Supreme Court of India
COMMISSIONER OF CUSTOMS, BANGALOREversusM/S. G. M. EXPORTS & OTHERS
- Citation
- 2015 INSC 693
- Decided
- 23 September 2015
- Disposal
- Disposed off
- Bench
- A K SIKRI
Holding
A final anti‑dumping duty may be levied retroactively only for the period during which provisional measures were in force; it cannot be imposed for the interregnum period between the expiry of the provisional duty and the final duty notification.
Summary
The Supreme Court examined whether a final anti‑dumping duty could be levied for the period between the expiry of a provisional duty and the issuance of a final duty notification. The Court held that Rule 20(2)(a) of the Anti‑Dumping Rules must be read in harmony with Rules 13 and 21 and with WTO Agreement Article 10.2, meaning that a final duty can only incorporate the period covered by the provisional duty, not extend beyond it. Consequently, no anti‑dumping duty may be collected in the "gap" or interregnum period. The Court rejected the revenue's construction of Rule 20 as ultra vires Section 9A and dismissed the appeal, allowing the assessee's position.
Issues considered
- The legality of levying a final anti‑dumping duty for imports made during the interregnum between the lapse of a provisional duty and the imposition of a final duty.
- Interpretation of Rule 20(2)(a) of the Anti‑Dumping Rules in relation to Rules 13 and 21.
- Whether Section 9A of the Customs Tariff Act authorises retrospective levy beyond the provisional period.
- The meaning of "levied" in Rule 20 and its compatibility with Rule 21.
- Consistency of domestic anti‑dumping provisions with WTO Agreement provisions, particularly Article 10.2 and 10.6.
Legislation cited
- Constitution of Indias. Article 51(c)
- Customs Tariff Act, 1975s. 9A
- Customs Tariff (Identification, Assessment and Collection of Anti‑dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995s. Rule 13, s. Rule 20, s. Rule 21
Subjects
anti‑dumping dutyprovisional dutyfinal dutyWTO AgreementSection 9ARule 20retroactive levyinterregnum periodcustoms lawstatutory interpretationinternational treaty obligations
Judgment
(2015] 14 S.C.R. 848
A COMMISSIONER OF CUSTOMS, BANGALORE
v.
MIS. G. M. EXPORTS & OTHERS
(Civil Appeal No. 3889 of 2006)
B
SEPTEMBER 23, 2015
[A. K. SIKRI AND R. F. NARIMAN, JJ.]
Anti-dumping - Customs Tariff (Identification,
Assessment and Collection of Anti-Dumping Duty on
C Dumped Articles and for Determination of Injury) Rules, 1995
- rr.20, 21 and 13 - Levy of anti-dumping duty during the
interregnum between the expiry of a provisional duty
notification and the imposition of final anti-dumping duty -
Whether anti-dumping duty imposed with respect to imports
D made during the period between the expiry of the provisional
anti-dumping duty and the imposition of the final anti-
dumping duty is legal and valid - Held: Correct construction
of r.20 of the Rules is determinative of the question raised
herein - Sub-rule (2)(a) of r.20 enables the levy of a final
E anti-dumping duty from the date of imposition of a provisional
duty so as to convert the provisional measure into a final
measure, or so as to take within its ken the provisional anti-
dumping duty already imposed- The final anti-dumping duty
only incorporates the provisional anti-dumping duty within
F itself, but in the manner provided by r. 13 - Thus, such
incorporation can only be the period upto which the
provisional duty can be levied and not beyond - Thus
understood, it is clear that both literally, and in keeping with
the object sought to be achieved - that is the making of laws
G in conformity with the WTO Agreement, 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 - Such interpretation makes it clear that
clause 10.2 of the WTO Agreement is reproduced in the same
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848
COMMISSIONER OF CUSTOMS, BANGALORE v. 849 ·
M/S. G. M. EXPORTS
sense though not in the same form in sub-rule (2)(a) - The A
same result therefore as is envisaged in clause 10.2 is
achieved by the said construction- that is anti-dumping duty ·
may be levied retroactive Iv for the period for which provisional
measures have been applied -The said construction is in
consonance with the principles that the WTO Agreement is 'B
· intended to be applied by the various signatory nations in a
uniform manner - This can only be done by construing the
language of s. 9A read with the Rules in the same sense as
that of the WTO Agreement- r.21, in turn, is made to carry
out what is stated in clause 10.3 of the WTO Agreement- C
r.21 (2) echoes what is already found in s.9A(2)- If provisional
anti-dumping duty is found to be higher than the final anti-
dumping duty, the differential shall be refunded to the importer
- But sub-rule ( 1) goes a step further and states that if the
anti-dumping duty finally imposed is higher than the o
provisional duty already imposed and collected, the
differential shall not be collected from the importer - lf the
revenue were right, despite the fact that such differential
cannot be collected from the importer under r. 21 ( 1) for the
period that the provisional duty notification is in force, during E
the interregnum period, the full amount of final duty is liable
to be recovered from the importer- This would turn r.21(1)
on its head and result in an absurdity-r.21(1) also answers
the contention of the Revenue that the object of anti-dumping
laws would be defeated if it were found that dumping and F
material injury having been found, yet no anti-dumping duty
can be levied - Customs Tariff Act - s.9A - General
Agreement on Tariffs and Trade (GATT)-Art. VI- European
Community Council Regulation No. 1225 of 2009 dated
30.11.2009.
G
International Law- Treaty obligations- How domestic
legislation must be construed when it is made in furtherance
of an international treaty - Held: ( 1) Article 51 (c) of the
Constitution is a Directive Principle of State Policy which
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850 SUPREME COURT REPORTS [2015) 14S.C.R.
A states that the State shall endeavour to foster respect for
international Jaw and treaty obligations -As a result, rules of
international Jaw which are not contrary to domestic Jaw 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
B ·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
c pursuant to the said treaty, it is a legitimate aid to the
construction of the provisions of such statute that are vague
or ambiguous to have recourse to the terms of the treaty to
resolve such ambiguity in favour of a meaning that is
consistent with the provisions of the treaty- (3) In a situation
o where India is a signatory nation to an international treaty,
and a statute is made in furtherance of such treaty, a
purposive rather than a narrow literal construction of such
statute is preferred - The interpretation of such a statute
should be construed on broad principles of general
E acceptance rather than earlier domestic precedents, being
intended to carry out treaty obligations, and not to be
inconsistent with them-(4) In a situation in which India is a
signatory nation to an international treaty, and a statute is
made to enforce a treaty obligation, and if there be any
F difference between the language of such statute and a
corresponding provision of the treaty, the statutory language
should be construed in the same sense as that of the treaty
- This is for the reason that in such cases what is sought to
be achieved by the international treaty is a uniform
G international code of law which is to be applied by the courts
of all the signatory nations in a manner that leads to the same
result in all the signatory nations - Directive Principle of State
Policy- Constitution of India - Art. 51 (c).
H
I
COMMISSIONER OF CUSTOMS, BANGALORE v. 851
M/S. G. M. EXPORTS
Harsh International v. Commissioner of Customs A
Civil Appeal No. 5119 of2012 [judgment of the
Bombay High Coury dated 15.12.2011); S&S
Enterprise v. Designated Authority and others,
(2005) 3 SCC 337 : 2005 (2) SCR 255; Reliance
Industries Ltd. v. Designated Authority and others B
o
(2006) 1 sec 368 : 2006 (6) Suppl. scR 1;
Ve/lore Citizens' Welfare Forum v. Union of India
and others (1996) 5 SCC 647 : 1996 (5) Suppl.
SCR 241; Daya Singh Lahoria v. Union of India
and others (2001) 4 SCC 516 : 2001 (3) SCR 1; C
N.B. Sanjana, Assistant Collector of Central
Excise, Bombay and others v. The Elphinstone
Spinning and Weaving Mills Company Ltd. 1971
(1) SCC 337; Assistant Collector of Central
Excise, Calcutta Division v. National Tobacco Co. D
of India Ltd. (1972) 2 SCC 560: 1973 (1) SCR 822
- referred to.
The Jade The Eschersheim Owners of the motor
vessel Erkowit v. Owners of the ship Jade [1976)
1 All ER 920; Quazi v. Quazi [1979) 3 All ER 897; E
Garland v. British Rail Engineering Ltd. [1982) 2
All ER402; The Hollandia's case [1982) 3All ER
1141; Sidhu and others v. British Airways pie
Abnett (known as Sykes) v. British Airways pie
[1997) 1 All ER 193- referred to. F
"A Handbook on Anti-Dumping
Investigations" by Judith Czako, Johann Human
and Jorge Miranda - referred to.
Case Law Reference G
2005 (2) SCR 255 referred to Para 13
2006 (6) Suppl. SCR 1 referred to Para 14
1996 (5) Suppl. SCR 241 referred to Para 20
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852 SUPREME COURT REPORTS [2015] 14 S.C.R.
A 2001 (3) SCR 1 referred to Para 21
1911 (1) sec 337 referred to. Para 42
1973 (1) SCR 822 referred to Para 42
CIVILAPPELLATE JURISDICTION: Civil Appeal Nos.
B 3889 of 2006.
