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Thursday, October 1, 2015

whether anti-dumping duty imposed with respect to imports made during the period between the expiry of the provisional anti-dumping duty and the imposition of the final anti-dumping duty is legal and valid - Here again a simple example would suffice. Say the provisional duty is levied at the rate of Rs. 50/- PMT and comes to an end after 6 months. 6 months later, a final duty is imposed again at the same rate of Rs. 50/- PMT with effect from the date of levy of the provisional duty. If learned counsel for the revenue were right, Rs. 50/- PMT could be recovered under Rule 20(2)(a) for the interregnum period as well which would, in effect, destroy the scheme of Rule 13 second proviso by extending the period of the provisional duty notification beyond a period of 6 months, which clearly cannot be done. We find therefore that on all these counts, the arguments of revenue cannot be countenanced.The High Court goes on to state that the construction suggested on behalf of the assessee would lead to a manifest absurdity as there would be no reason or justification to hold that the levy of anti-dumping duty must sustain a break during the period between the expiry of the provisional duty notification and the issuance of a notification imposing a final anti- dumping duty. The High Court went on to hold that the object and purpose underlying Section 9A would be defeated, as for the interregnum period where both dumping and material injury to domestic industry are found, no anti-dumping duty can be issued. This conclusion again cannot be countenanced for the simple reason that if Rule 20(2)(a) were to be construed n the fashion suggested by the High Court, it would be ultra vires Section 9A for the reasons already given by us. Further, the object and purpose of Section 9A is to impose an anti-dumping duty in consonance with the WTO Agreement, which Section 9A gives full effect to. These basic points have been missed by the High Court in arriving at the aforesaid finding. Further, the High Court fails to give due importance in its judgment to Rules 13 and 21. We have already seen how Rule 21(1) envisages precisely the situation spoken of by the High Court, and yet states that, in the circumstances mentioned therein, despite dumping and material injury to the domestic industry, differential duty cannot be collected from the importer. In fact, the High Court goes on to say that the expression “imposed and collected” in Rule 21, not being there in Rule 20(2)(a), cannot therefore be imported into the said sub-rule, so that “levied” cannot mean “imposed and collected”. We have already held, in view of our construction of Rule 20(2)(a), that this need not be gone into. What has been missed by the High Court is that the expression “levied” has to be understood as “levied” under Rule 13 and once this is so, it becomes clear that such levy cannot exceed a period of 6 months or a maximum period of 9 months, as the case may be. We make it clear that we have only decided the point of levy of anti-dumping duty during the interregnum between the expiry of a provisional duty notification and the imposition of a final anti-dumping duty. If either the assessees or the revenue have succeeded on any other point, such point will remain untouched by this judgment. With these observations, all the said appeals are disposed of.

                                                                  REPORTABLE








                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO.3889 OF 2006


COMMISSIONER OF CUSTOMS,
BANGALORE                         …APPELLANT

                                   VERSUS
M/S. G.M. EXPORTS & OTHERS        ...RESPONDENTS


                                    WITH

                        CIVIL APPEAL NO.7814 OF 2012


                        CIVIL APPEAL NO. 7894 OF 2015
               [ARISING OUT OF SLP (CIVIL) NO. 13028 OF 2012]


                        CIVIL APPEAL NO. 7895 OF 2015
               [ARISING OUT OF SLP (CIVIL) NO. 27811 OF 2012]


                        CIVIL APPEAL NO.5119 OF 2012


                        CIVIL APPEAL NO.3082 OF 2011


                        CIVIL APPEAL NO.3086 OF 2011




                        J U D G M E N T

R.F. Nariman, J.



Leave granted in S.L.P. (Civil) No. 13028 of 2012  and  S.L.P.  (Civil)  No.
27811 of 2012.

2.    Seven appeals are before us; some of them are  from  the  Bombay  High
Court judgment dated 15.12.2011  and the Kerala High  Court  judgment  dated
15.07.2009.  Others are appeals against  a  Karnataka  Tribunal  (Bangalore)
judgment and a Bombay Tribunal  judgment,  which  follows  the  Bombay  High
Court judgment referred to above.  Since all these appeals  raise  a  common
question of law of some complexity relating to anti-dumping duty,  the  said
appeals have been bunched together and are being disposed of  together.   It
may also be stated that the preponderant view, that is the view of both  the
Bombay and Kerala High Courts and the Bombay Tribunal, is in favour  of  the
construction suggested by revenue.  Only the Karnataka Tribunal  (Bangalore)
has decided in favour of the assessee.

3.    The question of law which arises in the  instant  appeals  is  whether
anti-dumping duty imposed with respect to imports  made  during  the  period
between the expiry of the provisional anti-dumping duty and  the  imposition
of the final anti-dumping duty is legal and valid.

4.    It is necessary in this case to begin  at  the  very  beginning.   The
General Agreement on Tariffs and Trade (GATT) in Article VI first laid  down
how, conceptually, anti-dumping duties were  to  be  imposed.  The  relevant
part of Article VI reads as under:-

“Article VI



Anti-dumping and Countervailing Duties



1. The contracting parties recognize that dumping, by which products of  one
country are introduced into the commerce of another  country  at  less  than
the normal value of the products,  is  to  be  condemned  if  it  causes  or
threatens material injury to an established industry in the territory  of  a
contracting party or materially retards  the  establishment  of  a  domestic
industry. For the purposes of this Article, a product is  to  be  considered
as being introduced into the commerce of an importing country at  less  than
its normal value, if the price of the product exported from one  country  to
another



(a) is less than the comparable price, in the ordinary course of trade,  for
the like product when destined for consumption  in  the  exporting  country,
or,



(b) in the absence of such domestic price, is less than either



(i) the highest comparable price for the like  product  for  export  to  any
third country in the ordinary course of trade, or



(ii) the cost of production of the product in the country of origin  plus  a
reasonable addition for selling cost and profit.



Due allowance shall be made in each case for differences in  conditions  and
terms of sale, for  differences  in  taxation,  and  for  other  differences
affecting price comparability.



2. In order to offset or prevent dumping, a contracting party  may  levy  on
any dumped product an anti-dumping duty  not  greater  in  amount  than  the
margin of dumping in respect of such  product.  For  the  purposes  of  this
Article, the margin  of  dumping  is  the  price  difference  determined  in
accordance with the provisions of paragraph 1.”



5.    In pursuance of the said Article VI, various  member  nations  entered
into a World Trade Organisation Agreement to implement Article VI, in  1994.
 The said agreement is  referred  to  as  “Agreement  on  Implementation  of
Article VI of the General Agreement on Tariffs and Trade, 1994”, and in  its
material aspects, which are  important  in  order  to  decide  the  question
raised in these appeals, states as follows:-

“Members hereby agree as follows:



                                   PART I



                                  Article 1



                                 Principles



An anti-dumping measure  shall  be  applied  only  under  the  circumstances
provided for in Article VI of  GATT  1994  and  pursuant  to  investigations
initiated  and  conducted  in  accordance  with  the  provisions   of   this
Agreement. The following provisions govern the application of Article VI  of
GATT 1994 in so far as action is taken  under  anti-dumping  legislation  or
regulations.”



                                 “Article 10



                                Retroactivity



10.1  Provisional measures and anti-dumping duties shall only be applied  to
products which enter for consumption after the time when the decision  taken
under paragraph 1 of Article 7 and paragraph 1 of Article  9,  respectively,
enters into force, subject to the exceptions set out in this Article.



10.2  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, anti-dumping duties may  be
levied retroactively for the period for which provisional measures, if  any,
have been applied.



10.3  If the definitive anti-dumping 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. If the definitive  duty  is
lower than the provisional duty paid or payable,  or  the  amount  estimated
for the purpose of the security, the difference shall be reimbursed  or  the
duty recalculated, as the case may be.”

“10.6 A definitive anti-dumping duty may be levied on  products  which  were
entered for consumption  not  more  than  90  days  prior  to  the  date  of
application of provisional measures, when the authorities determine for  the
dumped product in question that:



(I) there is a history of dumping which caused injury or that  the  importer
was, or should have been, aware that  the  exporter  practises  dumping  and
that such dumping would  cause injury, and



(ii)  the injury is caused by massive dumped  imports  of  a  product  in  a
relatively short time which in light of the timing and  the  volume  of  the
dumped imports  and  other  circumstances  (such  as  a  rapid  build-up  of
inventories of the imported product) is likely to  seriously  undermine  the
remedial effect of the definitive anti-dumping duty to be applied,  provided
that the importers concerned have been given an opportunity to comment.



10.7  The authorities may, after  initiating  an  investigation,  take  such
measures as  the  withholding  of  appraisement  or  assessment  as  may  be
necessary to collect anti-dumping duties retroactively, as provided  for  in
paragraph 6, once they have sufficient  evidence  that  the  conditions  set
forth in that paragraph are satisfied.



