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2008 (4) TMI 53 - AT - CustomsAppellant imported CFL with choke of Chinese origin from a supplier in Hong Kong on 9.12.02 - whether the anti-dumping duty is payable on such imports made during the interregnum, i.e., between 21-6-2002 and 9-12-2002, after the provisional duty lapsed but before the definitive duty was notified Held, yes in view of not. 138/02 ADD shall be levied w.e.f. the date of imposition of ADD i.e. 21.12.01 Mumbai Division Bench is bound by decision of Anti dumping Bench of 3 members
Issues Involved:
1. Imposition of anti-dumping duty on Compact Fluorescent Lamps (CFL) during the interregnum period. 2. Applicability of anti-dumping duty on CFL with choke originating in China but exported from Hong Kong. 3. Quantum of anti-dumping duty and the appellant's ability to pay. Detailed Analysis: 1. Imposition of Anti-Dumping Duty During the Interregnum Period: The main issue in dispute is whether anti-dumping duty is payable on imports made during the interregnum (between 21-6-2002 and 9-12-2002) after the provisional duty lapsed but before the definitive duty was notified. The Tribunal noted that this issue has been previously addressed by different Benches but not by any High Court or the Supreme Court. The Tribunal emphasized that anti-dumping duty is more of a trade remedy measure than a revenue measure, designed to prevent unfair trade practices and protect domestic industries. The WTO Agreement and Indian law provide for provisional anti-dumping duty for six months and mandate the completion of the anti-dumping investigation within 18 months for determining the definitive duty. The Tribunal referred to previous decisions, particularly those by the Three Member Anti-Dumping Bench, which held that anti-dumping duty is leviable during the interregnum. The decisions in NITCO Tiles Ltd. and Apollo Tyres Ltd. established that the definitive anti-dumping duty should be levied from the date of imposition of the provisional duty, even during the interregnum period. The Tribunal found that decisions by the Bangalore and Mumbai Benches, which held that no anti-dumping duty is payable during the interregnum, were taken without considering the Three Member Bench's decisions and thus lacked persuasive value. The Tribunal concluded that the anti-dumping duty is indeed payable during the interregnum, aligning with the Three Member Bench's decisions and the statutory provisions under Section 9A of the Customs Tariff Act. 2. Applicability of Anti-Dumping Duty on CFL with Choke Originating in China but Exported from Hong Kong: The appellant contended that since the import was from a supplier in Hong Kong, the anti-dumping duty should be charged only from the date of Notification No. 138/2002 (10-12-2002). However, the Tribunal found no merit in this argument, noting that the goods were of Chinese origin and thus satisfied the condition of "originating in, or exported from China," regardless of their re-export from Hong Kong. The Tribunal held that the anti-dumping duty for CFL with choke originating in or exported from China was leviable from 21-12-2001, making the impugned import subject to the anti-dumping duty notified under Notification No. 138/2002. 3. Quantum of Anti-Dumping Duty and the Appellant's Ability to Pay: The appellant argued that the quantum of anti-dumping duty was very high and unaffordable. The Tribunal noted that the purpose of provisional anti-dumping duty is to alert exporters and importers about ongoing anti-dumping investigations and the potential for definitive duty on final determination. The Tribunal emphasized that the aim of anti-dumping duty is to remove the injury caused by dumped imports. Since there was no challenge to the determination of dumping and injury margins or the quantification of the anti-dumping duty, the plea that the duty was excessive and unaffordable could not be a basis for not demanding it from the imports. Conclusion: The Tribunal dismissed the appeal, confirming the demand for anti-dumping duty on the impugned import and disposed of the Stay Petition. The judgment upheld the imposition of anti-dumping duty during the interregnum period and clarified the applicability of the duty on goods originating in China but exported from Hong Kong.
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