Council Regulation (EC) No 123/2006 of  23 January 2006  amending Regulation (EC) No 1338/2002 imposing a definitive countervailing duty on imports of sulphanilic acid originating in India and amending Regulation (EC) No 1339/2002 imposing a definitive anti-dumping duty on imports of sulphanilic acid originating,  inter alia , in India
Date: 2006-01-23
Institutions: Council of the European Union
Subjects: India, anti-dumping duty, chemical product, countervailing charge, import, originating product

26.1.2006

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Official Journal of the European Union

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COUNCIL REGULATION (EC) No 123/2006

of 23 January 2006

amending Regulation (EC) No 1338/2002 imposing a definitive countervailing duty on imports of
sulphanilic acid originating in India and amending Regulation (EC) No 1339/2002 imposing a
definitive anti-dumping duty on imports of sulphanilic acid originating, inter alia, in India

THE COUNCIL OF THE EUROPEAN UNION,

price undertaking offered by the Indian company,
i.e.
Kokan Synthetics & Chemicals Pvt Ltd. (‘the company’).

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
(‘the
countries not members of the European Community (1)
basic anti-dumping Regulation’), and in particular Articles 8
and 11(3) thereof,

Having regard to Council Regulation (EC) No 2026/97 of 6
October 1997 on protection against subsidised imports from
(‘the
countries not members of the European Community (2)
basic anti-subsidy Regulation’), and in particular Articles 13
and 19 thereof,

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

Whereas:

A. PROCEDURE

1. Previous investigations and existing measures

(1)

the Council, by Regulation (EC) No
In July 2002,
1338/2002 (3)
imposed definitive countervailing duties
on imports of sulphanilic acid originating in India. On
the Council, by Regulation (EC) No
the same day,
1339/2002 (4),
imposed definitive anti-dumping duties
on imports of
acid originating in the
People’s Republic of China and India (‘the measures’).

sulphanilic

(3)

(4)

(5)

(6)

(7)

In June 2003,
the Commission initiated an anti-
absorption reinvestigation pursuant to Article 12 of the
basic anti-dumping Regulation, concerning imports of
sulphanilic acid originating in the People’s Republic of
China (‘PRC’) (6).

the

company

In December 2003,
the
Commission that it wished to withdraw its undertaking
voluntarily. Accordingly,
the Commission Decision
accepting the undertaking was repealed by Decision
2004/255/EC (7).

informed

an anti-absorption investigation
In February 2004,
concerning imports of the sulphanilic acid originating
in the PRC was concluded by Council Regulation (EC)
No 236/2004 (8), which increased the rate of the defi-
nitive anti-dumping duty for the PRC from 21 % to
33,7 % (‘the anti-absorption investigation’).

2. Request for an interim review

the

after

conclusion of

In December 2004,
anti-
absorption investigation, the company lodged a request
for a partial interim review pursuant to Article 11(3) of
the basic anti-dumping Regulation and Article 19 of the
limited in
basic anti-subsidy Regulation respectively,
scope to the examination of
the
reinstatement of its undertaking.

the acceptability of

The company argued that its original wish to withdraw
the undertaking followed from the fact that after impo-
sition of measures in 2002, Chinese exporters absorbed
the anti-dumping duties imposed, which resulted in a
price depression and made the undertaking unworkable.
The company also referred to the fact that as a result of
the conclusion of the absorption review, the duty level
on imports from the PRC was increased, which had
allowed market prices to rise. Therefore, the company
informed the Commission that it was prepared to offer
terms and
its undertaking again under
conditions, which were
to
eliminate the relevant injurious effects of dumping and
subsidisation.

considered appropriate

the former

(2) Within the

the
Commission, by Decision 2002/611/EC (5) accepted a

these proceedings,

framework of

(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 288, 21.10.1997, p. 1. Regulation as last amended by Regu-

lation (EC) No 461/2004.

(3) OJ L 196, 25.7.2002, p. 1. Regulation as last amended by Regu-

lation (EC) No 492/2004 (OJ L 80, 18.3.2004, p. 6).

