Commission Implementing Regulation (EU) 2023/2605 of 22 November 2023 amending Implementation Regulation (EU) 2022/926 imposing a definitive anti-dumping duty on imports of tubes and pipes of ductile cast iron (also known as spheroidal graphite cast iron) originating in India, following a partial interim review pursuant to Article 11(3) of Regulation (EU) 2016/1036 of the European Parliament and of the Council

• (137) ECL argued that if the Commission had doubts on the reliability of the metal weight reported by ECL (which ECL disagrees with), it should nevertheless use the domestic and Union sales data reported in terms of the CML weights (based on appropriately adjusted Kanta weights) or meters. It argued that the data in CML weights and meters was timely and appropriately submitted on a transaction specific basis, and that it was also verified by the Commission, and that it therefore could be used without undue difficulties.

• (138) ECL considered that it fully cooperated to the best of its ability with the Commission. Since 2014, it was subject to multiple investigations, and in each investigation, it provided all information in a timely manner and cooperated to the best of its ability. The Commission never found problems with ECL’s data.

• (139) With regard to the current investigation, ECL informed the Commission of the impending ECL-SPL merger in a spirit of transparency and complete disclosure to avoid any allegations that ECL did not provide complete information. However, according to ECL, this interim review was unnecessary.

• (140) As explained above in recitals (74) to (136), the Commission could not rely on information with regard to the net metal weight reported by ECL. The incorrect reporting of the weights across the submitted information had as a consequence that the data could neither be used nor corrected. In particular, the Commission could not establish what information was correct and could thus be used as a basis for correction or adjustment.

• (141) In relation to the gross metal weight, the information ²⁴ submitted by ECL showed that the CML weight for domestic sales exceeded the total Kanta weight by [0-10 %], which in addition included the packaging. No plausible explanation was provided for the difference, which puts in doubt the credibility of the gross weight reported on the domestic market.

• (142) The difference established by the Commission was linked to two parameters – net/gross metal weight, and length. The discrepancies it found had to be caused by misreporting of – at least – one of these two parameters. The misreporting of the weight could also be caused by misreporting the length that was exported, because the weight is expressed as kg/meter. Therefore, the Commission could not conclude that ECL had reported the length correctly.

• (143) The Commission thus concluded that alternative calculations based on the different unit of measurements could not be carried out, and in addition, that such information submitted after the verification process could not be verified.

• (144) Furthermore, the fact that ECL cooperated in several investigations since 2014 and that ECL’s data was always accepted does not guarantee that the data submitted in the present investigation is automatically reliable.

• (145) In relation to the argument that the present partial interim review was unnecessary, the Commission refers to the explanations provided in Sections 1.2 and 3.1 above. The ECL-SPL merger affected sales and cost data relevant for the calculation of the dumping margin and constituted a change on a lasting basis. The Commission thus considered that the ECL-SPL merger met the legal conditions of Article 11(3) of the basic anti-dumping Regulation.

3.4.1.6.   Manner of applying facts available

• (146) ECL also complained about the manner of the application of the facts available. It summarized the steps and dates of the different requests by the Commission, and it pointed out that it received the Article 18 letter only on 11 July 2023. It also considered that it was not informed ‘forthwith’ (within the meaning of paragraph 6 of Annex II to the ADA) of the reasons for the possible rejection of its metal weight data and was not provided the opportunity to present further explanations during the verification process. It also considered that it had not enough time to comment on Article 18 findings and that the extension of 3 days to provide comments did not suffice.

• (147) The Commission considered that data relating to determination of weight were extensively discussed during the verification visit, where the Commission collected a considerable amount of evidence. Indeed, it was only after the on-the-spot verification visit of the exporting producer, when it received from ECL the complete set of data with regard the alternative units of measurement, that the Commission was able to make an analysis and to establish the seriousness and the impact of the inconsistency, since the original submission of ECL mainly contained data based on net metal weight.

• (148) The Commission further considered that it granted enough time to ECL to provide explanations, to submit additional data, and to comment on its findings. The Commission requested the explanations already on 29 June 2023. Additionally, it informed ECL about its doubts with regard the reliability of the data on 5 July 2023, the last date of the remote verification with the related company to which the representative of the exporting producer based in Kolkata assisted. Subsequently, considering the extension to provide the reply, ECL had 14 days to comment on the Article 18 letter sent on 10 July 2023. In addition, on 26 July 2023, the Commission held an extensive hearing with ECL. Lastly, an additional opportunity to provide comments was provided at the moment of disclosure of the preliminary findings.

