The provisions for determination of NIP are provided in Annexure- III to Rule 4(1)(d)(i) and Rule 17(1)(b) of the Anti-Dumping Rules.The Annexure-III was notified on 1st March, 2011 after the decision of the Hon’ble Supreme Court in the case of Reliance Industries v. Designated Authority  and Ors.

 

Rule 17(1)(b) is reproduced as under: Final findings. –

 

(1)  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)    ………

(b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to rules.

 

The provisions of Annexure-III are reproduced as follows:

 

“PRINCIPLES FOR DETERMINATION OF NON-INJURIOUS PRICE

 

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 non-injurious price, namely:  —

 

(i) The best utilization 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.

 

(iv) 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.

 

(v) 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.

 

(vi) 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.

 

(vii) 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 claimed for the period of investigation may be examined and scrutinised by comparing with the corresponding amounts in the immediate preceding year.

 

a. The expenses, which shall not to be considered while assessing non-injurious price include—

b. research and development provisions (unless claimed and substantiated as related to the product specific research);

c. 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;

d. excise duty, sales tax and other tax levies on sales;

e. expenses on job work done for other  units;

f. royalty, unless it is related to technical know-how for the product;

g. trading activity of product under consideration; or

h. 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 forthe 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 be ginning 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 scrutinized 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 the basis for computation of weighted average non-injurious price for the domestic industry as a whole.”

 

Source: Manual Of Operating Practices For Trade Remedy Investigations