2022 (12) TMI 984 - AT - Customs

Non-imposition of anti-dumping duty - imports of colour coated/pre-painted flat products of alloy or non-alloy steel originated in or exported from China PR and European Union - Central Government did not issue a notification for imposition of anti-dumping duty though three months expired from the date of publication of final finding - HELD THAT - Section 9A of the Tariff Act provides that where any article is exported by an exporter or producer from any 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 anti-dumping duty not exceeding the margin of dumping in relation to such article. It is under rule 17 of the 1995, Anti-Dumping Rules that the designated authority is required to, 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 its final findings to the Central Government. Under rule 18, the Central Government may, within three months of the date of publication of the final findings by the designated authority under rule 17, impose by a notification in the Official Gazette, upon importation into India of the article covered by the final findings, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. Whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority? - HELD THAT - On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty - it has to be presumed that the Central Government has taken a decision not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority. It has been held by this Tribunal in Apcotex Industries 2022 (11) TMI 1096 - CESTAT NEW DELHI and Chemical and Petrochemicals 2022 (12) TMI 830 - CESTAT NEW DELHI that reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty. Appeal disposed off.

Issues Involved:
1. Whether the Central Government has taken a decision not to impose anti-dumping duty.
2. Maintainability of appeal under section 9C of the Tariff Act.
3. Whether reasons have to be recorded by the Central Government.

Detailed Analysis:

1. Whether the Central Government has taken a decision not to impose anti-dumping duty:

The main grievance of the appellant, an Association of Indian Steel producers, is that despite the recommendation made by the designated authority in the final finding dated 08.10.2021 for the imposition of anti-dumping duty on imports of colour coated/pre-painted flat products of alloy or non-alloy steel from China PR and the European Union, the Central Government did not issue a notification for imposition of anti-dumping duty within three months.

Section 9A of the Tariff Act provides that the Central Government may impose anti-dumping duty by notification in the Official Gazette. Rule 17 of the 1995 Anti-Dumping Rules requires the designated authority to determine whether the article is being dumped in India and submit its final findings to the Central Government. Rule 18 states that the Central Government may impose anti-dumping duty within three months of the date of publication of the final findings.

In this case, the final findings were published on 08.10.2021. The Central Government did not issue any notification within three months, nor was an office memorandum issued. The Tribunal held that a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty by remaining silent for a long period. This presumption is supported by the Tribunal's decision in Apcotex Industries and Chemical and Petrochemicals Manufacturers Association cases.

The conclusion is that the Central Government is deemed to have decided not to impose anti-dumping duty despite the recommendation, and the matter is remitted to the Central Government for a decision on the recommendation.

2. Maintainability of appeal under section 9C of the Tariff Act:

The respondents argued that an appeal under section 9C of the Tariff Act lies only against an order of determination or review thereof, in respect of the existence, degree, and effect of any subsidy or dumping. They emphasized that the final findings issued by the designated authority constitute an "order of determination" and that the actual challenge is to these findings, not the notification by the Central Government.

The appellant contended that the non-issuance of the notification by the Central Government pursuant to the recommendations implies a decision not to impose anti-dumping duty, making the appeal maintainable. The Tribunal, referencing the Apcotex Industries case, agreed that the appeal is maintainable.

3. Whether reasons have to be recorded by the Central Government:

The Tribunal held in Apcotex Industries and Chemical and Petrochemicals that the Central Government must record reasons when deciding not to impose anti-dumping duty despite a positive recommendation from the designated authority. This requirement ensures transparency and accountability in the decision-making process.

Conclusion:

The matter is remitted to the Central Government for taking a decision on the recommendation made by the designated authority, considering the Tribunal's decisions in Apcotex Industries and Chemical and Petrochemicals. The appeal is disposed of accordingly.

(Order Pronounced on 20.12.2022)

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