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REPUBLIC OF TRINIDAD AND TOBAGO
REPUBLIC OF TRINIDAD AND TOBAGO
AN ACT to authorize the imposition of anti-dumping duties and countervailing duties where goods have been dumped or subsidized; to provide for an Anti-Dumping Authority to investigate dumping or subsidizing of goods; to repeal the Customs Duties (Dumping and Subsidies) Act, Chap. 78:04; and for related purposes.
[Assented to 19th August 1992]
ENACTED by the Parliament of Trinidad and Tobago as follows:
1. This Act may be cited as the Anti-Dumping and Countervailing Duties Act, 1992.
2. This Act comes into operation on such day as is fixed by the President by Proclamation.
3. (1) In this Act -
but does not include importers of those goods;
(2) For the purposes of this Act imported goods shall be regarded as having been dumped -
(3) References in this Act to giving a subsidy are references to giving, directly or indirectly, a bounty or subsidy on the production or export of goods (whether by grant, loan, tax relief or in any other way and whether related directly to the goods themselves or to materials of the goods or to something else) and shall include -
but do not include the application of restrictions or charges on the export of materials from any country so as to favour producers in that country who use those materials in goods produced by them.
(4) For the purposes of this Act, a purchase or sale of goods shall not be treated as an arm's length transaction if -
(5) Where goods are exported or intended to be exported to Trinidad and Tobago and are purchased by the importer from the exporter (whether before or after exportation) for a particular price and the Minister is satisfied, after having regard to -
that the importer, whether directly or through an associate, sells those goods in Trinidad and Tobago (whether in the condition in which they were imported or otherwise) at a loss, the Minister may take the sale of those goods as an indication that the importer or an associate of the importer will, directly or indirectly, be reimbursed, compensated, or otherwise receive a benefit for, or in respect of, the whole or any part of the price for the purpose of subsection (4)(c).
(6) For the purposes of this Act, persons shall be deemed to be associates of each other only if -
(7) For the purposes of this Act, where, during the exportation of goods to Trinidad and Tobago the goods pass in transit from a country through another country, that other country shall be disregarded in ascertaining the country of export of the goods.
(8) Any duty chargeable under this Act on any goods is a duty of customs and shall be chargeable in addition to any other duty of customs for the time being chargeable thereon, and notwithstanding the provisions of any other law for the time being in force in Trinidad and Tobago, the charge of duty under this Act shall not affect liability to customs duty chargeable under any other Act or the amount of any such duty.
4. (1) The Comptroller shall be responsible for the collection of the duties imposed by this Act.
(2) Subject to subsection (3), for the purposes of collecting and enforcing the payment of duties imposed by this Act the Customs Act and any other written law relating to the importation of goods shall apply, but to the extent that it is inconsistent with any other written law, this Act prevails.
IMPOSITION OF DUTIES
5. (1) Where the Minister, having made a determination under Part V, is satisfied that goods of any description are being or have been imported into Trinidad and Tobago in circumstances in which they are under the provisions of this Act to be regarded as having been dumped, he may, by Order, Impose a duty to be known as anti-dumping duty.
(2) The anti-dumping duty in respect of goods shall be at a rate determined by the Minister after having regard to the desirability of ensuring that the amount of duty in respect of those goods is not greater than is necessary to prevent the material injury or a recurrence of the material injury or to remove the threat of material injury to the establishment of an industry, as the case may be, but shall not exceed the difference between the export price of the goods and their normal value.
6. (1) Where the Minister, having made a determination under Part V, is satisfied that some Government or other authority outside Trinidad and Tobago has been giving a subsidy affecting goods of any description which are being or have been imported into Trinidad and Tobago, and by reason thereof material injury to an industry producing like goods has been or is being caused or threatened or the establishment of an industry producing like goods has been or is being materially retarded, he may, by Order, impose a duty to be known as countervailing duty.
(2) The countervailing duty in respect of goods shall be at a rate determined by the Minister after having regard to the desirability of ensuring that the amount of duty in respect of those goods is not greater than is necessary to prevent the material injury or a recurrence of material injury or to remove the threat of material injury to the establishment of an industry, as the case may be, but shall not exceed the amount of the subsidy given on the goods.
7. (1) Where the Minister is satisfied, having made a determination under Part V, that, in relation to the importation into Trinidad and Tobago of goods produced or manufactured in another country -
the Minister may, if requested by the Government of the third country to do so by Order impose anti-dumping duty or countervailing duty, as the case may be.
(2) In subsection (1) "material injury" means material injury to the production in the third country of like goods and includes, in respect only of the subsidizing of an agricultural product, an increase in the financial burden of that country's government.
8. Any duty or provisional duty shall be non-discriminatory and payable on all imports of such goods, if found to be dumped or subsidized and, where applicable, causing material injury except in the case of imports from those sources from which undertakings have been accepted.
