TMI Blog2011 (12) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... made. 2. The learned Counsel appearing on behalf of the Revenue has submitted and this position is not disputed by learned Counsel appearing on behalf of the respondent that the first question of law will be dispositive of the issues that arise in the appeals filed by the Revenue. Counsel appearing on behalf of the Revenue states that the second question of law is not pressed. As regards the third and fourth questions, it is now common ground between Counsel appearing on behalf of the Revenue and Counsel appearing on behalf of the Respondents that in view of the provisions of Section 9A(8) of the Customs Tariff Act, 1975, the view which has been taken by the Tribunal is unsustainable. Sub-section (8) of Section 9A was substituted with effect from 1 January, 1995 by the Finance Act (No. 2), 2009 to provide that the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder including those relating to the date for the determination of the rate of duty, assessment, non-levy, short levy, refunds, interests, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under the section as they apply in relation to the duty leviable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government is empowered by a notification in the Official Gazette, to impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. The expression, margin of dumping, is defined in Explanation (a) to mean the difference between the export price and the normal value of the article. Bereft of detail, the export price in relation to an article means the price of the article exported from the exporting country. The normal value, means the comparable price in the ordinary course of trade for a similar article when meant for consumption in the exporting country. 7. Sub-section (2) of Section 9A empowers the Central Government to impose an anti-dumping duty on the basis of a provisional estimate of the normal value and the margin of dumping pending a final determination in accordance with the provisions of the section. Sub-section (2) of Section 9A is as follows : (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Government notified with effect from 1 January, 1995, the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. A Designated Authority is constituted by Rule 3. Under Rule 4 the Designated Authority is inter alia, vested with the duty (i) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; (ii) to identify the articles liable for anti-dumping duty; (iii) to submit findings, provisional or otherwise, to the Central Government inter alia as regards the normal value, export price and the margin of dumping and as regards the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of the article; (iv) to recommend the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry and the date of commencement of such duty; and (v) to review the need for continuance of anti-dumping duty. Under Rule 12, the Designated Authority has to render, in appropriate cases, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted, the Central Government is under an obligation to withdraw the provisional duty imposed within forty-five days of the publication of final findings. 12. The controversy in the present case turns upon the interpretation of Rule 20 and it would, therefore, be necessary to extract the provision in its entirety. 20. Commencement of duty. - (1) The anti-dumping duty levied under Rule 13 and Rule 19 shall take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub- rule (1) - (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the anti-dumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of Section 9A of the Act, the anti-dumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty : Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings by the Designated Authority the Central Government may impose an anti-dumping duty not exceeding the margin of dumping as determined under Rule 17; (v) Both, the provisional duty and the final anti-dumping duty, take effect from the publication in the Official Gazette under Rule 20(1); (vi) However, Rule 20(2) which overrides sub-rule (1) stipulates that in certain circumstances the anti-dumping duty may be levied from the date of the imposition of the provisional duty. Once the conditions which are spelt out in Rule 20(2)(a) are fulfilled, the date of commencement of the definitive anti-dumping duty has to be the date of imposition of the provisional anti-dumping duty and the definitive duty will remain in force for a period of five years. The definitive anti-dumping duty would cover the period of five years commencing from the provisional anti-dumping duty without any break or hiatus. Any other construction would defeat the object and purpose of imposing a definitive anti-dumping duty after investigation has found that the statutory requirements for the imposition have been duly fulfilled. (vii) In the present case, there is a finding by the Designated Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Tariff Act, 1975 Parliament empowered the Central Government to impose anti-dumping duty not exceeding the margin of dumping on an article exported into India by an exporting country at less than its normal value. In sub-section (2) of Section 9A Parliament made a provision empowering the Union Government to impose an anti-dumping duty on a provisional estimate of the normal value and the margin of dumping. The duty under sub-section (2) of Section 9A is an interim measure because it is to be enforced pending the determination in accordance with the provisions of the Section. The imposition of a duty under Section 9A(2) is on a provisional estimate. A provisional estimate is a tentative evaluation which gives way to and merges in a final determination. The duty under Section 9A(2) is pending the ultimate determination. An enabling provision is made by Parliament authorising the Central Government to impose a duty under Section 9A(2) to protect the public interest which the statute protects, till a final determination is made. The enabling provision covers the period until the determination in accordance with the provisions of the section is made. Sub-section (3) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing caused during the investigation. 