Council Regulation (EC) No 366/2006 of  27 February 2006  amending Regulation (EC) No 1676/2001 imposing a definitive anti-dumping duty on imports of polyethylene terephthalate (PET) film originating,  inter alia , in India
Date: 2006-02-27
Institutions: Council of the European Union
Subjects: India, anti-dumping duty, anti-dumping legislation, import, originating product, plastics

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COUNCIL REGULATION (EC) No 366/2006

of 27 February 2006

amending Regulation (EC) No 1676/2001 imposing a definitive anti-dumping duty on imports of
polyethylene terephthalate (PET) film originating, inter alia, in India

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) (‘the basic
Regulation’), and in particular Article 11(3) thereof,

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

Whereas:

A. PROCEDURE

1. Existing measures and terminated investigations
concerning the same product

(1)

(2)

The Council, by Regulation (EC) No 2597/1999 (2),
imposed a definitive countervailing duty on imports of
polyethylene terephthalate (PET) film falling within CN
codes ex 3920 62 19 and ex 3920 62 90 and originating
in India (‘the definitive countervailing measures’). The mea-
sures took the form of an ad valorem duty ranging between
3,8 % and 19,1 % imposed on imports from individually
named exporters, with a residual duty rate of 19,1 %
imposed on imports from all other companies.

The Council, by Regulation (EC) No 1676/2001 (3),
imposed definitive anti-dumping duties on imports of PET
film originating, inter alia, in India (‘the definitive anti-
dumping measures’). Sampling was applied to the Indian
exporting producers, and individual duties ranging from
0 % to 62,6 % were imposed on the companies in the
sample, while other cooperating companies not included
in the sample received a duty based on the weighted aver-
age dumping margin of 57,7 % reduced by their individual

export subsidy margin. A duty of 53,3 % was imposed on
all other companies. The original investigation period was
1 April 1999 to 31 March 2000 (‘the original IP’).

the Commission, by Decision
On 22 August 2001,
2001/645/EC (4), accepted undertakings offered by five
Indian producers: Ester Industries Limited (Ester), Flex
Industries Limited (Flex), Garware Polyester Limited
(Garware), MTZ Polyfilms Limited (MTZ), and Polyplex
(Polyplex). The Commission
Corporation
announced on 17 February 2005 the change of name of
MTZ by a notice published in the Official Journal of the
European Union (5).

Limited

The Council, by Regulations
(EC) Nos 1975/2004
and 1976/2004, extended the definitive countervailing and
anti-dumping measures on imports of PET film originat-
ing in India, to imports of the same product consigned
from Brazil and Israel, whether declared as originating in
Brazil or Israel or not.

On 28 June 2002 (6), the Commission initiated a partial
interim review of Regulation (EC) No 2597/1999 limited
to the form of the definitive countervailing measures and,
in particular, to the examination of the acceptability of an
undertaking offered by one Indian exporting producer,
pursuant to Article 19 of the basic Regulation. This inves-
tigation has been terminated by Regulation (EC)
No 365/2006 (7).

On 22 November 2003 (8), the Commission initiated a
partial interim review of Regulation (EC) No 1676/2001
limited to the form of the definitive anti-dumping mea-
sures. This investigation has been concluded by Regulation
(EC) No 365/2006, which amended Regulation (EC)
No 1676/2001.

On 10 December 2004 (9), the Commission initiated an
expiry review of the definitive countervailing measures.
This investigation has been concluded by Council Regula-
tion (EC) No 367/2006 (10) which maintained the defini-
tive countervailing measures.

(3)

(4)

(5)

(6)

(7)

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

(EC) No 2117/2005 (OJ L 340, 23.12.2005, p. 17).

(2) OJ L 316, 10.12.1999, p. 1. Regulation as amended by Regulation

(EC) No 1976/2004 (OJ L 342, 18.11.2004, p. 8).

(3) OJ L 227, 23.8.2001, p. 1. Regulation as amended by Regulation (EC)

No 1975/2004 (OJ L 342, 18.11.2004, p. 1).

(4) OJ L 227, 23.8.2001, p. 56.
(5) OJ C 40, 17.2.2005, p. 8.
(6) OJ C 154, 28.6.2002, p. 2.
(7) See page 1 of this Official Journal.
(8) OJ C 281, 22.11.2003, p. 4.
(9) OJ C 306, 10.12.2004, p. 2.
(10) See page 15 of this Official Journal.

