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\nIndian Steel Association vs -Designated Authority Directorate ... on 20 December, 2022\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. 51207 OF 2022\n     (Arising out of Office Memorandum vide F. No. CBIC-190354/137/2021-TO(TRU-I)-\n     CBEC dated 07.02.2022, Government of India, Ministry of Finance, Department of\n     Revenue, Tax Research Unit)\n\n     M/s Indian Steel Association                              ......Appellant\n     Upper Ground Floor No. 4\n     Kanchenjunga Building, 18\n     Barakhamba Road\n     New Delhi - 110 001\n                                             Versus\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 Anti-Dumping and Allied Duties\n     Ministry of Commerce & Industry\n     Parliament Street, Jeevan Tara\n     Building, 4th Floor, New Delhi-110001\n\n3.   Rashtriya Ispat Nigam Limited\n     Administrative Building\n     Visakhapatnam Steel Plant\n     Visakhapatnam - 530031 (AP)\n\n4.   Steel Authority of India Limited\n     Ispat Bhawan, Lodhi Road\n     New Delhi - 110 003\n\n5.   M/s JSW Steel Ltd.\n     JSW Centre\n     Bandra Kurla Complex, Bandra (East)\n     Mumbai - 400 051\n\n6.   Embassy of China PR\n     50-D,Shantipath\n     Chanakyapuri,\n     New Delhi-110021\n\n7.   Steel Wire Manufacturers\n     Association of India                                      ......Respondents\n     227, Acharya Jagadish Chandra Bose Road\n     Sreepally, Bhowanipore\n     Kolkata - 700 020\n\n     APPEARANCE:\n\n     Shri Dhruv Gupta & Shri Bhargav Mansatta, Advocates, for the appellant.\n\n     Shri Ameet Singh & Ms Nidhi Rekhari, Advocates for the Designated Authority\n\n     Shri Rakesh Kumar, Authorised Representative for the Revenue\n                                        2\n                                                                    AD/51207/2022\n\n     CORAM:       HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT\n                  HON'BLE MR. P.V. SUBBA RAO, MEMBER (TECHNICAL)\n                  HON'BLE DR. RACHNA GUPTA, MEMBER (JUDICIAL)\n\n                                                   Date of Hearing: 23.11.2022\n                                                   Date of Decision: 20.12.2022\n\n                          FINAL ORDER NO. 51202/2022_\n\n\n     JUSTICE DILIP GUPTA :\n\n           The grievance raised by the appellant, which is an association of\n\n     the steel producers in India, is that despite a recommendation having\n\n     being made by the designated authority in the final findings notified on\n\n     28.10.2021 for continuation of anti-dumping duty under section 9A of\n\n     the Customs Tariff Act 19751, the Central Government did not issue\n\n     the notification for continuation of anti-dumping duty. The relief,\n\n     therefore, that has been claimed in the appeal is that the office\n\n     memorandum dated 07.02.2022 issued by the Ministry of Finance,\n\n     Department of Revenue, Tax Research Unit conveying the decision of\n\n     the Central Government not to impose anti-dumping duty proposed\n\n     in the final findings be set aside and a direction be issued to the\n\n     Central Government to issue a notification for continuation of anti-\n\n     dumping duty, based on the recommendation made by the designated\n\n     authority.\n\n     2.    It transpires from the record that an application had been before\n\n     the designated authority on behalf of the domestic industry for\n\n     initiation of sunset review investigation under the provisions of the\n\n     Tariff Act and the Customs Tariff (Identification, Assessment and\n\n     Collection    of   Anti-Dumping   Duty   on    Dumped    Articles   and   for\n\n\n\n\n1.   the Tariff Act\n                                                3\n                                                                                    AD/51207/2022\n\n     Determination of Injury) Rules, 19952 on imports of Wire Rod of Alloy\n\n     or Non-Alloy Steel3 originating in or exported from China PR4. The\n\n     designated      authority,       thereafter,        issued    a   public    notice      dated\n\n     28.07.2021 to review the need for continued imposition of anti-\n\n     dumping duty in respect of the subject goods, originating in or\n\n     exported from the subject country and to examine whether the expiry\n\n     of said anti-dumping duty is likely to lead to continuation or recurrence\n\n     of dumping and injury to the domestic industry. The period of\n\n     investigation     for    the     purpose       of    anti-dumping       duty      was   from\n\n     01.10.2019 to 31.03.2021 and the injury investigation period was from\n\n     2017-2018 to 2019-2020 and the period of investigation. Oral hearings\n\n     were conducted and the parties that attended the oral hearings were\n\n     advised to file written submissions on the views expressed orally,\n\n     followed by rejoinders, if any. As contemplated under rule 16, the\n\n     essential facts of the investigation were disclosed to the known\n\n     interested parties by a disclosure statement dated 20.10.2021. The\n\n     interested parties, including the appellant, filed comments to the\n\n     disclosure statement.\n\n     3.    