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2023 (6) TMI 859 - AT - CustomsLevy of anti-dumping duty - imports of Styrene Butadiene Rubber originating in or exported from European Union, Korea RP and Thailand - Central Government did not issue the notification for imposition of anti-dumping duty - likelihood of continuation/recurrence of dumping and injury to the domestic industry in the event of cessation of duties - HELD THAT - Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country 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. The margin of dumping, the export price and the normal price have all been defined in Section 9A(1) of the Tariff Act. 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 and the decisions of the Supreme Court and the High Courts 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 STATE OF T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM ANR. 1997 (11) TMI 520 - SUPREME COURT . The inevitable conclusion, therefore, that follows 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 complied 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. Seeking extension of anti-dumping duty for a period of three years as recommended by the designated authority in terms of the first proviso to Section 9A(5) of the Tariff Act - HELD THAT - It will not be appropriate for the Tribunal, at this stage, to extend the anti-dumping duty on the basis of the final findings of the designated authority in terms of the first proviso to Section 9A(5) of the Tariff Act. The matter is being remitted to the Central Government to take a considered decision on the recommendation made by the designated authority and it will be for the Central Government to take an appropriate decision in this regard. However, as sufficient time has lapsed since recommendation was made by the designated authority it is expected that the Central Government will take a decision at an early date. Seeking direction that anti-dumping duty may continue to remain in force pending the outcome of such a review for a further period not exceeding one year in terms of the second proviso to Section 9A(5) of the Tariff Act - HELD THAT - The stand of the Central Government is based only on the office memorandum dated 28-10-2022 wherein the Under Secretary has informed that the Central Government, after considering the final findings of the designated authority, has decided not to accept the aforesaid recommendation. This is the only communication that has been relied upon by the learned authorized representative for the Central Government to defend the order. In any case, the matter is being remitted to the Central Government to reconsider the recommendation made by the designated authority in the light of the observations made in the order. The Tribunal had in JUBILANT INGREVIA LIMITED VERSUS UNION OF INDIA, DESIGNATED AUTHORITY, DIRECTORATE GENERAL OF TRADE REMEDIES, GHW (VIETNAM) CO. LTD., M/S. GHW HOLDING COMPANY HONG KONG, SHENG LONG BIO-TEC INDIA PVT. LTD. AND UTTARA IMPEX PRIVATE LIMITED PUNE 2021 (11) TMI 200 - CESTAT NEW DELHI also set aside a similar office memorandum issued by the Under Secretary conveying the decision of the Central Government not to impose anti-dumping duty despite a recommendation made by the designated authority for imposition of anti-dumping duty. Thus, the office memorandum dated 28-10-2022 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 Central Government's Determination (Legislative vs. Quasi-Judicial) 4. Compliance with Principles of Natural Justice 5. Requirement of a Reasoned Order by the Central Government 6. Extension of Anti-Dumping Duty Pending Review Detailed Analysis: 1. Imposition of Anti-Dumping Duty: The appellant, a domestic industry, sought imposition of anti-dumping duty on imports of Styrene Butadiene Rubber from the European Union, Korea RP, and Thailand based on the designated authority's recommendation dated 29-7-2022. The Central Government, however, decided not to impose the duty, communicated via an office memorandum dated 28-10-2022. 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, referencing a prior decision in Apcotex Industries Ltd. v. Union of India, which confirmed that an appeal is maintainable against the Central Government's decision not to impose anti-dumping duty despite a positive recommendation from the designated authority. 3. Nature of Central Government's Determination (Legislative vs. Quasi-Judicial): The Tribunal analyzed whether the Central Government's determination was legislative or quasi-judicial. It concluded that the determination is quasi-judicial, requiring adherence to principles of natural justice and the issuance of a reasoned order. This conclusion was based on the Supreme Court's judgments in K. Sabanayagam and other relevant cases, which distinguished between the legislative function of rule-making and the quasi-judicial function of making determinations in individual cases. 4. Compliance with Principles of Natural Justice: The Tribunal held that the principles of natural justice were violated as the Central Government did not provide reasons for its decision not to impose anti-dumping duty. The Tribunal emphasized that even if the determination was legislative, the principles of natural justice still required the Central Government to provide tentative reasons and an opportunity for the domestic industry to respond. 5. Requirement of a Reasoned Order by the Central Government: The Tribunal reiterated that the Central Government must provide a reasoned order when deciding not to impose anti-dumping duty despite a positive recommendation from the designated authority. This requirement aligns with the Supreme Court's judgments in Cynamide India Ltd. and Godawat Pan Masala, which mandate recording reasons for such decisions. 6. Extension of Anti-Dumping Duty Pending Review: The appellant requested the Tribunal to extend the anti-dumping duty for a further period of three years or direct the Central Government to do so. The Tribunal, however, decided it would not be appropriate to extend the duty itself and remitted the matter to the Central Government for reconsideration. The Tribunal also directed provisional assessment of imports to protect the appellant's interests, similar to interim orders passed by the Delhi High Court in related cases. Conclusion: The office memorandum dated 28-10-2022 was set aside, and the matter was remitted to the Central Government to reconsider the recommendation made by the designated authority within three months. The Tribunal directed provisional assessment of imports concerning the subject goods from the subject countries, ensuring the appellant's interests were protected pending the Central Government's decision. The appeal was allowed to the extent indicated, and the Miscellaneous Application was disposed of accordingly.
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