The Customs Tariff (Amendment) Ordinance, 1994

REGISTERED NO. DL-3~!9' ---- --- - -------- --- ammmr EXTRAORDINARY '111t rr~ 1 . PART II-Section 1 snf ~r'{ ~ SflfirfmT PUBLISHED BY AUTHORITY .::::::.~ ----·--- - . -----=--~====:--=====-- -· -- - ·-=· ======:==::::~ 8° 82] ;cf f.mn, 'lflfif~ .\,i:~\-31, 1994/lf1lf ~-0, 1916 No, 82] NEW DELi:u~ SATURDAY. DECEMBER Jl.1994/ PAUSA 10, 1916 ==;-~-it f-q ~ ~qr ll iitlITT ~ f15f~-Pf q~ ~ h~;~-;;; 'C,;; .-r-"-.-,-_ Separate paging is ih·en to this Part In order that it may be filed a., a &eparate oomplldoe ---- --- ----- ··- - ·--- ------- - -- - - ------ - -- MINISTRY or L~W, JUSTICE AND COMPANY AFFAIRS (Legislative Department) New Delhi, the 31st December, 1994/Pausa 10, 1916 (Saka) THE CUSTOMS TARIFF ( AMENDMENT) ORDlNANCE, 1994 No. 14 OF 1994 Promulgated by the President in the Fourty-fi.fth Year of the Republic of India. An Ordinance further to amend the Customs Tariff Act, 1975. WHEREAS Parliament is not in session and the President is satisfied that circumstances exist which render it necessary for him to take imme­ diate action; Now, THEREFORE, in exercise of the powers conferred by clause (1) of article 123 of the Constitution, the President is pleased to promulgate the following Ordinance:- 1. (1) This Ordinance may be called the Customs Tariff (Amendment) Ordinance, 1994. (2) It shall come into force on the 1st day of January, 1995. 2. For sections 9, 9A and 9B of the Customs Tariff Act, 1975, the fol­ lowing sections shall be substituted, namely:- '9. (1) Where any country or territory pays, bestow~, directly . d" 1 subsidy upon the manufacture or production there-or m irect y, any . . 1 di b • d . h rt t· therefrom of any article me u ng any su s1 y m or t e expo a 10n . . • h • 1 then, upon the 1mp0rtatton of any on transportation of sue artic e, Short title 'andcom­ me~ment. Sulmitution of new sections for · sectiOll6 9, 9A and 9B. Counter­ vailini;, duty on subsidized articles. i .' . : (PUT JI-. nm G.AZBTIB OF INDIA EXTRAORDINARY =====:::;..:.:=::-=:=:::: such article into India, whether the same is imported directly from the country of manufacture, production or otherwise, and whether it is impcrted in the same condition as when exported fro~ the c:>~n­ try of manufacture or production or has been changed m conchtion by manufaclure, production or otherwise, ·t~e Gentral Government may, by notification in the Official Gazette, 1_mpose a countervailing duty not exceeding the amount of such subsidy. Explanation.-For the purposes of this section, a subsidy shall be deemed to exist if- ( a) there is financial contribution by a government, or any public body within the territory of ·the exporting or producing country, that is, where-- ( i) a government practice involves a direct transfer of funds (including grants, loans and equity infusion), or potential direct transfe~ of funds or liabilities, or both; ( ii) government revenue that is otherwise due is fore­ gone or not collected , (including fiscal incentives); (iii) a government provides goods or services other than genera[ infrastructure or purchases goods; (iv) a . government . mak~ payments to a funding mechanism, or entrusts or direcits a private body to carry , out . one or mo~e of the type of functions specified in clauses (i) to (iii) above which would normally be vested in the .\,.: ·. , government and the practice in, no real sense, differs from practices normally followed by governments; or (b) a government grants or mainta,ins any form of ,income or price· support, which operates directly or indirectly to increase :> . . e~rt of any article from, or to reduce ini_port of any article into ·' • ' • its· territory, •• • ::: • •• and :a benefit. is thereby conferred . . . •·_;: ~ . . • (2) The Central Government may, pending the determination in accordance with the provisions of this se<:tion and the rules made thereunder of the amount of subsidy, impose a · counte1vaHing duty unde~ . this sub-section not exceeding the amount of such subsidy as prov1s1onally estimated by it and if such countervailing duty exceeds the subsidy as so determined,- • (a~ th~ Central Government shall, having regard to such deter1PJ.natron and as soon as may be after such determination, reduce such countervailing duty; and (b) refund shall be made of so much' of such countervailing d~t! which has been collected as is in excess of the counter­ vailing duty as S(? reduced . . (J) . Su~ject to any rules made by the Central Government, by .·, . no~ificat~on m the Official Gazette, the countervailing duty under .. ,·. sud. sec~ion (1) or sub-seetion (2) shall not be levied unless it 1s • • • etermmed that- . • • · {a) the subsidy relates to export performance; '\ \ ~ GAZETTE OF INDIA EXTRAORDINARY =----- 3 ( b) the subsid 1 imported gOOds i Y re ates to the use of domestic goods over n the export article; or (c) the subsid h b persons enga d . Y as een c~>nferred on a limited number of . 