Take notes as you read a judgment using our Virtual Legal Assistant and get email alerts whenever a new judgment matches your query (Query Alert Service). Try out our Premium Member services -- Free for one month.\n\nCustom, Excise & Service Tax Tribunal\nAurobindo Pharma Limited vs -Designated Authority Directorate ... on 20 February, 2023\nAuthor: Dilip Gupta\nBench: Dilip Gupta\n     CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL\n                                       NEW DELHI\n\n                                    PRINCIPAL BENCH\n\n                 ANTI-DUMPING APPEAL NO. 52404 OF 2022\n\n     (Arising out of Customs Notification No. 13/2022 dated 11.05.2022 and Final\n     Finding F.No. 7/29/2021-DGTR dated 15.02.2022)\n\n\n     Aurobindo Pharma Limited                                ......Appellant\n     Plot no. 2, Maitrivihar, Ameerpet,\n     Hyderabad-500038, Telengana, India\n\n\n\n                                             VERSUS\n\n\n1.   The Union of India\n     Through the Secretary,\n     Ministry of Finance,\n     Department of Revenue,\n     North Block, New Delhi-110001\n\n2.   Designated Authority, Directorate\n     General of Trade Remedies\n     Department of Commerce & Industry\n     Parliament Street, Jeevan Tara\n     Building, 4th Floor, New Delhi-110001\n\n3.   China Embassy\n     50-D, Shantipath, Chanakyapuri\n     New Delhi - 110 021\n\n4.   M/s Inner Mongolia Changsheng Co. Ltd.\n     Tuoketuo Industry Zone Hohhot,\n     010206 China\n\n5.   M/s Sinobright Pharmaceutical\n     Industries Limited\n     503 Zhongguan Building, Liuxian Road,\n     Nanshan District, Shenzhen, China\n     Shenzhen, Guangdong, China\n\n6.   Centrient Pharmaceuticals India\n     Private Limited\n     Sir Winston Churchilllan 299\n     2288 DC Rijswijk\n     The Netherlands\n\n7.   Penam Laboratories Limited                            ......Respondents\n     F-223, Block-5, Old Rajinder Nagar,\n     New Rajinder Nagar, New Delhi,\n     Delhi 110060\n                                       2\n                                                                 AD/52404/2022\n\n      APPEARANCE:\n\n      Ms. Reena Asthana Khair, Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri\n      Subham Jaiswal, Shri Nikhil Sharma, Ms Vrinda Bagaria, Advocates for the\n      Appellant\n      Shri Ameet Singh and Ms. Bhavana Varsha, Advocates for Designated\n      Authority\n      Shri Rakesh Kumar, Authorized Representative for the Central Government\n\n\n      CORAM:      HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT\n                  HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)\n                  HON'BLE MS. BINU TAMTA, MEMBER (JUDICIAL)\n\n\n                                      Date of Hearing/Decision: 20.02.2023\n\n\n                       Final Order No. _50203/2023__\n\n\n      JUSTICE DILIP GUPTA:\n\n\n             The grievance raised by Aurobindo Pharma Limited 1, is that\n\n      despite a recommendation having being made by the designated\n\n      authority in the final findings notified on 15.02.2022 for imposition of\n\n      anti-dumping duty under section 9A of the Customs Tariff Act 19752,\n\n      the Central Government did not issue the Notification for imposition\n\n      of anti-dumping duty within three months from the date the final\n\n      findings were notified by the designated authority. The relief,\n\n      therefore, that has been claimed in this appeal is that the Notification\n\n      dated 11.05.2022 issued by the Central Government rescinding the\n\n      Notification dated 16.05.2017 imposing anti-dumping duty be set\n\n      aside and a direction be issued to the Central Government to issue a\n\n      Notification for imposition of anti-dumping duty, based on the\n\n      recommendation made by the designated authority.\n\n      2.   During the pendency of the appeal, Miscellaneous Application No.\n\n      50738 of 2022 was filed by the appellant with a prayer that two\n\n1.   the appellant\n2.   the Tariff Act\n                                   3\n                                                                    AD/52404/2022\n\nadditional grounds and one additional prayer may be added. The\n\napplication was allowed by order dated 17.01.2023. The two\n\nadditional grounds that have been added are:\n\n    "FF.   The Appellant submits that the impugned order of the\n\n           Respondent no. 1 is non-speaking and deserves to be\n\n           aside side. This Hon'ble Tribunal under Rule 41 also has\n\n           the inherent powers to pass such orders so as to secure\n\n           the ends of justice. The Rule 41 of the CESTAT\n\n           (Procedure) Rules, 1982, are extracted below for ease\n\n           of reference:\n\n                "RULE 41. Orders and directions in certain cases-\n                The Tribunal may make such orders or give such\n                directions as may be necessary or expedient to\n                give effect or in relation to its orders or to prevent\n                abuse of its process or to secure the ends of\n                justice."\n\n\n           The Appellant submits that the Rules 41 of the CESTAT\n\n           (Procedure) Rules      have    been made applicable           to\n\n           proceedings under Anti-dumping Rules through Rule 7\n\n           of CEGAT (Countervailing Duty and Anti-Dumping Duty)\n\n           Procedure Rule, 1996, and therefore, apply to the\n\n           present case.\n\n    GG.    This Hon'ble Tribunal had earlier in similar cases,\n\n           notably in Jubilant Ingrevia Limited vs. Designated\n\n           Authority dated 27th October 2021 and Apcotex\n\n           Industries Ltd. & Others vs. Union of India dated\n\n           30th August, 2022, remanded the matter to the\n\n           Respondent No. 1 to reconsider the recommendations\n\n           issued by the Respondent No. 2 in those cases. In\n\n           Apcotex case, the Hon'ble Tribunal had additionally\n                                     4\n                                                                    AD/52404/2022\n\n           directed the Respondent no. 1, that if it is of the prima-\n\n           facie   opinion   that       the   recommendations      of   the\n\n           Respondent No. 2 are not required to be accepted,\n\n           tentative reasons for the same must be recorded and\n\n           conveyed to the domestic industry therein, so as to\n\n           give them an opportunity to file their submissions on\n\n           the said grounds. The appellant understands that the\n\n           Respondent    No.    1       has   however,   till   date,   not\n\n           implemented the said orders of the Hon'ble Tribunal,\n\n           despite them not being stayed or set-aside. The Hon'ble\n\n           High Court has not granted any interim relief to the\n\n           Central Government in writ petition filed by the Central\n\n           Government. Further, the Hon'ble High Court was\n\n           pleased to pass an interim relief order in favor of the\n\n           domestic industry concerned in all those writ petitions,\n\n           vide order dated 05.09.2022. The appellant submits\n\n           that pending final decision by Respondent No. 1, the\n\n           Hon'ble Tribunal may kindly direct that the imports of\n\n           the article under investigation pursuant to Final Finding\n\n           Notification No. 7/29/2021-DGTR dated 15th February\n\n           2022 shall be cleared on provisional assessment basis."