World Trade Organization Organisation Mondiale du Commerce Organización Mundial del Comercio

Special additional duty (SAD or special CVD) is levied on the goods at the time of import in lieu of taxes such as state VAT, sales tax, levied or collected by State/Government or local taxes/charges. Special CVD is charged at 4% ad valorem. Goods/items that are exempt from excise duty or state VAT are also exempt from additional duty or special additional duty respectively.

In some of the state governments such as Tamil Nadu, Andhra Pradesh and National capital Territory of Delhi (NCT Delhi) the wholesale or retail trade of procurement or sale of alcoholic beverages is done by state owned corporations.

Canada 10:

The Secretariat's Report also mentions that under the Foreign Trade Policy 2009 14, the Directorate General Foreign Trade (DGFT) may authorize other companies to import any goods subject to state trading, when state trading enterprises (STEs) are not able to supply the market.

10. 
    Do Indian authorities notify this in advance? If yes, can you explain the notification process and where this information can be obtained?
    

Reply: Paragraph 2.11 of the FTP prescribes that the DGFT may grant an authorisation to any person to import and export any of these goods. To get such authorisations a person has to apply to DGFT.

Canada 11:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 73, page 60:

The Secretariat's Report describes the process by which anti dumping investigations (and it is assumed countervailing duty investigations) are initiated by the Department of Commerce's Directorate General of Anti Dumping and Allied Duties (DGAD).

11. 
    Could India please provide examples of the criteria and other factors that the DGAD considers in deciding whether to initiate an anti dumping investigation on its own accord. Please also provide details on any assistance that the Department may make available, either formally or informally, to potential complainants for trade remedy action.
    

Reply: Ex officio initiation is consistent with Article 5.6 of Anti Dumping Agreement. As per Rule 5 (4) of India's Anti dumping Rules, an investigation can be initiated by the DGAD (Investigating Authority) on its own accord or suo moto basis. There has been no ex officio initiation of anti dumping investigation under this provision during the review period.

Information is provided on the website of the Department of Commerce regarding guidelines and frequently asked questions (FAQs) on anti dumping to guide domestic industry and DGAD may provide assistance to the interested parties as per Article 6.13 of the Agreement on Anti Dumping.

Canada 12:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 74, page 61:

The Secretariat's Report refers to the possibility that the duration of investigations may be extended due to "judicial interventions by courts".

12. 
    Could India please provide details as to the circumstances in which courts may intervene in trade remedy investigations, particularly before the final determination is made, and, if possible, provide specific examples of cases in which courts have intervened.
    

Reply: Various high courts of India and the Supreme Court of India (the Apex Court) may intervene in trade remedy investigations, particularly before the final determination is made, as per the provisions of Article 226 and Article 32 of the Constitution of India. This writ jurisdiction is generally invoked whenever the ciurts find that the matter is in larger public interest or there is want of jurisdiction or when issues relate to allegations of errors in the investigations for which there may not be legal remedy before the Appellate Tribunal (CESTAT). Some of the cases where such writ has been invoked include soda ash from Pakistan and others, melamine from EU and others and certain coated papers from EU and others.

Canada 13:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 75, page 61:

1The Secretariat's Report states that the "Government is obliged to restrict the anti dumping duty to the lower of the margin of dumping or the margin of injury."

13. 
    Could India please describe the procedural process and standards by which determinations regarding the "margin of injury" are made. Are such standards applied in all investigations or are they subject to consideration only through petitions by an interested party? How often is the "margin of injury" applied in investigations? Is the concept also applied during expiry reviews?
    

Reply: The margin of injury is determined as the difference between landed value of subject goods from subject country and the non injurious price of domestic like product determined for the domestic industry during the same period (period of investigation).

The margin of injury is determined in all investigations as India follows lesser duty rule. Anti dumping duty is imposed after taking into account lesser of dumping margin and injury margin and thus margin of injury is relevant in all situations whenever this is lesser than dumping margin. This concept is also applied in reviews.

