2024 (5) TMI 287 - HC - Customs

Central Government's discretion to reject anti-dumping duty recommendations on Chinese glass imports upheld under Section 9A

The Gujarat HC dismissed a petition challenging the Central Government's decision not to extend anti-dumping duty on Chinese textured toughened glass ... Legality of Not Extending Anti-dumping duty - Imports of the Textured Toughened (Tempered) Glass of Chinese origin - Countervailing duty - Sunset review investigation Notification, allowing hearing to all the interested parties, who all participated in the investigation and submitted their evidence, data etc. - Power of Central Government - Whether or not to accept the recommendations in terms of Section 9A of the Act read with Rule 18 of the Rules - HELD THAT:- It was submitted that on perusal of Section 9A read with Rules stipulates an administrative discretion granted to the Central Government to decide to impose or not to impose antidumping duty. It was submitted that plain reading of Section 9A(1) of the Act gives a discretion to the Central Government as the word “may” is used in both the Act and the Rules and not the word “shall” and therefore, the Central Government may disagree with the final findings and recommendations given by the Designated Authority. It was submitted that there is no jurisdictional error committed by the respondent No. 1 in issuing the impugned Office Memorandum as the said Notification is not issued while exercising quasi-judicial powers, but it is a legislative power to levy the antidumping duty or not and therefore, the decision not to issue a Notification for imposing / continuing the anti-dumping duty by not accepting the recommendations of the Designated Authority in general public interest cannot be the subject matter of the judicial review in this petition. It was submitted that the legal provisions of the Act and the Rules does not provide that the recommendations of the Designated Authority are binding on the Central Government. It is pertinent to note that the provisions of countervailing duty and the anti-dumping duty are similar in nature and the Notifications under the Act being in quasi-judicial exercise, which are amenable to appeal and the challenge, were held to be subjected to judicial review in the writ jurisdiction also. In view of the decision of the Division Bench of this Court, wherein it is held that recommendations of the Designated Authority are not binding on the Central Government and therefore, the Central Government would have its own decision after recommendations of the Designated Authority are made available to it in accordance with the statutory procedure. In the facts of the case, the Central Government, after considering the recommendations of the Designated Authority, has taken a decision not to extend the anti-dumping duty, for which, no interference can be made while exercising writ jurisdiction as it would be in the domain of the Central Government to decide as to whether the anti-dumping duty should be continued in the public interest taking into consideration all the various factors. Thus, this petition, being devoid any merit, is hereby dismissed. Notice is discharged. Issues Involved:1. Challenge to the Central Government's decision not to accept the Designated Authority's recommendations on anti-dumping duty.2. Legal validity of the Central Government's discretion in imposing anti-dumping duty.3. Requirement of reasoned order and hearing before rejecting the Designated Authority's recommendations.4. Judicial review of the Central Government's decision.Summary:Issue 1: Challenge to the Central Government's decision not to accept the Designated Authority's recommendations on anti-dumping duty.The petitioner challenged the Office Memorandum dated 17th August 2022, issued by the Central Government (respondent No. 1), which decided not to accept the Designated Authority's recommendations for the continuation of anti-dumping duty on Textured Toughened (Tempered) Glass from China PR. The petitioner argued that the decision was cryptic and lacked grounds or reasons, violating principles of natural justice as no hearing was given to the petitioner.Issue 2: Legal validity of the Central Government's discretion in imposing anti-dumping duty.The Central Government argued that its decision to impose or not to impose anti-dumping duty is a legislative function, not requiring a reasoned order or hearing. The discretion provided u/s 9A(1) and (5) of the Customs Tariff Act, 1975, allows the Central Government to make such decisions based on broader public interest considerations, even if it contradicts the Designated Authority's recommendations.Issue 3: Requirement of reasoned order and hearing before rejecting the Designated Authority's recommendations.The petitioner contended that the Central Government's decision should be reasoned and that the lack of reasons deprived them of the opportunity to challenge the decision before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). However, the Central Government and respondent No. 3 argued that the legislative discretion does not necessitate a reasoned order or hearing, citing various judicial precedents supporting the non-requirement of natural justice principles in legislative functions.Issue 4: Judicial review of the Central Government's decision.The Court held that the Central Government's decision not to extend the anti-dumping duty, despite the Designated Authority's recommendations, falls within its legislative discretion and is not subject to judicial review. The Court referred to the settled legal position that economic legislation and policy decisions by the government are given broad latitude and are not easily interfered with by the judiciary unless there is a clear violation of statutory provisions or constitutional mandates.Conclusion:The petition was dismissed, and the Court upheld the Central Government's discretion in deciding not to continue the anti-dumping duty on the subject goods, emphasizing the legislative nature of such decisions and the minimal scope for judicial review in economic policy matters.