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TMI Blog2022 (11) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... tion than the word 'in', making an order of determination as regards the existence, degree and effect of any subsidy or dumping amenable to an appeal to the Tribunal under section 9C of the Tariff Act - It would be seen that prior to 01.08.2019, an appeal would lie to the Tribunal under section 9C of the Tariff Act against the order of determination regarding the existence, degree and effect of any subsidy or dumping in relation to import any article. There is, therefore, no difference in the meaning of the expression 'in respect of or 'regarding', and an order of determination concerning the existence, degree and effect of any subsidy or dumping would give a cause for filing an appeal before the Tribunal. The designated authority performs functions under the Tariff Act on behalf of the Central Government and not as an independent authority. Section 9(C) of the Tariff Act does not restrict the right of appeal to specific category of orders, except that the orders should determine the existence, degree and effect of subsidy or dumping in relation to imports of articles in India. The provisions of section 9(C) of the Tariff Act conferring right to appeal hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the designated authority has objectively considered all the relevant factors on the basis of the evidence led by the parties - There is a clear lis between the domestic industry on the one hand and the foreign exporter and importers on the other hand since the domestic industry desires anti-dumping duty to be imposed for which purpose investigation is carried out by the designated authority, but the foreign exporters and importers resist the imposition of anti-dumping duty. For exercise of such power, a detail procedure has been provided in the Tariff Act, the 1995 Anti Dumping Rules or the 1997 Safeguard Rules. The Rajasthan High Court in JK. INDUSTRIES LTD. VERSUS UNION OF INDIA [ 2005 (4) TMI 76 - HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ] also held that the nature of delegated legislation as contemplated under section 9A of the Tariff Act squarely falls in the third category of conditional legislative function pointed out by the Supreme Court in K. Sabanayagam [ 1997 (11) TMI 520 - SUPREME COURT ], as a result of which the excise has to be undertaken not on a subjective satisfaction of the delegatee but objectively on facts. While examining the validity of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed authority in the final findings for imposition of anti-dumping duty. If the Central Government forms a prima facie opinion that the final findings of the designated authority recommending imposition of anti-dumping duty are not required to be accepted then tentative reasons have to be recorded and conveyed to the domestic industry so as to give an opportunity to the domestic industry to submit a representation. Though the Tariff Act and the 1995 Anti-Dumping Rules or the 1997 Safeguard Rules do not provide for such an opportunity to be provided to the domestic industry, but the principles of natural justice would require such an opportunity to be provided. Non communication of the decision of the Central Government on the recommendation made by the designated authority - HELD THAT:- Section 9A of the Tariff Act provides that where any article is exported by an exporter or producer from any country or territory 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 anti-dumping duty not exceeding the margin of dumping in relation to such article - In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent did not issue the notification for imposition of anti-dumping duty. The relief, therefore, that has been claimed in most of the appeals is that the office memorandum issued by the Ministry of Finance, Department of Revenue, Tax Research Unit conveying the decision of the Central Government not to impose antidumping duty proposed in the final findings be set aside and a direction be issued to the Central Government to issue a notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority. In few appeals, such an office memorandum has not been issued by the Central Government, though three months have expired from the date of publication of the final findings of the designated authority and these appeals are Anti-Dumping Appeal No's. 51836 of 2021, 51877 of 2021, 51922 of 2021, 51923 of 2021, 51924 of 2021, 51925 of 2021, 51926 of 2021, 52100 of 2021, 52101 of 2021, 50017 of 2022, 50060 of 2022 and 50271 of 2022. 2. It also needs to be noted that the Anti-Dumping Appeal filed by Sterlite Technologies Ltd. relates to imposition of safeguard duty under section 8B of the Tariff Act. The Director General (Safeguard) had issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs allegedly causing injury to the domestic industry, the Authority notes that it has appropriately dealt with the issues raised in relevant paragraphs of these findings. After examining the submissions made by the interested parties and issues raised therein and considering the facts available on record, the Authority concludes that: (a) The Applicant constitutes domestic industry under Rule 2(b) of the Rules and considers that the application satisfied the criteria of standing in terms of Rule 5(3) of the Rules. (b) xxxxxxxxxxx. (c) xxxxxxxxxxx. (d) The Authority has calculated dumping margin on weighted average basis for all the responding exporters. (e) xxxxxxxxxxx. (f) xxxxxxxxxxx. (g) xxxxxxxxxxx. (h) Considering the normal value and export price for subject goods, the dumping margins for the subject goods from subject countries have been determined, and the