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2026 (3) TMI 518
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....efore arises for consideration in the present Appeal relates to the levy of Anti-dumping Duty as upheld by the appellate authority and fastened upon the appellant-importer, while finalizing the Bill of Entry No.3702906 dated 04.06.2011 for import of PVC Flex Banner (CTH-39204900). The same was sought to be levied while assessing the imported goods, in terms of the provisions of Section 18(2) of the Customs Act, 1962 [The Act] The Revenue took recourse to Notification No.82/2011-CUS dated 25.08.2011, towards realization of Anti-dumping Duty (ADD) for an amount of Rs.8,77,199/- (Rupees Eight Lakh Seventy Seven Thousand One Hundred and Ninty Nine). The learned assessing authority also sought to recover interest amount of Rs.6,17,299/- (Rupees Six Lakh Seventeen Thousand Two Hundred and Ninty Nine) in terms of provisions of Section 18(3) of the Act [The Act]. 4. The facts of the case are that the appellant had imported PVC Flex Banner from China vide the aforesaid Bill of Entry dated 04.06.2011. While allowing clearance of the said goods, the authorities resorted to provisional assessment under Section 18(1) of the Act. The appellant submits that on the day of import (i.e. 04.06.201....
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....st question that would therefore arise for consideration in the matter would accordingly be whether there existed any charge of Anti-dumping Duty leviable at the material time i.e. to say whether ADD could be levied on imports of PVC Flex Banner made during the interregnum or the gap period i.e. from 30.01.2011 - (a date after the lapse of the provisional ADD) to 24.08.2011 (a date prior to the issuance of Notification, retrospectively levying definitive ADD for a period of five years on the subject goods). 7. As a sequel to the above question for determination would also arise the need for examination of the law point as to whether the said ADD was still leviable on subject imports, as the said imports were cleared on a provisional basis at the time of import and the Bill of Entry for import thereof was pending finalization when the final notification for levy of ADD Notification No.82/2011 dated 25.08.2011 was promulgated levying the said ADD retrospectively, for a period of five years, as Clause (4) of Notification Cus-82/2011 dated 25.08.2011, levying the said ADD however read as: "The anti-dumping duty imposed should be levied for a period of five years (unless rev....
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....e date on which the Finance Bill, 2025 receives the assent of the President, the said period of two years shall be reckoned from the date on which the said Finance Bill receives the assent of the President. (1C) Where the proper officer is unable to assess the duty finally within the time specified under sub-section (1B) for the reason that - (a) an information is being sought from an authority outside India through a legal process; or (b) an appeal in a similar matter of the same person or any other person is pending before the Appellate Tribunal or the High Court or the Supreme Court; or (c) an interim order of stay has been issued by the Appellate Tribunal or the High Court or the Supreme Court; or (d) the Board has, in a similar matter, issued specific direction or order to keep such matter pending; or (e) the importer or exporter has a pending application before the Settlement Commission or the Interim Board, the proper officer shall inform the importer or exporter concerned, the reason for non-finalisation of the provisional assessment and in such case, the time specified in sub-section (1B) shall apply not from t....
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.... (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75.] (ii) Customs Tariff Act, 1975 (1) SECTION 9A. Anti-dumping duty on dumped articles. - (1) Where [any article is exported by an exporter or producer] from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation. For the purposes - of this section, - (a). "margin of dumping", in relation to an article, means the difference between its export price and its normal value; "export price", in (b) relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no ....
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....bled form or by changing the country of its origin or export or in any other manner, whereby the anti-dumping duty so imposed is rendered ineffective, it may extend the anti-dumping duty to such article or an article originating in or exported from such country, as the case may be [, from such date, not earlier than the date of initiation of the inquiry, as the Central Government may, by notification in the Official Gazette, specify].] [(1B) Where the Central Government, on such inquiry as it may consider necessary, is of the opinion that absorption of anti-dumping duty imposed under sub-section (1) has taken place whereby the anti-dumping duty so imposed is rendered ineffective, it may modify such duty to counter the effect of such absorption, from such date, not earlier than the date of initiation of the inquiry, as the Central Government may, by notification in the Official Gazette, specify. Explanation. - For the purposes of this sub-section, "absorption of antidumping duty" is said to have taken place,- (a) if there is a decrease in the export price of an article without any commensurate change in the cost of production of such article or export pric....
