In the recent age of trade protectionism, anti-dumping measures have come to be used as the most widely recognised tools to enforce trade remedies. These measures are adopted with an intent to protect the domestic producers against the injury caused by dumped imports of Product under Consideration ("PUC"). These measures when applied, assure a level playing field to both the domestic producers as well as the importers/exporters of PUC from subject countries to the domestic country.
The origin of anti-dumping measures dates back to 1994, wherein under the General Agreement on Tariffs and Trade 1994 ("GATT"), inter alia, principles to be followed by the member countries for imposition of anti-dumping duties, countervailing duties and safeguard measures were laid down. Pursuant to the GATT, detailed guidelines have been prescribed under specific agreements, which have been incorporated in the national legislation of the member countries of the World Trade Organization ("WTO"). In terms thereof, the relevant laws in India were amended to bring in line with the provisions of the respective GATT agreement. The anti-dumping rules are provided in Article VI of GATT, titled Agreement on the Implementation of Article VI of GATT ("the Anti-dumping Agreement").
The relevant laws in India that regulate the conduct of anti-dumping investigations are:
- Sections 9A and 9B of the Customs Tariff Act, 1975 ("the Act"); and
- Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ("the Rules").
The Directorate General of Anti-Dumping and Allied Duties, Department of Commerce, Ministry of Commerce and Industry, India ("DGAD") is the governing body that is responsible for the conduct of anti-dumping investigations in India.
Under the Act and the Rules, the intent and objective of initiating an anti-dumping investigation is to ensure fairness and equality amongst the parties exporting the products to India ("the interested party")1 and the producers of such products in India ("Domestic Industry")2.
However, a very significant question which arises is the procedure to be followed in an anti-dumping investigation for calculating the anti-dumping duty. Therefore, the parameters on which different stakeholders are judged as to ascertain any event of dumping vis - a - vis injury needs a careful examination and study. The completion of value chain is one such significant parameter. Recently, there has been a growing debate about India's practise and procedure related to completion of value chain under the Act and the Rules. India has received much flak from around the world on giving excessive importance to the completion of value chain.
This Article attempts to throw light on the aspect of completion of value chain. A previous finding of the DGAD, by way of an example, where the data of few countries subject to an Anti-dumping investigation was rejected due to non-cooperation in the investigation of few related stakeholders unwilling to participate in the anti – dumping investigation, has also been analysed.
2. CONCEPT OF VALUE CHAIN
To understand what value chain in an anti-dumping investigation is, it is important to understand the below concepts.
It is important to understand the steps involved in the calculation the anti-dumping duty and the methodology adopted by the DGAD for working out the dumping margin and the injury margin. The DGAD adopts the following procedure for calculating dumping margin:
- A comparison of weighted average Normal Value ("NV") with the weighted average of comparable Export Price ("EP"); or
- A comparison of NV and EP on a transaction to transaction basis.
2.1 Calculation of Normal Value3
NV is calculated by identification of like product in the subject country, which is comparable to the PUC in the anti-dumping investigation initiated by the DGAD. Accordingly, the market price of the like article in the domestic market of the subject country, referred to as NV, is considered. In cases where the domestic price of the like article/product is not available for the domestic market of the subject country, the DGAD may construct the NV. The NV for non-market economies, including China PR, is constructed by the DGAD. If the NV cannot be determined by means of domestic sales, the Act provides for the following two alternative methods for calculation of NV
- Comparable representative EP to an appropriate third country4.
- Cost of production in the country of origin with reasonable addition for administrative, selling and general costs and for profits.
Hence, in order to construct /verify the NV, the DGAD studies various transactions entered into and between different stakeholders so as to ascertain the approximate domestic price of the PUC in the subject country. For the said purpose, the DGAD pressurises the interested parties to ensure the participation of all stakeholders, in the absence of which the risk of rejection of data of such interested party will run high. The participation of all stakeholders is made mandatory as the DGAD believes that participation of every stakeholder will help them construct / verify the correct NV.
2.2 Calculation of Export Price5
To determine whether or not dumping has taken place, NV is compared with EP. The EP and the NV of the PUC must be compared at the same level of trade, normally at the ex-factory level, for sales as near as possible in time. The DGAD determines the EP on the basis of the price actually paid or payable for the PUC when sold from the subject country to India, subject to adjustments.