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On 23 August 2005 (1), the Commission initiated a review
of Regulations (EC) Nos 1975/2004 and 1976/2004 with
respect to the application of an Israeli producer for an
exemption from the extended measures. This investigation
has been concluded by Council Regulation (EC)
No 101/2006 (2).

— Garware Polyester Limited, Aurangabad,

— MTZ Polyfilms Limited, Mumbai,

— Polyplex Corporation Limited, New Delhi.

2. Request for a review

B. PRODUCT CONCERNED AND LIKE PRODUCT

(8)

(9)

On 5 November 2004, a request for a partial interim
review of Regulation (EC) No 1676/2001, limited to the
level of dumping was lodged by the following Community
producers: Du Pont Teijin Films, Mitsubishi Polyester Film
GmbH and Nuroll SpA (the applicants). The applicants
represent a major proportion of the Community produc-
tion of PET film. Toray Plastics Europe indicated its sup-
port for the request, although it was not a formal applicant.

(10)

The applicants alleged that in regard to imports of PET film
from the five Indian producers from whom undertakings
were accepted by Decision 2001/645/EC, the level of the
existing measures is no longer sufficient to counteract the
injurious dumping.

3.

Investigation

(11) Having determined, after consulting the Advisory Commit-
tee, that sufficient evidence exists to justify the initiation of
a partial interim review, the Commission announced on
4 January 2005, by a Notice of initiation published in the
Official Journal of the European Union (3), the initiation of a
partial interim review, in accordance with Article 11(3) of
the basic Regulation.

(12)

(13)

(14)

The review was limited in scope to the examination of
dumping by the five Indian exporting producers from
which undertakings were accepted and to the level of the
residual duty, in order to assess the need for the continu-
ation, removal or amendment of the level of the existing
measures. The investigation period was from 1 October
2003 to 30 September 2004.

The Commission officially advised the exporting produc-
ers, the representatives of the exporting country and the
Community producers of the initiation of the partial
interim review. Interested parties were given the opportu-
nity to make their views known in writing and to request a
hearing within the time limit set in the notice of initiation.

In order to obtain the information deemed necessary for its
investigation, the Commission sent questionnaires to the
exporting producers concerned, which all cooperated by
replying to the questionnaire. Verification visits were carried
out at the premises of the following exporting producers in
India:

— Ester Industries Limited, New Delhi,

— Flex Industries Limited, New Delhi,

(1) OJ L 218, 23.8.2005, p. 3.
(2) OJ L 17, 21.1.2006, p. 1.
(3) OJ C 1, 4.1.2005, p. 5.

1. Product concerned

(15)

The product concerned is, as defined in the original inves-
tigation, polyethylene terephthalate (PET) film originating
in India, normally declared under CN codes ex 3920 62 19
and ex 3920 62 90.

2. Like product

(16) As in the original investigation, it was found that PET film
produced and sold on the domestic market in India and
PET film exported to the Community from India have the
same basic physical and technical characteristics and uses.
Therefore, they are like products within the meaning of
Article 1(4) of the basic Regulation.

C. DUMPING

1. Normal value

(17)

(18)

In order to establish normal value, it was first verified that
the total domestic sales of each of the exporting producers
were representative in accordance with Article 2(2) of the
basic Regulation, i.e. that they accounted for 5 % or more
of the total sales volume of the product concerned exported
to the Community. For all companies, overall sales were
found to be representative.

It was then ascertained whether total domestic sales of
each product type constituted 5 % or more of the sales vol-
ume of the same type exported to the Community. For two
companies it was found that they sold second grade film
on the domestic market but not to the Community. Since
second grade film is not directly comparable to first grade
film, sales of second grade film were excluded from the cal-
culation of normal value. Another company sold three dif-
ferent grades of film on the domestic market but only the
best quality film to the Community. In selling the three
grades of film, the company often sold the first and sec-
ond grade films en masse with third grade film but all at the
price of the third grade film. This was explained as being a
form of stock clearance. Again, these sales were excluded
from the calculation.

(19) One company sold to traders on the domestic market
goods which were destined for export. The goods were
readily identifiable as being destined for export, as they
were subject to a different tax regime from normal sales on
the domestic market. The company could not indicate
whether the final destination of the goods would be the
Community or a third country. These sales were therefore
excluded from the calculation.

