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TAMIL NADU NATIONAL LAW SCHOOL

ANTI-DUMPING DUTIES

SUBMITTED IN THE PARTIAL FULFILLMENT OF B.A. L.L.B (Hons.), FIFTH SEMESTER

Submitted to: PROF. SUBBA RAO Submitted by: ABHIJEET SINGH RATHORE

Course Faculty: International Relations Registration no:

BA0140001
Course: B.A.LLB (Hons)

Year: Third, V Semester

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CONTENTS
CHAPTER-I

INTRODUCTION.................................................................................................................................................. 3

Rationale behind Dumping ................................................................................................................................. 3

Meaning of Anti-Dumping ................................................................................................................................. 4

Justifications for antidumping duty .................................................................................................................... 4

CHAPTER-II

ANTI-DUMPING LAW WITH SPECIFIC REFERENCE TO WTO & GATT ................................................. 6

CHAPTER-III

ANTI-DUMPING IN INDIA: INSTITUTIONAL ARRANGEMENT & EXISTING ADMINISTRATIVE

MECHANISM ....................................................................................................................................................... 9

Legal Framework Of Anti Dumping In India ..................................................................................................... 9

Anti-Dumping Duties ....................................................................................................................................... 10

Procedural Formalities For Applying For Anti Dumping Duties ..................................................................... 11

Regulatory Framework ..................................................................................................................................... 12

CHAPTER-IV

CASES LAWS

INTERNATIONAL CASES ................................................................................................................................ 14

1) European Communities Definitive Anti-Dumping Measures On Certain Iron Or Steel Fasteners From
China ................................................................................................................................................................ 14

2) European Union Anti-Dumping Measures on Certain Footwear from China ......................................... 15

INDIAN CASES................................................................................................................................................... 16

1) Designated Authority Anti-Dumping Directorate Ministry Of Commerce Vs. M/s. Haldor Topsoe A/s. ... 16

2) Chhotu Lal Daga (Prop. of Rohit Enterprises) Vs. Commissioner of Customs (Port) ................................. 17

CHAPTER-V

CONCLUSION .................................................................................................................................................... 20

BIBLIOGRAPHY ................................................................................................................................................ 21

WEBLIOGRAPHY .............................................................................................................................................. 21
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CHAPTER-I

INTRODUCTION

Dumping, is a pricing practice where a firm charges a lower price for exporting goods than it
does for the same goods sold domestically. It is said to be the most common form of price
discrimination in international trade. Dumping can only occur at places where imperfect
competition exist and where the markets are segmented in a way such that domestic residents
cannot easily purchase goods intended for export. Anti-dumping duties were initiated with
the intention of nullifying the effect of the market distortions created due to such unfair trade
practices adopted by aggressive exports. They are meant to be remedial and not punitive in
nature. As a method of protection to the domestic industries, anti-dumping duties are thus
levied on the exporting country which has been accused of dumping goods in another
country. As the anti-dumping duty is only meant to provide protection to the domestic firms
in the initial stages, as per the international laws, the antidumping legislations may last for a
maximum period of five years1. Anti-dumping measures are of two kinds2:

Anti-dumping duty

This is imposed at the time of imports, in addition to other customs duties. The purpose of
anti-dumping duty is to raise the price of the commodity when introduced in the market of the
importing country.

Price undertaking

If the exporter himself undertakes to raise the price of the product then the importing country
can consider it and accept it instead of imposing anti-dumping duty.

Rationale behind Dumping

Dumping occurs when firms start using price discrimination as a strategy for profit
maximisation. The condition mandatory for dumping to take place is the presence of an
imperfect market where price discrimination between markets is possible.

