Anda di halaman 1dari 39


ANTI- DUMPING DUTIES Essentially deal with the price behavior of exporters Dumping exists when normal value is more that the export price Injury and casual lined are required to be proved. The General Agreement on Tariffs and Trade lays down the principles to be followed by the members of the countries for imposition of antidumping duties, countervailing duties and safeguard measures. Pursuant to the GATT, 1994 detailed guidelines have been prescribed under the specific agreements, which have also been incorporated in the national legislation of the member countries of the WTO. Indian laws were amended with effect from 1.1.95 to bring them in line with the provisions of the GATT agreements. Dumping is said to have taken place when an exporter sells a product to India at a price less than the price prevailing in its domestic market. However, the phenomenon of dumping is parse not condemnable as it is recognized that producers sell their goods at different prices to different market. It is also recognized that price discrimination in the form of dumping is a common international commercial practice. It is also not uncommon that the export prices are lower than the domestic prices. Therefore, from the point of view on anti dumping practices, there is nothing inherently illegal or immoral about the practices of dumping causes or threatens to cause material injury to the domestic industry of India, the Designated Authority initiates necessary action for investigations and subsequent imposition of anti-dumping.

* Based on article VI of GATT 1994 * Customs Tariff Act, 1975-Sec, 9B(as amended in 1995) * Anti dumping duty rules [ Customs Tariff (Identification, Assessment and * Collection of Anti-Dumping Duty on dumped Articles and for determination of Injury) Rules, 1995]

* Investigation and Recommendations by designated authority, Ministry of Commerce. Section 9A, 9B and 9C of the custom Tariff (Identification, Assessment and collection of anti-dumping duties on dumped articles and for Determination of injury.) Rules, 1995 framed there under form legal basis for anti-dumping investigations and for the levy of anti-dumping duties. These laws are based on the Agreement on dumping, which is in pursuance of article VI of GATT 1994.

Dumping occurs when the export price of goods imported into India is less than the value of like articles sold in the domestic market of the exporter. Importers at cheap or low price do not per se indicate dumping. The Price at which like articles are sold in the domestic market of the exporter is referred to as the normal value of those articles.

Difference between normal value and export price is known as Margin Of Dumping

Normal Value:
The 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 or territory.

* Comparable price of the like article when meant for home consumption * In the course of ordinary trade * Indian law refer to domestic price in the exporting country or

If the normal value cannot be determined by means of domestic sales, The Act provides for the following two Alternatives methods. Comparable representative export price to an appropriate third country. Cost of production in the country of origin with reasonable addition for administrative, selling and general costs and for profits

Export Price:
The export price of goods imported into India is the price paid or payable for the goods by the first independent buyer.

Constructed Export Price

If there is no export price or the export is not reliable because of association or a compensatory arrangement between the exporter or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer. If the articles are not sold as above or not resold in the same condition as imported, their export price may be determined on a reasonable basis.

Margin Of Dumping
Margin of dumping refers to the difference between the normal value of the like article and the export priced of the product under consideration. Margin of dumping is normally established on the basis of :* A comparison of weighted average normal value with weighted average of prices of comparable export transactions: or * Comparison of normal values and exports prices on a transaction-to-to transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transaction if the designated authority finds a pattern of export prices that differ significantly among different purchasers, regions, time period etc. It is significant to note that the alternative method comparing the normal values and exports is a major change introduced after

the Uruguay round. The margin of dumping is generally expressed as a percentage of the export price.

Factors affecting comparison of normal value and export price: COMPARISION NORMAL VALUE V/S EXPORT PRICE
At the ex- factory level Due allowances for factors affecting comparison Wt. Av NV with WT Av, EP NV-EP on a transaction-to-transaction basis The export price and the normal value of the goods must be compared at the same level of trade, normally at the ex- factory level for sales made near as possible in time. Due allowances is made for differences that affect price comparability of a domestic sale and an export sale. These factors, inter alias, include: * Physical Characteristics * Level of trade * Quantities * Taxation * Conditions and terms of sale It must be noted that the above factors are only indicative and the authority considers any factor, which can be demonstrated to affect the price comparability.

Like Articles
Anti dumping can be taken when there is an Indian Industry, which produces Like Articles when Compared to the allegedly dumped imported goods. The article produced in India must either be LIKE ARTICLE Identical a-like in all respects If not alike in all respects, having closely resembling characteristics

Identical to the dumped goods in all respect or in the absence of such an article, another article that has characteristics closely resembling those goods. The Indian industry must be able to show that dumped imports are causing or are threatening to cause material injury to the Indian domestic industry. Materials retardation to the establishment of an industry is also regarded as injury. The material injury thereof cannot be based on mere allegations, statement or conjecture. Sufficient evidence must be provided to support the contention of material injury. Injury analysis can broadly be divided in two major areas;

The Volume Effect

The Authority examines the volume of the dumped imports, including the extent to which there has been or is likely to be a significant increase in the volume of dumped imports, either in absolute terms or in relation to production or consumption in India and its affect on the domestic industry. The Price of the dumped imports on prices in the Indian market for like articles, including the existence of price undercutting, or the extent to which the dumped imports are causing price depression or preventing price depression or preventing price increases the goods which other wise would have occurred. The consequent economic and financial impact of the dumped imports on the concerned India industry can be demonstrated, inter alias by: Decline in output Loss of sales Loss of market share Reduced profits


ACTUAL/POTENTIAL DECLINE IN Sales * Output * Profits * Market Shari * Productivity * Return On Investment * Capacity Utilization etc. * Employment * Investors/Stocks * Ability to raise capital or investment etc.