From the Judgment and Order dated 07.12.2005 of the
Customs, Excise &Service TaxAppellate Tribunal, South Zonal
Bench at Bangalore, in Appeal Nos. C/399/2004, C/400/2004,
C C/431/2004.
WITH
C.A. Nos. 3082, 3086 of 2011 & 7814, 5119 of 2012 &
7894, 7895 of 2015. ·
Ms. PinkyAnand,ASG, YashankAdhyaru, Ms. Meenakshi
0
Arora, Sr. Advs., Arijit Prasad, Ms. Rashmi Malhotra, B. Krishna
Prasad, Mahesh Agarwal, Ankur Saigal, E. C. Agrawala, Alok
Yadav, Somnath Shukla, Udit Jain, Praveen Kumar,
Ms. Shomila Bakshi, V. Lakshmikumaran, M. P. Devanath, Atul
E Gupta, T. D. Satish, Ms. L. Charanaya, Aditya Bhattacharya,
Hemant Bajaj, Abhinav Jagnathan, Jitendra Singh, Vasav
Anantharaman, Prashant Kumar, Saurabh Suman Sinha,
M/s. Ap & J Chambers, Advs. for the Appellants.
Anil Kumar Mishra-I, V. M. Doiphode, Rajesh Kumar,
F Advs., for the Respondents.
The Judgment of the Court was delivered by
R. F. NARIMAN, J. 1. Leave granted in S.L.P. (Civil) No.
13028 of 2012 and S.L.P. (Civil) No. 27811 of 2012.
G 2. Seven appeals are before us; some of them are from
the Bombay High Court judgment dated 15.12.2011 and the
Keral;:i High Court judgment dated 15.07 .2009. Others are
appeals against a Karnataka Tribunal (Bangalore) judgment
and a Bombay Tribunal judgment, which follows the Bombay
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 853
M/S. GM. EXPORTS [R. F. NARI MAN, J.]
High Court judgment referred to above. Since all these appeals A
raise a common question of law of some complexity relating
to anti-dumping duty, the said appeals have been bunched
together and are being disposed of together. It may also be
stated that the preponderant view, that is the view of both the
Bombay and Kerala High Courts and the Bombay Tribunal, is B
in favour of the construction suggested by revenue. Only the
Karnataka Tribunal (Bangalore) has decided in favour of the
assessee.
3. The question of law which arises in the instant appeals
is whether anti-dumping duty imposed with respect to imports C
made during the period between the expiry of the provisional
anti-dumping duty and the imposition of the final anti-dumping
duty is legal and valid.
4. It is necessary in this case to begin at the very 0
beginning. The General Agreement on Tariffs and Trade (GATT)
in Article VI first laid down how, conceptually, anti-dumping
duties were to be imposed. The relevant part of Article VI reads
asunder:-
"Article VI E
Anti-dumping and Countervailing Duties
1. The contracting parties recognize that dumping, by
which products of one country are introduced into the
commerce of another country at less than the normal F
value of the products, is to be condemned if it causes or
threatens material injury to an established industry in the
territory of a contracting party or materially retards the
establishment of a domestic industry. For the purposes
of this Article, a product is to be considered as being G
· introduced into the commerce of an importing country at
less than its normal value, if the price of the product
exported from one country to another
(a) is less than the comparable price, in the ordinary
H
854 SUPREME COURT REPORTS [2015) 14S.C.R.
A course of trade, for the like product when destined for
consumption in the exporting country, or,
(b) in the absence of such domestic price, is less than
either
B (i) the highest comparable price for the like product
for export to any third country in the ordinary course of
trade, or
(ii) the cost of production of the product in the country
of origin plus a reasonable addition for selling cost
c and profit.
Due allowance shall be made in each case for
differences in conditions and terms of sale, for differences
in taxation, and for other differences affecting price
comparability.
D
2. In order to offset or prevent dumping, a contracting
party may levy on any dumped product an anti-dumping
duty not greater in amount than the margin of dumping in
respect of such product. For the purposes of this Article,
E the margin of dumping is the price difference determined
in accordance with the provisions of paragraph 1."
5. In pursuance of the said Article VI, various member
nations entered into a World Trade Organisation Agreement
to implementArticle VI, in 1994. The said agreement is referred
F to as "Agreement on Implementation of Article VI of the General
Agreement on Tariffs and Trade, 1994", and in its material
aspects, which are important in order to decide the question
raised in these appeals, states as follows:-
"Members hereby agree as follows:
G
PARTI
Article 1
I
Principles
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 855
M/S. G M. EXPORTS [R. F. NARI MAN, J.)
An anti-dumping measure shall be applied only under A
the circumstances provided for in Article VI of GATT 1994
and pursuant to investigations initiated and conducted
in accordance with the provisions of this Agreement. The
following provisions govern the application of Article VI
of GATT 1994 in so far as action is taken under anti- B
dumping legislation or regulations."
"Article 10
Retroactivity
10.1 Provisional measures and anti-dumping duties shall C
only be applied to products which enter for consumption
after the time when the decision taken under paragraph
1 of Article 7 and paragraph 1 of Article 9, respectively,
enters into force, S,\,lbject to the exceptions set out in this
M~. D
10.2 Where a final determination of injury (but not of a
threat thereof or of a material retardation of the
establishment of an industry) is made or, in the case of a
final determination of a threat of injury, where the effect
of the dumped imports would, in the absence of the E
provisional measures, have led to a determination of
injury, anti-dumping duties may be levied retroactively for ·
the period for which provisional measures, if any, have
been applied. •
F
10.3 If the definitive anti-dumping duty is higher than the
provisional duty paid or payable, or the amount estimated
for the purpose of the security, the difference shall not be
collected. If the definitive duty is lower than the provisional
duty paid or payable, or the amount estimated for the G
purpose of the security, the difference shall be reimbursed
or the duty recalculated, as the case may be."
"10.6 A definitive anti-dumping duty may be levied on
products which were entered for consumption not more
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856 SUPREME COURT REPORTS [2015] 14 S.C.R.
A than 90 days prior'to the date of application of provisional
. measures, when the authorities determine forthe 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
B 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
c timing and the volume of the dumped imports and other
circumstances (such as a rapid build-up 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
D 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 collect anti-dumping
E duties retroactively, as provided for in paragraph 6, once they
have sufficient evidence that the conditions set forth in that
paragraph are satisfied.
10.8 No duties shall be levied retroactively pursuant to
paragraph 6 on products entered for consumption prior to the
F date of initiation of the investigation."
"18.4 Each Member shall take all necessary steps, of a
general or· particular character. to ensure, not later than the
date of entry into force of the WTO Agreement for it, the
G conformity of its laws, regulations and administrative
procedures with the provisions of this Agreement as they may
apply for the Member in question."
6. In pursuance of the said Article VI and the said
Agreement, both of which India is a signatory to, amendments
H were made in the Customs Tariff Act in the year 1995. The
COMMISSIONER OF CUSTOMS, BANGALORE v. 857
MIS. G. M. EXPORTS [R. F. NARIMAN, J.]
amendment with which we are directly concerned is the A
introduction of a new Section 9A to the said Act which reads
asunder:-
"Section 9A. Anti - dumping duty on dumped
articles( 1) Where any article is exported by an exporter
or producer from any country or territory (hereafter in this B
section referred to as the exporting country or territory)
to India at less than its normal value, then, upon the
importation of such article into India, the Central
G.overnment may, by notification in the Official Gazette,
impose an anti-dumping duty not exceeding the margin C
of dumping in relation to such article.
Explanation.-For the purposes of this section,-
(a) "margin of dumping" in relation to an article, means
the difference between its export price and its normal D
value;
(b)"export price", in relation to an article, means the price
of the article exported from the exporting country. or
territory and in cases where there is no export price or
where the export price is unreliable because of E
association or a compensatory arrangement between
the exporter and the importer or a third party, the export
price may be constructed on the basis of the price at
which the imported articles are first resold to an
independent buyer or if the article is not resold to an F
independent buyer, or not resold in the condition as
imported, on such reasonable basis as may be
determined in accordance with the rules made under sub-
section (6 );
G
(c) "normal value", in relation to an article, means- .•
(i) the comparable price, in the ordinary course of trade,
· for the like article when destined for consumption in the
exporting country or territory as determined in
H
858 SUPREME COURT REPORTS [2015] 14 S.C.R.
A accordance with the rules made under sub-section (6);
or
(ii) when there are no sales of the like article in the
ordinary course of trade in the domestic market of the
exporting country or territory, or when because of the
B particular market situation or low volume of the sales in
the domestic market of the exporting country or territory,
such sales do not permit a proper comparison, the normal
value shall be either-
c (a) comparable representative price of the like article
when exported from the exporting country or territory to
an appropriate third country as determined in
accordance with the rules made under sub-section (6);
or
D (b) the cost of production of the said article in the country
of origin along with reasonable addition for
administrative, selling and general costs, and for profits,
as determined in accordance with the rules made under
sub- section(6):
E Provided that in the case of import of the article from a
country other than the country of origin and where the
article has been merely transhipped through the country
of export or such article is not produced in the country of
export or there is no comparable price in the country of
F export, the normal value shall be determined with
reference to its price in the country of origin.