Thereafter, the designated authority notified the final findings on\n\n     28.10.2021. The relevant portions of the conclusion drawn and the\n\n     recommendation by the designated authority in the final findings are as\n\n     follows:\n\n                  N.         CONCLUSION:\n                  142.       Having   regard       to    the   contentions   raised,\n                  information provided and submissions made and the\n                  facts available before the Authority as recorded above\n                  and on the basis of the above analysis of the likelihood\n\n\n2.   the 1995 Anti-Dumping Rules\n3.   the subject goods\n4.   the subject country\n                                  4\n                                                                    AD/51207/2022\n\n     of continuation or recurrence of dumping and injury to\n     the domestic industry, the Authority concludes that:\n     *****\n     vi.      The Authority conducted an elaborate likelihood\n     analysis and notes as follows:\n\n\n     a.       There are huge surplus capacities for\n              product under consideration available with\n              the producers /exporters in the subject\n              country as evidenced from the independent\n              reports available on record.\n\n     b.       Examination of information on record\n              regarding export price to third countries\n              from subject country shows that significant\n              exports to third countries are at dumped\n              prices.\n\n     c.       Most of the countries having substantial\n              production base for the subject goods have\n              imposed     and/or   continued    trade  remedy\n              measures on imports of subject goods from\n              subject    country.  In    fact,  the   European\n              Commission in its recent decision dated 12 th\n              October, 2021 in the second sunset review\n              investigation has continued the anti-dumping\n              duty on imports of wire rod from China PR.\n\n     d.       Examination of information on record regarding\n              export price to third countries from the subject\n              country shows that exports to third countries\n              are at prices below the export price to\n              India, which shows that Indian market is\n              more price attractive to exporters from\n              subject country.\n\n     e.       Historical trend of global steel prices show that\n              steel prices are cyclical in nature and there is\n              likelihood of injury to the domestic industry due\n              to imports at low price when there is decline in\n              global steel prices.\n\n     f.       Historical trend of export price of wire rod from\n              China PR shows that the Chinese export prices\n              are highly volatile and there is likelihood of injury\n              to the domestic industry due to imports at low\n              price when there is decline in Chinese export\n              prices of wire rod.\n4.\n\n\n\n\n     vii.     Assessment conducted by the Authority leads to\n     the     conclusion   that       there   is   a   likelihood   of\n     continuation/recurrence of dumping and injury to the\n     domestic industry in the event of revocation of duty.\n\n     viii.    The Authority further notes that there is healthy\n     competition in the Indian market and continuation of\n                                         5\n                                                                           AD/51207/2022\n\n           anti-dumping duty would not lead to monopolistic or\n           oligopolistic situation in the Indian market for the\n           subject goods.\n\n           ix.        Reference price-based duty in the present sunset\n           review would ensure that users and importers of product\n           under consideration are not penalised when imports into\n           India are at fair price.\n\n           O. RECOMMENDATIONS:\n           125.       The Authority notes that the sunset review was\n           initiated and notified to all interested parties and\n           adequate       opportunity    was     given   to   the   domestic\n           industry,      exporters,        importers/users    and     other\n           interested parties to provide information on the aspects\n           of dumping, injury and the causal link and likelihood of\n           continuation or recurrence of dumping and injury.\n           Having initiated and conducted the sunset review in\n           terms of provisions laid down under the Rules, the\n           Authority is of the view that continued imposition of\n           anti-dumping duty was required on the imports of the\n           subject goods from the subject country.\n\n           126.       The Authority recommends continuation of\n           anti-dumping duty on the imports of the subject\n           goods described in Col. 3 of the duty table below\n           originating in or exported from the subject country\n           for a period of 5 years from the date of notification\n           to    be    issued   in     this    regard    by   the    Central\n           Government."