NITCO TILES LTD. Vs. DESIGNATED AUTHORITY, MINISTRY

JUDGEMENT

(1.) THE appellant -importer has challenged the final findings dated 4th February, 2003 by the Designated Authority and the impugned notification issued on 1st May, 2003 under Section 9A(1) of the Customs Tariff Act imposing antidumping duty with effect from 2nd May, 2002 and has prayed for holding that the final anti -dumping duty shall have only prospective effect, seeking modification of the notification on that basis.

(2.) ON 6th August, 2001, the designated authority initiated the investigation on the basis of the petition filed by M/s. SPL Ceramics Ltd., M/s. H&R Johnson India Ltd. and M/s. Murudeshwar Ceramics Ltd. The designated authority notified its preliminary findings by notification dated 3rd December, 2001 with regard to anti -dumping investigations concerning imports of vitrified/porcelain tiles originating in or exported from China PR and UAE. Public hearing was held on 2nd July, 2002 to hear the interested parties. The authority made the public file available to all interested parties containing non -confidential version of the evidence submitted by various interested parties for inspection upon their request. Disclosure of essential facts, as required by Rule 16 of the Customs Tariff (Identification, Assessment and Collection of Anti -Dumping Duties on Dumped Articles and for Determination of Injury) Rules 1995, was made on 17th December, 2003. In its final findings, the authority concluded that, vitrified/porcelain tiles were exported to India from UAE and China PR below its normal value resulting in dumping, the Indian industry had suffered material injury, and that the injury had been caused cumulatively by the imports from the subject countries.

(3.) THE provisional duties were levied on 2nd May, 2002, and they were to be effective upto and inclusive of first day of November 2002. The contention raised on behalf of the appellant is that since the provisional duties expired on 1st November, 2002, and there was no provisional duty in force from 2nd November, 2002, the final duty could not have been levied retrospectively by the notification issued on 1st May, 2003 imposing such final duty. According to the appellant, it was undisputed that no provisional duties were ever levied for the period starting from 2nd November, 2002 till 30th April, 2003. As the provisional duty was zero for the that interregnum period, Rule 21(1) would come into operation and the difference between the higher final duty and the lower or zero provisional duty could not be collected for such interregnum period. Since the notification dated 1st May, 2003 levied Page 308 anti -dumping duty with effect from the date of provisional duty, the applicability of anti -dumping duty during the "interregnum period" from 2nd November, 2002 to 30th April, 2003, when there was no provisional duty, was not warranted. Arguments on behalf of the appellant: