Case Law Details
Indian Steel Association Vs Union of India (CESTAT Delhi)
Reasons should be recorded when Central Government opines non-imposition of anti-dumping duty and designated authority recommends imposition
Facts- The main grievance of the appellant, which is an Association of Indian Steel producer in India, is that despite the recommendation made by the designated authority in the final finding pursuant to the sunset review investigation that was initiated for imposition of anti-dumping duty on imports of colour coated/pre-painted flat products of alloy or non-alloy steel originated in or exported from China PR and European Union , the Central Government did not issue a notification for imposition of anti-dumping duty though three months expired from the date of publication of final finding.
The final findings were issued by the designated authority on 30.08.2017 and a recommendation was made to the Central Government for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the basis of the said final findings of the designated authority, the Central Government issued a notification dated 17.10.2017 imposing anti-dumping duty for a period of 5 years w.e.f. 11.01.2017.
The domestic industry, therefore, filed an application before the designated authority for initiation of a sunset review investigation concerning imports on the subject goods originating in or exported from the subject countries. A public notice dated 26.07.2021 was thereafter issued for initiation of sunset review investigation. The period of investigation was from 01.10.2019 to 31.03.2021 and the injury examination period was from 2017 to 2020.
Conclusion- This tribunal in Apcotex Industries and Chemical and Petrochemicals held that reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty.
Thus, the matter is remitted to the Central Government for taking a decision on the recommendation made by the designated authority in the light of the decisions of the Tribunal in Apcotex Industries and Chemical and Petrochemicals.
FULL TEXT OF THE ORDER OF ITAT DELHI
The main grievance of the appellant, which is an Association of Indian Steel producer in India, is that despite the recommendation made by the designated authority in the final finding dated 08.10.2021 pursuant to the sunset review investigation that was initiated on 26.07.2021 for imposition of anti-dumping duty on imports of colour coated/pre-painted flat products of alloy or non-alloy steel1 originated in or exported from China PR and European Union2, the Central Government did not issue a notification for imposition of anti-dumping duty though three months expired from the date of publication of final finding.
2. The designated authority had earlier issued preliminary findings dated 20.10.2016 when investigation was initiated on 29.06.2016 and recommended imposition of provisional anti-dumping duty on the imports of the subject goods from the subject countries. The Central Government thereafter imposed provisional anti-dumping duty on the subject goods by a notification dated 11.01.2017. The final findings were issued by the designated authority on 30.08.2017 and a recommendation was made to the Central Government for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the basis of the said final findings of the designated authority, the Central Government issued a notification dated 17.10.2017 imposing anti-dumping duty for a period of 5 years w.e.f. 11.01.2017.
3. The domestic industry, therefore, filed an application before the designated authority for initiation of a sunset review investigation concerning imports on the subject goods originating in or exported from the subject countries. A public notice dated 26.07.2021 was thereafter issued for initiation of sunset review investigation. The period of investigation was from 01.10.2019 to 31.03.2021 and the injury examination period was from 2017 to 2020 and the period of
4. Oral hearings were conducted and the parties that attended the oral hearings were advised to file written submissions on the views expressed orally, followed by rejoinders, if any. As contemplated under rule 16, the essential facts of the investigation were disclosed to the known interested parties by a disclosure statement dated 30.09.2021. The interested parties, including the appellant, filed comments to the disclosure statement. Thereafter, the designated authority notified the final findings on 08.10.2021. The relevant portions of the conclusion drawn by the designated authority in the final findings and the recommendation are as follows:
“M. CONCLUSION:
142. Having regard to the contentions raised, information provided and submissions made and the facts available before the Authority as recorded above and on the basis of the above analysis of the likelihood of continuation or recurrence of dumping and injury to the domestic industry. the Authority concludes that :
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vi. The Authority on conducting likelibood analysis has noted as under:
a. There are huge surplus capacities for product under consideration available with the producers /exporters in the subject countries as evidenced from the independent reports available on record.
b. Examination of information on record regarding export price to third countries from the subject countries shows that significant exports to third countries are at dumped injurious prices.
