TaxTMI 
TaxTMI 
2023 (6) TMI 859
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....evenue, 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 anti-dumping duty, based on the recommendation made by the designated authority. The reliefs that have been claimed by the appellant in the appeal are : "(i) Quash and set aside, decision taken by the Ministry of Finance vide office memorandum No. 190354/133/2022-TRU dated 28th October 2022 not to accept the Final Finding Notification F. No. 7/31/2021-DGTR, dated 29th July 2022; (ii) Pass an order extending the anti-dumping duty for a further period of three year, as recommended by Respondent No. 2 vide Final Finding Notification No. 7/31/2021-DGTR, dated 29th July or alternatively, direct the Respondent No. 1 to extend the anti-dumping duty and issue necessary notification; and (iii) In case the matter is being remitted to Respondent No. 1, since the review has not concluded, CESTAT should direct that anti-dumping may continue to remain in force....
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....e advised to file written submissions on the views expressed orally, followed by rejoinders, if any. As contemplated under rule 16, the essential facts of the investigation were disclosed to the known interested parties by a disclosure statement dated 19-7-2022. The interested parties, including the appellant, filed comments to the disclosure statement. 5. Thereafter, the designated authority notified the final findings on 29-7-2022. The relevant portions of the conclusion drawn and the recommendations made by the designated authority in the final findings are as follows : "N. CONCLUSION & RECOMMENDATIONS 144. Having regard to the contentions raised, information provided, submission made and facts available before the Authority as recorded above and on the basis of the above analysis of the likelihood of continuation or recurrence of dumping and injury to the domestic industry, the Authority concludes that : (i) The applicant constitutes domestic industry under Rule 2(b) of the Rules and the application satisfies the requirements under the rules. (ii) &....
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....hly likely that the imports from the subject countries would increase on the event of cessation of duties. (xiv) The fact that the dumped imports continued even after imposition of duties shows a strong likelihood that if the duties are revoked the imports will increase at a much higher rate. (xv) The Authority accordingly concludes that there is likelihood of continuation/recurrence of dumping and injury to the domestic industry in the event of cessation of duties. (xvi) The user industry has not been able to establish any adverse impact of duties on them. It is noted that the continuation of anti-dumping duties on the imports of the subject goods would be in the interest of domestic producers of the subject goods in India. (xvii) The product under consideration has a very low share in the total cost of tyre and therefore, the impact of duties on the end product will be negligible. (xviii) There is healthy competition in the Indian market and continuation of anti-dumping duty would not deprive the user industry of any requirements. 1....
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....dumping and injury to the domestic industry in the event of cessation of duties. The designated authority, therefore, made a recommendation to the Central Government to continue anti-dumping duty on the import of the subject goods from the subject countries. 7. An office memorandum dated 28-10-2022 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-190354/133/2022-TRU Government of India Ministry of Finance Department of Revenue (Tax Research Unit) Room No. 156, North Block, New Delhi, dated 28th October, 2022 OFFICE MEMORANDUM Subject : Final Findings in the matter of sun set review of Anti-Dumping Investigation concerning imports of "Styrene Butadiene Rubber" originating in or exported from European Union, Korea RP and Thailand - Regarding The undersigned is directed to refer to final findings on the above subject issued vide notification F.No. 7/31/2021-DGTR, dated the 29th July, 2022, wherein it was recommended continuation of anti-dumping duty on imports of "....
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.... it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 Anti-Dumping Rules. 11. 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. 12. Sub-section (5) of Section 9A provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry 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 ....
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.... 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 sh....
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....ped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent 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." 20. 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....
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....l for the private respondents, as also the learned authorized representatives appearing for the respondent Union of India have to be considered. 26. The maintainability of the appeal under Section 9C of the Tariff Act was examined at length by this very Bench in Apcotex Industries Ltd. v. Union of India, Anti-Dumping Appeal No. 51491 of 2021, dated 30-8-2022 and it was held that the appeal would be maintainable against the decision of the Central Government contained in the office memorandum not to impose anti-dumping duty. 27. 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 compiled with since the Central Government would ....
