INVESTIGATION PROCEDURES, PRELIMINARY AND FINAL DETERMINATIONS

34.   Proposed schedule for investigation.–The Commission shall, in a notice of initiation of an investigation referred to in Section 27, include the proposed schedule for conduct of an investigation, including the proposed time limits for submission of written arguments, the proposed date for any hearing, if requested, the proposed date for preliminary determination, and the proposed date for final determination.

35.   Acquisition of information by the Commission.–The Commission shall solicit, gather, obtain, verify, accept and reject information for the purposes of an investigation in such manner as may be prescribed.

36.   Assessments to be on the basis of data relating to defined periods.–(1) The Commission shall base its assessments of dumping and injury on data relating to defined periods which shall be the periods for which information is required by the Commission.

(2)      For the purposes of an investigation of dumping, an investigation period shall normally cover twelve months preceding the month of initiation of the investigation for which data is available and in no case the investigation period shall be shorter than six months.

(3)      For the purposes of an investigation of injury, the investigation period shall normally cover thirty-six months:

Provided that the Commission may at its sole discretion, select a shorter or longer period if it deems it appropriate in view of available information regarding domestic industry and an investigated product.

37.   Preliminary determination.–(1) The Commission shall make a preliminary determination of dumping and injury, if any, not earlier than sixty days and not later than one hundred and eighty days, after initiation of an investigation. Such preliminary determination shall be based on the information available to the Commission at that time.

(2)      The Commission shall issue a notice of preliminary determination, whether affirmative or negative, which shall, subject to the requirements of Section 31, set forth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material. Such notice of preliminary determination may also contain such other information as may be prescribed.

(3)      The Commission shall publish a copy of the notice of preliminary determination in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.

(4)      The Commission shall forward a copy of the notice of preliminary determination to exporting country and to other known interested parties.

38.   Written arguments.–In an investigation, any interested party may submit written arguments to the Commission in such form and manner and within such time as may be prescribed.

39.   Final determination.–(1) The Commission shall normally make a final determination of dumping and injury within one hundred and eighty days of the date of publication of a notice of preliminary determination in the official Gazette under sub-section (3) of Section 37.

(2)  The final determination shall be based on information obtained by the Commission during the course of the investigation that has been disclosed by the interested parties:

Provided that the Commission shall not be precluded from taking into consideration information or data received or collected from any other source.

(3)      The Commission shall, subject to the requirements for the protection of confidential information under Section 31, issue a notice of the final determination, whether affirmative or negative, containing relevant information on the matters of fact and law and reasons that have led to the determination.

(4)      Without prejudice to the generality of the provisions of sub-section (3) and in addition to such further information as may be prescribed, the notice of the final determination referred to in sub-section (3) shall specify:–

(a)      the amount of the dumping margin, if any, found to exist and the basis for such determination;

(b)      the amount of the definitive anti-dumping duties to be imposed, where applicable; and

(c)      if definitive anti-dumping duties are to be collected with regard to the imports to which provisional measures were applied along with the reasons for the decision to do so.

(5)      The Commission shall publish a copy of the notice of the final determination referred to in sub-section (3) in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan:

Provided that such notice may, if the Commission deems it fit, only contain a summary of the salient features of the final determination:

Provided further that where the notice of the final determination contains only a summary of the salient features of the final determination, the Commission shall make available to any interested party applying for the same in writing a copy of the complete notice of final determination.

(6)      The copy of the notice of the final determination shall be forwarded by the Commission to the exporting country and to other known interested parties.

PART X

TERMINATION OF INVESTIGATION WITHOUT ADOPTION OF MEASURES

40.  Withdrawal of an application.–An application submitted pursuant to Section 20 may be withdrawn at any time after an investigation has been initiated, in which case the Commission shall terminate the investigation without imposition of any measures provided for in this Act:

Provided that the Commission may, if it considers it fit to do so, continue an investigation notwithstanding the withdrawal of an application as provided for in this section in which event, the Commission may, subject to the provisions of this Act impose such measures as are provided for in this Act.

41.   Termination for insufficient evidence, negligible dumping margin or negligible volume.–(1) An investigation may be terminated at any time by the Commission if it is satisfied that there is not sufficient evidence of either dumping or injury to justify proceeding with an investigation.

(2)      The Commission shall immediately terminate an investigation if it determines that dumping margin is negligible or that volume of dumped imports, actual or potential, or injury, is negligible.

(3)      For the purposes of sub-section (2)–

(a)      dumping margin shall be considered to be negligible if it is less than two per cent, expressed as a percentage of the export price; and

(b)      volume of dumped imports shall normally be regarded as negligible if the volume of dumped imports of an investigated product is found to account for less than three per cent of total imports of a like product unless imports of the investigated product from all countries under investigation which individually account for less than three per cent of the total imports of a like product collectively account for more than seven per cent of imports of a like product.