\n\n\n3.   The prayer that has been added is:\n\n           "(b-1). Pending final decision by Respondent No. 1,\n\n           direct that imports of the article under investigation\n\n           pursuant to Final Finding Notification No. 7/29/2021-\n\n           DGTR dated 15th February 2022 shall be cleared on\n\n           provisional assessment basis."\n                                          5\n                                                                          AD/52404/2022\n\n      4.   It   transpires   from   the       records   that   earlier,     based   on\n\n      recommendation made by the designated authority in the final\n\n      findings dated 03.04.2017 for imposition of the definitive anti-\n\n      dumping duty on the imports of Amoxycillin Trihydrate3, the Central\n\n      Government issued a Notification dated 16.05.2017 imposing anti-\n\n      dumping duty for a period of five years. A sunset review investigation\n\n      was carried out by the designated authority and a recommendation\n\n      was made in the final findings dated 15.02.2022 for imposing of anti-\n\n      dumping duty for a period 5 years. After the final findings were\n\n      submitted by the designated authority on 15.02.2022, the Central\n\n      Government issued a Notification dated 11.05.2022 revoking the\n\n      anti-dumping duty imposed on the subject goods originating in or\n\n      exported from China PR4 and rescinded the Notification dated\n\n      16.05.2017 but did not issue any Notification for imposing anti-\n\n      dumping duty on the basis of the final findings submitted by the\n\n      designated authority. It is, therefore, clear that by issuance of the\n\n      Notification dated 16.05.2017 the Central Government decided not to\n\n      impose anti-dumping duty on the basis of final findings dated\n\n      15.02.2022 submitted by the designated authority.\n\n      5.   As   the    contention   of       the   appellant   is   based     on    the\n\n      recommendation made by the designated authority in the final\n\n      findings dated 15.02.2022, it would be appropriate to reproduce the\n\n      relevant portions of the conclusion and the recommendations made in\n\n      the said final findings and they are as follows:\n\n\n\n\n3.   subject goods\n4.   subject country\n                                6\n                                                                              AD/52404/2022\n\n"N. CONCLUSION\n\n109. Having regard to the contentions raised, information\nprovided and submissions made and facts available before\nthe Authority as recorded in the above findings and on the\nbasis    of   the     above        analysis     of    the        likelihood    of\ncontinuation of dumping and recurrence of injury to the\ndomestic industry, the Authority concludes that:\n\na.      There is continued dumping of the subject goods\n        from the subject country.\n\nb.      There is high export orientation of the Chinese\n        producers.\n\nc.      The Chinese producers of the subject goods hold\n        huge idle capacities with them, which account for\n        more than double of total Indian demand.\n\nd.      Almost entirety of Chinese exports to third countries,\n        accounting for more than twice the Indian demand of\n        subject goods, are at dumped prices.\n\ne.      Significant proportion of Chinese exports to third\n        countries are at injurious prices.\n\nf.      More than 90% of Chinese exports to third countries\n        are at prices below export prices to India.\n\ng.      All these factors of third country dumping huge idle\n        capacitates,     price      attractiveness          of    the     Indian\n        exports and significant exports despite prevailing\n        existence of anti-dumping duty clearly demonstrate\n        likelihood      of    continuation           of     dumping           and\n        aggravation of injury to the domestic industry in\n        case of withdrawal of the anti-dumping duty.\n\nh.      Factors      such     as    no   demand-supply                 gap,    no\n        participation       of users,    minimal           impact       of anti-\n        dumping       duty     on    end      products           and     inter-se\n        competition among Indian producers establish that\n        there may not be any adverse effect of duties on the\n        consumers or downstream industry.\n\n\nO.      RECOMMENDATION\n\n\n110. The Authority notes that the investigation was\ninitiated and notified to all the interested parties and\nadequate      opportunity          was   given        to    the        applicant,\nexporters     and      other       interested        parties      to     provide\n                                   7\n                                                                 AD/52404/2022\n\n           information on the aspects of dumping, injury and the\n           causal link. Having concluded that there is likelihood of\n           continuation/recurrence of dumping and injury to the\n           domestic industry in the event of cessation of existing\n           anti-dumping duty on imports of subject goods from China\n           PR, the Authority is of the view that continuation of anti-\n           dumping duty is required on the imports of subject goods\n           from China PR.\n\n\n           111. Under these circumstances, the Authority considers\n           it appropriate to recommend continuation of anti-dumping\n           duty on the imports of subject goods from China PR. Anti-\n           dumping equal to the amount indicated in Col. 7 of the\n           duty table below is recommended to be extended from the\n           date of notification to be issued in this regard by the\n           Central Government for a period of five (5) years on all\n           imports of the subject goods mentioned in Column 3 of\n           the duty table from China PR."