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GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
Notification No.10/2020-Customs (N.T.)
New Delhi, the 2nd February, 2020
G.S. R. ….. (E).- In exercise of the powers conferred by sub-section (7) of
section 9 and sub-section (2) of section 9B of the Customs Tariff Act, 1975 (51
of 1975), the Central Government hereby makes the following rules further to
amend the Customs Tariff (Identification, Assessment and Collection of
Countervailing Duty on Subsidised Articles and for Determination of Injury)
Rules, 1995, namely :-
1. Short title and commencement. — (1) These rules may
be called the Customs Tariff (Identification, Assessment and Collection of
Countervailing Duty on Subsidised Articles and for Determination of Injury)
Amendment Rules, 2020.
(2) They shall come into force on the date of their
publication in the Official Gazette.
2. In the Customs Tariff
(Identification, Assessment and Collection of Countervailing Duty on Subsidised
Articles and for Determination of Injury) Rules, 1995,-
(a) in rule 2,-
(i) in clause (b),-
(A)for the portion beginning with the words “means the
domestic producers” and ending with the words “not to form part of domestic
industry”, the following shall be substituted, namely:-
“means the domestic
producers as a whole engaged in the manufacture of the like article or those
whose collective output of the said article constitutes a major proportion of
the total domestic production of that article, except when such producers are
related to the exporters or importers of the alleged subsidised article, or like
article from other countries or are themselves importers thereof:”;
(B) after
the proviso, the following Explanation shall be inserted, namely: -
“Explanation. - For the purposes of this clause, producers shall be deemed to be
related to exporters or importers only if,-
(a) one of them directly or
indirectly controls the other; or
(b) both of them are directly or indirectly
controlled by a third person; or
(c) together they directly or indirectly
control a third person subject to the condition that there are grounds for
believing or suspecting that the effect of the relationship is such as to cause
the producers to behave differently from non-related producers.
Note: For the
purpose of this Explanation, a producer shall be deemed to control another
producer when the former is legally or operationally in a position to exercise
restraint or direction over the latter.”
(ii) after clause (c), the following
clauses shall be inserted, namely: -
‘(ca) “like article” means an article
which is identical or alike in all respects to the article under investigation
or in the absence of such an article, another article which although not alike
in all respects, has characteristics closely resembling those of the article
under investigation;
(cb) “period of investigation” means the period during
which the existence of subsidisation is examined.”;
(iii) in clause (d), for
the word, figure and letter “section 9A”, the word and figure “section 9”
shall be substituted”;
(b) in rule 6, after sub-rule (5), the following
sub-rule and Explanation shall be inserted, namely:-
“(6) The designated
authority shall avoid any publicising of the application for the initiation of
an investigation, unless a decision has been made to initiate an investigation.
Explanation.- For the purposes of these rules, the period of investigation
shall,-
(i) not be more than six months old as on the date of initiation of
investigation;
(ii) be for a period of twelve months and for the reasons to
be recorded in writing the designated authority may consider a minimum of six
months or maximum of eighteen months.”;
(c) after rule 6, the following rule
shall be inserted, namely:-
“6A. Consultation.- (1) As soon as an application
under rule 6 is accepted, and in any event before the initiation of any
investigation, the Government of the exporting country, the products of which
may be subject to investigation, shall be invited for consultations to clarify
the situation for the matters referred to in rule 6 so as to arrive at a
mutually agreed solution.
(2) The Government of the exporting country, shall
be afforded a reasonable opportunity to continue consultations, to clarify the
factual situation so as to arrive at a mutually agreed solution, throughout the
period of investigation.”;
(d) in rule 11, in sub-rule (1), for clause (c),
the following clause shall be substituted, namely: -
“(c) has been conferred
on a limited number of persons or enterprises or industries or designated
geographical regions, engaged in manufacturing, producing and exporting the
article.”;
(e) in rule 17, in sub-rule (6) for the proviso, the following
provisos shall be substituted, namely:-
“Provided that the designated
authority may obtain from the producer or importer information periodically to
monitor the undertaking and take steps for onsite verification of the same, if
required:
Provided further that in case of any violation of an undertaking,
the designated authority shall, as soon as possible, inform the Central
Government of the violation of the undertaking and recommend immediate
application of provisional measure using the best information available and in
cases of violation, definitive duties may be levied in accordance with these
rules on product entered for consumption not more than ninety days before the
application of such provisional measures but no such retroactive assessment
shall apply to imports entered before the violation of the undertaking.”;
(f)
in rule 22, in sub-rule (2), after the proviso the following proviso shall be
inserted, namely:-
“Provided further that notwithstanding anything contained
in the foregoing proviso, in case of violation of such undertaking, the
provisional duty shall be deemed to have been levied from the date of violation
of the undertaking or such date as the Central Government may specify in each
case.”;
(g) for rule 24, the following rules shall be substituted, namely: -
“24. Review. - (1) Any countervailing duty imposed under section 9 of the Act
shall remain in force so long as and to the extent necessary, to counteract
subsidisation, which is causing injury.
(2) The designated authority shall
review the need for the continued imposition of countervailing duty, where
warranted, on its own initiative or upon request by any interested party who
submits necessary information substantiating the need for such
review, and a
reasonable period of time has elapsed since the imposition of the definitive
countervailing duty and upon such review, the designated authority shall
recommend to the Central Government for its withdrawal, when it comes to a
conclusion that the injury to the domestic industry is not likely to continue or
recur, if the said countervailing duty is removed or varied and is therefore no
longer warranted.
