Anti-Dumping Duty Rules under Customs Tariff Act, 1975
[Ref: 02-Cus(NT)/01.01.1995]
[Last amendment 06-Cus(NT)/19.01.2012]
1. Short
title and commencement
2. Definitions
3. Appointment
of designated authority
4. Duties
of the designated authority
5. Initiation
of investigation
6. Principles
governing investigations
7. Confidential
informations
8. Accuracy
of the information
9. Investigation
in the territory of other specified countries
10. Determination of normal
value, export price and margin of dumping
11. Determination of injury
12. Preliminary findings
13. Levy of provisional duty
14. Termination of
investigation
15. Suspension or termination
of investigation on price undertaking
16. Disclosure of information
17. Final findings
18. Levy of duty
19. Imposition of duty on
non-discriminatory basis
20. Commencement of duty
21. Refund of
duty
22. Margin of
dumping, for exporters not originally investigated
23. Review
24. Dumping causing injury to a
third country
Notification No. 2/95-Cus. (N.T.), dated 1st January, 1995 as amended by Notification No. 44/99 - Cus (N.T.) dated 15/07/99, Notification No. 63/2000 - Cus (N.T.) dated 10/10/2000, Rule 8 inserted by
Notification No. 28/2001 - Cus (N.T.) dated
31/05/2001, Notification No. 01/2002 - Cus (N.T.)
dated 04/01/2002, Notification No. 101/2003 - Cus
(N.T.) dated 10/11/2003; 18-Cus(NT)/27.02.2010; 15-Cus(NT)/01.03.2011; 86-Cus(NT)/01.12.2011; 06-Cus(NT)/19.01.2012
In exercise of the powers conferred by sub-section (6) of section 9A and
sub-section (2) of section 9B of the Customs Tariff Act, 1975 (51 of 1975) and
in supersession of the Customs Tariff (Identification, Assessment and
Collection of Duty or Additional Duty on Dumped Articles and for Determination
of Injury) Rules, 1985, except as respect things done or omitted to be done
before such supersession, the Central Government hereby makes the following
rules, namely:-
1. Short title and commencement
(1) These rules may be called the Customs Tariff
(Identification, Assessment and Collection of Anti-dumping Duty on Dumped
Articles and for Determination of Injury) Rules, 1995.
(2) They shall come into force on the 1st day of January, 1995.
2.
Definitions
In these rules, unless the context otherwise
requires.-
(a) “Act” means the Customs Tariff Act, 1975 (51 of 1975),
(b) “domestic industry” means
the domestic producers as a whole engaged in the manufacture of the like
article. and any activity connected therewith or those whose collective output
of the said article constitutes a major proportion of the total domestic
production of that article except when such producers are related to the
exporters or importers of the alleged dumped article or are themselves
importers thereof in such case the term 'domestic industry' may be construed as
referring to the rest of the producers only:
[Clause (b) substituted by 18-Cus(NT)/27.02.2010; 86-Cus(NT)/01.12.2011]
Provided that in exceptional circumstances referred to
in sub-rule (3) of rule 11, the domestic industry in relation to the article in
question shall be deemed to comprise two or more competitive markets and the
procedures within each of such market a separate industry, if-
(i) the producers with such a
market sell all or almost all of their production of the article in question in
that market, and
(ii) the deemed in the market
is not in any substantial degree supplied by producers of the said article
located elsewhere in the territory:
[Explanation. - For the purposes of this clause, -
(i) producers shall be deemed
to be related to exporters or importers only if, -
(a) one of them directly or
indirectly controls the other; or
(b) both of them are directly
or indirectly controlled by a third person; or
(c) together they directly or indirectly control a
third person, subject to the condition that there are grounds for believing or
suspecting that the effect of the relationship is such as to cause the
producers to behave differently from non-related producers.”
(ii) a producer shall be
deemed to control another producer when the former is legally or operationally
in a position to exercise restraint or direction over the latter.]
(c) “interested party”
includes-
(i) an exporter or a foreign producer or the importer
of an article subject to investigation for being dumped in India, or a trade or
business association a majority of the members of which are producers,
exporters or importers of such an article;
(ii) the government of the
exporting country; and
(iii) a producer of the like
article in India or a trade and business association a majority of the members
of which produce the like article in India:
(d) “like article means an article which is identical
or alike in all respects to the article under investigation for being dumped in
India or in the absence of such article, another article which although not alike
in all respects, has characteristics closely resembling those of the articles
under investigation;
(e) “Provisional duty” means an anti dumping duty
imposed under sub section (2) of section 9A of the Act;
(f) “specified country” means
a country or territory which is a member of the World Trade Organisation
and includes the country or territory with which the Government of India has an
agreement for giving it the most favoured nation
treatment;
(g) all words and expressions
used and not defined in these rules shall have; the meanings respectively
assigned to them in the Act.
3. Appointment of
designated authority
(1) The Central Government may, by notification in the
Official Gazette, appoint a person not below the rank of a Joint Secretary to
the Government. of India or such other person as that
Government may think fit as the designated authority for purposes of these
rules.
(2) The Central Government may provide to the
designated authority the services of such other persons and such other
facilities as it deems fit.
4. Duties of the
designated authority
(1) It shall be the duty of the designated authority
in accordance with these rules-
(a) to investigate as to the
existence. degree and effect of any alleged dumping in
relation to import of any article;
(b) to identify the article
liable for anti-dumping duty;
(c) to submit its findings,
provisional or otherwise to Central Government as to-
(i) normal value, export price and the margin of dumping in
relation to the article under investigation and
(ii) the injury or threat of injury to an industry
established in India or material retardation to the establishment of an
industry in India consequent upon the import of such article from the specified
countries.
(d) to recommend to the
Central Government-
(i) the amount of anti-dumping duty equal to the
margin of dumping or less, which if levied, would remove the injury to the
domestic industry, after considering the principles laid down in the Annexure
III to these rules; and
(ii) the date of commencement
of such duty;
(e) to review the need for
continuance of anti-dumping duty.