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For those product types where domestic sales constituted
5 % or more of the sales volume of the same type exported
to the Community, it was then examined whether suffi-
cient sales had been made in the ordinary course of trade
pursuant to Article 2(4) of the basic Regulation. For each
product type where the volume of domestic sales made at
a net sales price equal to or above the cost of production
represented more than 80 % of the total sales volume of
that type, and where the weighted average price of that
type was equal to or above the cost of production, normal
value was established on the basis of the weighted average
price actually paid for all domestic sales of that type, irre-
spective of whether these sales were profitable or not. For
those product types where the volume of profitable sales
was equal to or lower than 80 %, but not lower than 10 %
of sales, or where the weighted average price of that type
was below the cost of production, normal value was based
on the weighted average price actually paid for the profit-
able domestic sales of that type only.

For the product types where domestic prices of the export-
ing producers could not be used to establish normal value
owing to insufficient representativity or to a lack of suffi-
cient sales in the ordinary course of trade, normal value
was constructed on the basis of the manufacturing costs of
the product types exported to the Community incurred by
the exporting producers concerned plus a reasonable
amount for selling, general and administrative costs (SG&A
costs) and for profits,
in accordance with Article 2(3)
and (6) of the basic Regulation.

sales. As such, it is considered that the remaining domestic
transactions are sufficiently representative for an accurate
calculation of normal value. No re-calculation of the profit
margin is therefore required.

(26)

The exporting producers received disclosure of the calcu-
lations and submitted certain comments. The Commission
took into account those comments and, to the extent that
they were found to be justified, adjusted the calculations
accordingly.

2. Export price

(27) As regards the determination of export prices, it should be
recalled that the present investigation seeks to establish
whether the levels of dumping have changed and whether
these changes can be considered to be of a lasting nature.
In that context, the determination of export prices cannot
be limited to an examination of exporters’ past behaviour,
but has to examine also the likely development of export
prices in the future. In other words, it has to be determined
whether past export prices are reliable as an indication of
likely future export prices. In this case, and in view of the
fact that undertakings were accepted, it was examined in
particular whether the existence of such undertakings has
influenced the past export prices, so as to make them unre-
liable for the establishment of future export behaviour.

(20)

(21)

(22)

In accordance with Article 2(6) of the basic Regulation the
SG&A costs were based on such costs incurred by the
exporting producers with regard to their domestic sales of
the product concerned, which were found to be represen-
tative. The profit margin was calculated on the basis of the
weighted average profit margin of each company for those
product types sold on the domestic market in sufficient
quantities in the ordinary course of trade.

(28)

(23)

Following disclosure, one exporting producer contested
the adjustment made to the price paid in respect of one
specific raw material. The contested adjustment was
re-examined, following which the level of adjustment was
revised and the dumping margin recalculated accordingly.

(24) Another company argued that film which was not of top-
quality should be included in the calculation and that
‘adjustments’ should be made in order to make that film
comparable at the level of first grade film. It was also
argued that further to the inclusion of these transactions a
re-calculation of the profit margin would be necessary.

(25)

The volume of second and third grade film excluded from
the calculation represented less than 3 % of all domestic

In order to examine whether export prices to the Commu-
nity were reliable and given the existence of undertakings,
export prices to the Community were analysed in relation
to the minimum import prices (MIPs) of the undertakings.
It was in fact necessary to ascertain whether export prices
to the Community were set at a certain level mainly as the
effect of the existence of the MIPs established by the under-
takings and therefore whether they were sustainable or
not. It was therefore considered, on a weighted average
basis at the level of each company, whether the prices
practised for sales to the Community market were substan-
tially above the MIPs or not, taking into consideration the
particularities of the product concerned and the markets
on which it was being sold during the IP, and how these
prices related to prices for exports to third countries. When
export prices to the Community were on average well
above the MIPs at company level, it was considered that
these export prices were set sufficiently independently
from the undertakings, and therefore reliable as an indica-
tion of the price-setting behaviour which exporters would
be likely to show in the future. On the contrary, when
export prices to the Community were on average not suf-
ficiently above the MIPs and in addition significantly above
export prices to third countries, the former were consid-
ered to be influenced by the undertakings and therefore
not reliable enough to be used for the dumping calcula-
tion, pursuant to Article 2(8) of the basic Regulation, in the
context of an interim review.

