The Commissioner of Customs (Import), Mumbai vs M/s. Samarth Industries <BR> Nandlal B. Surekha Vs The Union of India and Ors

Dr. D.Y. Chandrachud, J.—This order will govern the Appeals and the Writ Petitions under Article 226, which have been heard together. Learned Counsel stated that the facts in all these matters and, the questions of law raised are similar. Hence, we propose to dispose of this batch of cases by a common judgment. For the sake of convenience, the facts in Customs Appeal 18 of 2009 are discussed.

This Appeal by the Commissioner of Customs is against an order of the Customs Excise & Service Tax Appellate Tribunal dated 1 August 2007. The Tribunal has held, inter alia, that no Antidumping duty can be levied on imports made during the period of the expiry of a provisional Antidumping levy and the levy of a final Antidumping duty under Rule 21 of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 ("the AntiDumping Rules"). The Appeal by the Revenue was admitted on 6 April 2009. The following substantial questions of law, as modified to elucidate the submissions urged, arise :

(1) Whether the CESTAT, Mumbai was justified in setting aside the AntiDumping Duty imposed with respect to imports made by the Respondents during the period between the expiry of the provisional anti dumping duty and the imposition of a final anti dumping duty;

(2) Whether the CESTAT, Mumbai was justified in law in not granting the differential AntiDumping Duty arising out of final findings in view of the provisions of Section 9A(3) of Customs Tariff Act, 1975;

(3) Whether the CESTAT, Mumbai was justified in law in not appreciating that a provisional assessment u/s 18 of the Customs Act, 1962 can be resorted to for the purpose of levy and collection of AntiDumping Duty;

(4) Whether the CESTAT, Mumbai was justified in law in not appreciating that Section 28 of Customs Act, 1962 can be pressed into service for collection of Anti Dumping Duty;

(5) Whether the CESTAT, Mumbai was justified in law in deviating from the Order passed by the Principal Bench (Antidumping Branch), New Delhi of the Tribunal in the case of M/s. Nitco Tiles Ltd.

The learned Counsel appearing on behalf of the Revenue has submitted and this position - is not disputed by learned Counsel appearing on behalf of the Respondent that the first question of law will be dispositive of the issues that arise in the appeals filed by the Revenue. Counsel appearing on behalf of the Revenue states that the second question of law is not pressed. As regards the third and fourth questions, it is now common ground between Counsel appearing on behalf of the Revenue and Counsel appearing on behalf of the Respondents that in view of the provisions of Section 9A(8) of the Customs Tariff Act, 1975, the view which has been taken by the Tribunal is unsustainable. Sub-section (8) of Section 9A was substituted with effect from 1 January 1995 by the Finance Act (No.2), 2009 to provide that the provisions of the Customs Act, 1962 and the Rules and Regulations made thereunder including those relating to the date for the determination of the rate of duty, assessment, non levy, short levy, refunds, interests, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under the Section as they apply in relation to the duty leviable under that Act. In view of the amended provisions of Section 9A(8), the third and fourth questions would have to be answered in the negative. The fifth question of law is consequential and relates to the first.

On 6 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 3 December 2001. Following the preliminary findings, the Union Government imposed by a notification dated 2 May 2002 a provisional antidumping duty u/s 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 4 February 2003 and while concluding that an injury had resulted, recommended the imposition of antidumping duty. The Union Government issued a notification on 1 May 2003 imposing a final antidumping duty from the date of the imposition of the provisional antidumping duty i.e. 2 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 2 November 2002 and 30 April 2003. This, according to the Respondents, is the gap period when the provisional duty had come to an end and until a final notification was issued by the Union Government on 1 May 2003.

The principal issue which falls for determination in these proceedings is whether the levy of a final antidumping duty will cover the entire period from the date of the issuance of the provisional antidumping duty as contended by the Revenue or whether, as the Respondents submit, no duty can be levied for the period after the expiry of the imposition of the provisional duty until the final antidumping duty has taken effect.

The Customs Tariff Act, 1975 ("the Act") was amended by substituting Sections 9, 9A and 9B by the Customs (Amendment) Ordinance, 1994. The Ordinance came into force on 1 January 1995. The Ordinance was replaced by an Act.

