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12.1.2012 Official
Journal
of
the
European
Union
L
8/17
REGULATIONS
COUNCIL IMPLEMENTING REGULATION (EU) No 13/2012
of 6 January 2012
amending Regulation (EC) No 1292/2007 imposing a definitive anti-dumping duty on imports of
polyethylene terephthalate (PET) film originating in India
THE COUNCIL OF THE EUROPEAN UNION,
findings of the expiry review of the definitive counter
vailing duties which are detailed in Council Regulation
(EC) No 367/2006 ( 6 ).
Having regard to the Treaty on the Functioning of the European
Union,
(4) In September 2006, by Regulation (EC)
No 1424/2006 ( 7 ), the Council, following a new
Having regard to Council Regulation (EC) No 1225/2009 of
exporting producer request, amended Regulation (EC)
30 November 2009 on protection against dumped imports
No 1676/2001 in respect of one Indian exporter. The
from countries not members of the European Community ( 1 )
amended Regulation established a dumping margin of
(‘the basic Regulation’), and in particular Article 9(4) and
15,5 % for cooperating companies not included in the
Article 11(3), (5) and (6) thereof,
sample and an anti-dumping duty rate of 3,5 % for the
company concerned taking into account the company’s
export subsidy margin as ascertained in the anti-subsidy
Having regard to the proposal submitted by the European
investigation which led to the adoption of Regulation
Commission (‘Commission’) after consulting the Advisory
(EC) No 367/2006. Since the company did not have an
Committee,
individual countervailing duty, the rate established for all
other companies was applied.
Whereas:
(5) In November 2007, by Regulation (EC) No
1292/2007 ( 8 ), the Council imposed a definitive anti-
dumping duty on imports of PET film originating in
A. PROCEDURE
India following an expiry review pursuant to
1. Previous investigations and existing anti-dumping
Article 11(2) of the basic Regulation. By the same Regu
measures
lation a partial interim review pursuant to Article 11(3)

of the basic Regulation, limited in scope to the exam
(1) In
August
2001,
by
Regulation
(EC)
No
1676/2001
(
ination of dumping in respect of one Indian exporting

2 ),
the Council imposed a definitive anti-dumping duty on
producer was terminated.
imports of polyethylene terephthalate (PET) film orig
inating, inter alia, in India. The measures consisted of
an ad valorem anti-dumping duty ranging between 0 %
(6) Regulation
(EC)
No
1292/2007
also
maintained
the
and 62,6 % imposed on imports from individually
extension of the measures to Brazil and Israel with
named exporting producers, with a residual duty rate
certain companies being exempted. The last amendment
of 53,3 % on imports from all other companies.
to Regulation (EC) No 1292/2007 in this regard was
made by Council Implementing Regulation (EU)
No 806/2010 ( 9 ).
(2) In
August
2001,
the
Commission,
by
Decision
2001/645/EC ( 3 ), accepted price undertakings offered by
five Indian producers. The acceptance of the undertakings
(7) In
January
2009,
by
Regulation
(EC)
No
15/2009
( 10 ), the
was subsequently withdrawn ( 4 ) in March 2006.
Council, following a partial interim review initiated by
the Commission on its own initiative concerning the
subsidisation of five Indian PET film producers,
(3) In
March
2006,
by
Regulation
(EC)
No
366/2006
( 5 ), the
amended the definitive anti-dumping duties imposed on
Council amended the measures imposed by Regulation
these companies by Regulation (EC) No 1292/2007 and
(EC) No 1676/2001. The anti-dumping duty imposed
the definitive countervailing duties imposed on these
ranged between 0 % and 18 %, taking into account the
companies by Regulation (EC) No 367/2006.
( 1 ) OJ L 343, 22.12.2009, p. 51.
( 6 ) OJ L 68, 8.3.2006, p. 15.
( 2 ) OJ L 227, 23.8.2001, p. 1.
( 7 ) OJ L 270, 29.9.2006, p. 1.
( 3 ) OJ L 227, 23.8.2001, p. 56.
( 8 ) OJ L 288, 6.11.2007, p. 1.
( 4 ) OJ L 68, 8.3.2006, p. 37.
( 9 ) OJ L 242, 15.9.2010, p. 6.
( 5 ) OJ L 68, 8.3.2006, p. 6.
( 10 ) OJ L 6, 10.1.2009, p. 1.

