Laws of Antidumping in India

LAWS OF ANTIDUMPING IN INDIA
 


Introduction

Dumping is said to have taken place when an exporter sells a product to India at a price less than the Normal Value of dumping- like articles' sold in the domestic market of the exporter. However, imports at a cheap or low prices do not indicate dumping. The normal value is the comparable price at which the goods under complaint fare sold, in the ordinary course of trade, in the domestic market of the exporting country or territory.
 
This is an unfair trade practice which can have a distortive effect on international trade. Anti-dumping is a measure to rectify the situation arising out of the dumping of goods and its trade distortive effect. Thus, the purpose of anti-dumping duty is to rectify the trade distortive effect of dumping and re-establish fair trade. The use of anti-dumping measure as an instrument of fair competition is permitted by the WTO. In fact, anti-dumping is an instrument for ensuring fair trade and is not a measure of protection per se for the domestic industry.

Legal Framework

LEGAL FRAMEWORK
 
The first Indian Anti-dumping legislation came into existence in 1985 when the Customs Tariff (Identification, Assessment and Collection of duty or Additional duty on Dumped Articles and for Determination of Injury) Rules, 1985 were notified. However, the laws of anti-dumping in India
  1. Based on Article VI of GATT 1994 (commonly known as Agreement on Anti-Dumping)
  2. Customs Tariff Act, 1975-Sec 9A, 9B (as amended in 1995)
  3. Anti-Dumping Rules [Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on    Dumped Articles and for Determination of Injury) Rules,1995]
  4. Investigations and Recommendations by Designated Authority, Ministry of Commerce
  5. Imposition and Collection by Ministry of Finance

Parameters To Assess Dumping of Goods

Dumping means export of goods by one country/territory to the market of another country/territory at a price lower than the normal value. If the export price is lower than the normal value, it constitutes dumping. Thus, there are two fundamental parameters used for determination of dumping, namely, the normal value and the export price. Both these elements have to be compared at the same level of trade, generally at ex-factory level, for assessment of dumping.
 
Normal Value
 
Normal value is the comparable price at which the goods under complaint are sold, in the ordinary course of trade, in the domestic market of the exporting country.
 
If the normal value can not be determined by means of the domestic sales, the following two alternative methods may be employed to determine the normal value:-
  1. Comparable representative export price to an appropriate third country.
  2. Constructed normal value, i.e. the cost of production in the country of origin with reasonable addition for administrative, selling and general costs and reasonable profits.

Export price

The Export price of the goods allegedly dumped into India means the price at which it is exported to India . It is generally the CIF value minus the adjustments on account of ocean freight, insurance, commission, etc. so as to arrive at the value at ex-factory level.
 
Dumping Margin
 
The margin of dumping is the difference between the Normal value and the export price of the goods under complaint. It is generally expressed as a percentage of the export price.

Anti Dumping and The Customs Duty

Although anti-dumping duty is levied and collected by the Customs Authorities, it is entirely different from the Customs duties not only in concept and substance, but also in purpose and operation. The following are the main differences between the two:- 
  1. Conceptually, anti-dumping and the like measures in their essence are linked to the notion of fair trade. The object of these duties is to guard against the situation arising out of unfair trade practices while customs duties are there as a means of raising revenue and for overall development of the economy.
  2. Customs duties fall in the realm of trade and fiscal policies of the Government while anti-dumping and anti subsidy measures are there as trade remedial measures.
  3. The object of anti-dumping and allied duties is to offset the injurious effect of international price discrimination while customs duties have implications for the government revenue and for overall development of the economy.
  4. Anti dumping duties are not necessarily in the nature of a tax measure inasmuch as the Authority is empowered to suspend these duties in case of an exporter offering a price undertaking. Thus such measures are not always in the form of duties/tax.
  5. Anti dumping and anti subsidy duties are levied against exporter / country in as much as they are country specific and exporter specific as against the customs duties which are general and universally applicable to all imports irrespective of the country of origin and the exporter. 
ANTI-DUMPING DUTY
 
Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.
 
