2022 (12) TMI 830 - AT - Customs

Non-Levy of anti-dumping duty under section 9A of the Customs Tariff Act 1975 - validity of office memorandum, communicating the decision of the Central Government not to impose anti-dumping duty, despite a recommendation having been made by the designated authority in the final findings to impose anti-dumping duty - violation of principles of natural justice. HELD THAT - The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/S APCOTEX INDUSTRIES LIMITED AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2022 (11) TMI 1096 - CESTAT NEW DELHI and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. The Bench also examined whether the determination by the Central Government was legislative in character or quasi-judicial in nature and after examining the relevant provisions of the Tariff Act, the 1995 Anti-Dumping Rules observed that the function performed by the Central Government would be quasi-judicial in nature. The Bench also, in the alternative, held that even if the function performed by the Central Government was legislative, then too the principles of natural justice and the requirement of a reasoned order have to be compiled with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in TATE OF T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM ANR. 1997 (11) TMI 520 - SUPREME COURT . The inevitable conclusion, therefore, is that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with. The matter, therefore, would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries. The office memorandum dated 06.06.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings - Appeal allowed by way of remand.

Issues Involved:
1. Imposition of Anti-Dumping Duty
2. Maintainability of Appeal under Section 9C of the Tariff Act
3. Nature of the Central Government's Determination (Legislative vs. Quasi-Judicial)
4. Compliance with Principles of Natural Justice and Requirement of a Reasoned Order
5. Provisional Anti-Dumping Duty Pending Final Hearing
6. Submission of Records/Files by the Central Government

Detailed Analysis:

1. Imposition of Anti-Dumping Duty:
The appellant, a domestic industry, challenged the Central Government's decision not to impose anti-dumping duty despite a recommendation by the designated authority. The designated authority had concluded that the subject goods were being dumped into India from the subject countries, causing material injury to the domestic industry. The designated authority recommended the imposition of anti-dumping duty to offset the effect of dumping and remedy the injury. However, the Central Government, via an office memorandum dated 06.06.2022, decided not to impose the duty, which led to the appellant's grievance.

2. Maintainability of Appeal under Section 9C of the Tariff Act:
The Tribunal examined the maintainability of the appeal under Section 9C of the Tariff Act and held that the appeal is maintainable against the Central Government's decision not to impose anti-dumping duty. The Tribunal referred to its earlier decision in M/s. Apcotex Industries Limited vs. Union of India, where it was held that such an appeal is maintainable.

3. Nature of the Central Government's Determination (Legislative vs. Quasi-Judicial):
The Tribunal analyzed whether the Central Government's determination is legislative or quasi-judicial. It concluded that the function performed by the Central Government is quasi-judicial in nature. Even if considered legislative, the principles of natural justice and the requirement of a reasoned order must be complied with, as it falls under the third category of conditional legislation as per the Supreme Court's judgment in State of Tamil Nadu vs. K. Sabanayagam.

4. Compliance with Principles of Natural Justice and Requirement of a Reasoned Order:
The Tribunal emphasized that the Central Government must record reasons when deciding not to impose anti-dumping duty despite a positive recommendation by the designated authority. The Tribunal referred to the Supreme Court's judgments in K. Sabanayagam, Cynamide India Ltd., and Godawat Pan Masala, which mandate compliance with the principles of natural justice and the requirement of a reasoned order.

5. Provisional Anti-Dumping Duty Pending Final Hearing:
The appellant sought the imposition of provisional anti-dumping duty pending the final hearing. The Tribunal decided not to issue any direction for provisional anti-dumping duty at this stage, as the matter is being remitted to the Central Government for reconsideration. The appellant may move an application before the Central Government for provisional anti-dumping duty, and the Central Government is expected to pass an appropriate order.

6. Submission of Records/Files by the Central Government:
The appellant requested the submission of records/files containing reasons for not imposing anti-dumping duty. The Central Government did not take a stand that reasons are contained in the files. The Tribunal directed the Central Government to reconsider the recommendation made by the designated authority in light of the observations made in the order.

Conclusion:
The Tribunal set aside the office memorandum dated 06.06.2022 and remitted the matter to the Central Government to reconsider the recommendation made by the designated authority for imposition of anti-dumping duty. The Tribunal also issued directions for provisional assessment of imports concerning the subject goods from the subject countries until a decision is taken by the Central Government. The appeal was allowed to the extent indicated, and the two miscellaneous applications were disposed of accordingly.

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