2023 (1) TMI 1433 - AT - Customs

Imposition of ADD - grievance raised by appellant is that despite a recommendation having being made by the designated authority in the final findings notified on 16.02.2022 for imposition of anti-dumping duty under section 9A of the Customs Tariff Act 1975, the Central Government did not issue the notification for imposition of anti-dumping duty - violation of principles of natural justice - 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 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. The inevitable conclusion 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 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 provisional assessment of imports concerning the subject goods from the subject country will be made for the time being. The office memorandum dated 26.05.2022 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.

Summary

Issues Involved:

1. Non-issuance of notification for imposition of anti-dumping duty by the Central Government despite recommendations by the designated authority.
2. Maintainability of the appeal under Section 9C of the Customs Tariff Act.
3. Nature of the decision by the Central Government - legislative or quasi-judicial.
4. Compliance with principles of natural justice and requirement for a reasoned order.
5. Interim protection for the appellant pending final decision by the Central Government.

Issue-wise Detailed Analysis:

1. Non-issuance of Notification for Imposition of Anti-Dumping Duty:

The appellant, Plastics Machinery Manufacturers Association of India, challenged the decision of the Central Government communicated via an office memorandum dated 26.05.2022, which refused to impose anti-dumping duty on imports of Plastic Processing Machines from China, despite a recommendation by the designated authority. The designated authority had conducted a thorough investigation, concluding that the domestic industry suffered material injury due to dumping, and recommended the imposition of anti-dumping duty to offset the injury. However, the Central Government chose not to accept this recommendation without providing reasons, which the appellant argued was arbitrary and violated principles of natural justice.

2. Maintainability of the Appeal:

The Tribunal examined whether the appeal was maintainable under Section 9C of the Customs Tariff Act. It referenced a previous decision in M/s. Apcotex Industries Limited vs. Union of India, where it was held that an appeal is maintainable against the Central Government's decision not to impose anti-dumping duty. The Tribunal reaffirmed that the appeal was indeed maintainable, as the decision by the Central Government was subject to judicial scrutiny.

3. Nature of the Decision by the Central Government:

The Tribunal deliberated on whether the Central Government's decision was legislative or quasi-judicial. It determined that the decision was quasi-judicial in nature, requiring adherence to principles of natural justice and a reasoned order. The Tribunal cited Supreme Court judgments, emphasizing that even if the decision was considered legislative, it would fall under conditional legislation, necessitating compliance with procedural fairness and reasoned decision-making.

4. Compliance with Principles of Natural Justice and Requirement for a Reasoned Order:

The Tribunal highlighted that the Central Government's decision lacked reasons and did not comply with the principles of natural justice. It underscored the necessity for the Central Government to record reasons when rejecting the designated authority's recommendation for anti-dumping duty, as mandated by the Supreme Court in various judgments. The Tribunal held that the absence of reasons and the failure to provide an opportunity for the domestic industry to respond to tentative reasons constituted a violation of natural justice.

5. Interim Protection for the Appellant:

The appellant sought interim protection similar to that granted by the Delhi High Court in related cases. The Tribunal agreed to provide interim relief by directing provisional assessment of imports of the subject goods pending a fresh decision by the Central Government. This interim measure was intended to protect the appellant's interests without affecting the final outcome of the reconsideration process.

Conclusion:

The Tribunal set aside the office memorandum dated 26.05.2022, remitting the matter to the Central Government for reconsideration of the designated authority's recommendation in light of the Tribunal's observations. It ordered provisional assessment of imports until a final decision is made, ensuring compliance with principles of natural justice and a reasoned decision-making process. The appeal was allowed to the extent indicated, with directions for effective compliance by the Central Government.