Sub-section (1) of Section 9A provides for an antidumping duty on dumped articles. Under the provision, where any article is exported from any country or territory to India at less than its normal value, then, upon the importation of such article in India, the Central Government is empowered by a notification in the Official Gazette, to impose an antidumping duty not exceeding the margin of dumping in relation to such article. The expression margin of '' dumping'' is defined in Explanation (a) to mean the difference between the export price and the normal value of the article. Bereft of detail, the export price in relation to an article means the price of the article exported from the exporting country. The ''normal value'' means the comparable price in the ordinary course of trade for a similar article when meant for consumption in the exporting country.

Sub-section (2) of Section 9A empowers the Central Government to impose an antidumping duty on the basis of a provisional estimate of the normal value and the margin of dumping pending a final determination in accordance with the provisions of the section. Sub-section (2) of Section 9A is as follows:

(2) The Central Government may, pending the determination in accordance with the provisions of this 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 antidumping duty on the basis of a provisional estimate of such value and margin and if such antidumping duty 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 antidumping duty; and

(b) refund shall be made of so much of the antidumping duty which has been collected as is in excess of the antidumping duty as so reduced.

Under Sub-section (3) of Section 9A, the Central Government is empowered by a notification in the Gazette to levy an antidumping duty retrospectively even from a date prior to the imposition of the antidumping duty under Sub-section (2) but not beyond the ninety days from the date of the notification where in the opinion of the Central Government two conditions are satisfied :

(i) there is a history of dumping which caused injury or that the 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 antidumping duty liable to be levied.

Under Sub-section (5), the antidumping duty imposed unless revoked earlier, ceases to have effect on the expiry of five years from the date of imposition. Sub-section (6) of Section 9A stipulates that the margin of dumping is to be ascertained and determined by the Central Government after such inquiry as it may consider necessary. The Central Government is empowered to make rules for the purpose of the section. The Rules may provide for the manner in which articles liable to be subject to antidumping duty may be identified, 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 antidumping duty. As now substituted, Sub-section (8) of Section 9A provides that the provisions of the Customs Act and the Rules and Regulations made thereunder shall, as far as may be, apply to the duty chargeable under the Section as they apply in relation to the duty leviable under that Act.

In exercise of the powers conferred by Section 9A, the Union Government notified with effect from 1 January 1995, the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995. A Designated Authority is constituted by Rule 3. Under Rule 4 the Designated Authority is, inter alia, vested with the duty (i) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; (ii) to identify the articles liable for antidumping duty; (iii) to submit findings, provisional or otherwise, to the Central Government inter alia as regards the normal value, export price and the margin of dumping and as regards the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of the article; (iv) to recommend the amount of antidumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry and the date of commencement of such duty; and (v) to review the need for continuance of antidumping duty. Under Rule 12, the Designated Authority has to render, in appropriate cases, a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, to also record a further finding regarding injury to the domestic industry. Rule 13 provides for the levy of provisional duty. Under that Rule, the Central Government may on the basis of the preliminary findings recorded by the Designated Authority, impose a provisional duty not exceeding the margin of dumping. Under the first proviso to Rule 13, no such duty can be imposed before the expiry of sixty days from the date of a public notice issued by the Designated Authority regarding its decision to initiate investigations. Under the Second proviso to Rule 13, the provisional duty is to remain in force only for a period not exceeding six months which can upon the request of exporters representing a significant percentage of the trade involved be extended to nine months. Rule 17 empowers the Designated Authority to issue final findings within one year from the date of initiation of an investigation. The Designated Authority is required to determine as to whether the article under investigation is being dumped in India. The final finding determines :

(i) the export price, normal value and the margin of dumping of the article;

(ii) whether the import of the article in India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;

(iii) a causal link, where applicable, between the dumped imports and injury; and

(iv) whether a retrospective levy is called for and if so, the reasons therefore and the date of commencement of such retrospective levy.

The Central Government is empowered in its discretion to extend the aforesaid period of one year by six months.

Under Rule 18, the Central Government is, within three months from the date of publication of final findings by the Designated Authority, empowered to impose by notification in the Official Gazette, an antidumping duty, upon importation in India of the article covered by the final finding, not exceeding the margin of dumping determined under Rule 17. Under sub-rule (4) of Rule 18, if the final finding of the Designated Authority is negative that is contrary to the evidence on the basis of which the investigation was initiated, the Central Government is under an obligation to withdraw the provisional duty imposed within forty five days of the publication of final findings.