3.4.1.7.   Conclusion

• (149) In view of the substantive evidence detailed above in Section 3, the Commission considered that ECL provided misleading or false information to underestimate the net metal weight used to calculate its dumping margin, in order to lower it.

3.5.   Comments submitted after disclosure

3.5.1.   Comments by ECL

• (150) After disclosure, ECL submitted that the application of facts available by the Commission was based on a manifest error of the appraisal of the facts, and on assumptions and deductive reasoning in the absence of factual evidence.

• (151) ECL contested that there was an intentional misreporting of the net metal weight to lower the dumping margin. It emphasised that there was no attempt whatsoever to provide false, incorrect or misleading information, and that ECL had a reputation in the Indian, Union, and the global market that it would not put at risk.

• (152) It reiterated that the Commission verified the information related to costs and that it reconciled it with the trial balance and accounts of the company. Therefore, in its view, the production costs were satisfactorily verified.

• (153) Both ECL and the GOI argued that the Commission made erroneous calculations and that underreporting the net metal weight would not change the dumping margin. They provided calculations showing that if the net metal weight was underreported to determine both the export price and the normal value, the resulting dumping margin remained unchanged. On that basis, both ECL and the GOI considered that the statements about the misreporting by ECL to reduce the dumping margin were not correct.

• (154) The Commission referred to the findings disclosed to parties in the Article 18 letter and in Section 3.2 above. It pointed out that its findings concerned the data provided to establish the export price. It was not established that the same underreporting of the net metal weight ‘error’ occurred on both sides, i.e. on the side of the export price and of the normal value, in which case the impact would be offset. On the contrary, by underreporting the net metal weight on one of the two sides of the calculation, ECL would unduly underestimate the dumping margin, as explained in recital (39) of the general disclosure document.

• (155) The Commission pointed out nevertheless that its assessment, and in particular the discrepancies found between the total weight of the domestically sold and the exported products, aimed at demonstrating that the submitted data could not be correct. However, based on the information at its disposal, the Commission could not conclude whether the discrepancies found were caused by the incorrect reporting of the net metal weight, of the gross weight or of the length of the pipes.

3.5.1.1.   Lack of objectivity and absence of evidence, alternative methods to establish the dumping margin

• (156) After disclosure, ECL referred to the method of the Commission to conclude on the inaccuracy of the data provided by the company. It pointed out that the Commission had used the CML weight to establish the difference in weights between the products sold on the export and domestic market. ECL argued that in its conclusions on the possible use of alternative data, the Commission considered that the CML weight may not have been correct. Because of this conclusion, ECL considered that the Commission could not use the CML weight to conclude on the inaccuracy of the net metal weight. Therefore, in its view, the Commission had no basis to insist that the reported net metal weight was incorrect.

• (157) The Commission disagreed with the argument that, because the CML weight was used to demonstrate the discrepancies in ECL’s data, and because the Commission had at the same time doubts about its correctness, this meant that there was no basis to establish that the data (the net metal weight) was not reported correctly. The comparison made by the Commission was only to demonstrate, as explained at length in Section 3.2, that the data submitted by ECL could not be correct.

• (158) The Commission considered that the fact that it had doubts on any of the reported weight but could not conclude which of the data was correct or incorrect, did not put in question its conclusion, but that it rather showed that in the absence of reliable data, no alternative method to calculate the dumping margin existed. Since it had justified doubts that the net metal weight, gross weight, and/or length were correctly reported, it could not use any of them as a basis for calculations.

• (159) ECL further submitted that the Commission did not consider using as an alternative the nominal (theoretical) weight of the pipes or the length. It also considered that the reported length could not be wrong.

• (160) The Commission reiterated that its analysis was based on a weight per meter basis. The difference established by the Commission was thus linked to two parameters – net or gross metal weight, and the length. The discrepancies it found had to be caused by misreporting one of these two parameters. The misreporting of the weight could also have been caused by misreporting the lengths that were exported, because the weight was expressed in kg/meter Therefore, if the nominal weight was to be used, it would have to be expressed in meters. Since the Commission could not conclude that ECL had reported the lengths correctly, using the nominal weight would not guarantee a correct determination of the export price.

• (161) The Commission thus reiterated its conclusion that alternative calculations based on the different unit of measurement could not be carried out, and in addition, that a new information submitted after the verification process could not be verified.

