2023 (1) TMI 1424 - AT - Customs

Non-Imposition of anti-dumping duty u/s 9A of the Customs Tariff Act 1975 - Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority - Whether Central Government has taken a decision not to impose anti-dumping duty? - maintainability of the appeal under section 9C of the Customs Tariff Act - 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. 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 and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority. Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty. The directions are as follows (i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being; (ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry; and (iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority. Thus, for all the reasons stated above, the office memorandum dated 23.06.2022 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 in the light of the observations made above. The directions contained in paragraph 37 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal is allowed to the extent indicated above. The learned authorized representative appearing for the Central Government shall send a copy of this order to all the zones where the imports of the subject goods are likely to be made and also ensure that necessary and effective steps are taken by all concerned for due compliance of this order.

Summary

Issues Involved:

1. Whether the decision of the Central Government not to impose anti-dumping duty, despite a recommendation by the designated authority, is arbitrary and violates principles of natural justice.
2. The maintainability of the appeal under section 9C of the Customs Tariff Act.
3. The nature of the Central Government's determination-whether legislative or quasi-judicial.
4. Compliance with principles of natural justice and requirement for a reasoned order by the Central Government.
5. Interim relief and provisional assessment of imports pending final decision.

Issue-wise Detailed Analysis:

1. Arbitrariness and Violation of Natural Justice:
- The appellant argued that the Central Government's decision not to impose anti-dumping duty, despite a positive recommendation by the designated authority, was arbitrary and violated principles of natural justice. The office memorandum issued on 23.06.2022 was challenged as being unreasoned and lacking adherence to natural justice. The Tribunal found that the decision did not contain reasons nor complied with principles of natural justice, warranting a remand to the Central Government for reconsideration.

2. Maintainability of Appeal:
- The Tribunal examined whether the appeal was maintainable under section 9C of the Customs Tariff Act. It referenced a prior decision in M/s. Apcotex Industries Limited vs. Union of India, where it was held that an appeal against the Central Government's decision not to impose anti-dumping duty is maintainable. The Tribunal reaffirmed this position, allowing the appeal to proceed.

3. Nature of Central Government's Determination:
- The Tribunal explored whether the Central Government's determination was legislative or quasi-judicial. It concluded that the function is quasi-judicial, requiring adherence to principles of natural justice and a reasoned order. Even if considered legislative, it falls under conditional legislation, necessitating compliance with natural justice as per Supreme Court precedents.

4. Compliance with Natural Justice and Reasoned Order:
- The Tribunal emphasized that the Central Government must record reasons when deciding not to impose anti-dumping duty, especially when the designated authority recommends it. This requirement aligns with the principles of natural justice and ensures transparency and accountability in decision-making.

5. Interim Relief and Provisional Assessment:
- The Tribunal considered interim relief, referencing a Delhi High Court order in a similar case. It directed provisional assessment of imports pending the Central Government's reconsideration of the recommendation. This measure aims to protect the interests of the domestic industry without creating equities or impacting the final decision.

Conclusion:

The Tribunal set aside the office memorandum dated 23.06.2022, remanding the matter to the Central Government for reconsideration in light of the Tribunal's observations. It directed provisional assessment of imports and emphasized compliance with natural justice and the need for a reasoned decision. The appeal was allowed to the extent indicated, with directions for effective compliance by relevant authorities.