Written by Ng Shi Chen
A Federal Court case study on Menteri Kewangan & Ors v Diler Demir Celik Endustru VE Ticaret AS Turut Dikenali Sebagai Diler Iron And Steel Co Inc
Coram: Zabariah Mohd Yusof, Nordin Hassan and Abu Bakar Jais FCJJ
Brief Facts of the Case
The respondent, a Turkish company, exported steel reinforcing bar (‘rebar’) into Malaysia through its intermediary. The Malaysian Steel Association petitioned to the Minister of International Trade and Industry (‘second appellant’), pursuant to the Countervailing and Anti-Dumping Duties Act 1993 (‘the CADD’), to conduct an anti-dumping investigation on rebar from Singapore and Turkey.
The investigation authority (‘IA’) made preliminary findings that there was dumping. A 3.35% anti-dumping duty was imposed on rebar. The respondent urged the Malaysian Government to reconsider the preliminary findings. The IA visited the respondent’s premises in Turkey to verify the information provided. The IA subsequently informed the respondent of the essential facts that would constitute the basis for the definitive measures, permitting them to defend their interests. The respondent submitted its comments on the notice. After reviewing the facts, the IA submitted its final determination report to the second appellant.
As dumping had caused material injury to the domestic industry, the second appellant recommended a final determination to the Minister of Finance (‘first appellant’) who subsequently imposed a 3.62% anti-dumping duty on rebar exported from Singapore and Turkey.
High Court
Aggrieved by the first appellant’s decision, the respondent sought leave for judicial review at the High Court. The High Court dismissed the application, holding that the decision was rational and legal, as the decision-making process was carried out in accordance with law.
Court of Appeal
Dissatisfied, the respondent appealed to the Court of Appeal, which allowed the appeal, reversed the High Court’s decision. The Court of Appeal quashed the first appellant’s decision and ordered the relevant authorities to re-assess and re-calculate the anti-dumping duty.
Federal Court
Dissatisfied, the appellant appealed to the Federal Court, which allowed the appeal.
The issues to be determined by the Federal Court are as follows:
- Whether ss 17 and 18 of the CADD must be read together to ensure fair comparison between export price and normal value which is normally at ex-factory level?
- Whether s 17(2) and (3) of the CADD were applicable for the determination of export price, when the export price had been determined based on s 17(1) of the CADD and no issue arose that there was no export price or that it appeared that the export price was unreliable?
- Whether, in making a price comparison pursuant to s 18 of the CADD and reg 32 of the Countervailing and Anti-Dumping Duties Regulations 1994 between the export price and normal value, adjustment had to be made even though no cost was borne by the respondent in the domestic market with respect to duty drawback?
The answer to each of these questions are as follows:
The Federal Court answered Issue (i) in the affirmative.
Section 17 of the CADD is concerned with the establishment of export price, while s 18 of the CADD is concerned with the fair comparison between export price and normal value. Both sections must be read together for their proper application, where the component elements of export price and normal value must be first established before a fair comparison could be made.
The Federal Court answered Issue (ii) in the negative.
Section 17(2) of the CADD would not automatically apply merely because the respondent and the intermediary are related trading companies. The IA must assess the evidence to determine whether the export price is reliable. The sales transactions between the respondent and the intermediary, which were substantiated with invoices, were sufficient to satisfy the Federal Court that the export price based on the sales transactions was reliable. Therefore, s 17(2) and 17(3) of the CADD were not applicable to determine the export price in the present case.
The Federal Court answered Issue (iii) in the negative.
Section 18(3) of the CADD not only obliges the IA to ensure a fair comparison, but also obliges the respondent to substantiate the request for due allowance by showing that there is a difference affecting prices and price comparability. The respondent failed to discharge the burden of substantiating the request for adjustments by showing that it affected price comparability. The existence of the differences did not automatically affect price comparability. Even though domestic sales of the goods did not enjoy similar duty drawback, the mere existence of the duty drawback for raw materials used to produce the goods that was solely for export purposes did not automatically affect price compatibility. Such factor did not demonstrate a difference affecting the comparability between the normal value and export price, and no allowances were thus permitted under s 18(3) of the CADD.
Conclusion
The Federal Court reaffirmed that anti-dumping investigations are fact-sensitive exercises grounded in statutory structure. Related-party transactions do not automatically invalidate export prices. As such, exporters must prove, not presume, that adjustments are warranted under s 18(3).
This decision restores the 3.62% anti-dumping duty and reinforces the evidentiary burden placed on foreign exporters seeking price adjustments in Malaysian anti-dumping investigations.
Published on 29 December 2025