42.   Notice of conclusion of an investigation without imposition of measures.–(1) The Commission shall, subject to the requirements for the protection of confidential information under Section 31, issue a notice of the conclusion of an investigation without imposition of measures which shall set forth in sufficient detail the findings and conclusions reached on all issues of fact and law considered material by the Commission including the matters of fact and law which have led to arguments being accepted or rejected.

(2)      The Commission shall publish a copy of the notice of conclusion of an investigation without imposition of measures referred to in sub-section (1) in the official Gazette and summary thereof in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.

(3)      Termination of an investigation under Sections 40 or 41 or conclusion of an investigation without imposition of measures shall not be a bar to filing of a de novo application for a new investigation immediately after termination or conclusion of the investigation. The Commission shall treat the application in accordance with provisions of this Act.

PART XI

PROVISIONAL MEASURES

43.   Imposition of provisional measures.–(1) The Commission may impose provisional measures if it makes an affirmative preliminary determination of dumping and injury, and determines that provisional measures are necessary to prevent injury being caused during the course of an investigation:

Provided that provisional measures shall not be applied sooner than sixty days from the date of initiation of the investigation:

Provided further that the amount of the provisional anti-dumping duty shall not exceed the margin of dumping as provisionally established, but it may be less than the margin if such lesser duty would be adequate to remove the injury to the Domestic Industry.

(2)      A negative preliminary determination of dumping shall not automatically terminate an investigation, but no provisional measures shall be imposed in such case.

(3)      The provisions of Sections 51 and 52 shall be followed in the application of provisional measures.

44.   Form of provisional measures.–Provisional measures shall take the form of security by way of cash deposit in an amount equal to the provisionally determined dumping margin set forth in the notice of preliminary determination referred to in sub- section (2) of Section 37:

Provided that release of a product concerned for free circulation in Pakistan shall be subject to provision of such security by way of cash deposit.

45.   Duration of application of provisional measures.–Provisional measures shall be applied for a period not exceeding four months:

Provided that the Commission may, upon request by exporters which the Commission considers to be representing a significant percentage of the trade involved, extend the period of application of provisional measures to a period not exceeding six months.

PART XII

PRICE UNDERTAKINGS

46.   Acceptance of price undertaking.–(1) Where the Commission has made a preliminary affirmative determination of dumping and injury in accordance with the provisions of this Act the Commission may suspend or terminate an investigation without imposition of anti-dumping duties, whether preliminary or definitive, upon receipt of satisfactory price undertaking from an exporter to revise its prices or to cease export to the area in question at dumped prices so that the Commission is satisfied that injurious effect of dumping in question is eliminated:

Provided that the Commission shall not seek or accept any price undertaking from an exporter unless the Commission has made a preliminary affirmative determination of dumping and injury in accordance with the provisions of this Act.

(2)      Price increases under such price undertakings shall not be higher than necessary to eliminate dumping margin and shall be less than the provisionally determined dumping margin set forth in the notice of preliminary determination referred to in sub-section (2) of Section 37 if, the Commission determines that such lesser price increase would be adequate to remove injury to domestic industry.

(3)      The Commission may suggest price undertakings, but no exporter shall be forced to enter into any such undertaking and the fact that exporters do not offer such undertakings, or do not accept an invitation to do so, shall not prejudice consideration of the case by the Commission:

Provided that in such circumstances the Commission shall be free to determine that a threat of injury is more likely to be realised if the dumped imports continue.

47.  Conditions for acceptance of price undertaking.–(1) Except in extraordinary circumstances, a price undertaking shall not be offered later than sixty days before the proposed date of final determination as set forth in a notice of initiation of an investigation in accordance with the provisions of Section 34.

(2)      Notwithstanding anything contained in this section, the decision to accept a price undertaking shall rest with the Commission.

Explanation.–The Commission may not accept a price undertaking if it considers the acceptance thereof to be impractical because the number of actual or potential exporters is too great, or for reasons of general policy or for any other reason.

(3)      If the Commission decides not to accept a price undertaking, it shall provide to an exporter the reasons which have led it to consider acceptance of a price undertaking as inappropriate and the exporter may, not later than seven days from the submission of such reasons, submit its written response to the Commission on the reasons given by the Commission.

(4)      The Commission may require an exporter from whom a price undertaking has been accepted, to provide, periodically, information relevant to the fulfillment of such undertaking, and to permit verification of such information. The communication of such information shall be subject to the provisions of Section 31.

(5)      Failure to provide any information requested by the Commission pursuant to sub-section (4) shall be deemed to be a violation of a price undertaking.

(6)      Where the Commission accepts a price undertaking or a price undertaking is terminated, it shall publish a notice to this effect in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan. Such notice shall contain the non-confidential part of the price undertaking accepted, when applicable, and details of the findings and conclusions reached by the Commission on all the issues of fact and law considered material by the Commission and such other information as the Commission may determine necessary:

Provided that where the notice relates to acceptance by the Commission of a price undertaking it shall contain such further information as may be prescribed.