\n\n\n6.   It would be seen from the aforesaid final findings that it was on\n\nthe basis of a detailed analysis carried out by the designated\n\nauthority on the aspect of likelihood of continuation of dumping and\n\nconsequent injury to the domestic industry that the designated\n\nauthority found as fact that there was continued dumping of the\n\nsubject goods from the subject country and more than 90% of the\n\nChinese exports to third countries were at prices below export prices\n\nto India which would clearly demonstrate likelihood of continuation of\n\ndumping and aggravation injury to the domestic industry in case of\n\nwithdrawal of anti-dumping duty.\n\n7.   The main contention that has been advanced by the Ms Reena\n\nAsthana Khair, learned counsel appearing for the appellant assisted\n\nby Shri Rajesh Sharma, Ms. Shreya Dahiya, Shri Subham Jaiswal,\n\nShri Nikhil Sharma and Ms. Vrinda Bagaria is that despite the\n\nrecommendation having been made by the designated authority in\n                                                8\n                                                                               AD/52404/2022\n\n      the    final    findings      to    impose     anti-dumping      duty,    the   Central\n\n      Government        kept     quiet      and    did   not   issue   the     consequential\n\n      notification for imposition of anti-dumping duty. The submission is\n\n      that under rule 18 of the 1995 Rules5, the Central Government has to\n\n      take a decision within three months of the publication of final\n\n      findings, and as the Notification was not issued for a long period of\n\n      time    it     should    be        presumed,    particularly     when     the   Central\n\n      Government issued the Notification dated 11.05.2022 revoking the\n\n      imposition of duty that the Central Government had decided not to\n\n      impose anti-dumping duty on the subject goods from the subject\n\n      country. Learned counsel also submitted that in case the Central\n\n      Government had decided not to impose anti-dumping duty, a\n\n      reasoned order should have been passed but in the present case such\n\n      an order has not been passed by the Central Government. The\n\n      contention of the learned counsel for the appellant, therefore, is that\n\n      a direction should be issued to the Central Government to issue a\n\n      Notification for imposition of anti-dumping duty on the basis of the\n\n      recommendation made by the designated authority in the final\n\n      findings dated 15.02.2022. Learned counsel for the appellant further\n\n      submitted that till such time                as the Central Government takes a\n\n      decision, the Tribunal should issue a direction for provisional\n\n      assessment, as was done by the Delhi High Court on 05.09.2022 in\n\n      WP (C ) 5185/2022 filed by the Union of India against the decision\n\n      of the Tribunal in Jubilant Ingrevia Limited vs. Union of India\n\n      and 5 others6, in which also a direction had been issued by the\n\n      Tribunal to the Central Government to take a reasoned decision\n\n5.   1995 Anti Dumping Rules\n6.   Anti-Dumping Appeal No. 50461 of 2021 decided on 27.10.2021\n                                9\n                                                             AD/52404/2022\n\nbecause despite the recommendation of the designated authority for\n\nimposition of anti-dumping duty, the Central Government          had not\n\nissued a Notification for imposition of anti-dumping duty.\n\n8.   Shri Rakesh Kumar, learned authorized representative appearing\n\nfor the Central Government submitted that appeal itself is not\n\nmaintainable under section 9(C) of the Tariff Act and the exercise of\n\npower by the Central Government under section 9A of the Tariff Act\n\nread with rule 18 of the 1995 Rules is legislative in nature and so\n\nneither the principles of natural justice are required to be complied\n\nwith nor a reasoned order is required to be passed.\n\n9.   In order to examine these submissions it would be useful to first\n\nexamine the relevant provisions of the Tariff Act and the 1995 Rules.\n\n10. Anti-dumping duty is imposed by the Central Government under\n\nsection 9A of the Tariff Act. It provides that where any article is\n\nexported by an exporter or producer from any country to India at less\n\nthan its normal value, then, upon the importation of such article into\n\nIndia, the Central Government may, by Notification in the Official\n\nGazette, impose an anti-dumping duty not exceeding the margin of\n\ndumping in relation to such article. The margin of dumping, the\n\nexport price and the normal price have all been defined in section\n\n9A(1) of the Tariff Act.\n\n11. Sub-section (5) of section 9A provides that anti-dumping duty\n\nimposed shall, unless revoked earlier, cease to have effect on the\n\nexpiry of five years from the date of such imposition.\n\n12. Sub-section (6) of the section 9A of the Tariff Act provides that\n\nthe margin of dumping has to be ascertained and determined by the\n\nCentral Government, after such enquiry as may be considered\n                                       10\n                                                                        AD/52404/2022\n\nnecessary and the Central Government may, by Notification in the\n\nOfficial Gazette, make rules for the purpose of this section.\n\n13. In exercise of the powers conferred by sub-section (6) of section\n\n9A and sub-section (2) of the section 9B of the Tariff Act, the Central\n\nGovernment framed the 1995 Rules.\n\n14. The duties of the designated authority are contained in rule 4\n\nand the relevant portion is reproduced below:\n\n            "4.      Duties of the designated authority.-\n\n                      xxxxxxxxxxx\n\n            (d)      to recommend to the Central Government-\n\n\n                    (i)    the amount of anti-dumping duty equal to the\n                           margin of dumping or less, which if levied,\n                           would remove the injury to the domestic\n                           industry, after considering the principles laid\n                           down in the Annexure III to these rules; and\n\n                    (ii)   the date of commencement of such duty;"\n\n\n\n15. Rule 5 deals with initiation of investigation to determine the\n\nexistence, degree and effect of any alleged dumping.\n\n16. Rule 6 deals with the principles governing investigation and it is\n\nreproduced below:\n\n            "6. Principles governing investigations.