1
Article on Anti Dumping Regulations-A Boon or Bane by Radhika Joshi,
http://ccs.in/internship_papers/2006/Anti%20Dumping%20Regulations%20-%20Radhika.pdf
2
ibid
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Only if the above condition is satisfied is it profitable for the exporting firm to engage in
dumping. For any firm, price discrimination in favour of exports is more common because
the share of exports is usually lesser than the domestic demand. In the export market,
individual firms have lesser monopoly power and hence choose to keep prices lower in
foreign markets while charging higher prices for domestic markets. This can also be
explained through the price elasticity of demand for goods. In areas where the demand is
price inelastic, producers tend to charge a higher price. This is said to be the case in domestic
markets. In foreign markets, price elasticity of demand is elastic and hence prices are low.
Thus, if there is high elasticity on export sales than on domestic sales, firms will dump.

Often, dumping is mistaken and simplified to mean cheap or low priced imports. However, it
is a misunderstanding of the term. Dumping implies low priced imports only in the relative
sense (relative to the normal value3), and not in absolute sense. Import of cheap products
through illegal trade channels like smuggling does not fall within the purview of anti-
dumping measures.

Meaning of Anti-Dumping

Anti-dumping can be seen as a protective device available to the states against problems
associated with the free trade. In the recent years a large number countries have become
frequent users of anti-dumping. Many of the heaviest anti-dumping users are countries who
did not even have an anti- dumping statute a decade ago.

Anti- dumping measures are not only legal but they are also flexible in usage. Further, anti-
dumping duties can be presented not as protection but as encounter against unfair
competition.

Justifications for anti-dumping duty

Anti-Dumping duties were introduced by the developed countries to protect their industries
against the low priced imports. Developing countries supported the inclusion of the provision
relating to anti-dumping duties under GATT because they wanted to levy of anti-dumping
duties to be under international regulation.

In free trade, firms are allowed to charge different rates in different markets. The result would
be that firms would charge lower prices in foreign leading to material injury to the domestic

3
Normal value is the price at which the like articles are sold in the Domestic Market of the exporter.
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producers in the foreign market. Had price discrimination taken place by a monopoly firm
within one economy, the government would have intervened to stop consumer exploitation
by enforcing an Act similar to the MRTP Act, in India. Hence, in the international context, it
is the anti-dumping duty that protects the domestic producers initially and consumers in the
long run.

Usually, the intentions of charging such low prices to foreign consumers is to be able to wipe
out the domestic industries and eventually acquire monopoly power in the foreign market (i.e.
using predatory pricing). Thus it is on the ground of protecting the domestic industries that
the anti-dumping duties have been justified.
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CHAPTER-II

ANTI-DUMPING LAW WITH SPECIFIC REFERENCE TO WTO & GATT

The Agreement on Implementation of Article VI of the General Agreement on Tariffs and

Trade, 1994 (hereinafter referred to as the Agreement) governs the application of anti-
dumping measures by Members of the WTO. The provisions of the Agreement were first
negotiated during the Kennedy Round (1967) and later substantially revised during the Tokyo
Round (1979) of GATT negotiations. WTO rules allow the member countries to opt for anti-
dumping measures with specific stipulations. If a country today has anti-dumping
legislations, it must be consistent with the agreement. Anti-dumping measures are unilateral
remedies which may be applied by a Member after an investigation and determination by that
Member, in accordance with the provisions of the Agreement, if it is felt that an imported
product is dumped and that the dumped import is causing material injury to a domestic
industry which produces a similar product.4 The Agreement applies to trade in goods only.
Trade in services is not covered by this agreement.

The agreement contains provisions with respect to the following:

The Agreement sets out rules for the conduct of anti-dumping investigations,
including initiation of cases, calculation of dumping margins, the application of
remedial measures, injury determinations, enforcement, reviews, duration of the
measure and dispute settlement.
The Agreement provides for the right of contracting parties to apply anti-dumping
measures, i.e. measures against imports of a product at an export price below its
normal value (usually the price of the product in the domestic market of the
exporting country) if such dumped imports cause injury to a domestic industry in the
territory of the importing contracting party5.
The Agreement provides for greater clarity and more detailed rules in relation to the
method of determining whether a product is dumped, the criteria to be taken into
account in determining whether dumped imports cause injury to a domestic industry,
and also the procedures to be followed in initiating and conducting anti-dumping
investigations.6 This investigation can initiate only on receiving an application,

