(3) A definitive countervailing duty shall be imposed in an appropriate amount in each case, on a non-discriminatory basis, on imports of a product from all sources found to benefit from countervailable subsidies and causing injury except as to imports from those sources from which undertakings under Section 14 have been accepted by the Commission.
(4) When the Commission has limited its examination in accordance with Section 27, any definitive countervailing duty applied to imports from exporters or producers which have made themselves known in accordance with Section 27 but were not included in an examination shall not exceed the weighted average amount of countervailable subsidies established for parties in a sample.
(5) For the purposes of sub-section (4), the Commission shall disregard any negligible amounts of countervailable subsidies and amounts of countervailable subsidies established in the circumstances referred to in Section 28.
(6) Individual duties shall be applied to imports from any exporter or producer for which an individual amount of subsidisation has been calculated as provided for in Section 27.
17. Retroactivity.–(1) Save as otherwise provided in this section, provisional and definitive countervailing duties shall only be applied to products which enter Pakistan for consumption after the time when the requirements set out in sub-section (1) of Section 13 and sub-section (1) of Section 16, as the case may be, have been fulfilled.
(2) 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 subsidised imports would, in the absence of provisional measures, have led to a determination of injury, definitive countervailing duties shall be levied by the Commission retroactively for the period for which provisional duty, if any, have been applied.
(3) If a definitive countervailing duty imposed by the Commission pursuant to sub-section (2) is higher than a provisional countervailing duty, the difference shall not be collected:
Provided that where a definitive countervailing duty is lower than a provisional countervailing duty, the duty difference shall be refunded by the Commission in an expeditious manner.
(4) Save as provided for in sub-section (3), where the Commission makes a determination of threat of injury or material retardation but, no injury has yet occurred, a definitive countervailing duty shall be imposed by the Commission only from the date of the determination of threat of injury or material retardation and any cash deposit provided during the period of application of provisional countervailing duty shall be refunded by the Commission in an expeditious manner.
(5) Where the Commission makes a negative final determination any cash deposit provided during the period of application of provisional countervailing duties shall be refunded by the Commission in an expeditious manner.
(6) A definitive countervailing duty shall be imposed by the Commission on products, which were imported for consumption not more than ninety days prior to the date of application of provisional countervailing duly if, the Commission determines, for an investigated product in question, that injury which is difficult to repair, is caused by massive imports in a relatively short period of a product benefiting from a countervailable subsidy and the Commission deems it necessary to impose such duty in order to preclude the recurrence of such injury.
DURATION, REVIEWS AND REFUNDS, AND GENERAL PROVISIONS
18. Duration of definitive countervailing duty.–Subject to the provisions of this Ordinance, a definitive countervailing duty imposed pursuant to this Ordinance shall remain in force only as long as, and to the extent that, it is necessary to counteract countervailable subsidies which are causing injury.
19. Expiry reviews.–(1) A definitive countervailing duty shall expire after five years from its imposition or five years from the date of the most recent review which has covered both subsidisation and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of subsidisation and injury. Such an expiry review may be initiated, on an initiative of the Commission or, upon a request made by or on behalf of domestic producers, and the measure in question shall remain in force pending the outcome of such review.
(2) An expiry review shall be initiated by the Commission upon request made by or on behalf of domestic producers where such request contains sufficient evidence that the expiry of a measure in question would be likely to result in a continuation or recurrence of subsidisation and injury.
Explanation.–Such a likelihood may, for example, be indicated by evidence of continued subsidisation and injury or evidence that the removal of injury is partly or solely due to the existence of measures or evidence that the circumstances of exporters, or market conditions, are such that they would indicate the likelihood of further injurious subsidisation.
(3) In carrying out investigations under this section, the Commissions shall provide any exporters, importers, an exporting country and domestic producers with the opportunity to amplify, rebut or comment on the matters set out in a review request, and conclusions shall be reached by the Commission with due account taken of all relevant and duly documented evidence presented in relation to the question as to whether the expiry of measures would be likely, or unlikely, to lead to the continuation or recurrence of subsidisation and injury.
(4) The Commission shall notify an impending expiry by a public notice which shall be published at an appropriate time, as determined by the Commission, in the final year of the period of application of a measure in question and a public notice announcing the actual expiry of a measure under this section shall also be published by the Commission.