(7)      A notice of acceptance of a price undertaking or termination thereof referred to in sub-section (6) shall be forwarded by the Commission to the country the product of which is the subject of such notice and to other interested parties known to have an interest therein.

(8)      Where the Commission continues an investigation pursuant to sub-section (1) of Section 48, it shall publish a notice of the continuation of the investigation, setting forth the proposed date for final determination, and any other modifications to the proposed schedule of the investigation as originally set out in the notice of initiation of the investigation in accordance with Section 34:

Provided that the final determination in such case shall be made by the Commission no later than one hundred and eighty days from the date of publication of the notice of acceptance of a price undertaking referred to in sub-section (6) in the official Gazette.

48.  Completion of an investigation.–(1) If one or more price undertakings are accepted by the Commission, it shall nevertheless complete an investigation of dumping and injury if it receives a request from an exporter in writing to continue such investigation, or where the Commission so decides of its own accord.

(2)  In the event the Commission makes a negative determination of dumping or injury pursuant to an investigation continued under sub-section (1), a price undertaking in question shall automatically lapse except in a case where the Commission determines that such a determination is due in large part to the existence of such price undertaking in which case, the Commission may require that an undertaking be maintained for a reasonable period of time to be determined by the Commission.

(3)  In the event the Commission makes an affirmative determination of dumping and injury pursuant to an investigation continued under sub-section (1), a price undertaking in question shall continue consistent with its terms and the provisions of this Act.

49.   Violation of price undertaking.–If a price undertaking is violated or deemed to be violated, the Commission may, subject to the provisions of this Act take expeditious action, which may include immediate application of provisional measures using the best information available. In such cases, definitive duties may be levied in accordance with the provisions of this Act on products imported for consumption not more than ninety days before the application of such provisional measures, except that any such retroactive assessment shall not apply to imports entered before such violation of the price undertaking.

PART XIII

IMPOSITION AND COLLECTION OF ANTI-DUMPING DUTIES

50.   Mandatory imposition of anti-dumping duty.–(1) When the Commission has established the existence of dumping and injury in accordance with the provisions of this Act, it shall, by notification in the official Gazette, impose an anti-dumping duty.

(2)  The amount of the anti-dumping duty shall not exceed the margin of dumping established but it may be less than the margin if such lesser duty would be adequate to remove injury to the Domestic Industry.

51.   Imposition and collection of anti-dumping duties.–(1) Anti-dumping duties, whether provisional or definitive, as the case may be, imposed under this Act shall–

(a)      take the form of ad valorem or specific duties:

          Provided that provisional measures shall take the form of security by way of cash deposit;

(b)      be imposed in addition to other import duties levied on an investigated product;

(c)      be collected in the same manner as customs-duties under the Customs Act, 1969 (IV of 1969);

(d)      be levied and collected on a non-discriminatory basis on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings have been accepted by the Commission in accordance with the provisions of Part XII of this Act; or

(e)      will not be levied on imports that are to be used as inputs in products destined solely for export and are covered under any scheme exempting customs duty for exports under the Customs Act, 1969.

(2)      Save as provided for in sub-section (3), the Commission shall establish an individual anti-dumping duty for each known exporter or producer of dumped imports.

(3)      Subject to sub-Sections (4) and (7), where the Commission has limited its examination of dumping margin in accordance with sub-Sections (2) and (3) of Section 14, any anti-dumping duty applied to imports from exporters or producers not included in an examination by the Commission shall not exceed a weighted average dumping margin established with respect to selected exporters or producers.

(4)      The Commission shall disregard for the purposes of sub-section (3) any negligible margins, as defined in sub-section (3) of Section 41, and margins established under the circumstances referred to in Section 32.

(5)      Save as provided for in sub-section (4) of Section 14, the Commission shall apply individual anti-dumping duties to imports from any exporter or producer not included in an examination who has provided the necessary information during the course of an investigation.

(6)      The Commission may apply a residual anti-dumping duty rate for imports from exporters and producers not known to the Commission at time of final determination at a rate which shall not exceed a weighted average of individual dumping margins established for exporters and producers examined during an investigation, excluding margins established in accordance with Section 32.

(7)      Where all dumping margins are established pursuant to Section 32, the Commission shall use such alternative method of determining dumping margins for exporters or producers not included in its examination as it considers reasonable in the circumstances.

52. Refund of anti-dumping duties paid in excess of dumping margin.–(1) An importer shall be granted a refund of the actual amount of anti-dumping duties collected if the Commission determines that dumping margin, on the basis of which such anti-dumping duties were paid, has been eliminated or reduced to a level which is below the level of the anti-dumping duty in force.