10.8  No duties shall be levied retroactively pursuant  to  paragraph  6  on
products entered for consumption prior to the  date  of  initiation  of  the
investigation.”

“18.4  Each  Member  shall  take  all  necessary  steps,  of  a  general  or
particular character, to ensure, not later  than  the  date  of  entry  into
force of the WTO Agreement for it, the conformity of its  laws,  regulations
and administrative procedures with the provisions of this Agreement as  they
may apply for the Member in question.”



6.    In pursuance of the said Article VI and the said  Agreement,  both  of
which India is a signatory to, amendments were made in  the  Customs  Tariff
Act in the year 1995. The amendment with which we are directly concerned  is
the introduction of a new Section 9A to the said Act which reads as under:-

“Section 9A. Anti - dumping duty on dumped articles

(1) Where any article is exported  by  an  exporter  or  producer  from  any
country  or  territory  (hereafter  in  this  section  referred  to  as  the
exporting country or territory) to India at  less  than  its  normal  value,
then,  upon  the  importation  of  such  article  into  India,  the  Central
Government may, by notification in the Official  Gazette,  impose  an  anti-
dumping duty not exceeding  the  margin  of  dumping  in  relation  to  such
article.



Explanation.-For the purposes of this section,-



(a) “margin of dumping” in relation to  an  article,  means  the  difference
between its export price and its normal value;



(b) “export price”, in relation to  an  article,  means  the  price  of  the
article exported from the exporting country or territory and in cases  where
there is no export price or where the export price is unreliable because  of
association or a compensatory  arrangement  between  the  exporter  and  the
importer or a third party, the export price may be constructed on the  basis
of the price  at  which  the  imported  articles  are  first  resold  to  an
independent buyer or if the article is not resold to an  independent  buyer,
or not resold in the condition as imported, on such reasonable basis as  may
be determined in accordance with the rules made under sub-section (6);



(c) “normal value”, in relation to an article, means-



(i) the comparable price, in the ordinary course  of  trade,  for  the  like
article when destined for consumption in the exporting country or  territory
as determined in accordance with the rules made under sub-section (6); or



(ii) when there are no sales of the like  article in the ordinary course  of
trade in the domestic market of the exporting country or territory, or  when
because of the particular market situation or low volume  of  the  sales  in
the domestic market of the exporting country or  territory,  such  sales  do
not permit a proper comparison, the normal value shall be either-



(a) comparable representative price of the like article when  exported  from
the exporting country or  territory  to  an  appropriate  third  country  as
determined in accordance with the rules made under sub-section (6); or



(b) the cost of production of the said article  in  the  country  of  origin
along with reasonable  addition  for  administrative,  selling  and  general
costs, and for profits, as determined in  accordance  with  the  rules  made
under sub- section(6):



Provided that in the case of import of the  article  from  a  country  other
than  the  country  of  origin  and  where  the  article  has  been   merely
transhipped through the country of export or such article  is  not  produced
in the country of export or there is no comparable price in the  country  of
export, the normal value shall be determined with reference to its price  in
the country of origin.



(1A). Where the Central Government, on  such  inquiry  as  it  may  consider
necessary, is  of  the  opinion  that  circumvention  of  anti-dumping  duty
imposed under sub-section (1)  has  taken  place,  either  by  altering  the
description or name or composition of the  article  subject  to  such  anti-
dumping duty or by import of such article in an  unassembled  or  dissembled
form or by changing the country of its origin or  export  or  in  any  other
manner, whereby the anti-dumping duty so imposed  is  rendered  ineffective,
it  may  extend  the  anti-dumping  duty  to  such  article  or  an  article
originating in or exported from such country, as the case may be.

(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 anti-dumping  duty  on  the
basis of a provisional estimate of such value and margin and if  such  anti-
dumping 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  anti-dumping  duty;
and



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



(2A) Notwithstanding anything contained in sub-section (1)  and  sub-section
(2), a notification issued under sub-section (1) or  any  anti-dumping  duty
imposed under sub-section (2), unless specifically made applicable  in  such
notification or such imposition, as the case may  be,  shall  not  apply  to
articles imported by a hundred per cent  export-oriented  undertaking  or  a
unit in a free trade zone or in a special economic zone.



Explanation. - For the purposes of this section,  the  expressions  "hundred
per cent  export-oriented  undertaking",  "free  trade  zone"  and  "special
economic zone" shall have the meanings assigned to them  in  Explanations  2
to sub-section (f) of section 3 of Central Excise Act, 1944.



(3) If the Central Government,  in  respect  of  the  dumped  article  under
inquiry, is of the opinion that -



(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  anti-  dumping  duty  liable  to  be
levied,

the Central Government may, by notification in the  Official  Gazette,  levy
anti-dumping  duty  retrospectively  from  a  date  prior  to  the  date  of
imposition of anti-dumping duty under sub-section (2) but not beyond  ninety
days  from  the  date  of   notification   under   that   sub-section,   and
notwithstanding any thing contained in any other law for the time  being  in
force, such duty shall be payable at such rate and from such date as may  be
specified in the notification.



(4) The  anti-dumping  duty  chargeable  under  this  section  shall  be  in
addition to any other duty imposed under this Act or  under  any  other  law
for the time being in force.



(5) The anti-dumping duty imposed under this section shall,  unless  revoked
earlier, cease to have effect on the expiry of five years from the  date  of
such imposition:



Provided that if the Central Government, in a  review,  is  of  the  opinion
that the cessation of such  duty  is  likely  to  lead  to  continuation  or
recurrence of dumping and injury, it may, from  time  to  time,  extend  the
period of such imposition for a  further  period  of  five  years  and  such
further period shall commence from the date of order of such extension.



Provided further that where a review initiated  before  the  expiry  of  the
aforesaid period of five years has not come  to  a  conclusion  before  such
expiry, the anti-dumping duty may continue to remain in  force  pending  the
outcome of such a review for a further period not exceeding one year.



(6) The margin of dumping as referred to in sub- section (1) or  sub-section
(2) shall, from time to time, be ascertained and determined by  the  Central
Government, after such inquiry as it may consider necessary and the  Central
Government may, by notification in the Official Gazette, make rules for  the
purposes of this section, and without prejudice to  the  generality  of  the
foregoing such rules may provide for the manner  in  which  articles  liable
for any anti-dumping duty under this section may be identified and  for  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 such anti-dumping duty.



(6A) The margin of dumping  in  relation  to  an  article,  exported  by  an
exporter or  producer,  under  inquiry  under  sub-  section  (6)  shall  be
determined on the basis of records concerning normal value and export  price
maintained, and information provided, by such exporter or producer:



Provided that where an exporter or producer fails to  provide  such  records
or information, the margin of dumping  for such exporter or  producer  shall
be determined on the basis of facts available.;



(7) Every notification issued under this section shall, as soon  as  may  be
after it is issued, be laid before each House of Parliament.



(8) The provisions of the Customs Act, 1962, (52 of 1962) and the rules  and
regulations made thereunder,  including  those  relating  to  the  date  for
determination of rate of duty, assessment, non-levy,  short  levy,  refunds,
interest, appeals, offences and penalties shall, as far as may be, apply  to
the duty chargeable under this section as they apply in relation  to  duties
leviable under that Act.”



7.    In exercise of powers conferred, inter alia, by Section 9A (6) of  the
Customs Tariff Act,  the  Customs  Tariff  (Identification,  Assessment  and
Collection of Anti-Dumping Duty on Dumped Articles and for Determination  of
Injury)  Rules,  1995  have  been  framed.   The  Rules  relevant   to   the
determination of the present controversy are set out hereunder:-

“2. Definitions.- In these rules, unless the context otherwise requires-

(e) “provisional duty” means an anti dumping duty imposed under  sub-section
(2) of section 9A of the Act;

5. Initiation of investigation. - (1) Except as provided  in  sub-rule  (4),
the designated authority shall initiate an investigation  to  determine  the
existence, degree and effect of any alleged dumping only upon receipt  of  a
written application by or on behalf of the domestic industry.

(2) An application under sub-rule (1)  shall  be  in  the  form  as  may  be
specified  by  the  designated  authority  and  the  application  shall   be
supported by evidence of -

(a) dumping

(b) injury, where applicable, and

(c) where applicable, a causal link between such dumped imports and  alleged
injury.

