Central Government's failure to issue anti-dumping duty notification within three months creates presumption of deemed decision not to impose duty

CESTAT NEW DELHI held that when Central Government fails to issue notification for anti-dumping duty within three months of designated authority's final findings, a presumption arises that Government decided not to impose duty. The tribunal ruled such prolonged silence constitutes a deemed decision not to impose anti-dumping duty, making appeals maintainable under section 9C of Customs Tariff Act. Matter remitted to Central Government for reconsideration of designated authority's recommendation with reasons. Provisional assessment of imports ordered pending Government's decision.

---

---

Issues Involved:

1. Whether the Central Government's inaction implies a decision not to impose anti-dumping duty.
2. Maintainability of appeal under Section 9C of the Customs Tariff Act.
3. Nature of the Central Government's power-legislative or quasi-judicial.
4. Compliance with principles of natural justice and requirement of a reasoned order.
5. Provisional assessment of imports pending the Central Government's decision.

Detailed Analysis:

1. Whether the Central Government's inaction implies a decision not to impose anti-dumping duty:

The Tribunal examined the provisions of the Customs Tariff Act and the 1995 Anti-Dumping Rules, particularly focusing on the timeline for the Central Government to act upon the recommendations of the designated authority. Rule 18 mandates the Central Government to impose anti-dumping duty within three months of the publication of final findings. The Tribunal concluded that the Central Government's prolonged silence should be presumed as a decision not to impose anti-dumping duty, similar to cases where an office memorandum explicitly conveys such a decision. This view aligns with previous Tribunal decisions in Apcotex Industries and Chemical and Petrochemicals Manufactures Association cases.

2. Maintainability of appeal under Section 9C of the Customs Tariff Act:

The Tribunal reaffirmed its stance from previous cases, such as M/s. Apcotex Industries Limited and Balaji Amines Ltd., that an appeal under Section 9C is maintainable against the Central Government's decision, whether explicit or implied, not to impose anti-dumping duty. The Tribunal emphasized that non-issuance of a notification post-recommendation by the designated authority equates to a decision, thereby making the appeal maintainable.

3. Nature of the Central Government's power-legislative or quasi-judicial:

The Tribunal analyzed whether the Central Government's function in imposing anti-dumping duty is legislative or quasi-judicial. It concluded that the function is quasi-judicial, requiring adherence to principles of natural justice and a reasoned decision, even if considered legislative. The Tribunal referenced the Supreme Court's judgment in State of Tamil Nadu vs. K. Sabanayagam, which categorized such functions as conditional legislation, necessitating compliance with procedural fairness.

4. Compliance with principles of natural justice and requirement of a reasoned order:

The Tribunal underscored the necessity for the Central Government to record reasons when deciding against imposing anti-dumping duty despite a positive recommendation from the designated authority. It highlighted the importance of providing the domestic industry an opportunity to respond if the Central Government forms a prima facie opinion against the recommendation. This requirement aligns with the principles of natural justice, as emphasized in the Tribunal's previous decisions and supported by the Gujarat High Court's judgment in Realstripes Limited.

5. Provisional assessment of imports pending the Central Government's decision:

The Tribunal considered the appellant's request for provisional assessment of imports, akin to the interim relief granted by the Delhi High Court in similar cases. It directed that provisional assessment of imports concerning the subject goods be conducted until the Central Government makes a decision on the designated authority's recommendation. This measure ensures the appellant's interests are safeguarded without creating equities in favor of the domestic industry or affecting the Central Government's final decision.

Conclusion:

The Tribunal remitted the matter to the Central Government for reconsideration of the designated authority's recommendation dated 23.09.2021, with directions for provisional assessment of imports to continue until a decision is reached. The appeal was allowed to the extent of these directions, and the Department was instructed to ensure compliance across relevant zones.

---