98/72/EC: Commission Decision of 8 January 1998 concerning an application for the refund of anti-dumping duties collected$on imports of woven polyolefin sacks originating in the People's Republic of China (Only the English text is authentic)
Date: 1998-01-08
Institutions: European Commission
Subjects: China, anti-dumping duty, import, packaging product, plastics

17. 1. 98

EN

Official Journal of the European Communities

L 11/43

COMMISSION DECISION

of 8 January 1998

concerning an application for the refund of anti-dumping duties collected on
imports of woven polyolefin sacks originating in the People’s Republic of China

(Only the English text is authentic)

(98/72/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation (EC) No 384/96 of
22 December 1995 on protection against dumped
imports from countries not members of the European
Community (1), as amended by Regulation (EC) No 2331/
96 (2) (hereafter referred to as the Basic Regulation), and
in particular Article 11 thereof,

After consulting the Advisory Committee,

Whereas:

A. PROCEDURE

(1)

(2)

(3)

1990

Council Regulation (EEC) No 3308/90 (3) of 15
November
anti-
imposed
dumping duty on imports of woven polyolefin
sacks falling within CN code ex 6305 31 91 and
originating in the People’s Republic of China. The
rate of the definitive duty was set at 43,4 %.

definitive

a

Council Regulation (EEC) No 2346/93 (4) of 23
August 1993 amended the above Regulation and
raised the duty rate to 85,7 %.

On 18 May 1995, Envopak Group Ltd imported
one shipment of DHL courier bags made from
woven polypropylene originating in China. The
concerned were declared within tariff
goods
heading 6305 39 00. This classification was chal-
lenged by UK Customs and Excise which deter-
mined on 26 May 1995 that the goods’ proper
classification was within heading 6305 31 91 and
that
to the anti-
dumping duty of 85,7 %. The anti-dumping duties
were finally paid on 25 July 1995.

they were therefore subject

(4)

The final purchaser of the goods, the international
courier company DHL submitted an appeal on 20
June 1995 to UK Customs and Excise for a
Departmental Review under the UK law imple-

(1) OJ L 56, 6. 3. 1996, p. 1.
(2) OJ L 317, 6. 12. 1996, p. 1.
(3) OJ L 318, 17. 11. 1990, p. 1.
(4) OJ L 215, 25. 8. 1993, p. 3.

menting Article 245 of the Community Customs
Code against the imposition of the anti-dumping
duty, claiming that the goods should be classified
within customs heading 4202 as travel bags. The
classification within customs heading 6305 31 91
was confirmed by this review on 28 June 1995.

Envopak subsequently lodged a formal Notice of
Appeal on 2 August 1995 to the VAT and Duties
Tribunal set up pursuant to Article 245 of the
the
Community Customs Code claiming that
goods
classified within
heading 4202. The Tribunal heard the appeal on 7
December 1995 and confirmed on 16 January
1996 that the classification within tariff heading
6305 31 91 was correct.

concerned should be

By Notice of Initiation No 95/C 271/03 (5) and
lodged by the European
following a complaint
Association for Textile Polyolefins, the Commis-
sion initiated, on 17 October 1995, a review
pursuant to Article 11(2) and (3) of Council Regu-
lation (EC) No 3283/94 of the anti-dumping meas-
ures in force on imports of woven polyolefin sacks
originating in the People’s Republic of China.

On 21 March 1996, Envopak Group Ltd made a
the goods
submission to the Commission that
concerned did not fall within the scope of Regula-
tion (EEC) No
3308/90. The Commission
confirmed that it considered that, in the framework
of the review, the goods concerned fell within the
scope of Regulation (EEC) No 3308/90 and
informed Envopak Group Ltd on 20 June 1996.

On 16 July 1996 Envopak Group Ltd lodged an
application pursuant to Article 11(8) of the Basic
Regulation for the refund of the definitive anti-
dumping duties paid on the importation of a ship-
ment of woven polyolefin sacks, originating in the
People’s Republic of China, on 18 May 1995.

On 30 June 1997, the Commission disclosed to
the applicant the main facts and considerations on
intended to declare the
the basis of which it

(5)

(6)

(7)

(8)

(5) OJ C 271, 17. 10. 1995, p. 3.

L 11/44

EN

Official Journal of the European Communities

17. 1. 98

(9)

(10)

(11)

(12)

(13)

application inadmissible. The applicant was given
the opportunity to submit comments prior to the
final decision. The applicant commented that it
found that the Commission had inappropriately
dealt with the issue of the like product in the
framework of the refund procedure.

B. ARGUMENTS OF THE APPLICANT

The applicant claims in its applications pursuant
to Article 11(8) of the Basic Regulation that the
dumping margins in respect of
the polyolefin
woven sacks imported on 18 May 1995 has been
eliminated in comparison with the level of 85,7 %
of anti-dumping duty set by Regulation (EEC) No
3308/90.

In addition, the applicant argued that the product
under consideration should not be classified within
customs heading 6305 31 91 and, should therefore
not be subject to the anti-dumping duties.

The applicant
the product
further argued that
under consideration, even if classified within
customs heading 6305 31 91 does not constitute a
like product and, should therefore not be subject to
the anti-dumping duties.

Finally, the applicant acknowledged in its applica-
tion for a refund that it was submitted out of time.
However, it claimed that the Commission should
take into account the exceptional circumstances of
the case,
in particular the length of the appeal
procedures before the national Customs authorities
described at
recitals (4) and (5) above and of
making the submission to the Commission on the
issue of the like product, to grant an extension of
the time limit for the submission of the applica-
tion and consider it admissible.

C. ADMISSIBILITY

1. Like product and classification

The refund procedure is not intended to address
the issues of like product or customs classification.
Article 11(8) of the Basic Regulation stipulates that
an importer may request reimbursement where it
is shown that the dumping margin on the basis of
which the duties were paid has been eliminated or
reduced below the level of duty in force. This
implies that the imports of the goods in question
had been rightly determined to be covered by the
measures in force. Therefore,
like
product and customs classification are irrelevant in

the issues of

the context of a refund procedure and have been
dealt with in their appropriate frameworks as
described in recitals (3) to (6).

2. Time limit

(14) Article 11(8) of the Basic Regulation states that in
requesting a refund the importer shall submit an
application within six months of
the date on
which the amount of the definitive duties to be
levied was duly determined by the competent
authorities. This submission of an application in
due time is an absolute requirement for the admis-
sibility of a refund application, which is not subject
to exceptions regardless of the circumstances.

Therefore, neither the appeal procedures before the
national Customs authorities nor the submission
before the Commission on the issue of
like
product could have had the effect of interrupting
the six month time limit of Article 11(8).

(15)

The amount of definitive duties to be levied is
therefore considered to have been determined no
later than 26 May 1995. The six month time limit
therefore expired no later than 26 November 1995.

The application which was submitted on 25 July
1996 should therefore be considered as out of time
and rejected as inadmissible,

HAS ADOPTED THIS DECISION:

Article 1

The application for the refund of anti-dumping duties
submitted by Envopak Group Sales for the importation
made on 18 May 1995 of woven polyolefin sacks origin-
ating in the People’s Republic of China is hereby
rejected.

Article 2

This Decision is addressed to the United Kingdom of
Great Britain and Northern Ireland and to Envopak
Group Limited.

Done at Brussels, 8 January 1998.

For the Commission

Leon BRITTAN

Vice-President