AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2025 (9) TMI 1477
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....etermination of Injury) Rules, 1995 (hereinafter referred to as the "said Act" and "said Rules", respectively), on the ground of procedural irregularity, in relation to the non-disclosure of the summary of confidential information in nonconfidential form, including but not limited to the non-compliance of the said Rules. 2. Although, the respondent nos. 2 to 5 have questioned the maintainability of the writ petition largely on the ground of presence of alternative remedy in the form of an appeal before the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962 (hereinafter referred to as the "appellate tribunal" or "appellate authority" or "CESTAT"), however, since, by an affidavit the petitioner contends that the Bench of the appellate tribunal to hear out tariff related cases has not been constituted for more than a year and further the parties on that basis having advanced arguments touching the merits of the matter, this Court has proceeded to hear the matter. On the issue of alternative remedy at the time of moving the petition, the petitioner has affirmed an affidavit stating that although, the appellate authority under Se....
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....i-dumping investigation be limited to PUC of the grades/variants that are manufactured and commercially sold by the domestic industry. Accordingly, the petitioner had sought for exclusion of Rutile-Sulphate grade/variant and certain superior performance grades/variants of the PUC, as there is no comparable domestic production and commercial sales of these products by the domestic industry, during the period of investigation. 6. According to the petitioner, the designated authority had issued a public notice on 9th May, 2024 circulating a list of interested parties in the impugned anti-dumping investigation, wherein the petitioner was also acknowledged as an interested party. The list was later reviewed/revised on 29th August, 2024 wherein the petitioner was named as a registered interested party. 7. Subsequently, on 29th January, 2025 the designated authority issued a disclosure statement in terms of Rule 16 of the said Rules by permitting the interested parties to offer their comments within the time specified therein. According to the petitioner, the designated authority in the disclosure statement while dealing with the exclusion request made by the petitioner, to exclude ....
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.... designated authority to redress the grievances of the petitioner as reflected in the email communication dated 30th January, 2025 or the representation dated 5th February, 2025. According to the petitioner, non-disclosure of the aforesaid particulars has the effect of vitiating the final finding and constitutes denial of principles of nature justice. 8. Mr. Mookherjee, learned senior advocate appearing in support of the writ petition, by drawing attention of this Court to the initiation notification published in the Gazette of India on 28th March, 2024, would submit that the product under consideration which is alleged to be dumped in India is Titanium Dioxide, the same is within the exclusions as enumerated in paragraph 3 and 4 of the said notification. He would submit that there are ordinarily two grades of titanium dioxide i.e. rutile and anatase grades. These grades are identifiable, and have independent physical and chemical properties. While drawing attention of this Court to paragraph 12 of the said notification, it is submitted that the interested parties in the investigation were offered opportunity to provide their comments on the product under consideration (PUC). He....
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....s given to the petitioner contending that any party/domestic industry had claimed confidentiality with regard to any information within 7 days of circulation of such alleged confidential information for the petitioner to object to the acceptance of such confidential information. He submits that in the instant case, it is only when the disclosure statement was circulated in connection with the above anti-dumping investigation on 29th January, 2025, inviting comments from the parties by overruling the objection raised by the petitioner as regards exclusion of titanium dioxide manufactured through rutile process, it was asserted that one of the domestic industries namely the respondent no.4 has the necessary technology and set up to produce rutile through sulphate route and has manufactured and sold rutile titanium dioxide products using sulphate process during the period of investigation. 9. Since, the aforesaid disclosure statement was made without making disclosure as regards the basis therefor, especially having regard to the positive claim made by the petitioner that the domestic industry does not manufacture titanium dioxide through sulphate process that the petitioner was co....
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....the interested party/domestic industry, has claimed that the information provided on confidential basis were examined concerning sufficiency of such confidentiality, whereupon the designated authority held that the domestic industry's claim on confidentiality of the price parameters have been accepted, while the volume parameters have been disclosed and that the designated authority is satisfied with the information provided on confidential basis. He would submit that in the instant case, the non-confidential summary of the volume of sales had, however, not been disclosed to the petitioners, though the acceptance on the claim of confidentiality was only limited on price and having regard thereto, the other information ought to have been supplied by the designated authority and that the designated authority could not have held on to the same by treating the same to be confidential. According to Mr. Mookherjee, if the domestic industry had insisted for holding back all information, such information ought to have been rejected, having regard to the procedure provided for holding the investigation, in particular Rule 7(3) of the said Rules. According to him, the recording of satisfacti....
