9911796707
TMI Blog2005 (11) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... of its publication in the Official Gazette was not challenged. 2.On 6-8-2001, the designated authority initiated the investigation on the basis of the petition filed by M/s. SPL Ceramics Ltd., M/s. H & R Johnson India Ltd. and M/s. Murudeshwar Ceramics Ltd. The designated authority notified its preliminary findings by notification dated 3-12-2001 with regard to anti-dumping investigations concerning imports of vitrified/porcelain tiles originating in or exported from China PR and UAE. Public hearing was held on 2-7-2002 to hear the interested parties. The authority made the public file available to all interested parties containing non-confidential version of the evidence submitted by various interested parties for inspection upon their request. Disclosure of essential facts, as required by Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duties on Dumped Articles and for Determination of Injury) Rules, 1995, was made on 17-12-2003. In its final findings, the authority concluded that, vitrified/porcelain tiles were exported to India from UAE and China PR below its normal value resulting in dumping, the Indian industry had suffered material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor was there any indication of necessary implication to that effect. It was argued that in contrast Section 9A(3), by necessary implication, ruled out any other retrospective duty, and that the only retrospective duty that was intended to be imposed was expressly mentioned in Section 9A(3). It was further contended that the validity of the impugned notification having retrospective effect cannot be sustained on the strength of Rule 20(2)(a) of said rules. It was contended that for judging the validity of the impugned notification, Section 9A(6), which conferred rule making power on the Central Government, was of no consequence. Power to frame rules for assessment and collection of duty had no relevance for judging the validity of the retrospective operation of a notification issued under Section 9A(1). It was, therefore, argued that the impugned notification was invalid because it was retrospective. It was then contended that since the Government of India was a signatory to the WTO Agreement, every endeavour should be made to interpret the rules in conformity with the commitments made by the Government of India to the international community. Heavy reliance was placed on Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .L.T. (J 375) (S.C.) = 1969 (3) SCC 112 (Para 8) (b) Hukam Chand Etc. v. Union of India and Others and Prithvi Chand (deceased) v. Union of India and Others reported in (1972) 2 SCC 601 (at Pages 604 to 606 vide Paras 7 to 10 and 13) (c) Regional Transport Officer Chittoor and Others v. Associated Transport Madras (P) Ltd. and Others reported in (1980) 4 SCC 597 (Paras 3 and 4-Pages 598 & 599) (d) State of Bihar and Others v. Krishna Kumar Kabra and Another reported in 1997 (9) SCC 763 (Para 7) (e) Kunj Behari Lal Butail & Others v. State of H.P. and Others reported in (2000) 3 SCC 40 (Para 14) It was submitted that a subsequent law which imposes a new liability in respect of a past transaction is retrospective. For this he placed reliance on the decisions of the Supreme Court in Govind Das & Others v. Income Tax Officer & Another reported in 1976 (1) SCC 906 (Para 11 at P. 914); K.S. Paripoornan v. State of Kerala & Others reported in 1994 (5) SCC 593 (at PP. 634, 635, Paras 64 to 66); and, Craies on Statute La ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o relevance in the construction of duration of final anti-dumping duty or as to when it will commence. He placed reliance on the decisions of the Supreme Court in S.G. Glass Works Pvt. Ltd. v. Collector of Central Excise & Customs, Nagpur reported in 1994 (74) E.L.T. 775 (S.C.) (Para 3), and Secretary Regional Transport Authority, Bangalore & Ors. v. D.P. Sharma and Ors. 1989 Suppl. (1) SCC 407 (Paras 15 & 16), in support of these contentions. He then argued that reference to WTO Agreement Articles 10.2 to 10.4 was irrelevant in view of the marked departure in the language of the corresponding provisions in the said rules. It was also argued that the binding nature of the decision in Apollo Tyres was not affected, merely because some arguments were not advanced before the earlier Bench. The learned Senior Advocate contended that "entire universe of discourse" was between Section 9A(1) to 9A(6) minus Section 9A(3), and the Parliament had entrusted the delegate to make law imposing anti-dumping duty from the dates indicated in these provisions. It was submitted that Section 9A contained sufficient guidelines for the exercise of powers by the delegate and five years' duration was cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 9A(1) is higher than the provisional duty "imposed and collected" the differential duty shall not be collected, as provided in rule 21(1), which is in consonance with Article 10.3 of the WTO AD Agreement. On this basis, it was contended for the appellants that the intention of the legislature was not to impose anti-dumping duty during the interregnum period. This contention overlooks that the Parliament has power to make retrospective laws. The power to make law includes the power to give it retrospective effect, the only express constitutional limitation being in Article 20(1). Any other law, may, therefore, be made retrospective including taxing laws, provided no fundamental right is infringed by reason of taking away a vested right by retrospective legislation. The provisions of Rule 20(1) are to be viewed in the context of this plenary nature of the power of the Parliament to make retrospective legislation, including taxing laws. xxxxxxxxxxxxxxxx 33.2 The provisions of sub-rule (2) will prevail over sub-rule (1) of Rule 20 as per the non obstante clause of sub-rule (2). This provision specifically enables giving of retrospective effect to the anti-dumping duty impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules made thereunder, of the normal value and the margin of dumping in relation to any article, the Central Government may impose on the importation of such article an anti-dumping duty on the basis of a provisional estimate of such value and margin, as provided under sub-section (2) of Section 9A. The duty so imposed, though on a provisional estimate of normal value and margin of dumping, is nonetheless an anti-dumping duty, which can be imposed only by a notification in the Official Gazette by virtue of Section 9A(1), since that is the requirement for imposition of an anti-dumping duty which would also apply to the imposition of anti-dumping duty on the basis of a provisional estimate under sub-section (2) of Section 9A. The fact that the provisional duty is also treated as anti-dumping duty and not merely some provisional deposit is clear even from sub-section (2) of Section 9A in which the expression "any anti-dumping duty imposed under sub-section (2)" occurs. Even in sub-section (3), the expression "anti-dumping duty under sub-section (2)" is used. Under sub-section (4) of Section 9A, it is laid down that anti-dumping duty chargeable under this section shall be in additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisional duty has been levied and final findings are recorded, as contemplated therein, the anti-dumping duty may be levied from the date of imposition of provisional duty. Since much controversy has centred around the provisions of Rule 20(2)(a), it is reproduced hereunder along with sub-rule (1) of Rule 20 :- "20. Commencement of duty. - (1) The anti-dumping duty levied under rule 13 and rule 18 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." 