Margin Of Dumping in relation to an article, means the difference between its export price and its normal value.
 
Export Price means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party.
 
Normal Value means the comparable price, in the ordinary course of trade, for the like Article when meant for consumption in the exporting country or territory.
 
A normal value may be determined where there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either-
  1. comparable representative of the like article when exported from the exporting country or territory or an appropriate third country; or
  2. the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits,

Procedure To File an Anti Dumping Case

Initiating an Anti Dumping Investigation
 
The following are essential for initiating an anti-dumping investigation:-
  1. Sufficient evidence (Bill of Entry, Invoices, Letter from the Indian Mission in the subject country, Data from secondary sources like specialized commodity journals etc. as to the existence of dumping in relation to the goods imported from the subject country) to the effect that
    1. there is dumping
    2. there is injury to the domestic industry; and
    3. there is a causal link between the dumping and the injury, that is to say, that the dumped imports have caused the alleged injury.
  1. The domestic producers expressly supporting the anti-dumping application must account for not less than 25% of the total production of the like article by the domestic industry.
The application is 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 50% 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.
 
Determining the injury to the domestic industry
 
Broadly, injury may be analysed in terms of the volume effect and price effect of the dumped imports. The parameters by which injury to the domestic industry is to be assessed in the anti-dumping proceedings are such economic indicators having a bearing upon the state of industry as the magnitude of dumping, and the decline in sales, selling price, profits, market share, production, utilisation of capacity etc.
 
Establishing link between dumping and injury to the domestic industry
 
In the anti-dumping proceedings, it is imperative to prove that the dumping has caused injury to the domestic industry. Anti dumping duty shall not be recommended without a finding of this causal relationship.
 
The causal link is to be established generally in terms of the following effects of dumped imports on domestic industry:-
  1. volume effect
  2. price effect
The volume effect of dumping relates to the market share of the domestic industry visvis the dumped imports from the subject country while with regard to the price effect, the Designated Authority shall consider whether there has been a significant price under cutting by the dumped imports as compared with the price of the 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.
 
Interested parties in an anti-dumping investigation
 
The interested parties to an anti-dumping investigation include:
  1. the domestic industry on whose complaint the proceedings are initiated;
  2. The exporters or the foreign producers of the like articles subject to investigation;
  3. The importers of the same article allegedly dumped into India ;
  4. The Government of the exporting country/countries.
  5. The trade or business associations of the domestic producers/importers/user industries of the dumped product.
Any representative duly authorised by the petitioner/interested parties/ Association etc. can appear in the Anti-dumping cases to represent the concerned parties.
 
Extent of anti-dumping duty
 
Under the WTO arrangement, the National Authorities can impose duties upto the margin of dumping i.e. the difference between the normal value and the export price. The Indian law also provides that the anti-dumping duty to be recommended/levied shall not exceed the dumping margin.
 
Minimum Level Of Imports
 
Individual exporter:
 
Any exporter whose margin of dumping is less than 2% of the export price shall be excluded from the purview of anti-dumping duties even if the existence of dumping, injury as well as the causal link is established.
 
Country:
 
Further, investigation against any country is required to be terminated if the volume of the dumped imports, actual or potential, from a particular country accounts for less than 3% of the total imports of the like product.
 
However, in such a case, the cumulative imports of the like product from all these countries who individually account for less than 3%, should not exceed 7% of the import of the like product.

Relief/Remedy To The Domestic Industry

The relief to the domestic industry against dumping of goods from a particular country is in the form of anti-dumping duty imposed against that country/ies, which could go upto the dumping margin. Such duties are exporter specific and country specific.
 
However, the remedy against dumping is not always in the form of anti-dumping duty. The Authority may terminate or suspend investigation after the preliminary findings if the exporter concerned furnished an undertaking to revise his price to remove the dumping or the injurious effect of dumping as the case may be. No anti-dumping duty is recommended on such exporters from whom price undertaking has been accepted.
 
