TaxTMI 
TaxTMI 
2008 (4) TMI 53
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....ti-dumping duty on CFL without choke and with choke. The same Notification also imposed anti-dumping duty on CFL without choke originating in or exported from Hong Kong. Subsequently, definitive anti-dumping duty was imposed by Notification No. 138/2002-Cus. dated 10-12-2002. The anti-dumping duty on CFL without choke originating in or exported from Hong Kong was imposed for the first time under Notification No.138/2002. Paragraph 2 of the Notification No. 138/2002 stated as follows: "2. The anti-dumping duty imposed under this notification shall be levied with effect from the date of imposition of the anti-dumping duty, i.e. the 21st December, 2001 and shall be payable in Indian Currency: Provided that in the case of export of CFL with choke, originating in, or exported from Hong Kong, the anti-dumping duty imposed under this notification shall be effective from the date of issue of this notification in the Official Gazette." 3. The appellant imported the impugned CFL with choke of Chinese origin from a supplier in Hong Kong. The bill of entry was noted on prior entry basis on 2-12-02 and the vessel carrying the said goods was granted Entry In wards on 9-12-2002. The main....
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.... 21-12-2001 which was effective till 20-6-2002 and on completion of the investigation, the definitive anti-dumping duty has been notified on 10-12-2002. There is no grievance on the part of the appellant in regard to the determination of dumping and injury margins and quantification of the anti-dumping duty or the time taken for completion of the investigation. Their only grievance is that imports made during the interregnum between 21-6-2002 and 9-12-2002 should not be charged to anti-dumping duty. 6. The appellant in his written submission has cited the following decisions of the Tribunal in his support :- (i) CC. Cochin v. Raghav Enterprises, 2005 (189) E.L.T. 461 (Tri. - Bang.); (ii) C.C., Cochin v. Royal Impex, 2006 (204) E.L.T. 567 (Tri. - Bang.); (iii) G.M. Exports v. CC., Bangalore, 2006 (198) E.L.T. 354 (Tri. - Bang.); (iv) C.J. Shah & Co. v. CC., Kandla, 2006 (196) E.L.T. 154 (Tri. - Mumbai); (v) Harsh International v. C.C., Mumbai, 2007 (217) E.L.T. 528 (Tri. - Mumbai). 7. The Revenue relies on the following decisions of the Tribunal: (i) NITCO Tiles Ltd. v. Designated Authority, 2006 (193) E.L.T. 17 (Tri. - Del.); (ii) Apollo Tyres Ltd. v. UOI....
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....Bangalore Bench in the case of Raghav Enterprises (supra) and hence, this also cannot have any pursuasive value. In the case of Harsh International (cited supra), the Mumbai Bench has, after referring to the decisions of the Three Member Anti-Dumping Bench in the cases of Apollo Tyres and NITCO Tiles (supra), has still come to the conclusion that no anti-dumping duty is payable during the interrengum, whereas in the case of Bansilal Leisure Parks Ltd. (supra), the Delhi Bench of the Tribunal has followed the decision of the Three Member Anti-Dumping Bench in the case of NITCO Tiles (cited supra) and has held that anti-dumping duty is payable during the interrengum. We find that the decision of the Mumbai Bench in the case of Harsh International apart from being contrary to the decisions of the Larger Bench (Three Member Anti-Dumping Bench) has proceeded on the presumption that the provisional duty for the interrengum was zero and hence, under Rule 21 of the Anti-dumping Rules, 1975, the difference between the definitive duty and zero is not payable. With great respect, we are not able to accept the interpretation given by the said Bench contrary to the decision of the Larger Bench.....
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..... In this case, the Referral Bench has not even questioned the correctness of the decisions of the Three Member Anti-Dumping Bench. Hence, we proceed to decide the matter applying the ratio of the Three Member Anti-Dumping Bench in the two cases decided by it, namely NITCO Tyres and Apollo Tyres (cited supra). In NITCO Tiles (supra), the Three Member Anti-Dumping Bench has held as under :- "7.1. Thus, we have the following three possible dates of commencement of the date of definitive anti-dumping duty (a) Where no provisional duty is imposed, the date of publication of notification in the Official Gazette imposing anti-dumping duty. (b) Where provisional duty is imposed, the date of imposition of provisional duty i.e. the date of notification issued in Official Gazette imposing it. (c) Where anti-dumping duty is imposed retrospectively from a date prior to the date of imposition of provisional duty, such prior date as may be notified in the notification imposing anti-dumping duty retrospectively, as contemplated by Section 9A(3). 8. The period of duration of anti-dumping duty is statutorily determined under Section 9A (5) to be five years from the date of imposition....
