TMI Blog2016 (2) TMI 861X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Act, the Supreme Court has clearly held that no duty can be collected during the ‘Gap Period’. - no anti dumping duty can be levied and collected during the ‘gap period’. - Decided in favor of petitioner. - W. P. (C) 6805/2015 & CM 12449/2015 - - - Dated:- 16-2-2016 - Badar Durrez Ahmed And Sanjeev Sachdeva, JJ. For the Petitioners : Mr Atul Gupta, Mr T.D. Satish and Mr V. Lakshmikumaran For the Respondent : Mr Sanjay Jain, ASG with Mr Ashish Dholakia and Mr Shraddha Bhargava, Mr Sandeep Sethi, Sr Advocate with Ms Reena Khair and Mr Rajesh Sharma, Mr Balbir Singh with Ms Reena Khair and Mr Rajesh Sharma JUDGMENT Badar Durrez Ahmed, J (Oral) 1. We have heard the learned counsel for the parties. This petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al anti-dumping duty, that is, 25.07.2014, and directs that the same shall be payable in Indian Currency. It is pertinent to note that in the present case provisional duty was imposed on 25.07.2014 and the same could not extend beyond six months, that is, 24.01.2015. The notification has been issued on 27.05.2015, therefore, there is a gap between 25.01.2015 and 26.05.2015. One of the issues raised was that the Central Government could not have levied the anti dumping duty retrospectively and that in case it did so, the provisions of Rule 20(2)(a) would be ultra vires the Customs Tariff Act, 1975 which does not speak of retrospectivity. We need not labour on this aspect any further inasmuch as the Supreme Court in the case of Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a retrospective imposition prior to the imposition of a provisional duty. It will immediately be noticed that the subject matter of Sub-clause (a) does not purport to be the imposition of an anti-dumping duty with retrospective effect. This is because it seeks to give effect to Clause 10.2 of the WTO Agreement. As has been argued by learned Counsel on both sides, the key to the understanding of the import of Sub-clause (a) is the expression where a provisional duty has been levied.... Obviously, the word levied has to be read as levied in accordance with Rule 13 which, as its marginal note indicates, provides for the levy of provisional duty. Once this is clear and the word levied is to be understood as levied Under Rule 13, the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties up to 90 days prior to the date of application of provisional measures, although no definitive duties can be collected on imports that took place before initiation. 36. On a correct reading of the said sub-rule, therefore, the final anti-dumping duty only incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13. Thus, it is clear that such incorporation can only be the period upto which the provisional duty can be levied and not beyond. Thus understood, it is clear that both literally, and in keeping with the object sought to be achieved-that is the making of laws in conformity with the WTO Agreement, there can be no levy of anti-dumping duty in the gap or interregnum period between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 30.11.2009 on protection against dumped imports from countries not members of the European Community has this to say: Article 9 Termination without measures; imposition of definitive duties 4. Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds, or we wait until the order has been published, then instruct CBP to liquidate all entries during the gap period without regard to antidumping duties. 40. We are heartened to note that one other signatory nation has taken the stand that no duty can be collected during the gap period . 41. Viewed slightly differently, the suggested construction by revenue would render Rule 2(a) ultra vires Section 9A. It has already been seen that Sub-section (2) and Sub-section (6) of Section 9A do not authorize the imposition of a duty with retrospective effect, in contrast with Sub-section (3) thereof. Any duty levied by a final duty notification during the interregnum period would necessarily amount to a retrospective levy of duty for t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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