TMI Blog2012 (10) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... m “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 prohibiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty, has given a preliminary finding in respect of investigation regarding the import of Soda Ash originating in or exported from China PR, European Union, Kenya, Iran, Pakistan, Ukraine and USA. The said notification was issued based on the Customs Tariff Act, 1975 (for brevity, the Act ) and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for brevity, the Rules ). 2.3 The Designated Authority has considered the application of Alkali Manufacturers Association of India (for 5th respondent in W.As. 193 and 194 of 2012, Appellant in W.A. 189 of 2012, and 4th respondent in W.As. 195, 307 and 337 of 2012). The said association has made application on behalf of the domestic industry alleging dumping of Soda Ash from the countries as stated above. The Designated Authority thereafter issued a public notice to all the known exporters, apart form notifying the embassy of the subject countries in India; sent questionnaires to elicit relevant information from various known exporters, including GHCL Limited-appellant in W.A. No. 194 of 2012, who filed the said appeal on obtaining leave of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctional aspects separately. 2.7 It was pursuant to the same, the Designated Authority has conducted an enquiry and heard the submissions made by the interested parties and also the domestic industry. Number of interested parties have also contested before the Designated Authority the standing of the applicant to file such application. The Designated Authority while considering as to whether the applicant companies have constituted domestic industry within the meaning of the Rules, has also taken note of Rule 5(3) of the Rules which states that the Designated Authority shall not initiate investigation pursuant to an application unless it determines on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry; and further provides that there shall not be any investigation initiated by the Designated Authority if the domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry; and that while examining the Designated Authority has to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... changes which have taken place under the impugned notification, has taken note of the situation that some domestic producers may not support an anti-dumping application because they themselves are importing the product, or they are related to an importer or exporter of the product and such conduct would result in eliminating competition through unfair practice of dumping and, therefore, vesting of such discretion with the Designated Authority could exclude such related entities, who may seek to thwart an attempt by the remaining domestic producers to seek redressal of injury caused to them on account of dumping by filing an anti-dumping application and seeking suitable relief. 2.11 It was taking note of every facet of the issue, under the original impugned notification, the Designated Authority by discussing the various parameters relating to the domestic industry in respect of the production, capacity and capacity utilization of the domestic industry; sales of domestic industry; profitability; inventories; employment and wages, productivity; magnitude of dumping; growth; and ability to raise funds, has concluded provisionally that the dumped imports of the subject goods from th ..... 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Saurashtra Chemicals Limited (SCL), who are all producers of Soda Ash in India, seeking initiation of anti-dumping investigation on import of Soda Ash by the writ petitioner. 3.3 It was also the case of the writ petitioner that Nirma Limited has itself imported alleged dumped article from U.S.A. and is related to a supplier in U.S.A; that SCL is related to an importer of alleged dumped article, namely Nirma Limited; GHCL is related to exporter of alleged dumped article from Romania; Tata Chemicals has related producers in Kenya, U.S. and Europe; and DCW Limited accounting for 4.28% of total domestic production is neither related nor importer of the alleged dumped article. 3.4 The case of the writ petitioner was that while construing the term domestic industry , the proper meaning of Rule 2(b) of the Rules has not been considered by the Designated Authority and according to the writ petitioner, by virtue of the latest amendment the discretion of the Designated Authority has been taken away. It was the case of the writ petitioner that the Designated Authority has proceeded with a pre-determined mind; that no adequate opportunity has been given before passing the notification, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the finding of the preliminary investigation is not binding on the Government and is only preliminary in nature and, therefore, the writ petition is not maintainable. 4.3 Insofar as it relates to the term domestic industry as defined under Rule 2(b) of the Rules, the source for such definition is WTO Agreement on Anti-dumping, to which India was a party and it was in accordance with the term used in the WTO Agreement, the definition has been made. The 2010 amendment was brought in with the sole intention to align the Indian Law with the WTO provisions, as explained in the explanatory notes to the notification dated 27-2-2010. 