TaxTMI 
TaxTMI 
2023 (3) TMI 249
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....Central Government did not issue the Notification for imposition of anti-dumping duty within three months from the date the final findings were notified by the designated authority. The relief, therefore, that has been claimed in this appeal is that the Notification dated 11.05.2022 issued by the Central Government rescinding the Notification dated 16.05.2017 imposing anti-dumping duty be set aside and a direction be issued to the Central Government to issue a Notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority. 2. During the pendency of the appeal, Miscellaneous Application No. 50738 of 2022 was filed by the appellant with a prayer that two additional grounds and one additional prayer may be added. The application was allowed by order dated 17.01.2023. The two additional grounds that have been added are: "FF. The Appellant submits that the impugned order of the Respondent no. 1 is non-speaking and deserves to be aside side. This Hon'ble Tribunal under Rule 41 also has the inherent powers to pass such orders so as to secure the ends of justice. The Rule 41 of the CESTAT (Procedure) Rules, 1982, are extracted below fo....
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....he records that earlier, based on recommendation made by the designated authority in the final findings dated 03.04.2017 for imposition of the definitive antidumping duty on the imports of Amoxycillin Trihydrate [subject goods], the Central Government issued a Notification dated 16.05.2017 imposing antidumping duty for a period of five years. A sunset review investigation was carried out by the designated authority and a recommendation was made in the final findings dated 15.02.2022 for imposing of antidumping duty for a period 5 years. After the final findings were submitted by the designated authority on 15.02.2022, the Central Government issued a Notification dated 11.05.2022 revoking the anti-dumping duty imposed on the subject goods originating in or exported from China PR [subject country] and rescinded the Notification dated 16.05.2017 but did not issue any Notification for imposing antidumping duty on the basis of the final findings submitted by the designated authority. It is, therefore, clear that by issuance of the Notification dated 16.05.2017 the Central Government decided not to impose anti-dumping duty on the basis of final findings dated 15.02.2022 submitted by the ....
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....ubject goods from China PR, the Authority is of the view that continuation of antidumping duty is required on the imports of subject goods from China PR. 111. Under these circumstances, the Authority considers it appropriate to recommend continuation of anti-dumping duty on the imports of subject goods from China PR. Antidumping equal to the amount indicated in Col. 7 of the duty table below is recommended to be extended from the date of notification to be issued in this regard by the Central Government for a period of five (5) years on all imports of the subject goods mentioned in Column 3 of the duty table from China PR." 6. It would be seen from the aforesaid final findings that it was on the basis of a detailed analysis carried out by the designated authority on the aspect of likelihood of continuation of dumping and consequent injury to the domestic industry that the designated authority found as fact that there was continued dumping of the subject goods from the subject country and more than 90% of the Chinese exports to third countries were at prices below export prices to India which would clearly demonstrate likelihood of continuation of dumping and aggravation injury t....
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....appearing for the Central Government submitted that appeal itself is not maintainable under section 9(C) of the Tariff Act and the exercise of power by the Central Government under section 9A of the Tariff Act read with rule 18 of the 1995 Rules is legislative in nature and so neither the principles of natural justice are required to be complied with nor a reasoned order is required to be passed. 9. In order to examine these submissions it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 Rules. 10. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by Notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. The margin of dumping, the export price and the normal price have all been defined in section 9A(1) of the Tariff Act. 11. Sub-section (5) of section 9A provides that anti-dumping duty imposed shall, unless revoked ....
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....eferred to in sub-rule (1) of Rule 5 to- (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries: Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefor in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country. (5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and....
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....nt effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. (3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if- (i) there is a concentration of dumped imports into an isolated market, and (ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market." 19. Rule 17 deals with final findings. It is reproduced below: "Final findings.- (1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding- (a) as to, - (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India; (....