[Rule 4 substituted by 15-Cus(NT)/01.03.2011]
5. Initiation of investigation
(1) Except as provided in sub-rule (4), the. designated
authority shall initiate an investigation to determine the existence, degree
and effect of any alleged dumping only upon receipt of a written application by
or on behalf of the .domestic industry.
(2) An application under sub-rule (1) shall be in the form as may be
specified by the designated authority and the application shall be supported by
evidence of
(a) dumping,
(b) injury, where applicable,
and
(c) where applicable, a
causal link between such dumped imports and alleged injury.
3 The designated authority shall not initiate an investigation pursuant
to an application made under sub-rule (1) unless.
(a) It determines, on the basis of an examination of
the degree of support for, or opposition to the application expressed by
domestic producers of the like product, that the application has been made by
or on behalf of the domestic industry:
Provided that no investigation shall be initiated if domestic producers
expressly supporting the application account for less than twenty five per cent
of the total production of the like article by the domestic industry, and
(b) It examines the accuracy and adequacy of the
evidence provided in the application and satisfies itself that there is
sufficient evidence regarding-
(i) dumping,
(ii) injury, where
applicable, and
(iii) where applicable, a
causal link between such dumped imports and the alleged injury, to justify the
initiation of an investigation.
Explanation:- For the
purpose of this rule the application shall be deemed to have been made by or on
behalf of the domestic industry, if it is supported by those domestic producers
whose collective output constitute more than fifty per cent of the total
production of the like article produced by that portion of the domestic
industry expressing either support for or opposition as the case may be, to the
application.
(4) Notwithstanding anything contained in sub-rule (i) the designated
authority may initiate an investigation suo motu if it is satisfied from the information received from
the Collector of Customs appointed under the Customs Act, 1962 (52 of 1962).or
from any other source that sufficient evidence exists as to the existence of
the circumstances referred to in clause (b) of sub-rule (3).
(5) The designated authority shall notify the government of the
exporting country before proceeding to initiate an investigation
6. Principles governing investigations
(1) The designated authority shall after it has decided to initiate
investigation to determine the existence, degree and effect of any alleged
dumping of any article, issue a public notice notifying its decision and such
public notice shall, inter-alia, contain adequate information on the
following:-
(i) the name of the exporting
country or countries and the article involved;
(ii) the date of initiation
of the investigation;
(iii) the basis on which
dumping is alleged in the application;
(iv) a summary of the factors
on which the allegation of injury is based;
(v) the address to which
representations by interested parties should be directed; and
(vi) the time-limits allowed
to interested parties for making their views
know.
(2) A copy of the public notice shall be forwarded by the designated
authority to the known exporters of the article alleged to have been dumped, the
governments of the exporting countries concerned and other interested parties.
(3) The designated authority shall also provide a copy of the
application referred to in sub-rule (1) of rule 5 to-
(i) the known exporters or to
the concerned trade association where the number of exporters is large, and
(ii) the governments of the
exporting countries;
Provided that the designated authority shall also make
available a copy of the application to any other interested party who makes a
request therefor in writing.
(4) The designated authority may issue a notice calling for any
information, in such form as may be specified by it, from the exporters,
foreign producers and other interested parties and such information shall be
furnished by such persons in writing within thirty days from the date of
receipt of the notice or within such extended period as the designated
authority may allow on sufficient cause being shown.
Explanation:- For the purpose
this sub-rule, the notice calling for information and other documents shall be
deemed to have been received one week from the date on which it was sent by the
designated authority or transmitted to the appropriate diplomatic
representative of the exporting country.
(5) The designated authority shall also provide opportunity to the
industrial users of the article under investigation, and to representative
consumer organisations in cases where the article is
commonly sold at the retail level, to furnish information which is relevant to
the investigation regarding dumping, injury where applicable and causality.
(6) The designated authority may allow an interested party or its
representative to present the information relevant to the, investigation orally
but such oral information shall be taken into consideration by the designated
authority only when it is subsequently reproduced in writing.
(7) The designated authority shall make available the evidence presented
to it by one interested party to the other interested parties, participating in
the investigation.
(8) In a case where an interested party refuses access to, or otherwise
does not provide necessary information within a reasonable period, or
significantly impedes the investigation., the designated authority may record
its findings on the bass of the facts available to it and make such
recommendations to the Central Government as it deems fit under such
circumstances.
7. Confidential informations
(1) Notwithstanding anything contained in sub-rules (2), (3) and (7) of
rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of
rule, 17, the copies of applications received under sub-rule (1) of rule 5, or
any other information provided to the designated authority on a confidential
basis by any party in the course of investigation, shall, upon the designated authority
being satisfied as to its confidentiality, be treated as such by it and no,
such information shall be disclosed to any other party without specific authorisation of the party providing such information.
(2) The designated authority may require the parties providing
information on confidential basis to furnish non confidential summary thereof
and if, in the opinion of a party providing such information, such information
is not susceptible of summary, such party may, submit to the designated authority
a statement of reasons why summarisation is not
possible.
(3) Not withstanding anything contained in sub-rule (2), if the
designated authority ,satisfied that the request for confidentiality is not
warranted or the supplier of the information is either unwilling to make the
information public or to authorise its disclosure in
a generalised or summary from it, may, disregard such
information.
8. Accuracy of the information
Except in cases referred to in sub-rule (8) of rule 6, the designated authority
shall during the ,course of investigation satisfy
itself as to the accuracy of the information supplied by the interested parties
upon which its findings are based.
9. Investigation in the territory of other specified countries
The designated authority may carry out investigation in the territories
of other countries, if the circumstances of a case so warrant;
Provided that the designated authority obtains the
consent of the person concerned and notifies the representatives of the
concerned government and the concerned government does not object to such
investigation.
10.
Determination of normal value, export price and margin of dumping
An article shall be considered as being dumped if it is exported from a country
or territory to India at a price less than its normal value and in such
circumstances the designated authority shall determine the normal value, export
price and the margin of dumping taking. into account,
inter-alia, the principles laid down in Annexure I to these rules.
