Legal principle

Where a provisional anti-dumping duty has been levied under Section 9A(2) of the Customs Tariff Act, 1975, the final anti-dumping duty may validly be imposed with effect from the date of imposition of the provisional duty under Rule 20(2)(a), so that imports made during the gap period between the expiry of the provisional levy and the final notification remain dutiable, and such relation back is not retrospective.

Court decision

The Court allowed the Revenue's appeals: the first question of law was answered in the negative, holding that the CESTAT was not justified in setting aside the anti-dumping duty on gap-period imports, since the final duty validly related back to the date of imposition of the provisional duty; the second question was not pressed; the third and fourth questions were answered in the negative, the Tribunal's view being unsustainable in view of the substituted Section 9A(8) of the Customs Tariff Act, 1975 (by the Finance Act (No.2), 2009) which applies the Customs Act, 1962 provisions on assessment, non-levy and short levy to anti-dumping duty; the fifth question was answered in terms of the first. Both writ petitions were dismissed, Rule 21(2) of the Anti-Dumping Rules and the notification dated 1 May 2003 being held not ultra vires Section 9A(1).

Facts

The Commissioner of Customs (Import), Mumbai appealed against a CESTAT order dated 1 August 2007 holding that no anti-dumping duty can be levied on imports made during the period between the expiry of a provisional anti-dumping duty and the levy of a final anti-dumping duty under Rule 21 of the Anti-Dumping Rules, 1995. The goods were Vitrified/Porcelain tiles originating in or exported from the People's Republic of China and the UAE, in respect of which the Designated Authority initiated proceedings on 6 August 2001 and issued preliminary findings on 3 December 2001. The Union Government imposed a provisional anti-dumping duty by notification dated 2 May 2002 under Section 9A(2) of the Customs Tariff Act, 1975 read with Rules 13 and 20, and after final findings on 4 February 2003, imposed final anti-dumping duty by notification dated 1 May 2003 with effect from 2 May 2002. The dispute concerned imports made in the 'gap period' between 2 November 2002 (expiry of the provisional levy) and 30 April 2003, before the final notification. Connected writ petitions challenged the vires of Rule 21(2) of the Anti-Dumping Rules vis-à-vis Section 9A(1) and the validity of the notification dated 1 May 2003.

Key provisions

• Section 9A(2), Customs Tariff Act, 1975 — Anti- dumping duty on dumped articles
• Section 12, Customs Act, 1962 — Dutiable goods
• Rule 21, Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 — Refund of duty
• Section 18, Customs Act, 1962 — Provisional assessment of duty
• Rule 13, Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 — Levy of provisional duty
• Section 28, Customs Act, 1962 — Recovery of duties not levied or not paid or short-levied or short- paid or erroneously refunded
• Rule 20, Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 — Commencement of duty