AI Drafter 
TaxTMI 
TaxTMI 
2023 (1) TMI 1426
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....Ameet Singh & Ms Bhavana Varsha, Advocates for Designated Authority Ms Jaya Kumari, Authorized Representative for the Central Government ORDER The grievance raised by M/s. SRF Limited [the appellant], is that despite a recommendation having being made by the designated authority in the final findings notified on 08.10.2021 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 the Notification dated 06.01.2022 issued by the Central Government rescinding the Notification dated 11.07.2016 imposing anti-dumping duty, as amended by Notification dated 24.05.2021, 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. 50740 of 2022 was filed by the appellant with a prayer that two a....
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....under investigation pursuant to Final Finding Notification No. 7/1/2021-DGTR dated 08.10.2021 shall be cleared on provisional assessment basis." 3. The prayer to be added is: "(b-1). Pending final decision by Respondent No. 1, direct that imports of the article under investigation pursuant to Final Finding Notification No. 7/1/2021-DGTR dated 8th October, 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 earlier, based on recommendation made by the designated authority in the final findings dated 10.05.2011 for imposition of the definitive antidumping duty on the imports of 1,1,1,2-Tetrafluoroethan or R- 134a [subject goods], the Central Government issued a Notification dated 15.07.2011 imposing anti-dumping duty for a period of five years. Thereafter, on the basis of the first sunset review investigation and the final findings dated 30.05.2016 of the designated authority, the Central Government issued a Notification d....
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....try has been suffering significant deterioration in term of profits, cash profits and return on the capital employed. f. The material injury suffered by the domestic industry has been caused by the dumped imports. g. There exists a likelihood of continuation of dumping and injury in the event of cessation of anti-dumping duty in force in light of the surplus capacities maintained by the Chinese producers, declining demand for the subject goods in major markets like US and EU, tariff barriers placed on Chinese imports by the US, the attractiveness of the Indian market and the export orientation of the Chinese producers. ***** 133. Having regard to the lesser duty rule followed by the Authority, the Authority recommends imposition of anti-dumping duty equal to the lesser of margin of dumping and the margin of injury, so as to remove the injury to the domestic industry. Accordingly, the Authority recommends imposition of antidumping duty on the imports of subject goods, originating in or exported from subject country, from the date of notification to be issued in this regard by the Central Government, equal to the amount mentioned in Col. 7 of the d....
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....d be issued to the Central Government to issue a Notification for imposition of antidumping duty on the basis of the recommendation made by the designated authority in the final findings dated 08.10.2021. Learned counsel for the appellant further submitted that till such time as the Central Government takes a decision, the Tribunal should issue a direction for provisional assessment, as was done by the Delhi High Court on 05.09.2022 in WP (C ) 5185/2022 filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia Limited vs. Union of India and 5 others [Anti-Dumping Appeal No. 50461 of 2021 decided on 27.10.2021], in which also a direction had been issued by the Tribunal to the Central Government to take a reasoned decision because despite the recommendation of the designated authority for imposition of anti-dumping duty, the Central Government had not issued a Notification for imposition of anti-dumping duty. 9. Ms. Jaya Kumari, learned authorized representative appearing for the Central Government submitted that appeal itself is not maintainable under section 9(C) of the Tariff Act and the exercise of power by the Central Government under section 9A of....
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....igations.- (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, 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 expo....
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....f normal value, export price and margin of dumping- An article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstances the designated authority shall determine the normal value, export price and the margin 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....
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....e determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure. 23. Annexure-II to the 1995 Anti-Dumping Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an 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 authorized representatives appearing for the respondent Union of India have to be considered. Whether Central Government has taken a decision not to impose anti-dumping duty 26. Section 9A of the Tariff Act provides that where any article is exported by an exporter or producer from any country or territory to India at le....
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.... is that it has to be presumed that the Central Government has taken a decision not to impose antidumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. This presumption also finds support from the fact that the Central Government issued a notification dated 06.01.2022, after the final findings were submitted by the designated authority on 08.10.2021, rescinding the notification dated 11.07.2016 earlier issued by the Central Government imposing anti-dumping duty for a period of five years and then extending it upto and inclusive of 10.01.2022 by a notification dated 24.01.2021. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority. Maintainability of appeal under section 9C 30. 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....
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....agam. 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 consider necessary. Rules may have been framed by the Central Government under which the designated authority has to carry out a meticulous examination, but nonethe....
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....h 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) 34. 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 antidumping 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 industry to submit a representation. Though the Tariff A....
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....ommendation made by the designated authority in the final findings for imposition of anti-dumping duty. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries. Provisional Assessment 39. 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. 40. The Tribunal had set aside the 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.15389/2022 [Application filed on behalf of the p....