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TMI Blog2018 (9) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority, the final finding of the Designated Authority becomes the final finding and "order of determination" passed by the Central Government for the purpose of Section 9C of the CT Act - the statute i.e. Section 9C would be interpreted in a manner that it would effectuate and not frustrate the purpose of the legislation that a party should have a right of appeal against the quasi judicial determination in relation to orders determining existence, degree and effect of any subsidy or dumping of articles imported into India. Section 9C does not state and provide that an appeal is maintainable against customs notification. However, it refers to and states that an appeal would lie against the "order of determination" regarding existence, degree and effect of dumping. The words "existence, degree and effect of dumping" are significant. The final finding of the Designated Authority in the said aspect can be in positive i.e. when it recommends imposition of anti-dumping duty or may be in negative when it finds and holds that no anti-dumping should be imposed. Upon negative finding by the Designated Authority no further action is contemplated and required by the Central Government - Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On 17th March, 2016, the petitioner had filed an application for initiation of anti-dumping investigation on imports of Non-Woven fabric originating and exported from the China PR, Malaysia, Indonesia, Thailand and Saudi-Arabia on the ground that they were causing injury to the domestic industry. Thereupon, the Designated Authority had issued public notice on 15th June, 2016 in terms of Rule 5 of the Rules to determine existence, degree and effect of alleged dumping and to decide whether to recommend and specify the amount of anti-dumping duty that would be adequate to remove injury to the domestic industry. The period of investigation selected by the Designated Authority was 9 months from 1st July, 2015 to 31st March, 2016. Interested parties had consequently submitted information and evidences. On 2nd August, 2017, the Designated Authority had issued disclosure statement under Rule 16 containing essential facts under consideration that would form basis of the final findings. However, by the impugned order dated 2nd September, 2017, the Designated Authority had issued termination order holding that the product under consideration being exported to India from the subject countries ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when because of the particular market s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eviable when it was imported into India. Explanation.-For the purposes of this section, the expressions "hundred per cent export-oriented undertaking", "free trade zone" and "special economic zone" shall have the meanings assigned to them in Explanation 2 to subsection (f) of section 3 of Central Excise Act, 1944. (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that- (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the antidumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety days from the date of notification under that sub-section, and notwithstandin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s made thereunder, relating to, the date for determination of rate of duty, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act." xxx "9C. (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (hereafter referred to as the Appellate Tribunal). [(1A) An appeal under sub-section (1) shall be a accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the appellate Tribunal,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees] (2) Every appeal under this section shall be filed within ninety days of the date of order under appeal: Provided that the Appellate Tribunal may entertain any appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty; (e) to review the need for continuance of anti-dumping duty. xxx 14. Termination of investigation.- The designated authority shall, by issue of a public notice, terminate an investigation immediately if- (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation; (c) it determines that the margin of dumping is less than two per cent of the export price; (d) it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, unless, the countries which individually account for less than three per cent of the imports of the like product, collectively account for more than seven per cent of the import of the like product; or (e) it determines that the injury w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e article under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned: Provided further that the designated authority shall determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 18. Levy of duty.- (1) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed, if any. xxx 23. Review.- (1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping which is causing injury. (1A) The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiative or upon request by any interested party who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or varied and is therefore no longer warranted. (1B) Notwithstanding anything contained in sub-rule (1) or (1A), any definitive anti-dumping duty levied under the Act, shall be effective for a period not exceeding five years from the date of its imposition, unless the designated authority comes to a conclusion, on a review initiated before that period on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent intends and wants to impose anti-dumping duty. We need not refer to the Explanation for the purpose of present adjudication. Similarly, reference to Sub-Section 1(a) is not required as it would come into operation in cases of circumvention of anti-dumping duty imposed under Sub-Section 1. Sub-section 2, however, is relevant and states that the Central Government can, pending the "determination" under Section 9A, i.e. in the interlude till "determination" of the existence, degree, and effect of subsidy/dumping in relation to any article imported into India, impose anti-dumping duty on importation of an article into India, on provisional estimate of such value and margin. The provision prescribes the conditions that should be satisfied, the formula