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9.9.2011 Official
Journal
of
the
European
Union L
232/19
COUNCIL IMPLEMENTING REGULATION (EU) No 906/2011
of 2 September 2011
amending Regulation (EC) No 193/2007 imposing a definitive countervailing duty on imports of
polyethylene terephthalate originating in India, and amending Regulation (EC) No 192/2007
imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate
originating in, inter alia, India
THE COUNCIL OF THE EUROPEAN UNION,
EUR 87,5 and EUR 200,9 per tonne for individually
named Indian producers with a residual duty rate of
EUR 153,6 per tonne imposed on imports from other
Having regard to the Treaty on the Functioning of the European
producers (the current anti-dumping measures).
Union,
(3) By
Decision
2000/745/EC
( 7 ) the Commission accepted
Having regard to Council Regulation (EC) No 597/2009 of
undertakings offered by several exporting producers
11 June 2009 on protection against subsidised imports from
setting a minimum import price (the undertaking).
countries not members of the European Community ( 1 ) (the
basic Regulation), and in particular Articles 19 and 24 thereof,
1.3. Initiation of a partial interim review
Having regard to the proposal submitted by the European
(4) A
request
for
a
partial
interim
review
pursuant
to
Commission after consulting the Advisory Committee,
Article 19 of the basic Regulation was lodged by
Reliance Industries Limited, an Indian exporting
producer of PET (the applicant). The request was
Whereas:
limited in scope to subsidisation and to the applicant.
The applicant at the same time also requested the
1.
review of the current anti-dumping measures. The
PROCEDURE
residual anti-dumping and countervailing duties are
1.1. Previous investigation and existing counter
applicable to imports of products produced by the
vailing measures
applicant and sales of the applicant to the Union are
governed by the undertaking.
(1) By
Regulation
(EC)
No
2603/2000
( 2 ), the Council
imposed a definitive countervailing duty on imports of
(5) The
applicant
provided
prima
facie
evidence
that
the
polyethylene terephthalate (PET) originating, inter alia, in
continued application of the measure at its current
India (the original anti-subsidy investigation). Following
level was no longer necessary to offset the counter
an expiry review, the Council, by Regulation (EC) No
vailable subsidisation. In particular, the applicant
193/2007 ( 3 ), imposed a definitive countervailing duty
provided prima facie evidence showing that its subsidy
for a further period of 5 years. The countervailing
amount has decreased well below the duty rate currently
measures were amended by Council Regulation (EC) No
applicable to it. This reduction in the overall subsidy level
1286/2008 ( 4 ) following a partial interim review (the last
would mainly be due to a significant drop in the benefits
review investigation). The countervailing measures consist
availed of under the Duty Entitlement Passbook Scheme
of a specific duty. The rate of the duty ranges between
(DEPBS).
EUR 0 and EUR 106,5 per tonne for individually named
Indian producers with a residual duty rate of EUR 69,4
per tonne imposed on imports from other producers.
(6) Having
determined,
after
consulting
the
Advisory
Committee, that the request contained sufficient prima
facie evidence, the Commission announced on 10 June
1.2. Existing anti-dumping measures
2010 the initiation of a partial interim review (the
present review) pursuant to Article 19 of the basic Regu
(2) By
Regulation
(EC)
No
2604/2000
( 5 ), the Council
lation by a notice of initiation published in the Official
imposed a definitive anti-dumping duty on imports of
Journal of the European Union ( 8 ). The review was limited
PET originating, inter alia, in India (the original anti-
in scope to the examination of subsidisation in respect of
dumping investigation). Following an expiry review, the
the applicant.
Council, by Regulation (EC) No 192/2007 ( 6 ), imposed a
definitive anti-dumping duty for a further period of 5
years. The anti-dumping measures were amended by
1.4. Parties concerned by the investigation
Council Regulation (EC) No 1286/2008 following the
(7) The
Commission
officially
informed
the
applicant,
the
last review investigation. The measures were set at the
representatives of the exporting country and the
level of the injury elimination and consisted of specific
association of Union producers about the initiation of
anti-dumping duties. The rate of the duty ranged between
the review. Interested parties were given the opportunity
to make their views known in writing and to request a
( 1 ) OJ L 188, 18.7.2009, p. 93.
hearing within the time limit set in the notice of
( 2 ) OJ L 301, 30.11.2000, p. 1.
initiation.
( 3 ) OJ L 59, 27.2.2007, p. 34.
( 4 ) OJ L 340, 19.12.2008, p. 1.
( 5 ) OJ L 301, 30.11.2000, p. 21.
( 7 ) OJ L 301, 30.11.2000, p. 88.
( 6 ) OJ L 59, 27.2.2007, p. 1.
( 8 ) OJ C 151, 10.6.2010, p. 17.

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L 232/20
EN
Official Journal of the European Union
9.9.2011
(8) All
interested
parties
who
so
requested
and
showed
that
the meaning of Article 1(4) of the basic Regulation. Since
there were particular reasons why they should be heard,
the present review was limited to the determination of
were granted a hearing.
subsidisation as far as the applicant is concerned, no
conclusions were reached with regard to the product
produced and sold by the Union industry on the
(9) In
order
to
obtain
the
information
deemed
necessary
for
Union market.
its investigation, the Commission sent a questionnaire to
the applicant and the government of India (GOI) and
received replies within the deadline set for that purpose.
