Law relating to “Anti-dumping duty” interpreted keeping in mind the International laws and Treaties

Supreme Court: While deciding several appeals in the matter relating to anti-dumping duty, the  bench comprising of Dr. A.K. Sikri and R.F. Nariman, JJ. held that, there can be no levy of anti-dumping duty in the gap or interregnum period between the lapse of the provisional duty and the imposition of the final duty.  The matter involved detailed analysis of the Article VI of General Agreement on Tariffs and Trade (GATT) and its subsequent ratification in the form of Section 9A of Customs Tariff Act, 1975 (the Act), relating to Anti-Dumping duty on dumped articles. Under clause 6 of this section, the Custom Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (the Rules) have been framed. Rule 20 of these rules speaks about the commencement of duty.

The main argument from the side of the revenue was that both literally and purposively Rule 20 of the Rules leads to one conclusion and one conclusion alone – that final anti-dumping duty would take effect from the date of imposition of the provisional duty, which would necessarily include the “gap” period i.e. the period between the lapse of the provisional duty and the imposition of the final duty. The bench after considering international stand of various nations over the collection of duty during the “gap period” held that the suggested construction by revenue would render sub-rule 2(a) of Rule 20 of the Rules ultra vires Section 9A of the Act. It has already been seen that sub-section (2) and sub-section (6) of Section 9A of the Act do not authorize the imposition of a duty with retrospective effect, in contrast with sub-section (3) thereof. Any duty levied by a final duty notification during the interregnum period would necessarily amount to a retrospective levy of duty for the reason that such period is not covered by the provisional duty notification, being beyond 6 months.. A construction which is both in consonance with International law and Treaty obligations, which Article 51(c) of the Constitution states as a directive principle of State policy; and the application of the doctrine of harmonious construction is to be preferred to a narrow doctrinaire meaning which would lead to the Rule being read in such a manner that it is ultra vires the parent statute. It was thus held that the final anti-dumping duty only incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13 of the Rules. Thus, it is clear that such incorporation can only be the period upto which the provisional duty can be levied and not beyond. [Commissioner of Customs Bangalore v. M/s G.M. Exports, 2015 SCC OnLine SC 837, decided on 23-09-2015]

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