20. Interim reviews.–(1) The need for continued imposition of measures under this Ordinance may also be reviewed, where warranted on an initiative of the Commission or, provided that a period of at least twenty-four months has elapsed since the imposition of definitive countervailing duty, upon a request by any exporter, importer or by domestic producers or an exporting country which contains sufficient evidence substantiating the need for such an interim review.
(2) An interim review under sub-section (1) shall be initiated by the Commission where a request contains sufficient evidence that the continued imposition of a measure is no longer necessary to offset countervailable subsidy or that injury would be unlikely to continue or recur if a measure were removed or varied, or that an existing measure is not, or is no longer, sufficient to counteract countervailable subsidy which is causing injury:
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 the review shall be initiated following the receipt by the Commission of such questionnaire duly filled in.
(3) In carrying out investigations pursuant to this section, the Commission may, in addition to other factors considered relevant by it, consider whether the circumstances with regard to subsidisation and injury have changed significantly, or whether existing measures are achieving the intended results in removing an injury previously established under Section 9.
21. Accelerated reviews.–(1) Any exporter whose exports are subject to a definitive countervailing duty but who was not individually investigated during an original investigation for reasons other than a refusal to co-operate with the Commission shall be entitled, upon request, to an accelerated review in order that the Commission may promptly establish an individual countervailing duty rate for that exporter provided that such review shall be initiated after domestic producers have been given an opportunity to comment.
(2) The Commission may require an applicant requesting a review under sub-section (1) to fill in an additional questionnaire provided by it before such review is initiated in which case a review under sub-section (1) shall be initiated following the receipt by the Commission of such questionnaire duly filled in.
22. Refunds.–(1) Notwithstanding anything contained in Section 19, an importer may apply to the Commission for refund of duties collected where it is shown that the amount of countervailable subsidies, on the basis of which duties were paid, has been either eliminated or reduced to a level which is below the level of the duty in force.
(2) An importer may submit an application for refund of countervailing duties collected within any twelve months period to the Commission no later than sixty days from the end of such period.
(3) An application for refund shall be considered to be duly supported by evidence only where it contains precise information on the amount of refund of countervailing duties claimed and all customs documentation relating to the calculation and payment of such amount and includes evidence, for a representative period, of the amount of countervailable subsidies for any exporter or producer to which the duty applies:
Provided that, where the importer is not associated with any exporter or producer concerned and such information is not immediately available, or where any exporter or producer is unwilling to release it to an importer, the application for refund shall contain a statement from the exporter or producer that the amount of countervailable subsidies has been reduced or eliminated, as specified in this section, and that the relevant supporting evidence will be provided to the Commission:
Provided further that where such evidence is not forthcoming from any exporter or producer within a reasonable period of time, as determined by the Commission, the application shall be rejected by the Commission.
(4) The Commission shall determine whether and to what extent an application should be granted, or it may decide at any time to initiate an interim review, whereupon any information and findings from such review, carried out in accordance with the provisions applicable for such review, shall be used to determine whether and to what extent a refund is justified.
(5) A refund of countervailing duties under this section shall normally take place within twelve months, and in no circumstances more than eighteen months after the date on which a request for a refund, duly supported by evidence, has been made by an importer of a product subject to countervailing duty.
23. General provisions on reviews and refund.–(1) The provisions of Sections 11 and 12, excluding those relating to time limits, shall mutatis mutandis apply to any review carried out pursuant to Sections 19, 20 and 21.
(2) Any review pursuant to Sections 19, 20 or 21 shall be carried out by the Commission expeditiously and shall normally be concluded within twelve months of the date of initiation of the review.
(3) Where a review pursuant to Section 20 is in progress at the end of the period of application of a measure as defined in Section 19, the measure shall also be investigated under the provisions of Section 19.
(4) In any review or refund investigation carried out pursuant to Sections 19 to 22, the Commission shall, provided that circumstances have not changed, apply the same methodology as in an investigation which led to the duty, with due account being taken of Sections 7, 8 and 27.
24. Anti-circumvention measures.–(1) Countervailing duties imposed pursuant to this Ordinance 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. Countervailing duties not exceeding the residual countervailing duty imposed in accordance with Section 16 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 subsidy previously established for the like product, if necessary in accordance with the provisions of this Ordinance.
(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 the,–
(a) “operation started or substantially increased since, or just prior to, the initiation of the investigation and the parts concerned are from the country subject to measures;
(b) parts constitute sixty percent 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 twenty five percent of the manufacturing cost; and
(c) 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 subsidy 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-section (1) and (2). Investigations shall be concluded by the Commission within nine months.
