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TMI Blog2018 (12) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms (ADD) issued by the respondent No.1. 3. It was found that exporters of a particular Country were flooding domestic markets with goods at rate much lower than the rates at which these exporters normally sell the same in their own Country and also much lesser than the rates at which the manufacturers of the country to which such goods shall be exported were able to sell. This was resulting in a heavy loss/injury to the domestic market. The Imposition of Anti Dumping Duty was a result of General Agreement on Tariffs & Trade (herein after referred to as GATT) to which India is a party. GATT recognized the injury caused by this dumping of goods by the exporters of the Country and sought to remedy the injury. Purpose of GATT was to balance the rights of the exporters from other Countries and at the same time protect the interest of the domestic markets. The decision of GATT translated with the introduction of Section 9A in the Customs Tariff Act, 1975. 4. Section 9 A of the Customs Tariff Act,1975 reads as under:- "Where any article is exported from any country or territory (hereinafter in this section referred to as the exporting country or territory) to India at less than it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... destruction has taken place, prices are again raised. The purpose of Section 9A is, therefore, to maintain a level-playing field and prevent dumping, while allowing for healthy competition. The purpose is not protectionism in the classical sense (as proposed by the German economist Friedrich List in his famous book `National System of Political Economy' published in 1841) but to prevent unfair trade practices. The 1995 Amendment to Section 9A was apparently made in pursuance to Article VI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) which permitted anti-dumping measures as an instrument of fair competition. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local 8 customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run." 7. The procedure for levying Anti Dumping Duty has been framed under the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation suo moto if it is satisfied from the information received from the Commissioner of Customs 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, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. (2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding - (a) as to, - (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury 13 to any industry established in India or materially retards the establishment of any industry in India; (iii) a casual link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy: Provided that the Central Government may, 5 in its discretion in special circumstances extend further the aforesaid period of one year by six months: Provided further that in those cases where the designated authority has suspended the investigation on the acceptance of a price undertaking as provided in rule 15 and subsequently resumes the same on violation of the terms of the said undertaking, the period for which investigation was kept under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.7 (2) In cases where the designated authority has selected percentage of the volume of the exports from a particular country, as referred to sub-rule (3) of rule 17, any anti-dumping duty applied to imports from exporters or producers not included in the examination shall not exceed - (i) the weighted average margin of dumping established with respect to the selected exporters or producers or, (ii) where the liability for payment of anti-dumping duties is calculated on the basis of a prospective normal value/ the difference between the weighted average normal value of the selected exporters or producers and the export prices of exporters or producers not individually examined: Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation received by it that there is no justification for the continued imposition of such duty recommend to the Central Government for its withdrawal. (2) Any review initiated under sub-rule (1) shall be concluded within a period not exceeding twelve months from the date of initiation of such review. (3) The provisions of rules 6, 7, 8, 9/10, 11, 16, 17, 18, 19, and 20 shall be mutatis mutandis applicable in the case of review. 8. It is also relevant to extract various Clauses of the Agreement on Implementation of the General Agreement on Tariffs and Trade, 1994. Article 3 Determination of Injury 3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, and (b) the consequent impact of these imports on domestic producers of such products. 3.2 With regard to the volume of the dumped imports, the investigating authorities shall consider whether there has been a significant increase in dumped imports, either in absolute terms or relative to production or consump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 demonstration of a causal relationship between the dumped imports and the injury to the domestic industry shall be based on an examination of all relevant evidence before the authorities. The authorities shall also examine any known factors other than the dumped imports which at the same time are injuring the domestic industry, and the injuries caused by 20 these other factors must not be attributed to the dumped imports. Factors which may be relevant in this respect include, inter alia, the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, trade restrictive practices of and competition between the foreign and domestic producers, developments in technology and the export performance and productivity of the domestic industry. 3.6 The effect of the dumped imports shall be assessed in relation to the domestic production of the like product when available data permit the separate identification of that production on the basis of such criteria as the production process, producers' sales and profits. If such separate identification of that production is not possible, the effects of the dumped imports shall be ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reasonably available to the applicant on the following: (i) the identity of the applicant and a description of the volume and value of the domestic production of the like product by the applicant. Where a written application is made on behalf of the domestic industry, the application shall identify the industry on behalf of which the application is made by a list of all known domestic producers of the like product (or associations of domestic producers of the like product) and, to the extent possible, a description of the volume and value of domestic production of the like product accounted for by such producers; (ii) a complete description of the allegedly dumped product, the names of the country or countries of origin or export in question, the identity of each known exporter or foreign producer and a list of known persons importing the product in question; (iii) information on prices at which the product in question is sold when destined for consumption in the domestic markets of the country or countries of origin or export (or, where appropriate, information on the prices at which the product is sold from the country or countries of origin or export to a third country or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink, as described in paragraph 2, to justify the initiation of an investigation. 5.7 The evidence of both dumping and injury shall be considered simultaneously (a) in the decision whether or not to initiate an investigation, and (b) thereafter, during the course of the investigation, starting on a date not later than the earliest date on which in accordance with the provisions of this Agreement provisional measures may be applied. 5.8 An application under paragraph 1 shall be rejected and an investigation shall be terminated promptly as soon as the authorities concerned are satisfied that there is not sufficient evidence of either dumping or of injury to justify proceeding with the case. There shall be immediate termination in cases where the authorities determine that the margin of dumping is de minimis, or that the volume of dumped imports, actual or potential, or the injury, is negligible. The margin of dumping shall be considered to be de minimis if this margin is less than 2 per cent, expressed as a percentage of the export price. The volume of dumped imports shall normally be regarded as 25 negligible if the volume of dumped imports from a particular country is found to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial to that party's case. Interested parties shall also have the right, on justification, to present other information orally. 6.3 Oral information provided under paragraph 2 shall be taken into account by the authorities only in so far as it is subsequently reproduced in writing and made available to other interested parties, as provided for in subparagraph 1.2. 6.4 The authorities shall whenever practicable provide timely opportunities for all interested parties to see all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti- 27 dumping investigation, and to prepare presentations on the basis of this information. 6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests. 6.10 The authorities shall, as a rule, determine an individual margin of dumping for each known exporter or producer concerned of 29 the product under investigation. In cases where the number of exporters, producers, importers or types of products involved is so large as to make such a determination impracticable, the authorities may limit their examination either to a reasonable number of interested parties or products by using samples which are statistically valid on the basis of information available to the authorities at the time of the selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated. 6.10.1 Any selection of exporters, producers, importers or types of products made under this paragraph shall preferably be chosen in consultation with and with the consent of the exporters, producers or importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her the amount of the anti-dumping duty to be imposed shall be the full margin of dumping or less, are decisions to be made by the authorities of the importing Member. It is desirable that the imposition be permissive in the territory of all Members, and that the duty be less than the margin if such lesser duty would be adequate to remove the injury to the domestic industry. 9.2 When an anti-dumping duty is imposed in respect of any product, such anti-dumping duty shall be collected in the appropriate amounts in each case, on a non-discriminatory basis 36 on imports of such product from all sources found to be dumped and causing injury, except as to imports from those sources from which price undertakings under the terms of this Agreement have been accepted. The authorities shall name the supplier or suppliers of the product concerned. If, however, several suppliers from the same country are involved, and it is impracticable to name all these suppliers, the authorities may name the supplying country concerned. If several suppliers from more than one country are involved, the authorities may name either all the suppliers involved, or, if this is impracticable, all the supplying cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the weighted average normal value 37 20 It is understood that the observance of the time-limits mentioned in this subparagraph and in subparagraph 3.2 may not be possible where the product in question is subject to judicial review proceedings. of the selected exporters or producers and the export prices of exporters or producers not individually examined, provided that the authorities shall disregard for the purpose of this paragraph any zero and de minimis margins and margins established under the circumstances referred to in paragraph 8 of Article 6. The authorities shall apply individual duties or normal values to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation, as provided for in subparagraph 10.2 of Article 6. 9.5 If a product is subject to anti-dumping duties in an importing Member, the authorities shall promptly carry out a review for the purpose of determining individual margins of dumping for any 34 exporters or producers in the exporting country in question who have not exported the product to the importing Member during the period of investigation, provided that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmination is negative, any cash deposit made during the period of the application of provisional measures shall be refunded and any bonds released in an expeditious manner. 10.6 A definitive anti-dumping duty may be levied on products which were entered for consumption not more than 90 days prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that: (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practises dumping and that such dumping would cause injury, and (ii) the injury is caused by massive dumped imports of a product in a relatively short time which in light of the timing and the volume of the dumped imports and other circumstances (such as a rapid buildup of inventories of the imported product) is likely to seriously undermine the remedial effect of the definitive anti-dumping duty to be applied, provided that the importers concerned have been given an opportunity to comment. 10.7 The authorities may, after initiating an investigation, take such measures as the withholding of appraisement or assessment as may be necessary to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted under Article 8. Article 18 Final Provisions 18.1 No specific action against dumping of exports from another Member can be taken except in accordance with the provisions of GATT 1994, as interpreted by this Agreement. 18.2 Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members. 18.3 Subject to subparagraphs 3.1 and 3.2, the provisions of this Agreement shall apply to investigations, and reviews of existing measures, initiated pursuant to applications which have been made on or after the date of entry into force for a Member of the WTO Agreement. 18.3.1 With respect to the calculation of margins of dumping in refund procedures under paragraph 3 of Article 9, the rules used in the most recent determination or review of dumping shall apply. 18.3.2 For the purposes of paragraph 3 of Article 11, existing anti-dumping measures shall be deemed to be imposed on a date not later than the date of entry into force for a Member of the WTO Agreement, except in cases in which the domestic legislation of a Member in force on that date already included a clause of the type provided for in that paragraph. 18.4 Ea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and adequate opportunity was given to the domestic industry, exporters, importers and other interested parties to provide positive information on the aspects of dumping, injury and the causal link. Having initiated and conducted investigation into dumping, injury and the causal link thereof in terms of the AD Rules and having established positive dumping margins as well as material injury to the domestic industry caused by 41 such dumped imports, the Authority is of the view that imposition of definitive anti dumping duty is required to offset dumping and consequent injury. Therefore, the Authority considers it necessary to recommend imposition of definitive anti-dumping duty on imports of the subject goods from the subject countries in the form and manner described hereunder. 103. Having regard to the lesser duty rule followed by the Authority, the Authority recommends imposition of definitive anti-dumping duty equal to the lesser of the margin of dumping and the margin of injury, so as to remove the injury to the domestic industry. Accordingly, definitive anti-dumping duty as per amount specified in the table below is recommended to be imposed from the date of the Notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prospective period of investigation and indeed, the concerns are very valid. However, the factual situation of the present case is clearly distinguishable from the factual situation of the H&R Johnson (2007) case cited by the Domestic producers. In the H&R Johnson (2007) case, the CESTAT clearly noted the 44 invalidity of the initiation of the new shipper review on the following grounds: i. The new shippers had not even begun production or exportation to India at the time of filing the new shipper review application. ii. The new shippers were found to be ineligible for initiating a new shipper review under Rule 22. iii. The entire period of review was prospective. 