TMI Blog2023 (1) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. Though the present appeal is being disposed of but a decision has yet to be taken by the Central Government 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion of the investigation, anti-dumping duty was extended upto and inclusive of 28.02.2022 by a notification dated 27.08.2021. The period of investigation for the purpose of anti-dumping duty was from 01.01.2020 to 31.12.2020 and the injury investigation period was from 2017-18, 2018-19 and 2019-20 and the period of investigation. 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, the essential facts of the investigation were disclosed to the known interested parties by a disclosure statement dated 18.11.2021. The interested parties, including the appellant, filed comments to the disclosure statement. 6. Thereafter, the designated authority notified the final findings on 26.11.2021 and the relevant portions of the recommendations are as follows: N. RECOMMENDATIONS: 122. The Authority notes that the sunset review was initiated and notified to all interested parties and adequate opportunity was given to the domestic industry, exporters, importers/users and other interested parties to provide information on the aspects o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pore. 2. In exercise of the powers conferred by subsections (1) and (5) of section 9A of the Customs Tariff Act, read with rules 18 and 20 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) 9. The main contention that has been advanced by 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 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 in the final findings to continue anti-dumping duty should be set aside 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 respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he final finding, antidumping 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 respondents, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment 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 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- Dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion 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) 30. 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 India 1 other(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 seeki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying 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 Government of India has disagreed with the recommendation made by the DA. 7. This decision forms part of the Office Memorandum (OM) dated 14.12.2020. 8. Given this position, we are of the view that as an adinterim 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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