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....nces, grounds, reasoning and methodology by which designated authority has arrived at its decision and made recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or before any other forum. By placing reliance on a judgement delivered by the Hon'ble Supreme Court in the case of S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594, he would submit that it is now well recognized that the rule, requiring reasons to be given in respect of an order is like the principles of audi alteram partem, a basic principle of natural justice. 13. He has also placed reliance on the and the judgment delivered by the Division Bench of the Hon'ble High Court of Gujarat in the case of Nirma Limited v. Union of India & Ors., reported in 2017 SCC OnLine Guj 2526., and would submit that the Division Bench of the Hon'ble High Court of Gujarat has categorically held that all information, which are relied upon by the designated authority to the extent the same is not protected by Rule 7 of the said Rules is in the nature of necessary information, which should be disclosed to the interested parties to enable them to comment on t....
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.... and entertain the instant petition. The effect of the final findings is also being felt by the petitioner within the jurisdiction of this Court and the resultant levy would be collected by the Customs Authority operating within the jurisdiction of this Hon'ble Court. In support of this contention, he placed reliance on the judgment delivered in the case of M/s. Vikash Trading Company v. Designated Authority, reported in 2012 SCC OnLine Mad 4801. On the issue of alternative remedy, reliance has been placed on the judgment delivered by the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai & Ors., reported in (1998) 8 SCC 1. He submits that the petitioner having been denied the opportunity to make an effective representation in tune with article 6.9 of the ADA and the said Rules, the final findings stands vitiated and the consequential the levy of anti-dumping duty effected by notification dated 10th May, 2025 which has been made during the pendency of the petition, by an order of this Court has been made to abide by the result of the writ petition. According to him if the final findings stands vitiated the imposition of levy by the centra....
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....including the definition of like article as defined in Rule 2(d) of the said Rules, the scope of initiation of investigation as defined in Rule 5, the confidential information as identified in Rule 7, the preliminary findings in terms of Rule 9, the disclosure of information and the final findings as provided in Rules 16 and 17, and the levy of duty as provided in Rule 18 thereof. 17. Apart from submitting that this Court ought not to entertain a writ petition of this nature especially when an alternative remedy is available, he has also claimed that it is entirely pre-mature at this stage for the petitioner to challenge the final findings, since, according to him, the final findings at the stage of filing the petition had not fructified into an order of determination of anti-dumping duty in terms of Section 9A of the said Act, and the final findings are at the stage of a recommendation only which may or may not be accepted by the central Government. The challenge to the same is entirely pre-mature. It is only when the central Government accepts the same and a notification to that effect is published that a cause of action to challenge the same arises. In support of his contenti....
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....t no.4 had also disclosed data in the form of confidential information as regards manufacture and sale of rutile sulphate. The plea raised by the petitioner herein to seek exclusion of rutile sulphate is an entirely hyper technical one and this Court ordinarily ought not to entertain a challenge of this nature as the same deals with disputed questions of fact. 19. According to Mr. Sharma since, the final findings are mere recommendations and they do not assume any final character though the determination on recommendation may be final, the final decision thereof whether or not to levy and impose a duty is decided by the central Government, and till such time a decision is made there, no cause of action to challenge the same arises and the entire matter remains pre-mature. Further ordinarily, when an alternative remedy in the form of an appeal under Section 9C is available unless the order is wholly without jurisdiction, a writ remedy cannot be invoked. In support of his aforesaid contention he has placed reliance on the following judgments: 1) Jindal Poly Flim Ltd. v. Designated Authority (supra) 2) Designated Authority v. Sandisk International Ltd. (supra) ....
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.... Hon'ble High Court at Delhi in WPC 1856 of 2025 on 28th March 2025 22. On the issue that the final findings are only the recommendations which may or may not be accepted by the central Government and the writ petition is thus, pre-mature, reliance is placed on the following judgments: 1) Union of India & Ors v. Pradip Kumar Dey, reported in (2000) 8 SCC 580. 2) Union of India & Anr. v. Mohit Minerals Private Limited, reported in (2022) 10 SCC 700. 23. In the facts noted hereinabove, he submits that the instant petition deserves to be dismissed. 24. Heard the learned advocates appearing for the respective parties and considered the materials on record. It appears that the respondent no.5 has come forward to resist the writ petition, at the very threshold, from being entertained by claiming that no part of cause of action has arisen within the jurisdiction of this Court on the basis of the disclosures made in the petition, and that the above writ petition is not only premature but also should not be entertained by reasons of the alternative remedy available. 25. In this case, the petitioner questioning the final determination made by the designated auth....
