TMI Blog2018 (9) TMI 1294X X X X Extracts X X X X X X X X Extracts X X X X ..... ion" passed by the Central Government for the purpose of Section 9C of the CT Act - the statute i.e. Section 9C would be interpreted in a manner that it would effectuate and not frustrate the purpose of the legislation that a party should have a right of appeal against the quasi judicial determination in relation to orders determining existence, degree and effect of any subsidy or dumping of articles imported into India. Section 9C does not state and provide that an appeal is maintainable against customs notification. However, it refers to and states that an appeal would lie against the "order of determination" regarding existence, degree and effect of dumping. The words "existence, degree and effect of dumping" are significant. The final finding of the Designated Authority in the said aspect can be in positive i.e. when it recommends imposition of anti-dumping duty or may be in negative when it finds and holds that no anti-dumping should be imposed. Upon negative finding by the Designated Authority no further action is contemplated and required by the Central Government - Contention of the petitioner that the "order of determination" would mean notification imposing anti dumpin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, 2016, the petitioner had filed an application for initiation of anti-dumping investigation on imports of Non-Woven fabric originating and exported from the China PR, Malaysia, Indonesia, Thailand and Saudi-Arabia on the ground that they were causing injury to the domestic industry. Thereupon, the Designated Authority had issued public notice on 15th June, 2016 in terms of Rule 5 of the Rules to determine existence, degree and effect of alleged dumping and to decide whether to recommend and specify the amount of anti-dumping duty that would be adequate to remove injury to the domestic industry. The period of investigation selected by the Designated Authority was 9 months from 1st July, 2015 to 31st March, 2016. Interested parties had consequently submitted information and evidences. On 2nd August, 2017, the Designated Authority had issued disclosure statement under Rule 16 containing essential facts under consideration that would form basis of the final findings. However, by the impugned order dated 2nd September, 2017, the Designated Authority had issued termination order holding that the product under consideration being exported to India from the subject countries (Malaysia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to an article, means the difference between its export price and its normal value; (b) export price , in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) normal value , in relation to an article, means- (i) the comparable price, in the ordinary course of trade, for the like article when destined for consumption in the exporting country or territory as determined in accordance with the rules made under sub-section (6); or (ii) when there are no sales of the like article in the ordinary course of trade in the domestic market of the exporting country or territory, or when becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that portion of the article so cleared or so used as was leviable when it was imported into India. Explanation .-For the purposes of this section, the expressions hundred per cent export-oriented undertaking , free trade zone and special economic zone shall have the meanings assigned to them in Explanation 2 to subsection (f) of section 3 of Central Excise Act, 1944. (3) If the Central Government, in respect of the dumped article under inquiry, is of the opinion that- (i) there is a history of dumping which caused injury or that the importer was, or should have been, aware that the exporter practices dumping and that such dumping would cause injury; and (ii) the injury is caused by massive dumping of an article imported in a relatively short time which in the light of the timing and the volume of imported article dumped and other circumstances is likely to seriously undermine the remedial effect of the antidumping duty liable to be levied, the Central Government may, by notification in the Official Gazette, levy anti-dumping duty retrospectively from a date prior to the date of imposition of anti-dumping duty under sub-section (2) but not beyond ninety ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore each House of Parliament. (8) The provisions of the Customs Act, 1962 and the rules and regulations made thereunder, relating to, the date for determination of rate of duty, non-levy, short levy, refunds, interest, appeals, offences and penalties shall, as far as may be, apply to the duty chargeable under this section as they apply in relation to duties leviable under that Act. xxx 9C. (1) An appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (hereafter referred to as the Appellate Tribunal). [(1A) An appeal under sub-section (1) shall be a accompanied by a fee of fifteen thousand rupees. (1B) Every application made before the appellate Tribunal,- (a) in an appeal under sub-section (1), for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees] (2) Every appeal under this secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ountries; (d) to recommend to the Central Government- (i) the amount of anti-dumping duty equal to the margin of dumping or less which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and (ii) the date of commencement of such duty; (e) to review the need for continuance of anti-dumping duty. xxx 14. Termination of investigation.