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2023 (3) TMI 249 - AT - CustomsValidity of Notification dated 11.05.2022 issued by the Central Government rescinding the Notification dated 16.05.2017 imposing anti-dumping duty - seeking direction to the Central Government to issue a Notification for imposition of anti-dumping duty, based on the recommendation made by the designated authority - Maintainability of appeal under section 9C - Whether the Central Government exercises legislative power? - Provisional assessment of imports. The main contention that has been advanced is that despite the recommendation having been made by the designated authority in the final findings to impose anti-dumping duty, the Central Government kept quiet and did not issue the consequential notification for imposition of anti-dumping duty - submission is that under rule 18 of Anti Dumping Rules, the Central Government has to take a decision within three months of the publication of final findings, and as the Notification was not issued for a long period of time it should be presumed, particularly when the Central Government issued the Notification dated 11.05.2022 revoking the imposition of duty that the Central Government had decided not to impose anti-dumping duty on the subject goods from the subject country. Whether Central Government has taken a decision not to impose anti-dumping duty? - HELD THAT:- 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 and infact the notification dated 11.05.2022 was issued rescinding the notification dated 16.05.2017. 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. The inevitable conclusion, therefore, that 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. This presumption also finds support from the fact that the Central Government issued a notification dated 11.05.2022, after the final findings were submitted by the designated authority on 15.02.2022, rescinding the notification dated 16.05.2017 earlier issued by the Central Government imposing anti-dumping duty for a period of five years. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority. Maintainability of appeal under section 9C - 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 vs. Union of India and 38 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. In Balaji Amines Ltd. vs. The Union of India [[2022 (12) TMI 985 - CESTAT NEW DELHI]], the Bench also held that an appeal under section 9C of the Tariff Act would be maintainable even if the Central Government does not issue a notification for imposition of anti-dumping duty for a long period of time after the designated authority has made a recommendation for imposition of anti-dumping duty. Whether the Central Government exercises legislative power? - HELD THAT:- The 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. The matter, therefore, would have to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority for imposition of anti-dumping duty on the import of the subject goods from the subject countries. Provisional assessment of imports - HELD THAT:- The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being - It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry. The matter is remitted to the Central Government to consider the recommendation made by the designated authority - Appeal allowed by way of remand.
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