c. Most of the countries having substantial production base for the subject goods have imposed and or continued trade remedy measures on imports of colour coated pre-painted flat steel products from subject countries. Thus, the subject countries have very less options available to use the excess capacity and export to other markets.
d. Examination of information on record regarding export price to third countries from the subject countries shows that significant exports to third countries are at prices below the export price to Which shows that Indian market is more price attractive to producers/exporters of the subject countries.
vi. The Authority accordingly concludes that there is a likelihood of continuation ‘recurrence of dumping and injury to the domestic industry in the event of revocation of duty.
vii. Reference price-based duty recommended by the Authority in the present sunset review would ensure that users and importers of product under consideration are not adversely affected when imports into India are at fair price.
N. RECOMMENDATIONS:
143. The Authority notes that the sunset review was initiated and notified to all interested parties and adequate opportunity was given to the domestic industry, exporters, importers ‘users and other interested parties to provide information on the aspects of dumping, injury and the causal link and likelihood of continuation or recurrence of dumping and injury.
Having initiated and conducted the sunset review into dumping, injury and causal link and likelihood of continuation or recurrence of dumping and injury in terms of provisions laid down under the Rules. be Authority is of the view that continued imposition of anti-dumping duty is required on subject goods from subject countries.
144. The Designated Authority accordingly considers it appropriate to recommend continuation of existing quantum and form of anti-dumping duty on the imports of subject goods from subject countries.”
5. The Central Government did not issued any notification within a period of three months from the date of recommendation made by the designated authority for imposition of anti-dumping duty on the imports of the subject goods from the subject countries. On the other hands, the Central Government issued a notification dated 13.01.2022 rescinding the notification dated 17.10.2017 earlier issued by the Central Government for imposition of anti-dumping duty. The said notification is reproduced below:
“GOVERNMENT OF INDIA
MINISTRY OF FINANCE
(DEPARTMENT OF REVENUE)
Notification No. 2/2022-Customs (ADD)
New Delhi, the 13th January, 2022
G.S.R. —(E). – In exercise of the powers conferred by sub-section (1) and (5) of section 9A of the Customs Tariff Act, 1975 (51 of 1975), read with rules 18 and 23 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Central Government hereby rescinds the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 49/2017-Customs(ADD), dated the 17th October, 2017, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i) vide G.S.R. number 1303(E), dated the 17th October, 2017, except as respect things done or omitted to be done before such rescission.
[F.No. CBIC-190354/156/2021-TO(TRU-I)-CBEC]
Under Secreatary”
6. The main relief that has been claimed in the present appeal is reproduced below:
“i) Quash and set aside decision taken by the Respondent No. 1 vide Notification No. 2/2022 – Customs (ADD) dated 13th January 2022;
ii) Direct the Respondent No. 1, to produce the original records/files in taking the decision not to accept the final finding issued by Respondent No. 2, if any, on record;
iii) Direct Respondent No. 1 to issue necessary notification based on recommendation made by the Respondent No. 2 in the Final Finding No. 7/16/2021-DGTR dated 8th October 2021.
7. The contention that has been advanced by the learned counsel appearing for the appellant is based on rule 18 of the 1995 Rules which provide that Central Government may, within three months of the date of the publication of final findings by the designated authority, impose by notification anti-dumping duty. The submission is that as the notification was not issued within the said period of three months by the Central Government from the date of publication of the final findings by the designated authority, a presumption can safely be drawn that the Central Government had taken a decision not to impose anti-dumping duty. Learned counsel also submitted that in view of the decisions of this Tribunal in M/s. Apcotex Industries Limited vs. Union of India and 38 others3, the Central Government has to record reasons if it decides not to impose anti-dumping duty despite a recommendation made by the designated authority in the final findings.
8. On the other hand, learned counsel for the respondents submitted that the appeal would not be maintainable under section 9C of the Customs Tariff Act 19754 and that it would not be necessary for the Central Government to record reasons if it does not agree with the recommendation made by the designated authority since the Central Government performs legislative functions.