- The designated authority shall, by issue of a public notice, terminate an investigation immediately if- (a) it receives a request in writing for doing so from or on behalf of the domestic industry affected, at whose instance the investigation was initiated; (b) it is satisfied in the course of an investigation, that there is not sufficient evidence of dumping or, where applicable, injury to justify the continuation of the investigation; (c) it determines that the margin of dumping is less than two per cent of the export price; (d) it determines that the volume of the dumped imports, actual or potential, from a particular country accounts for less than three per cent of the imports of the like product, unless, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. (3) The designated authority shall determine an individual margin of dumping for each known exporter or product concerned of the article under investigation: Provided that in cases where the number of exporters, producers, importers or types of articles involved are so large as to make such determination impracticable, it may limit its findings either to a reasonable number of interested parties or articles by using statistically valid samples based on information available at the time of selection, or to the largest percentage of the volume of the exports from the country in question which can reasonably be investigated, and any selection, of exporters, producers, or types of articles, made under this proviso shall preferably be made in consultation with and with the consent of the exporters, producers or importers concerned: Provided further that the designated authority shall determine an individual margin of dumping for any exporter or producer, though not selected initially, who submit necessary inform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under rule 17, withdraw the provisional duty imposed, if any. xxx 23. Review.- (1) Any anti-dumping duty imposed under the provision of section 9A of the Act, shall remain in force, so long as and to the extent necessary, to counteract dumping which is causing injury. (1A) The designated authority shall review the need for the continued imposition of any anti-dumping duty, where warranted, on its own initiative or upon request by any interested party who submits positive information substantiating the need for such review, and a reasonable period of time has elapsed since the imposition of the definitive anti-dumping duty and upon such review, the designated authority shall recommend to the Central Government for its withdrawal, where it comes to a conclusion that the injury to the domestic industry is not likely to continue or recur, if the said anti-dumping duty is removed or v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act states that the Central Government by a notification in the official gazette can impose anti-dumping duty not exceeding the margin of dumping in relation to such article. Therefore, imposition of anti-dumping duty requires a gazette notification. Till a gazette notification is issued, anti- dumping duty cannot be imposed and collected even if the Central government intends and wants to impose anti-dumping duty. We need not refer to the Explanation for the purpose of present adjudication. Similarly, reference to Sub-Section 1(a) is not required as it would come into operation in cases of circumvention of anti-dumping duty imposed under Sub-Section 1. Sub-section 2, however, is relevant and states that the Central Government can, pending the determination under Section 9A, i.e. in the interlude till determination of the existence, degree, and effect of subsidy/dumping in relation to any article imported into India, impose anti-dumping duty on importation of an article into India, on provisional estimate of such value and margin. The provision prescribes the conditions that should be satisfied, the formula for imposition of provisional or interim anti-dumping duty pending inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with powers of the Designated Authority and right to conduct investigation and clause (b) relates to identification of article. Clause (c) deals with duty of the Designated Authority to submit its findings, provisional or otherwise to the Central Government and Clause (d) authorizes the Designated Authority to make recommendations to the Central Government on the quantum of anti-dumping duty, which if levied would remove the injury. Clause (e) relates to review of the continuation of anti-dumping duty. 13. Clause (a) in Rule 4 is significant. The clause defining the duties of the Designated Authority, uses the same and identical expressions as used in Section 9C of the CT Act i.e. existence, degree and effect of any alleged dumping in relation to import of any article. Designated Authority has the power to carry out investigation to identify the article liable for anti-dumping duty and submit its finding, provisional or otherwise to the Central Government, as to the normal value, the export price and the margin of dumping in relation to the article under investigation, i.e. different aspects referred to in Section 9A of the CT Act. Designated Authority has the power to exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he margin of dumping of the said article, casual link, if applicable, between the dumped imports and injury and