(1A). Where the Central Government, on such inquiry as
it may consider necessary, is of the opinion that
circumvention of anti-dumping duty imposed under sub-
G
section (1) has taken place, either by altering the
description or name ot composition of the article subject
to such anti-dumping duty or by import of such article in
an unassembled or dissembled form or by changing the
country of its origin or export or in any other manner,
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 859
MIS. G M. EXPORTS [R. F. NARIMAN, J.]
whereby the anti-dumping duty so imposed is rendered A ·
ineffective, it may extend the anti-dumping duty to such
article or an article originating in or exported from such
country, as the case may be.
(2) The Central Government may, pending the
determination in accordance with the provisions of this 8
section and the rules made thereunder of the normal
value and the margin of dumping in relation to any article,
impose on the importation of such article into India an
anti-dumping duty on the basis of a provisional estimate
of such value and margin and if such anti-dumping duty C
exceeds the margin as so determined,-
(a) the Central Government shall, having regard to such
determination and as soon as may be after such
determination, reduce such anti-dumping duty; and 0
(b) refund shall be made of so much of the anti- dumping
duty which has tieen collected as is in excess of the anti-
dumping duty as so reduced. ·
(2A) Notwithstanding anything contained in sub-section
( 1) and sub-section (2), a notification issued under sub- E
section (1) or any anti-dumping duty imposed under sub-
section (2), unless specifically made applicable in such .
notification or such imposition, as the case may be, shall
not apply to articles imported by a hundred per cent
export-oriented undertaking or a unit in a free trade zone F
or in a special economic zone.
Explanation. - For the purposes of this section, the
expressions "hundred per cent export-oriented
undertaking", "free trade zone" and "special economic G
zone" shall have the meanings assigned to them in
Explanations 2 to sub-section (f) of section 3 of Central
ExciseAct, 1944.
(3) If the Central Government, in respect of the dumped
article under inquiry, is of the opinion that- .H
860 SUPREME COURT REPORTS [2015] 14 S.C.R.
A (i) there is a history of dumping which caused injury or
thatthe importer was, or should have been, aware that
the exporter practices dumping and that such dumping
would cause injury; and
(ii) the injury is caused by massive dumping of an article
B imported in a relatively short time which in the light of the
timing and the volume of imported article dumped and
other circumstances is likely to seriously undermine the
remedial effect of the anti- dumping duty liable to be
levied,
c
the Central Government may, by notification in the Official
Gazette, 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
D the date of notification under that sub-section, and
notwithstanding any thing contained in any other law for
the time being in force, such duty shall be payable at
such rate and from such date as may be specified in the
notification.
E (4) The anti-dumping duty chargeable under this section
shall be in addition to any other duty imposed under this
Act or under any other law for the time being in force.
(5) The anti-dumping duty imposed under this section
shall, unless revoked earlier, cease to have effect on the
F expiry of five years from the date of such imposition:
Provided that if the Central Government, in a review, is
of the opinion that the cessation of such dllty is likely to
lead to continuation or recurrence of dumping and injury,
G· it may, from time to time, extend the period of such
imposition for ·a further period of five years and such
further period shall commence from the date of order of
such extension.
Provided further that where a review initiated before the
H expiry of the aforesaid period of five years has not come
COMMISSIONER OF CUSTOMS, BANGALORE v. 861
MIS. G. M. EXPORTS [R. F. NARIMAN, J.]
to a conclusion before such expiry, ·the anti-dumping duty A
may continue to remain in force pending the outcome of
such a review for a further period not exceeding one year.
(6) The margin of dumping as referred to in sub- section
(1) or sub-section (2) shall, from time to time, be
ascertained and determined by the Central Government, B
after such inquiry as it may consider necessary and the
Central Government may, by notification in the Official
Gazette, make rules forthe purposes ofthis section, and
without prejudice to the generality of the foregoing such
rules may provide for the manner in which articles liable C
for any anti-dumping duty under this section may be
identified and for the manner in which the export price
and the normal value of and the margin of dumping in
relation to, such articles may be determined and for the
assessment and collection of such anti-dumping duty. D ·
(6A) The margin of dumping in relation to an article,
exported by an exporter or producer, under inquiry under
sub- section (6) shall be determined on the b;:isis of
records concerning normal value and export price E
maintained, and information provided, by such exporter
or producer: ·
Provided that where an exporter or producer fails to
provide such records or information, the margin of
dumping for such exporter or producer shall be F
determined on the basis of facts available.;
(7) Every notification issued under this section shall, as
soon as may be after it is issued, be laid before each
House of Parliament.
G
(8) The provisions of the Customs Act, 1962, (52of1962)
and the rules and regulations made thereunder, including
those relating to the date for determination of rate of duty,
assessment, non-levy, short levy, refunds, interest,
appeals, offences and penalties shall, as far .as may be, ·
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862 SUPREME COURT REPORTS [2015] 14 S~C.R.
A apply to the duty chargeable under this section as they
apply in relation to duties leviable under that Act."
7. In exercise of powers conferred, inter alia, by Section
9A (6) of the Customs Tariff Act, the Customs Tariff
(Identification, Assessment and Collection of Anti-Dumping
8 Duty on Dumped Artides and for Determination of Injury) Rules,
1995 have been framed. The Rules relevant to the
determination of the present controversy are set out hereunder:-
"2. Definitions.- In these rules, unless the context
c otherwise requires-
(e) "provisional duty" means an anti dumping duty
imposed under sub-section (2) of section 9A of the Act;
5. Initiation of investigation. - (1) Except as provided
in sub-rule (4), the designated authority shall initiate an
D
investigation to determine the existence, degree and
• effect of any alleged dumping only upon receipt of a
written application by or on behalf of the domestic
industry.
E (2)An application under sub-rule (1) shall be in the form
as may be specified by the designated authority and the
application shall be supported by evidence of-
(a) dumping
(b) injury, where applicable, and
F
(c) where applicable, a causal link between such dumped
imports and alleged injury.
(3) The designated authority shall not initiate an
investigation pursuant to an application made under sub-
G rule (1) unless -
(a) it determines, on the basis of an examination of the
degree of support for, or opposition to the application
expressed by domestic producers of the like product,
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COMMISSIONER OF CUSTOMS, BANGALORE v. 863
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
that the application has been made by or on behalf of A
the domestic industry :
Provided that no investigation shall be initiated if
domestic producers expressly supporting the application
account for less than twenty five per cent of the total
production of the like article by the domestic industry, B
and
(b) it examines the accuracy and adequacy of the
evidence provided in the application and satisfies itself
that there is sufficient evidence regarding - c
(i) dumping,
(ii) injury, where applicable; and
(iii) where app1icable, a causal link between such
dumped imports and the alleged injury, to justify the o
initiation of an investigation.
Explanation. - For the purpose of this rule the application
shall be deemed to have been made by or on behalf of
the domestic industry, if it is supported by those domestic
producers whose collective output constitute more than E
fifty per cent of the total production of the like article
produced by that portion of the domestic industry
expressing either support for or opposition, as the case
may be, to the application.
(4) Notwithstanding anything contained in sub-rule (1) the F
designate·d authority may initiate an investigation suo
motu if it is satisfied from the information received from
the Collector 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 G
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. H
864 SUPREME COURT REPORTS (2015] 14 S.C.R ..
A 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
B 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,
c 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 and in
accordance with the principles set out in Annexure II to
D these rules.
(3) The designated authority may, in exceptional cases,
give a finding as to the existence of injury even where a
substantial portion of the domestic industry is not injured,
if-
E
(i) there is a concentration of dumped imports into an
.isolated market, and
(ii) the dumped articles are causing injury to the producers
of all or almost all of the production within such market.
F
12. Preliminary findings. - (1) The designated authority
shall proceed expeditiously with the conduct of the
investigation and shall, in appropriate cases, record a
preliminary finding regarding export price, normal value
and margin of dumping, and in respect of imports from
G
specified countries, it shall also record a further finding
regarding injury to the domestic industry and such finding
shall contain sufficiently detailed information for the
preliminary determinations on dumping and injury and
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 865
M/S. G M. EXPORTS [R. F. NARIMAN, J.]
shall refer to the matters of fact and law which have led A
to arguments being accepted or rejected. It will also
contain:-
(i) the names of the suppliers, or when this is
impracticable, the supplying countries involved;
B
(ii) a description of the article which is sufficient for
customs purposes;
(iii) the margins of dumping established and a full
explanation of the reasons for the methodology used in
the establishment and comparison of the export price C
and the normal value; ·
(iv) considerations relevant to the injury determination;
and
(v) the main reasons leading to the determination. o
(2). The designated authority shall issue a public notice
recording its preliminary findings.
13. Levy of provisional duty- The Central Government
may, on the basis of the preliminary findings recorded E
by the designated authority, impose a provisional duty
not exceeding the margin of dumping:
Provided 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 F
to initiate investigations:
Provided further that such duty shall remain in force only
for a period not exceeding six months which may upon
request of the exporters representing a significant
percentage of the trade involved be extended by the G
Central Government to nine months.