In cases where the price actually paid or payable for the PUC when sold from the subject country to India cannot be determined, the DGAD may construct the ex-factory EP. The DGAD will calculate the ex- factory EP upon making certain allowances6 for all costs incurred between the point of importation and resale. For this purpose the transaction wise data is studied and the requirement of providing complete data for all stakeholders for completion of the value chain is made mandatory.
2.3 Calculation of individual Dumping Margin
As a rule, the anti-dumping agreement requires that when anti-dumping duties are imposed, a dumping margin, be worked out for each exporter. However, it is recognized that this may not be possible in all cases, and thus the Anti-Dumping Agreement allows investigating authorities to limit the number of exporters, importers, or products individually considered, and impose an anti-dumping duty on non-investigated sources on the basis of the weighted average dumping margin actually established for the exporters or producers actually examined. In this procedure, the investigating authorities are precluded from including in the calculation of weighted average dumping margin or any dumping margins that are de minimis, zero. Hence, the DGAD emphasises that in order to calculate an individual margin for any exporter or producer necessary information during the course of the investigation is significant.7
To work out an individual dumping margin, it is important for the DGAD to focus on the necessary information and the transaction wise data provided by an interested party (ies). The DGAD believes that if an interested party defaults in providing complete transaction wise details, then that party will not be given an individual dumping margin and shall be treated as non-cooperative party. Hence, the duty which will be worked out for a non-cooperative party will be the highest level of duty. This practise is extremely unfair to an interested party, which despite taking the initiative to participate in the investigation and cooperating with the Authorities to the best of its efforts, has its data/information rejected and further has the highest level of anti-dumping duty recommended against it.
By way of an example, the DGAD recently rejected the information submitted by an interested party in an investigation. The details of this investigation are provided below by way of case study.
3. CASE STUDY
The DGAD initiated anti-dumping investigation concerning imports of "Low Ash Metallurgical Coke" originating in or exported from Australia and China PR ("the subject countries"). The Application was preferred by M/s Indian Metallurgical Coke Manufacturers Association ("IMCOM") on behalf of the domestic producers of "Low Ash Metallurgical Coke" in India, namely, M/s Saurashtra Fuels Pvt. Ltd., M/s Gujarat NRE Coke Ltd., M/s Carbon Edge Industries Ltd., M/s Bhatia Coke and Energy Ltd. and M/s Basudha Udyog Pvt. Ltd. ("the Petitioners" or "the Applicants"), in accordance with the Act.
The DGAD sent questionnaires for gathering relevant information to the known exporters in the subject countries. One of the interested exporters in the investigation from Australia duly complied with the requirements for participating in the investigation and filed its response to the exporter's questionnaire. In its submission, the interested exporter from Australia stated that few of its export transactions were through a trading house based in Singapore. Accordingly, the trading house's participation was required in order to complete the value chain. However, the trading house refused to participate in the investigation, leaving the interested exporter from Australia with an incomplete value chain, and making the data/information submitted by it before the DGAD susceptible to being rejected.
3.1 Submissions made by the interested exporter from Australia
The interested exporter from Australia pleaded before the DGAD that despite its repeated requests to its trading house, the trading house had refused to participate in the investigation. Under these circumstances, the interested exporter from Australia requested the DGAD to consider its individual data and work out an individual dumping and injury margin for the exporter. The following submissions were made before the DGAD8 in this regard:
a. Non-cooperation by the trading house
The procedural requirement for completion of value chain should be relaxed in case of non-cooperation by the trading house. The relevant extract from the submission is reproduced hereunder:
"(i) The procedural requirement of providing complete value chain of sales data to work out an individual margin for an interested party must be relaxed in case of ***** for its exports through *************** in view of the Appellate Body of the WTO observations in United States – Anti-Dumping measures on certain hot-rolled steel products from Japan."9
b. Onerous requirement on the exporter to complete value chain:
The onus to complete the value chain was wrongly put on the producer/manufacturer, since it was not in the hands of such producer or manufacturer to mandate the participation of the unrelated exporters/trader. Therefore, to be penalised on account of non-participation of unrelated exporter/ trader, would be unfair. The relevant extract from the submission of the exporter is reproduced hereunder10:
"(ii) The practice of putting onus on the producer/manufacturer to complete the value chain by filling exporter/trader responses is wrong. Whether the producer/manufacturer has exported the subject goods through one exporter/trader or through several, and if one of them denies to cooperate with DGAD, then the whole responses filed by the producer/manufacturer and its exporters/traders are penalized by rejecting the data on the ground of value chain, which is again against DGAD law and practice because there is no such written law globally which speaks so and here it is being used as one of the anti-dumping mechanism tools to reject the exporters/ traders filed data/information...."
c. Submissions by the Domestic Industry
Countering the stand of the interested exporter from Australia, the Domestic Industry submitted the following:
"40. It is seen from questionnaire response submitted by *************, that all the export sales to India (*** MT) have been made through the trader ***********. However, it is noted that neither any response has been submitted by ************* on behalf of this trader ******************* nor this trader has filed any response directly. The Authority afforded reasonable opportunity to the producer for furnishing the details of the exporter but did not receive the information for the exporter. Since the essential information for the complete value chain up to the Indian customers, the adjustments claimed by ************** while exporting to Indian customers, the terms and conditions of such sales, etc. are not available for examination, the Authority is not in a position to determine the individual dumping margin in respect of producer ************************ on the basis of their data. The Authority has, therefore, constructed the normal value for Australia on the basis of the cost of production in India, duly adjusted, including selling, general and administrative expenses under Rules 6(8). The constructed normal value so determined for ******************* is shown in the dumping margin table below. Non-cooperative producers/exporters from Australia."
"41. The Authority has constructed the normal value for Australia on the basis of the facts available. Accordingly, the constructed normal value determined for non-cooperative producers/exporters from Australia is shown in the dumping margin table below.
"Export Price for *****************
59. It is seen from questionnaire response submitted by ****************** that all the export sales to India (***MT) have been made through the trader *************************. However, it is noted that neither any response has been submitted by *********** on behalf of this trader ************************* nor this trader has filed any response directly. The Authority afforded reasonable opportunity to the producer for furnishing the details of the exporter but did not receive the information for the exporter. Since the essential information for the complete value chain up to the Indian customers, the adjustments claimed by ********************** while exporting to Indian customers, the terms and conditions of such sales, etc, are not available for examination, the Authority is not in a position to determine the individual dumping margin in respect of producer ****************** on the basis of their data.11
3.2 Examination by the DGAD
The DGAD after considering the submission, unfortunately did not grant an individual dumping margin to the interested exporter from Australia and held as under:
"117. The Authority notes that the post disclosure statement submissions made by the interested parties are mostly repetitive in nature. However, the Authority examines the issues to the extent considered relevant as under:
- With regard to the request of *********** for accepting their response, the Authority notes that since the essential information for the complete value chain up to the Indian customers, the adjustments claimed by ************ while exporting to Indian customers, the terms and conditions of such sales, etc. are not available for examination, the Authority is not in a position to determine the individual dumping margin in respect of producer ***************** on the basis of their data"12
3.3 Criticism of this final finding issued by the DGAD
The only option available to the interested exporter from Australia was to request its trading house to participate in the investigation and help in completing the value chain with respect to the export transactions made by it to India. The DGAD acted in complete disregard of the circumstances and failed to appreciate that the interested exporter from Australia and its trading house are two independent entities. Therefore, the interested exporter could not coerce or make it mandatory for its trading house to participate in the aforesaid anti-dumping investigation.
The consequences of non-participation of the trading house in all reasonability should have had no bearing on the interested exporter from Australia. The interested exporter had already submitted all data/information to the best of its efforts. It was absurd and unfounded on part of the DGAD to reject its entire data on the sole ground of non-cooperation by its trading house.
3.4 Reliance on United States – Anti-Dumping measures on certain hot- rolled steel products from Japan (WT/DS184/AB/R).
The interested exporter from Australia had also placed its reliance on the observation of the WTO Appellate Body in United States – Anti dumping measures on certain hot – rolled steel product from Japan. However, the DGAD completely disregarded the observations in the aforesaid case in rendering its finding. The following observations of WTO Appellate Body are relevant for understanding the interpretation of the term "cooperating" and its impact on completion of value chain, which the DGAD completely disregarded in rendering the final finding:
"Parties may very well "cooperate" to a high degree, even though the requested information is, ultimately, not obtained. This is because the fact of "cooperating" is in itself not determinative of the end result of the cooperation. Thus, investigating authorities should not arrive at a "less favourable" outcome simply because an interested party fails to furnish requested information if, in fact, the interested party has "cooperated" with the investigating authorities, within the meaning of paragraph 7 of Annex II of the Anti-Dumping Agreement.13
- Paragraph 5 of Annex II prohibits investigating authorities from discarding information that is "not ideal in all respects" if the interested party that supplied the information has, nevertheless, acted "to the best of its ability". This provision suggests that the level of cooperation required of interested parties is a high one – interested parties must act to the "best" of their abilities.14
- Request of the Investigating authorities to provide responses to questionnaires in a particular medium should not be "maintained" if complying with that request would impose an "unreasonable extra burden" on the interested party, that is, would "entail unreasonable additional cost and trouble ". This provision requires investigating authorities to strike a balance between the efforts that they can expect interested parties to make in responding to questionnaires, and the practical ability of those interested parties to comply fully with all demands made of them by the investigating authorities15.