(3) The designated authority shall not initiate  an  investigation  pursuant
to an application made under sub-rule (1) unless –

(a) it determines, on the basis of an examination of the degree  of  support
for, or opposition to the application expressed  by  domestic  producers  of
the like product, that the application has been made by or on behalf of  the
domestic industry :

Provided that no investigation shall  be  initiated  if  domestic  producers
expressly supporting the application account for less than twenty  five  per
cent of the total production of the like article by the  domestic  industry,
and

(b) it examines the accuracy and adequacy of the evidence  provided  in  the
application  and  satisfies  itself  that  there  is   sufficient   evidence
regarding -

(i) dumping,

(ii) injury, where applicable; and

(iii) where applicable, a causal link between such dumped  imports  and  the
alleged injury, to justify the initiation of an investigation.

Explanation. - For the purpose of this rule the application shall be  deemed
to have been made by or on  behalf  of  the  domestic  industry,  if  it  is
supported by those domestic producers  whose  collective  output  constitute
more than fifty per cent  of  the  total  production  of  the  like  article
produced by that portion of the domestic industry expressing either  support
for or opposition, as the case may be, to the application.

(4) Notwithstanding  anything  contained  in  sub-rule  (1)  the  designated
authority may initiate an investigation suo motu if  it  is  satisfied  from
the information received from the Collector of Customs appointed  under  the
Customs Act, 1962 (52 of 1962) or from  any  other  source  that  sufficient
evidence exists as to the existence of  the  circumstances  referred  to  in
clause (b) of sub-rule (3).

(5) The designated authority shall notify the government  of  the  exporting
country before proceeding to initiate an investigation.

11. Determination of injury. - (1) In the case  of  imports  from  specified
countries, the designated authority shall  record  a  further  finding  that
import of such article into India causes or  threatens  material  injury  to
any established industry in India or materially  retards  the  establishment
of any industry in India.

(2)  The  designated  authority  shall  determine  the  injury  to  domestic
industry, threat of injury to domestic  industry,  material  retardation  to
establishment of domestic industry and a causal link between dumped  imports
and injury, taking into account all relevant facts, including the volume  of
dumped imports, their effect on  price  in  the  domestic  market  for  like
articles and the consequent effect of such imports on domestic producers  of
such articles and in accordance with the principles set out in  Annexure  II
to these rules.

(3) The designated authority may, in exceptional cases, give  a  finding  as
to the existence of injury even where a substantial portion of the  domestic
industry is not injured, if-

(i) there is a concentration of dumped imports into an isolated market,  and


(ii) the dumped articles are causing injury  to  the  producers  of  all  or
almost all of the production within such market.

12. Preliminary findings. -  (1)  The  designated  authority  shall  proceed
expeditiously  with  the  conduct  of  the  investigation  and   shall,   in
appropriate cases, record a  preliminary  finding  regarding  export  price,
normal value  and  margin  of  dumping,  and  in  respect  of  imports  from
specified countries, it  shall  also  record  a  further  finding  regarding
injury to the domestic industry and such finding shall contain  sufficiently
detailed information for  the  preliminary  determinations  on  dumping  and
injury and shall refer to the matters of fact and  law  which  have  led  to
arguments being accepted or rejected. It will also contain:-

(i) the  names  of  the  suppliers,  or  when  this  is  impracticable,  the
supplying countries involved;

(ii) a description of the article which is sufficient for customs  purposes;


(iii) the margins of dumping established  and  a  full  explanation  of  the
reasons for the methodology used in the establishment and comparison of  the
export price and the normal value;

(iv) considerations relevant to the injury determination; and

(v) the main reasons leading to the determination.

(2). The designated authority shall issue a public notice recording its
preliminary findings.

13. Levy of provisional duty - 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:

Provided that no such duty shall be imposed before the expiry of sixty  days
from the date of the  public  notice  issued  by  the  designated  authority
regarding its decision to initiate investigations:

Provided further that such duty shall remain in force only for a period  not
exceeding six months which may upon request of the exporters representing  a
significant percentage of the trade involved  be  extended  by  the  Central
Government to nine months.

17. Final findings. - (1) The designated authority shall,  within  one  year
from the date of initiation of an investigation, determine as to whether  or
not the article under investigation is being dumped in India and  submit  to
the Central Government its final finding –

(a) as to, -

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

(ii) whether import of the said article into 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;

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

Provided that the Central Government  may,  in  its  discretion  in  special
circumstances extend further  the  aforesaid  period  of  one  year  by  six
months:

Provided further that in those cases  where  the  designated  authority  has
suspended the investigation on the acceptance  of  a  price  undertaking  as
provided in rule 15 and subsequently resumes the same on  violation  of  the
terms of the said undertaking, the period for which investigation  was  kept
under suspension shall not be  taken  into  account  while  calculating  the
period of said one year,

(b) recommending the amount of duty  which,  if  levied,  would  remove  the
injury where applicable, to the domestic industry.

(2) The final finding, if affirmative, shall contain all information on  the
matter of facts and law and reasons which have led  to  the  conclusion  and
shall also contain information regarding-

(i) the  names  of  the  suppliers,  or  when  this  is  impracticable,  the
supplying countries involved;

(ii) a description of the product which is sufficient for customs  purposes;


(iii) the margins of dumping established  and  a  full  explanation  of  the
reasons for the methodology used in the establishment and comparison of  the
export price and the normal value;

(iv) considerations relevant to the injury determination; and

(v) the main reasons leading to the determination.

(3) The  designated  authority  shall  determine  an  individual  margin  of
dumping for each known exporter or producer concerned of the  article  under
investigation: Provided  that  in  cases  where  the  number  of  exporters,
producers, importers or types of articles involved are so large as  to  make
such determination impracticable, it may limit  its  findings  either  to  a
reasonable number of interested parties or articles by  using  statistically
valid samples based on information available at the time  of  selection,  or
to the largest percentage of the volume of the exports from the  country  in
question which  can  reasonably  be  investigated,  and  any  selection,  of
exporters, producers, or types of articles, made under  this  proviso  shall
preferably be made  in  consultation  with  and  with  the  consent  of  the
exporters, producers or importers concerned :

Provided  further  that  the  designated  authority  shall,   determine   an
individual margin of dumping  for  any  exporter  or  producer,  though  not
selected initially, who submit necessary information in time,  except  where
the  number  of  exporters  or  producers  are  so  large  that   individual
examination would be unduly burdensome and prevent the timely completion  of
the investigation.

(4) The designated authority shall  issue  a  public  notice  recording  its
final findings.

18. Levy of duty. - (1) The Central Government may, within three  months  of
the date of publication of final findings by the designated authority  under
rule 17, impose by notification in the Official  Gazette,  upon  importation
into India of the article covered by the final  finding,  anti-dumping  duty
not exceeding the margin of dumping as determined under rule 17.

(2) In cases where the designated authority has selected percentage  of  the
volume of the exports from a particular country,  as  referred  to  sub-rule
(3) of rule 17, any anti-dumping duty applied to imports from  exporters  or
producers not included in the examination shall not exceed –

(i) the weighted average margin of dumping established with respect  to  the
selected exporters or producers or,

(ii) where the liability for payment of anti-dumping  duties  is  calculated
on the basis of a prospective  normal  value/  the  difference  between  the
weighted average normal value of the selected  exporters  or  producers  and
the export prices of exporters or producers not individually examined:

Provided that the Central Government shall  disregard  for  the  purpose  of
this sub-rule any zero margin, margins  which  are  less  than  2  per  cent
expressed as the percentage of export price and margins established  in  the
circumstances detailed in sub-rule (8) of rule  6.  The  Central  Government
shall apply individual duties to imports from any exporter or  producer  not
included in the examination  who  has  provided  the  necessary  information
during the course of the investigation as referred to in the second  proviso
to sub-rule (3) of rule 17.

(3) Notwithstanding anything contained in sub-rule  (1),  where  a  domestic
industry has been interpreted according to the proviso to sub-clause (b)  of
rule 2, a duty shall be levied only after  the  exporters  have  been  given
opportunity to cease exporting at dumped prices to  the  area  concerned  or
otherwise give an undertaking pursuant to rule 15 and such  undertaking  has
not been promptly given and in such cases duty shall not be levied  only  on
the articles of specific producers which supply the area in question.

(4) If the final finding of the designated authority  is  negative  that  is
contrary to the evidence on whose basis  the  investigation  was  initiated,
the Central Government shall, within forty-five days of the  publication  of
final findings by the designated  authority  under  rule  17,  withdraw  the
provisional duty imposed, if any.

20. Commencement of duty. - (1) The anti-dumping 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 anti-dumping 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.

21. Refund of duty. - (1) If the anti-dumping 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  anti-dumping  duty  fixed  after  the   conclusion   of   the
investigation is  lower  than  the  provisional  duty  already  imposed  and
collected, the differential 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.”



