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TMI Blog2023 (1) TMI 1426X X X X Extracts X X X X X X X X Extracts X X X X ..... ti-dumping duty? - HELD THAT:- It has to be presumed that the Central Government has taken a decision not to impose antidumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. This presumption also finds support from the fact that the Central Government issued a notification dated 06.01.2022, after the final findings were submitted by the designated authority on 08.10.2021, rescinding the notification dated 11.07.2016 earlier issued by the Central Government imposing anti-dumping duty for a period of five years and then extending it upto and inclusive of 10.01.2022 by a notification dated 24.01.2021. 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 u/s 9C - 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 [ 2022 (11) TMI 1096 - CESTAT NEW DELHI ] and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, 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; and (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 - The matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 08.10.2022 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 is allowed to the extent indicated above. - MR. DILIP GUPTA, PRESIDENT AN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case. EE . 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 Court has not granted any interim relief to the Central Government in writ petition filed by the Central Government. Further, the Hon'ble High Court was pleased to pass an interim relief order in favor of the domestic industry concerned in all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 06.01.2022 the Central Government decided not to impose anti-dumping duty on the basis of final findings dated 08.10.2021 submitted by the designated authority as the imposition of anti-dumping duty upto 10.01.2022 was revoked. 6. As the contention of the appellant is based on the recommendation made by the designated authority in the final findings dated 08.10.2021, it would be appropriate to reproduce the relevant portions of the conclusion and the recommendations made in the said final findings 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ms Reena Asthana Khair, learned counsel appearing for the appellant assisted by Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri Subham Jaiswal, Shri Nikhil Sharma and Ms. Vrinda Bagaria is that despite the recommendation having been made by the designated authority in the final findings to impose anti-dumping duty, the Central Government kept quiet and did not issue the consequential notification for imposition of 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, particularly when the Central Government issued the Notification dated 06.01.2022 revoking the imposition of duty upto 10.01.2022, 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 antidumping 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 14. In exercise of the powers conferred by sub-section (6) of section 9A and sub-section (2) of the section 9B of the Tariff Act, the Central Government framed the 1995 Rules. 15. 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; 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 investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation 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 orally but such oral information shall be taken into consideration by the designated 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 impedesthe 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxxxxx (b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to rules. 21. Rule 18 deals with levy 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, 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 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. 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 conveying the decision of the Central Government not to impose anti-dumping duty. 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 antidumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. This presumption also finds support from the fact that the Central Government issued a notification dated 06.01.2022, after the final findings were submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tamil Nadu vs. K. Sabanayagam and another [(1998) 1 SCC 318]. The relevant observation of the Bench in Apcotex Industries Limited are as follows: 75. Thus, even if it is assumed that the Central Government exercises legislative powers when it imposes anti-dumping duty or has taken a decision not to impose anti-dumping under section 9A of the Tariff Act, it would still be a piece of conditional legislation falling under the third category of conditional legislations pointed out by the Supreme Court in K. Sabanayagam. This is for the reason that in the scheme of the Tariff Act and the 1995 Anti-Dumping Rules, the Central Government has necessarily to examine 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve in character, but clearly a quasi- judicial function requiring the Central Government to follow the principles of natural justice by affording an opportunity to the party likely to be adversely. ***** 82. In view of the judgments of the Supreme Court in K. Sabanayagam, Cynamide India Ltd. 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) Principles of natural justice and reasoned order 33. The Bench also examined the requirements of compliance of the principles of natural justice and a reasoned order and held as followed: 82. In view of the judgments of the Supreme Court in K. Sabanayagam, Cynamide India Ltd. 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 po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes a quasi-judicial colour. 37. The Gujarat High Court also examined whether quasi-judicial process was involved in issuance of the notification by the Central Government and after analyzing the decision of the Supreme Court in Indian National Congress vs. Institute of Social Welfare [(2002) 5SCC 658], the Gujarat High Court held that the notification issued by the Central Government would be quasi-judicial in nature. 38. The inevitable conclusion, therefore, that follows from the aforesaid discussion is 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. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping 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 protecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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; and (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 43. Thus, for all the reasons stated above, the matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 08.10.2022 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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