5. The learned Judge, in the impugned judgment, has rejected the reasoning of the Designated Authority in treating M/s. GHCL, M/s. Nirma Limited and M/s. SCL as having minimum import, so as to bring them within the definition of domestic industry . It was also held by the learned Judge that the percentage of export by the associates of M/s. GHCL has no relevance in the matter of considering the scope of Rule 2(b) of the Rules and so also the import by M/s. Nirma Limited for its own captive consumption, or for that matter, its related exporter havin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a domestic industry cannot be accepted and the discretion of the Designated Authority is totally taken away, which is against the very idea of the said Rule. 10. Similarly, the writ petitioner has filed W.A. No. 307 of 2012 challenging the portion of the impugned order of the learned Judge whereby the learned Judge even though has found that M/s. DCW Limited, which forms part of Alkali Manufacturers Association of India, has the production capacity of 4%, has held that it is deemed to have constituted 100% by construing Rule 5(3) proviso along with the definition of domestic industry under Rule 2(b) of the Rules and therefore M/s. DCW Limited constitutes the domestic industry and the Designated Authority has jurisdiction to proceed further, contending inter alia that when once it is found that the production of M/s. DCW Limited is only 4%, there is no reason to come to a conclusion that it constitutes 100%; that while it was correctly found by the learned Judge on the construction of Rule 2(b) of the Rules regarding domestic industry, it is unwarranted to refer to Rule 5(3)(a) proviso along with the definition Rule for the purpose of conferring jurisdiction on the Designated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of anti-dumping duty and even for initiation of investigation by the Designated Authority, as contemplated under Rule 5(2) of the Rules, the application filed shall be supported by evidence regarding dumping, injury and casual link between the dumped imports and alleged injury. The Rules also contemplate a suo motu power on the part of the Designated Authority when it obtains sufficient evidence from any other source by way of information to initiate investigation. It is under Rule 12 of the Rules, the Designated Authority after conducting enquiry and on determining the injury, has to record the preliminary finding regarding the export price, normal value and margin of dumping and it shall also record a further finding regarding injury to the domestic industry with detailed information and it is thereafter under Rule 13 of the Rules, the Central Government imposes provisional duty. That is followed by a final finding to be submitted by the Designated Authority under Rule 17 of the Rules recommending the amount of duty which, if levied, would remove the injury where applicable to the domestic enquiry and the final levy has been made by the Central Government again under Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h WTO Anti-dumping Agreement by referring to a communication of the Commerce Secretary, Government of India dated 12-10-2011, wherein he has clearly stated that when originally the term domestic industry used the word shall thereby totally taking away the discretionary power of the Designated Authority, which has subsequently become may and therefore the subsequent amendment in addition to may if adds the word only that cannot be construed restrictively, especially when in the subsequent amendment brought in with effect from 1-12-2011, the term only itself has been taken away. In this regard, he would rely upon the judgments in Zile Singh v. State of Haryana, (2004) 8 SCC 1; Ashok Pal Singh v. Uttar Pradesh Judicial Services Association, (2010) 12 SCC 635; Ashok Lanka v. Rishi Dikshit, (2006) 9 SCC 90; CIT v. Shelly Products, (2003) 5 SCC 461. 12.9 To substantiate his contention that the Rules are to be interpreted in accordance with WTO Agreement, he would rely upon the judgments in Haridas Exports v. All India Float Glass Manufacturers Association, (2002) 6 SCC 600 = 2002 (145) E.L.T. 241 (S.C.); S S Enterprise v. Designated Authority, (2005) 3 SCC 337 = 2005 (18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm may was retained, only because the term only was added towards the end that cannot be said to qualify the term may and this being a delegated legislation the term must be construed by keeping in mind the very object of the Rules which is based on the WTO Agreement. 13.3 By relying upon the decision in Reliance Industries Limited v. Designated Authority, 2006 (202) E.L.T. 23, the learned Senior Counsel would submit that the Designated Authority must be informed with all particulars like dumping cost, injury, etc., so as to enable the Designated Authority to come to a proper conclusion. 13.4 He would also refer to the letter of the Commerce Ministry, Government of India, to submit that by going into the object, as it is seen in the notes, the term only cannot take away the discretionary power of the Designated Authority. He would rely upon the judgments in CIT v. Tata Iron and Steel Co. Ltd., (1998) 2 SCC 366; Union of India v. Tata Iron and Steel Co. Ltd., (1976) 2 SCC 123 = 1977 (1) E.L.T. (J61) (S.C.); and Saru Smelting (P) Ltd. v. CST, 1993 Supp (3) SCC 97 = 1993 (66) E.L.T. 31 (S.C.). 13.5 He would take this Court to the various publications for the better under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (2000) 6 SCC 626 = 2000 (120) E.L.T. 11 (S.C.). 