Countervailing Duty Investigations
(3) The provisions of rules 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 19, 20, 22
and 23 shall mutatis mutandis apply in the case of review35.”
20.92 The SCM Agreement recognizes the following three types of reviews of
CVD measures:
(i) Article 19.3: The investigating Authority is required to carry out promptly
and in accelerated manner reviews requested by exporters which are subject
to a definitive countervailing duty, but which were not actually investigated
for reasons other than for refusal to cooperate. However, no such review
has been done so far for CVD;
(ii) Article 21 (Sunset Reviews also called as Expiry Review and Mid- Term
review): Definitive countervailing duties shall normally expire after five
years from their imposition, unless the domestic industry asks for a review
within a reasonable period of time preceding the expiry, arguing that the
expiry of the duty would be likely to lead to continuation or recurrence of
subsidization and injury. During the five-year period (hence the term interim
review), interested parties may request the authorities to examine whether
the continued imposition of the duty is necessary to offset subsidization,
whether the injury would be likely to continue or recur if the duty were
removed or varied, or both36. The duty may remain in force pending the
outcome of such a review;
(iii) Article 23 provides that Members, which do adopt countervailing duty
legislation, must also maintain independent judicial, arbitral or administrative
tribunals or procedures for the purpose of prompt review of administrative
final and review determinations. The Customs, Excise and Service Tax
Appellate Tribunal (CESTAT) in India is the independent judicial forum to
consider the appeals against the final findings issued by DGTR.
APPEAL PROVISION
20.93 The last paragraph of the final finding notification, should mention the
appeal provision. It should be stated that “an appeal against the order of the
Central Government arising out a Final Finding shall lie before the Customs, Excise
and Service Tax Appellate Tribunal in accordance with the Customs Tariff Act”.
35 Please refer to Para XX of Chapter 24 for WTO Jurisprudence.
36 See Appellate Body Report, US – Carbon Steel (DS 436). Refer Para XX of Chapter 24 for WTO Jurisprudence.
479
SAFEGUARD INVESTIGATIONS CHAPTER 21
LEGAL PROVISIONS
21.1 The Agreement on Safeguards (“SG Agreement”) sets forth the
broad rules for application of safeguard measures pursuant to Article XIX
of GATT 1994. In addition, specific safeguard measures are also provided
in various FTAs negotiated on bilateral basis with conditions contained
therein1.
21.2 Safeguard measures are defined as “emergency" actions with
respect to increased imports of particular products, where such imports
have caused or threaten to cause serious injury to the importing Member’s
domestic industry (Article 2). Such measures can consist of quantitative
import restrictions or duty increases to higher than bound rates. They are
one of the three types of contingent trade protection measures, along with
anti-dumping and countervailing measures, available to WTO Members.
21.3 In the Indian domestic framework, the applicable legal provision
for imposition of safeguard duty on imports is Section 8B of the Act. Sub-
section (1) provides for the imposition of safeguard duty by the Central
Government on an article if the article is being imported into India in such
increased quantities and under such conditions so as to cause or threaten
to cause serious injury to the Domestic Industry. The Customs Tariff
(Identification and Assessment of Safeguard Duty) Rules, 19971govern
the procedural aspects, including the manner of and principles governing
safeguard investigations.
21.4 Section 8B of the Act reads as under:
1 India-Singapore Trade Agreement (Safeguard Measures) Rules, 2009; India-ASEAN Trade in Goods
Agreement (Safeguard Measures) Rules, 2016; India-Japan Comprehensive Economic Partnership
Agreement (Bilateral Safeguard Measures) Rules, 2017; India – Korea Comprehensive Economic
Cooperation Agreement (Bilateral Safeguard Measures) Rules, 2017
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8B. Power of Central Government to Impose Safeguard Duty:
(1) If the Central Government, after conducting such enquiry as it deems
fit, is satisfied that any article is imported into India in such increased
quantities and under such conditions so as to cause or threatening to
cause serious injury to domestic industry, then, it may, by notification
in the Official Gazette, impose a safeguard duty on that article:
Provided that no such duty shall be imposed on article originating
from a developing country so long as the share of imports of that
article from that country does not exceed three percent or where the
article is originating from more than one developing countries, then,
so long as the aggregate of the imports from all such countries taken
together does not exceed nine percent of the total imports of that
article into India.
Provided further that the Central Government may, by notification
in the Official Gazette, exempt such quantity of any article as it
may specify in the notification, when imported from any country
or territory into India, from payment of the whole or part of the
safeguard duty leviable thereon.
(2) The Central Government may, pending the determination under
sub-section (1), impose a provisional safeguard duty under this sub-
section on the basis of a preliminary determination that increased
imports have caused or threatened to cause serious injury to a
domestic industry:
Provided that where, on final determination, the Central Government
is of the opinion that increased imports have not caused or threatened
to cause serious injury to a domestic industry, it shall refund the duty
so collected:
Provided further that the provisional safeguard duty shall not remain
in force for more than two hundred days from the date on which it
was imposed.
(2A) Notwithstanding anything contained in sub-section (1) and sub-
section (2), a notification issued under sub-section (1) or any
safeguard duty imposed under sub-section (2), unless specifically
made applicable in such notification or such imposition, as the case
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may be, shall not apply to articles imported by a hundred percent
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) The duty chargeable under this section shall be in addition to any
other duty imposed under this Act or under any other law for the
time being in force.
(4) The duty imposed under this section shall, unless revoked earlier,
cease to have effect on the expiry of four years from the date of such
imposition:
Provided that if the Central Government is of the opinion that the
domestic industry has taken measures to adjust to such injury or
threat thereof and it is necessary that the safeguard duty should
continue to be imposed, it may extend the period of such imposition:
Provided further that in no case the safeguard duty shall continue
to be imposed beyond a period of ten years from the date on which
such duty was first imposed.
(4A) The provisions of the Customs Act, 1962 (52 of 1962) and the rules
and regulations made thereunder, including those relating to the
date for determination of rate of duty, assessment, 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.
(5) 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 safeguard duty may be identified
and for the manner in which the causes of serious injury or causes of
threat of serious injury in relation to such articles may be determined
and for the assessment and collection of such safeguard duty.
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(6) For the purposes of this section,
(a) “developing country” means a country notified by the Central
Government in the Official Gazette for the purposes of this
section;
(b) “domestic industry” means the producers
(i) as a whole of the like article or a directly competitive
article in India; or
(ii) whose collective output of the like article or a directly
competitive article in India constitutes a major share
of the total production of the said article in India;
(c) “serious injury” means an injury causing significant overall
impairment in the position of a domestic industry;
(d) “threat of serious injury” means a clear and imminent danger
of serious injury.
(7) Every notification issued under this section shall, as soon as may be
after it is issued, be laid before each House of Parliament.
21.5 The Central Government has notified the Rules called the Customs Tariff
(Identification and Assessment of Safeguard Duty) Rules, 1997 (SG Rules), detailing
the process for conducting investigation for safeguard measures (text attached at
the end of the chapter). The application format has been prescribed vide Trade
Notice SG/TN/1/97 dated 6.9.1997.
SIGNIFICANCE
21.6 When imports of a particular product suddenly increase to a point that they
cause or threaten to cause serious injury to domestic producers of like or directly
competitive products, a safeguard duty is used as temporary relief. Safeguard
duties give domestic producers a period of grace to become more competitive vis-
à-vis imports. Safeguard measures are defined as “emergency” actions to address
serious injury to the importing Member’s domestic industry (Article 2) for a particular
product.
21.7 The Safeguard duties are applicable against all the countries with uniform
rate of duty unlike the anti-dumping duties.
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21.8 Section 8B requires that the surge in imports should cause or threaten to
cause serious injury to domestic industry. The criteria for import relief under section
8B are based on the provisions in Article XIX of the GATT. This provision is sometimes
referred to as the escape clause because it permits a country to “escape” temporarily
from its obligations under the GATT with respect to a particular product, when
increased imports of that product are causing or are threatening to cause serious
injury to domestic producers.
21.9 The guiding principles of the Agreement with respect to safeguard measures
are as follows:
(i) Such measures must be temporary;
(ii) They may be imposed only when surge in imports are found to cause or
threaten to cause serious injury to a competing domestic industry;
(iii) They (generally) be applied on non-discriminatory basis and applied to all
imports irrespective of its source;
(iv) They are progressively liberalized while in effect.