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(29)

(30)

(31)

For two Indian exporters, Flex and Polyplex, it was found
that their export prices to the Community were substan-
tially above the MIPs. Therefore, these export prices to the
Community were considered as reliable and were used in
the dumping calculations.

For the other three exporting producers, Ester, Garware
and MTZ, it was found that the export prices to the Com-
munity were very close to the MIPs. Moreover, it was also
found that the export prices of these three companies to
other third countries were, when considered on a type by
type basis, considerably below the prices to the Commu-
nity, thus making it likely that, in the absence of undertak-
ings such prices to the Community would be aligned to the
prices made for the same types to other third countries. It
was therefore concluded that the export prices of these
three companies to the Community could not be used to
in the meaning of
establish reliable export prices
Article 2(8) of the basic Regulation, in the context of the
present interim review.

It was considered, however, that the absence of a reliable
price for these three Indian exporters, due to the existence
of the undertakings in this case, should not lead to the ter-
mination of the review for these exporters, if a lasting
change in circumstances regarding their dumping behav-
iour, in particular regarding export prices, could neverthe-
less be otherwise established. To this end and, given that
the exporting producers were selling the product con-
cerned on the world market, it was decided to establish the
export price on the basis of prices actually paid or payable
to all
third countries for those models sold to the
Community.

(32)

Following disclosure of the essential facts and consider-
ations on the basis of which it was intended to propose an
amendment to Regulation (EC) No 1676/2001, a number
of parties came forward with comments.

(33) A number of Indian exporting producers and the Indian
Government maintained that no legal basis existed under
Articles 2(8) or 2(9) of the basic Regulation for basing
export prices on those to third countries. They argued that
export prices to the Community existed and that it was not
satisfactorily demonstrated that there was a sufficient basis
to reject the use of those export prices. They maintained
that the export prices to the Community were reliable and
that they should be used instead of prices to third countries.

the use of the prices to third countries rather than those to
the Community in the case of three Indian exporting pro-
ducers is not based on the application of Articles 2(8)
and 2(9) of the basic Regulation. As explained in recit-
als (27) and (28), this is justified by the need to assess the
likelihood of those prices to the Community being main-
tained in the future and, consequently, the likelihood of
recurrence of dumping.

(35)

The conclusion drawn from this assessment was that, in
the case of three Indian exporting producers, their prices to
the Community had been influenced by the existence of
the MIPs, since they were set very close to the MIPs. Thus,
they were not a result of only market forces and were
unlikely to be maintained at the same level into the future.
Consequently, it was considered that there were no prices
to the Community which could be used for the calculation
of dumping. In the absence of an export price to the Com-
munity, it was considered that prices to third countries
formed an accurate and reasonable alternative basis for the
establishment of export prices during the investigation
period and for the calculation of dumping.

(36) One Indian exporting producer argued that the rejection of
its sales prices to the Community and the use of its prices
to third countries constituted discrimination in that it was
treated differently from those exporters for which their
actual sales prices to the Community were used.

(37)

In this respect, it should be noted that no discrimination
occurred in establishing export prices since the same
approach was taken in respect of all Indian exporters. In
respect of each exporting producer, the existence of suit-
able export prices to the Community for the purpose of
the calculation of dumping was assessed. This was carried
out by comparing each exporting producer’s export prices
to the Community with the MIPs in order to establish
whether or not they could be considered as having been set
independently of those MIPs. As explained in recital (28),
in cases where those prices were sufficiently above the MIPs
it was concluded that they had not been influenced by the
MIPs and that the prices could be used for the dumping
calculation as they were reliable as an indication of the
price-setting behaviour which the exporting producer
would be likely to show in the future.

(34)

In respect of the use of export prices to third countries, it
must be stated that the purpose of this review under
Article 11(3) of the basic Regulation is to determine
whether the continued imposition of the measures is still
necessary to offset dumping. In examining the level of
dumping of the exporters concerned, it is necessary to
examine the change in the level of dumping compared to
the original findings on dumping. It should be noted that

(38) Where it was considered that the prices to the Community
had been influenced by the existence of the MIPs, then
those prices were not considered reliable as an indication
of the price-setting behaviour which the exporter would be
likely to show in the future and were not used for the
dumping calculation, prices to third countries being used
as an alternative. The fact therefore that actual export
prices of some exporters were used, while for other export-
ers their export prices to third countries were used, is not
a discrimination of treatment between exporters.