15.2 It is his submission that while in the period between 1947 to 1994 heavy industries were with the Government, due to the economic development, multi-national companies have been allowed by the Government. The World Trade Organization, to which India happens to be a member, came into effect from 1994 and the concept of anti-dumping was introduced in the interest of all the member nations and, therefore, after notifying the same by the Government, for the purpose of construction of various terms of the Rules, the Government of India is entitled to apply the basic principles based on which WTO as well as the GATT were entered. He would rely upon the judgments in Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC 368 = 2006 (202) E.L.T. 23 (S.C.) and Bhanumati v. State of U.P., (2010) 12 SCC 1 in this regard. 16.1 Per contra, it is the contention of Mr. Arvind P. Datar, learned Senior Counsel appearing for the original writ petitioner that when once it is clear that the impugned order of the learned Single Judge is not perverse, simply because a different view is possible in respect of one of the issues, there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t petition is maintainable, he would rely upon the decision in 2011 (183) ECR 145 (SC) = 2011 (263) E.L.T. 481 (S.C.). 17.2 He would submit that inasmuch as the finding in the preliminary order by the Designated Authority is quash-judicial in nature, one cannot say that any error in the same cannot be questioned. He would rely upon the decision in Mohtesham Mohd. Ismail v. Enforcement Directorate, (2007) 8 SCC 254 = 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 433 (S.C.). 17.3 It is his submission that the Designated Authority, who is quasi judicial authority, cannot file appeal against the order of the learned Single Judge, since the Designated Authority is not a person aggrieved, as the lis is between the two parties and the quasi-judicial authority cannot be a party to the lis. 18. We have heard the learned counsel for the appellants as well as the respondents, gone through the impugned judgment of the learned Judge and given our anxious thought to the issues involved. 19. On an overall reading of the entire papers, including the impugned order of the learned Judge, the following three points are to be answered in this appeals : (i) the maintainability of the wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes place, has to be struck down as an anathema to the rule of law and the provisions of the Constitution. 34. We endorse the view of the High Court that notwithstanding the provisions relating to the arbitration clause contained in the agreement, the High Court was fully within its competence to entertain and dispose of the writ petition filed on behalf of the respondent Company. We, therefore, see no reason to interfere with the views expressed by the High Court on the maintainability of the writ petition and also on its merits. 22. Moreover, against the preliminary finding it cannot be said that there is an effective remedy available as per Section 9C of the Act. The power of imposing anti-dumping duty on dumped articles emanates from Section 9A of the Act which contemplates that when any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. It is in accordance with the powers conferred under Section 9A(6) of the Act, which confers a rule making power to the Central Government in order to ascertain and determine the manner in which the article liable for any anti-dumping duty is to be identified or the manner in which the export price and the normal value of, and the margin of dumping in relation to such article is to be determined for assessment and collection of such anti-dumping duty, the Central Government has framed the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 by notification issued on 1-1-1995. 25. Apart from the definition of the word domestic industry , which has been defined under Rule 2(b) of the Rules, which will be subsequently dealt by us, at this stage regarding the decision of the maintainability of the writ petition and the availability of the alternative remedy of appeal, suffice it to refer to some of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which have led to arguments being accepted or rejected. It will also contain :- (i) the names of the suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the article which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. 2. The designated authority shall issue a public notice recording its preliminary findings. 28. It is thereafter on the basis of the preliminary finding, which was the subject matter of challenge of W.P. No. 23515 of 2011, the Central Government imposes levy of provisional duty and thereafter, on further investigation, the Designat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evidence on whose basis the investigation was initiated, the Central Government shall, within forty-five days of the publication of final findings by the designated authority under rule 17, withdraw the provisional duty imposed, if any. 29. On a reading of Section 9C of the Act, elicited above, it is clear that an appeal lies only after the determination, which comes only after the final finding given by the Designated Authority under Rule 17 of the Rules and levy of duty by the Central Government under Rule 18 of the Rules, and therefore, it is clear that from the preliminary finding, which is impugned in the writ petition, it cannot be said that there is an alternative remedy of appeal available. 