21. In the initiation of the subject review, the Authority was mindful of these requirements, as laid down by the CESTAT in H&R Johnson (2007) case and carefully considered these issues prior to initiation of the subject review. The Authority noted that the Applicants herein had begun production and exports to India in substantial quantity prior to the filing of the new shipper review application. The period selected is part retrospective and part prospective. Further, given the purport of Rule 22 of the AD Rules, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 13mm thickness clear float glass supplied by Tariq Glass is lower as compared to the price of 13mm thickness clear float glass imported from other countries. Thus, there is no reasonable basis to correlate the prices of subject goods with the Clear Float Glass of 13mm thickness supplied by the Applicant. 18 b) The Authority has examined the genuineness of the export prices reported by 47 the Applicant from the DGCI&S data for exports to India and also compared the same with prices offered by Tariq Glass to other countries during the same period. The authority notes that there no significant variation between the export price to India and other countries for the product under consideration. Accordingly, there is no merit in the contention of the Domestic Industry. c) With regard to the submission of Domestic Industry on completion of New Shipper Review Investigation, the authority notes that the final findings of the New Shipper Review investigations have been completed as per provisions stipulated in Anti-Dumping Rules. Final Findings and Recommendations of the Authority. 37. After considering the foregoing the Authority concludes that i) Export price of Clear Float Glass expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation. The learned Single Judge by the order impugned herein, framed the following five questions, for consideration. (i). Whether the New Shipper Review 50 Investigation commenced by the Designated Authority vide initiation Notification, dated 23/9/2015, culminating in the final findings, dated 11/4/2017 is barred by time as it has exceeded 18 months. (ii). Whether the New Shipper Review initiated under Rule 23 of ADD Rules is required to be completed within a period of 12 months from the date of initiation, failing which the same will lapse or in 18 months if extension is granted for a further period of 6 months. (iii). Whether the procedures on time limits for carrying out the New Shipper Review should be in consonance with the time limit prescribed under Rule 23 (3) read with Rule 17 of the ADD Rules (iv). Whether the present writ petitions are maintainable (v). To what other remedy, the petitioner is entitled to. and answered the questions as under:- (i). The New Shippers Review initiated vide Notification, dated 23/9/2015, culminating in the final findings dated 10/4/2017 is not barred by time. (ii). In the absence of any time limit fixed in Rule 22, a review und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... greement. 17. The appellant would therefore, submit that if the New Shipper Review is not completed, within a period of 12 months or 18 months, in exceptional circumstances, as prescribed in Rule 17, the following prejudice would be caused to the Domestic Industry. (i). The New Shipper can seek provisional assessment and the ADD is not collected during the period of review. If the NSR results in a determination of dumping it will be imposed retrospectively from the date of initiation of the review. (ii). Therefore for such period of review, if the dumped articles are allowed into India without any levy of ADD. The foreign exporter will capture the domestic market to the detriment of the Indian Domestic Industry which will go against the very purpose of ADD. (iii). Since the second respondent has been taking a longer period of investigation for New Shippers Review, this coupled with the fact of provisional assessment being afforded and no ADD being imposed as determined during the original investigations during the period of review, has resulted in price manipulation and increased exports of dumped products into India thus having an adverse effect on domestic industry." 18. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal agreement i.e, GATT, as held by the 56 Supreme Court in the case of GRAMOPHONE COMPANY OF INDIA LTD Vs. BIRENDRA BAHADUR PANDEY {1984 (2) SCC 534}, relevant portion extracted hereunder:- "There can be no question that nations must march with the international community and the municipal law must respect rules of international law even as nations respect international opinion. ..... The doctrine of incorporation also recognises the position that the rules of international law are incorporated into national law and considered to be part of the national law, unless they are in conflict with an Act of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. National Courts cannot say yes if parliament has said no to a principle of international law. National Courts will endorse international law but not if it conflicts with national law...." 12. In any event, the Appeal is not maintainable as the appellant have adequate alternative remedy under Section 9 C of the Customs Tariff Act and hence the present appeals are not maintainable and liable to be dismissed." 