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TMI Blog2023 (1) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuation of anti-dumping duty. The relief, therefore, that has been claimed in the appeal is that the office memorandum dated 07.02.2022 issued by the Ministry of Finance, Department of Revenue, Tax Research Unit conveying the decision of the Central Government not to impose anti-dumping duty proposed in the final findings be set aside and a direction be issued to the Central Government to issue a notification for continuation of antidumping duty, based on the recommendation made by the designated authority. 2. It transpires from the record that an application had been before the designated authority on behalf of the domestic industry for initiation of sunset review investigation under the provisions of the Tariff Act and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [the 1995 Anti-Dumping Rules] on imports of Wire Rod of Alloy or Non-Alloy Steel [the subject goods] originating in or exported from China PR [the subject country]. The designated authority, thereafter, issued a public notice dated 28.07.2021 to review the need for continued imposition of antidumping duty in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to third countries are at prices below the export price to India, which shows that Indian market is more price attractive to exporters from subject country. e. Historical trend of global steel prices show that steel prices are cyclical in nature and there is likelihood of injury to the domestic industry due to imports at low price when there is decline in global steel prices. f. Historical trend of export price of wire rod from China PR shows that the Chinese export prices are highly volatile and there is likelihood of injury to the domestic industry due to imports at low price when there is decline in Chinese export prices of wire rod. vii. Assessment conducted by the Authority leads to the conclusion that there is a likelihood of continuation/recurrence of dumping and injury to the domestic industry in the event of revocation of duty. viii. The Authority further notes that there is healthy competition in the Indian market and continuation of anti-dumping duty would not lead to monopolistic or oligopolistic situation in the Indian market for the subject goods. ix. Reference price-based duty in the present sunset review would ensure that users and importers of product und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of alloy or non-alloy steel" originating in or exported from China PR -reg. The undersigned is directed to refer to final findings on the above subject issued vide notification F. No. 7/17/2021-DGTR, dated the 28th October, 2021, wherein it was recommended to impose definitive antidumping duty on imports of "Wire rod of alloy or nonalloy steel", originating in or exported from China PR. 2. In exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, read with rules 18 and 23 of the Customs Tariff (Identification, Assessment and Collection of Antidumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government, after considering the aforesaid final findings of the designated authority, has decided not to accept the aforesaid recommendations. Technical Officer (TRU-I)" 7. The main contention that has been advanced by Shri Dhruv Gupta, learned counsel appearing for the appellant assisted by Shri Bhargav Mansatta is that the office memorandum, communicating the decision of the Central Government not to continue anti-dumping duty, despite a recommendation having been made by the designated authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sub-section (6) of section 9A and sub-section (2) of the section 9B of the Tariff Act, the Central Government framed the 1995 Anti-Dumping Rules. 13. The duties of the designated authority are contained in rule 4 and the relevant portion is reproduced below: "4. Duties of the designated authority.- xxxxxxxxxxx (d) to recommend to the Central Government- (i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty;" 14. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 15. 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:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nated authority only when it is subsequently reproduced in writing. (7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances." 16. 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." 17. Rule 11 deals with determinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of duty and the relevant portion is reproduced below: "18. Levy of duty.- (1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, antidumping duty not exceeding the margin of dumping as determined under rule 17." 20. Annexure-I to 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. 21. 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 Annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. Rules may have been framed by the Central Government under which the designated authority has to carry out a meticulous examination, but nonetheless when the Central Government has to take a decision on the recommendation made by the designated authority in the final findings such factual aspects cannot be ignored. There is a clear lis between the domestic industry on the one hand and the foreign exporter and importers on the other hand since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." (emphasis supplied) 27. The Bench thereafter observed: "84. In view of the aforesaid decision of the Supreme Court in Punjab National Bank, the submission advanced by learned counsel for the appellant deserves to be accepted. Thus, 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." (emphasis supplied) 28. Learned authorized counsel for the appellant has also placed a decision of the Gujarat High Court in Realstripes Limited & 1 other(s) vs. Union of ..... 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