2023 (1) TMI 1382 - AT - Customs

Seeking issuance of notification for imposition of anti-dumping duty based on the recommendation made by the designated authority - HELD THAT - 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 AND OTHERS VERSUS UNION OF INDIA AND OTHERS 2022 (11) TMI 1096 - CESTAT NEW DELHI 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. 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 to be compiled with since the Central Government would be performing the third category of conditional legislation contemplated in the judgment of the Supreme Court in STATE OF T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM ANR. 1997 (11) TMI 520 - SUPREME COURT . The inevitable conclusion therefore that follows from the aforesaid discussion is that the decision taken by the Central Government not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty cannot be sustained as it does not contain reasons nor the principles of natural justice have been compiled with and the matter would have to be remitted to the Central Government for taking a fresh decision on the recommendation made by the designated authority. The office memorandum dated 08.01.2022 is set aside and the matter is remitted to the Central Government to reconsider the recommendation made by the designated authority in the final findings - Appeal allowed.

Issues Involved:
1. Maintainability of the appeal u/s 9C of the Customs Tariff Act.
2. Nature of the Central Government's determination'whether legislative or quasi-judicial.
3. Compliance with principles of natural justice and requirement of a reasoned order.
4. Interim protection for the appellant pending final decision.

Summary:

1. Maintainability of the Appeal u/s 9C:
The Tribunal examined the maintainability of the appeal under section 9C of the Customs Tariff Act and held that the appeal would be maintainable against the decision of the Central Government not to impose anti-dumping duty.

2. Nature of the Central Government's Determination:
The Tribunal considered whether the determination by the Central Government was legislative or quasi-judicial. It concluded that the function performed by the Central Government is quasi-judicial in nature. Even if considered legislative, the principles of natural justice and the requirement of a reasoned order must be complied with, as the Central Government performs the third category of conditional legislation.

3. Compliance with Principles of Natural Justice and Requirement of a Reasoned Order:
The Tribunal held that the Central Government must record reasons when it decides not to impose anti-dumping duty despite a positive recommendation by the designated authority. It emphasized that the principles of natural justice require that tentative reasons be recorded and conveyed to the domestic industry, allowing them an opportunity to submit a representation.

4. Interim Protection for the Appellant:
The Tribunal provided interim protection similar to that granted by the Delhi High Court in similar cases. It directed provisional assessment of imports concerning the subject goods from the subject countries, clarified that this direction would not create any equities in favor of the domestic industry, and stated that the direction would not impact the final decision to be taken by the Central Government.

Conclusion:
The Tribunal set aside the office memorandum dated 08.01.2022 and remitted the matter to the Central Government to reconsider the recommendation made by the designated authority. The directions for provisional assessment of imports will remain operative until a decision is taken by the Central Government. The appeal was allowed to the extent indicated.

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