8.    We will take the facts contained in the judgment of  the  Bombay  High
Court dated 15.12.2011, in the case of Harsh International  v.  Commissioner
of Customs, Civil Appeal No. 5119 of 2012, which explain  how  the  question
which has to be determined by this judgment arose.  On 6th  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 3rd December,  2001.
 Following the preliminary findings, the  Union  Government  imposed,  by  a
notification 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 Designated Authority rendered its final findings  on
4th February, 2003 and while concluding that material  injury  had  resulted
to the domestic industry recommended the  imposition  of  antidumping  duty.
The Union 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.  The  question  before  the
Court is as to whether the Central Government was  within  its  jurisdiction
in imposing a final antidumping duty between 2nd  November,  2002  and  30th
April, 2003.  This, according to the assessees, is the  “gap  period”   when
the provisional duty had come to an end by efflux  of  six  months  until  a
final notification was issued by the Union Government on 1st May, 2003.

9.    The stage is now set for setting out  the  arguments  of  the  learned
counsel both for the revenue and for the assessees.

10.   Ms. Pinky Anand, learned Additional  Solicitor  General  appearing  on
behalf of the revenue argued that both literally  and  purposively  Rule  20
leads to one conclusion and one conclusion alone – that  final  anti-dumping
duty would take effect from the date of imposition of the provisional  duty,
which would necessarily include the “gap” period  i.e.  the  period  between
the lapse of the provisional duty and the  imposition  of  the  final  duty.
According to learned  counsel,  any  other  construction  would  defeat  the
object  and  purpose  of  imposing  a  final  anti-dumping  duty  after  the
Designated Authority has found, post investigation, that  there  is  dumping
of goods and material injury to the domestic industry as  a  result.   Thus,
despite dumping and material injury  being  present,  no  anti-dumping  duty
would  be  leviable  in  the  interregnum  period  which  would  be   wholly
subversive of the  object  sought  to  be  achieved;  that  is,  saving  the
domestic industry from unfair trade practices  of  foreign  exporters.   She
also argued that a literal reading of Rule 20 is called for which  makes  it
clear that the final anti-dumping duty is to be  levied  from  the  date  of
imposition of provisional duty which would  necessarily  include  the  “gap”
period.  Further, since the final duty is made to relate back  to  the  date
of the provisional duty imposition, a fiction  is  employed  which  must  be
allowed to have full play and the mind should  not  boggle  in  giving  such
fiction its logical consequence.  According to learned counsel, “levied”  in
Rule 20(2)(a) obviously does not include “collection” as has  been  held  in
several Supreme Court judgments and  therefore,  “levy”  would  not  include
“collection” for which reason Rule 20 has to be  read  on  its  own  without
reference to the consequence that is found in Rule 21.  She  further  argued
that it is true that laws  that  are  made  in  pursuance  of  international
treaties ought to be construed in accordance with such treaties,  but  where
the Indian law deviates from the treaty agreement, Indian law  prevails.  It
is clear that unlike Article 10 of the WTO  Agreement,  Rule  20(2)(a)  only
speaks of anti-dumping duty being levied from  the  date  of  imposition  of
provisional duty and does not speak of the period for which the  provisional
duty applied, thus making it clear that anti-dumping duty can be levied  and
collected for the “gap” or interregnum period.

11.   On the other hand, learned counsel  for  the  various  assessees  have
argued that Rule 20(2)(a) should be interpreted in  the  light  of  the  WTO
Agreement, and so interpreted would necessarily be  interpreted  as  meaning
only the period for which the provisional duty is levied,  and  not  beyond.
It has been argued with  some  vehemence  that  this  also  follows  from  a
reading of clause 18.4 of  the  Agreement  and  a  reading  of  the  Central
Government’s own  website  which  was  referred  to  us  in  the  course  of
arguments stating that the anti-dumping rules are  in  consonance  with  the
WTO Agreements on anti-dumping.  Further, it has been argued that  the  word
“levied” under Rule 20(2)(a), in the context includes even “collection”  and
this being so, whatever has not been “collected” in the  interregnum  period
obviously cannot be collected retrospectively.  It was  also  argued  before
us that Section 9A(3) alone empowers the rule making authority to  impose  a
retrospective anti-dumping duty within  the  strict  confines  of  the  said
rule. Section 9A(2) and (6), in  contrast,  do  not  allow  any  imposition,
retrospectively, of anti-dumping duty, and therefore if Rule 20 were  to  be
read in the manner suggested by revenue, it would be ultra vires the  parent
statute.  It was further argued that the levy of anti-dumping  duty  is  not
automatic and is only levied by the Central Government taking  into  account
a series of complex economic factors.  This  being  so,  the  continuity  of
such levy can only be for the period indicated in the provisional duty  levy
notification  and  not  beyond.   It  was  also  argued  that,  on  a   true
construction of Rule 20(2)(a), the said rule merely validates a  provisional
duty already levied, and nothing beyond.  It was further  argued  that  Rule
20(2)(a) has to be harmoniously construed with both  Rules  13  and  21,  or
else, the suggested construction by revenue of Rule  20(2)(a)  would  render
Rules 13 and 21 nugatory.  In this context, it was further  argued  that  no
duty can be levied in the interregnum period as the  Government  would  then
be doing indirectly what it is prohibited  from  doing  directly  –  namely,
extending the period of six months of the levy of  provisional  duty  beyond
six months and until the notification imposing the final anti-dumping  duty.


12.   Two earlier judgments of this Court have stated  as  to  what  exactly
was the object sought to be achieved by the introduction of  Section  9A  of
the Customs Tariff Act read with the Anti-Dumping Rules. But before we  come
to these judgments, it is important to  refer  to  our  basic  law,  and  in
particular Article 51(c) of  the  Constitution  of  India,  which  reads  as
follows:

“51.  Promotion  of  international  peace  and  security.—The  State   shall
endeavour to —

(c) foster respect for international  law  and  treaty  obligations  in  the
dealings of organised peoples with one another; and”



13.   In S&S Enterprise v. Designated Authority and  others,  (2005)  3  SCC
337, this Court said:

“In our opinion, the interpretation of Rule 14(d)  by  Respondent  No.1  and
the Tribunal is incorrect and contrary to its language.  The  imposition  of
dumping duty is under Section 9A of the Customs Tariff  Act,  1975  and  the
Rules and is the outcome of  the  General  Agreement  on  Tariff  and  Trade
(GATT) to which India is a party. The purpose behind the imposition  of  the
duty is to curb unfair  trade  practices  resorted  to  by  exporters  of  a
particular country of flooding the domestic  markets  with  goods  at  rates
which are lower than the rate at which the exporters normally sell the  same
or like goods in their own countries so as to cause or be  likely  to  cause
injury to the domestic  market.  The  levy  of  dumping  duty  is  a  method
recognized by GATT which seeks to remedy the injury and  at  the  same  time
balances the right of exporters from other countries to sell their  products
within the country with the interest  of  the  domestic  markets.  Thus  the
factors to constitute 'dumping', are (i)  an  import  at  prices  which  are
lower than the normal value of the goods in the exporting country; (ii)  the
exports must be sufficient to cause injury to the  domestic  industry.”  [at
para 4]



14.   To similar effect is the  judgment  of  Reliance  Industries  Ltd.  v.
Designated Authority and others, (2006) 10 SCC 368:

“The result  was  that  an  industrial  base  was  created  in  India  after
independence and this has definitely resulted in some progress. The  purpose
of Section 9-A can, therefore, easily be seen.  The  purpose  was  that  our
industries  which  had  been  built  up  after   independence   with   great
difficulties must not be allowed to be destroyed by  unfair  competition  of
some  foreign  companies.  Dumping  is  a  well-known   method   of   unfair
competition which is adopted by the  foreign  companies.  This  is  done  by
selling goods at a very low  price  for  some  time  so  that  the  domestic
industries  cannot  compete  and  are  thereby  destroyed,  and  after  such
destruction has taken place, prices are again raised.

The purpose of Section 9-A is, therefore, to maintain a level playing  field
and prevent dumping, while allowing for healthy competition. The purpose  is
not protectionism  in  the  classical  sense  (as  proposed  by  the  German
economist Friedrich List in his famous book 'National  System  of  Political
Economy' published in 1841) but to prevent unfair trade practices. The  1995
Amendment to Section 9A was apparently made in pursuance to  Article  VI  of
the General Agreement on Tariffs and Trade 1994 (GATT 1994) which  permitted
anti-dumping measures as an instrument of fair competition.

