2005 (11) TMI 106 - AT - Customs

Summary

Issues Involved:
1. Retrospective Imposition of Anti-Dumping Duty.
2. Validity of Notification Issued Under Section 9A(1) of the Customs Tariff Act.
3. Interpretation of Rule 20(2)(a) of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duties on Dumped Articles and for Determination of Injury) Rules, 1995.
4. Compliance with WTO Agreement.

Issue-wise Detailed Analysis:

1. Retrospective Imposition of Anti-Dumping Duty:

The appellant-importer challenged the retrospective imposition of anti-dumping duty by the notification dated 1-5-2003, arguing that the duty should only have prospective effect. The provisional duties levied on 2-5-2002 expired on 1-11-2002, and no provisional duties were in force from 2-11-2002 to 30-4-2003. The appellant contended that the final duty could not be levied retrospectively for the period when no provisional duty was in force, invoking Rule 21(1) which prevents the collection of differences between higher final duty and lower or zero provisional duty for such periods.

2. Validity of Notification Issued Under Section 9A(1) of the Customs Tariff Act:

The appellant argued that the notification imposing retrospective duties was ultra vires Section 9A(1) of the Customs Tariff Act, 1975, as there were no express words or necessary implication authorizing retrospective imposition of duties. The appellant emphasized that Parliament did not confer power on the Central Government to impose duties retrospectively for past transactions, and such imposition was not supported by Section 9A(3), which limits retrospective duties to ninety days prior to the imposition of provisional duties.

3. Interpretation of Rule 20(2)(a) of the Customs Tariff Rules:

The appellant contended that Rule 20(2)(a) should be interpreted in light of Article 10.2 of the WTO Agreement, which stipulates that final duty may be levied only for periods during which provisional measures were applied. The appellant argued that the phrase "where a provisional duty has been levied" in Rule 20(2)(a) should be construed to mean the period for which provisional measures were applied, aligning with WTO commitments.

The respondent, relying on the Tribunal's decision in Apollo Tyres Ltd. v. Union of India, argued that Rule 20(2)(a) allows for the retrospective imposition of final duties from the date of provisional duty imposition, even covering the interregnum period. The Tribunal upheld this interpretation, emphasizing that the definitive anti-dumping duty should cover the period of provisional duty to prevent injurious dumping during the investigation.

4. Compliance with WTO Agreement:

The appellant argued that the notification was inconsistent with India's commitments under the WTO Agreement, particularly Article 10.2, which limits the retrospective imposition of duties to periods of provisional measures. The Tribunal, however, found that the Indian law, as expressed in Rule 20(2)(a), was clear and purposeful, and there was no need to align it strictly with the WTO Agreement in a manner that would distort its intended effect.

Final Order:

The Tribunal concluded that Rule 20(2)(a) of the Customs Tariff Rules is intra vires the Customs Tariff Act, and the retrospective imposition of anti-dumping duty from the date of provisional duty imposition is valid. The appeal was dismissed, affirming the retrospective effect of the anti-dumping duty as notified on 1-5-2003, covering the interregnum period from 2-11-2002 to 30-4-2003. The Tribunal emphasized the importance of maintaining the continuity of anti-dumping duties to prevent injurious dumping and uphold the remedial intent of the legislation.