The controversy in the present case turns upon the interpretation of Rule 20 and it would, therefore, be necessary to extract the provision in its entirety.

Commencement of duty.( 1) The antidumping 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 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 antidumping duty may be levied from the date of imposition of provisional duty;

(b) in the circumstances referred to in Sub-section (3) of section 9A of the Act, the antidumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty;

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.]

Rule 21 provides for refund of duty and is as follows :

Refund of duty. (1) If the antidumping 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 antidumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected, the difference 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.

On behalf of the Appellants, it has been submitted by learned Counsel that :

(i) The issue which arises before the Court is not res integra but is covered by a decision of a Division Bench of the Kerala High Court in Commissioner of Customs Vs. Akash Trading Co., ;

(ii) Under Sub-section (2) of Section 9A the Central Government is empowered, pending the determination in accordance with the provisions of the Section of the normal value and the margin of dumping to impose an antidumping duty on the basis of a provisional estimate of such value and margin;

(iii) Under Rule 13 which provides for the levy of a provisional duty, the Central Government is empowered to impose a provisional duty on the basis of the preliminary findings recorded by the Designated Authority, albeit for a period of six months;

(iv) Upon the publication of the final findings by the Designated Authority, the Central Government may impose an antidumping duty not exceeding the margin of dumping as determined under Rule 17;

(v) Both, the provisional duty and the final antidumping duty, take effect from the publication in the Official Gazette under Rule 20 (1);

(vi) However, Rule 20(2) which overrides sub-rule (1) stipulates that in certain circumstances the antidumping duty may be levied from the date of the imposition of the provisional duty. Once the conditions which are spelt out in Rule 20(2)(a) are fulfilled, the date of commencement of the definitive antidumping duty has to be the date of imposition of the provisional antidumping duty and the definitive duty will remain in force for a period of five years. The definitive antidumping duty would cover the period of five years commencing from the provisional antidumping duty without any break or hiatus. Any other construction would defeat the object and purpose of imposing a definitive antidumping duty after investigation has found that the statutory requirements for the imposition have been duly fulfilled.

(vii) In the present case, there is a finding by the Designated Authority that the conditions which have been provided for in Rule 20(2)(a) were fulfilled. Hence, the levy of the final antidumping duty would take effect from the date of the imposition of the provisional duty and would cover the entire period without any break.

On the other hand, it has been urged on behalf of the Respondents that :

(i) Rule 20(2)(a) should be interpreted in the light of the WTO agreement particularly clause 10.2 thereof since the object of enacting the provisions of Section 9A was to enforce the obligations cast upon India as a member of the World Trade Organisation;

(ii) Even if there is a deviation in the language used in the rules from the words of the WTO agreement, if one of the meanings of Rule 20(2)(a) is consistent with the WTO agreement, that must be preferred;

(iii) The word levied in the context " " of Rule 20(2)(a) means the period for which the provisional duty was imposed and collected;

(iv) On the date when the imports took place, there was no liability to pay provisional duty because the period of six months had expired. The final duty has been imposed later and is, therefore, retrospective. Subordinate legislation cannot be retrospective unless the statute under which it is enacted authorises retrospectivity. If a construction which does not make a subordinate legislation retrospective is available, that must be preferred;

(v) When the Act was enacted, Parliament had before it both, the provisions of the Ordinance and the Rules which were brought into force on 1 January 1995. Consequently, Parliament must be attributed with an intent to enforce the obligations contained in the WTO agreement;

(vi) The expression "pending" in Section 9A(2) refers to the condition for the exercise of the power and not the duration for which a provisional duty can be imposed;

(vii) Alternatively, it has been urged that if the contention which is urged on behalf of the Revenue is accepted, that would result in a situation where the definitive antidumping duty is rendered retrospective. The Customs Tariff Act, 1975 does not authorise the imposition of a retrospective duty which must, therefore, be held to be ultra vires. (This submission has been urged in support of the Petitions under Article 226).

The rival submissions now fall for determination.

Under Sub-section (1) of Section 9A of the Customs Tariff Act, 1975 Parliament empowered the Central Government to impose antidumping duty not exceeding the margin of dumping on an article exported into India by an exporting country at less than its normal value. In sub-section (2) of Section 9A Parliament made a provision empowering the Union Government to impose an antidumping duty on a provisional estimate of the normal value and the margin of dumping. The duty under Sub-section (2) of Section 9A is an interim measure because it is to be enforced pending the determination in accordance with the provisions of the Section. The imposition of a duty u/s 9A(2) is on a provisional estimate. A provisional estimate is a tentative evaluation which gives way to and merges in a final determination. The duty u/s 9A(2) is pending the ultimate determination. An enabling provision is made by Parliament authorising the Central Government to impose a duty u/s 9A(2) to protect the public interest which the statute protects, till a final determination is made. The enabling provision covers the period until the determination in accordance with the provisions of the Section is made. Sub-section (3) of Section 9A authorises the levy of an antidumping duty even from a date prior to the imposition of an antidumping duty under Sub-section (2) but not beyond ninety days from the date of the notification under that subsection. The duty under Sub-section (3) is understood by Parliament to be retrospective because Parliament has authorised imposition of the duty, subject to the fulfilment of the requirements of Sub-section (3), from a date even prior to the imposition of a provisional antidumping duty under Sub-section (2). At this stage, what merits emphasis is the legal position that while enacting Section 9A Parliament expressly contemplated the imposition of (i) A provisional antidumping duty which would be levied pending the final determination; and (ii) The imposition of a definitive final antidumping duty.

The Antidumping Rules have been framed by the Central Government under the statutory authority conferred by Sub-section (6) of Section 9A. Under Sub-section (6) the Rules are framed for the purpose of the section. Without prejudice to the generality of that provision the Rules may provide for the manner in which articles liable to antidumping duty may be identified, the manner in which the export price and the normal value and the margin of dumping may be determined and for the assessment and collection of the antidumping duty. Section 9B however provides an overriding stipulation in that notwithstanding anything contained in Section 9 or Section 9A, the Central Government shall not levy any countervailing duty or antidumping duty under Sub-section (1) on the import of any articles into India from a member country of the WTO or from a country with whom the Government has a most favoured nation agreement unless in accordance with the Rules made under Sub-section (2) a determination is made that import of an article into India causes or threatens a material injury to any established industry in India or materially retards establishment of industry in India. Similarly, the Central Government cannot levy countervailing duty or an antidumping duty under Sub-section (2) of Section 9A on the import of an article from specified countries unless in accordance with the Rules a preliminary finding had been made of dumping and consequent injury to domestic industry and a further determination has also been made that a duty is necessary to prevent injury being caused during the investigation.

The relevant provisions of the Act including those of Section 9A were enacted in order to fulfill the obligations which were cast upon India as a member of the WTO and pursuant to the Uruguay Round of Multilateral trade negotiations. The Statement of objects and reasons adverts to the background in which the Legislation came to be enacted. The Statement of objects and reasons accompanying the introduction of the Bill in Parliament provided that the Final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, contains, inter alia new agreements on antidumping, subsidies and countervailing Dmt 32 customs appeals 18-09 & ors. measures. Member countries were required to ensure the conformity of their laws, regulations and administrative procedures with those provided in the Final Act. India having acceded to join the World Trade Organisation with effect from 1 January 1995, the Union Government was required to align its laws relating to countervailing duty and antidumping duty with the provisions contained in the Final Act. Some of the changes which were introduced in the Customs Tariff Act, 1975 and brought through the Ordinance included the levy of antidumping and countervailing duties retrospectively in specified circumstances. Such duties would cease to operate five years after the date of imposition unless reviewed before their expiry.

In addressing the task of statutory interpretation, certain important precepts have to be borne in mind by the Court. Where legislation is enacted by Parliament to enable the Union Government to give effect to its obligations under an International convention, the language used in the enactment should be construed, to the extent that this is possible, in the sense in which it has been used in the international convention which the enactment seeks to enforce if the words of the enactment are reasonably capable of such a construction. Lord Diplock, speaking for House of Lords in the Eschersheim 1976 WLR 430 enunciated the principle which under the common law must govern, thus :

As the Act was passed to enable Her Majesty s Government to '' give effect to the obligations in international law which it would assume on ratifying the Convention to which it was a signatory, the rule of statutory construction laid down in Saloman v. Customs and Excise Commissioners (1967) 2 Q.B. 116 and Post Office v. Estuary Radio Ltd. (1968) 2 Q.B. 740 is applicable. If there be any difference between the language of the statutory provision and that of the corresponding provision of the Convention, the statutory language should be construed in the same sense as that of the Convention if the words of the statute are reasonably capable of bearing that meaning.

