AI Drafter 
TaxTMI 
TaxTMI 
2023 (3) TMI 1291
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....0980 titled Shri Arvind M. Kapoor v. The Director & CPIO, Ministry of Commerce & Industry. The CIC, by way of the impugned order, directed the Directorate General of Anti-Dumping and Allied Duties to provide the information sought by the RTI Applicant- Mr. Arvind M. Kapoor. Factual Background 3. The Petitioners in W.P.(C) 2603/2017 jointly filed an application (for clarity it is referred to as `Complaint') before the Designated Authority, Directorate General of Anti-Dumping and Allied Duties (hereinafter 'DA'). The said complaint was filed for initiating investigation qua imports of Styrine Butadine Rubber (hereinafter 'SBR') of 1500 and 1700 series originating in or exporting from European Union, Korea RP and Thailand. Pursuant to the said complaint, the DA vide notification No.14/10/2015-DGAD dated 14th January, 2016 initiated an anti-dumping investigation. 4. Almost immediately after the investigation was initiated, the RTI Applicant - Mr. Arvind M. Kapoor filed an application dated 29th January, 2016 under the Right to Information Act, 2005 (hereinafter 'RTI Act') seeking information qua seven issues in relation to initiation of anti-dumping investigation concerning im....
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....ective questions are as follows: "1. The application (Revised) was filed by M/s Indian Synethic Rubber Pvt Ltd. and Reliance Industries Ltd. on 7.12.2015. 2. Soft copy of the Non-Confidential petition is available in CD-Rom is enclosed herewith. 3. The investigation was initiated on 16.01.2016. Note sheet being confidential, cannot be provided. 4. The copy of the initiation notification was sent to the embassies/representatives of the subject countries in India on 03.02.2016 (Copy of the letter is enclosed) 5. The known exporters were intimated about the initiation of the investigation on 03.02.2016 (Copy of the letter is enclosed) 6. Yes, the initiation notification was sent to the Govt. of India Press for Gazette Notification. 7. The initiation notification was published on 16.01.2016." 7. Thus, apart from the note sheet which was sought, almost all the information sought was provided by the CPIO to the RTI Applicant. Aggrieved by the non-supply of all the information as sought in the RTI application, the Applicant preferred an appeal dated 11th April, 2016 to the First Appellate Authority. The First Appellate Auth....
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....ueried by the Commission to Sh. Rajv Arora, Additional DG(FT), as to what are the reasons for not providing the required information, against issue no. 1 & 3, to the appellant on his RTI application dated 29.01.2016. On this very aspect, it is submitted by him that he wants to claim exemption in providing the required noting portion to the appellant against second part of issue no.3. On this, the Commissioner asked him to produce the relevant File for kind perusal. At this, is submitted by Sh. Rajiv Arora, Additional DG(FT), that he has not brought the relevant file and seeks some time in this regard. Thus, the matter was kept back for four hours and taken back again at 1500 hrs for further hearing of the case accordingly. 4. At this time, Sh. Rajiv Arora, Additional DG(FT), came before the Commission with the relevant file but was not inclined to show the relevant Noting Portion (against which he wanted to claim exemption) of the file to the Commissioner. At this, Commission asked him to pin-point the Note-Sheet or the exact portion against which he wants to claim exemption. On this very aspect, Sh. Rajiv Arora, again failed to highlight any portion of the Note Sheet. Fur....
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....invoked in the matter. The Appeal is disposed of accordingly." 9. The Petitioners, i.e., the Union of India, ISRPL, and Reliance Industries Pvt. Ltd. seek quashing of the impugned order by way of the present two petitions. 10. Vide order dated 23rd September, 2016, this Court in W.P.(C) 8281/2016 passed an interim order staying the operation of the CIC's order in the following terms: Till the next date of hearing, the operation of the order dated 29.07.2016 insofar as it relates to supply of information relating to second part of issue No.3, i.e., supply of portion of the note sheet of the file pertaining to M/s. Indian Synthetic Rubber Private Limited be disclosed, is stayed. Submissions 11. Mr. Digpaul, ld. CGSC appearing for the Union of India submits that the only objection of the Petitioners is in respect of disclosure of the photocopy of the note sheet which contains confidential information of the complainants. According to Mr. Digpaul and Mr. Rajesh Sharma, ld. Counsels, the RTI Applicant is an importer of goods from various foreign countries and has participated in the enquiry and the proceedings for imposition of the anti-dumping duty before the DA. T....