21.10 Thus, safeguard measures, unlike anti-dumping and countervailing
measures, do not require a finding of an “unfair” practice (generally) and must be
applied on MFN basis.
OPERATING PRACTICE
Pre-Initiation
21.11 An application for initiation of a safeguard investigation can be made by
any aggrieved producer/manufacturer, trade body, firm or institution in India,
which is representative of domestic industry, in the prescribed application format.
The application should be accompanied with complete information duly signed and
certified.
21.12 Imports data must be obtained from DGCI&S.
21.13 The details submitted by the Industry regarding production and the alleged
injury should be examined by the investigation team.
21.14 The investigation requires determination of cost of production to examine
injury parameters and for this a reasonable return, which is a percentage of cost of
production, on case to case basis.
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21.15 It may be kept in mind that even though there is no statutory requirement
of establishment of an unfair trade practice, the injury requirement under section
8B is considered to be more stringent.
21.16 The Safeguard Rules require that an application shall be supported with
evidence of (i) increased imports; (ii) serious injury or threat of serious injury to the
domestic industry; and (iii) a causal link between imports and the alleged serious
injury or threat of serious injury. Further, a statement on the efforts being taken, or
planned to be taken, or both, to make a positive adjustment to import competition
is also required to be furnished.
21.17 The application seeking initiation of safeguard investigations should be
inter-alia accompanied by the following information for latest available four years
and supporting documents in addition to the application in the prescribed format:
S.N. Documents / Information
1 Soft Copy of the application
2 D.G.C.I &S import data segregated year-wise and county wise
3 Total Indian Production and basis for the estimation
4 Year-wise production of applicant and Installed Capacity of PUC with supporting
documents like Pollution Control Board Certificate
5 Total sales (separately for domestic /captive/exports) of the applicant and other
Indian producer(s) along with total year wise demand in the country.
6 Workings of Cost of production along with Excel files
7 Submissions and Workings in support of claimed injury/threat of injury
8 Evidence in support of causal link
9 Statement of adjustment and period thereof
10 Evidence regarding unforeseen developments
11 Confirmation from the DI/consultants that the complete cost data for all the units
of the domestic industry manufacturing or selling PUC has been furnished in the
petition.
12 Audited financial statements and cost audit reports
13 Statement of critical circumstances if provisional Safeguard Measure is requested
21.18 The audited accounts must be furnished along with the application for
initiation. In case the audited accounts are not available for the latest period then
the Profit & Loss Account figures duly signed by the senior company officials (with
name, designation and contact number clearly mentioned) should be submitted for
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the initiation purposes. This is subject to subsequent submission of duly audited/
certified accounts within the stipulated period as per the initiation notification.
21.19 Even though Annexure-III as applicable to anti-dumping investigations is
not specifically applicable to the safeguard investigations, broad costing principles
as contained therein may be followed like allocation of expenses and disallowance
of expenses. However, optimisation of capacities is generally not resorted to in
safeguard cases. A decision may need to be taken on a case-to-case basis.
21.20 The application should contain satisfactory and sufficient evidence regarding
increased imports, serious injury or threat of serious injury to the domestic industry
and a causal link between increased imports and serious injury or threat of serious
injury to the domestic industry.
21.21 The prescribed timelines require that initiation decision on the application
should be finalised within 90 days from the date of receipt of application.
21.22 It is necessary that accuracy and adequacy of the evidence provided in the
petition be verified before taking decision. The DI verification should preferably be
done before initiation so that all issues are resolved before initiation.
21.23 A time period of eight months has been prescribed under the Rules for
completion of safeguards investigations.
Period of Investigation
21.24 The Act and the Rules as well as the WTO Agreement on Safeguards
and Article XIX of the GATT neither define nor provide guidance regarding the
period of investigation. However, it is evident that the investigation period should
be adequately long and sufficiently recent in time. This will allow reasonable
conclusions to be drawn on the basis of various relevant factors such as domestic
market conditions, performance of DI etc., as to whether or not the increased
imports are indeed causing serious injury or threatening to cause serious injury
to the DI and therefore justify the need for imposition of Safeguard Duty. It may
be desirable that information should be sought for the most recent period of four
years and the details of the source of information must be sought along with copies
of the source document, wherever practicable as per the methodology explained in
earlier chapters.
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PUC
21.25 The principles followed for determination of PUC in AD cases may also be
applied for finalization of PUC in safeguard investigations. In fact, the scope of PUC
is wider that PUC in AD laws as the SG law covers “directly competitive articles” as
well. The issue was also discussed in detail in an investigation dealing with import
of Solar Cells2.
Domestic Industry
21.26 Domestic Industry has been defined in clause (b) of sub-section (6) of Section
8B of the Act as follows:
(b) “Domestic industry” means the producers –
as a whole of the like article or a directly competitive article in India; or
whose collective output of the like article or a directly competitive article in
India constitutes a major share of the total production of the said article in
India.
21.27 As a general practice,the SEZ units are not considered to be eligible as DI.
A detailed explanation has been given in the final finding in the safeguards case of
Solar Cells and Modules as per the details mentioned in foot note 2 on pre-page.
Confidentiality
21.28 Application and responses are to be submitted in confidential and non-
confidential versions, as detailed under Rule 7 of the said Rules read with Trade
Notice dated 21.12.2009 issued by Director General (Safeguards) under File No.
D-22011/75/2009. Further, the Trade Notice No.10/2018 dated 7th September
2018 may be referred to for detailed guidelines on this issue.
Initiation
21.29 After examination of the application and other evidences, available on
records, if it is found that sufficient evidence exists for initiation of investigation,
the investigation is initiated by the Authority to further examine the existence of
injury to the domestic industry caused by the imports of an article.
2 In case of Final Finding in safeguard investigation concerning imports of Solar Cell whether or not assembled
in module or panels into India,F. No. 22/1/2018 – DGTR dated July 16, 2018, some of the interested parties had
submitted that DI did not possess Thin-film technology and “PERC” (Passivated Emitter Rear Cell) based technology,
& Bi-facial N-type solar cells; High efficiency solar cells using 5 and 6 bus bar production terminology; and Solar
modules of mono may vary in terms of efficiency, price, physical characteristics, like size and weight etc. These
variations though lead to trade off in price and efficiency,the final usage of the PUC is only to produce power.
Therefore, PUC included all like competitive articles and no such exclusionwas allowed in PUC.
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21.30 The notification of initiation of investigation is to be notified in the Gazette
and uploaded on the DGTR website. The Notification and application of the
domestic industry is to be forwarded to the concerned Administrative Ministry,
known exporters of the subject article, the Government of the exporting countries,
through their Embassy in India, and other interested parties.
21.31 Initiation Notification calls upon exporters, foreign producers and the
Governments of interested countries to submit information in writing within 40
days from the date of initiation notification as per Trade Notice No. 11/2018 dated
10.09.2018 or within such extended period as may be allowed by the Director
General.
21.32 Any other party who wishes to be considered as an interested party may
submit their request within days from the date of initiation notification as per the
Trade Notice No. 11/2018 dated 10.09.2018 or as specified by the Director General
in the Initiation Notification.
Maintenance of Inspection Folder
21.33 Maintenance of a proper NCV folder is an important part of the investigations
from the point of view of principles of natural justice, transparency and due process
of law. The folder should contain the application of the DI which forms the basis of
the decision by the DG. Copies of the non confidential version of all the responses
received from interested parties should be kept in the folder. Copy of NCV of
submissions and other communications should also be kept in the folder. A list of all
interested parties along with details such as the name of the Counsel, the address
for contact, contact person, email id etc. should be maintained and kept in a folder.
An inspection index should be created in the folder.
21.34 The inspection of the folder should be allowed only to the authorized
representative of the interested party. Whenever the representative inspects the
folder or takes any document, the details thereof should be mentioned along with
the signatures and contact details of that representative. The non-confidential
version of all the responses and submissions, as well as the communications made
during the course of the investigation, should be kept in the folder for inspection by
the interested parties and/or their authorized representatives.
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Post-Initiation: Submission of Documents
21.35 The applicant DI is required to submit the additional information/ documents,
if any during the course of investigations.
21.36 The team should verify the authenticity of the data submitted by all the
interested parties. The process of verification is as detailed in Chapter 8 of this
Manual. The need to decide on the requirement of physical verification of the plant
and data is to be decided on a case to case basis with the approval of DG.
