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TMI Blog2022 (12) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... termine 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. 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? - HELD THAT:- 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 conveyin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final findings were issued by the designated authority on 30.08.2017 and a recommendation was made to the Central Government for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the basis of the said final findings of the designated authority, the Central Government issued a notification dated 17.10.2017 imposing anti-dumping duty for a period of 5 years w.e.f. 11.01.2017. 3. The domestic industry, therefore, filed an application before the designated authority for initiation of a sunset review investigation concerning imports on the subject goods originating in or exported from the subject countries. A public notice dated 26.07.2021 was thereafter issued for initiation of sunset review investigation. The period of investigation was from 01.10.2019 to 31.03.2021 and the injury examination period was from 2017 to 2020 and the period of investigation. 4. Oral hearings were conducted and the parties that attended the oral hearings were advised to file written submissions on the views expressed orally, followed by rejoinders, if any. As contemplated under rule 16, the essential facts of the investigation were disclosed to the k ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate opportunity was given to the domestic industry, exporters, importers 'users and other interested parties to provide information on the aspects of dumping, injury and the causal link and likelihood of continuation or recurrence of dumping and injury. Having initiated and conducted the sunset review into dumping, injury and causal link and likelihood of continuation or recurrence of dumping and injury in terms of provisions laid down under the Rules. be Authority is of the view that continued imposition of anti-dumping duty is required on subject goods from subject countries. 144. The Designated Authority accordingly considers it appropriate to recommend continuation of existing quantum and form of anti-dumping duty on the imports of subject goods from subject countries. 5. The Central Government did not issued any notification within a period of three months from the date of recommendation made by the designated authority for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the other hands, the Central Government issued a notification dated 13.01.2022 rescinding the notification dated 17.10.2017 earlier issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India and 38 others [ Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022 ] , the Central Government has to record reasons if it decides not to impose anti-dumping duty despite a recommendation made by the designated authority in the final findings. 8. On the other hand, learned counsel for the respondents submitted that the appeal would not be maintainable under section 9C of the Customs Tariff Act 1975 [ the Tariff Act ] and that it would not be necessary for the Central Government to record reasons if it does not agree with the recommendation made by the designated authority since the Central Government performs legislative functions. 9. In order to examine these submissions it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 Anti-Dumping Rules. 10. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country 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-dumpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty; 16. Rule 2 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 17. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances. 18. 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. 19. 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 dom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the 1995 Anti-Dumping Rules deals with the principles governing 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. 23. 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. 24. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price. 25. It is keeping in mind the aforesaid legal provisions that the submissions advanced by the learned counsel for the appellant and the learned counsel for the respondents, as also the learned authorized representatives appearing for the respondent Union of India have to be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Chemical and Petrochemicals Manufactures Association vs. Union of India and 55 others [ Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022 ] . 29. 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 appeal under section 9C of the Tariff Act 30. The submission advanced on behalf of the respondents is that an appeal under section 9C of the Tariff Act shall lie only against an order of determination or review thereof, in respect of the existence, degree and effect of any subsidy or dumping in relation to import of any article or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government pursuant to the recommendations made by the designated authority would, in view of the provisions of rule 18 of the 1995 Rules, would mean that the Central Government has taken a decision not to impose any antidumping duty. It has been held in Apcotex Industries that the appeal would be maintainable. The present appeal would, therefore, clearly be maintainable. Whether reasons have to be recorded by the Central Government 32. It has been held by this Tribunal in Apcotex Industries and Chemical and Petrochemicals that 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. Conclusion 33. Thus, for all the reasons stated above, the matter is remitted to the Central Government for taking a decision on the recommendation made by the designated authority in the light of the decisions of the Tribunal in Apcotex Industries and Chemical and Petrochemicals . The appeal is disposed of, accordingly. (Order Pronounced on 20.12.2022 ) - - TaxTMI - TMIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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