\n                                                    (emphasis supplied)\n\n5.    It would be seen from the aforesaid final findings that on the\n\nbasis of a detailed analysis carried, the designated authority found as\n\nfact that huge surplus capacities for the prodcut under consideration\n\nwas available with the producers/exporters in the subject country and\n\nthat since significant exports of the subject goods from the subject\n\ncountry to third countries were at dumped prices, the Indian market\n\nwould be more attractive to the exporters from the subject country.\n\nThe designated authority ultimately concluded that there was a\n                                        6\n                                                                          AD/51207/2022\n\nlikelihood of continuation/recurrence of dumping and injury to the\n\ndomestic industry in the event of revocation of duty and, therefore,\n\nmade a recommendation to the Central Government for continuation\n\nof anti-dumping duty on the import of the subject goods from the\n\nsubject country for a period of five years.\n\n6.    An office memorandum dated 07.02.2022 was then issued by\n\nthe Ministry of Finance to convey the decision of the Central\n\nGovernment not to impose anti-dumping duty. It is reproduced below:\n\n                 "F. No. CBIC-190354/137/2021-TO(TRU-I)-CBEC\n                             "Government of India\n                              Ministry of Finance\n                           (Department of Revenue)\n                               Tax Research Unit\n                                            Room No. 146(G), North Block\n                                  New Delhi, dated the 07th February, 2022\n\n                               OFFICE MEMORANDUM\n\n            Subject:      Final      Findings-       Sunset       review\n            investigation concerning imports of "Wire rod of\n            alloy or non-alloy steel" originating in or exported\n            from China PR -reg.\n\n                     The undersigned is directed to refer to final\n            findings on the above subject issued vide notification F.\n            No. 7/17/2021-DGTR, dated the 28th October, 2021,\n            wherein it was recommended to impose definitive anti-\n            dumping duty on imports of "Wire rod of alloy or non-\n            alloy steel", originating in or exported from China PR.\n\n            2.       In exercise of the powers conferred by sub-\n            sections (1) and (5) of section 9A of the Customs Tariff\n            Act, read with rules 18 and 23 of the Customs Tariff\n            (Identification,   Assessment    and    Collection   of   Anti-\n            dumping Duty on Dumped Articles and for Determination\n            of Injury) Rules, 1995, the Central Government, after\n            considering the aforesaid final findings of the designated\n            authority, has decided not to accept the aforesaid\n            recommendations.\n                                              Technical Officer (TRU-I)"\n                                  7\n                                                              AD/51207/2022\n\n7.     The main contention that has been advanced by Shri Dhruv\n\nGupta, learned counsel appearing for the appellant assisted by Shri\n\nBhargav Mansatta is that the office memorandum, communicating the\n\ndecision of the Central Government not to continue anti-dumping\n\nduty, despite a recommendation having been made by the designated\n\nauthority in the final findings to continue anti-dumping duty should be\n\nset aside for the reason that the principles of natural justice have\n\nbeen    violated   and   even   otherwise   the   decision   is   arbitrary,\n\nunreasoned and bad in law. The contention advanced by Shri Ameet\n\nSingh learned counsel for the respondents assisted by Ms. Nidhi\n\nRekhari and other learned counsel for the respondents, is that the\n\nappeal is not maintainable under section 9C of the Tariff Act and that\n\nthe exercise of power by the Central Government under section 9A of\n\nthe Tariff Act read with rule 18 of the 1995 Anti-Dumping Rules is\n\nlegislative in nature and so neither the principles of natural justice are\n\nrequired to be complied with nor a reasoned order is required to be\n\npassed.\n\n8.     In order to examine these submissions it would be useful to first\n\nexamine the relevant provisions of the Tariff Act and the 1995 Anti-\n\nDumping Rules.\n\n9.     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 export\n                                   8\n                                                                AD/51207/2022\n\nprice and the normal price have all been defined in section 9A(1) of\n\nthe Tariff Act.\n\n10.   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\n11.   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\nnecessary and the Central Government may, by notification in the\n\nOfficial Gazette, make rules for the purpose of this section. The first\n\nproviso, however, provides that if the Central Government, in a\n\nreview, is of the opinion that the cessation of such duty is likely to lead\n\nto continuation or recurrence of dumping and injury, it may, from time\n\nto time, extend the period of such imposition for a further period of\n\nfive years and such further period shall commence from the date of\n\norder of such extension.\n\n12.   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 Anti-Dumping Rules.\n\n13.   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                  (i)    the amount of anti-dumping duty equal to\n                         the margin of dumping or less, which if\n                         levied, would remove the injury to the\n                         domestic industry, after considering the\n                                            9\n                                                                               AD/51207/2022\n\n                              principles laid down in the Annexure III to\n                              these rules; and\n\n                     (ii)     the date of commencement of such duty;"\n\n14.   Rule 5 deals with initiation of investigation to determine the\n\nexistence, degree and effect of any alleged dumping.\n\n15.   Rule 6 deals with the principles governing investigation and it is\n\nreproduced below:\n\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\n           public        notice   shall,   inter   alia,   contain    adequate\n           information on the following:-\n\n           (i)       the name of the exporting country or\n                     countries and the article involved;\n\n           (ii)      the date of initiation of the investigation;\n\n           (iii)     the basis on which dumping is alleged\n                     in the application;\n\n           (iv)      a summary of the factors on                which\n                     the allegation of injury is based;\n\n            (v)      the address to which representations\n                     by interested parties should be directed;\n                     and\n\n            (vi)     the time-limits allowed to interested\n                     parties for making their views known.\n\n\n\n           (2) A copy of the public notice shall be forwarded by the\n           designated authority to the known exporters of the\n           article alleged to have been dumped, the Governments\n           of      the    exporting    countries    concerned        and   other\n           interested parties.\n\n\n           (3) The designated authority shall also provide a copy of\n           the application referred to in sub-rule (1) of Rule 5 to-                             10\n                                                                     AD/51207/2022\n\n(i)     the known exporters or to the concerned\n        trade association where the number of\n        exporters is large, and\n\n\n(ii)    the    governments        of     the     exporting\n        countries: Provided that the designated\n        authority shall also make available a copy\n        of the application to any other interested\n        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\nby it, from the exporters, foreign producers and other\ninterested    parties     and    such    information       shall   be\nfurnished by such persons in writing within thirty days\nfrom the date of receipt of the notice or within such\nextended period as the designated authority may allow\non sufficient cause 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\non which 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\nsold at the retail level, to furnish information which is\nrelevant to the investigation regarding dumping, injury\nwhere applicable, and causality.\n\n(6)    The designated authority may allow an interested\nparty or its representative to present the information\nrelevant to the investigation orally but such oral\ninformation shall be taken into consideration by the\ndesignated authority only when it is subsequently\nreproduced in writing.\n\n(7)    The designated authority shall make available the\nevidence presented to it by one interested party to the\n                                      11\n                                                                          AD/51207/2022\n\n           other      interested   parties,      participating    in    the\n           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\n           make       such    recommendations          to   the    Central\n           Government as it deems fit under such circumstances."\n\n\n16.   Rule 10 deals with determination or normal value, export price\n\nand margin of dumping and it is reproduced below:\n\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\n           less than its normal value and in such circumstances\n           the designated authority shall determine the normal\n           value, export price and the margin of dumping taking\n           into account, inter alia, the principles laid down in\n           Annexure I to these rules."\n\n17.   Rule 11 deals with determination of injury and it is reproduced\n\nbelow:\n\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           materially retards the establishment of any industry in\n           India.