AI Drafter 
TaxTMI 
TaxTMI 
2022 (12) TMI 984
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....teel [the subject goods] originated in or exported from China PR and European Union [the subject countries], the Central Government did not issue a notification for imposition of anti-dumping duty though three months expired from the date of publication of final finding. 2. The designated authority had earlier issued preliminary findings dated 20.10.2016 when investigation was initiated on 29.06.2016 and recommended imposition of provisional anti-dumping duty on the imports of the subject goods from the subject countries. The Central Government thereafter imposed provisional anti-dumping duty on the subject goods by a notification dated 11.01.2017. The final findings were issued by the designated authority on 30.08.2017 and a recommendation was made to the Central Government for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the basis of the said final findings of the designated authority, the Central Government issued a notification dated 17.10.2017 imposing anti-dumping duty for a period of 5 years w.e.f. 11.01.2017. 3. The domestic industry, therefore, filed an application before the designated authority for initiation of....
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....tries are at prices below the export price to India. Which shows that Indian market is more price attractive to producers/exporters of the subject countries. vi. The Authority accordingly concludes that there is a likelihood of continuation 'recurrence of dumping and injury to the domestic industry in the event of revocation of duty. vii. Reference price-based duty recommended by the Authority in the present sunset review would ensure that users and importers of product under consideration are not adversely affected when imports into India are at fair price. N. RECOMMENDATIONS: 143. 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 of dumping, injury and the causal link and likelihood of continuation or recurrence of dumping and injury. Having initiated and conducted the sunset review into dumping, injury and causal link and likelihood of continuation or recurrence of dumping and injury in terms of provisions laid down under the Rules.....
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.... 7. The contention that has been advanced by the learned counsel appearing for the appellant is based on rule 18 of the 1995 Rules which provide that Central Government may, within three months of the date of the publication of final findings by the designated authority, impose by notification anti-dumping duty. The submission is that as the notification was not issued within the said period of three months by the Central Government from the date of publication of the final findings by the designated authority, a presumption can safely be drawn that the Central Government had taken a decision not to impose anti-dumping duty. Learned counsel also submitted that in view of the decisions of this Tribunal in M/s. Apcotex Industries Limited vs. Union of India and 38 others [Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022], the Central Government has to record reasons if it decides not to impose anti-dumping duty despite a recommendation made by the designated authority in the final findings. 8. On the other hand, learned counsel for the respondents submitted that the appeal would not be maintainable under section 9C of the Customs Tariff Act 1975 [the Tariff Act] and tha....
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....uch increased quantities and under such condition so as to cause or threatening to cause serious injury to domestic industry requiring imposition of safeguard duty in relation to import of that article." 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 2 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.-....
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....rganizations 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 impedesthe 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. Determinati....
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....ablished in India or materially retards the establishment of any industry in India; (iii) a casual link, where applicable, 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, anti-dumping 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 ....
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....ent. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum. 28. The issue that arises for consideration is whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority. On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty. This is what was held by the Tribunal in Apcotex Industries. The same view has been taken by this Bench in Chemical and Petrochemicals Manufactures Association vs. Union of India and 55 others [Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022]. 29. The inevitable conclus....