...............

Accordingly if the language used in the English list is capable of more than one meaning that meaning is to be preferred that is consistent with the language used to describe the corresponding claim in the Scottish list.

Under Article 51(c) of the Constitution which forms part of the Directive Principles, the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. When the State seeks to enforce an international agreement by enacting legislation on the subject, the Court must of course give a contextual meaning to the language used. Even as a matter of first principle, as noted in the judgment of Justice Bhagwati in Union of India (UOI) Vs. Sankalchand Himatlal Sheth and Another, , the words used in a statute cannot be read in isolation; their colour and content are derived from their context. While placing a contextual interpretation on the words used, the Court nonetheless has a duty to fulfill the primary task which is to construe the meaning of the language used by Parliament in a statute. The Court when it construes the terms of a statutory enactment is bound to give effect to the meaning of the words used by Parliament. Where Parliament has made a departure from the language used in an International Convention, the Court which has to elucidate the meaning of the words used by Parliament cannot ignore the content and meaning of those words.

The agreement on implementation of Article 6 of the General Agreement on Tariffs and Trade, 1994 provides that an antidumping measure shall be applied only under the circumstances provided in Article 6 and pursuant to the investigation initiated and conducted in accordance with the provisions of the agreement. Article 2 provides for the determination of dumping; Article 3 provides for determination of injury; Article 5 provides for the initiation and subsequent investigation; and Article 7 provides for provisional measures. Article 7.1 stipulates that provisional measures may be applied only if (i) an investigation has been initiated following which a public notice giving affected parties an opportunity to submit their information and evidence has been issued; (ii) a preliminary affirmative determination has been made of dumping and of subsequent injury to the domestic industry and (iii) the authorities concerned judge such measures necessary to prevent injury being caused during the investigation. Under Article 7.2 provisional measures may take the form of a provisional duty or, preferably, a security equal to the amount of the antidumping duty provisionally estimated, being not greater than the provisionally estimated margin of dumping. Under Article 7.4 the application of provisional measures is to be limited to as short a period as possible, not exceeding four months or, upon the request of the exporters representing a significant percentage of the trade involved, not exceeding six months and nine months respectively. Article 10 is titled retroactivity. Article 10.2 provides '' '' that 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 provisional measures, have led to a determination of injury "antidumping duties may be levied retroactively for the period for which provisional measures, if any, have been applied." Article 10.3 provides that if the definitive antidumping duty is higher than the provisional duty paid or payable, or the amount estimated for the purpose of the security, the difference shall not be collected.

Parliament in India enacted Section 9A(2) to provide for the imposition of an antidumping duty on the basis of a provisional estimate of the normal value and the. margin of dumping, pending a determination in accordance with the provisions of the section. Rule 13 empowers the Central Government to impose a provisional duty not exceeding the margin of dumping on the basis of the preliminary findings recorded by the Designated Authority. Under the second proviso to Rule 13, the provisional duty is to remain in force only for a period not exceeding six months which can be extended by the Union Government to nine months on a request of the exporters representing a significant percentage of the trade. Once a final finding has been recorded by the Designated Authority, under Rule 17, the Central Government is empowered under Rule 18 to impose antidumping duty not exceeding the margin of dumping within three months of the date of publication of final findings by the designated authority. While under sub-rule (1) of Rule 20 it is stipulated that antidumping duty shall take effect from the date of its publication in the Official Gazette, sub-rule (2) contains a nonobstante provision and which overrides sub-rule (1). Under clause (a) of sub-rule (2) the antidumping duty may be levied from the date of imposition of provisional duty in a situation where a provisional duty has been levied and where 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 construction which has been suggested on behalf of the Respondents would lead to a manifest absurdity. The clear meaning of Rule 20(2)(a) is to authorise the levy of the antidumping duty from the date of the imposition of provisional duty. This follows a finding by the Designated Authority either that there has been an injury or a finding of a threat of injury coupled with the finding that in the absence of a provisional duty, the dumped imports would have caused an injury. Once the levy of an antidumping duty under Rule 20(2)(a) relates back to the date of the imposition of provisional duty, there would be no reason or justification to hold that the levy of the antidumping duty must sustain a break during the period between the expiry of the provisional duty and the issuance of a notification imposing a final antidumping duty. If this construction were to be adopted, imports which were made during the period between the expiry of the provisional duty and the levy of the final antidumping duty would go unchecked notwithstanding the fact that the Designated Authority has found, upon investigation, injury or a threat of injury coupled with a further finding that in the absence of provisional duty, the dumped imports could have led to an injury. Such a construction would militate against the object and purpose underlying the conferment of power upon the Union Government u/s 9A to impose an antidumping duty not exceeding the margin of dumping.