20. The learned Additional Solicitor General would contend 57 that writ petition was not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an the rate at which the exporters normally sell the same in their own countries which is the effect of causing injury to the domestic market. Section 9 A was therefore, brought in, to maintain a level playing field and prevent dumping the goods into India while allowing the healthy competition. The Hon'ble Supreme Court, in Reliance Industries Ltd., Vs. Designated Authority & Ors {(2006) 10 SCC 368}, has observed that "the concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run. 23. The procedure to find out as to whether the Anti Dumping Duty is to be left or not has been elaborately given in ADD Rules. The relevant Rules have already been extracted supra. 24. Rule 5, remarks the initiation of Investigation. For finding out as to whether Anti Dumping Duty should be levied or not, Under Rule 5, the application for initiation of investigation has to be suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m such exporters regarding their price of production, regarding the price at which the goods are being sold in their countries and all other information. 28. Rule 22 deals with determination of margin of dumping for exporters not originally investigated. A perusal of Rule 22 would show that it deals with determining the individual margins of dumping for an exporters, who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any exporters or producers, who are subject to Anti Dumping Duties on the product. The process of investigation in case of original investigation and in case of investigation under Rule 22 is the same. Though Rule 22 is called periodical review, it actually is a fresh look at those exporters, who have not exported during the period, when the original investigation was going on. Rule 22 does not prescribe any time period within which the investigation has to be completed. 29. It is also not in dispute that Rule 22 would deal with much lesser number of exporters. Rule 23 (1-A) provides that Designated Authority shall review the need for continued imposition of Anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing duties can be levied retroactively to the date of the initiation of the review. 31. A perusal of the above mentioned clause would show that these review has to be carried out on an accelerated basis, compared to normal duty assessment. The agreement therefore, clearly stipulated that the period taken for these assessment cannot exceed the original investigation. 32. The Committee on anti-dumping practices has received communications from India regarding reviews specified in Rule 22. The question and the answer reads as under:- 4. Newcomer's accelerated review Article 9.5 of the WTO Agreement stipulates: "....authorities shall promptly carry out a review for any exporters ... who have not exported the product to the importing Member during the period of investigation. Such a review shall be initiated and carried out on an accelerated basis, compared to normal duty assessment." Article 22.1 of India's A.D Law, however only provides that "authority shall carry out a periodical review for the .... and does not contain any explicit provisions for ensuring the newcomer's accelerated reviews". In the absence of an explicit provision, how will India ensure the confo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of review will be relevant, in an anti-dumping proceeding. A new shipper review under Rule 22 should normally cover production, exports or sales during the period preceding the initiation of review. Fixing review period, for such investigation, that falls subsequent to the date of the application for such review is not at all warranted, and would be like spreading a red carpet to manipulations by projecting figures during the prospective period of review so tailored as to bring about a dumping margin favourable to the new shipper who can then be a conduit pipe for flowing exports of other exporters and producers whose exports would otherwise have been subjected to the existing anti-dumping duty. Selecting new shipper review for a period subsequent to the application for such review would distort the entire scheme and purpose of imposition of anti-dumping duty, to the grave disadvantage of the domestic industry that had earned the protection of anti-dumping duty. The contention that the new shipper review proceedings are in the nature of 'advance ruling', for which the period of review ought to be after the date of initiation of new shipper review is, therefore, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying such a construction, for example, where it appears that Parliament really intended it or the literal meaning is too strong. 