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L 8/18
EN
Official Journal of the European Union
12.1.2012
(8) In
May
2011,
by
Implementing
Regulation
(EU) (16) The
Commission
sought
and
verified
all
information
it
No 469/2011 ( 1 ), the Council amended Regulation (EC)
deemed necessary for the determination of dumping. A
No 1292/2007 and thus adjusted the anti-dumping duty
verification visit was carried out at the premises of the
rates in view of the expiry on 9 March 2011 ( 2 ) of the
applicant.
countervailing duty imposed by Regulation (EC)
No 367/2006.
B. PRODUCT CONCERNED AND LIKE PRODUCT
(9) The
applicant
of
this
interim
review
—
Ester
Industries
Limited — is currently subject to a definitive anti-
1. Product concerned
dumping duty of 29,3 %.
(17) The product concerned by this review is the same as that
2. Request for a partial interim review
defined in Regulation (EC) No 1292/2007, as last

amended, imposing the measures in force, namely poly
(10) In
July
2010,
the
Commission
received
a
request
for
a
ethylene terephthalate (PET) film, originating in India,
partial interim review pursuant to Article 11(3) of the
currently falling within CN codes ex 3920 62 19 and
basic Regulation. The request, limited in scope to the
ex 3920 62 90.
examination of dumping, was lodged by Ester Industries
Limited, an exporting producer from India (‘Ester’ or ‘the
2. Like product
applicant’). In its request, the applicant claimed that the
circumstances on the basis of which measures were
(18) As in previous investigations, this investigation has
imposed have changed and that these changes are of a
shown that PET film produced in India and exported
lasting nature. The applicant provided prima facie evidence
to the Union and the PET film produced and sold
that the continued imposition of the measure at its
domestically on the Indian market, as well as the PET
current level was no longer necessary to offset
film produced and sold in the EU by the Union
injurious dumping.
producers, have the same basic physical and chemical
characteristics and the same basic uses.
3. Initiation of a review
(11) Having determined, after consulting the Advisory
(19) These
products are therefore considered to be alike
Committee, that sufficient evidence existed to justify
within the meaning of Article 1(4) of the basic Regu
the initiation of a partial interim review, the Commission
lation.
announced by a notice published on 29 October 2010 in
the Official Journal of the European Union ( 3 ) (‘the Notice of
Initiation’) the initiation of a partial interim review in
C. DUMPING
accordance with Article 11(3) of the basic Regulation,
limited in scope to the examination of dumping in
(a) Normal value
respect of the applicant.
(20) In
accordance
with
Article
2(2)
of
the
basic
Regulation,
the Commission first examined whether the applicant’s
(12) The Notice of Initiation mentioned that the partial
domestic sales of the like product to independent
interim review would also assess the need, depending
customers were representative, i.e. whether the total
on the review findings, to amend the rate of duty
volume of such sales was equal to at least 5 % of the
applicable to imports of the product concerned from
total volume of the corresponding export sales to the
exporting producers in the country concerned not indi
Union.
vidually mentioned in Article 2(2) of Regulation (EC)
No 1292/2007, i.e. the anti-dumping duty rate as
applying to ‘all other companies’ in India.
(21) The
Commission
subsequently
identified
those
types
of
the like product sold domestically by the company that
4. Investigation
were identical or directly comparable to the types sold
for export to the Union.
(13) The investigation of the level of dumping covered the
period from 1 October 2009 to 30 September 2010
(‘the review investigation period’ or ‘the RIP’).
(22) It
was
further
examined
whether
the
domestic
sales
of
the applicant were representative for each product type,
(14) The
Commission
officially
informed
the
applicant,
the
i.e. whether domestic sales of each product type
authorities of the exporting country and the Union
constituted at least 5 % of the sales volume of the
industry of the initiation of the partial interim review
same product type to the Union. For the product types
investigation. Interested parties were given the oppor
sold in representative quantities it was then examined
tunity to make their views known in writing and to be
whether such sales were made in the ordinary course
heard.
of trade, in accordance with Article 2(4) of the basic
Regulation.
(15) In
order
to
obtain
the
information
necessary
for
its
inves
tigation, the Commission sent a questionnaire to the
applicant and received a reply within the deadline set
(23) The
examination
as
to
whether
the
domestic
sales
of
for that purpose.
each product type, sold domestically in representative
quantities, could be regarded as having been made in
the ordinary course of trade was made by establishing
( 1 ) OJ L 129, 17.5.2011, p. 1.
( 2 ) Notice of expiry (OJ C 68, 3.3.2011, p. 6).
the proportion of the profitable sales to independent
( 3 ) OJ C 294, 29.10.2010, p. 10.
customers of the type in question. In all cases where

