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TMI Blog2012 (10) TMI 832X X X X Extracts X X X X X X X X Extracts X X X X ..... d writ petitioner has challenged a notification dated 2-9-2011 issued by the Directorate General of Anti-dumping and Allied Duties, New Delhi, who has been arrayed as third respondent in W.A. Nos. 193, 194 and 189 of 2012, second respondent in W.A. Nos. 307 and 337 of 2012 and has filed W.A. No. 195 of 2012. 2.2 Under the notification which was originally challenged, the appellant in W.A. No. 195 of 2012, namely the Directorate General of Anti-dumping and Allied Duties, New Delhi - the Designated Authority, has given a preliminary finding in respect of investigation regarding the import of Soda Ash originating in or exported from China PR, European Union, Kenya, Iran, Pakistan, Ukraine and USA. The said notification was issued based on the Customs Tariff Act, 1975 (for brevity, "the Act") and the Customs Tariff (Identification, Assessment and Collection of Anti-dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for brevity, "the Rules"). 2.3 The Designated Authority has considered the application of Alkali Manufacturers Association of India (for 5th respondent in W.As. 193 and 194 of 2012, Appellant in W.A. 189 of 2012, and 4th respondent in W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant companies to be treated as "domestic industry", with reference to an order passed by the Delhi High Court, wherein the Delhi High Court has held that the Authority concerned would also decide about the jurisdictional issue within a stipulated time. The Designated Authority has also relied upon another interim order passed by this Court on 29-4-2011, wherein this Court while modifying its earlier order dated 25-2-2011, has directed the Designated Authority to proceed with the investigation and pass orders on the jurisdictional aspects separately. 2.7 It was pursuant to the same, the Designated Authority has conducted an enquiry and heard the submissions made by the interested parties and also the domestic industry. Number of interested parties have also contested before the Designated Authority the standing of the applicant to file such application. The Designated Authority while considering as to whether the applicant companies have constituted "domestic industry" within the meaning of the Rules, has also taken note of Rule 5(3) of the Rules which states that the Designated Authority shall not initiate investigation pursuant to an application unless it determines on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was an amendment by giving discretion to the Designated Authority regarding the inclusion of the producers who are related to the exporters or importers of the alleged dumped articles. The Designated Authority under the impugned notification has 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 of the rest of the producers, the word "only" was used. 2.10 The Designated Authority, while construing the changes which have taken place under the impugned notification, has taken note of the situation that some domestic producers may not support an anti-dumping application because they themselves are importing the product, or they are related to an importer or exporter of the product and such conduct would result in eliminating competition through unfair practice of dumping and, therefore, vesting of such discretion with the Designated Authority could exclude such related entities, who may seek to thwart an attempt by the remaining domestic producers to seek redressal of injury caused to them on account of dumping by filing an anti-dumping applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assumption that anti-dumping duties are likely to be recommended by the Designated Authority and the clearance of goods will be possible only after complying with such direction regarding the payment of anti-dumping duties on Soda Ash. 3.2 The case of the writ petitioner was that Alkali Manufacturers Association of India (For 5th respondent in W.As. 193 and 194 of 2012, Appellant in W.A. 189 of 2012, and 4th respondent in W.As. 195, 307 and 337 of 2012) has filed an application for and on behalf of M/s. GHCL Limited, M/s. DCW, M/s. Nirma and M/s. Saurashtra Chemicals Limited (SCL), who are all producers of Soda Ash in India, seeking initiation of anti-dumping investigation on import of Soda Ash by the writ petitioner. 3.3 It was also the case of the writ petitioner that Nirma Limited has itself imported alleged dumped article from U.S.A. and is related to a supplier in U.S.A; that SCL is related to an importer of alleged dumped article, namely Nirma Limited; GHCL is related to exporter of alleged dumped article from Romania; Tata Chemicals has related producers in Kenya, U.S. and Europe; and DCW Limited accounting for 4.28% of total domestic production is neither re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was the case of Alkali Manufacturers Association of India that when the preliminary investigation has shown that material injury to the domestic industry has been caused due to dumped imports of the subject goods from the subject countries, any delay in imposition of duties will defeat the very purpose of preliminary investigation; that even after the interim duties are imposed eventually if the Designated Authority comes to a conclusion that the duties are not liable to be imposed, the writ petitioner is entitled to refund as per the express provisions of the Act; and that the finding of the preliminary investigation is not binding on the Government and is only preliminary in nature and, therefore, the writ petition is not maintainable. 