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(39) A number of Indian exporting producers disagreed with
the conclusion that their export prices to the Community
were very close to the MIPs and therefore could not be
used for the calculation of dumping. They considered that
their prices were sufficiently above the MIPs and pointed
out that under the price undertaking they were merely
required not to sell below the MIPs. One exporter argued
that comparison against the MIPs was not a satisfactory
basis to determine whether or not prices to the Commu-
nity were reasonable and reliable, but that a comparison
with the prices of other Indian exporting producers or of
the Community industry would be more suitable.

(40)

(41)

In this respect, as explained in recital (30), the Community
institutions found that the prices of three exporting pro-
ducers were not sufficiently above the level of the MIPs so
as to demonstrate that they had been set independently of
the MIPs. Therefore, such prices did not form a suitable
basis for the dumping calculation. The fact that, under the
price undertakings, the exporting producers were merely
required not to sell below the MIPs was therefore not only
not contested but irrelevant for this type of analysis.

In the context of considering whether or not the prices to
the Community had been influenced by the existence of
the MIPs, it should be noted that when undertakings are
present it is necessary to consider whether or not export
prices are reliable and form a proper basis for the calcula-
tion of dumping margins. When prices to the Community
are influenced by factors other than market forces, such as
the undertaking MIPs, then these prices are considered as
not reasonable or reliable. In this case, it must be pointed
out that a comparison with the prices of each exporting
producer to other third countries, as mentioned in
recital (28), was considered more appropriate to determine
the price-setting behaviour of a particular exporting pro-
ducer, than a comparison with the prices of other Indian
exporting producers or the Community industry, since it
provided a better insight into the individual exporting pro-
ducer’s business behaviour.

exporter’s prices to the Community was based on the result
of the assessment of whether or not those prices were
influenced by the existence of the MIPs and on the differ-
ence between their price to the Community and export
prices to third countries, as explained in recital (28).

(44)

(45)

The Community industry also maintained that the com-
parison on a weighted average basis of export prices with
the MIPs, in order to determine whether prices to the Com-
munity were representative of future behaviour and reli-
able for the assessment of dumping, was contradictory to
the findings of the review of the form of the measures that
the MIPs were no longer appropriate.

In this regard it is to be noted that the question under the
review of the form of the anti-dumping measures was
whether or not the price undertakings were still appropri-
ate or relevant (in the sense that they would have the same
effect as the imposition of an anti-dumping duty) to the
products being exported under them (see recital (8) of
Council Regulation (EC) No 365/2006). In that review it
was found that for some product groupings the range of
actual prices to the Community had changed (either wid-
ened or narrowed) significantly from the original investi-
gation and it was concluded that the specific MIPs based on
the original prices were inappropriate to counteract the
injurious effect of dumping in respect of current sales.
Under the present review, the question was whether or not
the prices to the Community were influenced by the exist-
ence of the undertaking MIPs, i.e. whether or not they are
lasting. It is maintained that where prices are substantially
above the MIPs, those prices are not influenced by the
MIPs. This applies irrespective of whether price undertak-
ings are appropriate for the product. In this case, the prices
are therefore set by market forces and form a suitable basis
for the assessment of dumping behaviour. This argument
is therefore rejected.

(42)

The Community industry argued that in view of the dis-
torting effect of the undertaking MIPs, actual sales prices to
the Community should have been rejected and use made
instead of prices to third countries in the case of all the
Indian exporting producers. They also expressed concern
that those Indian exporting producers with low dumping
margins calculated using export prices to the Community,
would not continue to maintain their prices at the same
level in the future.

(46)

(43) As concerns this argument, and as explained at recital (32),
the same approach was adopted in respect of all Indian
exporting producers. The use or non-use of each

3. Comparison

The normal value and export price were compared on an
ex-works basis. Due allowance in the form of adjustments
was made for differences affecting price and price com-
parability in accordance with Article 2(10) of the basic
Regulation. Accordingly, adjustments were made for dif-
ferences in discounts, rebates, transport, insurance, han-
dling,
loading and ancillary costs, packing, credit
and commissions, where applicable and supported by
verified evidence. Adjustments to the export price were
also made for some models of Ester, Garware and MTZ,
as regards differences for physical characteristics of the
product sold to third markets vis-à-vis the product sold to
the Community, pursuant to Article 2(10)(a) of the basic
Regulation.