30. The said view of ours is fortified by a Division Bench decision of the Gujarat High Court in Meghani Organics Ltd. v. Union of India, 2011 (267) E.L.T. 440 (Guj.), wherein the Division Bench has also taken a stand that a preliminary finding given by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... determination. Moreover, Rule 17 of the Rules deals with final finding. It says that 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 causal link, where applicable between the dumped imports and injury, (iv) whether a retrospective levy is called for and if so, the reasons therefore and date of commencement of such retrospective levy. This exercise is yet to be undertaken by the Designated Authority. Hence, no appeal lies against the levy of provisional anti-dumping duty and this Court is well within its power to entertain this petition since there being no alternative remedy available to the petitioners despite the fact that they are being saddled with the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovided in the application and satisfies itself that there is sufficient evidence regarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a casual link between such dumped imports and the alleged injury, to justify the initiation of an investigation. Explanation. - For the purpose of this rule the application shall be deemed to have been made by or on behalf of the domestic industry, if it is supported by those domestic producers whose collective output constitute more than fifty per cent of the total production of the like article produced by that portion of the domestic industry expressing either support for or opposition, as the case may be, to the application. (4) Notwithstanding anything contained in sub-rule (1) the designated authority may initiate an investigation suo motu if it is satisfied from the information received from the Commissioner of Customs appointed under the Customs Act, 1962 (52 of 1962) or from any other source that sufficient evidence exists as to the existence of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the government of the exporting country before pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-A to 9-C in the Customs Tariff Act vide the Customs Tariff (Amendment) Act, 1995, 6 of 1995 which replaced the provisions of Sections 9, 9-A and 9-B earlier inserted in the Customs Tariff Act under Act 52 of 1982. The Statement of Objects and Reasons to the Bill clearly states that the Bill seeks to amend the Customs Tariff Act to bring the provisions of the Customs Tariff Act in conformity with the provisions of Article VI of GATT, 1994, and the agreements on subsidies and countervailing measures. Even the preamble of the Customs Tariff (Amendment) Act, 1995, 6 of 1995 also provides that the provisions of Sections 9, 9-A and 9-B of the Customs Tariff Act, 1975, have been replaced by the new Sections 9, 9-A and 9-B to reflect the changes in the domestic law, consequent upon coming into effect of the Agreement on Anti-dumping (i.e. an Agreement on Implementation of Article VI of GATT, 1994) under the Uruguay Round on 1-1-1995. 34. The purpose of Section 9A of the Act and the Rules has been held to be progressive in nature made pursuant to the General Agreement on Tariffs and Trade, 1994, as held by the Supreme Court in Reliance Industries Limited v. Designated Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hly industrialized state. The truth is that today India is poor. As Rajni Palme Dutt wrote in his book India , India is a rich country with poor people . We are rich in raw materials, rich in industrial skills, we have outstanding scientists, engineers, technicians and managers. Despite all this we are a poor nation. Hence, if we want to command respect in the comity of nations, we must rapidly industrialize and make India a powerful, modern, highly industrialized nation. It is industrialization alone which can generate the wealth which we require for the welfare of our people and for progress. Hence our national aim must be rapid industrialization as that is the solution to our country s problems. Industrialization will also provide large scale employment to our people, and will help the growth of science and technology, which is absolutely essential to our progress. 35. By going through the object of the Rules framed in accordance with Section 9A of the Act with the intention of preventing anti-dumping, which is in the economic welfare of the country, we can safely construe the Rules as an economic legislation rather than a fiscal law. The law is well settled that the fiscal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thin the meaning of these penal provisions is wide enough to take in its fold any one or series of acts committed, beyond the stage of preparation in moving the contraband goods deliberately to the place of embarkation, such act or acts being reasonably proximate to the completion of the unlawful export. The inference arising out of the facts and circumstances established by the prosecution, unerringly pointed to the conclusion, that the accused had committed the offence of attempting to export silver out of India by sea, in contravention of law. 36. Under the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, when a question arose as to whether it is correct for the Designated Authority to compute the volume of exports on the basis of quantity, rather than on the basis of price, interpreting the term volume in Rule 14 of the Rules by borrowing the terms as recognized in GATT, the Supreme Court has clarified in S S Enterprise v. Designated Authority, (2005) 3 SCC 337 = 2005 (181) E.L.T. 375 (S.C.) that to constitute dumping, there must be an import at price which is lower than the no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and could not intend any violation of generally