TaxTMI 
TaxTMI 
2023 (6) TMI 859
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....he 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 pending the outcome of such a review for a further ....
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....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) There is continued dumping of the subject goods from Korea RP and European Union, despite ....
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....n 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. 145. The Authority notes that the investigation was initiated and notified to all interested parties and adequate opportunity was given to the domestic industry, exporters, importers and other interested parties to provide&....
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....ct 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 "Styrene Butadiene Rubber" originating in or exported from European Union, Korea RP and Thailand. 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, 20 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-du....
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....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 section. 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 o....
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....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 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 info....
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....bsp; 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 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 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 : (b)....
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....nt 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 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 observation of the Bench in Apcotex Industries Ltd. 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 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 ....
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....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. 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....
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.....** ** **" 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 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." 32. The Gujarat High Court also examined whether quasi-judicial process was involved in issuance of the notification by the Central Government and after analyzing the decision of the Supreme Court in Indian National Congress v. Institute of Social Welfare, [2002] 5 SCC 658, held that the notification issued by the Central Government would be quasi-judicial in nature. 33. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that the....
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....ral 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, extend the levy of anti-dumping duty under the first proviso to Section 9A(5) of the Tariff Act. The contention is that the powers of the Tribunal, being an appellate authority, are co-terminus with the powers of the Central Government under Section 9A of the Tariff Act and in this connection reliance has been placed on the decision of the Supreme Court in Commissioner of Income Tax v. McMillan & Co., AIR 1958 SC 207 and on the decision of a Full Bench of the Madras High Court in State of Tamil Nadu v. Arulmurugan and Co., (1982) 51 STC 381 (FB) (Mad.). 39. Alternatively, Learned Counsel submitted that if the Tribunal is of the view that matter should be remanded to the Central Government for reconsidera....
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....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 submitted that since extension of duty (under first proviso) or continuance of duty (under second proviso) would have to be given effect from the date of original office memorandum, a direction for provisional assessment of duty is warranted in the facts of the case 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. 42. It will not be appropriate for the Tribunal, at this stage, to extend the anti-dumping duty on the basis of the final findings of the designated authority in terms of the first proviso to Section 9A(5) of the Tariff Act. The matter is being remitted to the Central Government to take a con....
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....endation 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 industry. It is not in dispute that the Designated Authority [in short "DA"] via notification dated 25-8-2020 has recommended the imposition of anti-dumping duty [in short "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 ad-interim 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 w....