Notification
New
Delhi, the 1st March, 2011 No. 15/2011-Customs (N.T) |
G.S.R. (E) - In exercise of the powers conferred by
sub-section (6) of section 9A and subsection (2) of section 9B of the Customs
Tariff Act, 1975 (51 of 1975), the Central Government hereby makes the
following rules further to amend the Custom Tariff (Identification, Assessment
and Collection of Anti-dumping Duty on Dumped Articles and for Determination of
Injury) Rules, 1995, namely :-
1. (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) Amendment Rules, 2011.
(2) They shall come into force on the date of their
publication in the Official Gazette.
2. In the Customs Tariff (Identification, Assessment
and Collection of Anti-dumping Duty on Dumped Articles and for Determination of
Injury) Rules, 1995(herein after referred to as the said rules), for rule 4,
the following shall be substituted, namely:—
“4. Duties of the designated authority. — 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 the Central Government as to-
(i)
normal value, export price and the
margin of dumping in relation to the article under investigation; and
(ii)
the injury or threat of injury to an
industry established in India or material retardation to the establishment of
an industry in India consequent upon the import of such article from the
specified countries;
(d) to
recommend to the Central Government-
(i)
the amount of anti-dumping duty equal to
the margin of dumping or less, which if levied, would remove the injury to the
domestic industry, after considering the principles laid down in the Annexure
III to these rules; and
(ii)
the date of commencement of such duty;
(e) to
review the need for continuance of anti-dumping duty”
3. In the said rules, in rule 17, in sub-rule (1),
in clause (b), after the words ?domestic industry?, the words and figures
?after considering the principles laid down in the Annexure III to these
rules.? shall be inserted.
(4) In the said rules, in rule 23, for sub-rule (1),
following shall be substituted, namely:-
“(1)
Any anti-dumping duty imposed under the provision of section 9A of the Act,
shall remain in force, so long as and to the extent necessary, to counteract
dumping, which is causing injury.
(1A) The designated
authority shall review the need for the continued imposition of any
anti-dumping duty, where warranted, on its own initiative or upon request by
any interested party who submits positive information substantiating the need
for such review, and a reasonable period of time has elapsed since the
imposition of the definitive anti-dumping duty and upon such review, the
designated authority shall recommend to the Central Government for its
withdrawal, where it comes to a conclusion that the injury to the domestic industry
is not likely to continue or recur, if the said anti-dumping duty is removed or
varied and istherefore no longer warranted.
(1B) Notwithstanding
anything contained in sub-rule (1) or (1A), any definitive antidumping duty
levied under the Act, shall be effective for a period not exceeding five years
from the date of its imposition, unless the designated authority comes to a
conclusion, on a review initiated before that period on its own initiative or
upon a duly substantiated request made by or on behalf of the domestic
industry, within a reasonable period of time prior to the expiry of that
period, that the expiry of the said anti-dumping duty is likely to lead to
continuation or recurrence of dumping and injury to the domestic industry.?.
5. In the said rules, after the ANNEXURE II, the
following shall be added, namely:-
“ANNEXURE III
[See rule 17(1)]
Principles for determination of non-injurious price
(1)
The
designated authority is required under sub-rule (1) of rule 17 to recommend the
amount of anti-dumping duty which, if levied, would remove the injury where
applicable to the domestic industry
(2)
For the purpose of making recommendation under
clause (1), the designated authority shall determine the fair selling
(notional) price or non-injurious price of the like domestic product taking
into account the principles specified herein under.
(3)
The
non-injurious price is required to be determined by considering the information
or data relating to cost of production for the period of investigation in
respect of the producers constituting domestic industry. Detailed analysis or
examination and reconciliation of the financial and cost records maintained by
the constituents of the domestic industry are to be carried out for this
purpose.
(4)
The
following elements of cost of production are required to be examined for
working out the noninjurious price, namely: —
(i)
The
best utilisation of raw materials by the constituents of domestic industry,
over the past three years period and the period of investigation, and at period
of investigation rates may be considered to nullify injury, if any, caused to
the domestic industry by inefficient utilisation of raw materials.
(ii)
The
best utilisation of utilities by the constituents of domestic industry, over
the past three years period and period of investigation, and at period of
investigation rates may be considered to nullify injury, if any, caused to the
domestic industry by inefficient utilization of utilities.
(iii)
The
best utilisation of production capacities, over the past three years period and
period of investigation, and at period of investigation rates may be considered
to nullify injury, if any, caused to the domestic industry by inefficient
utilization of production capacities.
(iv)
The
Propriety of all expenses, grouped and charged to the cost of production may be
examined and any extra-ordinary or non-recurring expenses shall not be charged
to the cost of production and salary and wages paid per employee and per month
may also be reviewed and reconciled with the financial and cost records of the
company.
(v)
To
ensure the reasonableness of amount of depreciation charged to cost of
production, it may be examined that no charge has been made for facilities not
deployed on the production of the subject goods, particularly in respect of
multi-product companies and the depreciation of re-valued assets, if any, may
be identified and excluded while arriving at reasonable cost of production.
(vi)
The
expenses to the extent identified to the product are to be directly allocated
and common expenses or overheads classified under factory, administrative and
selling overheads may be apportioned on reasonable and scientific basis such as
machine hours, vessel occupancy hours, direct labour hours, production
quantity, sales value, etc., as applied consistently by domestic producers and
the reasonableness and justification of various expenses cl aimed for the
period of investigation may be examined and scrutinised by comparing with the
corresponding amounts in the immediate preceding year
(vii)
The
expenses, which shall not to be considered while assessing non-injurious price
include,—
a)
research
and development Provisions (unless claimed and substantiated as related to the
product specific research);
b)
since
non-injurious price is determined at ex-factory level, the post manufacturing
expenses such as commission, discount, freight- outward etc.at ex-factory
level;
c)
excise
duty, sales tax and other tax levies on sales;
d)
expenses
on job work done for other units;
e)
royalty,
unless it is related to technical know-how for the product;
f)
trading
activity of product under consideration; or
g)
other
non-cost items like bad debts, donations, loss on sale of assets, loss due to
fire, flood, etc.
(viii)
A
reasonable return (pre-tax) on average capital employed for the product may be
allowed for recovery of interest, corporate tax and profit. The average capital
employed is the sum of "net fixed assets and net working capital? which
shall be taken on the basis of average of the same as on the beginning and at
the end of period of investigation. For assessment of reasonable level of
working capital requirement, all the elements of net working capital shall be
scrutinised in detail. The impact of revaluation of fixed assets shall not be
considered in the calculation of capital employed. Interest is allowed as an
item of cost of sales and after deducting the interest, the balance amount of
return is to be allowed as pre-tax profit to arrive at the non- injurious
price.
(ix)
Reasonableness
of interest cost may be examined to ensure that no abnormal expenditure on
account of interest has been incurred. Details of term loans, cash credit
limits, short term loans, deposits and other borrowings taken by the company
and interest paid thereon may be examined in detail along with the details of
assets deployed.
(x)
In
case there is more than one domestic producer, the weighted averages of
non-injurious price of individual domestic producers are to be considered. The
respective share of domestic production of the subject goods may be taken as
basis for computation of weighted average non-injurious price for the domestic
industry as a whole.?.
[F.
No. 334/3/2011 – TRU]
(Sanjeev
Kumar Singh)
Under
secretary to the Government of India
Note-
The principal rules were notified vide Notification No. 2/95-Customs (N.T.),
dated the 1st January, 1995, vide G.S.R. 1 ( E ), dated 1 st January ,1995 and
was last amended vide Notification No.1/2002 – Customs (N.T.), dated the 4 th
January, 2002 vide G.S.R.11 ( E ) , dated the 4th January,2002
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