Decline in productivity Decline in capacity utilization reduced return on investments Price effects Adverse effects on cash flow, inventories, employment, wages, growth, investments, ability to raise capital etc. Injury analysis is a detailed and intricate examination of all factors. It is not necessary that all the factors considered relevant should individually show to the domestic industry.

A casual link must exist between the material injury being suffered by Indian industry and the dumped imports. In addition, other injury causes have to be investigated so that they are not attributed to dumping. Some of these are volume and prices of imports not sold at dumped prices, contraction in demand or changes in the pattern of consumption, export performance, productive of domestic industry etc. A dumping investigation can normally be initiated only upon receipt of return application by or on behalf of the domestic industry. STANDING TO FILE AN APPLICATION * Express support of those who account for: More than 25% of total domestic production, and More than50% production by those supporting and those opposing the application In order to constitute a valid application, the following two conditions have to be satisfied: The domestic producers expressly supporting the application must account for not less than 25% of the total production of the like articles by domestic industry in India; and

DOMESTIC INDUSTRY Producers of like articles as a whole or those producers whose output is a major proportion of total Indian production The following are excluded: Importers Those related to importers or exporters

Those domestic producers expressly supporting the application must account for more than 50% of the total production of the like articles by those expressly supporting and by those opposing the application.

Domestic industry means the Indian producers of like articles as a whole or those producers whose collective output constitutes a major portion of total Indian production. Producers who are related to exporters or importers are themselves importers of allegedly dumped goods shall be deemed not to form part of domestic industry. Relief can be provided to the domestic industry in the form of antidumping duty or price under takings. 1. ANTI- DUMPING DUTIES: Duties are imposed on a source a specific basis and can be expressed ether on Ad valorem or specific basis. Non- cooperative exporters are required to pay the residuary duty, which is generally the highest of the co-operative exporters. Relief To Domestic Industry Lesser duty rule Only that amount to duty which is sufficient to remove the injury to the domestic industry

Less duty Rule: INJURY MARGIN Difference between the fair selling price and the landed value Landed value is Assessable value under customs act plan Basic customs duty Under the GATT provision, the national authorities cannot impose duties higher than the margin of dumping. It is, however, suggested that it would be desirable if the appropriate government authorities impose lesser duties which is adequate to remove the injury to the domestic industry. Under the Indian laws, the government is obliged to restrict the Anti-dumping duty to the lower of the two i.e. dumping margin and the injury margin. Injury margin:Besides the calculation of the margin of dumping, the designated authority also calculates the injury margin which is the difference between the fair selling price due to the domestic industry and the landed cost of the product under consideration. Landed cost for its purpose is taken as the assessable value under the customs act and the basic customs duties. DE MINIMIS MARGINS Margin of dumping Exporter specific Less than 2% of export price Volume of dumped imports Country specific Less than 3% from individual country and cumulatively not more than 7%

De Minims Margin: Any exporter whose margin of dumping is less than 2% the export price shall be excluded from the purview of anti-dumping duties even if the existence of dumping, injury as well as the casual link are established, investigations against any country are required to be terminated if the volume of the dumped imports from that particular source are found to be below 3% of the total imports, provided the cumulative imports from all those countries who individually account for less than 3% are not more than 7%. 2. Price Undertaking: The designated authority may suspend or terminate investigation if the exporter concerned furnished the undertaking to revise his price to improve the dumping or the injurious effect of dumping as the case may be. No undertaking can however be accepted before preliminary determination is made no anti-dumping duties are recommended on such exporters from whom price undertaking has been accepted. No price undertaking may, however, be accepted in case it is found that acceptance of such undertaking is impracticable or is unacceptable for any reason Application can be made by or on behalf of the concerned domestic industry to the designated authority in the ministry of commerce for an investigation of when there is sufficient evidence that dumped imports are causing or tare threatening to cause material injury to the Indian Industry producing like articles or are materially retarding the establishment of an industry. Copies of the prescribed application proforma is available from the ministry of commerce. Information Required Applications should be submitted to the designated authority in the ministry of commerce in the prescribed form. Guidelines on how to complete a questionnaire area part of the prescribed application proforma The proforma also advises the applicant of the type of evidence required in appropriate areas. Period Of Investigation

Neither the GATT agreement on anti dumping duty nor the Indian laws provide for any specific guidelines regarding the period of investigation. However, there are indications that the period should not be, in any case, less than six months. It is, however, important that the period taken into consideration for detailed investigation should be representative and as recent as possible. Confidential Information Any information provided to the designated authority on a confidential basis by any party shall not be disclosed to any other party without the specific authorization of the party providing the information, if the designated authority is satisfied about its confidentiality. Interested parties supplying information on a confidential basis are required to furnish non-confidential summaries thereof or a statement of reasons as to why such summarization is not possible. If the designated authority is not satisfied that the confidentiality is warranted or the provider or information was not willing to disclose it in a generalized form, then such information may be disregarded. An application received by the designated authority is dealt with as follows: Preliminary Screening: The application is scrutinized to ensure that it is adequately documented and provides sufficient evidence for initiation. If the evidence is not adequate, then a deficiency letter is issued normally within 20 days of the receipt of the application. Initiation: When the designated authority is satisfied that there is sufficient evidence in the application with regard to dumping, material injury and caused link, a public notice is issued initiation an investigation to determine the existence and effect of the alleged dumping. The designated authority notifies the diplomacy representative of the government of the exporting country before proceeding to initiate the investigation. The initiation notice will be issued normally

within 45 days of 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 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 findings containing the detailed information on the main reasons behind the determination. The preliminary findings will normally be made within 150 days of 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 findings 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: Interested parties who participate in the investigation 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. Final Determination The final determination is normally made within 150 days of the date of preliminary determination. Disclosure of information: The designated authority will inform all interested parties of the essential facts which form the basis for its decisions before the final finding is made.

