spacer.gifsto247.gifspacer.gif Date of filing of ST-3 returns extended - returns for April to June, 2012 to be filed by 25th November, 2012 only.spacer.gifsto247.gifspacer.gif BREAKING NEWS : Service Tax half yearly ST-3 return to cover period from April, 2012 to June, 2012 only (ST Notification 47/2012)spacer.gifsto247.gifspacer.gif All Service Tax assessees are informed that they will not be able to file ST 3 returns in ACES now and have to wait until the modified version of ST 3 Form which is made available in a few weeks on aces.spacer.gifsto247.gifspacer.gif Penalty: Section 76: No delay in depositing service tax with Revenue: Penalty not imposable.spacer.gifsto247.gifspacer.gif Refund: Export of Services: Terminal Handling Charges also a port service.spacer.gifsto247.gifspacer.gif Penalty: Once the entire demand is set aside by Commissioner (A) and that order is not challenged by the department: Commissioner cannot impose penalty under Section 76 by passing a Review Order: Penalty set aside.spacer.gifsto247.gifspacer.gif Cargo Handling Service: The activity of transportation and stacking within the stockyard premises not covered: Demand set aside.spacer.gifsto247.gifspacer.gif Finance Act, 2012spacer.gifsto247.gifspacer.gifDefinitions introduced in Section 65C, Section 66B (Charge of Service Tax), Section 66C (Determination of Place of Provision of Service), Section 66D (Negative List), Section 66E (Declared Services), Section 66F (Bundled Services), Amendment to Section 67 (omitting of Explanation, Amendment to Section 68 (sharing of taxes between provider and receiver) would operate from 01.07.2012.spacer.gifsto247.gifspacer.gifThe notifications amending Cenvat Credit Rules, Valuation Rules, Service Tax Rules, Works Contract Composition Scheme have not been issued.spacer.gifsto247.gifspacer.gifSection 65, 65A, 66 & 66A would cease to operate from 01.06.2012spacer.gifsto247.gifspacer.gifThe clause (A), (B), (D) & (E) of Section 143 of the Finance Act,2012 will come into force from 01.06.2012 as per Notification No.18/2012 dated 01.06.2012spacer.gifsto247.gifspacer.gifNegative list based service tax will come into force from 1st july 2012spacer.gifsto247.gifspacer.gifFinance Bill, 2012; gets enacted on May 28, 2012 : Finance Act (No 23 of 2012)spacer.gifsto247.gifspacer.gif Aam aadmi becomes khaas aadmi spacer.gifsto247.gifspacer.gifCentral Excise and Service Tax returns combined into a one page form "EST-1"spacer.gifsto247.gifspacer.gifCentral Excise rates increased from 10 % to 12%spacer.gifsto247.gifspacer.gifService Tax Rate to be 12%  spacer.gifsto247.gifspacer.gif Date of filing of ST-3 returns extended - returns for April to June, 2012 to be filed by 25th November, 2012 only.spacer.gifsto247.gifspacer.gif BREAKING NEWS : Service Tax half yearly ST-3 return to cover period from April, 2012 to June, 2012 only (ST Notification 47/2012)spacer.gifsto247.gifspacer.gif All Service Tax assessees are informed that they will not be able to file ST 3 returns in ACES now and have to wait until the modified version of ST 3 Form which is made available in a few weeks on aces.spacer.gifsto247.gifspacer.gif Penalty: Section 76: No delay in depositing service tax with Revenue: Penalty not imposable.spacer.gifsto247.gifspacer.gif Refund: Export of Services: Terminal Handling Charges also a port service.spacer.gifsto247.gifspacer.gif Penalty: Once the entire demand is set aside by Commissioner (A) and that order is not challenged by the department: Commissioner cannot impose penalty under Section 76 by passing a Review Order: Penalty set aside.spacer.gifsto247.gifspacer.gif Cargo Handling Service: The activity of transportation and stacking within the stockyard premises not covered: Demand set aside.spacer.gifsto247.gifspacer.gif Finance Act, 2012spacer.gifsto247.gifspacer.gifDefinitions introduced in Section 65C, Section 66B (Charge of Service Tax), Section 66C (Determination of Place of Provision of Service), Section 66D (Negative List), Section 66E (Declared Services), Section 66F (Bundled Services), Amendment to Section 67 (omitting of Explanation, Amendment to Section 68 (sharing of taxes between provider and receiver) would operate from 01.07.2012.spacer.gifsto247.gifspacer.gifThe notifications amending Cenvat Credit Rules, Valuation Rules, Service Tax Rules, Works Contract Composition Scheme have not been issued.spacer.gifsto247.gifspacer.gifSection 65, 65A, 66 & 66A would cease to operate from 01.06.2012spacer.gifsto247.gifspacer.gifThe clause (A), (B), (D) & (E) of Section 143 of the Finance Act,2012 will come into force from 01.06.2012 as per Notification No.18/2012 dated 01.06.2012spacer.gifsto247.gifspacer.gifNegative list based service tax will come into force from 1st july 2012spacer.gifsto247.gifspacer.gifFinance Bill, 2012; gets enacted on May 28, 2012 : Finance Act (No 23 of 2012)spacer.gifsto247.gifspacer.gif Aam aadmi becomes khaas aadmi spacer.gifsto247.gifspacer.gifCentral Excise and Service Tax returns combined into a one page form "EST-1"spacer.gifsto247.gifspacer.gifCentral Excise rates increased from 10 % to 12%spacer.gifsto247.gifspacer.gifService Tax Rate to be 12%
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Investigations