Computation of Injury Margin
21.37 Article 5 of the Agreement and Rule 12 of Safeguard Rules require that
Safeguard duty should not exceed the amount which has been found adequate
to prevent or remedy serious injury. However, no guidance is provided under the
Safeguard Agreement, Act or Rules regarding the quantification of serious injury.
21.38 In view thereof, the broad principles followed in anti-dumping cases should
preferably be followed in safeguard investigations also.
Provisional Finding, Oral Hearings and Final Findings
21.39 In critical circumstances warranting grant of immediate relief to the domestic
industry, the investigation may be conducted expeditiously and a preliminary finding
is recorded regarding serious injury or threat of serious injury to the domestic
industry. In such cases, provisional Safeguard duty may be imposed for a period
not exceeding 200 days. In Safeguard investigations, provisional finding can be
issued at any time, after initiation.The proviso to sub-section (2) of section 8B also
provides that where the Central Government in its final determination concludes
that increased imports have not caused or threatened to cause serious injury to
a domestic industry, it shall refund the amount of safeguard duty provisionally
collected.
21.40 Before issue of final finding, an oral hearing is required to be conducted.
The notice for Oral Hearing should be given well in advance to all the interested
parties. The oral submissions made by the interested parties, including the Domestic
Industry during the hearing are required to file written submission of the views
presented orally in terms of sub rule (6) of rule 6 of the Custom Tariff (Identification
and Assessment of Safeguard Duty) Rules, 1997.
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21.41 The evidence presented by one interested party shall be made available to
the other interested parties in order to enable them to file rejoinders.
21.42 The findings are required to be issued within 8 months from the date of
notice of initiation of investigation. The findings deal with determination whether
the increased imports of the article under investigation have caused serious injury or
threat of serious injury to the domestic industry and that a causal link exists between
the increased imports and the said injury. Accordingly, the recommendations are
given regarding amount of duty which, if levied, would be adequate to prevent or
remedy serious injury or threat of serious injury to the domestic industry.
21.43 The preliminary/final findings and recommendations are considered by the
Standing Board on Safeguards under the chairmanship of Commerce Secretary
under Department of Commerce.
21.44 The views of the Standing Board on Safeguards are then placed before the
Finance Minister for approval of levy of Safeguard duty. However, no time period is
prescribed for the Department of Revenue to take decision on the recommendations
of the Board on Safeguards, unlike in case of anti-dumping investigations, where a
period of 90 days has been allowed to Department of Revenue.
21.45 After approval by the Finance Minister, Department of Revenue may issue
a notification imposing a Safeguard duty under Sec 8B of the Act. These duties are
applied on all countries without discrimination. However, developing countries as
detailed in para 21.48 may need to be considered for exemption.
21.46 In the event of conclusion of injury, the Authority generally recommends Ad
valorem duty i.e. percentage of CIF price of imports/Assessable Value.
21.47 The second proviso to sub-section (1) of section 8B of the Act, provides that
the Central Government may, by notification in the Official Gazette, exempt such
quantity of any article as it may specify in the notification, when imported from any
country or territory into India, from payment of the whole or part of the safeguard
duty leviable thereon. In other words, safeguard duty shall be levied only on the
additional quantities over and above such exempt quantities.
21.48 Article 9 regarding Developing Country Members inter-alia provides that
Safeguard measures shall not be applied against a product originating in a developing
country Member as long as its share of imports of the product concerned in the
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importing Member does not exceed 3 per cent, provided that developing country
Members with less than 3 per cent import share collectively account for not more
than 9 per cent of total imports of the product concerned. Even though World
Bank, OECD etc. have different lists, the detailed trade notice indicating names of
developing countries as per Indian Customs is placed at Annexure-I.
21.49 As per provisions of sub-para (4) of section 8B, the duty imposed under
this section shall, unless revoked earlier, cease to have effect on the expiry of four
years from the date of such imposition. However, if the Central Government is of
the opinion that the domestic industry has taken measures to adjust to such injury
or threat thereof and it is necessary that the safeguard duty should continue to be
imposed, it may extend the period of such imposition subject to a maximum period
of ten years from the date on which such duty was first imposed.
Unforeseen Developments and Causal Link
21.50 The WTO Agreement on Safeguards read with Article XIX of GATT obligates
the national authorities to examine “unforeseen developments” that led to the
increase in imports and the consequent serious injury to the DI3. However, domestic
laws/rules do not impose any such obligation on the Authority to analyse the
unforeseen developments as a result of which the increased imports have occurred.
The legal provisions neither contain any parameters that must be verified to identify
the unforeseen developments nor do they specify any methodology that must be
followed in the analysis of such unforeseen developments. However, in view of
WTO requirements , the Authority has consistently been examining the issue of
“unforeseen developments” in its investigations.
21.51 During the course of investigation,the temporal nature of the increase in
imports of the PUC is established leading to serious injury to the DI or threat of such
serious injury, which must be unforeseen or unexpected and factual.
Causal Link
21.52 A determination of serious injury cannot be made unless there is objective
evidence of the existence of a causal link between increased imports of the product
concerned and serious injury. Further, when factors other than increased imports
are causing injury to the domestic industry at the same time, such injury must not
be attributed to increased imports.
3 Refer to Para XXI of Chapter 24 for WTO Jurisprudence.
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21.53 The WTO Panel in the case of Korea-Dairy Productsset forth the basic
approach for determining “causation”, which inter-alia includes that in its causation
assessment, the national authority is obliged to evaluate all relevant factors of an
objective and quantifiable nature having a bearing on the situation of that industry.
In addition, if the national authority has identified factors other than increased
imports which have caused injury to the Domestic Industry, it shall ensure that any
injury caused by such factors is not considered to have been caused by the increased
imports. In addition, having analysed the situation of the Domestic Industry, the
authority has the obligation not to attribute to the increased imports any injury
caused by other factors.
21.54 The Appellate Body in the US-Safeguard Measures on Wheat Gluten held
that the existence of causal link does not mean that increased imports are the sole
cause of injury. According to the Appellate Body the language of Article 4.2(b)
suggests that the causal link between the increased imports and serious injury may
exist, even though other factors are also contributing “at the same time” to the
situation of the domestic industry.
Adjustment Plan
21.55 “Adjustment Plan” refers to an action plan which a domestic industry is
required to submit, that describes a set of quantified goals, specific plans, and
timetables that a concerned industry commits to undertake in order to facilitate
positive adjustment of the industry to import competition. One of the core features
of the WTO Agreement on Safeguards is emphasis on adjustment by the domestic
industry.
Reviews of Safeguard Duty
21.56 Rule 18 of the Safeguard Rules, 1997 provides for the review of Safeguard
Duties. Rule 18 reads as under:
(1) The Director General shall, from time to time, review the need for continued
imposition of the safeguard duty and shall, if he is satisfied on the basis of
information received to him that,
(i) safeguard duty is necessary to prevent or remedy serious injury
and there is evidence that the industry is adjusting positively, it may
recommend to the Central Government for the continued imposition
of duty;
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(ii) there is no justification for the continued imposition of such duty;
recommend to the central Government for its withdrawal:
Provided that where the period of imposition of safeguard duty
exceeds three years the Director General shall review the situation
not later than the mid-term of such imposition, and, if appropriate,
recommend for withdrawal of such safeguard duty or for the increase
of the liberalization of duty.
(2) Any review initiated under sub-rule (1) shall be concluded within a period
not exceeding 8 months from the date of initiation of such review or within
such extended period as the Central Government may allow.
(3) The provisions of rules 5, 6, 7 and 11 shall mutates mutandis apply in the
case of review.
21.57 A review is conducted to examine whether safeguard duty is necessary to
prevent or remedy serious injury and there is evidence that the industry is adjusting
positively, however, the recommendation for the withdrawal of duty is made to the
Central Government if there is no justification for the continued imposition of such
duty.
21.58 A mid-term review is mandatory where the period of imposition of safeguard
duty exceeds three years. In appropriate cases, the DG recommends either for
withdrawal or for the increase in the liberalization of the duties levied. However,
the Authority has so far not levied duty in any case for the period exceeding three
years. The methodology for conducting review investigation, is broadly similar to
that of original safeguard investigation.
21.59 The domestic industry is required to substantiate the application with
sufficient evidence showing the need for continuation of Safeguard duties. The
Applicant is required to make a case that cessation of Safeguard duty would result
in recurrence of injury to the domestic industry. It may further be added that a
safeguard measure,unless revoked earlier, cease to have effect on the expiry of
four years from the date of its imposition although if the Central Government is of
the opinion that the domestic industry has taken measures to adjust to such injury
or threat thereof and it is necessary that the safeguard duty should continue to be
imposed, it may extend the period of such imposition. In no case the safeguard duty
shall continue to be imposed beyond a period of ten years from the date on which
such duty was first imposed.