margins are significant. (i) The Domestic Industry has suffered material injury. The examination of the imports of the subject product and the performance of the domestic industry clearly shows that the volume of dumped imports from subject countries has increased in both absolute and relativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Ministry of Finance (Department of Revenue) Tax Research Unit Room No. 146(G), North Block, New Delhi, dated the 20th July, 2021 OFFICE MEMORANDUM Subject: Anti-Dumping Investigation concerning imports of Acrylonitrile Butadiene Rubber (NBR) originating in or exported from China PR, European Union (EU), Japan and Russia - reg The undersigned is directed to refer to your email dated 13th May, 2021 and the subject Final Findings issued by the Directorate General of Trade Remedies vide Final Findings No. 6/18/2020-DGTR dated the 12th May, 2021 in the subject antidumping investigation and to inform that the Central Government has decided not to impose the antidumping duty on imports of 'Acrylonitrile Butadiene Rubber (NBR)' originating in or exported from China PR, European Union (EU), Japan and Russia, proposed in the said Final Findings. Technical Officer, TRU (emphasis supplied) Sterlite Technologies Ltd. 6. The records reveal that the appellant, as a domestic industry, had filed an application before the Director General (Safeguard) under provisions of the Tariff Act, 1975 and the Customs Tariff (Identification and Assessment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Central Government not to impose safeguard duty. It is reproduced below: Ministry of Finance Department of Revenue Tax Research Unit *** Room No. 146-G, North Block, New Delhi, dated the 18th November, 2020 OFFICE MEMORANDUM Subject: Minutes of the Board of Safeguard on Preliminary Findings in respect of Safeguard investigation concerning import of Single Mode Optical Fibre-reg. The undersigned is directed to refer to the Final Findings dated 21st August, 2020 issued by the Directorate General Trade Remedies in the case of Safeguard investigation concerning import of 'Single Mode Optical Fibre' vide F. No. 22/5/2019 dated 21.8.2020. 2. In this regard, the undersigned is directed to state that the Central Government has examined the recommendation of Designated Authority and a decision has been taken to not accept the recommendation to impose safeguard duty @ 10% on imports of Single Mode Optical Fibre falling under customs tariff heading 9001 10 00. Deputy Commissioner/OSD Tax Research Unit (emphasis supplied) 8. The main contention that has been advanced by the learned counsel appearing for the appellants is that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal), in respect of the existence, degree and effect of- (i) any subsidy or dumping in relation to import of any article; or (ii) import of any article into India in such increased quantities and under such condition so as to cause or threatening to cause serious injury to domestic industry requiring imposition of safeguard duty in relation to import of that article. 14. Section 8B of the Tariff Act deals with power of Central Government to apply safeguard measures and the relevant portion is reproduced below: 8B. Power of Central Government to apply safeguard measures. (1) If the Central Government, after conducting such enquiry as it deems fit, is satisfied that any article is imported into India in such increased quantity and under such conditions so as to cause or threaten to cause serious injury to domestic industry, it may, by notification in the Official Gazette, apply such safeguard measures on that article, as it deems appropriate. (2) The safeguard measures referred to in sub-section (1) shall include imposition of safeguard duty, application of tariff-rate qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure III to these rules; and (ii) the date of commencement of such duty; 17. Rule 2 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 18. Rule 6 deals with the principles governing investigation and it is reproduced below: 6. Principles governing investigations.- (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dations to the Central Government as it deems fit under such circumstances. 19. Rule 10 deals with determination or normal value, export price and margin of dumping and it is reproduced below: 10. Determination of normal value, export price and margin of dumping- An article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstances the designated authority shall determine the normal value, export price and the margin of dumping taking into account, inter alia, the principles laid down in Annexure I to these rules. 20. Rule 11 deals with determination of injury and it is reproduced below: 11. Determination of injury.- (1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. (2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the determination of normal value, export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure. 24. Annexure-II to the 1995 Anti-Dumping Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, and causal link between dumped imports and such injury, shall inter alia, take the principles enumerated from (i) to (vii) of Annexure II under consideration. 25. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price. 