Nirma Limited v. Saint Gobain Glass India Limited

For Appellant in WA.193of 2012:Mr.Krishnan Venugopal, Senior Counsel for M/s.S.VenkatesanFor Appellant in WA.194of 2012:Mr.Satish ParasaranFor 1st Respondent inWAs.193, 189, 195 of2012:Mr.Arvind P.Datar, Senior Counselfor Mr.Karthik SundaramFor 1st Respondent inWA.194 2012, Appellant inWAs.307 and 337 of 2012 :Mr.Vijayanarayanan,Senior Counselfor Mr.Karthik SundaramFor Respondents 2 and 3in WAs.193, 194 and 189of 2012, Appellant inWA.195 of 2012, 2ndrespondent in WA.195 of2012, Respondents 1 and 2in WAs.307 and 337 of2012:Mr.M.Ravindran,Additional SolicitorGeneralfor Mrs.R.Maheswari,SCGSCFor 4th respondent inWAs.193, 194, 189 of2012, 3rd respondent inWAs.195 of 2012, 307 and337 of 2012:Mr.K.MohanamuraliFor 5th respondent inWAs.193 and 194 of 2012,Appellant in WA.189 of2012, 4th respondent inWAs.195 of 2012, 307 and337 of 2012:Mr.P.S.Raman,Senior Counselfor M/s.Shivakumar &SureshJ U D G M E N TP.JYOTHIMANI,J.While W.A.Nos.193, 194, 189, 195 and 307 of 2012 arise from theorder of the learned Judge dated 23.12.2011 in W.P.No.23515 of 2011filed by the first respondent in W.A.Nos.193, 194, 195 of 2012 and189 of 2012, who is the appellant in W.A.No.307 of 2012, namely SaintGobain Glass India Limited, Sriperambathur, W.A.No.337 of 2012 arises https://hcservices.ecourts.gov.in/hcservices/ from the order of the learned Judge dated 1.12.2011 in W.P.No.4602of 2011 filed by the Saint Gobain Glass India Limited,Sriperambathur.2.1. The facts leading to the filing of these appeals are asfollows. The said writ petitioner has challenged a notificationdated 2.9.2011 issued by the Directorate General of Anti-Dumping andAllied Duties, New Delhi, who has been arrayed as third respondent inW.A.Nos.193, 194 and 189 of 2012, second respondent in W.A.Nos.307and 337 of 2012 and has filed W.A.No.195 of 2012. 2.2. Under the notification which was originally challenged, theappellant in W.A.No.195 of 2012, namely the Directorate General ofAnti-Dumping and Allied Duties, New Delhi – the Designated Authority,has given a preliminary finding in respect of investigation regardingthe import of Soda Ash originating in or exported from China PR,European Union, Kenya, Iran, Pakistan, Ukraine and USA. The saidnotification was issued based on the Customs Tariff Act, 1975 (forbrevity, "the Act") and the Customs Tariff (Identification,Assessment and Collection of Anti-Dumping Duty on Dumped Articles andfor Determination of Injury) Rules, 1995 (for brevity, "the Rules"). 2.3. The Designated Authority has considered the application ofAlkali Manufacturers Association of India (for 5th respondent inW.As.193 and 194 of 2012, Appellant in W.A.189 of 2012, and 4threspondent in W.As.195, 307 and 337 of 2012). The said associationhas made application on behalf of the domestic industry allegingdumping of Soda Ash from the countries as stated above. TheDesignated Authority thereafter issued a public notice to all theknown exporters, apart form notifying the embassy of the subjectcountries in India; sent questionnaires to elicit relevantinformation from various known exporters, including GHCL Limited –appellant in W.A.No.194 of 2012, who filed the said appeal onobtaining leave of this Court, apart from various known importers andusers of the subject goods in India, in accordance with Rule 6(4) ofthe Rules, which includes Saint Gobain Glass India Limited, theappellant in W.A.No.307 of 2012.2.4. Under the original impugned order challenged inW.P.No.23515 of of 2011, which is a preliminary finding given by theDesignated Authority, the issue considered was in respect of thematerial, namely Disodium Carbonate, commonly known as Soda Ash,produced through synthetic route and natural route and in two forms –Light Soda Ash and Dense Soda Ash. Earlier the issue was examined bythe Designated Authority and the investigation was concluded againstChina. 2.5. The Designated Authority examined the fact that Soda Ash isan essential ingredient in the manufacture of detergents, soaps,cleaning compounds, sodium based chemicals, float glass, container https://hcservices.ecourts.gov.in/hcservices/ and specialty glasses, silicates and other industrial chemicals; andis widely used in textiles, paper, metallurgical industries anddesalination plants and the said Soda Ash is classified under Chapter28 of the Act under subheading No.2836.20. According to the domesticindustry, light and dense Soda Ash are one product. That apart, itwas claimed that natural and synthetic Soda Ash is also one product.However, there was a contra argument by some other parties.2.6. While referring to the term "like article" under Rule 2(d)of the Rules, the claim of the applicant - Alkali ManufacturersAssociation of India was that there was no difference in the subjectgoods produced by the domestic industry and that imported from thesubject countries. Certain interested parties have questioned thecompetency and standing of the applicant, who has made therepresentation to the Designated Authority. Therefore, ajurisdictional issue was also raised regarding the eligibility of theapplicant companies to be treated as "domestic industry", withreference to an order passed by the Delhi High Court, wherein theDelhi High Court has held that the Authority concerned would alsodecide about the jurisdictional issue within a stipulated time. TheDesignated Authority has also relied upon another interim orderpassed by this Court on 29.4.2011, wherein this Court while modifyingits earlier order dated 25.2.2011, has directed the DesignatedAuthority to proceed with the investigation and pass orders on thejurisdictional aspects separately. 2.7. It was pursuant to the same, the Designated Authority hasconducted an enquiry and heard the submissions made by the interestedparties and also the domestic industry. Number of interested partieshave also contested before the Designated Authority the standing ofthe applicant to file such application. The Designated Authoritywhile considering as to whether the applicant companies haveconstituted "domestic industry" within the meaning of the Rules, hasalso taken note of Rule 5(3) of the Rules which states that theDesignated Authority shall not initiate investigation pursuant to anapplication unless it determines on the basis of an examination ofthe degree of support for, or opposition to the application expressedby domestic producers of the like product, that the application hasbeen made by or on behalf of the domestic industry; and furtherprovides that there shall not be any investigation initiated by theDesignated Authority if the domestic producers expressly supportingthe application account for less than 25% of the total production ofthe like article by the domestic industry; and that while examiningthe Designated Authority has to be satisfied that there is evidenceregarding (i) dumping, (ii) injury, where applicable, (iii) whereapplicable, a casual link between such dumped imports and allegedinjury, to justify the initiation of an investigation.2.8. The Designated Authority has also taken note under theimpugned preliminary finding that investigation can be initiated only https://hcservices.ecourts.gov.in/hcservices/ when it is established that the application has been filed by or onbehalf of domestic industry. It has also taken note of the fact thatno investigation can be initiated if the domestic producers expresslysupporting the application account for less than 25% of the totalproduction of the like article by the domestic industry. It alsotook note of the Rule that the application shall be deemed to havebeen made by or on behalf of the domestic industry, if it issupported by those domestic producers whose collective outputconstitute more than 50% of the total production of the like articleproduced by that portion of the domestic industry expressing eithersupport for or opposition, as the case may be, to the application.The Designated Authority noted that 25% and 50% conditions arerequired to be applied on production of the domestic industry as awhole and there has been a clear distinction between "domesticproducer" and "domestic industry".2.9. It was in that regard the Designated Authority has takennote of the term "domestic industry" defined under Rule 2(b) of theRules, which stood prior to 15.7.1999, wherein while definingdomestic industry it meant as domestic producers as a whole engagedin the manufacture of the like article and any activity connectedtherewith and the domestic industry shall deem to include suchproducers who are related to the exporters or importers of thealleged dumped articles, without discretion to the DesignatedAuthority. Thereafter, there was an amendment by giving discretionto the Designated Authority regarding the inclusion of the producerswho are related to the exporters or importers of the alleged dumpedarticles. The Designated Authority under the impugned notificationhas also taken note of the latest amendment brought to the term"domestic industry" in the year 2009, wherein while defining"domestic industry" when discretion has been retained in respect ofthe rest of the producers, the word "only" was used.2.10. The Designated Authority, while construing the changeswhich have taken place under the impugned notification, has takennote of the situation that some domestic producers may not support ananti-dumping application because they themselves are importing theproduct, or they are related to an importer or exporter of theproduct and such conduct would result in eliminating competitionthrough unfair practice of dumping and, therefore, vesting of suchdiscretion with the Designated Authority could exclude such relatedentities, who may seek to thwart an attempt by the remaining domesticproducers to seek redressal of injury caused to them on account ofdumping by filing an anti-dumping application and seeking suitablerelief.2.11. It was taking note of every facet of the issue, under theoriginal impugned notification, the Designated Authority bydiscussing the various parameters relating to the domestic industryin respect of the production, capacity and capacity utilization of https://hcservices.ecourts.gov.in/hcservices/ the domestic industry; sales of domestic industry; profitability;inventories; employment and wages, productivity; magnitude ofdumping; growth; and ability to raise funds, has concludedprovisionally that the dumped imports of the subject goods from thesubject countries have increased in absolute terms as also inrelation to production and consumption of the subject goods in India.It was also found that the imports of the subject goods from subjectcountries are significantly undercutting the prices of domesticindustry and such imports are causing significant price suppression.It was also found that the performance of the domestic industry hasdeteriorated in terms of capacity utilization, profit, cash flow,return on investment and inventories, which is significant andmaterial and, therefore, concluded that the domestic industry hassuffered material injury. 2.12. After calculating the magnitude of injury and injurymargin, it was concluded that the subject goods have entered theIndian market from the subject countries below associated normalvalues, resulting in dumping of the subject goods; that dumpingmargins of the subject goods imported from the each of the subjectcountries are above de-minimis; that domestic industry has sufferedmaterial injury in respect of the subject goods; and that thematerial injury to the domestic industry has been caused due todumped imports of the subject goods from the subject countries.Therefore, the Designated Authority under the impugned order was ofthe view that imposition of provisional anti-dumping duty is requiredto offset dumping and injury, pending completion of theinvestigation. Thus, under the original impugned order, the furtherinvestigation was directed based on the preliminary findings.3.1. It was the said impugned order which was challenged by theappellant in W.A.No.307 of 2012 – M/s.Saint Gobain Glass IndiaLimited, who is the manufacturer of architectural and automotiveglass, which requires Soda Ash as one of the inputs, being importedby them. The said notification was challenged on the assumption thatanti-dumping duties are likely to be recommended by the DesignatedAuthority and the clearance of goods will be possible only aftercomplying with such direction regarding the payment of anti-dumpingduties on Soda Ash.3.2. The case of the writ petitioner was that AlkaliManufacturers Association of India (For 5th respondent in W.As.193 and194 of 2012, Appellant in W.A.189 of 2012, and 4th respondent inW.As.195, 307 and 337 of 2012) has filed an application for and onbehalf of M/s.GHCL Limited, M/s.DCW, M/s.Nirma and M/s.SaurashtraChemicals Limited (SCL), who are all producers of Soda Ash in India,seeking initiation of anti-dumping investigation on import of SodaAsh by the writ petitioner. https://hcservices.ecourts.gov.in/hcservices/

