TaxTMI 
TaxTMI 
2023 (1) TMI 351
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....nment did not issue the notification for continuation of anti-dumping duty. The relief, therefore, that has been claimed in the appeal is that the office memorandum dated 07.02.2022 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 be set aside and a direction be issued to the Central Government to issue a notification for continuation of antidumping duty, based on the recommendation made by the designated authority. 2. It transpires from the record that an application had been before the designated authority on behalf of the domestic industry for initiation of sunset review investigation under the provisions of the Tariff Act and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 [the 1995 Anti-Dumping Rules] on imports of Wire Rod of Alloy or Non-Alloy Steel [the subject goods] originating in or exported from China PR [the subject country]. The designated authority, thereafter, issued a public notice dated 28.07.2021 to review the need for continu....
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....mation on record regarding export price to third countries from the subject country shows that exports to third countries are at prices below the export price to India, which shows that Indian market is more price attractive to exporters from subject country. e. Historical trend of global steel prices show that steel prices are cyclical in nature and there is likelihood of injury to the domestic industry due to imports at low price when there is decline in global steel prices. f. Historical trend of export price of wire rod from China PR shows that the Chinese export prices are highly volatile and there is likelihood of injury to the domestic industry due to imports at low price when there is decline in Chinese export prices of wire rod. vii. Assessment conducted by the Authority leads to the conclusion that there is a likelihood of continuation/recurrence of dumping and injury to the domestic industry in the event of revocation of duty. viii. The Authority further notes that there is healthy competition in the Indian market and continuation of anti-dumping duty would not lead to monopolistic or oligopolistic situation in the Indian market for th....
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.... Room No. 146(G), North Block New Delhi, dated the 07th February, 2022 OFFICE MEMORANDUM Subject: Final Findings- Sunset review investigation concerning imports of "Wire rod of alloy or non-alloy steel" originating in or exported from China PR -reg. The undersigned is directed to refer to final findings on the above subject issued vide notification F. No. 7/17/2021-DGTR, dated the 28th October, 2021, wherein it was recommended to impose definitive antidumping duty on imports of "Wire rod of alloy or nonalloy steel", originating in or exported from China PR. 2. In exercise of the powers conferred by sub-sections (1) and (5) of section 9A of the Customs Tariff Act, read with rules 18 and 23 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 final findings of the designated authority, has decided not to accept the aforesaid recommendations. Technical Officer (TRU-I)" 7. The main contention that has been advanced by Shri Dhruv Gupta, learned counsel appearing for the appellant assisted by Shri ....
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....om time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension. 12. 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. 13. 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;" 14. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 15. Rule 6 deals with the principles governing investigation and it is reproduced below: "6. Principles governing investigations.- (1) The designated authority shall....
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....ly 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." 16. 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 and margin of d....
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....blishment 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." 19. 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." 20. 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 ....
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.... or has taken a decision 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....
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.... 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) 26. 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) 27. 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 t....