finally not possible in any event to clearly identify
whether and how much of
the imported or locally
purchased raw material was used in the production of
the final product.

refunded in respect of

is also noted that

It

rejected as

The company also claimed an allowance for the expenses
of their local branch offices in charge of sales on the
domestic market. The claim was
these
branch office expenses also included selling, general
and administrative expenses for the sales of products
other than the product concerned and could furthermore
the product
not be directly linked to the sales of
concerned on the domestic market. The company conse-
quently did not show whether the expenses of the branch
offices had an impact on price or price comparability.
Upon disclosure the company argued that it is producing
the product concerned.
only one product which is
However, this contradicted the findings. Moreover and
in accordance with Article 2(1) of the basic Regulation,
what is relevant for the purpose of determining normal
value is the sales price from the branch offices to the first
independent customer. As the branch offices are part of
the
the
company’s arguments were rejected and the claim for
this allowance not warranted.

entity and company structure,

same legal

(23)

The claimed allowance for import duty exemption was
based on the argument that whenever the company sells
the product concerned on the domestic market, import
duties on raw materials would become payable in the
form of an ‘increased’ excise duty. The term ‘increased’
excise duty refers to a different tax scheme applicable for
the company as it is set up as an Export Oriented Unit
(EOU), compared to other Indian (non-Export Oriented
Unit) companies. Under this scheme, EOU companies
were
duties on raw
materials, but subject to a higher excise duty rate in

from all

exempted

import

Dumping margin

(25)

In accordance with Article 2(11) of the basic Regulation,
the weighted average normal value of each type of the
product concerned exported to the Community was
compared to the weighted average export price of each
corresponding type of the product concerned.

(26)

The comparison showed the existence of dumping. The
weighted average dumping margin established for the
company,
the CIF
a percentage of
Community-frontier price amounts to 25,5 %.

expressed as

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D. AMENDMENT OF THE MEASURES BEING REVIEWED

(27)

the results of

the investigation,

In the light of
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 Regu-
lation, should not be higher than the countrywide injury
margin established for India in the investigation which
lead to the imposition of the existing measures.

it

review since the investigation, pursuant

(28) No individual injury margin can be established in a new
exporter
to
Article 11(4) of the basic Regulation,
is limited to the
dumping margin.
examination
Therefore, the dumping margin was compared to the
countrywide injury margin as established for India by
the definitive Regulation. Since the latter was higher
than the dumping margin,
the measures
the level of
should be based on the dumping margin.

individual

the

of

shall be subject

to both anti-dumping and
product
countervailing duties for the purpose of dealing with
one and the same situation arising from dumping or
from export subsidisation.

(30)

In the parallel accelerated review of Regulation (EC) No
2603/2000, an individual countervailing duty rate of
EUR 106,5 per tonne corresponding to an ad valorem
countervailing duty rate of 13,9 % was established for
the company.

(31) As all of the subsidies in the parallel accelerated review
were found to be export subsidies, the anti-dumping duty
needs to be adjusted to reflect
the actual dumping
margin remaining after the imposition of the counter-
vailing duties offsetting the effect of these subsidies.

(29)

In accordance with Article 14(1) of the basic Regulation
and Article 24(1) of Regulation (EC) No 2026/97, no

(32) Accordingly, the anti-dumping duty applicable to the CIF
Community-frontier price and taking into account the
results of the parallel anti-subsidy proceeding, shall be:

Company

Injury Margin

Dumping
Margin

Countervailing
duty rate

Anti-dumping
duty rate

Proposed anti-
dumping duty
(EUR/tonne)

South Asian Petrochem
Limited

44,3 %

25,5 %

13,9 %

11,6 %

88,9

E. RETROACTIVE LEVYING OF THE ANTI-DUMPING
DUTY

(36)

(33) As

the review has

resulted in a determination of
dumping in respect of the company, the anti-dumping
duty applicable to the company should be levied retro-
actively on imports of the product concerned which have
been made subject to registration pursuant to Article 3 of
Regulation (EC) No 33/2005.

F. UNDERTAKING

(34)

The company offered a price undertaking concerning its
exports of the product concerned to the Community, in
accordance with Article 8(1) of the basic Regulation.

(35) After

the offer,

examination of

the Commission
considered the undertaking as acceptable since it would
eliminate the injurious effects of dumping. Moreover, the
company
and detailed reports which the
regular
undertook to provide to the Commission will allow
effective monitoring. Furthermore,
the
product and the sales structure of the company is such
that the Commission considers that the risk of circum-
vention of the undertaking is limited.

the nature of

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 presen-
the Members State
tation to the customs service of
Invoice’
concerned, of a valid ‘Commercial
issued by
the company and containing information listed in the
Annex to Regulation (EC) No 2604/2000. Where no
is presented, or when it does not
such invoice
the
correspond to the product presented to customs,
appropriate
should be
payable in order to ensure the effective application of
the undertaking.

anti-dumping duty

rate of

(37)

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

G. DISCLOSURE AND DURATION OF THE MEASURES

(38)

The company was informed of the facts and consid-
erations on the basis of which it was intended to
impose a definitive anti-dumping duty on its imports
into the Community and was given the opportunity to
comment.

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(39)

This review does not affect the date on which Regulation
(EC) No 2604/2000 will expire pursuant to Article 11(2)
of the basic Regulation,

Notwithstanding paragraph 1, the definitive anti-dumping
3.
duty shall not apply to imports released for free circulation in
accordance with Article 2.

HAS ADOPTED THIS REGULATION:

Article 1

Unless otherwise

4.
concerning customs duties shall apply.

specified,

the provisions

in force

In Article 1(3) of Regulation (EC) No 2604/2000, the
1.
following shall be inserted into the table under producers in
India:

Article 2

In Article 2(3) of Regulation (EC) No 2604/2000, the following
shall be inserted into the table under producers in India:

Country

Company

‘India

South Asian
Petrochem
Limited

Definitive duty
(EUR/t)

TARIC
additional code

88,9

A585’

Company

Country

TARIC additional code

‘South Asian
Petrochem Limited

India

A585’

The duty hereby imposed shall also be levied retroactively
2.
on imports of
the product concerned which have been
registered pursuant to Article 3 of Regulation (EC) No 33/2005.

Article 3

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

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

Done at Luxembourg, 6 October 2005.

For the Council
The President

A. DARLING