A dumping investigation can normally be initiated only upon receipt of a written application by or on behalf of the “Domestic Industry”. In order to constitute a valid application, the following conditions have to be satisfied:

• The domestic producers expressly supporting the application must account for not less than 25% of the total production of the like article by the domestic industry in India; and

• The domestic producers expressly supporting the application must account for more than 50% of the total production of the like article by those expressly supporting and those opposing the application.

• There is sufficient evidence furnished along with the application regarding;

i. Dumping of goods in question;

ii. Injury to the domestic industry; and

iii. A causal link between the dumped imports and alleged injury to the domestic industry.

Under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Designated Authority is required to carry out investigations on a complaint regarding dumping and give his findings with regard to the existence of dumping, injury to the domestic industry and a causal link between the two. Having determined the existence of dumping, injury and causal link, the Designated Authority also determines the quantum of duty during the investigation. For this purpose, the Designated Authority calculates the Non-injurious Price for the domestic industry as a whole for the product under consideration, which is a notional fair selling price. The determination of injury and computation of Non-injurious Price for the domestic industry should be as a whole, and not in respect of any particular company or enterprise.

An Application received by the Designated Authority is dealt with in the following manner:

Preliminary Screening

The application is required to be scrutinized to ensure that it contains the necessary information and is supported by sufficient evidence for initiating an investigation. If the evidence is not adequate, then a deficiency letter is issued. Unless the deficiencies are rectified, the submission made before the Authority cannot be construed as an application pending before the Authority.

Initiation

Designated Authority has to determine whether the application has been made by or on behalf of the Domestic Industry. It also examines the accuracy and adequacy of the evidence provided in the application and when satisfied that there is sufficient evidence regarding dumping, injury and causal link, a public notice is issued initiating an investigation. The Initiation notice is normally issued within 5 days from the date of receipt of a properly documented application.

Access to Information

The Authority provides access to the non-confidential evidence presented to it by various interested parties in the form of a public file, which is available for inspection to all interested parties on request after receipt of the responses.

Preliminary Findings

The Designated Authority will proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, make a preliminary finding containing the detailed information and the main reasons behind the determination. The preliminary finding will normally be made within 60-70 days from the date of initiation.

Provisional Duty

A provisional duty not exceeding the margin of dumping may be imposed by the Central Government on the basis of the preliminary finding recorded by the Designated Authority. The provisional duty can be imposed only after the expiry of 60 days from the date of initiation of investigation. The provisional duty will remain in force only for a period not exceeding 6 months, extendable to 9 months under certain circumstances.

Oral Evidence & Public Hearing

Interested parties who participate in the investigations can request the Designated Authority for an opportunity to present the relevant information orally. However, such oral information shall be taken into consideration only when it is subsequently reproduced in writing. The Authority may grant oral hearing anytime during the course of the investigation. The Authority also holds a public hearing inviting all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.

Disclosure of information

Based on these submissions and evidence gathered during the investigation and verification thereof, the Authority will determine the basis of its final findings. However, the Designated Authority will inform all interested parties of the essential facts, which form the basis for its decision before the final finding is made.

Final Determination

The interested parties submit their response to the disclosure of the essential facts which form the basis of the final findings of the Designated Authority. The Authority examines these final submissions of the parties and comes out with final findings.

Time-limit

Normal time allowed by the statute for conclusion of investigation and submission of final findings is one year from the date of initiation of the investigation. The above period may be extended by the Central Government by 6 months.

The anti-dumping proceedings being quasi judicial in nature, the Designated Authority has to meticulously follow the principles of natural justice before making the final recommendation of duty in the following manner:-

• The interested parties to the investigation are given adequate opportunity to represent their case at several stages of investigation.

• The first opportunity is provided after the initiation of proceedings. The Authority duly considers the submissions of all interested parties in response to the initiation while giving its Preliminary findings.

• After the imposition of provisional duty, the interested parties file their responses to the Preliminary findings and opportunity is provided to them to submit the facts and figures to the Authority at the stage of verification of their information if the same has been already filed in response to the initiation.

