2006 (1) TMI 146 - HC - Customs

Anti-dumping appeal - challenged the recommendation of the Designated Authority - HELD THAT - A perusal of Rules 18(1) and (4) shows that Rule 18(1) deals with a situation where a designated authority finds that Anti-Dumping Duty is imposable in which case the Central Government shall impose the duty by a notification in the Official Gazette within three months of the date of the publication of final findings by the Designated Authority. Rule 18(4) deals with a situation where the Designated Authority finds that no Anti-Dumping Duty is imposable in which case the Central Government shall within forty-five days of the publication of final findings by the Designated Authority withdraw the provisional duty imposed if any. None of these Rules deals with a situation where the Designated Authority submits a report that Anti-Dumping Duty is not imposable but the Central Government disagrees with this conclusion. Moreover Section 9A of the Act does not provide for any limitation. When the parent Act does not provide for a limitation for doing some act then obviously such limitation cannot be prescribed by the Rules because the Rules are subordinate to the Act. Full play of Section 9A of the Act cannot be controlled by Rules as Rules are only a piece of delegated legislation and the delegated legislation cannot circumscribe the powers of the Act. Thus we dispose of the appeal with liberty to the appellant to approach the Central Government by making a representation giving the facts and annexing the relevant material and alleging that in fact Anti-dumping Duty was imposable on the goods. With these observations this appeal is finally disposed of.

Summary

Issues:
Challenge to recommendation of Designated Authority under Customs Tariff Act, 1975.

Analysis:
The writ appeal was filed against a judgment challenging the Designated Authority's recommendation under the Customs Tariff Act, 1975. The learned Single Judge had held that an appeal lies with the CESTAT under Section 9C of the Act. However, the High Court opined that an appeal under Section 9C lies only against the final order, not a mere recommendation. The final order imposing or not imposing Anti-Dumping Duty is made by the Central Government under Section 9A, and the Designated Authority's recommendation is not binding on the Central Government. The Designated Authority's recommendation does not create rights or liabilities, and the Central Government can disagree with it.

The hierarchy of laws in India was discussed, emphasizing that the Central Government has the authority to impose Anti-Dumping Duty under Section 9A of the Act. Any rule made under the Act must conform to Section 9A. The report of the Designated Authority amounts to a recommendation and does not create rights or liabilities. The High Court rejected the argument that Rule 4(1)(d) is ultra vires as it only provides for a recommendation and does not conflict with the Act or the Constitution.

Regarding the limitation period for passing orders, Rules 18(1) and 18(4) were examined. Rule 18(1) deals with imposing Anti-Dumping Duty within three months if found imposable, while Rule 18(4) addresses withdrawing provisional duty if no duty is imposable. However, none of these rules cover a situation where the Central Government disagrees with the Designated Authority's conclusion. The Act does not provide for any limitation, and Rules cannot circumscribe the powers granted by the Act.

The High Court disposed of the appeal, allowing the appellant to approach the Central Government with a representation alleging that Anti-Dumping Duty was imposable. The Central Government is required to decide on the representation within two months, not bound by the Designated Authority's report, and may form a different conclusion. Parties have the right to be heard during this process.