TaxTMI 
TaxTMI 
2023 (1) TMI 1382
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.... authority in the final findings notified on 19.08.2021 for imposition of anti-dumping duty under section 9A of the Customs Tariff Act 19752 [the Tariff Act], the Central Government did not issue the notification for imposition of anti-dumping duty. The relief, therefore, that has been claimed in the appeal is that the office memorandum dated 08.01.2022 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 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. 2. During the pendency of the appeal, Miscellaneous Application No. 50745 of 2022 was filed by the appellant with a prayer that two additional grounds and one additional prayer may be added. The two additional grounds sought to be 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 p....
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....2020-DGTR dated 19.08.2021 shall be cleared on provisional assessment basis." 4. The application deserves to be allowed, as it is based on an earlier decision of the Tribunal. It is accordingly allowed. The two grounds and the additional prayer shall be added in the Memo of Appeal. 5. It transpires from the records that the appellant had filed an application before the designated authority for initiation of anti-dumping 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 Polyester Yarn (Polyester Spun Yarn) [the subject goods] originating in or exported from China PR, Indonesia, Nepal and Vietnam [the subject countries]. The designated authority, thereafter, issued a public notice dated 21.05.2020 for initiation of anti-dumping investigation under rule 6(1) of the 1995 Anti-Dumping Rules to determine the existence, degree and effect of alleged dumping and to consider recommendation for imposition of Anti-Dumping duty, if any. The period of investigation for the purpose of Anti-Dumping du....
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.... Subject: Final Findings in the matter of Anti-Dumping Investigation concerning imports of "Polyester Yarn (Polyester Spun Yarn)" originating in or exported from China PR, Indonesia, Nepal and Vietnam reg The undersigned is directed to refer to final findings on the above subject issued vide notification F. No. 6/10/2020-DGTR, dated the 19th August, 2021, wherein it was recommended to impose definitive Anti-Dumping duty on imports of "Polyester Yarn (Polyester Spun Yarn)", originating in or exported from China PR, Indonesia, Nepal and Vietnam. 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 20 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping 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)" 9. The main contention that has been advanced by Ms. Reena Asthana Khair, learned counsel appearing for the appellant assisted by Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri....
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....for the purpose of this section. The first proviso, however, provides that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation 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. 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 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;" 16. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of an....
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....gation, 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 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." 18. Rule 10 deals with determination or normal value, export price and margin of dumping and it is reproduced below: "10. ....
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....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." 21. 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, Anti-Dumping duty not exceeding the margin of dumping as determined under rule 17." 22. 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 and margin of dumping shall take into account the principles contained in ....
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....ould 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 ascertained and determined by the Central Government, after such inquiry as it may conside....
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....for imposition of anti-dumping duty." (emphasis supplied) 28. 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) 29. 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 to be accepted then tentative reasons have to be recorded and conveyed to the domestic industry so as to give an opportunity to the domestic....
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.... by the designated authority for imposition of anti-dumping duty, cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority. 34. In the end, learned counsel for the appellant 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 vs. Union of India and 5 others Anti-Dumping Appeal No. 50461 of 2021 decided on 27.10.2021. 35. The Tribunal had 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 05.09.2022 in W.P(C)5185/2022 filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia, is reproduced below: "W.P.(C) 5185/2022& CM No. 15389/....