17. Final findings. - (1) The designated authority shall,
within one year from the date of initiation of an
H
866 SUPREME COURT REPORTS (2015] 14 S.C.R.
A 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, -
B (i) the export price, normal value and the margin of
dumping of the said article;
(ii)whetherimportofthe said article into India, in the case
of imports from specified countries, causes or threatens
material injury to any industry established in India or
C materially retards the establishment of any industry in
India;
(iii) a causal link, where applicable, between the dumped
imports and injury;
D (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, in its
discretion in special circumstances extend further the
E 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
F
the terms of the said undertaking, the period for which
investigation was kept under suspension shall not be
taken into account while calculating the period of said
one year,
G (b) recommending the amount of duty which, if levied,
would remove the injury where applicable, to the domestic
industry.
. (2) The final finding, if affirmative, shall contain all
information on the matter of facts and law and reasons
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 867
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
which have led to the conclusion and shall also contain A
information regarding-
(i) the names of the suppliers, or when this is
impracticable, the supplying countries involved;
(ii) a description of the product which is sufficient for B
customs purposes;
_(iii) the margins of dumping established and a full
explanation of the reasons for the methodology used in
the establishment and comparison of the export price
and the normal value; C
(iv) considerations relevant to the injury determination;
and
(v) the main reasons leading to the determination.
(3) The designated authority shall determine an individual · D
margin of dumping for each known exporter or producer
concerned of the article under investigation: Provided
that in cases where the number of exporters, producers,
importers or types of articles involved are so large as to
make such determination impracticable, it may limit its E
findings either to a reasonable number of interested
parties or articles by using statistically valid samples
based on information available at the time of selection,
or to the largest percentage of the volume of the exports
from the country in question which can reasonably be F
investigated, and any selection, of exporters, producers,
or types of articles, made under this proviso shall
preferably be made in consultation with and with the
consent of the exporters, producers or importers
concerned : G
Provided further that the designated authority shall,
determine an individual margin of dumping for any
exporter or producer, though not selected initially, who
submit necessary information in time, except where the
H
868 SUPREME COURT REPORTS (2015] 14 S.C.R.
A number of exporters or producers are so large that
individual examination would be unduly burdensome and
prevent the timely completion of the investigation.
(4) The designated authority shall issue a public notice
recording its final findings.
B
18. Levy of duty. - (1) The Central Government may,
within three months of the date of publication of final
findings by the designated authority under rule 17,
impose by notification in the Official Gazette, upon
c 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.
(2) In cases where the designated authority has selected
percentage of the volume of the exports from a particular
D 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
E 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
F 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 ihis sub-rule any zero margin, margins
G 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 producer not included in
H the examination who has provided the necessary
COMMISSIONER OF CUSTOMS, BANGALORE v. 869
MIS. G. .M. EXPORTS [R. F. NARI MAN, J.]
information during the course of the investigation as A
referred to in the second proviso to sub-rule (3) of rule
17.
(3) Notwithstanding anything contained .in sub-rule (1 ),
where a domestic industry has been interpreted
according to the proviso to sub-clause (b) of rule 2, a B
duty shall be levied only after the exporters have been
given opportunity to cease exporting at dumped prices
to the area concerned or otherwise give an undertaking
pursuant to rule 15 and such undertaking has not been
promptly given and in such cases duty shall not be levied C
only on the articles of specific producers which supply
the area in question. ·
(4) If the final finding of the designated authority is
negative that is contrary to the evidence on whose basis 0
the investigation was initiated, the Central Government
shall, within forty-five days of the publication of final
findings by the designated authority under rule 17,
withdraw the provisional duty imposed, if any.
20. Commencement of duty. - (1) The anti-dumping E
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 F
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 G
be levied from the date of imposition of provisional duty;
(b) in the circumstances referred to in sub-section (3) of
section 9AoftheAct, the antidumping duty may be levied
retrospectively from the date commencing ninety days
prior to the imposition of such provisional duty: · H
870 SUPREME COURT REPORTS [2015] 14S.C.R.
A Provided that no duty shall be levied retrospectively on
imports entered for home consumption before initiation
of the investigation:
Provided further that in the cases of violation of price
undertaking referred to in sub-rule (6) of rule 15, no duty
B 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
c 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.
D 21. Refund of duty. - (1) If the anti-dumping duty imposed
by the Central Government on the basis of the final
findings of the investigation conducted by the designated
authority is higher than the provisional duty already
imposed and collected, the differential shall not be
E collected from the importer.
(2) If, the anti-dumping duty fixed after the conclusion of
the investigation is lower than the provisional duty already
imposed and collected, the differential shall be refunded
to the importer.
F
(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."
G
8. We will take the facts contained in the judgment of the
Bombay High Court dated 15.12.2011, in the case of Harsh
International v. Commissioner of Customs, Civil Appeal
No. 5119 of2012, which explain how the question which has
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 871
M/S. G. M. EXPORTS [R. F. NARIMAN, J.] ••
to be determined by this judgment arose. On 6th August, 2001 A
a public notice was issued by the Designated Authority initiating
proceedings in regard to the import of Vitrified/Porcelain tiles
originating in or exported from the People's Republic of China
and the United Arab Emirates. The Designated Authority
issued preliminary findings on 3ro December, 2001. Following B
the preliminary findings, the Union Government imposed, by a
notification dated 2"d May, 2002, a provisional antidumping
duty under Section 9A(2) of the Customs Tariff Act read with
Rules 13 and 20 of the Antidumping Rules. The Designated
Authority rendered its final findings on 4th February, 2003 and c
while concluding that material injury had resulted to the .
domestic industry recommended the imposition of antidumping
duty. The Union Government issued a notification on 1st May,
2003 imposing a final antidumping duty with effect from the
date of the imposition of the provisional antidumping duty i.e. D
200 May, 2002. The question before the Court is as to whether
the Central Government was within its jurisdiction in imposing
a final antidumping duty between znd November, 2002 and 30th
April, 2003. This, according to the assessees, is the "gap
period" when the provisional duty had come to an end by efflux E
of six months until a final notification was issued by the Union
Government on 151 May, 2003.
9. The stage is now set far setting outthe arguments of
the learned counsel both for the revenue and for the assessees.
/
10. Ms. Pinky Anand, leamedAdditional Solicitor General F
appearing on behalf of the revenue argued that both literally
and purposively Rule 20 leads to one conclusion and one
con~lusion alone -that final anti-dumping duty would take effect
from the date of imposition of the provisional duty, which would G
necessarily include the "gap" period i.e. the period between
the lapse of the provisional duty and the imposition of the final
duty. According to learned counsel, any other construction would .
defeat the object and purpose of imposing a final anti-dumping
duty after the Designated Authority has found, post H
•
872 SUPREME COURT REPORTS [2015] 14 S.C.R.
•·
A investigation, that there is dumping of goods and material injury
to the domestic industry as a result. Thus, despite dumping
and material injury being present, no anti-dumping duty would
be leviable in the interregnum period which would be wholly
subversive of the object sought to be achieved; that is, saving
B the domestic industry from. unfair trade practices of foreign
exporters. She also argued that a literal reading of Rule 20 is
called for which makes it clear that the final anti-dumping duty
is to be levied from the date of imposition of provisional duty
which would necessarily include the "gap" period. Further, since
c the final duty is made to relate back to the date of the
provisional duty imposition, a fiction is employed which must
be allowed to have full play and the mind should not boggle in
giving such fiction its logical consequence. According to
learned counsel, "levied" in Rule 20(2)(a) obviously does not
o include "collection" as has been held in several Supreme Court
judgments and therefore, "levy" would not include "collection"
for which reason Rule 20 has to be read on its own without
reference to the consequence that is found in Rule 21. She
further argued that it is true that laws that are made in
E pursuance of international treaties ought to be construed in
accordance with such treaties, but where the Indian law
deviates from the treaty agreement, Indian law prevails. It is
clear that unlike Article 10 of the WTO Agreement, Rule 20(2)(a)
only speaks of anti-dumping duty being levied from the date of
F imposition of provisional duty and does not speak of the period
for which the provisional duty applied, thus making it clear that
anti-dumping duty can be levied and collected for the "gap" or
interregnum period.
11. On the other hand, learned counsel for the various
G assessees have argued that Rule 20(2)(a) should be
interpreted in the light of the WTO Agreement, and so
interpreted would necessarily be interpreted as meaning only
the period for which the provisional duty is levied, and not
beyond. It has been argued with some vehemence that this
H also follows from a reading of clause 18.4 of the Agreement
COMMISSIONER OF CUSTOMS, BANGALORE v. 873
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
and a reading of the Central Government's own website which A
was referred to us in the course of arguments stating that the
anti-dumping rules are in consonance with the WTO
Agreements on anti-dumping. Further, it has been argued that
the word "1.evied" under Rule 20(2)(a), in the context includes
even "collection" and this being so, whatever has not been B
"collected" in the interregnum period obviously cannot be
collected retrospectively. It was also argued before us that
Section 9A(3) alone empowers the rule making authority to
impose a, retrospective anti-dumping duty within th.e strict
confines of the said rule. Section 9A(2) and (6), in contrast, do C
not allow any imposition, retrospectively, of anti-dumping duty,
and therefore if Rule 20 were to be read in the manner
suggested by revenue, it would be ,ultra viresthe parent statute.