9. (1) Subject to subsection (2), an Order under this Part may include such provisions as may appear to the Minister to be required for the purposes of this Act, and in particular -
(2) The description of goods in an Order shall include a reference to the country in which the goods originated and where the country from which the goods were exported to Trinidad and Tobago is not the country of origin, to the country from which the goods were so exported.
10. (1) Where it appears to the Minister that relief under this section should be available as respects a duty imposed by an Order (being an Order made to afford protection against dumping) he may, if he thinks fit, in that or a subsequent Order under this Act apply this section in relation to the duty.
(2) Where this section applies in relation to any duty, the importer of any goods chargeable with the duty as being goods originating in or, as the case may be, exported from a specified country may apply to the Minister for relief from the duty on those goods.
(3) If on an application made under subsection (2) the Minister is satisfied that the export price of the goods from that country with the amount of the duty added to it exceeds the normal value of the goods in that country, he shall notify the Comptroller of the amount of the excess, and the Comptroller shall remit or repay the duty up to that amount.
(4) An application under subsection (2) as respects any goods shall not be made more than six months after the duty has been paid on the goods, and for the purposes of the application the applicant shall furnish such information and evidence as the Minister may require from him for ascertaining the export price or normal value.
(5) This section shall have effect in relation to a duty imposed by an Order (being an Order made to afford protection against the giving of a subsidy) as if references to the normal value in a country were references to the export price from that country increased by such amount (if any) as may be necessary to offset the effect of the giving of the subsidy.
(6) If a person for the purposes of an application under this section -
the amount of any duty remitted or repaid under this section on the application shall be recoverable as a debt due to the State and if the statement was made or the document was produced knowingly or recklessly that person commits an offence and is liable on summary conviction to a fine of fifteen thousand dollars and imprisonment for one year.
11. (1) The Minister may by Order provide for the allowance of drawback in respect of all or any duties under this Act, on the export of goods in such circumstances and subject to such conditions as he may specify.
(2) The drawback may be in respect of duty paid on the goods or in respect of duty paid on materials used in the manufacture of goods and the rate of the drawback may be determined in such manner by reference to such matters as the Minister may specify.
(3) The Comptroller shall be responsible for the payment of drawback under this section.
12. (1) Subject to this section, for the purposes of this Act, the normal value of any goods exported or intended to be exported to Trinidad and Tobago shall be the price paid for like goods sold in the ordinary course of trade for home consumption in the country of export in sales that are arm's length transactions by the exporter or, if like goods are not sold by the exporter, by other sellers of like goods.
(2) Subject to subsection (4), where the Minister is satisfied that -
(a) the normal value of goods exported or intended to be exported to Trinidad and Tobago cannot be determined under subsection (1) because -
(b) like goods are not sold in the ordinary course of trade for home consumption in the country of export in sales that are arm's length transactions by the exporter and it is not practicable to obtain within a reasonable time information in relation to sales by other sellers of like goods that would be relevant for the purpose of determining a price under subsection (1), subsection (3) shall have effect.
(3) Where this subsection has effect, the normal value for the purposes of this Act shall be the sum of -
(4) The Minister may, in his discretion, determine that the normal value for the purposes of this Act, shall be the price that, by reason of the quantity of goods, being like goods sold at arm's length in the ordinary course of trade in the country of export for export to a third country, is representative of the price paid in such sales of those goods and may be the highest price paid for such like goods.
(5) Subject to subsections (9) and (10), where the Minister is satisfied that it is inappropriate to ascertain the normal value of goods in accordance with the foregoing provisions of this section by reason that the Government of the country of export -
(6) Where this subsection has effect the normal value of the goods for the purposes of this Act shall be a value ascertained in accordance with whichever of the following paragraphs the Minister determines is appropriate and reasonable in the circumstances of the case:
(7) Where the normal value of goods exported or intended to be exported to Trinidad and Tobago is the price paid for like goods, in order to effect a fair comparison the normal value and the export price shall be compared by the Minister -
(8) Where the normal value of goods exported to Trinidad and Tobago is to be ascertained in accordance with subsection (3)(a) and (b) or (6)(c), the Minister shall make such adjustments as are necessary to ensure that the normal value so ascertained is properly comparable with the export price of those goods.
(9) Where -
the Minister may direct that the normal value of the goods shall be so ascertained.
(10) Where the Minister is satisfied, in relation to goods exported or intended to be exported to Trinidad and Tobago that -
is, and has been for an extended period of time and in respect of a substantial quantity of like goods, less than the sum of -
the price so paid for those like goods shall be deemed not to have been paid in the ordinary course of trade.
