Customs Tariff (Identification, Assessment and Collection of
Anti-Dumping Duty on Dumped Articles and for Determination of
Injury) Rules, 1995 [ 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,
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,]
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 which case [such producers may be deemed]
not to form part of domestic industry :
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
producers within each of such market a separate industry, if -
(i) the producers within such a market
sell all or almost all of their production of the article in
question in that market; and
(ii) the demand 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 trader 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
an 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 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, and
the date of commencement of such duty; and].
(e) to review the need for continuance
of anti-dumping duty.
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 casual 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 (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 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 known.
(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 of 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 basis of the facts available to it and make such
recommendations to the Central Government as it deems fit under
such circumstances.
7. Confidential
information.- (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) Notwithstanding anything
contained in sub-rule (2), if the designated authority is
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 form, 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 and 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 even 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 finding 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 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 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.
2. The designated authority shall
issue a public notice recording its preliminary findings.
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 and 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
fulfilment of the undertaking and to permit verification of
relevant data :
[Provided that in case of any violation
of an undertaking, the designated authority shall, as soon as may
be possible, inform the Central Government of the violation of
the undertaking and recommend imposition of provisional duty from
the date of such violation in accordance with the provisions of
these rules.]
(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 casual 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 its discretion in special circumstances] 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 remove the injury where applicable, to the
domestic industry.]
(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 based 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
proviso 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 an 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, anti-dumping duty not exceeding the margin of dumping as
determined under rule 17 :
[
* * * *]
(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 on the articles of specific
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.
[Provided also that notwithstanding anything
contained in the foregoing proviso, in case of violation of such
undertaking, the provisional duty shall be deemed to have been
levied from the date of violation of the undertaking or such date
as the Central Government may specify in each case.]
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 margins of dumping for any exporters or
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 (1) of section 9A
of the Act on imports from such exporters or producers during the
period of review as referred to in
sub-rule (1) of this rule :
Provided that the Central Government
may resort to provisional assessment and may ask a guarantee from
the importer if the designated authority so recommends and if
such a review results in a determination of dumping 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) The designated authority shall, from time to time,
review the need for the continued imposition of the anti-dumping
duty and shall, if it is satisfied on the basis of information
received by it that there is no justification for the continued
imposition of such duty recommend to the Central Government for
its withdrawal.
(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 Trade
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.
ANNEXURE I
(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 principles of
the exporting country, and such records reasonably reflect the
cost associated with production and sale of the article under
consideration.
2. Sales of the like product in
the domestic market 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 within 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 sold 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 or
producer, in relation to establishing appropriate amortization
and depreciation periods and 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 benefits
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
realised by the exporter 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 on 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
of the price or constructed value in a market economy third
country, or the price from such a third country to other
countries, including India, or where it is not possible, 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 the selection. Account shall also be
taken within time limits; where appropriate, of the investigation
if any made in similar matter in respect of any other market
economy third country. The parties to the investigation shall be
informed without 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].
[(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 a market economy country for the
purposes of anti-dumping investigations, by a country which is a
Member of the World Trade Organisation.]
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)]
Principles for determination of injury
The designated authority while determining the injury or threat
of material injury to domestic industry or material retardation
of the establishment of such an industry, hereinafter referred to
as "injury" and casual 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 affect 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 affect 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 otherwise 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 per cent 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 on 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 casual 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, conjecture 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 as :
(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 markets, 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.
Notification
No. 63/2000 - Customs (N.T.) - Appointment of designated
authority for rule 3 of the Customs Tariff (Identification,
Assessment and Collection of Anti-dumping Duty on Dumped Articles
and for Determination of Injury) Rules, 1995
|