It was further argued that the levy of anti-dumping duty is not
automatic and is only levied by the Central Government taking o
into account a series of complex economic factors. This being
so, the continuity of such levy can only be for the period indicated
in the provisional duty levy notification and not beyond. It was
also argued that, on a true construction of Rule 20(2)(a), the
said rule merely validates a provisional duty already levied, E
and nothing beyond. It was further argued that Rule 20(2)(a)
has to be harmoniously construed with both Rules 13 and 21,
or else, the suggested construction by revenue of Rule 20(2)(a)
would render Rules 13 and 21 nugatory. In this context, it was
further argued that.no duty can be levied in the interregnum F
period as the Government would then be doing indirectly what
it is prohibited from doing directly - namely, extending the
period of six months of the levy of provisional duty beyond six
months and until the notification imposing ihe final anti-dumping
duty. G
12. Two earlier judgments of this Court have stated as to
what exactly was the object sought to be achieved by the
introduction of Section 9A of the Customs Tariff Act read with
the Anti~Dumping Rules. But before we come to thes.e
judgments, it is important to refer to our basic law, and in H
874 SUPREME COURT REPORTS [2015) 14 S.C.R.
A particular Article 51 (c) of the Constitution of India, which reads
- as follows:
"51. Promotion of international peace and security.-The
State shall endeavour to -
B (c) foster respect for international law and treaty
obligations in the dealings of organised peoples with one
another; and"
13. In S&S Enterprise v. Designated Authority and
others, (2005) 3 SCC 337, this Court said:
c "In our opinion, the interpretation of Rule 14(d) by
Respondent No.1 and the Tribunal is incorrect and
contrary to its language. The imposition of dumping duty
is under Section 9A of the Customs Tariff Act, 1975 and
the Rules and is the outcome of the General Agreement
D on Tariff and Trade (GATT) to which India is a party. The
purpose behind the imposition of the duty is to curb unfair
trade practices resorted to by exporters of a particular
country of flooding the domestic markets with goods at
rates which are lower than the rate at which the exporters
E normally sell the same or like goods in their own countries
so as to cause or be likely to cause injury to the domestic
market. The levy of dumping duty is a method recognized
by GATT which seeks to remedy the injury and at the
same time balances the right of exporters from other
F countries to sell their products within the country with the
interest of the domestic markets; Thus the factors to
constitute 'dumping', are (i) an import at prices which
are lower than the normal value of the goods in the
exporting country; (ii) the exports must be sufficient to
G cause injury to the domestic industry." [at para 4)
14. To similar effect is the judgment of Reliance
Industries Ltd. v. Designated Authority and others, (2006)
10 sec 368:
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 875
MIS. G. M. EXPORTS [R. F. NARI MAN, J.]
"The result was that an industrial base was created in A
India after independence and this has definitely resulted
in some progress. The purpose of Section 9-A can,
therefore, easily be seen. The purpose was that our
industries which had been built up after independence
__ .with great difficulties must not be allowed to be destroyed B
by unfair competition of some foreign companies.
Dumping is a well-known method of unfair competition
which is adopted by the foreign companies. This is done
by selling goods at a very low price for some time so that
the domestic industries cannot compete and are thereby c
destroyed, and after such destruction has taken place,
prices are again raised.
The purpose of Section 9-A is, therefore, to maintain a
level playing field and prevent dumping, while allowing
for healthy competition. The purpose is not protectionism D
in the classical sense (as proposed by the Ger~an
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 E
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 founped on the basis that F ·
a foreign manufacturer sells below the normal value in
order to destabilise 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." [at paras G
10, 11 & 12]
15.Anumberofjudgments, both English and Indian, have
laid down as to what is the correc;t approach to the construction
H.
876 SUPREME COURT REPORTS [2015] 14 S.C.R.
A of a statute made in response to an international treaty
obligation by a member nation. Thus, in The Jade The
Eschersheim Owners of the motor vessel Erkowit v.
Owners of the ship Jade, [1976] 1 All ER 920, the House of
Lords stated:
B "As the Act was passed to enable Her Majesty's
government to give effect to the obligations in
international Jaw which it would assume on ratifying the
convention to which it was a signatory, the rule of statutory
construction laid down in Salomon v. Customs and
c Excise Commissioners [1966] 3 All ER 871 and Post
Office v. Estuary Radio Ltd. [1967] 3 All ER 633 is
applicable. If there be any difference between the
language of the statutorv provision and that of the
corresponding provision of the convention, the statutory
D language should be construed in the same sense as that
of the convention if the words of the statute are
reasonably capable of bearing that meaning." [at
page 924]
16. Similarly in Quazi v. Quazi, [1979] 3 All ER 897, the
House of Lords put it thus:
"In the instant case, however, this does not help the
respondent wife; it helps the appellant husband. The
purpose for which the Recognition Act was passed is
F declared by the preamble to be with a view to the
ratification by the United Kingdom of the Recognition
Convention and for other purppses. Where Parliament
passes an Act amending the domestic law of the United
Kingdom in order to enable this country to ratify an
G international treaty and thereby assume towards other
states that are parties to the treaty an obligation in
international law to observe its terms, it is a legitimate
aid to the construction of any provisions of the Act that
are ambiguous or vague to have recourse to the terms
COMMISSIONER OF CUSTOMS, BANGALORE v. 877
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
of the treaty in order to see what was the obligation in A
international law that Parliament intended that this country
. should be enabled to assume. The ambiguity or obscurity
is to be resolved in favour of.that meaning that is
consistent with the provisions of the treaty: see Salomon
v. Customs and Excise Commissioners [1966] 3All ER B
871 and Post Office v. Estuary Radio Ltd. [1967] 3 All ·.
ER 633." [at page 903]
17. In Garland v. British Rail Engineering Ltd., (1982]
2All ER402, the same Rule was set out with an addition-that
not only should municipal law carry out treaty obligations, but it C
should also not be inconsistent with the terms of a treaty. This .
was put by the House of Lords in the following words:-
"My Lords, even if the obligation to observe the provisions
of article 119 were an obligation assumed by the United 0
Kingdom under an ordinary international treaty or
convention and there were no question of the treaty
obligation being directly applicable as part of the law to
be applied by the courts in this country without need for
any further enactment, it is a principle of construction of E
United Kingdom statutes, now too well established to call
for citation of authority, that the words of a statute passed
after the Treaty has been signed and dea_ling with the
subject matter of the international obligation of the United
Kingdom, are to be.construed, if they are reasonably
F .
capable of bearing such a meaning, as intended to carry
out the obligation, and not to be inconsistent with it." [at
page 415]
18. Another interesting aspect was brought out by the
House of Lords in The Hollandia's case [1982] 3All ER 1141, G
and that is that a treaty provision embodied ina statute needs
to be construed uniformly in all the member nations who are
its signatories, and should therefore not be controlled by
domestic precedents but should be construed on its own terms
on broad principles of general application in a purposive and H
•
878 SUPREME COURT REPORTS [2015] 14S.C.R.
- A not in a narrow literal manner. This is stated in the following
words:
"My Lords, the provisions in section 1 of the Act that I
have quoted appear to me to be free from any ambiguity
perceptible to even the most ingenious of legal minds.
B The Hague-Visby Rules, or rather all those of them that
are included in the Schedule, are to have the force of law
in the United Kingdom: they are to be treated as if they
were part of directly enacted statute law. But since they
form part of an international convention which must come
c under the consideration of foreign as well as English
courts, it is, as Lord Macmillan said of the Hague Rules
themselves in Stag Line Ltd. v. Foscolo, Mango and Co.
Ltd.(1932] AC. 328 at 350, (1931] All ER Rep 666 at
677-
D
"desirable in the interests of uniformity that their
interpretation should not be rigidly controlled by
domestic precedents of antecedent dat~. but rather
that the language of the rules should be construed on
broad principles of general acceptation."
E
They should be given a purposive rather than a narrow
literalistic construction, particularly wherever the adoption
of a literalistic construction would enable the stated
purpose of the international convention, viz., the
F unification of domestic laws of the contracting states
relating to bills of lading, to. be evaded by the use of
colourable devices that, not being expressly referred to ·
in the Rules, are not specifically prohibited." (at page
No.1145]
G 19. In Sidhu and others v. British Airways plcAbnett
(known as Sykes) v. British Airways pie, (1997] 1 All ER
193, the same thought was echoed in the following words:-
"I believe that the answer to the question raised in the
· present case is to be found in the objects and structure
H
COMMISSIONER OF CUSTOMS, BANGALORE v. 879
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
of the convention. The language used and the subject A
matter with which it deals.demonstrate that what was
sought to be achieved was a uniform international code,
which could be applied.by the courts of all the High
Contracting Parties without reference to the rules of their
own domestic law." [at page No.212] B
20. To similar effect are some of the judgments of our
court. In Vellore Citizens' Welfare Forum v. Union of India
and others, (1996) 5 sec 647, when dealing with the
Environment Protection Act, this Court stated:
c
"Even otherwise once these principles are accepted as
part of the Customary International Law there would be
no difficulty in accepting them as part of the domestic
law. It is almost an accepted proposition of law that the
rules of Customary .International Law which are not 0
contrary to the municipal law shall be deemed to have
been incorporated in the domestic law and shall be
followed by the Courts of Law. To support we may refer
to Justice H.R. Khanna's opinion in Addi. Distt.
