No. 63/1/2001-DGAD – Having regard to the Customs Tariff Act, 1975 as amended in 1995 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, thereof.

2. The procedure described below has been followed with regard to the investigations:-

i) The Designated Authority (hereinafter referred to as Authority), under the above Rules, received a written petition from M/s. National Organic Chemicals Industries Ltd., (NOCIL), Mumbai and M/s. Andhra Petrochemicals Ltd., Hyderbad on behalf of the domestic industry, alleging dumping of certain types of Acyclic Alcohols originating in and exported from Singapore, Brazil, Romania, Malaysia and South Africa (hereinafter referred to as subject countries) ;

ii) The preliminary scrutiny of the application revealed certain deficiencies, which were subsequently rectified by the petitioners;

iii) The Authority on the basis of sufficient evidence submitted by the Petitioner decided to initiate investigations against alleged dumped imports of certain types of Acyclic Alcohols originating in and exported from Singapore, Brazil, Romania, Malaysia and South Africa. The Authority notified the Embassies of the subject countries about the receipt of dumping allegation before proceeding to initiate investigations in accordance with sub rule 5(5) of the Rules;

iv) The Authority issued a Public Notice dated 31^st January, 2002, published in the Gazette of India Extraordinary initiating anti-dumping investigations concerning imports of certain types of Acyclic Alcohols originating in or exported from Singapore, Brazil, Romania, Malaysia and South Africa into India being cleared under Sub-heading 2905.13, 2905.14, 2905.16, 2905.17 and 2905.19 of Schedule I of the Customs Tariff Act, 1975.

v) The Authority forwarded copy of the said public notice to the known exporters, importers, industry associations (whose details were made available by the petitioner) and gave them an opportunity to make their views known in writing within forty days from the date of the letter;

vi) Request was made to the Central Board of Excise and Customs (CBEC) to arrange details of imports of subject goods;

vii) The Authority provided copies of the non-confidential version of the Petition to the known exporters and the Embassies of the subject countries in accordance with Rule 6(3) supra;

viii) The Embassies of the subject countries were informed about the initiation of the investigation in accordance with Rule 6(2) with a request to advise the exporters/producers from their country to respond to the questionnaire within the prescribed time. A copy of the letter, petition and questionnaire sent to the exporters was also sent to them;

ix) A questionnaire was sent to the known importers/users (as per details in the preliminary findings) of Acyclic Alcohols in India calling for necessary information in accordance with Rule 6(4);

(x) The Authority notified preliminary findings vide notification dated 29^th July, 2002 and requested the interested parties to make their views known in writing within forty days from the date of its publication;

(xi) The Authority also forwarded a copy of the preliminary findings to the Embassies/ High Commission of subject countries in India with a request that the exporters/ producers of subject goods and other interested parties may be advised to furnish their views on the preliminary findings in the time frame as stipulated above;

(xii) The Authority forwarded a copy of the preliminary findings to all the known exporters (whose details were made available by the Petitioner) other exporters who responded to the initiation notification, importers and user industry association in India and they were requested to furnish their views, if any, on the preliminary findings within forty days from the date of the letter;

(xiii) The Authority provided an opportunity to the interested parties to present their views orally in two public hearings held on 7^th October, 2002 and 4^th April, 2003. All parties presenting views were requested to file written submissions of their views expressed. The parties were advised to collect copies of the views expressed by the opposing parties and offer rebuttals, if any;

(xiv) The Authority made available to all interested parties the public file containing non-confidential version of evidence submitted by various interested parties for inspection, upon request as per Rule 6(7);

(xv) Arguments made by the interested parties before announcing the preliminary findings, which have been brought out in the preliminary findings notified have not been repeated herein for sake of brevity. However, the arguments raised by the interested parties subsequently have been appropriately dealt in the disclosure statement and these findings;

(xvi)    In accordance with Rule 16 of the Rules supra, the essential facts/basis considered for these findings were disclosed to known interested parties on 23^rd May, 2003 vide a disclosure statement and comments received on the same have also been duly considered in these findings;

(xvii)    Cost investigations including spot verification (as deemed necessary) of the domestic industry were also conducted to work out optimum cost of production and cost to make and sell the subject goods in India on the basis of Generally Accepted Accounting Principles (GAAP) and the information furnished by the Petitioner.

(xviii)    The Authority conducted on the spot verification of information furnished by the exporters M/s BASF Petronas Chemicals, Malaysia and M/s OLTCHIM, Romania;

(xix) *** in this notification represents information furnished by the interested parties on confidential basis and so considered by the Authority under the Rules;

(xx) The investigation covered the period from 1^st April, 2000 to 30^th June, 2001(15 months).

(xxi) Copies of the Initiation notice and Preliminary Findings were also sent to FICCI, CII, ASSOCHAM etc., for wider circulation.

3. The views expressed by various interested parties have been discussed in the preliminary findings and also in the disclosure statement. The views which have not been discussed earlier in the preliminary findings and disclosure statement and those now raised in response to the disclosure statement are discussed in the relevant paragraphs herein below to the extent these are relevant as per rules and have a bearing upon the case. The arguments raised by the interested parties have been examined, considered and, wherever appropriate, dealt in the relevant paragraphs herein below.

4.     At the Preliminary Findings stage responses had been received from the following:

M/S. Oltchim, S.A. Rm. Valcea.
Romania.

M/S. Basf Petronas Chemicals Sdn, Bhd,
Malaysia.

M/S. Sasol Chemical Industries Ltd.
South Africa.

M/S. Ciquine Cia. Petroquimica,
Brazil.

                                        M/s. Lubrizol India Pvt. Ltd.
                                        Mumbai.

The submissions made by various interested parties had been dealt with in the preliminary findings and these are not being repeated here for the sake of brevity.

        The product under consideration as per the Initiation Notification is following types of Acyclic alcohols and their halogenated, sulphonated, nitrated or nitrosated derivatives (commonly known as ‘Oxo Alcohols’):

1. Normal Butanol (NBA) or N-Butyl Alcohol, Butan-1-01,
2. 2-Ethyl Hexanol (2-EHA)
3. Iso Butanol (IBA) or Butan –2-o1
4. Sabutol
5. Hexanol
6. Haptanol
7. Octanol and Iso Octanol
8. Nonanol and Iso Nonanol
9. Decanol and Iso Decanol
10. Mixtures of above.

        The above Acyclic Alcohols are classified under the sub-headings 2905.13, 2905.14, 2905.16, 2905.17 and 2905.19 of Heading 29.05 of Schedule I of Customs Tariff Classification. These Custom classifications are however, indicative only and are in no way binding on the scope of the present investigation.

The issue of Product under Consideration and Like Article was extensively dealt with by the Authority in the Preliminary Findings and the Authority had restricted its recommendations to the following types of Oxo Alcohols :

6. Subsequent to the Preliminary Findings, following arguments have been made as regards Product under Consideration and Like Article :

(a) M/s Sasol Chemical Industries Pty Ltd., South Africa have made following arguments :

