TaxTMI 
TaxTMI 
2023 (1) TMI 1425
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....otified on 23.09.2021 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 anti-dumping duty within three months from the date the final findings were notified by the designated authority. The relief, therefore, that has been claimed in this appeal is that 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. 50747 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: "II. 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 pass such orders so as to secure the ends of justice. The Rule 41 of the CESTAT (Procedure) Rules, 1982, are extracted below for ease of reference: "RULE 41. Orders and directions in certain cases- The Tribunal....
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....gly allowed. The two grounds and the additional prayer shall be added in the Memo of Appeal. 5. It transpires from the record that an application had been before the designated authority on behalf of the domestic industry 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] for imposition of anti-dumping duty on the imports of Ceftriaxone Sodium Sterile [subject goods] originating in or exported from China PR [Subject country]. Thereafter, on the basis of the first sunset review investigation and the final findings dated 20.05.2014 of the designated authority, the Central Government issued a Notification dated 14.08.2014 imposing anti-dumping duty for the period of 5 years. The appellant, as a domestic industry, filed a fresh application for imposition of anti-dumping duty and initiation notification was issued on 24.09.2020. The designated authority issued the disclosure statement on 08.09.2021 and after considering the comments received from the interested parties, the f....
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.... be assessable value as determined by the Customs under Customs Act, 1962 and applicable level of custom duties except duties levied under Section 3, 3A, 8B, 9, 9A of the Customs Tariff Act, 1975." (emphasis supplied) 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 the domestic industry that designated authority found as fact that domestic industry had suffered material injury and this material injury had been the caused by the dumped imports. The designated authority also found there existed a likelihood of continuation of dumping and injury in the event of cessation of anti-dumping duty in force in the light of surplus capacities maintained by the Chinese producers. The designated authority, therefore, considered it necessary to recommend imposition of anti-dumping duty on the subject goods from the subject country. 8. The main contention that has been advanced by the Ms Reena Asthana Khair, learned counsel appearing for the appellant assisted by Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri Subham Jaiswal, Shri Nikhil Sharma and Ms. Vr....
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.... In order to examine these submissions it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 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 t....
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....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 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 sh....
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.... (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: 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 Annexu....
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....in India and submit its final findings to the Central Government. Under rule 18, the Central Government may, within three months of the date of publication of the final findings by the designated authority under rule 17, impose by a notification in the Official Gazette, upon importation into India of the article covered by the final findings, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 27. In the present case, it is not in dispute that the final findings of the designed authority were published on 11.01.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum. 28. The issue that arises for consideration is whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority. On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a pr....
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....ainable. The present appeal would, therefore, clearly be maintainable." Whether the Government exercises legislative power 32. The Bench in Apcotex Industries 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 be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in State of Tamil Nadu vs. K. Sabanayagam and another [(1998) 1 SCC 318]. The relevant observation of the Bench in Apcotex Industries Limited 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 take....
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....e 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. ***** 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....
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....sions on this score.*****" 36. 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 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." 37. 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 vs. Institute of Social Welfare [(2002) 5SCC 658], the Gujarat High Court held that the notification issued by the Central Government would be quasi-judicial in nature. 38. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that rea....