25. General provisions.–(1) Countervailing duties, provisional or definitive, as the case may be, imposed under this Ordinance shall–
(a) take the form of ad valorem or specific duties:
Provided that provisional countervailing shall take the form of cash deposits equal to the amount of a provisionally calculated amount of subsidization;
(b) be imposed in addition to other import duties levied on an investigated product; and
(c) be collected in the same manner as customs-duties under the Customs Act, 1969 (IV of 1969).
(2) No product shall be subject to both anti-dumping duties and countervailing duties, under their respective laws for the time being in force, under this Ordinance for the purpose of dealing with one and the same situation arising from dumping or from export subsidization:
Provided that sub-section (2) shall not prohibit or prevent, concurrent investigations of the same product under the laws specified therein.
(3) The decisions regarding imposition of provisional or definitive countervailing duties, and notices regarding acceptance of undertakings or terminating an investigation, shall be published by the Commission in a public notice which shall contain, in particular, and with due regard to the protection of confidential information in accordance with Section 29, the names of exporters, if possible, or of the countries involved, a description of the product and a summary of the facts and considerations relevant to subsidy and injury determinations and in each case, a copy of the said notice shall be sent to the known interested parties.
(4) The provisions of sub-section (3) shall apply, mutatis mutandis, to reviews under this Ordinance.
(5) The Commission shall establish and maintain a non-lapscable personal ledger account in its name for the purpose of this Ordinance and all duties and fees payable under and collected pursuant to this Ordinance shall be held in such account.
(6) The account established under sub-section (5) shall be maintained and operated in such manner as may be prescribed.
VERIFICATION VISITS, SAMPLING, NON-COOPERATION, CONFIDENTIALITY AND DISCLOSURE
26. Verification visits.–(1) The Commission may, where it considers it appropriate, carry out visits to examine the records of importers, exporters, traders, agents, producers, trade associations and organisations, to verify information provided on subsidisation and injury:
Provided that in the absence of a proper and timely reply a verification visit may not be carried out.
(2) The Commission may carry out investigations in third countries as required, provided that–
(a) it obtains consent of an entity concerned;
(b) it gives notice to a country in question; and
(c) the country in question does not object to an investigation.
(3) As soon as consent of an entity concerned has been obtained the Commission shall give notice to an exporting country of the name and address of the entity to be visited and the dates agreed.
(4) An entity concerned shall be advised of the nature of information to be verified during verification visits and of any further information which needs to be provided during such visits:
Provided that this shall not preclude the Commission from requiring further information or verification.
27. Sampling.–(1) Where the Commission determines that the number of complainants, exporters or importers, types of product or transactions is large, the Commission may limit an investigation to–
(a) a reasonable number of parties, products or transactions by using samples which are statistically valid on the basis of information available at the time of selection; or
(b) to the largest representative volume of any production, sales or exports which can reasonably be investigated within the time available.
(2) The selection of parties, types of products or transactions made under this section shall rest with the Commission :
Provided that preference shall be given by the Commission to choosing a sample in consultation with, and with the consent of, the parties concerned:
Provided further that such parties make themselves known and make sufficient information available to the Commission, within three weeks of initiation of an investigation, to enable a representative sample to be chosen.
(3) In cases where the examination has been limited in accordance with this section, an individual amount of countervailable subsidisation shall, nevertheless, be calculated by the Commission for any exporter or producer not initially selected who submits the necessary information within the time limits provided for in this Ordinance except where the Commission determines that the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of an investigation within the applicable time limits.
(4) Where the Commission has decided to undertake a sample as provided for in this section and there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of an investigation, a new sample may be selected by the Commission:
Provided that if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Section 28 shall apply.
28. Non-cooperation.–(1) Where any interested party refuses access to, or otherwise does not provide, necessary information within the time limits provided in this Ordinance, or significantly impedes an investigation, provisional or final determinations, whether affirmative or negative, may be made by the Commission on the basis of the facts available.
(2) Where the Commission establishes that any interested party has supplied false or misleading information, such information shall be disregarded and use may be made by the Commission of the facts available.
(3) Where any information submitted by an interested party is not ideal in all respects it shall nevertheless not be disregarded by the Commission:
Provided that the Commission is satisfied that any deficiencies are not such as to cause undue difficulty in arriving at a reasonably accurate finding and that the information is appropriately submitted in good time and is verifiable, and that the party has acted to the best of its ability.
(4) If evidence or information is not accepted by the Commission, a supplying party shall be informed forthwith of the reasons therefor and shall be granted an opportunity to provide further explanations within such time limit as the Commission may specify.