(11) Where the Minister is satisfied that the normal value of goods cannot be determined under section (1) because there is an absence of sales that would be relevant for the purpose of determining a price under that subsection for the reason that the goods are substandard or defective and for that reason cannot be sold in the country of export, he shall determine the normal value of the purposes of this Act to be the normal value of those goods were they in a standard or non-defective condition.
13. (1) Subject to this section, for the purposes of this Act, the export price of any goods exported or intended to be exported to Trinidad and Tobago which have been purchased by the importer from the exporter shall be -
(2) Where -
14. Where the Minister is satisfied that sufficient information has not been furnished or is not available to enable the normal value of goods to be ascertained under section 12 or the export price of goods to be ascertained under section 13, the normal value or export price, as the case may be, shall be an amount determined by the Minister having regard to such information as is available to him.
15. (1) Goods shall be regarded for the purposes of this Act as having originated in a country -
(2) Any reference in this Act to the country in which goods originated is a reference, in a case where there are two or more countries which answer to that description, to any of those countries.
16. (1) The Minister may designate the Permanent Secretary in his Ministry or such other person as he thinks fits, to be the Anti-Dumping Authority for the purposes of this Act.
(2) The Minister may provide to the Authority the services of such other persons and such other facilities as he thinks fit.
17. (1) It shall be the duty of the Authority in accordance with Regulations made under section 34 -
(2) The Authority shall conform, in the performance of his duties and exercise of his powers with any general or special directions given to him by the Minister.
18. (1) The Authority may initiate an investigation to determine the existence and effect of any alleged dumping or subsidizing of any goods at the direction of the Minister, on his own initiative or on receipt of a complaint in writing by or on behalf of producers in Trinidad and Tobago of like goods.
(2) A complaint under subsection (1) shall be in a form approved by the Authority and shall -
(3) Where the Authority initiates an investigation pursuant to subsection (1), notice to that effect shall be given.
(4) Where the Authority decides with respect to some or all of the goods specified in the complaint not to cause an investigation to be initiated, he shall cause a written notice of his decision, setting out the reasons for it, to be sent to the complainant and, in case of subsidized goods, to the Government of the country of export.
(5) Before initiating an investigation into a complaint the Authority shall satisfy itself that it has sufficient prima facie evidence of -
19. The Authority, shall ensure that all interested persons are given reasonable opportunity -
20. (1) Any information provided to the Authority on a confidential basis by any person in the course of an investigation shall, upon the Authority being satisfied as to its confidentiality, be treated as such by it and no such information shall be disclosed by the Authority to any other person without the specific authorization of the person providing such information.
(2) The Authority may request persons who have provided confidential information to furnish -
and he may disregard any information for which the person submitting it fails to provide either a satisfactory summary or satisfactory reason why such summary cannot be provided.
21. (1) An investigation shall be carried out in the prescribed manner.
(2) Interested parties to an investigation may be represented by an attorney-at-law or by an agent.
22. A person who -
23. (1) Investigations initiated pursuant to section 18 are terminable in accordance with this section and section 28.
(2) Where the Minister, at any time before making a final determination of dumping or subsidizing, or the Authority, at any time before a preliminary determination of dumping or subsidizing is made by the Minister, is satisfied in respect of some or all of the goods under investigation, that -
the Minister shall direct the Authority to -
(3) Where -
the Authority may initiate a further investigation.
(4) Notice shall be given of an investigation under subsection (3).
(5) The Authority may, in his discretion, suspend or terminate an investigation -
24. (1) Within three months after an investigation has been initiated pursuant to section 18, the Minister shall make a preliminary determination, on the basis of the information made available during the investigation, if he has reasonable cause to believe, that the goods which were the subject of the investigation are goods in respect of which he may make an Order imposing duty.
(2) The Minister's preliminary determination shall be given by notice.
(3) This section and section 26 shall not apply to an investigation under section 23.
25. (1) Where the Minister has made a preliminary determination under section 24, he may, if he is satisfied that such action is necessary to prevent material injury being caused during the period of investigation, by notice give a direction to the Comptroller that payment of provisional duty in respect of those goods shall be made or payment shall be secured in accordance with section 31.
(2) The rate or amount of such duty to be paid or secured shall not exceed the difference between the export price of the goods and their normal value or the amount of subsidization, as the case may be, which has been determined by the Minister under section 24.
(3) Where provisional duty collected, is, in relation to duty to be imposed following a final determination under section 26 -
(4) A direction shall cease to have effect following the final determination made by the Minister under section 26.
(5) When any direction ceases to have effect any security given pursuant to the direction shall be released, except to the extent that duty is payable pursuant to an Order under this Act.
26. (1) Within six months after the making of a preliminary determination under section 24, the Minister shall make a final determination as to whether or not, the goods which were the subject of the investigation are goods in respect of which he may make an Order imposing duty.
(2) The final determination of the Minister shall be given by notice.