7.It is clear from the reading of the provisions of Section 9A(1), (2), (3) and (5) and Rules 13, 18, and 20 of the said rules that there can be three possible dates of commencement of the definitive anti-dumping duty :- (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or definitive. Since imposition of anti-dumping duty is required to be done by publishing notification in Official Gazette, the date of commencement of anti-dumping duty, even when provisional, has to be its date of publication in the Official Gazette. Since provisional duty under Section 9A(2) is an anti-dumping duty, and the definitive anti-dumping duty if less than the provisional anti-dumping duty, has the effect of reducing it, the statutory requirement to reduce it to the level of the definitive anti-dumping duty, makes it necessary to coincide the date of commencement of imposition of anti-dumping duty with the date of the imposition of the provisional anti-dumping duty. Thus, where provisional anti-dumping duty is imposed, date of commencement of definitive anti-dumping duty will be the date of imposition of provisional anti-dumping duty, as contemplated by Rule 20(2)(a) of the rules read with Section 9A(2) of the said Act. (iii) The anti-dumping duty can be retrospectively imposed, as contemplated under Section 9A(3) from a date prior to date of imposition of provisional anti-dumping duty under sub-section (2) of Section 9A, but not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -dumping duty will cease to have effect on the expiry of five years, unless revoked earlier. So far as the provisional anti-dumping duty is concerned, such revocation is statutorily provided for in the second proviso to Rule 13, which lays down that provisional anti-dumping duty shall remain in force only for a period not exceeding six months or nine months, as the case may be. However, that provision cannot curtail or breach the life of five years of the definitive anti-dumping duty commencing from the date of imposition of provisional anti-dumping duty, which will cease to have effect only on the expiry of five years, unless revoked earlier. There cannot be any implied revocation of definitive anti-dumping duty that comes into force from the date of the imposition of the provisional anti-dumping duty. Even where provisional anti-dumping duty remains in force only for six months or nine months, as the case may be and the anti-dumping duty is definitively imposed thereafter, 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 duration of five years of definitive anti-dumping duty is not affected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) read with Section 9A(5) all throughout the period of five years or till it is revoked earlier subject to the provisions of Section 9A(2)(a)(b) which require the provisional anti-dumping duty to be reduced and brought to the level of the definitive anti-dumping duty, if it is in excess. Rule 20(2)(a) is, therefore, not open to any attack on the ground of excessive delegation. 9.During the period of ninety days where anti-dumping duty is retrospectively imposed under Section 9A(3) as well as the period after provisional anti-dumping duty had ceased, the definitive anti-dumping duty that has commenced will have its full play and the contention that the statute did not envisage definitive anti-dumping duty to operate in the interregnum period flies in the face of the firm duration and continuity of duty contemplated under Section 9A(5) of the Act. Furthermore, there is no rationale behind halting the operation of the statutory duty that is brought into force from the date of its commencement under Section 9A(5), during the period that the provisional anti-dumping duty did not operate after it ceased on the expiry of six or nine months, as the case may be, under the second proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate a gap for mass injurious dumping to thrive by such invitation that would undermine the remedial effect of the anti-dumping duty which was liable to be levied and in fact levied from the date of commencement of the provisional anti-dumping duty. If continuity of definitive anti-dumping duty, that commenced under Section 9A(3) from prior to the date of imposition of the provisional anti-dumping duty under Section 9A(2) is not breached at any point of time, then it does not stand to reason why anti-dumping duty commencing from the date of imposition of provisional anti-dumping duty should develop a breach, of the nature suggested, in its continuity. The contentions canvassed on behalf of the appellants suggesting that the impost will get paralyzed during interregnum period are, therefore, misconceived contrary to the statutory provisions. There is, therefore, no scope for transplanting the phrase, "period for which provisional measures have been applied" of Article 10.2 of the WTO Agreement into Rule 20(2)(a) of the said rules so as to substitute the expression "where a provisional duty had been levied", occurring therein. No such attempt is warranted for bringing Rule 20(2)(a) in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als, specify their powers and procedures under clause (3) of Article 323B. Thus, Article 323B only specifies the Parliament's power to make law for entrusting matters to the tribunal created by law, which would be a Tribunal created under a statute like this tribunal which was created under the law, i.e. under Section 129 of the Customs Act with other statutory provisions made thereunder regarding matters entrusted to it to exercise jurisdiction to the exclusion of all Courts except the High Court and the Supreme Court. Both Articles 323A and 323B contemplated that such tribunals may be established under a statute which provide for such establishment and did not create them. Section 129 of the Customs Act is a law made under clause (1) of Article 323B that provided for the establishment of this Tribunal by requiring the Central Government to constitute this Appellate Tribunal, as contemplated by clause (3) of Article 323B, which is similar to Article 323A(2)(a) relating to Administrative Tribunals. The establishment of this Tribunal owes its existence to the law made by the Parliament in the exercise of the powers to make law providing for establishment of tribunals as specified in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