(5) If determinations, including those regarding the amount of countervailable subsidies, are based on the provisions of sub-section (1) including any information supplied in an application it shall, where practicable and with due regard to the time limits of an investigation, be checked by the Commission by reference to information from other independent sources which may be available including published price lists, official import statistics and customs returns, or information obtained from other interested parties during the investigation.
(6) If an interested party does not co-operate, or co-operates only partially so that relevant information is thereby withheld, this may result in adverse inferences being drawn against the party withholding such relevant information.
29. Confidentiality.–(1) Subject to sub-section (2), the Commission shall, during and after an investigation, keep confidential any information submitted to it and such information shall not be disclosed without specific permission of the party submitting it.
(2) Information which is–
(a) by nature confidential, because its disclosure shall be of significant competitive advantage to a competitor, or because its disclosure would have a significantly adverse effect upon a person supplying the information, or upon a person from whom the information was acquired, or where the Commission determines such information to be of a confidential nature for any other reason; or
(b) provided on a confidential basis by parties to an investigation, shall, upon good cause shown, be treated as confidential by the Commission.
(3) The following types of information shall be deemed to be by nature confidential, unless the Commission determines that disclosure in a particular case would neither be of significant competitive advantage to a competitor nor have a significantly adverse effect upon a person supplying an information or upon a person from whom such information was acquired, namely:–
(a) business or trade secrets concerning the nature of a product, production processes, operations, production equipment, or machinery;
(b) information concerning financial condition of a company, which is not publicly available; and
(c) information concerning costs, identification of customers, sales, inventories, shipments, or amount or source of any income, profit, loss or expenditure related to the manufacture and sale of a product.
(4) Any party seeking any information to be kept confidential shall request for the same at the time the information is submitted, along with the reasons warranting confidentiality. The Commission shall consider such requests expeditiously and inform the party submitting the information if it determines that the request for keeping the information confidential is not warranted.
(5) Any party submitting any information with the request to keep it confidential shall furnish a non-confidential summary thereof Such summary may take the form of ranges or indexation of figures provided in a confidential version, or marked deletions in text or in such other form as the Commission may require:
Provided that such non-confidential summary shall permit a reasonable understanding of the substance of any information submitted in confidence:
Provided further that the deletion in text shall, unless otherwise allowed by the Commission, only relate to names of any buyer or supplier.
(6) In exceptional circumstances, parties may indicate that information for which confidentiality is sought is not susceptible of summary, in which case a statement of the reasons why summarisation is not possible shall be provided:
Provided that where the Commission concludes that a non-confidential summary provided fails to satisfy the requirements of sub-section (5), it may determine that the request for keeping an information confidential is not warranted.
(7) If the Commission finds that a request for keeping an information confidential is not warranted, and if the supplier of the information is unwilling to make the information public or to authorise the disclosure in generalised or summary form, the Commission shall disregard such information, and return the information concerned to the party submitting it.
(8) Save for sub-section (10), notwithstanding anything contained in this Ordinance or in any other law for the time being in force, any confidential information received or obtained, directly or indirectly, by the Commission pursuant to or in connection with an investigation shall not be subject to disclosure by the Commission to any Ministry, Division, department, agency or instrumentality of the Federal Government or a Provincial Government without the prior permission of the party submitting such confidential information:
Provided that no such permission shall be required in case where issues of National Security or Defense are involved. In this regard, the Commission shall decide as to whether the issues of National Security or Defense are involved in a case or not.
(9) Information received pursuant to this Ordinance shall be used only for the purpose for which it was requested.
(10) The provisions of sub-section (8) shall not preclude the supply of information called for by the Appellate Tribunal pursuant to Section 33:
Provided that the obligation to protect confidential information as provided for in this Chapter shall, mutatis mutandis, extend to the Appellate Tribunal, subject to the proviso to sub-section (8).
30. Disclosure.–(1) Any applicant, importer and exporter and their representative association and an exporting country may request disclosure by the Commission of the details underlying the essential facts and considerations on the basis of which provisional countervailing duties have been imposed:
Provided that requests for such disclosure shall be made in writing immediately following imposition of provisional countervailing duties and in any event no later than fifteen days thereof and a disclosure by the Commission shall be made in writing as soon as possible thereafter.
