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extracts from the customs tariff act, 1975
"9. countervailing duty on subsidized articles
(1) where any country or territory pays, bestows, directly or indirectly, any subsidy upon the manufacture or production therein or the exportation there from of any article including any subsidy on transportation of such article, then, upon the importation of any such article into india, whether the same is imported directly from the country of manufacture, production or otherwise, and whether it is imported in the same condition as when exported from the country of manufacture or production or has been changed in condition by manufacture, production or otherwise, the central government may, by notification in the official gazette, impose a countervailing duty not exceeding the amount of such subsidy.
explanation. - for the purposes of this section, a subsidy shall be deemed to exist if -
(a) there is financial contribution by a government, or any public body within the territory of the exporting or producing country, that is, where -
(i) a government practice involves a direct transfer of funds (including grants, loans and equity infusion), or potential direct transfer of funds or liabilities, or both;
(ii) government revenue that is otherwise due is foregone or not collected (including fiscal incentives);
(iii) a government provides goods or services other than general infrastructure or purchases goods;
(iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions specified in clauses (i) to (iii) above which would normally be vested in the government and the practice in, no real sense, differs from practices normally followed by governments; or
(b) a government grants or maintains any form of income or price support, which operates directly or indirectly to increase export of any article from, or to reduce import of any article into, its territory, and a benefit is thereby conferred.
(2) the central government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the amount of subsidy, impose a countervailing duty under this sub-section not exceeding the amount of such subsidy as provisionally estimated by it and if such countervailing duty exceeds the subsidy as so determined, -
(a) the central government shall, having regard to such determination and as soon as may be after such determination, reduce such countervailing duty; and
(b) refund shall be made of so much of such countervailing duty which has been collected as is in excess of the countervailing duty as so reduced.
(3) subject to any rules made by the central government, by notification in the official gazette, the countervailing duty under sub-section (1) or sub-section (2) shall not be levied unless it is determined that -
(a) the subsidy relates to export performance;
(b) the subsidy relates to the use of domestic goods over imported goods in the export article; or
(c) the subsidy has been conferred on a limited number of persons engaged in manufacturing, producing or exporting the article unless such a subsidy is for-
(i) research activities conducted by or on behalf of persons engaged in the manufacture, production or export;
(ii) assistance to disadvantaged regions within the territory of the exporting country; or
(iii) assistance to promote adaptation of existing facilities to new environmental requirements.
(4) if the central government, is of the opinion that the injury to the domestic industry which is difficult to repair, is caused by massive imports in a relatively short period, of the article benefiting from subsidies paid or bestowed and where in order to preclude the recurrence of such injury, it is necessary to levy countervailing duty retrospectively, the central government may, by notification in the official gazette, levy countervailing duty from a date prior to the date of imposition of countervailing duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section and notwithstanding anything contained in any law for the time being in force, such duty shall be payable from the date as specified in the notification issued under this sub-section.
(5) the countervailing duty chargeable under this section shall be in addition to any other duty imposed under this act or any other law for the time being in force.
(6) the countervailing duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:
provided that if the central government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of subsidization and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension:
provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the countervailing duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(7) the amount of any such subsidy as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the central government, after such inquiry as it may consider necessary and the central government may, by notification in the official gazette, make rules for the identification of such article and for the assessment and collection of any countervailing duty imposed upon the importation thereof under this section.
(8) every notification issued under this section shall, as soon as may be after it is issued, be laid before each house of parliament.
9a. anti-dumping duty on dumped articles.
(1) where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to india at less than its normal value, then, upon the importation of such article into india, the central government may, by notification in the official gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article.
explanation. - for the purposes of this section, -
(a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value;
(b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer 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 or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6);
(c) "normal value", in relation to an article, means -
(i) the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or
(ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either -
(a) comparable representative price of the like article when exported from the exporting country or territory or an appropriate third country as determined in accordance with the rules made under sub-section (6); or
(b) the cost of production of the said article in the country of origin along with reasonable addition for administrative, selling and general costs, and for profits, as determined in accordance with the rules made under sub-section (6):
provided that in the case of import of the article from a country other than the country of origin and where the article has been merely transhipped through the country of export or such article is not produced in the country of export or there is no comparable price in the country of export, the normal value shall be determined with reference to its price in the country of origin.
(2) 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 anti-dumping 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.
* (2a) notwithstanding anything contained in sub-section (1) and sub-section (2), a notification issued under sub-section (1) or any anti-dumping duty imposed under sub-section (2), unless specifically made applicable in such notification or such imposition, as the case may be, shall not apply to articles imported by a hundred per cent. export-oriented undertaking or a unit in a free trade zone or in a special economic zone.
explanation:- for the purposes of this section, the expressions "hundred per cent. export-oriented undertaking", "free trade zone" and "special economic zone" shall have the meanings assigned to them in explanation 2 to sub-section (1) of section 3 of central excise act, 1944.