11. Determination of injury
(1) In the case of imports from specified countries, the designated
authority shall record a further finding that import of such article into India
causes or threatens material injury to any established industry in India or
materially retards the establishment of any industry in India.
(2) The designated authority shall determine the injury to domestic
industry, threat of injury to domestic industry, material retardation to
establishment of domestic industry a causal link between dumped imports and
injury, taking into account all relevant facts, including the volume of dumped
imports their effect on price in the domestic market for like articles and the
consequent effect of such imports on domestic producers of such articles and in
accordance with the principles set out in Annexure-II to these rules.
(3) The designated authority may, in exceptional cases, give a finding
as to the existence of injury ever where a substantial portion of the domestic
industry is not injured, if-
(i) there is a concentration
of dumped imports into an isolated market, and
(ii) the dumped articles are
causing injury to the producers of all or almost all of the production within
such market.
12. Preliminary findings
(1) The designated authority shall proceed expeditiously with the
conduct of the investigation and shall, in appropriate cases, record a
preliminary findings regarding export price, normal value and margin of
dumping, and in respect of imports from specified countries, it shall also
record a further finding regarding injury to the domestic industry and such
finding shall contain sufficiently detailed in information for the preliminary
determinations on dumping and injury and
shall refer to the, matters of fact and law which have led to arguments being
accepted or rejected. It will also contain-
(i) the names of the
suppliers, or when this is impracticable, the supplying countries involved;
(ii) a description of the
article which is sufficient for customs purposes;
(iii) the margins of dumping
established and a full explanation of he reasons for
the methodology used in the establishment and comparison of the export price
and the normal value;
(iv) considerations relevant
to the injury determination: and
(v) the main reasons leading
to the determination.
(2) The designated authority shall issue a public notice recording its
preliminary findings.
(1) Where
an importer is of the opinion that he has paid any anti-dumping duty imposed
under sub-sections (1) or sub-section (1A) of section 9A of the Act on any
imported goods, in excess of the actual margin of dumping in relation to such
goods, he may file an application for determination of the actual margin of
dumping in relation to such goods before the designated authority in such form
and accompanied by such documents as the said authority may specify in this
behalf.
(2) Where
the application referred to in sub-rule (1) is found to be deficient in any
material particulars, the same shall be returned to the importer pointing out
deficiencies within one month of the receipt thereof and the importer may,
after making good the deficiencies, resubmit the application to the designated
authority within one month thereafter.
(3) On
receipt of the application with complete information, the designated authority
shall initiate an investigation to determine the actual margin of dumping in
relation to such goods.
(4) In
determining the actual margin of dumping, when the export price is constructed
in accordance with these rules, the designated authority shall take into
account any change in normal value, costs incurred between importation and
resale and any movement in the sale price which is duly reflected in the
subsequent selling price.
(5) While
calculating constructed export price, referred to in sub-rule (4), no deduction
shall be made for the amount of anti-dumping duties paid when conclusive
evidence of the same is provided.
(6) Where
the designated authority finds that there is change in,-
(a) costs incurred between importation and resale, and
(b) movement in the sale price which is duly reflected in the
subsequent selling price, the actual margin of dumping may be determined in
accordance with the provisions of sub-rules (4) and (5).
(7) The
designated authority shall, after investigation under sub-rule (3), determine
the actual margin of dumping for the goods and if the anti-dumping paid on the
goods is in excess of the margin of dumping so determined, the authority shall
make recommendation to the Central Government within nine months and in no case
more than 12 months, from the date of receipt of the application, complete in
all respects, to refund the difference between the two to the importer.
[Rule 21A inserted by 06-Cus(NT)/19.01.2012]
13. Levy of provisional duty
The Central Government may, on the basis of the preliminary findings
recorded by the designated authority, impose a provisional duty not exceeding
the margin of dumping:
Provided that no such duty shall be imposed before the
expiry of sixty days from the date of the public notice issued by the
designated authority regarding its decision to initiate investigations:
Provided further that such duty shall remain in force
only for a period not exceeding six months which may upon request of the
exporters representing a significant percentage of the trade involved be
extended by the Central Government to nine months.
14. Termination of investigation
The designated authority shall, by issue of a public notice, terminate
an investigation immediately if-
(a) it receives a request, in
writing for doing so from or on behalf of the domestic industry affected, at whose
instance the investigation was initiated
(b) it is satisfied in the
course of an investigation, that there is not sufficient evidence of dumping
or, where applicable, injury to justify the continuation of the investigation;
(c) it determines that the
margin of dumping is less than two per cent of the export price:
(d) it determines that the volume of the dumped
imports, actual or potential, from a particular country accounts for less than
three per cent, of the imports of the like product, unless, the countries which
individually account for less than three per cent, of the imports of the like
product, collectively account for more than seven per cent, of the import of
the like product; or
(e) it determines that the
injury where applicable, is negligible.
15. Suspension or termination of investigation on price undertaking
(1) the designated authority may suspend or
terminate an investigation if the exporter of the article in question,-
(i) furnishes an undertaking
in writing to the designated authority to revise the prices so that no exports
of the said article are made to India at dumped prices, or
(ii) in the case of imports
from specified countries undertake to revise the prices so that injurious
effect of dumping is eliminated and the designated authority is satisfied that
the injurious effect of the dumping is eliminated:
Provided further that
the designated authority shall complete the investigation and record its
finding, if the exporter so desires, or it so decides.
(2) No undertaking as regards price increase under clause (ii) of the
sub-rule (1) shall be accepted from any exporter unless the designated
authority had made preliminary determination of dumping and the injury.
(3) The designated authority may, also not accept undertakings offered
by any exporter, if it considers that acceptance of such undertaking is
impractical or is unacceptable for any other reason.
(4) the designated authority shall intimate the
acceptance of an undertaking ad suspension or termination of investigation to
the Central Government and also issue a public notice in this regard. The
public notice shall, contain inter-alia, the non-confidential part of the
undertaking.
(5) In cases where an undertaking has been accepted by the designated
authority the Central Government may not impose a duty under sub-section (2) of
section 9A of the Act for such period the undertaking acceptable to the
designated authority remains valid.