3.5.1.2.   Actual cement lining versus nominal cement lining on the export market

• (162) ECL also considered that the Commission did not provide empirical evidence to show that a higher cement lining for export sales was not scientifically possible, and that it did not exist. In support to this claim ECL submitted reports by a Baillif proving that the cement lining was thicker than the nominal thickness for pipes that were delivered, in the RIP, to its French and Italian subsidiaries. In addition, ECL also made test reports available for pipes produced by SG PAM.

• (163) The reports for the French and Italian subsidiaries showed that for pipes of several diameters that have nominal thickness of 4 mm, the actual thickness varied, was up to [80-100 %] higher than the nominal thickness. Based on the reports, ECL argued that that the actual cement lining thickness could be routinely higher than the nominal cement lining thickness, and that therefore, there was no reason to conclude that the [35-70 %] higher cement lining mentioned by the Commission in recital (95) of the general disclosure document was not plausible.

• (164) The Commission took note of the reports submitted by ECL. The reports indeed demonstrated that the actual thickness deviated from the nominal cement lining thickness for the pipes examined, and that it was higher than the nominal thickness. However, the Commission considered that a comparison should have been made for both domestic and export sales, while, as detailed in recital (95) and (99) of the general disclosure document, on the domestic market, the weighted average variance between actual and nominal weight was around [0-3 %], compared to in average [0-10 %] (and up to [15-30 %] in some cases) in case of exports. As explained in recitals (96) to (104) of the general disclosure document, the Commission considered this difference unfounded.

3.5.1.3.   Manifest error in the appraisal of the facts and misapplication of Article 18(1) of the basic anti-dumping Regulation

• (165) ECL also considered that the Commission made a manifest error in the appraisal of the facts as regards the net metal weight and that it misapplied Article 18(1) of the basic anti-dumping Regulation.

• (166) First, it argued that the Commission misunderstood that ECL sampled pipes from every order and that the sampled pipes were weighed (recital (40) of the general disclosure document). ECL mentioned that pipes were only tested for thickness. It also mentioned that the production was recorded in metres, and that the SAP accounting system automatically converted the meters into metal weight. It argued that there was no human intervention of any kind. ECL also mentioned that the weight which is then used is a standard weight, and that this practice of using the standard weight was common in the industry.

• (167) In the Commission’s view, the argument that ECL did not weigh sampled pipes contradicted the information it received during the verification visit. The information that the sampled pipes were weighed was also mentioned in the mission report that was sent to ECL to check its accuracy. ECL commented on a number of issues, but it did not submit any comment with regard to the understanding of the Commission regarding the weighing of the pipes.

• (168) The Commission also found that it was the first time that ECL submitted that the production was actually reported in metres and that the SAP system converted the length of pipes into weight. This allegedly, divergent information submitted only after the verification process, together with the fact that pipes were actually not weighed throughout the production process, only strengthened the Commission’s doubts that ECL reported the weights correctly.

3.5.1.4.   The Commission made erroneous comparisons and calculations

• (169) ECL reiterated that the comparison between all pipes sold on the domestic market and all pipes sold on the export market was based on a different product mix and that it was therefore irrelevant.

• (170) The Commission recalled that the comparison made for all the products was indeed based on a different product mix but the result confirmed findings for the nearly identical (as well as for the not directly comparable) products.

• (171) For the not directly comparable products, ECL found that the method of the Commission to calculate the difference of weight of the cement lining for the domestically sold and exported products was not correct. With regard the nearly identical products, ECL referred to its comments and calculations submitted in reaction to the Article 18 letter and summarised in Section 3.4 above. It argued additionally that the differences should be expressed on the CML weight and that therefore, they were lower. ECL also argued that for some specific product types, the difference that the Commission had found was minimal, or that it represented a small portion of the exports. It also argued that the differences for some specific product types were low or that they only concerned a small volume of exports.

• (172) ECL also did not agree with the Commission’s conclusion on moisture. It provided new calculations that, in its view, took into account the presence of moisture in the domestically sold pipes, that should be taken into account when making the comparison with the export market.

• (173) For both the nearly identical and the non-comparable products, the Commission observed that ECL did not bring any additional evidence demonstrating that the Commission’s calculations were not correct.

• (174) The Commission also considered that its method to express the percentage difference on the proportion of the net metal weight was correct, and that there was no rational to express the difference on basis of the CML. The net metal weight was similar on both the export and the domestic sides, and therefore, the percentage comparison was to demonstrate that the CML weight was different for export as compared to the domestic sales.

• (175) With regard the comparison made for the specific product types, the Commission agreed that indeed there were product types where the difference was low, or the export volume was low. However, on a weighted average basis, the difference was still [0-10 %].