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....at less than its normal value, then, upon the importation of such article into India, the Central Government may, by notification in the Official Gazette, impose an anti-dumping duty not exceeding the margin of dumping in relation to such article. Explanation-For the purposes of this section,- (a) "margin of dumping", in relation to an article, means the difference between its export price and its normal value; (b) "export price", in relation to an article, means the price of the article exported from the exporting country or territory and in cases where there is no export price or where the export price is unreliable because of association or a compensatory arrangement between the exporter and the importer or a third party, the export price may be constructed on the basis of the price at which the imported articles are first resold to an independent buyer or if the article is not resold to an independent buyer, or not resold in the condition as imported, on such reasonable basis as may be determined in accordance with the rules made under sub-section (6); (c) "normal value", in relation to an article, means- (i) the comparable price, in....
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....on (1) has taken place whereby the antidumping duty so imposed is rendered ineffective, it may modify such duty to counter the effect of such absorption, from such date, not earlier than the date of intitiation of the inquiry, as the Central Government may, by notification in the Official Gazette, specify. Explanation.-For the purposes of this sub-section, "absorption of anti-sumping duty" is said to have taken place,- (a) if there is a decrease in the export price of an article without any commensurate change in the cost of production of such article or export price of such article to countries other than India or resale price in India of such article imported from the exporting country or territory; or (b) under such other circumstances as may be provided by rules.] (2) The Central Government may, pending the determination in accordance with the provisions of this section and the rules made thereunder of the normal value and the margin of dumping in relation to any article, impose on the importation of such article into India an anti-dumping duty on the basis of a provisional estimate of such value and margin and if such anti-dumping duty excee....
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.... of notification under that subsection, and notwithstanding anything contained in any law for the time being in force, such duty shall be payable at such rate and from such date as may be specified in the notification. (4) The anti-dumping duty chargeable under this section shall be in addition to any other duty imposed under this Act or any other law for the time being in force. (5) The anti-dumping duty imposed under this section shall, unless revoked earlier, cease to have effect on the expiry of five years from the date of such imposition: Provided that if the Central Government, [on consideration of a review], is of the opinion that the cessation of such duty is likely to lead to continuation or recurrence of dumping and injury, it may, from time to time, extend the period of such imposition for a further period [up to five years] and such further period shall commence from the date of order of such extension: Provided further that where a review initiated before the expiry of the aforesaid period of five years has not come to a conclusion before such expiry, the anti-dumping duty may continue to remain in force pending the outcome of such a....
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....ay think fit as the designated authority for purposes of these rules. (2) The Central Government may provide to the designated authority the services of such other persons and such other facilities as it deems fit. 4. Duties of the designated authority.-It shall be the duty of the designated authority in accordance with these rules- (a) to investigate as to the existence, degree and effect of any alleged dumping in relation to import of any article; (b) to identify the article liable for anti-dumping duty; (c) to submit its findings, provisional or otherwise to Central Government as to- (i) normal value, export price and the margin of dumping in relation to the article under investigation; and (ii) the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of such article from the specified countries. (d) to recommend the amount of anti-dumping duty, which if levied would be adequate to remove the injury to the domestic industry and the date of commencement of such duty; and (e) to review the need for continu....
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....of the circumstances referred to in clause (b) of sub-rule (3). (5) The designated authority shall notify the Government of the exporting country before proceeding to initiate an investigation. 6. Principles governing investigations.-(1) The designated authority shall, after it has decided to initiate investigation to determine the existence, degree and effect of any alleged dumping of any article, issue a public notice notifying its decision and such public notice shall, inter alia, contain adequate information on the following:- (i) the name of the exporting country or countries and the article involved; (ii) the date of initiation of the investigation; (iii) the basis on which dumping is alleged in the application; (iv) a summary of the factors on which the allegation of injury is based; (v) the address to which representations by interested parties should be directed; and (vi) the time-limits allowed to interested parties for making their views known. (2) A copy of the public notice shall be forwarded by the designated authority to the known exporters of the article alleged to have been dumped, the Governme....
