TaxTMI 
TaxTMI 
2016 (10) TMI 380
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....ions of the Customs Tariff Act, 1975 (in short "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"), the Delhi High Court had allowed the writ petition mainly by following the judgment of this Court in the case of Reliance Industries Ltd. v. Designated Authority & Others (2006) 10 SCC 368 and also by following interpretation of Section 9-A(5) given in Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary. (2006) 4 SCC 303 At the instance of counsel for the petitioners in that case, in paragraph 5 of that judgment, the Division Bench recorded its views that Reliance Industries case needed a fresh look and two questions needed to be dealt with by a larger Bench. Since the first question, as per submissions of all the parties is no longer relevant on account of subsequent amendment of the Act, we take note of only the other relevant question requiring answer by this Bench. The question reads thus: "Whether the interpretation placed upon Rule 7 of the Rules is correct insofar as it diminishes the rule of confidentialit....
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.... 7 and other relevant rules in their correct perspective, we have been taken through Sections 9A, 9B and particularly sub-section (2) of Section 9B of the Act. Section 9A clarifies as to when an article exported from any country or territory to India at less than its normal value may be subjected to an anti-dumping duty not exceeding the margin of dumping in relation to such article. By the aid of explanation, margin of dumping has been clarified as the difference between the export price and the normal value of an article. The meaning of export price and normal value require some factual investigation to find out whether dumping has taken place or not and if yes, what is the margin of dumping. Therefore, sub-section (6) of Section 9A not only authorizes the Central Government to ascertain and determine after necessary enquiry, the margin of dumping but also empowers it to make rules for identifying articles liable for anti-dumping duty and for the manner in which the export price, the normal value and the margin of dumping in relation to such articles need to be determined as well as for the assessment and collection of such anti-dumping duty. Section 9B (1) states the circumstanc....
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....re to do so shall not be prejudicial to that party's case. Interested parties shall also have the right, on justification, to present other information orally. 6.3 XXXXXXXXXXXX 6.4 The authorities shall whenever practicable provide timely opportunities for all interested parties to sell all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information. 6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 6.5.1 The authorities shall require interested parties providing confidential inform....
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....ng is also to be made available to all concerned as noted above. The DA has power to issue a notice calling for any information in the specified form from the exporters, foreign producers and other interested parties within a time bound schedule. The DA is required to provide opportunity of furnishing relevant information even to the industrial users of the article under investigation and to representative consumer organizations (in appropriate cases). Rule 6 (7) obligates the DA to "make available the evidence presented to it by one interested party to the other interested parties, participating in the investigation." Rule 7 is as follows: "Rule 7. Confidential information - (1) Notwithstanding anything contained in sub-rules (2), (3) and (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) of rule 15 and sub-rule (4) of rule 17, the copies of applications received under sub-rule (1) of rule 5, or any other information provided to the designated authority on a confidential basis by any party in the course of investigation, shall, upon the designated authority being satisfied as to its confidentiality, be treated as such by it and no such information shall be disclosed to any oth....
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....rned senior advocate for the Union of India has based his criticism of the judgment in Reliance Industries on the basis of observations in paragraph 43 of that judgment, the same is reproduced hereinbelow: "43. In our opinion, Rule 7 does not contemplate any right in the DA to claim confidentiality, Rule 7 specifically provides that the right of confidentiality is restricted to the party who has supplied the information, and that party has also to satisfy the DA that the matter is really confidential. Nowhere in the rule has it been provided that the DA has the right to claim confidentiality, particularly regarding information which pertains to the party which has supplied the same. In the present case, the DA failed to provide the detailed costing information to the appellant on the basis of which it computed NIP, even though the appellant was the sole producer of the product under consideration, in the country. In our opinion this was clearly illegal, and not contemplated by Rule 7." 10. Elaborating his points further, learned senior counsel for the Union of India submitted that the very opening sentence of above quoted para 43 lays down an incorrect proposition of law that Ru....