(4) OJ L 196, 25.7.2002, p. 11. Regulation as last amended by Regu-

lation (EC) No 492/2004.
(5) OJ L 196, 25.7.2002, p. 36.

(6) OJ C 149, 26.6.2003, p. 14.
(7) OJ L 80, 18.3.2004, p. 29.
(8) OJ L 40, 12.2.2004, p. 17.

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Official Journal of the European Union

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(8)

(9)

The company provided sufficient prima facie evidence
that No structural
changes had occurred in the
company since the previous findings that may have an
impact on the acceptability and enforceability of an
undertaking.

(15)

In April 2005, pursuant to a notice published in the
Official Journal of the European Union (1), the Commission
initiated a partial interim review of the anti-dumping and
countervailing measures
to imports of
sulphanilic acid originating in India, limited in scope to
the examination of the acceptability of an undertaking to
be offered by the company.

applicable

3. Procedure

(10)

The Commission officially advised the representatives of
the exporting country, the applicant and the Community
industry of the initiation of the partial interim review and
gave all parties directly concerned the opportunity to
make their views known in writing and to request a
hearing.

(16)

(11)

The company re-offered formally its original undertaking.

(12)

The Commission sought and verified all the information
it deemed necessary for the purpose of examining the re-
acceptability of this undertaking.

B. FINDINGS OF THE INVESTIGATION

(13)

The investigation has shown that No structural changes
occurred in the company since the original investigation
that may have a negative impact on the acceptability and
workability of an undertaking. Furthermore, experience
gained during the application of the original undertaking
has shown that the company respected the terms of the
undertaking and that the undertaking could effectively be
monitored by the Commission.

(14) Nonetheless,

it

that

should

be noted

significant
differences were observed in the price of key ingredients
in the production of sulphanilic acid since the original
investigation, in particular aniline, and its key feedstock,
benzene. In view of the above, the applicant agreed to
index the minimum price originally offered in order to
address the cyclical nature of sulphanilic acid prices in a
way which reasonably eliminates the risk of injurious
dumping. In view of the fact that a publicly available
and independent database providing reliable international
price data exists for benzene but not for aniline and
given further the strong correlation between the price
of benzene and the price of aniline, the indexation was
based on the price of benzene.

the applicant
The Community industry argued that
the
should not be allowed to choose the form of
measures and in particular
to respect a minimum
import price only when the prevailing market prices
Indeed, a company should not be
suit the company.
allowed to have the form of
the measures changed
based on the evolution of the market. However, due
account should be taken of the exceptional circumstances
of the case. In this regard, it should be noted that the
anti-absorption investigation revealed that the decrease in
the time the company voluntarily
market prices at
withdrew its
the
undertaking was prompted
absorption of
the anti-dumping duty on imports of
sulphanilic acid originating in the PRC. Therefore, and
the changed circumstances resulting from
in view of
the outcome of
the
the anti-absorption investigation,
company’s wish to reinstall its undertaking is considered
appropriate.

by

the company’s dumping margin.

The Community industry further claimed that the under-
taking offer should be accepted only following a full
interim review, since the market evolution which might
justify a new undertaking might justify as well a review
of
it
should be noted that the current investigation is limited
in scope to the examination of acceptability of an under-
taking to be offered by the company and that No request
for an interim review with a different scope has been
received. Therefore, the claim had to be rejected.

In this regard,

(17) A user requested that the anti-dumping duty be lowered
or, alternatively that the limited availability of purified
sulphanilic acid on the Community market be dealt
with by introducing a system of quotas. Here again, in
view of the limited scope of the current investigation, the
claim had to be rejected.

C. UNDERTAKING

(18)

In view of the above, the undertaking was accepted by
the Commission in Decision 2006/37/EC (*).