Magistrate Jabalpur v. Shivakant Shukla [(1976) 2 SCC E
521 : AIR 1976 SC 1207]. Jolly George Varghese v.
Bank of Cochin [(1980)2 SCC 360 :AIR 1980 SC470]
and Gramophone Co. of India Ltd. v. Birendra Bahadur
Pandey, [(1984) 2 sec 534 : 1984 sec (Cri) 313 : AIR
1984 SC 667]." [at para 15]
F
21. Similarly in Daya Singh Lahoria v. Union of India
and others, (2001 )4 SCC516, when construing Section 21
of the Extradition Act, 1962, this Court referred to the Extradition
Treaty and i:onstrued Section 21 in the light of the international
position then obtained. This Court said: G
• .... The Extradition Treaty contains several articles of
which Article 7 is rather significant for our purpose, which
may be quoted hereinbelow in extenso: ·
H
880 SUPREM.E COURT REPORTS [2015] 14 S.C.R.
A "7. A person surrendered can in no case be kept in
custody or be brought to trial in the territories of the
High Contracting Party to whom the surrender has
been made for any other crime or offence, or on
account of any other matters, than those for which the
B extradition shall have taken place, until he has been
restored, or has had an opportunity ofretuming, to the
territories of the High Contracting Party by whom he
has been surrendered.
This stipulation does not apply to crimes or offences
c committed after the extradition."
The aforesaid Article unequivocally indicates that the
person concerned cannot be tried for any other crime or
offence than those for which the extradition shall have
D taken place until he has been restored or has·had the
opportunity of returning to the territories of the High
Contracting Party by whom he has been surrendered.
The provisions of Section 21 of the Extradition Act are in
consonance with the aforesaid Article of the Extradition ·
Treaty .... " [at para 3]
E
22. In yet another judgment of this Court, i.e. S&S
Enterprise, already referred to, this Court construed Rule
14(d) of the very anti-dumping rules with which we are
concerned, in the light of the very agreement on implementation
F of Article VI of GATT. This Court was asked to compute the
volume of exports on the basis of price and not on the basis of
quantity. In repelling this contention, this Court referred to Article
5.8 of theAgreementon implementation of Article VI and held:-
"However a negligible quantity of imports would not be
G sufficient to cause such injury. Article 5.8 of the
Agreement on-Implementation of Article VI of the GATI,
1994 makes this clear:
"An application under paragraph 1 shall be rejected
and an investigation shall be terminated promptly as
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COMMISSIONER OF CUSTOMS, BANGALORE v. 881
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
soon as the authorities concerned are satisfied that A
there is no 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, B
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%, expressed as
a percentage of the export price. The volume of
dumped imports shall normally be regarded as C
negligible if the volume of dumped Imports from a
particular country is found to account for less than 3%
of imports of the like product in the importing member,
unless countries which individually account for less
than 3% of the imports of the like product in the o
importing member collectively account for more than
7% of imports of the like produd in the importing
member." [para 5]
"Therefore, when Rule 14(d) says that the investigation
must be terminated if the 'volume' of the dumped imports E
is less than 3% of the imports of the like product, it must
mean that the quantity of dumped imports must account
for less than 3% of the total imports. To hold otherwise
would mean that ifthe price is lower than 3%, irrespective
of the quantity imported, the investigation would be F
dropped and it would, as submitted by the appellant, lead
to the absurd situation that a small number of expensive
imports would invite anti-dumping investigation but cheap
imports flooding the domestic markets would not. In fact
such a situation is exactly what the dumping rules have G
been framed to prevent." [para 1OJ
23. A conspectus of the aforesaid authorities would lead
to the following conclusions:
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882 SUPREME COURT REPORTS [2015] 14S.C.R.
A (1)Article51 (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
B country. This is a situation in which there is an international
treaty to which India is not a signatory o.r 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.
c (2) In a situation where India is a signatory nation to an
international treaty, and a statute is passed pursuant to the
said treaty, it is a legitimate aid to the construction of the
provisions of such statute that are vague or ambiguous to have
recourse to the terms of the treaty to resolve such ambiguity in
D favour of a meaning that is consistent with the provisions of
the treaty.
(3) In a situation where India is a signatory nation to an
international treaty, and a statute is made in furtherance of such
E treaty, a purposive rather than a narrow literal construction of
such statute is preferred. The interpretation of such a statute
should be construed on broad principles of general acceptance
rather than earlier domestic precedents, being intended to carry
out treaty obligations, and not to be inconsistent with them.
F (4) In a situation in which India is a signatory nation to an
international treaty, and a statute is made to enforce a treaty
obligation, and if there be any difference between the language
of such statute and a corresponding provision of the treaty, the
statutory language should be construed in the same sense as
G that of the treaty. This is for the reason that in such cases what
is sought to be achieved by the international treaty is a uniform
international code of law which is to be applied by the courts
of all the signatory nations in a manner that leads to the same
• result in all the signatory nations.
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COMMISSIONER OF CUSTOMS, BANGALORE v. 883
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It is in the light of these principles that we must now A
examine the statute in question.
Construction of Section 9A.
24. Section 9A(1) refers to an anti-dumping duty. Such
duty is only imposed when an article is exported from a country B
outside India to India at less than its normal value. Such duty
can, in the Central Government's discretion, be imposed at a
rate that does not exceed the margin of dumping, which only
means the difference between the export price and the normal
value of such article in international trade. It is clear that sub- c
section (1) refers to a "final" or "definitive" duty, and has to be
read with sub-section (3) thereof, which authorises the levy of
the "final" or "definitive" anti-dumping duty retrospectively in
the circumstances mentioned in sub-section (3). The scheme
therefore of Section 9A(1) and (3) is that an anti-dumping duty 0
is normally to be imposed with prospective effect unless, inter
a/ia, because of massive dumping of an article in a relatively
short time the remedial effect of the anti-dumping duty to be
levied would be seriously undermined. This would therefore
require a retrospective duty being levied, but not beyond a
period of 90 days, to undo the effect ofundermining the anti- E
dumping 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 F
the Central Government levies on the basis of a provisional
estimate, thus referring to a provisional anti-dumping 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 G
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 anti-
dumping duty which has been collected in excess of the final
anti-dumping duty so reduced. Under sub-section (5), a H
884 SUPREME COURT REPORTS [2015] 14S.C.R.
A maximum period offive 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 tum refers to the
Central Government's power to make rules, inter alia, to
assess and collect anti-dumping duty.
B 26. It is important to note that neither sub-section (2) nor
sub-section (6) authorises the Central Government, either
expressly or by necessary implication, to make rules and/or to
levy anti-dumping duty with retrospective effect. This is in
contrast with sub-section (3) which expressly so authorises
C the Central Government in the circumstances mentioned in the
sub-section.
Interpretation of the Anti-Dumping Rules
27. A reading of the Anti-Dumping Rules would show
D that they have been framed keeping in view the WTO
Agreement of 1994 strictly in mind. A designated authority is
appointed under Rule 3 who, under Rule 4, is to investigate
the existence, degree, and effect of dumping in relation to
import of any article and.to submit its findings, provisional or
E final as the case may be, to the Central Government. The
designated authority is to initiate an investigation either suo
motu or upon receipt of a written application by or on behalf
of the domestic industry into (i) dumping (ii) material injury to
the domestic industry and (iii) where applicable, a causal link
F between such dumped imports and the material injury- see
Rule 5. Such investigation is to be initiated by issue of a public
notice under rule 6. Since material injury to an established
domestic injury or material retardation of the establishment of
any such industry is an important aspect in levying anti dumping
G duty, the designated authority is to be guided, under Rule 11,
by Annexure II of the Rules, paragraphs (iv) and (v) of which
read as under:-
"(iv) The examination of the impact of the dumped imports
on the domestic industry concerned, shall include an
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COMMISSIONER OF CUSTOMS, BANGALORE v. 885
M/S. G M. EXPORTS [R. F. NARIMAN, J.]
evaluation of all relevant economic factors and indices A
. having a bearing on the state of the industry, including
natural and potential decline in sales, profits, output,
market share, productivity, return on investments or
utilization of capacity; factors affecting domestic prices; .
the magnitude of the margin of dumping; actual and B
potential negative effects on cash flow, inventories,
employment, wages, growth, ability to raise capital
investments.
(v) It must be demonstrated that the dumped imports are,
through the effects of dumping, as set forth in paragraphs C
(ii) and (iv) above, causing injury to the domestic industry.
The demonstration of a causal relationship between the
dumped imports and the injury to the domestic industry
shall be based on an examination of relevant evidence
before the designated authority. The designated authority D
shall also examine any known factors other than the
dumped imports which at.the same time are injuring the
domestic industry, and the injury caused by these other
factors must not be attributed to the dumped imports.