(2)  An importer may submit an application for refund of anti-dumping duties collected within any twelve months period to the Commission not later than sixty days from the end of such period.

(3)  An application under sub-section (2) shall contain such information as may be prescribed.

Explanation.–When investigating an application for refund under this section, the Commission shall apply the relevant provisions of this Act to its determinations. In particular, when determining whether and to what extent a refund should be made when an export price is constructed on the basis of a price at which imported products are first resold to an independent buyer due to the absence of export price or because it appears that the export price is unreliable pursuant to sub-section (2) of Section 10, the Commission shall take account of any change in normal value, any change of costs incurred between importation and resale, and any movement in resale price which is duly reflected in subsequent selling prices, and shall calculate the export price with no deduction for the amount of anti-dumping duties paid when satisfactory evidence of the above is provided.

(4)      The Commission shall provide an importer making an application under sub- section (2) with an explanation of the reasons for the decision concerning a request for refund.

(5)      A refund of anti-dumping duties under this section shall normally take place within twelve months, and in no case later than eighteen months, after the date on which an application for refund compliant with the requirements of sub-section (3) is received by the Commission.

53.   Anti-dumping and countervailing duties and fees to be held in a non-lapsable personal ledger account.–(1) The Commission shall establish and maintain a non-lapsable personal ledger account in its name for the purposes of Anti-Dumping Duties and Countervailing Duties.

(2)      All anti-dumping and countervailing duties collected under the laws specified in sub-section (1) shall be held in that account.

(3)      The account established under sub-section (1) shall be maintained and operated in such manner as may be prescribed.

PART XIV

RETROACTIVITY

54. Retroactive application of definitive anti-dumping duties in certain circumstances.–A definitive anti-dumping duty may be collected on products, which were imported for consumption not more than ninety days prior to the date of application of provisional measures if, the Commission determines, for a dumped product in question, that:

(a)      there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and

(b)      injury is caused by massive dumped imports of a product in a relatively short time which in the light of timing and volume of dumped imports and other circumstances including, but not limited to, a rapid build-up of inventories of the imported product, is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity of being heard in respect of such proposed action.

55.   Imposition of definitive anti-dumping duties retroactively.–(1) Where the Commission makes a final determination of injury but not of a threat thereof or of material retardation of the establishment of an industry or, in the case of a final determination of a threat of injury, where the Commission determines that the effect of dumped imports would, in the absence of provisional measures, have led to a determination of injury, definitive anti-dumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied.

(2)      If definitive anti-dumping duty imposed under sub-section (1) is higher than the amount of provisionally determined dumping margin set forth in the notice of preliminary determination referred to in sub-section (2) of Section 37, the difference shall not be collected, and if such definitive anti-dumping duty is lower than the amount of such provisionally determined dumping margin the difference shall be refunded by the Commission within forty-five days of such determination.

(3)      Save as provided for in sub-section (1), where the Commission makes a determination of threat of injury or material retardation, but no injury has yet occurred, definitive anti-dumping duties may be imposed only from the date of the determination of threat of injury or material retardation and any cash deposit made during the period of application of provisional measures shall be refunded by the Commission within forty-five days of such determination.

(4)      Where the Commission makes a negative final determination, any cash deposit made during the period of application of provisional measures shall be refunded by the Commission within forty-five days of such determination.

56.   Circumstances in which provisional measures and anti-dumping duties shall apply.–Save as provided for in Sections 49, 54 and 55, provisional measures and definitive anti-dumping duties shall only be applied to products which enter into Pakistan for consumption on or after the date of publication of a notice of affirmative preliminary or final determination in an investigation.

PART XV

DURATION AND REVIEW OF ANTI-DUMPING DUTIES AND PRICE UNDERTAKINGS

57.   Duration of anti-dumping duty.–Subject to the provisions of this Act any anti-dumping duty imposed under this Act shall remain in force only as long as and to the extent necessary to counteract dumping, which is causing injury.

58.   Review of anti-dumping duty.–(1) Any definitive anti-dumping duty imposed under this Act shall be terminated on a date not later than five years from the date of its imposition or from the date of the most recent review under Section 59, if such review has covered both dumping and injury.

(2)      The Commission shall, not later than ninety days preceding the date of expiry of a definitive anti-dumping duty, publish a notice of impending expiry of such anti-dumping duty in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.

(3)      A definitive anti-dumping duty shall not expire if the Commission determines, in a review initiated before the date of expiry on its own initiative or upon a duly substantiated request made by or on behalf of domestic industry within forty-five days from public notice of impending termination of the definitive anti-dumping duty concerned, that the expiry of such anti-dumping duty would be likely to lead to continuation or recurrence of dumping and injury and such anti-dumping duty shall remain in force pending the outcome of such a review.

