TMI Blog2023 (6) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 complied 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 T.N. SECRETARY HOUSING DEPTT. MADRAS VERSUS K. SABANAYAGAM ANR. [ 1997 (11) TMI 520 - SUPREME COURT] . The Gujarat High Court in REALSTRIPS LIMITED 1 OTHER (S) VERSUS UNION OF INDIA 1 OTHER (S) [ 2022 (9) TMI 1171 - GUJARAT HIGH COURT] 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 (I) VERSUS INSTITUTE OF SOCIAL WELFARE ORS. [ 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules, 1995 [the 1995 Anti-Dumping Rules] on imports of Hot-Rolled flat products of alloy or non-alloy steel [the subject goods] from China PR, Japan, Korea RP, Russia, Brazil and Indonesia [the subject countries]. The designated authority, thereafter, issued a public notice dated 31-3-2021 to review the need for continued imposition of anti-dumping duty in respect of the subject goods, originating in or exported from the subject countries and to examine whether the expiry of said anti-dumping duty is likely to lead to continuation or recurrence of dumping and injury to the domestic industry. The period of investigation for the purpose of anti-dumping duty was from 1-4-2019 to 30-9-2020 and the injury investigation period was from April, 2016 to March, 2019 and the period of investigation. Oral hearings were conducted and the parties that attended the oral hearings were advised to file written submissions on the views expressed orally, followed by rejoinders, if any. As contemplated under Rule 16, the essential facts of the investigation were disclosed to the known interested parties by a disclosure statement dated 3-9-2021. The interested parties, including the appellant, filed co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notes that there is healthy competition in the Indian market and continuation of anti-dumping duty would not lead to monopolistic or oligopolistic situation in the Indian market for the subject goods. 199. In view of the above, the Authority finds that there is a likelihood of continuation or recurrence of dumping and injury upon cessation of the existing anti-dumping duties and recommends continuation of anti-dumping measures for a further period of five years. J. RECOMMENDATIONS 200. The Authority notes that the sunset review was initiated and notified to all the interested parties and adequate opportunity was given to the domestic industry, exporters, importers/users and the other interested parties to provide information on the aspects of dumping, injury and causal link and the likelihood of continuation or recurrence of dumping and injury. Having initiated and conducted the sunset review into dumping, injury and causal link and the likelihood of continuation or recurrence of dumping and injury in terms of the provisions laid down under the rules, the Authority is of the view that continued imposition of anti-dumping duty is required on the subject goods from the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment, after considering the aforesaid final findings of the designated authority, has decided not to accept the aforesaid recommendations. Technical Officer (TRU-I) 6. The main contention that has been advanced by Shri Dhruv Gupta, Learned Counsel appearing for the appellant assisted by Shri Bhargav Mansatta is that the office memorandum, communicating the decision of the Central Government not to continue anti-dumping duty, despite a recommendation having been made by the designated authority in the final findings to continue anti-dumping duty should be set aside for the reason that the principles of natural justice have been violated and even otherwise the decision is arbitrary, unreasoned and bad in law. The contention advanced by Shri Abhay Chattopadhyay Learned Counsel for the respondents assisted by Shri Udit Jain, Shri Naghm Ghei and other Learned Counsel for the respondents, is that the appeal is not maintainable under Section 9C of the Tariff Act and that the exercise of power by the Central Government under Section 9A of the Tariff Act read with Rule 18 of the 1995 Anti-Dumping Rules is legislative in nature and so neither the principles of natural justice are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. Rule 5 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping. 14. 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 which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the timelimits allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it under such circumstances. 15. Rule 10 deals with determination of 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. 16. 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 article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in India. (2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped impor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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. 20. 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 sub-clauses (i) to (vii) of Annexure II under consideration. 21. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price. 22. It is keeping in mind the aforesaid legal provisions that the submissions advanced by the Learned Counsel for the appellant and the Learned Counsel for the private respondents, as also the Learned Authorized Representatives appearing for the respondent Union of India have to be considered. 23. The maintainability of the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the parties. This would be more clear from the provisions of section 9A(6) of the Tariff Act which provide that the margin of dumping, which is a relevant factor, has to be ascertained and determined by the Central Government, after such inquiry as it may consider necessary. Rules may have been framed by the Central Government under which the designated authority has to carry out a meticulous examination, but nonetheless when the Central Government has to take a decision on the recommendation made by the designated authority in the final findings such factual aspects cannot be ignored. There is a clear lis between the domestic industry on the one hand and the foreign exporters and importers on the other hand since the domestic industry desires anti-dumping duty to be imposed for which purpose investigation is carried out by the designated authority, but the foreign exporters and importers resist the imposition of anti-dumping duty. For exercise of such power, a detail procedure has been provided in the Tariff Act, the 1995 Anti-Dumping Rules or the 1997 Safeguard Rules. xx xx xx 78. It will be evident from the aforesaid judgments that the Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be accepted. Thus, if the Central Government forms a prima facie opinion that the final findings of the designated authority recommending imposition of anti-dumping duty are not required to be accepted then tentative reasons have to be recorded and conveyed to the domestic industry so as to give an opportunity to the domestic industry to submit a representation. Though the Tariff Act and the 1995 Anti-Dumping Rules or the 1997 Safeguard Rules do not provide for such an opportunity to be provided to the domestic industry, but the principles of natural justice would require such an opportunity to be provided. (Emphasis supplied) 27. Learned Authorized Counsel for the appellant has also placed a decision of the Gujarat High Court in Realstripes Limited 1 other(s) v. Union of India 1 other(s) [R/Special Civil Application No. 4495 of 2022, decided on 2-9-2022]. The High Court repelled the contention advanced on behalf of the Central Government that the issuance of the notification was legislative in character and the relevant observations are as follows : 6.5 It was another submission in vain on behalf of respondents seeking to assert that notification rescinding the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