Time limit for investigation process: The normal time allowed by the statute for conclusion of investigation and submission of final findings is per year from the date of initiation of the investigation. The above period may be extended by the central government by 6 months. Termination: The designated authority may suspend or terminate the investigation in the following cases: If there is a request in writing from the domestic industry at whose instance the investigation was initiated. When there is no sufficient evidence of dumping or injury. If the margin of dumping is less than 2% of the export price The volume of dumped imports from a country is less than 3% of the total imports of the like article into India or the volume of dumped imports collectively from all such countries is less than 7% of the total imports Injury is negligible. Retrospective measures: The act provides for levy of anti-dumping duty retrospectively, where1. There is a history of dumping which caused the injury of that the importers was, or , should have been aware that the exporter practices dumping and that such dumping would cause injury, and 2. The injury is caused by massive dumping, in relatively short time, so as to seriously undermine the remedial effect of anti-dumping duty. Such retrospective application will not go beyond 90 days or the date of imposition of provisional duty. Further, no retrospective application prior to the date of initiation of investigation is possible. Review: An anti dumping duty imposed under that act shall have the effect for 5 years from the date of imposition, unless revoked earlier. The designated authority shall also revise the need for the continued imposition of the anti dumping duty, from time to time . Such review can be done or no the basis of request received from an interested party in view of the changed circumstances. A reviews shall also follow the same

procedure prescribed for an investigation to the extent they are applicable. The designated authority is also required to carry out a review for determining margins of dumping for any new exporter or producer form a country that is subject to anti-dumping for any new and are not related to any of the exporter of producers who are subject to anti dumping duty on the product. Appeal: An appeal against the order of the designated authority may be filled with the customs, excise and gold (control) appellate tribunal within 90b days of the date of the order. Refund Of Duty: If the anti dumping duty imposed on the basis of final findings is higher than the provisional duty already imposed and collected, the difference shall not be collected. If the final anti dumping duty is less than the provisional duty already imposed and collected, the difference shall be refunded. If the provisional duty is withdrawn based on a negative final finding, then the provisional duty already collected shall be refunded. Products imported by units in EPZ/100% EQUs, advanced license holders and by other exporters: Anti dumping duty is not payable on products imported by units in EPZs and 100% EOQs, as well as imports on products Imported by advanced license holders in terms of customs notification No.41.97-Cus dated 304-1997. The final anti-dumping duty paid on imported goods used in the manufacture of export goods are liable to be refunded as duty drawback in accordance with the drawback rules. Applicability of Anti-dumping duties other measures: GATT agreement as well as the India provide that the injured domestic industry is permitted to file for relief under the anti-dumping duty as well

as countervailing duties. However, no articles shall be subjected to both countervailing and anti dumping duties to compensate for the same situation of dumping of export subsidization. GATT- ANTI DUMPING: AGREEMENT Agreement on implementation of Article VI of the General Agreement of Tariffs and Trade 1994 (The Anti-dumping Agreement) The Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (the AD Agreement) governs the application of anti dumping measures by Members of the WTO. Antidumping measures are unilateral remedies which may be applied by a Member after an investigation and determination by that Member, in accordance with provisions of the \ad \agreement, that an imported product is dumped and that the dumped imports are causing material injury to a domestic industry producing the like product. The AD Agreement sets forth certain substantive requirements that must be fulfilled in order to impose an anti-dumping measure, as well as detailed procedural requirements regarding the conduct of anti-dumping measures. A failure to respect either substantive or procedural requirements can be taken to dispute settlement and may be the basis for invalidation of the measure. Unlike the Agreement on Subsides and Countervailing Measures, the AD Agreement does not establish any disciplines on duping itself, primarily because dumping is a pricing practice engaged in by business enterprises, and thus not within the direct reach of multilateral disciplines. Article 1 of the AD Agreement establishes the basic principle that a Member may not impose an anti-dumping measure unless it determines, pursuant to an investigation conducted in conformity with the provisions of the AD Agreement, that there are dumped imports, material injury, and a casual link between the dumped imports and the injury. Determination of dumping Article 2 contains substantive rules for the determination of dumping. Dumping is calculated on the basis of a fair comparison between normal value( the price of the imported product in the ordinary course of trade in the country of import). Article 2 contains detailed provisions governing the

calculation of normal value and elements of the fair comparison that must be made. Determination of injury Article 3 of the AD Agreement contains rules regarding the determination of material injury caused but dumped imports. Material injury is defined as material injury itself, threat of material injury, or material retardation of the establishment of a domestic industry. The basic requirement for determinations of injury, is that there be an objective examination, based on positive evidence of the volume and price effects of dumped imports and the consequent impact of dumped imports on the domestic industry. Article 3 contains specific rules regarding factors to be considered in making determinations of material injury, while specifying that no one or several of the factors which must be considered is determinative. Article 3.5 requires, in establishing the casual link between dumped imports and material injury, known factors other than dumped imports which may be causing injury must be examined, and that injury caused by these factors must not be attributed to dumped imports. A significant new provision, Article 3.3, establishes the conditions in which a cumulative evaluation of the effects of dumped imports from more than one country may be undertaken. Under the rules, authorities must determine that the margin of dumping from each country is not de minims, that the volume of imports from each country is not negligible and that a cumulative assessment is appropriate in light of the conditions of competition among the imports and between the imports and the domestic like product. Definition of industry Article 4 of the AD Agreement sets forth a definition of the domestic industry to be considered for purposes of assessing injury and causation. The domestic industry is defined as producers of a like product, which term is defined in Article 2.6 as a product that is identical to, or in the absence of such a product, one that has characteristics closely resembling those of , the imported dumped product under consideration. Article 4 contains special

