TaxTMI 
TaxTMI 
2023 (1) TMI 1430
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....entative for the Central Government Shri Jitendra Singh, Shri Anshuman Sahni, Shri Akshay Soni, Advocate for Respondent No. 8 to 10. ORDER The grievance raised by J.K. Paper Limited [the appellant] is that despite a recommendation having being made by the designated authority in the final findings notified on 26.11.2021 for continuation 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 03.03.2022 issued by the Ministry of Finance, Department of Revenue, Tax Research Unit conveying the decision of the Central Government not to impose antidumping duty proposed in the final findings 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. 50739 of 2022 was filed by the appellant with a prayer that two additional grounds and one additional prayer may be added. ....
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....n No. 7/8/2021-DGTR dated 26th November, 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. 7/8/2021- DGTR dated 26th November, 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 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] on imports of uncoated copier paper [the subject goods] originating in or exported from Thailand, Singapore and Indonesia [the subject countries]. On the basis of the final findings notified by the designated auth....
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....gnated Authority considers it appropriate to recommends continuation of existing quantum of anti-dumping duty on the imports of the subject goods from subject countries. The Authority, thus, considers it necessary to recommend continuation of existing definitive anti-dumping duty imposed vide Notification No. 56/2018-Customs dated 4th December 2018 for further period of two (2) years from the date of notification to be issued in this regard by the Central Government." (emphasis supplied) 7. It would be seen from the aforesaid final findings that on the basis of a detailed analysis carried, the designated authority found as fact that the product under consideration continued to be exported to India at prices below normal value resulting in continued dumping and that dumping of the product was likely to continue and the volume of imports was likely to increase significantly in the event of cessation of anti-dumping duties. Thus, there was a likelihood of continuation of dumping and recurrence of injury to the domestic industry. 8. An office memorandum dated 03.03.2022 was then issued by the Ministry of Finance to convey the decision of the Central Government not to impose an....
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....-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 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 a....
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....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 a request therefor in writing. (4) The designated authority may issue 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 docu....
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.... (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) there is a concentration of dumped imports into an isolated market, and (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 investiga....
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....el 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, 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....
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....f 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 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 p....
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....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 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." ....
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....dinterim 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 Tribunal rendered in Association of Synthetic Fibre Industry vs. Union of India and 4 Others [Anti-Dumping Appeal No. 51049 of 2021 decided on 01.11.2021] in which a similar office memorandum was set aside. 37. T....