The concept  of  anti-dumping  is  founded  on  the  basis  that  a  foreign
manufacturer sells below the normal value in order to  destabilise  domestic
manufacturers.  Dumping,  in  the  short  term,  may  give  some  transitory
benefits to the local customers on account of lower  priced  goods,  but  in
the long run destroys the local industries and may have a drastic effect  on
prices in the long run.” [at paras 10, 11 & 12]



15.   A number of judgments, both English and Indian, have laid down  as  to
what is the correct approach to  the  construction  of  a  statute  made  in
response to an international treaty obligation by a  member  nation.   Thus,
in The Jade The Eschersheim Owners of the motor vessel Erkowit v. Owners  of
the ship Jade, [1976] 1 All ER 920, the House of Lords stated:

“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 Salomon v. Customs and Excise Commissioners  [1966]  3  All  ER
871 and  Post  Office  v.  Estuary  Radio  Ltd.  [1967]  3  All  ER  633  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.” [at page 924]



16.   Similarly in Quazi v. Quazi, [1979] 3 All ER 897, the House  of  Lords
put it thus:

“In the instant case, however, this does not help the  respondent  wife;  it
helps the appellant husband. The purpose for which the Recognition  Act  was
passed is declared by the preamble to be with a view to the ratification  by
the United Kingdom of the Recognition Convention  and  for  other  purposes.
Where Parliament passes an Act amending  the  domestic  law  of  the  United
Kingdom in order to enable this country to ratify  an  international  treaty
and thereby assume towards other states that are parties to  the  treaty  an
obligation in international law to observe its terms,  it  is  a  legitimate
aid to the construction of any provisions of the Act that are  ambiguous  or
vague to have recourse to the terms of the treaty in order to see  what  was
the obligation in international  law  that  Parliament  intended  that  this
country should be enabled to assume. The ambiguity or  obscurity  is  to  be
resolved in favour of that meaning that is consistent  with  the  provisions
of the treaty: see Salomon v. Customs and Excise Commissioners [1966] 3  All
ER 871 and Post Office v. Estuary Radio Ltd. [1967] 3 All ER 633.” [at  page
903]



17.   In Garland v. British Rail Engineering Ltd., [1982] 2 All ER 402,  the
same Rule was set out with an addition – that not only should municipal  law
carry out treaty obligations, but it should also not  be  inconsistent  with
the terms of a treaty. This was put by the House of Lords in  the  following
words:-

“My Lords, even if the obligation to observe the provisions of  article  119
were  an  obligation  assumed  by  the  United  Kingdom  under  an  ordinary
international treaty or convention and there were no question of the  treaty
obligation being directly applicable as part of the law  to  be  applied  by
the courts in this country without need for any further enactment, it  is  a
principle  of  construction  of  United  Kingdom  statutes,  now  too   well
established to call for citation of authority, that the words of  a  statute
passed after the Treaty has been signed and dealing with the subject  matter
of the international obligation of the United Kingdom, are to be  construed,
if they are reasonably capable of bearing such a  meaning,  as  intended  to
carry out the obligation, and not to be  inconsistent  with  it.”  [at  page
415]



18.   Another interesting aspect was brought out by the House  of  Lords  in
The Hollandia’s case [1982] 3 All  ER  1141,  and  that  is  that  a  treaty
provision embodied in a statute needs to be construed uniformly in  all  the
member nations  who  are  its  signatories,  and  should  therefore  not  be
controlled by domestic precedents but should be construed on its  own  terms
on broad principles of general application in  a  purposive  and  not  in  a
narrow literal manner.  This is stated in the following words:

“My Lords, the provisions in section 1 of the Act that I have quoted  appear
to me to be free from any ambiguity perceptible to even the  most  ingenious
of legal minds. The Hague-Visby Rules, or rather all those of them that  are
included in the Schedule, are to  have  the  force  of  law  in  the  United
Kingdom: they are to be treated as if they were  part  of  directly  enacted
statute law. But since they form part of an international  convention  which
must come under the consideration of foreign as well as English  courts,  it
is, as Lord Macmillan said of the Hague Rules themselves in Stag  Line  Ltd.
v. Foscolo, Mango and Co. Ltd.[1932] A.C. 328 at 350, [1931] All ER Rep  666
at 677 -

“desirable in the interests of uniformity that their  interpretation  should
not be rigidly controlled by domestic precedents  of  antecedent  date,  but
rather that  the  language  of  the  rules  should  be  construed  on  broad
principles of general acceptation.”

They  should  be  given  a  purposive  rather  than  a  narrow  literalistic
construction,  particularly  wherever  the  adoption   of   a   literalistic
construction  would  enable  the  stated  purpose   of   the   international
convention, viz., the  unification  of  domestic  laws  of  the  contracting
states relating to bills of lading, to be evaded by the  use  of  colourable
devices that, not  being  expressly  referred  to  in  the  Rules,  are  not
specifically prohibited.” [at page No.1145]



19.   In Sidhu and others v. British Airways plc Abnett (known as Sykes)  v.
British Airways plc, [1997] 1 All ER 193, the same  thought  was  echoed  in
the following words:-

“I believe that the answer to the question raised in the present case is  to
be found in the objects and structure of the convention.  The language  used
and the subject matter with which it deals demonstrate that what was  sought
to be achieved was a uniform international code, which could be  applied  by
the courts of all the High Contracting  Parties  without  reference  to  the
rules of their own domestic law.” [at page No.212]



20.   To similar effect are some of the judgments of our court.  In  Vellore
Citizens’ Welfare Forum v. Union of India and  others,  (1996)  5  SCC  647,
when dealing with the Environment Protection Act, this Court stated:

“Even otherwise once these principles are accepted as part of the  Customary
International Law there would be no difficulty in accepting them as part  of
the domestic law. It is almost an  accepted  proposition  of  law  that  the
rules  of  Customary  International  Law  which  are  not  contrary  to  the
municipal law shall be deemed to have been incorporated in the domestic  law
and shall be followed by the Courts of Law.  To  support  we  may  refer  to
Justice  H.R.  Khanna's  opinion  in  Addl.   Distt.   Magistrate   Jabalpur
v. Shivakant Shukla [(1976) 2 SCC 521 : AIR  1976  SC  1207],  Jolly  George
Varghese v. Bank of Cochin [(1980)  2  SCC  360  :  AIR  1980  SC  470]  and
Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, [(1984) 2  SCC  534
: 1984 SCC (Cri) 313 : AIR 1984 SC 667].” [at para 15]



21.   Similarly in Daya Singh Lahoria v. Union of India and  others,  (2001)
4 SCC 516, when construing Section 21 of the  Extradition  Act,  1962,  this
Court referred to the Extradition Treaty and construed  Section  21  in  the
light of the international position then obtained.  This Court said:

“…. The Extradition Treaty contains several articles of which Article  7  is
rather significant for our purpose,  which  may  be  quoted  hereinbelow  in
extenso:

"7. A person surrendered can in no case be kept in custody or be brought  to
trial in  the  territories  of  the  High  Contracting  Party  to  whom  the
surrender has been made for any other crime or offence,  or  on  account  of
any other matters, than those for which the  extradition  shall  have  taken
place, until he has been restored, or has had an opportunity  of  returning,
to the territories of the  High  Contracting  Party  by  whom  he  has  been
surrendered.

This stipulation does not apply to crimes or offences  committed  after  the
extradition."

The aforesaid Article unequivocally  indicates  that  the  person  concerned
cannot be tried for any other crime or offence  than  those  for  which  the
extradition shall have taken place until he has been  restored  or  has  had
the opportunity of returning to the  territories  of  the  High  Contracting
Party by whom he has been surrendered. The provisions of Section 21  of  the
Extradition Act  are  in  consonance  with  the  aforesaid  Article  of  the
Extradition Treaty….” [at para 3]



22.   In yet another judgment of this Court, i.e.  S&S  Enterprise,  already
referred to, this Court construed Rule 14(d) of the very anti-dumping  rules
with which we  are  concerned,  in  the  light  of  the  very  agreement  on
implementation of Article VI of GATT.  This Court was asked to  compute  the
volume of exports on the basis of price and not on the  basis  of  quantity.
In repelling this contention, this Court referred  to  Article  5.8  of  the
Agreement on implementation of Article VI and held:-


“However a negligible quantity of imports would not be sufficient  to  cause
such injury. Article 5.8 of the Agreement on Implementation  of  Article  VI
of the GATT, 1994 makes this clear:


"An application under paragraph 1 shall be  rejected  and  an  investigation
shall be terminated promptly  as  soon  as  the  authorities  concerned  are
satisfied that there is no sufficient  evidence  of  either  dumping  or  of
injury to justify  proceeding  with  the  case.  There  shall  be  immediate
termination in cases where the authorities  determine  that  the  margin  of
dumping is de minimis, or that the  volume  of  dumped  imports,  actual  or
potential, or the injury, is negligible. The  margin  of  dumping  shall  be
considered to be de minimis if this margin is less than 2%, expressed  as  a
percentage of the export price. The volume of dumped imports shall  normally
be regarded as negligible if the volume of dumped imports from a  particular
country is found to account for less than 3% of imports of the like  product
in the importing member, unless countries  which  individually  account  for
less than 3% of the imports of the like  product  in  the  importing  member
collectively account for more than 7% of imports of the like product in  the
importing member." [para 5]


“Therefore, when Rule 14(d) says that the investigation must  be  terminated
if the 'volume' of the dumped imports is less than 3% of the imports of  the
like product, it must mean that the quantity of dumped imports must  account
for less than 3% of the total imports. To hold otherwise would mean that  if
the price is lower than 3%,  irrespective  of  the  quantity  imported,  the
investigation would be dropped and it would, as submitted by the  appellant,
lead to the absurd situation that a small number of expensive imports  would
invite anti-dumping investigation but cheap imports  flooding  the  domestic
markets would not. In fact such a situation  is  exactly  what  the  dumping
rules have been framed to prevent.” [para 10]

23.   A conspectus of the aforesaid authorities would lead to the  following
conclusions:

(1)   Article 51(c) of the Constitution of India is  a  Directive  Principle
of State Policy which states  that  the  State  shall  endeavour  to  foster
respect for international law and treaty obligations.  As  a  result,  rules
of international law which are not contrary to domestic law are followed  by
the courts in this country.  This is  a  situation  in  which  there  is  an
international treaty to which India is not a signatory or general  rules  of
international law are made applicable.  It is  in  this  situation  that  if
there happens to be a conflict between domestic law and  international  law,
domestic law will prevail.

