Case Law Details
Brief of the Case
Supreme Court held In the case of Commissioner of Customs vs. M/S. G.M. Exports & Others that the final anti-dumping duty only incorporates the provisional anti-dumping duty within itself, but in the manner provided by Rule 13 of Anti-dumping rules. As per Rule 13, provisional anti-dumping rule will remain in force for a period of 6 months only which can be extended up to 9 months. Thus, it is clear that such incorporation can only be the period up to 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 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.
Facts of the Case
The facts are taken from 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 of 2012, which explain how the question which has to be determined by this judgment arose. On 6th August, 2001 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 3rd December, 2001. Following the preliminary findings, the Union Government imposed, by a notification dated 2nd 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 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. 2nd 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 2nd November, 2002 and 30th April, 2003. This, according to the assessee, is the “gap period” when the provisional duty had come to an end by efflux of six months until a final notification was issued by the Union Government on 1st May, 2003.
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