The petitioner, Century Plyboard Limited, aggrieved by the judgment issued by the Hon’ble Gauhati High Court on 26th April 2019, filed a review petition before the Hon’ble Gauhati Court on the following questions of law:
- Whether producers related to the exporter or importer of the dumped articles are excluded from the definition of ‘Domestic Industry’.
- Whether non injurious price is to be determined in terms of INR or USD.
A single judge bench of the Gauhati High Court comprising of Justice Achintya Malla Bujor Baruo delivered a judgment on 6th April 2022 on the aforementioned issues raised by the petitioner and allowed the review.
With regards the issue of whether producers related to the exporter or importer or are themselves importers 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 the ‘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 vide Notification No. 86/2011 dated 01.12.2011, the word “only” after the expression of “rest of the producers” was done away with. However, while the 2011 amendment provides a discretion on the Authority to include or exclude such producers, such discretion is not absolute and is dependent upon the facts and circumstances of each case.
With regards the issue of whether non injurious price is to be determined in terms of INR or USD, the Court observed that since the input parameters in respect of the domestic producers are calculated and maintained in INR, it would only be appropriate to determine the non-injurious price in INR and convert the same into USD using the exchange rate prevailing at the time of determining the amount of anti-dumping duty that may be levied. Further, the Court also observed that, if the non-injurious price is to be determined in USD, the fluctuations in the exchange rate would impact the non-injurious price in its absolute value in terms of INR.