1. The petitioners only manufacture IBA, NBA and 2-EHA.
2. By using product type theory, a severe miscarriage of justice is being carried out as the petitioner does not manufacture the other Oxo Alcohols which find different and distinct applications.
3. On the facts of this case, the chemical composition of each type of Oxo Alcohols vastly differs from a chain of 4 to a Carbon chain 10. By the petitioners own admission an elaborate chart identifying the differences in each type of Oxo Alcohols was prepared and annexed with the non-confidential version of the petition.
4. Only part of the Oxo Alcohols go for the manufacture of plasticizers. The resultant plasticizers viz. DOP and DINP are different. Therefore, the same product type theory is misapplied in this case.
5. The product switch theory argued by the petitioner is too simplistic. The fact that product may be used interchangeably might have an impact on the injury analysis, but certainly cannot be the basis of determining the product under consideration. It must be restricted to what is produced by the domestic industry or in the absence of an identical product, an article which has characteristics closely resembling the product under consideration. This is mandated by the WTO rules and the Indian Law.
6. It must be clarified that Sabutol is a proprietary formulation unique to M/s Sasol and is not an Oxo Alcohol like IBA or NBA.
7. Sabutol is not an Oxo Alcohol, nor is it "commercially and technically" substitutable to IBA or NBA.
8. Sabutol is not produced by using an olefin, but by the Fischer-Tropsch process from coal.
9. Sabutol is different to n-butanol since it is an impure product containing various higher carbon number isomers and is produced as a consequence of the Fischer-Tropsch process from coal.
10. Although Sabutol can also be derivatised in the same way as n-butanol it reacts at a different rate, therefore has different reaction kinetics and process requirements during derivatisation and the end-products from it are also vastly different from those made from n-butanol, iso-butanol and 2-EHA or other Oxo Alcohols.
11. Sabutol has a totally different consistency to any of these products since it is a fatally produced mixture of various alcohol isomers which give it totally different properties to the other Oxo Alcohols.
12. The traditional use of Sabutol is not to manufacture plasticizers. If at all any use of Sabutol for purposes of plasticizers is a recent development. In fact, Plasticizers made from Sabutol do not have the traditional plasticizing efficiency to plasticizers such as DOP, DBP and DIBP which are manufactured from 99% pure 2EHA, 99% pure NBA and 99% pure IBA respectively and thus the application of Sabutol Plasticizers are limited. Rather than General Purpose Plasticizers, the consumers recognize Sabutol Plasticizers as plasticizers with no specifications.
13. Whereas Isobutyl alcohol (IBA) and n-butanol (NBA) each are 99% pure single isomer of a specific alcohol each of which have a specific chemical formula, Sabutol is a naturally arising mixture of very diverse isomers of alcohols each of which has their own separate and unique chemical formulae.
14. The carbon chain length of Sabutol is the single most important parameter which distinguishes Sabutol from IBA and NBA.
15. Sabutol which has a n-butanol content ranging from 65 to 69%, isobutyl alcohol content ranging from 5% to 12% and secondary Pentanol content ranging from 15 to 20%. It is prima facie apparent that 99% pure IBA, 99% pure NBA and 99% pure 2EHA can never be considered products comparable to sabutol which has such high concentration of secondary and tertiary pentanols.
16. Sabutol inter alia contains both IBA and NBA. However, neither IBA nor NBA can be extracted from Sabutol. Thus its functionality cannot be compared to pure IBA and NBA.
17. The Designated Authority has looked at the distillation and specific gravity of Sabutol vis-à-vis NBA and it concluded that Sabutol has features that closely resemble the product under consideration. Besides these two parameters, there are several other parameters that go into the selection criteria for an Oxo Alcohol and its substitutes which are also vital.
18. The import of Sabutol under common ITC classification cannot be deciding factor for determining Sabutol as Like Article.
19. Assuming without admitting that Sabutol is like article to the oxo alcohols being manufactured by the petitioner, there can certainly be no doubt that the composition and selling price is more akin to seconds material. This category is not capable of causing injury to the pure alcohols being manufactured in the country.
20. There have been no exports of IBA / NBA from South Africa during the POI which has been confirmed by a letter from the Board of Tariffs and Trade, South Africa. There is no basis in law to impose anti dumping duty on items which have not been exported to Indian during the POI. The contention of the petitioner to impose duties once for and all for all types of oxo alcohols, their like articles and mixtures thereof, is without basis in Anti dumping Law and Practice. The Designated Authority has recommended duty on all oxo alcohols, including those which have never been exported or manufactured in South Africa. This is contrary to the provision of Section 9 (A) of Customs Tariff Act.
21. The Like Article analysis completely disregard the various end-uses of plasticizers which range from shoe soles to artificial leather.
22. The ratio decedendi of the Hon’ble CEGAT is being misapplied by the petitioner. The CEGAT requires the Designated Authority to reach a conclusion based on scientific fact and principles that the imported product is like article to the domestically produced material.
23. Plasticizers when made out of Sabutol do not have identical plasticizing efficiency to plasticizers such as DOP / DBP and DIDP which are made out 99% pure 2EHA / NBA /IBA. This severely restricts possible use to which Sabutol based plasticizers can be used and places them at a disadvantage vis-à-vis plasticizers made from 2EHA, NBA and IBA.
24. The starting point for any investigation is the product manufactured by the domestic industry. As a pre-condition for a product to be included within the scope of the investigation, the US ITC requires that there exists a domestic industry which manufactures a Like Product or the Product under Consideration to that which is being imported similar to what is practiced and followed by the Designated Authority under the Indian anti dumping rules.
25. The petitioner has been unsuccessful in showing that the other alcohols are Like Article to the alcohols manufactured by them. The parameters relied upon by the petitioner and followed by the Hon’ble Designated Authority in the preliminary findings are wholly simplistic and have no basis in the laws of chemistry.
26. The product switch theory propounded by the petitioners is completely irrelevant within the factual matrix of this case. The analogy of the red and blue automobiles is totally out of place as both the red and the blue products are identical and thus Like Article, barring the colour.
27. In the case of other investigations relied upon by the petitioner in support of their claim, the various product types have identical chemical properties. The petitioner has neglected the vital fact that each of the product type listed above are manufactured from the same plant resulting in chemically identical products. Clearly, this is no so for the various different oxo alcohols that are being investigated in these proceedings.

(b) M/s Indian Plasticizers Manufacturers Association (IPMA) and M/s Lubrizol India Ltd have made            following arguments :

i) Contrary to Section 9A(1) and 9A(2), Rules 4(1)(d) and 13, anti-dumping duty has been imposed on articles that had not even been imported (no export price available) and when there was no margin of dumping

1. There was no margin of dumping in respect of Nonanol, Iso Nonanol, Octanol and Iso Octanol from all the five countries, NBA & IBA from Romania and 2-EHA from South Africa
2. Anti-dumping duty determined for 2 – EHA has been illegally adopted in respect of all cases where there was no dumping margin.

ii)    Contrary to Rule 5, the authority has initiated the action where there is no prima facie proof of dumping

a)    Petition did not contain any proof of dumping in respect of (a) NBA from South Africa and (b) IBA from Malaysia and Singapore. On the contrary, the Petition admitted that NBA from SA and IBA from Malaysia & Singapore are not dumped.

b)    Provisional duty cannot be levied when initiation did not meet all the legal requirements.

iii) Contrary to Rule 2(d), a number of alcohols that had not been imported into India have been included within the scope of the ‘product under investigation’.

iv) Contrary to Rule 2(d), a number of alcohols have been wrongly held to be ‘like articles’ in view of the following :

1. Nonanol, Iso Nonanol, Octanol, Iso Octanol and Sabutol fail both the tests of ‘identical or alike in all respects’ and ‘closely resembling characteristics’
2. Contrary to what is stated in paragraph 6.11 of the preliminary finding no technical evidence appears to have been submitted by the domestic industry
3. Decisions of CEGAT act as res judicata on the authority

v) In determining Like Article, one should first ask the question : ‘Like Article to what?’ To answer this question, one should look at the definition of Like Article in Rule 2(d). Thus to determine Like Article, we should first consider the Article under investigation and thereafter look for a Like Article i.e. an Article which is alike in all respects to the Article under investigation. The second question is to examine what is the article under investigation. In the Rule 2(d), the phrase ‘Article under Investigation’ is followed by the words for being dumped in India. Therefore, the Article under investigation can only be those Articles which are being dumped in India. In other words, an article under investigation will cover only those articles which are at least imported into India because without importation the question of dumping does not arise.

vi) In this case, the authority has first taken the domestic article which are being manufactured in India and identified all possible like articles to those domestic articles and all those like articles have been treated as ‘articles under investigation’.

vii) such an inverted process of identifying product under investigation is wrong. The product under investigation shall be first determined based on which articles are being imported into India. It shall not be based on which article is being manufactured in India.

viii) Because of the inverted process of identification of article under investigation used in this case, certain articles which have not at all been imported into India have been brought within the scope of the product under investigation. This is a serious lacunae and the authority is requested to exclude from the scope of the investigation such of those articles which have not been imported into India.

ix) According to the data furnished in the preliminary findings, only the following alcohols have been imported into India :

1. 2-EHA from Brazil, Malaysia, Romania and Singapore
2. IBA from Brazil and Malaysia
3. NBA from Brazil, Malaysia and Singapore
4. Sabutol from South Africa

x) The investigation only cover the above four types of alcohols from the countries mentioned against each of them. Therefore, duties imposed on other types of alcohols from the respective countries shall be terminated. Further, before levying antidumping duty in respect of the above, the authority shall establish dumping, injury and causal link.

xi) Further, the authority has imposed anti-dumping duty on Octanol and Iso Octanol, Nonanol and Iso Nonanol from all the five countries. The authority has done the same by treating Octanol and Iso Octanol, Nonanol and Iso Nonanol to be like articles to 2-EHA. We strongly object that (a) 2-EHA and Octanol/Iso Octanol; or (b) 2EHA and Nonanol / Iso Nonanol are not like articles.

xii) The Authority has held 2EHA and Octanol / Iso Octanol to be like articles on the ground that both of them have characteristics closely resembling each other. The Authority has not conducted either the ‘identical or alike in all respects’ test or ‘closely resembling characteristics’ test before considering whether Octanol / Iso Octanol is a like article. Merely because Octanol has been imported into India, it cannot be said to have characteristics closely resembling those of 2EHA. The structure and concentration of 2EHA, Octanol and Iso Octanol are quite different. Melting point of Octanol and 2EHA are significantly different. Further, one of the major characteristics that give essential character to an alcohol is the concentration of alcohols. As per the Gas Liquid Chromatography test reports furnished the structure and concentration of the three alcohols viz. 2EHA, Octanol and Iso Octanol are quite different. In view of the differences in the structure and concentration, characteristics of the end-product manufactured using one alcohol will be different from the same end-product manufactured using another type of alcohol. The Authority has nowhere examined whether 2EHA can commercially substitute Octanol.

xiii) The Authority has held Nonanol and Iso Nonanol as like articles to 2EHA. While doing so, the Authority has compared three characteristics viz. Carbon chain length, Specific Gravity at 20 degree C and Colour (APHA) between Nonanol, Iso Nonanol and 2-EHA and held that technical characteristics of Nonanol and Iso Nonanol closely resemble that of 2-EHA. The Authority also held that DOP - a plasticizer produced from 2EHA has substitutability with DiNP – another plasticizer produced from Nonanol/Iso Nonanol and hence 2EHA and Nonanol /Iso Nonanol are like articles. In the earlier case of Oxo Alcohols CEGAT had given a ruling against comparison of substitutability of the end-product manufactured using Oxo Alcohols rather than the substitutability of Oxo Alcohols themselves. In this case, the Authority has once again compared the substitutability of DOP and DiNP, which are the end products manufactured using 2EHA and Nonanol respectively. It is reiterated that the substitutability of the end-product shall not be considered. There is significant variation in the melting temperature, boiling temperature, ignition temperature, explosion limits, flash point, molecular weight and hydroxyl value of Iso Nonanol and 2-Ethyl Hexanol. These differences in the characteristics of the two alcohols give them their separate identity and usage. They are used in the manufacture of different types of plasticizers. They are not used for making the same end-product. The question of whether the end-products are alike or not is irrelevant.

xiv) From the above, it is seen that 2EHA and Nonanol/Iso Nonanol are neither identical or alike in all respects to each other, nor do they posses ‘closely resembling characteristics’. In addition, there is no import of Nonanol/Iso Nonanol. In view of the above, the determination of the Authority that Nonanol is a like article to that 2EHA is wrong and, therefore, the same shall be excluded from the purview of the product under consideration.

xv) As regards Sabutol, the domestic industry does not manufacture Sabutol. Even though they manufacture NBA and IBA, Sabutol is a mixture of NBA, IBA and a few other alcohols, the domestic industry cannot and did not manufacture such a mixture. The inability of the domestic industry in manufacturing this mixture itself proves that it is not a like article. In the absence of an identical article, the domestic industry should have proved that they manufacture an article which has characteristics closely resembling that of Sabutol. Domestic industry has failed to demonstrate this aspect with any evidence. It is true that one of the importers who is a producer of plasticizers has imported Sabutol. If at all Sabutol is to be covered as a product under consideration, proper allowance should be given with regard to the physical and commercial differences between Sabutol and NBA / IBA. As Sabutol cannot be treated as like article to 2EHA, the anti dumping duty thereon should be terminated.

xvi) The US ITC ruling has been quoted by the domestic industry. It is clear from the US ITC findings that the starting point in determining Like Article is the determination of Articles under investigation which shall be based on the Articles imported into the country. The scope of the Like Articles for the purposes of injury may be larger than the scope of Article under investigation. However, duties shall be imposed only on those products that are defined as ‘Articles under investigation’.

xvii) None of the earlier cases quoted by the domestic industry are comparable with the present case. In each of those old cases, the product under investigation was a distinctly identifiable single product. Each of those distinctly identifiable products were sold in the market in different physical dimensions and/or shapes. Acyclic Alcohols is not a single product. As product, Acyclic Alcohol is totally different from any of the products cited by the domestic industry. Therefore, a comparison of different types of alcohols to that of Seamless Tubes of different sizes and shapes is incorrect. In the SBR case, the domestic industry was manufacturing only 1500, 1700 and 1900 series. There was no domestic production of SBR 1000 series. Therefore, the Authority correctly held that SBR 1000 series are not a product under consideration.

i) It is very clear from the report that the Indian Domestic Industry only produces three types of product i.e. Iso Butanol (IBA), Normal Butanol (NBA) and 2-Ethyl Hexanol (2-EHA) and there is already a precedent (jurisprudence) on the restriction of the use of term "like product" both by the Designated Authority and the Honourable CEGAT in the previous anti-dumping action on similar products.

ii) Based on Article 2.6 of the WTO AD Agreement, the use of characteristics closely resembling those of the product under consideration can only be applied in the absence of a product which is identical i.e. alike in all respects with the product under investigation. As such the investigation should only be restricted to IBA, NBA and 2-EHA that were produced by the domestic industry.

i) We disagree with petitioner’s views that there is great amount of substitutability between these various types of Alcohols. In fact, the three Oxo Alcohols NBA, IBA and 2-EHA produced by domestic industry and BPC are non-like products. The products under investigation are made from different precursors. IBA is produced from Iso Butyraldehyde, NBA from N-Butyraldehyde and 2-EHA from 2-Ethyl Hexanal.

ii) The production process of the products under investigation is different. N-Butyraldehyde and Isobutyraldehyde are separated via distillation. IBA is obtained by hydration of the respective aldehyde whereas for 2-EHA 2 molecules of N-butyraldehyde are reacted via a process called aldolcondensation to 2-ethylhexanal. The latter is then reacted further to obtain 2-EHA. The fact that they are called oxo alcohols because part of their production process is similar does not make all oxo alcohols like products.

iii) The physical properties of all three products differ very greatly making them non-like products.

Table comparison of NBA, IBA and 2-EHA Physical Properties

iv) The significant differences in physical characteristics of each product bring about differences in use. It is correct that one common use is as raw material for plasticisers. The resulting plasticisers, however, show greatly different properties as is expected due to the non-like precursors. These different plasticisers are used in different applications. Plasticiser volatility is an import criterion affecting both processing characteristics and service life of the finished product.

v) The petitioners produce three different types of products. If these were like products, production of one of these products would suffice. However, since these are non-like products both petitioners invested and installed additional product facilities for production of all three products.

i) The explanation provided by the Designated Authority that some of the product object of investigation, although not similar, appear in the composition of other products which are substitutes, is not acceptable as it makes it possible to consider similar products that do not have sufficiently close characteristics; that assimilation of the characteristically dissimilar is incompatible with the letter of the WTO agreement on anti dumping.

ii) The Designated Authority did not make detailed examination that all the products are effectively inter-changeable i.e. that users of these products may opt indistinctively for one or the other for the manufacture of the same product without additional cost.

i) INA and 2EHA are not like articles. The factual basis for determination of similarities should be on the following :

• Physical and chemical characteristics.
• Manufacturing process.
• Functions and uses.
• Product specifications.
• Distribution and marketing.
• Tariff classification.

ii) The Designated Authority has relied upon a magazine to conclude that since use of plasticizer made with 2EHA (DOP) is gradually being eroded by the plasticizer made by INA (DINP), the two are like article. In view of the orders of Hon’ble CEGAT in the previous case, it is settled law that DINP and DOP are not substitutable to each other. Further, DINP has distinct applications from DOP.

i) NBA, IBA, 2EHA produced by the domestic industry is undisputedly like article to the imported product. There is no argument to the contrary. Sabutol imported from South Africa is a like article to NBA/IBA produced by the domestic industry. Octanol (both normal and iso) imported in India is a like article to 2EHA produced by the domestic industry. Nonanol (both iso and normal) are like article to the 2EHA produced by the domestic industry. Though this alcohol was not imported in the investigation period from the subject countries, this alcohol was imported into India in the investigation period from other countries. Further, this alcohol was imported into India from the subject countries after the investigation period. It is also undisputed (in fact, supported) by the various interested parties that the fact of like article is not with reference to the countries or time period in this case. It cannot be argument of the exporters that iso nonanol of Singapore is not a like article to the Iso nonanol of Europe. Nor can it be the argument of the exporters that Iso nonanol was not like article to EHA in the investigation period but became like article after the investigation period.

ii) It is relevant to point out that product under consideration and product under investigation are two different issues. Product under consideration is the product on which protection is sought whereas product under investigation is the product which has been imported in the investigation period. The product under consideration has to be wider in scope than product under investigation, as all like forms of product under investigation have to be included within the scope of the duty so as to make the entire exercise effective.

iii) The relevant issue is whether all types of alcohols included within the scope of the product under consideration are like forms of the product which has been imported into India in the POI and which is being produced by the domestic industry. The definition of Like Article under Rule 2(b) is relevant for the purpose and is applicable.

iv) As regards to the reference of the CEGAT decision in the previous investigation, it needs to be appreciated that in the previous investigation, the authority on facts did not come to a conclusion that EHA and Normal Hexanol closely resemble each other. The authority had merely applied the test of end-product substitutability. In this case, the authority has come to a definite finding of facts that the two alcohols closely resemble each other. The argument of the opposing interested parties that the Designated Authority is duty bound to go by the orders of the Hon’ble CEGAT and could not have given a new finding on the issue is untenable.

v) As regards arguments on Nonanol / Iso Nonanol, assuming though not admitting that the three characteristics seen by the authority are not adequate and number of other parameters listed by IPMA are relevant and important, what needs to be appreciated is that (a) the two alcohols are defined in terms of common technical parameters, (b) the characteristics closely resemble. Merely because specific values with reference to the two alcohols are different e.g. boiling temperature, the same does not imply that the two are not closely resembling unless it is established that the difference in specific values is so significant as to render the two types as entirely different products. Petitioners rely upon the product catalogue of KLJ Group of Companies which clearly shows that the company produces both DINP and DOP. To produce DINP, the company requires Iso Nonanol. To produce DOP, the company would require EHA. Since no Indian producer produced Iso Nonanol since suspension of production by Indu Nissan, there must have been imports of Iso Nonanol. In fact, petitioners have separately provided evidence of import of Iso Nonanol, which clearly establishes that Iso Nonanol and EHA have been used interchangeably.

vi) As regards argument that mere technical substitutability is not sufficient and commercial substitutability is equally or more important, it is submitted that Octanol and EHA have been commercially substituted. The commercial substitutability between the two is established by the news item earlier referred by the petitioner which clearly establishes that these two are being commercially substituted depending upon the relative price of the two products.

vii) With regard to Sabutol, while on the one hand, the companies have argued that it is a cheaper / inferior alcohol and has demanded an allowance towards the same, which has been granted by the authority, at the same time it has been argued that the domestic industry is not able to produce this mixture of alcohol. The relevant issue would be whether the consumer expects the domestic industry to render a superior alcohol, inferior by resorting to mixture. It is abundantly clear that these parties have referred to Sabutol as alcohol and its interchangeability is IBA/NBA which establishes that it is a Like Article. The Product Catalogue of SASOL clearly shows that Sasol markets C4 oxo alcohols like Iso Butylol, Butylol, N-Butylol and Sabutol. The description of Sabutol is given by the company as "a mixture of normal butyl alcohol (60% min purity by mass), iso-butyl alcohol and secondary pentyl alcohol". The density of these four products is 0.805, 0.810, 0.811 and 0.808-0.811 respectively. This clearly shows that Sabutol is a mixture of IBA and NBA and essentially similar to IBA/NBA. On the other hand, the product information sheet of KLJ Group mentions three Plasticizers made up from C4 alcohols. These are DIBP (Di-Iso-Butyl Phthalate), DnBP (Di-n-Butyl Phthalate) and DBP(M) (Di-Butyl Phthalate). Again the specific gravities (densities) of these products are given as 1.03-1.04, 1.041-1.045 and 1.039-1.041, respectively. Thus, Sabutol and IBA/NBA have been consumed interchangeably. This further establishes that Sabutol is a like article to IBA/NBA. It would also be relevant to point out that the cost and price of NBA and IBA are in a very close band.

viii) As regards evidence presented for the alleged differences between Octanol and EHA, it is relevant that (a) the evidence does not contradict any of the submissions of the domestic industry and observations of authority contained in the preliminary findings, (b) the evidence at best shows that the two alcohols are not identical to each other, (c) the evidence clearly shows that the two alcohols closely resemble each other and (d) the evidence in no way suggest any difference which the differences in the specific values in various technical parameters brings in the eventual product. The evidence in no way suggest that the users of Octanol cannot use 2EHA in the absence of Octanol. On the contrary, Octanol and EHA are being used interchangeably by the consumers.

ix) A number of parties have challenged the scope of investigation proposed by the petitioners and considered by the Designated Authority. The major reasons cited by these interested parties are :

1. A type of alcohol not imported into India can not be included within the scope of the duties, as fact of no imports establishes no injury to the domestic industry. The examples cited include Iso Nonanol, Nonanol.
2. A type of alcohol not produced in the Country and imported in India in the investigation period can not be included within the scope of the duties, as such alcohol imported into India is not a like article to the alcohol produced in India. The example cited includes alcohols such as Sabutol, Octanol, Iso Octanol.

x) It would thus be seen that the major thrust of the opposing interested parties is that an alcohol can be included within the scope of the present investigation and proposed duties only if (a) it has been imported into India; and (b) identical article of the product imported is being produced in India.

xi) The proposition advanced by these interested parties is contrary to the basic tenets of anti dumping. Should the scope of the duties be restricted to the product types imported into India, that too from the subject countries and in the investigation period, the entire process of anti dumping may become a redundant exercise. To illustrate, in case anti dumping duty is imposed only on acrylic fibre of 2.0 denier because this is the only type imported into India in the investigation period from the subject country. The entire exercise would be futile, as with the imposition of anti dumping duty on this denier, other deniers would start getting imported. In fact, petitioner has gone through the list of various anti dumping cases and finds hardly any product wherein the product appears to have only one type. However, it is found that in almost all the cases, anti dumping duties have been imposed on the "product" rather than restricting the scope to the "product type" imported into India in the investigation period.

xii) Petitioner wish to also rely upon the following investigations in particular conducted or being conducted by the Designated Authority :

1. Seamless tubes,
2. Lead acid batteries,
3. Vitrified Tiles,
4. Compact florescent lamps,
5. Hot Rolled Coils, Sheets, Strips, Plates,
6. Cold Rolled Flat Products of Stainless Steel,
7. Dead Burnt Magnesite,
8. Low Carbon Ferro Chrome,
9. Vitamin-C,
10. Metcoke,
11. Polystyrene,
12. EPDM Rubber,
13. SBR,
14. PSF and POY,
15. Thermal Sensitive Paper,
16. Choline Chloride,
17. BOPP Films,

xiii) It is thus submitted that it is the product, which is subject matter of present investigation. All forms of the product remains within the scope of anti dumping duty, so long as these forms are "like article" to the product imported in the investigation period.

xiv) On the issue of Like Article, US ITC findings in the matter of Polyester Film is relevant. It would be seen that even though the various product types were found to be not substitutable inter se in this product, it was held that various types were one like product. The petitioner had relied upon the findings of US ITC, the relevant extracts of which have been re-produced as under :

xv) The petitioner has also relied upon the extracts from the questionnaire issued by the EC with regard to Polyester Film. It has been argued that the model match criteria was whether one type is substitutable with other. Even when Indian Producers reported that a large number of types existed in the domestic market which did not have comparable export models, no model was excluded. Further, one single duty has been imposed on all types of Polyester Film in the EC also. It is thus evident that no product type was excluded from the scope of duty merely because this product type was not exported to India in the investigation period.

xvi) As regards substitutability of Octanol and 2EHA, the petitioner has also furnished a copy of the order placed by one of the importers/domestic users on the domestic producer, M/s Andhra Petrochemicals Ltd. In the said purchase order, the description of the product has been shown as 2-Ethyl Hexanol (Octanol).

xvii) To summarize, the cardinal principle for determination of like article is whether purchasers of a domestic product would switch to a different domestic product if the relative prices of the two products changed. If purchasers would readily switch, then both products should be included in the same like-product definition. Following this cardinal principle alone, Sabutol most closely resembles IBA/NBA, Iso Nonanol and Iso Octanol most closely resembles 2EHA.

Although various Oxo Alcohols may have similar characteristics, they result in different end-products (plasticizers) which have enhanced and different characteristics, with different uses.

1. The argument of domestic industry regarding distinction between article under investigation and article under consideration is wrong and untenable. There is no difference between product under consideration and product under investigation. Both the expressions are synonymous and have no difference. The question of including some articles within the scope of the article under investigation / consideration if they have not been imported into India does not arise.
2. As per Rule 17, the Designated Authority is required to determine as to whether or not the article undo investigation is being dumped in India.
3. The domestic Like Article may be wider in scope that the article under investigation provided those articles satisfy the definition of Like Article as given in Rule 2(d). Under no circumstances, the article under investigation can be wider than the domestic Like Article.
4. The Authority’s view that there is a main product by name ‘Acyclic Alcohol’ is wrong. Acyclic Alcohol is a generic name covering a number of different alcohols each with its own distinct name, characteristics and end uses. It is, therefore, incorrect to include within the scope of the investigation, certain products which were not imported during POI.
5. 2EHA is used to manufacture DOP AND Nonanol is used to manufacture DiNP. They cannot be held to be commercial substitute. Therefore, Nonanol and Iso Nonanol may be excluded from the scope of the current investigation as there is no domestic like product for these two alcohols.
6. Sabutol is a mixture of IBA and NBA and secondary Pentanol. A mixture of alcohols like Sabutol can never be a commercial substitute for independent NBA and IBA. If at all Sabutol is to be covered within the scope of the investigation, its price shall be compared with the price of the mixture of alcohol sold by the domestic industry.

1. The concept of categories is not applicable to justify the adoption of such an inclusive definition of the product under investigation so as to enable the inclusion of unlike products, i.e. products with different uses and that are not mutually exchangeable. In the case of this investigation, the very definition of ‘product under investigation’ is rendered irrelevant by the fact that the margin of dumping is being calculated for unlike products covered mistakenly under that definition.
2. It would not be correct to apply anti dumping rights on imports of products for which there has been no determination of any margin of dumping superior to the de minimus one established in Article 5.8 of the ADA.

During the investigation, there was terminology error. Octanol which is another name for the 2-Ethyl Hexanol meaning 2EH (Customs Tariff Classification 2905.1610) was considered as comparable with 2EHA which is 2-Ethyl Hexanoic acid (Customs Classification 2915.90.80). 2EH was considered like article with 2EHA, but their physical and chemical characteristics are different and so is the quality of the products turned out from each of them.

1) The Authority has taken note of the various arguments made by the interested parties on the issue of Product under Consideration and Like Article. It has been argued by some importers that the article under investigation will cover only those articles which are being imported into India during POI. Therefore, the four types of alcohols viz. 2EHA, IBA, NBA and Sabutol, being imported can only be treated as Article under investigation subject to fulfilling all other requirements as per Rules. It has also been argued by one of the exporters that starting point for any investigation is the product manufactured by the domestic industry. The argument further states that there must exist a domestic industry, which is engaged in the manufacture of the article under investigation and its Like Article. Further, it has been stated that the article under investigation is clearly that is manufactured by the domestic industry and within the factual matrix of this case should be the only alcohols produced in India viz. IBA, NBA and 2EHA.

2) The petitioner domestic industry’s claim is that it is the product which is subject matter of the investigation and the product involved in the present investigation are Acyclic Alcohols and their halogenated, sulphonated, nitrated or nitrosated derivatives. Ten prominent types of the Acyclic Alcohols were specifically included in the scope of the investigation. Therefore, it is the product which is the subject matter of the investigation. All the ten forms of the product as indicated in the initiation notification remain within the scope of the anti dumping duty so long these forms are like article to the product imported in the investigation period. The petitioner further argued that all types of Alcohols which are like article to the alcohols imported into India in the investigation period and like article of which is being produced by the domestic industry are within the scope of the present investigation and proposed anti dumping duty. They further argued that the opposing parties have attempted to describe various forms of alcohols as different products.

3) The Authority is of the view that specified ten types of Acyclic Alcohols were included in the product under consideration as part of the main product i.e. Acyclic Alcohols. The fact that the ten types fall under the description of Acyclic Alcohols and prima facie similarity was sufficient enough to include these within the scope of Product under consideration. Therefore, the Authority does not consider it improper to have included the ten types of alcohols within the description of the product involved under investigation, though some forms or types of these alcohols had not been imported during POI.

4) As regards arguments on the issue of Like Article, the Authority recalls the preliminary findings on this issue. In the preliminary findings, NBA, 2EHA, IBA, Sabutol, Octanol and Iso Octanol and Nonanol and Iso Nonanol were held to be like articles. Arguments have been made that Sabutol is not a like article on the ground of its different chemical composition, different manufacturing process and that the composition of Sabutol is more akin to the seconds material of NBA/IBA column bottom. As regards Octanol and Iso Octanol, it has been argued that characteristics of Octanol and 2EHA are different, for example melting point is different. The structure and concentration of 2EHA, Octanol and Iso Octanol are different. As regards Nonanol and Iso Nonanol, it has been argued that the Authority in its preliminary determination has compared three basic characteristics which are not sufficient to distinguish one from the other. As per the arguments, there are other characteristics of these Alcohols which make Iso Nonanol quite different from 2EHA. Therefore, the determination that Nonanol and Iso Nonanol are like article to 2EHA is wrong. The Authority has examined the various arguments in the light of the definition of like article under Rule 2(d). There are two parts of the definition of ‘like article’. First, there should be an article which is alike in all respects to the article under investigation; secondly in the absence of such an article, another article which although not alike in all respects has characteristics closely resembling those of the articles under investigation. Rule 2(d) of the Anti Dumping Rules and the Article 2.6 of the WTO Anti Dumping Agreement do not specifically lay down the criteria or the parameters whereby to determine that the characteristics of the article closely resemble those of the products under consideration. Going by the precedent of the cases investigated by the Authority and the views held in earlier investigation, the Authority has taken into account the following criteria for deciding issues on Like Article :

• Technical and Commercial substitutability,
• Functions and uses of the products,
• Resemblance of the physical and/or chemical properties,
• Users’ perception for switching over from one product to another,
• Similar production processes,
• End-product substitutability,

5) Some of the interested parties have argued that Octanol, Nonanol, Iso Nonanol and Sabutol have different characteristics and thus cannot be considered as Like Article within the Rule 2(d). The Authority’s view is that as they are not having similar chemical characteristics and are therefore not alike, that is why, they need to be examined as per the second limb of the definition of Like Article under Rule 2(d) i.e. whether they have characteristics closely resembling those of the article under investigation. The very fact that these alcohols have different chemical properties from 2EHA, NBA and IBA produced by the domestic industry itself is not a decisive factor. The other criterion like functions and uses, commercial and technical substitutability, user’s perception in switching over from one product to another, end-product substitutability and production processes have also been considered. The Authority finds that Nonanol, Iso Nonanol, Octanol and Sabutol are commercial substitutes of the domestically produced Oxo Alcohols. These have chemical properties, though dissimilar, yet close enough to be bracketed as Acyclic Alcohols. Furher, the user has switched over from one form of alcohol to the other form in the case of Nonanol, Iso Nonanol and Sabutol as a preference over the domestically produced alcohols. As regards Octanol, the Authority’s views are further strengthened on the basis of evidence that some of the Indian user have placed order on the Indian domestic producer giving the description as 2-Ethyl Hexanol (Octanol). Further, the exports of Octanol from Romania have been cleared by the importer describing the same as 2EHA on the Bill of Entry. Thus the Authority confirms its views that NBA, 2EHA, IBA, Sabutol, Octanol and Iso Octanol, Nonanol and Iso Nonanol which are the forms of Acyclic Alcohol in the product under consideration to be Like Article to the domestically produced Oxo Alcohol viz. 2EHA, IBA and NBA.

9. Period of investigation :

The period of investigation in the present investigation is from 1^st April, 2000 to 30^th June, 2001. It has been argued by the Malaysian government that the period of dumping determination was based on 15 months whereas the norm is twelve months. The Authority is of the view that the anti dumping agreement does not lay down the period of investigation. However, it should not be less than six months. Therefore, the Authority considers that the period of investigation in this case is appropriate.

The Authority recalls the preliminary findings as regards domestic industry. The petition had been filed by M/s. National Organic Chemicals Industries Ltd., (NOCIL), Mumbai and M/s. Andhra Petrochemicals Ltd.,The above-mentioned companies had provided all information required for the purpose of the present investigation and had offered themselves for further information and verification. Another producer M/s. Indu Nissan Oxo Chemical Industries Ltd., Mumbai, who had supported the petition, had suspended production since 1999. The said producer was not considered as part of the domestic industry and the other two producers, viz., M/s. NOCIL M/s. Andhra Petrochemicals Ltd. were considered to represent the domestic industry as these companies accounted for 100% of the total Indian production of subject goods. Subsequently, M/s NOCIL had also suspended production of subject goods. M/s Andhra Petrochemicals Ltd. is at present the sole producer of subject goods and thus represent the domestic industry. None of the responding interested party has raised any point regarding the standing of the petitioners and the issue of ‘domestic industry’. Thus, the Authority has considered M/s Andhra Petrochemicals Ltd. to represent the domestic industry within the meaning of Rule 2(b) for the final findings.

a) It has been argued by the Malaysian Government that the information on injury factors submitted does not allow reasonable and meaningful understanding of the magnitude of the injury suffered by the local industry. The NOEF falls short of the standard requirement of Article 6.5.1 of the Anti Dumping Agreement.

b) As regards the arguments made by some of the interested parties regarding non-disclosure of material information by the petitioners, the authority notes that the petitioner had given information relating to injury in the non-confidential version which contain information about imports, sales of petitioner, demand, share of subject countries in imports and in total demand. The petitioner has also given indexed information about installed capacity, production, capacity utilization, domestic sales and closing stock. Information in respect of cost of production, selling price and profit/loss has not been shared by the petitioner. Such information being confidential in nature, the authority considers it to be treated as confidential within Rule 7(1). Therefore, the Authority does not find merit in the arguments put forth by various importers, exporters and Government of the exporting countries regarding non-availability of certain information claimed as confidential by the petitioners.