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....ommendations to the Central Government as it deems fit under such circumstances. 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 other party without specific authorisation of the party providing such information. (2) The designated authority 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 requ....
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....e than seven per cent. of the import of the like product; or (e) it determines that the injury where applicable, is negligible. 16. Disclosure of information.-The designated authority shall, before giving its final findings, inform all interested parties of the essential facts under consideration which form the basis for its decision. 17. Final findings.-(1) The designated authority shall, within one year from the date of initiation of an investigation, determine as to whether or not the article under investigation is being dumped in India and submit to the Central Government its final finding- (a) as to,- (i) the export price, normal value and the margin of dumping of the said article; (ii) whether import of the said article into India, in the case of imports from specified countries, causes or threatens material injury to any industry established in India, or materially retards the establishment of any industry in India; (iii) a casual link, where applicable, between the dumped imports and injury; (iv) whether a retrospective levy is called for and if so, the reason therefor and date of commencement of such r....
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....roducer, though not selected initially, who submit necessary information in time, except where the number of exporters or producers are so large that individual examination would be unduly burdensome and prevent the timely completion of the investigation. (4) The designated authority shall issue a public notice recording its final findings. 18. Levy of duty.-(1) The Central Government may, within three months of the date of publication of final findings by the designated authority under Rule 17 impose by notification in the Official Gazette, upon importation into India of the article covered by the final finding, anti-dumping duty not exceeding the margin of dumping as determined under Rule 17: Provided that in case of imports from the specified countries the amount of duty shall not exceed the amount which has been found adequate to remove the injury to domestic industry. (2) In cases where the designated authority has selected percentage of the volume of the exports from a particular country, as referred to in sub-rule (3) of Rule 17, any dumping duty applied to imports from exporters or producers not included in the examination shall not excee....
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....nitiation notification was published in the Gazette of India and was intended to operate throughout the length and breadth of India. 29. The petitioner has its registered office at Kolkata, and claims, upon going through the above notification had participated in such enquiry through its advocates. The preliminary objection of the petitioner was with regard to the inclusion of rutile sulphate in PUC on the ground of lack of domestic capability in manufacturing and commercial sale thereof. The petitioner also contended that a comparative analysis between the rutile sulphate and rutile chloride is impractical. According to the petitioner, the domestic industry lacks the necessary manufacturing setup to produce sulphate based rutile as their facilities are configured solely for chloride process. According to the petitioner, chloride process is inherently distinct from the sulphate process and requires a completely separate specialized plant and infrastructure, precluding any possibility of conversion or production of sulphate based rutile. The physical characteristic, colour of the sulphate based rutile and chloride based rutile, have also been distinctly identified by the petition....
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....uction thereof. In this context, it would be relevant to note that the learned advocate representing the respondents have jointly claimed that the information which have not been disclosed are all confidential information and the designated authority is estopped from disclosing the same having regard to the provisions contained in Rule 7 of the said Rules. 33. Mr. Sharma, has in fact went on to add that non-disclosure of such information which is confidential does not constitute violation of principles of nature justice and the same has the sanction of the Hon'ble Supreme Court in the case of Union of India & Anr. v. Meghmani Organics Limited & Ors. (supra). In this context, I may note that a procedure had been laid down to deal with the confidential information, and in fact the initiation notification dated 28th March, 2024 elaborately deals with the same. To morefully appreciate the same, paragraphs 32 to 38 of the aforesaid initiation notification is extracted hereinbelow: "32. Any party making any confidential submissions or providing information on a confidential basis before the Authority is required to simultaneously submit a non-confidential version of the same ....
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....2024 was to operate throughout the territory of India but all the interested parties were called upon to provide their inputs primarily with regard to the product under consideration (PUC) and subsequently at the various stages of the investigation which provide rights to such interested parties to seek for necessary particulars in relation to investigation including but not limited to objecting to the claim of confidentiality made by a party. As would appear from the petition, the final findings and the levy are to have a direct impact on the business of an interested party including the petitioner which has the registered office at Kolkata and has been operating from Kolkata. As such it cannot be said that no part of cause of action had arisen within the jurisdiction of this Court. In fact, the effect of the initiation notification, disclosure statement, the determination as reflected in the final findings and the levy, are to have a direct impact and the effect thereof, was felt by the petitioner at its registered office at Kolkata, within the territorial limits of Kolkata and within the jurisdiction of this Hon'ble Court. 35. Mr. Mitra, learned senior advocate, has, however,....