4.3 Insofar as it relates to the term "domestic industry" as defined under Rule 2(b) of the Rules, the source for such definition is WTO Agreement on Anti-dumping, to which India was a party and it was in accordance with the term used in the WTO Agreement, the definition has been made. The 2010 amendment was brought in with the sole intention to align the Indian Law with the WTO provisions, as explained in the explanatory notes to the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o filed W.A. No. 189 of 2012 in respect of the finding given by the learned Judge under the impugned order regarding the term "domestic industry" by taking away the discretion of the Designated Authority. 9. The Designated Authority has also filed W.A. No. 195 of 2012 on the ground that the word "domestic industry" under Rule 2(b) of the Rules has to be read in accordance with the WTO Agreement as well as GATT, being its main source, and therefore, the finding of the learned Judge that M/s. GHCL, M/s. Nirma Limited and M/s. SCL have minimum imports and hence are not eligible to be treated as a domestic industry cannot be accepted and the discretion of the Designated Authority is totally taken away, which is against the very idea of the said Rule. 10. Similarly, the writ petitioner has filed W.A. No. 307 of 2012 challenging the portion of the impugned order of the learned Judge whereby the learned Judge even though has found that M/s. DCW Limited, which forms part of Alkali Manufacturers Association of India, has the production capacity of 4%, has held that it is deemed to have constituted 100% by construing Rule 5(3) proviso along with the definition of "domestic indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y such word a restriction on the discretion of the Designated Authority has been imposed, and the subsequent deletion of the said word "only" itself on 1-12-2011, it is his submission that the intention has been consistently to give discretion to the Designated Authority. 12.4 He would also submit that as per the Rules framed in accordance with Section 9A and 9B of the Act, Rule 4 of the Rules while contemplating the duty of the Designated Authority, has only directed the Designated Authority to submit his findings, provisional or otherwise to the Central Government or to recommend the Central Government about the amount of anti-dumping duty and even for initiation of investigation by the Designated Authority, as contemplated under Rule 5(2) of the Rules, the application filed shall be supported by evidence regarding dumping, injury and casual link between the dumped imports and alleged injury. The Rules also contemplate a suo motu power on the part of the Designated Authority when it obtains sufficient evidence from any other source by way of information to initiate investigation. It is under Rule 12 of the Rules, the Designated Authority after conducting enquiry and on dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only shows that the intention is to make the Rules in accordance with and in order to implement the Treaty, which is the international obligation of 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 and that would be improper and incorrect interpretation of the Rule. According to him, even otherwise the term "only" brought in the amendment of the year 2010 cannot have any retrospective effect. 12.8 He would submit that the intention of the amendment was only to bring it in consonance with WTO Anti-dumping Agreement by referring to a communication of the Commerce Secretary, Government of India dated 12-10-2011, wherein he has clearly stated that when originally the term "domestic industry" used the word "shall" thereby totally taking away the discretionary power of the Designated Authority, which has subsequently become "may" and therefore the subsequent amendment in addition to "may" if adds the word "only" that cannot be construed restrictively, especially when in the subsequent amendment brought in with effect from 1-12-2011, the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in the preliminary stage and it was subsequently after making hearings as per the provisions of the Rules, preliminary finding has been given by the Designated Authority holding that the Designated Authority as per Rule 2(b) of the Rules is vested with discretion to exclude or include any domestic manager, rejecting the points raised by the writ petitioner that the term "only" imported in the amendment of the year 2010 to the word "domestic industry" will not take away the discretion. 13.2 He would state that prior to 15-7-1999 there was no discretion to the Designated Authority and that was vested on 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 be said to qualify the term "may" and this being a delegated legislation the term must be construed by keeping in mind the very object of the Rules which is based on the WTO Agreement. 13.3 By relying upon the decision in Reliance Industries Limited v. Designated Authority, 2006 (202) E.L.T. 23, the learned Senior Counsel would submit that the Designated Authority must be informed with all particulars like dumping cost, injury, etc., so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... retion, for which he has relied upon the decision in Chief Controlling Revenue Authority v. Maharashtra Sugar Mill Ltd., AIR 1950 SC 218. He would also submit that the Act being a remedial legislation, the definition cannot be imported or borrowed from the Customs Act. 15.1 It is the contention of Mr. M. Ravindran, Additional Solicitor General of India appearing for the Designated Authority, Directorate General of Anti-dumping and Allied Duties, Ministry of Commerce & Industry-appellant in W.A. No. 195 of 2012 that the writ petition is not maintainable and the same is premature. He would rely upon the decision in Designated Authority (Anti-dumping Directorate) v. Haldor Topsoe A/S, (2000) 6 SCC 626 = 2000 (120) E.L.T. 11 (S.C.). 