• A formal Public hearing is held providing opportunities to all interested parties to make their submissions before it. All oral submissions made during the hearing need to be reproduced in writing for the Authority to take the same on board.

• All these submissions of the different interested parties are given due consideration and on that basis the Authority issues a disclosure of essential facts which are proposed to form the basis of final findings.

• The parties to the investigation are also given the final opportunity to respond to the disclosure and represent their case before the final findings are notified.

Interim Relief

The Designated Authority recommends an interim relief which is provided to the affected domestic industry in the form of provisional anti-dumping duty pending the finalisation of investigation proceedings. The provisional anti-dumping duty is recommended by the Authority in its preliminary findings and the same is levied by the Ministry of Finance, Dept. of Revenue. This serves as immediate relief to the domestic industry against the injury caused to it by the dumping of goods. Statutorily, the provisional anti-dumping duty cannot be levied earlier than 60 days from the date of initiation of proceedings. The endeavor of the Designated Authority has been to recommend provisional duty immediately after the expiry of the mandatory period of 60 days. The provisional anti-dumping duty is recommended in a period of 60-70 days and levied in a period of about 3 months from the date of initiation of the proceedings.

Termination of investigation

The Designated Authority may suspend or terminate the investigation in the following cases :

• if there is a request in writing from the domestic industry at whose instance the investigation was initiated.

• when there is no sufficient evidence of dumping or injury.

• if the margin of dumping is less than 2% of the export price.

• the volume of dumped imports from a country is less than 3% of the total imports of the like article into India or the volume of dumped imports collectively from all such countries is less than 7% of the total imports.

• injury is negligible.

Notification of recommendations

The following arrangements are available to notify the recommendations of the Designated Authority:-

• The Designated Authority notifies its recommendations with respect to Initiation / Preliminary Findings/Final Findings etc. through Government of India, Gazette.

• Press Information Bureau, Ministry of Commerce & Industry also issues a Press Release on the subject from to time.

• Also National Informatics Centre, Ministry of Commerce and Industry makes available the details with respect to recommendations of the Designated Authority on its web-site http://commin.nic.in/doc.

On receipt of recommendations from the Designated Authority, the Central Government (i.e. Ministry of Finance, Dept. of Revenue) notifies the imposition of Anti-dumping Duties through Government of India, Gazette.

Suo-motu initiation of Anti-dumping investigation

Normally the Designated Authority initiates the proceedings for anti dumping action on the basis of a petition received from the domestic industry alleging dumping of certain goods and the injury caused to it by such dumping. However, Rule 5(4) of the Anti Dumping Rules provides for suo-motu initiation of anti dumping proceedings by the Designated Authority on the basis of information received from the Collector of Customs appointed under the Customs Act, 1962 or from any other source. In such circumstances, the Authority initiates the anti dumping investigation on its own without any complaint/petition filed in this regard, provided the Authority is satisfied that sufficient evidence exists as to the existence of dumping, injury and causal link between the dumped imports and the alleged injury. After initiation, the suo-motu investigation follows the same procedure as the one based on a petition as mentioned in the Anti Dumping Rules.

Period of Investigation in anti-dumping cases

All the information and evidence furnished in the application in relation to dumping, injury and causal link must pertain to a definite period which is called the period of investigation. Broadly, there are indications that such period should not be, in any case, less than six months and not more than eighteen months. It is, however, important that the period taken into consideration for detailed investigation into dumping and injury should be as representative and as recent as possible. The most desirable period of investigation is a financial year provided there is reasonable proximity between the end of the financial year and the filing of the application.However, for the purposes of injury analysis, the domestic industry has to furnish the relevant data for the past three years.

Individual exporter

Any exporter whose margin of dumping is less than 2% of the export price shall be excluded from the purview of anti-dumping duties even if the existence of dumping, injury as well as the causal link is established.

Country

Further, investigation against any country is required to be terminated if the volume of the dumped imports, actual or potential, from a particular country accounts for less than 3% of the total imports of the like product. However, in such a case, the cumulative imports of the like product from all these countries who individually account for less than 3%, should not exceed 7% of the import of the like product.

Initiation of investigation.

As per Rule 5 of the Anti Dumping Rules, 1995 the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry. Such application is required to be in the form as maybe specified by the designated authority and the application shall be supported by evidence of -

(a) dumping

(b) injury, where applicable, and

(c) where applicable, a causal link between such dumped imports and alleged injury.

The designated authority shall not initiate an investigation pursuant to an application unless -

(a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry. Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry. The application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application.

(b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding -

(i) dumping,

(ii) injury, where applicable; and

(iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation.

The designated authority may initiate an investigation suo moto if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 or from any other source that sufficient evidence exists as to the existence of dumping, injury and casual link between dumped imports and the injury.