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EN
12.1.2012 Official
Journal
of
the
European
Union
L
8/19
the domestic sales of the particular product type were
(29) The
applicant
claimed
that,
compared
to
the
previous
made in sufficient quantities and in the ordinary course
interim review investigation, it is offering its customers
of trade, normal value was based on the actual domestic
a wider variation of chemical coatings and this aspect
price, calculated as a weighted average of all the domestic
should be taken into account when classifying the
sales of that type made during the RIP.
product concerned into different product types.
However, the company did not demonstrate that the
different types of chemical coatings affected price
(24) For
the
remaining
product
types
where
domestic
sales
comparability and, in particular, that the customers
were not representative or not sold in the ordinary
consistently paid different prices on the domestic
course of trade, normal value was constructed in
market and on the EU export market depending on the
accordance with Article 2(3) of the basic Regulation.
type of chemical coating. Therefore, the product classifi
Normal value was constructed by adding to the manu
cation applied in the previous investigations should be
facturing costs of the exported types, adjusted where
maintained and the claim must be rejected.
necessary, a reasonable percentage for selling, general
and administrative expenses and a reasonable margin
for profit, on the basis of actual data pertaining to
production and sales, in the ordinary course of trade,
of the like product, by the exporting producer under
(30) The
applicant
also
claimed
an
adjustment
on
the
export
investigation in accordance with the first sentence of
price, based on the benefits received upon exportation
Article 2(6) of the basic Regulation.
under the Duty Entitlement Passbook Scheme (DEPB) on
a post-export basis. In this respect, it was found that
under this scheme, the credits received when exporting
the product concerned could be used to offset customs
(b) Export price
duties due on imports of any goods or could be freely
sold to other companies. In addition, there is no
(25) In the previous interim review leading to the adoption of
constraint that the imported goods should only be
Regulation (EC) No 366/2006, it was determined that
used in the production of the exported product
price undertakings influenced the past export prices
concerned. Ester did not demonstrate that the benefit
and made them unreliable for the determination of
under the DEPB scheme affected price comparability
future export behaviour. In that interim review, given
and, in particular, that the customers consistently paid
that Ester was selling the product concerned in
different prices on the domestic market because of the
substantial quantities on the world market, it was
DEPB scheme benefits. Therefore, the claim was rejected.
decided to establish the export price on the basis of
prices actually paid or payable to all third countries.
(26) It is recalled that the acceptance of price undertakings
(31) The
applicant
further
claimed
an
adjustment
on
the
was withdrawn in March 2006, i.e. more than three years
export price, based on the benefits received under the
before the current RIP. Therefore, Ester’s export prices to
Export Promotion Capital Goods Scheme (EPCG) and
the Union in the current RIP were not influenced by any
under ‘Export Credits’ Scheme. In this regard it has to
price undertakings. It can be thus concluded that they
be noted that, similarly as with the other schemes
can be considered reliable for the determination of future
mentioned above, there is no constraint that the
export behaviour.
imported goods under the EPCG Scheme should only
be used in the production of the exported product
concerned. Secondly, the applicant did not submit any
evidence of an explicit link between pricing of the
(27) Since all export sales of the applicant to the Union were
made directly to independent customers, the export price
exported goods and the benefits received under the
was established on the basis of the prices actually paid or
EPCG and ‘Export Credits’ Schemes. Finally, the
payable for the product concerned in accordance with
applicant did not demonstrate that the benefits under
Article 2(8) of the basic Regulation.
these two schemes affected price comparability and, in
particular, that the customers consistently paid different
prices on the domestic market because of the EPCG and
‘Export Credits’ Schemes benefits. Therefore, the claim
(c) Comparison
has to be rejected.
(28) The
comparison
between
the
weighted
average
normal
value and the weighted average export price was made
on an ex-works basis and at the same level of trade. In
order to ensure a fair comparison between normal value
(d) Dumping margin
and the export price, account was taken, in accordance
with Article 2(10) of the basic Regulation, of differences
(32) As
provided
for
under
Article
2(11)
of
the
basic
Regu
in factors which affected prices and price comparability.
lation, the weighted average normal value by type was
For this purpose, due allowance in the form of
compared with the weighted average export price of the
adjustments was made, where applicable and justified,
corresponding type of the product concerned. Following
for differences in transport, insurance, handling, loading
the comments on disclosure set out in recitals 44 and 45
and ancillary costs, commissions, financial costs and
below, the dumping margin, expressed as a percentage of
packing costs paid by the applicant.
the cif Union frontier price, duty unpaid, is 8,3 %.