(2) The parties specified in sub-section (1) may request for a final disclosure by the Commission of the essential facts and considerations on the basis of which it is intended to recommend imposition of definitive countervailing duties, or termination of an investigation or proceedings without imposition of duties, particular attention being paid to disclosure of any facts or considerations which are different from those used for any provisional countervailing duties.
(3) Requests for final disclosure shall be addressed to the Commission in writing and be received, in cases where provisional countervailing duty has been applied, not later than one month after imposition of that duty.
(4) Where a provisional countervailing duty has not been imposed, parties shall be provided with an opportunity to request final disclosure within such time limits as may be determined by the Commission.
(5) Final disclosure shall be given in writing and shall be made, with due regard to the protection of confidential information pursuant to Section 29, as soon as possible, and normally, not later than one month prior to a definitive determination.
(6) Where the Commission is not in a position to disclose certain facts or considerations at that time, these shall be disclosed as soon as possible thereafter. Disclosure shall not prejudice any subsequent decision which may be taken by the Commission but where such decision is based on any different facts and considerations these shall be disclosed as soon as possible.
(7) Representations which are made after a final disclosure is given, shall be taken into consideration only if received within such period as may be determined by the Commission in each case, which shall be at least ten days, due consideration being given to the urgency of the matter.
31. Relationships between countervailing duty measures and multilateral remedies.–Where an investigated product is made subject to any countermeasures imposed following recourse to the dispute settlement procedures provided for in the Agreement on Subsidies and such measures are appropriate to remove the injury caused by any countervailable subsidies, any countervailing duty imposed with regard to such product under this Ordinance shall immediately be terminated by the Commission.
APPEAL TO THE APPELLATE TRIBUNAL
32. Appeal to the Appellate Tribunal.–(1) Without prejudice to the provisions of Anti-Dumping Ordinance, 2000 (LXV of 2000), the Appellate Tribunal shall also exercise jurisdiction under sub-section (2) under this Ordinance.
(2) Any interested party may prefer an appeal to the Appellate Tribunal against,–
(a) the initiation of an investigation or a preliminary determination, where it is alleged that it does not satisfy the requirements of Section 11 and Section 13 respectively;
(b) an affirmative or negative final determination by the Commission;
(c) any final determination pursuant to a review;
(d) an order of the Commission for termination of investigation under Section 15; or
(e) a determination of the Commission under Section 22,
(3) An appeal under clause (a) of sub-section (2) shall be filed within thirty days of the publication of notice of initiation or notice preliminary determination, as the case may be.
(4) The Appellate Tribunal shall handle such an appeal as a priority and shall issue its decision on the appeal within forty five days of the filing of an appeal with the Appellate Tribunal.
(5) The filing of an appeal under clause (a) of sub-section (2) shall have no effect on the Commission's conduct of investigation.
(6) An appeal under clauses (b) to (e) of sub-section (2) 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.
(7) Such an appeal shall be disposed of and the decision of the Appellate Tribunal pronounced, as expeditiously as possible, but no later than ninety days from the date of receipt of an appeal compliant with the requirements contained in this Ordinance, except in extraordinary circumstances and on grounds to be recorded. The Appellate Tribunal shall hear the appeal from day-to-day.
(8) In examining an appeal under sub-section (2), 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 for decision.
(9) 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 its determination on the official record maintained by the Commission or any other documents relied upon by the Commission in reaching the impugned determination.
(10) 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 impugned 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 Ordinance.
(11) 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 Ordinance and the facts of the case.
(12) The Appellate Tribunal shall provide copies of its decision to all the appellants and respondents including the Commission no later than five days from the date of rendering its decision.
(13) 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.
(14) The decision of the Appellate Tribunal shall be appealable in the High Court. The High Court shall decide the appeal within thirty days:
Provided 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 further 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.
(15) The Appellate Tribunal shall only accept an application under the first proviso of sub-section (14) 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 issued a notice by the Appellate Tribunal:
Provided that no such application shall be accepted by the Appellate Tribunal later than thirty days of its decision.
(16) The Appellate Tribunal shall perform its functions under this Ordinance in accordance with such procedures as may be prescribed.
(17) A determination of the Commission shall be given full force and effect during the pendency of any appeal of such determination
(18) A person duly authorized by any party is entitled to appear, plead and act on behalf of that interested party before the Appellate Tribunal.
33. Power of the Appellate Tribunal to call for and examine record.–The Appellate Tribunal may call for and examine any 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.