recognised rules of international law, when enacting Article 24 of the German Code of Civil Procedure . Lauterpacht refers to another German case where the argument that there ought not to be a direct recourse to the law of nations, except insofar as there has been formed a German customary law was rejected with the statement, The contention of the Creditor that international law is applicable only insofar as it has been adopted by German customary law, lacks foundation in law. Such a legal maxim would, moreover, if generally applied, lead to the untenable result that in the intercourse of nations with one another, there would obtain not a uniform system international law but a series of more or less diverse municipal laws . Lauterpacht summarises the position this way : While it is clear that international law may and does act directly within the State, it is equally clear that as a rule that direct operation of international law is within the State subject to the overriding authority of municipal law. Courts must apply statutes even if they conflict with international law. The supremacy of international law lasts, pro fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined as follows : 4.1 For the purposes of this Agreement, the term domestic industry shall be interpreted as referring to the domestic producers as a whole of the like products or to those of them whose collective output of the products constitutes a major proportion of the total domestic production of those products, except that : (i) when producers are related to the exporters or importers or are themselves importers of the allegedly dumped product, the term domestic industry may be interpreted as referring to the rest of the producers; (ii) in exceptional circumstances the territory of a Member may, for the production in question, be divided into two or more competitive markets and the producers within each market may be regarded as a separate industry if (a) the producers within such market sell all or almost all of their production of the product in question in that market, and (b) the demand in that market is not to any substantial degree supplied by producers of the product in question located elsewhere in the territory. In such circumstances, injury may be found to exist even where a major portion of the total domestic industry is not injured, provided there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such cases it is considered that the remaining Community producers should not be prevented from making a complaint just because they cannot raise the necessary proportion of support. Thus, the rule is modified so that the Community Authorities may treat the Community industry as meaning those producers who are not related to exporters or importers and are not importers themselves of the offending product. The Community Authorities retain a discretion in this matter, which they are entitled to exercise on a case by case basis. Although the text is not clear on the matter, it would seem that the 50 per cent and the 25 per cent rules still apply to the producers left after the exclusion of those who are related to exporters etc. It would make a nonsense to say otherwise, as the following example shows. If 51 per cent of Community production was related to the exporters they would voice their opposition and it would be impossible for the unrelated producers ever to bring an anti-dumping or anti-subsidy complaint. Unlike Regulation (EEC) No. 2423/88, Regulation (EC) No. 384/96 and Regulation (EC) No. 3284/94 provide a definition of related . Producers are to be considered as related o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct to the complainant s customers at dumped prices . The Community Authorities consider it to be a legitimate act of commercial self protection for Community producers to make purchases to stay on the market with as full a range of models as possible or even to protect market niches which would have disappeared without sles of the models in question. The Advocate General considered this issue in TEC v. Council, and Silver Seiko v. Council and concluded that filling gaps in product ranges with imports would not disqualify a firm from being part of the Community industry, provided it was only a few models and there were relatively low volumes. The Court of Justice in Gestetner Holdings v. Council and Commission, also took account of the fact that in the case of one producer, it had already tried to market the full range but failed due to the effects of dumping; in the case of another the Court pointed out that the volumes were minimal and only temporary. In Magnetic disks from Hong Kong, the Community Authorities were prepared to accept that imports could be made as long as they are limited to that necessary to maintain sales by the complainant producers concerned while their o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods or those domestic producers whose collective production of the like goods constitutes a major proportion of the total domestic production of the like goods except that, where a domestic producer is related to an exporter or importer of dumped or subsidized goods, or is an importer of such goods, domestic industry may be interpreted as meaning the rest of those domestic producers. There are loads of materials available in international law to substantiate the said view. 41. Insofar as it relates to the definition of domestic industry in India, the term domestic industry has underwent metamorphosis. As elicited by learned Judge in the impugned order, the term domestic industry was defined