-\n\n            (1) The designated authority shall, after it has decided\n            to     initiate investigation to   determine the       existence,\n            degree and effect of any alleged dumping of any article,\n            issue a public notice notifying its decision and such public\n            notice shall, inter alia, contain adequate information on\n            the following:-\n\n           (i)      the name of the exporting country or countries\n                    and the article involved;\n\n           (ii)     the date of initiation of the investigation;\n\n           (iii)    the basis on which dumping is alleged in the\n                    application;\n                               11\n                                                                        AD/52404/2022\n\n(iv)   a summary of the factors                        on      which      the\n       allegation of injury is based;\n\n(v)    the    address    to   which     representations                   by\n       interested parties should be directed; and\n\n(vi) the time-limits allowed to interested                      parties for\n     making their views known.\n\n\n(2) A copy of the public notice shall be forwarded by the\ndesignated authority to the known exporters of the article\nalleged to have been dumped, the Governments of the\nexporting       countries     concerned        and     other       interested\nparties.\n\n\n(3) The designated authority shall also provide a copy of\nthe application referred to in sub-rule (1) of Rule 5 to-\n\n(i)    the known exporters or to the concerned trade\n       association where the number of exporters is large,\n       and\n\n(ii)   the governments of the exporting countries:\n       Provided that the designated authority shall also\n       make available a copy of the application to any other\n       interested party who makes a request therefor in\n       writing.\n\n\n(4)     The designated authority may issue a notice calling\nfor any information, in such form as may be specified by\nit, from the exporters, foreign producers and other\ninterested parties and such information shall be furnished\nby such persons in writing within thirty days from the\ndate of receipt of the notice or within such extended\nperiod as the designated authority may allow on sufficient\ncause being shown.\n\nExplanation: For the purpose of this sub-rule, the notice\ncalling for information and other documents shall be\ndeemed to have been received one week from the date on\nwhich      it   was    sent   by    the   designated          authority    or\ntransmitted to the appropriate diplomatic representative\nof the exporting country.\n\n(5)     The     designated         authority     shall      also     provide\nopportunity       to    the   industrial       users     of    the    article\nunder investigation, and to representative consumer\norganizations in cases where the article is commonly sold\nat the retail level, to furnish information which is relevant\n                                        12\n                                                                         AD/52404/2022\n\n           to the investigation regarding dumping, injury where\n           applicable, and causality.\n\n           (6)    The designated authority may allow an interested\n           party or its representative to present the information\n           relevant   to    the   investigation   orally    but   such   oral\n           information shall be taken into consideration by the\n           designated      authority    only   when   it   is   subsequently\n           reproduced in writing.\n\n           (7)    The designated authority shall make available the\n           evidence presented to it by one interested party to the\n           other interested parties, participating in the investigation.\n\n           (8)    In a case where an interested party refuses access\n           to, or otherwise does not provide necessary information\n           within a reasonable period, or significantly           impedesthe\n           investigation,     the designated authority may record its\n           findings on the basis of the facts available to it and make\n           such recommendations to the Central Government as it\n           deems fit under such circumstances."\n\n\n17. Rule 10 deals with determination or normal value, export price\n\nand margin of dumping and it is reproduced below:\n\n           "10.    Determination of normal value, export price\n           and margin of dumping-\n\n           An article shall be considered as being dumped if it is\n           exported from a country or territory to India at a price less\n           than its normal value and in such circumstances the\n           designated authority shall determine the normal value,\n           export price and the margin of dumping taking into\n           account, inter alia, the principles laid down in Annexure I\n           to these rules."\n\n\n18. Rule 11 deals with determination of injury and it is reproduced\n\nbelow:\n\n           "11. Determination of injury. -\n\n           (1) In the case of imports from specified countries, the\n           designated authority shall record a further finding that\n           import of such article into India causes or threatens\n           material injury to any established industry in India or\n                                       13\n                                                                      AD/52404/2022\n\n           materially retards the establishment of any industry in\n           India.\n\n           (2) The designated authority shall determine the injury to\n           domestic industry, threat of injury to domestic industry,\n           material retardation to establishment of domestic industry\n           and a causal link between dumped imports and             injury,\n           taking into      account    all   relevant facts, including the\n           volume of dumped imports, their effect on price in the\n           domestic market for like articles and the consequent\n           effect of such imports on domestic producers of such\n           articles and in accordance with the principles set out in\n           Annexure II to these rules.\n\n           (3) The designated authority may, in exceptional cases,\n           give a finding as to the existence of injury even where a\n           substantial portion of the domestic industry is not injured,\n           if-\n\n                 (i) there is a concentration of dumped imports into\n                 an isolated market, and\n\n                 (ii) the dumped articles are causing injury to the\n                 producers of all or almost all of the production within\n                 such market."\n\n\n19. Rule 17 deals with final findings. It is reproduced below:\n\n           "Final findings.