3.

RESULTS OF THE INVESTIGATION
3.1. Subsidisation
(10) The
Commission
sought
and
verified
all
information
(16) On the basis of the information submitted by the GOI
deemed necessary for the determination of subsidisation.
and the applicant and the replies to the Commission’s
The Commission carried out verification visits at the
questionnaire, the following schemes, which allegedly
premises of the applicant in Mumbai, India and at the
involve the granting of subsidies, were investigated:
premises of the GOI in New Delhi (Directorate General
of Foreign Trade and Ministry of Commerce) and
Mumbai (Regional Office of the Directorate General of
Nationwide schemes:
Foreign Trade).
(a) Advance Authorisation Scheme (AAS);
1.5. Review investigation period
(b) Duty Entitlement Passbook Scheme (DEPBS);
(11) The
investigation
of
subsidisation
covered
the
period
from 1 April 2009 to 31 March 2010 (‘the review inves
tigation period’ or ‘RIP’).
(c) Export Promotion Capital Goods Scheme (EPCGS);
1.6. Parallel anti-dumping investigation
(d) Focus Market Scheme (FMS);

(12) On
10
June
2010
( 1 ) the Commission announced the
initiation of a partial interim review of the current
(e) Focus Product Scheme (FPS);
anti-dumping measures pursuant to Article 11(3) of
Council Regulation (EC) No 1225/2009 ( 2 ) (the basic
(f) Income Tax Exemption Scheme (ITES).
anti-dumping Regulation), limited in scope to the exam
ination of dumping in respect of the applicant.
Regional schemes:
(13) In
the
parallel
anti-dumping
investigation
it
was
found
that the circumstances with regard to dumping did not
(g) Capital Investment Incentive Scheme of the
change significantly and lastingly, therefore the investi
Government of Gujarat.
gation was terminated without changing the current anti-
dumping measures applicable to the applicant.
(17) The
schemes
(a)
to
(e)
specified
above
are
based
on
the
Foreign Trade (Development and Regulation) Act 1992
(No 22 of 1992) which entered into force on 7 August
2. PRODUCT CONCERNED AND LIKE PRODUCT
1992 (Foreign Trade Act). The Foreign Trade Act auth
orises the GOI to issue notifications regarding the export
2.1. Product concerned
and import policy. These are summarised in Foreign
Trade Policy (FTP) documents, which are issued by the
(14) The
product
under
review
is
PET
having
a
viscosity
of
78 ml/g or higher, according to the ISO Standard 1628-
Ministry of Commerce every 5 years and updated
5, currently falling within CN code 3907 60 20 and orig
regularly. Two FTP documents are relevant to the RIP
inating in India (the product concerned).
of this case, namely FTP 04-09 and FTP 09-14. The
latter entered into force in August 2009. In addition,
the GOI also sets out the procedures governing FTP
04-09 and FTP 09-14 in a ‘Handbook of Procedures,
2.2. Like product
Volume I’ (‘HOP I 04-09’ and ‘HOP I 09-14’ respectively).
The Handbook of Procedures is also updated on a regular
(15) The
investigation
revealed
that
the
product
concerned
produced in India and sold to the Union is identical in
basis.
terms of physical and chemical characteristics and uses to
the product produced and sold on the domestic market
(18) Scheme (f) is based on the Income Tax Act of 1961,
in India. It is therefore concluded that products sold on
which is amended by the yearly Finance Act.
the domestic and export markets are like products within
( 1 ) OJ C 151, 10.6.2010, p. 15.
(19) Scheme
(g)
is
administered
by
the
Government
of
Gujarat
( 2 ) OJ L 343, 22.12.2009, p. 51.
and is based on Gujarat’s industrial incentive policy.

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EN
9.9.2011 Official
Journal
of
the
European
Union L
232/21
3.1.1. Advance Authorisation Scheme (AAS)
intermediate supplies. The ultimate exporter finalises
the production and is obliged to export the finished
(a) Legal basis
product;
(20) The
detailed
description
of
this
scheme
is
contained
in
paragraphs 4.1.1 to 4.1.14 of FTP 04-09 and FTP 09-14
and paragraphs 4.1 to 4,30 A of HOP I 04-09 and HOP I
09-14.
(iv) deemed exports: this sub-scheme allows a main
contractor to import inputs free of duty which are
required in manufacturing goods to be sold as
‘deemed exports’ to the categories of customers
(b) Eligibility
mentioned in paragraph 8.2(b) to (f), (g), (i) and (j)
(21) The
AAS
consists
of
six
sub-schemes,
as
described
in
of FTP 04-09 and FTP 09-14. According to the GOI,
more detail in recital 22. Those sub-schemes differ,
deemed exports refer to those transactions in which
inter alia, in the scope of eligibility. Manufacturer-
the goods supplied do not leave the country. A
exporters and merchant-exporters ‘tied to’ supporting
number of categories of supply is regarded as
manufacturers are eligible for the AAS for physical
deemed exports provided the goods are manu
exports and for the AAS for annual requirement. Manu
factured in India, e.g. supply of goods to an EOU
facturer-exporters supplying the ultimate exporter are
or to a company situated in a special economic zone;
eligible for AAS for intermediate supplies. Main
contractors which supply to the ‘deemed export’
categories mentioned in paragraph 8.2 of FTP 04-09
and FTP 09-14, such as suppliers of an export oriented
unit (EOU), are eligible for AAS for deemed exports.