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.... revealed it would give significant advantage to a competitor or would have significant adverse effect upon the person supplying the information or his resource person from whom he acquired the information. The submission that DA is entitled to presume such effects without any claim being made by the party supplying the information is, however, not acceptable for reasons more than one. The examples are clearly meant to be only a guiding factor for the DA who cannot by exercise of discretion presume confidentiality and thereby restrict the rights of the interested parties to see relevant informations that may be used by the DA for the investigation. The DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of Rule 7 and to claim as well as accept on information to be confidential. 12. The other reason is provision of appeal under Section 9C of the Act. The appeal provided is 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. It is one thing to use confidential information for the purpose of investigation on account of statutory pro....
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....aragraphs of the judgment in the case of Reliance Industries to submit that the said judgment was rendered in an entirely different context which did not involve detailed discussion of Rule 7. On the basis of para 23 of the judgment it was shown that the two main issues falling for determination were - (1) the correct principles for determination of Non Injurious Price (NIP) of PTA, and (2) the scope of Rule 7 of the Rules. Referring to para 37 of the judgment, he pointed out that the Court had directed for revising NIP by taking the market price of electricity and the actual capacity utilisation during the period of investigation. Since the DA in that case had refused to disclose its findings even to the person who had supplied the information leading to such findings, the court observed thus : "Further, the DA should be directed not to misuse Rule 7, by keeping confidential its findings and that too from the person who has supplied the information to it." In para 39 it was held that the proceedings before the DA are quasi judicial. Then came a reiteration in para 41 in the following words : "41. The DA claimed confidentiality from the appellant about its finding on the data sup....
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....onfidential merely on a party asking that it be treated confidential. In our view, that is not the purport of Rule 7. Under Rule 7, the Designated Authority has to be satisfied as to the confidentiality of that material. Even if the material is confidential the Designated Authority has to ask the parties providing information, on confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarization is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases there is need for confidentiality as otherwise trade competitors would obtain confidential information, which they cannot otherwise get. But whether information supplied is required to....
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....arded the past practice of disclosing such details, especially when SanDisk was prepared for deletion of names of exporters and importers from the import data obtained by the DA. 19. Mr. V. Lakshmikumaran has in his written notes given two instances, one of 2007 and another of 2014 where the DA had disclosed the DGCI&S import data to exporters and importers and had called for comments. According to him DGCI&S had not claimed confidentiality in such matters for good reasons because the concerned Director General of Commercial Intelligence and Statistics under the Ministry of Commerce, Government of India is covered under Right to Information Act and its data is therefore part of official record and lies in public domain. According to him DA is a quasi-judicial authority who must keep in mind that Rule 7 is an exception to rules of natural justice and hence DA can accept a claim of confidentiality only when it is raised by the information provider and such claim is found acceptable after due scrutiny. 20. Since we are not entering into arena of facts for deciding individual cases, it is not relevant to go deeper into the facts highlighted on behalf of M/s SanDisk International Limi....
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....ill be useful to remember that when two competing public interests are involved, like in the present case, one is to supply all relevant informations to the parties concerned and the other not to disclose informations which are held to be confidential, the proper course of action would be to lean in favour of the construction "that is least restrictive of individual's rights", as propounded in Inland Revenue Commissioner v. Rossminster Ltd. (1980) 1 All ER 80 . However, in our view, as already indicated, there are no ambiguities in Rule 7 to require departure from the rule of Literal Construction. 23. Mr. Lakshmikumaran also referred to judgment in the case of Reliance Industries to point out that main issue in that case was decided in favour of Reliance Industries in paragraphs 35, 36 & 37 holding that the Non-Injurious Price (NIP) had been determined wrongly and therefore needed to be revised by taking the market price of electricity and the actual capacity utilization during the period of investigation. Thereafter the Court simply condemned the approach of the DA in not disclosing even the reasons for its erroneous decision to reduce the cost price of electricity supplied by th....