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Appendix-61
CUSTOMS TARIFF (IDENTIFICATION AND ASSESSMENT OF SAFEGUARD
DUTIES) RULES, 1997
______________________________________________________________________
In exercise of the powers conferred by sub-section (5) of section 8B of the Customs
Tariff Act, 1975 (51 of 1975) the Central Government hereby makes the following
rules, namely: -
1. Short Title and Commencement
(i) These rules may be called the Customs Tariff (Identification and
Assessment of Safeguard Duty) Rules, 1997.
(ii) They shall come into force on the date of their publication in the
Official gazette.
2. Definitions
In these rules, unless the context otherwise requires:
(a) “Act” means the Customs Tariff Act, 1975 (51 of 1975);
(b) “Critical circumstances” means circumstances in which there is clear
evidence that imports have taken place in such increased quantities
and under such circumstances as to cause or threaten to cause
serious injury to the domestic industry and delay in imposition of
provisional safeguard duty would cause irreparable damage to the
domestic industry;
(c) “Increased quantity” includes increase in imports whether in absolute
terms or relative to domestic production;
(d) “Interested Party” includes
(i) any exporter or foreign producer or the importer of an article
subjected to investigation for purposes of imposition of
safeguard duty or a trade or business association, majority of
the members of which are producers, exporter or importers
of such an article;
(ii) the government of the exporting country; and
(iii) a producer of the like article or directly competitive article
in India or a trade or business association, a majority of
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members of which produce or trade the like article or directly
competitive article in India;
(e) “like article” means an article which is identical or alike in all respects
to the article under investigation;
(f) “Provisional Duty” means a safeguard duty imposed under sub-
section (2) of section 8B of the Act;
(g) “Specified Country” means a country or territory which is a member
of the World Trade Organisation and includes the country or territory
with which the Government of India has an agreement for giving it
the most favoured nation treatment;
(h) all words and expressions used and not defined in these rules shall
have the meanings respectively assigned to them in the Act.
3. Appointment of Director General (Safeguard)
(1) The Central Government may, by notification in the official Gazette,
appoint an officer not below the rank of a Joint Secretary to the
Government of India or such other officer as it may think fit as the
Director General (Safeguard) here in after referred to as the Director
General for the purposes of these rules.
(2) The Central Government may provide to the Director General the
services of such other persons and such other facilities at it deems fit.
4. Duties of the Director General
Subject to the provisions of these rules, it shall be the duty of the Director
General
(1) to investigate the existence of “serious injury" or "threat of serious
injury” to domestic industry as a consequence of increased import of
an article into India;
(2) to identify the article liable for safeguard duty;
(3) to submit his findings, provisional or otherwise to the Central
Government as to the “serious injury" or "threat of serious injury”
to domestic industry consequent upon increased import of an article
from the specified country.
(4) to recommend,
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(i) the amount of duty which if levied would be adequate to
remove the injury or threat of injury to the domestic industry;
(ii) the duration of levy of safeguard duty and where the period so
recommended is more than a year, to recommend progressive
liberalization adequate to facilitate positive adjustment.
(5) to review the need for continuance of safeguard duty.
5. Initiation of Investigation
(1) Except as provided in sub-rule (4), The Director General shall, on
receipt of a written application by or on behalf of the domestic
producer of like article or directly competitive article, initiate an
investigation to determine the existence of “serious injury” or
“threat of serious injury” to the domestic industry, caused by the
import of an article in such increased quantities, absolute or relative
to domestic production.
(2) An application under sub-rule (I) shall be in the form as may be
specified by the Director General in this behalf and such application
shall be supported by,
(a) evidence of, -
(i) increased imports;
(ii) serious injury or threat of serious injury to the
domestic industry;
(iii) a causal link between imports and the alleged serious
injury or threat of serious injury; and
(b) a statement on the efforts being taken, or planned to be
taken, or both, to make a positive adjustment to import
competition.
(3) The Director General shall not initiate an investigation pursuant
to an application made under sub-rule (1) unless he examines the
accuracy and adequacy of the evidence provided in the application
and satisfies himself that there is sufficient evidence regarding-
(a) increased imports;
(b) serious injury or threat of serious injury; and
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(c) a causal link between increased imports and alleged injury or
threat of serious Injury.
(4) Notwithstanding anything contained in sub-rule (I), the Director
General may initiate an investigation suo moto if he is satisfied
with the information received from any Commissioner of Customs
appointed under the Customs Act, 1962 (52 of 1962) or any other
source that sufficient evidence exists as referred to in clause (a),
clause (b) and clause (c) of sub-rule (3).
6. Principles Governing Investigations
(1) The Director General shall, after he has decided to initiate investigation
to determine the serious injury or threat of serious injury to domestic
industry, consequent upon the increased import of an article into
India, issue a public notice notifying his decision there to. The public
notice shall, inter alia, contain adequate information on the following
namely: -
(i) the name of the exporting countries and the article involved;
(ii) the date of initiation of the investigation;
(iii) a summary statement of the facts on which the allegation of
serious injury or threat of serious injury is based;
(iv) reasons for initiation of investigation.
(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.
(2) A copy of the public notice shall be forwarded by the Director
General to the Central Government in the Ministry of Commerce
and other Ministries concerned, known exporters of the article the
increased import of which has been alleged to causeor threaten to
cause serious injury to the domestic industry, the governments of the
exporting countries concerned and other interested parties.
(3) The Director General shall also provide a copy of the application
referred to in sub-rule (1) of rule 5 to:
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(i) the known exporters, or the concerned trade association,
(ii) the governments of the exporting countries; and
(iii) the Central Government in the Ministry of Commerce;
Provided that the Director General shall also make available a copy
of the application, upon request in writing, to any other interested
party.
(4) The Director General may issue a notice-calling for any information
in such form as may be specified by him from the exporters, foreign
producers and governments of interested countries and such
information shall be furnished by such persons and governments in
writing within thirty days from the date of receipt of the notice or
within such extended period as the Director General may allow on
sufficient cause being shown.
Explanation: For the purpose of this rule the public notice and
other documents shall be deemed to have been received one
week after the date on which these documents were sent by the
Director General by registered post or transmitted to the appropriate
diplomatic representative of the exporting country.
(5) The Director General shall also provide opportunity to the industrial
user of the article under investigation, and to representative consumer
organisations in cases where the article is commonly sold at retail
level to furnish information which is relevant to the investigation.
(6) The Director General may allow an interested party or its representative
to present the information relevant to investigation orally but such
oral information shall be taken into consideration by the Director
General only when it is subsequently submitted in writing.
(7) The Director General shall make available the evidence presented
to him by one interested party to the other interested parties,
participating in the investigation.
(8) In 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 Director General may
record his findings on the basis of the facts available to him and make
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such recommendations to the Central Government as he deems fit
under such circumstances.
7. Confidential Information
(1) Notwithstanding anything contained in sub-rules (1), (3) and (7)
of rule 6, sub-rule (2) of rule 9 and sub-rule (5) of rule 11, any
information which is by nature confidential or which is provided on a
confidential basis shall, upon cause being shown, be treated as such
by the Director General and shall not be disclosed without specific
authorisation of the party providing such information.
(2) The Director General may require the parties providing information
on confidential basis to furnish non confidential summary thereof
and if, in the opinion of the party providing such information, such
information cannot be summarised, such party may submit to the
Director General a statement of reasons why summarisation is not
possible.
(3) Notwithstanding anything contained in sub-rule (2), if the Director
General is satisfied that the request for confidentiality is not
warranted or the supplier of the information is unwilling either
to make the information public or to authorise its disclosure in a
generalized or summary form, he may disregard such information
unless it is demonstrated to his satisfaction from appropriate sources
that such information is correct.
8. Determination of Serious Injury or Threat of Serious Injury
The Director General shall determine serious injury or threat of serious injury
to the domestic industry taking into account, inter alia, the principles laid
down in Annex to these rules.
9. Preliminary Findings
(1) The Director General shall proceed expeditiously with the conduct
of the investigation and in critical circumstances, he may record a
preliminary finding regarding serious injury or threat of serious injury.
(2) The Director General shall issue a public notice regarding his
preliminary findings.