4
Article 1
5
Article 3.5
6
Article 6
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containing the nature and extent of harm to the domestic industry being caused and
the complete description of the dumped products, from the domestic producers of the
similar product. If authorities decide to proceed to initiate an investigation, the
authorities shall notify the government of the exporting Member concerned.7
A new provision requires the immediate termination of an anti-dumping investigation
in cases where the authorities determine that the margin of dumping is de-minimis
(which is defined as less than 2 per cent, expressed as a percentage of the export
price of the product) or that the volume of dumped imports is negligible (generally
when the volume of dumped imports from an individual country accounts for less
than 3 per cent of the imports of the product in question into the importing country).8
It contains provisions relating to implementation and duration of anti-dumping
measures9. An anti-dumping duty shall remain in force only as long as and to the
extent necessary to counteract dumping which is causing injury.10 The Agreement
lays the Sunset Provision under which all anti-dumping measures shall expire five
years after the date of imposition (or the most recent review), unless a determination
is made by the authorities that, in the event of termination of the measures, dumping
and injury would be likely to continue or recur.11 The agreement also provides for a
judicial, arbitral or administrative review for the duration such imposition.12
From many perspectives, the most significant feature of the WTO anti-dumping
framework is its dispute settlement procedure, which greatly strengthens the ability
of affected nations to challenge anti-dumping actions by other member nations. The
Agreement clarifies the role of dispute settlement panels in disputes relating to anti-
dumping actions taken by domestic authorities. Under the WTO's DSB (Dispute
Settlement Body), a case generally has to first proceed through a panel stage, then an
appeal to the Appellate Body. The Dispute Settlement Body has to accept or reject
the Appellate Body report within 30 days and rejection is only possible by consensus.
The Agreement strengthens the requirement for the importing country to establish a
clear causal relationship between dumped imports and injury to the domestic

7
Article 12
8
Article 5.8
9
Article 11
10
Id 9 Para 1
11
Id 9 Para 3
12
Article 13
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industry13 by evaluating all relevant economic factors related to the industry

concerned.
Provisions on the application of provisional measures14 are given. These measures
are applied when an investigation as per Article 5 has been initiated or a preliminary
affirmative determination has been made of dumping and consequent injury to a
domestic industry
Provisions in respect of the use of price undertakings15 in anti-dumping cases have
been strengthened. Here proceedings may be suspended or terminated without the
imposition of provisional measures or anti-dumping duties upon receipt of
satisfactory voluntary undertakings from any exporter to revise its prices or to cease
exports to the area in question at dumped prices so that the authorities are satisfied
that the injurious effect of the dumping is eliminated.
The agreement provides that the provisional measures and anti-dumping duties shall
only be applied to products which enter for consumption after the time when the
decision for imposition of these measures enters into force. However, where a final
determination of injury is such that the effect of the dumped imports would, in the
absence of the provisional measures, have led to an injury to domestic producers,
anti-dumping duties may be levied retroactively for the period for which provisional
measures have been applied.16

13
According to article 4 Domestic industry refers to the domestic producers as a whole of the like products or
to those of them whose collective output of the products constitutes a major proportion of the total domestic
production of those products.
14
Article 7
15
Article 8
16
Article 12
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CHAPTER-III

ANTI-DUMPING IN INDIA: INSTITUTIONAL ARRANGEMENT & EXISTING

ADMINISTRATIVE MECHANISM

India is a founding member of the GATT and the WTO. Until the 1990s, India was not
affected by anti-dumping policies as her markets were sufficiently protected by a high tariff
rate and quantitative restrictions. However, after Liberalisation in 1991, India has become a
major user of Anti-dumping policies as those used by developing countries. Indias anti-
dumping laws are in compliance with their WTO treaty obligations and are hence based on
the Agreement on Implementation of Article VI of GATT 199917. India has implemented,
rather than challenged, the existing international legal standards which were originally
drafted to serve American and European interests. In fact, despite the large numbers of
antidumping measures implemented by India, no WTO case has ever been brought against
Indias anti-dumping laws.18