(v) ARO: the AAS holder intending to source the inputs
Eventually, intermediate suppliers to manufacturer-
from indigenous sources, in lieu of direct import, has
exporters are eligible for ‘deemed export’ benefits under
the option to source them against AROs. In such
the sub-schemes Advance Release Order (ARO) and back-
cases, the Advance Authorisations are validated as
to-back inland letter of credit.
AROs and are endorsed to the indigenous supplier
upon delivery of the items specified therein. The
endorsement of the ARO entitles the indigenous
supplier to the benefits of deemed exports as set
(c) Practical implementation
out in paragraph 8.3 of FTP 04-09 and FTP 09-14
(i.e. AAS for intermediate supplies/deemed export,
(22) Advance
Authorisations
can
be
issued
for:
deemed export drawback and refund of terminal
excise duty). The ARO mechanism refunds taxes
and duties to the supplier instead of refunding the
same to the ultimate exporter in the form of
(i) physical exports: this is the main sub-scheme. It
drawback/refund of duties. The refund of taxes/duties
allows for the duty-free import of input materials
is available both for indigenous inputs as well as
for the production of a specific resultant export
imported inputs;
product. ‘Physical’ in this context means that the
export product has to leave Indian territory. An
import allowance and export obligation including
the type of export product are specified in the auth
orisation;
(vi) back-to-back inland letter of credit: this sub-scheme
again covers indigenous supplies to an Advance
Authorisation holder. The holder of an Advance
Authorisation can approach a bank for opening an
(ii) annual requirement: such an authorisation is not
inland letter of credit in favour of an indigenous
linked to a specific export product, but to a wider
supplier. The authorisation will be invalidated by
product group (e.g. chemical and allied products).
the bank for direct import only in respect of the
The authorisation holder can — up to a certain
value and volume of items being sourced
value threshold set by its past export performance
indigenously instead of importation. The indigenous
— import free of duty any input to be used in
supplier will be entitled to the forecast export
manufacturing any of the items falling under such
benefits as set out in paragraph 8.3 of FTP 04-09
a product group. It can choose to export any
and FTP 09-14 (i.e. AAS for intermediate supplies/
resultant product falling under the product group
deemed export, deemed export drawback and refund
using such duty-exempt material;
of terminal excise duty).
(iii) intermediate supplies: this sub-scheme covers cases
where two manufacturers intend to produce a
(23) It was established that during the RIP the applicant
single export product and divide the production
obtained concessions only under one sub-scheme linked
process. The manufacturer-exporter who produces
to the product concerned, namely the AAS for deemed
the intermediate product can import duty-free input
exports. It is therefore not necessary to establish the
materials and can obtain for this purpose an AAS for
countervailability of the remaining unused sub-schemes.

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L 232/22
EN
Official Journal of the European Union
9.9.2011
(24) With
regard
to
the
use
of
AAS
for
deemed
exports
the basic Regulation. Without an export commitment a
during the RIP, both the import allowance and the
company cannot obtain benefits under this scheme.
export obligation are fixed in volume and value by the
GOI and are documented on the authorisation. In
addition, at the time of import and of export, the corre
sponding transactions are to be documented by
(30) The
present
review
has,
therefore,
confirmed
that
the
government officials on the authorisation. The volume
main sub-scheme used in the present case cannot be
of imports allowed under this scheme is determined by
considered as permissible duty drawback system or
the GOI on the basis of standard input-output norms
substitution drawback system within the meaning of
(SIONs). SIONs exist for most products including the
Article 3(1)(a)(ii) of the basic Regulation. It does not
product concerned and are issued by the GOI.
conform to the rules laid down in Annexes I (item (i)),
II (definition and rules for drawback) and III (definition
and rules for substitution drawback) to the basic Regu
lation. The GOI did not effectively apply its verification
system or procedure to confirm whether and in what
(25) For
verification
purposes
by
the
Indian
authorities,
an
amounts inputs were consumed in the production of
Advance Authorisation holder is legally obliged to
the exported product (Annex II(II)(4) to the basic Regu
maintain an actual consumption register of duty-free
lation and, in the case of substitution drawback schemes,
imported/domestically procured goods against each auth
Annex III(II)(2) to the basic Regulation). The SIONs
orisation, as per prescribed format (paragraphs 4.26,
themselves cannot be considered a verification system
4.30 and Appendix 23 HOP I 04-09 and HOP I 09-
of actual consumption, since they have been found to
14). This register has to be verified by an external
be overgenerous and it was established that benefits
chartered accountant/cost and works accountant who
received in excess are not reclaimed by the GOI.
issues a certificate stating that the prescribed registers
Indeed, an effective control done by the GOI based on
and relevant records have been examined and the
a correctly kept actual consumption register did not take
information furnished under Appendix 23 is true and
place. In addition, the GOI did not carry out a further
correct in all respects.
examination based on actual inputs involved, although
this would normally need to be carried out in the
absence of an effectively applied verification system
(Annex II(II)(5) and Annex III(II)(3) to the basic Regu
lation). Finally, it has been confirmed that, although
(26) The export obligation must be fulfilled within a
mandatory by law, the involvement of chartered
prescribed time-frame (24 months with two possible
accountants in the verification process is, in practice,
extensions of 6 months each) after issuance of the auth
not guaranteed.
orisation.
