Anti- Dumping- Divergence with Legal Perspective
The Directorate General of Anti-Dumping and
Allied Duties has issued a notification Dated May 22nd,
2014 (the “Notification”) recommending Anti Dumping on imports of Solar
Cells whether or not assembled partially or fully in Modules or Panels or on
glass or some other suitable substrates, originating in or exported from
Malaysia, China PR, Chinese Taipei and USA.
The said notification/ Disclosure on
Anti-Dumping is based on the Following Legal Provisions:
1.
Custom
Tariff Act 1975- Section 9A, 9B as amended from time to time (hereinafter also
referred to as the Act);
2.
The
Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty
on Dumped Articles and for Determination of Injury) Rules,1995 thereof, as
amended from time to time (hereinafter also referred to as the Rules);
3.
Article
VI of GATT 1994;
4.
Agreement
on Implementation of Article VI of the General Agreement on Tariff and Trade
1994 (“WTO ADA);
5.
The
Customs Act, 1962.
Findings in the Notification:
The Directorate General of Anti-Dumping (DGAD)
in its final findings recommended that anti-dumping duties of up to $0.48 per
watt on solar cells coming from the US and $0.81 per watt from China. From
Malaysia and Taiwan, it is $0.62 per watt and $0.59 per watt, respectively.
Legal Glitch:
Null Effect of alleged dumping
Rule 4 of the Anti-Dumping Rules:
“4. Duties of the designated authority. - (1) It shall be the duty of
the designated authority in accordance with these rules-
(a) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article;
(b) to identify the article liable for anti-dumping duty;
(c) to submit its findings, provisional or otherwise to Central
Government as to-
(i) normal value, export price and the margin of dumping in relation to
the article under investigation, and
(ii) the injury or threat of injury to an industry established in India
or material retardation to the establishment of an industry in India consequent
upon the import of such article from the specified countries.
(d) to recommend the amount of anti-dumping duty equal to the margin of
dumping or less, which if levied, would remove the injury to the domestic
industry, and the date of commencement of such duty; and
(e) to review the need for continuance of anti-dumping duty.”
The
Designated Authority has erred in interpreting the effect of dumping of the
impugned Articles which is contrary to the provisions mentioned in clause 1(a)
of Rule 4 of the Anti Dumping. Pertinently, the Government of India has
prescribed that Solar Power Developers shall compulsorily meet their
requirement of Solar Panels from the Domestic Solar Panel Producers for at
least of 50% of the targeted creation of Solar Plant Production Facilities in
the Country, through the policy of reserved quantities for ‘Domestic Content
Requirement’ (DCR), and thus the manufacturing capability is just adequate enough
to deliver the cell/ modules to such Facilities/plant under the DCR Category.
Eventually, USA has already challenged this benefit before WTO; while the issue
is pending before WTO, adding anti dumping duty at this stage in an illegal
manner will make matter very difficult to defend in international forum.
Additionally,
Authority should be able to do the same while providing the economic benefits
of greater certainty and less risk to importers and domestic manufacturers
whose businesses rely on imported merchandise. Further, the extended
uncertainty about the final level of duty liability is particularly burdensome
for small and medium-sized enterprises.
Hence, it is apparent
that the actual purpose of the aforesaid rule i.e., to protect the domestic industry,
has been achieved by the efforts done by the Government of India and such that
the alleged dumping has null effect on the domestic industry.
Pertinently,
the designated authority has failed to note that the change in prices and
import volumes during the investigation is merely because the domestic industry
has filed the petition to merely harass the foreign firm and to gain actual
trade protection.
Individual Determination
Rule 17 (3) of Anti Dumping Rules:
“(3) The designated authority shall
determine an individual margin of dumping for each known exporter or producer
concerned of the article under investigation:
Provided that in cases where the number of exporters, producers,
importers or types of articles involved are so large as to make such
determination impracticable, it may
limit its findings either to a reasonable number of interested parties or
articles by using statistically valid samples based on information available at
the time of selection, or to the largest percentage of the volume of
the exports from the country in question which can reasonably be investigated,
and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably
be made in consultation with and with the consent of the exporters, producers
or importers concerned:
Provided further that the designated authority shall, determine an
individual margin of dumping for any exporter or producer, though not selected
initially, who submit necessary information in time, except where the number of
exporters or producers are so large that individual examination would be unduly
burdensome and prevent the timely completion of the investigation.”