LEGAL FRAMEWORK OF ANTI -DUMPING IN INDIA

Section 9A of the Customs Tariff Act, 1975 (hereinafter referred to as the Act) as amended
in 1995 and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping
Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred
to as the Rules) framed hereunder, form the legal basis for anti-dumping investigations and
for the levy of anti-dumping duties. These are in consonance with the WTO Agreement on
anti-dumping measures. These rules form the legislative framework for all matters relating to
dumping of products, which include the substantive rules, rules relating to practice,
procedure, regulatory mechanism and administration.

The principle of imposition of anti-dumping duties was propounded by the Article VI

of General Agreement on Tariffs & Trade (GATT) 1994 Uruguay Round
Indian legislation in this regard is contained in Section 9A and 9B (as amended in
1995) of the Customs Tariff Act, 1975.

17
Press Information Bureau, Anti-dumping checking unfair trade practices, Available at
http://pib.nic.in/focus/fomar99/wto-7.pdf
18
Mark Wu , Antidumping in Asias Emerging Giants, Volume 53, Number 1, Winter 2012, Harvard
International Law Journal
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Further regulations are contained in the Anti-Dumping Rules [Customs Tariff

(Identification, Assessment and Collection of Anti-Dumping Duty on Dumped
Articles and for Determination of Injury) Rules, 1995]
The Ministry of Commerce, Government of India is the Designated Authority for
conducting investigations pertaining to Anti-Dumping issues and forwarding its
recommendations.
The responsibility for Imposition and Collection of duties as imposed /recommended
by the Adjudicating authority is upon the Ministry of Finance, Government of India.

ANTI-DUMPING DUTIES

The relief to the domestic industry against dumping of goods from a particular country is in
the form of anti-dumping duty imposed against that country, which could go up to the
dumping margin. Under the WTO arrangement, the national authorities can impose duties up
to the margin of dumping i.e. the difference between the normal value and the export price.
The Indian law also provides that the anti-dumping duty to be recommended / levied shall not
exceed the dumping margin. An anti-dumping duty imposed under the Act unless revoked
earlier remains in force for 5 years from the date of imposition. The Designated Authority by
the process of mid review is empowered to review the need for the continued imposition of
the anti-dumping duty from time to time. Such a review can be done suo-moto or on the basis
of request received from an interested party in view of the changed circumstances. 19 The
WTO Agreement as well as the Indian law provides that the injured domestic industry is
permitted to file for relief under both anti-dumping and countervailing duties. However, no
article will be subjected to both countervailing and anti-dumping duties to compensate for the
same situation of dumping.

ALTERNATIVE REMEDIES

The remedy against dumping is not always in the form of anti-dumping duty. The
investigation may be terminated or suspended after the preliminary findings if the exporter
concerned furnishes an undertaking to revise his price to remove the dumping or the injurious
effect of dumping as the case may be. No anti-dumping duty is recommended on such
exporters from whom price undertaking has been accepted.20

19
Rule 23(1) of the Anti Dumping Rules
20
Rule 15 of the Anti Dumping Rules
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INTERIM REMEDIES

An interim relief in the form of a provisional anti-dumping duty, pending the finalization of
investigation proceedings, can also be provided to the affected domestic industry. The
provisional duty can be imposed only after the expiry of 60 days from the date of initiation of
investigation and will remain in force only for a period not exceeding 6 months, extendable to
9 months under certain circumstances.21 If the final duty levied is less than the provisional
duty which has already been levied and collected, the differential amount already collected as
provisional duty shall be refunded. If the final duty imposed is more than the provisional duty
already imposed and collected, the difference shall not be collected.22