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L 8/20
EN
Official Journal of the European Union
12.1.2012
D. LASTING NATURE OF CHANGED CIRCUMSTANCES
legally possible nor economically appropriate for the
following reasons. Indeed, it should be recalled that the
(33) In
accordance
with
Article
11(3)
of
the
basic
Regulation,
calculation of a sample average margin of dumping will
it was also examined whether the changed circumstances
only resorted to when, in the context of one given inves
could reasonably be considered to be of a lasting nature.
tigation, it is considered that the number of exporters is
so large that individually investigating all cooperating
exporters would unduly burden the Institutions and jeop
(34) In
this
regard
the
investigation
showed
that
Ester
indeed
ardise the completion of the investigation within the
has taken a number of measures for cost reduction and
mandatory deadline laid out in the basic Regulation. It
efficiency improvements. Notably, the company
is then assumed that the computation of a weighted
modernised and built a new production line. Further,
average margin on the basis of the margins of
as a result of significant increase in production, the
dumping of the sampled exporters is representative of
overhead costs substantially declined. The company also
the dumping margin of the non-sampled cooperating
started sourcing its raw materials more efficiently (from a
exporters. This can only be the case if such calculation
closer location) and managed thereby to considerably
is made on the basis of margins of dumping relating to
reduce freight costs. This cost reduction has a direct
the same period of time. None of the above circum
impact on the dumping margin. This change in circum
stances are present in the context of a partial interim
stances can therefore be considered to be of a lasting
review limited to one company originally in the sample
nature.
such as the current investigation. As a consequence, it is
concluded that the factual circumstances of the current
partial interim review are such that the disciplines of
(35) As
regards export price, the investigation showed a
Article 9(6) clearly do not apply.
certain stability in Ester’s pricing policies over a long
period, between 2006 (the year when the undertaking
was repealed) and 2010 (almost the end of the RIP).
Given that change in the methodology for the deter
mination of Ester’s export price to the Union as
(39) It is to be recalled that the statement in the Notice of
described in recitals 24 and 25 above and the above-
Initiation according to which ‘if it is determined that
mentioned stability in prices, the newly calculated
measures should be removed or amended for the
dumping margin is likely to be of a lasting nature.
applicant, it may be necessary to amend the rate of
duty currently applicable to imports of the products
concerned from other companies in India’ means that,
(36) It
was
therefore
considered
that
the
circumstances
that
as result of the review, the residual duty may go up in
led to the initiation of this interim review are unlikely to
order to avoid circumvention ( 2 ). Since the applicant’s
change in the foreseeable future in a manner that would
duty is revised downwards, the abovementioned
affect the findings of the interim review. Therefore it was
provision of the Notice of Initiation is not relevant.
concluded that the changed circumstances are of a lasting
nature and that the application of the measure at its
current level is no longer justified.
(40) In light of the reasons described in recitals 37 to 39, the
E. ANTI-DUMPING MEASURES
claim that the average dumping margin of the sample
should be recalculated has to be rejected.
(37) One exporting producer argued that the average
dumping margin of the sample should be recalculated,
in case the current interim review resulted in a lower
dumping margin for Ester (which was one of the
companies in the sample) than previously established. It
(41) Interested
parties
were
informed
of
the
essential
facts
and
considerations on the basis of which it was intended to
should be recalled that the scope of the current partial
propose to amend the duty rate applicable to the
interim review pursuant to Article 11(3) of the basic
applicant and were given the opportunity to comment.
Regulation is explicitly limited to the review of the

