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Compendium of Antidumping and Countervailing Duty Laws in the Western Hemisphere
WTO Standard: When the amount of the anti-dumping duty is assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping. A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty. The refund authorized should normally be made within 90 days of the above-noted decision. (AD Agreement, Art. 9.3.2)
WTO Standard: There is no parallel provision in the SCM Agreement.
Argentina | Bolivia | Brazil | Canada | Chile | Colombia | Costa Rica | Dominican Republic | Ecuador | El Salvador | Guatemala | Honduras | Jamaica | Mexico | Nicaragua | Panama | Paraguay | Peru | Saint Lucia | Trinidad & Tobago | United States | Uruguay | Venezuela
Argentina directly applies the standards of the WTO Agreements.
There shall be a refund of the security or a reduced amount of the security shall be collected when:
1. The definitive duties are lower than the provisional duties paid or guaranteed, in an amount equivalent to the difference between them;
2. a definitive duty is established for threat of injury or material retardation in the establishment of an industry in Bolivia and the injury has not yet occurred, for the total amount of the duty paid or return of the security;
3. where definitive duties are not established, the entire amount paid by way of provisional duty shall be refunded or the security returned.
The General Customs Administration shall refund excess amounts or order the return of the security, in the same amount, in accordance with the procedures laid down in the relevant legal provisions. Bi-ministerial Decision, Art. 42.
The refund is linked to conduct of the review (see preceding item Annual Reviews).
Refund requests that are made to the first level of administrative appeal are normally processed within 60 days of the date of receipt of the request.
A further request for review by the Deputy Minister of National Revenue (DM) would be processed no later than one year from the date of the original request.
By allowing a maximum of 60 days for the processing of the initial request, the Department of National Revenue ensures that sufficient time is left for the receipt and processing of a potential request to the DM within the one year period.
When a decision is made concerning a refund request, a Detailed Adjustment Statement (DAS) is issued and the importer usually receives a check within two weeks if he is owed money.
Persons affected by provisional measures which are definitively repealed or modified may apply for the refund of the amount paid or the excess amount paid under the respective measures in cases where the Commission decides, upon the conclusion of the investigation, that there is no distortion in the price of the products in respect of which it requested provisional measures for that, although there are distortions, they are not causing or threatening actual or imminent serious injury to the domestic industry.
The persons affected may also request the total or partial refund of amount paid under such provisional measures in the case where the Commission has recommended through the relevant decision, the definitive application of surcharges, antidumping duties and countervailing duties or minimum customs values, but these measures are not imposed by the competent authority or were imposed for an amount lower than that which has been paid under the provisional measure.
Current interest shall accrue on the amounts to be refunded.
Interested parties must apply for a refund within 90 days of the date on which they become entitled to such refund, after which the right thereto shall elapse. (Decree 575, Title 3, Art. 24). In the event of the refund of duties, taxes and other charges resulting from the provisional establishment of minimum custom values, surcharges, antidumping duties, and countervailing duties, the importer requesting the refund must submit an application in writing to the Regional Director or Administrator at Customs with whom the import declaration in question was lodged, together with a certified copy of the corresponding import declaration voucher of receipt of payment. (Decree 575, Title 3, Art. 27).
When INCOMEX, after investigating, determines that the antidumping duties paid by the importer are greater than the actual margin of dumping, it shall order the refund of the overpayment in question.
That refund shall be made by the Bureau of National Taxes and Customs (DIAN). The importer of the product subject to the final antidumping duties may request that INCOMEX undertake an investigation for the refund of the duties paid in excess of the real margin of dumping in the immediately preceding year.
The request must be submitted within 60 days of the end of that period. The request shall contain information on the amount of the refund of antidumping duties claimed with respect to the period in question and shall be accompanied by the declaration of imports and all other relevant supporting documents that show its calculation and payment. The request for investigation addressed in this article should include evidence of the normal value and of the export prices to Colombia, with respect to the exporter or producer to which the duty has been applied.
In the event that the importer is not related to the producer or exporter and does not immediately provide that information, or when the producer or exporter does not want to provide it to the importer, the request shall be accompanied by a declaration from the producer or exporter that the margin of dumping has been reduced or eliminated and that the relevant evidence will be provided directly to INCOMEX.
If these have not been received within two months of the submission of the request, it shall be considered that the petition has been abandoned and it shall be ordered closed.
In the investigations discussed in this Chapter, the provisions regarding the procedure indicated for reviews due to changes in circumstances and five-year examinations shall be observed.
When the amount of the anti-dumping duty is assessed on a prospective basis, provision shall be made for a prompt refund, upon request, of any duty paid in excess of the margin of dumping.
A refund of any such duty paid in excess of the actual margin of dumping shall normally take place within 12 months, and in no case more than 18 months, after the date on which a request for a refund, duly supported by evidence, has been made by an importer of the product subject to the anti-dumping duty.
The refund authorized should normally be made within 90 days of the above- noted decision.
A decree adds the following to this provision: If the definitive anti-dumping or countervailing duty is greater than the amount guaranteed, the difference shall not be required. If it is less, immediate repayment of the excess will be ordered.
The importer of any goods chargeable with an AD/CVD duty and are originating in or exported from a specified country may apply to the Minister for relief of the duty on those goods within 6 months after the duty has been paid on the goods.
An application must include information and evidence as the Minister requires in order to determine the export price or fair market price.
If the Minister determines that the export price of the goods from that country with the amount of the duty added to it exceeds the fair market price of the goods in that country, the Minister will then notify the Commissioner of Customs and Excise of the amount of the excess.
Upon notice, the Commissioner will remit or repay the duty up to that amount. (Sec. 5).
