INDIA – ANTI-DUMPING DUTIES ON USB FLASH DRIVES FROM THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU REQUEST FOR CONSULTATIONS BY THE SEPARATE CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU
Document: REQUEST FOR CONSULTATIONS BY
Date: 29 September 2015
Document codes: WT/DS498/1; G/L/1121; G/ADP/D111/1
Complainant: Taiwan
Respondent: India
Dispute stage: Consultation
Agreements cited: Art. X:2  GATT 1994Art. 2.2, 2.4, 2.6, 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 5.10, 6.1, 6.2, 6.4, 6.5, 6.6, 6.9, 6.10, 6.11, 9.3, 12.2.2, Annex II  Anti-dumping

INDIA – ANTI-DUMPING DUTIES ON USB FLASH DRIVES FROM THE SEPARATE
CUSTOMS TERRITORY OF TAIWAN, PENGHU, KINMEN AND MATSU
REQUEST FOR CONSULTATIONS BY THE SEPARATE CUSTOMS TERRITORY
OF TAIWAN, PENGHU, KINMEN AND MATSU
The following communication, dated 24 September 2015, from the delegation of Separate Customs
Territory of Taiwan, Penghu, Kinmen and Matsu to the delegation of India and to the Chairperson
of the Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU.

Agreement on Tariffs and Trade 1994 (the "GATT 1994") and Article 17 of the Agreement on
Implementation of Article VI of the GATT 1994 ("AD Agreement"), with regard to the imposition of
definitive anti-dumping duties ("ADD") by India on USB Flash Drives (the "subject goods") from,
inter alia, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu.
2. India initiated an anti-dumping ("AD") in vestigation against the subject goods on 21 June,
2013 through a formal notification in the Gazette of India. India issued an affirmative finding
recommending imposition of ADD by way of anot her notification dated 19 December, 2014. India
issued a customs notification, levying ADD on the subject goods on 22 May, 2015.
3. This request covers the AD investigation against the subject goods and the consequent ADD
imposed on the subject goods, inter alia, from the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu through any notice, notifications, findings, determination, decision
memorandum, orders, or any other instrument issu ed by India from time to time in connection
with the said AD investigation. A non-exhaustive list of such notifications, findings, orders, etc.
issued by India in the said case, is as under:
a. Initiation Notification dated 21 June, 2013;
b. Disclosure Statement dated 5 December, 2014;
c. Final Findings dated 19 December, 2014; and
d. Customs Notification No. 22/2015 dated 22
 May, 2015.
4. The request also covers all the amendments , replacements, implementing acts or any other
related measure in connection with the above, wh ether issued before or after the date of the
present request for consultations.
5. In addition, the measures at issue also include the provisions of India’s laws as relevant and
applied in the aforesaid AD investigation, including in particular, the Customs Tariff (Identification,
Assessment & Collection of Anti-Dumping Duty on Dumped Articles and for Determination of
Injury) Rules, 1995.
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6. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu considers that
Annexure II, sub clause (iii) of the Customs Tariff (Identification, Assessment & Collection of Anti-
Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 read with
Rule 9(2) of the said Rules is "as such" inconsistent with Article 3.3 of the AD Agreement as it
does not require an assessment of whether cumulative assessment of the effects of imports from
more than one country subject to simultaneous an tidumping investigations is appropriate in light
of the conditions of competition "between the imported products". India, as a policy, as confirmed
by systematic application of the provision, has also acted and continues to act inconsistently with
Article 3.3 of the AD Agreement as it does no t require an assessment of whether cumulative
assessment of the effects of the imports from mo re than one country subject to simultaneous
antidumping investigations is appropriate in light of the conditions of competition " between the
imported products".
7. Further, the Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu considers that
the measures at issue described in paragraphs 2 to 4 above are inconsistent with the provisions of
the GATT 1994 and the AD Agreement. In particular, the above measures are inconsistent with the
following provisions:
a. In connection with the initiation of the investigation:
i. Article 5.2 and 5.3 of the AD Agreement because the application filed by the
domestic industry did not contain "sufficient" evidence with regard to (a) normal
value, export price and dumping margin as regards the subject goods exported from
the Separate Customs Territory of Taiw an, Penghu, Kinmen and Matsu, and (b)
injury and causal link to the domestic industry in India.
ii. Article 5.3 of the AD Agreement because India did not engage in an objective and
meaningful examination of accuracy, adequacy and sufficiency of the information
filed by the domestic industry.
b. In connection with rejection of questionnaire responses and application of facts
available:
i. Article 6.8 and Annex II of the AD Agreement because, inter alia,
1. India resorted to facts available without fulfilling the conditions prescribed in
Article 6.8.
2. India rejected information submitted by the known exporters in violation of the
conditions prescribed in paragraphs 1, 3, 6 and 7 of Annex II of the AD
Agreement.
3. India rejected information submitted by the certain known exporters on account
of the failure of certain unrelated entities to file separate questionnaire
responses in the AD investigation.
4. India failed to consider facts that are in the possession of the investigating
authority and on the records of the case.
5. India engaged in the punitive application of facts available.
ii. Article 6.8 and paragraph 5 of Annex II of the AD Agreement because India
disregarded all the information submitted by all the known exporters.
iii. Articles 6.1, 6.2, 6.4 and 6.8, read with 6.11 of the AD Agreement because India
refused to accept the information filed on record by a known exporter (who is
incorporated outside the Separate Customs Territory of Taiwan, Penghu, Kinmen and
Matsu).
iv. Article 6.8 and paragraph 7 of Annex II of the AD Agreement because India failed to
apply the "best information" available. In particular,
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1. India did not evaluate how the facts applied was the most fitting or "most
appropriate" in relation to each known exporter and other exporters of the
subject goods.
