Customs, Excise and Gold Tribunal - Delhi
Nitco Tiles Ltd. vs Designated Authority, Ministry Of ... on 9 December, 2005
Equivalent citations: 2006(104)ECC302, 2006ECR302(TRI.-DELHI)
ORDER
R.K. Abichandani, President Page 307
1. The appellant-importer has challenged the final findings dated 4th February, 2003 by the Designated Authority and the impugned notification issued on 1st May, 2003 under Section 9A(1) of the Customs Tariff Act imposing antidumping duty with effect from 2nd May, 2002 and has prayed for holding that the final anti-dumping duty shall have only prospective effect, seeking modification of the notification on that basis.
1.1 At the outset, it was made clear to us by the learned Counsel appearing for the appellant that the challenge against the impugned notification was being confined before us only to the extent that the notification levied the anti-dumping duty with effect from the date of its imposition, namely, 2nd May, 2002, and that, the prospective effect of the impugned notification from the date of its publication in the official gazette was not challenged.
2. On 6th August, 2001, the designated authority initiated the investigation on the basis of the petition filed by M/s. SPL Ceramics Ltd., M/s. H&R Johnson India Ltd. and M/s. Murudeshwar Ceramics Ltd. The designated authority notified its preliminary findings by notification dated 3rd December, 2001 with regard to anti-dumping investigations concerning imports of vitrified/porcelain tiles originating in or exported from China PR and UAE. Public hearing was held on 2nd July, 2002 to hear the interested parties. The authority made the public file available to all interested parties containing non-confidential version of the evidence submitted by various interested parties for inspection upon their request. Disclosure of essential facts, as required by Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duties on Dumped Articles and for Determination of Injury) Rules 1995, was made on 17th December, 2003. In its final findings, the authority concluded that, vitrified/porcelain tiles were exported to India from UAE and China PR below its normal value resulting in dumping, the Indian industry had suffered material injury, and that the injury had been caused cumulatively by the imports from the subject countries.
3. The provisional duties were levied on 2nd May, 2002, and they were to be effective upto and inclusive of first day of November 2002. The contention raised on behalf of the appellant is that since the provisional duties expired on 1st November, 2002, and there was no provisional duty in force from 2nd November, 2002, the final duty could not have been levied retrospectively by the notification issued on 1st May, 2003 imposing such final duty. According to the appellant, it was undisputed that no provisional duties were ever levied for the period starting from 2nd November, 2002 till 30th April, 2003. As the provisional duty was zero for the that interregnum period, Rule 21(1) would come into operation and the difference between the higher final duty and the lower or zero provisional duty could not be collected for such interregnum period. Since the notification dated 1st May, 2003 levied Page 308 anti-dumping duty with effect from the date of provisional duty, the applicability of anti-dumping duty during the "interregnum period" from 2nd November, 2002 to 30th April, 2003, when there was no provisional duty, was not warranted.
Arguments on behalf of the appellant:
4. It has been contended by the learned senior advocate appearing for the appellant that on the basis of the existing law the appellant was entitled to clear the goods without any liability to pay anti-dumping duty for the interregnum period. It was submitted that the taxable event for levy of anti-dumping duty was the importation of the goods, and therefore, on importation between 2nd November, 2002 and 30th April, 2003, on the basis of the law then prevailing, the importer was not liable to pay any anti-dumping duty. The notification dated 1st May, 2003 issued subsequent to the import, seeks to impose a substantive and new liability or obligation on past transactions, and was, therefore, plainly retrospective. It was contended that Parliament did not confer any power on the delegatee, i.e. the Central Government to impose duties with retrospective effect in respect of such past transactions and therefore, the notification to the extent it operated retrospectively was ultra vires the provision of Section 9A(1) of the Customs Tariff Act 1975. It was argued that there were no express words in Section 9A authorizing the Central Government to issue notification having retrospective effect, nor was there any indication of necessary implication to that effect. It was argued that in contrast Section 9A(3), by necessary implication, ruled out any other retrospective duty, and that the only retrospective duty that was intended to be imposed was expressly mentioned in Section 9A(3). It was further contended that the validity of the impugned notification having retrospective effect cannot be sustained on the strength of Rule 20(2)(a) of the said rules. It was contended that for judging the validity of the impugned notification, Section 9A(6), which conferred rule making power on the Central Government, was of no consequence. Power to frame rules for assessment and collection of duty had no relevance for judging the validity of the retrospective operation of a notification issued under Section 9A(1). It was, therefore, argued that the impugned notification was invalid because it was retrospective. It was then contended that since the Government of India was a signatory to the WTO Agreement, every endeavour should be made to interpret the rules in conformity with the commitments made by the Government of India to the international community. Heavy reliance was placed on Article 10 of the WTO Agreement, and it was submitted that Article 10.2 thereof stipulated that final duty may be levied for the period for which provisional measures had been applied. It was submitted that the purpose of enacting Article 10.2 was to validate or regularize the provisional duty for the period for which it had been applied. It was further submitted that Article 10.4 stipulated that in the case of material retardation and a threat of injury despite the provisional measure, final duty can be prospective only and the provisional levies had to be refunded. It was contended that Articles 10.2 to 10.5 constituted one integral code dealing with different contingencies and situations based on Page 309 conclusions about the injury aspect. It was submitted that Article 10.1 would prevail and the final duty would be effective from the date of the notification in all other cases. The learned Counsel submitted that Rule 20(1) of the said rules had the same effect as Article 10.1 of the WTO Agreement and that the provisions contained in Articles 10.2 and 10.4 were condensed in Rule 20(2)(a). It was argued that in the absence of any compelling or overriding constraint, the phrase "where a provisional duty has been levied" occurring in Rule 20(2)(a), should be construed in the light of the provisions of the Article 10.2, and so construed it would only mean and refer to the period for which provisional measure had been applied. It was submitted that the said phrase of Article 10.2, namely, "period for which provisional measures had been applied" should be transplanted in Rule 20(2)(a) so as to bring it in tune with Article 10.2 of the WTO Agreement, so that Rule 20(2)(a) would also apply only to a situation where the provisional duty had been imposed and collected and will not apply to a period or a situation where the provisional duty had not been levied. It was also submitted that subordinate legislation cannot have retrospective operation or effect unless the parent statute confers the power on the delegated authority to enact a law to have such retrospective operation either by way of express words or by necessary implication. In support of this contention reliance was placed on the following decisions:
(a) The Cannanore Spinning and Weaving Mills v. Collector of Customs and Central Excise, Cochin and Ors.
(b) Hukam Chand Etc. v. Union of India and Ors. and Prithvi Chand (deceased) v. Union of India and Ors.
(c) Regional Transport Officer Chittoor and Ors. v. Associated Transport Madras (P) Ltd. and Ors.
(d) State of Bihar and Ors. v. Krishna Kumar Kabra and Anr.
(e) Kunj Behari Lal Butail and Ors. v. State of H.P. and Ors.
It was submitted that a subsequent law which imposes a new liability in respect of a past transaction is retrospective. For this he placed reliance on the decisions of the Supreme Court in Govind Das and Ors. v. Income Tax Officer and Anr. ; Page 310 K.S. Paripoornan v. State of Kerala and Ors. ; and, Craies on Statute Law Page 387, 7th Edition.