59.   Review for change of circumstances.–(1) The Commission shall review the need for continued imposition of anti-dumping duty, where warranted, on its own initiative or, provided that a period of twenty-four months has elapsed since the imposition of definitive anti-dumping duty, upon a written request submitted by any interested party, which contains positive information substantiating the occurrence of changed circumstances justifying a need for a review including sufficient information to enable the Commission to calculate export price and normal value of a product in question.

(2)      The Commission shall, upon initiation of a review under sub-section (1), publish a notice in the official Gazette and in at least one issue each of a daily newspaper in the English language and a daily newspaper in the Urdu language having wide circulation in Pakistan.

(3)      In undertaking a review under sub-section (1), the Commission shall consider whether continued imposition of anti-dumping duty is necessary to offset dumping and whether injury would be likely to continue to recur if anti-dumping duty were removed or varied and if, as a result, the Commission determines that continued imposition of anti-dumping duty is no longer warranted it shall be terminated immediately.

(4)  The Commission may require an applicant requesting a review under this section to fill in an additional questionnaire provided by it requiring such information and for such period as the Commission deems necessary before such review is initiated in which case the review shall be initiated following the receipt by the Commission of such questionnaire duly filled in.

60.   Newcomer review.–(1) If a product is subject to definitive anti-dumping duties, the Commission shall carry out a review for the purpose of determining individual dumping margins for any exporters or producers in an exporting country concerned who did not export the product to Pakistan during the period of investigation if such exporters or producers can show that they are not related to any of the exporters or producers in the exporting country who are subject to the anti-dumping duties on an investigated product.

(2)      A review under sub-section (1) shall be initiated within thirty days following the date of receipt of an application for such review by any producer or exporter concerned and shall normally be completed within six months from its initiation and, in any event, no later than twelve months:

Provided that the Commission may require an applicant requesting a review under sub-section (1) to fill in an additional questionnaire provided by it requiring such information and for such period as the Commission deems necessary before such review is initiated in which case a review under sub-section (1) shall be initiated within thirty days following the receipt by the Commission of such questionnaire duly filled in.

(3)      No anti-dumping measures shall be imposed on imports from any exporters or producers referred to in sub-section (1) while the review under sub-section (2) is being carried out:

Provided that the Commission may require a cash deposit in the amount of the residual anti-dumping duty rate determined pursuant to sub-section (5) of Section 51 to ensure that, should such a review result in a determination of dumping in respect of such producers or exporters, anti-dumping duties can be levied retroactively to the date of initiation of the review.

61.   Duration and review of price undertakings.–The provisions of Sections 57, 58 and 59 shall apply, mutatis mutandis, to price undertakings accepted in accordance with Part XII of this Act.

62.   Evidence and procedure.–(1) The provisions of Sections 27, 31, 32, 33, 35, 39, and 46 shall apply, mutatis mutandis, to any review carried out under Part XV of this Act.

(2)  Any review conducted under Sections 58 and 59 shall be carried out expeditiously and shall normally be concluded within twelve months of the date of initiation of the review.

63.  Anti-circumvention measures.–(1) Anti-dumping duties imposed pursuant to this Act may be extended to imports from third countries, of the like product, whether slightly modified or not, or to imports of the slightly modified like product from the country subject to measures, or parts thereof, when circumvention of the measures in force is taking place. Anti-dumping duties not exceeding the residual anti-dumping duty imposed in accordance with Section 39 may be extended to imports from companies benefiting from individual duties in the countries subject to measures when circumvention of the measures in force is taking place. Circumvention shall be defined as a change in the pattern of trade between third countries and Pakistan or between individual companies in the country subject to measures by Pakistan, which stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty, and where there is evidence of injury or that the remedial effects of the duty are being undermined in terms of the prices or quantities of the like product, and where there is evidence of dumping in relation to the normal values previously established for the like product, if necessary in accordance with the provisions of this Act.

(2)      The practice, process or work referred to in sub-section (1) includes, inter alia, the slight modification of the product concerned to make it fall under customs tariff which are normally not subject to the measures, provided that the modification does not alter its essential characteristics, the consignment of the product subject to measures via third countries, the re-organisation by exporters or producers of their patterns and channels of sales in the country subject to measures in order to eventually have their products exported to Pakistan through producers benefiting from an individual duty rate lower than that applicable to the products of the manufacturers, and, in the circumstances indicated in sub-section (3), the assembly of parts by an assembly operation in Pakistan or a third country.

(3)      An assembly operation in Pakistan or a third country shall be considered to circumvent the measures in force where,–

(a)      the operation started or substantially increased since, or just prior to, the initiation of the anti-dumping investigation and the parts concerned are from the country subject to measures;

(b)      the parts constitute 60 % or more of the total value of the parts of the assembled product, except that in no case shall circumvention be considered to be taking place where the value added to the parts brought in, during the assembly or completion operation, is greater than 25% of the manufacturing cost;

(c)      the remedial effects of the duty are being undermined in terms of the prices or quantities of the assembled like product and there is evidence of dumping in relation to the normal values previously established for the like or similar products.