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....aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the anti-dumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy antidumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition....
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....sment, non-levy, short-levy, refunds, exemptions, interest, recovery, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act or all rules or regulations made thereunder, as the case may be.] (2) SECTION 9C. Appeal. - ^2[1] An appeal against the order of determination or review thereof shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal), in respect of the existence, degree and effect of - (i) any subsidy or dumping in relation to import of any article; or (ii) import of any article into India in such increased quantities and under such condition so as to cause or threatening to cause serious injury to domestic industry requiring imposition of safeguard duty in relation to import of that article.] ^1 (1A) An appeal under sub-section (1) shall be accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the Appellate Tribunal, - (a) in an appeal under sub-section (....
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....les, 1985, except as respect things done or omitted to be done before such supersession, the Central Government hereby makes the following rules, namely :- RULE 1. Short title and commencement. - (1) These rules may be called the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. (2) They shall come into force on the 1^st day of January, 1995 ....................... RULE [4. Duties of the designated authority. - It shall be the duty of the designated authority, in accordance with these rules, - (a) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; (b) to identify the article liable for anti-dumping duty; I to submit its findings, provisional or otherwise to the Central Government as to - (i) normal value, export price and the margin of dumping in relation to the article under investigation; and (ii) 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....
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....duced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. [(3A) The period of investigation shall, - • not be more than six months old as on the date of initiation of investigation; (ii) be for a period of twelve months normally and for reasons to be recorded in writing, the designated authority may consider a minimum of six months or maximum of eighteen months.] (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo motu if it is satisfied from the information received from the [Principal Commissioner of Customs or Commissioner of Customs, as the case may be,] appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting country before proceeding to initiate an investigation. ............................... RULE 11. Determination of injury. - (1) In the case of imports from specified countries....
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....recording its preliminary findings. RULE 13. Levy of provisional duty. - The Central Government may, on the basis of the preliminary findings recorded by the designated authority, impose a provisional duty not exceeding the margin of dumping : Provided that no such duty shall be imposed before the expiry of sixty days from the date of the public notice issued by the designated authority regarding its decision to initiate investigations : Provided further that such duty shall remain in force only for a period not exceeding six months which may upon request of the exporters representing a significant percentage of the trade involved be extended by the Central Government to nine months. RULE 14. Termination of investigation. - The designated authority shall, by issue of a public notice, terminate an investigation immediately if - (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the conti....
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.... authority has accepted any undertaking under sub-rule (1), it may require the exporter from whom such undertaking has been accepted to provide from time to time information relevant to the fulfilment of the undertaking and to permit verification of relevant data : [Provided that in case of any violation of an undertaking, the designated authority shall, as soon as may be possible, inform the Central Government of the violation of the undertaking and recommend imposition of provisional duty from the date of such violation in accordance with the provisions of these rules.] (7) The designated authority shall, suo motu or on the basis of any request received from exporters or importers of the article in question or any other interested party, review from time to time the need for the continuance of any undertaking given earlier. RULE 16. Disclosure of information. - The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. RULE 17. Final findings. - (1) The designated authority shall, within one year from the date of initiation of an invest....
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....Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned : Provided further that the designated authority shall, determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. RULE 18. Levy of duty. - (1) Th....
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....nated authority under rule 17, withdraw the provisional duty imposed, if any. RULE 19. Imposition of duty on non-discriminatory basis. - Any provisional duty imposed under rule 13 or an anti-dumping duty imposed under rule 18 shall be on a non-discriminatory basis and applicable to all imports of such articles, from whatever sources found dumped and, where applicable, causing injury to domestic industry except in the case of imports from those sources from which undertaking in terms of rule 15 has been accepted. RULE 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 imposition of provisional duty; (b) in t....