rules for defining a regional domestic industry in exceptional circumstances where production and consumption in the importing country are geographically isolated, and for the evaluation of injury and assessment of duties in such cases. Article 4 also establishes that domestic producers may be excluded from consideration as part of the domestic industry if they are related( defined as as a situation of legal or effective control) to exporters or importers of the dumped product. Overview A principal objective of the procedural requirements of the AD Agreement is to ensure transparency of proceedings, a full opportunity for parties to defend their interests, and adequate explanations by investigating authorities of their determinations. The extensive and detailed procedural requirements relating to investigations focus on the sufficiency of petitions (through minimum information and standing requirements) to ensure that merit less investigations are not initiated, on the establishment of time periods for the completion of investigations, and on the provision of access to information to all interested parties, along with reasonable requirements relate to the offering, acceptance, and on the provision of access to information to all interested parties, along with reasonable opportunities to present their views and arguments. Additional procedural requirements relate to the offering, acceptance, and administration of price undertakings by exporters in lieu of the imposition of anti-dumping measures. The AD Agreement requires investigating authorities to give public notice of and explain their determinations at various stages of the investigative process in substantial detail. It also establishes rules of the timing of the imposition of antidumping duties, the duration of such duties, and obliges. Members to periodically review the continuing need for anti-dumping duties and price undertakings. There are detailed provisions guiding the imposition and collection of duties under various duty assessment systems, intended to ensure that anti-dumping duties in excess of the margin of dumping are not collected, and that individual exporters are not subjected to anti dumping duties in excess of their individual margin of dumping. Article 13 of the AD Agreement requires Members to provide for judicial review of final determinations in anti-dumping investigations and reviews. Other provisions establish that Members may, at their discretion, take anti-dumping actions on behalf of and at the request of a third country, and recognize that special regard must be given by developed country. Members to the situation of

developing country. Members when considering the application of antidumping duties. Specific Provisions Initiation and conduct of investigations Article 5 establishes the requirements for the initiation of investigations. The AD Agreement specifies that investigations should generally be initiated based on a written request submitted by or on behalf of a domestic industry. This standing requirement is supported by numeric limits for determining whether there is sufficient support by domestic industry, and thereby warrants initiation. The AD Agreement establishes requirements for evidence of dumping, injury, and causality, as well as other information regarding the product, industry, importers, exporters, and other matters, in written applications for anti-dumping relief, and specifies that, in special circumstances when authorities initiate without a written application from a domestic industry, they shall proceed only if they have sufficient evidence of dumping, injury, and causality. In order to ensure that merit less investigations are not continued, potentially disrupting legitimate trade, Article 5.8 provides for immediate termination of investigations in the event the volume of imports is negligible or the margin of dumping is de minims, and establishes numeric thresholds for these determinations. In order to minimize the trade disruptive effect of investigations, Article 5.10 specifies that investigations shall be completed within one year, and in no case more than 18 months, after initiation. Article 6 sets forth detailed rules on the process of investigation, including the collection of evidence and the use of sampling techniques. It requires authorities to guarantee the confidentiality of sensitive information and verify the information on which determinations are to be based to interested parties and provide them with adequate opportunity to comment, and establishes the rights of parties and provide them with adequate opportunity to comment, and establishes the rights of parties to participate in the investigation, including the right to meet with parties with adverse interests, for instance in a public hearing. Imposition of provisional measures

Article 7 relates to imposition measures. Articles includes the requirements that authorities make a preliminary affirmative determination of dumping, injury and causality before applying provisional measures, and the requirement that no provisional measures may be applied sooner than 60 days after initiation of an investigation. Price undertakings Article 8 establishes the principle that undertakings to revise prices or cease exports at dumped prices may be entered into settle an investigation, but only after a preliminary affirmative determination of dumping, injury, and causality has been made. It also establishes that undertakings are voluntary on the part of both exporters and investigating authorities. In addition, an exporter may request that the investigations authorities. In addition, an exporter may request that the investigation be continued after an undertaking has been accepted, and if a final determination of no dumping, no injury, or no causality results, the undertaking shall automatically lapse. Duration, termination, and review of anti-dumping measures Article 11 establishes rules for the duration of anti-dumping duties, and requirements for periodic review of the continuing need, if any, for the imposition of anti-dumping duties or price undertakings. These requirements respond to the concern raised b the practice of some countries of leaving anti-dumping duties shall normally terminate no later than five years after first being applied, unless a review investigation prior to that date establishes that expiry of the duty would be likely to lead to continuation or recurrence of dumping and injury. This five year sunset provision also applies to price undertakings. The AD Agreement requires authorities to review the need for the continued imposition of a duty upon request of an interested party. Article 18.3 establishes the effective date of the AD Agreement, providing that it is applicable to investigations and reviews of existing measures initiated pursuant to applications made on or after the entry into force of the AD Agreement by the date of entry into force of the AD Agreement. Under Article 18.5, Members are required to notify their anti-dumping laws and regulations to the Committee.

Annex I to the AD Agreement establishes procedures for on the spot investigations, which are generally undertaken in the territory of an exporting Member to verify information provided by foreign producers or exporters. Annex II to the AD Agreement sets forth provisions on the use of best information available in investigations, specifying the conditions under which investigating authorities may rely on information from a source other than the person concerned. The Ministerial Decision on Anti-Circumvention, which is not part of the AD Agreement, noted that the negotiators had been unable to agree on a specific text dealing with the problem of anti-circumvention, recognized the desirability of applying uniform rules in this area as soon as possible, and reformed the matter to the Committee for resolution. The committee has established an Informal Group on Anti Circumvention, which is open to participation by all Members, to carry out the task assigned by the Ministers.

