TMI Blog2013 (4) TMI 597X X X X Extracts X X X X X X X X Extracts X X X X ..... principally, of import of Melamine. It is carrying on business amongst other of manufacturing of heavy chemicals of every description, whether required for civil, commercial or military defence purposes. - definition of importer in Customs Act, 1962, can not be applied here. The definition in this Act is of general application of any import, which includes both for regular trader and exclusive consumer. Moreover Anti-Dumping Rules have not been framed under the Customs Act. This Rule has been framed under Section 9A of CTA, 1975 which is meant as correctly urged by Mr. Bajoria for imposition of rate of various duties under Act of 1962. In this Act there is no definition of the word import. But the Central Government being subordinate legislature has described importer differently and independently and for specific purpose and it would be absurd to borrow any expression from Act of 1962 by the Court, when by the Rule 2(g) of the said Rules provide no other definition of any unexplained word can be adopted other than in the Tariff Act, 1975, therefore the definition given in the Rule has to be accepted in the context of object of the Rule. - Designated authority directed to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent had initiated investigation into the existence, degree and effect of alleged dumping by import of Melamine in India from the said countries. The writ petitioner being the respondent No. 4 herein thereafter filed the above writ petition contending in substance that going by the statement made in the application filed by the appellant herein the said authority had no jurisdiction to issue notification mentioned above intending to initiate investigation. The said writ petition was opposed not only by the appellant but by the respondent above named also. The learned Trial Judge however held that the appellant herein going by the admitted fact that it is also importer of the said material from same countries, is ineligible to make application, for the purpose above in other words the said authority had no jurisdiction to initiate investigation based on the complaint made by the appellant. 3. At the threshold the notification was passed. 4. Mr. Bajoria, learned Senior Counsel appearing for the appellant submits that the learned Trial Judge has fallen in error to hold the appellant is an importer within the definition in Rule 2(b) of 1995 Rules on the fact mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r adopting protective measure for domestic industry facing unfair trade competition. It will be very clear from Article VI of GATT (General Agreement on Tariffs and Trade, 1994). 6. He therefore contends that learned Trial Judge has fallen in error not reading the expression of importers in the context and object of the Act and the intention has been made clear in the definition of said Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter referred to as the said Rules ). Rule 2 of the definition starts with the words unless the context otherwise requires . It is settled law that Supreme Court frequently and consistently explained the aforesaid meaning of the words unless the context otherwise requires . He has referred decisions of the Supreme Court in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1 and in case of Printers (Mysore) Ltd. and Another v. Assistant Commercial Tax Officer and Others reported in (1994) 2 SCC 434. He placing reliance on Supreme Court decision in case of Reliance Industries Ltd. v. Designated Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of indigenous production is so insignificant that without importation the demand cannot be met. He has referred to a decision of the Supreme Court in support of his argument reported in (2005) 3 SCC 337 = 2005 (181) E.L.T. 375 (S.C.). 9. After hearing the learned counsel and reading the judgment and order of the learned Trial Judge we find there is no dispute on fact. Singular point that requires decision of this Court is whether the interpretation given by the learned Trial Judge of the word importer as mentioned in the definition of domestic industries vide Rule 2(b) on the facts and circumstances and in the context of the said rule is correct or not. We set out the definition of domestic industry employed in Rule 2(b) at the relevant time, as from time to time the same has undergone change from date of introduction. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that is so. But where the context does not permit or where the context requires otherwise, the meaning assigned to it in the said definition need not be applied. If we keep the above consideration in mind, it would be evident that the expression goods occurring in the second half of Section 8(3)(b) cannot be taken to exclude newspapers from its purview. The context does not permit it. It could never have been included by Parliament. Before the said amendment, the position was - the State could not levy tax on intra-State sale of newspapers; the Parliament could but it did not and Entry 92-A of List I bars the Parliament from imposing tax on inter-State sale of newspapers... 11. Thereafter the Hon ble Supreme Court again in case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others reported in (1998) 8 SCC 1 in paragraph 28 of the report while relying on the decision in case of Vanguard Fire and General Insurance Co. Ltd. v. Fraser Ross reported in AIR 1960 SC 971 has stated the legal position of interpretation in the expression worded with unless there is anything repugnant in the subject or context as follows :- Now, the principle is that all statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilt up after independence under the guidance of our patriotic, modern-minded leaders at that time and it is the task of everyone today to see to it that there is further rapid industrialisation in our country, to make India a modern, powerful, highly industrialised nation. 14. Thus it is very clear that the definition of the importer as mentioned in Rule 2(b) has to be understood in the context of protecting indigenous industry producing same material. Here we notice on fact of course going by the statement made in the complaint of the appellant made to the appropriate authority that nearly 15% of its total production is imported by it and that too casually and to meet customer s demand during the time when the production was disrupted, and this quantity of import is very insignificant portion of the total import from the same exporting countries. According to us realistic and logical meaning should be the person who is carrying on business of import exclusively for trading purpose is the importer under the said Rule. We have examined the object clause of the Memorandum of Association of the appellant and nowhere we find that it carries on business principally, of import of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umed jurisdiction basing on statement made in the complaint made by the appellant or not. In the said case cited by Dr. Chakraborty the Supreme Court has clearly explained the meaning of the word dumping in the said Rules. In paragraph 4 it is explained so. We think that this would be very appropriate guidance for the appropriate authority while making enquiry as to whether there has been dumping in this particular facts and circumstances of this case or not. 16. In view of the above we think that the notification does not suffer from any infirmity, and investigation has been rightly initiated. Accordingly the judgment and order passed by the learned Trial Judge is not sustainable and the same is set aside. 17. Before we part with this matter we are of the view, in case of this nature the Writ Court should not have entertained as the action is at the threshold and further maintainability is depending upon fact made out in the complaint. Such point could be agitated before the appropriate authority as it requires some more material on fact not the legal provision alone. It is not a case of inherent lack of jurisdiction for which extraordinary jurisdiction of this Court has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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