The submission which has been urged on behalf of the Respondents is that clause (a) of sub-rule (2) of Rule 20 begins with the words where a provisional " duty has been levied". Learned Counsel submitted that the word "levied" in Rule 20(2)(a) must mean a levy which is imposed and collected and not merely a levy which is imposed. On this foundation it was urged that since no levy has been collected during the gap period following the expiry of the provisional levy, a provisional duty has not been levied within the meaning of Rule 20(2)(a) and hence the antidumping duty cannot cover the gap period. We are unable to accept the submission. The word levy must receive a construction " " consistent with the context in which it is used. Rule 4(1)(d) for instance authorises the Designated Authority to recommend the amount of antidumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, and the date of the commencement of the duty. The marginal note to Rule 13 speaks of levy of provisional duty while the substantive part empowers the Central Government on the basis of the preliminary findings of the Designated Authority to impose a provisional duty not exceeding the margin of dumping. Rule 18 which again speaks of levy of duty, authorises the Central Government upon the publication of final findings by the Designated Authority to impose an antidumping duty. When Rule 20(2)(a) refers to a situation where a provisional duty has been levied " " the rule adverts to the levy under Sub-section (2) of Section 9A read with Rule 13. Sub-section (2) of Section 9A refers to the imposition of an antidumping duty on the basis of a provisional estimate of the normal value and the margin of dumping. Under Rule 13, the Central Government can impose a provisional duty not exceeding the margin of dumping. In this context, when Rule 20(2)(a) speaks of the levy of the antidumping duty from the date of the imposition of a provisional duty, the rule refers to the date with effect from which the provisional duty was imposed. The initial words of clause (a) only require that the provisional duty ought to have been levied before the antidumping duty may be levied from the date of the imposition of a provisional duty. The fact that the provisional duty had come to an end upon the expiry of a period of six months makes no difference to the provisions of Rule 20(2)(a) for the simple reason that the antidumping duty, once the conditions specified in the rule are fulfilled, relates back to the date of the imposition of the provisional duty.

Under Rule 20 if the antidumping duty which is imposed by the Central Government on the basis of the final findings of the Designated Authority is higher than the provisional duty already imposed and collected, the differential is not to be collected from the importer. However, if the antidumping duty is lower than the provisional duty already imposed and collected, the differential is to be refunded to the importer. Rule 21 has carefully used the expression provisional duty already imposed and " collected" something which is not present in Rule 20(2)(a). Consequently, in interpreting the provisions of Rule 20(2)(a), the Court must be guided by the normal and ordinary meaning of the words used which is that the antidumping duty may be levied from the date from which the provisional duty was imposed.

Learned Counsel appearing on behalf of Respondents sought to place reliance on a decision of a Division Bench of this Court in Krishnakant Sakharam Ghag vs. Union of India 2006 (206) E.L.T. 1117 (Bom.). In that case it was contended on behalf of the Petitioner that the provisions of Section 12 of the Central Excise Act, 1944 did not empower the Central Government to import the recovery provisions contained in Customs Act, 1962. Section 12 provided that the Central Government may by a notification in the Gazette declare that any of the provisions of the Customs Act, 1962 relating to the levy of an exemption from customs duty shall be applicable with such modifications and alterations as are considered necessary in regard to the like matters in respect of duties imposed u/s 3. In that context, the Division Bench held that the natural meaning of the word ''levy'' is to collect and even judicially the word ''levy'' has been construed to mean the determination of liability as well as the collection of tax. The Division Bench, therefore, rejected the contention of the Petitioner there that when Section 12 of the Excise Act empowers the Central Government to apply the provisions of the Customs Act, 1962 relating to levy, this should not include provisions for recovery or collection of tax. The decision of the Division Bench in fact emphasises that the meaning of a statutory term must receive meaning in the context in which the words are used. In the context in which the words are used in Rule 20(2)(a), an antidumping duty can be levied from the date of imposition of a provisional duty where the provisional duty has been levied, subject to the fulfilment of the other requirements. Where a provisional duty has been levied reflects '' '' a situation where, a duty was imposed in exercise of powers conferred by Sub-section (2) of Section 9A read with Rule 13.