12. As brought out in the preliminary findings, the Designated Authority sent questionnaires to known exporters of the subject goods in subject countries. Responses were received from the following exporters:

13. The petitioner has made following comments in response to the Disclosure :

1. Dumping margin in respect of some of the exporters have drastically declined apparently on the basis of the information filed subsequent to preliminary findings. Such information has not been disclosed to the petitioner on non-confidential basis. This is in violation of Rule 6 and Principles of Natural Justice.
2. In respect of NBA exports from BASF, the Authority has determined dumping margin by considering the export price of some other exporter as the exporter M/s BASF claims to have not exported NBA during POI. The DGCI&S data shows exports of 261 MT. Apparently, this was not a bulk shipment but a packed shipment. Packing cost constitutes about US$ 125 PMT. Adjustment on this account does not seem to have been made.
3. If BASF do not have knowledge of the ultimate destination of this product, this sale has to be treated as domestic sale of BASF and included within the domestic sales for the purpose of Normal Value determination. Therefore, determination of dumping margin in respect of NBA exported from Malaysia is incorrect on two grounds (a) dumping margin cannot be determined in this case in respect of BASF and (b) packing cost is required to be include in the Normal Value while comparing with the export price or alternatively, the export price is required to be adjusted for the packing cost.
4. In respect of NBA from South Africa, the dumping margin may be reconsidered as the Government of South Africa and the exporter have confirmed that there was no export of NBA from South Africa. NBA from South Africa should have had no dumping margin. However, duty is required to be imposed on NBA from South Africa on the ground that it is Like Article as was done in Oxo I case.
5. In respect of IBA from Singapore, the import appear to be of packed IBA. Therefore, packing cost is required to be reduced from the export price. Dumping margin in respect of IBA from Singapore needs to be reconsidered.
6. Petitioner agrees with the observation of the Designated Authority that dumping margins have been determined only in respect of those types which have been imported in India in the POI. Dumping margin can only be determined in respect of that form of the product which has been imported in the POI. However, anti dumping duty is required to be imposed in all the like forms of the types imported in the POI.

14. The Authority recalls the preliminary findings as regards determination of Normal Value, export price and dumping margin in respect of Brazil. Subsequent to the issue of preliminary findings, M/s Ciquine Cia. Petroquimica S.A., Brazil has informed as under and has given clarifications regarding cost of production, allocation of costs etc.

1. The Brazilian Authority on a public auction sold Ciquine on 8^th May, 2002 and the control of the Company now belongs to Elekeiroz S.A., a Brazilian Public company established in 1894.
2. As regards Normal Value, the exports to India were made by Ciquine through a non-trader named ICC Chemical Corpo ration. During the POI, three lots of alcohol were sold to ICC and to the best of their knowledge were sent to India.
3. In Appendix 3.3, the heading may be read as C&F instead of CIF shown incorrectly as insurance freight is never contracted by Ciquine.
4. The inland freight cost to send the product for exports through two main ports, roughly 30 km away from the plant, is in the range of US$ 3 to 4 PMT. Whereas in the case of domestic sales, the consumers are in the States of Sao Paulo and Rio De Janeiro, roughly 2000 km away from the plant, so the freight in domestic sales is in the range of US$ 50 PMT.
5. Domestic sales of Normal and Iso Butanol were made below cost of production.
6. Ciquine is installed in the middle of one of the biggest Petrochemical Pole of Latin America and all utilities such as steam, water, electrical energy, air etc. are provided by COPENE which is the company that owns the Nafta Cracker, so there are no utility cost allocated to each product.

i) The petition fails to provide sufficient evidence of dumping practices, injury and causal relation and should have been rejected by the Designated Authority.

ii) The methodology to calculate Normal Value on constructed cost of production is not disclosed.

iii) Details of adjustment claimed from CIF export price have not been disclosed.

iv) The margin of dumping determined for exporters does not appear to have taken into consideration the information provided by them to the Designated Authority in the questionnaire. Those margins were established solely on the facts available established by the authority from its own sources. This procedure conflicts with Article 6.8 and Annex II of the WTO agreement which stipulates that if a piece of information provided by one of the parties cannot be utilized, the party should be notified thereof and have the opportunity to present the necessary clarification. The Brazilian exporter, who answered to the questionnaire was not asked to give any additional clarification, thus curtailing his right to respond and defend himself adequately.

v) In the preliminary findings, there was no determination of dumping in respect of Octanol and Iso Butanol, Nonanol and Iso Nonanol. However, anti dumping duty has been recommended on such products. The WTO agreement establishes that provisional measures can only be applied when there is preliminary determination of dumping. Application of such measures without that determination is in violation of the said agreement.

vi) The fact that a negative determination of dumping was attained for Iso Butanol from Singapore and Normal Butanol from South Africa deserves bigger attention. Considering that no recommendation for application of provisional measures was made is relevant for the analysis of injury.

vii) The duty proposed is in the form of specific amount. It is not possible to evaluate the adequacy of such proposed amount, whether it is inferior or superior to the margin of dumping determined by the Designated Authority. The imposition of provisional duties is not in conformity with the disposition of the WTO agreement on anti dumping and should be revoked.

1. As for 2EHA, the Authority proposes to consider profit making domestic sales after excluding loss making sales. Data presented in Annexures 9.2 and 9.3 of the non-confidential version of the Questionnaire indicate that the average price of the like product in the Brazilian internal market was inferior to the average price during the period under investigation.
2. Even so the totality of sales by the Brazilian producer/exporter in the internal market should have been taken into account. This would have been one of the reliable criteria under Article 2.2.1 of the ADA for determining the occurrence of a substantial amount of loss sales.
3. Even if such sales were to be disconsidered, an evaluation should have been made as to the possibility of loss sales enabling a "recovery of all costs within a reasonable period of time".
4. Considering there is no mention in the Report that such an evaluation was made it would not be possible for the Authority to disconsider loss sales let alone the totality of sales by the Brazilian Exporter.
5. Even if the proposed methodology for constructing the Normal Value were in accordance with the dispositions of the ADA, still there should have been a clear statement on how the "reasonable profit margin" was determined, as per Article 2.2.2 of that Agreement.
6. It is also not disclosed which methodology was used for determining the Normal Value for 2EHA. Annexure 9.1 of the non-confidential version of the questionnaire indicates that the average sales cost for the internal market was superior to the average cost of production; no loss sales were determined to have occurred in substantial quantities.
7. Sales under normal conditions of trade should have been considered.
8. The Statement fails to disclose the export prices under consideration, which, again in an unacceptable manner, curtails the exporters’ an producers’ right of defence.
9. Since no margin of dumping was determined for several of the products under investigation and whereas a negative margin of dumping was established for others, such products cannot be subjected to the imposition of anti dumping rights, or the dispositions of the ADA would be breached.

17. The authority notes that the domestic sales of Normal and Iso Butanol of M/s Ciquine were below the cost of production. The information relating to exports to other countries in Appendix 6 and Sale Price Structure in Appendix 10 in respect of NBA and IBA shows that these exports sales were below the cost of production and therefore, cannot be considered in the ordinary course of trade. The authority has, therefore, determined the Normal Value in respect of Normal Butanol and Iso Butanol on the basis of constructed cost of production. While doing so, the authority has considered the information relating to cost of production furnished by the exporter after adding a reasonable profit margin of ***%. The Normal Value for NBA is proposed as $ ***MT and for IBA as $ ***MT. In respect of 2EHA, the Authority notes that ***% of domestic sales are below the cost of production and thereby not in the ordinary course of trade. These non-profitable sales being more than 20% of the total 2EHA domestic sales, the Authority has determined Normal Value on the basis of remaining profit making domestic sales. On the basis of the profit making domestic sales, the Normal Value for 2EHA is determined as $*** MT.

18. The Authority recalls the preliminary findings as regards export price determination. The exporter has subsequently given clarifications about the export price. The Authority has considered the export price as per the sale by M/s Ciquine to ICC. Adjustments shown by exporter on inland freight, storage, taxes, others and overseas freight have been made. Adjustments on account of clearance, handling and port expenses @ 2% of C&F price and on account of 90 days credit @ 4.5% p.a. have been made to arrive at net export price of US$ *** PMT for 2EHA, $ ***PMT for NBA and $ ***PMT for IBA.