ANTI DUMPING DOCUMENTATION The directorate has considered the need to streamline anti dumping documentation so as to make it more concise and comprehensive. This publication contains the revised format and guidelines for applications seeking anti dumping action. The petitioners are expected to furnish documented petition with the information as per the revised format and the footnotes in each part thereof. The information so submitted should be drawn from reliable sources. Wherever required the petitioners should annex the copies of requisite documents to substantiate facts and figures presented. The officers if the directorate will be available for any assistance required in the completion of fully documented petition to present prima facie evidence of dumping, injury and casual link thereof as required by the rules governing the process of anti dumping duty investigations. The applicant is advised to familiarize themselves with sections 9a, 9b and 9c of the Custom Tariff Act, 1975 and the Customs Tariff (identification,

assessment and collection of anti dumping duty on dumped articles and for determination of injury0 Rules, 1995 before filing a petition. The applicant may also refer to the brochure issued by this directorate on the subject. The designated authority would initiate investigations to determine the existence, degree and effect of any alleged dumping upon receipt of a properly documented petition by on on behalf of the domestic industry in accordance with rule5(1) Rules 5(5) requires the designated authority to examine the accuracy and adequacy of the evidence provided in the application and satisfy itself that there is sufficient evidence regarding dumping, injury where applicable and a casual link between imports and the alleged injury to justify the initiation of an investigation. No petition will thereof be taken on record of this directorate until is fully documented and until all informations elicited therein are furnished by the petitioner. Incase of any problem faced in filling the application the concerned case officer of the directorate may be contracted for assistance and help. The petitioner must ensure that the application filed by them is complete in all respects and is fully documented, so that it may be taken on record by the authority and necessary action initiated. The petition should specifically cover, inter alias, the following: Information on the imported product Information on the domestic industry and the domestic market Evidence of dumping Evidence of injury, and Evidence of casual link Confidential information: Rule 7 permits an interested party to furnish information the disclosure of which would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information, shall be treated as

such, evidence relating to normal value, export price, costing, profitability, specific adjustments in pricing are examples of such information which is usually accepted be designated authority as confidential. If confidentiality is claimed on any other aspect, which generally is not the above criteria, the applicant should give a brief statement of reasons as to why that particular information needs to be kept confidential. Incase such information is furnished on confidential, the designated authority may disregard such information. It is utmost important that each page and supplementary information furnished on confidential basis is clearly marked Confidential on the face of it, failing which the request for confidentiality may not be entertained. All documents/arguments/submissions or correspondence made on a confidential basis should necessarily be accompanied by a non-confidential summary, failing which such communication is liable to ignored without making any other further reference to the supplier of such information, in view of the time limit laid down under the law. The potential is required to be submitted in two copies along with one non confidential version thereof. The designated authority may, however, require additional copies before initiation of investigation or at any time during the course of the investigations. The designated authority may provide any information submitted by the applicant on non-confidential basis to other interested parties in accordance with rule 6. The petition should contain information as detailed in the enclosed proforma. The proforma enclosed is not a fill-in proforma and, therefore should be treated as a questionnaire. Any information, not requested in the proforma which may be of importance may also be furnished. Applicants are advised to consider a time period for providing information. The time period chosen for furnishing information should preferably be 12 months or more. It is desirable that this period be most recent and correspond to the accounting year of the domestic industry. All information, unless otherwise specified should relate to this period.

The designated authority may request any additional and or supplementary information any time before or after initiation of investigation. All information unless otherwise specified should relate to the relevant product. The designated Authority requires information on the extent of injury upon initiation. The information generally required to be furnished is indicated in part IV of these guidelines. The application should be addressed to: Designated Authority Directorate General of Anti-dumping and Allied Duties Ministry of commerce Udyog Bhavan, New Delhi 110 011 Please complete the certificate as at Format F for submission along with the petition Imported Product Information Please provide complete information on the product which is alleged to be dumped in India. The following information is relevant in this section of the complaint: Complaint description of alleged dumped goods, including information on its size, quality, category and uses of such goods along with any applicable technical specifications or standards and the ITC (HS) classification, custom classification, custom duty, import policy (including advance licensing provisions) Country of origin of the alleged dumped goods. Since when such goods from the named country is being imported in the Indian market and when did dumping starts. Whether such goods are shipped to India through third countries. Volume, value and avg.cif value of such dumped goods imported into India from each country alleged to be dumping the goods for the past two years to date and the source of information thereof.

Volume, value and avg.cif value of such dumped goods imported from other countries, not alleged to be dumping the goods, for the past two years and the current year to date and the source of information thereof. Name and address of known exporters and manufacturers of the alleged dumped goods. Name and address of known importers of the alleged dumped goods in India. Name and address of association of the users of the alleged dumped goods in India. Note: Data on the volume and value of imported goods can be determined from some published sources, such as the directorate General of Commercial Intelligence & Statistics (DGCI&S) publications, Customs Daily and/or information otherwise available. Source of information must be specified while furnishing information. 3. Estimates of Export Price. Provide the following information, country-wise, with respect to the Export Price of the product for the last financial years and the current year to date. Average Export Price to India and the basis of prices( e.g. FOB,CIF,FOR) Costs per unit after ex-factory and before exports to India that the exporters should have incurred towards items such as inland freight, insurance, taxes, etc. (information on each of these items is to be given separately and should be supported with sufficient evidence): The benefits which accrue to the exporters in the subject country on exports made to India which are not available to the exporter in case of sales in the home market. Net exporter price after adjustments towards, freight, insurance, inland freight, storage etc: 4. Estimates of Dumping Margin:

Provide details of estimates dumping margin in case of each alleged to be dumping the subject goods in India. The information may be in following format In local currency of exporter Normal value Export price Dumping margin Evidence of Injury Please provide complete information on how imports of the alleged dumped goods caused or threaten material injury to the domestic industry or materially retards its establishment. The following information is relevant for this section of the complaint: Changes in market share held by Indian producers Increased imports from the subject country Significant decline in the production of the petitioner Significant decline in the utilization of capacity of domestic industry (Under utilization of capacity) Significant decline in the sales volume of the petitioner Selling price (evidence of price erosion, price undercutting, price suppression or price depression); Evidence of lost contracts of declining sales; Employment (employment levels, lay-off of employees due to increased alleged dumped imports); Profitability (History of profit levels for the petitioner and industry); Please give the above information as per proforma IV A and IV B. INJURY INFORMATION ON DOMESTIC INDUSTRY PROFORMA IV A Provide information for the domestic industry as a whole for the period of investigation and the preceding two financial years in the format given below: Exchange Rate Vis--vis $ In US $ 1

Particulars Imports From the subject country Other Country Installed Capacity Production Capacity Utilization Captive Consumption Indigenous Sale Export Sale Opening Stock Closing Stock Cost of Sales Profit/Loss Investments Net worth Capital investment for expansion Employment Demand (1+5+6) Market share Any other factor

Year I Qty. Value

Year II Qty. Value

Period Of Investigation Qty. Value

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18

Notes: 1. Please indicate unit of measurement wherever applicable

2. Indicate basis of estimating demand, if it is other than what is specified in the format above. 3. Furnish the balance sheet and financial statements for these years for the company as a whole for the unit and the specific product in question when the company is a multi-unit and multi-product one. *(Indigenous sale by the domestic industry as a percentage of demand) COUNTRY-WISE LANDED VALUE- \Proforma IV B Provide details regarding export price, custom duty etc. and work out the landed value of imports per unit of the alleged dumped product for each of the subject country Name of the exporting country Particulars Year 1 Qty. Value 1 2 Avg. FOB price (US$) Charges after FOB and before CIF 1. Freight 2. Insurance 3. Other charges Avg. CIF price (US$) (1+2) Avg. Exchange rates Avg. CIF price (Rs) (3*4) Landing charges Avg. Assessable value (5+6)

Year II Qty. Value

Period Of Investigation Qty. Value

3 4 5 6 7

10 11

Custom clearance and handling charges Custom Duty Basic Auxiliary Countervailing Duty Landed value of imported product (7+8+9) Avg. selling price of indigenous product 1. Including excise duty 2. Excludin g excise duty

Notes: 1. Separate proforma for each of the exporting country is to be furnished. 2. Break up of custom duty is to be indicated separately. 3. Supporting date/details are to be attached In the absence of FOB price, the statement may be prepared form other stage. Evidence of casual link Please provide information on the factors which establish that the injury to the domestic industry is due to dumping from the subject country. Factors other than dumping are also at the same time causing injury to the domestic industry must be segregated. Provide information on the following: The following information is relevant for this section of the complaint: Volume and value of imports from country other than the subject country and an explanation on why imports from these country are not causing injury to domestic industry.

Demand of the product for the past three years including current year. In case the demand has undergone substantial charge, an explanation on why changes in the demand has not caused injury to the domestic industry. Provide explanation on whether trade restrictive practices of a competition between the foreign and domestic producers, development technology, the export performance or the productivity of the domestic industry or any other known factors have not caused injury to the domestic industry. Costing information Please provide information on the following within one month of the initiation of investigations. Product process: Stage wise process of manufacturing and various routes of manufacture. Process flow chart indicating cycle time taken at each process. Raw materials and packing materials consumption and reconciliation statement as per format A Raw material consumption norms and comparison with actual as per format B A statement showing cost of production as per format CI and CII into fixed, variable and semi variable. The semi variable expenses may further be classified Utilities consumption statement as per format D for the investigation period and previous three years. Calculations of working capital as follows: Working capital as per balance sheet Working capital as per bank limits Working capital as per production cycle time. Interests on term loans: statement of term loan outstanding at the beginning of the year, at the end of the year, interest paid/payable on term loans and average rate of interest on term loans. Over due and/ or compounding interest; statement showing details of overdue and/or compounding interest: statement showing details of overdue and/or compounding interest provided in the annual audited accounts relevant to the period of investigation Depreciation : statement showing gross and net block for the investigation period and previous year.

Return / profit: Statement showing desirable return on capital/ equity along with justification in support thereof. Details of misc. income and earned during the year. Sales realization: showing details of gross sales realization, discounts/commission, excise duty, other taxes and net sales realization, as per format E for the past three years and month wise for investigation period. The figures should reconcile with balance sheet of the corresponding years. Details of WIP at the beginning and end of the investigation period. Clearly indicating breakup of material cost and overhead charged valuation. Brief write up on the following: Purchase policy including long term contracts for major materials. Sales policy indicating marketing/ distribution channels, commission/ discount policy, credit terms etc., sales policy to bulk consumers. Stores accounting and inventory/ stock/WIP valuation. Quality control procedure and test being conducted. A statement showing production, sales quantities, capacity utilization, stock, net average sales realization, cost of production, profit/loss for the past three years and month wise for the period of investigation. Details of job work done or got done during the investigation Audited and printed annual accounts for the investigation period and past three years, and trial balance for the investigation period. Note: 1. All the information, unless otherwise stated, should relate to the investigation period 2. Information may be complied to the extent possible from the annual audited accounts and supplementary records being maintained by the company. 3. All the information is subject to verification, and therefore all supporting papers, including working sheets may be preserved for verification by the designated authority. 4. The information, to the extent possible, should be supplied in the formats prescribed. STATEMENT OF RAW MATERIAL AND PACKING MATERIALS CONSUMPTION AND RECONCILIATION- format A