Arguments on behalf of the Respondent:
5. The learned senior advocate appearing for the respondent-Domestic Industry placed heavy reliance on the decision of this Tribunal rendered on 9th September, 2005 in Apollo Tyres Ltd. v. Union of India and Ors. cognate matters, in which the Special Bench had considered the same issue, and submitted that there was no scope for creating a hiatus in the application of the anti-dumping duty during the "interregnum period". He submitted that so far as this Tribunal was concerned, the point stood concluded by the said decision. The learned Counsel further argued that it was competent for parliament to enact legislation which had retrospective operation and to confer upon a rule making authority the power to frame a rule having retrospective operation and this can be done by necessary intendment. He argued that it was competent for the Parliament to confer the plenary power to impose a tax on a delegate under a staute. He placed reliance on the decision of the Supreme Court in Dr. Indramani Pyrelal Gupta v. W.R. Natu , in support of this contention. He then submitted that the impugned notification was only a ministerial act of bringing into force the final anti-dumping duty on the date prescribed by Rule 20(2)(a), i.e. from the date of imposition of provisional duty. It was submitted that the non-obstante clause of Rule 20(2)(a) made provisions of Rule 20(1) inoperative where the provisions of Rule 20(2)(a) were applicable. It was submitted that Rule 20(2)(a) pre-poned the levy of final anti-dumping duty to the date of levy of provisional anti-dumping duty). It was submitted that the interpretation suggested on behalf of the appellant will create a hiatus, in that, the final anti-dumping duty will cease to operate after the provisional duty had lapsed by efflux of time and there would be no final anti-dumping duty thereafter, because, recourse to Rule 20(1) would thereafter not be available. It was submitted that the word "where" in Rule 20(2)(a) in the context means "after", i.e. in the situation or in relation to something. According to him, the words "has been levied" must be interpreted to mean that the provisional duty was imposed in the past or prior to final antidumping duty. Its continuance, or being in force, in present was of no relevance in the construction of duration of final anti-dumping duty or as to when it will commence. He placed reliance on the decisions of the Supreme Court in S.G. Glass Works Pvt. Ltd. v. Collector of Central Excise & Customs, Nagpur , and Secretary Regional Transport Authority, Bangalore and Ors. v. D.P. Sharma and Ors. 1989 Suppl. (1) SCC 407 (paras 15 & 16), in support of these contentions. He then argued Page 311 that reference to WTO Agreement Article 10.2 to 10.4 was irrelevant in view of the marked departure in the language of the corresponding provisions in the said rules. It was also argued that the binding nature of the decision in Apollo Tyres was not affected, merely because some arguments were not advanced before the earlier Bench. The learned senior advocate contended that "entire universe of discourse" was between Section 9A(1) to 9A(6) minus Section 9A(3), and the Parliament had entrusted the delegate to make law imposing anti-dumping duty from the dates indicated in these provisions. It was submitted that Section 9A contained sufficient guidelines for the exercise of powers by the delegate and five years' duration was contemplated in respect of imposition of antidumping duty, by virtue of Sub-Section (5) of Section 9A. Therefore, there was no reason to resort to Article 10.2 or 10.4 of the WTO Agreement. It was submitted that, power to impose anti-dumping duty with effect from the date on which the provisional duty was imposed was essential for preventing mischief that would be caused by mass dumping if during the interregnum period the definitive anti-dumping duty is not allowed to operate. He submitted that the Court should adopt such construction as shall suppress the mischief and advance the remedy, and to suppress subtle invention and evasions for continuance of the mischief. The learned Counsel placed reliance on the decisions of the Supreme Court in Bengal Immunity Company v. State of Bihar and Ors. , Dhulabhai v. State of M.P.11 and Alpha Chem and Anr. v. State of U.P. and Ors. reported in 1991 (Supplement-I) SCC 518, in support of his contention.
5.1 The learned Counsel appearing for the Designated authority adopted the contentions raised on behalf of the respondent - domestic industry and submitted that the question stood concluded by the decision of this Tribunal in Apollo Tyres (supra). The relevant paragraphs 33 and 33.2 on which reliance was placed are reproduced hereunder:
33. It was argued on behalf of the appellants (producer/exporter) that during the interregnum period (i.e. between 25th January, 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. 20th July, 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) Page 312 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 consonance with Article 10.3 of the WTO AD Agreement. On this basis, it was 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 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.
xxx xxx xxx 33.2 The provisions of Sub-rule (2) will prevail over Sub-rule (1) of Rule 20 as per the non-obstante clause of Sub-rule (2). This 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 antidumping 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 Ruler 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 antidumping duty levied by the central government under Rule 18. There is, therefore, no scope for creating a hiatus in the retrospectivity of the antidumping 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.
Reasons:
6. The controversy centres around the question whether during the "interregnum period", i.e., the date on which the duration of provisional duty ended by virtue of the second proviso to Rule 13 and the date on which the notification imposing definitive anti-dumping duty was issued (the period between 2nd November, 2002 and 1st May, 2003), could be validly levied by the notification dated 1st May, 2003 which made the definitive anti-dumping duty effective from 2nd May, 2002, being the date of the Page 313 commencement of the basis of provisional anti-dumping duty under Section 9A(2), imposed on provisional estimates.
6.1 Anti-dumping duty on dumped articles may be imposed by notification in the official gazette, where any article is exported from any country to India at less than its normal value, upon the importation of such article, as provided by Section 9A(1) of the Customs Tariff Act 1975. Pending the determination in accordance with the provisions of Section 9A and the rules made thereunder, of the normal value and the margin of dumping in relation to any article, the Central Government may impose on the importation of such article an anti-dumping duty on the basis of a provisional estimate of such value and margin, as provided under Sub-Section (2) of Section 9A. The duty so imposed, though on a provisional estimate of normal value and margin of dumping, is nonetheless an antidumping duty, which can be imposed only by a notification in the official gazette by virtue of Section 9A(1), since that is the requirement for imposition of an anti-dumping duty which would also apply to the imposition of anti-dumping duty on the basis of a provisional estimate under Sub-Section (2) of Section 9A. The fact that the provisional duty is also treated as anti-dumping duty and not merely some provisional deposit is clear even from Sub-Section (2) of Section 9A in which the expression "any anti-dumping duty imposed under Sub-Section (2)" occurs. Even in Sub-Section (3), the expression "anti-dumping duty under Sub-Section (2)" is used. Under Sub-Section (4) of Section 9A, it is laid down that anti-dumping duty chargeable under this Section shall be in addition to any other duty imposed under the Tariff Act or any other law for the time being in force. Here, the expression "anti-dumping duty chargeable under this Section would include even the provisional anti-dumping duty that may be imposed under Sub-Section (2) of Section 9A besides the definitive anti dumping duty, that may be ultimately imposed. Under Sub-Section (3) of Section 9A the Central Government is empowered by notification in the official gazette to levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under Sub-Section (2), but not beyond ninety days from the date of notification under that Sub-Section. By Sub-Section (5) of Section 9A, it has been provided that, anti-dumping duty imposed under Section 9A shall, unless revoked earlier, ceases to have effect on the expiry of five years from the date of such imposition. Such period may, however, can be extended for a further period of five years, under the first proviso to Section 9A(5).
6.2 Under Rule 13 of the said rules which has been framed in the context of Section 9A(2) of the Act, it has been provided that the Central Government may impose a provisional duty and that no such duty shall be imposed before the expiry of sixty days from the date of the public notice issued by the designated authority regarding its decision to initiate investigations. In the second proviso to Rule 13, it has been further provided that such duty shall remain in force only for a period not exceeding six months which may, upon request of exporters representing a certain percentage of the trade involved, be extended by the Central Government to nine months. Page 314 Thus, the duration of provisional anti-dumping duty which is not indicated in Section 9A(2) has been provided for in Rule 13, having regard to the provisional nature of the anti-dumping duty imposed pending finalization of the investigation. The anti-dumping duty not exceeding the margin of dumping as determined under Rule 17 may be imposed by the Central Government by notification in the official gazette under Rule 18. The anti-dumping duty levied under Rule 13 and Rule 18 shall take effect from the date of its publication in the official gazette, as provided under Rule 20(1) of the said rules. Sub-rule (2) of Rule 20, however, inter-alia, provides that notwithstanding anything contained in Sub-rule (1), where a provisional duty has been levied and final findings are recorded, as contemplated therein, the anti-dumping duty may be levied from the date of imposition of provisional duty. Since much controversy has centred around the provisions of Rule 20(2)(a), it is reproduced hereunder along with Sub-rule (1) of Rule 20:
20. Commencement of duty:
(1) The anti-dumping duty levied under Rule 13 and Rule 18 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.