(6) Where the designated authority has accepted any undertaking under
sub-rule (1), it may require the exporter from whom such undertaking has been
accepted to provide from time to time information relevant to the fulfillment
of the undertaking and to permit verification of relevant data:
Provided that in case of any violation of an
undertaking, the designated authority shall intimate to the Central Government
regarding such violation and complete the investigation expeditiously.
(7) The designated authority shall, suo motu or on the basis of any request received from exporters
or importers of the article in question or any other interested party, review
from time to time the need for the continuance of any undertaking given
earlier.
16. Disclosure of information
The designated authority shall, before giving its final findings, inform
all interested parties of the essential facts under consideration which form
the basis for its decision.
17. Final findings
(1) The designated authority shall, within one year from the date of
initiation of an investigation, determine as to whether or not the article
under investigation is being dumped in India and submit to the Central
government its final finding-
(a) as to,-
(i) the export price, normal
value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in
the case of imports from specified countries, causes or threatens material
injury to any industry established in India or materially retards the
establishment of any industry in India;
(iii) a causal link, where
applicable, between the dumped imports and injury;
(iv) whether a retrospective
levy is called for and if so, the reasons therefor and date of commencement of
such retrospective levy;
Provided that the Central Government may, in
circumstances of exceptional nature, extend further the aforesaid period of one
year by six months;
Provided further that in those cases where the
designated authority has suspended the investigation on the acceptance of a
price undertaking as provided in rule 15 and subsequently resumes the same on
violation of the terms of the said undertaking, the period for which
investigation was kept under suspension shall not be taken into account while
calculating the period of said one year,
(b) recommending the amount
of duty, which, if levied, would be adequate to remove the injury where
applicable, to the domestic industry after considering the principles laid down
in the Annexure III to these rules. [Clause (b) amended by 15-Cus(NT)/01.03.2011]
(2) The final finding if affirmative, shall contain all information on
the matter of facts and law and reasons, which have led to the conclusion and
shall also contain information regarding-
(i) the names of the
suppliers, or when this is impracticable, the supplying countries involved;
(ii) a description of the
product which is sufficient for customs purposes;
(iii) the margins of dumping
established and a full explanation of the reasons for the methodology used in
the establishment and comparison of the export price and the normal value;
(iv) considerations relevant
to the injury determination; and
(v) the main reasons leading
to the determination.
(3) The designated authority shall determine an individual margin of
dumping for each known exporter or producer concerned of the article under
investigation. Provided that in cases where the number of exporters, producers,
importers or types of articles involved are so large as to make such
determination impracticable, it may limit its findings either to a reasonable
number of interested parties or articles, by using statistically valid samples
base on information available at the time of selection, or to the largest
percentage of the volume of the exports from the country in question which can
reasonably be investigated, and any selection, of exporters, producers, or
types of articles, made under this provision shall preferably be made in
consultation with and with the consent of the exporters, producers or importers
concerned.
Provided further that the designated authority shall,
determine and individual margin of dumping for any exporter or producer, though
not selected initially, who submit necessary information in time, except where
the number of exporters or producers are so large that individual examination
would be unduly burdensome and prevent the timely completion of the
investigation.
(4) The designated authority shall issue a public notice recording its
final findings.
18. Levy of duty
(1) The Central Government may, within three months of the date of
publication of final findings by the designated authority under rule 17, impose
by notification in the Official Gazette, upon importation into India of the
article covered by the final finding as determined under rule (17). Provided
that in case of imports from the specified countries the amount of duty shall
not exceed the amount, which has been, found adequate to remove the injury to
domestic industry.
(2) In cases where the designated authority has selected percentage of
the volume of the exports from a particular country, as referred to sub-rule (3)
of rule 17, any anti-dumping duty applied to imports from exporters or
producers not included in the examination shall not exceed-
(i) the weighted average
margin of dumping established with respect to the selected exporters or
producers or,
(ii) where the liability for
payment of anti-dumping duties is calculated on the basis of a prospective
normal value, the difference between the weighted average normal value of the
selected exporters or producers and the export prices of exporters or producers
not individually examined:
Provided that the Central Government shall disregard
for the purpose of this sub-rule any zero margin, margins which are less than 2
per cent expressed as the percentage of export price and margins established in
the circumstances detailed in sub-rule (8) of rule 6. The Central government
shall apply individual duties to imports from any exporter or producer not
included in the examination who has provided the necessary information during
the course of the investigation as referred to in the second proviso to
sub-rule (3) of rule 17.
(3) Notwithstanding anything contained in sub-rule (1), where a domestic
industry has been interpreted according to the proviso to sub-clause (b) of
rule 2, a duty shall be levied only after the exporters have been given
opportunity to cease exporting at dumped prices to the area concerned or
otherwise give an undertaking pursuant to rule 15 and such undertaking has not
been promptly given and in such cases duty shall not be levied only an the
articles of specified producers which supply the area in question.
(4) If the final finding of the designated authority is negative that is
contrary to the evidence on whose basis the investigation was initiated, the
Central Government shall, within forty five days of the publication of final
findings by the designated authority under rule 17, withdraw the provisional
duty imposed, if any.
19. Imposition of duty on non-discriminatory basis
Any provisional duty imposed under rule 13 or an anti dumping duty
imposed under rule 18 shall be on a non-discriminatory basis and applicable to
all imports of such articles, from whatever sources found dumped and, where
applicable, causing injury to domestic industry except in the case of imports
from those sources from which undertaking in terms of rule 15 has been
accepted.
20.
Commencement of duty
(1) The anti-dumping duty levied under rule 13 and rule 19 shall take
effect from the date of its publication in the Official Gazette.
(2) Notwithstanding anything contained in sub-rule(1)-
(a) where a provisional duty has been levied and where
the designated authority has recorded a final finding of injury or where the
designated authority has recorded a final finding of threat of injury and a
further finding that the effect of dumped imports in the absence of provisional
duty would have led to injury, the anti dumping duty may be levied from the
date of imposition of provisional duty;
(b) in the circumstances
referred to in sub-section (3) of section 9A of the Act, the anti-dumping duty
may be levied retrospectively from the date commencing ninety days prior to the
imposition of such provisional duty:
Provided that no duty shall be levied retrospectively
on imports entered for home consumption before initiation of the investigation:
Provided further that
in the cases of violation of price undertaking referred to in sub-rule (6) of
rule 15, no duty shall be levied retrospectively on the imports which have
entered for home consumption before the violation of the terms of such
undertaking.