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....ikely to lead to continuation or recurrence of dumping and injury to the domestic industry.] (2) Any review initiated under [sub-rule (1A) or (1B)] shall be concluded within a period not exceeding twelve months from the date of initiation of such review. [Provided that notwithstanding anything contained in rule 17, such review shall be completed at least three months prior to expiry of the anti-dumping duty under review.] Subject to [(3) sub-rule (2), the provisions of rules 6,7, 8, 9, 10, 11, 16, 17, 18, 19 and 20 shall apply mutatis mutandis in the case of review.] (iv) Customs (Finalisation of Provisional Assessment) Regulations, 2018 Regulation 5. Time-limit for finalisation of provisional assessment. - (1) The proper officer shall finalise the provisional assessment within two months of receipt of : (a) an intimation from the importer or the exporter or his authorised representative or Customs Broker under sub-regulation (7) of regulation 4; or (b) a chemical or other test report, where the provisional assessment was ordered for that reason; or (c) an enquiry or investigation or verification repor....
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....ect country; (iv) domestic industry was materially retarded due to the increased imports from the subject country in the domestic market; and had recommended imposition of provisional anti-dumping duty on the imports of subject goods, originating in, or exported from, the subject country; Now, therefore, in exercise of the powers conferred by sub-section (2) of section 9A of the said Customs Tariff Act read with rules 13 and 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, on the basis of the aforesaid findings of the designated authority, hereby imposes on the goods, the description of which is specified in column (3) of the Table below, falling under sub-heading of the First Schedule to the said Customs Tariff Act specified in the corresponding entry in column (2),originating in the country specified in the corresponding entry in column (4), and exported from the country specified in the corresponding entry in column (5) and produced by the producer specified in the corresponding entry in column (6) and exported by the exporte....
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.... China People's Republic of China Zhejiang Ganglong New Material Co., Ltd. Zhejiang Ganglong New Material Co. Ltd. 0.374 Kg US Dollar 7. 3920 10 19 or 3920 10 12 or 49 00 or 90 26 or 3921 90 29 or 3926 90 99 or 3919 90 90 or 3918 10 90 or 3918 90 90 or 3926 90 80 'PVC Flex Film' People's Republic of China People's Republic of China Heytex Technical Textiles (Zhangjiaga Heytex Technical Textiles (Zhangjiagang) 0.143 Kg US Dollar 8. 3920 10 19 or 3920 10 12 or 49 00 or 90 26 or 3921 90 29 or 3926 90 99 or 3919 90 90 or 3918 10 90 or 3918 90 90 or 3926 90 80 'PVC Flex Film' People's Republic of China People's Republic of China Zhejiang Tianchang Plastic Fabric Co., Ltd. Zhejiang Tian- chang Plastic Fabric Co., Ltd. 0.450 Kg US Dollar 9. 3920 10 19 or 3920 10 12 or 49 00 or 90 26 or 3921 90 29 or 3926 90 99 or 3919 90 90 or 3918 10 90 or 3918 90 90 or 3926 90 80 'PVC Flex Film' People's Republic of China People's Republic of China Cixi Linyun Plastics Wart CO. Ltd. Cixi Linyun Plastics Wart CO. Ltd. 0.340 Kg US Dollar 10. 3920 10 19 or 3920 10 12 or 49 00 or 90 26 or 3921 9....
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.... 39) G.S.R. (E). Whereas, in the matter of import of PVC Flex Films (hereinafter referred to as the subject goods), falling under Chapter 39 of the First Schedule to the Customs Tariff Act, 1975 (51 of 1975), originating in, or exported from, People's Republic of China (hereinafter referred to as the subject country), the designated authority in its preliminary findings, vide, notification No. 14/4/2010-DGAD, dated the 22nd June, 2010, published in the Gazette of India, Extraordinary, Part I, Section 1, dated the 22nd June, 2010, had recommended imposition of provisional antidumping duty on the imports of subject goods, originating in or exported from the subject country; And whereas, on the basis of the aforesaid findings of the designated authority, the Central Government had imposed provisional anti-dumping duty on the subject goods, vide notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 79/2010-Customs, dated the 30th July, 2010, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide number G.S.R.646(E), dated the 30th July, 2010; And whereas the designated authority vid....
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.... of Export Producer Exporter Amo-unt Unit of Measurement Currency (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) 1. 3920 10 19, 3920 10 12, 3920 49 00, 3921 90 26, 3921 90 29, 3926 90 99, 3919 90 90, 3918 10 90 and 3918 90 90 PVC Flex Film China PR China PR Heytex Technical Textiles (Zhangjiagang) Co. Ltd., China Heytex Technical Textiles (Zhangjiagang) Co. Ltd., China 0.034 Kg US Dollar 2. 3920 10 19, 3920 10 12, 3920 49 00, 3921 90 26, 3921 90 29, 3926 90 99, 3919 90 90, 3918 10 90 and 3918 90 90 PVC Flex Film China PR China PR Zhejiang Yuli Plastic Co. Ltd. Zhejiang Yuli Plastic Co. Ltd. 0.441 Kg US Dollar 3. 3920 10 19, 3920 10 12, 3920 49 00, 3921 90 26, 3921 90 29, 3926 90 99, 3919 90 90, 3918 10 90 and 3918 90 90 PVC Flex Film China PR China PR Any Combination of producer and exporter other than Sl. No. 1 and 2 0.538 Kg US Dollar 3. 4. 3920 10 19, 3920 10 12, 3920 49 00, 3921 90 26, 3921 90 29, 3926 90 99, 3919 90 90, 3918 10 90 and 3918 90 90 PVC Flex Film China PR Any country other than China PR Any Any 0.538 Kg US D....
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....ter, it would be apt to clarify the legal position, as existed at the material time, with regard to delayed finalization of the provisional. The Customs (Finalization of Provisional Assessment) Regulations 2018, were notified on 14.08.2018, vide Notification No.73/2018-CUS(NT). Thus while the delay in finalization of the subject imports would genuinely be a matter of grave concern, it cannot be legally faulted upon, as at the material point in time there was no strict timeline stipulation for finalisation of provisional assessments, nor were any consequences attached to such lack of timely action. We also note that this aspect of the matter was also dealt upon by the adjudicating authority in part (b) of Para 14 of his order wherein it is specifically observed as under : "Only after repeated communication by the Assistant Commissioner of Customs, Appraising Group-II dated 06.07.2021, 25.08.2021 that the importer responded to the enquiries vide reply dt.31.08.2021. Subsequently, finalisation order No.KOL/CUS/AC/240/ADJ(PORT)/(GR.II) dt 05.04.2022 was passed by Assistant Commissioner of Customs, Appraising Group-II to recover the Anti dumping duty alongwith interest and subs....
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....tigations. And second, such duty cannot remain in force for a period of more than six months, which is only extendable on request made by the foreign exporters who represent a significant percentage of the trade involved, to a maximum period of 9 months. The important words used in the second proviso are "shall", "only", and "not exceeding", all of which point to the fact that the time period mentioned in the said proviso is mandatory and cannot be exceeded by even a single day. 32. Under Rule 17, the designated authority is given one year from the date of initiation of an investigation to come out with its final findings. This is extendable by the Central Government only in special circumstances, and only by a further period of 6 months, and no more (Clause 5.10 of the WTO Agreement). Significantly, the designated authority, in its final finding, may also provide for a retrospective levy of duty, the reasons therefor, and the date of commencement of such retrospective levy. This is obviously referable to Section 9A(3), which reproduces clause 10.6 of the WTO Agreement. The reasons must be the reasons mentioned in the said sub-section, and, as mentioned in the said sub-sec....
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....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 Investigations" by Judith Czako, Johann Human and Jorge Miranda. The learned authors state : "L. RETROACTIVE COLLECTION OF DEFINITIVE DUTIES The normal rule for application of definitive duties, set out in Article 10.1 of the AD Agreement, is that duties shall only be collected on imports made ("entered for consumption") after the effective date of the final determination. Articles 10.2 and 10.6 establish two exceptions to this general rule, providing for the retroactive collection of definitive 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 provisi....
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....munity Council Regulation No. 1225 of 2009 dated 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 in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry." 38. It will be seen from this that an inflexible ....
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.... be done. We find therefore that on all these counts, the arguments of revenue cannot be countenanced." 13. As can be noticed from the hon'ble Apex Court's order supra, it has been categorically held that any ADD levied by a final anti-dumping duty notification during the interregnum period or the gap period would certainly amount to a retrospective levy of duty. Provisions for retrospective levy are specifically enumerated and provided for in the ADD Rules ibid and can be acted upon only in the given circumstances as contained in law. The hon'ble Apex Court in its decision had noted that such retrospective levy of ADD would render sub-rule 20 (2)(a) of the ADD Rules ultra vires of Section 9A of the Tariff Act2. It was held by the apex court that a construction, "which is both in consonance with international law and treaty obligations, which Article 51(C) of the Constitution of India states as a directive principle of a state policy; and with the application of the doctrine of harmonious construction is to be preferred to a narrow doctrine are meaning, which would lead to the Rule being read in such a manner that it is ultra vires the present Statute". The apex court in its ord....
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....ically held that in terms of Rule 21(1) of the ADD Rules, the importer was not liable to make any payment thereof. 16. The law as propounded by the Hon'ble Gujarat High Court in the case of Perfect Importers And Distributors (I) Pvt.Ltd. v. Union of India [2023 (383) E.L.T. 499 (Guj.)] also can be adverted to in this regard, to point out that the ADD imposed with respect to imports made during the period was not sustainable. 17. The hon'ble Delhi High Court in the case of Forech India Ltd. v. Designated Authority [2018 (361) ELT 671 (Del.)] was very categorical in holding that Rule 18(1) of the ADD Rules^3 cannot be read to lend any authority or power to the Central Government to issue Customs Notification when the continuity of previous duty or its modified version had suffered a break and/or discontinuance. Laying down the law, while examining a case of continuation of the levy post its expiry, in sunset review investigations, the hon'ble Court had held the notification so issued as non-est. Following paras of the said order are of relevance : "20. Applying the said principle to the facts of the present case, it is seen that the Notification No. 17/2013 issued 60 d....
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....e of levy would be to the extent necessary to offset the injury. In other words, there would have to be a duty in existence for it to be extended. In the present case there was cessation of duty on 5-5-2013 and again on 5-5-2014, therefore, there was no duty on two dates which could have been extended. 22. The protective regime of Anti-dumping duty is to provide a level playing field to the Domestic Industry from the injurious effects of dumped goods upon the Domestic Industry. Such protection is to be continued till such time that the Government deems it necessary (by assessing data every five years or in a Mid-Term Review) for enabling the Domestic Industry to compete against unfair international trade practices. The moment the protection comes to an end or is allowed to lapse, the hitherto protected Domestic Industry is exposed to the dynamic forces and full impact of unrestrained international trade. The nature and extent of the injury from dumped goods to the Domestic Industry, would be different and indeed to a greater degree in an unprotected regime vis-à-vis a regime of Anti-dumping duty levy. Such levy is imposed to the extent that it offsets the injury. Th....
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....override the Act. The Act has fixed a period for completion of Sunset Review within one year from the date of expiry of the initial five year levy and it is in this one year period that the Government must form a view that the cessation of duty would lead to continuation or recurrence of dumping and injury. Therefore, it is only within this period that it may extend i.e. without breaking the continuity of the previous duty or its modified version, for a further period of five years. The thread of the existing duty has to continue from the initial five year levy to the one year extended period of Sunset Review to the proposed five year period. There should be no break in between. However, in the present case, there are two breaks. Therefore, Rule 18(1) does not and cannot be read to lend any authority or power to the Central Government to issue Customs Notification No. 35/2014. It is illegal and, accordingly, set aside. The period of three months under Rule 18(1) can be read only in the case of original notification for Antidumping duty and not for the Sunset Review." This ratio in law has been adopted in a series of cases. 18. In the case of Saint Gobain India Pvt.Ltd. v. Uni....
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....mping Duty and having specific regard to levy of provisional duty, noted with regard to sub-rule b thereof, that it specifically deals with a retrospective levy which is leviable only in accordance with the prescriptions of section 9A(3) of the Tariff Act2. Analyzing the legal position, the apex court in its order in Para 36 held that the objectives sought to be achieved by the law, acting in tandem with the WTO agreement, there can be no levy of ADD during the 'gap' period, i.e. period of lapse between provisional duty and imposition of final duty. It had noted that Clause 10.2 of the WTO agreement was reproduced in the same sense though not in the same form in sub-rule 2(a) of Rule 20 of the ADD Rules. 24. The Revenue has further raised a preliminary argument, in the matter, as to the competency of this Bench to take up the present appeal for consideration, stating that being an Anti-dumping matter, it is required to be considered by a Special Bench constituted by the Hon'ble President and the two other Hon'ble Members of the Tribunal, as specified under section 9C(5) of the Tariff Act2. It may be worthwhile to point out that section 9C of the Tariff Act2 does provide for cons....