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TMI Blog2022 (12) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Learned counsel appearing for the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated on 14.01.2020 for imposition of anti-dumping duty on imports of Dimethyl Formamide [ the subject goods ] originating in or exported from Saudi Arabia and China PR [ the subject countries ] , the Central Government did not issue the notification for imposition of anti-dumping duty even though three months had expired from the date of publication of final findings. 2. The domestic industry had 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 14.01.2020 was thereafter issued for initiation of sunset review investigation. The period of investigation was from 01.01.2019 to 30.09.2021 and the injury examination period was from April 2016 to March 2019 and the period of investigation. 3. 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 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Desiganted Authority in view of the serious findings recorded concerning dumping and consequent injury having been suffered by the Appellant pending and subject to the final disposal and outcome of this appeal, and/or; c) The Respondent No. 1 may be directed to communicate its decision concerning Final Finding Notification F. No. 6/37/2019-DGTR issued by the Respondent No. 2, Designated Authority, in the matter of anti-dumping investigation concerning imports of Dimethyl Formamide‟ (DMF) originating in or exported from China PR and Saudi Arabia dated 11th January, 2021; and d) The Respondent No. 1 may be directed to reconsider its decision if it has decided not to impose the duties as recommended vide Final Finding Notification F. No. 6/37/2019-DGTR holding that no reasons are shown for such non-levy and the matter may kindly be remanded back to the R-1 for fresh/reconsideration. e) Any other order may be passed as deemed fit in the facts and circumstances of the case. 6. The contention that has been advanced by the learned counsel appearing for the appellant is based on rule 18 of the 1995 Rules which provide that Central Government may, within three m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a further period of five years and such further period shall commence from the date of order of such extension. 11. Sub-section (6) of the section 9A of the Tariff Act provides that the margin of dumping has to be ascertained and determined by the Central Government, after such enquiry as may be considered necessary and the Central Government may, by notification in the Official Gazette, make rules for the purpose of this section. 12. Section 9C of the Tariff Act deals with Appeal and sub-section (1) of section 9C is reproduced below: 9C. Appeal (1) An appeal against the order of determination or review thereof shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. (5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality. (6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation ora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of dumped imports into an isolated market, and (ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market. 19. Rule 17 deals with final findings. It is reproduced below: Final findings.- (1) The designated authority shall, 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 to the Central Government its final finding (a) as to, - (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India; (iii) a casual link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy: xxxxxxx (b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. 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. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum. 27. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 also submitted that the final findings are in the nature of recommendation and anti-dumping duty can be imposed only by the Central Government by issuance of a notification. The notification only would, therefore, gives a cause of action for filing an appeal before the Tribunal. According to the learned counsel, the actual challenge by the domestic industry or the importers/exporters is to the determination contained in the final findings issued by the designated authority since the reasoning as to the existence, degree and effect of dumping is only found in the final findings of the designated authority and in an appeal before the Tribunal, the challenge is always made to the final findings of the designated authority. Learned counsel pointed out that the consequential notification is also challenged, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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