under Rule 2(b) of the Rules prior to the amendment dated 15-7-1999 as follows : Rule 2(b) domestic industry means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of that article except when such producers are related to the exporters or importers of the alleged dumped article or are themselves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters of the alleged dumped article or are themselves importers thereof in such case the term domestic industry may be construed as referring to the rest of the producers only. 44. The dispute is relating to the said amendment. Before going into the said aspect, one another factor which is admitted is that by virtue of the subsequent notification issued by the Government of India on 1-12-2011, the domestic industry under Rule 2(b) of the Rules again came to be amended, by which the last word only came to be removed and, therefore, it is clear that after 1-12-2011 the discretionary power vested with the Designated Authority, which was in existence between 1999 to 2010, came to be restored. 45. The question to be decided is as to whether by the said amendment brought out on 27-2-2010, simply because the term only was incorporated in the end of the definition of the word domestic industry it has taken away the discretionary power of the Designated Authority in respect of the producers who are related to the exporters or importers or who are importers themselves, relating to whom the term domestic industry was construed. 46. The learned Judge, while comparing all the th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only is construed, it cannot be taken to the first portion of the definition as submitted by Mr. Arvind P. Datar in order to substantiate his contention that the discretionary power of the Designated Authority to take cognizance of the application under Rule 5 of the Rules has been taken away unless and until there is the collective output which constitutes the major proportion. If that submission is accepted, it will not only be against the tenets of the WTO Agreement, but also against the basic purpose of the Rule which is intended to prevent anti-dumping, which is a restrictive trade practice affecting the internal trade market, on the technical ground that required proportion of members has not applied under Rule 5 of the Rules, which, in our view, cannot be construed to be a harmonious interpretation. 50. Moreover, as correctly submitted by the Senior Counsel and counsel appearing for various domestic producers, if the term only has been included anywhere else, there would have been scope for such restrictive interpretation. Furthermore, the Rule has been consistent in giving discretion to the Designated Authority for nearly 11 years from 1999 to 2010 and the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfined to what is necessary for deciding the particular case. This principle is too well settled and reference to few decisions of this Court would suffice. [See : Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests, AIR 1990 SC 1747, Union of India and Anr. v. Deoki Nandan Aggarwal, AIR 1992 SC 96, Institute of Chartered Accountants of India v. Price Waterhouse and Anr., (1997) 6 SCC 312 and Harbhajan Singh v. Press Council of India and Ors., (2002) 3 SCC 722. 52. Moreover, it is well settled law that while interpreting a statute the basic principle of literal rule of interpretation has to be followed, as it was observed by the Supreme Court in B. Premanand v. Mohan Koikal, (2011) 4 SCC 266. The relevant portion of the said decision is as follows : 9. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... District Mining Officer v. Tata Iron and Steel Co., (2001) 7 SCC 358 and the purpose of interpretation by the Court was held to be only to expound the law and not to legislate. 55. The golden rule of grammatical construction was laid down by the Supreme Court in one of its earliest judgments in Mahadeolal Kanodia v. The Administrator-General of West Bengal, AIR 1960 SC 936 as follows : 8. The principles that have to be applied for interpretation of statutory provisions of this nature are well-established. The first of these is that statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective; they are retrospective only if by express words or by necessary implication the Legislature has made them retrospective; and the retrospective operation will be limited only to the extent to which it has been so made by express words, or by necessary implication. The second rule is that the intention of the Legislature has always to be gathered from the words used by it, giving to the words their plain, normal, grammatical meaning. The third rule is that if in any legislation, the general object of which is to benefit a particular class of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to avoid competition in the internal market by the foreign importers who dump their goods for a lesser price, which will certainly paralyze the economy of the country in the course of time. In fact, the basis for international agreement is to have economic sovereignty of the member countries. While so, the restrictive interpretation given by the learned Judge taking away the discretionary power of the Designated Authority cannot be said to be in accordance with Section 9A of the Act as well as the various provisions of the Rules. 57. 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. 58. We, therefore, hold that 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 fu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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