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TMI Blog2023 (3) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 - 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 effect that injury is being caused to the domestic industry by furnishing evidence of dumping. The Anti-Dumping Rules require a link between the dumped imports and the alleged injury to be established. The Court needs to examine whether the Anti-Dumping Rules are inconsistent with the provisions of the RTI Act. The legal issue in the context of specific Rules framed by various authorities in respect of disclosure of information, in different contexts, has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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. 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 parties. This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules. The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings. Such knowledge would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om European Union, Korea RP and Thailand. The seven issues in respect of which information was sought by the RTI Applicant is as under: (1) Kindly provide with the date when the application was jointly filed by M/s. Indian Synthetic Rubber Pvt. Ltd. and Reliance Industries Limited (hereinafter referred as 'applicants') before the Designated Authority in respect of the matter under reference; (2) Kindly provide us with a copy of the non-confidential version of the application filed by the applicants in this matter; (3) When was the decision to initiate the Anti-dumping Investigation for levy of Anti dumping duties on the product taken by the Director General of Anti Dumping (DGAD); and also provide us a with a photo copy of the Note Sheet put up for approval by DGAD; (4) When were the relevant foreign governments viz. European Union, Korea RP, and Thailand intimated of the Anti-dumping investigation initiated; and kindly provide us a with a copy of the intimation; (5) When the known exporters were intimated about the Anti-dumping investigation, and If yes, kindly provide us with a copy of the intimation. (6) Whether said Notification was sen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him comprised of confidential information that cannot be summarised into non-confidential version. Qua the other non-confidential information, the reply stated that if the RTI Applicant is an interested party as per the Anti-Dumping Rules, it may verify the public file of the concerned case. The reply of the FAA dated 3rd June, 2016 reads as under: Please refer to your appeal dated 11.4.2016 under RTI Act against CPIO's reply dated 31.3.2016 . It is stated that note sheet contains confidential information and it cannot be summarised into non-confidential version . As regards the other non-confidential information sought by you, if you are an interested party as per the Anti-dumping Rules, you may verify the Public File of the concerned case. 8. Being dissatisfied with the reply given by the FAA, the RTI Applicant preferred second appeal under Section 19(3) of the RTI Act to the CIC. Vide the impugned order, the CIC has directed the Directorate General of Anti-Dumping and Allied Duties to provide the information, including the note sheet to the RTI Applicant. The relevant portion of the impugned order reads as under: DECISION It would be seen here that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd perusal of the Commissioner. The Commissioner has perused thoroughly the Noting Portion of the file and finds that there is nothing, which can be exempted under the provisions of the RTI Act 2005. 5. By virtue of the above, the Commission feels that Sh. Rajiv Arora, Additional DG(FT), tried his level best to mislead the Commission and came here without preparation of the case. Therefore, the Commission warned him to come before the Commission with full preparation of the case to oppose second appeal, on behalf of respondents in future, otherwise Commission would be left with no option but to ban his appearance before the Commission to meet the end of justice. 6. The Commission heard the submissions made by Sh. Darpan Bhuyan, Learned Advocate as well as respondents at length. The Commission also perused the case-file thoroughly, specifically, nature of issues raised by the appellant in his RTI application dated 29.01.2016, respondent's response dated 11.02.2016, 31.03.2016, made available on record and also the grounds of memorandum of second appeal. 7. The Commission is of the considered view that the appellant has been deprived by the respondents deli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e findings are published by way of a public notice which is issued under Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (hereinafter Anti-Dumping Rules ). The initiation of investigation is publicised by means of a public notice issued under Rule 7. The said initiation leads to various persons being issued a notice for objecting to the imposition of anti-dumping duty. Preliminary findings are issued after determining the nature of the injury caused, if any. The final findings are then issued under Rule 17 of the Anti-Dumping Rules. The final findings are also published in the official gazette. 