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....the initiation notice itself would show that there are various figures and facts which are sensitive in nature and at the stage of initiation of investigation, it is merely the prima facie satisfaction of the DA which is required. Since under Rule 5, it is only the prima facie view which is taken by the DA, it cannot be held that the entire data has to be disclosed. Reliance is placed upon Rule 5 to argue that the DA cannot initiate investigation without examining necessary data which is filed by the complainant including the injury and the link between the dumped imports and the alleged injury. The degree of support required for the domestic industry would also have to be analyzed in a prima facie manner. 15. It is submitted by Mr. Rajesh Sharma, ld. Counsel that in the present case, the complainants had filed confidential and non-confidential versions of the complaint. If the RTI Applicant so wish to obtain the confidential information, the correct process would have been to approach the Anti-Dumping Authority. Imposition of anti-dumping duty which took place in this matter after the issuance of the public notice and receiving various other inputs from other industry players, ....
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....ential. Ld. Counsel further relies upon the judgment of the ld. Division Bench of this Court in Kesoram Ryon v. The Designated Authority [W.P(C) 146/2017, date of decision 8th November, 2017] as per which the imposition of anti-dumping duty is a two-step process i.e., that initially, there has to be a prima facie satisfaction and thereafter the issuance of public notice has to be done. He submits that the prima facie satisfaction being a satisfaction which is quasi-judicial in nature, the reasons cannot be kept away from the concerned parties. Even the final decision is always published, though in redacted form. Therefore, in a similar manner, even the prima facie decision of the DA ought to be published after redacting the sensitive data. 19. In rejoinder submissions, Mr. Ajay Digpaul, ld. CGSC has drawn the attention of the Court to paragraph 30 of judgment of the Supreme Court in Meghmani Organics (supra) to argue that the Supreme Court recognizes the position that confidential information can be a part of DA's findings as also the files which are maintained. It is his further submission that the Supreme Court also clearly holds that precautions have to be taken not to disclo....
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....oses of this Article, the margin of dumping is the price difference determined in accordance with the provisions of paragraph 1. 3. No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term "countervailing duty" shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise.* 4. No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to antidumping or countervailing duty by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such dut....
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....al injury within the meaning of paragraph 6 if it is determined by consultation among the contracting parties substantially interested in the commodity concerned that: (a) the system has also resulted in the sale of the commodity for export at a price higher than the comparable price charged for the like commodity to buyers in the domestic market, and (b) the system is so operated, either because of the effective regulation of production, or otherwise, as not to stimulate exports unduly or otherwise seriously prejudice the interests of other contracting parties." 22. Thereafter, the Agreement on Implementation of Article VI of the General Agreement of Tariffs and Trade 1994 (hereinafter 'Anti-Dumping Agreement') was agreed upon by a significant number of countries in the world. 23. The international regime dealing with anti-dumping has been considered by the Supreme Court in the judgment of Meghmani Organics Ltd. (supra). The relevant excerpt from the judgment reads as under: "The Central Government framed and notified the Rules on 1.1.1995 in exercise of powers conferred by sub-section (6) of Section 9-A and sub- section (2) of Section 9-B of the A....
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....ther interested parties, as provided for in subparagraph 1.2. 6.4 The authorities shall whenever practicable provide timely opportunities for all interested parties to see 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 information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detai....
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....the information, which could be commercially sensitive, as confidential and the same is not to be disclosed to any third party, without permission of the party providing the information. The above provisions, in fact, recognised the concept of confidential documents and information on the one hand and non-confidential summary on the other hand. The latter is meant to ensure that requisite information is still provided to third parties to comply with the principles of natural justice while maintaining confidentiality of specific information. The ultimate discretion under the Anti-Dumping Agreement is to be vested in the authority concerned to decide as to whether any information is to be disclosed or not. 26. In the spirit of the provisions of the Anti-Dumping Agreement, the Anti-Dumping Rules, 1995 were enacted in exercise of the power conferred under the Customs Tariff Act, 1975. The scheme of the Anti-Dumping Rules is broadly aligned with the international framework. The said Rules came into force on 1st January, 1995. The scheme of the Anti-Dumping Rules is that as per Rule 5, a written complaint can be filed on behalf of the domestic industry, as defined in Rule 2(b), to the....
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....rity may require the parties providing information on confidential basis to furnish non-confidential summary thereof and if, in the opinion of a party providing such Information, such information is not susceptible of summary, such party may submit to the designated authority a statement of reasons why summarisation is not possible. (3) Notwithstanding anything contained in sub-rule (2), if the designated authority is satisfied that the request for confidentiality is not warranted or the supplier of the information is either unwilling to make the information public or to authorise its disclosure in a generalised or summary form, it may disregard such information." 29. A perusal of Rule 7 above would show that if any information is provided by any party to the DA on a confidential basis, upon the said Authority being satisfied of the same being confidential, the said information is not to be disclosed to any party, without authorization of the party providing such information. Further, in order to ensure that the crux of the said information is still made available to the concerned stakeholders, a non-confidential summary can be provided. Moreover, if the party providing....