21. Refund of duty
(1) If the anti dumping duty imposed by the Central Government on the
basis of the final findings of the investigation conducted by the designated
authority is higher than the provisional duty already imposed and collected,
the differential shall not be collected from the importer.
(2) If, the anti dumping duty fixed after the conclusion of the
investigation is lower than the provisional duty already imposed and collected,
the differential shall be refunded to the importer.
(3) If the provisional duty imposed by the Central Government is
withdrawn in accordance with the provisions of sub-rule (4) of rule 18, the
provisional duty already imposed and collected, if any, shall be refunded to
the importer.
22. Margin of dumping, for
exporters not originally investigated
(1) If a product is subject to anti-dumping duties, the designated
authority shall carry out a periodical review for the purpose of determining
individual margin of dumping for any exporters or producers in the exporting country
in question who have producers in the exporting country in question who have
not exported the product to India during the period of investigation, provided
that these exporters or producers show that they are not related to any of the
exporters or producers in the exporting country who are subject to the
anti-dumping duties on the product.
(2) The Central Government shall not levy anti-dumping duties under
sub-section (i) of section 9A of the Act on imports from such exporters or
producers during the period of review as referred to in sub-rule (i) of this
rule:
Provided that the Central Government may resort to
provisional assessment and may as a guarantee from the importer if the
designated authority so recommends and in respect of such products or exporters,
it may levy duty in such cases retrospectively from the date of the initiation
of the review.
23. Review
(1) Any anti-dumping duty imposed under the provision of section 9A of
the Act, shall remain in force, so long as and to the extent necessary, to
counteract dumping, which is causing injury.
(1A) The designated authority shall review the need for the continued
imposition of any anti-dumping duty, where warranted, on its own initiative or
upon request by any interested party who submits positive information
substantiating the need for such review, and a reasonable period of time has
elapsed since the imposition of the definitive anti-dumping duty and upon such
review, the designated authority shall recommend to the Central Government for
its withdrawal, where it comes to a conclusion that the injury to the domestic
industry is not likely to continue or recur, if the said anti-dumping duty is
removed or varied and is therefore no longer warranted.
(1B) Notwithstanding anything contained in sub-rule (1) or (1A), any
definitive antidumping duty levied under the Act, shall be effective for a
period not exceeding five years from the date of its imposition, unless the
designated authority comes to a conclusion, on a review initiated before that
period on its own initiative or upon a duly substantiated request made by or on
behalf of the domestic industry, within a reasonable period of time prior to
the expiry of that period, that the expiry of the said anti-dumping duty is
likely to lead to continuation or recurrence of dumping and injury to the
domestic industry.
[Rule 23(1) substituted by 15-Cus(NT)/01.03.2011]
(2) Any review initiated under sub-rule (1) shall be concluded within a
period not exceeding twelve months from the date of initiation of such review.
(3) The provisions of rules 6, 7, 8, 9, 10, 11, 16, 17, 18, 19 and 20
shall be mutatis mutandis applicable in the case of review.
24. Dumping causing injury to a third country
(1) The designated authority may initiate investigation into any dumping
alleged to be taking place into India and causing injury to the domestic
industry of any third country which is a member of the world made Organisation.
(2) The designated authority in such cases shall follow the procedures
laid down in Article 14 of the Agreement on Implementation of Article VI of the
General Agreement on Tariff and Trade, 1994, as contained in the final Act of
Uruguay Round Multilateral Trade Negotiations
(1) Where
an article subject to anti dumping duty is imported
into India from any country including the country of origin or country of
export notified for the purposes of levy of anti dumping
duty, in an unassembled, unfinished or incomplete form and is assembled,
finished or completed in India or in such country, such assembly, finishing or
completion shall be considered to circumvent the anti
dumping duty in force if,-
(a) the
operation started or increased after, or just prior to, the anti dumping
investigations and the parts and components are imported from the country of
origin or country of export notified for purposes of levy of anti-dumping duty;
and
(b) the value consequent to assembly, finishing or completion
operation is less than thirty-five percent of the
cost of assembled, finished or complete
article.
Explanation I. – ‘Value’ means the cost of
assembled, complete or finished article less value of imported parts or
components
Explanation II. - For
the purposes of calculating the ‘value’, expenses on account of payments
relating to intellectual property rights, royalty, technical know- how fees and
consultancy charges, shall not be taken into account.
(2) Where an article subject to anti dumping duty is imported into India from country of
origin or country of export notified for the levy of anti-dumping duty after
being subjected to any process involving alteration of the description, name or
composition of an article, such alteration shall be considered to circumvent
the anti dumping duty in force if the alteration of
the description or name or composition of the article subject to anti dumping duty results in the article being altered in
form or appearance even in minor forms regardless of the variation of tariff
classification, if any.
(3) Where an article subject to anti dumping duty is imported into India through exporters
or producers or country not subject to anti dumping
duty, such exports shall be considered to circumvent the anti
dumping duty in force if the exporters or producers notified for the
levy of anti-dumping duty change their trade practice, pattern of trade or
channels of sales of the article in order to have their products exported to
India through exporters or producers or country not subject to anti dumping duty.
Explanation.- For the purposes of this sub-rule,
it shall be established that there has been
a change in trade practice, pattern of trade or channels of sales if the
following conditions are satisfied, namely:-
(a) absence of a justification, economic or otherwise, other
than imposition of anti-dumping duty;
(b) evidence that the remedial effects of the anti-dumping
duties are undermined in terms of the price and or the quality of like
products.
(1) Except
as provided herein below, the designated authority may initiate an
investigation to determine the existence and effect of any alleged
circumvention of the anti dumping duty levied under
section 9A of the Act , upon receipt of a written
application by or on behalf of the domestic industry.
