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TMI Blog2009 (10) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... reliminary finding is certainly causing prejudice not only to the petitioners but all importers and in absence of such data in respect of its finding, it is practically impossible for them to raise any objection or to make any effective submission. - designated authority directed to provide all necessary details of findings which are kept blank while recording his preliminary findings and permit the petitioners to raise their objections in this regard and while recording the final finding, the designated authority shall take into consideration such objections and submissions that may be made in this regard. - 6881 of 2009 - - - Dated:- 9-10-2009 - A.L. Dave and K.A. Puj, JJ. REPRESENTED BY : S/Shri S.N. Soparkar, Sr. Advocate with Paresh M. Dave, for the Petitioner. S/Shri R.M. Chhaya, Standing Counsel, Mihir Joshi, Sr. Advocate, Mihir Thakore, Sr. Counsel with Bijal Chhatrapati, for Singh Co., for the Respondent. [Judgment per : K.A. Puj, J.]. RULE. Mr. R.M. Chhaya, learned Standing Counsel for the respondent Nos. 1 2 and learned advocate Mr. Bijal Chhatrapati for Singh Co. for respondent Nos. 3 4 waives service of Rule. 2. Looking to the issue involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 containing various objections and mainly contending that the applicant industry did not account for a major proportion of the total domestic production and therefore, without obtaining information of the third producer in India, the precondition for initiating anti-dumping duty investigation was without jurisdiction, and that excessive confidentiality claimed by the applicant was contrary to the law laid down by the Hon ble Supreme Court in case of Sterlite Industries (India) Limited [2003 (158) E.L.T. 673 (S.C.)]. Various other objections of facts as well as of law have also been raised, and various important details and information have also been requested by the petitioners from the respondent No. 2. The petitioners thereafter reminded the respondent No. 2 on 26-2-2009 for details and informations with reference to their earlier letters dated 17-2-2009 and 18-2-2009, while complaining that effective opportunity as contemplated under the law was being denied to the petitioners since the required information and details were not being disclosed to the petitioners. 5. The petitioners thereafter filed writ petition being Special Civil Application No. 2201 of 2009 before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was required to be initiated under Rule 5 of the Rules of 1995. (iii) The designated authority has acted unreasonably and arbitrarily in not affording adequate opportunity of being heard to the petitioners as well as other interested parties and the entire procedure followed by him is in violation of the principles of natural justice. (iv) The initiation notification, the order dated 6-5-2009, the preliminary findings and the resultant notification dated 22-6-2009 suffer from material irregularities, which are incurable at this stage and, therefore, all these proceedings are vitiated. (v) The petitioner has specific information that related Companies of respondent No. 4 have imported subject goods from China during the period of investigation and such imports continued even thereafter, but still however, the respondent No. 2 has not obtained mandatory certification from respondent No. 4 on relationship with foreign producer, relationships with the importers or self imports prior to bestowing upon respondent No. 4 a status of the domestic industry. (vi) The petitioners have not been allowed any access to essential public documents and a complete non-confidential ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mped articles and such practice has been upheld by the Tribunal in various cases. The import from different market is quite low and negligible and, therefore, the designated authority has discretion to consider the applicant as eligible domestic industry inspite of such imports under Rule 2(V). What is under investigation is the import of subject article under investigation from the subject country i.e. China and hence, there was no concealment of any information by the domestic industry so as to initiate the investigation. He has further submitted that considering the reasons given by the domestic industry in respect of the confidentiality version contained in the application, the designated authority has been satisfied that such information has to be treated as confidential and it shall not be disclosed to any other party. As per the recent order passed by the Apex Court on 27-1-2009 in the case of Designated Authority v. Indian Metals and Ferro Alloys Limited [2009 (234) E.L.T. 386 (S.C.)], the Apex Court has expressed the view that the view expressed in M/s. Reliance Industries case needs a fresh look and has referred the matter to the Chief Justice to deal with the issue of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies together control a third person. The respondent No. 4 has 11 Directors and Excel Crop Care Limited has 13 Directors. Out of these Directors, only two Directors are common. Further more, in terms of shareholding, the respondent No. 4 has a nominal 0.91% share in the paid up share capital of Excel Crop Care Limited, while Excel Crop Care Limited has no shares in the respondent No. 4 Company. He has further submitted that the imports made by the Excel Crop Care Limited during the period of investigation were only to the tune of 80 tons as against the total imports of 12616 tons, which is merely 0.634% of the total imports. He has, therefore, submitted that since the very foundation of the allegations of the petitioners as to respondent No. 4 in Excel Crop Care Limited being related entitles, is misconceived and factually incorrect, the other and consequent allegations of so called imports by Excel Crop Care Limited are of no consequences and deserve to be rejected. 14. Having heard the learned Counsels appearing for the parties and having considered their rival submissions in light of statutory provisions and decided case law on the subject, we are of the view that since the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority are quasi-judicial. 