Procedure followed by the Designated Authority Finding
in (page 3 of the Notification):
“ iii. Since a large number of producers/exporters from the subject countries
expressed interest to participate in the subject investigation, the Authority
took resort to sampling in terms of Rule 17(3) of the Anti-dumping Rules.”.
Page 41, 42 and 43 of the Notification
“19. The various submissions made by the interested parties with regard
to the scope of domestic industry & standing and considered relevant by the
Authority are examined and addressed as follows:
i. The application has been filed by Solar Manufacturer’s Association of
India on behalf of three of its member companies namely M/s Indosolar Ltd (100%
EOU), M/s Jupiter Solar Power Limited (DTA unit) and M/s Websol Energy Systems
Ltd (SEZ unit). As claimed by the
applicant there are thirty nine other producers of the product under
consideration in India out of which 21 are the members of the association and
18 are not the members of the association. Majority of such producers are
engaged in manufacturing modules, mostly importing crystalline cells from the
subject countries. While, a
few domestic producers including the domestic industry manufacture crystalline
cells, none of them, except Moser Baer, have the capacity to manufacture thin
films. Even Moser Baer, which holds the capacity to manufacture thin films, is
a major importer of subject goods and is stated to have manufactured a very
nominal quantity of thin films during the POI. It has been also
submitted by the applicant that all other producers in India have imported the
subject goods from subject countries during the POI and such producers who have
imported the subject goods should be excluded for the purpose of determination
of standing under Rule 2 (b).The Authority notes that none of the interested
parties including the other domestic producers have disputed this position with
substantiated information.
ii. As already elaborated in this final finding, prior to the initiation
of the investigation, Authority had also obtained the details regarding the
producers of the subject goods in India from the concerned administrative
department. As per the information
provided by the concerned administrative department, there are 42 domestic
producers of the subject goods including the applicant industries.
iii. Following the initiation of investigations another producer in
India i.e Moser Baer who originally supported the application and who has got
two SEZ units to produce the subject goods namely Moser Baer Photovoltaic Ltd
and Moser Baer Solar systems Pvt Ltd provided the relevant injury information
and requested the Authority to consider them in the scope of domestic industry
even though they have admittedly imported the subject goods from subject
countries during the POI. In the
event of Moser Baer being a major importer of the subject goods from the
subject countries during the POI, Authority does not consider them as domestic
industry under the Rules.
Similarly, M/s Tata BP Solar India Ltd, one of the supporters of the
application, also submitted some injury information post initiation. However,
the Company acknowledged to have imported subject goods from the subject
countries during the POI. In view of the above position, the Authority does not
consider them also as domestic industry under the Rules.
iv. The Authority notes that M/s Indosolar Ltd (100% EOU), M/s Jupiter
Solar Power Limited (DTA unit) and M/s Websol Energy Systems Ltd (SEZ unit)
jointly constitute domestic industry for the purpose of present investigation.
The Authority also notes from the submissions of the applicant that rest of the
producers have imported the subject goods from the subject countries during the
POI. Also, none of such producers haven’t come before the Authority by
providing any information even though ample opportunities provided to them as
per the rules apart from Moser Baer. And no information to refute the claims of
the applicant either have been provided by such known other producers in India.
The Production by the three
participating producers holds 11.96% of total Indian production. However, 11.96% production by these three
producers should be considered as constituting 100% as rest of the producers do
not qualify to constitute domestic industry considering the imports made by
such producers. Thus, the production of the applicant domestic producers as
provided herein above accounts for “a major proportion” in the total production
of the product under consideration in India.”
By exclusion
of other Domestic producers without examination, the Designated Authority has
failed to examine whether imports made by the Indian producers is so
significant that the producers need to be excluded from the scope of the
Domestic Industry itself and simultaneously failed to apply Rule 2(b)
prevailing as of now which does not provide automatic exclusion of such
producers and the issue requires case to case consideration. Further, with
almost 98% of demand catered by imports during the period considered by
Designated Authority, there is hardly any presence of the domestic industry in
India. It is also apparent from the
above finding of the authority that the thin film is not currently being
produced by any of the domestic producers.
Rule 2(b) and Rule 11 of Anti-Dumping Rules:
“2(b) “domestic industry” means the domestic producers as a whole
engaged in the manufacture of the like article and any activity connected
therewith 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 dumped
article or are themselves importers thereof in which case such producers may be
deemed not to form part of domestic industry.
Provided that in exceptional circumstances referred to in sub-rule (3) of
Rule 11, the domestic industry in relation to the article in question shall be
deemed to comprise two or more competitive markets and the producers within
each of such market a separate industry, if -
(i) the producers within such a market sell all or almost all of their
production of the article in question in that market; and
(ii) the demand in the market is not in any substantial degree supplied
by producers of the said article located elsewhere in the territory;
Explanation. - For the purposes of this clause,-
(i) 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 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.
(ii) 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.”
“11. Determination of injury. - (1) In the case of imports from
specified countries, the designated authority shall record a further finding
that import of such article into India causes or threatens material injury to
any established industry in India or materially retards the establishment of
any industry in India.
(2) The designated authority shall determine the injury to domestic
industry, threat of injury to domestic industry, material retardation to
establishment of domestic industry and a causal link between dumped imports and
injury, taking into account all relevant facts, including the volume of dumped
imports, their effect on price in the domestic market for like articles and the
consequent effect of such imports on domestic producers of such articles and in
accordance with the principles set out in Annexure II to these rules.
(3) The designated authority may, in
exceptional cases, give a finding as to the existence of injury even where a
substantial portion of the domestic industry is not injured, if-
(i) there is a concentration of
dumped imports into an isolated market, and
(ii) the dumped articles are causing
injury to the producers of all or almost all of the production within such
market.”
By contrast,
the word "exceptional" denoted something "RARE" or
"deviating from the norm". Anti-dumping might have been intended to
be "exceptional" in the sense that every dumping should not be
subject to such measures because unfair trade should be the exception rather
than the norm.
Like Articles
Rule 2 (d) of Anti-Dumping Rules
“(d) “like article” means an article which is identical or alike in all
respects to the article under investigation for being dumped in India or in the
absence of such an article, another article which although not alike in all
respects, has characteristics closely resembling those of the articles under
investigation;”
It is
implicit from the above mentioned definition that a like product have
characteristic closely resembling each other in terms of parameters such as
physical & chemical characteristics, manufacturing process &
technology, functions & uses, products specifications, pricing,
distribution & marketing and tariff classification of the goods. By
contrast alternate articles are those who may have comparable or entirely
different characteristics in terms of parameters such as physical &
chemical characteristics, manufacturing process & technology, product
specifications, distribution & marketing and tariff classification of the
goods and yet perform the same or
similar functions; For example pen and pencil The designated authority has failed to
differentiate and distinguish between the concept of alternate product and like
product.
Importantly, the
designated authority has erred in appreciating that the decision of the US
brought to the notice of the Designated Authority concerns the issue of whether
crystalline modules and thin film constitute like article. After elaborate
investigation, the US DOC held that these do not constitute like article. No
part of the decision by US DOC mentioned that these do not constitute like
article because the scope the product under consideration. However, the
Designated Authority has selectively adopted the US and EU determination in the
impugned notification. Despite specifically pointing out that the US
authorities did not treat crystalline modules and thin film products as like articles,
the designated authority has overlooked and ignored the same.
