TaxTMI 
TaxTMI 
TaxTMI 
2023 (1) TMI 1426
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....ocates 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 additional grounds and one additional pray....
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....21-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 dated 11.07.2016 imposing anti-dumping duty for the period of 5 years. A second sun....
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....loyed. 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 duty table appended below. The landed value of imports for this purpose shall be assessable value as determined by the Customs under Cust....
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....he 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 the Tariff Act read with rule 18 of the 1995 Rules is legislative in nature and so neither the principles of natural justice are required to b....
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....ce 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 interested party who makes ....
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....to 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 is not injured, if- (i) t....
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....nk 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 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 anti-dumping duty not exceeding the margin of dumping in relation to such article. It is under rule 17 of the 1995, Anti-Dumping Rules that the designated authority is required to, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is....
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....sued 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 in the office memorandum not to impose anti-dumping duty. 31. In Balaji Amines Ltd. vs. The Union of India [Anti-dumping Appeal No. 51151 of 2022 decided on 20.12.2022], the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping dut....
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....overnment, 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 nonetheless when the Central Government has to take a decision on the recommendation made by the designated authority in the final findings such factual aspects 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 imposi....
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....nal 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 Act and the 1995 Anti-Dumping Rules or the 1997 Safeguard Rules do not provide for such an opportunity to be provided to the domestic industry, but the principles of natural justice would require such an opportunity to be provided." (emphasis supplied) 35. 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....
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....t 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 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 25.08.2020 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 adinterim measure, the following direction would suffice, as the need to im....