27. A person aggrieved by an Order imposing duty may appeal to the Tax Appeal Board in accordance with the Tax Appeal Board Act.
28. (1) Where, in relation to the exportation of any consignment of goods to Trinidad and Tobago, an investigation is initiated pursuant to section 18, the Minister may cause the investigation to be suspended or terminated if he is given and accepts an undertaking by the government of the country of export or by the exporter of the goods that the government or the exporter, as the case may be, will so conduct future export trade to Trinidad and Tobago of like goods to the goods in the consignment as to avoid causing or threatening material injury to an industry or materially retarding the establishment of such an industry.
(2) The price increases in such an undertaking shall not exceed the difference between the export price of the goods and their normal value or the amount of the subsidy, as the case may be.
(3) The Minister may be given and accept any amendment to an undertaking because of altered circumstances.
(4) If the Minister accepts an undertaking the investigation of the extent of injury to an industry shall be completed if the Government of the country of export or the exporter, as the case may be, so desires.
(5) If an investigation referred to in subsection (4) is completed and no determination of material injury, threat thereof, or material retardation to the establishment of an industry is made, the undertaking shall lapse, except in cases where a determination of no threat of injury is attributable to a significant degree to the existence of the undertaking, in which case the Minister may require that the undertaking be maintained for such reasonable period as he may determine.
(6) The Minister may require any party from whom undertakings have been accepted to provide information relevant to the fulfilment of the undertaking.
(7) The Minister shall review the need for the continuation of an undertaking where warranted on his own initiative, or if an interested person so requests and submits positive evidence substantiating the need for review.
(8) Undertakings shall remain in force only so long and to the extent necessary to counteract the injurious effects of the dumping or subsidization.
(9) If an investigation is terminated in accordance with subsection (1), notice of the termination shall be given.
29. (1) The Minister shall review the need for the continued imposition of a duty where warranted on his own initiative, on the recommendation of the Authority or if an interested person so requests and submits prima facie evidence substantiating the need for review.
(2) A duty shall remain in force only so long as and to the extent necessary to counteract the injurious effects of the dumping or subsidization and may be reduced or withdrawn in the Minister's discretion.
30. (1) Duty and provisional duty shall only be applied to goods which are entered for home consumption after the date of an Order imposing duty or, where section 25 applies, after the date of the provisional direction, except as provided by this section.
(2) Where a final determination of material injury to an industry (but not of a threat thereof or of material retardation to the establishment of an industry) is made by the Minister, or in the case of a final determination of threat of material injury where the effect of the dumped or subsidized goods would, in the absence of provisional duty being paid or security being taken under section 31 have led to a finding of material injury, duty may be imposed retrospectively for the period for which duty was paid or security taken.
(3) Where the Minister determines -
the Minister may impose duty on goods which were entered for home consumption not more than 90 days prior to the date of the provisional direction.
(4) Where an undertaking is violated by the undertaker and the Minister imposes provisional duties, duty may be imposed on goods entered for home consumption not more than 90 days before the date of the provisional direction, except that such retrospective duty shall not apply to goods that have been entered for home consumption before the date of the violation of the undertaking.
31. (1) The Comptroller may require and take securities for payment of duty payable under this Act and pending the giving of the required security he may refuse to pass any entry or to do any other act in relation to any matter in respect of which the security is required.
(2) Any security under this Act may, as required by the Comptroller, be by bond with sureties or guarantee, or by a deposit of cash, or by all or any of those methods, to the satisfaction of the Comptroller.
(3) Any such security may be given in relation to any particular transaction, or generally with respect to any class of transactions or to all transactions, and for such period and amount as the Comptroller thinks fit, and under such conditions as to forfeiture, penalty, or otherwise as the Minister may direct.
(4) Any bond or other security entered into or given under this Act by a person under the age of 18 years (otherwise than as a surety or guarantor) shall have the same force, effect and validity as if that person had been of full age.
(5) Security under this section may be either in the prescribed form or to the like effect, or in such other form as the Comptroller in any particular case approves.
32. Notices under this Act shall -
33. Where a person by whom an offence against section 10(6) or 22 is committed is a body corporate, every director or other officer concerned in any capacity in the management of the body corporate is guilty of the like offence unless he proves that the offence was committed without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence as he ought to have exercised having regard to the nature of his functions in that capacity and to all the circumstances.
34. (1) The Minister may make Regulations prescribing for the purposes of this Act all matters -
(2) Without prejudice to the generality of subsection (1) Regulations under this section may provide for -
(3) Regulations made by the Minister under this section shall be subject to negative resolution of Parliament.
35. The Customs Duties (Dumping and Subsidies) Act is repealed.
Passed in the House of Representatives this 7th day of August, 1992.
Passed in the Senate this 12th day of August, 1992.