Opening Stock Qty. Rate value

Purchases Qty. Rate value

Closing Stock Qty. Rate value

Consumption Qty. Rate value

Raw material (term wise) Packing materials (Item wise) Total Note: This statement should be for the investigation period STATEMENT OF RAW MATERIAL CONSUMPTION Format B Particular Unit Consumption Actual Per Unit of consumption production per unit of production Year1 Year2 Year3 Raw material (Item wise) Total cost per unit of production considering rates for the investigation period Average of rate of investigation

STATEMENT OF COST OF PRODUCTION-(FORMAT C) Name of the company Installed capacity Production in Installed Capacity Utilization (%) Capacity utilization in Investigation period Sales (Quantity) Particulars

Previous accounting Investigation period Year Qty. rate value cost per Qty. Rate value cost per unit unit

Manufacturing expenses Raw Materials (Specific the major raw material) Utilities Depreciation Others (Please specify the nature of expenditure) Administrative Expenses Variable Fixed Financial Expenses -Variable -Fixed Less: Misc. Income (from product concerned) Total cost to make and sell Selling Price Profit/Loss

Note: Please Specify the unit, wherever applicable The information in this proforma to be certified by practicing cost accountant ALLOCATION AND APPORTIONMENT OF EXPENDITUREFORMAT (CII) Please provide the basis along with the amount allocated to the subject product and to other products out of the total expenses of the company, as per following format SI Particular Total Share Share not Basis Expenses applicable to applicable to allocation of product product apportionmen under under t investigation investigation 1 2 3 4 5 6 Raw material (item wise) Consumable stores and spares/other inputs Utilities (Power, fuel, Steam, etc.) Direct Labor Manufacturing Overheads(Specify under major heads) Research and Development Administrative Overheads Selling & Distribution cost Depreciation Financial expenses Other misc. expenses Total expenditure

Sales Other income Total income Profit/Loss Note: 1. The information in this proforma is to certified by a practicing cost accountant. All items and expenditure shall be reconciled with annual accounts STATEMENT OF CONSUMPTION OF UTILITIES Format D Consumption Actual Investigation Norms(per unit consumption period of) production (Per unit of Y1 Y2 Y3 POI production) Units Rate Y1 Y2 y3


a) Power b) Water c) other (Please Specify) Total Cost considering investigation period rates Note: The details should be in terms of utilities purchased and paid by the company. The rate should be the average cost for the investigation period. Issues Relating To Anti-dumping Duty Recent years have seen increasing resort to anti-dumping actions. In a number of cases investigation are started even in cases where the industry claiming injury has not been able to produce, before the investigating authorities, satisfactory evidence of dumping or injury. New investigations have often been started on the same products immediately after the termination of an investigation. This is particularly true of exports of developing countries which are being subject to more and more anti-dumping and countervailing measures. The uncertainty and

restrictiveness of these measures have created trade disruption affecting not only particular consignments but also longer-term trade in the targeted product. Benefits from trade liberalization have been considerably neutralized by the unfair use of anti-dumping measures, including back-to-back anti dumping investigations on the same products which have frustrated the expectations created during the Uruguay Round. The lack of clarity in certain provisions has compounded the problem, including the fact that Article 15 of the Agreement which provides the only reference to the special situation in developing countries is ambiguous and practically inoperative. Furthermore, in cases where there are no sales, or the sales in the domestic market are low, the investigating authorities rely on constructed value calculated on the basis of cost of production, even where data on price comparison purposes. Experience has shown that the determination of the constructed value is often not fair and results in harassment of exporting firms that are alleged to be dumping. Moreover, certain provisions, particularly those relating to de Minims dumping margin and the threshold volume of imports below which no anti-dumping duty shall be levied, need to be revised in view of the changed global trade and economic scenario, especially for exports from developing countries. The concerns arising out of increased susceptibility of developing countries to the incidence of dumping into their economy, as they liberalize their import regimes, also needs to be addressed. The special provisions in the Agreement relating to settlement of disputes in the anti-dumping area which inter alias require panels not to challenge the evaluation of facts made by the investigating authorities, where establishment of facts was proper and the evaluation was unbiased and objective needs to be modified to provide that the common rules provided by the Dispute Settlement Understanding apply to disputes relating to anti-dumping actions. The following amendments are therefore necessary in order to ensure that developing countries receive the due benefits of global trade liberalization. Indias proposals Regarding the Anti-Dumping Agreement Article 15 of the Agreement on Implementation of Article VI is only a best endeavor clause. Consequently, Members have rarely, if at all, explored the