12. These Rules have a proper scheme as to how confidentiality has to be maintained in respect of the information received from the complainants under Rule 7 and this cannot be the subject matter of RTI proceedings. It is the submission of the ld. Counsel for the Petitioners that the RTI Applicant could have obtained the information sought in the RTI application from the Anti-Dumping Authority and in any event, if information cannot be obtained from the Anti-Dumping Authority, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould severely impact the domestic industry. The findings relating to imposition of anti-dumping duty having attained finality, the RTI mechanism cannot be used for obtaining sensitive commercial data and confidential information concerning direct competitors of the RTI Applicant. 16. It is the submission of the Petitioners that this data which is contained in the confidential version of the information as also in the note sheet, which led to the initiation of the enquiry, if disclosed, could have a bearing on the complainants business interest and commercial competitiveness. 17. On the other hand, Mr. Ankur Sharma, ld. Counsel appearing for the RTI Applicant submits that the note-sheet, which is being sought, is the basis of the investigation which was commenced and the RTI Applicant and the industry is entitled to know the basis of initiation of the anti-dumping investigation. He further submits that if there is any confidential information in the same, the same can be redacted by the Anti-Dumping Authority. The manner in which final findings are published in confidential and non-confidential versions, can also be adopted even for the initial order under Rules 5 6 initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerning the interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and Anti-Dumping Rules with the Right to Information Act, 2005. During the 1990s, when global trade saw extensive expansion, apprehensions were expressed by nations in respect of exports of goods and products from countries at prices lower than their domestic prices into importing countries. The concept of exporting goods into the international market at lower prices came to be known as Dumping . 21. The General Agreement on Tariffs and Trade (GATT), which dealt with issues of dumping under Article VI, recognised the right of countries to bring in anti-dumping frameworks to deal with issues relating to dumping. Article VI of GATT reads as under: Article VI Anti-dumping and Countervailing Duties 1. The contracting parties recognize that dumping, by which products of one country are introduced into the commerce of another country at less than the normal value of the products, is to be condemned if it causes or threatens material injury to an established industry in the territory of a contracting party or materially retards the establishment of a domestic industry. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization. 6. (a) No contracting party shall levy any anti-dumping or countervailing duty on the importation of any product of the territory of another contracting party unless it determines that the effect of the dumping or subsidization, as the case may be, is such as to cause or threaten material injury to an established domestic industry, or is such as to retard materially the establishment of a domestic industry. (b) The CONTRACTING PARTIES may waive the requirement of sub-paragraph (a) of this paragraph so as to permit a contracting party to levy an anti-dumping or countervailing duty on the importation of any product for the purpose of offsetting dumping or subsidization which causes or threatens material injury to an industry in the territory of another contracting party exporting the product concerned to the territory of the importing contracting party. The CONTRACTING PARTIES shall waive the requirements of sub-paragraph (a) of this paragraph, so as to permit the levying of a countervailing duty, in cases in which they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 V 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 without a written application provided it has sufficient evidence of dumping. A time limit of one year to eighteen months is prescribed for concluding the investigation. Article VI deals with Evidence which is generally to be made known to all interested parties except where the information is confidential. 24. The provisions of the Anti-Dumping Agreement, while laying down the broad framework and principles to be followed during the process of imposing anti-dumping duties, recognised the confidenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicate 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 Except in circumstances provided for in paragraph 8, the authorities shall during the course of an investigation satisfy themselves as to the accuracy of the information supplied by interested parties upon which their findings are based. 6.7 In order to verify information provided or to obtain further details, the authorities may carry out investigations in the territory of other Members as required, provided they obtain the agreement of the firms concerned and notify the representatives of the government of the Member in question, and unless that Member objects to the investigation. The procedures describ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and the alleged injury to be established. As per Rule 6(1), the Designated Authority (hereinafter DA ), after examining the complaint and upon recording its satisfaction in terms of Rule 6 is to issue a public notice specifying the following facts included in 6(1)(i) to 6(1)(vi): (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. 