(2) The
application shall, inter-alia, contain sufficient evidence as regards
the existence of the circumstances to justify initiation of an
anti-circumvention investigation.
(3) Notwithstanding
anything contained in sub-rule (1), the designated authority may initiate an
investigation suo-motu if it is satisfied from
the information received from the Commissioner of Customs appointed under the
Customs Act, 1962 (52 of 1962) or any other source that sufficient evidence
exists as to the existence of the circumstances pointing to circumvention of anti dumping duty in force.
(4) The
designated authority may initiate an investigation to determine the existence
and effect of any alleged circumvention of the antidumping duty in force where
it is satisfied that imports of the article circumventing an anti dumping duty in force are found to be dumped:
Provided that, the designated
authority shall notify the government of the exporting country before
proceeding to initiate such an investigation.
(5) The
provisions regarding evidence and procedures under rule 6 shall apply mutatis
mutandis to any investigation carried out under this rule.
(6) Any
such investigation shall be concluded within 12 months and in no case more than
18 months of the date of initiation of investigation for reasons to be recorded
in writing by the designated authority.
(1) The
designated authority, upon determination that circumvention of anti dumping duty exists, may recommend imposition of anti dumping duty to imports of articles found to be
circumventing an existing anti dumping duty or to
imports of article
originating in or exported from countries other than those which are already
notified for the purpose of levy of the antidumping duty and such levy may
apply retrospectively from the date of initiation of the investigation under
rule 26.
(2) The
designated authority shall issue a public notice recording its findings.
(3) The
Central Government may, pursuant to the recommendations made by the designated
authority, extend the anti dumping duty to imports of
article including imports of such article from the date of initiation of the
investigation under rule 26 or such date as may be recommended by the
designated authority.
(1) The designated authority may review the need
for the continued imposition of the duty, where warranted, on its own
initiative or provided that a reasonable period of time has elapsed since the
imposition of the measures, upon request by any interested party which submits
positive information substantiating the need for the review.
(2) Any review initiated under sub-rule (1) shall
be concluded within a period not exceeding twelve months from the date of
initiation of review.
[Rules 25 to 28
inserted by 06-Cus(NT)/19.01.2012]
Annexure 1
(See rule 8)
Principles
governing the determination of Normal Value, Export Price and Margin of
Dumping.
The designated authority while determining the normal value, export
price and margin of dumping shall take into account inter alia, the following
principles-
1. The elements of costs referred to in the context of determination
of normal value shall normally be determined on the basis of records kept by
the exporter or producer under investigation, provided such records are in
accordance with the generally accepted accounting principle of the exporting
country, and such records reasonable reflect the cost associated with
production and sales of the article under consideration.
2. Sales of the like product in the domestic make of the
exporting country or sales to a third country at prices below per unit (fixed
and variable) costs of production plus administrative, selling and general
costs may be treated as not being in the ordinary course of trade by reason of
price. The designated authority may disregard these sales, in determining
normal value, provided it has determined that-
(i) such sales are made with in
a reasonable period of time (not less than six months) in substantial
quantities, i.e. when the weighted average selling price of the article is
below the weighted average per unit costs or when the volume of the sales below
per unit costs represents not less than twenty per cent of the volume in
transactions under consideration, and
(ii) such sales are at
prices, which do not provide for the recovery of all costs within a reasonable
period of time. The said prices will be considered to provide for recovery of
costs within a reasonable period of time if they are above weighted average per
unit costs for the period of investigation, even though they might have been
below per unit costs at the time of sale.
3. (i) The said authority in the course of investigation
shall consider all available evidence on the proper allocation of costs,
including that which is made available by the exporter or producer provided
that such allocation has been historically utilized by the exporter of
producer, in relation to establishing allowances for capital expenditure and
other development costs.
(ii) unless already reflected
in allocation of costs referred to in clause (1) and sub-clause (i) above, the
designated authority, will also make appropriate adjustments for those
non-recurring items of cost which benefit further and/or current production, or
for circumstances in which costs during the period of investigation are
affected by start up operation.
4. The amounts for administrative, selling and general
costs and for profits as referred to in sub-section (1) of section 9A of the
Act, shall be based on actual data pertaining to production and sales in the
ordinary course of trade, of the like article by the exporter or producer under
investigation. When such amounts cannot be determined on this basis, the
amounts may be determined on the basis of:
(i) the actual amounts incurred and realized by the
exporter of producer in question, in respect or producer in question, in
respect of production and sales in the domestic market of the country of origin
of the same general category of article;
(ii) the weighted average of the actual amounts
incurred and realized by other exporters or producers, subject to investigation
in respect of production and sales of the like article in the domestic market
of the country of origin; or
(iii) any other reasonable
method, provided that the amount for profit so established shall not exceed the
profit normally realized by the exporters or producers on sales of products of
the same general category in the domestic market of the country of origin.
5. The designated authority, while arriving at a
constructed export price, shall give due allowance for costs including duties
and taxes, incurred between importation and resale and for profits.
6. (i) While arriving at margin
of dumping, the designated authority shall make a fair comparison between
the export price and the normal value. The comparison shall be made at the same
level of trade, normally at the ex-factory level and in respect of sales made
at as nearly as possible the same time. Due allowance shall be made in each
case, on its merits, for differences which affect price comparability,
including differences in conditions and terms of sale, taxation, levels of
trade, quantities, physical characteristics, and any other differences which
are demonstrated to affect price comparability.
(ii) In the cases where export price is a constructed
price, the comparison shall be made only after establishing the normal value at
equivalent level of trade.
(iii) When the comparison under this para requires a conversion of currencies, such conversion
should be made by using the rate of exchange on the date of sale, provided that
when a sale or foreign currency on forward markets is directly linked to the
export sale involved the rate of exchange in the forward sale shall be used.
Fluctuations in exchange rates shall be ignored and in an investigation the
exporters shall be given at least sixty days to have adjusted their export prices
to reflect sustained movements in exchange rates during the period of
investigation.