Canada 14:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 77, page 61:

The Secretariat's Report indicates that an anti dumping investigation may be terminated at any stage in the process, inter alia, upon a written request by the domestic industry.

14. 
    Could India please elaborate on the process by which this type of termination is affected.
    

Reply: Rule 14 of India's Anti Dumping Rules contain provisions regarding termination of anti dumping investigations. A copy of the Rules can be downloaded from the website www.commerce.nic.in. For termination of investigations, a notification is issued by the Authority which is Gazetted and published for information to all concerned.

Canada 15, 16, 17:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 79, page 62:

1The Secretariat's Report outlines the process by which "changed circumstances" reviews may be conducted.

15. 
    Could India please describe the evidentiary standards under which DGAD may initiate or self initiate a "changed circumstances" review and the standards by which affirmative determinations of "changed circumstances" may be made?
    
16. 
    How often have "changed circumstances" reviews been undertaken and how often have such reviews resulted in the modification or termination of a measure?
    

Further, it is assumed that DGAD can either modify or terminate anti dumping/countervailing duty measures following such a review.

17. 
    Can India please confirm the above?
    

Reply: A changed circumstances or mid term review is conducted by the Authority under Section 9A of the Customs Tariff Act read with Rule 23 of the Anti dumping rules. The evidentiary standards are provided in detail on the website www.commerce.nic.in . There are cases where such reviews have resulted in modification or termination of measures.

Canada 18:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 84, page 63:

1The Secretariat's Report specifies that between 2006 and October 2010, 40 appeals were made to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), but only 7 cases were settled.

18. 
    Could India please provide additional information, including directives and time lines on the process, by which such appeals are heard. Does India plan to implement any further directives to improve, if necessary, the efficacy of this process?
    

Reply: Section 129B (2A) of the Customs Act, 1962 (CA 62) provides that the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) shall dispose of the appeals, as far as possible, within a period of three years from the date of filing of appeal. The procedures for filing and handling of appeals are prescribed in the CESTAT Procedure Rules, 1982. The CESTAT is settling a large number of cases every year inclusive of cases relating to antidumping measures.

Canada 19:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraph 85, page 63:

The Secretariat's Report states that India is one of the most active users of anti dumping measures among WTO Members. In fact, India is the most active user of anti dumping measures, having initiated 613 anti dumping duty investigations in the January 1, 1995   June 30, 2010 period, outranking second place United States (442) and third place European Union (414) by a fairly wide margin.

19. 
    Could India provide more insight into the reasons (e.g. size, ownership and sensitivity of certain markets   chemical products make up 36.8 per cent of the investigations) for the high frequency of use of anti dumping duty measures by India, particularly in relation to other WTO Members?
    

Reply: During the period under review, anti dumping investigations were initiated under Rule 5 of India's Anti Dumping Rules only on the basis of applications filed by the concerned domestic industries as per the provisions of the Anti Dumping Agreement.

Canada 20, 21:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (a) Anti dumping and countervailing measures: paragraphs 85 86, page 63:

The Secretariat's Report discusses the products and trading partners subject to anti dumping duty investigations. The Report indicates that imports from China are the most frequently investigated, accounting for 137 out of 613 anti dumping duty investigations during the January 1, 1995 June 30, 2010 period (22.3%).

20. 
    In this context, please provide details as to the approach that India takes with respect to imports from China in its anti dumping investigations, particularly with respect to the question of whether China is treated as a market or non market economy for purposes of these investigations.
    

Reply: In terms of Para 8 (2) of the Annexure 1 of India's Anti Dumping Rules, China PR has been treated as a non market economy country subject to rebuttal of the above presumption by the exporting country or individual exporters in terms of the above Rules. Further, as per Paragraph 8 of the Annexure I to the Anti Dumping Rules as amended, the presumption of a non market economy can be rebutted if the exporter(s) from China PR provide information and sufficient evidence on the basis of the criteria specified in sub paragraph (3) in Paragraph 8 and establish that to the contrary. The cooperating exporters/producers of the subject goods from China are required to furnish necessary information/sufficient evidence as mentioned in the criteria under sub paragraph (3) of paragraph 8 in response to the Market Economy Treatment questionnaire to enable the Designated Authority to make its determination.