1 1 ge m manufactunng,, producing or exporting the aruc e un ess such a subsidy is for_:_ . (i) research activities conducted by or on behalf of persons engaged in th uf e man acture, production or export; . (ii) assistance to disadvantaged regions within the terntory of the exporting country; or . (iii) assiStance to promote adaptation of existing facili- ties to ~ew environmental requirements. ( 4> If the ~entral Government, is of the opinion that the injury to the domestic indust h' · · . . . ry w 1cb. 1s difficult t<> repair, is caused by massive ~~orts 1n a relatively· short period of the article benefiting from subsidies paid or bestowed and where' in order to preclude the recurrence of such inJ·ury • • · · . . , lt is necessary to levy countervailing duty retrospectively the Cent al Gov· · · · . • r ernment may by not1ficat1on in the Official Gazette lev co t ·u . d a • . . ? Y un ervai ng uty from a date prior to the date of imp~1t1on of cowitervailing duty under sub-section (2) but not _beyond ninety days from the date of noLification under that sub­ ~tion . an~ notwithstanding anything contained in any la.; for the tune _being m f?rce,. such duty shall be payable from the. date as speci­ fied m the not1fi.cation issued under this sub-section. (5) The countervailing duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in rorce. ( 6) The countervailing duty imposed under this section shall, unless revoked earlier, cease to };lave effect on the expiry of five years from the date of such imposition: Provided tha:t if the Central Government, in a re,~ew, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of subsidization and injury, it may, from time to time. extend the perioC: of such imposition for a further period of five years and such further period shall commence from the date of order of such extension: ' • Provided further that where a review initia:ted before the expiry of the aforesaid period of five years has not co_me t·o a conclusion before such expiry, the countervailing duty may continue t,o remain in force pending the outcome of such a review for a further period not exc~ding one year. (7) The > amount of any such subsidy as referred to in sub­ section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Goverm:i'ent . may? by notifi­ cation in the Official Gazette, make rules for the 1dennficat1on of such article and for the assessment and collection of any countervailing duty impo~d upon the imp.ortation thereof under _i_hls section. Anti­ dwnping duty on dumped art.cles. ' 4 THE GAZETTE OF INDIA EXTRAORDINARY [PAIIT ll- - -· - - --- - - - -- · ·· ---- -- · --- • -----····--·· ~ - ~ •• • - · - - ·- -------------- ------ ( 8) Every notification issued under 1his section shall, as <:;oon as may be after it is issued, be laid before each House of Parliament. 9A. (1) Where any article is exported from any country or terri­ tory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, u_pon the importation of such article into India, the Central Government may, by notification in the Official Ga:,;ette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation.-For the purposes of this section,- ( a) ''margin of dumping", in relation to an article, means the difference between its export price and ils normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is JJ.o export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the exp-ort price may be constructeci on the basis of the price at which the imported articles are first resold to an inde­ pendent buyer or if the artic1e is not resold to an independent buyer, or not resold in the condition as imported, on such reason- .ble basis as may be determine(! in aooordance with the rules made under sub-section ( 6); (c) ''normal value", in relation to an article, 'means-- ( i) the comparable price, in the ordinary course of trade, for the like article when meant for consumption in the exporting country -or territory as determined in accor­ dance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in th~ ordinary course of trad_e in the domestic market of the ex­ porting country or territory, or when because of the parti­ cular market situation or low volume of the sales in the domestic market of the exporting country or territory, such sales do not permit a proper comparison, the normal value shall be either- ( a) comparable representative price of the like article when exported from the exporting country or territory or an appropriate th.ird c-ountry as determined in accordance with the rules made under sub--section (6); or (b) the cost of production of the said article in the country of origin along with reas-onable addition for administrative, selling and general costs and for profits, as determined in accordance with the rules made under sub-section ( 6) : Provided that in the case of import of the artic.Je from a countTy other than the country of origin and where the article has been merely tr,:mshipped through the country of exp<:>rt or such article is not produced in the country of export or there is no comparable price pc. 1] THE GAZETrE OF INDIA E .