(iv) Subject to the provisions governing comparison in this paragraph, the existence of
margin of dumping during the investigation phase shall normally be established
on the basis of a comparison of a weighted average normal value and export
prices on a transaction-to-transaction basis. A normal value established on a
weighted average basis may be compared to prices of individual export
transactions if it is found that a pattern of export prices which differ
significantly among different purchasers, regions or time periods, and if an
explanation is provided as to why such differences cannot be taken into account
appropriately by the use of a weighted average-to-weighted average or
transaction-to-transaction comparison.
7. In case of
imports from non-market economy countries, normal value shall be determined on
the basis if the price or constructed value in the market economy third
country, or the price from such a third country to other countries, including
India or where it is not possible, or on any other reasonable basis, including
the price actually paid or payable in India for the like product, duly adjusted
if necessary, to include a reasonable profit margin. An appropriate market
economy third country shall be selected by the designated authority in a
reasonable manner keeping in view the level of development of the country
concerned and the product in question and due account shall be taken of any
reliable information made available at the time of selection. Accounts shall be
taken within time limits, where appropriate, of the investigation made in any
similar matter in respect of any other market economy third country. The
parties to the investigation shall be informed without any unreasonable delay
the aforesaid selection of the market economy third country and shall be given
a reasonable period of time to offer their comments.
8. (1) The term “non-market economy country” means
any country which the designated authority determines as not operating on
market principles of cost or pricing structures, so that sales of merchandise
in such country do not reflect the fair value of the merchandise, in accordance
with the criteria specified in sub-paragraph (3)
(2) There shall be a presumption that any country that has been
determined to be, or has been treated as, a non-market economy country for
purposes of an anti-dumping investigation by the designated authority or by the
competent authority of any WTO member country during the three year period
preceding the investigation is a non-market economy country.
Provided, however, that the non-market economy country
or the concerned firms from such country may rebut such a presumption by
providing information and evidence to the designated authority that establishes
that such country is not a non-market economy country on the basis of the
criteria specified in sub-paragraph (3).
(3) The designated authority shall consider in each case the following
criteria as to whether:
(a) the decisions of concerned firms in such country
regarding prices, costs and inputs, including raw materials, cost of technology
and labour, output, sales and investment, are made in
response to market signals reflecting supply and demand and without significant
State interference in this regard, and whether costs of major inputs
substantially reflect market values;
(b) the production costs and financial situation of
such firms are subject to significant distortions carried over from the former
non-market economy system, in particular in relation to depreciation of assets,
other write-offs, barter trade and payment via compensation of debts;
(c) such firms are subject to
bankruptcy and property laws which guarantee legal certainty and stability for
the operation of the firms, and
(d) the exchange rate
conversions are carried out at the market rate:
Provided, however, that where it is shown by
sufficient evidence in writing on the basis of the criteria specified in this
paragraph that market conditions prevail for one or more such firms subject to
anti-dumping investigations, the designated authority may apply the principles
set out in paragraphs 1 to 6 instead of the principles set out in paragraph 7
and in this paragraph.
[Rule 8 inserted by Customs notification
28(NT) dated 31.04.2001; Amended by 01(NT)/dated04.01.2002]
(4) Notwithstanding anything contained in sub-paragraph (2), the
designated authority may treat such country as market economy country which, on
the basis of the latest detailed evaluation of relevant criteria, which
includes the criteria specified in sub paragraph (3), has been, by publication
of such evaluation in a public document,
treated or determined to be treated as market economy country for the purposes
of anti-dumping investigations, by a country which is a Member of the World
Trade Organisation.
[8(4) Inserted by 101(NT)/10.11.2003]
Note :- For the purposes of this
paragraph, the list of non market economy countries is Albania, Armenia,
Azerbaijan, Belarus, Peoples’ Republic of China, Georgia, Kazakstan,
North Korea, Kyrghyzstan, Moldova, Mongolia, Russia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan and Vietnam. Any country
among them seeking to establish that it is a market economy country as per
criteria enunciated in this paragraph, may provide all necessary information
which shall be taken due account by the designated authority.
Annexure-II
[see
rule 9(2)]
Principle for
Determination of Injury
The designated authority while determining the injury or threat or
material injury to domestic industry or material retardation of the
establishment of such an industry hereinafter referred to as “injury” and
causal link between dumped imports and such injury, shall inter-alia, take
following principles under consideration-
(i) A determination of injury shall involve an
objective examination of both (a) the volume of the dumped imports and the
effect of the dumped imports on prices in the domestic market for like article
and (b) the consequent impact of these imports on domestic producers of such
products.
(ii) While examining the volume of dumped imports, the
said authority shall consider whether there has been a significant increase in
the dumped imports, either in absolute terms or relative to production or
consumption in India. With regard to the effect of the dumped imports on prices
as referred to in sub-rule (2) of rule 18 the designated authority shall
consider whether there has been a significant price under cutting by the dumped
imports as compared with the price of like product in India, or whether the
effect of such imports is otherwise to depress prices to a significant degree
or prevent price increase which other wise would have occurred to a significant degree.
(iii) In cases where imports of a product from more
than one country are being simultaneously subjected to anti-dumping
investigation, the designated authority will cumulatively assess the effect of
such imports, only when it determines that (a) the margin of dumping
established in relation to the imports from each country is more than two per
cent expressed as percentage of export price and the volume of the imports from
each country is three percent of the import of like article or where the export
of individual countries less than three per cent, the imports collectively
accounts for more than seven per cent of the import of like article and (b)
cumulative assessment of the effect of imports is appropriate in light of the
conditions of competition between the imported article and the like domestic
articles.
(iv) The examination of the impact of the dumped
imports on the domestic industry concerned, shall include an evaluation of all
relevant economic factors and indices having a bearing or the state of the
industry, including natural and potential decline in sales, profits, output
market share, productivity, return on investments or utilisation
of capacity; factors affecting domestic prices, the magnitude of the margin of
dumping; actual and potential negative effects on cash flow inventories,
employment, wages, growth, ability to raise capital investments.
