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2023 (3) TMI 249 - AT - CustomsValidity of Notification dated 11.05.2022 issued by the Central Government rescinding the Notification dated 16.05.2017 imposing anti-dumping duty - seeking direction to the Central Government to issue a Notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority - Maintainability of appeal under section 9C - Whether the Central Government exercises legislative power? - Provisional assessment of imports. The main contention that has been advanced is that despite the recommendation having been made by the designated authority in the final findings to impose anti-dumping duty, the Central Government kept quiet and did not issue the consequential notification for imposition of anti-dumping duty - submission is that under rule 18 of Anti Dumping Rules, the Central Government has to take a decision within three months of the publication of final findings, and as the Notification was not issued for a long period of time it should be presumed, particularly when the Central Government issued the Notification dated 11.05.2022 revoking the imposition of duty that the Central Government had decided not to impose anti-dumping duty on the subject goods from the subject country. Whether Central Government has taken a decision not to impose anti-dumping duty? - HELD THAT - In the present case, it is not in dispute that the final findings of the designed authority were published on 11.01.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum. The issue that arises for consideration is 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 and infact the notification dated 11.05.2022 was issued rescinding the notification dated 16.05.2017. 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. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that 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. This presumption also finds support from the fact that the Central Government issued a notification dated 11.05.2022, after the final findings were submitted by the designated authority on 15.02.2022, rescinding the notification dated 16.05.2017 earlier issued by the Central Government imposing anti-dumping duty for a period of five years. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority. Maintainability of appeal under section 9C - 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 vs. Union of India and 38 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. In Balaji Amines Ltd. vs. The Union of India 2022 (12) TMI 985 - CESTAT NEW DELHI , the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty. Whether the Central Government exercises legislative power? - HELD THAT - The 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. The matter, therefore, would have to be remitted to the Central Government for taking a 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. Provisional assessment of imports - HELD THAT - The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being - It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry. The matter is remitted to the Central Government to consider the recommendation made by the designated authority - Appeal allowed by way of remand.
Issues Involved:
1. Delay in Issuance of Notification for Imposition of Anti-Dumping Duty. 2. Non-Speaking Order by the Central Government. 3. Maintainability of Appeal under Section 9C of the Tariff Act. 4. Nature of Central Government's Power: Legislative or Quasi-Judicial. 5. Compliance with Principles of Natural Justice and Requirement of a Reasoned Order. 6. Provisional Assessment of Imports. Detailed Analysis: 1. Delay in Issuance of Notification for Imposition of Anti-Dumping Duty: The appellant, Aurobindo Pharma Limited, contended that despite the designated authority's recommendation for the imposition of anti-dumping duty on 15.02.2022, the Central Government did not issue the necessary notification within three months as required under Rule 18 of the 1995 Anti-Dumping Rules. Instead, the Central Government issued a notification on 11.05.2022 rescinding the previous notification dated 16.05.2017, which had imposed anti-dumping duty. The Tribunal noted that a presumption can be drawn that the Central Government decided not to impose anti-dumping duty due to its prolonged inaction and the subsequent rescinding notification. 2. Non-Speaking Order by the Central Government: The appellant argued that the Central Government did not provide a reasoned order explaining its decision not to impose anti-dumping duty, despite the designated authority's recommendation. The Tribunal emphasized that the Central Government must provide reasons when it decides not to follow the designated authority's recommendation, as this is essential for transparency and accountability. 3. Maintainability of Appeal under Section 9C of the Tariff Act: The Tribunal referenced its previous decisions in M/s. Apcotex Industries Limited and Balaji Amines Ltd., affirming that appeals are maintainable under Section 9C of the Tariff Act even if the Central Government does not issue a notification for a long period after the designated authority's recommendation. The appeal is maintainable against the decision of the Central Government, whether explicitly stated or implied through inaction. 4. Nature of Central Government's Power: Legislative or Quasi-Judicial: The Tribunal examined whether the Central Government's determination under Section 9A of the Tariff Act is legislative or quasi-judicial. It concluded that the function is quasi-judicial, requiring the Central Government to examine all relevant factors and evidence before making a decision. Even if considered legislative, the principles of natural justice and the requirement for a reasoned order must be complied with, as the decision impacts the rights and interests of the domestic industry and importers. 5. Compliance with Principles of Natural Justice and Requirement of a Reasoned Order: The Tribunal reiterated that the Central Government must record reasons when deciding not to impose anti-dumping duty despite a positive recommendation from the designated authority. This ensures that the decision-making process is fair and transparent, allowing affected parties to understand the basis of the decision and, if necessary, challenge it. 6. Provisional Assessment of Imports: The appellant requested provisional assessment of imports pending the Central Government's final decision. The Tribunal referred to similar interim orders passed by the Delhi High Court in related cases, where provisional assessment was directed to protect the interests of the domestic industry. The Tribunal issued similar directions for provisional assessment of imports of the subject goods from the subject countries until the Central Government makes a final decision. Conclusion: The Tribunal remitted the matter to the Central Government to reconsider the designated authority's recommendation for imposing anti-dumping duty on the import of the subject goods from China PR. The directions for provisional assessment will remain operative until the Central Government takes a final decision. The appeal was allowed to the extent indicated, and the Tribunal directed the Department to ensure compliance with the order.
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