\n\n           (2) The designated authority shall determine the injury\n           to domestic industry, threat of injury to domestic\n           industry,    material   retardation    to    establishment    of\n           domestic industry and a causal link between dumped\n           imports and injury, taking into account all relevant\n           facts, including the volume of dumped imports, their\n                                           12\n                                                                         AD/51207/2022\n\n            effect on price in the domestic market for like articles\n            and the consequent effect of such imports on domestic\n            producers of such articles and in accordance with the\n            principles set out in 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\n            a substantial portion of the domestic industry is not\n            injured, 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\n                    within such market."\n\n18.   Rule 17 deals with final findings. It is reproduced below:\n\n            "Final findings.-\n\n            (1)     The designated authority shall, within one year\n                    from the date of initiation of an investigation,\n                    determine as to whether or not the article under\n                    investigation is being dumped in India and\n                    submit     to the Central       Government   its final\n                    finding-\n            (a)     as to, -\n\n            (i)     the export price, normal value and the margin of\n                    dumping of the said article;\n\n            (ii)    whether import of the said article into India, in\n                    the case of imports from specified countries,\n                    causes       or    threatens   material injury to any\n                    industry established in India or materially retards\n                    the establishment of any industry in India;\n\n            (iii)   a casual link, where applicable, between the\n                    dumped imports and injury;\n\n            (iv)    whether a retrospective levy is called for and if\n                    so,    the        reasons   therefor   and   date   of\n                    commencement of such retrospective levy:\n\n                    xxxxxxx\n\n            (b)     Recommending the amount of duty which, if\n                    levied, would remove the injury where applicable,\n                                      13\n                                                                         AD/51207/2022\n\n                   to the domestic industry after considering the\n                   principles laid down in the Annexure III to rules."\n\n19.   Rule 18 deals with levy of duty and the relevant portion is\n\nreproduced below:\n\n\n            "18. Levy of duty.-\n\n            (1)   The Central Government may, within three months\n            of the date of publication of final findings by the\n            designated   authority   under    rule   17,   impose   by\n            notification in the Official Gazette, upon importation into\n            India of the article covered by the final finding, anti-\n            dumping duty not exceeding the margin of dumping as\n            determined under rule 17."\n\n\n20.   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 while\n\ndetermining the normal value, export price and margin of dumping\n\nshall take into account the principles contained in clauses (1) to (8) of\n\nthe Annexure.\n\n21.   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 injury,\n\nshall inter alia, take the principles enumerated from (i) to (vii) of\n\nAnnexure II under consideration.\n\n22.   Annexure-III to the 1995 Anti-Dumping Rules deals with the\n\nprinciples for determination of non-injurious price.\n                                       14\n                                                                          AD/51207/2022\n\n     23.   It is keeping in mind the aforesaid legal provisions that the\n\n     submissions advanced by the learned counsel for the appellant and\n\n     the learned counsel for the private respondents, as also the learned\n\n     authorized representatives appearing for the respondent Union of India\n\n     have to be considered.\n\n     24.   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 others5 and it was\n\n     held that the appeal would be maintainable against the decision of the\n\n     Central Government contained in the office memorandum not to\n\n     impose anti-dumping duty.\n\n 25.   The Bench also examined whether the determination by the\n\n     Central Government was legislative in character or quasi-judicial in\n\n     nature and after examining the relevant provisions of the Tariff Act,\n\n     the 1995 Anti-Dumping Rules and the decisions of the Supreme Court\n\n     and the High Courts observed that the function performed by the\n\n     Central Government would be quasi-judicial in nature. The Bench also,\n\n     in the alternative, held that even if the function performed by the\n\n     Central Government was legislative, then too the principles of natural\n\n     justice and the requirement of a reasoned order have to be compiled\n\n     with since the Central Government would be performing the third\n\n     category of conditional legislation contemplated in the judgment of the\n\n     Supreme Court in State of Tamil Nadu vs. K. Sabanayagam and\n\n     another6. The relevant observation are as follows:\n                "75.    