27. As per Rule 6(2) and (3), copies of the public notice and the complaint are forwarded to governments of exporting countries and known exporters of the article alleged to have been dumped. While the public notice is also forwarded by the DA to other interested parties, the said parties have to make request in writing to get a copy of the complaint as per proviso to Rule 6(3). 28. Rules 6(4)-(8) prescribe the manner in which all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is not possible. Under Rule 7(3), the authority has the final say on deciding as to whether the request of confidentiality is warranted or not. 30. In the present case, the anti-dumping investigation was initiated at the instance of ISRPL and Reliance Industry Ltd. i.e., the Petitioners in W.P.(C) 2603/2017. The said two companies filed a complaint before the Anti-Dumping Authority with respect to alleged dumping of SBR of 1500 and 1700 series originating in or exported from European Union, Korea RP, and Thailand, and resultant injury to the domestic industry. Shri Virender Kapoor, the RTI Applicant was a party to the anti-dumping investigation. He participated in the said investigations which finally led to the imposition of anti-dumping duty vide notification no. 14/10/2015-DGAD dated 12th July 2017. 31. The concerned official from the Directorate General of Anti-Dumping and Allied Duties had handed over the original file of the DA in the matter along with a chart indicating the information which is claimed to be confidential and the corresponding noting number, upon being requested by the Court, to highlight the fact that the information which was given by the do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le non-confidential version of the evidence presented by various interested parties in the form of a public file kept open for inspection by all interested parties. The public file was inspected by a number of interested parties a number of times interested parties, who requested inspection and copies of the documents from the public file, were provided with the same. p. Information provided by interested parties on confidential basis was examined with regard to sufficiency of the confidentiality claim. The Authority accepted the confidentiality claims, wherever warranted and such information has been considered confidential and not disclosed to other interested parties. Wherever possible, parties providing information on confidential basis were directed to provide sufficient non-confidential version of the information filed on confidential basis, which was made available through public file. 35. The DA finally recommended the imposition of anti-dumping duty. The matter was carried in appeal to the Customs, Excise Service Tax Appellate Tribunal (CESTAT) which, vide decision dated 12th March, 2018, in Anti-Dumping Appeal No. 51809/2017 titled M/s Trinseo Europe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithstanding anything inconsistent therewith contained in any other law, or in any instrument having effect by virtue of any other law. Section 22 of the RTI Act reads as under: 22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. 40. Thus, the Court needs to examine whether the Anti-Dumping Rules are inconsistent with the provisions of the RTI Act. The legal issue in the context of specific Rules framed by various authorities in respect of disclosure of information, in different contexts, has been subject matter of at least two decisions. In the case of Registrar of Supreme Court of India v. R.S. Misra W.P.(C) 3530/2011, date of decision 21st November, 2017, a ld. Single Judge of this Court was dealing with a request for information under the RTI Act in the context of Supreme Court Rules, 1966/2013 framed by the Supreme Court. In the said decision, the Court considered the framework of the said Rules framed under Article 145 of the Constitution of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Ord. 63 rr. 4 and 4A any person, on payment of the prescribed fee, was entitled to search for, inspect and take a copy of the originating summons. The official receiver's report could be inspected and copied with the leave of the court, which might be granted on an ex parte application. The provision in the Insolvency Rules, for the inspection of the court file by a creditor of the company to which the insolvency proceedings relate, had and has no application. Inspection of documents on the court file otherwise than in accordance with the rules. The Rules of the Supreme Court do not expressly prohibit inspection and taking copies of documents otherwise than in accordance with the rules. What the rules do is to require parties to proceedings to file certain documents in the court office. Ord. 63 r. 4 provides that of the documents which must be filed, some are to be open to general inspection. Other documents may be inspected with the leave of the court. Rule 4 provides further that this requirement is not to prevent parties to proceedings from inspecting or obtaining copies of documents on the file. In my view these provisions do not make sense unless they are read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egislature cannot make law to deprive the courts of their legitimate judicial functions conferred under the procedure established by law. 74. Also, the RTI Act does not provide for an appeal against a Supreme Court judgment/order that has attained finality. It is clarified that queries under the RTI Act would be maintainable to elicit information like how many leaves a Hon'ble Judge takes or with regard to administrative decision an Hon'ble Judge takes; but no query shall lie with regard to a judicial decision/function. 