Customs, Excise and Gold Tribunal - Calcutta
Chhotu Lal Daga (Prop. Of Rohit ... vs Commissioner Of Customs (Port) on 29 April, 2008
ORDER Chittaranjan Satapathy, Member (T)
1. We have heard both sides. We have also taken note of the written notes of main submissions filed on behalf of the appellant. The appellant has requested in para 9 of the written notes that for the detailed reasons stated therein, the Stay Petition as well as the Appeal should be allowed by the Tribunal. Accordingly, we proceed to dispose off both the Stay Petition and the Appeal.
2. The brief facts of the case are that the Central Government imposed anti-dumping duty on Compact Fluorescent Lamps (CFL) 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 20.06.2002. 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 with 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 from Hong Kong, the anti-dumping duty imposed under this notification shall be effective from the date of issue of this notification in the Official Gazette.
3. The appellant imported the impugned CFL with choke of Chinese origin from a supplier in Hong Kong. The bill of entry was noted on prior entry basis on 02.12.02 and the vessel carrying the said goods was granted Entry Inwards on 09.12.2002. The main issue in dispute in this case is whether the anti-dumping duty is payable on such imports made during the interregnum, i.e., between 21.06.2002 and 09.12.2002, after the provisional duty lapsed but before the definitive duty was notified. We find that this is not an issue coming up before the Tribunal for the first time for decision. As pointed out by both sides, different Benches of the Tribunal have already passed several Orders on this question. However, no decision from any of the Hon'ble High Courts or from the Hon'ble Supreme Court on this issue has been shown to us.
4. Before we take up the matter for examination of this issue in the context of the previous decisions of the Tribunal, it is worthwhile to note that anti-dumping duty is not so much of a revenue measure as it is a trade remedy measure. The erstwhile GATT and its successor WTO, through multi-lateral negotiations, have been bringing down tariff barriers and liberalising international trade. However, to prevent unfair trade under liberalised trading systems, WTO has mandated trade remedy measures such as anti-dumping duty against dumped imports, countervailing duty against subsidized imports and safeguard measures against surge in imports. Such measures are necessary to prevent unfair trade by foreign suppliers to the detriment of domestic industry in the absence of a protective import tariff wall. That anti-dumping duty is not so much of a revenue measure, is evident from the fact that some of the WTO member-countries have made provisions for making payments from out of the collected anti-dumping duty to the injured domestic industry.
5. The WTO Agreement on anti-dumping provides for imposition of anti-dumping duty when dumping is established and such dumping is the cause of injury to the domestic industry. The Indian law on anti-dumping is based on the WTO Agreement on Anti-Dumping to which India is a signatory. The WTO Agreement as well as the Indian law provide for imposition 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 12-18 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 20.06.2002 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 21.06.2002 and 09.12.2002 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) C.C., Cochin v. Raghav Enterprises ;
(ii) C.C., Cochin v. Royal Impex 2006 (204) ELT 567 (Tri. - Bang.);
(iii) G.M. Exports v. C.C., Bangalore 2006 (198) ELT 354 (Tri. - Bang.);
(iv) C.J. Shah & Co. v. C.C., Kandla 2006 (196) elt 154 (Tri. - Mumbai);
(v) Harsh International v. C.C., Mumbai .
7. The Revenue relies on the following decisions of the Tribunal:
(i) NITCO Tiles Ltd. v. Designated Authority ;
(ii) Apollo Tyres Ltd. v. U.O.I. 2005 (192) ELT 1137 (Tri. - Del.);
(iii) Bansilal Leisure Parks Ltd. v. C.C., Kolkata 2007 (213) ELT 246 (Tri.- Del.).