(4)      Investigations shall be initiated pursuant to this section on the initiative of the Commission or at the request of any interested party on the basis of sufficient evidence regarding the factors set out in sub-Sections (1) and (2). Investigations shall be concluded by the Commission within nine months.

PART XVI

APPEAL TO APPELLATE TRIBUNAL

64.   Establishment of the Appellate Tribunal.–(1) The Federal Government shall, by notification in the official Gazette, establish an Appellate Tribunal for the purposes of exercising jurisdiction under this Act.

(2)      The Appellate Tribunal shall be composed of three members appointed by the Federal Government, consisting of a Chairman and two members.

(3)      All members of the Appellate Tribunal shall be citizens of Pakistan and shall be employed on a full-time basis.

(4)      The Members of the Appellate Tribunal shall have no past record of any specific activities or conduct that could reasonably call into question their ability to discharge their duties as members of the Appellate Tribunal with honesty, integrity, reliability, competence and objectivity.

(5)      In making such appointments the Federal Government shall ensure that the membership of the Appellate Tribunal, taken as a whole, possesses substantial and directly relevant professional experience and qualifications needed to properly discharge its functions.

65.   Qualifications and eligibility.–(1) The members of the Appellate Tribunal shall,–

(a)      have at least a masters or professional degree or qualification from an accredited university or institute in international trade laws, business and commercial laws, economics, accountancy, tariffs and trade, commerce and trade, or a trade-related subject; knowledge of trade remedy laws would be an advantage;

(b)      have at least fifteen years of professional work experience in international trade law, business and commercial laws, economics, accountancy, harmonized tariffs, commerce and trade, tariffs and trade or other trade-related technical field; direct work experience in trade remedy laws would be an advantage ;

(c)      have no past record of criminal conviction, other than for minor offences; and

(d)      have no past record of any specific activities or conduct that could reasonably call into question their ability to discharge their duties as a members of the Appellate Tribunal with honesty, integrity, reliability, competence and objectivity.

66.   Disqualification.–(1) No person shall be appointed or continue as member or an employee of the Tribunal if such person;

(a)      has been convicted of an offence involving moral turpitude;

(b)      has been or is adjudged insolvent;

(c)      is incapable of discharging his duties by reasons of physical, physiological or, mental unfitness and has been so declared by a duly constituted Medical Board appointed by the Federal Government; or

(d)      fails to disclose any conflict of interest at or within the time provided for such disclosure by or under this Act or contravenes any of the provisions of this Act pertaining to unauthorized disclosure of information.

(e)      is or has been a Member or employee of the Commission unless a period of two years has elapsed after he has ceased to be such Member or employee of the Commission.

67.   Terms and Conditions.–(1) The Chairman and Members of the Tribunal shall be appointed for a period of five years. This term shall be extendable for a period of one year unless the Federal Government notifies otherwise.

(2)      The terms and conditions of the Chairman and Members of the Tribunal shall be as may be prescribed.

(3)      The Chairman and Members appointed under the repealed Anti-Dumping Duties Ordinance, 2000 (LXV of 2000) shall continue to act as Chairman and Members only till the appointment of Chairman and Members under this Act:

Provided that the Federal Government shall ensure the establishment of Appellate Tribunal along with appointment of its Chairman and Members within a period of ninety days from commencement of this Act

68.   Decisions, determinations and Quorum.–(1) Decisions and determinations of the Appellate tribunal shall be taken by majority.

(2)      If there are less than three members of the Tribunal, the presence of two members serving shall constitute a quorum.

(3)      In the case of a quorum of two, the decision shall be taken by consensus.

(4)      Any decision or determination taken at a meeting where a quorum is present shall constitute a valid and enforceable decision or determination of the Tribunal.

69.   Operation of the Appellate Tribunal in the absence of the Chairman or a Member.–(1) If the Chairman’s or any of the member’s position becomes vacant, the Government shall designate a new member or one of the existing members to serve as Chairman.

(2)  The absence of a Chairman, or the temporary incapacity of the Chairman, shall not affect the other members’ ability to act as the Appellate Tribunal and to exercise its powers and authority under this Act.

70.  Appellate procedures.–(1) Any interested party may prefer an appeal to the Appellate Tribunal against–

(i)       the initiation of an investigation or a preliminary determination, where it is alleged that it does not satisfy the requirements laid down in Sections 23 and 37 respectively;

(ii)      an affirmative or negative final determination by the Commission under Section 39;

(iii)     any final determination pursuant to a review;

(iv)     an order of the Commission for termination of investigation under Section 41; or

(v)      a determination of the Commission under Section 52.

(2)      An appeal under Clause (i) of sub-section (1) shall be filed within thirty days of the publication of notice of initiation or notice preliminary determination, as the case may be.

(3)      The Appellate Tribunal shall handle such an appeal as a priority and shall issue its decision on the appeal within thirty days of the filing of an appeal with the Appellate Tribunal:

Provided that the filing of an appeal under Clause (i) of sub-section (1) shall have no effect on the Commission’s conduct of investigation.

(4)      All appeals under Clauses (ii), (iii), (iv) and (v) of sub-section (1) shall be filed within forty-five days from the date of publication in newspapers of a public notice or as the case may be, date of the decision of the Commission of any affirmative or negative final decision or determination or termination of investigation by the Commission, and shall be in such form and contain such information as may be prescribed.

(5)      Such an appeal shall be disposed of and the decision of the Appellate Tribunal pronounced, as expeditiously as possible as but not later than forty-five from the date of receipt of an appeal compliant with the requirements contained in this Act.

(6)      The Appellate Tribunal shall hear the appeal from day-to-day.

(7)      In examining an appeal under sub-section (1), the Appellate Tribunal may make such further inquiry as it may consider necessary, and after giving the Commission and an appellant an opportunity of being heard, pass such order as it thinks fit, confirming, altering or annulling a determination of the Commission appealed against:

Provided that in case the Appellate Tribunal decision requires action by the Commission, it shall remand the case to the Commission.

(8)      After examining the appeal, the Appellate tribunal shall assess the facts related to the impugned determination of the Commission. The Appellate Tribunal shall determine whether the establishment of the facts of the Commission was proper and whether the commission’s evaluation of those facts was unbiased and objective. The Appellate tribunal shall base this determination on the official record maintained by the Commission or any other documents relied upon by the Commission in reaching the determination being appealed.

(9)      Where the Appellate Tribunal determines that the Commission’s establishment of the facts was proper and its evaluation was unbiased and objective, it shall confirm the appealed determination of the Commission provided that the Appellate Tribunal is satisfied that in reaching its determination, the Commission complied with the relevant provisions of this Act.

(10)    The decision of the Appellate Tribunal shall be in writing, detailing the issues raised in the appeal and the arguments adopted by the appellant and the Commission. The Appellate tribunal shall also provide reasons for reaching its decision with reference to the provisions of this Act and the facts of the case.

(11)    The Appellate Tribunal shall provide copies of its decision to all the appellants and the respondents including the Commission no later than five days from the date of rendering its decision.

(12)    The Appellate Tribunal may, if it deems necessary, require an appellant to provide security in such form as may be prescribed, at the time of filing of an appeal.

(13)    The decision of the Appellate Tribunal shall be appealable in the High Court. The High Court shall render a decision within ninety days of receiving an appeal from the decision of the Appellate Tribunal:

Provided that the High Court shall not make an interim order against the conduct of investigation by the Commission unless the Commission has been given notice of the application and has had an opportunity of being heard and the High Court, for reasons to be recorded in writing, is satisfied that the interim order would not have the effect of prejudicing or interfering with the carrying out of a public work or of otherwise being harmful to the public interest [or State property] or of impeding the assessment or collection of public revenues:

Provided further that The Appellate Tribunal may, if it thinks fit, accept an application from any party to an appeal in which the Appellate Tribunal has rendered its decision, for a clarification of any of the issues raised by the Appellate Tribunal in its decision:

Provided also that such application shall specify the precise issue in respect of which a clarification is sought and give reasons as to why a clarification is necessary:

(14)    The Appellate Tribunal shall only accept such application if it is satisfied that a material issue discussed in its decision requires further clarification or elaboration. The party likely to be adversely affected by such clarification shall also be given a notice by the Appellate Tribunal:

Provided that no application under this sub-section shall be accepted by the Appellate Tribunal later than thirty days of its decision.

(15)    The Appellate Tribunal shall perform its functions under this Act in accordance with such procedures as may be prescribed.

(16)    A determination of the Commission shall be given full force and effect during the pendency of any appeal of such determination.

(17)    A person duly authorized by any interested party is entitled to appear, plead and act on behalf of such party before the Appellate Tribunal.

71.   Disclosure of interest.–(1) The following shall apply to members of the Appellate Tribunal including the Chairman.

(2)  A Member shall be deemed to have an interest in a matter if he has any interest, pecuniary or otherwise, in such matter which could reasonably be regarded as giving rise to a conflict between his duty to honestly perform his functions, so that his ability to consider and decide any question impartially or to give any advice without bias, may reasonably be regarded as impaired.

(3)      A Member having any interest in any matter to be discussed or decided by the Tribunal, shall prior to discharge of any function or business of the Commission, disclose in writing to the Secretary to the Tribunal, the fact of his interest and the nature thereof.

(4)      A Member shall give written notice to the Secretary to the Tribunal of all direct or indirect pecuniary or other material or personal interests that he has or acquires in a body corporate involved in a matter before the Tribunal.

(5)      A disclosure of interest under sub-section (2) shall be made a part of the record of the Tribunal in that particular matter.