26. Rule 4 of the 1997 Safeguard Rules that have been framed by the Central Government under section 8B(5) of the Tariff Act deals with the duties of the Director General. While rule 5 deals with initiation of investigation, rule 6 deals with the principles governing investigations. Rule 8 deals with determination of serious injury or threat of serious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing and likely demand supply scenario in the country; and Any other condition that may be considered relevant: Provided that the tariff rate quota applied shall not reduce the quantity of imports below that level of the recent period, which shall be the average of imports in the last three years for which statistics are available, unless a different level is deemed necessary to prevent or remedy serious injury; (c) tariff rate quota may be global or country specific; (d) specific tariff rate quota may be allocated to counties with substantial interest, considering the proportion of the share of imports of the article concerned into the country during a representative period, and having regard to all relevant factors which may have or are likely to affect the trade in the article; (e) in a case where the tariff rate quota is country specific, a residual tariff rate quota shall be provided for all other countries and in case the countries with specific tariff rate quota exhaust their specific tariff rate quotas, such countries may use the residual tariff rate quota available; (f) any unused tariff rate quota may be carried forward and added to the tariff ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle. Learned counsel underlined the significance of the aforesaid bold portion and submitted that the expression has been deliberately used by the Parliament in section 9C, unlike section 128 of the Customs Act 1962, wherein an appeal lies against any decision or order. The submission is that in view of the provisions of section 9A of the Tariff Act read with the provisions of the 1995 Anti-Dumping Rules, the power to investigate and determine the existence, degree and effect of any dumping in relation to import of any article vests with the designated authority and, therefore, by corollary, the final findings issued by the designated authority would constitute an order of determination in respect of the existence, degree and effect of any dumping in relation to import of any article. In support of this submission, learned counsel placed reliance upon the decision of the Delhi High Court in Jindal Poly Film Ltd. vs. Designated Authority-(2018) 362 E.L.T. 994 (Delhi). Learned counsel, therefore, submitted that the office memorandum issued by the Central Government can at best be described as an order or decision not to impose duty and it cannot in any manner be treated as an or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination' qualifies the word 'order' thereby restricting the right of appeal to those orders which are determinative and final. In the case of a negative opinion, the recommendation of the designated authority is a determinative opinion or order. In the case of a positive opinion, however, the final findings of the designated authority is neither determinative nor final, and no appeal lies against such order. In this connection reliance has been placed on the judgment of the Supreme Court in Saurashtra Chemicals Ltd. vs. Union of India - 2000 (118) E.L.T. 305 (S.C.). 32. Learned counsel for the appellants also placed reliance upon the judgment of the Delhi High Court in Jindal Poly Film and submitted that if the Central Government accepts the recommendation of the designated authority, a notification is issued for the imposition of antidumping duty, which is a composite determinative order in respect of the existence, degree, and effect of dumping, against which an appeal lies to the Tribunal, but if the Central Government decides to reject the recommendation, then there is no occasion to issue a notification, and an office memorandum is issued containing the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken under rule 18 of the 1995 Anti-Dumping Rules within a period of three months from the date of publication of the final findings by the designated authority. 37. It would, therefore, be necessary to examine section 9C of the Tariff Act. It provides that an appeal against the order or determination shall lie to the Tribunal, in respect of the existence, degree and effect of any subsidy or dumping in relation to import of any article. Sub-section (1) of section 9A of the Tariff Act provides that where any article is exported by an importer or producer from any country or territory 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. 'Margin of dumping' means the difference between the export price of the article and the normal value. Sub-section (6) of section 9A of the Tariff Act provides that the margin of dumping, as referred to in sub-section (1), shall be ascertained and determined by the Central Government, after such enquiry as it may consider necessary and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will nevertheless be a tax in respect of the premises or building used for the business. I.T. Commissioner vs. Chunilal, - AIR 1968 Pat 364 at 367. 41. It is, therefore, clear that the expression 'in respect of' is of wide connotation than the word 'in', making an order of determination as regards the existence, degree and effect of any subsidy or dumping amenable to an appeal to the Tribunal under section 9C of the Tariff Act. 42. The provisions of section 9C of the Tariff Act, as they existed prior to 01.08.2019, are as follows: (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 Appellant Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellant Tribunal). 43. It would be seen that prior to 01.08.2019, an appeal would lie to the Tribunal under section 9C of the Tariff Act against the order of determination regarding the existence, degree and effect of any subsidy or dumping in relation to import any article. The word ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnated authority, when it performs the functions under the Tariff Act, acts for and on behalf of the Central Government and not as an independent and a distinct third party. 