13 October 2015

No anti-dumping duty after expiry of provisional duty and before imposition of final ADD

The Supreme Court of India has held that Anti-dumping duty is not imposable on imports made during the period after the expiry of the provisional anti-dumping duty and before imposition of the final/definitive anti-dumping duty.
The Apex Court held that incorporation of provisional duty in the final duty, in the manner provided by Rule 13 of the [Indian] Anti-dumping Rules can only be for the period upto which the provisional duty can be levied and not beyond. It was observed that the marginal note to Rule 20 states that the same is concerned only with the date of commencement of duty, and that sub-rule (2)(a) only enables levy of final anti-dumping duty from the date of imposition of a provisional duty so as to convert the provisional measure into a final measure.
 Dismissing the Revenue department’s appeal, the Court further held that neither sub-section (2) nor sub-section (6) of Section 9A of the Customs Tariff Act authorises the Central Government to levy anti-dumping duty with retrospective effect and that any levy during the gap period or the interim period would necessarily amount to a retrospective levy of duty.
The Indian Apex Court in the judgment dated 23-9-2015 also held that [Indian] Anti-dumping Rules have been framed keeping in view the WTO’s Anti-dumping Agreement of 1994 and that language of Section 9A of the Customs Tariff Act read with the Anti-dumping Rules has to be construed in the same sense as that of the WTO’s Anti-dumping Agreement. According to the Court, if there is a difference in the language in a statute made to enforce treaty obligation, where India is signatory to an international treaty, and the corresponding provision of the treaty, statutory language should be construed in the same sense as that of the treaty.
Interestingly, last month the Court of Justice of European Union in its Order dated 8-9-2015 also observed that the legislation of the European Union must, so far as possible, be interpreted in a manner that is consistent with international law, in particular where its provisions are intended specifically to give effect to an international agreement concluded by the EU. The European Court was hearing a dispute relating to continuation of ADD sunset investigation when support of the domestic producers for complaint falls below a certain limit.


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