• (176) With regard the moisture content, the Commission took note of the arguments of ECL. It disagreed that the moisture content influenced the weight of the domestically sold pipes. Even if it did, the differences would, according to ECL’s own calculations remain significant.

3.5.1.5.   Data based on the SAP system and independent inspection company reports

• (177) ECL further reiterated its arguments related to the fact that data came from the SAP system, and that it was therefore correct. It repeated that the net metal weight was mentioned on the export packing list, and that it was the case even before the 2014 case started.

• (178) With regard to tests of the metal weight by an independent inspection company, ECL argued now that they appeared not to be correct because the total weight of the tested pipes recorded by the independent inspection company exceeded the calculated metal thickness converted into weight, plus the cement lining weight. According to ECL, this was because the metal thickness was likely measured at the extremities of the pipes where they are thicker. Therefore, it was not correct.

• (179) ECL repeatedly claimed that the cement lining was different for the export and domestic market, and that the SAP system differentiated between the pipes depending on their specifications.

• (180) The Commission referred to its conclusions in Section 3.4. It considered that ECL did not bring additional evidence that would support its claim that the data was correctly reported. With regard the report of an independent inspection company, which was, according to ECL, incorrect in terms of the metal weight, the Commission considered that indeed the same (erroneous) measurement could have been done for the cement lining. It therefore considered that it could not be used by ECL to make any conclusive argument with regard the cement lining weight either.

3.5.1.6.   The facts available should not be punitive and most appropriate facts should be used

• (181) ECL argued that even if the net metal weight data contained certain deficiencies according to the Commission, those were not in any event of such a nature or magnitude as to have created an undue difficulty for the Commission to reach reasonably accurate conclusions regarding the normal value and export prices. It further argued that the Commission did not find inconsistencies in the sales value data, the production costs, and all other financial data of the company. ECL considered that (a) the refusal to use the three alternatives proposed by the company for the volume quantification which was the most appropriate and fitting information to replace the net metal weight, and (b) the complete rejection of ECL’s data for the dumping margin calculation and subjecting it to the residual dumping margin of 19 %, calculated for Jindal Saw in the investigation in 2015, for an almost 8 to 9-year old investigation period, were punitive, disproportional and discriminatory, insufficiently reasoned and in breach of several provisions of Article 18 of the basic anti-dumping Regulation and Annex II to the ADA, as discussed below.

• (182) ECL reiterated that an alternative method to make calculations could be used, and that the Commission should not reject all the information provided by ECL but that it should use the facts available that could reasonably replace the incorrect information. ECL repeated that the Commission could use the length, the gross/Kanta weight or the CML weight, or nominal metal weight.

• (183) ECL considered that the rejection of ECL’s entire data and the use of the 19 % dumping margin were highly punitive. They considered that ECL cooperated to the best of its ability and its cooperation far exceeded what was normally requested from and provided in a standard anti-dumping investigation. Therefore, the Commission infringed, in their view, the principle of proportionality. It gave examples of investigations where the Commission did not reject the entire data but replaced the information, or used the data provided by the exporting producer.

• (184) The Commission considered that the submission by ECL did not contain additional evidence that could lead to a change in its conclusion. The issues argued by ECL were already extensively addressed by the Commission during the investigation and in the general disclosure document. The claim regarding the use of the appropriate ‘facts available’ is addressed under Section 4 below.

3.5.1.7.   Procedural issues

• (185) ECL considered that it was not informed forthwith of the Commission’s decision and the reasons to reject the entirety of its data. By failing to inform it forthwith of the rejection of all of its data and not only the volume quantification in net metal weight, and by not granting ECL an opportunity to provide further explanations in this regard, the Commission made a manifest error in the application of Article 18 and violated 18(4) of the anti-dumping Regulation and paragraph 6 of Annex II to the ADA. ECL considered that it was only through the general disclosure document that ECL became aware of the Commission’s decision to reject all its data and even then, the general disclosure document did not explain why all of the data was being rejected.

• (186) ECL referred to the Article 18 letter where the Commission, in its view, only intended to reject the volume quantification. Additionally, it referred to a Panel Report in Mexico – Steel Pipes and Tubes mentioning that the use of facts available required not ‘a general statement of the possibility that facts available could be used […], but rather an affirmative and direct notification to the party concerned that in the particular case a decision has been made to reject its information, along with a statement of the reasons for that decision’ ²⁵.