RETROSPECTIVE ANTI-DUMPING DUTIES

Anti-dumping duty can also be levied on a retrospective basis in cases where injury is caused
due to massive dumping of an article imported in a relatively short time, which in the light of
the timing and the volume of imported article dumped and other circumstances, is likely to
seriously undermine the remedial effect of the anti-dumping duty liable to be levied.
However, the anti-dumping duty cannot be levied retrospectively beyond 90 days from the
date of issue of notification imposing duty.23

PROCEDURAL FORMALITIES FOR APPLYING FOR ANTI-DUMPING DUTIES

Applications for anti-dumping protection can be made by or on behalf of the concerned

domestic industry to the Designated Authority (officer of level of Additional Secretary to the
Government of India who heads the DGAD) in the Dept. of Commerce for an investigation
into alleged dumping of a product into India. As per the regulations set by the DGAD, an
application for protection can be made either by an individual petitioner (domestic producer)
commanding 25% of the production capacity of the entire market or by a group of producers
who collectively hold 50% of the total market capacity.

Any industry is subject to protection if and only if there is sufficient evidence furnished by
the petitioner/s regarding;

Dumping of goods in question;

21
Rule 13 of the Anti Dumping Rules
22
Rule 21 of the Anti Dumping Rules
23
Section 9A (3) of the Customs Tariff Act, 1975
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Injury to the domestic industry; and

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

Broadly, injury may be analysed in terms of the volume effect and price effect of the dumped
imports. Economic indicators having a bearing upon the state of industry as the magnitude of
dumping, and the decline in sales, selling price, profits, market share, production, utilisation
of capacity etc are some of the parameters by which injury to the domestic industry is to be
assessed. Existence of dumping can be estimated by calculating the dumping margin which is
the difference between the Normal Value of the like article and the export Price of the
product under consideration.

Dumping margin= Normal value- Export price

The normal value is the comparable price at which the goods under complaint are sold, in the
ordinary course of trade, in the domestic market of the exporting country or territory while
the export price of goods imported into India is the price paid or payable for the goods by the
first independent buyer.

REGULATORY FRAMEWORK

Anti-dumping, anti-subsidies & countervailing measures in India are administered by the

Directorate General of Anti-dumping and Allied Duties (DGAD) functioning in the
Department of Commerce in the Ministry of Commerce and Industry and the same is headed
by the Designated Authority. The Central Government may, by notification in the Official
Gazette, appoint a person not below the rank of a Joint Secretary to the Government of India
or such other person as that Government may think fit as the Designated Authority.24

The Designated Authority is a quasi-judicial authority notified under the Customs Act, 1962
which is designated to initiate necessary action for investigations and subsequent imposition
of anti-dumping duties.25 A senior level Joint Secretary and Director, four investigating
officers and four costing officers assist the DGAD. Besides, there is a section under the

24
Rule 3 (1)
25
Though the WTO Agreement does not require the authorities for dumping and injury determination to be
distinct and separate, national practices in this respect van`. Generally, while the developing countries have
single authority to deal with both dumping and injury, developed countries like the US, Canada and the EU
have elaborate anti-dumping machinery
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DGAD headed by the Section-Officer to deal with the monitoring and coordination of the
functioning of the DGAD.

The Designated Authoritys function, however, is only to conduct anti-dumping/anti-subsidy

& countervailing duty investigation and make recommendation to the Government for
imposition of anti-dumping or anti-subsidy measures. Such duty is finally levied by a
Notification of the Ministry of Finance.

The law provides that an order of determination of existence, degree and effect of dumping is
appealable before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT),
formerly the (Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT)) - a judicial
tribunal, within 90 days. It reviews final measures and is independent of administrative
authorities. This is consistent with the WTO provision of independent tribunals for appeal
against final determination and reviews.