41. This judgment was considered by the Supreme Court in Chief Information Commissioner v. High Court of Gujarat Anr. C.A.1966-1967/2020, decided on 4th March, 2020. The said case also involved interplay between the RTI Act and Rules framed by the Gujarat High Court. The findings of the Supreme Court in the said judgment are as under: 13. We have carefully considered the contentions and perused the impugned judgment and materials on record. The following points arise for consideration in this appeal:- (i) Whether Rule 151 of the Gujarat High Court Rules, 1993 stipulating that for providing copy of documents to the third parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it stating the reasons for seeking the information. The reason insisting upon the third party for stating the grounds for obtaining certified copies is to satisfy the court that the information is sought for bona fide reasons or to effectuate public interest. The information is held by the High Court as a trustee for the litigants in order to adjudicate upon the matter and administer justice. The same cannot be permitted by the third party to have access to such personal information of the parties or information given by the Government in the proceedings. Lest, there would be misuse of process of court and the information and it would reach unmanageable levels. If the High Court Rules framed under Article 225 provide a mechanism for invoking the said right in a particular manner, the said mechanism should be preserved and followed. The said mechanism cannot be abandoned or discontinued merely because the general law RTI Act has been enacted. 28. As discussed earlier, the object of the RTI Act itself recognizes the need to protect the institutional interest and also to make optimum use of limited fiscal resources and preservation of confidentiality of sensitive informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply. (ii) The information to be accessed/certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to. 42. A perusal of the above two decisions shows that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act. Moreover, the Supreme Court has specifically held that on the judicial side the information is held by courts as a trustee for litigants in order to adjudicate upon the matter and the same cannot be permitted to be accessed by third parties. A proper balance is to be maintained in order to ensure the confidentiality of documents and other information pertaining to the litigants to the proceedings. 43. In the case at hand, it is the submission of the RTI Applicant itself that the Anti-Dumping Authority is acting as a quasi-judicial body when dealing with the complaint of the complainant in respect of dumping. This Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest and seeks to exempt disclosure of such information, as well as such information which, if disclosed, would cause unwarranted invasion of privacy of an individual, unless public interest warrants its disclosure, Section 11 exempts the disclosure of 'information or record...which relates to or has been supplied by a third party and has been treated as confidential by that third party'. By differently wording and inditing the challenge that privacy and confidentiality throw to information rights, the RTI Act also recognises the interconnectedness, yet distinctiveness between the breach of confidentiality and invasion of privacy, as the former is broader than the latter, as will be noticed below. XXX 70. Most jurists would accept that absolute transparency in all facets of government is neither feasible nor desirable, for there are several limitations on complete disclosure of governmental information, especially in matters relating to national security, diplomatic relations, internal security or sensitive diplomatic correspondence. There is also a need to accept and trust the government's decision-makers, which they have to also earn, when they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view of the nature of the proceedings, the Court cannot allow the RTI Applicant to bypass the said barrier. Moreover, Mr. Ankur Sharma, ld. Counsel for the RTI has himself brought to the attention of this Court the judgment of the Supreme Court in Meghmani Organics (supra) wherein the Court has interpreted Rule 7 of the Anti-Dumping Rules. The relevant portion of the said judgment is as under: 22. We are in respectful agreement with the above view and also with the submission that the source of power in the DA to treat an information as confidential must be within the confines of Rule 7. The ordinary meaning of the words used in this Rule are clear and hence there is no requirement to depart from the golden Rule of interpretation i.e., the Rule of Literal Construction. If the submission advanced on behalf of Union of India and DA are accepted, one will have to adopt a purposive liberal interpretation so as to enlarge the scope of this Rule. That does not appear to be the intention of the statute makers nor it is warranted by the context. The effect of Rule 7 is clear. It permits an exception to the principles of natural justice. In such a situation, even if there had bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 48. In the context of anti-dumping proceedings and information disclosed therein, the DA has to undertake a detailed enquiry into issues such as competitive advan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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