3.3. It was also the case of the writ petitioner that NirmaLimited has itself imported alleged dumped article from U.S.A. and isrelated to a supplier in U.S.A; that SCL is related to an importer ofalleged dumped article, namely Nirma Limited; GHCL is related toexporter of alleged dumped article from Romania; Tata Chemicals hasrelated producers in Kenya, U.S. and Europe; and DCW Limitedaccounting for 4.28% of total domestic production is neither relatednor importer of the alleged dumped article.3.4. The case of the writ petitioner was that while construingthe term "domestic industry", the proper meaning of Rule 2(b) of theRules has not been considered by the Designated Authority andaccording to the writ petitioner, by virtue of the latest amendmentthe discretion of the Designated Authority has been taken away. Itwas the case of the writ petitioner that the Designated Authority hasproceeded with a pre-determined mind; that no adequate opportunityhas been given before passing the notification, which is against theproper data; that Alkali Manufacturers Association of India could nothave been treated as a domestic industry in view of the amendmentbrought in to Rule 2(b) of the Rules dated 27.2.2010, by whichdiscretion has been taken away; that the Designated Authority haserred in treating Nirma Limited, SCL and GHCL as eligible domesticindustry; that in the application filed by Alkali ManufacturersAssociation of India, three (SCL, Nirma Limited and GHCL) out of thefour producers (SCL, Nirma Limited, DCW and GHCL) are related to theexporters, importers or are self-importers and, therefore, SCL, NirmaLimited and GHCL could not have been construed as domestic industryin terms of the amendment to Rule 2(b) of the Rules and only rest ofthe producers, namely DCW, could form part of domestic industryprovided it accounted for a major proportion of the total domesticproduction. Therefore, according to the writ petitioner, theDesignated Authority has acted unreasonably and arbitrarily.4.1. The said writ petition was contested by AlkaliManufacturers Association of India to the effect that the writpetition is premature, since the impugned notification is only apreliminary recommendation and there is no determination made so farby the Government of India; that the Designated Authority beforecoming to the preliminary conclusion has given sufficient opportunityto all the interested parties and in fact written submissions havebeen made; that such recommendation has to be considered by theCentral Government and the affected parties can always raise theirobjections before the Government, which alone can impose the duty;and that under Section 9C of the Act, an appeal lies to the Customs,Excise and Service Tax Appellate Tribunal (CESTAT) against the finallevy of duty.4.2. It was the case of Alkali Manufacturers Association ofIndia that when the preliminary investigation has shown that materialinjury to the domestic industry has been caused due to dumped https://hcservices.ecourts.gov.in/hcservices/ imports of the subject goods from the subject countries, any delay inimposition of duties will defeat the very purpose of preliminaryinvestigation; that even after the interim duties are imposedeventually if the Designated Authority comes to a conclusion that theduties are not liable to be imposed, the writ petitioner is entitledto refund as per the express provisions of the Act; and that thefinding of the preliminary investigation is not binding on theGovernment and is only preliminary in nature and, therefore, the writpetition is not maintainable.4.3. Insofar as it relates to the term "domestic industry" asdefined under Rule 2(b) of the Rules, the source for such definitionis WTO Agreement on Anti-Dumping, to which India was a party and itwas in accordance with the term used in the WTO Agreement, thedefinition has been made. The 2010 amendment was brought in with thesole intention to align the Indian Law with the WTO provisions, asexplained in the explanatory notes to the notification dated27.2.2010.5. The learned Judge, in the impugned judgment, has rejected thereasoning of the Designated Authority in treating M/s.GHCL, M/s.NirmaLimited and M/s.SCL as having minimum import, so as to bring themwithin the definition of "domestic industry". It was also held bythe learned Judge that the percentage of export by the associates ofM/s.GHCL has no relevance in the matter of considering the scope ofRule 2(b) of the Rules and so also the import by M/s.Nirma Limitedfor its own captive consumption, or for that matter, its relatedexporter having a minimum export. On the construction of Rule 5(3)proviso read with Rule 2(b) of the Rules, it was held by the learnedJudge that M/s.DCW Limited is the only "domestic producer", thusqualifying the proviso to invest the Designated Authority with allthe required jurisdiction to proceed further in the matter. Thus, ineffect, the learned Judge while accepting the contention of thepetitioner on the interpretation of Rule 2(b) of the Rules, held thatthere is no discretion with the Designated Authority to bring in anexcluded category within the meaning of "domestic industry", butagreed with the notification based on the definition that M/s.DCWLimited is a domestic industry and it fully satisfies the requirementof Rule 5(3)(a) proviso on its production of 4% constituting it as100%, and consequently rejected the writ petition in that regard.6. Ergo, the appellant in W.A.No.193 of 2012 – M/s.NirmaLimited, on leave from this Court has filed the appeal on the groundthat it is virtually prevented from participating in theinvestigation due to the finding given by the learned Judge on theconstruction of the word "domestic industry" under Rule 2(b) of theRules by taking away the discretion of the Designated Authority,resulting in the impediment caused to the said appellant in notbringing forth its grievance. https://hcservices.ecourts.gov.in/hcservices/

7. Likewise, M/s.GHCL, which was also found to have minimumimport and therefore cannot be brought within the definition of theword "domestic industry" as per the impugned order of the learnedJudge, has filed W.A.No.194 of 2012 on leave from this Court.8. M/s.Alkali Manufacturers Association of India, which hasgiven representation on behalf of all the four companies, namelyM/s.GHCL, M/s.Nirma Limited, M/s.SCL and M/s.DCW Limited, has alsofiled W.A.No.189 of 2012 in respect of the finding given by thelearned Judge under the impugned order regarding the term "domesticindustry" by taking away the discretion of the Designated Authority.9. The Designated Authority has also filed W.A.No.195 of 2012 onthe ground that the word "domestic industry" under Rule 2(b) of theRules has to be read in accordance with the WTO Agreement as well asGATT, being its main source, and therefore, the finding of thelearned Judge that M/s.GHCL, M/s.Nirma Limited and M/s.SCL haveminimum imports and hence are not eligible to be treated as adomestic industry cannot be accepted and the discretion of theDesignated Authority is totally taken away, which is against the veryidea of the said Rule.10. Similarly, the writ petitioner has filed W.A.No.307 of 2012challenging the portion of the impugned order of the learned Judgewhereby the learned Judge even though has found that M/s.DCW Limited,which forms part of Alkali Manufacturers Association of India, hasthe production capacity of 4%, has held that it is deemed to haveconstituted 100% by construing Rule 5(3) proviso along with thedefinition of "domestic industry" under Rule 2(b) of the Rules andtherefore M/s.DCW Limited constitutes the domestic industry and theDesignated Authority has jurisdiction to proceed further, contendinginter alia that when once it is found that the production of M/s.DCWLimited is only 4%, there is no reason to come to a conclusion thatit constitutes 100%; that while it was correctly found by the learnedJudge on the construction of Rule 2(b) of the Rules regardingdomestic industry, it is unwarranted to refer to Rule 5(3)(a) provisoalong with the definition Rule for the purpose of conferringjurisdiction on the Designated Authority, apart from many othergrounds.11. Likewise, the said writ petitioner, who has earlier filedW.P.No.4602 of 2011 against a notification dated 20.8.2010 by theDesignated Authority, which writ petition came to be closed by thelearned Judge under the impugned order dated 1.12.2011 on the groundthat a subsequent preliminary finding has been given by theDesignated Authority on 2.9.2011, which is the subject matter ofW.P.No.23515 of 2011, has also filed W.A.No.337 of 2012.12.1. Assailing the order of the learned Judge insofar as itrelates to the construction of the word "domestic industry" by https://hcservices.ecourts.gov.in/hcservices/ holding that the Designated Authority has no discretionary power,Mr.Krishnan Venugopal, learned Senior Counsel appearing for theappellant in W.A.No.193 of 2012 - M/s.Nirma Limited, Gujarat, hassubmitted that the regulation itself is in terms of the WTO Agreementand, therefore, the construction shall be in accordance with theunderstandings in the WTO Agreement, which is the actual source ofthe anti-dumping regulation.12.2. By referring to the Act, particularly Section 9A of theAct which enables the Central Government by notification to imposeanti-dumping duty on dumped articles, he would submit that an appeallies against such order of the Central Government to the Customs,Excise and Service Tax Appellate Tribunal (CESTAT) under Section 9Cof the Act and, therefore, the writ petition filed by M/s.SaintGobain Glass India Limited against the preliminary finding is notmaintainable.12.3. While referring to the definition of the word "domesticindustry" under Rule 2(b) of the Rules which underwent variousamendments by using the word "only" at the end, which was the reasonfor the learned Judge to come to a conclusion that by such word arestriction on the discretion of the Designated Authority has beenimposed, and the subsequent deletion of the said word "only" itselfon 1.12.2011, it is his submission that the intention has beenconsistently to give discretion to the Designated Authority.12.4. He would also submit that as per the Rules framed inaccordance with Section 9A and 9B of the Act, Rule 4 of the Ruleswhile contemplating the duty of the Designated Authority, has onlydirected the Designated Authority to submit his findings, provisionalor otherwise to the Central Government or to recommend the CentralGovernment about the amount of anti-dumping duty and even forinitiation of investigation by the Designated Authority, ascontemplated under Rule 5(2) of the Rules, the application filedshall be supported by evidence regarding dumping, injury and casuallink between the dumped imports and alleged injury. The Rules alsocontemplate a suo motu power on the part of the Designated Authoritywhen it obtains sufficient evidence from any other source by way ofinformation to initiate investigation. It is under Rule 12 of theRules, the Designated Authority after conducting enquiry and ondetermining the injury, has to record the preliminary findingregarding the export price, normal value and margin of dumping andit shall also record a further finding regarding injury to thedomestic industry with detailed information and it is thereafterunder Rule 13 of the Rules, the Central Government imposesprovisional duty. That is followed by a final finding to besubmitted by the Designated Authority under Rule 17 of the Rulesrecommending the amount of duty which, if levied, would remove theinjury where applicable to the domestic enquiry and the final levyhas been made by the Central Government again under Rule 18 of the https://hcservices.ecourts.gov.in/hcservices/ Rules and the levy of final duty by the Central Government, accordingto the learned Senior Counsel, is a legislative function which shallbe effected within three months from the date of the final findinggiven by the Designated Authority under Rule 17 of the Rules. 12.5. It is his submission that the definition of the word"domestic industry" has to be construed in accordance with the objectof the regulation. There is no provision under the Rules preventingthe domestic industry from complaining. He would also submit that asper the amendment effected to the term "domestic industry" under Rule2(b) of the Rules in the notification dated 27.2.2010, the word"construed" has to be read along with "only". Therefore, such adeeming fiction is made applicable only in cases where the producersare related to the importers or exporters of the alleged dumpingarticle or themselves imported thereof and hence, the term "only"cannot be taken in a restrictive sense, which, according to him,would be against the basic object of the Rule itself.12.6. He would refer to the finding of the learned Judge underthe impugned order that when once it is admitted that the purpose ofSection 9A of the Act is to maintain level playing field and toprevent dumping, while allowing healthy competition, and it was toprevent unfair trade practices, the 1995 Amendment came intoexistence pursuant to Article VI of the General Agreement on Tariffsand Trade, 1994 (GATT), the term "domestic industry" has to beunderstood based on the object and purpose of the Rule.12.7. According to the learned Senior Counsel, the amendmentmade with effect from 1.12.2011 by deleting the word "only" therebyreiterating the discretion on the Designated Authority only showsthat the intention is to make the Rules in accordance with and inorder to implement the Treaty, which is the international obligationof the Government. He would also submit that by use of the word"only" if it is construed so as to fully exclude all the exporters,then the very object and purpose of the Rule would be obliterated andthat would be improper and incorrect interpretation of the Rule.According to him, even otherwise the term "only" brought in theamendment of the year 2010 cannot have any retrospective effect. 