1. LEGAL PROVISIONS

 

Section 9B(c)(ii) of the Act provides as follows:

 

(ii) any anti-dumping duty under section 9A, at any time, upon receipt of satisfactory voluntary undertaking from any exporter to revise its prices or to cease exports to the area in question at dumped price and if the Central Government is satisfied that the injurious effect of dumping is eliminated by such action.

 

Rule 15 of the Rules provides as follows:

 

RULE 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.

 

The designated authority shall, suo moto 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.

 

2. OPERATING PRACTICE

 

The exporter has to signify his willingness to offer price undertaking in writing.

 

The request can be made anytime during the investigation after issuance of preliminary finding and/or Disclosure Statement or after the completion of the investigation as per the formats annexed in this Chapter.

 

The request is examined and a personal hearing may also be granted to the interested exporters in this regard.

 

The Domestic Industry and other interested parties must be informed regarding the request received from the exporter and time must be granted for filing the comments regarding this.

 

The following aspects are to be considered relevant for accepting/rejecting price undertaking as was directed by the Hon’ble Tribunal:

 

(i) Whether injury caused by dumping can be eliminated;

(ii) Whether there exists effective measure to ensure its fulfilment;

(iii) Whether such acceptance is in public interest;

(iv) Whether there exists any possibility of circumvention of the undertaking in anyway;

(v) Any other relevant factor which DG may consider necessary; and

(vi) If there is price variation amongst the like products or the PUC and a single price is provided as a part of the price undertaking.

 

The exporter should provide all reasonable information, which are considered relevant and necessary. If the exporter has failed to provide requisite information despite showing interest, the price undertaking may be rejected.

 

The Authority may accept price undertaking by one of the exporter of the subject country and may reject another exporter of the same subject country if found impractical or is unacceptable for any other reason.

 

The reason for non-acceptance of price undertaking shall be notified to the concerned exporter and time must be given to offer comments. The reason for non- acceptance must explicitly be given in the Final Findings.

 

If a negative determination of dumping or injury is made, the undertaking shall automatically lapse.

 

The DG 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 the non-confidential part of the undertaking.

 

Where the price undertaking is accepted for an exporter, he is required to provide from time to time information relevant to the fulfilment of the undertaking and to permit verification of relevant data.

 

In case of any violation of the conditions of undertaking the DG shall recommend imposition of provisional duty from the date of such violation in accordance with the provisions of these Rules pending the final determination.

 

Upon acceptance of the price undertaking offered by the exporter  the investigation against exporter gets suspended and the Authority does not recommend imposition of any definitive duty on this exporter till the undertaking accepted by the Authority remains valid.

 

The price undertaking remains valid for the period for which the measure recommended in the final findings of the Authority remains in force. The Authority may also suo-moto or on the basis of any request from exporters/domestic industry or importer of the article in question or any other interested parties review from time to time the need for continuance of the undertaking so given.

 

Once a price undertaking is accepted, it can later be revoked in case of violation of terms of price undertaking.

 

In case of any violation of the conditions of undertaking after final determination, the Designated Authority makes appropriate recommendations to the Central Government for levy of applicable anti-dumping duties on the basis of the information as available during the investigation or as brought to the notice of the authority from appropriate sources.

 

Undertaking would apply only in case of exports made by this company directly to India. In case the goods are exported by some other company/trader, the residual duty, would apply, even if the same is the produce of this company.

 

If the exporter has not claimed market economy, then there would be no requisite production data for determination of their normal value and dumping margin will not be on record, in such scenario it will be administratively difficult to accept price undertaking.

 

In the event of any violation of the undertaking or non-acceptance by the Central Government, the Designated Authority would make appropriate recommendations to the Central Government for levy of applicable anti-dumping duties on the basis of the information as available during the present investigation or as brought to the notice of the authority from appropriate sources.

 

Such Anti-Dumping duties may apply retrospectively from the date of violation or withdrawal of price undertaking.

 

In the event of Central Government not accepting the price undertaking, the Designated Authority shall separately intimate the Central Government the amount of Anti Dumping duty and the effective date of its levy.

 

The validity of the price undertaking would be co-terminus with the duration of the Anti-Dumping duties to be imposed by the Notification of the Central Government in this regard, and shall be subject to review as per the applicable provisions of the Rules.

 

CORRIGENDUM NOTIFICATION

 

The team should be careful in making every effort to issue a notification which is accurate and proper to obviate the issuance of corrigendum. However, even after taking due caution, if it is brought to the notice of the Authority by any of the interested party or on its own initiative that there appears a need for issuance of correction of an error due to any reason,the same can be considered by DG prior to issue of customs notification or after issue of customs notification but within a reasonable time;

 

The Corrigendum can only be issued for correction of inadvertent errors and not to cause any substantive change in the content of the notification or the issues/ situations already dealt with in the Notification.

 

The Rules do not provide the power to review or amend the final finding already notified by the Authority. It can only be revisited on the directions of Hon’ble Court or Hon’ble Tribunal remanding the case back to DG to reconsider or reissue the final findings on legal considerations; Any Corrigendum, if issued, should be uploaded on the website of DGTR. A Gazette notification should also be issued.

 

CLARIFICATIONS

 

In some cases (exceptional circumstances)an interested party may seek clarification on any point of ambiguity in the Final finding notification. The clarifications are normally by way of an explanation of the Final Finding and donot introduce any element of change. For example,an applicant may seek clarification on the scope of PUC as already decided in the Final Finding Notification, as to whether a certain article is covered within the scope of the final findings or whether certain HS codes are covered under the scope where the PUC is reported to be imported. Such clarifications are needed more for the purpose of Customs Authorities to enable them to implement the findings more effectively and the consequent duty notification, in its true letter and spirit. In case it is opined that the clarification could impact the opposing interested parties, the pre intimation of such a clarification must be posted in public domain (Directorate’s website), inviting comments before finalising the same. Any clarification, if issued, should always be uploaded on the website of DGTR for information of all concerned.

 

CHANGE OF NAME

 

The Authority, while recommending any ADD or CVD measure, recommends the levy of measure in the Duty Table of the Final Finding. The Ministry of Finance based on this recommendation, notifies the measure in a duty table mentioning the names of producer(s) / exporter(s) of the product under consideration.

 

At times requests are filed by interested parties particularly Producer(s)/ Exporter(s) for change in name in the Duty Table of Final Finding and for corresponding change in the relevant Custom Notification on account of various reasons viz merger / de-merger /acquisition, change in ownership structures / share holding pattern, change in requirement of law of a member country etc.

 

The methodology in such cases as follows and is elaborated in Trade Notice No. 12/2018 dated 17.09.2018.

 

The cases, where the change of name is a matter of ‘record’ only, the following procedure should be adopted:

 

(i) The Applicant Producer /Exporter may file request in the enclosed proforma (Both Confidential version (CV) and Non-confidential version (NCV).

 

(ii) The Authority would expeditiously evaluate the request and circulate through e-mail the ‘NCV’ version of application to all the interested parties identified in the original investigation for their comments within 7 working days from receipt of application.

 

(iii) The Interested parties may file their comments within 10 days of receiving the above stated NCV version of application.

 

(iv) The responses received within the stipulated time will be placed in a public file, for examination by all interested parties.

 

(v) Thereafter, the Authority may hold an oral hearing within a period of 30 days from receipt of application.

 

(vi) Post hearing submissions/rejoinders may be invited if the interested parties so desire. This would be completed in a period of another 10 days after the Oral hearing.

 

(vii) The Authority would issue its Finding in the form of Amendment within 60 days from receipt of application.

 

(viii) The Amendment would be duly notified and a copy of the Notification would be sent to Department of Revenue for notification of change in relevant Custom Notification.

 

However, in cases which necessitate reassessment of parameters of dumping, injury and other aspects owing to change in ownership structure, the request for change of name(s) shall be decided by conducting Mid Term Review.

 

It will be incumbent on all Producer(s) / Exporter(s), who have been granted individual dumping margin in AD / CVD investigation, to mandatorily report to the Authority any change in name within a period of 90 days of the same becoming effective. Failure to comply with these instructions shall render them liable to be treated as ‘non-cooperative’ Producer(s) / Exporter(s) during subsequent investigations by this Authority.

 

The prescribed proforma is attached with the Trade Notice 12/2018 dated 17.09.2018.

 

POST ISSUANCE OF FINAL  FINDING

 

After 100 days of issue of Final Finding Notification, all the case files available with the team (including costing files) should be send to the record room as per the instructions contained in Circular No. 3/2018 dated 9.4.2018 and 24.5.2018 and e-mail dated 27.7.2018. 

 

Source: Manual Of Operating Practices For Trade Remedy Investigations