(v) It must be demonstrated that the dumped imports
are, through the effects of dumping, as set forth in paragraphs (ii) and (iv) above, causing injury to the domestic industry. The
demonstration of a causal relationship between the dumped imports and the
injury to the domestic industry shall be based on an examination of relevant
evidence before the designated authority. The designated authority shall also
examine any known factors other than the dumped imports which at the same time
are injuring the domestic industry, and the injury caused by these other
factors must not be attributed to the dumped imports. Factors which may be
relevant in this respect include, inter-alia, the volume and prices of imports not
sold at dumping prices, contraction in demand or changes in the patterns of
consumption, trade restrictive practices of and competition between the foreign
and domestic producers, developments in technology and the export performance
and the productivity of the domestic industry.
(vi) The effect of the dumped imports shall be
assessed in relation to the domestic production of the like article when
available data permit the separate identification of that production on the
basis of such criteria as the production process, producers
sales and profits. If such separate identification of that production is not
possible, the effects of the dumped imports shall be assessed by the
examination of the production of the narrowest group or range of products,
which includes the like product, for which the necessary information can be
provided.
(vii) A determination of a threat of material injury
shall be based on facts and not merely on allegation, conjucture
or remote possibility. The change in circumstances or remote
possibility. The change in circumstances which would create a situation
in which the dumping would cause injury must be clearly foreseen and imminent.
In making a determination regarding the existence of a threat of material
injury, the designated authority shall consider, inter-alia, such factors and
(a) a significant rate of
increase of dumped imports into India indicating the likelihood of
substantially increased importation;
(b) sufficient freely disposable or an imminent,
substantial increase in capacity of the exporter indicating the likelihood of
substantially increased dumped exports to Indian market, taking into account
the availability of other export markets to absorb any additional exports;
(c) whether imports are entering at prices that will
have a significant depressing or suppressing effect on domestic prices, and
would likely increase demand for further imports; and
(d) inventories of the
article being investigated.
ANNEXURE
III
[See rule 17(1)]
Principles for
determination of non-injurious price
(1) The designated authority is required under sub-rule (1) of rule 17
to recommend the amount of anti-dumping duty which, if levied, would remove the
injury where applicable to the domestic industry.
(2) For the purpose of making recommendation under clause (1), the
designated authority shall determine the fair selling (notional) price or
non-injurious price of the like domestic product taking into account the
principles specified herein under.
(3) The non-injurious price is required to be determined by considering
the information or data relating to cost of production for the period of
investigation in respect of the producers constituting domestic industry.
Detailed analysis or examination and reconciliation of the financial and cost
records maintained by the constituents of the domestic industry are to be
carried out for this purpose.
(4) The following elements of cost of production are required to be
examined for working out the non injurious price, namely: —
(i) The best utilisation of raw
materials by the constituents of domestic industry, over the past three years
period and the period of investigation, and at period of investigation rates
may be considered to nullify injury, if any, caused to the domestic industry by
inefficient utilisation of raw materials.
(ii) The best utilisation of
utilities by the constituents of domestic industry, over the past three years
period and period of investigation, and at period of investigation rates may be
considered to nullify injury, if any, caused to the domestic industry by
inefficient utilization of utilities.
(iii) The best utilisation
of production capacities, over the past three years period and period of
investigation, and at period of investigation rates may be considered to
nullify injury, if any, caused to the domestic industry by inefficient
utilization of production capacities.
(iv) The Propriety of all expenses, grouped and charged to the cost of
production may be examined and any extra-ordinary or non-recurring expenses
shall not be charged to the cost of production and salary and wages paid per
employee and per month may also be reviewed and reconciled with the financial
and cost records of the company.
(v) To ensure the reasonableness of amount of
depreciation charged to cost of production, it may be examined that no charge
has been made for facilities not deployed on the production of the subject
goods, particularly in respect of multi-product companies and the depreciation
of re-valued assets, if any, may be identified and excluded while arriving at
reasonable cost of production.
(vi) The expenses to the extent identified to the
product are to be directly allocated and common expenses or overheads
classified under factory, administrative and selling overheads may be
apportioned on reasonable and scientific basis such as machine hours, vessel
occupancy hours, direct labour hours, production
quantity, sales value, etc., as applied consistently by domestic producers and
the reasonableness and justification of various expenses cl aimed for the
period of investigation may be examined and scrutinised
by comparing with the corresponding amounts in the immediate preceding year.
(vii) The expenses, which shall not to be considered
while assessing non-injurious price include,—
a) research and development Provisions (unless claimed and
substantiated as related to the product specific research);
b) since non-injurious price is determined at ex-factory level,
the post manufacturing expenses such as commission, discount, freight- outward
etc.at ex-factory level;
c) excise duty, sales tax and other tax levies on sales;
d) expenses on job work done for other units;
e) royalty, unless it is related to technical know-how for the
product;
f) trading activity of product under consideration; or
g) other non-cost items like bad debts, donations, loss on sale
of assets, loss due to fire, flood, etc.
(viii) A reasonable return (pre-tax) on average
capital employed for the product may be allowed for recovery of interest,
corporate tax and profit. The average capital employed is the sum of “net fixed
assets and net working capital which shall be taken on the basis of
average of the same as on the beginning and at the end of period of
investigation. For assessment of reasonable level of working capital requirement,
all the elements of net working capital shall be scrutinised
in detail. The impact of revaluation of fixed assets shall not be considered in
the calculation of capital employed. Interest is allowed as an item of cost of sales
and after deducting the interest, the balance amount of return is to be allowed
as pre-tax profit to arrive at the non- injurious price.
(ix) Reasonableness of interest cost may be examined
to ensure that no abnormal expenditure on account of interest has been
incurred. Details of term loans, cash credit limits, short term loans, deposits
and other borrowings taken by the company and interest paid thereon may be
examined in detail along with the details of assets deployed.
(x) In case there is more than one domestic producer,
the weighted averages of non-injurious price of individual domestic producers
are to be considered. The respective share of domestic production of the
subject goods may be taken as basis for computation of weighted average
non-injurious price for the domestic industry as a whole.
[Annexure III inserted by 15-Cus(NT)/01.03.2011]