(2)   In a situation where India is a signatory nation to  an  international
treaty, and a statute is passed  pursuant  to  the  said  treaty,  it  is  a
legitimate aid to the construction of the provisions of  such  statute  that
are vague or ambiguous to have recourse  to  the  terms  of  the  treaty  to
resolve such ambiguity in favour of a meaning that is  consistent  with  the
provisions of the treaty.

(3)   In a situation where India is a signatory nation to  an  international
treaty, and a statute is made in furtherance of  such  treaty,  a  purposive
rather than a narrow literal construction  of  such  statute  is  preferred.
The  interpretation  of  such  a  statute  should  be  construed  on   broad
principles of general acceptance rather than  earlier  domestic  precedents,
being intended to carry out treaty obligations, and not to  be  inconsistent
with them.

(4)    In  a  situation  in  which  India  is  a  signatory  nation  to   an
international treaty, and a statute is made to enforce a treaty  obligation,
and if there be any difference between the language of such  statute  and  a
corresponding provision of the treaty,  the  statutory  language  should  be
construed in the same sense as that of the treaty.  This is for  the  reason
that in such cases what is  sought  to  be  achieved  by  the  international
treaty is a uniform international code of law which is to be applied by  the
courts of all the signatory nations in a  manner  that  leads  to  the  same
result in all the signatory nations.

It is in the light of these principles that we must now examine the  statute
in question.

Construction of Section 9A.

24.   Section 9A(1) refers to an  anti-dumping  duty.   Such  duty  is  only
imposed when an article is exported from a country outside  India  to  India
at less than its normal value.  Such duty can, in the  Central  Government’s
discretion, be imposed at  a  rate  that  does  not  exceed  the  margin  of
dumping, which only means the difference between the export  price  and  the
normal value of such article in international trade.  It is clear that  sub-
section (1) refers to a “final” or “definitive” duty, and  has  to  be  read
with sub-section (3) thereof, which authorises the levy of  the  “final”  or
“definitive”  anti-dumping  duty  retrospectively   in   the   circumstances
mentioned in sub-section (3). The scheme therefore of Section 9A(1) and  (3)
is that an anti-dumping duty is normally  to  be  imposed  with  prospective
effect unless, inter alia, because of massive dumping of  an  article  in  a
relatively short time the remedial effect of the  anti-dumping  duty  to  be
levied would  be  seriously  undermined.  This  would  therefore  require  a
retrospective duty being levied, but not beyond a  period  of  90  days,  to
undo the effect of undermining the anti-dumping duty to be levied. Short  of
sub-section (3),  no  other  part  of  Section  9A  authorises  the  Central
Government to levy an anti-dumping duty with retrospective effect.

25.   Section 9A(2)  speaks  of  an  anti-dumping  duty  which  the  Central
Government levies on the basis of a provisional estimate, thus referring  to
a provisional anti-dumping duty.  The Section further goes on  to  say  that
after a final determination is  made  in  accordance  with  the  Rules,  the
Central Government may reduce such  provisional  anti-dumping  duty,  having
regard to the final determination made by  the  designated  authority  under
the Rules.  If and when this happens, what is  important  to  note  is  that
refund shall be made of so much of the  anti-dumping  duty  which  has  been
collected in excess of the final anti-dumping duty so  reduced.  Under  sub-
section (5), a maximum period of  five  years  is  allowable  on  the  anti-
dumping duty imposed.  This is extendable only for a further period of  five
years and not beyond.   Sub-section  (6)  in  turn  refers  to  the  Central
Government’s power to make rules, inter alia, to assess  and  collect  anti-
dumping duty.

26.   It is important to note that neither sub-section (2)  nor  sub-section
(6) authorises the Central Government,  either  expressly  or  by  necessary
implication,  to  make  rules  and/or  to  levy   anti-dumping   duty   with
retrospective effect.  This  is  in  contrast  with  sub-section  (3)  which
expressly  so  authorises  the  Central  Government  in  the   circumstances
mentioned in the sub-section.

Interpretation of the Anti-Dumping Rules

 27.  A reading of the Anti-Dumping Rules would show  that  they  have  been
framed keeping in view the WTO  Agreement  of  1994  strictly  in  mind.   A
designated authority is appointed under Rule 3 who,  under  Rule  4,  is  to
investigate the existence, degree, and effect  of  dumping  in  relation  to
import of any article and to submit its findings, provisional  or  final  as
the case may be, to the Central Government.  The designated authority is  to
initiate an investigation either suo motu  or  upon  receipt  of  a  written
application by or on behalf of the domestic industry into (i)  dumping  (ii)
material injury to the domestic  industry  and  (iii)  where  applicable,  a
causal link between such dumped imports and the material injury –  see  Rule
5.  Such investigation is to be initiated by issue of a public notice  under
rule 6.   Since  material  injury  to  an  established  domestic  injury  or
material retardation of  the  establishment  of  any  such  industry  is  an
important aspect in levying anti dumping duty, the designated  authority  is
to be guided, under Rule 11, by Annexure II of the  Rules,  paragraphs  (iv)
and (v) of which read as under:-

“(iv) The examination of the impact of the dumped imports  on  the  domestic
industry concerned, shall include an evaluation  of  all  relevant  economic
factors and  indices  having  a  bearing  on  the  state  of  the  industry,
including natural and potential decline in sales,  profits,  output,  market
share, productivity, return  on  investments  or  utilization  of  capacity;
factors affecting domestic prices; the magnitude of the margin  of  dumping;
actual  and  potential  negative  effects   on   cash   flow,   inventories,
employment, wages, growth, ability to raise capital investments.

(v) It must be  demonstrated  that  the  dumped  imports  are,  through  the
effects of dumping, as set forth in paragraphs (ii) and (iv) above,  causing
injury to the domestic industry. The demonstration of a causal  relationship
between the dumped imports and the injury to the domestic industry shall  be
based  on  an  examination  of  relevant  evidence  before  the   designated
authority. The designated authority shall also  examine  any  known  factors
other than the dumped imports which  at  the  same  time  are  injuring  the
domestic industry, and the injury caused by these other factors must not  be
attributed to the dumped imports. Factors which  may  be  relevant  in  this
respect include, inter alia, the volume and prices of imports  not  sold  at
dumping prices,  contraction  in  demand  or  changes  in  the  patterns  of
consumption, trade restrictive practices  of  and  competition  between  the
foreign and domestic producers, developments in technology  and  the  export
performance and the productivity of the domestic industry.”



28.   It will thus be seen that the  determination  of  material  injury  to
domestic industry depends on a series of complex economic factors which  are
to be segregated from other factors which may also cause injury to the  said
industry.

29.   Under Rule 12, the designated authority is to “proceed  expeditiously”
with the conduct of the investigation and shall in appropriate cases  record
his preliminary findings on all the aspects delineated above. No time  frame
is indicated except that utmost dispatch is the order of the day.

30.   Rule 13 is very important and when Rule 20 is read  harmoniously  with
both Rules 13 and 21, all the dark clouds which come in on  account  of  the
suggested construction of Rule 20 by revenue get dispelled by  the  sunlight
of harmonious construction of all the three Rules read together.

31.   Rule 13, in line with clause 7.4 of the  WTO  Agreement,  enables  the
Central Government to impose provisional  anti-dumping  duty  not  exceeding
the margin of dumping, with  two  provisos.  First,  no  such  duty  can  be
imposed before the expiry of 60 days from the date of public  notice  issued
by  the  designated   authority   regarding   its   decision   to   initiate
investigations. And second, such duty cannot remain in force  for  a  period
of more than six months, which is only extendable on  request  made  by  the
foreign exporters who  represent  a  significant  percentage  of  the  trade
involved, to a maximum period of 9 months. The important words used  in  the
second proviso are “shall”, “only”, and “not exceeding”, all of which  point
to the fact that the time period mentioned in the said proviso is  mandatory
and cannot be exceeded by even a single day.