15.2 It is his submission that while in the period between 1947 to 1994 heavy industries were with the Government, due to the economic development, multi-national companies have been allowed by the Government. The World Trade Organization, to which India happens to be a member, came into effect from 1994 and the concept of anti-dumping was introduced in the interest of all the member nations and, therefore, after notifying the same by the Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge has correctly construed the provision of Rule 2(b) of the Rules, an error has been committed in correlating it with Rule 5(3) of the Rules so as to accept the application of M/s. DCW Limited, which has got the output admittedly of 4% and that can never be equated to that of 100%. 17.1 Mr. Vijayanarayanan, learned Senior Counsel appearing for the writ petitioner, who has filed W.A. No. 307 of 2012 and also W.A. No. 337 of 2012 in respect of another portion of the order closing the earlier writ petition in W.P. No. 4602 of 2011, would submit that the WTO concept cannot protect the Indian market. The concept is that the market must be free and fair between the nations. To substantiate his contention that the writ petition is maintainable, he would rely upon the decision in 2011 (183) ECR 145 (SC) = 2011 (263) E.L.T. 481 (S.C.). 17.2 He would submit that inasmuch as the finding in the preliminary order by the Designated Authority is quash-judicial in nature, one cannot say that any error in the same cannot be questioned. He would rely upon the decision in Mohtesham Mohd. Ismail v. Enforcement Directorate, (2007) 8 SCC 254 = 2007 (220) E.L.T. 3 (S.C.) = 2009 (13) S.T.R. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court for entertaining a writ petition under Article 226 of the Constitution of India. In the decision rendered by the Supreme Court in Union of India v. Tantia Construction (P) Ltd., (2011) 5 SCC 697, the Supreme Court after analyzing the various decisions about the maintainability of the writ petition in the presence of an alternative remedy, has held that alternative remedy is a rule of discretion and not a matter of compulsion. The operative portion of the said decision is as follows : "33. Apart from the above, even on the question of maintainability of the writ petition on account of the arbitration clause included in the agreement between the parties, it is now well established that an alternative remedy is not an absolute bar to the invocation of the writ jurisdiction of the High Court or the Supreme Court and that without exhausting such alternative remedy, a writ petition would not be maintainable. The various decisions cited by Mr. Chakraborty would clearly indicate that the constitutional powers vested in the High Court or the Supreme Court cannot be fettered by any alternative remedy available to the authorities. Injustice, whenever and wherever it takes pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order under appeal: Provided that the Appellate Tribunal may entertain any appeal after the expiry of the said period of ninety days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. (3) The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such order thereon as it thinks fit, confirming, modifying or annulling 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 to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member." 24. It is in accordance with the powers conferred under Section 9A(6) of the Act, which confers a rule making power to the Central Government in order to ascertain and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and injury, apart from recommending to the Central Government about the amount of anti-dumping duty and the 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 further finding regarding the injury to the domestic industry with detailed information for the preliminary determination on dumping and injury and such preliminary finding is to be issued by way of a public notice by the Designated Authority, as it is seen in Rule 12 of the Rules, which is as follows : "Rule 12. Preliminary findings. - (1) The designated authority shall proceed expeditiously with the conduct of the investigation and shall, in appropriate cases, record a preliminary finding regarding export price, normal value and margin of dumping, and in respect of imports from specified countries, it shall also record a further finding regarding injury to the domestic industry and such finding shall contain sufficiently detailed information for the preliminary determinations on dumping and injury and shall refer to the matters of fact and law which hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or producers not individually examined : Provided that the Central Government shall disregard for the purpose of this sub-rule any zero margin, margins which are less than 2 per cent expressed as the percentage of export price and margins established in the circumstances detailed in sub-rule (8) of rule 6. The Central Government shall apply individual duties to imports from any exporter or producer not included in the examination who has provided the necessary information during the course of the investigation as referred to in the second proviso to sub-rule (3) of Rule 17. (3) Notwithstanding anything contained in sub-rule (1), where a domestic industry has been interpreted according to the proviso to sub-clause (b) of Rule 2, a duty shall be levied only after the exporters have been given opportunity to cease exporting at dumped prices to the area concerned or otherwise give an undertaking pursuant to rule 15 and such undertaking has not been promptly given and in such cases duty shall not be levied only on the articles of specific producers which supply the area in question. (4) If the final finding of the designated authority is negative that is contrary to the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n alternative remedy of filing appeal before CESTAT. We are not much impressed by this argument. Section 9C deals with appeal which says that an appeal against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962. Section 9A(2) of the Act states that the Central Government may, pending the determination in accordance with the provisions of this Section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty exceeds the margin as so determined. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says that the Designated Authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the domestic industry. (2) An application under sub-rule (1) shall be in the form as may be specified by the designated authority and the application shall be supported by evidence of - (a) dumping (b) injury, where applicable, and (c) where applicable, a causal link between such dumped imports and alleged injury. (3) The designated authority shall not initiate an investigation pursuant to an application made under sub-rule (1) unless - (a) it determines, on the basis of an examination of the degree of support for, or opposition to the application expressed by domestic producers of the like product, that the application has been made by or on behalf of the domestic industry: Provided that no investigation shall be initiated if domestic producers expressly supporting the application account for less than twenty five per cent of the total production of the like article by the domestic industry, and (b) it examines the accuracy and adequacy of the evidence provided in the application and satisfies itself that there is sufficient evidence regarding - (i) dumping, (ii) injury, where applicable; and (iii) where applicable, a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O Agreement, India being one of its signatory, as it was observed by the Full Bench of the Supreme Court in Haridas Exports v. All India Float Glass Manufacturers' Association, (2002) 6 SCC 600 = 2002 (145) E.L.T. 241 (S.C.). The Supreme Court while dealing with the Monopolies and Restrictive Trade Practices Act, 1969, has observed as follows: "9. It was submitted that Article 18.1 of the WTO Agreement on Implementation of Article VI of GATT, 1994, provides that "no specific action against dumping of exports from another member can be taken except in accordance with the provisions of GATT, 1994 as interpreted by this Agreement". The remedy against the practice of "dumping"/export of goods at "predatory prices" has been expressly agreed upon internationally under the General Agreement on Tariffs and Trade (GATT) to which India is a signatory. The Agreement deals with anti-dumping duties and provides mechanism to implement it. 10. In pursuance of GATT, 1994, Parliament for the first time inserted provisions Sections 9-A to 9-C in the Customs Tariff Act vide the Customs Tariff (Amendment) Act, 1995, 6 of 1995 which replaced the provisions of Sections 9, 9-A and 9-B earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich permitted anti-dumping measures as an instrument of fair competition. 13. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilize domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run." The Supreme Court, in the said case, has also held that as a nation we must aim to create India as a modern and powerful State and the industrialization must come in to put an end to the concept of "India is a rich country with poor people", as follows : "Before parting with this case, we would like to state that our national aim must be to create India as a modern, highly industrialized, powerful state. The real world today is cruel and harsh. It respects power, not poverty or weakness, and power comes from a high level of industrialization. Hence, if we wish to get respect in the comity of nations, we must make India a modern, powerful, highly industrialized state. The truth is that today India is poor. As Rajni Palme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial waters of India. But for the intervention of the officers of law, the unlawful export of silver would have been consummated. The calendestine disappearance of the sea-craft when the officers intercepted and rounded up the vehicles and the accused at the creek, reinforces the inference that the accused had deliberately attempted to export silver by sea in contravention of law. 15. It is important to bear in mind that the penal provisions with which we are concerned have been enacted to suppress the evil of smuggling precious metal out of India. Smuggling is an antisocial activity which adversely affects the public revenues, the earning of foreign exchange, the financial stability and the economy of the country. A narrow interpretation of the word "attempt" therefore, in these penal provisions which will impair their efficacy as instruments for combating this baneful activity has to be eschewed. These provisions should be construed in a manner which would suppress the mischief, promote their object, prevent then subtle evasion and foil their artful circumvention. Thus, construed, the expression "attempt" within the meaning of these penal provisions is wide enough to take i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be sufficient to cause injury to the domestic industry." 