TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 1424
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.... authority in the final findings notified on 30.03.2022 for imposition of anti-dumping duty under section 9A of the Customs Tariff Act 1975 [the Tariff Act], the Central Government did not issue the notification for imposition of antidumping duty. The relief, therefore, that has been claimed in the appeal is that the office memorandum dated 23.06.2022 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. 50741 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: "EE. 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 pa....
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....4/2021- DGTR dated 30th March, 2022 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 Certain Rubber Chemicals viz., TDQ, PVI and CBS [the subject goods] originating in or exported from China PR, European Union and Russia [the subject countries] . The designated authority, thereafter, issued a public notice dated 31.03.2021 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 ....
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....n the same has been determined excluding anti-dumping duties and there is no corresponding decline in the cost of production. Further, the cessation of duties could have enabled the foreign producers to rather charge a higher price in the market. It is however seen that there was a steep decline in the price in each of the subject products over the injury period. It is, thus, dumping of the product in the country that has led to significant decline in the prices and consequently profits, return on investment, and cash flow. ***** 164. ***** Accordingly, the Authority recommends imposition of antidumping duty on the imports dumping and the margin of injury, so as to remove the injury to of TDQ originating in or exported from China PR, European Union and Russia, imports of PVI originating in or exported from China PR and imports of CBS originating in or exported from China PR, for a period of five years from the date of notification to be issued in this regard by the Central Government." 7. 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 dumping and consequent injury to th....
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....ffice memorandum, communicating the decision of the Central Government not to continue anti-dumping duty, despite a recommendation having been made by the designated authority in the final findings to continue anti-dumping duty should be set aside for the reason that the principles of natural justice have been violated and even otherwise the decision is arbitrary, unreasoned and bad in law. The contention advanced by Shri Nagendra Yadav, learned authorized representative appearing for the Central Government, is that the appeal is not maintainable under section 9C of the Tariff Act and that the exercise of power by the Central Government under section 9A of the Tariff Act read with rule 18 of the 1995 Anti-Dumping 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. 10. In order to examine these submissions 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 p....
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....icle, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred 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 in....
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....argin of dumping taking into account, inter alia, the principles laid down in Annexure I to these rules." 19. Rule 11 deals with determination of injury and it is reproduced below: "11. Determination of injury. - (1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. (2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped 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 i....
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....n industry, and causal link between dumped imports and such injury, shall inter alia, take the principles enumerated from (i) to (vii) of Annexure II under consideration. 24. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price. 25. It is keeping in mind the aforesaid legal provisions that the submissions advanced by the learned counsel for the appellant and the learned counsel 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 M/s. Apcotex Industries Limited vs. Union of India and 38 others [Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022] 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, ....
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....cannot be 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 anti-dumping 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 ....
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.... 30. 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.*****" 31. 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 Under Section 9-C of the Customs Tariff A....
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..... 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." 36. 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 decision of the T....