MALAYSIA:

19. The response was received only from M/s BASF Petronas Chemicals. The Authority recalls the preliminary findings on Normal Value determination. Following submissions have been made subsequent to preliminary findings :

i) There are only two manufacturers of such products in Malaysia i.e. BASF Petronas Chemicals Sdn. Bhd. (BASF) and Optimal Chemicals (Malaysia) Sdn. Bhd. (Optimal). BASF has submitted that they have not exported other than 2-EHA during the period of investigation. Optimal’s oxo-butanol production commenced commercial operations on 7 April 2002 and that Optimal had not exported any oxo-butanol products to India.

ii) As such the Designated Authority cannot impose anti-dumping duties on products that have not entered into India from Malaysia during the period of investigation. GOM requests that the Designated Authority therefore restrict anti-dumping measures on products originating from Malaysia and that have entered the commerce of India.

iii) No anti dumping measures should be imposed on Octanol and Iso Octanol and Nonanol and Iso Nonanol as there were no exports of these products to India from Malaysia during POI.

iv) BASF’s submission does not merit findings on the basis of facts available as per Article 6.8.

v) The Designated Authority should use the information as submitted by BASF in the export price determination.

vi) BASF was a start up operations for the product under investigation during the period of investigation and BASF has submitted additional information for the Designated Authority’s consideration in the Normal Value determination. The Designated Authority is requested to give due consideration of the requirements of Article 2.2.1.1 and Foot Note 6 to Article 2.2.1.1 of WTO AD Agreement.

1. BPC Oxo Complex started production on 1^st April, 2001. BPC financial start-up, however, was only after completion of our guarantee run of Oxo Alcohols production in July, 2001. Depreciation for example was only started as of July 1, 2001. We strongly request the Designated Authority to consider and observe the special situation of start-up laid down in GATT Anti Dumping Code (Article VI para 2.2.1.1). Start-up of our Oxo Complex was only in last three months of the POI.
2. As regards losses in the Income Statement for the year 31.12.2000, these losses do not result from sales of Oxo products as BPC Oxo complex only started up on April, 2001. Losses resulted from the general start-up of this grass roots site and of the Acrylic Monomers Complex (start-up of both during Q3 2000) in particular. For highly integrated, capital intensive world scale petrochemical sites, losses in the start-up period (upto 2-3 years) are industry norm.
3. As per Indian import statistics 13.6 MT IBA imports were shown originating from Malaysia accounting for less than 1% of the total imports during POI. This satisfies the condition of de-minimus import volume.
4. The Designated Authority used BPC export price to other countries to determine IBA import price into India disregarding the price from Indian DGCI&S. This price determination for above product is inconsistent with Article 2.3 of the WTO Anti Dumping Agreement. Article 2.3 of the Agreement allows the authority to use other methods if there is no export price or the export price is unreliable.
5. As per Malaysian statistics, there were no exports of IBA to India during the POI. This is in contradiction to the Indian statistics that indicate a container shipment of 13.6 MT during POI. Any Iso-Butanol exports of Malaysian origin before BPC start up are impossible since there was no single producer in Malaysia. As the IBA import into India was before April, 2001 and the recording itself erratic in price, we request Designated Authority to reconfirm DGCI&S data and disregard this quantity for Malaysia.
6. The NBA shown in both statistics with different volumes were not of Malaysian origin, but traded volumes Ex-United States – via a Singapore trader. BPC sold these US origin volumes to Allcham, Singapore on FOB basis. These volumes were not reported in our exporter’s questionnaire since these were not of Malaysian origin. We, therefore, request Designated Authority to re-classify these volumes to import from other countries / USA and the investigation against NBA imports of Malaysian origin be terminated.
7. The domestic sales in Malaysia are in the ordinary course of trade because BPC did not sell Oxo alcohols below unit cost of production plus SGA. Actual cost would neither be representative nor are these available as our financial accounting period started from July, 2001 only. The prices for sale in Malaysia shall be used to establish normal value.
8. We request the Authority to take into consideration the following factors that influence prices.

1. Timing of sale and varying prices of raw materials.
2. Different levels of trade – adjustment for sales via traders.
3. Different order volumes – price discount for high volumes.

ix. In response to the Disclosure Statement, BASF Petronas Chemicals (BPC) has requested to fully accept the start up situation as regards the cost of production including the prices of raw material.

22. Subsequent to the preliminary findings, M/s BASF Petronas Chemicals, Malaysia have furnished information in respect of the questionnaire and other information called by the Authority. The Authority also carried on the spot verification of the exporter’s information in Malaysia.

1. The Authority has verified the cost of production of M/s BASF Petronas Chemicals (BPC), Malaysia. The Authority has examined the claim of BPC regarding high start-up cost during the POI in accordance with para 3(ii) of Annexure I of Anti Dumping Rules read with Article 2.2.1.1 and footnote 6 of the Anti dumping Agreement. The Authority has considered the cost of production at the end of the start-up period. However, as regards the price of raw material, the Authority has considered the same on actual basis. In the views of the Authority, the start up operation may have bearing on the consumption factor and not on the rates of the raw materials. Therefore, Authority has considered it to adopt the rates of raw materials as actually paid by the exporter during the POI. As per para 2 of Annexure I of Anti Dumping Rules, the domestic sales to be considered for Normal Value determination should be in the ordinary course of trade. After examination of the claims of the exporter as regards cost of production as above, the Authority finds that the domestic sales of 2EHA are in the ordinary course of trade. Accordingly, the Normal Value for 2EHA has been determined on the basis of weighted average domestic sales price. This gives Normal Value of US$ ***per MT.
2. In respect of IBA, more than ***% of the domestic sales were found to be below cost of production plus selling, administration and general expenses. The Normal Value has, therefore, been determined on the basis of remaining profit making sales of IBA. This gives the Normal Value as US$ *** per MT.
3. There was no domestic sales of Normal Butanol (NBA) during the POI. The Normal Value for NBA has, therefore, been determined on the basis of cost of production plus selling, administration and general expenses plus ***% profit which works out to US$ ***per MT.
4. As regards export price for 2EHA, as per response, M/s BPC has made direct exports of ***MT of 2EHA to India during POI. They have also informed to have sold a parcel to a trader which may have landed in India. The Authority has verified the response received from the importers and has found that substantial quantity of the sales of 2EHA by BPC to the trader has been cleared by the Indian importers. The country of origin of these imports is Malaysia. The trader’s name is the same as informed by BPC. DGCI&S data shows imports of 983.11 MT of 2EHA from Malaysia. Therefore, the Authority has considered the exports made by BPC through trader as BPC exports. The Authority has verified the adjustments from the export price on account of discount/commission, packing, inland freight, overseas freight, insurance, clearance and handling, shipping charges. The Authority has also made adjustments on account of interest cost of $*** as shown on invoices. The Authority has also considered the volume of imports of Malaysia origin as per importer’s response and has made similar adjustments from the export price. However, no adjustment on account of packing has been made as these were bulk imports. The export price for 2EHA is thus determined as US$ ***MT.
5. In respect of IBA, Authority has considered the views of BPC and other interested parties about the export price to be taken. It has been argued by BPC that if the DGCI&S data was deemed correct then in addition to the volume of 13.6 MT, the rate of US$ 1301.20/MT is to be considered. As per BPC and Malaysian Government statistics, there were not exports of Iso Butanol to India during POI. However, the DGCI&S data showed imports under ITC HS Code 2905 1409 of 13,600 kgs for Rs.8,13,136/-. The Authority had sought more details of these imports from DGCI&S who have furnished details of imports. As per the information given by DGCI&S, these imports of 13.6 MT relate to Myristyl Alcohol cleared under ITC-HS 2905 1200 and 2905 1409. The Authority is, therefore, of the view that there were no exports of IBA from Malaysia during POI and therefore, no separate dumping margin for IBA have been determined.
6. As regards NBA, it has been argued by BPC that they did not sell any Malaysian origin N-Butanol during the POI – neither export nor domestic sale. They however, sold NBA ex-USA via a Singapore trader on FOB basis. The Authority, however, finds that the DGCI&S data shows imports of 261 MT for Rs.68,94,932/- of NBA under ITC HS 2905 1300 from Malaysia. The data of Malaysian Government shows exports of NBA of 1992.71 MT during April-June, 2001. This is also corroborated by the information given by BPC. The Authority has thus considered these exports of NBA as those of BPC. The FOB export price as given on the export invoices of BPC have been considered. Adjustments on account of commission, overseas insurance, clearance and handling, surveyor and port charges as per exporter’s records have been made. Further, adjustment of $ ***PMT on account of credit cost for *** days have been made to arrive at net export price of US$***PMT.

1. Their company has co-operated with the Authority during the spot verification that took place in February 2003. The company did their best in making available all requested information.
2. In response to the Disclosure, M/s OLTCHIM has argued that Octanol is also described as 2EH. However, it is different from 2EHA. Dumping margin of 25.97% has been calculated for Romania for 2EH and an identical one for 2EHA. This cannot be accurate since M/s OLTCHIM did not export any 2EHA in India but only 2EH.