(31) AAS
for
deemed
exports
is
therefore
countervailable.
(27) It
was
established
that
there
were
no
links
between
the
imported inputs and the exported finished products. The
eligible input materials can be also raw materials used in
(e) Calculation of the subsidy amount
the production of upstream products. Furthermore, it was
found that, although mandatory, the applicant did not
(32) In
the
absence
of
permitted
duty
drawback
system
or
keep for all licences the consumption register referred to
substitution drawback system, the countervailable
in recital 25, verifiable by an external accountant. In spite
benefit is the remission of total import duties normally
of the breach of this requirement, the applicant did avail
due upon importation of inputs. In this respect, it is
the benefits under AAS which were moreover, in view of
noted that the basic Regulation does not only provide
the found overestimation of the SIONs, in excess of the
for the countervailing of an ‘excess’ remission of duties.
legal provisions therefore.
According to Article 3(1)(a)(ii) of the basic Regulation
and Annex I(i) thereto only an excess remission of
duties can be countervailed, provided the conditions of
Annexes II and III to the basic Regulation are met.
However, these conditions were not fulfilled in the
(d) Conclusion
present case. Thus, if an absence of an adequate moni
toring process is established, the above exception for
(28) The
exemption
from
import
duties
is
a
subsidy
within
drawback schemes is not applicable and the normal
the meaning of Articles 3(1)(a)(ii) and 3(2) of the basic
rule for countervailing the amount of (revenue forgone)
Regulation, i.e. a financial contribution of the GOI which
unpaid duties, rather than any purported excess
conferred a benefit upon the investigated exporter.
remission, applies. As set out in Annexes II(II) and
III(II) to the basic Regulation the burden is not upon
the investigating authority to calculate such excess
remission. To the contrary, according to
Article 3(1)(a)(ii) of the basic Regulation the investigating
(29) In addition, AAS for deemed exports is clearly contingent
authority only has to establish sufficient evidence to
in law upon export performance, and therefore deemed
refute the appropriateness of an alleged verification
to be specific and countervailable under Article 4(4)(a) of
system.

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EN
9.9.2011 Official
Journal
of
the
European
Union L
232/23
(33) The
subsidy
amount
for
the
applicant
was
calculated
on
(39) It
was
found
that
in
accordance
with
Indian
accounting
the basis of import duties forgone (basic customs duty
standards, DEPBS credits can be booked on an accrual
and special additional customs duty) on the material
basis as income in the commercial accounts, upon
imported under the deemed exports sub-scheme during
fulfilment of the export obligation. Such credits can be
the RIP (nominator). In accordance with Article 7(1)(a) of
used for payment of customs duties on subsequent
the basic Regulation, fees necessarily incurred to obtain
imports of any goods unrestrictedly importable, except
the subsidy were deducted from the subsidy amount
capital goods. Goods imported against such credits can
where justified claims were made. In accordance with
be sold on the domestic market (subject to sales tax) or
Article 7(2) of the basic Regulation, this subsidy
used otherwise. DEPBS credits are freely transferable and
amount has been allocated over the total export
valid for a period of 24 months from the date of issue.
turnover during the RIP as appropriate denominator,
because the subsidy is contingent upon export
performance and was not granted by reference to the
(40) Applications
for
DEPBS
credits
are
electronically
filed
and
quantities manufactured, produced, exported or trans
can cover an unlimited amount of export transactions.
ported.
The deadline to submit applications is 3 months after
exportation, but as clearly provided in paragraph 9.3 of
the HOP I 04-09 and HOP I 09-14, applications received
(34) The
subsidy
rate
established
in
respect
of
this
scheme
after the expiry of submission deadlines can always be
during the RIP for the applicant amounts to 0,52 %.
considered with the imposition of a minor penalty fee
(i.e. 10 % of the entitlement).
3.1.2. Duty Entitlement Passbook Scheme (DEPBS)
(a) Legal Basis
(41) It
was
found
that
the
applicant
used
this
scheme
during
the RIP.
(35) The detailed description of the DEPBS is contained in
paragraph 4.3 of FTP 04-09 and FTP 09-14 as well as
in Chapter 4 of HOP I 04-09 and HOP I 09-14.
(d) Conclusion
(42) The
DEPBS
provides
subsidies
within
the
meaning
of
(b) Eligibility
Articles 3(1)(a)(ii) and 3(2) of the basic Regulation. A
DEPBS credit is a financial contribution by the GOI,
(36) Any manufacturer-exporter or merchant-exporter is
since the credit will eventually be used to offset import
eligible for this scheme.
duties, thus decreasing the GOI’s duty revenue which
would be otherwise due. In addition, the DEPBS credit
confers a benefit upon the exporter, because it improves
(c) Practical implementation
its liquidity.