34. Power to make rules.–(1) The Federal Government may, in consultation with the Commission, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for the manner in which any investigation may be conducted, the manner in which an investigated product may be identified, the factors to which regard shall be had in any such investigation, the manner of assessment, levy and collection of any countervailing duty, whether preliminary or definitive, and for all matters connected with an investigation.
35. 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 Ordinance; 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 Ordinance.
(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 Ordinance; or
(b) gives evidence, or produces documents, at an inquiry, investigation or hearing held under this Ordinance.
36. Public file to be maintained for interested party and access thereto.–(1) The Commission shall establish and maintain a file relating to each investigation or review pursuant to this Ordinance and subject to the requirement to protect confidential information under Section 29. The Commission shall place in such file–
(a) all public notices relating to an investigation or review;
(b) all materials, including questionnaires, responses to questionnaires, and written communications submitted to the Commission;
(c) all other information developed or obtained by the Commission; and
(d) any other documents the Commission deems appropriate for disclosure to an interested party.
(2) The file to be maintained under sub-section (1) shall be available to any interested party for review and copying at the offices of the Commission, during such time as the Commission may specify, throughout the course of an investigation or review and any appeal under Section 32.
37. Official file to be maintained by the Commission.–(1) The Commission shall establish and maintain an official file relating to each investigation or review pursuant to this Ordinance and shall place in such file–
(a) all materials, papers and documents, confidential or otherwise, including questionnaires, responses to questionnaires, and written communications submitted to or by the Commission in connection with an investigation or review;
(b) all documents relating to or setting out any calculations made by the Commission in connection with an investigation or review;
(c) all internal correspondence or memoranda of the Commission relating to or in connection with an investigation or review that are relevant to the calculation of dumping margin or determination of injury including, any correspondence with or between any other Ministry, Division, department, agency or instrumentality of the Federal Government or any Provisional Government;
(d) any other information developed, obtained or relied on by the Commission in connection with an investigation or review; and
(e) any other document or information that the Commission deems appropriate for placing in the official file.
(2) The file to be maintained under sub-section (1) shall only be for the internal use of the Commission and for the Appellate Tribunal in connection with an appeal under Section 32.
38. Appointment of advisers and consultants.–(1) Subject to sub-section (2), the Commission may, employ and pay consultants, agents, 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 Ordinance.
(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.
39. Removal of difficulties.–The Federal Government may for the purpose of removing any difficulties in relation to any matters under this Ordinance, make such orders 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 two years from the commencement of this Ordinance.
40. Ordinance to override other laws.–The provisions of this Ordinance 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 Act, 1990 (VI of 1990).
THE FIRST SCHEDULE
[See Section 5(6) (a)]
ILLUSTRATIVE LIST OF EXPORT SUBSIDIES
1. In this Schedule, unless there is anything repugnant in the subject or context,–
(a) “commercially available” means that the choice between domestic and imported products is unrestricted and depends only on commercial considerations;
(b) “direct taxes” means taxes on wages, profits, interests, rents, royalties and all other forms of income, and taxes on the ownership of real property;
(c) “cumulative indirect taxes” means indirect taxes which are multi-staged taxes levied where there is no mechanism for subsequent crediting of the tax if goods or services subject to tax at one stage of production are used in a succeeding state of production;
(d) “import charges” means tariffs, duties, and other fiscal charges that are levied on imports;
(e) “indirect taxes” means sales, excise, turnover, value added, franchise, stamp, transfer, inventory and equipment taxes, border taxes and all taxes other than direct taxes and import charges;
(f) “prior-stage indirect taxes'“ means those indirect taxes levied on goods or services used directly or indirectly in making a product;
(g) “remission” of taxes includes the refund or rebate of taxes; and
(h) “remission or drawback” includes the full or partial exemption or deferral of import charges:
Provided that deferral may not amount to an export subsidy where, for example, appropriate interest charges are collected.