16. This leads to an another issue as to whether an appeal lies to CESTAT against levy of provisional anti-dumping duty and if yes, whether this Court should entertain the present petition when an alternative remedy in the form of an appeal is available to the petitioners. In support of this contention, Mr. Joshi relied on the decision of this Court in Surefaces Plus v. Union of India, 2004 (173) E.L.T. 127 (Guj.) wherein, while considering an issue as to whether an appeal lies against preliminary finding, the Court held that against preliminary finding, which is of a recommendatory nature, an appeal would not be tenable under Section 9C of the Act. The preliminary finding which is of a recommendatory nature is required to be considered by the Central Government under Rule 13 for the purpose of deciding the question of imposing provisional anti-dumping duty and the Central Government is required to issue notification for imposing anti-dumping duty. Such notification of imposing duty has not been issued so far by the Central Government. On the basis of these observations, the submission of Mr. Joshi is that since the Central Government has already issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rayers made in the petition and to what extent. At the outset, we make it clear that we would not like to go into various issues raised before us, such as initiation of investigation, status of respondent Nos. 3 4, validity of proceedings including levy of provisional anti-dumping duty etc. We, however, go into the aspect of confidentiality claimed by the respondent Nos. 3 4 and accepted by the respondent No. 2, with special reference to Rules 7 and 12 of the Rules. 18. Rule 7 deals with confidential information which reads as under :- (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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he suppliers, or when this is impracticable, the supplying countries involved; (ii) a description of the article which is sufficient for customs purposes; (iii) the margins of dumping established and a full explanation of the reasons for the methodology used in the establishment and comparison of the export price and the normal value; (iv) considerations relevant to the injury determination; and (v) the main reasons leading to the determination. 21. Despite Rule 12, the Designated Authority, while recording his findings in his order kept certain things confidential which is contrary to Rule 12 and against settled principles of law propounded by the Apex Court. 22. Mr. Chhaya, the learned Standing Counsel, however, submits that determination by the Designated Authority is nothing but information generated by the Designated Authority. Therefore, conclusion of the Designated Authority is also in the nature of information. The only difference is one is provided by the party and other is generated by the Authority. If information is generated by the Authority from confidential information provided by the authority, it does not loose its character of being comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that Rules contemplate disclosure statement at the stage of Rule 16 i.e. just before final findings, which establishes that disclosure of facts is not contemplated at this stage. According to him, it is further established by the fact that no reference is made to normal value, export price and amount of dumping margin under Rule 12(1). Since disclosure of facts is contemplated at much later stage, any request at this stage is premature. 24. The whole issue can be examined in light of the observations made by the Apex Court in (i) Sterlite Industries (India) Limited (supra) and (ii) Reliance Industries Limited (Supra). In Sterlite Industries (India) Limited (supra), it is held by the Apex Court as under :- In pursuance of Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 the Designated Authority is treating all material submitted to it as confidential 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the DA has arrived at its decision and made its recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or this Court. This is contrary to the view taken by the Constitution Bench of this Court in S.N. Mukherjee s case (supra). 27. If the impugned notification dated 25-5-2009 is examined in light of the above principles laid down by the Apex Court, it appears that the designated authority has mixed up the confidentiality as to information and confidentiality as to preliminary finding. After recording the preliminary finding in paragraph 13 of the notification that M/s. Cheminova India Limited supported by M/s. Excel Industries Limited, constitutes domestic industry and the initiation of the anti-dumping investigations by the authority is well within its jurisdiction under anti-dumping Rules and law in this regard. The designated authority started discussion on the issues regarding normal value, export price and dumping margin. While determination of normal value, the designated authority in paragraph 22 kept the figure of reasonable profit margin as blank of ex-factory cost, excluded interest and while construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le exercise undertaken by the designated authority and withholding of certain relevant data of its preliminary finding is certainly causing prejudice not only to the petitioners but all importers and in absence of such data in respect of its finding, it is practically impossible for them to raise any objection or to make any effective submission. The data on its conclusions is not revealed by the D.A. under claim of confidentiality under Rule 7. On reading the said provisions, we find that Rule 7 contemplates confidentiality only in respect of information and not conclusion or data of conclusion. The claim of confidentiality by D.A. is, therefore, not well found. This excessive claim of confidentiality defeats the right to appeal. In absence of knowledge of the consequences grounds, reasoning and methodology by which the designated authority has arrived at its decision and made its recommendations, the petitioners could not effectively exercise their right to raise an effective objection in order to ventilate their grievance before this Court in a purposeful manner. Even their right to appeal against the final finding is also put in to jeopardy. We, therefore, do not endorse the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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