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TMI Blog2008 (4) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ef facts of the case are that the Central Government imposed anti-dumping duty on Compact fluorescent Lamps (CR) originating in or exported from China under Notification No. 128/2001-Cus. dated 21-12-2001. Imposition of anti-dumping duty was made on a provisional basis pending final determination and such provisional duty was effective upto and inclusive of 20-6-2002. The Notification provided for separate anti-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 fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of provisional anti-dumping duty for a period of six months on a preliminary determination of dumping and injury and there is a mandate under both to complete the anti-dumping investigation within a period of 1248 months for determining the definitive anti-dumping duty and review of the anti-dumping duty after five years from the date of initial imposition. The provisional duty in this case has been imposed on 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.); ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Member Anti-Dumping Bench in the case of Apollo Tyres (supra) rendered on 9-9-2005 and in the case of NITCO Tiles (supra) rendered on 25-11-2005. As such, these decisions of the Bangalore Bench of the Tribunal cannot have any pursuasive value in preference to the decisions of the Three Member Anti-Dumping Bench. The decision of the Mumbai Bench in the case of C.J. Shah Co. (supra) is only an Interlocutary Order on a Stay Petition which follows the decision of the 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect. Strangely, we do not find the Referral Order questioning the correctness of the decisions rendered by the Three Member Anti-Dumping Bench in the case of NITCO and Apollo Tyres (cited supra), apart from the fact that in the case of RSWM v. C.C.Ex,, Jaipur-II - 2008 (223) E.L.T. 481 (Tri.- Del.), it has been held that merely because a matter has been referred to a Larger Bench on the ground that the Referral Bench did not agree with the earlier co-ordinate Bench, the binding effect of the coordinate Bench does not cease. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omes into force from the date of the imposition of the provisional anti-dumping duty. Even where provisional anti-dumping duty remains in force only for six months or nine months, as the case may be and the anti-dumping duty is definitively imposed thereafter, the date of commencement of the definitive anti-dumping duty has to be the date of imposition of the provisional anti-dumping 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 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 cease ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased, the definitive anti-dumping, duty that has commenced will have its full play and the contention that the statute did not envisage definitive anti-dumping duty to operate in the inter regnum period flies in the face of the firm duration and continuity of duty contemplated under Section 9A(5) of the Act. Furthermore, there is no rationale behind halting the operation of the statutory duty that is brought into force from the date of its commencement under Section 9A(5), during the period that the provisional anti-dumping duty did not operate 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 despit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imposition of provisional anti-dumping duty should develop a breach, of the nature suggested, in its continuity. The contentions canvassed on behalf of the appellants suggesting that the impost will get paralyzed during interregnum period are, therefore, misconceived contrary to the statutory provisions. There is, therefore, no scope for transplanting the phrase, 'period for which provisional measures have been applied' of Article 10.2 of the WTO Agreement into Rule 20(2)(a) of the said rules so as to substitute the expression 'where a provisional 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 mischie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power of the Parliament to make retrospective legislation, including taxing laws. 33.1. Rules 20 and 21 relevant in the context of this discussion are reproduced hereunder '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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Central Government under Rule 18. There is, therefore, no scope for creating a hiatus in the retrospectively of the anti-dumping duty in respect of the interregnum period. The contention that the impugned notification is bad to the extent it is made retrospective from the date of imposition of the provisional duty, as it applied also to the interregnum period i.e. the period after provisional duty lapsed on expiry of six months from the date of notification under Rule 18, is therefore, misconceived." 12. Apart from the categorical 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 investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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