Thus, even if it is assumed that the Central\n                Government    exercises    legislative   powers   when   it\n\n5.   Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022\n6.   (1998) 1 SCC 318\n                             15\n                                                                    AD/51207/2022\n\nimposes anti-dumping duty or has taken a decision not\nto impose anti-dumping under section 9A of the Tariff\nAct, it would still be a piece of conditional legislation\nfalling   under     the    third     category     of     conditional\nlegislations pointed out by the Supreme Court in K.\nSabanayagam. This is for the reason that in the\nscheme of the Tariff Act and the 1995 Anti-Dumping\nRules, the Central        Government has          necessarily to\nexamine all the relevant factors prescribed in the Tariff\nAct and the Rules for coming to a conclusion whether\nanti-dumping duty has to be levied or not. It cannot be\nthat it is only the designated authority that is required\nto follow the procedure prescribed under the Tariff Act\nand   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\nGovernment, after such inquiry as it may consider\nnecessary. Rules may have been framed by the Central\nGovernment under which the designated authority has\nto carry out a meticulous examination, but nonetheless\nwhen the Central Government has to take a decision on\nthe recommendation made by the designated authority\nin the final findings such factual aspects cannot be\nignored. There is a clear lis between the domestic\nindustry on the one hand and the foreign exporter and\nimporters on the other hand since the domestic industry\ndesires anti-dumping duty to be imposed for which\npurpose investigation is carried out by the designated\nauthority, but the foreign exporters and importers\nresist the imposition of anti-dumping duty. For exercise\nof such power, a detail procedure has been provided in\nthe Tariff Act, the 1995 Anti- Dumping Rules or the\n1997 Safeguard Rules.\n\n*****\n                                       16\n                                                                              AD/51207/2022\n\n\n\n            78.     It will be evident from the aforesaid judgments\n            that the Central Government,             while   acting    as    a\n            delegated legislative body, performs two distinct and\n            separate functions in the context of the levy of anti-\n            dumping and safeguard duty. The first is the function of\n            framing Rules such as the Anti-Dumping Rules 1995 or\n            the 1997 Safeguard Rules, which function is clearly\n            legislative. The second function is the making of a\n            determination under rule 18 of the Anti-Dumping Rules\n            1995 or rule 12 of the 1997 Safeguard Rules, which\n            function is quasi judicial in nature. While the exercise of\n            the legislative function of framing Rules is not appealable\n            before the Tribunal, the second function of making a\n            determination    is   expressly   made      appealable     under\n            section 9C of the Tariff Act. The function of making a\n            determination in individual cases by applying the broad\n            legislative framework and policy already set out in the\n            Statute is not at all legislative in character, but clearly a\n            quasi-judicial function requiring the Central Government\n            to follow the principles of natural justice by affording\n            an opportunity to the party likely to be adversely.\n\n            *****\n\n\n            82.      In view of the judgments of the Supreme Court\n            in    K. Sabanayagam, Cynamide              India    Ltd.      and\n            Godawat      Pan      Masala, and the        decision     of    the\n            Tribunal in Jubilant Ingrevia Limited, it has to be\n            held that reasons have to be recorded by the Central\n            Government when it proceeds to form an opinion not to\n            impose    any   anti-dumping      duty    despite   a     positive\n            recommendation made by the designated authority in\n            the final findings for imposition of anti-dumping duty."\n\n                                                 (emphasis supplied)\n\n\n26.   The Bench also examined the requirements of compliance of\n\nthe principles of natural justice and a reasoned order and held as\n\nfollowed:\n                                                17\n                                                                                       AD/51207/2022\n\n                 "82.      In view of the judgments of the Supreme Court\n                 in   K. Sabanayagam, Cynamide                    India      Ltd.    and\n                 Godawat       Pan     Masala, and the            decision     of    the\n                 Tribunal in Jubilant Ingrevia Limited, it has to be\n                 held that reasons have to be recorded by the Central\n                 Government when it proceeds to form an opinion not to\n                 impose     any     anti-dumping      duty      despite   a    positive\n                 recommendation made by the designated authority in\n                 the final findings for imposition of anti-dumping duty."