12.8. He would submit that the intention of the amendment wasonly to bring it in consonance with WTO Anti-Dumping Agreement byreferring to a communication of the Commerce Secretary, Governmentof India dated 12.10.2011, wherein he has clearly stated that whenoriginally the term "domestic industry" used the word "shall" therebytotally taking away the discretionary power of the DesignatedAuthority, which has subsequently become "may" and therefore thesubsequent amendment in addition to "may" if adds the word "only"that cannot be construed restrictively, especially when in thesubsequent amendment brought in with effect from 1.12.2011, the term"only" itself has been taken away. In this regard, he would rely https://hcservices.ecourts.gov.in/hcservices/ 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; CITv. Shelly Products, (2003) 5 SCC 461.12.9. To substantiate his contention that the Rules are to beinterpreted in accordance with WTO Agreement, he would rely upon thejudgments in Haridas Exports v. All India Float Glass Manufacturers'Association, (2002) 6 SCC 600; S & S Enterprise v. DesignatedAuthority, (2005) 3 SCC 337; Gramophone Co. of India Ltd. v. BirendraBahadur Pandey, (1984) 2 SCC 534.12.10. He would also refer to a Handbook on Anti-DumpingInvestigations of the World Trade Organization published by theCambridge University Press and also note by the WTO and submit thateven though the terms of such agreements may not be binding, for thelimited purpose of interpretation of the words the same can be used.Therefore, according to the learned Senior Counsel, if the term"only" is to be construed restrictively taking away the discretionarypower of the Designated Authority, the same will not only be againstthe purport of the WTO, which is the basis for the Anti-DumpingRules, India being one of the members, but also the same will beagainst the interest of the country as a whole. 12.11. According to the learned Senior Counsel, by holding thatthe domestic industry like M/s.Nirma Limited is not entitled tomaintain the application by such restrictive interpretation, thelearned Judge under the impugned order has committed a serious error.13.1. Mr.P.S.Raman, learned Senior Counsel appearing forM/s.Alkali Manufacturers Association of India, to which the said fourindustries were the members, would submit that originally when anotification was issued on 20.8.2010 initiating anti-dumpinginvestigation on imports of Soda Ash originating in or exported fromChina PR, etc., the same was challenged by the writ petitioner byfiling W.P.No.4602 of 2011 on the ground that the Association,including few of its members (who are themselves importers), cannotbe termed as a "domestic industry", in which this Court has passed anorder on 26.4.2011 dismissing the miscellaneous petition holding thatit is only in the preliminary stage and it was subsequently aftermaking hearings as per the provisions of the Rules, preliminaryfinding has been given by the Designated Authority holding that theDesignated Authority as per Rule 2(b) of the Rules is vested withdiscretion to exclude or include any domestic manager, rejecting thepoints raised by the writ petitioner that the term "only" imported inthe amendment of the year 2010 to the word "domestic industry" willnot take away the discretion.13.2. He would state that prior to 15.7.1999 there was nodiscretion to the Designated Authority and that was vested on https://hcservices.ecourts.gov.in/hcservices/

15.7.1999 and in 2010 amendment when the term "may" was retained,only because the term "only" was added towards the end that cannot besaid to qualify the term "may" and this being a delegated legislationthe term must be construed by keeping in mind the very object of theRules which is based on the WTO Agreement.13.3. By relying upon the decision in Reliance IndustriesLimited v. Designated Authority, (2006) 202 ELT 23, the learnedSenior Counsel would submit that the Designated Authority must beinformed with all particulars like dumping cost, injury, etc., so asto enable the Designated Authority to come to a proper conclusion.13.4. He would also refer to the letter of the CommerceMinistry, Government of India, to submit that by going into theobject, as it is seen in the notes, the term "only" cannot take awaythe discretionary power of the Designated Authority. He would relyupon the judgments in CIT v. Tata Iron and Steel Co. Ltd., (1998) 2SCC 366; Union of India v. Tata Iron and Steel Co. Ltd., (1976) 2 SCC123; and Saru Smelting (P) Ltd. v. CST, 1993 Supp (3) SCC 97.13.5. He would take this Court to the various publications forthe better understanding of the entire issue and ultimately submitthat there must be purposive interpretation by relying upon thedecisions in K.P.Varghese v. ITO, (1981) 4 SCC 173; Grasim IndustriesLtd. v. Collector of Customs, (2002) 4 SCC 297; B.Premanand v. MohanKoikal, (2011) 4 SCC 266; and District Mining Officer v. Tata Ironand Steel Co., (2001) 7 SCC 358.14.1. Mr.Satish Parasaran, learned counsel appearing for theappellant in W.A.No.194 of 2012, namely M/s.GHCL, while reiteratingthe contentions raised by M/s.Krishnan Venugopal and P.S.Raman,learned Senior Counsel, would submit that imposing of duty is not theobject of the Rules. Duty is only to compensate the anti-dumping.The basic idea is that the competition in the domestic market shouldnot be prevented by anti-dumping activity from foreign countries. 14.2. He submitted that the intention of the Legislature isalways to be gathered from the words used by it, giving to the wordstheir plain, normal, grammatical meaning and in this regard, herelied on the judgment in Mahadeolal Kanodia v. The Administrator-General of West Bengal, AIR 1960 SC 936. He would also placereliance on the judgment of the Supreme Court in Jolly GeorgeVarghese and Another v. The Bank of Cochin, AIR 1980 SC 936.14.3. It is his submission that this being not a fiscal law buta economic legislation, the term "domestic industry" should beconstrued liberally, by relying upon the decisions in State ofMaharashtra v. Mohd. Yakub and others, (1980) 3 SCC 57, apart fromCarew & Co. Ltd. v. Union of India, (1975) 2 SCC 791. https://hcservices.ecourts.gov.in/hcservices/

14.4. The term "only" cannot be construed to take away thediscretion, for which he has relied upon the decision in ChiefControlling Revenue Authority v. Maharashtra Sugar Mill Ltd., AIR1950 SC 218. He would also submit that the Act being a remediallegislation, the definition cannot be imported or borrowed from theCustoms Act.15.1. It is the contention of Mr.M.Ravindran, AdditionalSolicitor General of India appearing for the Designated Authority,Directorate General of Anti-Dumping and Allied Duties, Ministry ofCommerce & Industry – appellant in W.A.No.195 of 2012 that the writpetition is not maintainable and the same is premature. He wouldrely upon the decision in Designated Authority (Anti-DumpingDirectorate) v. Haldor Topsoe A/S, (2000) 6 SCC 626. 15.2. It is his submission that while in the period between 1947to 1994 heavy industries were with the Government, due to theeconomic development, multi-national companies have been allowed bythe Government. The World Trade Organization, to which India happensto 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 thepurpose of construction of various terms of the Rules, the Governmentof India is entitled to apply the basic principles based on which WTOas well as the GATT were entered. He would rely upon the judgmentsin Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC368 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 petitionerthat when once it is clear that the impugned order of the learnedSingle Judge is not perverse, simply because a different view ispossible in respect of one of the issues, there is no necessity tointerfere and his submission is that the interpretation must beliteral in sense. He would submit that the writ petition against theimpugned preliminary order is maintainable for the reason thatjurisdiction issue has been raised. The preliminary finding given bythe Designated Authority is the basis for further investigation andwhen once the said basis itself, according to the writ petitioner, iswithout jurisdiction, certainly the petitioner is entitled tochallenge the preliminary finding itself.16.2. While supporting the finding given by the learned Judge inrespect of the construction of Rule 2(b) of the Rules, the learnedSenior Counsel would submit that by applying the literalinterpretation, the term "only" specifically added by the law-makersmakes it abundantly clear that the intention was to restrict thediscretionary power of the Designated Authority in order to avoid theabuse of process. https://hcservices.ecourts.gov.in/hcservices/

16.3. According to him, the excluded category remains alreadyexcluded and the discretion of the Designated Authority is restrictedonly in respect of the rest of the producers. 16.4. It is his submission that the Act is a fiscal statutebecause its idea is to impose and levy tax and anti-dumping dutyshould be treated as tax and if so, the interpretation must be strictin nature.16.5. It is his submission that even if it is accepted that theterm "only" which has been added in the end of the definition of"domestic industry" is excluded, it does not mean that M/s.NirmalLimited, M/s.SCL and M/s.GHCL can come within the definition, sincethey are in the excluded category.16.6. He has also submitted that while the learned Judge hascorrectly construed the provision of Rule 2(b) of the Rules, an errorhas been committed in correlating it with Rule 5(3) of the Rules soas to accept the application of M/s.DCW Limited, which has got theoutput admittedly of 4% and that can never be equated to that of 100%.17.1. Mr.Vijayanarayanan, learned Senior Counsel appearing forthe writ petitioner, who has filed W.A.No.307 of 2012 and alsoW.A.No.337 of 2012 in respect of another portion of the order closingthe earlier writ petition in W.P.No.4602 of 2011, would submit thatthe WTO concept cannot protect the Indian market. The concept isthat the market must be free and fair between the nations. Tosubstantiate his contention that the writ petition is maintainable,he would rely upon the decision in 2011 (183) ECR 145 (SC).17.2. He would submit that inasmuch as the finding in thepreliminary order by the Designated Authority is quash-judicial innature, one cannot say that any error in the same cannot bequestioned. He would rely upon the decision in Mohtesham Mohd.Ismail v. Enforcement Directorate, (2007) 8 SCC 254. 17.3. It is his submission that the Designated Authority, who isquasi judicial authority, cannot file appeal against the order of thelearned Single Judge, since the Designated Authority is not a personaggrieved, 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 wellas the respondents, gone through the impugned judgment of thelearned Judge and given our anxious thought to the issues involved.19. On an overall reading of the entire papers, including theimpugned order of the learned Judge, the following three points areto be answered in this appeals:(i)the maintainability of the writ petition filed by M/s.Saint https://hcservices.ecourts.gov.in/hcservices/ Gobain Glass India Limited;(ii)the construction of the term "domestic industry" as perRule 2(b) of the Rules, which has undergone variousamendments, as to whether by the amendment dated 27.2.2010,the discretionary power of the Designated Authority inrespect of the domestic producers is taken away; and(iii)as to whether the finding of the learned Judge in respectof M/s.DCW Limited, which is forming part of AlkaliManufacturers Association of India, being a domesticproducer, even though admittedly having 4% of theproduction, could be presumed to have 100% production so asto enable it have a jurisdiction to make representation tothe Designated Authority, is correct in law.Point – (i)20. Regarding the first issue in respect of the maintainabilityaspect of the writ petition in W.P.No.23515 of 2011, the learnedJudge in the impugned order has held that inasmuch as the veryjurisdiction of the Designated Authority in initiating proceedings ischallenged in the writ petition, it cannot be held that the writpetition is not maintainable.21. Even though it has been the contention of the members ofAlkali Manufacturers Association of India that at the stage ofpreliminary finding there is no finality and unless and until theGovernment of India ultimately passes order imposing the levy andthereafter gives final finding a writ petition is not maintainable,and there is an appellate remedy available, as correctly held by thelearned Judge, mere existence of an alternative remedy cannot be saidto be an absolute bar for the High Court for entertaining a writpetition under Article 226 of the Constitution of India. In thedecision rendered by the Supreme Court in Union of India v. TantiaConstruction (P) Ltd., (2011) 5 SCC 697, the Supreme Court afteranalyzing the various decisions about the maintainability of thewrit petition in the presence of an alternative remedy, has held thatalternative remedy is a rule of discretion and not a matter ofcompulsion. The operative portion of the said decision is as follows:"33. Apart from the above, even on the question ofmaintainability of the writ petition on account of thearbitration clause included in the agreement between theparties, it is now well established that an alternativeremedy is not an absolute bar to the invocation of thewrit jurisdiction of the High Court or the Supreme Courtand that without exhausting such alternative remedy, awrit petition would not be maintainable. The variousdecisions cited by Mr Chakraborty would clearly indicatethat the constitutional powers vested in the High Courtor the Supreme Court cannot be fettered by anyalternative remedy available to the authorities. https://hcservices.ecourts.gov.in/hcservices/ Injustice, whenever and wherever it takes place, has tobe struck down as an anathema to the rule of law and theprovisions of the Constitution.34. We endorse the view of the High Court thatnotwithstanding the provisions relating to thearbitration clause contained in the agreement, the HighCourt was fully within its competence to entertain anddispose of the writ petition filed on behalf of therespondent Company. We, therefore, see no reason tointerfere with the views expressed by the High Court onthe maintainability of the writ petition and also on itsmerits."22. Moreover, against the preliminary finding it cannot be saidthat there is an effective remedy available as per Section 9C of theAct. The power of imposing anti-dumping duty on dumped articlesemanates from Section 9A of the Act which contemplates that when anyarticle is exported by an exporter or producer to India from anycountry at less than its normal value, on such importation in India,the Government of India is entitled by notification to impose anti-dumping duty not exceeding the margin of dumping in relation to thearticle.23. While Section 9B of the Act contemplates certaincircumstances wherein no such levy can be imposed, Section 9C of theAct provides an appeal to the Customs Excise and Service TaxAppellate Tribunal constituted under Section 129 of the Customs Act,1962 against the order of determination or review regarding theexistence, degree and effect of any subsidy or dumping in relation toimport. Section 9C of the Act is as follows:"Section 9C. Appeal. (1) An appeal against the orderof determination or review thereof regarding theexistence, degree and effect of any subsidy or dumpingin relation to import of any article shall lie to theCustoms, Excise and Service Tax Appellate Tribunalconstituted under section 129 of the Customs Act, 1962(52 of 1962) (hereafter referred to as the AppellateTribunal).