recommend the amount of duty, if levied, would remove the injury to the domestic industry on the basis of principles in Annexure III. Sub-rule 2 to Rule 17 states that where the final finding of the Designated Authority on anti-dumping duty is in affirmative, the said finding shall contain all information on the matter of facts and law and reasons that led to the conclusion. Final finding is required to contain information mentioned in Clauses (i) to (v) which includes consideration relevant to the injury determined and the main reasons leading to the determination. Designated Authority as per Sub-rule 3 is to determine individual margin of dumping for each case, the exporter or producer concerned of the article under investigation. Sub-rule 4 states that the Designated Authority shall issue public notice regarding its finding. In terms of Rule 17 the report of the Designated Authority has to be exhaustive and comprehensive covering all aspects relating to and relevant for determining whether the Designated Authority recommends levy antidumping duty or gives a negative fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the Central Government and does not speak of recommendation of the Designated Authority. Reliance is placed on Saurashtra Chemicals Limited Vs. Union of India Ors., 2000 (118) E.L.T. 305 (S.C), wherein the Supreme Court has refused to entertain the Special Leave Petition, under Article 136 of the Constitution of India, observing that the order of the Designated Authority was purely re-commendatory and an appeal lies against the determination which is to be made by the Central Government. Reliance is placed upon the judgment of the Appellate Tribunal in M/s. Panasonic Energy India Co. Ltd. Ors. Vs. Union of India (Anti- Dumping Appeals No. 50452-50455 of 2017) that if there is negative finding under Rule 17 by the Designated Authority, the Appellate Tribunal does not have jurisdiction to entertain the appeal under Section 9C of the CT Act. In such scenario aggrieved party would have to file a writ petition and the appeal under Section 9C would not be maintainable. It is submitted that there is a rationale behind not providing statutory appeal against the negative finding as the Designated Authority is an expert in the field. Alternative remedy needs to be effic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermination by the Central Government, and till the determination, there is no live issue to be adjudicated. Therefore, reliance placed upon Saurashtra Chemicals Limited (Supra ) is fallible and not germane. Reliance is placed on the judgment of the Delhi High Court in Jindal Stainless Ltd. Vs. Union of India, 2005 (85) DRJ 368 , which expounds and explains the ratio and the effect of the decision of the Supreme Court in Saurashtra Chemicals Limited (Supra) . It is submitted that the decision of the Appellate Tribunal in the case of M/s.Panasonic Energy India (Supra) is bad in law, based upon incorrect understanding of the ratio in Saurashtra Chemicals Limited (Supra). Reliance is placed on the judgment of the Gujarat High Court in Alembic Ltd. Vs. Union of India [Special Civil Application No.12142/2011 decided on 29th December, 2011]. Findings and reasoning. 21. We would first re-produce the short order passed by the Supreme Court in the case of Saurashtra Chemicals Limited (Supra), which is as under: We see no reason whatsoever to entertain these special leave petitioners. It is perfectly clear now that we have seen the provisions of the Act t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashtra Chemicals Limited (Supra) by observing that where recommendation had been made by the Designated Authority for levy of anti-dumping duty, its imposition is left to the discretion of the Central Government as per Rule 18 of the Rules. Accordingly, an order in the form of notification/ final finding in the nature of mid-term review of anti-dumping duty can be challenged in appeal under Section 9C before the Appellate Tribunal. This case also observes that the decision in the case of Saurashtra Chemicals Limited (Supra), was distinct and in the specific facts of the said case for the recommendation of the Designated Authority on imposition of the anti-dumping duty was still inchoate and had not attained finality. The Central Government may or may not have accepted the recommendation and therefore, there was no determination. 25. We may notice that in Jindal Stainless Ltd. (Supra), the Single Judge had referred to the decision of the Calcutta High Court in Shew Kumar Agarwal Vs. Union of India, 2002 (141) ELT 312 (Cal) holding that the appellate remedy is available against the order of determination as well as review, and both are disjunctive to each other. Pertinent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-dumping duty. Designated Authority has been empowered to investigate as to the existence, degree and effect of any alleged dumping in relation to import of articles and recommend to the Central Government when required the quantum of anti-dumping duty equal to the margin of the dumping or less, specific date of the commencement and to review continuance of anti-dumping duty. The Designated Authority so appointed acts for and on behalf of the Central Government. It has been bestowed with the powers vested and conferred on the Central Government under the CT Act. The Designated Authority, when it performs the functions under the CT Act, it is acting for and on behalf of the Central Government and not as an independent and a distinct third party. Designated Authority is no different from the Central Government. 