WORLD TRADE  
ORGANIZATION   
G/ADP/Q2/IND/5 
22 August 2011 
 (11-4178) 
Committee on Anti-Dumping Practices Original:   English 
 
 
 
ARTICLE 16.4 OF THE AGREEMENT 
 
Replies to Questions Posed by JAPAN1 Regarding the  
Semi-Annual Report from INDIA2 
  
 The following communication, dated 16 August 2011,  is being circulated at the request of the 
Delegation of India. 
 
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1. 1,1,1,2-Tetrafluoroethane or R-134a of all types 
 
Question 1 
 
The Indian Regulatory Authorities (Directo rate General of Anti-Dumping & Allied 
Duties (DGAD)) initiated the investigation of th is product on 19 August 2009.  A preliminary 
determination was made on 19 February 2010.  On 30 July 2010, DGAD issued a public notice to extend the investigation by another 6 months, to 18 February 2011.  Despite this time frame 
set by DGAD, it made the final determination on 10 May 2011, more than 20 months after the 
initiation. 
 According to Article 5.10 of the Agreement on  Implementation of Article VI of the 
General Agreement on Tariffs and Trade 1994 (herein after referred to as the "AD 
Agreement"), "[i]nvestigations shall, except in special circumstances, be concluded within one 
year, and in no case more than 18 months, after their initiation." However, DGAD made the 
final determination more than 20 months after th e initiation.  Could India explain how this 
practice is consistent with Article 1 and Article 5.10 of the AD Agreement, which precludes WTO members from imposing anti-dumping duti es without conducting an investigation in 
accordance with the provisions of the Agreement?  
 
Reply 
 
The Directorate General of Anti-Dumping & Allied Duties (DGAD) was faced with 
exceptional circumstances in this investigation due to judicial intervention in the domestic courts.  
The investigation was stayed by the Madras High Cour t for almost 8 months.  Due to the continuation 
of the stay orders, the DGAD could not complete th e investigation within the time frame stipulated 
under the Customs Tariff (Identification, Assess ment and Collection of Anti-Dumping Duty on 
dumped articles and for determination on Injury) Rules, 1995 (the Anti-Dumping Rules).  The DGAD 
had to approach the highest court in India on diffe rent occasions for vacation of the orders of the 
Madras High Court.  Finally, the DGAD could complete  the investigation as per the orders of the 
                                                      
1 G/ADP/Q2/IND/4. 
2 G/ADP/N/209/IND. G/ADP/Q2/IND/5 
Page 2  
 
  Madras High Court which were issued on 30 March 2011.  In view of these exceptional 
circumstances, the investigation could be comple ted only on 10 May 2011.  India's investigating 
authority is aware of the limitations of timelines  for completion of anti-dumping investigation as per 
Article 5.10 of the Anti-Dumping Agreement.  Howeve r, as stated above the investigating authority 
was faced with exceptional circumstances in this case.  The orders of the domestic courts have to be 
respected and in deference to the orders of the dom estic courts the investigation was completed.  The 
Anti-Dumping Agreement recognizes that the observance of the time limits mentioned under Articles 9.3.1 and 9.3.2 in the assessment/ refund proceedings may not be possible where the product 
in question is subject to judicial review pro ceedings.  All the Members do recognize that Members 
have to accord the highest regard to the judicial review process in the jurisdiction of each Member.   
 
Question 2 
 
Article 5.10 of the AD agreement stipulates that "investigations shall, except in special 
circumstances, be concluded within one year".  Neither in the notice of extension issued on 
30 July 2010 nor in the final determination i ssued on 10 May 2011 did DGAD explain explicitly 
what "special circumstances" existed in this  case.  Could India explain the "special 
circumstances" which prevented the investigat ion from concluding within one year?  
 
Reply 
 
 As explained in the response to Q. No. 1, due to the intervention of domestic courts the 
investigation could not be completed during the s tipulated period.  The special circumstances of 
various court proceedings have been fully explained in paragraphs 7 to 25 of  the final determination 
dated 10 May 2011 issued by DGAD.    
More specifically, as mentioned in paragraph 25 of  the final determination, pursuant to and in 
compliance with the orders dated 6 January 2011 of the Hon'ble Division Bench of the Madras High 
Court, orders dated 3 February 2011 of the Hon'ble Supreme Cour t and orders dated 30 March 2011 
of the Hon'ble Division Bench of the Madras High Cour t, the subject investigation has been continued 
by the Authority beyond the maximum time limit pr escribed under the WTO Agreement and the Anti-
dumping Rules.  
 