for imposition of provisional or interim anti-dumping duty pending investigation. Sub-Section 5 states that anti-dumping duty imposed under Section 9A, unless otherwise revoked earlier, shall cease to be effective on the expiry of five years from the date of imposition. Two provisos empower the Central Government to review imposition of duty upon such cessation and confers power to extend anti-dumping duty for a period not exceeding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of anti-dumping duty, which if levied would remove the injury. Clause (e) relates to review of the continuation of anti-dumping duty. 13. Clause (a) in Rule 4 is significant. The clause defining the duties of the Designated Authority, uses the same and identical expressions as used in Section 9C of the CT Act i.e. existence, degree and effect of any alleged dumping in relation to import of any article. Designated Authority has the power to carry out investigation to identify the article liable for anti-dumping duty and submit its finding, provisional or otherwise to the Central Government, as to the normal value, the export price and the margin of dumping in relation to the article under investigation, i.e. different aspects referred to in Section 9A of the CT Act. Designated Authority has the power to examine the injury or threat to injury to industries established in India or material retardation to the establishment of such industry in India consequent upon import of such articles from specified countries. Clause (d) to Rule 4 states that the Designated Authority is to then make recommendation to the Central Government on the amount of anti-dumping duty equal to the margin of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng shall contain all information on the matter of facts and law and reasons that led to the conclusion. Final finding is required to contain information mentioned in Clauses (i) to (v) which includes consideration relevant to the injury determined and the main reasons leading to the determination. Designated Authority as per Sub-rule 3 is to determine individual margin of dumping for each case, the exporter or producer concerned of the article under investigation. Sub-rule 4 states that the Designated Authority shall issue public notice regarding its finding. In terms of Rule 17 the report of the Designated Authority has to be exhaustive and comprehensive covering all aspects relating to and relevant for determining whether the Designated Authority recommends levy antidumping duty or gives a negative finding. 17. Rule 18 is significant and is of considerable importance for the decision of the issue in question. Sub-rule (1) states that Central Government may within three months of publication of the finding by the Designated Authority under Rule 17 impose by way of notification in the official gazette, anti-dumping duty which shall not exceed the margin of dumping determined under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commendatory and an appeal lies against the determination which is to be made by the Central Government. Reliance is placed upon the judgment of the Appellate Tribunal in M/s. Panasonic Energy India Co. Ltd. & Ors. Vs. Union of India (Anti- Dumping Appeals No. 50452-50455 of 2017) that if there is negative finding under Rule 17 by the Designated Authority, the Appellate Tribunal does not have jurisdiction to entertain the appeal under Section 9C of the CT Act. In such scenario aggrieved party would have to file a writ petition and the appeal under Section 9C would not be maintainable. It is submitted that there is a rationale behind not providing statutory appeal against the negative finding as the Designated Authority is an expert in the field. Alternative remedy needs to be efficacious and where Designated Authority has violated the principles of natural justice and acted in complete defiance of anti-dumping rules, a writ petition should be entertained. It is alleged and asserted that there was violation of the Rules and the final finding of the Designated Authority is at variance with the procedure prescribed under the Statute. Reliance is placed upon U.P. State Spinning Co. Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Saurashtra Chemicals Limited (Supra). It is submitted that the decision of the Appellate Tribunal in the case of M/s.Panasonic Energy India (Supra) is bad in law, based upon incorrect understanding of the ratio in Saurashtra Chemicals Limited (Supra). Reliance is placed on the judgment of the Gujarat High Court in Alembic Ltd. Vs. Union of India [Special Civil Application No.12142/2011 decided on 29th December, 2011]. Findings and reasoning. 21. We would first re-produce the short order passed by the Supreme Court in the case of Saurashtra Chemicals Limited (Supra), which is as under: "We see no reason whatsoever to entertain these special leave petitioners. It is perfectly clear now that we have seen the provisions of the Act that the order of the Designated Authority is purely re-commendatory. The appeal that lies is against the determination and that determination has to be made by the Central Government. For this reason, we decline to exercise jurisdiction under Article 136 of the Constitution of India and dismiss the special leave petitions." 22. We agree with the counsel for the third respondent that the aforesaid order proceeds and gives an answer to the specific sit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in the case of Saurashtra Chemicals Limited (Supra), was distinct and in the specific facts of the said case for the recommendation of the Designated Authority on imposition of the anti-dumping duty was still inchoate and had not attained finality. The Central Government may or may not have accepted the recommendation and therefore, there was no determination. 25. We may notice that in Jindal Stainless Ltd. (Supra), the Single Judge had referred to the decision of the Calcutta High Court in Shew Kumar Agarwal Vs. Union of India, 2002 (141) ELT 312 (Cal) holding that the appellate remedy is available against the "order of determination" as well as review, and both are disjunctive to each other. Pertinently, an appeal could be filed against the order of review passed by the Designated Authority, regarding existence, degree and effect of anti-dumping duty. Judgment in the case of Jindal Stainless Ltd. (Supra), also elucidates and expounds the difference between the power of judicial review in a writ petition and the appellate power and remedy, which is wider and more comprehensive and therefore is more liberal and efficacious. 