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(47)

Two exporting producers claimed also, for a limited num-
ber of exports, an adjustment on the export price pursuant
to Article 2(10)(k) of the basic Regulation, based on the
amount of the benefits received on exportation under the
Duty Entitlement Passbook Scheme (DEPB) on a post-
export basis. In this respect, it was found that under this
scheme, the credits received when exporting the product
concerned could be used to offset customs duties due on
imports of any goods or could be freely sold to other com-
panies. In addition, there is no constraint that the imported
goods should only be used in the production of the
exported product. The producers did therefore not dem-
onstrate that the benefit under the DEPB scheme on a post-
export basis affected price comparability and, in particular,
that the customers consistently paid different prices on the
domestic market because of the DEPB benefits. Therefore,
the claim was rejected.

4. Dumping margin

(48)

The dumping margin was established on the basis of a
comparison of a weighted average normal value with a
weighted average export price,
in accordance with
Article 2(11) of the basic Regulation. Where export prices
were based on prices to third countries, appropriate CIF
values were calculated by increasing the ex-works price to
third countries by the weighted average difference, by
product type, between the ex-works and CIF level prices to
the Community.

(49) Given the considerable reduction of the individual dump-
ing margins compared to the initial measures, it was also
considered appropriate to modify the residual duty. The
latter was established, pursuant to Article 11(9) of the basic
Regulation, on the basis of the highest dumping margin
established for the five Indian exporting producers subject
to the current review, since the five companies concerned
were considered to be representative of the sampled coop-
erating producers in terms of export volumes on which
basis the initial residual duty was calculated.

(50)

The dumping margins, expressed as a percentage of the CIF
Community frontier price, duty unpaid, are as follows:

Ester Industries Ltd

Flex Industries Ltd

Garware Polyester Ltd

MTZ Polyfilms Ltd

Polyplex Corporation Ltd

All other companies

29,3 %

3,2 %

20,1 %

26,7 %

3,7 %

29,3 %

D. LASTING NATURE OF THE CHANGED
CIRCUMSTANCES

(51)

(52)

(53)

In accordance with Article 11(3) of the basic Regulation,
an analysis was made as to whether the change in circum-
stances with regard to dumping could reasonably be said
to be of a lasting nature.

In this regard, it should be noted that normal value was
established on the basis of the applicants’ costs and prices.
The exporters have a substantial domestic market for the
product concerned, and domestic prices have increased in
comparison with the original investigation. No indications
could be found that the normal value established during
the present review could not be considered to be of a last-
ing nature.

It could be argued that the evolution of the prices of the
raw materials, highly correlated to the oil prices, could
have a significant influence on the normal value. It was
however considered that since the raw materials are com-
modities for which the price is internationally determined,
the effect of the price increase would affect all actors on the
market and therefore have an impact on both the normal
value and the export price.

(54) As already mentioned in recitals (22) and (23), given the
existence of undertakings, in order to examine whether
export prices to the Community could be considered to be
of a lasting nature or not, the latter needed to be analysed
in relation to the MIPs set in the undertakings. In addition,
a price comparison was made between the prices of the
product concerned sold for export to the Community and
for export to third countries during the investigation
period. As explained in recital (23), it was considered that
when export prices to the Community were not sufficiently
above the MIPs and were significantly above export prices
to third countries, the former were not considered to be a
reliable indication of the price-setting behaviour which
exporters would be likely to show in the future. Instead,
export prices to third countries were used in order to deter-
mine future export prices that could be considered as
lasting.

(55) On that basis, it is concluded that the changed circum-
stances with respect to the original investigation regarding
dumping could reasonably be considered to be of a lasting
nature, with the particularity that for three Indian export-
ers, as concluded in recital (26), the lasting change in cir-
cumstances
in
particular regarding export prices, had to be established on
the basis of prices actually paid or payable to other third
countries for those models sold to the Community rather
than on the basis of their export price to the Community.

regarding their dumping behaviour,

(56)

The considerable reduction of the individual dumping mar-
gins of the companies in the sample, as compared to the
initial measures, and the lasting nature thereof, can be con-
sidered to be representative for all other companies as well.
Therefore, the residual duty had to be modified accord-
ingly, as explained in recital (30).