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(3) The Director General shall send a copy of the public notice to the
Central Government in the Ministry of Commerce and in the Ministry
of Finance.
10. Levy of Provisional Duty
The Central Government may in accordance with the provisions of sub-
section (2) of section 8B of the Act, impose a provisional duty on the basis
of the preliminary findings of the Director General:
Provided that such duty shall remain in force only for a period not exceeding
two hundred days from the date on which it was imposed.
11. Final Findings
(1) The Director General shall, within 8 months from the date of initiation
of the investigation or within such extended period as the Central
Government may allow, determine whether,
(a) the increased imports of the article under investigation has
caused or threatened to cause serious injury to the domestic
industry, and
(b) a causal link exists between the increased imports and serious
injury or threat of serious injury.
(2) The Director General shall also give its recommendation regarding
amount of duty which, if levied, would be adequate to prevent or
remedy ‘serious injury’ and to facilitate positive adjustment.
(3) The Director General shall also make his recommendations regarding
the duration of levy of duty:
Provided that where the period recommended is more than one year,
the Director General shall also recommend progressive liberalization
adequate to facilitate positive adjustment.
(4) The final findings if affirmative, shall contain all information on the
matter of facts and law and reasons which have led to the conclusion.
(5) The Director General shall issue a public notice recording his final
findings.
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(6) The Director General shall send a copy of the public notice regarding
his final findings to the Central Government in the Ministry of
Commerce and in the Ministry of Finance.
12. Levy of Duty
(1) The Central Government may, impose by a notification in the Official
Gazette, upon importation into India of the product covered under
the final finding, a safeguard duty not exceeding the amount which
has been found adequate to prevent or remedy serious injury and to
facilitate positive adjustment.
(2) If the final finding of the Director General is negative, that is contrary
to the prima facie evidence on whose basis the investigation was
initiated, the Central Government shall within thirty days of the
publication of final findings by the Director General under rule 11,
withdraw the provisional duty imposed, if any.
13. Imposition of Duty on Non-discriminatory Basis
Any safeguard duty imposed under rule 10 or rule 12 shall be on a non-
discriminatory basis and applicable to all imports of such article, irrespective
of its source.
14. Date of Commencement of Duty
(1) The Safeguard duty levied under rule 10 or rule 12 shall take effect
from the date of publication of the notification, in the Official Gazette
imposing such duty.
(2) Notwithstanding anything contained in sub-rule (1), where a
provisional duty has been levied and where the Director General has
recorded a finding that increased imports have caused or threaten to
cause serious injury to domestic industry, it shall be specified in the
notification under sub-rule (1) that such safeguard duty shall take
effect from the date of levy of provisional duty.
15. Refund of Duty
If the safeguard duty imposed after the conclusions of the investigations
is lower than the provisional duty already imposed and collected, the
differential shall be refunded to the importer.
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16. Duration
(1) The duty levied under rule 12 shall be only for such period of time as may
be necessary to prevent or remedy serious injury and to facilitate positive
adjustment.
(2) Notwithstanding anything contained in sub-rule (1) of this rule duty
levied under rule 12 shall, unless revoked earlier, cease to have effect
on the expiry of four years from the date of its imposition:
Provided that if the Central Government is of the opinion that the
domestic industry has taken measures to adjust to such injury or
threat thereof and it is necessary that the safeguard duty should
continue to be imposed, it may extend the period of such imposition;
Provided further that in no case the safeguard duty shall continue
to be imposed beyond a period of ten years from the date on which
such duty was first imposed.
17. Liberalization of Duty
If the duration of the duty levied under rule 12 exceeds one year, the duty
shall be progressively liberalized at regular intervals during the period of its
imposition.
18. Review
(1) The Director General shall, from time to time, review the need for
continued imposition of the safeguard duty and shall, if he is satisfied
on the basis of information received to him that,
(i) safeguard duty is necessary to prevent or remedy serious
injury and there is evidence that the industry is adjusting
positively, it may recommend to the Central Government for
the continued imposition of duty;
(ii) there is no justification for the continued imposition of
such duty; recommend to the central Government for its
withdrawal:
Provided that where the period of imposition of safeguard
duty exceeds three years the Director General shall review the
situation not later than the mid-term of such imposition, and,
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if appropriate, recommend for withdrawal of such safeguard
duty or for the increase of the liberalization of duty.
(2) Any review initiated under sub-rule (1) shall be concluded within a
period not exceeding 8 months from the date of initiation of such
review or within such extended period as the Central Government
may allow.
(3) The provisions of rules 5, 6, 7 and 11 shall mutates mutandis apply
in the case of review.
ANNEXURE
(See rule 8)
1. In the investigation to determine whether increased imports have caused
or are threatening to cause serious injury to a demonstrate industry, the Director
General shall evaluate all relevant factors of an objective and quantifiable nature
having a bearing on the situation of that industry, in particular, the rate and
amount of the increase in imports of the article concerned in absolute and relative
terms, the share of the domestic market taken by increased imports, changes in the
level of sales, production, productivity, capacity utilization, profits and losses, and
employment.
2. The determination referred to in paragraph (1) shall not be made unless the
investigation demonstrates, on the basis of objective evidence, the existence of the
causal link between increased imports of the article concerned and serious injury or
threat thereof. When factors other than increased imports are causing injury to the
domestic industry at the same time, such injury shall not be attributed to increased
imports. In such cases, the Director General may refer the complaint to the authority
for anti-dumping or countervailing duty investigations, as appropriate.
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Appendix-62
TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II,
SECTION 3, SUB-SECTION (i)]
Government of India
Ministry of Finance
(Department of Revenue)
(Central Board of Excise and Customs)
Notification
No. 19/2016 - Customs (N.T.)
New Delhi, 5th February, 2016
G.S.R.………….(E).- In pursuance of clause (a) of sub-section (6) of section 8B of
the Customs Tariff Act, 1975 (51 of 1975) and in supersession of notification of
the Government of India in the Ministry of Finance, Department of Revenue, No.
103/98 – Cus, dated the 14th December, 1998, published in the Gazette of India,
Extraordinary vide number G.S.R. 737(E), dated the 14th December, 1998, except as
respects things done or omitted to be done before such supersession, the Central
Government, hereby notifies the following countries as developing countries for the
purposes of the said section, namely :-
1. Afghanistan
2. Albania
3. Algeria
4. Angola
5. Armenia
6. Azerbaijan
7. Bangladesh
8. Belarus
9. Belize
10. Benin
11. Bhutan
12. Bolivia (Plurinational State of)
13. Bosnia and Herzegovina
14. Botswana
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15. Brazil
16. Bulgaria
17. Burkina Faso
18. Burundi
19. Cabo Verde
20. Cambodia
21. Cameroon
22. Central African Republic
23. Chad
24. China
25. Colombia
26. Comoros
27. Congo
28. Costa Rica
29. Côte D’Ivoire
30. Cuba
31. Democratic People’s Republic of Korea
32. Democratic Republic of the Congo
33. Djibouti
34. Dominica
35. Dominican Republic
36. Ecuador
37. Egypt
38. El Salvador
39. Eritrea
40. Ethiopia
41. Fiji
42. Gabon
43. Gambia
44. Georgia
45. Ghana
46. Grenada
47. Guatemala
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48. Guinea
49. Guinea Bissau
50. Guyana
51. Haiti
52. Honduras
53. Indonesia
54. Iran (Islamic Republic of)
55. Iraq
56. Jamaica
57. Jordan
58. Kazakhstan
59. Kenya
60. Kiribati
61. Kyrgyzstan
62. Lao People’s Democratic Republic
63. Lebanon
64. Lesotho
65. Liberia
66. Libya
67. Madagascar
68. Malawi
69. Malaysia
70. Maldives
71. Mali
72. Marshall Islands
73. Mauritania
74. Mauritius
75. Mexico
76. Micronesia (Federal State of)
77. Mongolia
78. Montenegro
79. Morocco
80. Mozambique
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81. Myanmar
82. Namibia
83. Nepal
84. Nicaragua
85. Niger
86. Nigeria
87. Pakistan
88. Palau
89. Palestine
90. Panama
91. Papua New Guinea
92. Paraguay
93. Peru
94. Philippines
95. Republic of Moldova
96. Romania
97. Rwanda
98. Saint Lucia
99. Saint Vincent and the Grenadines
100. Samoa
101. Sao Tome and Principe
102. Senegal
103. Serbia
104. Sierra Leone
105. Solomon Islands
106. Somalia
107. South Africa
108. South Sudan
109. Sri Lanka
110. Sudan
111. Suriname
112. Swaziland
113. Syrian Arab Republic
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114. Tajikistan
115. Thailand
116. The former Yugoslav Republic of Macedonia
117. Timor-Leste
118. Togo
119. Tonga
120. Tunisia
121. Turkey
122. Turkmenistan
123. Tuvalu
124. Uganda
125. Ukraine
126. United Republic of Tanzania
127. Uzbekistan
128. Vanuatu
129. Viet Nam
130. Yemen
131. Zambia
132. Zimbabwe
[F. No.21000/22/2015-OSD(ICD)]
(Satyajit Mohanty)
Director to the Government of India
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Appendix-63
Trade Notice on Safeguard Applications Issued by Director General
(SG/TN/1/97 DT:06/09/1997)
Rule 5(2) of the Safeguard Duty Rules requires an application for safeguard
investigation to be in the form as specified by the Director General. The Director
General has issued a Trade Notice in this behalf prescribing the information to be
provided in an application for safeguard investigation and the supporting documents
required to be submitted therewith. The Trade Notice having been issued under the
authority of the Rules, has the force of law. The applicants need to abide by the
provisions contained in the Trade Notice.