37. The international law principles, which are evolved by way of conventions and agreements, are not certainly binding on the domestic courts, but nevertheless in the march of community in the international level, even though the national courts are to follow the national laws, when it requires, the national courts are entitled to interpret the principles of international law, if there are no conflicts. That has been settled while deciding an issue under the Copyright Act, 1957 by the Supreme Court in Gramophone Co. of India Ltd. v. Birendra Bahadur Pandey, 1984 (2) SCC 534, wherein the Supreme Court has distinguished between the international law and domestic law and explained as follows : "4. Lauterpacht in International Law (General Works) refers to the position in Germany, France, Belgium and Switzerland and says it is the same. He quotes what a German court said to meet an argument that the role of customary international law conflicted with Article 24 of the German Code of Civil Procedure. The court had said, "The legislature of the German Reich did not and could not intend any violation of generally r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Parliament. Comity of nations or no, municipal law must prevail in case of conflict. National courts cannot say yes if Parliament has said no to a principle of international law. National courts will endorse international law but not if it conflicts with national law. National courts being organs of the national State and not organs of international law must perforce apply national law if international law conflicts with it. But the courts are under an obligation within legitimate limits, to so interpret the municipal statute as to avoid confrontation with the comity of nations or the well established principles of international law. But if conflict is inevitable, the latter must yield." Therefore, it is clear that in the event of absence of any contradiction, there is no bar for interpreting the terms, especially the term "domestic industry" which is the crux of the issue, from the WTO Agreement, which can be certainly the source for such interpretation without having any contradiction to the Indian Law definition. 38. Under the WTO Agreement on anti-dumping, to which India is a signatory, the term "domestic industry" was defined as follows : "4.1 For the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... themselves are the importers of the dumped products, in such event the domestic industry must be interpreted in respect of the rest of the producers who are related to the exporters or importers or are themselves importers of the dumped product. 39. As submitted by Mr. P.S. Raman, learned Senior Counsel appearing for Alkali Manufacturers Association of India, the literature from the member countries, who are parties to the WTO Agreement, would show that the community purchasers who are related to the exporters or importers are entitled to be considered by the community authority. The Book "Dumping and Subsidies" relating to the Law and Procedures Governing the Imposition of Anti-dumping and Countervailing Duties in the European Community, by Clive Stanbrook, as referred to by Mr. P.S. Raman, learned Senior Counsel, in this regard has summarized as follows : "5.1.3. Community producers who are related to exporters/importers or are importers of the product. Community producers may not wish to support a complaint because they are related to the exporters or importers, or are themselves importers of the allegedly dumped or subsidised product. In such cases it is considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment. In Paintbrushes from China, the Community Authorities' failure to exclude German producers who sold large volumes of Chinese paintbrushes, led the Advocate General to recommend the annulment of the Regulation. In that case, it would have resulted in the exclusion of the producers in the country where it was alleged the greatest injury had been caused. However, the exclusion of a company does not always work to the benefit of the defendants in anti-dumping cases. In Photocopiers from Japan, the inclusion of Rank Xerox had the effect of lowering the injury threshold level and therefore the duties that were applied. It would appear that provided that the reason for importing the product is essentially defensive, the Community Authorities will not exclude the producer. There are many cases where the Community Authorities have held that the producer was importing the allegedly offending product simply to try to defend a position in a market increasingly affected by dumping or subsidies. For example, in Copper Sulphate from Yugoslavia, the Community Authorities found that "the complainant was obliged to make these purchases in an attempt to limit the effect of injury in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at by importing products, a company has "shielded" itself from the effects of dumping. This will also be likely if it appears that producers have in some way participated in the dumping practice or unduly benefited form it. To include such companies would lead to a distorting effect or injury findings. It appears to be the Community Authorities' practice to exclude a Community producer who imports the product subject to investigation but does not cooperate because in such circumstances, the Community Authorities cannot determine whether the Community producer was acting defensively or for some other reason." 