- If the investigating authorities fail to "take due account" of genuine "difficulties" experienced by interested parties, and made known to the investigating authorities, they cannot fault the interested parties concerned for a lack of cooperation."16
4. LOOPHOLES IN THE APPROACH
The grey areas of India specific practise on the requirement of completion of value chain gravely have been highlighted in the previous sections. These may be summarised as under for ease of understanding:
The DGAD should grant certain concessions where the interested parties have complied with the procedure and co-operated in the investigation but due to severe non-cooperation of all/any of the stakeholders (related or unrelated exporters/traders), they are unable to complete their value chain.
4.2 Rejection of entire data
Unfortunately, the interested party which has participated in the investigation and provided all the data to the DGAD runs the risk of not being allowed an individual dumping margin and individual injury margin. The DGAD should not put an onerous obligation on the interested parties to complete the value chain because this will deter parties from even participating in the investigation if their trading house or related/unrelated exporter/importer does not agree to participate in the investigation.
4.3 No fair level playing field
As a natural consequence of this onerous practise of the DGAD, the participation of interested parties will reduce, and hence the best case forward would not be put before the DGAD, forcing the DGAD to conduct the investigation in a restricted/limited manner resulting in an unfair trade practise. This practise regrettably will shadow India's image on a global platform.
5. ALTERNATE APPROACH
One of the most preferred ways of dealing with data/information submitted by an interested party which is incomplete on account of non-participation of a related/unrelated trading house (resulting in incomplete value chain), is to adopt the method of 'sampling' and consider the data/information submitted by even those interested parties whose related/unrelated trading house has not participated in the investigation. To begin with, in lay man's terms, sampling may be defined as a method which can be adopted to arrive at a separate duty margin for any interested party participating in the investigation. This method ensures the elimination of mandatory participation of all interested parties involved in an export transaction to India, to complete the value chain.
5.1 Law and Procedure on Sampling
Sampling is covered under Article 6.10 of the Anti-Dumping Agreement, which defines it as follows:
"6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated."
The aforesaid provision finds reference under the Rules. The relevant clause is extracted below:
"17 (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."
5.2 Criterion to be applied for sampling
Discretion is vested with the DGAD in adopting the method of sampling for determining the individual dumping margin. This discretion will only come into force when the DGAD is of the opinion that there are a large number of exporters, producers and importers participating in an anti-dumping investigation and it would be difficult to work out an individual dumping and injury margin for all the interested parties.
5.3 Previous cases where the DGAD has resorted to sampling
Till date, the method of sampling has been adopted by the DGAD in only three (3) cases. The DGAD, in fact, has the discretion to adopt the method of sampling instead of outrightly rejecting the data of an interested party participating in the investigation. Adoption of this method enables a fair mechanism to calculate the margin of dumping and injury qua the interested parties participating in the investigation.
- Final finding dated 26.12.2007
rendered by the DGAD in the antidumping investigation concerning
import of Poly Vinly Chloride (PVC) Suspension Grade from Taiwan,
China PR, Indonesia, Japan, Korea RP, Malaysia, Thailand and
The Authority had resorted to sampling due to participation of a large number of interested producers and exporters from China PR. The individual dumping margin for the said exporters was determined in terms of Rule 17 (3) of the Rules. NV of individual product types/grades were determined first for the individual cooperating exporters. The relevant part is extracted below:
"76. In pursuance of the above orders, Normal values of the subject goods for the subject countries have been determined. For the purpose of such determination, normal values of individual product types/grades have been determined first for the individual co-operating exporters and then a single weighted average normal value has been worked out for each of the product types/grades of the product under consideration at the product type/grade levels for the exporting country as a whole based on the normal values determined for the co-operating exporters, to the extent the grades/types are identical,. These country-specific normal values at the product type/grade levels have been compared with the export prices for the corresponding product types/grades of the individual exporters to determine individual dumping margins at product type/grade levels of the concerned exporters. The weighted average dumping margin for each exporter has been calculated on the basis of the product type/grade level dumping margins for that exporter. In their post disclosure submissions the domestic industry as well as several exporters have argued that determination of country specific normal value is not in order and violates the principles of the Agreement, The domestic industry has argued that computation of single normal value in terms of the Supreme Court Judgment is provided for the non-cooperative exporters and not for the cooperative exporters. It has been argued that individual normal value is required to be determined for each cooperative exporter separately. In this connection the Authority notes that the determination of the normal value has been done keeping in view the above judgment as explained above and therefore, the arguments of the domestic industry cannot be accepted."