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.... the statement made in the petition has to be taken to be true and correct the Hon'ble Supreme Court held in such case even by accepting the statement made in the petition to be correct, no part of the cause of action has arisen within Kolkata. Such is not the case here. The above judgment also does not assist Mr. Mitra's client at all. 36. In so far as the judgment delivered in the case of Kusum Ingots & Alloys Ltd. (supra) is concerned the Hon'ble Supreme Court in paragraph 6 of the judgment has amplified the implication of the cause of action and has noted that the cause of action implies a right to sue and the material facts which are imperative for the suitor to allegedly constitute a cause of action. As per the observations made therein, each and every fact which is necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court, negatively put it would mean everything which, if not proved, gives the defendant an immediate right to judgment, would constitute to be part cause of action. In the said case one of the questions that fell for consideration was the situs of the respondents. It is in that context the Hon'ble Supreme C....
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....s raised by Mr. Mitra fails and the issue no.(a) is decided in favour of the petitioner. Is the Challenge Premature? 37. Moving on to the next issue of the writ petition being premature and not being maintainable by reasons of the presence of an alternative remedy, although, the parties have advanced detailed arguments and have relied on several judgments, I find that Section 9C of the said Act which deals with the scope of the appellate provision has since been amended. To understand the aforesaid provision and the implication of the amendment, it is necessary to consider the scope of the aforesaid amendment. In that context, I may note that the said Act has been amended by the Finance Act, 2023 (No. 8 of 2023) (in short, the "Finance Act") which was published in the Gazette of India on 31st March, 2023. Section 134 of the Finance Act deals with the amendment of Section 9, 9A and 9C of the said Act, while Section 135 of the Finance Act deals with the amendment of first schedule of the said Act and the Section 136 of the Finance Act deals with the amendment of the second schedule of the said Act. To understand the scope of the above amendment, both the unamended provisions an....
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....n sub-section (7), the words "and determined" shall be omitted; (7) The amount of any such subsidy as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained and determined by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the identification of such article and for the assessment and collection of any countervailing duty imposed upon the importation thereof under this section. (7) The amount of any such subsidy as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained ^32[* * *] by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the identification of such article and for the assessment and collection of any countervailing duty imposed upon the importation thereof under this section. Section 9A (a) in sub-section (5), in the first proviso, for the words "in a review", the words "on consideration of a review" shall be substituted; 5) The anti-dumping duty imposed under this sect....
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....y anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such antidumping duty. (6) The margin of dumping as referred to in sub-section (1) or sub-section (2) shall, from time to time, be ascertained [* * *] by the Central Government, after such inquiry as it may consider necessary and the Central Government may, by notification in the Official Gazette, make rules for the purposes of this section, and without prejudice to the generality of the foregoing, such rules may provide for the manner in which articles liable for any anti-dumping duty under this section may be identified, and for the manner in which the export price and the normal value of, and the margin of dumping in relation to, such articles may be determined and for the assessment and collection of such antidumping duty. Section 9C (a) in sub-section (1), the words "order of" shall be omitted; (1) An appeal against the order of determination or review thereof shall lie to the Customs, Excise and Service Tax Appellate Tribunal....
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....ying or annulling the ^53[determination or review] appealed against. (d) after sub-section (5), the following Explanation shall be inserted, namely:- 'Explanation.- For the purposes of this section, "determination" or "review" means the determination or review done in such manner as may be specified in the rules made under Sections 8-B, 9, 9-A and 9-B.'. (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member.] (5) Every appeal under sub-section (1) shall be heard by a Special Bench constituted by the President of the Appellate Tribunal for hearing such appeals and such Bench shall consist of the President and not less than two members and shall include one judicial member and one technical member.] ^54[Explanation.-For the purposes of this section, "determination" or "review" means the determination or review done in such manner as may be specified in the rules made under Sections 8-B, 9, 9-A and 9-B.] First Schedule In the Cust....
