1. LEGAL PROVISIONS

 

Section 9A(2) of the Act provides as follows:

 

The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article  into  India  an  anti-dumping  duty  on the basis of a provisional estimate of such value and margin and if such antidumping duty exceeds the margin as so determined:

 

(a) the Central Government shall, having regard to such determination and as soon as may be after such determination, reduce such anti- dumping duty; and

 

(b) refund shall be made of so much of the anti-dumping duty which has been collected as is in excess of the anti-dumping duty as so reduced.

 

Rule 12 of the Rules provides as follows:

 

(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.

 

Rule 13 of the Rules provides as follows:

 

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.

 

2. OPERATING PRACTICES

 

For invoking the power of the Designated Authority for preliminary findings, the DI has to specifically request for provisional duty/interim relief pending final recommendations which should be substantiated with sufficient grounds for seeking the interim relief.

 

The request can be considered after examining the import data and establishing that the imports have intensified since the initiation of the investigation which are at dumped prices and are causing injury to Domestic Industry.

 

The preliminary finding notification cannot be issued before the expiry of 60 days from the date of initiation of the investigation.

 

Even though, there is no outer limit for issue of preliminary finding but wherever warranted, preliminary finding on the basis of facts and circumstances of the case, should preferably be issued within 100 days from the date of initiation of investigation. The time lines were circulated vide Circular No.2 dated 27.2.2018 and further revised vide O.M. No.4/7/2018 dated 12.4.2018, annexed herewith.

 

The methodology for investigation leading to preliminary finding notification is same as that of the Final Findings. All the elements of analysis of dumping, injury and causal link have to be specifically dealt with in the preliminary finding notification along with stating the reason for issuance of preliminary findings. The responses received have also to be examined for calculation of dumping margin. In case of large number of responses if the team decides to resort to sampling technique for the case, then the same has to be notified prior to issuance of the preliminary findings thereby notifying all the stakeholders about selection and the process of sampling.

 

The preliminary finding is different from final findings to the extent that:

 

(i) There is no requirement of issuance of disclosure statement.

 

(ii) There is no mandatory requirement of Oral Hearing before issuance of preliminary findings, however, post issuance of preliminary findings, hearing must be conducted before finalising the Final Finding recommendations.

 

(iii) The duty imposed by Ministry of Finance on acceptance of recommendations, is valid only for a period 6 months as per second proviso of Rule 13. However, it can be extended for a further period of three months in case of request by the exporter representing a significant percentage of the trade involved.

 

(iv) It may need to be clarified that the duties imposed under the final findings, when notified are applicable from the date of imposition of preliminary duties, if any as per Rule 20(2)(a) of the Anti Dumping Rules. However, as per Rule 21(1), if the duties recommended in the Final findings are higher than the provisional duties imposed, then the difference of the duties shall not be collected from the importer.

 

The procedure of issue of notification and communication is same as mentioned for Final Findings in aforesaid paras.

 

There can be no imposition of anti-dumping duty during the “gap period” i.e. the period commencing from the expiry of the imposition of anti-dumping duties provisionally determined and ending on the date of the final determination.

 

Source: Manual Of Operating Practices For Trade Remedy Investigations