TaxTMI 
TaxTMI 
2020 (9) TMI 176
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....ssessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [the Anti-Dumping Rules] for determination of individual dumping margin for the appellants (exporters) in relation to anti-dumping duty imposed on new/unused Pneumatic Radial tyres [subject goods] originating in or exported from Peoples Republic of China [China PR]. These two paragraphs are reproduced below: "35. Accordingly, the Authority does not recommended any individual dumping margin for the New Shipper Review applicants, namely, M/s. Shandong Haohua Tire Co. Ltd. (Haohua) (Producer), Guangzhou Exceed Industrial Technology Co. Ltd. (exporter) and H.K. Trade Wind Trading Limited (exporter). 36. The Authority holds that New Shipping Review applicants are not entitled to individual dumping margin. The Authority, therefore, recommends that the exports of the subject goods made by M/s. Shandong Haohua Tire Co., Ltd. (Haohua) (producer). M/s. Guangzhou Exceed Industrial Technology Co. Ltd. and M/s. H.K. Trade Wind Trading (exporter) from the date of initiation of the present New Shipping Review investigation may be subjected to levy of Anti-Dumping Duty as imposed ear....
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....y under Rule 22 of the Anti-Dumping Rules for determination of individual margin of dumping in respect of the definitive anti-dumping duty imposed by the Central Government under the Notification dated 18 September, 2017 contending that they had not exported the subject goods to India during the period of investigation nor they were related to any of the exporters or producers in the exporting country who had been subjected to anti-dumping duties on the subject goods. 8. Rule 22 of the Rules, under which the New Shipper Review was undertaken, is as follows: "Rule 22" (1) If a product is subject to anti-dumping duty, the designated authority shall carry out a periodical review for the purpose of determining individual margins of dumping for any exporters or producers in the exporting country in question who have not exported the product to India during the period of investigation, provided that these exporters or producers show that they are not related to any of the exporters or producers in the exporting country who are subject to the antidumping duty on the product. (2) The Central Government shall not levy anti-dumping duty under sub-section (1) of section 9A of the Act, ....
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.... Now therefore, in exercise of the powers conferred by sub-rule (2) of rule 22 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 recommendation of the designated authority, hereby orders that pending the outcome of the said review by the designated authority, the subject goods, when originating in or exported from the subject country by M/s. Shandong Haohua Tire Co. Ltd. (Haohua) (Producer) through Guangzhou Exceed Industrial Technology Co. Ltd. (exporter) or H.K. Trade Wing Trading Limited (exporter), and imported into India, shall be subjected to provisional assessment till the review is completed. 2. The provisional assessment may be subject to such security or guarantee as the proper officer of customs deems fit for payment of the deficiency, if any, in case a definitive anti-dumping duty is imposed retrospectively, on completion of investigation by the designated authority. 3. In case of recommendation of anti-dumping duty after completion of the said review by the designated authority, the importer shall be liable to p....
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....Learned Counsel for the Domestic Industry has also referred to a matter relating to import of "jute products" and has submitted that even though Designated Authority in the final findings had not made any recommendation for according individual dumping margin to the exporters, but the Central Government had issued a notification for amending the earlier notification by substituting the Explanation and directing that the export of subject goods shall be finally assessed under the residual categories specified in the Table contained in the Customs Notification. 13. Learned Counsel for the appellants, however, submitted that the appeal would be maintainable under sub-section (1) of Section 9C of the Tariff Act as the Designated Authority has not made any recommendation for determination of individual dumping margin for the three appellants and in fact had only recommended that the exports of the subject goods made by the appellants from the date of initiation of new shipper review investigation may be subjected to levy of anti-dumping duty as imposed earlier by Customs Notification dated 18 September, 2017 on the exports of the subject goods originating in or exported from China PR. ....
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....related exporter is not related to any of the producer/exporters in the exporting country who are subject to anti-dumping duties on the PUC. In view of the aforesaid, we humbly request the Designated Authority to kindly: (i) Initiate the New Shipper Review in terms of Rule 22 of Customs Tariff (Anti-dumping) Rules, 1995 for the purpose of determining an individual dumping margin for the applicant exporter. (ii) Consider 1st April, 2018 to 30th September, 2018 as the period of investigation for the New Shipper Review In case Authority decides to consider any other period as the period of investigation for the New Shipper Review, the same will be acceptable to us. (iii) Recommend Central Government for resorting to provisional assessment of the PUC exported by the applicant exporter based on the surety bond furnished by the importer till the conclusion of the New Shipper Review Investigation." 15. Rule 22(1) of the Anti-Dumping Rules provides that if a product is subject to anti-dumping duty, the Designated Authority shall carry out a periodical review for the purpose of determining individual margins of dumping for exporters who have not exported the product to India during....
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....her the present appeal under Section 9C(1) of Tariff Act is maintainable or not. At this stage it also needs to be noticed that the Designated Authority, in its final findings notified on 2 May, 2019, also observed in paragraph 37 that any appeal against this notification shall lie before Customs, Excise and Service Tax Appellate Tribunal in accordance with the Tariff Act and the decision of the Delhi High Court in Jindal Poly Film Ltd. 20. The submission of Learned Counsel for the Appellants is that since there is no affirmative recommendation for individual anti-dumping margin for three applicants who had filed an application for New Shippers Review under Rule 22 of the Anti-Dumping Rules, the present appeals would be maintainable in view of the decision of Delhi High Court in Jindal Poly Film Ltd. 21. The Delhi High Court, after analysing of the provisions of Section 9C of the Tariff Act and the provisions of the Anti-Dumping Rules, referred to the order of Supreme Court in Saurashtra Chemicals Ltd. and observed as follows: "22. We agree with the counsel for the third respondent that the aforesaid order proceeds and gives an answer to the specific situation in the said case,....
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....nce, degree and effect of dumping" are significant The final finding of the Designated Authority in the said aspect can be in positive re when it recommends imposition of Antidumping duty or may be in negative when it finds and holds that no Antidumping [duty] should be imposed Upon negative finding by the Designated Authority no further action is contemplated and required by the Central Government Contention of the petitioner that the "order of determination" would mean notification imposing Anti-dumping [duty] and not a negative final finding of the Designated Authority under Rule 17, which is not recommendatory but the final determination, is erroneous and bad in law In case of negative determination the finding of the Designated Authority is binding, it gives no discretion to the Central Government Thereupon, the determination becomes the determinative order in the sense that no Anti-dumping duty can be imposed. 37. Negative finding of the Designated Authority does not require a notification, a legislative act, ergo the said final finding gets stamped and approved by the Statute itself as binding decision of the Central Government. 38. Therefore, in this context of the stat....