Principles governing investigations.

As per Rule 6 of the Anti Dumping Rules, 1995 the designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:-

(i) the name of the exporting country or countries and the article involved;

(ii) the date of initiation of the investigation;

(iii) the basis on which dumping is alleged in the application;

(iv) a summary of the factors on which the allegation of injury is based;

(v) the address to which representations by interested parties should be directed; and

(vi) the time-limits allowed to interested parties for making their views known.

A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. The designated authority shall also provide a copy of the application to -

(i) the known exporters or to the concerned trade association where the number of exporters is large, and

(ii) the governments of the exporting countries:

The designated authority shall also make available a copy of the application to any other interested party who makes a request therefor in writing.

The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. The notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country.

The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality.

The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing. The evidence presented to it by one interested party shall be made available to the other interested parties, participating in the investigation.

In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances.

Investigation in the territory of other specified countries.

As per Rule 9 of the Anti Dumping Rules, 1995, the designated authority may carry out investigation in the territories of other countries, if the circumstances of a case so warrant, after obtaining the consent of the person concerned and notifies the representatives of the concerned government and the concerned government does not object to such investigation.

Suspension or termination of investigation on price undertaking

Rule 15 of the Anti Dumping Rules, 1995 empowers the designated authority to 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:

This termination of investigation is subject to the condition that the designated authority shall complete the investigation and record its finding, if the exporter so desires, or it so decides. No undertaking as regards price increase shall be accepted from any exporter unless the designated authority had made preliminary determination of dumping and the injury. 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.

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. In cases where an undertaking has been accepted by the designated authority the Central Government may not impose an anti dumping duty for such period the undertaking acceptable to the designated authority remains valid.

Where the designated authority has accepted any undertaking, 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. 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.

The Trade Notice No. 2/2004 dated 12.05.2004 issued by Ministry of Commerce & Industry, Department of Commerce, Directorate General of Anti Dumping & Allied Duties, have prescribed the following requirements for making the application for anti-dumping investigation:-

(i) The source of data must be indicated by the applicant while furnishing the information.

(ii) A soft-copy using MS-Word/MS-Excel software of the petition is also required to be submitted.

(iii) Application should invariably contain information and data relating to the proposed period of investigation (POI) and previous three financial years. There should be no gap but there can be overlap between the POI and the previous financial years. The data for previous three years would be utilized for trend analysis for determination of injury.

(iv) Information furnished in the application to demonstrate dumping, injury and causal link between such dumped imports and alleged injury should invariably be supported by evidence as required under Rule 5(2) of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995.

(v) Detailed information along with evidence of injury should cover all relevant economic factors indicated in Para (iv) of the Annexure II to the above mentioned Rules as reproduced below:-

“(iv) The examination of the impact of the dumped imports on the domestic industry concerned, shall include an evaluation of all relevant economic factors and indices having a bearing on the state of the industry, including natural and potential decline in sales, profits, output, market share, productivity, return on investments or utilization of capacity; factors affecting domestic prices; the magnitude of the margin of dumping; actual and potential negative effects on cash flow, inventories, employment, wages, growth, ability to raise capital investments.”

Accordingly, the data relevant to productivity, return on investment, the magnitude of the margin of dumping, negative effects on cash flow, inventories, wages, growth, ability to raise capital investments should also be specifically furnished under item no. 18 of Proforma IV A to the application to substantiate the injury with regard to all the parameters mentioned in the Annexure II.

(vi) Any information furnished on a confidential basis should be supported by a statement of reasons to demonstrate the good cause as to why the particular information need to be kept confidential. All information/documents/submissions given on a confidential basis must be accompanied by a meaningful non-confidential summary thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence.

The Trade Notice No. 1/2007 dated 22.10.2007 issued by Ministry of Commerce & Industry, Department of Commerce, Directorate General of Anti Dumping & Allied Duties , have prescribed the following procedural requirements for making written submissions subsequent to the Public Hearing and while filing rejoinders thereto:-

(i) The rejoinders should be in the form of exact parawise comments to the written submissions.

(ii) No new issues/arguments would be raised at the stage of rejoinder. However, new logic or analysis based on facts already submitted can be furnished to further make the points on the subject matter.

(iii) All submissions and rejoinders must comply with the requirements laid down under Rule 7 of the Anti-Dumping Rules. Interested parties must provide non-confidential version of the confidential information, if any, contained in written submissions or rejoinders in parawise corresponding form of narration. The non-confidential versions should be in sufficient detail to permit a reasonable understanding of substance of the information submitted on confidential basis.

(iv) No submissions/information would be submitted interested parties after the expiry of the time allowed during the Public Hearing. However, either with the permission or in response to letter of the Designated Authority, information/submissions which are clarificatory in nature may be submitted.

             
 
              
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