margin of dumping of the applicant, an individual
exporter, namely Ester. Therefore, the investigation was
limited to the specific circumstances of the applicant,
taking into account all relevant and duly documented
(42) The
applicant
reiterated
its
claims
concerning
the
product
evidence ( 1 ). The conclusions reached on this basis are
classification referred to in recital 29 as well as its claims
not pertinent for the other companies in the sample or
concerning duty drawback adjustment on the export
any other exporting producer in the country concerned.
price due to the DEPB, EPCG and ‘Export Credits’
benefits as described in recitals 30 and 31. However,
since no new elements have been provided that could
(38) It is considered that the determination of a new sample
alter the Commission’s findings, the claims had to be
average margin of dumping pursuant to Article 9(6) of
rejected.
the basic Regulation in such circumstances is neither
( 2 ) Council Implementing Regulation (EU) No 270/2010 of 29 March
( 1 ) Judgment of the General Court of 17 December 2010, EWRIA and
2010 amending Regulation (EC) No 452/2007 imposing a definitive
Others v Commission, Case T-369/08, points 7 and 79 and the
anti-dumping duty on imports of ironing boards originating, inter
jurisprudence quoted there.
alia, in the People’s Republic of China. (OJ L 84, 31.3.2010, p. 13).

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EN
12.1.2012 Official
Journal
of
the
European
Union
L
8/21
(43) The
applicant
further
contested
the
method
of
calculating
HAS ADOPTED THIS REGULATION:
the cif value of those transactions which have been made
on FOB basis. When establishing the unit cif value the
Article 1
Commission related the total freight cost paid by the
company to all export transactions including the FOB
The entry concerning Ester Industries Limited, in the table in
transactions. The company claimed that the total
Article 2(2) of Regulation (EC) No 1292/2007, shall be replaced
freight cost should have been related to the cif trans
by the following:
actions only. This claim has been accepted.
‘Ester Industries Limited, DLF City, Phase II, 8,3 A026’
(44) The applicant finally claimed that not all sample sales
Sector 25, Gurgaon, Haryana — 122022, India
have been excluded from the determination of the
dumping margin. This claim has also been accepted.
(45) Following the review investigation, the proposed revised
Article 2
dumping margin and anti-dumping duty rate that would
be applicable to imports of the product concerned manu
This Regulation shall enter into force on the day following its
factured by Ester Industries Limited amounts to 8,3 %,
publication in the Official Journal of the European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 6 January 2012.
For the Council
The President
N. WAMMEN

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