However, many petitions are also filed before the High court (under Article 226 of the
Constitution) and also the Supreme Court of India. Due to large pendency in both these
courts, it causes disruptions in trade during the interim period. Thus there have been demands
for a specially designated bench in the Supreme Court for this purpose.26

26
Raju, K. D., World trade Organization Agreement on Anti-dumping, Wolter Kluwer Law & Business Series,
Aspen Publishers, Inc., p. 233
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CHAPTER-IV

CASES

INTERNATIONAL CASES

1) European Communities Definitive Anti-Dumping Measures On Certain Iron Or Steel

Fasteners From China27

On December 4, 2008, within the European Union, 15 members were in favor and 12 votes
were against the adoption of imposing a five-year average of 80 percent anti-dumping duties
on the screw and nut products from China. In 2009, the EU decided to impose anti-dumping
duties of up to 87 percent for the next five years on fasteners imported from China and
required Chinese exporters to prove that they meet with the single duty requirements when
they responded to anti-dumping cases, bringing a heavy burden and unfair treatment to
Chinese companies.

On January 28, 2009, the Ministry of Commerce spokesman Yao Jian made a speech on the
EU's final decision regarding anti-dumping measures on China's export of fasteners. Yao said
the Chinese government and industries had expressed strong dissatisfaction and that there
were many discrepancies in the European Union's case filing, investigation and adjudication
process with regard to WTO rules. He added that the EU anti-dumping practice, lacking
fairness and transparency, leaned towards trade protection, which greatly hurt the legitimate
rights of Chinese fastener enterprises. China resorted to the WTO to resolve the issue.

FINDINGS OF THE PANEL

The WTO set up an expert panel on Oct 23, 2009 after China initiated the WTO case on July
31, 2009. On July 15, 2011, the WTO issued a final ruling on the case concluding that the
section 5, Article 9 of the EU Anti-dumping Law against China was in violation of WTO
rules; the anti-dumping measures taken against Chinese fastener by the European Union in
January 2009 were contrary to the provisions of the WTO Anti-Dumping Agreement, and
that the EU should withdraw the anti-dumping order. The WTO ruled the EU's single duty
requirements and practices are discriminatory and violated WTO rules.

27
DISPUTE DS397
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2) European Union Anti-Dumping Measures on Certain Footwear from China28

The shoe dumping case was the second brought by China against the EU at the WTO. China
launched the shoe case in February 2010 after the EU decided to extend the duties on shoes
from China and Vietnam, after shoemakers in Spain and Italy complained they could not
compete against the cheap imports. The duties also faced opposition within Europe, since
they forced consumers to pay more for their shoes. The Federation of the European Sporting
Goods Industry, whose members include companies such as Adidas, Puma and Nike,
launched a legal case against the European Union complaining they had suffered losses as a
result of the duties on shoes from China and Vietnam.

FINDINGS OF THE PANEL

The WTO dispute panel largely backed the complaint by China that anti-dumping duties
imposed by the European Union (EU) on certain leather footwear imports breached global
rules and held that the anti-dumping duties were inconsistent with the EU's obligations under
the WTO and that some aspects of the original investigation and expiry review were out of
step with the anti-dumping agreement.

The WTO panel also upheld China's challenge to the EU's method for calculating the anti-
dumping duties, saying the EU's approach systematically produced a result which punished
normal pricing behaviour. It also concluded that the EU calculated and imposed the anti-
dumping duties in a way which impermissibly discriminated against the vast majority of
Chinese suppliers solely because they were Chinese, thus violating the cornerstone non-
discrimination provision of the WTO Agreement.

28
DISPUTE DS405
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INDIAN CASES

1) Designated Authority Anti-Dumping Directorate Ministry Of Commerce Vs. M/s.

Haldor Topsoe A/s.29

FACTS

Catalysts were imported from Denmark. A complaint of dumping was lodged with the
designated authority. The designated authority undertook to cause investigation. However,
the exporter did not furnish information about the export price of the catalyst to the other
third countries when no domestic sales were made in them.