32.   Under Rule 17, the designated authority is given  one  year  from  the
date of initiation of an investigation to come out with its final  findings.
This is extendable by the Central Government only in special  circumstances,
and only by a further period of 6 months, and no more (Clause  5.10  of  the
WTO Agreement).  Significantly,  the  designated  authority,  in  its  final
finding, may also provide for a retrospective  levy  of  duty,  the  reasons
therefor, and the date of commencement of such retrospective levy.  This  is
obviously referable to Section 9A(3), which reproduces clause  10.6  of  the
WTO Agreement.  The reasons must be the reasons mentioned in the  said  sub-
section, and, as mentioned in the said sub-section, such retrospective  levy
cannot commence beyond 90 days from the date of  the  notification  imposing
provisional duty.

33.   Under Rule 18, the Central  Government  may  in  its  discretion,  and
within a maximum period of three months from the date of publication of  the
final findings by the designated  authority,  impose  a  final  anti-dumping
duty.

34.   This brings us to Rule  20,  the  correct  construction  of  which  is
determinative of the question raised in these appeals.  The first  thing  to
notice about Rule 20 is, as its marginal note states, that it  is  concerned
only with the date of commencement of duty.  Once this  is  appreciated,  it
becomes clear that its focus is only on  when  anti-dumping  duties  are  to
commence. In sub-rule (1), it speaks of  anti-dumping  duties  levied  under
Rule  13  and  Rule  19,  and  states  that  they  shall  take  effect  only
prospectively, i.e. from the date of publication in  the  official  gazette.
It is clear that Rule 19 is a mistake made by the draftsman  of  the  Rules.
Rule  18  is  obviously  referred   to.   Thus,  under  sub-rule  (1),   the
provisional anti-dumping duty takes effect on  and  from  the  date  of  its
publication in the official gazette. Same is the case with the  final  anti-
dumping duty levied under Rule 18.

35.   Sub-rule (2) is in two parts.  Sub-clause (a) deals with the  date  of
commencement of an anti-dumping duty, having due  regard  to  a  provisional
duty that has been levied, whereas sub-clause (b)  specifically  deals  with
duty to be retrospectively  imposed,  that  is  a  retrospective  imposition
prior to the imposition of a  provisional  duty.   It  will  immediately  be
noticed that the subject matter of sub-clause (a) does  not  purport  to  be
the imposition of an anti-dumping duty with retrospective effect.   This  is
because it seeks to give effect to clause 10.2 of  the  WTO  Agreement.   As
has  been  argued  by  learned  counsel  on  both  sides,  the  key  to  the
understanding of the import of sub-clause (a) is  the  expression  “where  a
provisional duty has been levied….”  Obviously, the word “levied” has to  be
read as levied in accordance with  Rule  13  which,  as  its  marginal  note
indicates, provides for the “levy” of provisional duty.  Once this is  clear
and the word “levied” is to be understood  as  levied  under  Rule  13,  the
second proviso of Rule 13 gets attracted, and under this proviso  such  levy
cannot be for a period exceeding 6 months (on facts  in  these  cases,  such
period has not in fact been extended beyond 6 months).  Thus,  it  is  clear
that all that sub-rule (2)(a) does is to enable the levy of  a  final  anti-
dumping duty from the date of imposition of a  provisional  duty  so  as  to
convert the provisional measure into a final  measure,  or  so  as  to  take
within its ken the provisional  anti-dumping  duty  already  imposed.   This
aspect is succinctly put by “A Handbook on Anti-Dumping  Investigations”  by
Judith Czako, Johann Human and Jorge Miranda.  The learned authors state:

“L.   RETROACTIVE COLLECTION OF DEFINITIVE DUTIES

The normal rule for application of definitive duties,  set  out  in  Article
10.1 of the AD Agreement, is that duties shall only be collected on  imports
made (“entered for consumption”) after  the  effective  date  of  the  final
determination.  Articles 10.2 and 10.6  establish  two  exceptions  to  this
general rule, providing for the retroactive collection of definitive  duties
(that is, for the collection of definitive duties before the effective  date
of the final determination) in two situations:

The first such situation involves the collection of  definitive  duties  for
the period during which provisional  measures  were  applied  (and  for  all
practical purposes “converts” the  provisional  measure  into  a  definitive
measure); and

The other involves the collection of definitive duties up to 90  days  prior
to the date of application of provisional measures, although  no  definitive
duties can be collected on imports that took place before initiation.”



36.   On a correct reading of the said sub-rule, therefore, the final  anti-
dumping duty only incorporates  the  provisional  anti-dumping  duty  within
itself, but in the manner provided by Rule 13.  Thus, it is clear that  such
incorporation can only be the period upto which the provisional duty can  be
levied and not beyond.  Thus understood, it is clear  that  both  literally,
and in keeping with the object sought to be achieved – that  is  the  making
of laws in conformity with the WTO Agreement, 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.  Such  interpretation
makes it clear that clause 10.2 of the WTO Agreement is  reproduced  in  the
same sense though not in the same form in sub-rule (2)(a). The  same  result
therefore  as  is  envisaged  in  clause  10.2  is  achieved  by  the   said
construction – that is anti-dumping duty may  be  levied  retroactively  for
the period for which provisional  measures  have  been  applied.   The  said
construction is in consonance with the principles already laid down  earlier
in this judgment in that the WTO Agreement is intended to be applied by  the
various signatory nations in a uniform manner.  This can  only  be  done  by
construing the language of Section 9A read with the Rules in the same  sense
as that of the WTO Agreement.

37.   At this juncture, it is interesting to note that a  number  of  member
countries of the WTO agreement have  opted  for  the  Rule  by  which  anti-
dumping duty is levied to the full extent of the margin  of  dumping.   Such
nations like Argentina,  Mexico  and  USA  therefore  have,  under  the  WTO
Agreement, only a period of 4 months extendable upto a maximum period  of  6
months (instead of 6 months and 9 months respectively) so far  as  the  life
span of a provisional duty is concerned.  Most of Europe  and  the  rest  of
the world have opted to impose duties upto the margin of  dumping  depending
upon  the  extent   of   injury   caused   to   their   domestic   industry.
Interestingly, the European Community Council Regulation No.  1225  of  2009
dated 30.11.2009 on protection against dumped  imports  from  countries  not
members of the European Community has this to say:

                                 “Article 9

        Termination without measures; imposition of definitive duties

4. Where the facts as finally established show that  there  is  dumping  and
injury caused thereby, and the Community interest calls for intervention  in
accordance with Article 21, a definitive anti-dumping duty shall be  imposed
by the Council, acting on a  proposal  submitted  by  the  Commission  after
consultation of the Advisory Committee. The proposal  shall  be  adopted  by
the Council unless it decides by a simple majority to reject  the  proposal,
within a period of one month after its submission by the  Commission.  Where
provisional duties are in force, a proposal for definitive action  shall  be
submitted no later than one month before the  expiry  of  such  duties.  The
amount of the anti-dumping duty shall  not  exceed  the  margin  of  dumping
established but it should be less than the margin if such lesser duty  would
be adequate to remove the injury to the Community industry.”



38.   It will be seen from this that an inflexible rule is  laid  down  that
would ensure that no “gap” or intervening period occurs between  the  expiry
of the provisional duty and the imposition of the final duty, inasmuch as  a
proposal to levy final duty has to be submitted  no  later  than  one  month
before the expiry of a provisional duty.

39.   However, 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.”



40.   We are heartened to note that one other  signatory  nation  has  taken
the stand that no duty can be collected during the “gap period”.

41.   Viewed slightly differently, the  suggested  construction  by  revenue
would render Rule 2(a) ultra vires Section 9A.  It  has  already  been  seen
that sub-section (2) and sub-section (6) of Section 9A do not authorize  the
imposition of a duty  with  retrospective  effect,  in  contrast  with  sub-
section (3) thereof.  Any duty levied by a final  duty  notification  during
the interregnum period would necessarily amount to a retrospective  levy  of
duty for the reason that such period is not covered by the provisional  duty
notification, being beyond 6 months. This  would   therefore   render   sub-
rule  (2)(a) ultra vires Section 9A.            A  construction   which   is
both  in  consonance with international law and  treaty  obligations,  which
Article 51(c) of the Constitution states as a directive principle  of  State
policy; and with the application of the doctrine of harmonious  construction
is to be preferred to a narrow doctrinaire meaning which would lead  to  the
Rule being read in such a manner that it is ultra vires the parent  statute.


