[TO
BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3,
SUB-SECTION (i)]
GOVERNMENT
OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
(CENTRAL BOARD OF EXCISE AND CUSTOMS)
Notification
- No. 7/2017 - Customs (N. T.)
New Delhi, the
24th January, 2017
G.S.R._______.
- In exercise of the powers conferred by
sub-section (1) of section 5 of the Customs Tariff Act, 1975 (51 of 1975), read
with sub-section (1) of section 25 and section 156 of the Customs Act, 1962 (52
of 1962), the Central Government hereby makes the following rules, namely:-
1. Short title and commencement.-
(1) These rules may be called the
India-Japan Comprehensive Economic Partnership Agreement (Bilateral Safeguard
Measures) Rules, 2017.
(2) They
shall come into force on the date of their publication in the Official Gazette.
2. Definitions.-
(1) In
these rules, unless the context otherwise requires,-
(a) “critical
circumstances” means circumstances in which there is clear evidence that
increased imports of an originating good have caused or are threatening to
cause serious injury to the domestic industry and where delay in imposition of
provisional bilateral safeguard measure would cause damage to the domestic
industry which would be difficult to repair;
(b) “Director
General” means the Director General (Safeguard) appointed by the Central
Government under sub-rule (1) of rule 3 of the Customs Tariff (Identification
and Assessment of Safeguard Duty) Rules, 1997;
(c) “Domestic
industry” means the producers,-
(i) As a
whole of the like or directly competitive good in India; or
(ii) Whose
collective output of the like good or a directly competitive good in India
constitutes a major proportion of the total production of the said good in
India;
(d) “good”
means any merchandise, product, article or material;
(e) “Increased
imports” means increase in imports from Japan whether in absolute terms or
relative to domestic production;
(f) “interested
party” includes, -
(i) any
exporter or producer from Japan or importer of the good subjected to
investigation for purposes of taking bilateral safeguard measure or a trade or
business association, majority of the members of which are producers, exporters
or importers of such a good,
(ii) The
Government of Japan; and
(iii) A
producer of the like good or directly competitive good in India or a trade or
business association, a majority of members of which produce or trade the like
good or directly competitive good in India;
(g) “originating
good” means a good which qualifies as an originating good under the provisions
of the Customs Tariff (Determination of Origin of Goods under the Comprehensive
Economic Partnership Agreement between the Republic of India and Japan) Rules,
2011 notified vide notification of the Government of India, Ministry of
Finance, Department of Revenue, No. 55/2011 – Customs (N.T.), dated the 1st
August, 2011, published vide number G.S.R. 594 (E), dated the 1st August, 2011;
(h) “Serious
injury” means a significant overall impairment in the position of the domestic
industry;
(i) “Threat
of serious injury” means serious injury that, on the basis of facts and not
merely on allegation, conjecture or remote possibility, is clearly imminent;
(j) “Trade
Agreement” means the „Comprehensive Economic Partnership Agreement between the
Republic of India and Japan?.
(2
Words and expressions used herein and not defined, but defined in the Customs
Tariff Act, 1975 (51 of 1975) and the Customs Act, 1962 (52 of 1962) shall have
the meanings respectively assigned to them in those Acts.
3. Duties of Director General.- Subject to the provisions of these
rules, it shall be the duty of the Director General, -
(a) to
investigate whether increased imports of an originating good into India, have
caused or are threatening to cause serious injury to the domestic industry as a
result of elimination or reduction of a customs duty under the Trade Agreement;
(b) to
evaluate all relevant factors of an objective and quantifiable nature having a
bearing on the situation of the domestic industry, in particular, the rate and
amount of the increase in imports of originating good in absolute and relative
terms, the share of the domestic market taken by the increased imports of the
originating good, changes in the level of sales, production, productivity,
capacity utilisation, profits and losses and employment;
(c) to
submit his findings, provisional or otherwise, to the Central Government as to
the serious injury or threat of serious injury to the domestic industry caused
by increased imports of an originating good from Japan as a result of
elimination or reduction of a customs duty under the Trade Agreement;
(d) To
recommend bilateral safeguard measure which if adopted would be adequate to
prevent or remedy the serious injury;
(e) to
recommend the duration of the bilateral safeguard measure and where the period
so recommended is more than a year, to recommend progressive liberalisation
necessary to facilitate adjustment;
(f) To
review the need for continuation of a bilateral safeguard measure.