India's Anti dumping Rules are available on the website www.commerce.nic.in.

1It is noted that India has conducted only one countervailing duty investigation against any imports (in this case, imports from China) in the January 1, 1995   June 30, 2010 period, when 250 such investigations were conducted by all WTO members.

21. 
    Can Indian authorities provide an explanation as to reasons why India has conducted only one such countervailing duty investigation during the period between January 1, 1995 and June 30, 2010?
    

Reply: Countervailing duty investigations are initiated under Rule 6 of the Customs Tariff (Identification, Assessment and Collection of Countervailing Duty on Subsidized and for Determination of Injury) Rules, 1995 which is based on SCM Agreement. As per the above, the investigation is initiated only after an application to this effect is submitted before the Authority and the Authority finds prima facie evidence of subsidy, injury and a causal link between such subsidized imports and alleged injury to the Domestic Industry. During the review period, not many applications were received by the Authority which could fulfil the conditions as per Rule 6.

Canada 22:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (b) Safeguards: paragraphs 91 98, pages 65 67:

The Secretariat's Report discusses the procedures and application of safeguard measures by India. India is the most active user of this particular measure, having initiated 26 such investigations during the January 1, 1995   October 31, 2010 period, a period during which 216 such investigations were initiated by all WTO Members.

22. 
    Similar to anti dumping duty investigations, can Indian authorities provide an explanation as to the reasons for the comparatively high frequency of the initiation of safeguard investigations?
    

Reply: Safeguard investigations are initiated based on the applications received in a given period as per the provisions of the safeguards agreement.

Canada 23:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (b) Safeguards: paragraph 92, page 65:

The Secretariat's Report indicates that the advice of the Standing Board on Safeguards is presented to the Finance Minister (in cases regarding the imposition of safeguard duties) and to the Commerce Minister (in cases regarding the imposition of quantitative restrictions).

23. 
    Are the 1Board's recommendations publicly disclosed? When safeguard duties or quantitative restrictions are imposed, is a statement of reasons released to the public to explain the rationale for employing the measure? Is India planning to implement any changes to improve transparency within the safeguard adoption process?
    

Reply: The recommendations of the Standing Board on Safeguards are not disclosed publicly. The Board functions as an intervening stage of decision making after the recommendation of the DG Safeguards, the Investigating Authority and the final consideration by the Central Government to decide whether to impose safeguard measures. India makes notifications to the WTO Committee on Safeguards as per the requirements of the Safeguard Agreement with a view to ensure transparency of the safeguard measures imposition.

Canada 24:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (b) Safeguards: paragraph 95, page 66:

The Secretariat's Report states that India's safeguard legislation was amended in 2010 to allow for the use of quantitative restrictions as remedy measures.

24. 
    As India was already the most active user of safeguard measures, why was it decided that India needed even greater flexibility to impose safeguard measures, and what additional objectives are achieved through the use of quantitative restrictions?
    

Reply: The amendment to the Foreign Trade (Development and Regulation) Act (FTDR Act) was made through an Amendment Act of 2010 in August 2010 to make the enabling provisions for imposition of quantitative restrictions as safeguard measures in accordance with the Safeguards Agreement. The existing Safeguard Rules permit imposition of safeguard measures through tariff increase.

Canada 25:

Report by the Secretariat (WT/TPR/S/249): 1Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (viii) Contingency Measures: (b) Safeguards: paragraph 97, page 66:

The Secretariat's Report indicates that only two safeguard investigations were initiated in 2008, but that thirteen were initiated during 2009. This increase in safeguard investigations is particularly troublesome given that global trade volumes reduced significantly in 2009.

25. 
    Could India provide more explanation for this increase in safeguard investigations, particularly in the context of its pledge to reject protectionism and promote an open global economy?
    