(37) An
eligible
exporter
can
apply
for
DEPBS
credits
which
are calculated as a percentage of the value of products
exported under this scheme. Such DEPBS rates have been
(43) Furthermore, the DEPBS is contingent in law upon
established by the Indian authorities for most products,
export performance, and is therefore deemed to be
including the product concerned. They are determined on
specific and countervailable under Article 4(4)(a) of the
the basis of SIONs (see recital 24) and the customs duty
basic Regulation.
incidence on the presumed import content, regardless of
whether import duties have actually been paid or not.
The DEPBS rate for the product concerned during the RIP
(44) This
scheme
cannot
be
considered
as
permissible
duty
of the current investigation was 8 % with a value cap of
drawback system or substitution drawback system
58 Rs/kg.
within the meaning of Article 3(1)(a)(ii) of the basic
Regulation as claimed by the applicant. It does not
conform to the strict rules laid down in Annex I (item
(38) To
be
eligible
for
benefits
under
this
scheme,
a
company
(i)), Annex II (definition and rules for drawback) and
must export. At the time of the export transaction, a
Annex III (definition and rules for substitution
declaration must be made by the exporter to the
drawback) to the basic Regulation. An exporter is
authorities in India indicating that the export is taking
under no obligation to actually consume the goods
place under the DEPBS. In order for the goods to be
imported free of duty in the production process and
exported, the Indian customs authorities issue, during
the amount of credit is not calculated in relation to
the dispatch procedure, an export shipping bill. This
actual inputs used. Moreover, there is no system or
document shows, inter alia, the amount of DEPBS
procedure in place to confirm which inputs are
credit which is to be granted for that export transaction.
consumed in the production process of the exported
At this point in time, the exporter knows the benefit it
product or whether an excess payment of import
will receive. Once the customs authorities issue an export
duties occurred within the meaning of item (i) of
shipping bill, the GOI has no discretion over the granting
Annex I and Annexes II and III to the basic Regulation.
of a DEPBS credit. The relevant DEPBS rate to calculate
Lastly, an exporter is eligible for the DEPBS benefits
the benefit is that which applied at the time the export
regardless of whether it imports any inputs at all. In
declaration was made. Therefore, there is no possibility
order to obtain the benefit, it is sufficient for an
for a retroactive amendment to the level of the benefit.
exporter to simply export goods without demonstrating

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L 232/24
EN
Official Journal of the European Union
9.9.2011
that any input material was imported. Thus, even
capital goods up to 10 years old) at a reduced rate of
exporters which procure all of their inputs locally and
duty. To this end, the GOI issues, upon application and
do not import any goods which can be used as inputs
payment of a fee, an EPCGS licence. The EPCGS provides
are still entitled to benefit from the DEPBS.
for a reduced import duty rate of 3 % applicable to all
capital goods imported under this scheme. In order to
meet the export obligation, the imported capital goods
(e) Calculation of the subsidy amount
must be used to produce a given amount of export
goods during a certain period. Under FTP 09-14 the
(45) In
accordance
with
Articles
3(2)
and
5
of
the
basic
Regu
lation, the amount of countervailable subsidies was
capital goods can be imported with 0 % duty rate
calculated in terms of the benefit conferred on the
under the EPCGS but in such case the time period for
recipient, which is found to exist during the review inves
fulfilment of the export obligation is shorter.
tigation period. In this regard, it was considered that the
benefit is conferred on the recipient at the time when an
export transaction is made under this scheme. At this
(53) The
EPCGS
licence
holder
can
also
source
the
capital
moment, the GOI is liable to forego the customs
goods indigenously. In such case, the indigenous manu
duties, which constitutes a financial contribution within
facturer of capital goods may avail himself of the benefit
the meaning of Article 3(1)(a)(ii) of the basic Regulation.
for duty-free import of components required to manu
facture such capital goods. Alternatively, the indigenous
manufacturer can claim the benefit of deemed export in
(46) It
was
found
that
the
benefits
derived
from
DEPBS
were
respect of supply of capital goods to an EPCGS licence
concentrated on the product concerned. Therefore it is
holder.
considered appropriate to assess the benefit under the
DEPBS as being the sum of the credits earned on all
export transactions of the product concerned made
under this scheme during the RIP.
(d) Conclusion
(54) The
EPCGS
provides
subsidies
within
the
meaning
of
(47) Where justified claims were made, fees necessarily
Articles 3(1)(a)(ii) and 3(2) of the basic Regulation. The
incurred to obtain the subsidy were deducted from the
duty reduction constitutes a financial contribution by the
credits so established to arrive at the subsidy amounts as
GOI, since this concession decreases the GOI’s duty
numerator, pursuant to Article 7(1)(a) of the basic Regu
revenue which would be otherwise due. In addition, the
lation.
duty reduction confers a benefit upon the exporter,
because the duties saved upon importation improve the
company’s liquidity.
(48) In
accordance
with
Article
7(2)
of
the
basic
Regulation
these subsidy amounts have been allocated over the total
export turnover of the product concerned during the
(55) Furthermore,
EPCGS
is
contingent
in
law
upon
export
review investigation period as appropriate denominator,
performance, since such licences cannot be obtained
because the subsidy is contingent upon export
without a commitment to export. Therefore it is
performance and it was not granted by reference to the
deemed to be specific and countervailable under
quantities manufactured, produced, exported or trans
Article 4(4)(a) of the basic Regulation.
ported.