(1A) An appeal under sub-section (1) shall beaccompanied by a fee of fifteen thousand rupees. (1B) Every application made before the AppellateTribunal,-(a) in an appeal under sub-section (1), for grant ofstay or for rectification of mistake or for any otherpurpose;or https://hcservices.ecourts.gov.in/hcservices/ (b) for restoration of an appeal or an application,shall be accompanied by a fee of five hundred rupees.(2) Every appeal under this section shall be filedwithin ninety days of the date of order under appeal:Provided that the Appellate Tribunal may entertain anyappeal after the expiry of the said period of ninetydays, if it is satisfied that the appellant wasprevented by sufficient cause from filing the appeal intime. (3) The Appellate Tribunal may, after giving the partiesto the appeal an opportunity of being heard, pass suchorder thereon as it thinks fit, confirming, modifying orannulling the order appealed against.(4) The provisions of sub-section (1), (2), (5) and (6)or section 129C of the Customs Act, 1962 shall apply tothe Appellate Tribunal in the discharge of its functionsunder this Act as they apply to it in the discharge ofits functions under the Customs Act, 1962.(5) Every appeal under sub-section (1) shall be heard bya Special Bench constituted by the President of theAppellate Tribunal for hearing such appeals and suchBench shall consist of the President and not less thantwo members and shall include one judicial member andone technical member."24. It is in accordance with the powers conferred under Section9A(6) of the Act, which confers a rule making power to the CentralGovernment in order to ascertain and determine the manner in whichthe article liable for any anti-dumping duty is to be identified orthe manner in which the export price and the normal value of, and themargin of dumping in relation to such article is to be determined forassessment and collection of such anti-dumping duty, the CentralGovernment has framed the Customs Tariff (Identification, Assessmentand Collection of Anti-Dumping Duty on Dumped Articles and forDetermination of Injury) Rules, 1995 by notification issued on1.1.1995.25. Apart from the definition of the word "domestic industry",which has been defined under Rule 2(b) of the Rules, which will besubsequently dealt by us, at this stage regarding the decision of themaintainability of the writ petition and the availability of thealternative remedy of appeal, suffice it to refer to some of theprovisions of the Rules. Rule 3 of the Rules enables the CentralGovernment to appoint Designated Authority, whose duties are https://hcservices.ecourts.gov.in/hcservices/ mentioned in Rule 4 of the Rules, which is as follows:"Rule 4. Duties of the designated authority.- It shallbe the duty of the designated authority in accordancewith these rules-(a) to investigate as to the existence, degree andeffect of any alleged dumping in relation to import ofany article;(b) to identify the article liable for anti-dumping duty;(c) to submit its findings, provisional or otherwise toCentral Government as to-(i) normal value, export price and the margin ofdumping in relation to the article underinvestigation; and(ii) the injury or threat of injury to anindustry established in India or materialretardation to the establishment of an industryin India consequent upon the import of sucharticle from the specified countries;(d) to recommend to the Central Government-(i) the amount of anti-dumping duty equal to themargin of dumping or less, which if levied, wouldremove the injury to the domestic industry, afterconsidering the principles laid down in theAnnexure III to these rules; and (ii) the date of commencement of such duty;(e) to review the need for continuance of anti-dumpingduty."26. A reading of the said Rule makes it ample clear that itvests a power on the Designated Authority to investigate, identifyand submit its finding – provisional or otherwise, to the CentralGovernment as to the normal value and injury, apart from recommendingto the Central Government about the amount of anti-dumping duty andthe date of commencement of such duty. 27. The Designated Authority, after preliminary investigation,has to record a preliminary finding regarding the export price,normal value and the margin of dumping and also record furtherfinding regarding the injury to the domestic industry with detailedinformation for the preliminary determination on dumping and injuryand such preliminary finding is to be issued by way of a publicnotice by the Designated Authority, as it is seen in Rule 12 of theRules, which is as follows: https://hcservices.ecourts.gov.in/hcservices/ "Rule 12. Preliminary findings. - (1) The designatedauthority shall proceed expeditiously with the conductof the investigation and shall, in appropriate cases,record a preliminary finding regarding export price,normal value and margin of dumping, and in respect ofimports from specified countries, it shall also record afurther finding regarding injury to the domesticindustry and such finding shall contain sufficientlydetailed information for the preliminary determinationson dumping and injury and shall refer to the matters offact and law which have led to arguments being acceptedor rejected. It will also contain:-(i) the names of the suppliers, or when this isimpracticable, the supplying countries involved;(ii) a description of the article which issufficient for customs purposes;(iii) the margins of dumping established and afull explanation of the reasons for themethodology used in the establishment andcomparison of the export price and the normalvalue;(iv) considerations relevant to the injurydetermination; and(v) the main reasons leading to the determination.2. The designated authority shall issue a public noticerecording 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 andthereafter, on further investigation, the Designated Authority givesa final finding and it is in the final finding, as it is seen underRule 17 of the Rules, a determination is made in the form ofrecommendation by the Designated Authority and thereafter, theCentral Government issues levy within a period of three months of thedate of publication of final findings by the Designated Authority, asit is seen in Rule 18 of the Rules which is as follows:"Rule 18. Levy of duty. - (1) The Central Governmentmay, within three months of the date of publication offinal findings by the designated authority under rule17, impose by notification in the Official Gazette, uponimportation into India of the article covered by thefinal finding, anti-dumping duty not exceeding themargin of dumping as determined under rule 17:(2) In cases where the designated authority has selected https://hcservices.ecourts.gov.in/hcservices/ percentage of the volume of the exports from aparticular country, as referred to sub-rule (3) of rule17, any anti-dumping duty applied to imports fromexporters or producers not included in the examinationshall not exceed -(i) the weighted average margin of dumpingestablished with respect to the selectedexporters or producers or,(ii) where the liability for payment of anti-dumping duties is calculated on the basis of aprospective normal value/ the difference betweenthe weighted average normal value of the selectedexporters or producers and the export prices ofexporters or producers not individually examined:Provided that the Central Government shall disregard forthe purpose of this sub-rule any zero margin, marginswhich are less than 2 per cent expressed as thepercentage of export price and margins established inthe circumstances detailed in sub-rule (8) of rule 6.The Central Government shall apply individual duties toimports from any exporter or producer not included inthe examination who has provided the necessaryinformation during the course of the investigation asreferred to in the second proviso to sub-rule (3) ofrule 17.(3) Notwithstanding anything contained in sub-rule (1),where a domestic industry has been interpreted accordingto the proviso to sub-clause (b) of rule 2, a duty shallbe levied only after the exporters have been givenopportunity to cease exporting at dumped prices to thearea concerned or otherwise give an undertaking pursuantto rule 15 and such undertaking has not been promptlygiven and in such cases duty shall not be levied only onthe articles of specific producers which supply the areain question.(4) If the final finding of the designated authority isnegative that is contrary to the evidence on whose basisthe investigation was initiated, the Central Governmentshall, within forty-five days of the publication offinal findings by the designated authority under rule17, withdraw the provisional duty imposed, if any."29. On a reading of Section 9C of the Act, elicited above, it isclear that an appeal lies only after the determination, which comesonly after the final finding given by the Designated Authority underRule 17 of the Rules and levy of duty by the Central Government under https://hcservices.ecourts.gov.in/hcservices/ Rule 18 of the Rules, and therefore, it is clear that from thepreliminary finding, which is impugned in the writ petition, itcannot be said that there is an alternative remedy of appealavailable.30. The said view of ours is fortified by a Division Benchdecision of the Gujarat High Court in Meghani Organics Ltd. v. Unionof India, 2011 (267) E.L.T. 440 (Guj.), wherein the Division Benchhas also taken a stand that a preliminary finding given by theDesignated Authority is recommendatory in nature and appeal would notbe tenable under Section 9C of the Act against the said preliminaryfinding, with the operative portion as follows:"16. This leads to an another issue as to whether anappeal lies to C.E.S.T.A.T. against levy of provisionalanti-dumping duty, and if yes, whether this Court shouldentertain the present petition when an alternative remedyin the form of an appeal is available to the petitioners.In support of this contention, Mr. Joshi relied on thedecision of this Court in Surfaces Plus v. Union of India2004 (173) ELT 127 (Guj.) wherein, while considering anissue as to whether an appeal lies against preliminaryfinding, the Court held that against preliminary finding,which is of a recommendatory nature, an appeal would notbe tenable under Section 9C of the Act. The preliminaryfinding which is of a recommendatory nature is requiredto be considered by the Central Government under Rule 13for the purpose of deciding the question of imposingprovisional anti-dumping duty and the Central Governmentis required to issue notification for imposing anti-dumping duty. Such notification of imposing duty has notbeen issued so far by the Central Government. On thebasis of these observations, the submission of Mr. Joshiis that since the Central Government has already issuednotification in June, 2009, the petitioners could availan alternative remedy of filing appeal beforeC.E.S.T.A.T. We are not much impressed by this argument.Section 9C deals with appeal which says that an appealagainst the order of determination or review thereofregarding the existence, degree and effect of any subsidyor dumping in relation to import of any article shall lieto the customs, Excise and Service Tax Appellate Tribunalconstituted under Section 129 of the Customs Act, 1962.Section 9A(2) of the Act states that the CentralGovernment may, pending the determination in accordancewith the provisions of this Section and the rules madethereunder of the normal value and the margin of dumpingin relation to any article, impose on the importation ofsuch article into India an anti-dumping duty on the basisof a provisional estimate of such value and margin and if https://hcservices.ecourts.gov.in/hcservices/ such anti-dumping duty exceeds the margin as sodetermined. Thus, the provisional anti-dumping duty islevied pending determination and appeal lies only ondetermination. Moreover, Rule 17 of the Rules deals withfinal finding. It says that the Designated Authorityshall, within one year from the date of initiation of aninvestigation, determine as to whether or not the articleunder investigation