Admittedly, the
authority has acknowledge that the crystalline and thin technologies differ in
terms of technology, usage of raw material and production process, plant and machinery,
balance of system and efficiency. In
addition, the Authority also acknowledges the fact that there is limited interchangeability
between the technologies. The relevant paras are extracted as bellow:
Page 25 & 26 of the notification
“c) The Authority further notes that although there are differences in production technology, basic raw materials
and production process, subject goods of both these technologies have a
number of common characteristics such as semiconductor materials possessing
photoelectric effect are used in both the technologies rendering basic nature
of raw materials the same. Production
process involved is different but principles are the same which is
photoelectric effects to produce electricity. Also, finished products
through both the technologies have similar basic properties and functional
use.”
Page 28 of the notification
“k) The Authority concludes that different technologies as such do not
make end products different and subject goods of crystalline and thin film
technologies are required to be treated as like article for the purpose of
defining the ‘product under consideration’ in this investigation. While determining this, the Authority
acknowledges that the subject goods of crystalline and thin film technology
broadly differs in terms of (a) Technology (b) usage of basic raw materials(c)
production process (d) plant and machinery (e) Balance of System and (f)
efficiency levels. However, the Authority places its reliance on the
following conclusive similarities and factors to uphold that crystalline and
thin film products are ‘like article’ and therefore substitutable:..”
The authority has failed to differentiate
between two different products, as same functional use can never makes a Like
article commercially and technologically similar with a article.
Page 27 & 28 of the notification
i) Authority also makes note of the fact
that thin film products were introduced in the market as a cheaper solution
against the then high priced crystalline technology. However, the gap in the
cost and price of crystalline and thin film products reduced over the years with
reduction in prices of silicon wafers. The import information shows that during
the POI crystalline modules were imported at a price of about Rs. 53/Watt from
subject countries while thin film imports from subject countries were at about
Rs. 51/watt showing proximity and closeness between the products of both the technologies.
About 25% of total imports of subject
goods into India from subject countries during the POI were constituted by thin
films.
Page 23 of the Notification
“15. The Authority notes that the domestic producers namely M/s
Indosolar Ltd, M/s Websol Energy Systems Ltd, and M/s Jupiter Solar Power
Limited, constituting domestic industry in the present investigation are
producers of Crystalline Cells/Modules and does not manufacture thin films. As
stated by the domestic industry, the only domestic producer which holds the
capacity to manufacture thin film and manufactured thin film of a very small
quantum during the POI is Moser Baer units.
However, Moser Baer being a major importer of the subject goods, originating
in or exported from the subject countries, cannot be considered as constituting
domestic industry under the Rules. Therefore, the submission of the domestic
industry that M/s Moser Baer is holding the capacity to manufacture or has
manufactured thin films during the POI is not relevant to the present
investigation.”
Interestingly,
the authority has considered the solar cell and solar modules are one article
on patently incorrect premise that the manufacturing activity and value
addition between solar cells and modules is insignificant, while the facts are
totally to the contrary, as is clearly established by a large number of
producers who buy solar cells and produce solar modules. Significant value
addition from solar cells to modules is established by significant price
difference between solar cell and modules.
With regard
to difference between cells and modules, It is pertinent to mention that price
of cells on a per watt peak basis distinctly vary from the modules.
“j) With regard to the contention
that there is a limited interchangeability on a module to module basis and
between the technologies, the
Authority notes that there is a limited interchangeability between the
technologies as the user would have to change the Balance of System also while
changing the modules. However, the limited interchangeability cannot be
construed as a significant factor to break the likeness of crystalline and thin
film technology as the nature of product suggests that the chances of a developer
converting from an existing crystalline project to a thin film project is
almost illusive as there is no rational behind it. Authority holds that any
limited interchangeability between the technologies when there exists
substitutability between the technologies do not render crystalline and thin
film solar cells two different products. The Authority also notes that it has
not been substantiated by the opposing parties that imposition of duties only on
crystalline products would not lead to a shift in imports from crystalline
products to thin film products and thin film would not replace crystalline
products in the market.”