(49) Based
on the
above,
the
subsidy
rate
established
in
(56) EPCGS cannot be considered a permissible duty
respect of this scheme for the applicant during the RIP
drawback system or substitution drawback system
amounts to 7,52 %.
within the meaning of Article 3(1)(a)(ii) of the basic
Regulation. Capital goods are not covered by the scope
of such permissible systems, as set out in item (i) of
3.1.3. Export Promotion Capital Goods Scheme (EPCGS)
Annex I to the basic Regulation, because they are not
(a) Legal basis
consumed in the production of the exported products.
(50) The detailed description of EPCGS is contained in
Chapter 5 of FTP 04-09 and FTP 09-14 as well as in
(e) Calculation of the subsidy amount
Chapter 5 of HOP I 04-09 and HOP I 09-14.
(57) The
subsidy
amount
was
calculated,
in
accordance
with
Article 7(3) of the basic Regulation, on the basis of the
(b) Eligibility
unpaid customs duty on imported capital goods used in
the petrochemical segment and other sectors for which
(51) Manufacturer-exporters, merchant-exporters ‘tied to’
supporting manufacturers and service providers are
such benefits were received by the applicant, spread
eligible for this scheme.
across a period which reflects the normal depreciation
period of such capital goods in the industry concerned.
Interests were added to this amount in order to reflect
(c) Practical implementation
the full value of the benefit over time. The commercial
credit interest rate applied by the applicant for its sales
(52) Under
the
condition
of
an
export
obligation,
a
company
during the review investigation period was considered
is allowed to import capital goods (new and second-hand
appropriate for this purpose.

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EN
9.9.2011 Official
Journal
of
the
European
Union L
232/25
(58) In accordance with Article 7(2) and (3) of the basic
(d) Conclusion
Regulation this subsidy amount has been allocated over
the export turnover of the petrochemical sector and
(65) The FMS
provides subsidies within the meaning of
other sectors for which such benefits were received
Articles 3(1)(a)(ii) and 3(2) of the basic Regulation. A
during the RIP as appropriate denominator, because the
FMS duty credit is a financial contribution by the GOI,
subsidy is contingent upon export performance.
since the credit will eventually be used to offset import
duties, thus decreasing the GOI’s duty revenue which
would be otherwise due. In addition, the FMS duty
credit confers a benefit upon the exporter, because it
improves its liquidity.
(59) The
subsidy
rate
established
in
respect
of
this
scheme
during the RIP amounts to 1,49 %.
(66) Furthermore,
FMS
is
contingent
in
law
upon
export
performance, and therefore deemed to be specific and
3.1.4. Focus Market Scheme (FMS)
countervailable under Article 4(4)(a) of the basic Regu
lation.
(a) Legal basis
(60) The detailed description of FMS is contained in
paragraphs 3.9.1 to 3.9.2.2 of FTP 04-09 and paragraphs
(67) This
scheme
cannot
be
considered
a
permissible
duty
3.14.1 to 3.14.3 of FTP 09-14 and in paragraphs 3.20 to
drawback system or substitution drawback system
3.20.3 of HOP I 04-09 and paragraphs 3.8 to 3.8.2 of
within the meaning of Article 3(1)(a)(ii) of the basic
HOP I 09-14.
Regulation. It does not conform to the strict rules laid
down in Annex I (point (i)), Annex II (definition and
rules for drawback) and Annex III (definition and rules
for substitution drawback) to the basic Regulation. An
(b) Eligibility
exporter is under no obligation to actually consume the
goods imported free of duty in the production process
(61) Any manufacturer-exporter or merchant-exporter is
and the amount of credit is not calculated in relation to
eligible for this scheme.
actual inputs used. There is no system or procedure in
place to confirm which inputs are consumed in the
production process of the exported product or whether
an excess payment of import duties occurred within the
(c) Practical implementation
meaning of point (i) of Annex I and Annexes II and III to
the basic Regulation. An exporter is eligible for FMS
(62) Under this scheme exports of all products to countries
benefits regardless of whether it imports any inputs at
notified under Appendix 37(C) of HOP I 04-09 and HOP
all. In order to obtain the benefit, it is sufficient for an
I 09-14 are entitled to duty credit equivalent to 2,5 % to
exporter to simply export goods without demonstrating
3 % of the FOB value of products exported under this
that any input material was imported. Thus, even
scheme. Certain type of export activities are excluded
exporters which procure all of their inputs locally and
from this scheme, e.g. exports of imported goods or
do not import any goods which can be used as inputs
transhipped goods, deemed exports, service exports and
are still entitled to benefit from FMS. Moreover, an
export turnover of units operating under special
exporter can use FMS duty credits in order to import
economic zones/export operating units. Also excluded
capital goods although capital goods are not covered
from this scheme are certain types of products, e.g.
by the scope of permissible duty drawback systems, as
diamonds, precious metals, ores, cereals, sugar and
set out in point (i) of Annex I to the basic Regulation,
petroleum products.
because they are not consumed in the production of the
exported products.