Remedial Measures Against Unfair Trade Practices
 
Apart from dumping, some of the countries also resort to subsidisation of their exports to other countries. Export subsidies, under the WTO agreement, are treated as unfair trade practice and such subsidies are actionable by way of levy of anti-subsidy countervailing duty.
 
There is one more trade remedial measure called " safeguards " which are applied as an emergency measure in response to surge in imports of a particular item.
 
Anti subsidy countervailing measure is in the form of countervailing duty which is to be imposed only after the determination that:
  1. the subsidy is a specific subsidy
  2. the subsidy relates to export performance;
  3. the subsidy relates to the use of domestic goods over imported goods in the export article; or
  4. the subsidy has been conferred on a limited number of persons engaged in manufacturing, producing or exporting the article. 

A subsidy is said to exist; 

  1. if there is a financial contribution by the Government or any public body within the territory of the exporting country, i.e. where- 
    1. there is a direct transfer of funds(including grants, loans and equity) by the Government;
    2. government revenue i.e. otherwise due is foregone and not collected(including fiscal incentives, I.T. exemption
    3. a government provides goods or services other than general infrastructure; 
  2. a government grants or maintains any form of income or price support which operates directly or indirectly to increase export of any article from its territory. 
Safeguards
 
Safeguards, on the other hand, are applied when: 
  1. there is a surge in imports of a particular product irrespective of a particular country/ies and,
  2. it causes serious injury to the domestic industry.
  3. Safeguard measures are applied to all imports of the product in question irrespective of the countries in which it originates or from which it is exported. This aspect distinguishes Safeguards from anti-dumping and anti subsidy measures which are always country specific and exporter specific.
  4. Safeguards are applied in the form of either safeguard duty or in the form of safeguard QRs (import licenses). These measures are administered in India by an Authority called Director General (Safeguards) who functions in the jurisdiction of the Department of Revenue, Ministry of Finance.

Investigation Process

An Application received by the Designated Authority is dealt with in the following manner:
 
Preliminary Screening
 
The application is scrutinized to ensure that it is fully documented and provides sufficient evidence for initiating an investigation. If the evidence is not adequate, then a deficiency letter is issued. Unless the deficiencies are rectified, the submission made before the Authority can not be construed as an application pending before the Authority.
 
Initiation
 
Designated Authority determines that the application has been made by or on behalf of the Domestic Industry. It also examines the accuracy and adequacy of the evidence provided in the application and when satisfied that there is sufficient evidence regarding dumping, injury and causal link, a public notice is issued initiating an investigation.
 
The Initiation notice will be issued normally within 5 days from the date of receipt of a properly documented application.
 
Access to Information
 
The Authority provides access to the non-confidential evidence presented to it by various interested parties in the form of a public file, which is available for inspection to all interested parties on request after receipt of the responses.
 
Preliminary Findings
 
The Designated Authority will proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, make a preliminary finding containing the detailed information on the main reasons behind the determination. The preliminary finding will normally be made within 60-70 days from the date of initiation.
 
Provisional Duty
 
A provisional duty not exceeding the margin of dumping may be imposed by the Central Government on the basis of the preliminary finding recorded by the Designated Authority.
 
The provisional duty can be imposed only after the expiry of 60 days from the date of initiation of investigation. The provisional duty will remain in force only for a period not exceeding 6 months, extendable to 9 months under certain circumstances.
 
Oral Evidence & Public Hearing
 
Interested parties who participate in the investigations can request the Designated Authority for an opportunity to present the relevant information orally. However, such oral information shall be taken into consideration only when it is subsequently reproduced in writing. The Authority may grant oral hearing any time during the course of the investigation.
 
Besides the above, the Authority holds a public hearing inviting all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.
 
Disclosure of information
 
Based on these submissions and evidence gathered during the investigation and verification thereof, the Authority will determine the basis of its final findings. However, the Designated Authority will inform all interested parties of the essential facts, which form the basis for its decision before the final finding is made.
 