is being dumped in India and submitto the Central Government its final finding (a) as to (i)the export price, normal value and the margin of dumpingof the said article, (ii) whether import of the saidarticle into India, in the case of imports from specifiedcountries, causes or threatens material injury to anyindustry established in India or materially retards theestablishment of any industry in India, (iii) a causallink, where applicable between the dumped imports andinjury, (iv) whether a retrospective levy is called forand if so, the reasons therefore and date of commencementof such retrospective levy. This exercise is yet to beundertaken by the Designated Authority. Hence, no appeallies against the levy of provisional anti-dumping dutyand this Court is well within its power to entertain thispetition since there being no alternative remedyavailable to the petitioners despite the fact that theyare being saddled with the liability of provisional anti-dumping duty."31. In any event, all the respective counsel have mainlyfocussed their attention on the merits of the case – about thedefinition of the term "domestic industry", which is the crux of theissue, and therefore we do not want to differ from the finding ofthe learned Judge regarding the maintainability of the writ petition.Accordingly, we hold that the writ petition against the preliminaryfinding published by the Designated Authority is maintainable,especially when the writ petitioner has chosen to raise the point ofjurisdiction. The said point is answered accordingly.Point – (ii)32. The next issue which comes to the fore is as to who is adomestic industry. This issue gains importance due to the reasonthat the initiation of the investigation by the Designated Authorityitself begins only on the receipt of written application by or onbehalf of the domestic industry, except when such investigation isstarted by the Designated Authority suo motu regarding thedetermination of the existence, degree and effect of the allegeddumping. Rule 5 of the Rules, which is as follows:"Rule 5. Initiation of investigation. - (1) Except asprovided in sub-rule (4), the designated authority shall https://hcservices.ecourts.gov.in/hcservices/ initiate an investigation to determine the existence,degree and effect of any alleged dumping only uponreceipt of a written application by or on behalf of thedomestic industry.(2) An application under sub-rule (1) shall be in theform as maybe specified by the designated authority andthe application shall be supported by evidence of -(a) dumping(b) injury, where applicable, and(c) where applicable, a causal link between suchdumped imports and alleged injury.(3) The designated authority shall not initiate aninvestigation pursuant to an application made under sub-rule (1) unless -(a) it determines, on the basis of an examinationof the degree of support for, or opposition tothe application expressed by domestic producersof the like product, that the application hasbeen made by or on behalf of the domesticindustry:Provided that no investigation shall be initiated ifdomestic producers expressly supporting the applicationaccount for less than twenty five per cent of the totalproduction of the like article by the domestic industry,and(b) it examines the accuracy and adequacy of theevidence provided in the application andsatisfies itself that there is sufficientevidence regarding -(i) dumping,(ii) injury, where applicable; and(iii) where applicable, a casual link betweensuch dumped imports and the alleged injury, to justify the initiation of an investigation.Explanation. - For the purpose of this rule theapplication shall be deemed to have been made by or onbehalf of the domestic industry, if it is supported bythose domestic producers whose collective outputconstitute more than fifty per cent of the totalproduction of the like article produced by that portionof the domestic industry expressing either support foror opposition, as the case may be, to the application.(4) Notwithstanding anything contained in sub-rule (1)the designated authority may initiate an investigation https://hcservices.ecourts.gov.in/hcservices/ suo moto if it is satisfied from the informationreceived from the Commissioner of Customs appointedunder the Customs Act, 1962 (52 of 1962) or from anyother source that sufficient evidence exists as to theexistence of the circumstances referred to in clause (b)of sub-rule (3).(5) The designated authority shall notify the governmentof the exporting country before proceeding to initiatean investigation.",contemplates that the domestic industry is to make application so asto enable the Designated Authority to initiate investigation withsufficient proof of dumping, injury, where applicable, and the linkbetween such dumped imports and alleged injury. Of course, underRule 5(3) of the Rules, the Designated Authority is not entitled toproceed with the investigation unless it determines based on thedegree of support or opposition to the application by the domesticproducers of the like product, and the application has been made onbehalf of or by the domestic industry. It also provides for furtherrestriction on the Designated Authority from investigating ifdomestic producers supporting the application account for less than25% of the total production of the like article by the domesticindustry. Therefore, for the purpose of initiating the proceeding byway of investigation against anti-dumping, the applicant must provethat it is a domestic industry. It is in this context the term"domestic industry" assumes importance.33. Sections 9A and 9C of the Act, which were introduced by theCustoms Tariff (Amendment) Act, 1995 enabling the imposition of anti-dumping duty on dumped articles, were inserted by the Parliamentpursuant to the General Agreement on Tariffs and Trade, 1994, whichis based on the WTO Agreement, India being one of its signatory, asit was observed by the Full Bench of the Supreme Court in HaridasExports v. All India Float Glass Manufacturers' Association, (2002) 6SCC 600. The Supreme Court while dealing with the Monopolies andRestrictive Trade Practices Act, 1969, has observed as follows:"9. It was submitted that Article 18.1 of the WTOAgreement on Implementation of Article VI of GATT, 1994,provides that “no specific action against dumping ofexports from another member can be taken except inaccordance with the provisions of GATT, 1994 asinterpreted by this Agreement”. The remedy against thepractice of “dumping”/export of goods at “predatoryprices” has been expressly agreed upon internationallyunder the General Agreement on Tariffs and Trade (GATT)to which India is a signatory. The Agreement deals withanti-dumping duties and provides mechanism to implementit. https://hcservices.ecourts.gov.in/hcservices/

10. In pursuance of GATT, 1994, Parliament for the firsttime inserted provisions Sections 9-A to 9-C in theCustoms Tariff Act vide the Customs Tariff (Amendment)Act, 1995, 6 of 1995 which replaced the provisions ofSections 9, 9-A and 9-B earlier inserted in the CustomsTariff Act under Act 52 of 1982. The Statement ofObjects and Reasons to the Bill clearly states that theBill seeks to amend the Customs Tariff Act to bring theprovisions of the Customs Tariff Act in conformity withthe provisions of Article VI of GATT, 1994, and theagreements on subsidies and countervailing measures.Even the preamble of the Customs Tariff (Amendment) Act,1995, 6 of 1995 also provides that the provisions ofSections 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 toreflect the changes in the domestic law, consequent uponcoming into effect of the Agreement on Anti-Dumping(i.e. an Agreement on Implementation of Article VI ofGATT, 1994) … under the Uruguay Round on 1-1-1995."34. The purpose of Section 9A of the Act and the Rules has beenheld to be progressive in nature made pursuant to the GeneralAgreement on Tariffs and Trade, 1994, as held by the Supreme Court inReliance Industries Limited v. Designated Authority, (2006) 202 ELT23, the relevant portion of the said judgment is as under:"11. The result was that an industrial base was createdin India after independence and this has definitelyresulted in some progress. The purpose of Section 9A can,therefore, easily be seen. The purpose was that ourindustries which had been built up after independencewith great difficulties must not be allowed to bedestroyed by unfair competition of some foreigncompanies. Dumping is a well-known method of unfaircompetition which is adopted by the foreign companies.This is done by selling goods at a very low price forsome time so that the domestic industries cannot competeand are thereby destroyed, and after such destruction hastaken place, prices are again raised.12. The purpose of Section 9A is, therefore, to maintaina level-playing field and prevent dumping, while allowingfor healthy competition. The purpose is not protectionismin the classical sense (as proposed by the Germaneconomist Friedrich List in his famous book 'NationalSystem of Political Economy' published in 1841) but toprevent unfair trade practices. The 1995 Amendment toSection 9A was apparently made in pursuance to Article VIof the General Agreement on Tariffs and Trade 1994 (GATT https://hcservices.ecourts.gov.in/hcservices/ 1994) which permitted anti-dumping measures as aninstrument of fair competition.13. The concept of anti-dumping is founded on the basisthat a foreign manufacturer sells below the normal valuein order to destabilize domestic manufacturers. Dumping,in the short term, may give some transitory benefits tothe local customers on account of lower priced goods, butin the long run destroys the local industries and mayhave a drastic effect on prices in the long run."The Supreme Court, in the said case, has also held that as a nationwe must aim to create India as a modern and powerful State and theindustrialization must come in to put an end to the concept of "Indiais a rich country with poor people", as follows:"Before parting with this case, we would like to statethat our national aim must be to create India as amodern, highly industrialized, powerful state. The realworld today is cruel and harsh. It respects power, notpoverty or weakness, and power comes from a high level ofindustrialization. Hence, if we wish to get respect inthe comity of nations, we must make India a modern,powerful, highly industrialized state. The truth is thattoday India is poor. As Rajni Palme Dutt wrote in hisbook 'India', 'India is a rich country with poor people'.We are rich in raw materials, rich in industrial skills,we have outstanding scientists, engineers, techniciansand managers. Despite all this we are a poor nation.Hence, if we want to command respect in the comity ofnations, we must rapidly industrialize and make India apowerful, modern, highly industrialized nation. It isindustrialization alone which can generate the wealthwhich we require for the welfare of our people and forprogress. Hence our national aim must be rapidindustrialization as that is the solution to ourcountry's problems. Industrialization will also providelarge scale employment to our people, and will help thegrowth of science and technology, which is absolutelyessential to our progress."35. By going through the object of the Rules framed inaccordance with Section 9A of the Act with the intention ofpreventing anti-dumping, which is in the economic welfare of thecountry, we can safely construe the Rules as an economic legislationrather than a fiscal law. The law is well settled that the fiscallaw should be construed strictly, while the economic legislation mustbe construed with an intention of developing the domestic industry.In State of Maharashtra v. Mohd. Yakub and others, (1980) 3 SCC 57,the Supreme Court has held while dealing with the Customs Act, 1962 https://hcservices.ecourts.gov.in/hcservices/ regarding the power of confiscation and considering the object thatthe anti-social activities like smuggling will affect the foreignexchange, that a narrow interpretation to enable a culprit to escapeis not permissible. It is relevant to extract the following passage:"14. Now, let us apply the above principles to the factsof the case in hand. The intention of the accused toexport the silver from India by sea was clear from thecircumstances enumerated above. They were taking thesilver ingots concealed in the two vehicles under coverof darkness. They had reached close to the sea-shore and.had started unloading the silver there near a creek fromwhich the sound of the engine of a sea-craft was alsoheard. Beyond the stage of preparation, most of the stepsnecessary in the course of export by sea, had been taken.The only step that remained to be taken towards theexport of the silver was to load it on a sea-craft formoving out of the territorial waters of India. But forthe intervention of the officers of law, the unlawfulexport of silver would have been consummated. Thecalendestine disappearance of the sea-craft when theofficers intercepted and rounded up the vehicles and theaccused at the creek, reinforces the inference that theaccused had deliberately attempted to export silver bysea in contravention of law.15. It is important to bear in mind that the penalprovisions with which we are concerned have been enactedto suppress the evil of smuggling precious metal out ofIndia. Smuggling is an antisocial activity whichadversely affects the public revenues, the earning offoreign exchange, the financial stability and the economyof the country. A narrow interpretation of the word"attempt" therefore, in these penal provisions which willimpair their efficacy as instruments for combating thisbaneful activity has to be eschewed. These provisionsshould be construed in a manner which would suppress themischief, promote their object, prevent then subtleevasion and foil their artful circumvention. Thus,construed, the expression "attempt" within the meaning ofthese penal provisions is wide enough to take in its foldany one or series of acts committed, beyond the stage ofpreparation in moving the contraband goods deliberatelyto the place of embarkation, such act or acts beingreasonably proximate to the completion of the unlawfulexport. The inference arising out of the facts andcircumstances established by the prosecution, unerringlypointed to the conclusion, that the accused had committedthe offence of attempting to export silver out of Indiaby sea, in contravention of law." https://hcservices.ecourts.gov.in/hcservices/