(3) Any definitive countervailing duty levied under the Act
shall be effective for a period not exceeding five years from the date of its
imposition. The designated authority may upon coming to a conclusion, on a
review initiated before that period either on its own initiative or upon a duly
substantiated request made by or on behalf of the domestic industry within a
reasonable period of time prior to the expiry of that period, that the expiry of
the said countervailing duty is likely to lead to continuation or recurrence of
subsidisation and injury to the domestic industry, make recommendation for
extending the period of such imposition in accordance with provisions of section
9 of the Act.
(4) Any review initiated under sub-rule (1) shall be concluded
within a period not exceeding twelve months from the date of initiation of such
review.
(5) The provisions of rules 6,7,8,9,10,11,12,13,16,17,18,19,20,22 and
23 shall apply mutatis mutandis in case of review.
25. Circumvention of
countervailing duties. – (1) Circumvention shall be considered as a change in
the pattern of trade between any country and India or between individual
companies in any other country, subject to measures and India, as a result of a
practice, process or work for which there is insufficient cause or economic
justification other than the imposition of the duty, and where there is evidence
of injury or that the remedial effects of the duty are being undermined in terms
of the prices or quantities or both of the like product, and that the imported
like product or parts thereof or both still benefit from the subsidy as
determined in original or previous determination.
(2) The practice, process
or work referred to in the sub-rule (1) includes, inter alia,-
(a) where an article
subject to countervailing duty is imported into India from any country including
the country of origin or country of export notified for the purposes of levy of
countervailing duty, in an unassembled, unfinished or incomplete form and is
assembled, finished or completed in India or in any other country, such
assembly, finishing or completion shall be considered to circumvent the
countervailing in force if,-
(i) the operation started or increased after, or
just prior to, the countervailing investigations and the parts and components
are imported from the country of origin or country of export notified for
purposes of levy of countervailing duty; and
(ii) the value consequent to
assembly, finishing or completion operation is less than thirtyfive percent of
the cost of assembled, finished or complete article.
Explanation I. – ‘Value’ means the cost of assembled, complete or finished
article less value of imported parts or components.
Explanation II. - For the
purposes of calculating the ‘value’, expenses on account of payments relating to
intellectual property rights, royalty, technical know- how fees and consultancy
charges, shall not be taken into account.
(b) where an article subject to
countervailing duty is imported into India from country of origin or country of
export notified for the levy of countervailing duty after being subjected to any
process involving alteration of the description, name or composition of an
article, such alteration shall be considered to circumvent the countervailing
duty in force if the alteration of the description or name or composition of the
article subject to countervailing
duty results in the article being altered
in form or appearance even in minor forms regardless of the variation of tariff
classification, if any;
(c) where an article subject to countervailing duty
is imported into India through any exporter or producer or country not subject
to countervailing duty, such exports shall be considered to circumvent the
countervailing duty in force if the exporters or producers notified for the levy
of countervailing duty change their trade practice, pattern of trade or channels
of sales of the article in order to have their products exported to India
through any
exporter or producer or country not subject to countervailing
duty;
(d) any other manner where the
countervailing duty so imposed is rendered ineffective.
26. Initiation of
investigation to determine circumvention.- (1) Except as provided herein below,
the designated authority may initiate an investigation to determine the
existence and effect of any alleged circumvention of the countervailing duty
levied under section 9 of the Act, upon receipt of a written application by or
on behalf of the domestic industry.
(2) The application shall, inter-alia,
contain sufficient evidence as regards the existence of the circumstances to
justify initiation of an anti-circumvention investigation.
(3)
Notwithstanding anything contained in sub-rule (1), the designated authority may
initiate an investigation on its own initiative if it is satisfied from the
information received from the Commissioner of Customs appointed under the
Customs Act, 1962 (52 of 1962) or any other source that sufficient evidence
exists as to the existence of the circumstances pointing to circumvention of
countervailing duty in force.
(4) The designated authority may initiate an
investigation to determine the existence and effect of any alleged circumvention
of the countervailing duty in force:
Provided that the designated authority
shall notify the Government of the exporting country before proceeding to
initiate such an investigation.
(5) The provisions regarding evidence and
procedure provided under rule 7 shall apply mutatis mutandis to any
investigation carried out under this rule.
(6) Any such investigation shall
be concluded within twelve months and in no case more than eighteen months of
the date of initiation of investigation for reasons to be recorded in writing by
the designated authority.
27. Determination of circumvention.- (1) The
designated authority, upon determination that circumvention of countervailing
duty exists, may recommend imposition of existing countervailing duty to imports
of articles found to be circumventing an existing countervailing duty or to
imports of article originating in or exported from countries other than those
which are already notified for the purpose of levy of the countervailing duty
and such levy may apply retrospectively from the date of initiation of the
investigation under rule 26.
(2) The designated authority shall issue a
public notice recording its findings.
(3) The Central Government may,
pursuant to the recommendations made by the designated authority, extend the
countervailing duty to imports of article including imports of such article from
the date of initiation of the investigation under rule 26 or such date as may be
recommended by the designated authority.
28. Review of circumvention. - (1)
The designated authority may, where warranted, review the need for the continued
imposition of the countervailing duty on circumventing product or against the
circumventing country as applicable, either on its own initiative or, upon
request by any interested party which submits necessary information
substantiating the need for the review provided that a reasonable period of time
has elapsed since the
imposition of the measures, and upon such review make
recommendations to the Central Government.
(2) Any review initiated under
sub-rule (1) shall be concluded within a period not exceeding twelve months from
the date of initiation of such review.”.
[F. No.334/2/2020-TRU]
(Gaurav Singh)
Deputy Secretary to the
Government of India
Note.- The principal rules were notified vide Notification No.1/1995-Customs (N.T), dated the
1st January, 1995, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section
(i), vide number G.S.R 2(E), dated the 1st January,1995 and was last amended by Notification
No.24/2006-Customs (N.T), dated the 1st March, 2006 published in the Gazette of India,
Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R 123(E), dated the 1st March,
2006.
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