TRADE LAW | 2026-09-22

Solar Cells From India: Commerce Issues Final AD and CVD Determinations at Adverse Facts Available Rates of 123.04 and 126.09 Percent

Every examined respondent received a rate based on adverse inferences, the all-others rates match them, and critical circumstances push suspension of liquidation back to January 28, 2026.

On September 16, 2026 the U.S. Department of Commerce published final affirmative antidumping and countervailing duty determinations on crystalline silicon photovoltaic cells, whether or not assembled into modules, from India — cases A-533-942 and C-533-943. The dumping margin is 123.04 percent and the countervailable subsidy rate is 126.09 percent. Both are based on facts available with adverse inferences, and because no cooperating rate exists in either proceeding, the all-others rates were se

On September 16, 2026 the U.S. Department of Commerce published two final determinations concerning crystalline silicon photovoltaic cells, whether or not assembled into modules, from India. In case A-533-942, Commerce determined that solar cells from India are being, or are likely to be, sold in the United States at less than fair value. In case C-533-943, Commerce determined that countervailable subsidies are being provided to producers and exporters of the same merchandise. Both determinations are applicable September 16, 2026.

The numbers are severe, and the reason they are severe is worth understanding before the numbers themselves.

Every rate in both cases rests on adverse inferences

In the antidumping determination, Commerce found an estimated weighted-average dumping margin of 123.04 percent for Mundra Solar PV Limited, Mundra Solar Energy Limited, Kowa Company Ltd. and Premier Energies Photovoltaic Private Limited. Each of those rates carries the notation that it is based on facts available with adverse inferences. The corresponding cash deposit rate, adjusted for subsidy offsets, is 107.17 percent.

In the countervailing duty determination, Commerce found a subsidy rate of 126.09 percent ad valorem for Mundra Solar Energy Limited and Mundra Solar PV Limited, the mandatory respondents, again based on facts available with adverse inferences.

"Facts available with adverse inferences" is the statutory consequence, under section 776 of the Act, of a respondent failing to cooperate to the best of its ability with Commerce's requests for information. It is not a finding about the economics of the product. It is a finding about the conduct of the proceeding. When it applies to every individually examined respondent, as it does here, the resulting rates reflect what the record permitted Commerce to assume rather than what a verified cost and pricing analysis produced.

Why the all-others rate is the same number

This is the part that reaches importers who have never heard of the named respondents.

Ordinarily, under sections 703(d) and 705(c)(5)(A) of the Act, the all-others rate is a weighted average of the estimated subsidy rates established for the companies individually examined, excluding any zero and de minimis rates and any rates based entirely under section 776. Applying that rule here would leave nothing to average, because every examined rate was determined entirely under section 776.

Section 705(c)(5)(A)(ii) supplies the fallback: where all the individually examined rates are zero, de minimis, or based entirely on section 776, Commerce may use any reasonable method to establish the all-others rate. Commerce's chosen method was to apply the subsidy rate assigned to Mundra Solar Energy and Mundra Solar PV directly. The all-others CVD rate is therefore 126.09 percent, and the all-others dumping margin is 123.04 percent, with a 107.17 percent cash deposit rate after subsidy offsets.

The practical meaning is blunt. An Indian producer that was never selected as a mandatory respondent, never asked for information, and never had an opportunity to demonstrate its own pricing or subsidy position nonetheless receives a rate constructed from another company's non-cooperation. An importer sourcing from such a producer inherits that rate.

Critical circumstances and the retroactive reach

Commerce continued to find that critical circumstances exist for imports produced or exported by Mundra Solar Energy, Mundra Solar PV, Kowa and Premier Energies, under sections 735(a)(3)(A) and (B) of the Act and 19 CFR 351.206. It found that critical circumstances do not exist for all other exporters and producers.

The consequence is a split in the suspension dates, and importers need to know which side of it they are on:

For the four companies subject to critical circumstances, suspension of liquidation continues for applicable entries entered, or withdrawn from warehouse, for consumption on or after January 28, 2026 — 90 days before the preliminary determination published. That is the critical circumstances reach-back, and it captures roughly a quarter's worth of entries made before the preliminary determination gave anyone notice.

For all other companies, suspension continues for entries on or after April 28, 2026, the publication date of the preliminary determination.

An importer who accelerated purchases in the window between the petition and the preliminary determination — precisely the behavior the critical circumstances provision is designed to deter — will find that those entries are not safe.

The periods of investigation

The two cases use different periods, which is ordinary but frequently confusing. The antidumping period of investigation is July 1, 2024 through June 30, 2025. The countervailing duty period of investigation is April 1, 2024 through March 31, 2025. When reviewing your own purchase history against these determinations, use the right period for the right case.

Nothing changed from the preliminary determination

Commerce noted in the antidumping determination that because it made no changes from the preliminary determination, there are no calculations to disclose under 19 CFR 351.224(b). That is a small procedural line with a large practical implication: the final determination did not move, and importers who were waiting to see whether the preliminary rates would soften have their answer.