36. Under the Customs Tariff (Identification, Assessment andCollection of Anti-Dumping Duty on Dumped Articles and forDetermination of Injury) Rules, 1995, when a question arose as towhether it is correct for the Designated Authority to compute thevolume of exports on the basis of quantity, rather than on the basisof price, interpreting the term "volume" in Rule 14 of the Rules byborrowing the terms as recognized in GATT, the Supreme Court hasclarified in S & S Enterprise v. Designated Authority, (2005) 3 SCC337 that to constitute dumping, there must be an import at pricewhich is lower than the normal value of the goods in the exportingcountry; and such export must be sufficient to cause injury to thedomestic industry and held as follows:"4. In our opinion, the interpretation of Rule 14(d) byRespondent 1 and the Tribunal is incorrect and contraryto its language. The imposition of anti-dumping duty isunder Section 9-A of the Customs Tariff Act, 1975 andthe Rules and is the outcome of the General Agreement onTariff and Trade (GATT) to which India is a party. Thepurpose behind the imposition of the duty is to curbunfair trade practices resorted to by exporters of aparticular country of flooding the domestic markets withgoods at rates which are lower than the rate at whichthe exporters normally sell the same or like goods intheir own countries so as to cause or be likely to causeinjury to the domestic market. The levy of anti-dumpingduty is a method recognised by GATT which seeks toremedy the injury and at the same time balances theright of exporters from other countries to sell theirproducts within the country with the interest of thedomestic markets. Thus the factors to constitute“dumping” are (i) an import at prices which are lowerthan the normal value of the goods in the exportingcountry; (ii) the exports must be sufficient to causeinjury to the domestic industry."37. The international law principles, which are evolved by wayof conventions and agreements, are not certainly binding on thedomestic courts, but nevertheless in the march of community in theinternational level, even though the national courts are to followthe national laws, when it requires, the national courts are entitledto interpret the principles of international law, if there are noconflicts. That has been settled while deciding an issue under theCopyright Act, 1957 by the Supreme Court in Gramophone Co. of IndiaLtd. v. Birendra Bahadur Pandey, (1984) 2 SCC 534, wherein theSupreme Court has distinguished between the international law anddomestic law and explained as follows:"4. Lauterpacht in International Law (General Works) https://hcservices.ecourts.gov.in/hcservices/ refers to the position in Germany, France, Belgium andSwitzerland and says it is the same. He quotes what aGerman court said to meet an argument that the role ofcustomary international law conflicted with Article 24of the German Code of Civil Procedure. The court hadsaid, “The legislature of the German Reich did not andcould not intend any violation of generally recognisedrules of international law, when enacting Article 24 ofthe German Code of Civil Procedure”. Lauterpacht refersto another German case where the argument that “thereought not to be a direct recourse to the law of nations,except insofar as there has been formed a Germancustomary law” was rejected with the statement, “Thecontention of the Creditor that international law isapplicable only insofar as it has been adopted by Germancustomary law, lacks foundation in law. Such a legalmaxim would, moreover, if generally applied, lead to theuntenable result that in the intercourse of nations withone another, there would obtain not a uniform system —international law — but a series of more or less diversemunicipal laws”. Lauterpacht summarises the positionthis way:“While it is clear that international law may anddoes act directly within the State, it is equallyclear that as a rule that direct operation ofinternational law is within the State subject tothe overriding authority of municipal law. Courtsmust apply statutes even if they conflict withinternational law. The supremacy of internationallaw lasts, pro foro interno, only so long as theState does not expressly and unequivocallyderogate from it. When it thus prescribes adeparture from international law, conventional orcustomary, Judges are confronted with a conflictof international law and municipal law and, beingorgans appointed by the State, they are compelledto apply the latter.”5. There can be no question that nations must march withthe international community and the municipal law mustrespect rules of international law even as nationsrespect international opinion. The comity of nationsrequires that rules of international law may beaccommodated in the municipal law even without expresslegislative sanction provided they do not run intoconflict with Acts of Parliament. But when they do runinto such conflict, the sovereignty and the integrity ofthe Republic and the supremacy of the constitutedlegislatures in making the laws may not be subjected to https://hcservices.ecourts.gov.in/hcservices/ external rules except to the extent legitimatelyaccepted by the constituted legislatures themselves. Thedoctrine of incorporation also recognises the positionthat the rules of international law are incorporatedinto national law and considered to be part of thenational law, unless they are in conflict with an Act ofParliament. Comity of nations or no, municipal law mustprevail in case of conflict. National courts cannot sayyes if Parliament has said no to a principle ofinternational law. National courts will endorseinternational law but not if it conflicts with nationallaw. National courts being organs of the national Stateand not organs of international law must perforce applynational law if international law conflicts with it. Butthe courts are under an obligation within legitimatelimits, to so interpret the municipal statute as toavoid confrontation with the comity of nations or thewell established principles of international law. But ifconflict is inevitable, the latter must yield."Therefore, it is clear that in the event of absence of anycontradiction, there is no bar for interpreting the terms, especiallythe term "domestic industry" which is the crux of the issue, from theWTO Agreement, which can be certainly the source for suchinterpretation without having any contradiction to the Indian Lawdefinition.38. Under the WTO Agreement on anti-dumping, to which India is asignatory, the term "domestic industry" was defined as follows:"4.1 For the purposes of this Agreement, the term"domestic industry" shall be interpreted as referring tothe domestic producers as a whole of the like productsor to those of them whose collective output of theproducts constitutes a major proportion of the totaldomestic production of those products, except that :(i) when producers are related to the exportersor importers or are themselves importers of theallegedly dumped product, the term "domesticindustry" may be interpreted as referring to therest of the producers;(ii) in exceptional circumstances the territoryof a Member may, for the production in question,be divided into two or more competitive marketsand the producers within each market may beregarded as a separate industry if (a) theproducers within such market sell all or almostall of their production of the product inquestion in that market, and (b) the demand in https://hcservices.ecourts.gov.in/hcservices/ that market is not to any substantial degreesupplied by producers of the product in questionlocated elsewhere in the territory. In suchcircumstances, injury may be found to exist evenwhere a major portion of the total domesticindustry is not injured, provided there is aconcentration of dumped imports into such anisolated market and provided further that thedumped imports are causing injury to theproducers of all or almost all of the productionwithin such market."Under the said definition, it is made clear that while the generaldefinition of domestic industry agreed upon between the States ininternational law is domestic producers as a whole of like productswhose collective output of the products constitute a major proportionof the total domestic production, but in cases where the producerseither are related to the exporters or importers or are themselvesimporters of the alleged dumped products, the domestic industry issought to be interpreted with reference to the said rest of theproducers who are the producers related to exporters or importers orthemselves importers of the dumped products. Therefore, a dualdefinition has been given under the international agreement for theterm "domestic industry" – (i) in respect of the domestic purchasersof like product whose production collectively put together constitutea major proportion of the total domestic production; and (ii) incases where the producers are related to the exporters or importersor when the producers themselves are the importers of the dumpedproducts, in such event the domestic industry must be interpreted inrespect of the rest of the producers who are related to the exportersor importers or are themselves importers of the dumped product.39. As submitted by Mr.P.S.Raman, learned Senior Counselappearing for Alkali Manufacturers Association of India, theliterature from the member countries, who are parties to the WTOAgreement, would show that the community purchasers who are relatedto the exporters or importers are entitled to be considered by thecommunity authority. The Book "Dumping and Subsidies" relating tothe Law and Procedures Governing the Imposition of Anti-dumping andCountervailing Duties in the European Community, by Clive Stanbrook,as referred to by Mr.P.S.Raman, learned Senior Counsel, in thisregard has summarized as follows:"5.1.3. Community producers who are related toexporters/importers or are importers of the product.Community producers may not wish to support a complaintbecause they are related to the exporters or importers,or are themselves importers of the allegedly dumped orsubsidised product. In such cases it is considered that https://hcservices.ecourts.gov.in/hcservices/ the remaining Community producers should not beprevented from making a complaint just because theycannot raise the necessary proportion of support. Thus,the rule is modified so that the Community Authoritiesmay treat the Community industry as meaning thoseproducers who are not related to exporters or importersand are not importers themselves of the offendingproduct. The Community Authorities retain a discretionin this matter, which they are entitled to exercise on acase by case basis. Although the text is not clear onthe matter, it would seem that the 50 per cent and the25 per cent rules still apply to the producers leftafter the exclusion of those who are related toexporters etc. It would make a nonsense to sayotherwise, as the following example shows. If 51 percent of Community production was related to theexporters they would voice their opposition and it wouldbe impossible for the unrelated producers ever to bringan anti-dumping or anti-subsidy complaint. UnlikeRegulation (EEC) No.2423/88, Regulation (EC) No.384/96and Regulation (EC) No.3284/94 provide a definition of"related". Producers are to be considered as relatedonly if there is a controlling relationship between themand there are grounds for suspecting that the effect ofthe relationship is to cause the Community producerconcerned to behave differently from non-relatedproducers. The control relationship between two partiesis defined as follows:–one of them directly or indirectly controls theother; or–both of them are directly or indirectlycontrolled by a third person; or–together they directly or indirectly control athird person.Control here means that one party is legally oroperationally in a position to exercise restraint ordirection over another. The definition works in bothdirections so that a producer would be related to anexporter if the Community producer controlled theexporter or if the exporter controlled the producer.The question of producers who, though unrelated toexporters, etc., nevertheless import dumped orsubsidised products is entirely different. It is anissue that needs to be examined at the time ofinitiation. After than it is an issue that may beraised because of its effect on the injury assessment. https://hcservices.ecourts.gov.in/hcservices/ In Paintbrushes from China, the Community Authorities'failure to exclude German producers who sold largevolumes of Chinese paintbrushes, led the AdvocateGeneral to recommend the annulment of the Regulation.In that case, it would have resulted in the exclusion ofthe producers in the country where it was alleged thegreatest injury had been caused. However, the exclusionof a company does not always work to the benefit of thedefendants in anti-dumping cases. In Photocopiers fromJapan, the inclusion of Rank Xerox had the