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E. CONCLUSION

(57)

(58)

In view of the conclusions reached with regard to dump-
ing and the lasting nature of the changed circumstances,
and having regard to the conclusions of Regulation (EC)
No 365/2006 as regards the form of the anti-dumping
measures (withdrawal of the undertakings in force), the
anti-dumping measures on imports of the product con-
cerned originating in India, should be amended in order to
reflect the new dumping margins found.

Since, pursuant to Article 14(1) of the basic Regulation, no
product shall be subject to both anti-dumping and coun-
tervailing duties for the purpose of dealing with one and
the same situation arising from dumping or from export
subsidisation, the countervailing duty in force that corre-
sponds to export subsidies was deducted from the anti-
dumping duty to be applied. For the residual duty, the
deduction corresponds to the export subsidy margin of the
company on the basis of which the residual dumping mar-
gin was established.

(59) On the basis of the above, and taking into account the find-
ings of the expiry review of the definitive countervailing
duties (Regulation (EC) No 367/2006), the proposed duty
amounts, expressed on the CIF Community border price,
customs duty unpaid, are as follows:

Export
Sub-
sidy
Margin

Total
Sub-
sidy
Margin

Dump-
ing
Margin

CVD
duty

AD
duty

Total
duty
rate

12,0 % 12,0 %

29,3 % 12,0 % 17,3 %

29,3 %

12,5 % 12,5 %

3,2 % 12,5 %

0, %

12,5 %

2,7 %

3,8 %

20,1 %

3,8 % 17,4 %

21,2 %

8,7 %

8,7 %

26,7 %

8,7 % 18,0 %

26,7 %

19,1 % 19,1 %

3,7 % 19,1 %

0 %

19,1 %

Company

Ester
Industries
Ltd

Flex
Industries
Ltd

Garware
Polyester
Ltd

MTZ
Polyfilms
Ltd

Polyplex
Corporation
Ltd

All other
companies

12,0 %
(1)

19,1 %

29,3 % 19,1 % 17,3 %

36,4 %

(1) For the purpose of calculating the final anti-dumping duty for ‘all other companies’,
the export subsidy margin of the company on the basis of which the dumping mar-
gin for ‘all other companies’ is based was taken into consideration.

(60) As outlined under recital (4), the anti-dumping measures in
force were extended to cover, in addition, imports of PET
film consigned from Brazil and Israel, whether declared as
originating in Brazil or Israel or not. The amended anti-
dumping measures, as set out in recital (59), should con-
tinue to be extended to imports of PET film consigned
from Brazil and Israel, whether declared as originating in

Brazil or Israel or not. The Brazilian and Israeli exporting
producers who were exempted from the measures as
extended by Regulation (EC) No 1975/2004 and amended
by Regulation (EC) No 101/2006 should also be exempted
from the measures as amended by this Regulation.

(61) All parties concerned were informed of the essential facts
and considerations on the basis of which it was intended
(EC)
to
No 1676/2001 and were given the opportunity
to comment.

to Regulation

amendment

propose

an

(62)

The individual company anti-dumping duty rates specified
in this Regulation were established on the basis of the find-
ings 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 originat-
ing in the country concerned and produced by the com-
panies and thus by the specific legal entities mentioned.
Imported products produced by any other company not
specifically mentioned in the operative part of this Regu-
lation 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’.

(63) Any claim requesting the application of these individual
company anti-dumping duty rates, for instance 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 forthwith with all relevant information,
in particular, any modification in the company’s activities
linked to production, domestic sales and export sales asso-
ciated with, for instance, that name change or that change
in the production and sales entities. If appropriate, Regu-
lation (EC) No 1676/2001 will accordingly be amended by
updating the list of companies benefiting from individual
duties.

(64)

(65)

(66)

In order to ensure a proper enforcement of the anti-
dumping duty, the residual duty level should not only
apply to the non-cooperating exporters, but also to those
companies which did not have any exports during the IP.

It should be noted that the Indian exporter MTZ changed
its address with effect from July 2005, with no other
changes to the company’s ownership, structure or opera-
tions. The address of the company should therefore be
amended.