Final Determination
 
The interested parties submit their response to the disclosure and the final position of the Authority taken therein. The Authority examines these final submissions of the parties and comes out with final findings.
 
Time-limit
 
Normal time allowed by the statute for conclusion of investigation and submission of final findings is one year from the date of initiation of the investigation. The above period may be extended by the Central Government by 6 months.
 
The anti-dumping proceedings being quasi judicial in nature, the Designated Authority meticulously follows the norms of natural justice before making the final recommendation of duty.
  1. The interested parties to the investigation are given adequate opportunity to represent their case at several stages of investigation.
  2. The first opportunity is provided after the initiation of proceedings. The Authority duly considers the submissions of all interested parties in response to the initiation while giving its Preliminary findings.
  3. After the imposition of provisional duty, the interested parties file their responses to the Preliminary findings and opportunity is provided to them to submit the facts and figures to the Authority at the stage of verification of their information if the same has been already filed in response to the initiation.
  4. A formal Public hearing is held providing opportunities to all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.
  5. All these submissions of the different interested parties are given due consideration and on that basis the Authority issues a disclosure of essential facts which are proposed to form the basis of final findings.
  6. The parties to the investigation are also given the final opportunity to respond to the disclosure and represent their case before the final findings are notified.
Interim Relief
 
The Designated Authority recommends an interim relief which is provided to the affected domestic industry in the form of provisional anti-dumping duty pending the finalisation of investigation proceedings.
 
The provisional anti-dumping duty is recommended by the Authority in its preliminary findings and the same is levied by the Ministry of Finance, Dept. of Revenue. This serves as immediate relief to the domestic industry against the injury caused to it by the dumping of goods.
 
Statutorily, the provisional anti-dumping duty can not be levied earlier than 60 days from the date of initiation of proceedings. The endeavor of the Designated Authority has been to recommend provisional duty immediately after the expiry of the mandatory period of 60 days. The provisional anti-dumping duty is recommended in a period of 60-70 days and levied in a period of about 3 months from the date of initiation of the proceedings.

Levy of Anti-Dumping Duty

Anti-dumping duty can be levied on a retrospective basis in case it is found that are-

  1. there is a history of dumping which caused injury or that the importer was, or should have been aware that the exporter practices dumping and that such dumping would cause injury; and
  2. the injury caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable to be levied.

However, the anti-dumping duty cannot be levied retrospectively beyond 90 days from the date of issue of Notification imposing duty.

While the Designated Authority (in the Department of Commerce) recommends the anti-dumping duty, provisional or final , it is the Ministry of Finance, Dept. of Revenue which acts upon such recommendation within three months and imposes/levies such duty.

APPEAL

The law provides that an order of determination of existence degree and effect of dumping is appealable before the Customs, Excise and Gold (Control) Appellate Tribunal ( CEGAT ). However, as per the judicial view, only the final findings/order of the Designated Authority/Ministry of Finance can be appealed against before the CEGAT.

Appeal cannot lie against the Preliminary findings of the Authority and the provisional duty imposed on the basis thereof. The Appeal to the CEGAT should be filed within 90 days.

Authority For Anti Dumping

Anti-dumping and anti subsidies & countervailing measures in India are administered by the Directorate General of anti-dumping and Allied Duties (DGAD) functioning in the Dept. of Commerce in the Ministry of Commerce and Industry and the same is headed by the "Designated Authority". The Designated Authority's function, however, is only to conduct the anti-dumping/anti subsidy & countervailing duty investigation and make recommendation to the Government for imposition of anti-dumping or anti subsidy measures.
 
Such duty is finally imposed/levied by a Notification of the Ministry of Finance. Thus, while the Department of Commerce recommends the Anti-dumping duty, it is the Ministry of Finance, which levies such duty.
 
Safeguard measures, on the other hand, are administered by another Authority namely, Director General (Safeguard), which functions under the Dept. of Revenue, Ministry of Finance. The Standing Board of Safeguards (chaired by the Commerce Secretary) considers the recommendations of the DG (Safeguards) and then recommends the impositions of the Safeguard Duty as it deems fit, to the Ministry of Finance which levies the duty.