I. Initiation of the review
The same as the annual reviews, the review procedure begins officially or at the request of a concerned party, who must appear during the twelfth month after publication of the final decision, having participated in the procedure that gave rise to the final countervailing duty, or at the request of any producer, importer or exporter who, without having participated in such procedure, establishes legal interest under the terms of Articles 100, first paragraph, and 101 of the Regulations.
The Secretariat issues forms for presentation of the petition for review of final countervailing duties, which must be duly answered by the parties concerned requesting such review.
In accordance with the provisions of Article 101 of the Regulations, the party concerned may ask the following of the Secretariat in the petition:
I. In the case of a foreign exporter or an importer of the goods in question:
A. That the individual price discrimination margin be examined or considered, and
B. If appropriate, that the countervailing duty be changed or lifted.
II. If the petitioner is a national producer:
A. That examination be made of the standard value and export price determined during a specific period, in the course of normal trade operations, with respect to one or several foreign exporters, and
B. If appropriate, that the countervailing duty be confirmed or increased.
Moreover, during the procedure the national producer may ask that an examination be made as to whether modification or lifting of the final countervailing duty would cause the damage or threat of damage to recur, for which purpose the producer has the obligation to provide the pertinent evidence.
Within 30 days after presentation of the petition (Article 103 of the Regulations), the Secretariat must:
I. Accept the petition and declare initiation of the review through the corresponding decision, which must be made known to the parties concerned.
II. Ask the petitioner for further evidence or data, which must be provided within 20 days after receipt of the notice.
If the material requested is provided satisfactorily, within 20 days the Secretariat shall proceed in accordance with the provisions in the preceding action.
If it is not provided on time and does not constitute the items and data requested, the petition shall be abandoned and the petitioner shall be personally notified, or
III. Dismiss the petition when suitable information or evidence that would justify it is not presented, and notify the petitioner personally.
II. Publication of the decisions made in the review procedure. During the review procedure three decisions are announced: one on initiation, one preliminary, and another final.
These must be published in the Official Daily Gazette of the Federation and must meet the requirements indicated in the Law and Regulations.
In addition, in accordance with the provisions of Article 99 of the Regulations, the review procedure must be in keeping with matters related to conciliatory hearings, countervailing duties, commitments by exporters and governments, evidence, allegations, public hearings, technical meetings for information, notifications, verifications and other provisions common to procedures.
III. Purpose of the review and duration of the countervailing duties. The final countervailing duties remain in effect for the time and to the extent they may be necessary to counteract the unfair practice that is causing damage or threat of damage to national production, as provided for in Article 67 of the Law. In the review procedure the parties may assume price commitments, ending the review (Articles 68 and 72 of the Law).
During the review the parties concerned have the option to secure payment therefor.
This security is made in the manner and under the terms provided for in the Fiscal Code of the Federation (Article 102 of the Regulations).
If, upon reviewing the final countervailing duty, the Secretariat finds that such duty is no longer justified or that the price discrimination margin no longer exists, it must be lifted at once.
Under the latter assumption, the Secretariat must conduct an official review for three consecutive years during the anniversary month, as established in Article 105 of the Regulations.
If the Secretariat finds from the review that the price discrimination margins have changed with relation to those having brought about the final countervailing duties, any new duties established must replace the former ones.
Such duties are final and may be reviewed under the terms of the applicable legislation, as provided for in Article 106 of the Regulations.
Without prejudice to the provisions of Article 22, an importer may request, during a period up to six (6) months from the date of payment of the duty, the return of any anti-dumping duty that it has paid in excess of the real margin of dumping, so long as it makes a showing, duly supported by evidence, that the margin of dumping, on the basis of which the duties were paid, has been eliminated or reduced to a level below the duty in force.
The Ministries of Industry and Commerce, and of the Treasury, shall determine whether the refund is appropriate and may initiate a review of the case to verify the information and the facts alleged by the importer.
Where appropriate, the refund of the duty paid in excess shall normally be paid over 12 months, and in no case more than 18 months from the date on which the importer has submitted the application.
The payment of any refund shall normally be made within 90 days counted from a bi-ministerial resolution of the Ministries of Industry and Commerce and of the Treasury, as referred to in this Article.
The importer of any goods chargeable with an AD or CVD duty may apply to the Minister for relief from the duty of those goods. (Sec. 10(2)).
If, upon reviewing the application, 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, the Minister will notify the Comptroller of the amount of the excess, and the Comptroller will remit or repay the duty up to that amount. (Sec. 10 (3)).
An application must be made within six months of after the duty has been paid on the goods. (Sec. 10(4)).
The application must include such information and evidence as the Minister requires for ascertaining the export price or normal value. (Sec. 10 (4)).
The United States does not need to conduct duty refund reviews.
See "Annual Reviews" section above.
Where the definitive anti-dumping duty was preceded by the assessment of a provisional duty the following criteria shall be applied:
(a) If the definitive duty is lower than the amount collected provisionally or taken into account for the purpose of the security, the surplus shall be refunded or released, as appropriate;
(b) if the definitive duty is higher than the amount collected provisionally or taken into account for the purpose of the security, the difference shall not be collected;
(c) if the definitive duty is equal to the amount collected provisionally or taken into account for the purpose of the security, the latter shall be converted into a definitive duty.
"If the importer shows to the satisfaction of the Commission that the anti-dumping or countervailing duties imposed exceed the actual margin of dumping or amount of the subsidies, the Commission shall order the refund of the excess amounts paid to the importer.
For this purpose, the importer shall submit the relevant application to the Technical Secretary, attaching the documentation he deems relevant.
The Commission, through its Technical Secretariat, shall carry out the relevant investigation and verification and shall take a decision within a period not exceeding four (4) months from the date of the application". (1992 Law, Art. 56).
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