Reply: Even though thirteen cases were initiated during 2009, safeguard measures were imposed in only four cases for a brief period after detailed investigations and due consideration of evidence on record, which clearly shows India's resolve to promote an open global economy. At present only one safeguard measure is in force.

Canada 26:

Report by the Secretariat (WT/TPR/S/249): Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (ix) Technical regulations and standards: (b) Technical regulations: paragraph 104, page 68:

The Secretariat's Report describes the process for the development of technical regulations, including notification processes, assessments and public comment periods.

26. 
    Can India please provide an update regarding the status of the medical device regulation?
    
    1. 
       Specifically, are there plans to reintroduce legislation to consolidate laws related to medical devices and to establish a medical device regulatory authority?
       

Reply: The proposal to reintroduce the Drugs and Cosmetics (Amendment) Bill 2007 is under active consideration of the Ministry of Health and Family Welfare. There is no proposal under consideration to establish separate Medical Device Regulatory Authority.

2. 
   If so, what is the expected timeline for enactment of the legislation?
   

Reply: No timeline in this regard can be suggested.

3. 
   Does the legislation differ (and in what way) from the previously proposed Medical Devices Regulation Bill?
   

Reply: As the provisions of the Bill are still under consideration, no comments could be offered.

4. 
   Will India provide appropriate notification of any such new legislation to the WTO, in order to enable WTO Members to consult and comment on it?
   

Reply: India will adhere to the transparency provisions of the TBT Agreement.

Canada 27:

Report by the Secretariat (WT/TPR/S/249): Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (ix) Technical regulations and standards: (b) Technical regulations:

27. 
    Can India provide an update on the implementation status of its E Waste (Management and Handling) Rules?
    
    1. 
       Can India provide clarification as to the scope of these rules and whether medical devices are included in its E Waste rules and if so, how they will be treated?
       
    2. 
       If medical devices are included in the scope, does India intend to harmonize its approach with the timelines and exclusions set out in the EU's Directive on the Restriction of Certain Hazardous Substances in Electronic and Electrical Equipment (RoHS Directive)?
       

Reply: The Ministry of Environment and Forests has notified the E Waste (Management and Handling) Rules, 2011 on 12 May 2011, which shall come in to force from 1 May 2012.

The medical devices, which were covered earlier in the draft notification of E Waste (Management and Handling) Rules, 2010, are not included in final notified E Waste (Management and Handling) Rules, 2011.

These Rules lay down responsibilities of producers, collection centers, dismantlers and recyclers.

The concept of extended producer responsibility (EPR) has been enshrined in these Rules. As per these Rules, producers of the electrical and electronic equipment listed in Schedule I, i.e. IT and telecommunication equipment and consumer electrical and electronics (television sets, refrigerator, washing machine, air conditioners), are required to finance, and organize a system to meet the costs involved in the environmentally sound management of e waste generated from the "end of life" of their own products and the historical waste available on the date from which these rules come in to force. Producers are also required to set up collection centres/effective take back system for their "end of life" electrical and electronic equipment covered in these Rules.

The threshold limits prescribed in EU RoHS Directive, which is globally accepted standard for the hazardous substance used in manufacture of electrical and electronics components have been adopted.

Producers are expected to achieve reduction in use of six hazardous substances to the prescribed limit within a period of two years from the date of commencement of these Rules.

Canada 28, 29:

Report by the Secretariat (WT/TPR/S/249): Part III. Trade Policies and Practices by Measure: (2) Measures Directly Affecting Imports; (xi) Technical regulations and standards; (c) Certification and conformity assessment: paragraph 105, page 69:

The Secretariat's Report indicates that the Bureau of Indian Standards (BIS) "also grants licences to environment friendly products under a special scheme and awards the ECO mark to such products."

28. 
    Can India please indicate which products have been licensed as being "environment friendly" to date? What are the key criteria for a product to be granted such licenses?
    
29. 
    Can India please explain the "special scheme" referred to above?
    

Reply: The products that have been licenced as being "environment friendly" are given in the table below: