2011 (12) TMI 497 - HC - Customs

Summary

Issues Involved:
1. Jurisdiction of the Central Government to impose final anti-dumping duty retrospectively.
2. Interpretation of Section 9A(2) and (3) of the Customs Tariff Act, 1975.
3. Validity of Rule 20(2)(a) of the Anti-dumping Rules.
4. Whether Rule 21(2) of the Anti-dumping Rules is ultra vires.
5. Validity of the notification dated 1 May 2003.

Detailed Analysis:

1. Jurisdiction of the Central Government to Impose Final Anti-dumping Duty Retrospectively:
The principal issue was whether the levy of a final anti-dumping duty would cover the entire period from the date of the issuance of the provisional anti-dumping duty. The Court held that the final anti-dumping duty can indeed cover the entire period from the date of the provisional duty. The Court emphasized that the clear meaning of Rule 20(2)(a) is to authorize the levy of the anti-dumping duty from the date of the imposition of provisional duty, provided the Designated Authority has recorded a final finding of injury or threat of injury. The Court rejected the respondents' argument that the duty cannot cover the gap period between the expiry of the provisional duty and the issuance of a final notification.

2. Interpretation of Section 9A(2) and (3) of the Customs Tariff Act, 1975:
Section 9A(2) empowers the Central Government to impose an anti-dumping duty on a provisional estimate pending final determination. The duty under this subsection is an interim measure. The Court noted that sub-section (3) of Section 9A authorizes the levy of an anti-dumping duty retrospectively, but not beyond ninety days from the date of the notification under sub-section (2). The Court clarified that the imposition of an anti-dumping duty following the final finding of the Designated Authority, effective from the date of the provisional duty, is not retrospective in nature.

3. Validity of Rule 20(2)(a) of the Anti-dumping Rules:
The Court upheld the validity of Rule 20(2)(a), which allows the anti-dumping duty to be levied from the date of imposition of provisional duty. The Court reasoned that this interpretation prevents a break in the duty period and ensures that imports during the gap period are subject to anti-dumping duty, thus protecting the domestic industry from injury. The Court dismissed the respondents' contention that the word "levied" in Rule 20(2)(a) should mean both imposed and collected.

4. Whether Rule 21(2) of the Anti-dumping Rules is Ultra Vires:
The Court found that sub-rule (2) of Rule 21, which provides for the refund of duty if the final anti-dumping duty is lower than the provisional duty, is not ultra vires the provisions of Section 9A(1). The Court emphasized that Rule 21 carefully uses the term "provisional duty already imposed and collected," which is distinct from the language in Rule 20(2)(a).

5. Validity of the Notification Dated 1 May 2003:
The Court upheld the validity of the notification dated 1 May 2003, which imposed a final anti-dumping duty from the date of the provisional duty. The Court concluded that the notification is not ultra vires the provisions of Section 9A(1). The Court dismissed the Writ Petitions challenging the notification and the Anti-dumping Rules.

Conclusion:
The appeals by the Revenue were allowed, and the first, third, and fourth questions of law were answered in the negative. The second question was not pressed. The fifth question was answered in terms of the decision on the first question. The Writ Petitions were dismissed, and there was no order as to costs.