The High Court has upheld the decision by the International Trade Administration Commission (Itac) to increase the imposition of antidumping duties from 8% to 40% on Indian chemical company Tata Chemicals’ importation of disodium carbonate, also known as soda ash, from the US.
The matter was heard by the High Court on January 31, wherein an application for review by Tata Chemicals was dismissed and Itac and other respondents were awarded a cost order.
In the underlying sunset review investigation, Itac was required to determine whether the expiry of antidumping duties that had been imposed on imports of soda ash would likely result in economic harm to Southern African Customs Union-based producer of the same product, Botswana Ash.
After a lengthy investigation, Itac determined, based on the facts before it, that the expiry of the duties would likely result in injury to Botswana Ash. However, Tata Chemicals chose not to participate in the sunset review investigation and therefore did not provide information to allow Itac to calculate a specific duty for the company.
As a result, Itac recommended the termination of the previously implemented company-specific antidumping duty of 8% that had applied to Tata Chemicals and that a duty of 40% be applied as would be standard for all imports of soda ash from the US.
Tata Chemicals thereafter challenged Itac’s decision on three grounds.
Tata Chemicals argued, firstly, that Itac had started the sunset review investigation too late, meaning only after the duties had allegedly already expired.
Secondly, Tata Chemicals said there were insufficient facts for Itac to conclude that the expiry of the antidumping duties would likely result in injury to Botswana Ash.
Thirdly, Tata Chemicals also argued that imposing a higher duty of 40% on its imports instead of the 8% that had been imposed originally was fatally flawed because the antidumping regulations that governed Itac’s sunset review investigation did not allow Itac to increase duties.
In rejecting Tata Chemicals’ arguments, the High Court found that Itac had conducted a proper investigation, aligned with the facts before it and in accordance with the antidumping regulations that governed its investigation.
A significant consideration in the High Court’s decision was the failure of Tata Chemicals to actively participate in the sunset review investigation, unlike its participation in the original investigation.
The court noted that the antidumping regulations specifically provided that, where a foreign producer fails to cooperate in an investigation by providing required information, Itac could rely on other facts in reaching its final decision. In this case, the facts presented by Botswana Ash were the only facts that Itac could consider.
Finally, the court also upheld Itac’s interpretation of the antidumping regulations, specifically in relation to whether Itac could increase the level of antidumping duties in a sunset review investigation and at what point in time Itac had to begin a sunset review investigation.