8. We find that the question as to whether imports made during the interregnum, are liable to anti-dumping duty, was specifically considered by the Anti-Dumping Bench of the Tribunal in the case of NITCO Tiles Ltd. as well as in the case of Apollo Tyres Ltd. (cited supra). This was a Bench consisting of the Hon'ble President, a Judicial Member and a Technical Member. Under the Anti-Dumping Law, a Three Member Bench headed by the President is mandated to consider the questions relating to imposition of anti-dumping duty. It also happens to be a Larger Bench of 3 Members compared to the normal Division Bench consisting of two Members. The Legislature providing for such an arrangement clearly points to the fact that the decision by a Larger Bench would quickly and definitively resolve disputes regarding levy of anti-dumping duty, imposition of which is vital to the economic health of the country in its fight against the dumped imports by unscrupulous foreign exporters causing injury to domestic industry. Ordinarily all interests including the Designated Anti-Dumping Authority, foreign exporters, the importers as well as the domestic industry are represented before the Anti-Dumping Bench and hence, the Anti-Dumping Bench is in a better position to give a definitive ruling on disputes relating to anti-dumping duty. It goes without saying that the decision rendered by the Three Member Anti-Dumping Bench must be respected by the other Division Benches of the Tribunal. We find that the three decisions of the Bangalore Bench in the case of Raghav Enterprises (supra) rendered on 28.07.2005; in the case of G.M. Exports rendered on 07.12.2005; and in the case of Royal Impex (supra) rendered on 27.07.2006; - have been taken without having the benefit of the decisions of the Three Member Anti-Dumping Bench in the case of Apollo Tyres (supra) rendered on 09.09.2005 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 decision of the Mumbai Bench in the case of Harsh International apart from being contrary to the decisions of the Larger Bench (Three Member Anti-Dumping Bench) has proceeded on the presumption that the provisional duty for the interrengum was zero and hence, under Rule 21 of the Anti-dumping Rules, 1975, the difference between the definitive duty and zero is not payable. With great respect, we are not able to accept the interpretation given by the said Bench contrary to the decision of the Larger Bench. When the provisional anti-dumping duty ended on expiry of six months, it is strange to presume that provisional anti-dumping duty was being levied at zero rate thereafter. Neither the WTO Agreement nor the Indian Anti-Dumping Law provide for levy of provisional duty at zero rate. In fact, the levy of provisional duty ceases to operate on expiry of the provisional duty notification. Moreover, judicial discipline required the Mumbai Bench to refer the matter to a still Larger Bench if it disagreed with the Three Member Anti-Dumping Bench instead of rendering a contrary decision and in any case, such a contrary decision rendered by a smaller Bench cannot be a binding precedent for another Bench.
9. We also cannot ignore the fact that such an interpretation contrary to the decision of the Larger Bench has serious implications for the economy of the country and health of the domestic industry. If it is held that during the interregnum which can be between 6-12 months depending when the anti-dumping investigation is completed, the domestic market of a country can be flooded with large-scale imports at dumped prices without having to face anti-dumping duty and this would seriously injure and cripple domestic industry. Obviously, this cannot be the purpose of the Anti-Dumping Law which is enacted purely to provide a trade remedy measure against unfair trade practices and dumped imports.
10. It has been brought to our notice that another Bench of the Tribunal in Mumbai in the case of Sheth Developers Pvt. Ltd. v. C.C. (Import), Mumbai has referred the matter to a Larger Bench. We have carefully perused the Referral Order. The reference has been made to consider whether the view taken in the case of Harsh International (supra) is correct or the view taken in the case of Bansilal Leisure Parks (supra) is correct. 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) ELT 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.
(b) Where provisional duty is imposed, the date of imposition of provisional duty i.e. the date of notification issued in Official Gazette imposing it.
(c) Where anti-dumping duty is imposed retrospectively from a date prior to the date of imposition of provisional duty, such prior date as may be notified in the notification imposing anti-dumping duty retrospectively, as contemplated by Section 9A(3).
8. The period of duration of anti-dumping duty is statutorily determined under Section 9A(5) to be five years from the date of imposition of anti-dumping duty unless revoked earlier or extended, as provided thereunder. Thus, in all cases of imposition of anti-dumping duty the life of duty will be five years from the date of commencement of the anti-dumping duty i.e. in all cases where provisional anti-dumping duty is imposed, the date of commencement of definitive anti-dumping duty being the same date, it will be five years from the date of such commencement of definitive anti-dumping duty and where no provisional anti-dumping duty is imposed, it will be obviously five years from the date of publication of the notification in the Official Gazette imposing the anti-dumping duty. Where duty is retrospectively imposed under Section 9A(3), the period of five years will start from the date from which the anti-dumping duty is retrospectively imposed. Thus, in every case of imposition of definitive anti-dumping duty, whether from the date of imposition of provisional anti-dumping duty or where it is not imposed, from the date of imposition of definitive anti-dumping duty as well as the date of retrospective levy under Section 9A(3), the anti-dumping duty will cease to have effect on the expiry of five years, unless revoked earlier. So far as the provisional anti-dumping duty is concerned, such revocation is statutorily provided for in the second proviso to Rule 13, which lays down that provisional anti-dumping duty shall remain in force only for a period not exceeding six months or nine months, as the case may be. However, that provision cannot curtail or breach the life of five years of the definitive anti-dumping duty commencing from the date of imposition of provisional anti-dumping duty, which will cease to have effect only on the expiry of five years, unless revoked earlier. There cannot be any implied revocation of definitive anti-dumping duty that comes 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 ceased and before notification of definitive anti-dumping duty was issued, should be added beyond five years so as to make up full five years' duration of anti-dumping duty when the date of commencement of definitive duty is from the date of imposition of provisional anti-dumping duty, does not fit in the scheme of Section 9A, more particularly with the provisions of Section 9A(5), and no such distortion can be judicially imposed on the period of duration of five years from the commencement date, which has been statutorily contemplated under Section 9A(5). Since provisional anti-dumping duty under Section 9A(2) is also anti-dumping duty and the definitive anti-dumping duty if imposed has to be for five years under Section 9A(5) from the date of commencement of provisional anti-dumping duty, the combined effect of Sections 9A(5) and 9A(2) clearly authorizes imposition of definitive anti-dumping duty from the date of provisional anti-dumping duty under Section 9A(2), and there is no scope for the appellants to contend that Rule 20(2)(a) which gives effect to that intent of the Parliament, is ultra vires the Parent Act. The Parent Act clearly indicates the date of commencement of the definitive anti-dumping duty where provisional anti-dumping duty under Section 9A(2) is imposed, to be the date of issuance of the notification imposing provisional duty and where it is retrospectively levied under Sub-section (3) of Section 9A to be the date from which it is retrospectively imposed. The Parent Act also indicates under Section 9A(5) such date of commencement of anti-dumping duty to be the date for computing the period of five years when definitive anti-dumping duty is imposed.
