Interpreting Indian anti-dumping laws in tune with international practices under the World Trade Organisation (WTO) agreements, the Supreme Court has declared that anti-dumping duty can’t be levied during the interregnum between the expiry of the provisional anti-dumping duty and the imposition of final anti-dumping duty.
A bench of the apex court comprising Justice A.K. Sikri and Justice Rohinton F. Nariman rejected an appeal by the Commissioner of Customs, Bengaluru against an order passed by the Customs, Excise and Gold Tribunal, Karnataka in 2005.
The Customs Department had levied anti-dumping duty on G.M. Exports, Bengaluru under provisions of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 on imported vitrified tiles during 2002-03.
The Customs Act and the Rules were amended to incorporate anti-dumping measures after India signed General Agreement on Tariffs and Trade (GATT) in 1994.
The Indian Customs Act states that provisional anti-dumping can be in force for a maximum period of six months, and the authorities will have to determine the final anti-dumping duty by investigating the impact of dumping of goods within a year from imposition of provisional anti-dumping duty.
The Union government had claimed that the final anti-dumping duty would take effect from the date of imposition of the provisional duty, which would necessarily include the “gap” period, which is the period between the lapse of the provisional duty and the imposition of the final duty, and hence can be enforceable for more than six months and up to one year.
Relying on its own judgments and that of House of Lords, the apex court said: “In a situation in which India is a signatory nation to an international treaty, and a statute is made to enforce a treaty obligation, the statutory language should be construed in the same sense as that of the treaty.” The court, after examining the uniform provisions on anti-dumping in Europe, U.S. and other countries under WTO agreements, held that “there can be no levy of anti-dumping duty in the “gap” or interregnum period between the lapse of the provisional duty and imposition of the final duty”.