Trade Notice on Safeguard Applications
1. Attention of the Trade and Industry is invited to Section 8B of the Customs
Tariff Act of 1975 and the Customs Tariff (Identification and Assessment of
Safeguard Duty) Rules, 1997 framed thereunder (hereinafter referred to as the
Safeguard Rules). In exercise of the powers conferred by sub-rule (1) of Rule 3
of the Safeguard Rules, the Central Govt. has appointed the undersigned as the
Director General (Safeguards), for the purpose of the said rules.
2. In accordance with the provisions of the Safeguard Rules, safeguard duty
can be imposed on any product imported into the country, in such increased
quantities, absolute or relative to domestic production, and under such conditions
as to cause or threaten serious injury to the domestic producers of like or directly
competitive products, irrespective of the source of origin of the imported products.
3. The safeguard duties can be imposed for a short duration with the immediate
intention of preventing or remedying serious injury to the domestic industry.
Such a measure would, however, also require the industry to adjust itself to the
new situation of the competition offered by the increased imports. A safeguard
measure can be imposed only after the Director General arrives at a finding, after
due investigation, that the increased imports of particular product(s) are causing or
are threatening to cause serious injury to the domestic producers of like or directly
competitive articles.
4. An application for initiation of a safeguard investigation can be made by any
aggrieved producer/manufacturer, trade representative body, firm or institution,
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which is representative of domestic industry. This application should be in the
format and should include information as detailed in Annex to this Trade Notice
along with all supportive evidence/data/annexes.
5. The following further requirements need to be fulfilled by all parties
concerned.
i. Information should be provided for the most recent period of three years (or
longer) for which data is available.
ii. The details of the source of information must be provided along with copies
of source document wherever practicable.
iii. Information provided on a confidential basis, on cause being shown, be
treated as Confidential Information. Confidential Information should be
provided separately and not mixed up with the non-confidential information.
Each page of the confidential information should be clearly and distinctly
marked “Confidential” in bold letters both at the top right hand and bottom
right hand side of the page. Non-confidential summary of confidential
information may be provided by the supplier of the information. If the
confidential information cannot be provided in a summarized or generalized
form or non-confidential basis, such information may be disregarded unless
it is demonstrated by the supplier of the information to the satisfaction of
the investigating authorities from appropriate sources that the information
is correct.
iv. Applicant(s) shall submit initial two copies of the application together with
all supportive enclosures, data and annexes. Once the application is found
to be properly documented and complete in all respects, applicants will be
required to provide sufficient number (number of interested parties + seven)
of copies of the application alongwith all enclosures/annexes etc.
v. If any application is found to be incomplete or deficient in any manner, it
may be returned (after retaining one copy) to the applicant(s) for necessary
action.
vi. Documents which are not clearly legible and/or which are not authenticated
by the submitter thereof, may be disregarded.
vii. Subject to the provisions of rules in this regard, on cause being shown, a
party to the investigation may be considered as an interested party.
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viii. Request received within 15 days of publication of a notice of initiation of
investigation for inclusion of any party to the investigation as an interested
party, may be considered by the Director General (Safeguards) and a list
of interested parties shall be established by the Director General within 21
days of the publication of notice of initiation, a copy of which shall be sent
to all interested parties.
ix. A public file containing all relevant material (non-confidential) shall be
available for inspection by all interested parties in the office of the Director
General (Safeguards).
x. Information presented orally by any interested party in a public hearing shall
be submitted in writing by such party to the Director General within 5 days
of the hearing or within such period as allowed by the Director General.
Interested Parties may collect copies of such submissions on a day indicated
by the Director General and submit rebuttals, if any, within such period as
allowed by the Director General.
xi. Any evidence or any other submissions made by any party shall be provided
in sufficient number of copies (number of interested parties + seven) to the
Director General.
xii. All notices shall be displayed on the notice board of the Directorate General
for a period of 10 days from the date of the notice.
xiii. An English translation of any information provided in a language other than
Hindi or English would need to be supplied simultaneously by the submitter
of the information, failing which the information may be disregarded.
xiv. All information/material should also preferably be provided on 3-1/2" (three
and a half inch) floppy in Word for Windows compatible format. All the
Trade Associations and Chambers of Commerce and Industry are requested
to bring the contents of this Trade Notice to the notice of their Members/
Constituents.
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Annexes to Trade Notice
Information to be provided in an Application for Safeguard Investigation
Section 1: General Information
1. Date of Application
2. Applicant(s): Provide name(s) and address(es) of the applicant(s).
3. Domestic Producers of the like or directly competitive products on whose
behalf the application is filed (Give details of all domestic producers who
support the application).
4. Information on production accounted for by the domestic producers of the
like or directly competitive products (in respect of those domestic producers
who support the application).
5. Information on the total domestic production of the product concerned of
the like or directly competitive products (in respect of all producers whether
they support the application or not).
Section 2: Product in respect of which increase in imports alleged
1. Name of the product.
2. Description: Provide full description of the product including chemical
formula, grade constituent materials/Components, process of manufacture
in brief, uses and inter-changeability of various grades, etc.
3. Tariff classification: Provide the classification of the product under the HS
classification as well as Indian Customs Tariff Classification at 6/8/10 digit
level.
4. Import Duty: Provide information relating to rates of import duty levied
during the past three years. If the product enjoys any concessional or
preferential treatment, provide details.
5. Country(ies) of Origin: Provide name(s) of country(ies) where the product
has originated (where the country of origin is different than the country of
export, the name of the country of origin should also be provided).
6. Provide a list of all known foreign producers, exporters & importers of the
imported product, country-wise, together with names and addresses of
concerned trade associations and user associations etc.
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7. Information on major industrial users, organization of industrial users and
representative consumer organisations (in case the product is commonly
sold at retail level).
8. Export Price: Details of export price of the imported Product exporter/
country-wise and the basis thereof (provide the f.o.b. / c.i.f. price at which
the goods enter into India).
Section 3: Increased Imports
1. Provide full and detailed information regarding the imports of the said
product in terms of quantity and value year wise for the last three years (or
longer).
2. Provide break up of Point 1 above country wise in absolute terms as well as
percentage of the total imports of the said product.
3. Provide full and detailed information on the share of the imported products
and the share of the domestic production of the like product and the directly
competitive products in the total domestic consumption for the last three
years (or longer) both in terms of quantity and value.
4. Provide information on factors that may be attributing to increased imports.
Section 4: Domestic Production
1. Details of the like product and directly competitive products produced by
the domestic producers. Information similar to Section 2 above, i.e.
i. Name
ii. Description
iii. Tariff classification both under the Central Excise Tariff as well as
under the Customs Tariff.
iv. Details of domestic producers
2. Names and addresses of all known domestic producers and concerned trade
associations and users associations etc.
3. Details of production accounted for by each of the producers listed in Point
2 above.
4. Details of total domestic production.
5. Installed capacity, capacity utilization and fall in capacity utilization etc.
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Section 5: Injury or Threat of Injury
1. Impact of increased imports on Domestic Industry: Detailed information on
how the increased imports are causing serious injury or threat of serious
injury to the domestic industry. This should, inter alia, include information
on
a. Sale volumes, total domestic consumption and how the market share
of domestic production has been affected.
b. Price undercutting/price depression/prevention of rise in prices.