Question 3 
 
In its final determination issued on 10 May 2011, DGAD states that "pursuant to the 
orders dated 6 January 2011 of the Hon'ble Division Bench of the Madras High Court and 
orders dated 3 February 2011 of the Hon'ble Supreme Cour t, the subject investigation has been 
continued beyond the maximum time limit pres cribed under the Rules and WTO Agreement i.e. 
18 February 2011". Could India explain how th is practice is consistent with the WTO 
Agreements?  
 
Reply 
  This has been explained in response to Q Nos. 1 & 2.  The Anti-Dumping Agreement 
recognizes that the observance of the time limits mentioned under Articles 9.3.1 and 9.3.2 in the 
assessment/ refund proceedings may not be possibl e where the product in question is subject to 
judicial review proceedings. India is of the vi ew that the provision of footnote 20 of the AD 
Agreement in the context of assessment review/ ref und proceedings should be mirrored in Article 5.10 
of AD Agreement as in a particular case involving   long drawn judicial proceedings, completion of 
investigation within the stipulated timeline may be beyond the control of the Investigating Authority.  
All the Members do recognize that Members have to acco rd the highest regard to the judicial review 
process.    G/ADP/Q2/IND/5 
 Page 3 
 
 
  Question 4 
 
Article 6.9 of the AD Agreement stipulates that "the authorities shall, before a final 
determination is made, inform all interested partie s of the essential facts".  In this case, neither 
the Government of Japan nor the Japanese compani es identified as interested parties had been 
informed of the essential facts before the fina l determination, which prevented them from 
defending their interests guaranteed under the AD agreements.  This means that, the Government of Japan and the Japanese companies involved were deprived of an opportunity to 
defend their interests.  Could India explain ho w this practice is consistent with the AD 
Agreement?   
 
Reply 
 
 The Embassy of Japan in India was regularly in formed regarding this investigation at various 
stages. The Embassy of Japan was informed on 12 August 2009 regarding r eceipt of petition from the 
domestic industry for initiation of the subject anti- dumping investigation. The initiation notification 
was sent to the known producers/exporters fro m Japan as well as the Embassy of Japan on 
27 August 2009. The Gazette Notification of the Preliminary Finding dated 19 February 2010 was 
sent to the producers/exporters of Japan as well as  the Embassy of Japan vide office letter dated 
22 March 2010. There was no response from any Jap anese producer/exporter. The letter for attending 
first oral hearing held on 10 May 2010 was sent to the Embassy of Japan by the DGAD on 
23 April 2010. The letter for attending the second oral  hearing held on 1 March 2011 was sent by the 
DGAD to the known producer/exporter/consultant as well as Embassy of Japan on 25 February 2011. 
No exporter's questionnaire response was received  from the producers/exporters from Japan within 
the prescribed time limit. After the issue of preliminary findings dated 19 February 2010, 
M/s Mexichem Fluor Japan Ltd, Japan submitt ed a request on 2 June 2010, through their 
representative, for condonation of de lay for submission of exporter's questionnaire response. In view 
of the undue delay in filing the request for c ondonation of delay the DGAD did not accept the request 
for condonation of delay for filing the exporter's qu estionnaire response. However, the Disclosure 
Statement was sent to the above exporter's re presentative and comments received thereof were 
examined and addressed in the final findings notifi cation by the Authority.  Therefore DGAD issued 
the disclosure statement in accordance with Ar ticle 6.9 of the Anti-dumping Agreement.  
 
2. Polyvinyl Chloride Paste Resin (PVC Paste Resin) 
 Question 5 
 
The Indian Regulatory Authorities (DGAD) initiated the investigation of this product on 
3 November 2009.  A preliminary determination was made on 11 June 2010.  Since then, there had been no announcement from DGAD until the Embassy of Japan in India received disclosure of the essential facts on 27 April 2011, which indicated the intention of DGAD to issue 
the final determination on 2 May, two working days after the disclosure of essential facts and the last day before the investigation exceeded 18 months.  On 2 May 2011, DGAD made the final 
determination.  
 
Article 5.10 of the AD Agreement stipulates that  "investigations shall, except in special 
circumstances, be concluded within one year".  In this case, DGAD did not issue a notice of 
extension while it did for the investigation of 1,1,1,2-Tetrafluoroethane or R-134a of all types.  
Could India explain the "special circumstances" which prevented the investigation from 
concluding within one year?  In addition, please explain why there was no public notice of extension while DGAD issued one for the invest igation of 1,1,1,2-Tetrafluoroethane or R-134a. 
 G/ADP/Q2/IND/5 
Page 4  
 
  Reply 
 
 As regards the publication of notification regard ing extension of period of investigation, there 
is no requirement under Article 5.10 of the Anti- Dumping Agreement to publish the time extension 
notification.  
 