2. The following is an illustrative list of export subsidies, namely:–
(a) any provision by a government of direct subsidies to a firm or an industry contingent upon export performance;
(b) currency retention schemes or any similar practices which involve a bonus on exports;
(c) internal transport and freight charges on export shipments, provided or mandated by a government, on terms more favourable than for domestic shipments;
(d) any provision by a government or its agencies either directly or indirectly through government-mandated schemes, of imported or domestic products or services for use in the production of exported goods, on terms or conditions more favourable than for provision of like or directly competitive products or services for use in the production of goods for domestic consumption, if, in the case of products, such terms or “ conditions are more favourable than those commercially available on world markets to their exporters;
(e) any full or partial exemption, remission, or deferral specifically related to exports, of direct taxes or social welfare charges paid or payable by industrial or commercial enterprises;
(f) any allowance of special deductions directly related to exports or export performance, over and above those granted in respect of production for domestic consumption, in calculation of the base on which direct taxes are charged;
(g) any exemption or remission, in respect of the production and distribution of exported products, of indirect taxes in excess of those levied in respect of production and distribution of like products when sold for domestic consumption;
(h) any exemption, remission or deferral of prior-stage cumulative indirect taxes on goods or services used in the production of exported products in excess of any exemption, remission or deferral of like prior-stage cumulative indirect taxes on goods or services used in the production of like products when sold for domestic consumption; provided, however, that prior-stage cumulative indirect taxes may be exempted, remitted or deferred on exported products even when not exempted, remitted or deferred on like products when sold for domestic consumption, if any prior-stage cumulative indirect taxes are levied on inputs that are consumed in the production of an exported product making normal allowance for waste. This clause shall be interpreted in accordance with the guidelines on consumption of inputs in a production process contained in the Second Schedule. For the avoidance of doubt, the provisions of this clause shall not apply to value-added tax systems and border-tax adjustment in lieu thereof and the provisions of clause (g) shall exclusively cover issues relating to excessive remission of value-added taxes;
(i) any remission or drawback of import charges in excess of those levied on imported inputs that are consumed in the production of an exported product, making normal allowance for waste; provided, however, that in particular cases a firm may use a quantity of home market inputs equal to, and having the same quality and characteristics as, the imported inputs as a substitute for them in order to benefit from this provision if the import and the corresponding export operations both occur within a reasonable time period, not to exceed two years. This clause shall be interpreted in accordance with the guidelines on consumption of inputs in the production process contained in the Second Schedule and the guidelines in the determination of substitution drawback systems as export subsidies contained in the Third Schedule;
(j) any provision by a government or, special institutions controlled by a government, of export credit guarantee or insurance programmes, of insurance or guarantee programmes against increases in the cost of exported products or of exchange risk programmes, at premium rates which are inadequate to cover long-term operating costs and losses of the programmes;
(k) any grant by a government or special institutions controlled by or acting under the authority of a government, or both, of export credits at rates below those which they actually have to pay for the funds so employed or, would have to pay if they borrowed on international capital markets in order to obtain funds of the same maturity and other credit terms and denominated in the same currency as an export credit or, the payment by them of all or part of the costs incurred by exporters or financial institutions in obtaining credits, insofar as they are used to secure a material advantage in the field of export credit terms. Provided, however, that if a country which is a member of the WTO is a party to an international undertaking on official export credits to which at least twelve original such members are parties as of the first day of January, 1979, or, a successor undertaking which has been adopted by those original members, or if in practice a country which is member of the WTO applies the interest rates provisions of the relevant undertaking, an export credit practice which is in conformity with those provisions shall not be considered an export subsidy; and
(l) any other charge on a public account constituting an export subsidy in the sense of Article XVI of the General Agreement on Tariffs and Trade, 1994.
THE SECOND SCHEDULE
(See the First Schedule)
GUIDELINES ON CONSUMPTION OF INPUTS IN THE PRODUCTION PROCESS
1. For the purposes of this Schedule “inputs consumed in the production process” means inputs physically incorporated, energy, fuels and oil used in a production process and catalysts which are consumed in the course of their use to obtain an exported product.
2. Indirect tax rebate schemes can allow for exemption, remission or deferral of prior-stage cumulative indirect taxes levied on inputs that are consumed in the production of an exported product making normal allowance for waste. Similarly, drawback schemes can allow for the remission or drawback of import charges levied on inputs that are consumed in the production of an exported product making normal allowance for waste.
3. The illustrative list of export subsidies in the First Schedule makes reference to the term “inputs that are consumed in the production of the exported product” in clauses (h) and (i) of Para 2 thereof. Pursuant to clause (h) of Para 2 of the First Schedule, indirect tax rebate schemes can constitute an export subsidy to the extent that they result in exemption, remission or deferral of prior-stage cumulative indirect taxes in excess of the amount of such taxes actually levied on inputs that are consumed in the production of an exported product. Pursuant to clause (i) of Para 2 of the First Schedule, drawback schemes can constitute an export subsidy to the extent that they result in a remission or drawback of import charges in excess of those actually levied on inputs that are consumed in the production of an exported product. Both the said clauses stipulate that normal allowance for waste must be made in findings regarding consumption of inputs in the production of an exported product. Clause (i) of Para 2 of the First Schedule also provides for substitution, where appropriate.