1. The Authority recalls the preliminary findings regarding Normal Value determination in respect of Romania. Only one exporter from Romania viz. M/s OLTCHIM had responded to the investigation. As the information furnished by M/s OLTCHIM was grossly deficient, the Authority had determined Normal Value on the basis of the facts available. Subsequent to the preliminary findings, the exporter had furnished more information. The Authority has also conducted spot verification of the data of M/s OLTCHIM, Romania. The Authority finds that the exporter produces Octanol and have also exported Octanol during the POI to India. As regards exporter’s arguments that Octanol is different from 2EHA, the Authority is of the view that for determining the dumping margin comparison of Normal Value and export price of Octanol sold by M/s OLTCHIM has been made. However, Authority’s views on determination on the issue of Like Article are reiterated here where Octanol has been held to be a Like Article to 2EHA. The Authority finds that ***% of domestic sales of the Company are below the cost of production. These non-profitable sales are more than 20% of total domestic sales. The Authority has considered the remaining ***% domestic sales for determining the Normal Value as US$ ***PMT.
2. The Authority has verified the export price of M/s OLTCHIM and the adjustments shown. The credit cost has been taken on the basis of terms of payment and prevailing interest rates. The Authority has determined ex-factory export price as US$*** PMT.

1. Only one exporter from South Africa viz. M/s Sasol Solvents had furnished response regarding their export and domestic sales of Sabutol. The Authority recalls the preliminary findings in respect of Normal Value determination for South Africa. The Authority had provisionally accepted the information furnished by the exporter. The exporter has subsequently furnished the information. The domestic industry does not produce Sabutol. The Authority has determined Normal Value on the domestic sales price in South Africa.
2. The export price in respect of Sabutol has been determined on the basis of exporter’s data. Adjustments on account of packing, inland freight, storage, handling/surveyor, demurrage, ocean freight have been made as per exporter’s information. Adjustments on account of commission and credit cost for 90 days has been made. The net export price has been determined as US$ *** PMT.

26. The exporter had made further submissions on the Disclosure Statement as under :

i) The Authority must determine a dumping margin, either directly or through a constructed Normal Value prior to imposing any duty. The very fact that this is not being done is contravention of the law.

ii)    Prior to imposition of anti dumping duty on any product, there necessarily must be exports. IBA was not exported from South Africa during the POI This has been confirmed by Dept. of Trade and Industry in South Africa. Therefore, IBA from South Africa must be out of the purview of this investigation.

27. The Authority recalls the preliminary findings regarding Normal Value determination in respect of NBA and IBA from South Africa. As per a letter furnished by the South African High Commission, New Delhi, it has been informed that according to Board of Tariffs and Trade, Government of South Africa, there have been no exports of Octanol and Iso Octanol, Nonanol and Iso Nonanol, 2EHA and IBA during the POI. The Authority, however, notes that as per DGCI&S data, exports of NBA and IBA were reported under ITC HS Classification 2905 1300 and 2905 1409. The Authority thus confirms the Normal Value determination on the basis of facts available i.e. constructed cost of production furnished by the petitioner. As regards export price, the Authority has to rely on the DGCI&S data and the Authority confirms the preliminary findings for export price of NBA and IBA. Any new exporter or those exporters who have not exported the subject goods during the period of investigation can seek review under Rule 22.

28. The Authority recalls its preliminary findings as regards Normal Value determination for Singapore. None of the exporters from Singapore had furnished any response to the questionnaire. Subsequent to the preliminary findings M/s Exxon Mobil Chemical International Services Ltd. (EMCIS), Singapore have offered following views :

1. EMCIS has not exported the product under consideration to India during the POI. Exports of 2EHA were done by M/s Eastman from Singapore. The INA plant of EMCIS was set up on or around June/July 2001. The POI in this investigation is from 1^st April, 2000 to 30^th June, 2001.
2. There is no basis in law to impose anti dumping duty on items which have not been exported to India during the POI.
3. These submissions are without prejudice to the rights of M/s EMCIS to seek a new shipper review under Rule 22 of the Anti Dumping Rules.
4. In the oxo alcohols Case-I, the authority did not recommend duty on INA from EU on the basis that it was not like article to the 2EHA. To impose anti dumping duty now on the basis that INA from Singapore is like article to 2EHA is illegal and not permissible.
5. The authority may pass orders that result in the removal of provisional duties imposed on imports of INA from Singapore.

The Authority notes that the DGCI&S data shows exports of NBA, IBA and 2EHA from Singapore. The Authority finds from the response received from importers that NBA and 2EHA of Singapore origin has been imported during the POI. In the preliminary findings, the authority had determined dumping margin in respect of NBA and 2EHA. The dumping margin in respect of IBA was negative. M/s Exxon Mobil has argued that Authority has not disclosed how Normal Value has been calculated for NBA, IBA and 2EHA for Singapore. Further, the Authority must determine a dumping margin either directly or through constructed Normal Value prior to imposing any duty. The Authority recalls its preliminary findings as regards Normal Value determination for Singapore. Under para 11 part F of Preliminary Findings, the Authority had stated that it had considered the evidence as furnished by the petitioner for constructing the Normal Value. As there is no fresh evidence as regards Normal Value and Export Price from Singapore, the Authority confirms the Normal Value, export price and dumping margin as per the preliminary findings. Any new exporter or those exporters who have not exported the subject goods during the period of investigation can seek review under Rule 22.

29. In respect of other non-cooperative exporters, the Authority has determined Normal Value for 2EHA based on evidence of domestic sales price of co-operative exporter without allowing any adjustments. Export price as per co-operative exporter has been adopted. Dumping margin determined is 30.88%.

In respect of NBA, the Normal Value as determined for co-operative exporter has been adopted. The export price as per DGCI&S data has been adopted. Dumping margin of 47.45% has been determined.

In respect of IBA, the Normal Value as determined for co-operative exporter has been adopted. Export price as per co-operative exporter has been adopted. Dumping margin determined is 31.28%.

30. In respect of other non-cooperative exporters, the Authority has adopted Normal Value for 2EHA as determined for co-operative exporter. Lowest export price as per evidence available has been adopted. Dumping margin of 16.23% ha been determined.

In respect of NBA, the Normal Value as determined for co-operative exporter has been adopted. The lowest export price as per co-operative exporter’s information has been adopted. Dumping margin of ***% has been determined.

In respect of IBA, the Normal Value as determined for co-operative exporter has been adopted. No evidence regarding Export price was available. The Authority has not determined separate dumping margin for IBA.

31. In respect of other non-cooperative exporters, the Authority has determined Normal Value of Octanol based on evidence of highest domestic sales price of co-operative exporter. Export price as per co-operative exporter has been adopted. Dumping margin of 43.11% has been determined.

32. In respect of other non-cooperative exporters, the Authority has adopted the Normal Value for Sabutol as determined for co-operative exporter. Lowest export price as per co-operative exporter has been adopted. Dumping margin of 29.36% has been determined..

33.   The Authority followed the consistent practice of adopting the principles governing the determination of Normal Value, Export Price and Margin of Dumping as laid down in Annexure I to the anti-dumping rules. Dumping margins have been determined on the basis of a fair comparison of Export Price with the Normal Value in pursuance of the principle laid down in Para 6 of Annexure-1 to the Rules. The comparison is at the same level of trade, i.e. Ex-factory level. The Authority has also taken note of the arguments of some of the interested parties as regards comparison of Sabutol with NBA/IBA and proper allowance to be given. The Authority has compared the Normal Value and export price of Sabutol as per the information given by the exporter. Based on the Normal Value and export price as above, the Authority has determined the following dumping margins (%):

*De- Minimus dumping Margin

34. Rule 11 of Anti Dumping Rules reads as follows:

"Determination of Injury:

(1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry or materially retards the establishment of any industry in India;

(2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules."

35. The principles for determination of injury set out in Annexure-II of the Anti- Dumping Rules lay down that:

1. A determination of injury shall involve an objective examination of both (a) the volume of dumped imports and the effect of the dumped imports on prices in the domestic market for like article and (b) the consequent impact of these imports on domestic producers of such products.
2. While examining the volume of dumped imports, the said Authority shall consider whether there has been a significant increase in the dumped imports, either in absolute terms or relative to production or consumption in India. With regard to the effect of the dumped imports on prices as referred to in sub-rule (2) of Rule 18 the Designated Authority shall consider whether there has been a significant price under-cutting by the dumped imports as compared with the price of like product in India, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increase which otherwise would have occurred to a significant degree.

36. Views of Domestic Industry:

        The petitioner has reiterated their views on injury made at the time of Preliminary Findings. They have made following submissions :