TIOL-DDT 290 · the untouched capture
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<html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body bgcolor="#FFFFFF"> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#663399" size="3">TIOL-DDT 290</font><br> 25 01 2006<br> Wednesday</b></font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Retrospective levy of definitive Anti-Dumping Duty - Board approves Tribunal (favourable) order</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Normally Anti Dumping duty which the Board fondly calls ADD is imposed on a provisional basis and later based on investigations and recommendations of the Designated Authority a final definitive ADD is imposed. The provisional ADD is valid only for a period of six months which may be extended for another three months. The Designated Authority is required to give his findings within one year by which time the provisional ADD must have lapsed. If the DA recommends a definitive ADD and the government imposes it, what happens during the period when three was no ADD, not even a provisional one?</font></p> <p align="left"><font color="#000000" size="2" face="Verdana, Arial, Helvetica, sans-serif"> <b>Let us take a live example of a recent case</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">ADD was imposed provisionally on 02.05.2002 and was to be effective up to first day of November 2002. On 1.5.2003, a notification was issued imposing the final duty w.e.f the date of provisional duty that is 2.5.2002. The appellant's contention before the Tribunal was that the final duty could not have been levied retrospectively by the notification issued on 01.05.2003; it was undisputed that no provisional duties were ever levied for the period starting from 02.11.2002 till 30.04.2003 and therefore the applicability of anti-dumping duty during the “interregnum period” from 02.11.2002 to 30.04.2003, when there was no provisional duty, was not warranted.</font></p> <p align="left"><font color="#000000" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>The Tribunal was not impressed and it found the contention misconceived</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Tribunal reasoned that if there was no ADD during the intervening period between the lapsing of the provisional ADD and the imposition of the final ADD, it would be <b>a clear licence to dump the products with impunity</b> during that period. The Tribunal further reasoned that <b>"It could not be the intention of the legislature that despite the determinations of margin of dumping and injury reached at the provisional findings which have come to be finally confirmed, there should be allowed a long period of freely injurious dumping so as to destroy the domestic industry</b> for the protection of which the statutory provisions are enacted and the provisional anti-dumping duty was imposed." please see </font><font size="-1" face="Verdana, Arial, Helvetica, sans-serif">(</font><font size="1" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=52&filename=legal/cestat/2005/2005-TIOL-1317-CESTAT-DEL-LB.htm">2005-TIOL-1317-CESTAT-DEL-LB</a></font>)<font size="2" face="Verdana, Arial, Helvetica, sans-serif">.<br> <br> We carried this judgement on 23rd December 2005 and exactly a month later to the date, on 23rd January 2006; Board has issued a circular accepting the Tribunal's order. Of course Board had reasons other than the Tribunal's logic to go by, for one, a favourable opinion from the Law Ministry. The Board has also expressed its solidarity with the Law Ministry when the circular says, <b>in the matters of interpretation of Law or Statute, opinion of the Law Ministry would prevail over any other technical opinion.</b> (What is the great difference between law and statute?)</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Law Ministry examined the issue and opined,</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ It is well settled that the Rules are to be so interpreted as to promote the object of the Act – <font color="#663399"><b>ut res magis valeat quam pereat</b></font> (What is this? This concept is explained in today's Greek and Latin.)<br> <br> ++ Further a harmonious reading needs to be given to the various Rules.<br> <br> ++ Furthermore, the Rule cannot limit the operation of the Act. The Act has not created any such limitation as suggested as it would have created a gap between the periods of imposition of anti-dumping duty.<br> <br> ++ Section 9(2) and the word “from” in Rule 20(2) (a) leave no doubt as to the Government’s capacity to impose final anti dumping duty ‘from’ the date of imposition of the provisional duty without any break thereafter.<br> <br> ++ <b>Finally determined anti-dumping duty is payable from the date of imposition of provisional duty even after six months of the provisional duty.</b><br> <br> Armed with the Law Ministry's opinion endorsed by the Tribunal, Board clarifies that in cases where finally determined anti dumping duty is imposed with a retrospective effect from the date of imposition of provisional anti-dumping duty, then the final antidumping duty would be payable even for the interregnum period subsequent to the expiry of the provisional duty period.<br> <br> <a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=25&filename=notification/custom/2006/cuscir06_09.htm">CIRCULAR NO. 9/2006-Cus., Dated: January 23, 2006</a></font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>PM to form high power Task Force to solve export(er’s) problems</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Prime Minister Manmohan Singh informed exporters of his decision to form a Task Force comprising representatives from the Commerce Ministry, Finance Ministry and the Planning Commission to address recurring grievances of the exporting community. While he expressed his inability to sort out overnight their problems relating to high transaction cost, interest cost and energy cost, he would expect the Task Force to review the issues relating to the exports every quarter. The exporters wanted exemption from Service Tax for courier services, customs house agents, steamer agents, clearing and forwarding agents, air travel agents, market research agencies, underwriters, telex services, airport services, business exhibition services and forward contract services. They also brought to his notice that 90 per cent of the global trade is carried out by sea and so port facilities had to be improved as in China where they had the ''integrated clearance system'' which provides for a five plus two days rule for all cargo clearances and declaring Shanghai a ''sleepless port''. The Indian exporters also wanted similar sleepless ports where export consignments can be expedited with the help of the introduction of large scale container scanning equipment and round the clock supervision.</font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>The Car mania – Kofi Annan’s son to refund customs duty</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Kojo Annan is the son of UN Secretary General Kofi Annan. He bought a Mercedes Benz car in 1998 in his father’s name and got a discount of about 6500 Dollars from Mercedes and a Customs waiver of about 14,000 Dollars in his native Ghana as the car was said to be for the use of an international diplomat. The Secretary General told investigators that he had no idea that his son had bought the car in his name. Yesterday the Son Annan’s lawyer wrote to the Ghana Customs that he would like to pay back the waived customs duties. Of course they are not paying back Mercedes as “they don’t need the money” according to the attorney. The car is said to be not in use now after it met with a bad accident recently.</font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Australian Customs down – again – with Computer failure</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The 200 Million Dollar computer system of the Australian Customs which brought customs clearances to a standstill just before Christmas is again in trouble. A power outage is the culprit now. When the computerization project was introduced in last October it was hailed as the greatest reforms to occur to the Australian Customs Service. It collapsed soon after leaving key Australian ports full of shipping containers not cleared by customs only weeks before Christmas. As usual the sufferers are the exporters and importers.</font></p> <p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Greek and Latin - DDT's new feature</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Today’s phrase: <font color="#663399"><b>ut res magis valeat quam pereat</b></font> - the Rules must be interpreted to give them useful effect. The International Court of Justice once observed, "The principle of interpretation expressed in the maxim: ut res magis valeat quam pereat, often referred to as the rule of effectiveness, cannot justify the Court in attributing to the provisions…a meaning which …would be contrary to their letter and spirit.<br> <br> In Tinsukhia Electric Supply Co. Ltd. v. State of Assam [AIR 1990 SC 123], the law was laid down as<br> <br> <b><font color="#663399">"The courts strongly lean against any construction, which tends to reduce a statute to a futility. The provision of a statute must be so construed as to make it effective and operative, on the principle "ut res magis valeat quam pereat". It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it"</font></b><br> <br> <b>More law, less justice.</b> -- <i>Cicero, De Officiis (44 B.C.)</i></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <font color="#FF6666"><b>Until tomorrow with more DDT<br> <br> Have a nice day.<br> <br> Mail your comments to</b></font> <a href="vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com </a></font></p> </body> </html>