(19)

invoice containing at

Further to enable the Commission effectively to monitor
compliance by the company with the undertaking, when
the request for release for free circulation is presented to
the relevant customs authority, exemption from the
duties will be conditional upon the presentation of a
commercial
the elements
listed in the Annex. This level of information is also
necessary to enable customs authorities
to ascertain
with sufficient precision that shipments correspond to
the commercial documents. Where no such invoice is
presented, or when it does not correspond to the
product presented to customs, the appropriate rate of
anti-dumping and countervailing duty will
instead be
payable.

least

(1) OJ C 101, 27.4.2005, p. 34.

(*) See page 52 of this Official Journal.

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(20)

(21)

(22)

it

transactions. Therefore,

Further to ensure the effective respect of the undertaking,
importers should be made aware that any violation of the
undertaking may lead to the retrospective application of
the
the
anti-dumping and countervailing duty for
is necessary to
relevant
implement legal provisions providing for the incurrence
of a customs debt at the level of the appropriate anti-
dumping and countervailing duty whenever one or more
conditions
respected. A
the exemption are not
customs debt should therefore be incurred whenever
the declarant has chosen to release the goods for free
circulation,
i.e. without collection of anti-dumping and
countervailing duty, and one or several conditions of that
undertaking are found to have been violated.

for

recovered, provided that

In the event of a breach, the anti-dumping and counter-
vailing duty may be
the
Commission has withdrawn the acceptance of the under-
taking in accordance with Article 8(9) of the basic anti-
dumping Regulation or Article 13(9) of the basic anti-
subsidy Regulation, by referring to that particular trans-
action and, accordingly, by declaring the relevant under-
taking invoice as invalid. Therefore, pursuant to Article
14(7) of the basic anti-dumping Regulation and Article
24(7) of
the basic anti-subsidy Regulation, customs
authorities should inform the Commission immediately
whenever indications of a violation of the undertaking
are found.

It should be noted that in the event of a breach or
withdrawal of the undertaking, or in case of withdrawal
of acceptance of the undertaking by the Commission, the
anti-dumping
imposed in
and countervailing duty
accordance with Article 9(4) of the basic anti-dumping
Regulation and Article 15(1) of the basic anti-subsidy
Regulation shall automatically apply pursuant to Article
8(9) of the former Regulation and Article 13(9) of the
latter Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

1.
The following paragraph shall be inserted in Article 1 of
both Regulation (EC) No 1338/2002 and Regulation (EC) No
1339/2002:

Notwithstanding paragraph 1, the definitive duty shall
circulation in
released for

free

‘3.
not apply to imports
accordance with Article 2.’.

The following Article shall be inserted in Regulation (EC)

2.
No 1338/2002:

‘Article 2

1.
Imports declared for release into free circulation which
are invoiced by companies from which undertakings are
accepted by the Commission and whose names are listed in
Commission Decision 2006/37/EC (*), as from time to time
amended, shall be exempt from the duties imposed by Article
1, on condition that:

— they are manufactured, shipped and invoiced directly by
the said companies to the first independent customer in
the Community, and

— such imports are accompanied by a valid undertaking
invoice. An undertaking invoice is a commercial invoice
the elements and the declaration
containing at
stipulated in the Annex, and

least

— the goods declared and presented to customs correspond
precisely to the description on the undertaking invoice.

A customs debt shall be incurred at

the time of
2.
acceptance of the declaration for release into free circulation
whenever it is established, in respect of goods described in
Article 1 and exempted from the duties under the conditions
listed in paragraph 1, that one or more of such conditions is
not fulfilled. The condition set out in the second indent of
paragraph 1 shall be considered as not being fulfilled where
the undertaking invoice is found not to comply with the
provisions of the Annex or found not to be authentic or
where the Commission has withdrawn the acceptance of
the undertaking pursuant to Article 8(9) of Council Regu-
lation (EC) No 384/96 of 22 December 1995 on protection
against dumped imports from countries not members of the
European Community (**) or Article 13(9) of the basic Regu-
to (a)
lation in a Regulation or Decision which refers
particular transaction(s) and declares the relevant undertaking
invoice(s) as invalid.