26. Now we will deal with the nature and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent. It has been bestowed with the powers vested and conferred on the Central Government under the CT Act. The Designated Authority, when it performs the functions under the CT Act, it is acting for and on behalf of the Central Government and not as an independent and a distinct third party. Designated Authority is no different from the Central Government. 28. If the aforesaid position is clear, then it is not difficult to appreciate and interpret the provisions for appeal under Section 9C, which refers to the "order of determination" as to existence, degree and effect of any alleged dumping in relation to import of an article, which are exactly the areas of investigation and form the essence of the duties performed and the order passed by the Designated Authority. The role of the Designated Authority can, therefore, clearly be connected with the power and role of the Central Government under the main enactment i.e. CT Act read with the mandate of the Rules. In case of negative opinion or termination of proceedings, the order passed is the 'order of determination", as it is the final order passed by the Central Government and no further "determination" is required and necessary, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. In this context, the Supreme Court had observed that levy or non-levy of anti-dumping is a legislative act. In Alembic Ltd. (Supra), the Gujarat High Court has observed that levy or non-levy of anti-dumping duty or any other duty under the CT Act, i.e. Customs Tariff Act, as explained in Haridas Exports (supra) was in the context of Monopolies and Restrictive Trade Practices Commission, whose jurisdiction has been invoked. Haridas Exports (supra) had held that Monopolies and Restrictive Trade Practices Act and the CT Act substantially operate in different fields and distinct spheres and there was no conflict between the two. We however, we do not perceive and accept any conflict between the opinion expressed in Reliance Industries Limited (supra) and Haridas Exports (supra) as they both refer to two different facets of the legislation in question, which requires both quasi judicial adjudication and on positive finding for imposition of anti dumping duty a delegated legislative enactment in the form of issue of notification. 31. On difference between legislative act and quasi-judicial act, reference can be made to the judgment of the Supreme Court in Mangalam Organics Limited Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... qual protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes." (emphasis supplied) The procedure prescribed by Section 9A of the CT Act and the Rules, conform to the fundamental tenets of transparency, openness and also responsiveness and accountability. 33. We would also like to refer to the decision of the Supreme Court in National Securities Depository Limited Vs. Securities and Exchange Board of India, (2017) 5 SCC 517. The decision had interpreted and examined the scope and ambit of appeal to the Securities Appellate Tribunal under Section 15-T of the Securities and Exchange Board of India Act, 1992. It was noticed that Securities and Exchange Control Board of India exercises powers when it makes rules and regulations, which are placed before the Parliament. It also exercises and passes administrative orders such as regulations. The exercise of legislative powers and administrative powers were outside the scope of appellate jurisdiction. However, exercise of quasi judicial powers and orders were amiable and could be made subject matter of appeal under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the quasi judicial determination in relation to orders determining existence, degree and effect of any subsidy or dumping of articles imported into India. 36. Section 9C does not state and provide that an appeal is maintainable against customs notification. However, it refers to and states that an appeal would lie against the "order of determination" regarding existence, degree and effect of dumping. The words "existence, degree and effect of dumping" are significant. The final finding of the Designated Authority in the said aspect can be in positive i.e. when it recommends imposition of anti-dumping duty or may be in negative when it finds and holds that no anti-dumping should be imposed. Upon negative finding by the Designated Authority no further action is contemplated and required by the Central Government. Contention of the petitioner that the "order of determination" would mean notification imposing anti dumping tax and not a negative final finding of the Designated Authority under Rule 17, which is not recommendatory but the final determination, is erroneous and bad in law. In case of negative determination the finding of the Designate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petition (C) No. 8717/2017, Outokumpu Oyj Vs. Union of India and Others, in which the expression "wholly without jurisdiction" as used in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 was examined and elucidated. The concept of jurisdiction or rather lack of it and its contours has been examined by the Supreme Court in Indian Farmers Fertilizer Cooperative Limited Vs. Bhadra Products, (2018) 2 SCC 534. The petitioner in the present case submits that there is violation of the procedural provisions and the mandate of the Rules has not been followed by the Designated Authority. No doubt, the aforesaid issues can be made subject-matter of judicial review, albeit we are not examining the power of judicial review or check exercised by Writ Court, but whether the order under challenge is an order being "wholly without jurisdiction". This difference must be kept in mind, for otherwise the restraint exercised on the principle of alternative efficacious remedy would become illusory and delusive. The question is whether the statutory appellate remedy is efficacious and more appropriate remedy. Yes it is, for the appellate power is wider, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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