For the purpose of transparency and having regard to
Regulation (EC) No 365/2006, adopted on the same day as
this Regulation and also concerning a review of the defini-
tive anti-dumping measures, a new consolidated version
of Article 1 of Regulation (EC) No 1676/2001 should be
included in the operative part of this Regulation,

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Official Journal of the European Union

L 68/13

Country

Company

Definitive
Duty
(%)

TARIC Addi-
tional Code

0,0 %

A032

Polyplex Corporation
Limited
B-37, Sector-1,
Noida 201 301,
Dist. Gautam Budh
Nagar,
Uttar Pradesh,
India

All other companies

17,3 %

A999

0,0 %

A244

7,5 %

A224

0,0 %

A222

7,5 %

A226

7,5 %

A225

7,5 %

A223

Kolon Industries Inc.
Kolon Tower,
1-23, Byulyang-dong,
Kwacheon-city,
Kyunggi-do,
Korea

SKC Co. Ltd.
Kyobo Gangnam
Tower,
1303-22, Seocho 4
Dong,
Seocho Gu,
Seoul 137-074,
Korea

Toray Saehan Inc.
17F, LG Mapo B/D
275 Kongdug-Dong
Mapo-Gu
Seoul 121-721
Korea

HS Industries Co. Ltd.
Kangnam Building, 5th
floor
1321, Seocho-Dong
Seocho-Ku
Seoul
Korea

Hyosung Corporation
450, Kongduk-Dong
Mapo-Ku
Seoul
Korea

KP Chemical Corpora-
tion
No. 89-4, Kyungun-
Dong
Chongro-Ku
Seoul
Korea

HAS ADOPTED THIS REGULATION:

Article 1

Article 1 of Regulation (EC) No 1676/2001 as last amended by
Regulation (EC) No 365/2006 shall be replaced by the following:

‘Article 1

1.
A definitive anti-dumping duty is hereby imposed on
imports of polyethylene terephthalate (PET) film falling within
ex 3920 62 19 (TARIC codes 3920 62 19 03,
CN codes
3920 62 19 13,
3920 62 19 06,
3920 62 19 23,
3920 62 19 16,
3920 62 19 33,
3920 62 19 26,
3920 62 19 43,
3920 62 19 36,
3920 62 19 53,
3920 62 19 46,
3920 62 19 63,
3920 62 19 56,
and
3920 62 19 69, 3920 62 19 76 and 3920 62 19 94)
ex 3920 62 90
and
3920 62 90 94) and originating in India and the Republic of
Korea.

3920 62 19 09,
3920 62 19 19,
3920 62 19 29,
3920 62 19 39,
3920 62 19 49,
3920 62 19 59,

3920 62 90 33

(TARIC

codes

2.
The rate of the definitive anti-dumping duty applicable to
the net, free-at-Community-frontier price, before duty, shall be as
follows for products originating in:

India

India

Korea

Korea

Korea

Definitive
Duty
(%)

TARIC Addi-
tional Code

17,3 %

A026

Korea

0,0 %

A027

17,4 %

A028

Korea

Korea

Country

Company

India

India

India

India

India

Ester Industries Limited
75-76, Amrit Nagar,
Behind South Extension
Part-1,
New Delhi — 110 003,
India

Flex Industries Limited
A-1, Sector 60,
Noida 201 301, (U.P.),
India

Garware Polyester Lim-
ited
Garware House,
50-A, Swami Nityanand
Marg,
Vile Parle (East),
Mumbai 400 057,
India

Jindal Poly Films Lim-
ited
56 Hanuman Road,
New Delhi 110 001,
India

MTZ Polyfilms Limited
New India Centre, 5th
floor,
17 Co-operage Road,
Mumbai 400 039,
India

0,0 %

A030

Korea

All other companies

13,4 %

A999

18,0 %

A031

3. Where any party provides sufficient evidence to the
Commission:

— that it did not export the goods described in Article 1(1)

during the original investigation period,

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Official Journal of the European Union

8.3.2006

— that it is not related to any exporter or producer subject to

the measures imposed by this Regulation,

may amend Article 1(2) by adding that party to the list of com-
panies subject to anti-dumping measures as appears in the table
in Article 1(2).

and

— that it has exported the goods concerned after the investiga-
tion period, or that it has entered into an irrevocable contrac-
tual obligation to export a significant quantity to the
Community,

Unless otherwise specified, the provisions in force concern-

4.
ing customs duties shall apply.’

Article 2

the Council, acting by simple majority on a proposal submitted
by the Commission after consulting the Advisory Committee,

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, 27 February 2006.

For the Council
The President
U. PLASSNIK