9911796707
TMI Blog2016 (10) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... dy held by him to be confidential by duly accepting such a claim of any of the parties providing the information. While taking precautions not to disclose the sensitive confidential informations, the DA can, by adopting a sensible approach indicate reasons on major issues so that parties may in general terms have the knowledge as to why their case or objection has not been accepted in preference to a rival claim. But in the garb of unclaimed confidentiality, the DA cannot shirk from its responsibility to act fairly in its quasi-judicial role and refuse to indicate reasons for its findings. The DA will do well to remember not to treat any information as confidential unless a claim of confidentiality has been made by any of the parties supplying the information. In cases where it is not possible to accept a claim of confidentiality, Rule 7 hardly leaves any option with the DA but to ignore such confidential information if it is of the view that the information is really not confidential and still the concerned party does not agree to its being made public. In such a situation the information cannot be made public but has to be simply ignored and treated as non est. Petition dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not on the merits of the matters on an understanding that the matters shall be disposed of by competent Benches in the light of our answer to the aforesaid question/issue of law. 3. At the outset we record that it is the Union of India and the Designated Authority who have sought for a relook in respect of interpretation of Rule 7 of the Rules as flowing from the case of Reliance Industries Ltd. (supra). Mr. Yashank Adhyaru, learned senior advocate appearing for the appellants in Civil Appeal No. 1679 of 2010 has argued that appeal as the lead matter. According to him the view taken in the Reliance Industries case whittles down the effect of Rule 7 and unless we re-state the law differently, the Designated Authority (hereinafter referred to as the DA ) will be forced to disclose materials which are otherwise protected by the confidentiality provisions in Rule 7. According to learned senior counsel, the Division Bench in Reliance Industries case noticed and extracted a passage from the earlier judgment of a co-ordinate Bench in the case of Sterlite Industries (India) Ltd. v. Designated Authority, M/o Commerce Others (2006) 10 SCC 386 decided on November 25, 2003 but erred in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowers the Central Government to frame the rules under which an investigation may be made for the purpose of Section 9B to meet exceptional situation contemplated by Section 9B(1)(b)(ii). 6. The Central Government framed and notified the rules on 01.01.1995 in exercise of powers conferred by sub-section (6) of Section 9A and sub-section (2) of Section 9B of the Act. There is no dispute that the Rules are based largely upon an International Agreement on implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (for brevity GATT 1994 ). Under this Agreement all the members including India concurred on the broad principles for applying anti-dumping measures only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigation in accordance with the provisions of the Agreement. Let us take a bird s eye view of its relevant Articles. Article 5 of the Agreement contains provisions for initiation of investigation and its completion in respect of an alleged dumping. The initiation has to be generally upon a written application by or on behalf of the domestic industry. In special circumstances the DA may initiate an investigation even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he information submitted n confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided. 6.5.2 If the authorities find that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct. 6.6 XXXXXXXXXX 6.7 XXXXXXXXXX 6.8 In cases in which any interested party refuses access to, or otherwise does not provide, necessary information within a reasonable period or significantly impedes the investigation, preliminary and final determinations, affirmative or negative, may be made on the basis of the facts available. The provisions of Annex II shall be observed in the application of this paragraph. 7. Before adverting to Rule 7 which is of prime significance, it will be useful to notice the relevant Rules also. Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formation 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 summarization 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 authorize its disclosure in a generalized or summary form, it may disregard such information. 8. Only to complete the bird s eye view of the Rules, it may be noted that as per Rule 8 the DA has to satisfy itself as to the accuracy of the information supplied by the interested parties if findings are based upon such information. Rule 12 contains details as to how preliminary findings are to be arrived at and a public notice to be issued of such preliminary findings. Provisional duty may be levied on the basis of preliminary findings, by the Central Government, as empowered by Rule 13. Rule 17 is similar to Rule 12 but deals with the final findings wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticular information. The use of the term any party in the opening sentence of Rule 7(1) in place of the expression interested party , according to learned counsel, indicates that the DA may receive in course of his suo motu action certain confidential informations and in such a situation if he is satisfied that the confidentiality of such information needs to be protected and should not be disclosed to any other party without specific authorisation, the DA may be justified in his action whereby he himself claims confidentiality in appropriate cases without any party exercising the right of confidentiality. 