Following a judgment issued by the Gauhati High Court on 26 August 2019, the petitioner, Century Plyboard Limited, aggrieved by the result, filed a review petition before the Court regarding whether:
- a domestic industry that is also involved in import would continue to remain a domestic industry within the definition of a "domestic industry" under rule 2(b) of Indian Anti-Dumping Rules; and
- the non-injurious price should be calculated in US dollars or only in Indian rupees.
On 6 April 2022, the Court delivered a judgment on the above issues and held the following.(1)
Regarding the issue of whether producers related to the exporter or importer of the dumped articles are excluded from the definition of "domestic industry", the Court took into consideration the various amendments made to the definition of "domestic industry" under rule 2(b) of the Anti-Dumping Rules, particularly regarding the discretionary power of the designated authority to include or exclude such producers. The Court observed that the amendment relating to the definition of "domestic industry" (introduced through the notification dated 1 December 2011 in rule 2(b) of the Anti-Dumping Rules 1995 by removing the word "only", which followed the term "rest of the producers") affords a discretion to the authorities to include in the concept of "domestic industry" the producers related to the exporters or importers of the dumped article, or producers who are themselves importers. The Court further observed that such discretion may not be an absolute discretion but would be a circumstantial discretion to be determined on a case-by-case basis.
With regard to the issue of whether a non-injurious price should be determined in Indian rupees or US dollars, the Court observed that it is not inappropriate that the Directorate General of Trade Remedies (DGTR) should take the non-injurious price in US dollars. The Court held that the input parameters in respect of the domestic producers are calculated and maintained in Indian rupees, and, therefore, that it would only be appropriate to determine the non-injurious price in Indian rupees and then convert it into US dollars. Further, the Court observed that, if the non-injurious price were determined in US dollars, the fluctuations in the exchange rate would impact the non-injurious price in its absolute value in Indian rupees.
This decision confirms the discretionary power of the designated authority to include or exclude a domestic producer that is related to the exporter or importer of the dumped articles within the scope of the definition of "domestic industry" on a case-by-case basis. Further, the non-injurious price must be determined in Indian rupees and then be converted into US dollars; the DGTR should first determine the non-injurious price in Indian rupees and then convert it into US dollars.
For further information on this topic please contact Rajesh Sharma or Kalpesh Gupta at TPM Solicitors & Consultants by telephone (+91 11 4989 2200) or email ([email protected] or [email protected]). The TPM Solicitors & Consultants' website can be accessed at www.tpm.in.