Anti Dumping cases –Should they go to WTO?
Under Article 13 of the WTO agreement,
Each Member whose national legislation contains provisions on anti dumping measures shall maintain judicial, arbitral or administrative tribunals or procedures for the purpose, inter alia, of the prompt review of administrative actions relating to final determinations and reviews of determinations within the meaning of Article 11. Such tribunals or procedures shall be independent of the authorities responsible for the determination or review in question.
In tune with this agreement, India had provided that the CESTAT shall be the Tribunal to decide appeals against anti-dumping orders or review. Section 9C of the Customs Tariff Act stipulates that appeals against orders and review of anti-dumping shall lie with the CESTAT. Section 9C(5) requires that the appeal shall be heard by a special bench consisting of the President and at least two members.
(5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member.
Now the problem is, the CESTAT does not have a President since Justice Usha retired nine months ago! And that means no Anti dumping case can be heard as no Special Bench with the President can be constituted. As per the WTO agreement and as incorporated in the Indian Customs Tariff Act, the Anti Dumping duty is valid only for five years. For the last one year no Anti-Dumping case could be decided as there was no special bench and as it appears now, there is no chance of a President being appointed in the near future. So by the time a special bench is constituted with the appointment of a President, the Anti Dumping duty itself would lapse. The only option for the affected party would be to go to the WTO. May be the Government can depute a couple of SDRs in CESTAT specializing in Anti Dumping cases to defend us in WTO.
If the Government cannot appoint a President for CESTAT, it should at least change the law requiring the bench to be headed by the President!