Laws of Anti-Dumping in India

LAWS OF ANTI-DUMPING IN INDIA

Dumping is said to have taken place when an exporter sells a product to India at a price less than the Normal Value of 'like articles' sold in the domestic market of the exporter. However, imports at a cheap or low prices do not indicate dumping. The normal value is the comparable price at which the goods under complaint fare sold, in the ordinary course of trade, in the domestic market of the exporting country or territory.

This is an unfair trade practice which can have a distortive effect on international trade. Anti-dumping is a measure to rectify the situation arising out of the dumping of goods and its trade distortive effect. Thus, the purpose of anti-dumping duty is to rectify the trade distortive effect of dumping and re-establish fair trade. The use of anti-dumping measure as an instrument of fair competition is permitted by the WTO. In fact, anti-dumping is an instrument for ensuring fair trade and is not a measure of protection per se for the domestic industry.

LEGAL FRAMEWORK

The first Indian Anti-dumping legislation came into existence in 1985 when the Customs Tariff (Identification, Assessment and Collection of duty or Additional duty on Dumped Articles and for Determination of Injury) Rules, 1985 were notified. However, the laws of anti-dumping in India
  1. Based on Article VI of GATT 1994 (commonly known as Agreement on Anti-Dumping)
  2. Customs Tariff Act, 1975- Sec 9A, 9B (as amended in 1995)
  3. Anti-Dumping Rules [Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules,1995]
  4. Investigations and Recommendations by Designated Authority, Ministry of Commerce
  5. Imposition and Collection by Ministry of Finance
PARAMETERS TO ASSESS DUMPING OF GOODS

Dumping means export of goods by one country/territory to the market of another country/territory at a price lower than the normal value. If the export price is lower than the normal value, it constitutes dumping. Thus, there are two fundamental parameters used for determination of dumping, namely, the normal value and the export price. Both these elements have to be compared at the same level of trade, generally at ex-factory level, for assessment of dumping.

Normal Value

Normal value is the comparable price at which the goods under complaint are sold, in the ordinary course of trade, in the domestic market of the exporting country.

If the normal value can not be determined by means of the domestic sales, the following two alternative methods may be employed to determine the normal value:-
  1. Comparable representative export price to an appropriate third country.
  2. Constructed normal value, i.e. the cost of production in the country of origin with reasonable addition for administrative, selling and general costs and reasonable profits.
Export price

The Export price of the goods allegedly dumped into India means the price at which it is exported to India . It is generally the CIF value minus the adjustments on account of ocean freight, insurance, commission, etc. so as to arrive at the value at ex-factory level.

Dumping Margin

The margin of dumping is the difference between the Normal value and the export price of the goods under complaint. It is generally expressed as a percentage of the export price.

ANTI-DUMPING AND THE CUSTOMS DUTY

Although anti-dumping duty is levied and collected by the Customs Authorities, it is entirely different from the Customs duties not only in concept and substance, but also in purpose and operation. The following are the main differences between the two:-
  1. Conceptually, anti-dumping and the like measures in their essence are linked to the notion of fair trade. The object of these duties is to guard against the situation arising out of unfair trade practices while customs duties are there as a means of raising revenue and for overall development of the economy.
  2. Customs duties fall in the realm of trade and fiscal policies of the Government while anti-dumping and anti subsidy measures are there as trade remedial measures.
  3. The object of anti-dumping and allied duties is to offset the injurious effect of international price discrimination while customs duties have implications for the government revenue and for overall development of the economy.
  4. Anti dumping duties are not necessarily in the nature of a tax measure inasmuch as the Authority is empowered to suspend these duties in case of an exporter offering a price undertaking. Thus such measures are not always in the form of duties/tax.
  5. Anti dumping and anti subsidy duties are levied against exporter/country in as much as they are country specific and exporter specific as against the customs duties which are general and universally applicable to all imports irrespective of the country of origin and the exporter.
ANTI-DUMPING DUTY

Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.

