Exporter Had Other Ways to Prove Nonaffiliation, but Didn't Try, US Says

The adverse facts available rate an Indian glycine exporter was assigned for failing to prove it was no longer doing business with two former affiliates was fair and accurate, the U.S. said Sept. 6 in response to a motion for judgment (see 2406040059) (Kumar Industries v. U.S., CIT # 23-00263).

The government said exporter Kumar Industries has had this problem in the past -- it has even been hit with AFA in past reviews for failing to make the same showing regarding its association with the two former affiliates, which it called “Company A” and “Company B.”

Kumar claims that the Commerce Department is applying AFA for the exporter’s failure to force provision of audited financial information from two independent companies not subject to the antidumping duty review on its products. But the department doesn’t necessarily need those companies’ audited records, the U.S. said. Kumar just needs to provide “any documents kept in the ordinary course of business that substantiated its claim of non-affiliation,” it said.

“Commerce reasoned that ‘if [Kumar] is no longer affiliated with Companies A and B, it should have in its possession reliable and substantive documents proving the severance of its affiliation with Companies A and B and it should not have to rely on Companies A and B to provide the requested information,’” it said.

Instead, the only thing Kumar provided was “a chart” showing that it and the two other companies were no longer affiliated, and this unsupported statement was contradicted by other record evidence, the government said.

Kumar also provided letters from the affiliates to Kumar as proof, but these were contradictory -- Kumar claimed that the two affiliates were no longer making home market glycine sales, but the letters actually indicated otherwise, it said.

The U.S. also disagreed with Kumar’s argument that Commerce hadn’t provided sufficient notice of deficiency prior to hitting the exporter with AFA. The department gave it plenty of notice by issuing it two supplemental questionnaires on the subject, the government said.

In response to the questionnaires, Kumar simply “repeated its prior representations that it had no affiliation with Companies A and B, that Companies A and B confirmed that they had not produced or sold glycine during the period of review, and that Companies A and B refused to provide audited financial statements,” it noted.

And, finally, the government pushed back on Kumar’s claim that Commerce had gone against common practice in deducting all of Kumar’s duties from its invoice prices to calculate its U.S. prices.

The department’s usual practice is to subtract antidumping and countervailing duties from total U.S. duties first before subtracting the remainder from a respondent’s sales prices to reach a U.S. price, the government agreed. However, the department found insufficient evidence that the duties Kumar reportedly paid actually included any AD/CVD, it said.

“Kumar offers no examples of when Commerce made an adjustment to U.S. duties when the record lacked evidence that U.S. duties included antidumping and countervailing duties, let alone where calculations based on such an assumption would yield a negative amount of U.S. duties,” it said.