TMI Blog2023 (3) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 rescin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndation 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. - ANTI-DUMPING APPEAL NO. 52404 OF 2022 - Final Order No. 50203/2023 - Dated:- 20-2-2023 - MR. DILIP GUPTA, PRESIDENT, MR. P.V. SUBBA RAO, MEMBER (TECHNICAL) AND MS. BINU TAMTA, MEMBER (JUDICIAL) Ms. Reena Asthana Khair, Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri Subham Jaiswal, Shri Nikhil Sharma, Ms Vrinda Bagaria, Advocates for the Appellant Shri Ameet Singh and Ms. Bhavana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia dated 30th August, 2022, remanded the matter to the Respondent No. 1 to reconsider the recommendations issued by the Respondent No. 2 in those cases. In Apcotex case, the Hon'ble Tribunal had additionally directed the Respondent no. 1, that if it is of the primafacie opinion that the recommendations of the Respondent No. 2 are not required to be accepted, tentative reasons for the same must be recorded and conveyed to the domestic industry therein, so as to give them an opportunity to file their submissions on the said grounds. The appellant understands that the Respondent No. 1 has however, till date, not implemented the said orders of the Hon'ble Tribunal, despite them not being stayed or set-aside. The Hon'ble High Court has not granted any interim relief to the Central Government in writ petition filed by the Central Government. Further, the Hon'ble High Court was pleased to pass an interim relief order in favor of the domestic industry concerned in all those writ petitions, vide order dated 05.09.2022. The appellant submits that pending final decision by Respondent No. 1, the Hon'ble Tribunal may kindly direct that the imports of the article under inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject country. b. There is high export orientation of the Chinese producers. c. The Chinese producers of the subject goods hold huge idle capacities with them, which account for more than double of total Indian demand. d. Almost entirety of Chinese exports to third countries, accounting for more than twice the Indian demand of subject goods, are at dumped prices. e. Significant proportion of Chinese exports to third countries are at injurious prices. f. More than 90% of Chinese exports to third countries are at prices below export prices to India. g. All these factors of third country dumping huge idle capacitates, price attractiveness of the Indian exports and significant exports despite prevailing existence of anti-dumping duty clearly demonstrate likelihood of continuation of dumping and aggravation of injury to the domestic industry in case of withdrawal of the anti-dumping duty. h. Factors such as no demand-supply gap, no participation of users, minimal impact of antidumping duty on end products and inter-se competition among Indian producers establish that there may not be any adverse effect of duties on the consumers or downstream industry. O. RECO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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. Learned counsel also submitted that in case the Central Government had decided not to impose anti-dumping duty, a reasoned order should have been passed but in the present case such an order has not been passed by the Central Government. The contention of the learned counsel for the appellant, therefore, is that a direction should be issued to the Central Government to issue a Notification for imposition of anti-dumping duty on the basis of the recommendation made by the designated authority in the final findings dated 15.02.2022. Learned counsel for the appellant further submitted that till such time as the Central Government takes a decision, the Tribunal should issue a direction for provisional assessment, as was done by the Delhi High Court on 05.09.2022 in WP (C ) 5185/2022 filed by the Union of India against the decision of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below: 4. Duties of the designated authority.- xxxxxxxxxxx (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; 15. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 16. Rule 6 deals with the principles governing investigation and it is reproduced below: 6. Principles governing investigations.- (1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation. (8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedesthe investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances. 17. Rule 10 deals with determination or normal value, export price and margin of dumping and it is reproduced below: 10. Determination of normal value, export price and margin of dumping- An article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstances the designated authority shall determine the normal value, export price and the margin of dumping taking into account, inter alia, the principles laid down in Annexure I to these rules. 18. Rule 11 deals with determination of injury and it is reproduced below: 11. Determination of injury. (1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17. 21. Annexure -I to the 1995 Anti-Dumping Rules deals with the principles governing the determination of normal value, export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure. 22. Annexure-II to the 1995 Anti-Dumping Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, and causal link between dumped imports and such injury, shall inter alia, take the principles enumerated from (i) to (vii) of Annexure II under consideration. 23. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price. 24. It is keeping in mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ti-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. This is what was held by the Tribunal in Apcotex Industries. The same view has been taken by this Bench in Chemical and Petrochemicals Manufactures Association vs. Union of India and 55 others [ Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022 ]. 28. 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 decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant observation of the Bench in Apcotex Industries Limited are as follows: 75. Thus, even if it is assumed that the Central Government exercises legislative powers when it imposes anti-dumping duty or has taken a decision not to impose anti-dumping under section 9A of the Tariff Act, it would still be a piece of conditional legislation falling under the third category of conditional legislations pointed out by the Supreme Court in K. Sabanayagam. This is for the reason that in the scheme of the Tariff Act and the 1995 Anti-Dumping Rules, the Central Government has necessarily to examine all the relevant factors prescribed in the Tariff Act and the Rules for coming to a conclusion whether anti-dumping duty has to be levied or not. It cannot be that it is only the designated authority that is required to follow the procedure prescribed under the Tariff Act and the Rules framed thereunder for making a recommendation to the Central Government, for while taking a decision on the recommendation made by the designated authority in the final findings the Central Government would have to examine whether the designated authority has objectively considered all the relevant factors o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the decision of the Tribunal in Jubilant Ingrevia Limited, it has to be held 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. (emphasis supplied) Principles of natural justice and reasoned order 32. The Bench also examined the requirements of compliance of the principles of natural justice and a reasoned order and held as followed: 82. In view of the judgments of the Supreme Court in K. Sabanayagam, Cynamide India Ltd. and Godawat Pan Masala, and the decision of the Tribunal in Jubilant Ingrevia Limited, it has to be held 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. (emphasis supplied) 33. The Bench thereafter observed: 84. In view of the aforesaid decision of the Supreme Court in Punjab National Bank, the submission advanced by lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Congress vs. Institute of Social Welfare [ (2002) 5SCC 658 ], the Gujarat High Court held that the notification issued by the Central Government would be quasi-judicial in nature. 37. The inevitable conclusion, therefore, that follows from the aforesaid discussion is 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. 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 38. In the end, learned counsel for the appellant also urged that the Tribunal may protect the interest of the appellant in the same manner as was protected by the Delhi High Court in the writ petition filed by the Union of India against the decision of the Tribunal in Jubilant Ingrevia. 39. The Tribunal had set aside the office memorandum issued by the Under Secretary conveying the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision is taken by the Central Government on the recommendation made by the designated authority for imposition of anti-dumping duty. The directions are as follows: (i) The provisional assessment of imports concerning the subject goods from the subject countries will be made for the time being; (ii) It is, however, made clear that the aforesaid direction will not create any equities in favour of the domestic industry; and (iii) This direction will not have any impact on the decision to be taken by the Central Government pursuant to the directions issued for reconsideration of the recommendation made by the designated authority. Conclusion 42. Thus, for all the reasons stated above, the matter is remitted to the Central Government to consider the recommendation made by the designated authority in the final findings dated 15.02.2022 in the light of the observations made above. The directions contained in paragraph 41 of this order shall continue to operate till such time as a decision is taken by the Central Government. The appeal is allowed to the extent indicated above. The learned authorized representative appearing for the Department shall send a copy of this or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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