The exporter insisted that normal price be determined on cost of production basis. The
authority rejected this. The designated authority, instead, proceeded to rely upon the price of
like catalyst sold by a German manufacturer. On this basis, the designated authority gave its
finding and recommended imposition of anti-dumping duty. It recommended two rates,
depending upon the end-use of the catalysts in India.

The exporter challenged the finding in appeal to the tribunal. It was argued that the anti-
dumping duty is country-specific and exporter-specific and therefore, the price of the German
exporter cannot be relied upon. The tribunal accepted the argument of the appellant. The
tribunal concluded that the action of the designated authority is clearly in violation of the
specific provisions contained in section 9A of the Act.

Even though the appellant did not co-operate to provide the information, the tribunal refused
to be persuaded to recognize the price of another exporter for like article. According to the
tribunal, it was wrong for the Central Government to extend the time of one year for
completing the investigation, without providing an opportunity to the appellant.

Yet another question was agitated in appeal. Was it legal to recommend two rates of anti-
dumping duty for the same product? The tribunal answered the question in the negative,
saying, We are not able to up hold the action of the designated authority.

The designated authority decided to contest the order of the tribunal in the Supreme Court.

29
AIR2000SC2556
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JUDGEMENT

The judgment of the apex court set aside the order of the tribunal on more than one count. On
the basic question whether reliance upon the price of the other exporter falls within the
domain of correctness, the Supreme Court reversed the finding of the tribunal. The court
rejected the theory of exporter-specific or country-specific argument. The court observed:

By holding anti dumping duty to be exporter-specific, the tribunal could not have restricted
the scope of the investigation only to materials to be produced by a party against whom an
investigation is being conducted. Such an interpretation of the statute is wholly contrary to
the very scheme of the statute.

It felt that the legal provisions did not call for any doubt or confusion.

On a careful reading of section 9A of the Tariff Act and Rule 6 of the rules, it is clear that
the statute has no where put such a restriction on the investigating authority. On the
contrary, the perusal of the said provisions clearly shows that the normal value will have to
be determined with reference to comparable price, the word comparable price in the context
can only be with reference to the price of similar articles sold under similar circumstances
irrespective of the manufacturer.

The apex court rejected the tribunal's finding on the question of two different rates of anti-
dumping duty. The Supreme Court observed that the tribunal did not give any specific reason
why the two different margins cannot be made applicable based on different import duties
applicable to the concerned catalyst.

2) Chhotu Lal Daga (Prop. of Rohit Enterprises) Vs. Commissioner of Customs (Port)30

FACTS

Central Government imposed anti-dumping duty on Compact Fluorescent Lamps (CFL)

originating in or exported from China under Notification No. 128/2001-Cus. Dated
21.12.2001. Imposition of anti-dumping duty was made on a provisional basis pending final
determination and such provisional duty was effective up to and inclusive of 20.06.2002. The
Notification provided for separate anti-dumping duty on CFL without choke and with choke.

30
2008(120)ECC277
 P a g e | 18

The same Notification also imposed anti-dumping duty on CFL without choke originating in
or exported from Hong Kong. Subsequently, definitive anti-dumping duty was imposed by
Notification No. 138/2002-Cus. Dated 10.12.2002. The anti-dumping duty on CFL with
choke originating in or exported from Hong Kong was imposed for the first time under
Notification No. 138/2002. The appellant imported the impugned CFL with choke of Chinese
origin from a supplier in Hong Kong. The bill of entry was noted on prior entry basis on
02.12.02 and the vessel carrying the said goods was granted Entry Inwards on 09.12.2002.
The main issue in dispute in this case is whether the anti-dumping duty is payable on such
imports made during the interregnum, i.e., between 21.06.2002 and 09.12.2002, after the
provisional duty lapsed but before the definitive duty was notified.

