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TMI Blog2023 (1) TMI 1425X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 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 deeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment in the light of the observations made in the order. It is, therefore, considered appropriate to pass a similar order, as was passed by the High Court, which will remain operative till a decision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty. The directions are as follows: (i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being; (ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry; (iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority. Conclusion - Thus, the matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 23.09.2021 in the light of the observations made above. The directions contained in paragraph 42 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. JJ . 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 No. 1 has however, till date, not implemented the said orders of the Hon'ble Tribunal, despite them not being stayed or set-aside. The Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duce the relevant portions of the conclusion and the recommendations made in the aforesaid and they are as follows: M. CONCLUSION RECOMMENDATIONS 131. After examining the submissions made by the interested parties and issues raised therein, and considering the facts available on record, the Authority concludes that: ***** e. The domestic industry has suffered continued injury. The examination of the imports of the subject goods and the performance of the domestic industry clearly shows that the volume of the dumped imports from the subject country has declined over the injury period increased thereafter in absolute and relative terms in the period of investigation. The imports from the subject country are undercutting and suppressing the prices of the domestic industry. The capacity utilization, production, and domestic sales of the domestic industry has declined significantly in the POI. The domestic industry has been suffering significant deterioration in term of profits, cash profits and return on the capital employed. f. The material injury suffered by the domestic industry has been caused by the dumped imports. g. There exists a likelihood of continuation of dumping and injury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anti-dumping duty. The submission is that under rule 18 of the 1995 Rules [1995 Anti Dumping Rules], the Central Government has to take a decision within three months of the publication of final findings, and as the Notification was not issued for a long period of time it should be presumed that the Central Government had decided not to impose anti-dumping duty on the subject goods from the subject country. Learned counsel also submitted that in case the Central Government had decided not to impose anti-dumping duty, a reasoned order should have been passed but in the present case such an order has not been passed by the Central Government. The contention of the learned counsel for the appellant, therefore, is that a direction should be issued to the Central Government to issue a Notification for imposition of anti-dumping duty on the basis of the recommendation made by the designated authority in the final findings dated 23.09.2021. Learned counsel further for the appellant also submitted that till such time as the Central Government takes a decision, the Tribunal should issue a direction for provisional assessment, as was done by the Delhi High Court on 05.09.2022 in WP (C) 5185/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 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; 16. Rule 5 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 22. 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. 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 private respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This is what was held by the Tribunal in Apcotex Industries. The same view has been taken by this Bench 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 30. 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. 31. In Balaji Amines Ltd. vs. The Union o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. and Godawat Pan Masala, and the decision of the Tribunal in Jubilant Ingrevia Limited, it has to be held 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. (emphasis supplied) 34. 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. (emphasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping duty on the import of the subject goods from the subject countries. Provisional Assessment 39. In the end, learned counsel for the appellant also urged that the Tribunal may protect the interest of the appellant in the same manner as was protected by the Delhi High Court in the writ petition filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia. 40. The Tribunal had set aside the office memorandum issued by the Under Secretary conveying the decision of the Central Government not to impose anti-dumping duty despite a recommendation made by the designated authority for imposition of anti-dumping duty. The order passed by the Delhi High Court on 05.09.2022 in W.P(C)5185/2022 filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia, is reproduced below: W.P.(C) 5185/2022 CM No.15389/2022 [Application filed on behalf of the petitioner seeking interim relief] 5. The respondent before us is the domestic industry. It is not in dispute that the Designated Authority [in short DA ] via notification dated 25.08.2020 has recommended the imposition of anti-dumping duty [in short ADD ]. 6. It is also not in dispute that the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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