28. If the aforesaid position is clear, then it is not difficult to appreciate and interpret the provisions for appeal under Section 9C, which refers to the order of determination as to existence, degree and effect of any alleged dumping in relation to import of an article, which are exactly the areas of investigation and form the essence of the duties performed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the notification of the Central Government under Section 9A would not be a purely legislative act, but a quasi judicial in nature. In the case of Alembic Ltd. (Supra) the Gujarat High Court had noticed Haridas Exports Vs. All India Float Glass Manufacturers Association, (2002) 6 SCC 600 , which decision had held that the levy or non-levy of anti-dumping duty or other duty cannot be made subject matter of judicial review before the Monopolies and Restrictive Trade Practices Commission. In this context, the Supreme Court had observed that levy or non-levy of anti-dumping is a legislative act. In Alembic Ltd. (Supra), the Gujarat High Court has observed that levy or non-levy of anti-dumping duty or any other duty under the CT Act, i.e. Customs Tariff Act, as explained in Haridas Exports (supra) was in the context of Monopolies and Restrictive Trade Practices Commission, whose jurisdiction has been invoked. Haridas Exports (supra) had held that Monopolies and Restrictive Trade Practices Act and the CT Act substantially operate in different fields and distinct spheres and there was no conflict between the two. We however, we do not perceive and accept any confl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in essence demolishing the accountability strand within the administrative process as the agency is not under obligation from an objective norm, which can enforce accountability in decision-making process. All law-making, be it in the context of delegated legislation or primary legislation, has to conform to the fundamental tenets of transparency and openness on the one hand and responsiveness and accountability on the other. These are the fundamental tenets flowing from due process requirement under Article 21, equal protection clause embodied in Article 14 and fundamental freedoms clause ingrained under Article 19. A modern deliberative democracy cannot function without these attributes. (emphasis supplied) The procedure prescribed by Section 9A of the CT Act and the Rules, conform to the fundamental tenets of transparency, openness and also responsiveness and accountability. 33. We would also like to refer to the decision of the Supreme Court in National Securities Depository Limited Vs. Securities and Exchange Board of India, (2017) 5 SCC 517. The decision had interpreted and examined the scope and ambit of appeal to the Securities Appellate Tribunal under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Designated Authority does not propose imposition of anti-dumping duty. As the Central Government is bound by the final finding of the Designated Authority, the final finding of the Designated Authority becomes the final finding and order of determination passed by the Central Government for the purpose of Section 9C of the CT Act. We would interpret the statute i.e. Section 9C in a manner that it would effectuate and not frustrate the purpose of the legislation that a party should have a right of appeal against the quasi judicial determination in relation to orders determining existence, degree and effect of any subsidy or dumping of articles imported into India. 36. Section 9C does not state and provide that an appeal is maintainable against customs notification. However, it refers to and states that an appeal would lie against the order of determination regarding existence, degree and effect of dumping. The words existence, degree and effect of dumping are significant. The final finding of the Designated Authority in the said aspect can be in positive i.e. when it recommends imposition of anti-dumping duty or may be in negative when it finds and holds that no anti-dumpi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative submissions of the writ petitioner that the impugned order suffers from jurisdictional errors and, therefore, the writ Court should exercise discretion and entertain the present petition and the petitioner should not be relegated to take recourse to alternative appellate remedy, even if available. The said submission has to be rejected for the reasons set out and elucidated in Jindal Stainless Limited (supra) and decision authored by one of us ( Sanjiv Khanna, J.) in Writ Petition (C) No. 8717/2017, Outokumpu Oyj Vs. Union of India and Others , in which the expression wholly without jurisdiction as used in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1 was examined and elucidated. The concept of jurisdiction or rather lack of it and its contours has been examined by the Supreme Court in Indian Farmers Fertilizer Cooperative Limited Vs. Bhadra Products, (2018) 2 SCC 534 . The petitioner in the present case submits that there is violation of the procedural provisions and the mandate of the Rules has not been followed by the Designated Authority. No doubt, the aforesaid issues can be made subject-matter of judicial review, albeit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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