TaxTMI 
TaxTMI 
TaxTMI 
2022 (12) TMI 830
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....ty in the final findings notified on 31.03.2022 for imposition of anti-dumping duty under section 9A of the Customs Tariff Act 1975 [the Tariff Act], the Central Government did not issue the notification for imposition of anti-dumping duty. The relief, therefore, that has been claimed in the appeal is that the office memorandum dated 06.06.2022 issued by the Ministry of Finance, Department of Revenue, Tax Research Unit conveying the decision of the Central Government not to impose anti-dumping duty proposed in the final findings of the designated authority be set aside and a direction be issued to the Central Government to issue a notification for imposition of antidumping duty, based on the recommendation made by the designated authority. 2. During the pendency of the appeal two Miscellaneous Applications bearing no's. 50691 of 2022 and 50692 of 2022 were filed by the appellant. 3. The former application contains the following two prayers: "a) pending final hearing of this appeal, impose the provisional anti-dumping in terms of the sub-section 2 of Section 9A of the Customs Tariff Act, 1975 at the rates mentioned in paragraph 203 of the Final Finding issued by Respondent No. 2....
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....clusion drawn and the recommendation by the designated authority in the final findings are as follows: "K. CONCLUSION & RECOMMENDATIONS 201. Having regard to the contentions raised, submission made, information provided and facts available before the Authority as recorded above and on the basis of the above analysis of dumping and consequent injury to the domestic industry, the Authority concludes that: a. The subject goods produced by the domestic industry is a like article to the product under consideration imported from the subject countries. b. While there is a particular market situation in Saudi Arabia, there is no evidence to show that it prevented a proper comparison between the domestic and export sales. c. The Authority has determined that dumping margin for exports from Qatar and UAE is negative. Thus, the Authority concludes that imports from Qatar and UAE into India are not dumped imports. Rule 14(c) of the Rules requires that the Authority shall terminate an investigation immediately if it determines that the margin of dumping is less than two per cent of the export price. Thus, the investigation is terminated against exports of the subject goods from UAE an....
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....duce its prices to achieve the same. This is because the imports entered the market at prices below the prices of the domestic industry. The price of imports has declined, despite an increase in the price of ethylene. It is, therefore, evident that while the domestic industry has not suffered injury in terms of its volume parameters, the imports have adversely impacted the profitability of the domestic industry. Thus, the domestic industry has suffered material injury. n. The domestic industry is engaged in production of a number of polymers. However, injury analysis is required to be conducted with reference to the performance of the like article, or the narrowest range or group of products, which includes the like article. Therefore, the performance of the polymer segment as a whole is not determinative of the performance of the domestic industry for the subject goods. o. The injury to the domestic industry has been caused by the dumping of the subject imports in India, and the injury cannot be attributed to other known factors, including Covid-19, shutdown of plant, increase in capacity, imports by the domestic industry or use of naptha. p. The price of imports from other....
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.... of the subject goods from the subject countries and, therefore, made a recommendation to the Central Government to impose anti-dumping duty on the import of the subject goods from the subject countries. 8. An office memorandum dated 06.06.2022 was then issued by the Ministry of Finance to convey the decision of the Central Government not to impose anti-dumping duty. It is reproduced below: "F. No. CBIC-190354/211/2021-TRU Section -CBEC Government of India Ministry of Finance Department of Revenue (Tax Research Unit) *** Room No. 156, North Block, New Delhi, dated 6th June, 2022 OFFICE MEMORANDUM Subject: Anti-Dumping Investigation concerning imports of "Low Density Polyethylene (LDPE)" from Qatar, Saudi Arabia, Singapore, Thailand, United Arab Emirates and United Sates of America-regarding The undersigned is directed to refer to antidumping investigation final findings on the above subject issued vide notification F. No. 6/30/2020-DGTR, dated the 31st March, 2022, wherein it was recommended to impose anti-dumping duty on imports of "Low Density Polyethylene (LDPE)" originating in or exported from Saudi Arabia, Singapore, Thailand and USA. 2. In exercise of the powe....
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....of five years from the date of such imposition. 13. Sub-section (6) 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 Anti-Dumping 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 ....
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....izations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation 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 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 ....
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....le, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy: 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, 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. Anne....
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....sion 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 Act and the Rules framed thereunder for making a recommendation to the Central Government, for while taking a decision on the recommendation made by the designated authority in the final findings the Central Government 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 det....
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....ositive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty." (emphasis supplied) 28. 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 positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty." (emphasis supplied) 29. The Bench thereafter observed: "84. In view of the aforesaid decision of the Supreme Court in Punjab National Bank, the submission 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 co....
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.... the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with. The matter, therefore, would have to be remitted to the Central Government for taking a fresh 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. 34. Two applications have also been filed by the appellant. The first application seeks a direction that pending final hearing of this appeal, provisional anti-dumping duty in terms of section 9A(2) of the Tariff Act at rates mentioned in the final findings of the designated authority may be imposed and a direction may also be issued to the Central Government to submit its records/files wherein reasons, if any, for not imposing the anti-dumping duty have been recorded. Paragraph 7 of the application is reproduced below: "7. The applicant submits that the appellate proceeding before the CESTAT is a continuation the proceedings carried out by the Respondent....
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....ff Act to the extent of duty recommended by the designated authority may, in the meantime, be imposed by the Tribunal as all the pre-requisites stand satisfied. Learned counsel also submitted that while remanding the matter to the Central Government for determination of a definitive anti-dumping duty, provisional assessment be ordered in respect of the imports of the subject goods, for the reason that if the Central Government orders a definitive anti-dumping duty to be imposed on the subject goods, such duty would have to relate back to the date of original order i.e. the date of issuance of office memorandum. In this connection, learned counsel submitted that in view of the principle of restitution, the order passed by the Tribunal under section 9C of the Tariff Act confirming, modifying or annulling the order appealed against has to necessarily relate back to the date of the original order (i.e office memorandum). In this regard, learned counsel placed reliance on the decisions of the Supreme Court in Mekha Ram and others vs. State of Rajasthan [Civil Appeal No. 2229-2234 of 2022 decided on 29.03.2022], Priyanka Overseas Pvt. Ltd. vs. Union of India [1991 (51) E.L.T. 185 (S.C.)]....
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....ll also not be appropriate for the Tribunal, at this stage, to impose any anti-dumping duty on the basis of the final findings of the designated authority as it is the Central Government which has to take a reasoned decision in the matter one way or the other. 41. Regarding the prayer that the Central Government should submit the records/files containing reasons for not imposing anti-dumping duty, the Central Government has not taken a stand that reasons are contained in the files. In fact, the stand of the Central Government is based only on the office memorandum dated 06.06.2022 wherein the Under Secretary has informed that the Central Government, after considering the final findings of the designated authority, has decided not to accept the aforesaid recommendation. This is the only communication that has been relied upon by the learned authorized representative for the Central Government to defend the order. In any case, the matter is being remitted to the Central Government to reconsider the recommendation made by the designated authority in the light of the observations made in the order. 42. In the end, learned counsel for the appellant also urged that the Tribunal may pro....