Margin Of Dumping in relation to an article, means the difference between its export price and its normal value.

Export Price means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party.

Normal Value means the comparable price, in the ordinary course of trade, for the like Article when meant for consumption in the exporting country or territory.

A normal value may be determined where there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either-
  1. comparable representative of the like article when exported from the exporting country or territory or an appropriate third country; or
  2. the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits,
PROCEDURE TO FILE AN ANTI-DUMPING CASE

Initiating a n Anti Dumping Investigation

The following are essential for initiating an anti-dumping investigation:-
  1. Sufficient evidence (Bill of Entry, Invoices, Letter from the Indian Mis sion in the subject country, Data from secondary sources like specialized commodity journals etc. as to the existence of dumping in relation to the goods imported from the subject country) to the effect that
  1. there is dumping
  2. there is injury to the domestic industry; and
  3. there is a causal link between the dumping and the injury, that is to say, that the dumped imports have caused the alleged injury.
  1. The domestic producers expressly supporting the anti-dumping application must account for not less than 25% of the total production of the like article by the domestic industry.
The application is 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 50% 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.

Determining the injury to the domestic industry

Broadly, injury may be analysed in terms of the volume effect and price effect of the dumped imports. The parameters by which injury to the domestic industry is to be assessed in the anti-dumping proceedings are such economic indicators having a bearing upon the state of industry as the magnitude of dumping, and the decline in sales, selling price, profits, market share, production, utilisation of capacity etc.

Establishing link between dumping and injury to the domestic industry

In the anti-dumping proceedings, it is imperative to prove that the dumping has caused injury to the domestic industry. Anti dumping duty shall not be recommended without a finding of this causal relationship.

The causal link is to be established generally in terms of the following effects of dumped imports on domestic industry:-
  1. volume effect
  2. price effect
The volume effect of dumping relates to the market share of the domestic industry vis-' -vis the dumped imports from the subject country while with regard to the price effect, the Designated Authority shall consider whether there has been a significant price under cutting by the dumped imports as compared with the price of the 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.

Interested parties in an anti-dumping investigation

The interested parties to an anti-dumping investigation include:
  1. the domestic industry on whose complaint the proceedings are initiated;
  2. The exporters or the foreign producers of the like articles subject to investigation;
  3. The importers of the same article allegedly dumped into India;
  4. The Government of the exporting country/ countries.
  5. The trade or business associations of the domestic producers/importers/user industries of the dumped product.
Any representative duly authorised by the petitioner/interested parties/Association etc. can appear in the Anti-dumping cases to represent the concerned parties.

Extent of anti-dumping duty

Under the WTO arrangement, the National Authorities can impose duties upto the margin of dumping i.e. the difference between the normal value and the export price. The Indian law also provides that the anti-dumping duty to be recommended/levied shall not exceed the dumping margin.

Minimum Level Of Imports

Individual exporter:

Any exporter whose margin of dumping is less than 2% of the export price shall be excluded from the purview of anti-dumping duties even if the existence of dumping, injury as well as the causal link is established.

Country:

Further, investigation against any country is required to be terminated if the volume of the dumped imports, actual or potential, from a particular country accounts for less than 3% of the total imports of the like product.

However, in such a case, the cumulative imports of the like product from all these countries who individually account for less than 3%, should not exceed 7% of the import of the like product.

RELIEF/REMEDY TO THE DOMESTIC INDUSTRY

The relief to the domestic industry against dumping of goods from a particular country is in the form of anti-dumping duty imposed against that country/ies, which could go upto the dumping margin. Such duties are exporter specific and country specific.

However, the remedy against dumping is not always in the form of anti-dumping duty. The Authority may terminate or suspend investigation after the preliminary findings if the exporter concerned furnished an undertaking to revise his price to remove the dumping or the injurious effect of dumping as the case may be. No anti-dumping duty is recommended on such exporters from whom price undertaking has been accepted.

