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TMI Blog2023 (1) TMI 1382X X X X Extracts X X X X X X X X Extracts X X X X ..... ts observed that the function performed by the Central Government would be quasi-judicial in nature. The Bench also, in the alternative, held that even if the function performed by the Central Government was legislative, then too the principles of natural justice and the requirement of a reasoned order have to be compiled with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in STATE OF T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM ANR. [ 1997 (11) TMI 520 - SUPREME COURT] . 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 as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority. The office memorandum dated 08.01.2022 is set aside and the matter is remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. The Appellant submits that the Rules 41 of the CESTAT (Procedure) Rules have been made applicable to proceedings under Anti-dumping Rules through Rule 7 of CEGAT (Countervailing Duty and Anti-Dumping Duty) Procedure Rule, 1996, and therefore, apply to the present case. GG. This Hon'ble Tribunal had earlier in similar cases, notably in Jubilant Ingrevia Limited vs. Designated Authority dated 27th October 2021 and Apcotex Industries Ltd. Others vs. Union of India dated 30th August, 2022, remanded the matter to the Respondent No. 1 to reconsider the recommendations issued by the Respondent No. 2 in those cases. In Apcotex case, the Hon'ble Tribunal had additionally directed the Respondent no. 1, that if it is of the prima-facie opinion that the recommendations of the Respondent No. 2 are not required to be accepted, tentative reasons for the same must be recorded and conveyed to the domestic industry therein, so as to give them an opportunity to file their submissions on the said grounds. The applicant understands that the Respondent N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile 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 known interested parties by a disclosure statement dated 12.08.2021. The interested parties, including the appellant, filed comments to the disclosure statement. 6. Thereafter, the designated authority notified the final findings on 19.08.2021. The relevant portion of the recommendations made by the designated authority in the final findings are as follows: N. RECOMMENDATIONS 141. The Authority notes that the investigation was initiated and notified to all interested parties and adequate opportunity was given to the domestic industry, exporters, importers and other interested parties to provide information on the aspects of dumping, injury and casual link thereof in terms of Rules and having established positive dumping margin as well material injury to the domestic industry caused by dumped imports from subject countries except Nepal, the Authority is of the view that imposition of Anti-Dumping duty is necessary to offset dumping and injury 7. It would be seen from the aforesaid final findings that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side for the reason that the principles of natural justice have been violated and even otherwise the decision is arbitrary, unreasoned and bad in law. The contention advanced by Shri Jitendra Singh, learned counsel appearing for the respondent no s. 33, 34 and 36, assisted by Shri Anshuman Sahni and Shri Akshay Soni, Shri Sparsh Bhargava, learned counsel appearing for the respondent no. 21, assisted by Ms. Radhika Sharma and Ms. Jaya Kumari, learned authorized representative appearing for the Central Government, is that the appeal is not maintainable under section 9C of the Tariff Act and that the exercise of power by the Central Government under section 9A of the Tariff Act read with rule 18 of the 1995 Anti-Dumping Rules is legislative in nature and so neither the principles of natural justice are required to be complied with nor a reasoned order is required to be passed. 10. 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. 11. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice 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 of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries: Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. (3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if- (i) there is a concentration of dumped imports into an iso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 private respondents, as also the learned authorized representatives appearing for the respondent Union of India have to be considered. 26. The maintainability of the appeal under section 9C of the Tariff Act was examined at length by this very Bench in M/s. Apcotex Industries Limited vs. Union of India and 38 others Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022 and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. 27. The Bench also examined whether the determination by the Central Government was legislative in character or quasi-judicial in nature and after examining the relevant provisions of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of the Supreme Court and the High Courts observed that the function perfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ***** 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 Anti-Dumping 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 function of making a det ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er(s) R/Special Civil Application No. 4495 of 2022 decided on 02.09.2022. The High Court repelled the contention advanced on behalf of the Central Government that the issuance of the notification was legislative in character and the relevant observations are as follows: 6.5 It was another submission in vain on behalf of respondents seeking to assert that notification rescinding the countervailing duty is of legislative character and amounts of exercise of legislative power by the Central Government and therefore, not amenable to judicial review. 6.5.1 The submission is devoid of substance, if we examine the decisions on this score.***** 31. After considering the decisions of the Supreme Court in PTC India Ltd. vs. Central Electricity Regulatory Commission (2010) 4 SCC 603, National Thermal Power Corp. vs. Madhya Pradesh State Electricity Board (2011) 15 SCC 580 and Reliance Industries vs. Designated Authorities (2006) 10 SCC 368 , the Gujarat High Court also observed: 6.5.4 Under Section 9-C of the Customs Tariff Act, appeal lies against the order of determination or review of the countervailing duty before the Customs, Excise and Service Tax Appellate Tribunal, constitution under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. Given this position, we are of the view that as an ad-interim measure, the following direction would suffice, as the need to impose ADD would arise only if the respondent were to succeed in the instant writ petition. (i) The provisional assessment of imports concerning the product in issue will be made for the time being. The importers would, thus, be put to notice of the possibility of ADD being imposed, albeit as per law, if, as noticed above, the respondent were to succeed in the instant writ petition. (ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the respondent. (iii) Furthermore, this direction will not have an impact on the merits of the writ petition. 9. CM No. 15389/2022 is disposed of in the aforesaid terms. 10. List the matter on 02.03.2023. 36. A similar interim order was passed by the Delhi High Court in W.P(C) No. 6758/2022 on 05.09.2022 in the writ petition filed by the Union of India to assail the decision of the Tribunal rendered in Association of Synthetic Fibre Industry vs. Union of India and 4 others Anti-Dumping Appeal No. 51049 of 2021 decided on 01.11.2021 in which a similar office memorandum was set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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