3.
Importers shall accept as a normal trade risk, the fact
that the non-fulfilment, by any party, of one or more of the
conditions listed in paragraph 1 and further defined in
paragraph 2 may give rise to a customs debt
incurred
under Article 201 of Council Regulation (EEC) No 2913/92
of 12 October 1992 establishing the Common Customs
Code (***). The customs debt
incurred shall be recovered
upon withdrawal by the Commission of the acceptance of
the undertaking.

___________

(*) See page 52 of this Official Journal.
(**) 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).

(***) OJ L 302, 19.10.1992, p. 1. Regulation as last amended
the European
(OJ L 117, 4.5.2005,

by Regulation (EC) No 648/2005 of
Parliament and the Council
p. 13).’

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The following Article shall be inserted in Regulation (EC)

3.
No 1339/2002:

‘Article 2

1.
Imports declared for release into free circulation which
are invoiced by companies from which undertakings are
accepted by the Commission and whose names are listed in
from time to
Commission Decision 2006/37/EC (*), as
time amended, shall be exempt from the duties imposed by
Article 1, on condition that:

— they are manufactured, shipped and invoiced directly by
the said companies to the first independent customer in
the Community, and

— such imports are accompanied by a valid undertaking
invoice. An undertaking invoice is a commercial invoice
containing at
the elements and the declaration
stipulated in the Annex, and

least

— the goods declared and presented to customs correspond
precisely to the description on the undertaking invoice.

A customs debt shall be incurred at

the time of
2.
acceptance of the declaration for release into free circulation
whenever it is established, in respect of goods described in
Article 1 and exempted from the duties under the conditions
listed in paragraph 1, that one or more of such conditions is
not fulfilled. The condition set out in the second indent of
paragraph 1 shall be considered as not being fulfilled where
the undertaking invoice is found not to comply with the

provisions of the Annex or found not to be authentic or
where the Commission has withdrawn the acceptance of
the undertaking pursuant to Article 8(9) of Regulation (EC)
No 384/96 or Article 13(9) of the basic anti-subsidy Regu-
to (a)
lation in a Regulation or Decision which refers
particular transaction(s) and declares the relevant undertaking
invoice(s) as invalid.

Importers shall accept as a normal trade risk, the fact
3.
that the non-fulfilment, by any party, of one or more of the
conditions listed in paragraph 1 and further defined in
paragraph 2 may give rise to a customs debt
incurred
under Article 201 of Council Regulation (EEC) No 2913/92
of 12 October 1992 establishing the Common Customs
Code (**). The customs debt
incurred shall be recovered
upon withdrawal by the Commission of the acceptance of
the undertaking.

4.
The text in the Annex to this Regulation shall be added
both to Regulation (EC) No 1338/2002 and to Regulation
(EC) No 1339/2002.

___________
(*) See page 52 of this Official Journal.
(**) OJ L 302, 19.10.1992, p. 1. Regulation as last amended
the European
by Regulation (EC) No 648/2005 of
Parliament and the Council (OJ L 117, 4.5.2005, p. 13).’

Article 2

This Regulation shall enter into force on the day following that
of 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 Brussels, 23 January 2006.

For the Council
The President

J. PRÖLL

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ANNEX

‘ANNEX

The following elements shall be indicated in the commercial invoice accompanying the company’s sales of sulphanilic
acid to the Community which are subject to an Undertaking:

1. The heading “COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING”.

2. The name of the company mentioned in Article 1 of Commission Decision 2006/37/EC accepting the undertaking

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.

6. The exact description of the goods, including:

— Product code number (PCN) used for the purposes of the investigation and the undertaking (e.g. “PA99”, “PS85” or

“TA98”),

— the technical/physical specifications of the PCN, i.e. for “PA99” and “PS85” white free flowing powder, and for

“TA98” grey free-flowing powder,

— company product code (CPC) (if applicable),

— 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 company acting as an importer in the Community to which the commercial invoice accompanying goods

subject to an undertaking is issued directly by the company.

9. The name of the official of the company that has issued the 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 2006/37/EC. I declare that the information provided in this invoice is
complete and correct.”.’