TMI Blog2023 (1) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Supreme Court in Indian National Congress vs. Institute of Social Welfare [ 2002 (5) TMI 847 - SUPREME COURT] , the Gujarat High Court held that the notification issued by the Central Government would be quasi-judicial in nature. 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 matter is remitted to the Central Government to reconsider the recommendation made by the designated authority - Appeal allowed by way of remand. - ANTI DUMPING APPEAL No. 51207 OF 2022 - FINAL ORDER NO. 51202/2022 - Dated:- 20-12-2022 - MR. DILIP GUPTA, PRESIDENT, MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND DR. RACHNA GUPTA, MEMBER (JUDICIAL) Shri Dhruv Gupta Shri Bhargav Mansatta, Advocates, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 16, the essential facts of the investigation were disclosed to the known interested parties by a disclosure statement dated 20.10.2021. The interested parties, including the appellant, filed comments to the disclosure statement. 3. Thereafter, the designated authority notified the final findings on 28.10.2021. The relevant portions of the conclusion drawn and the recommendation by the designated authority in the final findings are as follows: N. CONCLUSION: 142. Having regard to the contentions raised, information provided and submissions made and the facts available before the Authority as recorded above and on the basis of the above analysis of the likelihood of continuation or recurrence of dumping and injury to the domestic industry, the Authority concludes that: ***** vi. The Authority conducted an elaborate likelihood analysis and notes as follows: a. There are huge surplus capacities for product under consideration available with the producers /exporters in the subject country as evidenced from the independent reports available on record. b. Examination of information on record regarding export price to third countries from subject country shows tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osition of anti-dumping duty was required on the imports of the subject goods from the subject country. 126. The Authority recommends continuation of anti-dumping duty on the imports of the subject goods described in Col. 3 of the duty table below originating in or exported from the subject country for a period of 5 years from the date of notification to be issued in this regard by the Central Government. (emphasis supplied) 5. It would be seen from the aforesaid final findings that on the basis of a detailed analysis carried, the designated authority found as fact that huge surplus capacities for the product under consideration was available with the producers/exporters in the subject country and that since significant exports of the subject goods from the subject country to third countries were at dumped prices, the Indian market would be more attractive to the exporters from the subject country. The designated authority ultimately concluded that there was a likelihood of continuation/recurrence of dumping and injury to the domestic industry in the event of revocation of duty and, therefore, made a recommendation to the Central Government for continuation of anti-du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1995 Anti-Dumping Rules is legislative in nature and so neither the principles of natural justice are required to be complied with nor a reasoned order is required to be passed. 8. In order to examine these submissions it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 Anti- Dumping Rules. 9. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country 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 an anti-dumping duty not exceeding the margin of dumping in relation to such article. The margin of dumping, the export price and the normal price have all been defined in section 9A(1) of the Tariff Act. 10. Sub-section (5) of section 9A provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. 11. Sub-section (6) of the section 9A of the Tariff Act provides that the margin of dumping has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties. (3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to (i) the known exporters or to the concerned trade association where the number of exporters is large, and (ii) the governments of the exporting countries: Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefor in writing. (4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown. Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules. (3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if- (i) there is a concentration of dumped imports into an isolated market, and (ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market. 18. Rule 17 deals with final findings. It is reproduced below: Final findings.- (1) The designated authority shall, 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 to the Central Government its final finding (a) as to, - (i) the export price, normal value and the margin of dumping of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 [ Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022 ] 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. 25. 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 Tamil Nadu vs. K. Sabanayagam and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while acting as a delegated legislative body, performs two distinct and separate functions in the context of the levy of antidumping and safeguard duty. The first is the function of framing Rules such as the Anti-Dumping Rules 1995 or the 1997 Safeguard Rules, which function is clearly legislative. The second function is the making of a determination under rule 18 of the Anti-Dumping Rules 1995 or rule 12 of the 1997 Safeguard Rules, which function is quasi judicial in nature. While the exercise of the legislative function of framing Rules is not appealable before the Tribunal, the second function of making a determination is expressly made appealable under section 9C of the Tariff Act. The function of making a determination in individual cases by applying the broad legislative framework and policy already set out in the Statute is not at all legislative in character, but clearly a quasi-judicial function requiring the Central Government to follow the principles of natural justice by affording an opportunity to the party likely to be adversely. ***** 82. In view of the judgments of the Supreme Court in K. Sabanayagam, Cynamide India Ltd. and Godawat Pan Masala, and the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive character and amounts of exercise of legislative power by the Central Government and therefore, not amenable to judicial review. 6.5.1 The submission is devoid of substance, if we examine the decisions on this score.***** 29. After considering the decisions of the Supreme Court in PTC India Ltd. vs. Central Electricity Regulatory Commission [(2010) 4 SCC 603], National Thermal Power Corp. vs. Madhya Pradesh State Electricity Board [(2011) 15 SCC 580] and Reliance Industries vs. Designated Authorities [(2006) 10 SCC 368], the Gujarat High Court also observed: 6.5.4 Under Section 9-C of the Customs Tariff Act, appeal lies against the order of determination or review of the countervailing duty before the Customs, Excise and Service Tax Appellate Tribunal, constitution under Section 129 of the Customs Act, 1962. In view of this, the Notification necessarily takes a quasi-judicial colour. 30. The Gujarat High Court also examined whether quasi-judicial process was involved in issuance of the notification by the Central Government and after analyzing the decision of the Supreme Court in Indian National Congress vs. Institute of Social Welfare [ (2002) 5 SCC 658 ], the Guja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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