9. In order to examine these submissions it would be useful to first examine the relevant provisions of the Tariff Act and the 1995 Anti- Dumping Rules.
10. Anti-dumping duty is imposed by the Central Government under section 9A of the Tariff Act. It provides that where any article is exported by an exporter or producer from any country to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. The margin of dumping, the export price and the normal price have all been defined in section 9A(1) of the Tariff Act.
11. Sub-section (5) of section 9A provides that anti-dumping duty imposed shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition. The proviso, however, provides that if the Central Government, in a review, is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period of five years and such further period shall commence from the date of order of such extension.
12. Sub-section (6) of the section 9A of the Tariff Act provides that the margin of dumping has to be ascertained and determined by the Central Government, after such enquiry as may be considered necessary and the Central Government may, by notification in the Official Gazette, make rules for the purpose of this section.
13. Section 9C of the Tariff Act deals with Appeal and sub‑ section (1) of section 9C is reproduced below:
“9C. Appeal
(1) An appeal against the order of determination or review thereof shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under section 129 of the Customs Act, 1962 (52 of 1962) (hereinafter referred to as the Appellate Tribunal), in respect of the existence, degree and effect of-
(i) any subsidy or dumping in relation to import of any article; or
(ii) import of any article into India in such increased quantities and under such condition so as to cause or threatening to cause serious
injury to domestic industry requiring imposition of safeguard duty in relation to import of that article.”
14. In exercise of the powers conferred by sub-section (6) of section 9A and sub-section (2) of the section 9B of the Tariff Act, the Central Government framed the 1995 Anti-Dumping Rules.
15. The duties of the designated authority are contained in rule 4 and the relevant portion is reproduced below:
“4. Duties of the designated authority.-
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(d) to recommend to the Central Government-
(i) the amount of anti-dumping duty equal to the margin of dumping or less, which if levied, would remove the injury to the domestic industry, after considering the principles laid down in the Annexure III to these rules; and
(ii) the date of commencement of such duty;”
16. Rule 2 deals with initiation of investigation to determine the existence, degree and effect of any alleged dumping.
17. Rule 6 deals with the principles governing investigation and it is reproduced below:
“6. Principles governing investigations.-
(1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:-
(i) the name of the exporting country or countries and the article involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is based;
(v) the address to which representations by interested parties should be directed; and
(vi) the time-limits allowed to interested parties for making their views known.
(2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governments of the exporting countries concerned and other interested parties.
(3) The designated authority shall also provide a copy of the application referred to in sub-rule (1) of Rule 5 to–
(i) the known exporters or to the concerned trade association where the number of exporters is large, and
(ii) the governments of the exporting countries: Provided that the designated authority shall also make available a copy of the application to any other interested party who makes a request therefor in
(4) The designated authority may issue a notice calling for any information, in such form as may be specified by it, from the exporters, foreign producers and other interested parties and such information shall be furnished by such persons in writing within thirty days from the date of receipt of the notice or within such extended period as the designated authority may allow on sufficient cause being shown.
Explanation: For the purpose of this sub-rule, the notice calling for information and other documents shall be deemed to have been received one week from the date on which it was sent by the designated authority or transmitted to the appropriate diplomatic representative of the exporting country.
(5) The designated authority shall also provide opportunity to the industrial users of the article under investigation, and to representative consumer organizations in cases where the article is commonly sold at the retail level, to furnish information which is relevant to the investigation regarding dumping, injury where applicable, and causality.
(6) The designated authority may allow an interested party or its representative to present the information relevant to the investigation orally but such oral information shall be taken into consideration by the designated authority only when it is subsequently reproduced in writing.
(7) The designated authority shall make available the evidence presented to it by one interested party to the other interested parties, participating in the
(8) In a case where an interested party refuses access to, or otherwise does not provide necessary information within a reasonable period, or significantly impedes the investigation, the designated authority may record its findings on the basis of the facts available to it and make such recommendations to the Central Government as it deems fit under such circumstances.”