SEZ Unit should not have been part of Domestic
Industry
Rule 2(b) of Anti-Dumping Rules:
“2(b) “domestic industry” means the domestic producers as a whole
engaged in the manufacture of the like article and any activity connected
therewith 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 dumped
article or are themselves importers thereof in which case such producers may be
deemed not to form part of domestic industry.
Provided that in exceptional circumstances referred to in sub-rule (3) of
Rule 11, the domestic industry in relation to the article in question shall be
deemed to comprise two or more competitive markets and the producers within
each of such market a separate industry, if -
(i) the producers within such a market sell all or almost all of their
production of the article in question in that market; and
(ii) the demand in the market is not in any substantial degree supplied
by producers of the said article located elsewhere in the territory;
Explanation. - For the purposes of this clause,-
(i) 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 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.
(ii) 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.”
In the
present investigation, the three companies constituting the domestic industry
are 100% EOU and SEZ units that are primarily engaged in export of the goods
they manufacture. Although, SEZ and EOU
units are permitted to sell in the DTA, they choose to do so only when the
export market is no longer lucrative.
Thus, given that the companies are heavily dependent on their overseas
markets, impact on their revenues and profits would also be subject to the
volatility of the overseas markets.
As per
India’s Foreign Trade Policy, an EOU can only sell 50% of its FOB value of
exports in the DTA, which is squarely depended upon EOU’s export performance.
Hence, it is simply inappropriate not to take cognizance of the domestic
industry’s export performance in the present proceedings.
Further, a
significant dip in the export performance was a well-known factor before the
Authority, which has not been considered and thus has vitiated the ‘Causal
Link’ analysis as mandated under the law.
Furthermore,
there are no specific criteria to determine material injury. In addition, there
is no generally accepted mechanism to examine the causal relationship between
dumping and injury. Therefore, poor performance by domestic firms in the
related domestic industries may easily be attributed to the dumped products
during economic recession.
Article 3.5 of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994:
“3.5 It must be demonstrated that the dumped imports are, through the
effects of dumping, as set forth in paragraphs 2 and 4, causing injury within
the meaning of this Agreement. The demonstration of a causal relationship
between the dumped imports and the injury to the domestic industry shall be
based on an examination of all relevant evidence before the authorities. The authorities shall also examine any
known factors other than the dumped imports which at the same time are injuring
the domestic industry, and the injuries caused by these other factors must not
be attributed to the dumped imports.
Factors which may be relevant in this respect include, inter alia, the
volume and prices of imports not sold at dumping prices, contraction in demand
or changes in the patterns of consumption, trade restrictive practices of and
competition between the foreign and domestic producers, developments in
technology and the export performance and productivity of the domestic
industry.”
Domestic industry has failed to satisfy the locus
standi
Rule 5 of the Anti Dumping Rules
“5. Initiation of investigation. -
(1) Except as provided in sub-rule (4), the designated authority shall initiate
an investigation to determine the existence, degree and effect of any alleged dumping
only upon receipt of a written application by or on behalf of the domestic
industry.
(2) An application under sub-rule
(1) shall be in the form as maybe specified by the designated authority and the
application shall be supported by evidence of -
(a) dumping
(b) injury, where applicable, and
(c) where applicable, a causal link
between such dumped imports and alleged injury.
(3) The designated authority shall
not initiate an investigation pursuant to an application made under sub-rule
(1) unless -
(a) it determines, on the basis of
an examination of the degree of support for, or opposition to the application
expressed by domestic producers of the like product, that the application has
been made by or on behalf of the domestic industry :
Provided that no investigation shall
be initiated if domestic producers expressly supporting the application account
for less than twenty five per cent of the total production of the like article
by the domestic industry, and
(b) it examines the accuracy and
adequacy of the evidence provided in the application and satisfies itself that
there is sufficient evidence regarding -
(i) dumping,
(ii) injury, where applicable; and
(iii) where applicable, a casual
link between such dumped imports and the alleged injury, to justify the
initiation of an investigation.
Explanation. - For the purpose of
this rule the application shall be deemed to have been made by or on behalf of
the domestic industry, if it is supported by those domestic producers whose collective
output constitute more than fifty per cent of the total production of the like
article produced by that portion of the domestic industry expressing either
support for or opposition, as the case may be, to the application.
