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

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