 As regards the anti-dumping investigation concer ning 1,1,1,2-Tetrafluoroethane or R-134a of 
all types, there was judicial intervention in the matter and the findings in that case were issued in 
terms of High Court of Madras's directions.  
 As regards the special circumstances in the PV C Paste Resin case are concerned, there were 
certain issues that were brought to the notice of th e DGAD for the first time by the user industry such 
as of significant volatility in the prices of the inputs and as well as  prices of the 'product under consideration' during the period of investiga tion; whereupon the DGAD decided to undertake a 
month-wise analysis to determine dumping and c onsequent injury resulting into change in the 
methodology in the computation of not only the dumping margin but also the injury margin.  This 
necessitated calling for fresh information/data from th e participating interested parties and hence the 
time extension for six months was sought and allowe d by the competent authority to complete this 
investigation.  
Question 6 
 
Article 6.9 of the AD Agreement stipulates that  the disclosure of the essential facts under 
consideration "should take place in sufficient ti me for the parties to defend their interest".  
Could India explain how the practice above is consistent with the AD Agreement?  
 Reply 
 
 The Disclosure Statement was issued on 21 Ap ril 2011 and the communication to that effect 
was sent to all interested parties participating in th e investigation.  As regards the issue of sufficient 
time not being provided to the Government of Japan , it is submitted that sufficient opportunities, from 
time to time, were provided to all stakeholders, including to the Government of Japan, during the 
course of one and a half years long investigation pr ocess.  The investigation process in any case had to 
be completed within a span of one and a half year s which was to expire on 2 May 2011.  Therefore, 
appropriate time was provided to all stakehol ders to respond to the Disclosure Statement. 
 
Question 7 
 
According to the public notice of the imposition of provisional measures issued on 
26 July 2010," the anti-dumping duty imposed und er this notification shall be effective up to 
and inclusive of the 25 January 2011."  In spite of this notice, Indian customs continue to collect a provisional anti-dumping duty up even now.  Article 7.4 of the AD agreement stipulates that "[t]he application of provisional measures shall be limited to as short a period as possible, (...), 
to a period not exceeding six months".  Could India explain how this practice is consistent with 
the AD Agreement?  
 
Reply 
 
 As per Department of Revenue notifica tion no. 77/2010-Customs dated 26 July 2010 the 
provisional anti-dumping duty imposed was effective up to 25 January 2011.  Therefore, if there is any specific instance of collection of any excess anti-dumping duty beyond 25 January 2011 in respect of exports from any Japanese exporter, the same may be liable for refund.     G/ADP/Q2/IND/5 
 Page 5 
 
 
  Question 8 
 
In this case, the imports from Japan turned ou t to be negligible, 0.19 per cent of the total 
imports, in the final determination.  In th e preliminary determination, DGAD recommended the 
imposition of an anti-dumping duty on the imports from Japan, and the Ministry of Finance 
issued the notice to impose US$111.63/MT in anti-dumping duty. 
 
Article 10.3 of the AD Agreement stipulates that "[i]f the definitive duty is lower than 
the provisional duty paid or payable, (…), the difference shall be reimbursed."  Could India clarify whether the duties collected  will be promptly reimbursed?  
 
Reply 
 
 As regards the determination of quantum of  imports from Japan is concerned, the DGAD has 
given a detailed examination of the position in para . 6.5 of the final determ ination dated 2 May 2011 
on the basis of details of imports given in the subm ission of M/s. Kaneka Corporation, Japan.  The 
DGAD concluded that the imports of the subject  goods during the POI from Japan were below the de 
minimis  criteria as per the Anti-dumping Agreement and recommended to terminate the investigation 
so far as the imports of the subject goods from Japan were concerned.   
  As regards the refund of anti-dumping duty, Rule  21 of the Customs Tariff (Identification, 
Assessment and Collection of Anti-Dumping Duty  on Dumped Articles and for Determination of 
Injury) Rules, delineate the refund process.  
 As per Rule 21(2) if, the anti-dumping duty fixe d after the conclusion of the investigation is 
lower than the provisional duty already imposed and co llected, the differential shall be refunded to the 
importer.  Further as per Rule 21(3), if the provis ional duty imposed by the Central Government is 
withdrawn in accordance with the provisions of sub -rule (4) of Rule 18, the provisional duty already 
imposed and collected, if any, shall be refunded to the importer.  
 
 Refund of anti-dumping duty will be governed by the above provisions of the Anti-dumping 
Rules.   
 
 
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