2. India has used information from secondary sources without making any effort to
check this information from other independent sources.
v. Article 6.8 read with Article 6.1 of the AD Agreement because India failed to inform
the known exporters in sufficient detail, the alleged deficiencies or gaps in the
information filed by them, the consequences of such deficiencies and further failed to
provide an opportunity to clarify and correct such alleged deficiencies or gaps within
a reasonable period of time.
c. In connection with the definition of the product under consideration and like article:
i. Articles 2.2, 2.4, 3.1, 3.4, 3.5, and 3.6 read with Article 2.1 and 2.6 of the AD
Agreement because for a subset of the subject goods covered within the scope of the
product under consideration, the domestic industry in India does not produce like
articles.
ii. Article 9.3 read with Article 2.1 and 2.6 of the AD Agreement because a subset of the
subject goods on which ADD has been imposed has not been imported into India and
for a subset of the subject goods on which ADD has been imposed, the domestic
industry in India does not produce like articles.
d. In connection with the calculation of normal value and dumping margin:
i. Article 2.2 of the AD agreement because India has not used a comparable price of
the like product destined for a third country or the cost of production in the country
of origin plus a reasonable amount for administrative, selling, and general costs, as
the normal value, without an adequate explanation.
ii. Article 2.4 (last sentence) of the AD agreement because India deprived interested
parties of the opportunity to make informed requests regarding adjustments for
ensuring fair comparison between the export price and constructed normal value.
iii. Article 2.4 and 2.4.2 of the AD Agreement because India calculated a single dumping
margin the subject goods consisting of 14 different grades, even though it did not
determine normal value for 5 of these 14 grades.
iv. Article 6.10 because India did not calculate individual margins of dumping for each of
the known exporters from the Separate Customs Territory of Taiwan, Penghu,
Kinmen and Matsu.
v. Article 2.2.1, 2.4 and 6.10 of the AD Agreement because India rejected information
pertaining to normal value and export price for certain exporters on the ground that
unrelated entities engaged in exports to India did not cooperate in the investigation.
vi. Article 9.3 of the AD Agreement and Article VI of the GATT because the margin of
dumping was arrived without determining normal value in accordance with Article 2
of the AD Agreement.
e. In connection with the injury determination:
i. Article 3.2 of the AD Agreement because India has not considered the existence of a
link or relationship or explanatory force between the import of the alleged dumped
goods and the price of the domestic like products.
ii. Article 3.3 of the AD Agreement because there is no determination on record that the
cumulative assessment of the imports from subject countries is appropriate in the
light of the conditions of competition between the imported product from these
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countries and the conditions of competitio n between such imported product and the
like domestic products.
iii. Article 3.4 of the AD Agreement because India has not examined and evaluated the
existence of a link or relationship or ex planatory force between the alleged dumped
goods and the state of the domestic industry.
iv. Articles 3.1 and 3.5 of the AD Agreement, as well as Article VI of the GATT because
India has engaged in a faulty causal link analysis.
f. In connection with the conduct of the investigation:
i. Article 5.10 of the AD Agreement because India has not concluded the investigation
within 18 months from the date of initiation.
ii. Article 6.4 of the AD Agreement because India did not provide timely opportunity for
interested parties to see the import statistics used in the investigation, the export
price and normal value applied by the investigating authority, and the source of such
information.
iii. Article 6.2 of the AD Agreement because in absence of the information relating to
import statistics used in the investigation, the export price and normal value applied
by the investigating authority and the source of such information, the interested
parties did not get a full opportunity to defend their interest.
iv. Article 6.5 of the AD Agreement because (i) information which, by nature, was not
confidential, was treated as confidential information by India; and (ii) India failed to
require interested parties providing confidential information to furnish non-
confidential summaries thereof.
v. Article 6.6 of the AD Agreement because India did not engage in an objective and
meaningful examination of the information supplied by the domestic industry.
vi. Article 6.9 (first sentence) of the AD Ag reement because India did not inform the
interested parties of the ‘essential facts’, including but not limited to:
 the import statistics;
 normal value computation;
 export price computation;
 dumping margin computation;
 the sales that were used in comparisons between the normal value and export
price;
 the basis on which comparison was made between different grades / types of
the subject goods and adjustments made, if any, for differences that affect price
comparability;
 computation of the lesser duty that is adequate to remove injury;
 as well as the source of all such information.
vii. Articles 6.2 and 6.9 (first sentence) of the AD Agreement because India neither
offered full opportunity to a known exporter from the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu to defend its interest nor provided disclosure
statement to this exporter.
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viii. Article 6.9 (second sentence) of the AD Agreement because India did not provide
sufficient time for the parties to defend their interests.
ix. Article 12.2.2 of the AD Agreement because India did not publish all relevant
information, including but not limited to the information detailed in Article 12.2.1 of
the AD Agreement.
x. Article X:2 of the GATT because India has enforced the ADD on the subject goods
before it has been officially published.
8. Consequently, the anti-dumping duty imposed against the subject goods in the AD
investigation is inconsistent with Article 18 of AD Agreement and Article VI of GATT 1994.
9. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu further considers that
the measures at issue have a serious adverse im pact on the export of subject goods from the
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu to India. Pursuant to
Article XXIII:1 of GATT 1994, read with Article 3. 8 of the DSU, the Separate Customs Territory of
Taiwan, Penghu, Kinmen and Matsu considers that the measures at issue cause nullification or
impairment of benefits accruing to it under GATT 1994.
10. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu reserves its right to
raise additional claims and legal matters in relation to the measures at issue during the
consultations.
11. The Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu looks forward to the
reply from India, within the prescribed time li mit and proposes that the date and venue of the
consultations may be mutually agreed.