7. It is clear from the reading of the provisions of Section 9A(1), (2), (3) and (5) and Rules 13, 18, and 20 of the said rules that there can be three possible dates of commencement of the definitive anti-dumping duty:
(i) When there is no anti-dumping duty imposed under Section 9A(2) on the basis of provisional estimates, the date of commencement of the definitive anti-dumping duty will be the date of notification issued in the official gazette under Section 9A(1) of the said Act read with Rules 18 and 20(1) of the said rules.
(ii) When an anti-dumping duty is imposed under Section 9A(2) on provisional estimates, it operates during the pendency of final determinations of normal value and margin of dumping under the rules. Therefore, on the definitive anti-dumping duty being imposed, it has necessarily to cover the period during which the anti-dumping duty was imposed on the basis of provisional estimates, to give effect to Section 9A(2)(a) and (b), of reducing the anti-dumping duty and refunding the excess. This means the duty imposed on the basis of provisional estimates under Section 9A(2) retains its character of an anti-dumping duty even when the definitive anti-dumping duty is imposed so long it is not in excess thereof, and even when it is in excess to the extent to which it gets reduced it retains the characteristics of an antidumping duty and Page 315 would become definitive to that reduced extent. Section 9A(2) of the said Act, does not, by itself, fix the period during which anti-dumping duty imposed on provisional estimates would remain operative. The period of the imposition of anti-dumping duty under Section 9A(2), however, is regulated in it by making it the arrangement, "pending the determination" of the normal value and margin of dumping. Sub-Section (2) of Section 9A does not specifically provide for the date of commencement of antidumping duty on provisional estimates, but even duty on provisional estimates being an anti-dumping duty, it has to be imposed in accordance with Section 9A(1) by a notification issued in official gazette. This is why, Rule 20(1) provides that the provisional anti-dumping duty imposed under Rule 13 shall take effect from the date of its publication in the official gazette. In other words, though Section 9A(2) does not refer to provisional anti-dumping duty being imposed by publication in official gazette, it has to be so imposed in view of the requirement of such publication laid down in Section 9A(1) which applies to all impositions of anti-dumping duty whether provisional or definitive. Since imposition of anti-dumping duty is required to be done by publishing notification in official gazette, the date of commencement of anti-dumping duty, even when provisional, has to be its date of publication in the official gazette. Since provisional duty under Section 9A(2) is an anti-dumping duty, and the definitive antidumping duty if less than the provisional anti-dumping duty, has the effect of reducing it, the statutory requirement to reduce it to the level of the definitive anti-dumping duty, makes it necessary to coincide the date of commencement of imposition of anti-dumping duty with the date of the imposition of the provisional anti-dumping duty. Thus, where provisional anti-dumping duty is imposed, date of commencement of definitive anti-dumping duty will be the date of imposition of provisional anti-dumping duty, as contemplated by Rule 20(2)(a) of the rules read with Section 9A(2) of the said Act.
(iii) The anti-dumping duty can be retrospectively imposed, as contemplated under Section 9A(3) from a date prior to date of imposition of provisional anti-dumping duty under Sub-Section (2) of Section 9A, but not beyond ninety days from the date of notification under Sub-Section (2) of Section 9A. Thus, the date of commencement of anti-dumping duty in cases where it is imposed retrospectively under Sub-Section (3) of Section 9A read with Rule 20(3) will be such retrospective date mentioned in the notification imposing the anti-dumping duty retrospectively from such date.
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 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 Page 316 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 antidumping duty as well 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. The period of five years of anti-dumping duty will have to be given its full play, in view of the provisions of Section 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 Page 317 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 statutory 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 Section 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 upto 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 Page 318 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 antidumping duty was imposed.