This sits within a much larger solar proceeding

India is one country among several in this round. Commerce published parallel final determinations the same week covering crystalline silicon photovoltaic cells from Indonesia and from the Lao People's Democratic Republic, alongside final results in the administrative review of certain crystalline silicon photovoltaic products from Taiwan. Importers who responded to earlier solar duty orders by moving sourcing across Southeast Asia should read the whole set rather than the India notices alone.

That sourcing pattern is itself the reason these cases exist. Each successive round of solar trade remedy proceedings has followed capacity as it relocated. An importer evaluating the next jurisdiction should assume the analysis will follow again, and should price that risk into supply agreements rather than treating each new order as a surprise.

What California importers and developers should do now

First, identify your actual producer, not merely your seller. The all-others rate attaches by producer and exporter, and a distributor's name on the invoice does not determine which rate applies. Developers who buy modules through EPC contractors often do not know the answer to this question, and the contract may not require them to.

Second, map your entries against the two suspension dates. Entries from the four named companies going back to January 28, 2026 are exposed; entries from other Indian producers are exposed from April 28, 2026.

Third, check bond adequacy. Cash deposits above 100 percent of entered value change the arithmetic on a continuous bond quickly, and an insufficient bond creates its own enforcement problem independent of the duties.

Fourth, revisit valuation. When duty rates are ad valorem and high, every element of customs valuation — assists, royalties, price adjustments, related-party pricing — carries proportionally more consequence than it did at a low rate. Positions that were immaterial at a few percent are not immaterial at 126 percent.

Fifth, confirm classification. The scope of these determinations is defined by product description rather than by HTSUS heading alone, but a sound classification analysis is still the starting point for determining whether a given module falls inside it.

Sixth, look at your contracts. Who bears the duty risk when a rate changes retroactively? Many supply agreements written before this round of proceedings simply do not address it, and the silence usually defaults against the importer of record.

What comes next procedurally

Commerce's final affirmative determinations move the cases to the U.S. International Trade Commission for its final injury determination. If the Commission makes an affirmative final determination, Commerce will issue antidumping and countervailing duty orders. If the Commission's determination is negative, the proceedings terminate and suspension of liquidation is lifted with refunds of cash deposits.

Until that happens, the rates stand and the deposits are collected. Importers who need to model the exposure should do so at the published rates rather than at an assumption that the Commission will provide relief.

Trembach Law Firm advises solar importers, developers and distributors on AD/CVD exposure, valuation, classification and CBP entry issues. To discuss how these determinations affect your supply chain, call (818) 514-7680 or contact a California customs attorney to review your entries. Importers moving containers through the San Pedro Bay complex can also reach our Los Angeles port customs practice directly.

Frequently Asked Questions

What are the final rates on solar cells from India?

In case A-533-942 Commerce found an estimated weighted-average dumping margin of 123.04 percent for Mundra Solar PV Limited, Mundra Solar Energy Limited, Kowa Company Ltd. and Premier Energies Photovoltaic Private Limited, with a cash deposit rate of 107.17 percent after subsidy offsets. In C-533-943 it found a subsidy rate of 126.09 percent ad valorem for the two Mundra respondents. Both determinations are applicable September 16, 2026.

Why are the rates this high?

Because every rate in both cases rests on adverse inferences. "Facts available with adverse inferences" is the statutory consequence under section 776 of a respondent failing to cooperate to the best of its ability with Commerce's requests for information. It is a finding about the conduct of the proceeding, not about the economics of the product. The resulting rates reflect what the record permitted Commerce to assume rather than what a verified cost and pricing analysis produced.

I buy from an Indian producer that was never investigated. What rate do I pay?

The same one. Ordinarily the all-others rate is a weighted average of the individually examined rates, excluding any that are zero, de minimis, or determined entirely under section 776 — which here would leave nothing to average. Section 705(c)(5)(A)(ii) supplies a fallback allowing any reasonable method, and Commerce applied the Mundra rate directly. The all-others CVD rate is therefore 126.09 percent and the all-others dumping margin 123.04 percent, with a 107.17 percent cash deposit.

How does this compare with cases where respondents cooperated?

The contrast is stark and it is the practical lesson. In the fatty acids investigation from Malaysia both examined respondents participated and the margins came out at 4.47 and 7.07 percent with a 5.23 percent all-others rate. Here no examined respondent produced a usable calculated rate, and triple-digit duties reached producers who were never asked a question.

Can I do anything about a supplier's conduct in a proceeding?

You cannot control it, but you can ask about it early and in writing — whether a supplier named in a proceeding intends to respond to Commerce's questionnaires, and whether it has counsel in the proceeding. That answer is the best available predictor of your own duty exposure for years afterwards, because a non-cooperating respondent's adverse-inference rate can flow through to the all-others rate every other producer receives.

This article is provided for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. Trade remedy proceedings depend on the specific facts, producers and entry records involved, and no particular outcome is guaranteed. Consult a qualified attorney about your own circumstances.

Contact Trembach Law Firm at (818) 514-7680 for a confidential consultation.

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