• (187) The Commission disagreed. It considered that in accordance with Article 18(4) of the basic anti-dumping Regulation, it informed ECL in details about its findings, and it granted it an opportunity to provide further explanations. As explained in Section 3.4, the Commission found these explanations unsatisfactory, and it also provided the reasons in detail.

• (188) The Commission also disagreed that the information it provided in the Article 18 letter was a general statement, to the opposite, the Commission had informed the applicant of the inconsistencies it found even before sending the Article 18 letter, which was also accompanied by very detailed calculations and justifications. The Article 18 letter clearly stated that ‘the discrepancies in question put in doubt the reliability of the data provided by ECL’, and that consequently, the Commission intended to reject the information relating to the quantification in volume of the entire product under review produced and sold by ECL. The word ‘intended’ was used since ECL and other parties were still given the possibility to comment, after which the Commission would decide on the rejection.

• (189) As explained in detail in Section 3.2 above, the quantification (value per unit) is used both to establish the export price and the normal value. The Commission thus disagreed that the Article 18 letter did not clearly mention that all data could be rejected.

3.5.2.   Comments by the GOI

• (190) Apart from the comments supporting ECL’s request for withdrawal, the GOI referred to findings of the Commission in the general disclosure document. It defended that ECL provided correct information, that the information recorded in the company’s SAP system was correct, and that it should not be subject to the residual duty of 19 %.

• (191) The Commission took note of the comment. It considered that the issues raised by the GOI were already addressed in the general disclosure document.

3.5.3.   Comments by SG PAM

• (192) SG PAM considered that ECL had a long story of failing to adequately cooperate in trade defence investigations, and it referred to investigations in 2020 and 2021 that were terminated.

• (193) In SG PAM’s view, the inability of ECL to provide substantiated information on the actual thickness of cement mortar lining of the pipes meant that the differences (between export and domestic market) did not exist. In its view, there was no reason that would require ECL to differentiate the internal cement mortar lining of its pipes depending on the market. It argued that the minimum cement mortar lining thickness according to the applicable EU norms was 2,5 mm (4 mm with a negative tolerance of 1,5 mm). Therefore, it agreed with the Commission conclusions that the 3,5 mm thickness reported by ECL in its Indian catalogue fell within the tolerance in thickness for both the Union and Indian standards.

• (194) In addition, it had doubts that the production process was differentiated according to the market of destination of the product, regardless of the existence of different standards. In its view, ECL could simply relabel and sell on the Union market pipes produced under the Indian norms within the tolerances of the EU norms.

• (195) SG PAM also considered the ECL’s claim that it did not monitor systematically the metal weight of its products and relied on estimates as unconvincing. Metal is the main cost driver for pipes, and it is a key factor for performance and pricing of producers of ductile iron pipes. It considered that the inability to control precisely metal weight was even more surprising because on the Union market, where ECL operates, it is particularly exposed to considerations of resource and energy efficiency as actors strive to minimise the environmental footprint of public-funded projects in line the European green deal. In SG PAM’s view, the use of standard unverified values in ECL’s financial records further reinforced the existing doubts on the faithfulness of the dataset used to complete ECL’s questionnaire.

• (196) SG PAM further submitted that in view of the current findings, the Commission should verify the previous responses of ECL, since the Commission used the same methodology as in the current investigation and since ECL could also have manipulated data in the previous investigations.

• (197) The Commission disagreed that the findings in the current investigation justified verifying data of ECL or of other parties and that the current findings could be retroactively extended to other investigation periods. The conclusions it made in this investigation were based to the data submitted in the current expiry review and related to the review investigation period. It thus rejected the claim.

• (198) After disclosure, SG PAM requested the Commission to register the imports of ECL to retroactively collect the duties, since it considered that ECL was likely to increase its shipments to constitute substantial stock. It considered that such a registration was in line with the Commission’s recent practice.

• (199) The Commission examined the request. It considered that no element in the file showed that imports would significantly increase and that there was a significant risk of sudden inflow of imports. It therefore rejected the request.

3.5.4.   Comments by distributors

• (200) The Commission also received comments from distributors on the Union market of ductile pipes produced by ECL – companies Valdro, Fusion Pipeline Products Limited (‘Fusion Pipelines Products’), CO.ME.CAR SRL, Deschacht, Idrovit SRL, Vodoskok d.d., and WAPPtech Ltd.

• (201) All the companies underlined the importance of a presence of ECL on the Union market and their economic dependence on its business.

• (202) Valdro considered that without ECL in the market, there would be no competition and that ECL did not engage in market distorting practices. It further mentioned that its main business activity was sales of ductile pipes, which accounted for the majority of the company’s earnings, and should the business be shut down, it would result in job losses.