-\n\n           (1) The designated authority shall, within one year from\n           the date of initiation of an investigation, determine as to\n           whether or not the article under investigation is being\n           dumped in India and submit to the Central Government its\n           final finding-\n\n           (a) as to, -\n\n\n                 (i) the export price, normal value and the margin of\n                 dumping of the said article;\n\n\n                 (ii) whether import of the said article into India, in the\n                 case of imports from specified countries, causes or\n                 threatens material injury to any industry established in\n                 India or materially retards the establishment of any\n                 industry in India;\n                                      14\n                                                                   AD/52404/2022\n\n              (iii) a casual link, where applicable, between the\n              dumped imports and injury;\n\n\n              (iv) whether a retrospective levy is called for and if so,\n              the reasons therefor and date of commencement of\n              such retrospective levy:\n\n            xxxxxxx\n\n           (b) Recommending the amount of duty which, if levied,\n           would remove the injury where applicable, to the domestic\n           industry after considering the principles laid down in the\n           Annexure III to rules."\n\n\n20. Rule 18 deals with levy of duty and the relevant portion is\n\nreproduced below:\n\n           "18. Levy of duty.-\n\n           (1)   The Central Government may, within three months of\n           the date of publication of final findings by the designated\n           authority under rule 17, impose by notification in the\n           Official Gazette, upon importation into India of the article\n           covered by the final finding, anti-dumping duty not\n           exceeding the margin of dumping as determined under\n           rule 17."\n\n\n21. Annexure-I to the 1995 Anti-Dumping Rules deals with the\n\nprinciples governing the determination of normal value, export price\n\nand margin of dumping. It provides that the designated authority\n\nwhile determining the normal value, export price and margin of\n\ndumping shall take into account the principles contained in clauses\n\n(1) to (8) of the Annexure.\n\n22. Annexure-II to the 1995 Anti-Dumping Rules deals with the\n\nprinciples for determination of injury. It provides that the designated\n\nauthority while determining the injury or threat of material injury to\n\ndomestic industry or material retardation of the establishment of such\n\nan industry, and causal link between dumped imports and such\n                                 15\n                                                            AD/52404/2022\n\ninjury, shall inter alia, take the principles enumerated from (i) to (vii)\n\nof Annexure II under consideration.\n\n23. Annexure-III to the 1995 Anti-Dumping Rules deals with the\n\nprinciples for determination of non-injurious price.\n\n24. It is keeping in mind the aforesaid legal provisions that the\n\nsubmissions advanced by the learned counsel for the appellant and\n\nthe learned authorized representatives appearing for the respondent\n\nUnion of India have to be considered.\n\n   Whether Central Government has taken a decision not to\n\n                     impose anti-dumping duty\n\n\n25. Section 9A of the Tariff Act provides that where any article is\n\nexported by an exporter or producer from any country or territory to\n\nIndia at less than its normal value, then, upon the importation of\n\nsuch article into India, the Central Government may, by notification\n\nin the Official Gazette, impose anti-dumping duty not exceeding the\n\nmargin of dumping in relation to such article. It is under rule 17 of\n\nthe 1995, Anti-Dumping Rules that the designated authority is\n\nrequired to, within one year from the date of initiation of an\n\ninvestigation, determine as to whether or not the article under\n\ninvestigation is being dumped in India and submit its final findings to\n\nthe Central Government. Under rule 18, the Central Government\n\nmay, within three months of the date of publication of the final\n\nfindings by the designated authority under rule 17, impose by a\n\nnotification in the Official Gazette, upon importation into India of\n\nthe article covered by the final findings, anti-dumping duty not\n\nexceeding the margin of dumping as determined under rule 17.\n                                          16\n                                                                    AD/52404/2022\n\n      26. In the present case, it is not in dispute that the final findings of\n\n      the designed authority were published on 11.01.2021. In the\n\n      appeal, the appellant has stated that an office memorandum was not\n\n      issued by the Central Government. Learned counsel appearing for the\n\n      Central Government has also not stated or placed such an office\n\n      memorandum.\n\n      27. The issue that arises for consideration is whether a presumption\n\n      can be drawn that the Central Government has taken a decision not\n\n      to impose anti-dumping duty as a decision was not taken within\n\n      three   months    by    the   Central   Government from      the    date   of\n\n      publication of the final findings by the designated authority and\n\n      infact the notification dated 11.05.2022 was issued rescinding the\n\n      notification dated 16.05.2017. On a consideration of the provisions\n\n      of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that\n\n      a presumption can safely to be drawn that the Central Government,\n\n      by keeping silent for a long period of time, shall be deemed to have\n\n      taken a decision not to impose anti-dumping duty and such a case\n\n      would   also   fall    in   the   category   of   cases   where    an office\n\n      memorandum has actually been issued conveying the decision of the\n\n      Central Government not to impose anti-dumping duty. This is what\n\n      was held by the Tribunal in Apcotex Industries. The same view has\n\n      been taken by this Bench in Chemical and Petrochemicals\n\n      Manufactures Association vs. Union of India and 55 others7.\n\n      28. The inevitable conclusion, therefore, that follows from the\n\n      aforesaid discussion is that it has to be presumed that the Central\n\n      Government has taken a decision not to impose anti-dumping\n\n\n7.   Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022\n                                         17\n                                                                                AD/52404/2022\n\n      duty   despite    a   recommendation           having     been          made     by   the\n\n      designated authority for imposition of anti-dumping duty. This\n\n      presumption also finds support from the fact that the Central\n\n      Government issued a notification dated 11.05.2022, after the final\n\n      findings   were       submitted   by     the        designated          authority     on\n\n      15.02.2022, rescinding the notification dated 16.05.2017 earlier\n\n      issued by the Central Government imposing anti-dumping duty for\n\n      a period of five years. The matter has, therefore, to be remitted\n\n      to   the   Central     Government      for      taking       a     decision      on   the\n\n      recommendation made by the designated authority.\n\n\n                  Maintainability of appeal under section 9C\n\n      29. The maintainability of the appeal under section 9C of the Tariff\n\n      Act was examined at length by this very Bench in M/s. Apcotex\n\n      Industries Limited vs. Union of India and 38 others8 and it was\n\n      held that the appeal would be maintainable against the decision of\n\n      the Central Government contained in the office memorandum not to\n\n      impose anti-dumping duty.\n\n      30. In Balaji Amines Ltd. vs. The Union of India9, the Bench also\n\n      held that an appeal under section 9C of the Tariff Act would be\n\n      maintainable even if the Central Government does not issue a\n\n      notification for imposition of anti-dumping duty for a long period of\n\n      time after the designated authority has made a recommendation for\n\n      imposition of anti-dumping duty and the observations are as follows:\n\n                  "30. Learned    counsel    for    the    appellant,     however,\n                  contended that non issuance of the notification by the\n                  Central Government pursuant to the recommendations\n                  made by the designated           authority, in       view   of the\n\n8.   Anti-dumping Appeal No. 51491 of 2021 decided on 30.08.2022\n9.   Anti-dumping Appeal No. 51151 of 2022 decided on 20.12.2022\n                                             18\n                                                                                   AD/52404/2022\n\n                   provisions of rule 18 of the 1995 Rules, would mean that\n                   the Central Government has taken a decision not to\n                   impose any anti-dumping duty. It has been held in\n                   Apcotex     Industries        that    the      appeal   would    be\n                   maintainable. The present appeal would, therefore, clearly\n                   be maintainable."\n\n       Whether the Central Government exercises legislative power\n\n       31. The Bench in Apcotex Industries also examined whether the\n\n       determination by the Central Government was legislative in character\n\n       or quasi-judicial in nature and after examining the relevant provisions\n\n       of the Tariff Act, the 1995 Anti-Dumping Rules and the decisions of\n\n       the Supreme Court and the High Courts observed that the function\n\n       performed by the Central Government would be quasi-judicial in\n\n       nature. The Bench also, in the alternative, held that even if the\n\n       function performed by the Central Government was legislative, then\n\n       too the principles of natural justice and the requirement of a\n\n       reasoned   order    have    to   be       compiled         with     since   the   Central\n\n       Government would be performing the third category of conditional\n\n       legislation contemplated in the judgment of the Supreme Court in\n\n       State of Tamil Nadu vs. K. Sabanayagam and another10. The\n\n       relevant observation of the Bench in Apcotex Industries Limited\n\n       are as follows:\n\n                   "75. Thus, even if it is assumed that the Central\n                   Government exercises legislative powers when it imposes\n                   anti-dumping duty or has taken a decision not to impose\n                   anti-dumping under section 9A of the Tariff Act, it would\n                   still be a piece of conditional legislation falling under the\n                   third category of conditional legislations pointed out by the\n                   Supreme Court in K. Sabanayagam. This is for the\n                   reason that in the scheme of the Tariff Act and the 1995\n                   Anti-Dumping    Rules,    the        Central    Government      has\n                   necessarily to examine all the relevant factors prescribed\n\n10.   (1998) 1 SCC 318\n                             19\n                                                                     AD/52404/2022\n\nin the Tariff Act and the Rules for coming to a conclusion\nwhether anti-dumping duty has to be levied or not. It\ncannot be that it is only the designated authority that is\nrequired to follow the procedure prescribed under the\nTariff Act and the Rules framed thereunder for making a\nrecommendation to the Central Government, for while\ntaking a decision on the recommendation made by the\ndesignated authority in the final findings the Central\nGovernment      would       have     to   examine       whether      the\ndesignated authority has objectively considered all the\nrelevant factors on the basis of the evidence led by the\nparties. This would be more clear from the provisions of\nsection 9A(6) of the Tariff Act which provide that the\nmargin of dumping, which is a relevant factor, has to be\nascertained and determined by the Central Government,\nafter such inquiry as it may consider necessary. Rules may\nhave been framed by the Central Government under which\nthe designated authority has to carry out a meticulous\nexamination,       but     nonetheless         when     the    Central\nGovernment      has        to    take      a     decision     on     the\nrecommendation made by the designated authority in the\nfinal findings such factual aspects cannot be ignored.\nThere is a clear lis between the domestic industry on the\none hand and the foreign exporter and importers on the\nother hand since the domestic industry desires anti-\ndumping     duty      to   be    imposed        for   which   purpose\ninvestigation is carried out by the designated authority,\nbut   the   foreign      exporters   and       importers    resist   the\nimposition of anti-dumping duty. For exercise of such\npower, a detail procedure has been provided in the Tariff\nAct, the 1995 Anti- Dumping Rules or the 1997 Safeguard\nRules.