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2012 (10) TMI 832 - HC - CustomsDefinition of the term Domestic Industry - anti dumping duty on Soda Ash - held that:- between 1999 and 2010 in respect of the producers who are related to the exporters or importers of the dumped articles, or who are themselves importers, the term “domestic industry” was liberally construed by giving discretion to the Designated Authority treating such persons as forming part of the domestic industry. In the amendment which was brought in with effect from 27-2-2010, on a reading, it is clear that the first portion of the definition of the domestic industry, which relates to the domestic producers as a whole whose collective output constitutes the major portion of the total domestic production, remains intact. Insofar as it relates to the producers who are related to the exporters or importers of the dumped article or who are themselves importers of the dumped articles, the law-makers made it very clear that while construing them as domestic industry, the Designated Authority “may be construed as referring to the rest of the producers only”. The term “may be construed as referring to the rest of the producers only” on a bare and literal interpretation, in our view, should be construed only in respect of the producers who are related to exporters or importers, or producers who are themselves importers, and simply because the term “only” is construed, it cannot be taken to the first portion of the definition. The word “only” under Rule 2(b) of the Rules need not be concentrated much and in our view it has no significance as such. While it is true that the international agreements like WTO and GATT may not be the absolute and only source for interpreting the Indian Law, so long as there is no contradiction between the definition of the agreement in the international law and the terms of the Indian Law, there is absolutely no prohibition for this Court to take note of the terms of the international agreements for the purpose of better appreciation of the term. The term “domestic industry”, as it was amended on 27-2-2010, has not taken away the discretionary power of the Designated Authority and the Designated Authority is entitled to proceed further. As elicited above, under Rule 5(3)(a) proviso, there is a prohibition against the Designated Authority not to investigate when the domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry. But under the first portion of the term “domestic industry” defined under Rule 2(b) of the Rules, elicited above, it is very clear that the collective output of the entire manufacture put together totally must constitute the major proportion of the total domestic production. While so, on the admitted fact that M/s. DCW Limited is the only producer of Soda Ash in the country, even though it has produced only 4%, by a combined reading of Rule 2(b) and Rule 5(3) proviso, M/s. DCW Limited must be considered as a domestic industry. The writ petition against the preliminary finding published by the Designated Authority is maintainable
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