• (203) Fusion Pipeline Products also mentioned that a significant part of its business depended on ECL, and that the Commission should take a decision that would preserve the competition on the Union market and avoid monopolies.

• (204) Deschacht argued, inter alia, that SG PAM imposed exclusive purchasing requirements and refused to sell to them. It stressed the importance of a competitive alternative source of supply on the Belgian market. In its view, SG PAM had no competitors, it increased prices to an extent that distributors could not sell and the contractors and water companies were held hostage and had to pay unreasonably high prices which affected projects and penalised Belgian and European consumers and the economical actors on the market. Therefore, in its view, the current duty level applied to ECL should not be increased.

• (205) IBECO AB mentioned that it was, in its view, important that ECL remained on the Union market. It mentioned that the market in Scandinavia was controlled by Saint Gobain, from production to wholesales through its distributor.

• (206) The Commission also received comments from ANCO Sardegna, the regional branch of the National Association of the Italian Construction Enterprises. It considered that there would be a serious problem of competition on the EU market in the sector of ductile iron pipes if this Indian producer is unable to sell in the EU as result of the review, and this would negatively impact many companies.

• (207) Though the comments made by the distributors were not substantiated, they were considered by the Commission.

3.5.5.   Conclusion

• (208) The Commission reviewed in detail all the arguments of the parties and evidence in the file. It maintained its view that ECL provided misleading or false information to underestimate the net metal weight to be used to calculate its dumping margin, in order to lower it, within the meaning of with Article 18(1), second subparagraph of the basic anti-dumping Regulation. Therefore, the data could not be used as a basis to calculate a new dumping margin for the company. As explained in Section 3, the alternative data that ECL proposed could not be used either.

• (209) In view of above the Commission had no other option than to disregard the information provided by ECL in its totality and to resort to facts available to make its final findings on dumping as regards ECL.

3.6.   Facts available

• (210) In the absence of available record data for the calculation of the dumping margin, the Commission sought to identify the most appropriate information available in the case at hand. In this respect, the Commission considered that the use of the highest dumping margin of 19 % established in the original investigation could be appropriate, because it was calculated in the original investigation period based on the data of a cooperating exporting producer which exported significant quantities of similar product types to the Union as ECL.

• (211) After disclosure, ECL submitted that the application of a 19 % dumping margin was punitive, and that it was inconsistent with Article 18(5) of the basic anti-dumping Regulation. It considered that the facts available should be the ‘most fitting’ or the ‘most appropriate’ available in the case at hand, which required a comparative assessment and that there must be a ‘logical relationship’ between the replacement facts and the facts on the record.

• (212) On this basis, ECL argued that the application of a 19 % dumping margin calculated almost 8 years ago for another exporting producer was certainly not the most fitting or appropriate fact in the present context and that it had no logical relationship to ECL’s situation. It pointed out that in the original investigation, while the 19 % dumping margin was calculated for Jindal Saw, ECL’s dumping margin was only 4,1 %.

• (213) ECL argued additionally that in the present case, the data submitted and verified by the Commission showed that compared to ECL’s cost of production/domestic sales, the sales prices in the Union were significantly higher. ECL argued that it monitored its prices and costs to ensure that there was no dumping. Thus, any dumping margin calculation made on the basis of ECL’s own data using any of the volume quantification alternatives suggested by ECL could never result in a 19 % dumping margin.

• (214) Hence, ECL indicated that using the 19 % dumping margin of Jindal Saw was manifestly inappropriate and punitive. ECL further submitted that if the Commission did not accept the request for withdrawal or arguments on the facts available, it could use determinations of the expiry review concluded in 2020, which was more recent than the original investigation data and where the Commission calculated a dumping margin of 12 %.

• (215) The Commission reassessed its proposal to use as facts available the residual dumping margin of the original investigation. It considered that the request of ECL to base its findings on a more recent facts available was justified – the original investigation period was 1 October 2013 to 30 September 2014 and therefore the data was more than 8 years old.

• (216) In addition, the Commission considered that the margin established in the expiry review was only indicative, and that it was mainly used to determine whether in the expiry review RIP, the exporting producers continued to export at dumped prices in the context of full non-cooperation by the latter. Additionally, the statistical export prices did not necessarily constitute prices to independent customers as the large majority of non-cooperating exporting producers sold via related importers in the Union.