18. Rule 10 deals with determination or normal value, export price and margin of dumping and it is reproduced below:
“10. Determination of normal value, export price and margin of dumping-
An article shall be considered as being dumped if it is exported from a country or territory to India at a price less than its normal value and in such circumstances the designated authority shall determine the normal value, export price and the margin of dumping taking into account, inter alia, the principles laid down in Annexure I to these rules.”
19. Rule 11 deals with determination of injury and it is reproduced below:
“11. Determination of injury. –
(1) In the case of imports from specified countries, the designated authority shall record a further finding that import of such article into India causes or threatens material injury to any established industry in India or materially retards the establishment of any industry in
(2) The designated authority shall determine the injury to domestic industry, threat of injury to domestic industry, material retardation to establishment of domestic industry and a causal link between dumped imports and injury, taking into account all relevant facts, including the volume of dumped imports, their effect on price in the domestic market for like articles and the consequent effect of such imports on domestic producers of such articles and in accordance with the principles set out in Annexure II to these rules.
(3) The designated authority may, in exceptional cases, give a finding as to the existence of injury even where a substantial portion of the domestic industry is not injured, if-
(i) there is a concentration of dumped imports into an isolated market, and
(ii) the dumped articles are causing injury to the producers of all or almost all of the production within such market.”
20. Rule 17 deals with final findings. It is reproduced below:
“Final findings.-
(1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding–
(a) as to, –
(i) the export price, normal value and the margin of dumping of the said article;
(ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India or materially retards the establishment of any industry in India;
(iii) a casual link, where applicable, between the dumped imports and injury;
(iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy:
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(b) Recommending the amount of duty which, if levied, would remove the injury where applicable, to the domestic industry after considering the principles laid down in the Annexure III to rules.”
21. Rule 18 deals with levy of duty and the relevant portion is reproduced below:
“18. Levy of duty.-
(1) The Central Government may, within three months of the date of publication of final findings by the designated authority under rule 17, impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.”
22. Annexure-I to the 1995 Anti-Dumping Rules deals with the principles governing the determination of normal value, export price and margin of dumping. It provides that the designated authority while determining the normal value, export price and margin of dumping shall take into account the principles contained in clauses (1) to (8) of the Annexure.
23. Annexure-II to the 1995 Anti-Dumping Rules deals with the principles for determination of injury. It provides that the designated authority while determining the injury or threat of material injury to domestic industry or material retardation of the establishment of such an industry, and causal link between dumped imports and such injury, shall inter alia, take the principles enumerated from (i) to (vii) of Annexure II under consideration.
24. Annexure-III to the 1995 Anti-Dumping Rules deals with the principles for determination of non-injurious price.
25. It is keeping in mind the aforesaid legal provisions that the submissions advanced by the learned counsel for the appellant and the learned counsel for the respondents, as also the learned authorized representatives appearing for the respondent Union of India have to be considered.
Whether Central Government has taken a decision not to
impose anti-dumping duty
26. Section 9A of the Tariff Act provides that where any article is exported by an exporter or producer from any country or territory to India at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose anti-dumping duty not exceeding the margin of dumping in relation to such article. It is under rule 17 of the 1995, Anti-Dumping Rules that the designated authority is required to, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit its final findings to the Central Government. Under rule 18, the Central Government may, within three months of the date of publication of the final findings by the designated authority under rule 17, impose by a notification in the Official Gazette, upon importation into India of the article covered by the final findings, anti-dumping duty not exceeding the margin of dumping as determined under rule 17.
27. In the present case, it is not in dispute that the final findings of the designed authority were published on 08.10.2021. In the appeal, the appellant has stated that an office memorandum was not issued by the Central Government. Learned counsel appearing for the Central Government has also not stated or placed such an office memorandum.
28. The issue that arises for consideration is whether a presumption can be drawn that the Central Government has taken a decision not to impose anti-dumping duty as a decision was not taken within three months by the Central Government from the date of publication of the final findings by the designated authority. On a consideration of the provisions of the Tariff Act and the 1995 Anti-Dumping Rules, it is clear that a presumption can safely to be drawn that the Central Government, by keeping silent for a long period of time, shall be deemed to have taken a decision not to impose anti-dumping duty and such a case would also fall in the category of cases where an office memorandum has actually been issued conveying the decision of the Central Government not to impose anti-dumping duty. This is what was held by the Tribunal in Apcotex Industries. The same view has been taken by this Bench in Chemical and Petrochemicals Manufactures Association Union of India and 55 others5.
29. The inevitable conclusion, therefore, that follows from the aforesaid discussion is that it has to be presumed that the Central Government has taken a decision not to impose anti-dumping duty despite a recommendation having been made by the designated authority for imposition of anti-dumping duty. The matter has, therefore, to be remitted to the Central Government for taking a decision on the recommendation made by the designated authority.
Maintainability of appeal under section 9C of the Tariff Act
30. The submission advanced on behalf of the respondents is that an appeal under section 9C of the Tariff Act shall lie only against an order of determination or review thereof, in respect of the existence, degree and effect of any subsidy or dumping in relation to import of any article or import of any article into India in such increased quantities and under such condition so as to cause or threatening to cause serious injury to domestic industry requiring imposition of safeguard duty in relation to import of that article. Learned counsel underlined the significance of the aforesaid bold portion and submitted that the expression has been deliberately used by the Parliament in section 9C, unlike section 128 of the Customs Act 1962, wherein an appeal lies against any decision or order. The submission is that in view of the provisions of section 9A of the Tariff Act read with the provisions of the 1995 Anti-Dumping Rules, the power to investigate and determine the existence, degree and effect of any dumping in relation to import of any article vests with the designated authority and, therefore, by corollary, the final findings issued by the designated authority would constitute an “order of determination in respect of the existence, degree and effect of any dumping” in relation to import of any article. In support of this submission, learned counsel placed reliance upon the decision of the Delhi High Court in Jindal Poly Film Ltd. vs. Designated Authority6. Learned counsel also submitted that the final findings are in the nature of recommendation and anti-dumping duty can be imposed only by the Central Government by issuance of a notification. The notification only would, therefore, gives a cause of action for filing an appeal before the Tribunal. According to the learned counsel, the actual challenge by the domestic industry or the importers/exporters is to the determination contained in the final findings issued by the designated authority since the reasoning as to the existence, degree and effect of dumping is only found in the final findings of the designated authority and in an appeal before the Tribunal, the challenge is always made to the final findings of the designated authority. Learned counsel pointed out that the consequential notification is also challenged, which in the process gets set aside or modified, only to make the appellate remedy effective for the appellant. It is for this reason that the learned counsel submitted that it is only the final findings issued by the designated authority, acting on behalf the Central Government under section 9A (6) read with the 1995 Anti-Dumping Rules, that constitute an “order of determination in respect of existence, degree and effect of any alleged dumping”.
31. Learned counsel for the appellant, however, contended that non issuance of the notification by the Central Government pursuant to the recommendations made by the designated authority would, in view of the provisions of rule 18 of the 1995 Rules, would mean that the Central Government has taken a decision not to impose any antidumping duty. It has been held in Apcotex Industries that the appeal would be maintainable. The present appeal would, therefore, clearly be maintainable.
Whether reasons have to be recorded by the Central
Government
32. It has been held by this Tribunal in Apcotex Industries and Chemical and Petrochemicals that reasons have to be recorded by the Central Government when it proceeds to form an opinion not to impose any anti-dumping duty despite a positive recommendation made by the designated authority in the final findings for imposition of anti-dumping duty.
Conclusion
33. Thus, for all the reasons stated above, the matter is remitted to the Central Government for taking a decision on the recommendation made by the designated authority in the light of the decisions of the Tribunal in Apcotex Industries and Chemical and Petrochemicals. The appeal is disposed of, accordingly.
Notes:
1. the subject goods
2. the subject countries
3. Anti-Dumping Appeal No. 51491 of 2021 decided on 30.08.2022
4. the Tariff Act
5. Anti-Dumping Appeal No. 51668 of 2022 decided on 19.12.2022
6. (2018) 362 E.L.T. 994 (Delhi)
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