Factors which may be relevant in this respect include, E
inter a/ia, 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 F
performance and the productivity of the domestic
industry." ·
28. It will thus be seen that the determination of material
injury to domestic industry depends on a series of complex
economic factors. which are to be segregated from other factors G
which may also cause injury to the said industry.
29. Under Rule 12, the designated authority is to "proceed
expeditiously" with the conduct of the investigation and shall in
H
886 SUPREME COURT REPORTS [2015] 14 S.C.R.
A appropriate cases record his preliminary findings on all the
aspects delineated above. No time frame is indicated except
that utmost dispatch is the order of the day.
.30. Rule 13 is very important and when Rule 20 is read
harmoniously with both Rules 13 and 21, all the dark clouds
B which come in on account of the suggested construction of
Rule 20 by revenue get dispelled by the sunlight of harmonious
construction of all the three Rules read together.
31. Rule 13, in line with dause 7.4 of the WTO Agreement,
c enables the Central Government to impose provisional anti-
dumping duty not exceeding the margin of dumping, with two
provisos. First, no such duty can be imposed before the expiry
of 60 days from the date of public notice issued by the
designated authority regarding its decision to initiate
investigations. And second, such duty cannot remain in force
0
for a period of more than six months, which is.only extendable
on request made by the foreign exporters who represent a
significant percentage of the trade involved, to a maximum
period of 9 months. The important words used in the second
E proviso are "shall", "only'', and "not exceeding", all of which point
to the fact that the time period mentioned in the said proviso is
mandatory and cannot be exceeded by even a single day.
32. Under Rule 17, the designated authority is given one
year from the date of inhiation of an investigation to come out
F with its final findings. This is extendable by the Central
Government only in special circumstances, and only by a further
period of 6 months, and no more (Clause 5.10 of the WTO
Agreement). Significantly, the designated authority, in its final
finding, may also provide for a retrospective levy of duty, the
G reasons therefor, and the date of commencement of such
retrospective levy. This is obviously referable to Section 9A(3),
which reproduces clause 10.6 of the WTO Agreement. The
reasons must be the reasons mentioned in the said sub-
section, and, as mentioned in the said sub-section, such
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COMMISSIONER OF CUSTOMS, BANGALORE v. 887
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
retrospective levy cannot commence beyond 90 days from the A
date of the notification imposing provisional duty.
33. Under Rule 18, the Central Government may in its
discretion, and within a maximum period of three months from
the date of publication of the final findings by the designated
authority, impose a final anti-dumping duty. B
34. This brings us to Rule 20, the correct construction of
which is determinative of the question raised in these appeals.
The first thing to notice about Rule 20 is, as its marginal note
states, that it is concerned only with the date of commencement c
of duty. Once this is appreciated, it becomes clear that its
focus is only on when anti-dumping duties are to commence.
In sub-rule (1 ), it speaks of anti-dumping duties levied under
Rule 13 and Rule 19, and states that they shall take effect only
prospectively, i.e. from the date of publication in the official 0
gazette. It is clear that Rule 19 is a mistake made by the
draftsman of the Rules. Rule 18 is obviously referred to. Thus,
under sulrrule (1), the provisional anti-<fumping duty takes effect
on and from the date of its publication in the official gazette. ·
Same is the case with the final anti-dumping duty levied under E
Rule 18.
35. Sub-rule (2) is in two parts. Sub-clause (a) deals
with the date of commencement of an anti-<fumping duty, having
due regard to a provisional duty that has been levied, whereas
sub-clause (b) specifically deals with duty to be retrospectively F
imposed, that is a retrospective imposition prior to the
imposition of a provisional duty. It will immediately be noticed
that the subject matter of sub-clause (a) does not purport to be
the imposition of an anti-<fumping duty with retrospective effect.
This is because it seeks to give effect to clause 10.2 of the G
WTO Agreement. As has been argued by learned counsel on
both sides, the key to the understanding of the import of sub-
clause (a) is the expression "where a provisional duty has been
levied ...." Obviously, the word "levied" has to be read as levied
H
888 ·SUPREME COURT REPORTS [2015] 14 S.C.R.
A in accordance with Rule 13 which, as its marginal note
indicates, provides for the "levy" of provisional duty. Once this
is clear and the word "levied" is to be understood as levied
under Rule 13, the second proviso of Rule 13 gets attracted,
and under this proviso such levy cannot be for a period
B exceeding 6 months (on facts in these cases, such period has
not in fact been extended beyond 6 months). Thus, it is clear
that all that sub-rule (2)(a) does is to enable the levy of a final
anti-dumping duty from the date of imposition of a provisional
duty so as to convert the provisional measure into a final
c measure, or so as to take within its ken the provisional anti-
dumping duty already imposed. This aspect is succinctly put
by "A Handbook on Anti-Dumping Investigations" by Judith
Czako, Johann Human and Jorge Miranda. The learned authors
state:
)
D "L. RETROACTIVE COLLECTION OF DEFINITIVE
DUTIES
The normal rule for application of definitive duties, set
out in Article 10.1 of the AD Agreement, is that duties
shall only be collected on imports made ("entered for
E
consumption") after the effective date of the final
determination. Articles 10.2 and 10.6 establish two
exceptions to this general rule, providing for the
retroactive collection of definitive duties (that is, for the
collection of definitive duties before the effective date of
F the final determination) in two situations:
• The first such situation involves the collection of definitive
duties for the period during which provisional measures
were applied (and for all practical purposes "converts"
G · the provisional measure into a definitive measure); and
bt
• The bther lt\Vdkll!§ ttte tbhectlori definitive duties up .
. to 90 days prior to the date of application of provisional
measures, although no definitive duties can be
collected on imports that took place before initiation."
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COMMISSIONER OF CUSTOMS, BANGALORE v. 889
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36. On a correct reading of the said sub-rule, therefore, A
the final .anti-dumping duty only incorporates the provisional
anti-dumping duty within itself, but in the manner provided by
Rule 13. Thus, it is clear that such incorporation can only be
the period upto which the provisional duty can be levied and
not beyond. Thus understood, it is clear that both literally, and B
in keeping with the object sought to be achieved - that is the
making of laws in conformity with the WTO Agreement, 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. Such interpretation makes it clear c
that clause 10.2 of the WTO Agreement is reproduced in the
same sense though not in the same form in sub-rule (2)(a).
The same result therefore as is envisaged in clause 10.2 is
achieved by the said construction - that is anti-dumping duty
may.be levied retroactively for the period for which provisional D
measures have been applied. The said construction is in
consonance with the principles already laid down earlier in
this judgment in that the WTO Agreement is intended to be
applied by the various signatory nations in a uniform manner.
This can only be done by construing the language of Section E
9A read with the Rules in the same sense as that of the WTO
· Agreement.
37.At this juncture, it is interesting to note that a number
of member countries of the WTO agreement have opted for
the Rule by which anti-dumping duty is levied to the full extent F
of the margin of dumping. Such nations like Argentina, Mexico
and USA therefore have, under the WTO Agreement, only a
period of 4 months extend able upto a maximum period of 6
months (instead of 6 months and 9 months respectively) so far
as the life span of a provisional duty is concerned. Most of G
Europe and the rest of the world have opted to impose duties
upto the margin of dumping depending upon the extent of injury
caused to their domestic industry. Interestingly, the European
Community Council Regulation No. 1225 of2009 dated
H
890 SUPREME COURT REPORTS [2015] 14S.C.R.
A 30.11.2009 on protection against dumped imports from
countries not members of the European Community has this
to say:
"Article 9
B Termination without measures; imposition of
definitive duties
4. Where the facts as finally established show that there
is dumping and injury caused thereby, and the Community
interest calls for intervention in accordance with Article
C 21, a definitive anti-dumping duty shall be imposed by
the Council, acting on a proposal submitted by the
Commission after consultation of the Advisory
Committee. The proposal shall be adopted by the Council
unless it decides by a simple majority to reject the
D proposal, within a period of one month after its submission
by the Commission. Where provisional duties are in
force, a proposal for definitive action shall be submitted
no later than one month before the expiry of such duties.
The amount of the anti-dumping duty shall not exceed
E the margin of dumping established but it should be less
than the margin if such lesser duty would be adequate to
remove the injury to the Community industry."
38. It will be seen from this that an inflexible rule is laid
down that would ensure that no "gap" or intervening period
F occurs between the expiry of the provisional duty and the
imposition of the final duty, inasmuch as a proposal to levy
final duty has to be submitted no later than one month before
the expiry of a provisional duty.
G 39. However, interestingly enough, in the.United States
Manual dealing with anti:-dumping duties, the following is the
statement of law:-
"Therefore, a period of time, known sometimes as the
"gap period," may exist between the expiration of the end
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COMMISSIONER OF CUSTOMS, BANGALORE v. 891
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
of the provisional measures, even if extended, and the A
publication of the ITC's final determination (the starting
of definitive duties) where the DOC cannot require CSP
to collect cash deposits, bonds, or other securities. (The
gap period begins the day after the end of the 4- or 6-
month period, and ends the day before the ITC's final B
determination is published). The DOC normally
administers this problem in one of two ways. We either
send instructions to Ci3P towards the beginning of the
gap period, instructing them to stop collecting cash
deposits or bonds, or we wait until the order has been C
published, then instruct CSP to liquidate all entries during
the gap period without regard to antidumping duties."