4. Initiation of investigation.-
(1) Except as provided in sub-rule (4),
the Director General shall, on receipt of a written application by or on behalf
of the domestic producer of like good or directly competitive good, initiate an
investigation to determine the existence of serious injury or threat of serious
injury to the domestic industry, caused by increased imports of an originating
good as a result of the elimination or reduction of customs duty under the
Trade Agreement.
(2) An
application under sub-rule (1) shall be made in the form as may be specified by
the Director General in this behalf and such application shall be supported
by,-
(a) Evidence
of –
(i) increased
imports of the originating good;
(ii) Serious
injury or threat of serious injury to the domestic industry;
(iii) A
causal link between imports of the originating good and the alleged serious
injury or threat of serious injury; and
(iv) The
reduction or elimination of a customs duty under the Trade Agreement being a
cause which contributes significantly to the increase in imports of the
originating good and such increase in imports constitutes a substantial cause
of serious injury to domestic industry:
Provided that the cause
of reduction or elimination of a customs duty under the Trade Agreement need
not be equal to or greater than any other cause; and
(b) A
statement on the efforts being made, or planned to be made, or both, to make an
adjustment to import competition.
(3) The
Director General shall not initiate an investigation pursuant to an application
made under sub-rule (1) unless he examines the accuracy and adequacy of the
evidence provided in the application and satisfies himself that there is
sufficient evidence regarding-
(a) Increased
imports of the originating good;
(b) Serious
injury or threat of serious injury;
(c) A
causal link between imports of the originating good and the alleged serious
injury or threat of serious injury; and
(d) The
reduction or elimination of a customs duty under the Trade Agreement,
contributing significantly to the increase in imports of the originating good
and such increase in imports constitutes a substantial cause of serious injury
or threat thereof to domestic industry:
Provided that the cause
of reduction or elimination of a customs duty under the Trade Agreement need
not be equal to or greater than any other cause.
(4) Notwithstanding
anything contained in sub-rule (1), the Director General may initiate an
investigation suo moto if he is satisfied with the information received from
any Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962)
or any other source that sufficient evidence exists as referred to in clause
(a), clause (b), clause (c) and clause (d) of sub-rule (3).
5. Principles governing investigation.-
(1) Once the decision is taken
by the Director General to initiate investigation to determine the serious
injury or threat of serious injury to domestic industry, consequent upon the
increased imports of an originating good into India as a result of the
elimination or reduction of a customs duty under the Trade Agreement, the
Director General shall issue a public notice on initiation of investigation and
the public notice shall, inter alia, contain adequate information on the
following, namely:-
(a) a
precise description of the originating good subject to the investigation and
its classification under the First Schedule to the Customs Tariff Act, 1975 (51
of 1975);
(b) The
period subject to the investigation;
(c) The
date of initiation of the investigation;
(d) A
summary statement of the facts on which the allegation of serious injury or
threat of serious injury is based;
(e) Reason
for initiation of the investigation;
(f) The
address to which representations by interested parties should be directed; and
(g) The
time-limits allowed to interested parties for providing their views through
appropriate representation.
(2) The
Director General shall forward a copy of the public notice to –
(a) The
Central Government in the Ministry of Commerce and Industry and other
Ministries concerned, as he deems fit;
(b) the
concerned trade associations or known exporters of the originating good, the
increased imports of which have been alleged to cause or threaten to cause
serious injury to the domestic industry;
(c) The
Government of Japan; and
(d) Other
interested parties, as he deems fit.
(3) The
Director General shall also provide a copy of the application referred to in
sub-rule (1) of rule 4 to –
(a) The
Central Government in the Ministry of Commerce and Industry;
(b) The
known exporters of the originating good, or the concerned trade associations;
and
(c) The
Government of Japan:
Provided that the
Director General shall also make available a copy of the application, upon
request in writing, to any other interested party.
(4) The
Director General may issue a notice, calling for any information in such form
as may be specified by him from the exporters, foreign producers and Government
of Japan and such information shall be furnished by them and the Government of
Japan in writing to the Director General within thirty days from the date of
receipt of the notice or within such extended period as the Director General
may allow on sufficient cause being shown.
Explanation. - For the purpose of this rule, the
public notice and other documents shall be deemed to have been received one
week after the date on which these documents were sent by the Director General
by registered post or transmitted to the appropriate diplomatic representative
of the Government of Japan.
(5) The
Director General may also provide opportunity to the industrial users of the
originating good under investigation and to representative consumer
organisations in cases where the originating good is commonly sold at retail
level to furnish information which is relevant to the investigation.