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.... finally the injury margin and injury margin percentage; ix) Imposition of customs duties in various jurisdictions; x) The cost of raw materials; xi) Investments made by the Petitioners; xii) Details of commercial production, Petitioners' market share, and the manner in which injury is caused. 33. Initially, a public notice was issued on 14th January, 2016. The initiation notification notes that the known exporters, the Government of the subject country, the importers and users in India, known to be concerned with SBR, were asked to submit relevant information. The notice further notes that in terms of Rule 6(7), any interested party may inspect the public file containing non-confidential version of the evidence submitted by other interested parties. 34. Final Findings were issued vide notification dated 12th July, 2017 which sets out in details the manner in which the DA proceeded in the said complaint. Notices were issued and questionnaires were sent to various exporters who participated in the proceedings. Stakeholders such as the European Commission (Director General for Trade), Government of Korea RP, and various industry organizations....
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....was confidential. The CIC vide the impugned order has directed the disclosure of information at serial number 1 and second part of serial number 3 i.e., the photocopy of the note sheet of the Anti-Dumping Authority. The Union of India and the complainants before the Anti-Dumping Authority have, thus, challenged these directions of the CIC. The only issue that has been urged before this Court is in respect of disclosure of the note sheet. 38. The submission on behalf of the Petitioners is that if any information is to be sought, the RTI Applicant ought to have approached the Anti-Dumping Authority under Rule 7 of the Anti-Dumping Rules and not under the RTI Act. On the other hand, the legal issue raised by ld. counsel for the RTI Applicant is that the RTI Act would prevail over the Anti-Dumping Rules and the Anti-Dumping Authority is under a legal obligation to provide the information sought by the RTI Applicant. Thus, the request of the RTI Applicant seeking the note sheet of the Directorate General of Anti-Dumping hinges upon the determination of the question as to whether the Anti-Dumping Authority is obliged to provide information under the RTI Act when there is a complete fr....
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....991 : [1992] Ch. 394 has held as under:- "This is a committal application with an unusual background. It concerns the unauthorised inspection of a document on a court file, and the subsequent publication of information obtained from that inspection. The respondents are Mr. Max Hastings, the editor of "The Daily Telegraph", Miss Antonia Feuchtwanger, a journalist employed by "The Daily Telegraph", and the Daily Telegraph Plc. On 31 August and 3 September 1991 articles written by Miss. Feuchtwanger appeared in "The Daily Telegraph" newspaper. Both articles referred to a report submitted to the High Court by Mr. Burns, deputy official receiver, in proceedings brought by the official receiver...... With that introduction I turn first to the legal framework: the provisions in the rules of court relating to inspection of documents on the file maintained by the court for disqualification proceedings. Unfortunately, the history of this matter has been clouded a little by some confusion about which of two sets of rules is applicable to inspection of documents filed in disqualification proceedings: the Rules of the Supreme Court, or the Insolvency Rules. Indeed, one of the ....
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....hen the filing of documents in court, as required by the court rules for the purpose of litigation, shall not of itself render generally available what otherwise would not be. Many documents filed in court never see the light of day in open court. For example, when proceedings are disposed of by agreement before trial. In that event, speaking generally, the parties are permitted to keep from the public gaze documents such as affidavits produced in preparation for a hearing which did not take place. Likewise with affidavits produced for interlocutory applications which are disposed of in chamber. Again, there are certain, very limited, classes of proceedings, such as those relating to minors, which are normally not heard in open court. Much of the object sought to be achieved by a hearing in camera in these cases would be at serious risk of prejudice if full affidavits were openly available once filed. 73. Consequently, the SCR would be applicable with regard to the judicial functioning of the Supreme Court; whereas for the administrative functioning of the Supreme Court, the RTI Act would be applicable and information could be provided under it. The dissemination of inform....
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....ceedings. As per rules framed by the High Court, a third party can obtain the certified copies of the documents, orders or judgments or can have access to the information only by filing an application/affidavit and by stating the reason for which the information/copies of documents or orders are required. Insofar as on the administrative side i.e. categories (d), (e) and (f), one can have access to the information or copies of the documents could be obtained under the rules framed by the various High Courts or under the rules framed by the High Court under the RTI Act. Insofar as the disclosure of information as to the assets of the Judges held by the Chief Justice of the High Court, the same is now covered by the judgment of the Constitution Bench reported in Central Public Information Officer, Supreme Court of India v. Subhash Chandra Agrawal 2019 (16) SCALE 40. xxx 27. Rule 151 of the Gujarat High Court Rules, 1993 requires a third-party applicant seeking copies of documents in any civil or criminal proceedings to file an application/affidavit stating the reasons for which those documents are required. As such, the High Court Rules do not obstruct a third party....
