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2016 (2) TMI 861 - DELHI HIGH COURT

2016 (2) TMI 861 - DELHI HIGH COURT - TMI - Retrospective levy of anti-dumping duty - 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 ultr .....

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. 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 petition was filed challenging the notification No. 23/2015-Cus (ADD) dated 27.05.2015 whereby anti-dump .....

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Insofar as the first aspect is concerned, we feel that the petitioners ought to have filed an appeal under Section 9C of the Customs Tariff Act, 1975. But as they were pursuing this writ petition, we are granting liberty to them to prefer an appeal against the final findings and the notification on merits. We are granting liberty to the petitioners to file the appeal within two weeks and the respondents have stated fairly that they shall not raise the issue of limitation. In case the appeal is f .....

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. 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 .....

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o Rule 20, the correct construction of which is determinative of the question raised in these appeals. The first thing to notice about Rule 20 is, as its marginal note states, that it is concerned only with the date of commencement of duty. Once this is appreciated, it becomes clear that its focus is only on when anti-dumping duties are to commence. In Sub-rule (1), it speaks of anti-dumping duties levied Under Rule 13 and Rule 19, and states that they shall take effect only prospectively, i.e. .....

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to a provisional duty that has been levied, whereas Sub-clause (b) specifically deals with duty to be retrospectively imposed, that is 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, .....

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not be for a period exceeding 6 months (on facts in these cases, such period has not in fact been extended beyond 6 months). Thus, it is clear that all that Sub-rule (2)(a) does is to enable the levy of a final anti-dumping duty from the date of imposition of a provisional duty so as to convert the provisional measure into a final measure, or so as to take within its ken the provisional anti-dumping duty already imposed. This aspect is succinctly put by "A Handbook on Anti-Dumping Investiga .....

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tive duties (that is, for the collection of definitive duties before the effective date of the final determination) in two situations: • The first such situation involves the collection of definitive duties for the period during which provisional measures were applied (and for all practical purposes "converts" the provisional measure into a definitive measure); and • The other involves the collection of definitive duties up to 90 days prior to the date of application of provi .....

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he 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 the lapse of the provisional duty and the imposition of the final duty. Such interpretation makes it clear that Clause 10.2 of the WTO Agreement is reproduced in the same sense though not in the same form in Sub-rule (2)(a). The same result therefore as is envisaged in Clause 10.2 is achieved by the said co .....

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eresting to note that a number of member countries of the WTO agreement have opted for the Rule by which anti-dumping duty is levied to the full extent of the margin of dumping. Such nations like Argentina, Mexico and USA therefore have, under the WTO Agreement, only a period of 4 months extendable upto a maximum period of 6 months (instead of 6 months and 9 months respectively) so far as the life span of a provisional duty is concerned. Most of Europe and the rest of the world have opted to imp .....

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t 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 in force, a proposal for definitive action shall be submitted no later than one .....

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y final duty has to be submitted no later than one month before the expiry of a provisional duty. 39. However, interestingly enough, in the United States Manual dealing with anti-dumping duties, the following is the statement of law: Therefore, a period of time, known sometimes as the "gap period," may exist between the expiration of the end of the provisional measures, even if extended, and the publication of the ITC's final determination (the starting of definitive duties) where .....

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