Information on costs of production and how the increased imports
have affected the prices of domestic production needs to be provided.
c. Any significant idling of production facilities in the industry including
data indicating plant closure or fall in normal production capacity
utilization.
d. Loss of employment.
e. Financial situation: Full information on the financial situation of the
domestic industry including information on decline in sales, growing
inventory, downward trend in production, profits, productivity or
increasing unemployment needs to be provided.
2. Other Factors of Injury: Provide details of any other factors that may be
attributing the injury caused to the domestic industry and an explanation
that injury caused by these other factors is not attributed to injury caused
by increased imports. (Information on injury caused due to dumping or
subsidization, if any, needs to be specifically provided here. Also mention
if any application for anti-dumping or countervailing duty investigation has
been filed).
Section 6: Cause of Injury:
Please provide an analysis of data presented above bringing out a nexus between
the increased imports, either actual or relative to domestic production, and the
injury or threat of injury caused to the domestic industry and the basis for a request
for initiation of safeguards investigation under Customs Tariff (Identification and
Assessment of Safeguard Duty) Rules, 1997.
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Section 7: Submission
a. A statement describing the measure requested including:
• Nature and quantum of safeguard duty requested.
• Purpose of seeking the relief and how such objective will be achieved.
• Duration for which imposition of safeguard duty is requested and
the reasons therefore.
b. If a request is made for provisional safeguard measures, full and detailed
information regarding existence of critical circumstances and how delay
would cause damage which it would be difficult to repair.
c. If the safeguard measures are requested to be imposed for more than one
year, details on efforts being taken and planned to be taken or both to
make a positive adjustment to import competition with details of progressive
liberalization adequate to facilitate positive adjustment of the industry.
Section 8: Annexes
All supporting information can be provided as annexes to the application. (The
main information must be provided at the appropriate places. The details of the
information can be provided in annexes).
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Appendix-64
Post Initiation
Questionnaire for Domestic Producers
Section 1: General Information:
i. Complete details about identity
a. Name of the enterprise, location of works:
b. Address of the registered, marketing and head office:
c. Telephone No. / Fax No.:
d. Contact Person, address & tel. No. / fax no.:
ii. Corporate structure:
iii. Commodities manufactured:
iv. Distribution and marketing system:
Section 2: Like or Directly Competitive Product
i. Details of like or directly competitive product(s) produced by you
a. Name of the product:
b. Description of the product, including various grades, sizes, models or
type etc. Basis for classification:
c. Qualities and the characteristics of the product:
d. Uses of the product: Whether different grades/off-specs can be used
interchangeably:
e. Substitutability of the product giving details of perception of the
consumer and the manufacturer and commercial channels:
f. Raw materials and components and other input used for the
production:
g. Process of production / manufacture: Complete flow chart with
description to be given:
h. Tariff classification (under Central Excise Tariff Act, 1985);
i. Rates of Central Excise duty during last 3 years;
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Manual of OP for Trade Remedy Investigations
ii. (a) Description of imported product as in (i) above with Tariff classification:
(b) Narrate how your product can be considered as 'like or directly
competitive product' to (a) above;
iii. Details of industrial users / consumers of your product: Please furnish
Segment wise list of major consumers;
iv. Details of industrial users/consumers of imported product;
v. Details of cost of production showing variable and fixed costs separately.
The variable costs to include Raw Material, Chemicals and Consumables (Stores),
Water, Power & Fuel charges, Direct labour etc. and the Fixed cost to include Finance
cost (Interest), Depreciation, Repairs & Maintenance, Administrative overheads etc.:
Section 3: Injury
i. Production line-wise details of plant and machinery installed. Expenses
incurred in installing the same. Additions made During the last three years.
Further investments committed:
ii. Information on further plans of Capital Investment.
iii. Source of funds.
iv. Installed capacity and capacity utilization for the last three years, variety
wise, for each product.
v. Details of production, sales and stocks for the last three years financial years
(month wise) both in terms of quantity and value for each product. (Please
do not include imports, if any, made by you here).
vi. Details of sales in the domestic market, both in terms of quantity and value.
(Please do not include sale of imported material here). Give separately any
quantities used captively for the last three financial years (month wise).
vii. Details of country wise export both in terms of quantity and value. (Please do
not include any imported material, if re-exported, here), to whom exported
and what price. Please explain difference in export price vis-A-vis domestic
price. Details of deemed exports if any may also be furnished.
viii. Information regarding sales prices. (For the last three years). Realisation for
bulk and packed form separately. Please also indicate Separately quantities
sold in bulk and in packed form.
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Safeguard Investigations
ix. Major raw materials used and their prices for the last three years. Also
indicate the ratio of consumption to the finished product.
x. Effect of changes in prices of raw materials on cost of production and selling
prices for the last three years.
xi. Information on fair market price which you expect to receive and basis
thereof i.e. cost of production, giving details of cost of raw materials, labor,
overheads, etc. for the last three years. (Give details separately for fixed and
variable costs at different capacity utilization).
xii. Information of rebates/discounts offered on domestic sales during the last
three years month wise.
xiii. Please give details of any subsidy including freight subsidy received by you -
nature and amount - who gives the subsidy and why.
xiv. Information on profit and loss on sales for the last three years separately for
each product variety wise.
xv. Details of persons employed and loss of employment, if any, during last
three years.
xvi. Copies of Balance Sheets or other statements of accounts for the last three
years.
xvii. Details of information on assets and financial position of the enterprise.
xviii. Cause of injury or threat of injury to your unit and basis thereof:
a. Please provide details of the impact of reduction in import duties/
removal of import restrictions on the product for which protection is
sought.
b. Please provide details of other circumstances that have contributed
to the increase in imports.
c. Please provide information in respect of circumstances that have
helped the exporters in the international market in sending increased
quantities to India.
d. Please provide details of demand for the product for the past three
years and anticipated growth, if any. Reasons for decline or increase
may also be furnished.
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Manual of OP for Trade Remedy Investigations
Section 4: Information on Adjustment Plan
i. How do you think injury can be removed?
ii. Please specify the quantum and duration of safeguard duty that can help
you in adjusting to the new situations of competition offered by increased
imports.
iii. Please specify the progressive liberalization of the safeguard duty.
iv. Please specify the restructuring plan of your unit to adjust to the new
situation of competition offered by the increased imports. What steps have
been taken so far for enhancing the capacities?
v. How can the further proposed restructuring plan be implemented?
vi. Please provide an estimate of year wise reduction in cost of Production (or
quantum of other benefits - separately) that may be achieved as a result of
readjustment. A non-confidential summary of your restructuring plan may
be furnished. Unless the same is provided, the information provided on
confidential basis may not be taken on record.
vii. A non-confidential summary of your restructuring plan may be furnished.
Unless the same is provided, the information provided on confidential basis
may not be taken on record.
Section 5: Information on imports, if any
i. Are you importing the product (or similar product) as described in Section II
(ii).
ii. If yes, please list all imports made during the last three years giving details
of products imported, quantity, value, duty paid, etc.
iii. Explain reasons for imports.
iv. Give details of marketing and distribution channel and disposal of imported
goods.
v. Provide a list of end users to whom the imported product has been sold by
you.
vi. Effect of these imports on your domestic sales.
vii. Details of month wise imports into India as a whole and its CIF price for the
last three years.
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Safeguard Investigations
viii. Why the price of imports to India is lower compared to other countries.
ix. Names and addresses of exporters to India.
Section 6: Miscellaneous Information
a. Details of shutdown and reasons therefore during the last three years along
with stock position during the shutdown.
b. Details of orders placed by consumers which could not be executed or were
considerably delayed during the last three years along with reasons.
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Manual of OP for Trade Remedy Investigations
Appendix-65
Post Initiation
Questionnaire for Importers
Section 1: General Information:
i. Complete details about identity
a. Name of the enterprise
b. Address
c. Telephone No. / Fax No.
d. Contact person, address and Tel. No.
ii. Corporate Structure.
iii. Distribution and marketing channel.
Section 2: Details of Imported Product
a. Name of the product imported by you.
b. Description of the product including various grades, sizes, models or type
etc.
c. Quality and characteristics of the product.
d. Uses of the product.
e. Raw materials and components and other inputs used for the production.
f. Tariff classification under The Customs Tariff Act, 1975 and under ITC.
g. Rates of Customs duty during last three years paid on imports. Please give
break up and copies of supporting documents (e.g. Bill of entry, Invoice etc.)
h. Details of industrial users / consumers of imported product.
