No Retrospective Imposition of Anti Dumping Duty - Supreme Court
IT'S a great Day for DDT. For the last ten years, DDT has been relentlessly pointing out the fact that the Government had been with routine regularity extending the validity of dead anti dumping notifications and we had been questioning as to what would be the position during the period between lapsing of an anti dumping notification and its resurrection. We have been told by several Customs officers that despite lapsing of the notifications, they would collect the anti dumping duty, on the assumption that Government would resurrect them and at that point of time, it would be impossible to collect the differential duty.
What DDT has been shouting from the rooftop for the last ten years has been heard and approved - not by the Board, but by the Supreme Court. And that Board willing is now the law of the land.
The Government imposed, by a notification 50/2002-Cus 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 Notification clearly stated that the anti dumping duty imposed will be effective till 1st November 2002, meaning that they could not levy the duty from 2 nd November 2002.
The 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.
There is a gap period between 2.11.2002 and 30.4.2003, during which there was actually no law imposing the anti dumping duty, except the retrospective notification dated 1st May, 2003.
DDT regularly reports such retrospective illegal levy of anti dumping duty. The last case reported was in DDT 2604 - 25 05 2015.
Now, the question is whether the Government was right in levying this duty during the gap period ?
The Supreme Court for once and all decided the issue with emphatic finality yesterday holding that the Government cannot levy an anti-dumping duty with retrospective effect.
In no uncertain terms, the Supreme Court held: 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.
The American Experience:
The Supreme Court noted that interestingly enough, in the United States Manual dealing with anti-dumping duties, the following is the statement of law:-
"Therefore, a period of time, known sometimes as the "gap period," may exist between the expiration of the end of the provisional measures, even if extended, and the publication of the ITC's final determination (the starting of definitive duties) where the DOC cannot require CBP to collect cash deposits, bonds, or other securities. (The gap period begins the day after the end of the 4- or 6-month period, and ends the day before the ITC's final determination is published). The DOC normally administers this problem in one of two ways. We either send instructions to CBP towards the beginning of the gap period, instructing them to stop collecting cash deposits or bonds, or we wait until the order has been published, then instruct CBP to liquidate all entries during the gap period without regard to antidumping duties."
The Supreme Court was heartened to note that one other signatory nation has taken the stand that no duty can be collected during the "gap period".
We hope that at least now the Government will show some respect to the Law as laid down by the Supreme Court and stop this illegal practice of levying anti dumping duty with retrospective effect. The Board should inform all Custom Houses that once a provisional anti dumping duty lapses, it cannot be levied from the date of lapse.
We bring you the Supreme Court order today.