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October 2018

Respite for Indian domestic industry: “Negative” final findings of Designated Authority appealable

by Neeraj Chhabra

In an anti-dumping investigation, the Designated Authority may or may not recommend imposition of anti-dumping duties and where such recommendation is “positive”, the Ministry of Finance makes a policy decision regarding the same and issues customs notification where duty is to be imposed. However, in case of “negative” findings by the Designated Authority, no further action is required from the Ministry of Finance. The law laid down by Customs, Excise, Service Tax Appellate Tribunal (“CESTAT”) in the case of M/s Panasonic Energy India Co. Ltd., v. Union of India (2017), left the domestic industry remediless in the case of a negative determination. In such cases, the domestic industry was left with no option but to approach the courts under writ jurisdiction.
 

Section 9C of the Customs Tariff Act, 1975 (“the Act”) provides that an appeal against the order of determination, regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie before the Appellate Tribunal constituted under Section 129 of the Customs Act, 1962 i.e. CESTAT.

The Supreme Court, in Saurashtra Chemicals Limited v. Union of India & Ors. (2000), held that an order of the Designated Authority recommending imposition of duties was “recommendatory” and an appeal lies against the “order of determination” which is to be made by Central Government through a customs notification issued by the Ministry of Finance.Owing to this judgment, CESTAT in Panasonic Energy (Supra) refused to entertain appeals in cases where the Designated Authority did not recommend any duties and no customs notification was issued by the Central Government.

 

The question as to whether the appellate remedy under Section 9C of the Act can be invoked against the “negative findings” of the Designated Authority was considered by  High Court of Delhi recently in the case of Jindal Poly Film Ltd. v. Designated Authority & Anr. [W.P. (C) No. 8202/2017]. The High Court in this case has held that in cases of “negative” final findings of the Designated Authority, parties shall have the right to approach the Appellate Tribunal i.e. CESTAT.

The key observations of the High Court are as under:

  1. The Designated Authority is not different from the Central Government but part and parcel of the Central Government. Designated Authority acts for and on behalf of the Central Government.                                                                                          
  2. A quasi-judicial determination is made by the Designated Authority, which gives and submits its final finding report to the Central Government. The said report is binding and becomes final for the Central Government in case of a negative determination deciding not to recommend  imposition of anti-dumping duty. Therefore, the order of the Designated Authority is final and no further examination is mandated and required by the Central Government in case of a negative determination.                             
  3. Section 9C of the Act does not state and provide that an appeal is maintainable against customs notification. However, an appeal would lie against the “order of determination” regarding existence, degree and effect of dumping.
    In case of negative opinion or termination of investigation, the order passed is the “order of determination”, as it is passed by the Central Government and no further “determination” is required and necessary. Therefore, in such cases, the determination made by Designated Authority becomes the determinative order which is appealable before CESTAT.

 

The decision of the  High Court is a welcome respite for the domestic industry for the following reasons:

  1. The judgment  provides the domestic industry with a suitable “appellate” remedy rather than a highly limited “writ” remedy.
  2. It ensures that the appeals arising from “positive” recommendations and “negative” recommendations are treated at par and follow the same appellate procedure.              
  3. It ensures that the domestic industry aggrieved by the “negative” findings of the Designated Authority would be able to approach the CESTAT’s Anti-Dumping Bench to get the matters adjudicated. The Anti-Dumping Bench has three members - the President, one technical member and one judicial member. This ensures that the litigants have access to a technical forum with specific expertise in trade remedy matters.

 

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