The argument of retrospectivity is similarly lacking in substance. Sub-section (2) of Section 9A empowers the Central Government to impose a duty on the basis of the provisional estimate pending a determination in accordance with the provisions of the Section. Parliament, when it enacted Sub-section (3) of Section 9A, considered that the levy of an antidumping duty, prior to the date of imposition of the provisional duty under Sub-section (2) would be retrospective and, therefore, confined the duration of the imposition of such a duty to a period of not more than ninety days from the date of the notification issued under Sub-section (2). The imposition of an antidumping duty following the final finding of the Designated Authority, with effect from the date on which the provisional duty was imposed, cannot be regarded as retrospective. What Rule 20(2)(a) does is to empower the Central Government to impose an antidumping duty with effect from the date of the imposition of the provisional duty. The final antidumping duty on the imposition relates back to the imposition of the provisional duty. This cannot be regarded as retrospective in nature or character.

During the course of the hearing, we have perused the judgment of the Kerala High Court in Commissioner of Customs Vs. Akash Trading Co., . In that case the issue which was raised by the Revenue was whether the Respondent was liable to pay antidumping duty on the import of Compact Florescent Lamps from the Peoples Republic of China and Hong Kong based on a final notification issued by the Central Government. A provisional antidumping duty was imposed by a notification dated 20 December 2001 under Sub-section (2) of Section 9A read with Rules 13 and 20. The Respondents had effected import after the expiry of six months from the date of the issuance of the notification imposing the provisional duty. Demands for duty were made against the Respondents. The First Appellate Authority and the Tribunal held that antidumping duty was not payable by the Respondents on the ground that the notification imposing a provisional duty had expired by the time the imports were made by the Respondents. Allowing the appeal filed by the Commissioner of Customs, the Division Bench of the Kerala High Court held as follows :

Rule 20(2)(a) gives authority to " the Government to levy antidumping duty with effect from the date of imposition of provisional duty. In fact, in our view, the contention of the respondents and assumption of the Tribunal, that levy under Annexure B notification is retrospective is not correct because provision for levy of antidumping duty with retrospective effect is contained in Section 9A(3) read with Rule 20(b) of the Rules, whereas Annexure B is issued u/s 9A(5) read with Rule 20(2)(a) of the Rules. In this case, there is no retrospective levy because retrospective levy can be only for period prior to the issue of notification providing for provisional antidumping duty. Once an order u/s 9A(2) is issued imposing duty provisionally then the question of retrospectivity does not arise and only Rule 20(2)(a) applies which authorises the Government to levy antidumping duty from the date of introduction of provisional duty which is the case here.

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once provisional antidumping duty is levied for any goods, any subsequent import of such goods will attract antidumping duty if final orders provide for levy with effect from the date of provisional order. We are therefore of the view that the Tribunal went wrong in holding that antidumping duty cannot be levied or collected from the respondents after expiry of Annexure A notification.

We are in respectful agreement with the view of the Kerala High Court.

For these reasons, we are of the view that the Appeals by the Revenue would have to be allowed. The first Question of Law which has been formulated, shall accordingly stand answered in the negative. The second Question of Law has not been pressed on behalf of the Revenue. The Third and the Fourth Questions of Law would have to be answered in the negative having regard to the substituted provisions of Sub-section (8) of Section 9A of the Customs Tariff Act, 1975. The fifth Question of Law shall stand answered in terms of the decision of the first Question of Law. The Appeals are, accordingly, allowed in these terms. There shall be no order as to costs. As far as the Writ Petitions are concerned, for the reasons already indicated, Sub Rule (2) of Rule 21 of the Antidumping Rules is not ultra vires the provisions of Section 9A(1). Similarly, the notification dated 1 May 2003 is not ultra vires the provisions of Section 9A(1). Both the Petitions shall therefore stand dismissed. No order as to costs.