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. the Tariff Act read with the mandate of the 1995 Anti-Dumping Rules. 47. It is in this context that the Delhi High Court observed that a provision conferring right to appeal has to be read in a manner that it effectuates the legislative purpose in a reasonable, practical and liberal manner since it is remedial and the right to appeal should not be restricted or denied unless such a construction is unavoidable. Thus, the right to appeal conferred should not be forfeited or abandoned unless the Statute so states and can be inferred on reasonable and practical interpretation. Section 9C of the Tariff Act should, therefore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or producers who would have the right to appeal if the Central Government accepts the recommendation of the designated authority and issues a notification for imposition of Anti Dumping Duty. 51. As noticed above, the designated authority performs functions under the Tariff Act on behalf of the Central Government and not as an independent authority. Section 9(C) of the Tariff Act does not restrict the right of appeal to specific category of orders, except that the orders should determine the existence, degree and effect of subsidy or dumping in relation to imports of articles in India. The provisions of section 9(C) of the Tariff Act conferring right to appeal have to be read in a manner that it effectuates the legislative purpose in a reasonable, practical and liberal manner since it is remedial and the right to appeal should not be restricted or denied unless such a construction is unavoidable. The right to appeal should not be denied, unless the Statute so specifically states nor should it be read so as to frustrate the purpose of providing an appellate remedy in relation to orders determining existence, degree and effect of any subsidy or dumping of articles imported into I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile an appeal to the Tribunal against this decision of the Central Government since it would be in respect of the existence, degree and effect of any subsidy or dumping in relation to import of the article. The determination contemplated in rule 18 of the 1995 Anti-Dumping Rules would include a negative determination as well as a 'nil' determination. Further, the determination of the existence, degree and effect of dumping or subsidy or surge in imports, includes determination of non existence of dumping, subsidy or surge in imports. 56. This precise issue as to whether an appeal would be maintainable under section 9C of the Tariff Act was examined by the Tribunal in Jubilant Ingrevia Limited vs. Union of India [Anti-Dumping Appeal No. 50461 of 2021 decided on 27.10.2021] and it was held: 18. It is, therefore, clear that a discretion is vested in the Central Government to either impose anti-dumping duty or not impose anti-dumping duty. In the present case, an Office Memorandum dated 14.12.2020 was issued in connection with the final findings of the designated authority notified on 25.08.2020 and it states that the Central Government has decided not to impose anti-d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (202) E.L.T. 23 (S.C.) and it was held that the functions performed by the Central Government are quasi-judicial in nature and not legislative. The observations are as follows: 37. We are of the opinion that the nature of the proceedings before the DA are quasi-judicial, and it is well-settled that a quasi-judicial decision, or even an administrative decision which has civil consequences, must be in accordance with the principles of natural justice, and hence reasons have to be disclosed by the authority in that decision vide S.N. Mukherjee v. Union of India, - 1990 (4) SCC 594. 38. We do not agree with the Tribunal that the notification of the Central Government under Section 9A is a legislative Act. In our opinion, it is clearly quasi-judicial. The proceedings before the DA is to determine the lis between the domestic industry on the one hand and the importer of foreign goods from the foreign supplier on the other. The determination of the recommendation of the DA and the Government notification on its basis is subject to an appeal before the CESTAT. This also makes it clear that the proceedings before the DA are quasi-judicial. (emphasis supplied) 61. The afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Customs Tariff Act. The rate at which the import duty is to be levied is a matter of policy. The rate of duty is determined by the schedule to the Customs Tariff Act and is subject to such exemption as may be granted under that Act. Thus the rate of import duty which is imposed is a legislative act and is thus not amenable to the jurisdiction of the MRTP Commission. A party cannot contend before the MRTP Commission that the rate of duty is too high or too low. In fact, such a challenge is hardly likely to succeed in a Court of law and the question of the MRTP Commission having such a jurisdiction does not arise. 