11. To buttress his aforesaid stand learned senior counsel placed emphasis upon Articles 6.2 and 6.5 of GATT 1994. By placing reliance upon paragraph 23 of the judgment in the case of Commissioner of Customs, Bangalore v. G.M. Exports (2016) 1 SCC 91 he submitted that in the light of Article 51(c) of the Constitution of India, in a situation where India is a signatory to an international Treaty or Agreement and a statute is made to enforce a treaty obligation, then in case of any difference between the language of such statute and a corresponding provision of the Treaty, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity made by any party has been accepted by the DA. Where appeal is provided, the appellate authority will definitely be entitled to look into the records including the confidential information as well as into the correctness of the decision for accepting a claim of confidentiality. The situation is similar to one under the administrative law where a policy may exempt the authority from requirement of communicating its reasons for an administrative decision/order affecting rights and interests of parties but certainly reasons must exist in the records so as to justify the reasonableness and fairness of the decision if it has adverse effects upon any party. Any court or tribunal exercising judicial review is entitled to call for the records to satisfy itself as to the existence of reasons in appropriate cases involving a challenge to such order. In case the DA is conceded power to gather informations from sources other than interested parties, he must not treat such information as confidential unless the party which has supplied the information makes a request to keep the information confidential. Even in such a situation where an uninterested party claims confidentiality in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant s version should have been stated in the order of the DA. Para 43 has already been extracted earlier. 15. Looking at the contents of Rule 7 and the facts and issues involved in Reliance Industries case, we agree with the submissions of Mr. Patil that fact situation in that case was entirely different and the Court was not examining the provisions of Rule 7 in any detail but made rather scathing observations against the DA because the DA claimed confidentiality not in respect of any information but in respect of its findings based upon information supplied by the same party who was aggrieved by non-supply of the findings. The observations in Reliance Industries case must be understood in the fact situation of that case in view of well established proposition of law that the ratio decide ndi consists in the reasons formulated by the court for resolving an issue arising for determination and not in what may logically appear to flow from observations on non issues. Reference in this regard may be made to law enunciated on this point by a Constitution Bench, in paragraph 20 of the judgment in the case of Krishena Kumar v. Union of India Ors. (1990) 4 SCC 207 In the gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r material is required to be kept confidential. Even where confidentiality is required it will always be open for the Appellate Authority, namely, CEGAT to look into the relevant files. 17. The concern shown by the Court in the above quoted paragraph as regards the ill-effect of being too liberal in accepting claims of confidentiality has been echoed in the same vein in paragraph 45 of the Reliance Industries case in following words: 45. In our opinion, excessive and unwarranted claim of confidentiality defeats the right to appeal. In the absence of knowledge of the consequences, grounds, reasoning and methodology by which 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 case. 18. Mr. V. Lakshmikumaran appearing for some of the respondents such as SanDisk International Ltd. has highlighted particular facts of his case. According to him anti-dumping investigation was initiated against SanDisk on the petition of sole domestic producer Moser Baer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been rebutted in reply. 21. Mr. V. Lakshmikumaran has referred to and relied upon judgment of this Court in Designated Authority (Anti-Dumping Directorate), Ministry of Commerce v. Haldor Topsoe A/S (2000) 6 SCC 626 to highlight that in the scheme of the Act and the Rules, in paragraph 25 of that judgment this Court considered the proviso to Rule 17 which empowers the Central Government to extend the time for publication of final finding by the DA by further six months and repelled the submission that while granting extension of time, the Central Government is obliged to afford opportunity of hearing to the parties concerned with the investigation. The Court held that in the course of investigation the principles of natural justice would have limited application only to the extent indicated in the statute, because elaborate provisions for the same are already provided for. In our view this judgment helps the respondents only to a limited extent that general principles of natural justice need not be imported to govern each and every step during the investigation proceedings. 22. We are in respectful agreement with the above view and also with the submission that the source of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the act of DA in claiming confidentiality about its findings. In view of proceedings being quasi-judicial, the DA was rightly held duty bound to disclose its reasons for not accepting the version given by the appellant. Finally Mr. Lakshmikumaran submitted that the observations given by the Court in Reliance Industries case do not require any interference and the appeals filed on behalf of the Union of India and the DA should be dismissed. 24. Mr. Jitendra Singh, advocate, appearing for Meghmani Organics Ltd. in the lead case, reiterated the submissions noted earlier. According to his submissions also there is no conflict between law laid down in Sterlite Industries case and in Reliance Industries case. He also submitted that in fact the appeal against Meghmani Organics Ltd. has also become infructuous. However, we refrain to decide the matter on facts even to the extent whether the appeal has become infructuous or not. 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 Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