Remedial Measures Against Unfair Trade Practices

Apart from dumping, some of the countries also resort to subsidisation of their exports to other countries. Export subsidies, under the WTO agreement, are treated as unfair trade practice and such subsidies are actionable by way of levy of anti-subsidy countervailing duty.

There is one more trade remedial measure called " safeguards " which are applied as an emergency measure in response to surge in imports of a particular item.

Anti subsidy countervailing measure is in the form of countervailing duty which is to be imposed only after the determination that:
  1. the subsidy is a specific subsidy
  2. the subsidy relates to export performance;
  3. the subsidy relates to the use of domestic goods over imported goods in the export article; or
  4. the subsidy has been conferred on a limited number of persons engaged in manufacturing, producing or exporting the article.
A subsidy is said to exist;
  1. if there is a financial contribution by the Government or any public body within the territory of the exporting country, i.e. where-
  1. there is a direct transfer of funds(including grants, loans and equity) by the Government;
  2. government revenue i.e. otherwise due is foregone and not collected(including fiscal incentives, I.T. exemption
  3. a government provides goods or services other than general infrastructure;
  1. a government grants or maintains any form of income or price support which operates directly or indirectly to increase export of any article from its territory.
Safeguards

Safeguards, on the other hand, are applied when:
  1. there is a surge in imports of a particular product irrespective of a particular country/ies and,
  2. it causes serious injury to the domestic industry.
  3. Safeguard measures are applied to all imports of the product in question irrespective of the countries in which it originates or from which it is exported. This aspect distinguishes Safeguards from anti-dumping and anti subsidy measures which are always country specific and exporter specific.
  4. Safeguards are applied in the form of either safeguard duty or in the form of safeguard QRs (import licenses). These measures are administered in India by an Authority called Director General (Safeguards) who functions in the jurisdiction of the Department of Revenue, Ministry of Finance.
INVESTIGATION PROCESS

An Application received by the Designated Authority is dealt with in the following manner:

Preliminary Screening

The application is scrutinized to ensure that it is fully documented and provides sufficient evidence for initiating an investigation. If the evidence is not adequate, then a deficiency letter is issued. Unless the deficiencies are rectified, the submission made before the Authority can not be construed as an application pending before the Authority.

Initiation

Designated Authority determines that the application has been made by or on behalf of the Domestic Industry. It also examines the accuracy and adequacy of the evidence provided in the application and when satisfied that there is sufficient evidence regarding dumping, injury and causal link, a public notice is issued initiating an investigation.

The Initiation notice will be issued normally within 5 days from the date of receipt of a properly documented application.

Access to Information

The Authority provides access to the non-confidential evidence presented to it by various interested parties in the form of a public file, which is available for inspection to all interested parties on request after receipt of the responses.

Preliminary Findings

The Designated Authority will proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, make a preliminary finding containing the detailed information on the main reasons behind the determination. The preliminary finding will normally be made within 60-70 days from the date of initiation.

Provisional Duty

A provisional duty not exceeding the margin of dumping may be imposed by the Central Government on the basis of the preliminary finding recorded by the Designated Authority.

The provisional duty can be imposed only after the expiry of 60 days from the date of initiation of investigation. The provisional duty will remain in force only for a period not exceeding 6 months, extendable to 9 months under certain circumstances.

Oral Evidence & Public Hearing

Interested parties who participate in the investigations can request the Designated Authority for an opportunity to present the relevant information orally. However, such oral information shall be taken into consideration only when it is subsequently reproduced in writing. The Authority may grant oral hearing anytime during the course of the investigation.

Besides the above, the Authority holds a public hearing inviting all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.

Disclosure of information

Based on these submissions and evidence gathered during the investigation and verification thereof, the Authority will determine the basis of its final findings. However, the Designated Authority will inform all interested parties of the essential facts, which form the basis for its decision before the final finding is made.

Final Determination

The interested parties submit their response to the disclosure and the final position of the Authority taken therein. The Authority examines these final submissions of the parties and comes out with final findings.