\n\n*****\n\n78. It will be evident from the aforesaid judgments that\nthe Central Government, while acting as a delegated\nlegislative body, performs two distinct and separate\nfunctions in the context of the levy of antidumping and\nsafeguard duty. The first is the function of framing Rules\nsuch as the Anti-Dumping Rules 1995 or the 1997\nSafeguard Rules, which function is clearly legislative. The\nsecond function is the making of a determination under\nrule 18 of the Anti-Dumping Rules 1995 or rule 12 of the\n                                      20\n                                                                     AD/52404/2022\n\n            1997 Safeguard Rules, which function is quasi judicial in\n            nature. While the exercise of the legislative function of\n            framing Rules is not appealable before the Tribunal, the\n            second function of making a determination is expressly\n            made appealable under section 9C of the Tariff Act. The\n            function of making a determination in individual cases by\n            applying the broad legislative framework and policy\n            already set out in the Statute is not at all legislative in\n            character, but clearly a quasi- judicial function requiring\n            the Central Government to follow the principles of natural\n            justice by affording an opportunity to the party likely to be\n            adversely.\n\n            *****\n\n            82. In view of the judgments of the Supreme Court in K.\n            Sabanayagam, Cynamide India Ltd. and Godawat\n            Pan Masala, and the decision of the Tribunal in Jubilant\n            Ingrevia Limited, it has to be held that reasons have to\n            be recorded by the Central Government when it proceeds\n            to form an opinion not to impose any anti-dumping duty\n            despite   a   positive   recommendation     made    by   the\n            designated authority in the final findings for imposition of\n            anti-dumping duty."\n                                                 (emphasis supplied)\n\n\n        Principles of natural justice and reasoned order\n\n32. The Bench also examined the requirements of compliance of the\n\nprinciples of natural justice and a reasoned order and held as\n\nfollowed:\n\n            "82. In view of the judgments of the Supreme Court in K.\n            Sabanayagam, Cynamide India Ltd. and Godawat\n            Pan Masala, and the decision of the Tribunal in Jubilant\n            Ingrevia Limited, it has to be held that reasons have to\n            be recorded by the Central Government when it proceeds\n            to form an opinion not to impose any anti-dumping duty\n            despite   a   positive   recommendation     made    by   the\n            designated authority in the final findings for imposition of\n            anti-dumping duty."\n                                                 (emphasis supplied)\n\n\n33. The Bench thereafter observed:\n                                              21\n                                                                                    AD/52404/2022\n\n                   "84. In view of the aforesaid decision of the Supreme\n                   Court   in   Punjab       National      Bank,    the   submission\n                   advanced by learned counsel for the appellant deserves to\n                   be accepted. Thus, if the Central Government forms a\n                   prima   facie   opinion    that   the    final   findings   of   the\n                   designated authority recommending imposition of anti-\n                   dumping duty are not required to be accepted then\n                   tentative reasons have to be recorded and conveyed to\n                   the domestic industry so as to give an opportunity to the\n                   domestic industry to submit a representation. Though the\n                   Tariff Act and the 1995 Anti-Dumping Rules or the 1997\n                   Safeguard Rules do not provide for such an opportunity to\n                   be provided to the domestic industry, but the principles of\n                   natural justice would require such an opportunity to be\n                   provided."\n                                                            (emphasis supplied)\n\n\n 34. Learned counsel for the appellant has also placed a decision of\n\n       the Gujarat High Court in Realstripes Limited & 1 other(s) vs.\n\n       Union of India & 1 other(s)11. The High Court repelled the\n\n       contention advanced on behalf of the Central Government that the\n\n       issuance of the notification was legislative in character and the\n\n       relevant observations are as follows:\n\n                   "6.5 It was another submission in vain on behalf of\n                   respondents seeking to assert that notification rescinding\n                   the countervailing duty is of legislative character and\n                   amounts of exercise of legislative power by the Central\n                   Government and therefore, not amenable to judicial\n                   review. 6.5.1 The submission is devoid of substance, if we\n                   examine the decisions on this score.*****"\n\n 35. After considering the decisions of the Supreme Court in PTC\n\n       India Ltd. vs. Central Electricity Regulatory Commission12,\n\n       National Thermal Power Corp. vs. Madhya Pradesh State\n11.   R/Special Civil Application No. 4495 of 2022 decided on 02.09.2022\n12.   (2010) 4 SCC 603\n                                          22\n                                                                             AD/52404/2022\n\n       Electricity Board13 and Reliance Industries vs. Designated\n\n       Authorities14 , the Gujarat High Court also observed:\n\n                  "6.5.4 Under Section 9-C of the Customs Tariff Act, appeal\n                  lies against the order of determination or review of the\n                  countervailing duty before the Customs, Excise and\n                  Service Tax Appellate Tribunal, constitution under Section\n                  129 of the Customs Act, 1962. In view of this, the\n                  Notification necessarily takes a quasi-judicial colour."\n\n 36. The Gujarat High Court also examined whether quasi-judicial\n\n       process was involved in issuance of the notification by the Central\n\n       Government and after analyzing the decision of the Supreme Court in\n\n       Indian National Congress vs. Institute of Social Welfare1115,\n\n       the Gujarat High Court held that the notification issued by the Central\n\n       Government would be quasi-judicial in nature.