JUDGEMENT

The Supreme Court noted that the erstwhile GATT and its successor WTO, through multi-
lateral negotiations, have been bringing down tariff barriers and liberalising international
trade. However, to prevent unfair trade under liberalised trading systems, WTO has
mandated trade remedy measures such as anti-dumping duty against dumped imports,
countervailing duty against subsidized imports and safeguard measures against surge in
imports. Such measures are necessary to prevent unfair trade by foreign suppliers to the
detriment of domestic industry in the absence of a protective import tariff wall. That anti-
dumping duty is not so much of a revenue measure, is evident from the fact that some of the
WTO member-countries have made provisions for making payments from the collected anti-
dumping duty to the injured domestic industry.

The appellant contended that since the import has taken place from a supplier in Hong Kong,
in terms of paragraph 2 of the Notification No. 138/2002, the anti-dumping duty for CFL
with choke exported from Hong Kong, should be charged only with effect from the date of
the Notification i.e. 10.12.02. The Supreme Court rejected this contention. In the case of the
appellant, the goods were of Chinese origin and hence, these satisfy the condition of
'originating in, or exported from China', notwithstanding the fact that they were re-exported
from Hong Kong. Since the anti-dumping duty in respect of CFL with choke originating in,
or exported from China was levied from 21.12.2001, thus impugned import made by the
appellant had to pay the anti-dumping duty notified under Notification No. 138/2002.

The Appellant also pleaded that the quantum of anti-dumping duty was very high and he was
not in a position to pay the same. Rejecting his contention, the court held that one of the
 P a g e | 19

purposes of levying anti-dumping duty on a provisional basis for a period of six months on
preliminary determination is to make aware all exporters and importers concerned regarding
the initiation and continuance of anti-dumping investigation against dumped imports from
specific countries/exporters. In any case, the purpose of anti-dumping duty is to remove the
injury caused by dumped imports, the plea that the anti-dumping duty is excessive and that
the same cannot be borne by the importer, cannot be a basis for not demanding it from the
subject imports.
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CHAPTER-V

CONCLUSION

Today large numbers of countries have become frequent users of anti-dumping measures.
Anti-dumping has unique combination of political and economic manipulability. During the
last fourteen years of WTO, the use of anti- dumping has become rampant that it is criticized
as threatening to limit the market access achieved under GATT/WTO trade negotiations over
the last fifty years or so. On the one hand, there is fear that anti-dumping measures are used
for protectionist purpose. On the other hand, many support it because it can be used as
encounter against unfair trade practices.

It has been seen that Anti-dumping policies are being initiated mostly by major players in the
business. These dominants producers lobby and litigate antidumping cases. In the process,
they incur huge expenditure sacrificing economic efficiency. Thus, anti-dumping policies that
are designed to ensure fair competition and improve economic efficiency may in fact reduce
them. To minimise the manipulation of the law for protectionist purpose and to limit
discretionary powers of the authorities, more explicit rules should be developed and
definitions of different concepts used in the process should be given clearly and the procedure
of determining dumping should be made more transparent.
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BIBLIOGRAPHY

1. Aggarwal, Aradhna., The anti-dumping agreement and developing countries, Oxford

University Press, (New Delhi : | New York )

2. Raju, K. D., World trade Organization Agreement on Anti-dumping, Wolter Kluwer

Law & Business Series, Aspen Publishers, Inc.

3. Agreement on implementation of Article VI of the General Agreement on Tariffs and

Trade 1994

WEBLIOGRAPHY

1. Mark Wu , Antidumping in Asias Emerging Giants, Volume 53, Number 1, Winter

2012, Harvard International Law Journal, Available at
www.harvardilj.org/2012/01/issue_53-1_wu/

2. Article on Anti Dumping Regulations-A Boon or Bane by Radhika Joshi,

http://ccs.in/internship_papers/2006/Anti%20Dumping%20Regulations%20-%20Radhika.pdf
3. www.cci.gov.in/

4. www.manupatra.com

5. www.legalserviceindia.com

6. www.indlaw.com