40. We are heartened to note that one other signatory
nation has taken the stand that no duty can be collected during
the "gap period". D
41. Viewed slightly differently, the suggested construction
by revenue would render Rule 2(a) ultra vires Section 9A. ·It
has already been seen that sub-section (2) and sub-section
(6) of Section 9A do not authorize the imposition of a duty with E _
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. This woulp therefore F
render sub-rule (2)(a) ultra vires Section 9A. A construction
which is both in consonance with international law and treaty
, obligations, which Article 51(c) of the Constitution states as a
1
directive principle of State policy; and with the application of
the doctrine of harmonious construction is to be'preferred to a G _
narrow doctrinaire meaning which would lead to the Rule being
read in such a manner that it is ultra vires the parent statute.
42. One other interesting thing remains. Most of the
debate at the Bar was centered around the expression "levied"
892 SUPREME COURT REPORTS [2015] 14 S.C.R.
A in Rule 20 sub-rule (2}(a), revenue contending, based on two
judgments of this Court in N.B. Sanjana, Assistant Collector
of Central Excise, Bombay and others v. The Elphinstone
Spinning and Weaving Mills Company Ltd., 1971 (1) SCC
337 and Assistant Collector of Central Excise, Calcutta
B Division v. National Tobacco Co. of India Ltd., (1972) 2
SCC 560, that "levy" does not include "collection". This has
been countered by arguments on behalf of the assessees that
the word "levied" in the said sub-rule has been used in the
same sense as the expression "imposed and collected" in Rule
c 21 (1 ), and would therefore include "collection" as well. In view
of what has been held by us above, we find it unnecessary to
decide this contention. •
43. The effect of Rule 21 on the aforesaid construction
of Rule 20 now needs to be adverted to. Rule 21, ·in tum, is
D made to carry out what is stated in clause 10.3 of the WTO
Agreement. Rule 21 (2) echoes what is already found in
Section 9A(2}. If provisional anti-dumping duty is found to be
higher than the final anti-dumping duty, the differential shall be
refunded to the importer. But sub-rule (1) goes a step further
E and states that if the anti-dumping duty finally imposed is higher
than the provisional duty already imposed and collected, the
differential shall not be collected from the importer.
44. It is obvious that this Rule has been framed in the
F interest of international trade. It is well known that export
contracts are entered into long before anti-dumping duties may
be imposed, and in the interests of international trade, the
importer should not be put to a loss in case a final duty happens
to be higher than the provisional duty already imposed. The
delicate balancing act between protection of domestic industry
G and the hardship caused in the course of international trade
has thus been tilted in favour of the latter. If learned counsel for
the revenue were right, despite the fact that such differential
·cannot be collected from the importer under Rule 21 ( 1) for the
H period that the provisional duty notificatron is in force, during
!
COMMISSIONER OF CUSTOMS, BANGALORE v. · ·· 893 ·.
M/S. G. M. EXPORTS [R. F. NARIMAN, J.]
the interregnum period, the full amount of final duty is liable to ·A
be recovered from the importer. This would tum Rule 21 (1) on
its head and result in an absurdity. A simple example will
suffice. If provisional duty already imposed and collected is
Rs. 50/- per metric ton (PMT), and final duty imposed say one
year later with retroactive effect from the date of Imposition of · B · ·
the provisional duty is Rs. 100/- PMT, the difference of Rs. 50/
- PMT cannot be recovered from the importer for the period .
that the provisional notification is in force .. Therefore, for the
first 6 months in the aforesaid example, the importer is liable
to pay nil duty. However, for the next 6 ITJOnths, that is in the c
interregnum period between the expiry of the provisional duty
and the date of imposition of the final duty, the importer ·
becomes liable to pay Rs.100/- PMT. The ·said ·example .
demonstrates how the arguments of the revenue would lead
to an absurdity such as this. · ·o··
45. Rule 21(1) also answers the contention of the
Revenue that the object of anti-dumping laws would be
defeated if it were found that dumping and material injury having
been found, yet no anti-dumping duty can be levied. By
application of this Rule, it is clear that for the period that the E .
provisional duty notification is in force, the difference of Rs.SO/
-, in the example just given, cannot be collected from the
importer despite Rs.50/- having been imposed because of ·
dumping and material injury to the domestic industrY.. ·
Therefore, it is clear that there already exists, within the scheme · F
of the anti-dumping law, a situation in which there is dumping ....
and material injury to the domestic industry, for which an anti- .
dumping duty is levied, but which cannot be collected. There
is, therefore, a balance struck between material injuryto the ·
domestic industry and retrospeetive levy of duty in favour of G
the latter. · · ·
.. ~.
46. We also find force in the submission of learned
counsel for the assessees that the revenu~·s construction of .
Rule 20 would achieve indirectly what cannot be achieved H .
894 SUPREME COURT REPORTS (2015] 14S.C.R.
A directly, having regard to the mandatory language contained
in Rule 13 second proviso. Here again a simple example
would suffice. Say the provisional duty is levied at the rate of
Rs. 50/- PMT and comes to an end after 6 months. 6 months
later, a final duty is imposed again at the same rate of Rs. 50/
B - PMT with effect from the date of levy of the provisional duty. If
learned counsel for the revenue were right, Rs. 50/- PMT could
be recovered under Rule 20(2)(a) for the interregnum period
as well which would, in effect, destroy the scheme of Rule 13
second proviso by extending the period of the provisional duty
c notification beyond a period of 6 months, which clearly cannot
be done. We find therefore that on all these counts, the
arguments of revenue cannot be countenanced.
4 7. It remains now to deal with the impugned judgment
of the Bombay High Court. After setting out the contentions of
D the respective parties and referring to the relevant statutory
provisions and the WTO Agreement, the Bombay High Court
arrives at a finding that Parliament has made a departure from
the language used in the WTO Agreement and the Court must
therefore give effect to such departure.
E
48. We have already held that this would fly in the face of
all the judgments referred to in paragraphs 15 to 22
hereinabove, and principles (3) and (4) of paragraph 23 of
this judgment which speak of how domestic legislation must
F be construed when it is made in furtherance of an international
treaty. In particular, in the facts of these cases, it would also
ignore the effect of Article 18.4 of the WTO Agreement, which
expressly states that all the signatory member nations have to
make their laws "conform" to the provisions of the WTO
Agreement, something which the Central Government itself
G state~ in its internet website which deals with the law of anti-
dumping.
49. The High Court goes on to state that the construction
suggested on behalf of the assessee would lead to a manifest
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COMMISSIONER OF CUSTOMS, BANGALORE v. 895 .
MIS. GM. EXPORTS [R. F. NARIMAN, J.]
absurdity as there would be no reason or justification to hold A
that the levy of anti-dumping duty must sustain a break during
the period between the expiry of the provisional duty notification
and the issuance of a notification imposing a final anti-dumping
duty. The High Court went on to hold that the object and purpose
underlying Section 9A would be defeated, as for the B
interregnum period where both dumping and material injury to
domestic industry are found, no anti-dumping duty can be
issued. This conclusion again cannot be countenanced for
the simple reason that if Rule 20(2)(a) were to be construed n
the fashion suggested by the High Court, it would be ultra vires c
Section 9A for the reasons already given by us. Further, the
object and purpose of Section 9A is to impose an anti-dumping
duty in consonance with the WTO Agreement, which Section
9A gives full effect to. These basic points have been missed
by the High Court in arriving at the aforesaid finding. Further,o
the High Court fails to give due importance in its judgment to
Rules 13 and 21. We have already seen how Rule 21(1)
envisages precisely the situation spoken of by the High Court,
and yet states that, irt the circumstances mentioned therein,
despite dumping and material injury to the domestic industry, E
. differential duty cannot be collected from the importer. In fact,
the High Court goes on to say that the expression "imposed
and collected" in Rule 21, not being there i'n Rule 20(2)(a),
cannot therefore be imported into the said sub-rule, so th.at
"levied" cannot mean "imposed and collected". We have F
already held, in view of our construction of Rule 20(2)(a), that
this need not be gone into. What has been missed by the
High Court is that the expression "levied" has to be understood
as "levied" under Rule 13 and once this is so, it becomes clear
that such levy cannot exceed a period of 6 months or a G
maximum period of 9 months, as the case may be.
50. The Bombay High Court follows the Kerala High Court
reasoning, which is to the same effect. For the reasons given
by us in this judgment, we find it difficult to accede to such
H
896 SUPREME COURT REPORTS [2015] 14S.C.R.
A reasoning. We, therefore, allow the appeals of the assessees
and dismiss Civil Appeal No. 3889 of 2006 of the revenue.
We make it clear that we have only decided the point of levy of
anti-dumping duty during the interregnum between the expiry
of a provisional duty notification and the imposition of a final
B anti-dumping duty. If either the assessees or the revenue have
succeeded on any other point, such point will remain untouched
by this judgment. With these observations, all the said appeals
are disposed of.
Bibhuti Bhushan Bose Appeals disposed of.
.I
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