TaxTMI 
TaxTMI 
2011 (12) TMI 497
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....nal has held, inter alia, that no Anti-dumping duty can be levied on imports 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 dut....
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.... territory to India at less than its normal value, then upon the importation of such article in India, 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 m....
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....y to the duty chargeable under the Section as they apply in relation to the duty leviable under that Act. 10. In exercise of the powers conferred by Section 9A, the Union 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 da....
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....ing, not exceeding the margin of dumping determined under Rule 17. Under sub-rule (4) of Rule 18, if the final finding of the Designated Authority is negative that is contrary to the evidence on the basis of which the investigation was initiated, 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....
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....an anti-dumping duty on the basis of a provisional estimate of such value and margin ; (iii) Under Rule 13 which provides for the levy of a provisional duty, the Central Government is empowered to impose a provisional duty on the basis of the preliminary findings recorded by the Designated Authority albeit for a period of six months; (iv) Upon the publication of the final findings 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 ....
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.... (vii) Alternatively, it has been urged that if the contention which is urged on behalf of the Revenue is accepted, that would result in a situation where the definitive anti-dumping duty is rendered retrospective. The Customs Tariff Act, 1975 does not authorise the imposition of a retrospective duty which must, therefore, be held to be ultra vires (This submission has been urged in support of the Petitions under Article 226). The rival submissions now fall for determination. 15. Under sub-section (1) of Section 9A of the 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 provision....
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....an article into India causes or threatens a material injury to any established industry in India or materially retards establishment of industry in India. Similarly, the Central Government cannot levy countervailing duty or an anti-dumping duty under sub-section (2) of Section 9A on the import of an article from specified countries unless in accordance with the Rules a preliminary finding had been made of dumping and consequent injury to domestic industry and a further determination has also been made that a duty is necessary to prevent injury being 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, subs....
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.... Constitution which forms part of the Directive Principles, the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. When the State seeks to enforce an international agreement by enacting legislation on the subject, the Court must of course give a contextual meaning to the language used. Even as a matter of first principle, as noted in the judgment of Justice Bhagwati in Union of India v Sakalchand Himatlal Sheth [(1977) 4 SCC 193], the words used in a statute cannot be read in 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. ....
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....on the basis of a provisional estimate of the normal value and the margin of dumping, pending a determination in accordance with the provisions of the section. Rule 13 empowers the Central Government to impose a provisional duty not exceeding the margin of dumping on the basis of the preliminary findings recorded by the Designated Authority. Under the second proviso to Rule 13, the provisional duty is to remain in force only for a period not exceeding six months which can be extended by the Union Government to nine months on a request of the exporters representing a significant 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 levie....
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.... the meaning of Rule 20(2)(a) and hence the anti-dumping duty cannot cover the gap period. We are unable to accept the submission. The word "levy" must receive a construction consistent with the context in which it is used. Rule 4(1)(d) for instance authorises the Designated Authority 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 the commencement of the duty. The marginal note to Rule 13 speaks of levy of provisional duty while the substantive part empowers the Central 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 estima....
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....ications and alterations as are considered necessary in regard to the like matters in respect of duties imposed under Section 3. In that context, the Division Bench held that the natural meaning of the word, "levy", is to collect and even judicially the word, "levy" has been construed to mean the determination of liability as well as the collection of tax. The Division Bench, therefore, rejected the contention of the Petitioner there that when Section 12 of the Excise Act empowers the Central Government to apply the provisions of the Customs Act, 1962 relating to levy, this should not include 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 r....
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....ity to the Government to levy anti-dumping duty with effect from the date of imposition of provisional duty. In fact, in our view, the contention of the respondents and assumption of the Tribunal, that levy under Annexure B notification is retrospective is not correct because provision for levy of anti-dumping duty with retrospective effect is contained in Section 9A(3) read with Rule 20(b) of the Rules, whereas Annexure B is issued under Section 9A(5) read with Rule 20(2)(a) of the Rules. In this case, there is no retrospective levy because retrospective levy can be only for period prior to the issue of 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 th....