effect oflowering the injury threshold level and therefore theduties that were applied.It would appear that provided that the reason forimporting the product is essentially defensive, theCommunity Authorities will not exclude the producer.There are many cases where the Community Authoritieshave held that the producer was importing the allegedlyoffending product simply to try to defend a position ina market increasingly affected by dumping or subsidies.For example, in Copper Sulphate from Yugoslavia, theCommunity Authorities found that"the complainant was obliged to make thesepurchases in an attempt to limit the effect ofinjury in order to maintain its customer base bypreventing the sale of the imported product tothe complainant's customers at dumped prices".The Community Authorities consider it to be a legitimateact of commercial self protection for Communityproducers to make purchases to"stay on the market withas" full a range of models as possible or even toprotect market niches which would have disappearedwithout sles of the models in question. The AdvocateGeneral considered this issue in TEC v. Council, andSilver Seiko v. Council and concluded that filling gapsin product ranges with imports would not disqualify afirm from being part of the Community industry, providedit was only a few models and there were relatively lowvolumes. The Court of Justice in Gestetner Holdings v.Council and Commission, also took account of the factthat in the case of one producer, it had already triedto market the full range but failed due to the effectsof dumping; in the case of another the Court pointed outthat the volumes were minimal and only temporary. InMagnetic disks from Hong Kong, the Community Authoritieswere prepared to accept that imports could be made aslong as they are "limited to that necessary to maintainsales by the complainant producers concerned while their https://hcservices.ecourts.gov.in/hcservices/ own output was temporarily insufficient, at a time ofrapid growth". In Large electrolytic aluminiumcapacitors from Japan, the Community Authorities tookinto account the fact that the imports were not resoldand were used exclusively in the manufacture of otherproducts. Apparently this was necessary to maintaincompetitiveness. More controversially, they took intoaccount the fact that the company had been an activeparticipant in the complaint. However, article 5(4)Regulation (EC) No.394/96 does not provide automaticexclusion of Community producers in these circumstances.One of the factors that will be important in thisrespect will be the balance of the business of thecompany as between manufacturing and importing. If thecompany is predominantly in manufacturing and assemblyin the Community market with some supplemental businessimporting products then it is likely to be included. Onthe other hand, if a Community producer closes down itsproduction and imports instead, or the general emphasisof his business is on imports, he will be excluded.Exclusion will be likely if, on examination it appearsthat by importing products, a company has "shielded"itself from the effects of dumping. This will also belikely if it appears that producers have in some wayparticipated in the dumping practice or unduly benefitedform it. To include such companies would lead to adistorting effect or injury findings.It appears to be the Community Authorities' practice toexclude a Community producer who imports the productsubject to investigation but does not cooperate becausein such circumstances, the Community Authorities cannotdetermine whether the Community producer was actingdefensively or for some other reason."40. Of course, there is lot of other literature, as relied uponby Mr.P.S.Raman learned Senior Counsel, as Anti-Dumping and otherTrade Protection Laws of the EC by Kluwer Law International, whichdeals with "core of business" test; Anti-Dumping and CountervailingDuty Handbook issued by the United States International TradeCommission, which deals with the related parties. It is significantto note that in Canada "domestic industry" is defined as follows:"'Domestic industry' means, other than for the purposes ofdetermining injury and subject to the provision governingregional markets, the domestic producers as a whole of thelike goods or those domestic producers whose collectiveproduction of the like goods constitutes a major proportion ofthe total domestic production of the like goods except that, https://hcservices.ecourts.gov.in/hcservices/ where a domestic producer is related to an exporter orimporter of dumped or subsidized goods, or is an importer ofsuch goods, 'domestic industry' may be interpreted as meaningthe rest of those domestic producers."There are loads of materials available in international law tosubstantiate the said view.41. Insofar as it relates to the definition of "domesticindustry" in India, the term "domestic industry" has underwentmetamorphosis. As elicited by learned Judge in the impugned order,the term "domestic industry" was defined under Rule 2(b) of the Rulesprior to the amendment dated 15.7.1999 as follows:"Rule 2(b) "domestic industry" means the domesticproducers as a whole engaged in the manufacture of thelike article and any activity connected therewith orthose whose collective output of the said articleconstitutes a major proportion of the total domesticproduction of that article except when such producers arerelated to the exporters or importers of the allegeddumped article or are themselves importers thereof inwhich case such producers shall be deemed not to formpart of domestic industry."Therefore, at that time the law-makers made it very clear that suchproducers who are related to the exporters or importers of thealleged dumped article, are totally excluded from making anyapplication and, therefore, there was absolutely no discretion inthose cases for the Designated Authority.42. By virtue of the amendment which has come into effect from15.7.1999, the word "shall" found in the term "domestic industry"under Rule 2(b) of the Rules has been converted as "may". With theresult, the amendment to the term "domestic industry" from 15.7.1999till 27.2.2010 stood as follows:"2(b) "domestic industry" means the domestic producersas a whole engaged in the manufacture of the likearticle and any activity connected therewith or thosewhose collective output of the said article constitutesa major proportion of the total domestic production ofthat article except when such producers are related tothe exporters or importers of the alleged dumped articleor are themselves importers thereof in which case suchproducers may be deemed not to form part of domesticindustry." By taking away the mandatory provision of "shall" and incorporatingthe word "may", the Designated Authority was vested with a discretion https://hcservices.ecourts.gov.in/hcservices/ in respect of the producers who are related to the exporters orimporters, or who are themselves importers of the dumped article, soas to treat them as domestic industry in order to make them eligiblefor making application under Rule 5 of the Rules for investigation.43. By a notification issued by the Government dated 27.2.2010,the term "domestic industry" was again amended and by virtue of thesaid amendment, while retaining the term "may", the word "construed"came to replace "deemed" and the term "only" was included in the endof the definition. With the result, the definition by virtue of thesaid amendment regarding domestic industry under Rule 2(b) of theRules stood as follows:"2(b) "domestic industry" means the domestic producersas a whole engaged in the manufacture of the likearticle and any activity connected therewith or thosewhose collective output of the said article constitutesa major proportion of the total domestic production ofthat article except when such producers are related tothe exporters or importers of the alleged dumped articleor are themselves importers thereof in such case theterm 'domestic industry' may be construed as referringto the rest of the producers only."44. The dispute is relating to the said amendment. Before goinginto the said aspect, one another factor which is admitted is that byvirtue of the subsequent notification issued by the Government ofIndia on 1.12.2011, the domestic industry under Rule 2(b) of theRules again came to be amended, by which the last word "only" came tobe removed and, therefore, it is clear that after 1.12.2011 thediscretionary power vested with the Designated Authority, which wasin existence between 1999 to 2010, came to be restored.45. The question to be decided is as to whether by the saidamendment brought out on 27.2.2010, simply because the term "only"was incorporated in the end of the definition of the word "domesticindustry" it has taken away the discretionary power of the DesignatedAuthority in respect of the producers who are related to theexporters or importers or who are importers themselves, relating towhom the term "domestic industry" was construed.46. The learned Judge, while comparing all the threenotifications, has held that by dint of the inclusion of the term"only", the discretion of the Designated Authority to treat thedomestic producer, who himself is an importer, as domestic industry,has been taken away and, therefore, the preliminary finding which wasthe subject matter of challenge in the writ petition insofar as itrelates to the exercise of discretionary power by the DesignatedAuthority regarding the producers who are importers came to be set https://hcservices.ecourts.gov.in/hcservices/ aside. 47. It is not in dispute, as stated above, that between 1999 and2010 in respect of the producers who are related to the exporters orimporters of the dumped articles, or who are themselves importers,the term "domestic industry" was liberally construed by givingdiscretion to the Designated Authority treating such persons asforming part of the domestic industry. Therefore, it was clear thatthe domestic industry, which was defined in two-fold – (i) in respectof the domestic producers as a whole engaged in the manufacture of alike article whose collective output constitutes the major portion ofthe total domestic production of that article; and (ii) in respectof the producers who are related to the exporters or importers of thealleged domestic industry or producers who are themselves importersof the dumped articles, and a discretion has been vested with theDesignated Authority to decide whether they should form part of thedomestic industry.48. In the amendment which was brought in with effect from27.2.2010, on a reading, it is clear that the first portion of thedefinition of the domestic industry, which relates to the domesticproducers as a whole whose collective output constitutes the majorportion of the total domestic production, remains intact. Insofar asit relates to the producers who are related to the exporters orimporters of the dumped article or who are themselves importers ofthe dumped articles, the law-makers made it very clear that whileconstruing them as domestic industry, the Designated Authority "maybe construed as referring to the rest of the producers only". 49. The term "may be construed as referring to the rest of theproducers only" on a bare and literal interpretation, in our view,should be construed only in respect of the producers who are relatedto exporters or importers, or producers who are themselves importers,and simply because the term "only" is construed, it cannot be takento the first portion of the definition as submitted by Mr.ArvindP.Datar in order to substantiate his contention that thediscretionary power of the Designated Authority to take cognizance ofthe application under Rule 5 of the Rules has been taken away unlessand until there is the collective output which constitutes the majorproportion. If that submission is accepted, it will not only beagainst the tenets of the WTO Agreement, but also against the basicpurpose of the Rule which is intended to prevent anti-dumping, whichis a restrictive trade practice affecting the internal trade market,on the technical ground that required proportion of members has notapplied under Rule 5 of the Rules, which, in our view, cannot beconstrued to be a harmonious interpretation. 