03 September 2013
The Anti-dumping provisions also provide for refund of duty if collected in excess. The provision states that if the anti-dumping duty imposed on the basis of final findings is higher than the provisional duty already imposed and collected, the difference shall not be collected. However, if the final anti-dumping duty is less than the provisional duty already imposed and collected, the difference shall be refunded. Even when the provisional duty is withdrawn based on a negative final finding, the provisional duty already collected shall be refunded.
The Section 9AA of the Customs Tariff Act, 1975 states that where an importer proves to the satisfaction of the Central Government that he has paid any anti-dumping duty on any article, in excess of the actual margin of dumping in relation to such article, the Central Government shall, as soon as may be, reduce such anti-dumping duty as is in excess of actual margin of dumping so determined, in relation to such article or such importer, and such importer shall be entitled to refund of such excess duty. However, such importer shall not be entitled to refund of so much of such excess duty which is refundable on account of the final duty imposed being lower than the provisional duty under this section.
This provision also empowers the Central Government to make rules to -
(i) provide for the manner in which and the time within which the importer may make application for refund of duty;
(ii) authorise the officer of the Central Government who shall dispose of such application on behalf of the Central Government within the time specified in such rules; and
(iii) provide the manner in which the excess duty shall be determined by such officer and refunded by the Deputy Commissioner of Customs or Assistant Commissioner of Customs after such determination.
The 21 of the Anti Dumping Rules, 1995 lays down the provisions for refund of anti dumping duty. This rule states that if the anti-dumping duty imposed by the Central Government on the basis of the final findings of the investigation conducted by the designated authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer. If, the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer. Further if the provisional duty imposed by the Central Government is withdrawn, the provisional duty already imposed and collected shall also be refunded to the importer.
Determination of amount paid in excess of actual margin of dumping.
Rule 21A of the Anti Dumping Rules, 1995 provides for determination of amount paid in excess of actual margin of dumping. This rule states that where an importer is of the opinion that he has paid any anti-dumping duty imposed on any imported goods, in excess of the actual margin of dumping in relation to such goods, he may file an application for determination of the actual margin of dumping in relation to such goods before the designated authority in such form and accompanied by such documents as the said authority may specify in this behalf. If such application is found to be deficient in any material particulars, the same shall be returned to the importer pointing out deficiencies within one month of the receipt thereof. However, the importer may after making good the deficiencies, resubmit the application to the designated authority within one month thereafter.
On receipt of the application with complete information, the Designated Authority shall initiate an investigation to determine the actual margin of dumping in relation to such goods. In determining the actual margin of dumping, when the export price is constructed in accordance with these rules, the Designated Authority shall take into account any change in normal value, costs incurred between importation and resale and any movement in the sale price which is duly reflected in the subsequent selling price. While calculating constructed export price, no deduction shall be made for the amount of anti-dumping duties paid when conclusive evidence of the same is provided.
Where the Designated Authority finds that there is change in costs incurred between importation and resale and movement in the sale price which is duly reflected in the subsequent selling price, the actual margin of dumping may be determined by taking into account any change in normal value, such change in costs and movement in the sale price. The Designated Authority after investigation will determine the actual margin of dumping for the goods and if the anti-dumping paid on the goods is in excess of the margin of dumping so determined, the authority shall make recommendation to the Central Government within nine months and in no case more than 12 months, from the date of receipt of the application, complete in all respects, to refund the difference between the two to the importer.
drawback on anti dumping Duty ****************************** Although the Customs Tariff Act, 1975 and the Anti Dumping Rules, 1995 do not lay down any provisions allowing drawback of Anti Dumping duty, the Circular No. 106/95-Cus dated 11.10.1995 issued by the Government of India, Ministry of Finance (Department of Revenue) permits drawback of such duty to the exporters. This circular has clarified that Anti-Dumping Duty which is leviable under Section 9A of the Customs Tariff Act read with Section 12 of the Customs Act, is rebatable as Drawback in terms of Section 75 of the Customs Act. Since Anti-Dumping Duty is not taken into consideration while fixing All-Industry rate of Drawback, the drawback of such Anti-Dumping Duty can only be claimed under an application for Brand Rate under Rule 6 or Rule 7 of the Customs and Central Excises Duties Drawback Rules, 1995. This would necessarily mean that drawback shall be admissible only where the inputs which suffered Anti-Dumping Duty were actually used in the goods exported as confirmed by the verification conducted for fixation of Brand Rate. Where imported goods subject to anti-dumping duties were exported out of the country as such, then the Drawback payable under Section 74 would also include the incidence of Anti-Dumping duties as part of total duties paid.
The Circular No. 11/2005-Cus dated 03.0.-2005 issued by the Central Board of Excise & Customs, New Delhi on the issue of factoring of 2% Education Cess in Brand Rates and Special Brand Rates of Duty Drawback determined under Rule 6 and Rule 7 of the Customs & Central Excise Duties Drawback Rules, 1995, has clarified that the Education Cess imposed in the Budget, 2004-2005 is leviable @ 2% of the aggregate duties of customs (except safeguard duty under Sections 8B and 8C, countervailing duty under Section 9 and anti-dumping duty under Section 9A of the Customs Tariff Act, 1975) on all items imported into India. As Education Cess is being collected as duties of excise/customs, the element of Education Cess has been factored in All Industry Rates of Duty Drawback which were notified under Notification No. 8/2005-Customs (N.T.), dated 18-1-2005. The Ministry has also issued a Circular (No. 3/2005-Cus., dated 18-1-2005) [2005 (179) E.L.T. T31] clarifying the said position. In view of this, it has been decided that the element of Education Cess needs to be factored in the Brand Rates and Special Brand Rates of duty drawback determined under Rule 6 and Rule 7 of the Customs & Central Excise Duties Drawback Rules, 1995.
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