M/S. S & S. ENTERPRISE versus DESIGNATED AUTHORITY AND ORS.

Citation: [2005] 2 S.C.R. 255 · Decided: 22-02-2005 · Supreme Court of India · Bench: RUMA PAL · Disposal: Appeal(s) allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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MIS. S & S. ENTERPRISE 
A 
v. 
DESIGNATED AUTHORITY AND ORS. 
FEBRUARY 22, 2005 
[RUMA PAL, ARIJIT PASAYAT AND C.K. THAKKER, JJ.] 
B 
Anti-dumping laws : . 
Custom Tariff (Anti-Dumping Duty on Dumped Articles and for 
Determination of Injuries) Rules 1995-Rules 14(d) & Rule 5 : 
C 
Investigation under Rule 14(d)-When terminable-Held, the Designated 
Authority to terminate the investigation, if volume of dumped imports found to 
be less than the de minimis of 3% of total imports. 
'Volume ofimports'-Basis of computation-Held, volume of imports is D 
to be computed on the basis of the quantity of imports and not the price of 
imports-Customs Tariff Act, 1975-Section 9A. 
Anti-dumping duty-Imposition of-Purpose and object of-Discussed 
The appellant imported batteries from Bangladesh. On a complaint, E 
Respondent no. l conducted investigation and found that the total number 
of imports made by the appellant was less than 3% of total imports of 
such batteries. Inspite of such finding, Respondent no. I continued the 
investigation and held that the value of imports made by the appellant 
was exceeding 6% which was more than the de minimis limit of 3% as F 
provided under Rule 14(d) of Custom Tariff (Anti-Dumping Duty on 
Dumped Articles and for Determination of In;uries) Rules 1995. On 
appeal, the Central Excise & Gold Control Appellate Tribunal (CEGA T) 
upheld the order holding that the word 'volume' in the context of Rule 
14 meant value. Hence the appeal. 
Allowing the appeal, the Court 
HELD : 1. The interpretation of Rule 14(d) of the Custom Tariff 
(Anti-Dumping Duty on Dumped Articles and for Determination of 
Injuries) Rules, 1995 by Respondent No. 1 and the Tribunal is incorrect 
G 
255 
H 
256 
SUPREME COURT REPORTS 
[2005] 2 S.C.R. 
A 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 
B 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 
C the country with the interest of the domestic markets. However a negligible 
quantity of imports would not be sufficient to cause such injury. 
D 
1258-H; 259-A-B, Cl 
Agreement on implementation of Article VJ of the GATT, 1994, Article 
5. 8, referred to. 
2.1. There shall be immediate termination of investigation 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 volume of dumped imports shall normally be regarded 
as negligible if the volume of dumped imports from a particular country 
E is found to account for less than 3% of imports of the like product in the 
importing country. 1259-D, El 
2.2. The de minim is rule as far as the price is concerned is when the 
dumping margin or the difference between the export price of the article 
F and its normal value, is less than 2%. In other words the exporter is selling 
the goods in India at almost the same price that it does in its country. As 
far as quantity is concerned, if the export accounts for less than 3% of 
the total imports of the like article into .India, it is treated as too trivial 
for the law and is ignored. The Rules have also distinguished between 
volume as meaning quantity on the one hand and price on the other. · 
G 
1259-G-H; 260-AJ 
H 
3. The percentage of 3% vis-a-vis the quantity is not broad based 
but determined, with reference to a 'like article'. The consideration of 
volume would also he limited to such "like articles". Therefore, when Rule 
14(d) says that the investigation must be terminated if the 'volume' of the 
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S & S. ENTERPRISE 1·. DESIGNATED AUTHORITY 
257 
dumped imports is less than 3% of the imports of the like product, it must A 
mean that the quantity of dumped imports must account for less than 3°/.1 
of the total imports. To hold otherwise would mean that if the price

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