4. In examining whether inputs are consumed in the production of an exported product, as part of a countervailing duty investigation pursuant to this Ordinance, the Commission should normally proceed on the following basis, namely:–
(a) where it is alleged that an indirect tax rebate scheme, or a drawback scheme, conveys a subsidy by reason of over-rebate or excess drawback of indirect taxes or import charges on inputs consumed in the production of an investigated product, the Commission shall normally first determine whether the government of an exporting country has in place and applies a system or procedure to confirm which inputs are consumed in the production of an exported product and in what amounts. Where such a system or procedure is determined to be applied, the Commission shall normally then examine the system or procedure to see whether it is reasonable and effective for the purpose intended, and based on generally accepted commercial practices in the country of export. The Commission may deem it necessary to carry out, in accordance with Section 26, certain practical tests in order to verify information or to satisfy itself that the system or procedure is being effectively applied;
(b) where there is no such system or procedure, or where it is not reasonable, or where it is instituted and considered reasonable but is found not to be applied or not to be applied effectively, a further examination by an exporting country based on the actual inputs involved will normally need to be carried out in the context of determining whether an excess payment occurred. If the Commission deems it necessary, a further examination may be carried out in accordance with clause (a) of this para;
(c) the Commission must normally treat inputs as physically incorporated if such inputs are used in the production process and are physically present in a product exported, and an input need not be present in a final product in the same form in which it entered the production process;
(d) in determining the amount of a particular input that is consumed in the production of an exported product, a “normal allowance for waste” must normally be taken into account by the Commission, and such waste must normally be treated as consumed in the production of an exported product. The term “waste” refers to that portion of a given input which does not serve an independent function in the production process, is not consumed in the production of an exported product, for reasons such as inefficiencies, and is not recovered, used or sold by the same manufacturer; and
(e) the Commission's determination of whether the claimed allowance for waste is ''normal” shall normally take into account the production process, the average experience of an industry in the country of export, and other technical factors, as appropriate. The Commission shall bear in mind that an important question is whether the authorities in an exporting country have reasonably calculated the amount of waste, when such an amount is intended to be included in a tax or duty rebate or remission.
THE THIRD SCHEDULE
[See the First Schedule and Second Schedule]
GUIDELINES IN THE DETERMINATION OF SUBSTITUTION DRAWBACK SYSTEMS AS EXPORT SUBSIDIES
1. Drawback systems can allow for refund or drawback of import charges on inputs which are consumed in a production process of another product and where export of this latter product contains domestic inputs having the same quality and characterises as those submitted for imported inputs. Pursuant to clause (i) of Para 2 of the First Schedule, substitution drawback systems can constitute an export subsidy to the extent that they result in an excess drawback of import charges levied initially on imported inputs for which drawback is being claimed.
2. In examining any substitution drawback system as part of a an investigation the Commission shall normally proceed on the following basis, namely:–
(a) clause (i) of Para 2 of the First Schedule stipulates that home market inputs may be substituted for imported inputs in the production of a product for export provided such inputs are equal in quantity to, and have same quality and characteristics as, imported inputs being substituted. The existence of a verification system or procedure is important because it enables the government of an exporting country to ensure and demonstrate that the quantity of inputs for which drawback is claimed does not exceed the quantity of similar products exported, in whatever form, and that there is no drawback of import charges in excess of those originally levied on imported inputs in question;
(b) where it is alleged that a substitution drawback system conveys a subsidy, the Commission shall normally first proceed to determine whether the government of an exporting country has in place and applies a verification system or procedure. Where such a system or procedure is determined to be applied, the Commission shall normally then examine the verification procedures to see whether they are reasonable and effective for the purpose intended, and based on generally accepted commercial practices in the country of export. To the extent that any procedures are determined to meet this test and are effectively applied, no subsidy will be presumed to exist. It may be deemed necessary by the Commission to carry out, in accordance with Section 26, certain practical tests in order to verify information or to satisfy itself that verification procedures are being effectively applied;
(c) where there are no verification procedures, or where they are not reasonable, or where such procedures are instituted and considered reasonable but are found not be actually applied or not be applied effectively, there may be a subsidy. In such cases, further examination by an exporting country based on actual transactions involved would need to be carried out to determine whether an excess payment occurred. If the Commission deems it necessary, a further examination mat be carried out in accordance with clause (b); and