• (217) In view of the above, the Commission decided to use as facts available the statistics reflecting exactly the RIP of the investigation at hand. Consequently, the Commission used the export price reported in the 14(6) database ²⁶, concerning solely of sales of ECL during the current RIP. The Commission then brought the price to an ex-works level and adjusted for the fact that the prices were mostly between related parties.

• (218) Furthermore, in the absence of any other more recent and reliable data, the Commission determined the normal value based on data provided by the Union industry in the expiry review request. It was determined based on prices offered, agreed and paid for multiple quantities, diameters and types of the product concerned in several different States and municipalities. Since the normal value was based on 2020 data, the Commission adjusted the normal value determined by the industry in the expiry review for the inflation between the expiry review and the current partial interim review investigation period.

• (219) The Commission made the comparison between the export price determined based on the statistical data in the RIP, adjusted as described above, with the normal value determined in the expiry review determined by the Union industry, adjusted by inflation.

• (220) On this basis, the Commission established the dumping margin at 12,89 %.

• (221) After the second disclosure of the findings with regard the use of facts available (Section 3.6), ECL commented on the method used by the Commission to adjust the normal value for inflation. It argued that the Commission should base its calculation of the inflation on the Consumer Price Index (‘CPI’), rather than on a percentage increase of inflation as suggested by the Commission.

• (222) The Commission reviewed the calculations. It agreed that using the CPI index was a more correct method to be used. However, the normal value for 2020 in the expiry review was based on the prices between December 2019 and March 2020, and not on the entire year 2020, as used by ECL in its calculation. On this basis, the new dumping margin for ECL was 13,14 %.

• (223) The GOI submitted that the time to submit comments on the new basis for the facts available was too short. It also found that its comments made after the first disclosure of the findings were not addressed. Additionally, it also submitted that the adjustment for inflation had no legal backing and that it gave a misleading result.

• (224) The Commission considered the deadline (of 2 days) provided to submit comments on the new basis for the facts available sufficient, insofar as it was limited to the use of facts available, described in Section 3.6. The Commission thus rejected the claim.

• (225) The Commission also clarified that it addressed all the comments made by the parties including the comments by the GOI. However, since the Commission only disclosed the part of its conclusion that had changed, the new disclosure did not contain the assessment of comments that were already addressed, nor of comments not related to the facts available ultimately used.

• (226) Regarding the claim on inflation, the Commission noted that the GOI did not substantiate why the adjustment for inflation was legally unwarranted, nor why it gave a misleading result. To the contrary, adjusting the normal value, which was originally established in 2020, for inflation, lead to coherent and thereby accurate findings for the review investigation period. The Commission thus found the claim unjustified.

• (227) After the second disclosure of the new basis for the facts available, SG PAM disagreed with the Commission’s choice of facts available. It found that the Commission made an extremely and unduly restrictive assessment of what may or may not be used as facts available, which went beyond any existing requirement and led to discrimination between exporters. It referred in particular to the wording used in Article 18(1) and (6) of the basic anti-dumping Regulation that stipulate that the facts available ‘may be less favourable’ to the party which did not cooperate, or which provided misleading information. The ‘less favourable’ outcome was in SG PAM’s view the direct and normal consequence of that party’s own non-cooperation, and it would not represent any punitive intent, even if such would be clearly justified in the event a party deliberately manipulated the data. SG PAM further considered that the basic anti-dumping Regulation did not set requirements on how ‘less favourable’ the results could or could not be, nor on what such ‘facts available’ should be. It therefore considered that the Commission had a discretion in the choice of the facts available which should not result in a more favourable outcome for the non-cooperating party. Doing otherwise would undermine the effect of the Union’s trade defence measures. Therefore, SG PAM considered that the Commission should not provide any preferential treatment to ECL compared to other non-cooperating companies and argued that the use of the residual margin of the original investigation was justified. Also, even if the dumping margin set for other cooperating and non-cooperating exporters was based on data that were now 8 years old, the Commission could have used it, since it was also used for non-cooperating exporting producers.

• (228) The Commission reviewed the comments of SG PAM on the use of the facts available. As explained in recital (215) above, the original investigation period was 1 October 2013 to 30 September 2014. Therefore, the Commission considered it appropriate to base its findings on a more recent facts available than those which were already 8 years old. Moreover, the Commission noted that the premise of the comment is misguided for two reasons. First, the purpose of Article 18(6) of the basic anti-dumping Regulation is not to punish non-cooperation but to point out that it ‘may’ lead to a less favourable outcome than full cooperation. Second, it cannot be determined whether the facts available used led to an outcome that is less or more favourable to ECL, had it fully cooperated. ECL did not fully cooperate with the investigation and therefore there is no benchmark allowing for such determination. The claim was therefore rejected.