72.   Powers of the Appellate Tribunal.–The Appellate Tribunal shall, for the purpose of deciding an appeal, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (V of 1908), including the powers of–

(a)      enforcing the attendance of any person and examining him on oath;

(b)      compelling the production of documents; and

(c)      issuing commission for the examination of witnesses and documents.

73.   Power of the Appellate Tribunal to call for and examine record.–The Appellate Tribunal may call for and examine the official records of an investigation conducted by the Commission and any other information or documents relied upon by the Commission in reaching a determination appealed against for the purpose of satisfying itself as to the legality or propriety of an impugned determination of the Commission.

74.   Power to make rules.–The Federal Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

75.  Protection to persons prejudiced in employment because of assisting the Commission.–(1) An employer shall not–

(a)      dismiss an employee, or prejudice an employee in his employment, because the employee has assisted the Commission in connection with an inquiry or investigation under this Act; or

(b)      dismiss or threaten to dismiss an employee, or prejudice or threaten to prejudice an employee in his employment, because the employee proposes to assist the Commission in connection with an inquiry or investigation under this Act.

(2)  For the purposes of sub-section (1), a person shall be taken to assist the Commission in connection with an inquiry if the person–

(a)      gives information, whether orally or in writing, or gives documents, to the Commission in connection with an inquiry or investigation under this Act; or

(b)      gives evidence or produces documents, at an inquiry, investigation or hearing held under this Act.

76.   Appointment of advisers and consultants.–(1) Subject to sub-section (2), the Commission may, employ and pay consultants and agents, and technical, professional and other advisers, including bankers, economists, actuaries, accountants, lawyers and other persons to do any act required to be done in the exercise of its powers, the performance of its functions or for the better implementation of the purposes of this Act.

(2)  The decision to employ and the terms and conditions of employment of external advisers and consultants pursuant to sub-section (1) shall be made by the Commission in accordance with such policy guidelines as may be established by the Federal Government, in consultation with the Commission, from time to time.

77.   Removal of difficulty.–If any difficulty arises in giving effect to any of the provisions of this Act, the Federal Government may make such order, not inconsistent with the provisions of this Act, as may appear to it to be necessary for the purpose of removing the difficulty:

Provided that no such power shall be exercised after the expiry of one year from the coming into force of this Act.

78.   Act to override other laws.–The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force:

Provided that this provision shall not apply on the National Tariff Commission law for the time being in force.

79.   Repeal.–The Anti-Dumping Ordnance, 2000 (LXV of 2000) is hereby repealed.

80.  Savings.–Notwithstanding the repeal under Section 79, nothing in this Act shall affect or be deemed to affect anything done, action taken, investigation or proceedings commenced, order, rule, regulation, appointment, document, or agreement made, fee directed, resolution passed, direction given, proceedings taken or instrument executed or issued under or pursuant to the repealed Anti-Dumping Ordnance 2000 (LXV of 2000), and any such thing, action, investigation, proceedings, orders, rule, regulation, appointment, document, agreement, fee, resolution, direction, proceedings or instrument shall, if in force at the commencement of this Act and not inconsistent with any of the provisions of this Act continue in force and have effect as if had been respectively done, taken, commenced, made, directed, passed, given, executed or issued under this Act.

THE SCHEDULE

[See Section 32(2)]

BEST INFORMATION AVAILABLE

1.       As soon as possible after initiation of an investigation, the Commission should specify in detail the information required from any interested party, and the manner in which that information should be structured by the interested party in its response. The Commission should also ensure that the interested party is aware that if information is not supplied within a reasonable time, the Commission shall be free to make determination on the basis of facts available, including those contained in an application for initiation of an investigation by domestic industry.

2.       The Commission may also request an interested party to provide its response in a particular medium such as computer tape or computer language. Where such a request is made, the Commission should consider the reasonable ability of the interested party to respond in the preferred medium or computer language, and should not request the party to use for its response a computer system other than that used by the party. The Commission should not maintain a request for a computerised response if the interested party does not maintain computerized accounts and if presenting the response as requested would result in an unreasonable extra burden on the interested party or it would entail unreasonable additional cost and trouble. The Commission should not maintain a request for a response in a particular medium or computer language if the interested party does not maintain its computerised accounts in such medium or computer language and if presenting the response as requested would result in an unreasonable extra burden on the interested party or it would entail unreasonable additional cost and trouble.

3.       All information which is verifiable, which is appropriately submitted so that it can be used in an investigation without undue difficulties, which is supplied in a timely fashion, and, where applicable, which is supplied in a medium or computer language requested by the Commission, should be taken into account when determinations are made. If a party does not respond in the preferred medium or computer language but the Commission finds that the circumstances set out in Para 2 have been satisfied, any failure to respond in the preferred medium or computer language shall not be considered to significantly impede the investigation.