Time-limit

Normal time allowed by the statute for conclusion of investigation and submission of final findings is one year from the date of initiation of the investigation. The above period may be extended by the Central Government by 6 months.

The anti-dumping proceedings being quasi judicial in nature, the Designated Authority meticulously follows the norms of natural justice before making the final recommendation of duty.
  1. The interested parties to the investigation are given adequate opportunity to represent their case at several stages of investigation.
  2. The first opportunity is provided after the initiation of proceedings. The Authority duly considers the submissions of all interested parties in response to the initiation while giving its Preliminary findings.
  3. After the imposition of provisional duty, the interested parties file their responses to the Preliminary findings and opportunity is provided to them to submit the facts and figures to the Authority at the stage of verification of their information if the same has been already filed in response to the initiation.
  4. A formal Public hearing is held providing opportunities to all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.
  5. All these submissions of the different interested parties are given due consideration and on that basis the Authority issues a disclosure of essential facts which are proposed to form the basis of final findings.
  6. The parties to the investigation are also given the final opportunity to respond to the disclosure and represent their case before the final findings are notified.
Interim Relief

The Designated Authority recommends an interim relief which is provided to the affected domestic industry in the form of provisional anti-dumping duty pending the finalisation of investigation proceedings.

The provisional anti-dumping duty is recommended by the Authority in its preliminary findings and the same is levied by the Ministry of Finance, Dept. of Revenue. This serves as immediate relief to the domestic industry against the injury caused to it by the dumping of goods.

Statutorily, the provisional anti-dumping duty can not be levied earlier than 60 days from the date of initiation of proceedings. The endeavor of the Designated Authority has been to recommend provisional duty immediately after the expiry of the mandatory period of 60 days. The provisional anti-dumping duty is recommended in a period of 60-70 days and levied in a period of about 3 months from the date of initiation of the proceedings.

LEVY OF ANTI-DUMPING DUTY

Anti-dumping duty can be levied on a retrospective basis in case it is found that-
  1. there is a history of dumping which caused injury or that the importer was, or should have been aware that the exporter practices dumping and that such dumping would cause injury; and
  2. the injury caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable to be levied.
However, the anti-dumping duty cannot be levied retrospectively beyond 90 days from the date of issue of Notification imposing duty.

While the Designated Authority (in the Department of Commerce) recommends the anti-dumping duty, provisional or final, it is the Ministry of Finance, Dept. of Revenue which acts upon such recommendation within three months and imposes/levies such duty.

APPEAL

The law provides that an order of determination of existence degree and effect of dumping is appealable before the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT). However, as per the judicial view, only the final findings/order of the Designated Authority/Ministry of Finance can be appealed against before the CEGAT.

Appeal cannot lie against the Preliminary findings of the Authority and the provisional duty imposed on the basis thereof. The Appeal to the CEGAT should be filed within 90 days.

AUTHORITY FOR ANTI-DUMPING

Anti-dumping and anti subsidies & countervailing measures in India are administered by the Directorate General of anti-dumping and Allied Duties (DGAD) functioning in the Dept. of Commerce in the Ministry of Commerce and Industry and the same is headed by the "Designated Authority". The Designated Authority's function, however, is only to conduct the anti-dumping/anti subsidy & countervailing duty investigation and make recommendation to the Government for imposition of anti-dumping or anti subsidy measures.

Such duty is finally imposed/levied by a Notification of the Ministry of Finance. Thus, while the Department of Commerce recommends the Anti-dumping duty, it is the Ministry of Finance, which levies such duty.

Safeguard measures, on the other hand, are administered by another Authority namely, Director General (Safeguard), which functions under the Dept. of Revenue, Ministry of Finance. The Standing Board of Safeguards (chaired by the Commerce Secretary) considers the recommendations of the DG (Safeguards) and then recommends the impositions of the Safeguard Duty as it deems fit, to the Ministry of Finance which levies the duty. 

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