8.2. The anti-dumping duty definitively imposed operates on its own force from the respective commencement dates contemplated under Sections 9A(2), 9A(3) read with Section 9A(5) all throughout the period of five years or till it is revoked earlier subject to the provisions of Section 9A(2)(a)(b) which require the provisional anti-dumping duty to be reduced and brought to the level of the definitive anti-dumping duty, if it is in excess. Rule 20(2)(a) is, therefore, not open to any attack on the ground of excessive delegation.
9. During the period of ninety days where anti-dumping duty is retrospectively imposed under Section 9A(3) as well as the period after provisional anti-dumping duty had ceased, 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 interregnum 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 be 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 despite the determinations of margin of dumping and injury reached at the provisional findings which have come to be finally confirmed, there should be allowed a long period of freely injurious dumping so as to destroy the domestic industry for the protection of which the statutory provisions are enacted and the provisional anti-dumping duty was imposed.
9.1. Moreover, when the Act contemplated under Section 9A(3) retrospective imposition of final duty even during the period up to ninety days when there was no provisional anti-dumping duty, so that remedial effect of the anti-dumping duty liable to be levied was not seriously undermined, it could not be attributed with lack of such concern for the said "interregnum period" after the provisional anti-dumping duty ceased, but the preliminary findings rendered under Rule 12 remained operative and which came to be confirmed on further investigations that even the law expected to take time upto the limit of eighteen months. The contention that no anti-dumping duty was intended to be imposed during the period after provisional anti-dumping duty ceased as determinations could not be finally made in that short period, goes against the very purpose of the statute, of preventing the remedial effect of the anti-dumping duty liable to be levied, being seriously undermined. When the anti-dumping duty is made to commence under Section 9A(3) from the date prior to the date of imposition of provisional duty and such imposition fully operates for achieving its remedial effect and will operate even during the period provisional anti-dumping duty operated subject to statutory adjustments of Section 9A(2), it cannot suddenly cease to have effect, just because provisional duty had ceased, and again resurrect of its own on the date of notification imposing definitive anti-dumping duty so as to create a gap for mass injurious dumping to thrive by such invitation that would undermine the remedial effect of the anti-dumping duty which was liable to be levied and in fact levied from the date of commencement of the provisional anti-dumping duty. If continuity of definitive anti-dumping duty, that commenced under Section 9A(3) from prior to the date of imposition of the provisional anti-dumping duty under Section 9A(2) is not breached at any point of time, then it does not stand to reason why anti-dumping duty commencing from the date of 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 mischief that was sought to be remedied. We, therefore, hold that Rule 20(2) is intra vires the provisions of the said Act and the anti-dumping duty has been validly imposed with effect from the date of imposition of the provisional anti-dumping duty and would continue to operate even during the 'interregnum period'. The challenge against the impugned notification, therefore, fails.