• -::::-...::..~-:::-:::::=::=-=::....: .. ·--:: .. --- . . . ··--- - .... X1RAORDINAB.y .:-::::::.:::-~·-- .... ---~ . 5 • in the country of export Lhe -- ---~--=--== deiermined with refer ' . . no:mal value shall b oricri., ence to lls price in the ""unt e -· - ~~ (2) The Central Goverament ma . accordance with the provisions of thy'. pen~mg the determination in d of th ts section and the ul thereun er c normal value und th . r cs made to any article iI111p0se on th • . e margm of dumping in relation ' e importation of such ·ct . anti-dumping duty on the basis of a ro . . a_rtt e into India an( and margm· and if s .. ,.11.. ant· d . p v1s10n~ estimate of such value U\.111 , • 1- 1umpmg d determined:- • uty exceeds the margin as so (a) the Central G~vernment shall h . mi.nation and as soo ' avmg regard to such deter- n as nBy be after such determination, red .. ~"' such anti-dumping duty; and """1 (b)ru:ef\:d shall b~ made of so much of the anti-dumping duty which ds I edeen collected as is in excess of the anti-dwnping duty assoreuc. . (J) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that- ~c) there . is a history of dumping which caused injury or that the ~porter . ~as, or shoU!l\tl have been, aware that the exporter practloes dum,pmg and th.iJt such dumping would cause injury; and (ic) the injuriy is caused by massi-ve dullllping of an article imported in a relatively short time which in the light of the timing and the volume of im!)'81rted article dumped · and other circum­ stanoes is likely t'O seriously undermine llhe remedial effect of the anti-dumping duty Uable to be levied, the Central Government may, by notification in the Official Gazette. levy anti-dumping duty retrospectively from a date prior to -the date of, imposition of anti-dumping duty under sub-section (2) but not beyond ninetiy days from the date cf notification under that sub-section, and notwithstanding anyt'hing contained in any law for the time being in force, such duty shall be ,payable at sllleh rate and from s,uoh date as may be speci,fi.ed in the notification . (4) The anti-dumping duty chargeable under this section shall be iin addition to any other duty imposed under this Act or any other laiw for tlhe time being in force. (5) The anti-dumping duty i,mposed under this section shall, unless revoked earlier, cease to have effect on the ex,piry of fivle iyears from the date of such imposition: Provided that if the Cenitrcl Goivemment, in a review, is_ of ~: opinion that ,the c~ati.on of such duty is likely to ~ead to ~tmuatioo of d · and inJ·"~ it may from time to time, extend or recurrence um1pmg • ..... J • , • . h . , "tion for a further penod of five years and . the penod of su_cod imh:s1 OOIJ1illlt,nce fro:n the date of order of such such further peo s . . extension: No levy under section 9er­ 'SCCtion ~A in certain CMCS- 6 nm vAZETfE OF INDIA EXTRAORDINA.RY [PART Il- Provided further that where a review initiated before the expiry of the aforesaid period of five years has not <.'OIJle to a conclusiOOJ before such expiry, ·the anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one ~ear. (o) The margin of dumpi.ng as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and detennined by the Central GQvernment, after suc.h inquiry as it m~y consider necessary and the Central Government may, by notificati,on in the Official Gazette, make rules for the purposes of this section, and without prejudice to ,the generality of the foregoing, such rules may <Provide for the manner in which articles liable for any a!llti-dumping duty under this section may be i.dentified, and for the manner in which the e.q,ort price and the normal value of, and the margin of dumping in relation to, such articles may b-e determined and for the assessment and collection of such a:nti-dump,ing duty. (7) Every notification issued under this section shall, as soon as may be after it is issued, be laid before each House of Parliament. 