42.   One other interesting thing remains. Most of the  debate  at  the  Bar
was centered around the expression “levied”  in  Rule  20  sub-rule  (2)(a),
revenue contending, based on two judgments of this Court  in  N.B.  Sanjana,
Assistant Collector of Central Excise, Bombay and others v. The  Elphinstone
Spinning and Weaving Mills Company Ltd., 1971  (1)  SCC  337  and  Assistant
Collector of Central Excise, Calcutta Division v. National  Tobacco  Co.  of
India Ltd., (1972) 2 SCC 560, that “levy”  does  not  include  “collection”.
This has been countered by arguments on behalf of  the  assessees  that  the
word “levied” in the said sub-rule has been used in the same  sense  as  the
expression “imposed and  collected”  in  Rule  21(1),  and  would  therefore
include “collection” as well.  In view of what has been held  by  us  above,
we find it unnecessary to decide this contention.

43.   The effect of Rule 21 on the aforesaid construction  of  Rule  20  now
needs to be adverted to. Rule 21, in turn, is made  to  carry  out  what  is
stated in clause 10.3 of the WTO  Agreement.   Rule  21(2)  echoes  what  is
already found in Section 9A(2).  If provisional anti-dumping duty  is  found
to be higher than the final anti-dumping duty,  the  differential  shall  be
refunded to the importer. But sub-rule (1) goes a step  further  and  states
that  if  the  anti-dumping  duty  finally  imposed  is  higher   than   the
provisional duty already imposed and collected, the differential  shall  not
be collected from the importer.

44.   It is obvious that this Rule  has  been  framed  in  the  interest  of
international trade.  It is well known that  export  contracts  are  entered
into long before anti-dumping duties may be imposed, and  in  the  interests
of international trade, the importer should not be put to a loss in  case  a
final duty happens to be higher than the provisional duty  already  imposed.
The delicate balancing act between protection of domestic industry  and  the
hardship caused in the course of international trade has  thus  been  tilted
in favour of the latter. If learned counsel  for  the  revenue  were  right,
despite the fact  that  such  differential  cannot  be  collected  from  the
importer  under  Rule  21(1)  for  the  period  that  the  provisional  duty
notification is in force, during the interregnum period, the full amount  of
final duty is liable to be recovered from  the  importer.  This  would  turn
Rule 21(1) on its head and result in an absurdity.  A  simple  example  will
suffice.  If provisional duty already imposed and collected is Rs. 50/-  per
metric  ton  (PMT),  and  final  duty  imposed  say  one  year  later   with
retroactive effect from the date of imposition of the  provisional  duty  is
Rs. 100/- PMT, the difference of Rs. 50/- PMT cannot be recovered  from  the
importer for the period that  the  provisional  notification  is  in  force.
Therefore, for the first 6 months in the aforesaid example, the importer  is
liable to pay nil duty. However, for the next  6  months,  that  is  in  the
interregnum period between the expiry of the provisional duty and  the  date
of imposition of the final duty, the importer becomes liable to pay Rs.100/-
 PMT.  The said example demonstrates how the arguments of the revenue  would
lead to an absurdity such as this.

45.   Rule 21(1) also answers the contention of the Revenue that the  object
of anti-dumping laws would be defeated if it were  found  that  dumping  and
material injury having been found, yet no anti-dumping duty can  be  levied.
By application of this Rule, it is  clear  that  for  the  period  that  the
provisional duty notification is in force, the  difference  of  Rs.50/-,  in
the example just given,  cannot  be  collected  from  the  importer  despite
Rs.50/- having been imposed because of dumping and material  injury  to  the
domestic industry.  Therefore,  it  is  clear  that  there  already  exists,
within the scheme of the anti-dumping law, a situation  in  which  there  is
dumping and material injury to the domestic industry,  for  which  an  anti-
dumping  duty  is  levied,   but  which  cannot  be  collected.   There  is,
therefore,  a  balance  struck  between  material  injury  to  the  domestic
industry and retrospective levy of duty in favour of the latter.

46.   We also find force in  the  submission  of  learned  counsel  for  the
assessees  that  the  revenue’s  construction  of  Rule  20   would  achieve
indirectly what cannot be achieved directly, having regard to the  mandatory
language contained in Rule 13 second proviso. Here again  a  simple  example
would suffice.  Say the provisional duty is levied at the rate of  Rs.  50/-
PMT and comes to an end after 6 months.  6 months later,  a  final  duty  is
imposed again at the same rate of Rs. 50/- PMT with effect from the date  of
levy of the provisional duty.  If  learned  counsel  for  the  revenue  were
right, Rs.  50/-  PMT  could  be  recovered  under  Rule  20(2)(a)  for  the
interregnum period as well which would, in effect,  destroy  the  scheme  of
Rule 13 second proviso by extending  the  period  of  the  provisional  duty
notification beyond a period of 6 months, which clearly cannot be done.   We
find therefore that on all these counts, the arguments of revenue cannot  be
countenanced.

47.   It remains now to deal with the impugned judgment of the  Bombay  High
Court. After setting out the  contentions  of  the  respective  parties  and
referring to the relevant statutory provisions and the  WTO  Agreement,  the
Bombay High Court arrives at a finding that Parliament has made a  departure
from the language used in the WTO Agreement and  the  Court  must  therefore
give effect to such departure.

48.   We have already held that this would  fly  in  the  face  of  all  the
judgments referred to in paragraphs 15 to  22  hereinabove,  and  principles
(3) and (4) of paragraph 23 of this judgment  which speak  of  how  domestic
legislation must  be  construed  when  it  is  made  in  furtherance  of  an
international treaty.  In particular, in the facts of these cases, it  would
also ignore  the  effect  of  Article  18.4  of  the  WTO  Agreement,  which
expressly states that all the signatory member nations have  to  make  their
laws “conform” to the provisions of the WTO Agreement, something  which  the
Central Government itself states in its internet website  which  deals  with
the law of anti-dumping.

49.   The High Court goes on to state that  the  construction  suggested  on
behalf of the assessee would lead to a manifest absurdity as there would  be
no reason or justification to hold that the levy of anti-dumping  duty  must
sustain a break during the period between  the  expiry  of  the  provisional
duty notification and the issuance of a notification imposing a final  anti-
dumping duty. The High Court went on to hold that  the  object  and  purpose
underlying Section 9A would be  defeated,  as  for  the  interregnum  period
where both dumping and material injury to domestic industry  are  found,  no
anti-dumping  duty  can  be  issued.   This  conclusion  again   cannot   be
countenanced for the  simple  reason  that  if  Rule  20(2)(a)  were  to  be
construed n the fashion suggested by the  High  Court,  it  would  be  ultra
vires Section 9A for the reasons already given by us.  Further,  the  object
and purpose of Section 9A is to impose an anti-dumping  duty  in  consonance
with the WTO Agreement, which Section 9A gives full effect to.  These  basic
points have been missed by the High  Court  in  arriving  at  the  aforesaid
finding.  Further, the High Court  fails  to  give  due  importance  in  its
judgment to Rules 13 and 21. We have already seen how Rule  21(1)  envisages
precisely the situation spoken of by the High Court, and  yet  states  that,
in the circumstances mentioned therein, despite dumping and material  injury
to the domestic industry, differential duty cannot  be  collected  from  the
importer.  In fact, the High Court  goes  on  to  say  that  the  expression
“imposed and collected” in Rule  21,  not  being  there  in  Rule  20(2)(a),
cannot therefore be imported  into  the  said  sub-rule,  so  that  “levied”
cannot mean “imposed and collected”.  We have already held, in view  of  our
construction of Rule 20(2)(a), that this need not be gone  into.   What  has
been missed by the High Court is that the  expression  “levied”  has  to  be
understood as “levied” under Rule 13 and once this is so, it  becomes  clear
that such levy cannot exceed a period of 6 months or a maximum period  of  9
months, as the case may be.

50.   The Bombay High Court follows the Kerala High Court  reasoning,  which
is to the same effect.  For the reasons given by us  in  this  judgment,  we
find it difficult to accede to such  reasoning.  We,  therefore,  allow  the
appeals of the assessees and dismiss Civil Appeal No. 3889 of  2006  of  the
revenue.  We make it clear that we have only decided the point  of  levy  of
anti-dumping  duty  during  the  interregnum  between  the   expiry   of   a
provisional duty notification and the imposition  of  a  final  anti-dumping
duty.  If either the assessees or the revenue have succeeded  on  any  other
point, such point will  remain  untouched  by  this  judgment.   With  these
observations, all the said appeals are disposed of.

                                        ……………………J.

                                        (A.K. Sikri)





                                        ……………………J.

                                        (R.F. Nariman)

New Delhi;

September 23, 2015.

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