Menteri Kewangan & Ors v Diler Demir Celik Endustru Ve Ticaret A.S.

Appellant(s):

• Menteri Kewangan
• Menteri Perdagangan Antarabangsa Dan Industri
• Ketua Pengarah Jabatan Kastam Diraja Malaysia
• Kerajaan Malaysia

Respondent(s): Diler Demir Celik Endustru Ve Ticaret A.S. Also Known As Diler Iron And Steel Co. Inc.

• YAA Dato' Abu Bakar Bin Jais
• YA Dato' Zabariah Binti Mohd Yusof
• YA Dato' Nordin Bin Hassan

• An anti-dumping investigation was initiated against the respondent, a Turkish steel producer, for exporting Steel Reinforcing Bar (Rebar) into Malaysia, leading to the imposition of definitive anti-dumping duties.
• The respondent challenged the imposition of duties via judicial review, alleging errors in the calculation of the dumping margin, specifically concerning the determination of the export price and the refusal to allow for duty drawback adjustments.
• The High Court dismissed the judicial review, but the Court of Appeal reversed this decision, finding that the Investigation Authority (IA) had erred in its methodology for calculating the export price and in not allowing for duty drawback.

• Whether sections 17 (export price determination) and 18 (fair comparison) of the Countervailing and Anti-Dumping Duties Act 1993 (Act 504) must be read harmoniously to ensure a fair comparison between export price and normal value, typically at the ex-factory level.
• Whether subsections 17(2) and 17(3) of Act 504, which provide for constructed export price, are applicable when the export price has already been determined under subsection 17(1) and there is no issue of unreliability or absence of an export price.
• Whether adjustments for duty drawback must be made under section 18 of Act 504 and Regulation 32 of the Countervailing and Anti-Dumping Duties Regulations 1994 (CADDR) for price comparison, even if the exporter bore no cost in the domestic market with respect to such drawback.

• The Federal Court unanimously allowed the appeal, holding that sections 17 and 18 of Act 504 must be read together, but the "fair comparison" requirement in section 18 pertains to the comparison process, not the initial establishment of the export price under section 17.
• The Court found that the IA correctly applied section 17(1) to determine the export price based on sales between the exporter and its related trading company, as the conditions for deeming parties "related" under section 2(5) (specifically the proviso requiring grounds for believing the relationship affected behaviour) were not met, thus precluding the application of constructed export price under section 17(2) and (3).
• The Court ruled that the respondent failed to discharge its burden under section 18(3) of Act 504 to demonstrate how the existence of duty drawback for export sales (but not domestic sales) actually affected price comparability, thus the IA was not obligated to make the requested adjustment.