9B. (1) Notwith.s(anding anything contained in section 9 or section 9A,­ (a) no article shall be subjected to both countervailing duty and anti-dumping duty to compen6a:te for the same situation of dumping or export s'Ubsidization; (b) 1lhe Central Go,vernrnent shall not levy any oouotervailing duty or anti-dumping duty- (l) under section 9 or section 9A l>y reasons of exemption _ of such articles from duties or taxes borne by the like article when meant for consumption in the oountry of origin or exportation or -by reasons of refund of suoh duties or taxes; (i1) under srub-;section (1} of etd.Ch of ·these sections, on the import into India of any ai1k le from a member country of the World Trade Organisation or from a countey IW'i.t'h whom Government ..of India halS a most favoured nation agreement (hereinafter referred as a specified COWltry), unless in accor~ dance with the rules made under sub-section (2) of this section, a detennination has been made that import of such article into India causes or threatens material injury to any estalblished industry in India or materially retards the establishment of aniy industry in J.ndia; and (iii) under sub-section (2) of each of these sections, on import into In.dia of allfY ar,ti,cle from the specified coun­ tries unless in accordance with the rules made under sub­ section (2) of this sectibn, a preliminary findings half ~ made . of sub$idy or dumping and consequent injury to domestt.c industry; and a further detem11,nation bas also been made that I_ . S2of 1962. 52of 1962. TilE GAZETTE OF INDIA EXTRAORDINAJt.y 7 ------ :=::::-:=:...-:::~_:.::·. ::_-:::::.::::-- ~ du~ is. n~ to prevent injury being caused durin investigation; . , g the Provided that nothing contained in sub-cliauses (ii) and (iii) of d~use (b) shall apply if a counteryailing duty or an anti,. dumpmg dut!y has .b~n imposed on any article to prevent injury or threat of ~ m1ury to the domestic industry of ai third country exportmg the like articles to India· ' (c) the Central Govemmen,t may not tevy- (i) ~y countervailing duty under section 9, at any time, upon rece}pt of satisfactory votuntary undertakings from tho government of the exporting country or territory agreeing the eliminate or limit the &uil>sidy or take other measures concern· ing its effect, or the ex.porter agreeing to revise the price of the ,article and if the Central Government is satisfied that the injurious efieot. of t'he subsidy is eliminated thereby; <h) any anti-dumping duty under seotion 9A, at any time, upon receipt of satisfactory voluntary undertaking from. any C:J!\.')()rter to revise its :))ricC(S or to cease e~orts to the area in question at dumped pr~ and if the Central Government is satisfied that the injurious effect of dumping is eliminated by such action. .... · (2} The Central Government may, b-y notification in the Officiai Gazette, make rules for the purposes of this section, and without pre­ judice to the generality of the foregoing, such rules may provide foi the manner in which any investigation may be made for the purpnses of this section, the factors to which regard shall be at in any such investigation and for all matters connected with suoh investigation. . 9C. (1) An appeal against the order of determination or review Appeal. thereof regarding the existence, degree and effect of any sub'iidy or dumping i.n relation to import of any article sihall lie to the Customs, Excise and Gold (Control) AippeUate Tri!buual constituted under section 129 of the Custom<; Act, 1962 (hereinafter referred to as the Appellate Tribunal). (2} Every ,.:,peal under this sectilon shall be filed within ninefy ~ of the date of order under appeal: Provided that the Appell-ate Tribunal m.aiy entertain any appeal after the expiry of the said period of n:nety days, if it is satisfied that the appellant was pre:vented • by sufficient cause from filing the a~ in time. (3} The Appellate Tribunal may, after giving the parties to the ap?Cal, an opportunity of !being hearct, pasr; s,udh orders thereon a:s it thinks fit, confirming, modifying or annulling the • order appealed against. .. .. . · , . .. !'l 1 , ,, • • . . •,• • _ ! • : : ' \ _ ' ; ' ,i' : •,:-, l : • : • , • ~. •I '\ . • • , " . •- : • ._ , • • t ' ; .. ,· (4) The ~sioiis· ~ ·s~b-sections (1), (2), (5) and (6) of seotion 129C. of -the Customs Act, 1962 shall apply to the ~,pellate Tribunal 8 nm OAZBTTE OF INDIA EXTRAORDINARY [PART U-&ic. 1] in the discharge of its functions under ,this Act as they apply to it • the discharge ex its functions under the Olstom5 Act, 1962. 1 (5) Every appeal under sulx<iection (1) shall be heard by a Special Bench constituted lby the President of the Appellate TribooaJ for hearing such appeals and suoh Bench shall consist of the President and not less than two members and shall include one judicial member and one · technical member.'. SHANKER DAY AL SHARMA, President. K. L. MOHANPURIA, Secy. to the Govt. of India. PUNTl!D IIY 1'1111 ·W:;;;.-~-------------- AND •uausuliD ;;.,m CONTROLL OP INDIA PJtBSS, MINm ROAD, NEW DBLHI Ba OP PllBLICATIONS, DELHI, 1994, - 52 0f 1962,