(4) Notwithstanding anything
contained in sub-rule (1) the designated authority may initiate an investigation
suo moto if it is satisfied from the information received from the Commissioner
of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other
source that sufficient evidence exists as to the existence of the circumstances
referred to in clause
(b) of sub-rule (3).
(5) The designated authority shall
notify the government of the exporting country before proceeding to initiate an
investigation.
It is well
established that the production of participating companies constitute mere
16.92 of Indian Production which is grossly inadequate to meet the requirement
of standing mentioned under the Rule 5 of the Ant-Dumping rules. It is evident
that the rules prescribe initiation of the investigation unless the application
has been expressly supported by those domestic producers whose collective
output constitutes 25% of Indian Production. In any case, 17% share in Indian
Production is too low a share to trigger imposition of anti dumping duty.
Insufficient evidence
Rule 14 of the Anti- Dumping rules:
14. Termination of investigation. - The designated authority shall, by
issue of a public notice, terminate an investigation immediately if -
(a) it receives a request in writing for doing so from or on behalf of
the domestic industry affected, at whose instance the investigation was
initiated;
(b) it is satisfied in the course of an investigation, that there is not
sufficient evidence of dumping or, where applicable, injury to justify the
continuation of the investigation;
(c) it determines that the margin of dumping is less than two per cent
of the export price;
(d) it determines that the volume of the dumped imports, actual or
potential, from a particular country accounts for less than three per cent of
the imports of the like product, unless, the countries which individually
account for less than three per cent of the imports of the like product,
collectively account for more than seven per cent of the import of the like
product; or
(e) it determines that the injury where applicable, is negligible.
Article 5.8 of the Agreement on Implementation of
Article VI of the General Agreement on Tariffs and Trade 1994:
“5.8 An application under
paragraph 1 shall be rejected and an investigation shall be terminated promptly
as soon as the authorities concerned are satisfied that there is not sufficient
evidence of either dumping or of injury to justify proceeding with the case. There
shall be immediate termination in cases where the authorities determine that
the margin of dumping is de minimis, or that the volume of dumped imports,
actual or potential, or the injury, is negligible. The margin of dumping shall
be considered to be de minimis if this margin is less than 2 per cent,
expressed as a percentage of the export price. The volume of dumped imports
shall normally be regarded as negligible if the volume of dumped imports from a
particular country is found to account for less than 3 per cent of imports of
the like product in the importing Member, unless countries which individually
account for less than 3 per cent of the imports of the like product in the
importing Member collectively account for more than 7 per cent of imports of
the like product in the importing Member.”
Page 59 of
the Notification:
“27 (iv) As regards the submission that there is absence of ‘sufficient
evidence’ in the application filed to justify initiation of this investigation,
it is noted that there was sufficient justification to initiate the
investigation. The investigations were initiated only upon receipt of a written
application, which was in the form and manner as specified by the Authority and
was supported by relevant and necessary evidence relating to dumping, injury
and causal link. The investigations were initiated after determining that the
application was made by or on behalf of the domestic industry and after
sufficient examination with regard to accuracy and adequacy of the evidence provided
in the application and due satisfaction of the Authority that there was
sufficient evidence regarding dumping, injury and causal link to justify the
initiation of investigations.”
It would thus
be seen that whereas the interested parties pointed out to the Designated
Authority that the consequence of these fatal error was termination under Rule
14, the Designated Authority has justified the notification by stating that the
evidence now available has been considered and evidence in the petition in any case
has not been considered.