Moreover, when the Act contemplated under Section 9A(3) retrospective imposition of final duty even during the period upto 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 and 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 Page 319 the mischief that was sought to remedied. We, therefore, hold that Rule 20(2)(a) 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.
10. There appears to be some misconception about the legal status of this Tribunal as it appeared from the contention which was raised during the hearing on behalf of the respondent to the effect that the Tribunal not being constituted under Article 323B of the Constitution of India and being creature of the statute, has no power to consider whether the rules are ultra vires the Act. Such doubt is wholly misplaced in view of the decisions of the Supreme Court in L. Chandra Kumar v. Union of India , R.K. Jain v. Union of India and the decision of this Tribunal in Mitra Steel and Alloys Pvt. Ltd. v. CCE, Raigad reported in 2005 TIOL 824 CESTAT MUM. The doubt so raised before us is not at all warranted by the provisions of Article 323B inserted by the Constitution (42nd Amendment) Act 1976, which clearly contemplated constitution of a Tribunal of this nature. It will be noted that Article 323B of the Constitution is not a self executing provision and it merely authorized the appropriate legislature to make laws to set up tribunals to the exclusion of courts. Article 323B(1) enables the Parliament to provide, by legislation, for the adjudication by tribunals, of the matters specified in Clause (2) including "levy, assessment, collection and enforcement of any tax" under Sub-clause (a) thereof. Such law made under Clause (1) may provide for the establishment of hierarchy of tribunals, specify their powers and procedures under Clause (3) of Article 323B. Thus, Article 323B only specifies the Parliament's power to make law for entrusting matters to the tribunal created by law, which would be a tribunal created under a statute like this tribunal which was created under the law, i.e. under Section 129 of the Customs Act with other statutory provisions made thereunder regarding matters entrusted to it to exercise jurisdiction to the exclusion of all courts except the High Court and the Supreme Court. Both Articles 323A and 323B contemplated that such tribunals may be established under a statute which provide for such establishment and did not create them. Section 129 of the Customs Act is a law made under Clause (1) of Article 323B that provided for the establishment of this tribunal by requiring the Central Government to constitute this Appellate Tribunal, as contemplated by Clause (3) of Article 323B, which is similar to Article 323A(2)(a) relating to Administrative Tribunals. The establishment of this Tribunal owes its existence to the law made by the Parliament in the exercise of the powers Page 320 to make law providing for establishment of tribunals as specified in Article 323B(3)(a) read with Article 323B(1) and 2(a) of the Constitution. This leaves no scope for treating this tribunal merely as a department of the executive Government or its adjunct, which departments are created under the rules of business by the executive head. This Appellate Tribunal has clearly an independent statutory existence emanating from the constitutional provisions of Article 323B that specify the power of the Parliament to make law providing for its establishment. Its establishment as an independent statutory creation envisaged by a specific constitutional provision, as distinguished from a mere department of executive government, emphasizes the nature of its purely judicial appellate functions which on important issues are subject only to the appellate powers of the Supreme Court under Section 130E(b) of the Customs Act 1962. The type of doubt raised against its independent statutory existence which is directly relatable to Article 323B, undermines the constitutional effort to establish such tribunals for performing specific judicial functions, as an attribute of exercise of sovereign power that underlies the judicial adjudicatory processes of courts and purely judicial tribunals, like the CESTAT, that are created for achieving such tasks. The institutions contemplated by the Constitution can be enormously damaged from within and without if their nature and purpose of creation are not properly understood. We hold that this Tribunal has the power to consider the validity of the impugned Rule which we have found to be valid and in consonance with the provisions of the Parent Act.
Final Order:
11. For the foregoing reasons, the contentions raised on behalf of the appellant against the impugned notification are misconceived and cannot be accepted. The appeal is, therefore, dismissed.
(Pronounced on 9th December, 2005)