42. The Hon'ble Apex Court, in Shailesh Dhairyawan vs. Mohan Balkrishna Lulla {(2016) 3 SCC 619 has stated that the principle of purposive interpretation is based on the understanding that the Court is supposed to attach that meaning to the provision which serve the purpose behind such a provision. Paragraph No.31, 32 and 33, are apt for this case, and the same reads as under:- 31. The aforesaid two reasons given by me, in addition to the reasons already indicated in the judgment of my learned Brother, would clearly demonstrate that provisions of Section 15(2) of the Act require purposive interpretation so that the aforesaid objective/ purpose of such a provision is achieved thereby. The principle of 'purposive interpretation' or 'purposive construction' is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the 'purpose' behind such a provision. The basic approach is to ascertain what is it designed to accomplish? To put it otherwise, by interpretative process the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be applied with great care and in case absurd inconvenience is to be caused that interpretation has to be avoided. Cases of individual hardship or injustice have no bearing for enacting the natural construction. The relevant discussion at pages 132-133 and 140-142 is extracted hereunder : "(a) Hardship, inconvenience, injustice, absurdity and anomaly to be avoided In selecting out of different interpretations "the court will adopt that which is just, reasonable and sensible rather than that which is none of those things" [Holmes v. Bradfield Rural District Council, (1949) 1 All ER 381, p. 384] as it may be presumed "that the Legislature should have used the word in that interpretation which least offends our sense of justice". [Simms v. Registrar of Probates, (1900) AC 323, p. 335 CPC] If the grammatical construction leads to some absurdity or some repugnance or inconsistency with the rest of the instrument, it may be departed from so as to avoid that absurdity, and inconsistency. [Grey v. Pearson, (1857) 6 HLC 61, p. 106]. Similarly, a construction giving rise to anomalies should be avoided. [Veluswami Thevar v. G.Raja Nainar, AIR 1959 SC 422, pp. 427, 428]. As approved by VE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egraph Works, (1969) 3 All ER 456]. "It is the duty of all courts of justice", said LORD CAMPBELL, "to take care for the general good of the 76 community, that hard cases do not make bad law". [East India Company v. Odichurn Paul, 7 Moo PC 85]. 'Absurdity' according to WILLES, J., should be understood "in the same sense as repugnance that is to say something which would be so absurd with reference to the other words of the statute as to amount to a repugnance". [Christopherson v. Lotinga, (1864) 33 LJ CP 121]. "Absurdity", said LORD GREENE, M.R., "like public policy, is a very unruly horse". [Grundt v. Great Boulder Proprietary Gold Mines Ltd., (1948) 1 All ER 21]. He proceeded to add: "There is one rule, I think which is clear that, although the absurdity or the non-absurdity of one conclusion as compared with another may be and very often is, of assistance to the court in choosing between two possible meanings of ambiguous words, it is a doctrine which must be applied with great care, remembering that judges may be fallible in this question of an absurdity and in any event it must not be applied so as to result in twisting language into a meaning which it cannot bear. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ico Bank and Ors. [2009 (17) SCC 690], this Court referring to Halsbury's Commonsense construction rule held that it is a well-settled principle of law that common sense construction rule should be taken recourse in certain cases. 44. The Hon'ble Supreme Court in Commissioner of Customs, Bangalore Vs. G.M.Exports and Ors {2015 (324) ELT 209 (SC), has observed as under:- 23. A conspectus of the aforesaid authorities would lead to the following conclusions: (1) Article 51(c) of the Constitution of India is a Directive Principle of State Policy which states that the State shall endeavour to foster respect for international law and treaty obligations. As a result, rules of international law which are not contrary to domestic law are followed by the courts in this country. This is a situation in which there is an international treaty to which India is not a signatory or general rules of international law are made applicable. It is in this situation that if there happens to be a conflict between domestic law and international law, domestic law will prevail. (2) In a situation where India is a signatory nation to an international treaty, and a statute is passed pursuant to the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld therefore require a retrospective duty being levied, but not beyond a period of 90 days, to undo the effect of undermining the antidumping duty to be levied. Short of sub-section (3), no other part of Section 9A authorises the Central Government to levy an anti-dumping duty with retrospective effect. 25. Section 9A(2) speaks of an anti-dumping duty which the Central Government levies on the basis of a provisional estimate, thus referring to a provisional antidumping duty. The Section further goes on to say that after a final determination is made in accordance with the Rules, the Central Government may reduce such provisional anti-dumping duty, having regard to the final determination made by the designated authority under the Rules. If and when this happens, what is important to note is that refund shall be made of so much of the antidumping duty which has been collected in excess of the final anti-dumping duty so reduced. Under sub- section (5), a maximum period of five years is allowable on the anti- dumping duty imposed. This is extendable only for a further period of five years and not beyond. Sub-section (6) in turn refers to the Central Government's power to make rules, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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