(63) The duty credits under FMS are freely transferable and
valid for a period of 24 months from the date of issue of
(e) Calculation of the subsidy amount
the relevant credit entitlement certificate. They can be
(68) The
amount
of
countervailable
subsidies
was
calculated
used for payment of custom duties on subsequent
in terms of the benefit conferred on the recipient for
imports of any inputs or goods including capital goods.
export of the product concerned, which is found to
exist during the RIP as booked by the applicant using
the scheme on an accrual basis as income at the stage of
export transaction. In accordance with Article 7(2) and
(64) The credit entitlement certificate is issued from the port
(3) of the basic Regulation, this subsidy amount
from which the exports have been made and after real
(nominator) has been allocated over the export
isation of exports or shipment of goods. As long as an
turnover of the product concerned during the RIP as
applicant provides to the authorities copies of all relevant
appropriate denominator, because the subsidy is
export documentation (e.g. export order, invoices,
contingent upon export performance and it was not
shipping bills, bank realisation certificates), the GOI has
granted by reference to the quantities manufactured,
no discretion over the granting of the duty credits.
produced, exported or transported.

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L 232/26
EN
Official Journal of the European Union
9.9.2011
(69) Where justified claims were made, fees necessarily
establish the amount of the incentives are the size of the
incurred to obtain the subsidy were deducted from the
investment and the area in which the enterprise is or will
credits so established to arrive at the subsidy amounts as
be located.
numerator, pursuant to Article 7(1)(a) of the basic Regu
lation.
(77) Incentives
can
be
granted
at
any
point
in
time
since
there
are no time limits either in the filing of an application for
(70) The
subsidy
rate
established
with
regard
to
this
scheme
the incentives or in the fulfilment of the quantitative
during the RIP for the applicant amounts to 0,87 %.
criteria.
(d) Conclusion
3.1.5. Focus Product Scheme (FPS)
(78) This
scheme
provides
subsidies
within
the
meaning
of
(71) In the course of the investigation it was found that the
Articles 3(1)(a)(ii) and 3(2) of the basic Regulation. It
applicant did not obtain any benefits under FPS during
constitutes a financial contribution by the GOG, since
the RIP. It was therefore not necessary to further analyse
the incentives granted, in the present case sales and
this scheme in this investigation.
purchase tax exemptions, decrease tax revenue which
would be otherwise due. In addition, these incentives
confer a benefit upon a company, because they
3.1.6. Income Tax Exemption Scheme (ITES)
improve its financial situation since taxes otherwise due
are not paid.
(72) In the course of the investigation it was found that the
applicant did not obtain any benefits under ITES during
the RIP. It was therefore not necessary to further analyse
(79) Furthermore,
this
scheme
is
regionally
specific
in
the
this scheme in this investigation.
meaning of Articles 4(2)(a) and 4(3) of the basic Regu
lation since it is only available to certain companies
having invested within certain designated geographical
3.1.7. Capital Investment Incentive Scheme (CIIS) of the
areas within the jurisdiction of the State concerned. It
Government of Gujarat
is not available to companies located outside these
areas and, in addition, the level of benefit is differentiated
(73) The
State
of
Gujarat
grants
to
eligible
industrial
enter
according to the area concerned.
prises incentives in the form of exemption and/or
deferment of sales and purchase tax in order to
encourage the industrial development of economically
(80) The CIIS of the GOG is therefore countervailable.
backward areas within this State.
(e) Calculation of the subsidy amount
(a) Legal basis
(81) The
applicant
claimed
that
it
is
no
longer
eligible
for
benefits under the CIIS for one of its plants. The inves
(74) The detailed description of this scheme as applied by the
Government of Gujarat (GOG) is set out in GOG
tigation confirmed this claim. In case of another plant,
Resolution No INC-1095/2000(3)/I of 11 September
the eligibility of the company expired during the current
1995, the Government Notification, Finance Department
investigation. The subsidies received for the activities of
No (GHN-43) VAT-2006/S.5(2)(2)-TH dated 1 April
these plants therefore were not taken into account in the
2006 and Rule 18A of the Gujarat Value Added Tax
calculation of the subsidy amount.
Rules (2006).
(82) The
subsidy
amount
was
calculated
on
the
basis
of
the
amount of the sales and purchase tax normally due
(b) Eligibility
during the review investigation period but which
remained unpaid under this scheme. In accordance with
(75) Companies
setting
up
a
new
industrial
establishment
or
Article 7(2) of the basic Regulation, the amount of
making a large-scale expansion of an existing industrial
subsidy (numerator) have then been allocated over total
establishment in backward areas are eligible to avail of
sales during the review investigation period as appro
benefits under this scheme. Nevertheless, exhaustive lists
priate denominator, because the subsidy is not export
of ineligible industries exist that prevent companies in
contingent and it was not granted by reference to the
certain fields of operations from benefiting from the
quantities manufactured, produced, exported or trans
incentives.
ported. The subsidy rate obtained amounted to 0,31 %.
(c) Practical implementation
3.1.8. Amount of countervailable subsidies
(76) Under
this
scheme,
companies
must
invest
in
backward
(83) The
amount
of
total
countervailable
subsidies
determined
areas. These areas, which represent certain territorial units
in accordance with the provisions of the basic Regu
in Gujarat are classified according to their economic
lation, expressed ad valorem, for the applicant is
development into different categories while at the same
10,73 %. This amount of subsidisation exceeds the de
time there are areas excluded or ‘banned’ from the appli
minimis threshold mentioned under Article 14(5) of the
cation of the incentive schemes. The main criteria to
basic Regulation.