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....r country at less than its normal value, if the export price of the product exported from one country to another is less than the comparable price, in the ordinary course of trade, for the like product when destined for consumption in the exporting country. 2.2 When there are no sales of the like product in the ordinary course of trade in the domestic market of the exporting country or when, because of the particular market situation or the low volume of the sales in the domestic market of the exporting country, such sales do not permit a proper comparison, the margin of dumping shall be determined by comparison with a comparable price of the like product when exported to an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits. ..." "Article 3 - Determination of Injury 3.1 A determination of injury for purposes of Article VI of GATT 1994 shall be based on positive evidence and involve an objective examination of both (a) the volume of the dumped imports and the effect of the dumped imports on pric....
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....o be connotations used in the context of administrative judicial review to be carried out against the decision of the designated authority. The connotations appear to have been incorporated in the domestic anti-dumping law, i.e. the said Act, in the form of borrowed provisions from the GATT agreement and the ADA. 42. By reasons of amendment of the said Act by the Finance Act, 2003, Section 9A of the said Act has been amended whereby in sub-section (6), the margin of dumping duty though may be ascertained by the Central Government, however, the words "and determined" have been omitted. The amendment of Section 9C makes the position clear as the appeal would now lie against the determination, thereby bringing within the ambit of judicial review, the very determination itself unlike, the pre-amended position. Similar amendment has also been provided for in sub- section (3) of Section 9C which now provides for a remedy against the determination itself. 43. Thus, on a perusal of the above provision, it is now amply clear that unlike the pre-amended provisions of the said Act, under the amended provision, an appeal can be filed against the 'determination' by the designated authorit....
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....ealable and it was the levy which could be appealed against. Such situation has, however, completely changed consequent upon the amendment of the said Act by the Finance Act, 2023 for reasons noted above. The above issue is thus, decided against the respondents. Thus, the issue no. (b) is decided against the respondents. Alternative Remedy 45. The parties have elaborately argued on the issue of alternative remedy. It may be relevant to note that although, in the case of Suncity Sheets Pvt. Ltd. (supra), the challenge was not entertained by reasons of presence of an alternative remedy. In paragraph 6 of such judgment, the Hon'ble Delhi High Court had quoted the observations made in the case of Hindustan Liver v. Union of India, reported in 2017 SCC OnLine Del 8354. "6. This Court has in its order dated 16th May, 2017 in W.P.(C) 2632/2017 (Hindustan Lever Ltd. v. Union of India) declined to entertain a writ petition, challenging the Final Finding of the DA on account of the availability to the Petitioner there of an efficacious statutory remedy of appeal before the CESTAT. In the said decision, this Court referred to and distinguished the above decision of the Gujarat ....
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....ternational Limited, to file writ petition before the Delhi High Court. The Hon'ble Supreme Court had also observed that the final notification though published during pendency of the petition had remained operative and since then the duty had been collected on such basis, the Sandisk or any importer on whom the levy was imposed had not came forward to seek interference. It is in such context that the Hon'ble Supreme Court felt that the appellate tribunal should consider all aspects of the matter, including correctness of the findings. While observing as such, the Hon'ble Supreme Court in paragraph 7 had observed and recorded the following: "Though we would not deem it appropriate to lay down any inflexible proposition of law that in no case the final findings of the Designated Authority can be subject to challenge under Article 226 of the constitution of India, we are of the view that in the facts of the present case the High Court was not justified in exercising its writ jurisdiction and in setting aside the final findings of the Designated Authority." 47. Insofar as the judgment delivered by a coordinate Bench of the Madras High Court, in the case of Saint Gobain (su....
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.... others), the interested parties giving them opportunity to make their views in writing. The non-confidential version of the evidence presented by the various interested parties were provided for inspection by the interested parties. Personal hearing was granted on September 17, 2016 and November 2, 2016. Further, information was sought for from the applicant and other interested parties to the extent deemed necessary. In accordance with rule 16, the designated authority informed all the interested parties of the essential facts under consideration, which form the basis for its decision and this was required to be done before giving its final finding and this disclosure of information was made on March 27, 2017. Then, the confidentiality claims of various interested parties in respect of data submitted by them were examined and the final findings were issued on April 10, 2017. Thus, the procedure adopted by the designated authority is undoubtedly an accelerated review and suffers from no error. 29. In view of the above reasons, questions framed are answered in the following terms : (i) The new shippers review initiated vide notification, dated September 23, 2015, ....