(6) The
Director General may allow an interested party or its representative to present
the information relevant to investigation orally but such oral information
shall be taken into consideration by the Director General only when it is
subsequently submitted in writing, within the time frame specified by the
Director General.
(7) The
Director General shall make available the evidence presented to him by one
interested party to the other interested parties, participating in the
investigation.
(8) In
case where an interested party refuses access to or otherwise does not provide
necessary information within the period specified by the Director General or
significantly impedes the investigation, the Director General may record his
findings on the basis of the facts available to him and make such recommendations
to the Central Government as he deems fit under such circumstances.
6. Confidential information.- (1) Notwithstanding anything contained in
sub-rules (1), (3) and (7) of rule 5, sub-rule (2) of rule 8 and sub-rule (5)
of rule 10, any information which is by nature confidential or which is
provided on a confidential basis shall, upon cause being shown, be treated as
such by the Director General and shall not be disclosed without specific
authorisation of the party providing such information.
(2) The
Director General may require the parties providing information on confidential
basis to furnish non-confidential summary thereof and if, in the opinion of the
party providing such information, the same cannot be summarised, such party may
submit to the Director General a statement of reasons why summarisation is not
possible.
(3) Notwithstanding
anything contained in sub-rule (2), if the Director General is satisfied that
the request for confidentiality is not warranted or the supplier of the
information is unwilling either to make the information public or to authorise
its disclosure in a generalised or summary form, he may disregard such
information unless it is demonstrated to his satisfaction from appropriate
sources that such information is correct.
7. Determination of serious injury or
threat of serious injury.- The
Director General shall determine serious injury or threat of serious injury to
the domestic industry taking into account, inter alia, the following
principles, namely:-
(a) the
Director General shall evaluate all relevant factors of an objective and
quantifiable nature having a bearing on the situation of the domestic industry,
in particular, the rate and amount of the increase in imports of the
originating good in absolute and relative terms, the share of the domestic
market taken by increased imports of the originating good, changes in the level
of sales, production, productivity, capacity utilisation, profits and losses
and employment; and
(b) the
determination referred under this rule, shall not be made unless the
investigation demonstrates, on the basis of objective evidence, the existence
of the causal link between increased imports of the originating good and
serious injury or threat thereof and when factors other than increased imports
of the originating good are causing injury to the domestic industry at the same
time, such injury shall not be attributed to the increased imports of the
originating good.
8. Preliminary findings.-
(1) The Director General shall proceed
expeditiously with the conduct of the investigation and in critical
circumstances, may record a preliminary finding regarding serious injury or
threat of serious injury to the domestic industry as a result of increased
imports of an originating good.
(2) The
Director General shall issue a public notice regarding such preliminary
findings and send a copy of the public notice to –
(a) The
Central Government, in the Ministry of Commerce and Industry and in the
Ministry of Finance;
(b) The
Government of Japan
9. Application of provisional bilateral
safeguard measure.- (1) The
Central Government, on the basis of the preliminary findings of the Director
General, may –
(a) suspend
further reduction of any rate of customs duty on the originating good provided
for under the Trade Agreement; or
(b) Increase
the rate of customs duty on the originating good to a level not to exceed the
lesser of:
(i) the
Most Favoured Nation applied rate of customs duty on the originating good in
effect on the day when the bilateral safeguard measure is taken; or
(ii) the
Most Favoured Nation applied rate of customs duty on the originating good in
effect on the day immediately preceding the date of entry into force of the
Trade Agreement.
(2) The
bilateral safeguard measure under sub-rule (1) shall remain in force only for a
period not exceeding two hundred days from the date on which it was imposed.
10. Final findings.-
(1) The Director General shall, within
eight months from the date of initiation of the investigation, or within an
extended period not exceeding one year from the date of initiation of the
investigation, as the Central Government may allow, determine whether,-
(a) The
increased imports of the originating good under investigation has caused or
threatened to cause serious injury to the domestic industry; and
(b) A
causal link exists between the increased imports of the originating good due to
the elimination or reduction of a customs duty under the Trade Agreement and
serious injury or threat of serious injury.
(2) The
Director General shall also give his recommendation regarding bilateral
safeguard measure which would be adequate to prevent or remedy the serious
injury and to facilitate adjustment.
(3) The
Director General shall also make his recommendations regarding the duration of
the bilateral safeguard measure:
Provided that where the period recommended is more
than one year, the Director General shall also recommend progressive
liberalisation of the bilateral safeguard measure at regular intervals during
the period of application as necessary to facilitate adjustment.