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.... power, a detail procedure has been provided in the Tariff Act, the 1995 Anti-Dumping Rules or the 1997 Safeguard Rules. xx       xx       xx 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 anti- dumping and safeguard duty. The first is the function of framing Rules such as the Anti­Dumping 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 characte....
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.... & other(s) v. Union of India & other(s), R/Special Civil Application No. 4495 of 2022, decided on 2-9-2022. 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.** ** **" 31. After considering the decisions of the Supreme Court in PTC India Ltd. v. Central Electricity Regulatory Commission, [2010] 4 SCC 603, National Thermal Power Corpn. 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 (SC), the Gujarat High Court also observed: "6.5.4 Under Section 9-C of the Customs Tariff Act, appeal lies against the order of determination o....
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....d relief claimed in the appeal. 37. The second relief that has been claimed in the application is that a direction may be issued to the Central Government to submit records/files wherein reasons, if any, have been recorded for not extending the anti-dumping duty. 38. The Learned Counsel for the appellant pointed out that even though the Tribunal had on 27-10-2021 in Jubilant Ingrevia Ltd. v. Union of India [Anti-Dumping Appeal No. 50461 of 2021, dated 27-10-2021] and on 30-8-2022 in Apcotex Industries Ltd. remanded the matter to the Central Government to take a fresh decision on the recommendations made by the designated authority in the final findings for imposition of anti-dumping duty, but the Central Government has not given effect to any of said orders till date since neither it has imposed duties recommended by the designated authority in those cases nor has it passed any reasoned order. It has, therefore, been submitted that instead of remitting the matter to Central Government, the Tribunal may, by taking note of the detailed analysis and reasoned findings arrived at by the designated authority regarding likelihood of continuance of dumping and injury, exten....
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....tion 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) as was held by the Supreme Court in Mekha Ram and others v. State of Rajasthan, Civil Appeal Nos. 2229-2234 of 2022, decided on 29-3-2022; Priyanka Overseas Pvt. Ltd. v. Union of India, 1991 (51) E.L.T. 185 (S.C.) = 1991 taxmann.com 10; and Kuil Fireworks Industries v. CCE, 1997 (95) E.L.T. 3 (S.C.) = 1997 taxmann.com 354. 40. The submissions advanced by the Learned Counsel for the appellant, therefore, are that the Tribunal may direct for extension of anti-dumping duty in the light of the recommendations made by the designated authority or in the alternate, if the Tribunal is of the view that matter needs to be re-examined by the Central Government, the Tribunal may, while remanding the matter, continue the original duty under the second proviso to Section 9A(5) of the Tariff Act till the conclusion of review by the Central Government, or otherwise direct the Central Government to issue an appropriate notification for such continuation. 41. Learned Counsel for the appellant further submitte....
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....nt also urged that the Tribunal may protect the interest of the appellant in the same manner as was protected by the Delhi High Court in the writ petition filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia Ltd. v. Union of India and 5 others [Anti-Dumping Appeal No. 50461 of 2021, dated 27-10-2021] so as to ensure that if the Central Government finally decides to extend/continue the levy, such levy can be given effect to from the date of the original office memorandum. 46. The Tribunal had in Jubilant Ingrevia Ltd. (supra) also set aside a similar office memorandum issued by the Under Secretary conveying the decision of the Central Government not to impose anti-dumping duty despite a recommendation made by the designated authority for imposition of anti-dumping duty. The order passed by the Delhi High Court on 5-9-2022 in W.P. (C) 5185/2022 filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia Ltd. (supra) is reproduced below : "W.P.(C) 5185/2022& CM No. 15389/2022 [Application filed on behalf of the petitioner seeking interim relief] 5. The respondent before us is the domestic industr....