Point of Law : Determination of the non- injurious price is based upon input parameters which are in terms of INR as per the principles to ADR 1995, any such change in the absolute value of the non-injurious price in terms of INR due to change in exchange rate, would also have effect of a deemed change in input parameters for determining the non-injurious price.

JUDGEMENT :

Heard Dr. Ashok Saraf, learned senior counsel for the review petitioner. Also heard Ms. Madhavi Divan, learned senior counsel and Additional Solicitor General of India for the respondents No.1 and 2 being the Finance Department, Government of India as well as the respondent No.3 being the Director General of Anti Dumping Duties (DGAD) and Mr. Pragyan Sharma learned counsel for the intervener, Gujrat State Fertilizers and Chemicals Limited. Also heard MR. SC Keyal, learned counsel.

2. The review petition is instituted in respect of the discussions and conclusions arrived at in the judgment and order dated 26.08.2019 in WP(C)No.6568/2017 in paragraphs 149 to 163 of the judgment as regards the concept ‘domestic industry’ as defined in Rule 2(b) of the Anti Dumping Rules 1995 (in short ADR 1995), and the discussions and conclusions in paragraphs 164 and 165 of the judgment as regards as to whether the evaluation of the non-injurious price in terms of the United States Dollar (for short, the USD) at the exchange rate as it prevailed in the year 2012 would be acceptable in law or it should be determined in terms of Indian Rupees (INR).

3. Dr. Ashok Saraf learned senior counsel for the review petitioner at the outset urges upon that although the review had been instituted on several grounds as stated in the review petition, but only two grounds are being insisted upon for the purpose of hearing of this petition. The first ground urged upon is that even after the successive amendments to the definition of ‘domestic industry’ under Rule 2(b) of the ADR 1995 it is clear enough to understand that an importer of the like article is expressly excluded from the purview of being included in the definition of ‘domestic industry’.

The second ground urged upon is that the non-injurious price would have to be determined in terms of INR and not USD and therefore, the said issue also requires a determination rather than keeping it open for the authorities to decide.

4. By referring to the provisions of Rule 2(b) of the ADR 1995 the learned senior counsel has raised the contention that the definition of ‘domestic industry’ as provided under Rule 2(b) is clear enough to understand that an importer of the like article is expressly excluded from the purview of being included as a domestic producer and, therefore, there cannot remain any discretion upon the authorities to allow any person who is so excluded to be also included within the definition of ‘domestic industry’ as defined under Rule 2(b). From such point of view, there is an error apparent on the face of the record in the judgment and order dated 26.08.2019 in WP(C)6568/2017, wherein, by taking the same view as the Madras High Court in Nirma Limited Vs. Saint Gobain Glass India Limited and Others reported in (2012) SCC Online Mad 1751, the designated authority was allowed the discretion to arrive at its conclusion as to whether the intervener Gujrat State Fertilizers and Chemicals Ltd (for short, GSFC), in the facts and circumstances of the present case, can also be construed to be a ‘domestic industry’ although admittedly certain percentage of their requirement of melanin is imported by them.

5. The other ground urged upon by Dr. Saraf, learned senior counsel for the review petitioner for the purpose of the present review is on the question as to whether the ‘non-injurious price’ can be determined in terms of USD inasmuch as, ‘non-injurious price’ is specific to a domestic industry which is to be computed in INR and, therefore, cannot be determined in terms of USD. According to the learned senior counsel, ‘non-injurious price’ has to be in INR although the ‘export price’ and the ‘normal value’ has to be in the exporters currency, but, may be converted to INR by applying the exchange rate prevailing as on the date of the transaction i.e., the date of entry into India. The learned senior counsel further contends that the decision of the Court in the judgment and order dated 26.08.2019 in