40. Of course, there is lot of other literature, as relied upon by Mr. P.S. Raman learned Senior Counsel, as Anti-dumping and other Trade Protection Laws of the EC by Kluwer Law International, which deals with "core of business" test; Anti-dumping and Countervailing Duty Handbook issued by the United States International Trade Commission, which deals with the related parties. It is significant to note that in Canada "domestic industry" is defined as follows : "'Domestic industry' means, other than for the purposes of determining injury and subject to the provision gover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in which case such producers may be deemed not to form part of domestic industry." By taking away the mandatory provision of "shall" and incorporating the word "may", the Designated Authority was vested with a discretion in respect of the producers who are related to the exporters or importers, or who are themselves importers of the dumped article, so as to treat them as domestic industry in order to make them eligible for 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 the said amendment, while retaining the term "may", the word "construed" came to replace "deemed" and the term "only" was included in the end of the definition. With the result, the definition by virtue of the said amendment regarding domestic industry under Rule 2(b) of the Rules stood as follows : "2(b) "domestic industry" means the domestic producers as a whole engaged in the manufacture of the like article and any activity connected therewith or those whose collective output of the said article constitutes a major proportion of the total domestic production of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduction of that article; and (ii) in respect of the producers who are related to the exporters or importers of the alleged domestic industry or producers who are themselves importers of the dumped articles, and a discretion has been vested with the Designated Authority to decide whether they should form part of the domestic industry. 48. In the amendment which was brought in with effect from 27-2-2010, on a reading, it is clear that the first portion of the definition of the domestic industry, which relates to the domestic producers as a whole whose collective output constitutes the major portion of the total domestic production, remains intact. Insofar as it relates to the producers who are related to the exporters or importers of the dumped article or who are themselves importers of the dumped articles, the law-makers made it very clear that while construing them as domestic industry, the Designated Authority "may be construed as referring to the rest of the producers only". 49. The term "may be construed as referring to the rest of the producers only" on a bare and literal interpretation, in our view, should be construed only in respect of the producers who are rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sentential legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the Court to take upon itself the task of amending or alternating the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner (1846) 6 Moore PC 1 "we cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". In case of an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable 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 Patangrao Kaddam v. Prithviraj Sajirao Yadav Deshmugh, AIR 2001 SC 1121." 53. The law is not 'a brooding omnipotence in the sky' but a pragmatic instrument of social order, as was opined by the Larger Bench 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 the language of the statute does not admit of the construction sought, wishful thinking is no substitute for that, thereby holding that purposive interpretation is always progressi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word "amended" is interpreted to include omissions. For it makes no sense to say that a provision which has been omitted shall apply. So, it is argued, the word "amended" should be interpreted to mean only amendment by additions or alterations and not an amendment by omissions. The result of the proviso, the appellant's counsel contends, is to make applicable to pending proceedings the altered provisions in place of old provisions but to say nothing as regards such provisions which have been omitted. 10. We are unable to see how it is possible, unless rules of grammar are totally disregarded to read the words "as amended by this Act" as to qualify the word "provisions". If ordinary grammatical rules are applied there is no escape from the conclusion that the adjectival phrase "as amended by this Act" qualifies the proximate substantive, viz., the Calcutta Thika Tenancy Act, 1949. There is no escape from the conclusion therefore that what the Legislature was saying by this was nothing more or less than that the provisions of the amended Thika Tenancy Act shall apply." 56. A contrary interpretation taken by the learned Judge in the impugned order in this regard, in ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held that in the context that M/s. DCW Limited was the only producer of Soda Ash in India, 4% production should be construed as 100% and, therefore, directed the Designated Authority to proceed with the enquiry. 61. As elicited above, under Rule 5(3)(a) proviso, there is a prohibition against the Designated Authority not to investigate when the domestic producers expressly supporting the application account for less than 25% of the total production of the like article by the domestic industry. But under the first portion of the term "domestic industry" defined under Rule 2(b) of the Rules, elicited above, it is very clear that the collective output of the entire manufacture put together totally must constitute the major proportion of the total domestic production. While so, on the admitted fact that M/s. DCW Limited is the only producer of Soda Ash in the country, even though it has produced only 4%, by a combined reading of Rule 2(b) and Rule 5(3) proviso, M/s. DCW Limited must be considered as a domestic industry, as correctly found by the learned Judge, and thereby the said industry is entitled to maintain the application for investigation under the Rules. 62. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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