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....mping duty and the duration of five years of definitive anti-dumping duty is not affected by the limited duration of six months or nine months of the provisional anti-dumping duty. The period of five years of anti-dumping duty will have to be given its full play, in view of the provisions of Sections 9A(5) and it cannot get truncated by the second proviso to Rule 13. 8.1. The contention canvassed for the appellant that the period of five years duration of anti-dumping duty should be computed independent of the period of the provisional anti-dumping duty or that the interregnum period i.e. the period after the provisional anti-dumping ceased and before notification of definitive anti-dumping duty was issued, should be added beyond five years so as to make up full five years' duration of anti- dumping duty when the date of commencement of definitive duty is from the date of imposition of provisional anti-dumping duty, does not fit in the scheme of Section 9A, more particularly with the provisions of Section 9A(5), and no such distortion can be judicially imposed on the period of duration of five years from the commencement date, which has been statutorily contemplated under Sectio....
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.... after it ceased on the expiry of six or nine months, as the case may be, under the second proviso to Rule 13, especially when the investigation on the basis of provisional findings on margin of dumping and injury was being proceeded with, for reaching the final determinations and findings. It would he a clear licence to dump the products with impunity after the expiry of the fixed period of provisional anti-dumping duty till the final findings are given and definitive anti-dumping duty imposed, the outer limit of which could extend up to eighteen months from the date of initiation. It could not be the intention of the legislature that despite the determinations of margin of dumping and injury reached at the provisional findings which have come to be finally confirmed, there should be allowed a long period of freely injurious dumping so as to destroy the domestic industry for the protection of which the statutory provisions are enacted and the provisional anti-dumping duty was imposed. 9.1. Moreover, when the Act contemplated under Section 9A(3) retrospective imposition of final duty even during the period up to ninety days when there was no provisional anti-dumping duty, so tha....
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....al duty had been levied', occurring therein. No such attempt is warranted for bringing Rule 20(2)(a) in tune with Article 10.2 of WTO Agreement as suggested on behalf of the appellant, thereby denouncing the rationality of Indian law. Such distortion of Indian law, which is clear and purposeful, cannot be attempted on the proposition that international agreements should be honoured. 'That rule of comity cannot arm the courts to distort the provisions of the Act and the rules when there is no ambiguity and their wisdom, as demonstrated above, is evident for allowing the provisions to achieve their remedial effect by keeping at bay the mischief that was sought to be remedied. We, therefore, hold that Rule 20(2) is intra vires the provisions of the said Act and the anti-dumping duty has been validly imposed with effect from the date of imposition of the provisional anti-dumping duty and would continue to operate even during the 'interregnum period'. The challenge against the impugned notification, therefore, fails." 11. In Apollo Tyres Ltd. (cited supra), the Three Member Anti-Dumping. Bench has held as follows :- "33. It is argued on behalf of the appellants (producer/exporter)....
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....ority 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 that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the case of violation of price undertaking referred to In sub-rule (6) of Rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking: Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 21. Refund of duty. - (1)....
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....al finding by the Three Member Anti-Dumping Bench in these two cases that anti-dumping duty is leviable during the interregnum, we find that the wordings in paragraph 2 of the Definitive Anti-Dumping Duty Notification No. 138/2002 very clearly states that the anti- dumping duty imposed under the said Notification shall be levied with effect from the date of imposition of the anti-dumping duty i.e. 21st December, 2001. Hence, in the case of the impugned import which has taken place on 9-12-02, anti-dumping duty is clearly leviable, as provided under the Definitive Anti-Dumping Duty Notification issued on completion of the anti-dumping investigation even though such import has taken place during the interregnum. 13. The appellant has also contended that since the import has taken place from a supplier in Hong Kong, in terms of paragraph 2 of the Notification No. 138/2002, the anti-dumping duty for CFL with choke exported from Hong Kong, should be charged only with effect from the date of the Notification i.e. 10-12-02. We find no merit in such a submission. In the case of the appellant, the goods were of Chinese origin and hence, these satisfy the condition of 'originating in, or ....