TaxTMI 
TaxTMI 
2023 (6) TMI 798
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....ax 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 anti-dumping duty, based on the recommendation made by the designated authority. 2. It transpires from the record that an application had been filed 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 Hot-Rolled flat products of alloy or non-alloy steel [the subject goods] from China PR, Japan, Korea RP, Russia, Brazil and Indonesia [the subject countries]. The designated authority, thereafter, issued a public notice dated 31-3-2021 to review the need for continued imposition of anti-dumping duty in respect of the subject goods, originating in or exported from the subject countries and to examine whether the expiry of said anti-dumping duty is likely ....
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....and excess production compared to the demand in the respective countries. (iii) Exports from the subject countries face a large number of trade remedial measures from third countries which limits their potential to export the existing surplus production as well as employ their unutilized capacities. (iv) Unutilized capacities and surplus production are likely to be utilized to export to India in the event of cessation of the existing duties. (v) Basic Customs Duty on imports of subject goods has been reduced from 12.5% to 7.5% w.e.f. February, 2021. (vi) Historical trend of global steel prices show that steel prices are cyclical in nature and there is a likelihood if injury to the domestic industry due to imports at low price when there is a decline in global steel prices. (i) The Authority has considered whether continuation of anti-dumping duty would have adverse public interest. The Authority 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....
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.... duty. It is reproduced below : "F. No. CBIC-190354/58/2021-TO(TRU-I)-C.B.E. & C. Government of India Ministry of Finance Department of Revenue (Tax Research Unit) Room No. 146(G), North Block, New Delhi, dated 4th January, 2022 OFFICE MEMORANDUM Subject : Final Findings-Anti-Dumping Investigation concerning imports of "Hot-Rolled flat products of alloy or non-alloy steel" from China PR, Japan, Korea RP, Russia, Brazil and Indonesia-reg. The undersigned is directed to refer to final findings on the above subject issued vide notification F. No. 7/5/2021-DGTR, dated the 14th September, 2021, wherein it was recommended to impose definitive anti-dumping duty on imports of "Hot-Rolled flat products of alloy or non-alloy steel" originating in or exported from China PR, Japan, Korea RP, Russia, Brazil and Indonesia. 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 Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rul....
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.... or recurrence of dumping and injury, it may, from 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. 10. Sub-section (6) of 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. 11. In exercise of the powers conferred by sub-section (6) of Section 9A and sub-section (2) of Section 9B of the Tariff Act, the Central Government framed the 1995 Anti-Dumping Rules. 12. The duties of the designated authority are contained in Rule 4 and the relevant portion is reproduced below : "4. Duties of the designated authority. - xx       xx       xx (d) to recommend to the Central Government - (i) the amount of anti-dumping duty equal to the margin of dumping or less, which if l....
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....ed 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 to representative consumer organizations 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 autho....
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....p; the dumped articles are causing injury to the producers of all or almost all of the production within such market." 17. 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; (iii) a causal link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reasons there for and date of commencement of such retrospective levy : &n....
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....t the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. 24. The Bench 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 the Supreme Court and the High Courts observed that the function performed by the Central Government would be quasi-judicial in nature. The Bench also, in the alternative, held that even if the function performed by the Central Government was legislative, then too the principles of natural justice and the requirement of a reasoned order have to be complied with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in State of Tamil Nadu v. K. Sabanayagam and Another [(1998) 1 SCC 318]. The relevant observations are as follows : "75. Thus, even if it is assumed that the Central Government exercises legislative powers when it imposes anti-dumping duty or has taken a decision not to impose anti-dumping under section 9A of ....
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....e 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 of making a determination is expressly made appealable under section 9C of the Tariff Act. The function of making a determination in individual cases by applying the broad legislative framework and policy already set out in the Statute is not at all legislative in character, but clearly a quasi-judicial function requiring the Central Government to follow the principles of natural justice by affording an opportunity to the party likely to be adversely. xx       xx       xx 82. In view of the judgments of the Supreme Court in K. Sabanayagam, Cynamide India Ltd.....
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....ndents 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. ......." 28. After considering the decisions of the Supreme Court in PTC India Ltd. v. Central Electricity Regulatory Commission [(2010) 4 SCC 603], National Thermal Power Corp. v. Madhya Pradesh State Electricity Board [(2011) 15 SCC 580] and Reliance Industries v. Designated Authorities [(2006) 10 SCC 368 = 2006 (202) E.L.T. 23 (S.C.)], the Gujarat High Court also observed : "6.5.4 Under Section 9C of the Customs Tariff Act, appeal lies against the order of determination or review of the countervailing duty before the Customs, Excise and Service Tax Appellate Tribunal, constitution under Section 129 of the Customs Act, 1962. In view of this, the notification necessarily takes a quasi-judicial colour." 29. The Gujarat High Court also examined whether quasi-judicial process was involved in issuance of the notification by the Centra....