2022 (12) TMI 984 - AT - Customs

Non-imposition of anti-dumping duty - imports of colour coated/pre-painted flat products of alloy or non-alloy steel originated in or exported from China PR and European Union - Central Government did not issue a notification for imposition of anti-dumping duty though three months expired from the date of publication of final finding - 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. 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? - HELD THAT - 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 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 Apcotex Industries 2022 (11) TMI 1096 - CESTAT NEW DELHI and Chemical and Petrochemicals 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.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in the judgment are:

Whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty if it does not issue a notification within three months of the designated authority's final findings.
Whether an appeal is maintainable under section 9C of the Customs Tariff Act, 1975, against the non-issuance of a notification by the Central Government despite a recommendation from the designated authority.
Whether the Central Government is required to record reasons if it decides not to impose anti-dumping duty despite a recommendation from the designated authority.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Presumption of Decision Not to Impose Anti-Dumping Duty

Relevant Legal Framework and Precedents: Section 9A of the Customs Tariff Act and Rules 17 and 18 of the 1995 Anti-Dumping Rules. The Tribunal's decision in Apcotex Industries was also considered.
Court's Interpretation and Reasoning: The Tribunal interpreted that a presumption can be drawn that the Central Government has decided not to impose anti-dumping duty if it remains silent beyond the three-month period stipulated in Rule 18.
Key Evidence and Findings: The designated authority's final findings were published, but the Central Government did not issue a notification within three months.
Application of Law to Facts: The Tribunal applied the legal framework to conclude that the Central Government's inaction implied a decision not to impose the duty.
Treatment of Competing Arguments: The appellant argued that silence implies a decision, while the respondents suggested legislative discretion. The Tribunal sided with the appellant's interpretation.
Conclusions: The Tribunal concluded that the Central Government's silence should be interpreted as a decision not to impose anti-dumping duty.

Issue 2: Maintainability of Appeal under Section 9C

Relevant Legal Framework and Precedents: Section 9C of the Customs Tariff Act, 1975, and relevant case law, including Jindal Poly Film Ltd. and Apcotex Industries.
Court's Interpretation and Reasoning: The Tribunal interpreted that an appeal is maintainable under section 9C, even against the non-issuance of a notification by the Central Government.
Key Evidence and Findings: The Tribunal considered the legislative intent and the nature of the designated authority's recommendations.
Application of Law to Facts: The Tribunal applied section 9C to determine that the appeal was maintainable.
Treatment of Competing Arguments: The respondents argued that only determinations by the designated authority are appealable, while the appellant argued for broader appeal rights. The Tribunal favored the appellant's view.
Conclusions: The Tribunal held that the appeal is maintainable under section 9C.

Issue 3: Requirement for Recording Reasons

Relevant Legal Framework and Precedents: The Tribunal's decisions in Apcotex Industries and Chemical and Petrochemicals.
Court's Interpretation and Reasoning: The Tribunal held that the Central Government must record reasons if it decides not to impose anti-dumping duty despite a positive recommendation from the designated authority.
Key Evidence and Findings: The Tribunal found that the absence of reasons undermines transparency and accountability.
Application of Law to Facts: The Tribunal applied its reasoning to the facts, emphasizing the need for recorded reasons.
Treatment of Competing Arguments: The respondents argued that legislative discretion does not require reasons, but the Tribunal disagreed.
Conclusions: The Tribunal concluded that reasons must be recorded by the Central Government in such cases.

3. SIGNIFICANT HOLDINGS

Presumption of Decision: "A presumption can safely 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."
Maintainability of Appeal: "The present appeal would, therefore, clearly be maintainable."
Requirement for Reasons: "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."
Final Determinations: The matter is remitted to the Central Government to take a decision on the recommendation made by the designated authority, ensuring that reasons are recorded if the decision is not to impose anti-dumping duty.