\n       37. The inevitable conclusion, therefore, that follows from the\n\n       aforesaid discussion is that reasons have to be recorded by the\n\n       Central Government when it proceeds to form an opinion not to\n\n       impose any anti-dumping duty despite a positive recommendation\n\n       made by the designated authority in the final findings for imposition\n\n       of anti-dumping duty. The matter, therefore, would have to be\n\n       remitted to the Central Government for taking a decision on the\n\n       recommendation made by the designated authority for imposition of\n\n       anti-dumping duty on the import of the subject goods from the\n\n       subject countries.\n\n                              Provisional Assessment\n\n       38. In the end, learned counsel for the appellant also urged that the\n\n       Tribunal may protect the interest of the appellant in the same manner\n\n13.   (2011) 15 SCC 580\n14.   (2006) 10 SCC 368\n15.   (2002) 5SCC 658\n                                     23\n                                                                        AD/52404/2022\n\nas was protected by the Delhi High Court in the writ petition filed by\n\nthe Union of India against the decision of the Tribunal in Jubilant\n\nIngrevia.\n\n39. The Tribunal had set aside the office memorandum issued by the\n\nUnder Secretary conveying the decision of the Central Government\n\nnot to impose anti-dumping duty despite a recommendation made by\n\nthe designated authority for imposition of anti-dumping duty. The\n\norder   passed    by    the     Delhi    High     Court     on    05.09.2022       in\n\nW.P(C)5185/2022 filed by the Union of India against the decision of\n\nthe Tribunal in Jubilant Ingrevia, is reproduced below:\n\n            "W.P.(C) 5185/2022& CM No.15389/2022 [Application\n            filed on behalf of the petitioner seeking interim relief]\n\n            5. The respondent before us is the domestic industry. It is\n            not in dispute that the Designated Authority [in short\n            "DA"] via notification dated 25.08.2020 has recommended\n            the imposition of anti-dumping duty [in short "ADD"].\n\n            6. It is also not in dispute that the Government of India\n            has disagreed with the recommendation made by the DA.\n            7. This decision forms part of the Office Memorandum\n            (OM) dated 14.12.2020.\n\n            8. Given this position, we are of the view that as an\n            adinterim measure, the following direction would suffice,\n            as the need to impose ADD would arise only if the\n            respondent were to succeed in the instant writ petition.\n\n                 (i) The provisional assessment of imports concerning\n                 the product in issue will be made for the time being.\n                 The importers would, thus, be put to notice of the\n                 possibility of ADD being imposed, albeit as per law,\n                 if, as noticed above, the respondent were to succeed\n                 in the instant writ petition.\n                 (ii) It is, however, made clear that the aforesaid\n                 direction will not create any equities in favour of the\n                 respondent.\n                 (iii) Furthermore, this direction will not have an\n                 impact on the merits of the writ petition.\n                                            24\n                                                                         AD/52404/2022\n\n                    9. CM No.15389/2022 is disposed of in the aforesaid\n                    terms.\n\n                    10. List the matter on 02.03.2023."\n\n\n 40. A similar interim order was passed by the Delhi High Court in\n\n       W.P(C) No. 6758/2022 on 05.09.2022 in the writ petition filed by the\n\n       Union of India to assail the decision of the Tribunal rendered in\n\n       Association of Synthetic Fibre Industry vs. Union of India and\n\n       4 others16 in which the office memorandum was set aside.\n       41. Though the present appeal is being disposed of but a decision\n\n       has yet to be taken by the Central Government in the light of the\n\n       observations    made     in   the   order.   It    is,   therefore,   considered\n\n       appropriate to pass a similar order, as was passed by the High Court,\n\n       which will remain operative till a decision is taken by the Central\n\n       Government on the recommendation made by the designated\n\n       authority for imposition of anti-dumping duty. The directions are as\n\n       follows:\n\n         (i)      The provisional assessment of imports concerning the subject\n\n                  goods from the subject countries will be made for the time\n\n                  being;\n\n         (ii)     It is, however, made clear that the aforesaid direction will not\n\n                  create any equities in favour of the domestic industry; and\n\n         (iii)    This direction will not have any impact on the decision to be\n\n                  taken by the Central Government pursuant to the directions\n\n                  issued for reconsideration of the recommendation made by\n\n                  the designated authority.\n\n16.   Anti-Dumping Appeal No. 51049 of 2021 decided on 01.11.2021\n                                     25\n                                                                AD/52404/2022\n\n                                   Conclusion\n\n42. Thus, for all the reasons stated above, the matter is remitted to the\n\n    Central Government to consider the recommendation made by the\n\n    designated authority in the final findings dated 15.02.2022 in the light\n\n    of the observations made above. The directions contained in paragraph\n\n    41 of this order shall continue to operate till such time as a decision is\n\n    taken by the Central Government. The appeal is allowed to the extent\n\n    indicated above. The learned authorized representative appearing for\n\n    the Department shall send a copy of this order to all the concerned\n\n    zones where the imports of the subject goods are likely to be made\n\n    and also ensure that necessary and effective steps are taken by all\n\n    concerned for due compliance of this order.\n\n\n\n\n                                                  (JUSTICE DILIP GUPTA)\n                                                             PRESIDENT\n\n\n\n\n                                                       (P.V. SUBBA RAO)\n                                                     MEMBER (TECHNICAL\n\n\n\n\n                                                          (BINU TAMTA)\n                                                      MEMBER (JUDICIAL)\n\n     Shreya