Section 3: Volume and Prices of Imports
i. Please list all imports (for each product variety wise) giving details of country
of export, quantity imported, CIF value, currency conversion ratio etc. for
the last three years, (April to March) month wise / quarterly, quantities
imported during the said period separately for duty free imports and duty
paid imports.
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Safeguard Investigations
ii. Terms of payment.
iii. Details of import licenses / import policy governing the imports.
Section 4: Information about Suppliers
a. Name of the exporter
b. Address
c. Telephone, Fax Nos.
d. Contact person, address & Telephone No.
e. Whether the exporter is producer / merchant or exporter / trader.
f. What is the annual capacity of the exporter (if he is a producer)
g. What are your relations with the exporter
h. What are your terms of business with the exporters i.e. terms of payment,
further commitment of imports etc.
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Manual of OP for Trade Remedy Investigations
Appendix-66
Post Initiation
Questionnaire for Exporters
Section 1: General Information:
i. Complete details about identity
a. Name of the enterprise
b. Address
c. Telephone No. / Fax No.
d. Contact person, address and telephone no.
ii. Distribution and marketing channel
Section 2: Details of Exported Product
a. Name of the product exported by you
b. Description of the product including various grades, sizes, models or types
c. Quality and characteristics of the product
d. Raw materials and components and other inputs used for production
e. Details of industrial users / consumers of exported product.
Section 3: Capacity, Production, Volume and Price of Exports
(Preferably for financial year April - March)
a. Capacity
Last year Current year
b. Production
Last year Current Year Next year
c. Cost of production during the above periods.
d. Selling price per unit in domestic market during the above periods.
e. Export / Selling price per unit in India during the above periods.
f. Whether you have any agent or office in India, if yes their names and
address, Tel. No., Fax No.
g. Quantity exported to India during the last three years and current year
(April-March)
h. Your commitment to supply the product in different markets including India.
524
CHAPTER 22
QUANTITATIVE RESTRICTION INVESTIGATIONS
LEGAL PROVISIONS
22.1. Article XI of the GATT prohibits quantitative restrictions on
the importation or exportation of any product, by stipulating that “no
prohibition or restrictions other than duties and taxes or other charges
shall be instituted or maintained by any member…”. The quantitative
restrictions are considered to have greater impact on trade than tariffs and
hence, their prohibition is one of the fundamental principles of the GATT.
However, GATT permits quantitative restrictions under certain conditions.
If a quantitative restriction is used, such a measure shall not reduce the
quantity of imports below the level of a recent period which shall be the
average of imports in the last three representative years for which statistics
are available, unless clear justification is given that a different level is
necessary to prevent or remedy serious injury. Members should choose
measures most suitable for the achievement of these objectives.
22.2. In India, the provisions of Quantitative restrictions are provided in
Foreign Trade (Development and Regulation) Act, 1992, introduced vide
amendment in 2010. The relevant provisions of Foreign Trade (Development
and Regulation) Act, 1992 are as follows:
CHAPTER IIIA :Quantitative Restrictions:
Power of Central Government to impose quantitative restrictions
9A. (1) If the Central Government, after conducting such enquiry as it
deems fit, is satisfied that any goods are imported into India in
such increased quantities and under such conditions as to cause
or threaten to cause serious injury to domestic industry, it may,
by notification in the Official Gazette, impose such quantitative
restrictions on the import of such goods as it may deem fit:
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Manual of OP for Trade Remedy Investigations
Provided that no such quantitative restrictions shall be imposed on any
goods originating from a developing country so long as the share of imports
of such goods from that country does not exceed three per cent, or where
such goods originate from more than one developing country, then, so long
as the aggregate of the imports from all such countries taken together does
not exceed nine per cent of the total imports of such goods into India.
(2) The quantitative restrictions imposed under this section shall, unless
revoked earlier, cease to have effect on the expiry of four years from the
date of such imposition:
Provided that if the Central Government is of the opinion that the domestic
industry has taken measures to adjust to such injury or threat thereof and it
is necessary that the quantitative restrictions should continue to be imposed
to prevent such injury or threat and to facilitate the adjustments, it may
extend the said period beyond four years:
Provided further that in no case the quantitative restrictions shall continue
to be imposed beyond a period of ten years from the date on which such
restrictions were first imposed.
(3) The Central Government may, by rules provide for the manner in
which goods, the import of which shall be subject to quantitative restrictions
under this section, may be identified and the manner in which the causes of
serious injury or causes of threat of serious injury in relation to such goods
may be determined.
(4) For the purposes of this section-
a) “developing country” means a country notified by the Central
Government in the Official Gazette, in this regard;
b) “domestic industry” means the producers of goods (including
producers of agricultural goods)-
(i) as a whole of the like goods or directly competitive goods in
India; or
(ii) whose collective output of the like goods or directly
competitive goods in India constitutes a major share of the
‘total production of the said goods in India’;
c) “serious injury” means an injury causing significant overall impairment
in the position of a domestic industry;
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Quantitative Restriction Investigations
d) “threat of serious injury” means a clear and imminent danger of
serious injury.
22.3. The Department of Commerce has notified the Rules called the Safeguard
Measures (Quantitative Restrictions) Rules, 2012 detailing the process for
conducting investigation for quantitative restrictions, wherein the "Authorised
Officer" is designated under sub-rule(1) of rule 3 for conducting investigations as
per the details provided in the QR Rules (text attached at the end of the chapter).
The application format has also been prescribed therein.
SIGNIFICANCE
22.4. The rules provide that the Authorised Officer can investigate serious injury
or threat of serious injury to Domestic Industry caused by increased quantity of
imports, in absolute terms or relative to domestic production, and recommend
quantitative restrictions (any specific limit on quantity of imports) on import of such
goods from specified countries under investigation.
OPERATING PRACTICES
22.5. The rules governing the procedure for investigation are contained in
Safeguard Measures (Quantitative Restrictions) Rules, 2012 notified on May 24,
2012.
22.6. In the Rules, the Directorate General of Foreign Trade is required to
provide secretarial support and the services for conducting investigation to impose
quantitative restriction. However, the work relating to all trade defence instruments
has been assigned to Directorate General of Trade Remedies vide Notification No.I-
34(7)/2018-O&M dated 17 May, 2018. Therefore, the investigation team and the
secretarial assistance are now centralised in DGTR. The DG has been designated as
the “Authorised Officer” for QR investigations under the said notification.
22.7. The application has to be in writing by or on behalf of the domestic
producer(s) of like goods or directly competitive goods, in the prescribed format,
supported with:
22.7.1. The evidence of:
(i) increased imports as a result of unforeseen development;
(ii) serious injury or threat of serious injury to the domestic industry; and
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Manual of OP for Trade Remedy Investigations
(iii) a causal link between imports and the alleged serious injury or threat
of serious injury;
22.7.2. A statement on the efforts being taken, or planned to be taken, or both, to
make a positive adjustment to increase in competition due to imports; and
22.7.3. A statement mentioning whether an application for the initiation of a
safeguard action on the goods under investigation has also been submitted to the
Director General of Safeguards.
22.7.4. The application seeking initiation of quantitative restrictions investigations
should be inter-alia accompanied by the following information for at least latest
available three years and supporting documents in addition to the application in the
prescribed format:
S.N. Documents / Information
1 Soft Copy of the application
2 D.G.C.I &S import data segregated year-wise and county wise
3 Total Indian Production and basis for the estimation
4 Year-wise production of applicant and Installed Capacity of PUC with supporting
documents like Pollution Control Board Certificate
5 Total sales (separately for domestic /captive/exports) of the applicant and other
Indian producer(s) along with total year wise demand in the country.
6 Workings of Cost of production along with Excel files
7 Submissions and Workings in support of claimed serious injury/threat of injury
8 Evidence in support of causal link
9 Statement of adjustment and period thereof
10 Evidence regarding unforeseen developments
10 Confirmation from the DI/consultants that the complete cost data for all the units
of the domestic industry manufacturing or selling PUC has been furnished in the
petition.
11 Audited financial statements and cost audit reports
22.8. The principles followed for determination of PUC in AD cases may also
be applied for QR cases for determination of “like goods or directly competitive
goods”, which are the subject matter for investigation.
22.9. Similarly, for determination of injury, COP needs to be determined. Though
Annexure-III in anti-dumping Rules is not specifically applicable to the quantitative
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