# COMMISSIONER OF CUSTOMS, BANGALORE v. MIS. G. M. EXPORTS & OTHERS

- **Citation:** [2015] 14 S.C.R. 848
- **Court:** Supreme Court of India
- **Decided:** 2015-09-23
- **Case number:** Civil Appeal No. 3889 of 2006
- **Bench:** A. K. Sikri, R. F. Nariman
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/commissioner-of-customs-bangalore-v-mis-g-m-exports-others-30621
- **Pages:** 49

## Headnote

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 antidumping 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 antidumping 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
H
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 AgreementC
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 antidumping 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.
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
G
H
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 i

## Text

_Characters 0–39,981 of 91,020. This is a partial read: ask again with offset=39981 for what follows._

(2015] 14 S.C.R. 848
A
COMMISSIONER OF CUSTOMS, BANGALORE
B
v.
MIS. G. M. EXPORTS & OTHERS
(Civil Appeal No. 3889 of 2006)
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 antidumping 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 antidumping 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
H
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 AgreementC
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 antidumping 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.
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
G
H
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[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
(2006) 1 o 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
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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2001 (3) SCR 1
1911 (1) sec 337
1973 (1) SCR 822
referred to
Para 21
referred to.
Para 42
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.
·
0
Ms. PinkyAnand,ASG, YashankAdhyaru, Ms. Meenakshi
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
H
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
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
Anti-dumping and Countervailing Duties
E
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
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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
(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
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.
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,
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:-
G
H
"Members hereby agree as follows:
I
PARTI
Article 1
Principles
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 antiB
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.
•
10.3 If the definitive anti-dumping duty is higher than the
provisional duty paid or payable, or the amount estimated
F
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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[2015] 14 S.C.R.
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
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
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 antidumping duty to be applied, provided that the
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 subsection (6 );
(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
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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
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-
( 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
(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):
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
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 subsection (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,
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 antidumping duty as so reduced.
·
(2A) Notwithstanding anything contained in sub-section
( 1) and sub-section (2), a notification issued under subE
section (1) or any anti-dumping duty imposed under subsection (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-
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(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
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,
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
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.
(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
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,
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
expiry of the aforesaid period of five years has not come
COMMISSIONER OF CUSTOMS, BANGALORE v.
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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, · H·
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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
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(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
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.
(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
( 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 subrule (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,
COMMISSIONER OF CUSTOMS, BANGALORE v.
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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.
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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
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,
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
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-
(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.
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
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
COMMISSIONER OF CUSTOMS, BANGALORE v.
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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
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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;
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(iii) a causal link, where applicable, between the dumped
imports and injury;
(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
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
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,
(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
COMMISSIONER OF CUSTOMS, BANGALORE v.
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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
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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.
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
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
country, as referred to sub-rule (3) of rule 17, any antidumping duty applied to imports from exporters or
producers not included in the examination shall not
exceed-
(i) the weighted average margin of dumping established
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
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
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
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:
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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
shall be levied retrospectively on the imports which have
entered for home consumption before the violation of the
terms of such undertaking.
·
Provided also that notwithstanding anything .contained
in the foregoing proviso, in case of violation of such
undertaking, the provisional duty shall be deemed to have
been levied from the date of violation of the undertaking
or such date as the Central Government may specify in
each case.
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
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.
(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."
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.