(4) The
final findings, if affirmative, shall contain all information on the matter of
facts and law and reasons which have led to the conclusion.
(5) The
Director General shall issue a public notice recording his final findings.
(6) The
Director General shall send a copy of the public notice regarding his final
findings to
(a) The
Central Government, in the Ministry of Commerce and Industry and in the
Ministry of Finance;
(b) The
Government of Japan.
11. Application of bilateral safeguard
measure.- (1) On
receipt of the recommendation of the Director General, in order to prevent or
remedy the serious injury and to facilitate adjustment in respect of the
originating good covered under the final findings, the Central Government may
suitably amend the notification, issued under sub-section (1) of section 25 of
the Customs Act, 1962 (52 of 1962) to give effect to the provisions of the
Trade Agreement, so as to –
(a) suspend
further reduction of any rate of customs duty on the originating good provided
for under the Trade Agreement; or
(b) Increase
the rate of customs duty on the originating good to a level not to exceed the
lesser of:
(i) the
Most Favoured Nation applied rate of customs duty on the originating good in
effect on the day when the bilateral safeguard measure is taken; or
(ii) the
Most Favoured Nation applied rate of customs duty on the originating good in
effect on the day immediately preceding the date of entry into force of the
Trade Agreement.
(2) In
case, the final findings of the Director General is contrary to the prima facie
evidence on the basis of which the investigation was initiated and the final
findings do not have recommendation for applying bilateral safeguard measure,
the Central Government shall within thirty days of the publication of final
findings by the Director General under rule 10, withdraw the provisional
bilateral safeguard measure imposed, if any.
(3) Upon
termination of a bilateral safeguard measure, whether provisional or final, the
rate of customs duty for an originating good subject to the measure shall be
the rate which would have been in effect but for the bilateral safeguard
measure.
12. Date of commencement of bilateral
safeguard measure. - (1) The
bilateral safeguard measure applied under rule 9 and rule 11 shall take effect
from the date of publication of the notification, in the Official Gazette,
imposing such bilateral safeguard measure.
(2) Notwithstanding
anything contained in sub-rule (1), where a provisional bilateral safeguard
measure has been imposed and where the Director General has recorded a finding
that increased imports have caused or threaten to cause serious injury to
domestic industry, it shall be specified in the notification issued under rule
11 that such bilateral safeguard measure shall take effect from the date of
imposition of the provisional bilateral safeguard measure
13. Refund of duty.- If the bilateral safeguard measure taken
after the conclusion of the investigation results in a rate of duty which is
lower than the rate of duty resulting from a provisional bilateral safeguard
measure already taken, the differential duty collected shall be refunded to the
importer
14. Duration.- (1) The bilateral safeguard measure
applied under rule 11 shall be only to the extent and for such period of time
as may be necessary to prevent or remedy the serious injury and to facilitate
adjustment.
(2) Notwithstanding
anything contained in sub-rule (1) of this rule, the bilateral safeguard
measure applied under rule 11 shall not exceed a period of three years from the
date of its imposition:
Provided that in highly
exceptional circumstances, the Central Government may extend the period of
bilateral safeguard imposition, on receipt of the recommendation of the
Director General under sub-rule (1) of rule 16:
Provided further that
the total duration of the bilateral safeguard measure, including such
extensions, shall not exceed five years.
(3) No
bilateral safeguard measure under these rules shall be applied again to the
import of a particular originating good which has been subject to such a
bilateral safeguard measure, for a period of time equal to that during which
such measure had been previously applied, provided that the period of
non-application is at least one year.
15. Liberalisation of bilateral safeguard
measure.- If the duration of the bilateral safeguard measure
applied under rule 11 exceeds one year, the bilateral safeguard measure shall
be progressively liberalised at regular intervals during the period of its
application.
16. Review.-
(1) The Director General may review the need for continued application of the
bilateral safeguard measure in terms of sub-rule (2) of rule 14 and, if he is
satisfied on the basis of information received by him that –
(a) The
bilateral safeguard measure is necessary to prevent or remedy the serious
injury and there is evidence that the domestic industry is adjusting
positively, he may recommend to the Central Government for the continued
imposition of bilateral safeguard measure;
(b) There
is no justification for the continued imposition of such measure, recommend to
the Central Government for its withdrawal.
(2) The
provisions of rules 4, 5, 6 and 10 shall, mutatis mutandis apply in the case of
review.
[File
No.528/23/2013-STO(TU)]
(Satyajit
Mohanty),
Director
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