(3) if the central government, in respect of the dumped article under inquiry, is of the opinion that -
(i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and
(ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously under-mine the remedial effect of the anti-dumping duty liable to be levied, the central government may, by notification in the official gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification.
(4) the anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this act or any other law for the time being in force.
(5) the anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition:
provided that if the central government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension :
provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year.
(6) the margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the central government, after such inquiry as it may consider necessary and the central government may, by notification in the official gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such anti-dumping duty.
(7) every notification issued under this section shall, as soon as may be after it is issued, be laid before each house of parliament.
(8) the provisions of the customs act, 1962 (52 of 1962) and the rules and regulations made thereunder, relating to the date for determination of rate of duty, non-levy, short-levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that act.
9aa.refund of anti-dumping duty in certain cases.
(1) where an importer proves to the satisfaction of the central government that he has paid any anti-dumping duty imposed under sub-section (1) of section 9a on any article, in excess of the actual margin of dumping in relation to such article, he shall be entitled to refund of such excess duty :
provided that such importer shall not be entitled to refund of so much of such excess duty under this sub-section which is refundable under sub-section (2) of section 9a.
explanation :- for the purposes of this sub-section, the expressions, "margin of dumping", "export price" and "normal value" shall have the meanings respectively assigned to them in the explanation to sub-section (1) of section 9a.
(2) the central government may, by notification in the official gazette, make rules to -
(i) provide for the manner in which and the time within which the importer may make application for the purposes of sub-section (1);
(ii) authorise the officer of the central government who shall dispose of such application on behalf of the central government within the time specified in such rules; and
(iii) provide the manner in which the excess duty referred to in sub-section (1) shall be -
(a) determined by the officer referred to in clause (ii); and
(b) refunded by the deputy commissioner of customs or assistant commissioner of customs, as the case may be, after such determination.
9b. no levy under section 9 or section 9a in certain cases.
(1) notwithstanding anything contained in section 9 or section 9a,-
(a) no article shall be subjected to both countervailing duty and anti-dumping duty to compensate for the same situation of dumping or export subsidization;
(b) the central government shall not levy any countervailing duty or anti-dumping duty -
(i) under section 9 or section 9a by reasons of exemption of such articles from duties or taxes borne by the like article when meant for consumption in the country of origin or exportation or by reasons of refund of such duties or taxes;
(ii) under sub-section (1) of each of these sections, on the import into india of any article from a member country of the world trade organisation or from a country with whom government of india has a most favoured nation agreement (hereinafter referred as a specified country), unless in accordance with the rules made under sub-section (2) of this section, a determination has been made that import of such article into india causes or threatens material injury to any established industry in india or materially retards the establishment of any industry in india; and
(iii) under sub-section (2) of each of these sections, on import into india of any article from the specified countries unless in accordance with the rules made under sub-section (2) of this section, a preliminary findings has been made of subsidy or dumping and consequent injury to domestic industry; and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation:
provided that nothing contained in sub-clauses (ii) and (iii) of clause (b) shall apply if a countervailing duty or an anti-dumping duty has been imposed on any article to prevent injury or threat of an injury to the domestic industry of a third country exporting the like articles to india;
(c) the central government may not levy -
(i) any countervailing duty under section 9, at any time, upon receipt of satisfactory voluntary undertakings from the government of the exporting country or territory agreeing to eliminate or limit the subsidy or take other measures concerning its effect, or the exporter agreeing to revise the price of the article and if the central government is satisfied that the injurious effect of the subsidy is eliminated thereby;
(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.
(2) the central government may, by notification in the official gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which any investigation may be made for the purposes of this section, the factors to which regard shall be at in any such investigation and for all matters connected with such investigation.
9c. appeal.
(1) an appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the customs, excise and gold (control) appellate tribunal constituted under section 129 of the customs act, 1962 (52 of 1962) (hereinafter referred to as the appellate tribunal).
(2) every appeal under this section shall be filed within ninety days of the date of order under appeal:
provided that the appellate tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.
(3) the appellate tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the order appealed against.
(4) the provisions of sub-sections (1), (2), (5) and (6) of section 129c of the customs act, 1962 (52 of 1962) shall apply to the appellate tribunal in the such bench shall consist of the president and not less than two members and shall include one judicial member and one technical member."
(5) every appeal under sub-section (1) shall be heard by a special bench constituted by the president of the appellate tribunal for hearing such appeals and such bench shall consist of the president and not less than two members and shall include one judicial member and one technical member."