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....umping Bench has not been constituted for more than one year and is not functional. In support of the aforesaid, the roster of CESTAT from 26th October, 2023 till 28th February, 2025 has also been disclosed. In the light of the above, the matter had been taken up for consideration. In my view, simply because there is an appellate forum available though such forum is not functional, it would be wholly unjust and unfair to direct the petitioner to approach such forum. In the instant case, since the tribunal had not been functional, this Court had entertained the petition and has accordingly taken up the matter for hearing on merits. 51. In the facts of the case, the judgement delivered in the case of Outokumpu Oyj v. Union of India & Ors. (supra), though provides that when a machinery is created by the statute to remedy and correct any wrong and when a right or liability is created by the same statute which gives a special remedy by way of an appeal, such remedy should not normally be circumvented, however, since in the instant case, the very machinery providing for the remedy to correct the wrong being unavailable, the matter was taken up for consideration. Thus, the above judgem....
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....c) whether any exemption has been sought for to file the summarized non-confidential form by claiming summarization is not possible. (d) whether any satisfaction has been arrived at by the designated authority as regards any such claim since, in the absence of such satisfaction the designated authority is ordinarily required to ignore the required information. 54. It would transpire from the records, especially the disclosure statement and the final findings that in paragraph 23, the designated authority has accepted all claims on confidentiality, whenever warranted, and such information has been considered confidential and not disclosed to the other interested parties. Incidentally, however, the designated authority appears to have departed from the procedure of determining confidentiality, and has only provided that disclosure of non confidential information filed on confidential basis wherever possible. The said observation has been made by the designated authority without affording the petitioner who is one of the interested parties to contest the claim for confidentiality by the domestic industry in the tune with paragraph 38 of the initiation notification. In this....
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....lling price are highly sensitive business information, and disclosure would negatively impact the competitive position of the DI. iii. It is further submitted by domestic industry that claims of confidentiality are in consonance with the practice of the Authority in cases such as Anti-dumping investigation concerning imports of Phthalic Anhydride originating in or exported from Russia and Japan12, where there were 3 (three) producers as a part of the domestic industry, the Authority did not provide details such as selling price and PBIT of the constituents of the domestic industry and has claimed it confidential. This pattern was also followed in other cases such as Anti-dumping investigation concerning imports of Phthalic Anhydride (PAN) originating in or exported from China PR, Indonesia, Korea RP and Thailand13, Anti-dumping investigation concerning imports of Glazed Unglazed Porcelain Vitrified tiles in polished or unpolished finish from China PR14 and Anti-dumping investigation concerning imports of Plastic Processing Machines originating in or exported from China PR15. iv. Further, many respondents have not disclosed affiliated companies, names of shareholde....
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.... 23. On being satisfied, the Authority accepts the confidentiality claims, wherever warranted and such information has been considered confidential and not disclosed to the other interested parties. Wherever possible, the parties providing information on confidential basis were directed to provide sufficient nonconfidential version of the information filed on confidential basis. The Authority also notes that all interested parties have claimed their business-related sensitive information as confidential." 55. In the light of the above, it can be deduced that the claim of confidentiality which was allowed by the designated authority was limited to the disclosure of price only, the names of the domestic industries which allegedly purchased the product under consideration, during the period of investigation or the volume thereof was not accepted. Though, Mr. Mookherjee, has submitted that in absence of a claim of confidentiality being allowed the designated authority was not authorized to withhold such information on the claim of confidentiality thereof, I however, find that the domestic industry had claimed complete confidentiality on all information, as such the same cou....
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....s manufactured and sold titanium dioxide products using sulphate process. Since, the finding to the contrary has to be supported by reasons and documentary evidence, ordinarily, the same or the non-confidential summary thereof, ought to have been disclosed and in the event the domestic industry insisted for total confidentiality, in terms of Rule 7(3) the said Rules the same ought to have been ignored. Further the designated authority was also obliged to disclose essential facts prior to rendering the final findings in terms of Rule 16 of the said Rules. In absence of such disclosure, the petitioner had been unable to verify the very basis on which the aforesaid product has been included within the scope of product under consideration and to test out whether there has been domestic sale of the PUC which forms the foundation of the claim of the levy of duty. The sub issues are accordingly answered. 56. In my view, the procedural safeguard in terms of article 6.9 of the ADA which has been incorporated in the said Act, and the rules framed thereunder, especially in Rule 7(2) of the said Rules has not been followed. The petitioner was thus, not made aware of the essential facts unde....