50. Apart from the rate of duty the value of the goods imported has to be determined for the purpose of levy of duty. The customs authorities are required to determine whether the value of the goods imported has been correctly declared. In case of wrong valuation, the customs authorities can determine the correct value and levy duty thereon. Normally the goods are valued at the price at which they are actually purchased. Then that will be the value at which the duty will be imposed. It is not the case of the respondents that the appellants are guilty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Anr. v. Kumho Petro Chemicals Company Ltd. Anr., - (2017) 8 SCC 307 : 2017 (351) E.L.T. 65 (S.C.), where it was held that the exercise undertaken by the Central Government under sunset review was somewhat different from the initial exercise to determine whether Anti-dumping duty was to be levied or not. In case of sunset review the focus would be on the issue whether withdrawal of the Anti-dumping duty would lead to continuation or recurrence of dumping as well as injury to the domestic industry. In this context reference was made to Reliance Industries Limited v. Designated Authority Ors., -(2006) 10 SCC 368 : 2006 (202) E.L.T. 23 (S.C.), wherein it has been held that the proceedings before the Designated Authority were quasi-judicial and therefore must be in accordance with the principles of natural justice. Hence, reasons must be disclosed by the Designated Authority for its decision. It was also observed that the notification of the Central Government under Section 9A would not be a purely legislative act, but a quasi-judicial in nature. In the case of Alembic Ltd. (supra) the Gujarat High Court had noticed Haridas Exports v. All India Float Glass Manufacturers' Asso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res; (iii) The object of anti-dumping and allied duties is to offset the injurious effect of international price discrimination, while customs duties have implications for the government revenue; (iv) Anti-dumping duties are not necessarily in the nature of a tax measure since the authority is empowered to suspend these duties in case of an exporter offering a price undertaking. Thus, such measures are not always in the form of duties/taxes; (v) Anti-dumping and anti-subsidy duties are levied against exporter/country since they are country-specific and exporter specific as against the customs duties which are general and universally applicable to all imports, irrespective of the country of origin and the exporter. Further, customs duties are not levied as a result of an investigation, to determine the extent of dumping by an exporter in the past. The anti-dumping duties are after an extensive investigation and are intended to correct an unfair trade practice. It is a measure for shielding domestic producers from unfair competition; and (vi) Thus, there are basic conceptual and operational differences between the customs duty and the antidumping duty. In fact, anti-dumpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial activity . Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must sometimes be drawn as different legal fights and consequences may ensue. The distinction between the two has usually been expressed as 'one between the general and the particular'. 'A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy'. 'Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.' It has also been said Rule making is normally directed toward the formulation of requirements having a general application to all members of a broadly identifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. 73. It is while exercising the aforesaid powers conferred under section 36 of the Payment of Bonus Act that the State of Tamil Nadu issued a government order directing that the Tamil Nadu Housing Board would be exempted from all the provisions of the Payment of Bonus Act. The Supreme Court noticed that section 36 was a piece of conditional legislation and in the case of conditional legislation, a legislation would be complete in itself but its operation is made to depend on the fulfillment of certain conditions and what is delegated to an outside authority is the power to determine, according to its own judgment, whether or not those conditions are fulfilled. The Supreme Court drew a distinction between conditional legislation and delegated legislation proper where some portion of the legislative power of the legislature is delegated to an outside authority, but pointed out that in either case the delegatee may in a given case, be required to consider the view point of rival parties likely to be affected by the exercise of such power. 74. The Supreme Court further pointed out that conditional legislation can broadly be classified into three categories. The first categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., the ancillary function of laying down details in favour of another for executing the policy of the statute enacted. The distinction between the two exists in this that whereas conditional legislation contains no element of delegation of legislative power and its, therefore, not open to attack on the ground of excessive delegation, delegated legislation does confer some legislative power on some outside authority and is therefore open to attack on the ground of excessive delegation . In this connection we may also refer to a decision of this Court rendered in the case of Sardar Inder Singh v. State of Rajasthan [AIR 1957 SC 510] wherein it is laid down that when as appropriate Legislature enacts a law and authorities an outside authority to bring it into force in such area or at such time as it may decide, that is conditional and not delegated legislation. ****** 16. ******The aforesaid observations clearly show that even while exercising a delegated legislative function or while acting in exercise of conditional legislative power the delegate may in a given case be required to consider viewpoint of rival parties which may be likely to be affected by the exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rebutted by the other side who would be adversely affected if such exercise of power is undertaken by the delegate. In such a third category of cases of conditional legislation the Legislature fixes up objective conditions for the exercise of power of by the delegate to be applied