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2023 (1) TMI 1425 - AT - CustomsNon-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? - HELD THAT - 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. 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. 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. 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. This is what was held by the Tribunal in Apcotex Industries 2022 (11) TMI 1096 - CESTAT NEW DELHI The same view has been taken by this Bench in Chemical and Petrochemicals Manufactures Association vs. Union of India 2022 (12) TMI 830 - CESTAT NEW DELHI 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. 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 the appeal u/s 9C of the Tariff Act - The appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. See M/s. Apcotex Industries Limited vs. Union of India 2022 (11) TMI 1096 - CESTAT NEW DELHI In Balaji Amines Ltd. vs. The Union of India 2022 (12) TMI 985 - CESTAT NEW DELHI Anti-dumping Appeal No. 51151 of 2022 decided on 20.12.2022 , 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 Government exercises legislative power? - 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 - 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; (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. Conclusion - Thus, the matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 23.09.2021 in the light of the observations made above. The directions contained in paragraph 42 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 Department shall send a copy of this order to all the concerned 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.
Issues Involved:
1. Whether the Central Government's inaction implies a decision not to impose anti-dumping duty. 2. Maintainability of appeal under Section 9C of the Customs Tariff Act. 3. Nature of the Central Government's power-legislative or quasi-judicial. 4. Compliance with principles of natural justice and requirement of a reasoned order. 5. Provisional assessment of imports pending the Central Government's decision. Detailed Analysis: 1. Whether the Central Government's inaction implies a decision not to impose anti-dumping duty: The Tribunal examined the provisions of the Customs Tariff Act and the 1995 Anti-Dumping Rules, particularly focusing on the timeline for the Central Government to act upon the recommendations of the designated authority. Rule 18 mandates the Central Government to impose anti-dumping duty within three months of the publication of final findings. The Tribunal concluded that the Central Government's prolonged silence should be presumed as a decision not to impose anti-dumping duty, similar to cases where an office memorandum explicitly conveys such a decision. This view aligns with previous Tribunal decisions in Apcotex Industries and Chemical and Petrochemicals Manufactures Association cases. 2. Maintainability of appeal under Section 9C of the Customs Tariff Act: The Tribunal reaffirmed its stance from previous cases, such as M/s. Apcotex Industries Limited and Balaji Amines Ltd., that an appeal under Section 9C is maintainable against the Central Government's decision, whether explicit or implied, not to impose anti-dumping duty. The Tribunal emphasized that non-issuance of a notification post-recommendation by the designated authority equates to a decision, thereby making the appeal maintainable. 3. Nature of the Central Government's power-legislative or quasi-judicial: The Tribunal analyzed whether the Central Government's function in imposing anti-dumping duty is legislative or quasi-judicial. It concluded that the function is quasi-judicial, requiring adherence to principles of natural justice and a reasoned decision, even if considered legislative. The Tribunal referenced the Supreme Court's judgment in State of Tamil Nadu vs. K. Sabanayagam, which categorized such functions as conditional legislation, necessitating compliance with procedural fairness. 4. Compliance with principles of natural justice and requirement of a reasoned order: The Tribunal underscored the necessity for the Central Government to record reasons when deciding against imposing anti-dumping duty despite a positive recommendation from the designated authority. It highlighted the importance of providing the domestic industry an opportunity to respond if the Central Government forms a prima facie opinion against the recommendation. This requirement aligns with the principles of natural justice, as emphasized in the Tribunal's previous decisions and supported by the Gujarat High Court's judgment in Realstripes Limited. 5. Provisional assessment of imports pending the Central Government's decision: The Tribunal considered the appellant's request for provisional assessment of imports, akin to the interim relief granted by the Delhi High Court in similar cases. It directed that provisional assessment of imports concerning the subject goods be conducted until the Central Government makes a decision on the designated authority's recommendation. This measure ensures the appellant's interests are safeguarded without creating equities in favor of the domestic industry or affecting the Central Government's final decision. Conclusion: The Tribunal remitted the matter to the Central Government for reconsideration of the designated authority's recommendation dated 23.09.2021, with directions for provisional assessment of imports to continue until a decision is reached. The appeal was allowed to the extent of these directions, and the Department was instructed to ensure compliance across relevant zones.
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