50. Moreover, as correctly submitted by the Senior Counsel andcounsel appearing for various domestic producers, if the term "only"has been included anywhere else, there would have been scope for such https://hcservices.ecourts.gov.in/hcservices/ restrictive interpretation. Furthermore, the Rule has beenconsistent in giving discretion to the Designated Authority fornearly 11 years from 1999 to 2010 and the Government having realizedthe difficulty has also reverted back to the period between 1999 to2010 by taking away the term "only" and therefore it is patentlyclear that the intent of the law-makers is not to restrict thediscretionary power of the Designated Authority so as to takecognizance of the application regarding anti-dumping.51. The word "only" under Rule 2(b) of the Rules need not beconcentrated much and in our view it has no significance as such. Infact, under similar circumstance, a Full Bench of the Supreme Courtin Grasim Industries Ltd. v. Collector of Customs, (2002) 4 SCC 297has held while construing the terms "similar" and "other" or "and thelike" based on the principle of ejusdem generis, that there is nopurpose in concentrating on one word while interpreting thelegislature, as follows:"10. No words or expressions used in any statute can besaid to be redundant or superfluous. In matters ofinterpretation one should not concentrate too much on oneword and pay too little attention to other words. Noprovision in the statute and no word in any section canbe construed in isolation. Every provision and every wordmust be looked at generally and in the context in whichit is used. It is said that every statute is an edict ofthe legislature. The elementary principle of interpretingany word while considering a statute is to gather themens or sentential legis of the legislature. Where thewords are clear and there is no obscurity, and there isno ambiguity and the intention of the legislature isclearly conveyed, there is no scope for the Court to takeupon itself the task of amending or alternating thestatutory provisions. Wherever the language is clear theintention of the legislature is to be gathered from thelanguage used. While doing so what has been said in thestatute as also what has not been said has to be noted.The construction which requires for its support additionor substitution of words or which results in rejection ofwords has to be avoided. As stated by the Privy Councilin Crawford v. Spooner (1846) 6 Moore PC 1 "we cannot aidthe Legislature's defective phrasing of an Act, we cannotadd or mend and, by construction make up deficiencieswhich are left there". In case of an ordinary word thereshould be no attempt to substitute or paraphrase ofgeneral application. Attention should be confined to whatis necessary for deciding the particular case. Thisprinciple is too well settled and reference to fewdecisions of this Court would suffice. [See: GwaliorRayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested https://hcservices.ecourts.gov.in/hcservices/ Forests, AIR 1990 SC 1747, Union of India and Anr. v.Deoki Nandan Aggarwal , AIR 1992 SC 96, Institute ofChartered Accountants of India v. Price Waterhouse andAnr., (1997) 6 SCC 312 and Harbhajan Singh v. PressCouncil of India and Ors., (2002) 3 SCC 722."52. Moreover, it is well settled law that while interpreting astatute the basic principle of literal rule of interpretation has tobe followed, as it was observed by the Supreme Court in B.Premanandv. Mohan Koikal, (2011) 4 SCC 266. The relevant portion of the saiddecision is as follows:"9. It may be mentioned in this connection that the firstand foremost principle of interpretation of a statute inevery system of interpretation is the literal rule ofinterpretation. The other rules of interpretation e.g.the mischief rule, purposive interpretation etc. can onlybe resorted to when the plain words of a statute areambiguous or lead to no intelligible results or if readliterally would nullify the very object of the statute.Where the words of a statute are absolutely clear andunambiguous, recourse cannot be had to the principles ofinterpretation other than the literal rule, vide SwedishMatch AB v. Securities and Exchange Board, AIR 2004 SC4219."In the said judgment, the Supreme Court has also referred to anearlier judgment in Gurudevdatta VKSSS Maryadit v. State ofMaharashtra, (2001) 4 SCC 534 with approval in paragraph (23), whichis as follows:"23. In Gurudevdatta VKSSS Maryadit v. State ofMaharashtra, AIR 2001 SC 1980, this Court observed:"It is a cardinal principle of interpretation ofstatute that the words of a statute must be understoodin their natural, ordinary or popular sense andconstrued according to their grammatical meaning,unless such construction leads to some absurdity orunless there is something in the context or in theobject of the statute to suggest to the contrary. Thegolden rule is that the words of a statute must primafacie be given their ordinary meaning. It is yetanother rule of construction that when the words ofthe statute are clear, plain and unambiguous, then theCourts are bound to give effect to that meaning,irrespective of the consequences. It is said that thewords themselves best declare the intention of thelaw-giver. The Courts are adhered to the principlethat efforts should be made to give meaning to eachand every word used by the legislature and it is not a https://hcservices.ecourts.gov.in/hcservices/ sound principle of construction to brush aside wordsin a statute as being inapposite surpluses, if theycan have a proper application in circumstancesconceivable within the contemplation of the statute."The same view has been taken by this Court in S. Mehta v.State of Maharashtra, (2001) 8 SCC 257 and PatangraoKaddam v. Prithviraj Sajirao Yadav Deshmugh, AIR 2001 SC1121."53. The law is not 'a brooding omnipotence in the sky' but apragmatic instrument of social order, as was opined by the LargerBench of the Apex Court in Carew & Co. Ltd. v. Union of India,(1975) 2 SCC 791. It was further held in that case that if thelanguage of the statute does not admit of the construction sought,wishful thinking is no substitute for that, thereby holding thatpurposive interpretation is always progressive in nature.54. While construing a statute the object has to be taken intoconsideration, as held by the Supreme Court in District MiningOfficer v. Tata Iron and Steel Co., (2001) 7 SCC 358 and the purposeof interpretation by the Court was held to be only to expound the lawand not to legislate.55. The golden rule of grammatical construction was laid down bythe Supreme Court in one of its earliest judgments in MahadeolalKanodia v. The Administrator-General of West Bengal, AIR 1960 SC 936as follows:"8. The principles that have to be applied forinterpretation of statutory provisions of this nature arewell-established. The first of these is that statutoryprovisions creating substantive rights or taking awaysubstantive rights are ordinarily prospective; they areretrospective only if by express words or by necessaryimplication the Legislature has made them retrospective;and the retrospective operation will be limited only tothe extent to which it has been so made by express words,or by necessary implication. The second rule is that theintention of the Legislature has always to be gatheredfrom the words used by it, giving to the words theirplain, normal, grammatical meaning. The third rule isthat if in any legislation, the general object of whichis to benefit a particular class of persons, anyprovision is ambiguous so that it is capable of twomeanings, one which would preserve the benefit andanother which would take it away, the meaning whichpreserves it should be adopted. The fourth rule is thatif the strict grammatical interpretation gives rise to anabsurdity or inconsistency such interpretation should be https://hcservices.ecourts.gov.in/hcservices/ discarded and an interpretation which will give effect tothe purpose the Legislature may reasonably be consideredto have had will be put on the words, if necessary, evenby modification of the language used. 9. In applying these principles to the interpretation ofs. 1(2), it is necessary first to consider a contentionthat has been raised by Mr. Pathak on behalf of theappellant that the phrase "as amended by this Act"qualifies the word "provisions". If this be correct, themeaning of the proviso will be that only those provisionsof the Act which have been amended by the Act shall applyand be deemed to have applied always to pendingproceedings. This will become meaningless, the argumentcontinues, if the word "amended" is interpreted toinclude omissions. For it makes no sense to say that aprovision which has been omitted shall apply. So, it isargued, the word "amended" should be interpreted to meanonly amendment by additions or alterations and not anamendment by omissions. The result of the proviso, theappellant's counsel contends, is to make applicable topending proceedings the altered provisions in place ofold provisions but to say nothing as regards suchprovisions which have been omitted. 10. We are unable to see how it is possible, unless rulesof grammar are totally disregarded to read the words "asamended by this Act" as to qualify the word "provisions".If ordinary grammatical rules are applied there is noescape from the conclusion that the adjectival phrase "asamended by this Act" qualifies the proximate substantive,viz., the Calcutta Thika Tenancy Act, 1949. There is noescape from the conclusion therefore that what theLegislature was saying by this was nothing more or lessthan that the provisions of the amended Thika Tenancy Actshall apply."56. A contrary interpretation taken by the learned Judge in theimpugned order in this regard, in our considered view, is not onlyincorrect, but also against the very aim of the Rule, which isintended to prevent anti-dumping to this country, in order to avoidcompetition in the internal market by the foreign importers who dumptheir goods for a lesser price, which will certainly paralyze theeconomy of the country in the course of time. In fact, the basis forinternational agreement is to have economic sovereignty of the membercountries. While so, the restrictive interpretation given by thelearned Judge taking away the discretionary power of the DesignatedAuthority cannot be said to be in accordance with Section 9A of theAct as well as the various provisions of the Rules. https://hcservices.ecourts.gov.in/hcservices/

57. While it is true that the international agreements like WTOand GATT may not be the absolute and only source for interpreting theIndian Law, so long as there is no contradiction between thedefinition of the agreement in the international law and the terms ofthe Indian Law, there is absolutely no prohibition for this Court totake note of the terms of the international agreements for thepurpose of better appreciation of the term.58. We, therefore, hold that the term "domestic industry", as itwas amended on 27.2.2010, has not taken away the discretionary powerof the Designated Authority and the Designated Authority is entitledto proceed further.Point – (iii) 59. Insofar as it relates to the third issue about themaintainability of the application by M/s.DCW Limited, which is alsoa member of the Alkali Manufacturers Association of India, it is notin dispute that it is a domestic producer and that its totalproduction is only 4%. It is also not in dispute that M/s.DCWLimited is the only producer of the article. It was in thosecircumstances, considering that M/s.DCW Limited comes under the maindefinition of the domestic producer, while construing the totalproduction, the Designated Authority has come to a conclusion thatsince it was the only producer, 4% production should be treated as100% and thereby, entertained the application. It was alsochallenging the same, the writ petition was filed by Saint GobainGlass India Limited.60. The learned Judge while agreeing with the view of theDesignated Authority, has construed the definition of domesticindustry defined under Rule 2(b) of the Rules along with Rule 5(3) ofthe Rules proviso, and has held that in the context that M/s.DCWLimited was the only producer of Soda Ash in India, 4% productionshould be construed as 100% and, therefore, directed the DesignatedAuthority to proceed with the enquiry.61. As elicited above, under Rule 5(3)(a) proviso, there is aprohibition against the Designated Authority not to investigate whenthe domestic producers expressly supporting the application accountfor less than 25% of the total production of the like article by thedomestic industry. But under the first portion of the term "domesticindustry" defined under Rule 2(b) of the Rules, elicited above, it isvery clear that the collective output of the entire manufacture puttogether totally must constitute the major proportion of the totaldomestic production. While so, on the admitted fact that M/s.DCWLimited is the only producer of Soda Ash in the country, even thoughit has produced only 4%, by a combined reading of Rule 2(b) and Rule5(3) proviso, M/s.DCW Limited must be considered as a domesticindustry, as correctly found by the learned Judge, and thereby thesaid industry is entitled to maintain the application for https://hcservices.ecourts.gov.in/hcservices/ investigation under the Rules.62. Under such circumstances, we hold as under:(i)the writ petition against the preliminary findingpublished by the Designated Authority is maintainable,especially when the writ petitioner has chosen to raisethe point of jurisdiction;(ii)the term "domestic industry", as it was amended on27.2.2010, has not taken away the discretionary powerof the Designated Authority and the DesignatedAuthority is entitled to proceed further; and(iii)M/s.DCW Limited is entitled to maintain theapplication for investigation under the Rules.63. In the result, W.A.Nos.193, 194, 189 and 195 of 2012 areallowed and W.A.No.307 of 2012 is dismissed. No costs.Consequently, M.P.Nos.1 and 2 of 2012 in W.A.No.193 of 2012,M.P.Nos.1 and 2 of 2012 in W.A.No.194 of 2012, and M.P.No.1 of 2012in W.A.No.189 of 2012 are closed. We have also no hesitation to hold that the dismissal of theearlier writ petition filed by the writ petitioner in W.P.No.4602 of2011 due to the reason that subsequent notification has come intoexistence cannot be said to be incorrect and in that regard, we agreewith the learned Judge. Accordingly, W.A.No.337 of 2012 isdismissed. No costs. Sd/ Asst.Registrar //True Copy// Sub.Asst.RegistrarsasiTo:1. The Secretary Ministry of Finance Department of Revenue Union of India North Block, New Delhi – 110 001.2. The Directorate General of Anti-Dumping and Allied Duties, having their address at Ministry of Commerce & Industry Udyog Bhavan, New Delhi. https://hcservices.ecourts.gov.in/hcservices/

3. The Commissioner of Customs Chennai Customs House Chennai, Tamil Nadu.2 cc to Mr.Karthik Sundaram , Advocate, Sr.No.291773 cc to M/s.Shivakumar & Sureshd, Advocate, Sr.No.292101 cc to Mr. S.Venkatesan, Advocate, Sr.No.294031 cc to Mr.Satish Parasaran , Advocate, Sr.No.289221 cc to Mr.R.Maheswari , Advocate, Sr.No.26267W.A.Nos.193, 194, 189,195, 307 and 337 of 2012ad,tm, sp(co)pmk.2.5.2012