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....al Gazette, impose anti-dumping duty not exceeding the margin of dumping in relation to such article. It is under rule 17 of the 1995, Anti-Dumping Rules that the designated authority is required to, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit its final findings to the Central Government. Under rule 18, the Central Government may, within three months of the date of publication of the final findings by the designated authority under rule 17, impose by a notification in the Official Gazette, upon importation into India of the article covered by the final findings, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 26. In the present case, it is not in dispute that the final findings of the designed authority were published on 11.01.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum. 27. The issue that arises for consideration is whether a presumption can be drawn ....
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....151 of 2022 decided on 20.12.2022], the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty and the observations are as follows: "30. Learned counsel for the appellant, however, contended that non issuance of the notification by the Central Government pursuant to the recommendations made by the designated authority, in view of the provisions of rule 18 of the 1995 Rules, would mean that the Central Government has taken a decision not to impose any anti-dumping duty. It has been held in Apcotex Industries that the appeal would be maintainable. The present appeal would, therefore, clearly be maintainable." Whether the Central Government exercises legislative power 31. The Bench in Apcotex Industries also examined whether the determination by the Central Government was legislative in character or quasi-judicial in nature and after examining the relevant provisions of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of th....
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....e ignored. There is a clear lis between the domestic industry on the one hand and the foreign exporter and importers on the other hand since the domestic industry desires antidumping duty to be imposed for which purpose investigation is carried out by the designated authority, but the foreign exporters and importers resist the imposition of anti-dumping duty. For exercise of such power, a detail procedure has been provided in the Tariff Act, the 1995 Anti- Dumping Rules or the 1997 Safeguard Rules. ***** 78. It will be evident from the aforesaid judgments that the Central Government, while acting as a delegated legislative body, performs two distinct and separate functions in the context of the levy of antidumping and safeguard duty. The first is the function of framing Rules such as the Anti-Dumping Rules 1995 or the 1997 Safeguard Rules, which function is clearly legislative. The second function is the making of a determination under rule 18 of the Anti-Dumping Rules 1995 or rule 12 of the 1997 Safeguard Rules, which function is quasi judicial in nature. While the exercise of the legislative function of framing Rules is not appealable before the Tribunal, the second function ....
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....y to be provided." (emphasis supplied) 34. Learned counsel for the appellant has also placed a decision of the Gujarat High Court in Realstripes Limited & 1 other(s) vs. Union of India & 1 other(s) [R/Special Civil Application No. 4495 of 2022 decided on 02.09.2022]. The High Court repelled the contention advanced on behalf of the Central Government that the issuance of the notification was legislative in character and the relevant observations are as follows: "6.5 It was another submission in vain on behalf of respondents seeking to assert that notification rescinding the countervailing duty is of legislative character and amounts of exercise of legislative power by the Central Government and therefore, not amenable to judicial review. 6.5.1 The submission is devoid of substance, if we examine the decisions on this score.*****" 35. After considering the decisions of the Supreme Court in PTC India Ltd. vs. Central Electricity Regulatory Commission [(2010) 4 SCC 603], National Thermal Power Corp. vs. Madhya Pradesh State Electricity Board [(2011) 15 SCC 580] and Reliance Industries vs. Designated Authorities [(2006) 10 SCC 368] , the Gujarat High Court also observed: "6.5.4 Un....
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....t "ADD"]. 6. It is also not in dispute that the Government of India has disagreed with the recommendation made by the DA. 7. This decision forms part of the Office Memorandum (OM) dated 14.12.2020. 8. Given this position, we are of the view that as an adinterim measure, the following direction would suffice, as the need to impose ADD would arise only if the respondent were to succeed in the instant writ petition. (i) The provisional assessment of imports concerning the product in issue will be made for the time being. The importers would, thus, be put to notice of the possibility of ADD being imposed, albeit as per law, if, as noticed above, the respondent were to succeed in the instant writ petition. (ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the respondent. (iii) Furthermore, this direction will not have an impact on the merits of the writ petition. 9. CM No.15389/2022 is disposed of in the aforesaid terms. 10. List the matter on 02.03.2023." 40. A similar interim order was passed by the Delhi High Court in W.P(C) No. 6758/2022 on 05.09.2022 in the writ petition filed by the Union of India to assail the de....