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....ects of working of a public authority is therefore, an essential component of information regime. The judgments and orders passed by the High Courts are all available in the website of the respective High Courts and any person can have access to these judgments and orders. Likewise, the status of the pending cases and the orders passed by the High Courts in exercise of its power Under Section (sic Article) 235 of the Constitution of India i.e. control over the subordinate courts like transfers, postings and promotions are also made available in the website. In order to maintain the confidentiality of the documents and other information pertaining to the litigants to the proceedings and to maintain proper balance, Rules of the High Court insist upon the third party to file an application/affidavit to obtain information/certified copies of the documents, lest such application would reach unmanageable proportions apart from the misuse of such information. xxx 3. We summarise our conclusion:- (i) Rule 151 of the Gujarat High Court Rules stipulating a third party to have access to the information/obtaining the certified copies of the documents or orders ....
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....vity of information disclosed under anti-dumping proceedings. 45. The level of recognition accorded to preserving confidentiality of such information in the larger interest of global trade, countries involved, entities from different countries who could be exporters, importers and other stakeholders, cannot be ignored and deserves to be protected and recognized. The RTI Act itself has various exemptions under Section 8, which recognizes that the disclosure of information may affect the stakeholders, the strategic and economic interest of the country and in that case such information is exempted from disclosure. In numerous judgments, the Supreme Court has observed that RTI Act seeks to strike a balance between transparency and public interests including preservation of confidentiality of sensitive information. The Supreme Court in Central Public Information Officer, Supreme Court of India vs. Subhash Chandra Agarwal (2020) 5 SCC 481 observed as under: 36. If one's right to know is absolute, then the same may invade another's right to privacy and breach confidentiality, and, therefore, the former right has to be harmonised with the need for personal privacy, conf....
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.... 46. Thus, none can claim an absolute right to get a certain piece of information, and the nature of the information that is sought would be material. The specific note sheet that has been sought by the RTI Applicant is the note sheet relating to initiation of anti-dumping investigation. From a bare perusal of the original file produced before the Court, it is evident that the note sheet contains various portions of information which may be confidential to the Complainants. The Anti-Dumping Agreement entered into amongst countries, post GATT, recognises the sensitivity and the competitive advantage that can be gained by third parties if confidential data is disclosed. For 'good cause' the said information can be refused to be disclosed. A perusal of the note sheet sought would also show that the disclosure of the same under the RTI Act, especially in a case where the RTI Applicant was a party to the anti-dumping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry. 47. The Court is also not impressed by the argument of the RTI Applicant that denial of providing information under the R....
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....dicated, there are no ambiguities in Rule 7 to require departure from the Rule of Literal Construction. xxx 25. In the light of facts and submissions noted earlier as well as conclusions already recorded at various places, we are of the considered view that the question referred for our answer can be answered in a very straight forward manner by holding that Reliance Industries case did not go into the details of the relevant Rules including Rule 7 but the observations made therein in respect of Rule of confidentiality as spelt out in Rule 7 of the Rules does not diminish the scope of Rule 7 as provided. The reasons or findings cannot be equated with the information supplied by a party claiming confidentiality in respect thereto. Hence, Rule 7 does not empower the DA to claim any confidentiality in respect of reasons for its finding given against a party. The law laid down in respect of Rule of confidentiality in Sterlite Industries case also has our respectful concurrence. But at the same time, we reiterate that the Reliance Industries case does not adversely affect or run counter to the law spelt out in Sterlite Industries case. We may only explain here that whi....
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....articular industry. It also involves assessment of trade relations between India and various other countries as can be seen from the public notice and the final order in the present case. Submissions were called from a large number of foreign companies including from Korea RP, Singapore, USA, Czech Republic, Poland, Germany, Thailand as also from global players such as the European Union, governments, and international industry associations. The entire purpose of having a complete and self-sufficient scheme for disclosure of confidential information under the Anti-Dumping Rules would be defeated if persons who are participating in anti-dumping investigation are permitted to tangentially seek information under the RTI Act. 50. In the present case, this Court is of the opinion that the imposition of anti-dumping duty and confidential information disclosed in such proceedings would have a significant impact on the economic interest and trade relations of India, as also would constitute information received by the authority in confidence, which cannot be subjected to disclosure. Section 11 of the RTI Act itself recognizes the intention to protect the information received from third ....