17. The relevant provisions of the Act including those of Section 9A were enacted in order to fulfil the obligations which were cast upon India as a member of the WTO and pursuant to the Uruguay Round of Multilateral trade negotiations. The Statement of Objects and Reasons adverts to the background in which the Legislation came to be enacted. The Statement of Objects and Reasons accompanying the introduction of the Bill in Parliament provided that the Final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, contains, inter alia new agreements on anti-dumping, subsidies and countervailing measures. Member countries were required to ensure the conformity of their laws, regulations and administrative procedures with those provided in the Final Act. India having acceded to join the World Trade Organisation with effect from 1 January, 1995, the Union Government was required to align its laws relating to countervailing duty and anti-dumping duty with the provisions contained in the Final Act. Some of the changes which were introduced in the Customs Tariff Act, 1975 and brought through the Ordinance included the levy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isolation; their colour and content are derived from their context. While placing a contextual interpretation on the words used, the Court nonetheless has a duty to fulfil the primary task which is to construe the meaning of the language used by Parliament in a statute. The Court when it construes the terms of a statutory enactment is bound to give effect to the meaning of the words used by Parliament. Where Parliament has made a departure from the language used in an International Convention, the Court which has to elucidate the meaning of the words used by Parliament cannot ignore the content and meaning of those words. 19. The agreement on implementation of Article 6 of the General Agreement on Tariffs and Trade, 1994 provides that an anti-dumping measure shall be applied only under the circumstances provided in Article 6 and pursuant to the investigation initiated and conducted in accordance with the provisions of the agreement. Article 2 provides for the determination of dumping; Article 3 provides for determination of injury; Article 5 provides for the initiation and subsequent investigation; and Article 7 provides for provisional measures. Article 7.1 stipulates that prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant percentage of the trade. Once a final finding has been recorded by the Designated Authority under Rule 17, the Central Government is empowered under Rule 18 to impose anti-dumping duty not exceeding the margin of dumping within three months of the date of publication of final findings by the designated authority. While under sub-rule (1) of Rule 20 it is stipulated that anti-dumping duty shall take effect from the date of its publication in the Official Gazette, sub-rule (2) contains a non-obstante provision and which overrides sub-rule (1). Under clause (a) of sub-rule (2) the anti-dumping duty may be levied from the date of imposition of provisional duty in a situation where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury. 21. The construction which has been suggested on behalf of the Respondents would lead to a manifest absurdity. The clear meaning of Rule 20(2)(a) is to authorise the levy of the anti-dumping duty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Government on the basis of the preliminary findings of the Designated Authority to impose a provisional duty not exceeding the margin of dumping. Rule 18 which again speaks of levy of duty authorises the Central Government upon the publication of final findings by the Designated Authority to impose an anti-dumping duty. When Rule 20(2)(a) refers to a situation where a provisional duty has been levied the rule adverts to the levy under sub-section (2) of Section 9A read with Rule 13. Sub-section (2) of Section 9A refers to the imposition of an anti-dumping duty on the basis of a provisional estimate of the normal value and the margin of dumping. Under Rule 13, the Central Government can impose a provisional duty not exceeding the margin of dumping. In this context, when Rule 20(2)(a) speaks of the levy of the anti-dumping duty from the date of the imposition of a provisional duty, the rule refers to the date with effect from which the provisional duty was imposed. The initial words of clause (a) only require that the provisional duty ought to have been levied before the anti-dumping duty may be levied from the date of the imposition of a provisional duty. The fact that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions for recovery or collection of tax. The decision of the Division Bench in fact emphasises that the meaning of a statutory term must receive meaning in the context in which the words are used. In the context in which the words are used in Rule 20(2)(a), an anti-dumping duty can be levied from the date of imposition of a provisional duty where the provisional duty has been levied, subject to the fulfilment of the other requirements. Where a provisional duty has been levied, reflects a situation where, a duty was imposed in exercise of powers conferred by sub-section (2) of Section 9A read with Rule 13. 25. The argument of retrospectivity is similarly lacking in substance. Sub-section (2) of Section 9A empowers the Central Government to impose a duty on the basis of the provisional estimate pending a determination in accordance with the provisions of the Section. Parliament, when it enacted sub-section (3) of Section 9A, considered that the levy of an anti-dumping duty, prior to the date of imposition of the provisional duty under sub-section (2) would be retrospective and, therefore, confined the duration of the imposition of such a duty to a period of not more than nine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f notification providing for provisional anti-dumping duty. Once an order under Section 9A(2) is issued imposing duty provisionally then the question of retrospectivity does not arise and only Rule 20(2)(a) applies which authorises the Government to levy anti-dumping duty from the date of introduction of provisional duty which is the case here once provisional anti-dumping duty is levied for any goods, any subsequent import of such goods will attract anti-dumping duty if final orders provide for levy with effect from the date of provisional order. We are therefore of the view that the Tribunal went wrong in holding that anti-dumping duty cannot be levied or collected from the respondents after expiry of Annexure A notification. We are in respectful agreement with the view of the Kerala High Court. 27. For these reasons, we are of the view that the appeals by the Revenue would have to be allowed. The first Question of Law which has been formulated, shall accordingly stand answered in the negative. The second Question of Law has not been pressed on behalf of the Revenue. The Third and the Fourth Questions of Law would have to be answered in the negative having regard to the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
