Home Case Index All Cases Customs Customs + HC Customs - 2019 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 145 - DELHI HIGH COURTJurisdiction - power to review - Imposition of ADD - imports of AA Dry Cell Batteries from the People’s Republic of China and Vietnam - Section 9C of the Customs Tariff Act. Whether the Designated Authority’s negative Final findings recommending no anti dumping duty on the ground of it not being in accord with the disclosure statement published by it, can in the circumstances of this case, be interfered with in judicial review? Held that:- Supreme Court judgments, and several decisions of High Courts, have clarified that the Designated Authority is only an investigating authority whose findings are recommendatory in nature. It is only when the recommendation is followed by a notification imposing anti dumping duty that a lis arises; this appears to be clear from the three judge decision in Tata Chemicals v Union of India [2008 (3) TMI 17 - SUPREME COURT]. No doubt, every DA adopts and is duty bound to adopt (in consonance with GATT provisions as well as the rules) a quasi-judicial procedure, whereby opportunity is granted to the concerned parties and those likely to be affected, culminating in reasoned final findings. Supreme Court in Automotive Tyre Manufacturers Association v. the Designated Authority & Ors [2011 (1) TMI 7 - SUPREME COURT OF INDIA] has held that the DA exercises quasi-judicial functions and is bound to act judicially. The DA determines the rights and obligations of the “interested parties” by applying objective standards based on the material/information/evidence presented by the exporters, foreign producers and other “interested parties” by applying the procedure and principles laid down in the 1995 Rules. While determining the existence, degree and effect of the alleged dumping, the Designated Authority determines a “lis” between persons supporting the levy of duty and those opposing the said levy. According to Rule 4(1) (d) of the Rules, the duty of the Designated Authority is to recommend the amount of anti-dumping duty, which if levied, would remove the injury to the domestic industry. Section 9A of the Customs Tariff Act enables only the Central Government to impose anti-dumping duty. The Customs Tariff Act and the Rules thereunder thus make it clear that the Designated Authority’s findings are mere recommendations intended to assist the Central Government. This court is conscious of the separate roles that the Designated Authority and the Central Government perform in deciding whether or not to impose anti-dumping duty. The Central Government is restricted from imposing anti-dumping duty in certain circumstances. One such circumstance is outlined in Section 9B (1)(b)(ii) of the Act. Section 9B(1)(b)(ii) prevents the Central Government from levying anti-dumping duty on any article imported into India from a member of the World Trade Organisation (WTO) or from a most favoured nation, unless a determination has been made that import of such article causes or threatens material injury to any established industry in India. In the present case, 01.04.2014 to 31.03.2015 was chosen as the period of investigation- initiated on 20.10.2015. By Rule 17 necessarily the DA had to furnish its report. On 27.09.2016, DA issued the Impugned Final Findings wherein it recommended against the imposition of anti-dumping duty. The proviso enables the Central Government, in the exercise of its discretion to extend that period by a maximum of six months. In the event that the DA had decided to impose anti-dumping duty, the Central Government, according to Rule 18(1) would be obligated to impose antidumping duty within three months of the Designated Authority’s final finding. In case of an adverse finding, even the provisional duty (if imposed earlier) has to be revoked within forty-five days of publication of the final findings. In the facts of the case, if the petitioners’ contentions were to be accepted, the “window period” for the DA to have reconsidered the matter after judgment, under Article 226 would have been between 27.9.2016 and 20 April 2017. Even if, arguendo anti-dumping duty were justified, the matter would necessarily have to be remanded back before the DA for reconsideration. Anti-dumping duty will only be imposed once both the DA and the Central Government agree that it is warranted. However, as the period of investigation is from 01.04.2014 to 31.03.2015, all determinations will only concern this 12-month period. Petition dismissed.
|