• (229) SG PAM also argued that in the original investigation, the normal value was based on profitable sales only or constructed normal value. In such cases, the normal value or constructed normal value used for the comparison was typically higher than the domestic sales prices. However, in its updated dumping calculation, the Commission relied on prices as reported on the market, and nothing guarantee that these prices are profitable. In the absence of any reliable information from ECL on costs, the Commission must assume that the situation where there are also non profitable sales persists on the domestic Indian market. Therefore, instead of using a normal value based on the average selling price of Indian producers, as reported in the request, it should only account for the higher selling prices reported as they are less likely to be non-profitable and therefore unsuitable for a dumping calculation.

• (230) The Commission recalled that the normal value was determined by the Union industry itself in the expiry review request. The normal value was based, according to the industry, on numerous price offers and it represented therefore an average of the prices within the investigation period. Basing itself on the highest prices, on the assumption that the (relatively) lower prices were likely to be non-profitable, would be purely speculative. Moreover, the range of prices was considered appropriate to establish the normal value in the expiry investigation period, and the Commission also did not have any basis to select only some of them. It thus found the claim unjustified.

• (231) SG PAM further argued that the dumping margin should not be reduced by the level of the export subsidy margin of the original investigation, since the Commission itself established in the expiry review that the level of export subsidies in India decreased. SG PAM found that while the deduction was justified if the Commission was to use the residual duty of the original investigation, it was not justified in its new approach since findings related to a period when ECL received less subsidies. SG PAM referred to refund investigations concerning ECL where the Commission decided to reimburse parties for the difference in the countervailing margin established in the original investigation and the level of subsidies in the investigating periods, proving that ECL received less subsidies than established in the original investigation. Therefore, and in the absence of any reliable information on the level of export subsidies, SG PAM considered that the Commission must abstain from reducing the dumping margin by any export subsidy margin, or at the very least, must ensure that the margin reduction is not higher than the actual export subsidies received.

• (232) The Commission disagreed with the claim. Since the current review was limited to reassessing the level of dumping, it had no basis to establish a new level of export subsidies in the review investigation period. In addition, even if in the expiry review and in the refund investigations it was established that the level of export subsidies decreased, ECL still remained subject a countervailing duty of 9 %. Therefore, if the Commission was to deduct none or less export subsidies from the anti-dumping margin, the (corresponding) level of countervailing margin (from the 9 % of the countervailing duty) was not to be imposed on the company either. Therefore, the impact on the combined margin for ECL would be null. The method (to deduct the export subsidies) was also in line with the method the Commission used in the refund investigation. The Commission thus rejected the claim.

4. ANTI-DUMPING MEASURES

• (233) As established under Section 3, the Commission determined a new dumping margin for ECL at the level of 13,1 %. As explained in recital (4), the Commission imposed a countervailing duty of 9 % for ECL following a separate anti-subsidy investigation, out of which 6,04 % was based on export contingent subsidies. Consistently with the approach adopted in the original investigation, the Commission reduced the dumping margin by the subsidy amounts found in relation to the export contingent schemes in the separate anti-subsidy investigation. On the basis of the above, the rate at which such duties will be imposed are set as follows:

Name of company	Export subsidies	Dumping margin	Countervailing duty	Anti-dumping duty	Total duties
Electrosteel Casting Ltd.	6,04  %	13,1  %	9,0  %	7 %	16 %

• (234) All interested parties were informed of the essential facts and considerations on the basis of which it was intended to recommend that the existing measures be maintained. They were also granted a period to make representations subsequent to this disclosure.

• (235) The measures provided for in this regulation are in accordance with the opinion of the Committee established by Article 15(1) Regulation (EU) 2016/1036,

HAS ADOPTED THIS REGULATION:

Article 1

Paragraph 2 of Article 1 of Implementing Regulation (EU) 2022/926 is replaced by the following:

‘2.   The rates of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below shall be as follows:

Company	Definitive anti-dumping duty (%)	TARIC additional code
Jindal Saw Limited	3,0	C054
Electrosteel Castings Ltd	7	C055
All other companies	14,1	C999 ’

Article 2

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

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

Done at Brussels, 22 November 2023.

For the Commission

The President

Ursula VON DER LEYEN

ELI: http://data.europa.eu/eli/reg_impl/2023/2605/oj

ISSN 1977-0677 (electronic edition)