Home Case Index All Cases Customs Customs + AT Customs - 2022 (12) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (12) TMI 985 - AT - CustomsImposition of anti-dumping duty - imports of Dimethyl Formamid originating in or exported from Saudi Arabia and China PR - Central Government did not issue the notification for imposition of anti-dumping duty even though three months had expired from the date of publication of final findings - HELD THAT - 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 being dumped 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. 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. 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 presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty. It follows from the aforesaid discussion is that it has to be presumed that the Central Government has taken a decision not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty - The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority. It has been held by this Tribunal in M/S APCOTEX INDUSTRIES LIMITED AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2022 (11) TMI 1096 - CESTAT NEW DELHI and CHEMICAL AND PETROCHEMICALS MANUFACTURES ASSOCIATION (CPMA) VERSUS UNION OF INDIA AND OTHERS 2022 (12) TMI 830 - CESTAT NEW DELHI 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. Appeal disposed off.
Issues Involved:
1. Whether the Central Government has taken a decision not to impose anti-dumping duty. 2. Maintainability of appeal under section 9C of the Tariff Act. 3. Whether reasons have to be recorded by the Central Government. Detailed Analysis: 1. Whether the Central Government has taken a decision not to impose anti-dumping duty: The appellant, a domestic industry, contended that despite the designated authority recommending the imposition of anti-dumping duty on imports of Dimethyl Formamide from Saudi Arabia and China PR, the Central Government did not issue a notification within three months from the date of publication of the final findings. The appellant argued that this delay implies a decision by the Central Government not to impose the duty. The Tribunal referred to rule 18 of the 1995 Rules, which states that the Central Government may impose anti-dumping duty within three months of the publication of the final findings. The Tribunal concluded that a presumption can be drawn that the Central Government has decided not to impose anti-dumping duty if it remains silent for an extended period. This presumption aligns with previous Tribunal decisions in Apcotex Industries and Chemical and Petrochemicals Manufacturers Association cases. Consequently, the matter was remitted to the Central Government for a decision on the recommendation. 2. Maintainability of appeal under section 9C of the Tariff Act: The respondents argued that an appeal under section 9C of the Tariff Act is only maintainable against an "order of determination or review thereof" concerning the existence, degree, and effect of dumping. They contended that the final findings of the designated authority constitute such an order, and the Central Government's notification is merely consequential. The appellant countered that the non-issuance of a notification by the Central Government implies a decision not to impose anti-dumping duty, making the appeal maintainable. The Tribunal referred to its decision in Apcotex Industries, which held that an appeal is maintainable in such circumstances. Thus, the present appeal was deemed maintainable. 3. Whether reasons have to be recorded by the Central Government: The Tribunal held, consistent with its decisions in Apcotex Industries and Chemical and Petrochemicals, that the Central Government must record reasons if it decides not to impose anti-dumping duty despite a positive recommendation from the designated authority. This requirement ensures transparency and accountability in the decision-making process. Conclusion: The Tribunal remitted the matter to the Central Government for a decision on the recommendation made by the designated authority, in light of the Tribunal's decisions in Apcotex Industries and Chemical and Petrochemicals. The appeal was disposed of accordingly.
|