\n\n                                                           (emphasis supplied)\n\n\n     27.   The Bench thereafter observed:\n\n\n                 "84. In     view    of    the      aforesaid     decision     of    the\n                 Supreme       Court       in Punjab       National Bank, the\n                 submission       advanced       by   learned     counsel     for    the\n                 appellant deserves to be accepted. Thus, if the Central\n                 Government forms a prima facie opinion that the final\n                 findings of the designated             authority    recommending\n                 imposition of anti-dumping duty are not required to\n                 be     accepted    then   tentative      reasons     have      to    be\n                 recorded and conveyed to the domestic industry so as\n                 to give an opportunity to the domestic industry to\n                 submit a representation. Though the Tariff Act and the\n                 1995 Anti-Dumping Rules or the 1997 Safeguard Rules\n                 do not provide for such an opportunity to be provided to\n                 the domestic industry, but the principles of natural\n                 justice    would    require     such    an     opportunity     to    be\n                 provided."\n                                                           (emphasis supplied)\n\n\n 28.   Learned authorized counsel for the appellant has also placed a\n\n     decision of the Gujarat High Court in Realstripes Limited & 1\n\n     other(s) vs. Union of India & 1 other(s)7. The High Court repelled\n\n     the 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\n7.   R/Special Civil Application No. 4495 of 2022 decided on 02.09.2022\n                                                  18\n                                                                                         AD/51207/2022\n\n                    "6.5    It was another submission in vain on behalf of\n                    respondents        seeking     to      assert    that     notification\n                    rescinding   the countervailing           duty is of legislative\n                    character and amounts of exercise of legislative power\n                    by the Central Government and therefore, not amenable\n                    to judicial review. 6.5.1 The submission is devoid of\n                    substance,    if    we     examine      the     decisions    on   this\n                    score.*****"\n\n 29.   After considering the decisions of the Supreme Court in PTC\n\n      India Ltd. vs. Central Electricity Regulatory Commission8,\n\n      National Thermal Power Corp. vs. Madhya Pradesh State\n\n      Electricity    Board9        and       Reliance         Industries          vs.    Designated\n\n      Authorities10, the Gujarat High Court also observed:\n                    "6.5.4 Under Section 9-C of the Customs Tariff Act,\n                    appeal lies against the order of determination or review\n                    of the countervailing duty before the Customs, Excise\n                    and Service Tax Appellate Tribunal, constitution under\n                    Section 129 of the Customs Act, 1962. In view of this,\n                    the    Notification      necessarily     takes    a     quasi-judicial\n                    colour."\n\n 30.   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 Welfare11, the\n\n      Gujarat High Court held that the notification issued by the Central\n\n      Government would be quasi-judicial in nature.\n      31.   The inevitable conclusion, therefore, that follows from the\n\n      aforesaid discussion is that the decision taken by the Central\n\n\n\n8.    (2010) 4 SCC 603\n9.    (2011) 15 SCC 580\n10.   (2006) 10 SCC 368\n11.   (2002) 5 SCC 658\n                                       19\n                                                                    AD/51207/2022\n\nGovernment       not     to     impose       anti-dumping   duty    despite    a\n\nrecommendation having been made by the designated authority for\n\nimposition of anti-dumping duty, cannot be sustained as it does not\n\ncontain reasons nor the principles of natural justice have been\n\ncompiled with and the matter would have to be remitted to the\n\nCentral     Government        for   taking    a fresh    decision     on      the\n\nrecommendation made by the designated authority.\n\n32.      Thus, for all the reasons stated above, the office memorandum\n\ndated 07.02.2022 is set aside and the matter is remitted to the Central\n\nGovernment       to    reconsider     the    recommendation    made     by    the\n\ndesignated authority in the light of the observations made above. The\n\nappeal is allowed to the extent indicated above.\n\n\n                        (Order Pronounced on 20.12.2022)\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                                                          (RACHNA GUPTA)\n                                                        MEMBER (JUDICIAL)\nShreya