11. In Apollo Tyres Ltd. (cited supra), the Three Member Anti-Dumping Bench has held as follows:
33. It is argued on behalf of the appellants (producer/exporter) that during the interregnum period (i.e. between 25-1-2004 when the period of six months contemplated by the proviso to Rule 13 expired and the date of the publication of the notification imposing anti-dumping duty i.e.20-7-2004), no anti-dumping duty could have been imposed. Under Section 9A(2) of the said Act anti-dumping duty can be imposed on provisional assessment of normal value and margin of dumping by the Central Government. If upon final determination the anti-dumping duty imposed, on provisional estimates exceeds the margin so finally determined, the anti-dumping duty will be reduced and excess of anti-dumping duty will be refunded to the extent of reduction. Under Section 9A(3), anti-dumping duty may be levied retrospectively from a date prior to the date of imposition of the provisional anti-dumping duty under Section 9A(2), but not beyond ninety days. If the definitive anti-dumping duty imposed by the Central Government under Rule 18 read with Section 9A(1) is higher than the provisional duty 'imposed and collected' the differential duty shall not be collected, as provided in Rule 21(1), which is in cosonance with Article 10.3 of the WTO AD Agreement. On this basis, it as contended for the appellants that the intention of the legislature was not to impose anti-dumping duty during the interregnum period. This contention overlooks that the Parliament has power to make retrospective laws. The power to make the law includes the power to give it retrospective effect, the only express constitutional limitation being in Article 20(1). Any other law may, therefore, be made retrospective including taxing laws, provided no fundamental right is infringed by reason of taking away a vested right by retrospective legislation. The provisions of Rule 20(1) are to be viewed in the context of this plenary nature of 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:
Commencement of duty. '20. - (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 case of violation of price undertaking referred to in Sub-rule (6) of Rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking.
Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case.
Refund of duty. 21. - (1) If the anti-dumping duty imposed by the Central Government on the basis of final finding of the investigation conducted by the designated authority is higher than the provisional duty already imposed and collected, the differential shall not be collected from the importer.
(2) If the anti-dumping duty fixed after the conclusions of the investigation is lower than the provisional duty already imposed and collected, the differential shall be refunded to the importer.
(3) If the provisional duty imposed by the Central Government is withdrawn in accordance with the provisions of Sub-rule (4) of Rule 18, the provisional duty already imposed and collected, if any, shall be refunded to the importer.
33.2. The provision of Sub-rule (2) will prevail over Sub-rule (1) of Rule 20 as per the non-obstante clause of Sub-rule (2). The provision specifically enables giving of retrospective effect to the anti-dumping duty imposed by the Central Government under Rule 18 in cases where a provisional anti-dumping duty is levied, from the date of the imposition of the provisional duty. There is no distinction made in the rule giving retrospective effect to save any interregnum period from the imposition of (final) anti-dumping duty imposed under Rule 18 by the Central Government, nor does the Parent Act warrant such relaxation. The anti-dumping duty imposed under Rule 18 read with Section 9A(1) operates by its own force and efficacy and will fully apply with effect from the date of imposition of provisional duty. Sub-rule (2)(a) is to be read as nothing beyond fixing the date of imposition of the anti-dumping duty imposed under Rule 18 read with Section 9A(1) which would, in cases where no provisional anti-dumping duty was levied take effect only from the date of the publication in the Official Gazette of the anti-dumping duty levied by the Central Government under Rule 18. There is, therefore, no scope for creating a hiatus in the retrospectivity 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 09.12.02, anti-dumping duty is clearly leviable, as provided under the Definitive Anti-Dumping Duty Notification issued on completion of the anti-dumping investigation even though such import has taken place during the interregnum.
13. The appellant has also contended that since the import has taken place from a supplier in Hong Kong, in terms of paragraph 2 of the Notification No. 138/2002, the anti-dumping duty for CFL with choke exported from Hong Kong, should be charged only with effect from the date of the Notification i.e. 10.12.02. We find no merit in such a submission. In the case of the appellant, the goods were of Chinese origin and hence, these satisfy the condition of 'originating in, or exported from China', notwithstanding the fact that they were re-exported from Hong Kong. As such, we hold that since the anti-dumping duty in respect of CFL with choke originating in, or exported from China was leviable from 21.12.2001, the impugned import made by the appellant has to pay the anti-dumping duty notified under Notification No. 138/2002.
14. Submission has also been made on behalf of the appellant that the quantum of anti-dumping duty is very high and he is not in a position to pay the same. To our mind, one of the purposes of levying anti-dumping duty on a provisional basis for a period of six months on preliminary determination, is to make aware all exporters and importers concerned regarding the initiation and continuance of anti-dumping investigation against dumped imports from specific countries/exporters. Therefore, any importer importing from specified countries cannot plead ignorance regarding the ongoing anti-dumping investigation and the possibility of its imports being visited with definitive anti-dumping duty on final determination. In any case, the purpose of anti-dumping duty is to remove the injury caused by dumped imports and since there is no challenge to the determination of the dumping and injury margins and quantification of the anti-dumping duty in this appeal, the plea that the anti-dumping duty is excessive and that the same cannot be borne by the importer, cannot be a basis for not demanding it from the subject imports.
15. For the reasons stated above, we dismiss the appeal filed by the appellant and we confirm the demand of anti-dumping duty made on the impugned import. Since we have decided the Appeal itself, the Stay Petition stands disposed off.
Pronounced in the court on 29.04.08