possibility of constructive remedies before applying anti-dumping duties against exports from developing countries. Hence, the provisions of Article 15 need to be operational zed and made mandatory. In order to restrict the initiation of back-to-back investigations, it should be provided that no investigation would be initiated for a period of 365 days from the date of finalization of a previous investigation for the same product resulting in non-imposition of duties. However, if for any exceptional reasons such an investigation has to be initiated it must have the support of at least 75 per cent of the domestic industry. De Minims Dumping: The existing de Minims dumping margin of 2 per cent of export price below which no anti-dumping duty can be imposed needs to be raised to 5 per cent for developing countries, so as to reflect the inherent advantages that the industries in these countries enjoy comparable production in developed. The major users have so far applied this prescribed de Minims only in newly initiated case, not in review and refund cases. It is imperative that the proposed de Minims dumping margin of 5 per cent is applied not only in new cases but also in refund and review cases The threshold volume of dumped imports which shall normally be regarded as negligible should be increased from the existing 3 per cent to 5 per cent for imports from developing countries. Moreover, the stipulation that anti dumping action can still be taken even if the volume of imports is below this threshold level, provided countries which individually account for less than the threshold volume, collectively account for more than 7 per cent of the imports, should be deleted. The lesser duty rule should be made mandatory while imposing an antidumping duty against a developing country member by any developed country. The definition of substantial quantities as provided for in Article 2.2.2 is still very restrictive and permits unreasonable findings of dumping. The substantial quantities test should be increased form the present threshold of 20 per cent to at least 40 per cent.

In cases where there are no or low sales of like product in the domestic market, resort to constructed value on the basis of cost of production should only be made where the investigating authorities find that prices charged by the same exporter to third- country markets are not available or are not representative. As developing countries liberalize, the incidence of dumping in to these countries is likely to increase. It is important to address this concern, since otherwise the momentum of import liberalization in developing countries may suffer. There should therefore be a provision in the Agreement, which provides a presumption of dumping of imports from developed countries into developing countries, provided certain conditions are met. Presently there is a different and more restrictive standard of review pertaining to adjudication in anti-dumping cases. There is no reason why there should be such a discrimination for anti-dumping investigations. Hence, Article 17 should be suitably modified so that the general standard of review laid down in the WTO Dispute Settlement Mechanism, applies equally and totally to disputes in the anti-dumping area. The annual review provided under Article 18.6 has remained a proforma Exercise and has not provided adequate opportunity for Members to address issue of increasing anti-dumping measures and instances of abuse of the Agreement to accommodate protectionist pressures. This Article must be Appropriately amended to ensure that the annual reviews are meaningful and Play a role in reducing the possible abuse of the Anti-dumping Agreement. CONCLUSIONS Anti-dumping duties are levied in derogation o MFN treatment as product and company specific duties. No action against dumped imports can be taken unless the dumped imports can be taken unless the dumped imports can be shown to have caused injury to the domestic industry. Often the importers or the consumers of the dumped imports may have an interest opposed to that of the domestic industry as their main interests lies in getting

goods at as cheap a price as possible. The investigating authorities have, generally held that this may not be in the ultimate interest of consumers. Dumped imports, due to unfair competition they offer, may in due course wipe out the domestic industry which may lead to monopolistic sitituations and limit the choice available to consumers. While the Agreement on Implementation of Article VI of the GATT permits levy of anti-dumping duties up to the full margin of dumping it recommends levy of lesser duty, if such lesser duty is adequate to remove injury to the domestic industry. Some of these countries, however, levy full dumping margin asanti-dumping duties, including the USA and Canada, which can be considered to be providing an undue protection out their domestic industry. As the number of anti-dumping investigations are increasing day by day, they are causing serious threat to exporters and foreign producers, even if they do not resort to dumping practice because not only the cost of defending anti dumping actions are heavy it also requires a lot of time and energy to collect and furnish the requisite information to the investigating authorities. This may have serious impact on the markets of the targeted exporters. They have, therefore to be vigilant against frivolous complaints. On the other hand, the domestic industry also needs to be prompt in filing anti-dumping applications as it takes a considerable time for the authorities to levy protective measures and any delay may harm the interests of the domestic industry. As the number if anti-dumping investigations are increasing day by day, they are causing serious threat to exporters and foreign producers, even if they do not resort to dumping practice because not only the cost of defending anti-dumping actions are heavy it also requires a lot of time and energy to collect and furnish the requisite information to the investigating authorities. This may have serious impact on the markets of the targeted exporters . They have, therefore, to be vigilant against frivolous complaints. On the other hand, the domestic industry also needs to be prompt in filing anti-dumping applications as it takes a considerable time for the authorities to levy protective measures and any delay may harm the interests of the domestic industry.

RECOMMENDATIONS The domestic industry should avoid any delay in filing of anti-dumping applications, as anti-dumping duties cannot be applied before 60 days form the date of initiation of investigation. The domestic industry should build up their own data base which would help them in anti-dumping investigations against dumped imports. The exporters and foreign producers would do well to fully co-operate with the investigating authorities. If they do not cooperate and do not furnish the requisite information, the authorities may act on the basis of the best information available which may often be to their disadvantage. Besides, the non-cooperating exporters attract a higher rate of duty. The exporters and foreign producers should furnish information and replies to Questionnaires within the stipulated time or they should seek extension of time before the expiry of the given time, as the investigations are to be completed in a time bound manner and unless the authorities receive a request in time, they may not be able to consider any information furnished subsequently. It may be advantageous to the exporters to furnish price-undertakings as that would enable them to realize more money for their exports instead of allowing the government of the importing country to recover the differential as anti dumping duties. In both the cases, the cost to the importers is same. The exporters should not try to compensate foreign buyers for anti-dumping duties borne by them as any such action may result in a cascading effect i.e. it may result in levy of further enhanced anti-dumping duties. As the number of anti-dumping investigations are increasing both against imports and exports. Commensurate resources would need to be provided for strengthening the national administrations for conducting investigations as well as for providing the necessary assistance and guidance to the domestic producers. BIBLIGROPHY: MAGAZINES EXIM INDIA news letter NEWSPAPERS: THE ECONOMIC TIMES BUSINESS STANDARD