- In the final finding dated 22.05.2014 rendered by the DGAD in anti-dumping investigation concerning imports of Solar cells whether or not assembled partially or fully in Modules or Panels or on glass or some other suitable substances substrates, originating in or exported from Malaysia, China PR, Chinese Taipei and USA: The procedure adopted by the DGAD, due to the participation of a large number of interested parties, was sampling. Accordingly, the individual dumping margin was determined by the DGAD for the sampled exporters.
- In the final finding dated November, 2006 rendered by the DGAD in anti-dumping investigation concerning imports of Silk Fabrics 20-100 gms per meter from Peoples Republic of China18: In this investigation too, the DGAD resorted to sampling in terms of Rule 17 of the Rules. The weighted average dumping margins of the individual exporters were worked out by the DGAD.
In the interest of fair practice, the DGAD needs to apply discretion and not apply procedures rigidly to the detriment and prejudice of the substantial rights of any interested party. We understand that the practice of adopting sampling is relatively new to the Indian jurisdiction. However, such is not the case in European Union or other jurisdictions globally.
As practitioners of international trade law, we believe that we need to constantly evolve in terms of new methodologies and application of the same on a case to case basis. This will help us act in the best interest of all the parties, which essentially is the aim and objective of any law. The rigid stand or blind adherence to the straight jacket procedure will only inhibit fair application of the law. It is pertinent to note that the WTO Appellate Body in the United States – Anti-Dumping measures on certain Hot Rolled Steel Products from Japan, observed that the Authority should not put an onerous obligation on the interested parties to complete the value chain because this will deter parties from even participating in the investigation, since participation (without complete value chain) and non-participation will be seen on the same footing by the DGAD.
Recently, India has also received criticism during the meeting of WTO committee on anti-dumping practices, when China was the first to express concerns over recent Indian moves, being particularly concerned with the Indian practice on insistence of "complete value chain". In view of the afore-stated, it is important for the DGAD to rework and restructure its methodology in working out individual dumping margin and individual injury margin by adopting sampling as a formal method in cases where there is an incomplete value chain.
 The definition of Interested Party is provided in Rule 2 (C) of the Rules.
 The definition of Domestic Industry if provided in Rule 2 (B) of the Rules.
 Annexure 1 of the Rules pertaining to Principles governing the determination of Normal Value, Export Price and Margin of Dumping.
 An appropriate market economy third Country shall be selected by the DGAD in a reasonable manner, keeping in view the level of development of the Country concerned and the product in question.
 The cost of handling , loading, transport, insurance and ancillary costs; Customs duties, anti-dumping duties and other taxes payable in the importing Country on the importation or sale of goods; a reasonable ,margin for overheads and profit and/or any commission usually paid or payable.
 Article 2.4.2 of the Agreement further stipulates that:
"The existence of margins of dumping during the investigation phase shall normally be established on the basis of a comparison of a weighted average normal value with a weighted averaged of prices of all comparable export transactions or by a comparison of normal value and export prices on a transaction –to – transaction basis. A normal value established on a weighted average basis may be compared to prices of individual export transactions if the authorities find a pattern of export prices which differ significantly among different purchasers, regions or time periods, and if an explanation is provided as to why such differences cannot be taken into account appropriately by the use of a weighted average to weighted average or transaction to transaction comparison."
Final Findings rendered by the Directorate General of Anti-dumping in Anti-Dumping investigation concerning imports of "Low Ash Metallurgical Coke" originating in or exported from Australia and China PR – reg, dated 20.10.2016,Para 27 (i), Page 15;
 Supra note 3, Para 27 (ii), Page 16
 Supra note 3, Para 40, 41, 59, Page 22, 28
 Supra Note 3, Para 117 (i), Page 48
 Para 99 of the Finding at page 37
 Para 100 of the finding at page 38
 Para 101 of the finding at page 38
 Para 104 of the Finding at page 39
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.