to past or existing facts and for deciding whether the rights or liabilities created by the Act are to be denied or extended to particular areas, persons or groups. This exercise is not left to his objective satisfaction nor it is a mere ministerial exercise. Section 36 of the Act with which we are concerned falls in this third category of conditional legislative functions. A mere look at the said Section shows that before an appropriate Government can form its opinion regarding grant of partial of full exemption to any establishment or class of establishments which are otherwise already covered by the sweep of the Act the following factual conditions must be found to have existed at the relevant time to enable the delegate to exercise its powers under the Act: ****** 23. ******To instill life in such an exercise and to make it comprehensive and kicking it has to be held that before an appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be a piece of conditional legislation falling under the third category of conditional legislations pointed out by the Supreme Court in K. Sabanayagam. This is for the reason that in the scheme of the Tariff Act and the 1995 Anti-Dumping Rules, the Central Government has necessarily to examine all the relevant factors prescribed in the Tariff Act and the Rules for coming to a conclusion whether anti-dumping duty has to be levied or not. It cannot be that it is only the designated authority that is required to follow the procedure prescribed under the Tariff Act and the Rules framed thereunder for making a recommendation to the Central Government, for while taking a decision on the recommendation made by the designated authority in the final findings the Central Government would have to examine whether the designated authority has objectively considered all the relevant factors on the basis of the evidence led by the parties. This would be more clear from the provisions of section 9A(6) of the Tariff Act which provide that the margin of dumping, which is a relevant factor, has to be ascertained and determined by the Central Government, after such inquiry as it may consider necessary. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hatever material the Food (Health) Authority had, before taking a decision on the articles in question, ought to have been presented to the appellants who are likely to be affected by the ban order. The principle of natural justice requires that they should have been given an opportunity of meeting such facts. This how not been done in the present case. For this reason also, the notification is bad in law. 78. It will be evident from the aforesaid judgments that the Central Government, while acting as a delegated legislative body, performs two distinct and separate functions in the context of the levy of antidumping and safeguard duty. The first is the function of framing Rules such as the Anti-Dumping Rules 1995 or the 1997 Safeguard Rules, which function is clearly legislative. The second function is the making of a determination under rule 18 of the Anti-Dumping Rules 1995 or rule 12 of the 1997 Safeguard Rules, which function is quasi judicial in nature. While the exercise of the legislative function of framing Rules is not appealable before the Tribunal, the second function of making a determination is expressly made appealable under section 9C of the Tariff Act. The funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that though a discretion is vested with the Central Government to accept or not accept the final findings of the designated authority, but such a discretion has to be exercised in a judicious manner by a reasoned order in accordance with the principles of natural justice, more particularly because an appeal would lie to the Tribunal against the determination made by the Central Government. The relevant portion of the decision is reproduced below: 43. ****** No reasons have been recorded as to why the Central Government decided not to impose anti-dumping duty. No doubt a discretion vested with the Central Government to either accept or not accept the final findings of the designated authority, but that discretion was required to be exercised in a judicious manner by a reasoned order in accordance with the principles laid down by the Supreme Court in S.N. Mukherjee, Shri Sitaram Sugar Mills Ltd., Hindustan Tin Works and Kranti Associations. Recording of reasons assumes more importance in the present case, because of the fact that the Tariff Act and the 1995, Anti-Dumping Rules under which such a discretion is required to be exercised by the Central Government, themselves prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favorable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer . The aforesaid conclusion, which we have arrived at, is also in consonance with the underlying principle enunciated by this Court in the case of Institute of Chartered Accountants (supra). While agreeing with the decision in Ram Kishan's case (supra), we are of the opinion that the contrary view expressed in S.S. Koshal and M.C. Saxena's cases (supra) do not lay down the correct law. (emphasis supplied) 84. In view of the aforesaid decision of the Supreme Court in Punjab Nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government has also not stated or placed such an office memorandum. 87. 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 cases would also fall in the category of those cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty. 88. The inevitable conclusion, therefore, that follows from the aforesaid discussion 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 and the matter wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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