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EN
9.9.2011 Official
Journal
of
the
European
Union L
232/27
(84) It
is
therefore
considered
that,
pursuant
to
Article
18
of
4.2. Anti-dumping measures
the basic Regulation, subsidisation continued during the
RIP.
(91) The
amendment
of
the
countervailing
duty
rate
will
have
an impact on the definitive anti-dumping duty imposed
on imports of PET produced by the applicant, by Regu
lation (EC) No 192/2007.
3.2. Lasting nature of changed circumstances with
regard to subsidisation
(92) In
all
previous
investigations
the
anti-dumping
duty
was
(85) In
accordance
with
Article
19(2)
of
the
basic
Regulation,
adjusted in order to avoid any double-counting of the
it was examined whether circumstances with regard to
effects of benefits from export subsidies. In this regard,
subsidisation changed significantly during the RIP.
Article 14(1) of the basic anti-dumping Regulation and
Article 24(1) of the basic Regulation provide that no
product shall be subject to both anti-dumping and
(86) It was established that, during the RIP, the applicant
countervailing measures for the purpose of dealing with
continued to benefit from countervailable subsidisation
one and the same situation arising from dumping or
by the GOI. Further, the subsidy rate found during the
export subsidisation. It was found in the previous inves
present review is lower than that established during the
tigations as well as in the present review that certain of
last review investigation. No evidence is available that the
the subsidy schemes investigated, which were found to
schemes will be discontinued or new schemes will be
be countervailable, constituted export subsidies within
introduced in the near future.
the meaning of Article 4(4)(a) of the basic Regulation.
With respect to other subsidy schemes, and in particular
the CIIS of the GOG, there was no evidence and no
argument was made showing whether and to what
(87) Since it has been demonstrated that the applicant is in
degree the same subsidies are being offset twice when
receipt of less subsidisation than before and that it is
anti-dumping and countervailing duties are simul
likely to continue to receive subsidies of an amount
taneously imposed on the same imported product.
less than determined in the last review investigation, it
More specifically, there was no evidence that the CIIS
is concluded that the continuation of the existing
lowered the export price of a product in a different
measure is higher than the countervailable subsidy
manner than the price of products sold domestically.
causing injury and that the level of the measures
Thus, the CIIS affects the prices at which the producer
should therefore be amended to reflect the new findings.
sells its goods in the domestic market and in export
markets in the same way and to the same extent.
4. COUNTERVAILING MEASURES AND ANTI-DUMPING
(93) As
such,
these
subsidies
affected
the
export
price
of
the
MEASURES
applicant, thus leading to an increased margin of
dumping. In other words, the definitive dumping
4.1. Countervailing measures
margins established in the original anti-dumping investi
(88) In line with Article 19 of the basic Regulation and the
gation were partly due to the existence of export
grounds of the present review stated in the notice of
subsidies.
initiation, it is established that the margin of subsi
disation with regard to the applicant has decreased
from 13,8 % to 10,7 % and, therefore, the rate of
(94) Consequently,
the
definitive
anti-dumping
duty
rates
for
countervailing duty, imposed to this exporting producer
the applicant must now be adjusted to take account of
by Regulation (EC) No 1286/2008 has to be amended
the revised level of benefit received from export subsidies
accordingly.
in the RIP in the present review to reflect the actual
dumping margin remaining after the imposition of the
adjusted definitive countervailing duty offsetting the
effect of the export subsidies.
(89) The
amended
countervailing
duty
rate
should
be
estab
lished at the level of the new rate of subsidisation found
during the present review, as the injury margins
(95) In
other
words,
the
new
subsidy
levels
will
have
to
be
calculated in the original anti-subsidy investigation
taken into account for the purpose of adjusting the
remain higher.
dumping margins, previously established.
(90) In
the
original
anti-subsidy
investigation,
in
order
to
(96) The
anti-dumping
duty
rate
of
the
applicant
should
thus
avoid that fluctuations in the PET prices caused by
be EUR 132,6 per tonne.
variations in the crude oil prices result in higher duties
being collected, was decided that measures should take
the form of a specific duty. It is considered that this
(97) The applicant as well as the other parties concerned were
approach should also be followed in the present review
informed of the facts and considerations on the basis of
for the same reason. The revised amount of specific duty
which it was intended to propose the termination of the
is therefore EUR 90,4 per tonne.
investigation,

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L 232/28
EN
Official Journal of the European Union
9.9.2011
HAS ADOPTED THIS REGULATION:
Article 1
Part of the table concerning Reliance Industries Limited in Article 1(2) of Regulation (EC) No 193/2007
shall be replaced by the following:
Country Company
Countervailing duty
(EUR/tonne)
TARIC additional code
‘India Reliance
Industries
Ltd 90,4 A181’
Article 2
Part of the table concerning Reliance Industries Ltd in Article 1(2) of Regulation (EC) No 192/2007 shall be
replaced by the following:
Country Company
Anti-dumping duty
(EUR/tonne)
TARIC additional code
‘India Reliance
Industries
Ltd 132,6 A181’
Article 3
This Regulation shall enter into force on the day following its publication in the Official Journal of the
European Union.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 2 September 2011.
For the Council
The President
M. DOWGIELEWICZ

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