Further, the
investigation has been done on discriminating basis relying only on the data
provided by the domestic producers and in gross contravention of specific legal
provisions and WTO practices as stated below:
Investigation based on domestic data- Article 9.2 of
the Agreement on Implementation of Article VI of the General Agreement on
Tariffs and Trade 1994:
“9.2 When an anti-dumping duty is imposed in respect of any product,
such anti-dumping duty shall be collected in the appropriate amounts in each
case, on a non-discriminatory basis on
imports of such product from all sources found to be dumped and causing injury,
except as to imports from those sources from which price undertakings under the
terms of this Agreement have been accepted. The authorities shall name the
supplier or suppliers of the product concerned. If, however, several suppliers
from the same country are involved, and it is impracticable to name all these
suppliers, the authorities may name the supplying country concerned. If several
suppliers from more than one country are involved, the authorities may name
either all the suppliers involved, or, if this is impracticable, all the
supplying countries involved.”
Rule 19 of Anti- Dumping Rules:
“19. Imposition of duty on non-discriminatory basis. - Any provisional
duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall
be on a non-discriminatory basis and
applicable to all imports of such articles, from whatever sources found
dumped and, where applicable, causing injury to domestic industry except in the
case of imports from those sources from which undertaking in terms of rule 15
has been accepted.”
Article VI of
the General Agreement provided that no anti-dumping or countervailing duties
could be levied unless certain facts had been established and the contracting party
invoking this Article had taken into account all facts necessary to meet the
requirements of this Article. The contracting party taking action under this
Article must establish the existence of these facts when its action was
challenged. In the matter before this Panel, the Designated Authority had not demonstrated
that it had met these requirements.
Hence the
question is not whether we should repose faith in the Government of India but
whether or not it was the duty of the Hon’ble Authority to ensure that the
principles of natural justice are implemented.
Impact of Anti-Dumping Laws
Pros
Ø Allows
Few Firms Time to Compete
When
analyzing the merits of anti-dumping restrictions, it is important to keep two
points in mind.
First, price
cutting is an integral part of the competitive process. When demand is weak and inventories are large, firms will often find it
in their interest to offer goods at prices below the average total cost of
production. Domestic firms are permitted to engage in this practice. Why should
foreign firms be prohibited from doing so?
Second, the
use of anti-dumping laws to reduce the competitiveness of domestic markets is
sure to be contagious. As a few industries are protected from the competition
of foreign rivals, others will seek similar treatment. Herein lies the real
danger. If we are not careful, anti-dumping actions will soon become simply
another rather thinly veiled mechanism to stifle competition. Our economy has
prospered largely because of our reliance on market allocations and avoidance
of this type of favoritism. We must not allow the credibility we have earned to
be eroded by shortsighted policies.
Further, where
an exporter sold at home at higher prices than he sold abroad, it would be the exporter's
government, not the importer's government, that would take coercive action.
Cons
Ø Against
Free Trade Concept
Ø Trade
Barrier – Lowers Economic Growth
Ø Distorts
the Market
Ø Protects
Firms from Competition
Ø Hurts
Consumers
Ø Increase
Monopolies
Ø Against
Vulnerable Solar Power Developers
Ø Hurt
Jobs
Ø Disregard
Green Energy
Ø Unaffordable
Green Energy
Ø Encourage
a further contraction in world trade
Antidumping
law creates one of two perverse incentives for an exporter. First, antidumping
law may distort an exporter's marketing decisions. An exporter might reduce its
exports and increase its home-market sales to minimize the risk of being named
as a respondent in an antidumping action. In turn, the price of its merchandise
in the importing country rises, reducing competitive pressure on producers in
that country, while the price of its merchandise in its home country falls.
Alternatively, antidumping law may distort an exporter's decisions about
foreign direct investment. If the importing country represents a significant market,
the exporter may relocate its production facilities there.
Conclusion
Any adverse decision would have jeopardize the existence of Solar Developers as cheapest environmental
friendly industry and it will injure every developer including the citizen of
this country. In matters of larger public interest, unlike conventional
adversarial issues, the parties do not gaze at each other but they look in the
same direction. That the experience suggest that there is no viable domestic
industry supported by necessary technical support for manufacturing of solar
cells and no purpose would be achieved by imposing any custom duty, rather the
anti dumping duty, if imposed would have the potential of destroying the solar
IPPs and impose avoidable costs on the power distribution companies.
