IMPORTANT POINTS
Observation in Reliance Industries does not diminish the scope of Rule 7.
Reasons or findings of DA cannot be equated with the information supplied by a party claiming confidentiality in respect thereto. Hence, Rule 7 does not empower the DA to claim any confidentiality in respect of reasons for its finding given against a party.
Reliance Industries case does not adversely affect or run counter to the law spelt out in Sterlite Industries case.
While dealing with objections or case of the concerned parties, DA must not disclose the information which are already held by him to be confidential.
DA can 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.
DA should not treat any information as confidential unless confidentiality is claimed by the party,
DA must ignore information which is not confidential and still the concerned party does not agree to its being made public.

Headnote:(a) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rules 12 and 17, and 13 and 18 – DA to conduct investigation after issuing g public notice and submit its preliminary finding u/r 12 whereupon Central government may levy provisional duty u/r 13 – Similarly final duty may be levied u/r 18 upon final findings of the DA u/r 17 – Thus findings of the DA recorded after investigation are of immense significance though they look recommendatory in nature – Therefore, the investigation is required to be carried on in a fair manner by issuance of public notice at relevant stages and after informing all interested parties. (Para 8)
       (b) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 7 – The DA, being a statutory investigator, cannot assume for himself the role of a party for the purpose of Rule 7 and to claim as well as accept on information to be confidential – Secondly, an appeal is provided u/s 9C – Therefore the DA has to maintain records of reasons as to why claim of confidentiality made by any party has been accepted – Further, the DA has to take all necessary precautions to decide the genuineness of claims of confidentiality. (Para 11, 12)
       (c) Interpretation of Judgment – Ratio decidendi – Consists in the reasons formulated by the court for resolving an issue arising for determination – Not in what may logically appear to flow from observations on non issues. (Para 15)
       (1990) 4 SCC 207 – Relied upon
       (d) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 7 – Not postulating DA to claim confidentiality in respect of any information supplied by a party or in respect of its reasons or findings derived from information supplied by the same very party. (Para 15)
       (2006) 10 SCC 368 – Relied upon
       (e) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 17 – General principles of natural justice need not be imported to govern each and every step during the investigation proceedings. (Para 21)
       (2000) 6 SCC 626 – Relied upon
       (f) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 7 – Permits an exception to the principles of natural justice – Language being clear and unambiguous, it should be literally construed – Enlarging its scope by purposive liberal interpretation – Neither intention of statute makers nor warranted. (Para 22)
       (1900) AC 323; (1971) 1 SCC 85; (1997) 8 SCC 89 – Relied upon
       (1980) 1 All ER 80 – Referred
       (g) Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 7 – Decisions in Reliance Industries and Sterlite Industries – Observation in Reliance Industries does not diminish the scope of Rule 7 – Reasons or findings of DA cannot be equated with the information supplied by a party claiming confidentiality in respect thereto – Hence, Rule 7 does not empower the DA to claim any confidentiality in respect of reasons for its finding given against a party – Court concurring with law laid down in respect of rule of confidentiality in Sterlite Industries – Reliance Industries case does not adversely affect or run counter to the law spelt out in Sterlite Industries case – While dealing with objections or case of the concerned parties, DA must not disclose the information which are already held by him to be confidential – DA can 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 – DA should not treat any information as confidential unless confidentiality is claimed by the party – DA must ignore information which is not confidential and still the concerned party does not agree to its being made public. (Para 25)
       (2006) 10 SCC 368; (2006) 10 SCC 386 – Relied upon
       (2009) 2 SCC 510; (2006) 4 SCC 303; (1990) 4 SCC 594 – Referred
       Facts of the case:
       While hearing special leave petition against a judgment of the Delhi High Court, the Division Bench on January 27, 2009 in the case of Designated Authority, Ministry of Commerce and Industry v. Indian Metals & Ferro Alloys Limited, (2009) 2 SCC 510 noticed that in the context of interpretation of anti-dumping provisions of the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995, the Delhi High Court had allowed the writ petition mainly by following the judgment of Supreme Court in the case of Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC 368 and also by following interpretation of Section 9-A(5) given in Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary, (2006) 4 SCC 303. The Division Bench recorded its views that Reliance Industries case needed a fresh look and two questions needed to be dealt with by a larger Bench. Since the first question is no longer relevant on account of subsequent amendment of the Act, the present Bench took note of only the other relevant question requiring answer. The question reads thus:
       “Whether the interpretation placed upon Rule 7 of the Rules is correct insofar as it diminishes the rule of confidentiality statutorily provided for under Rule 7.”
       Finding of the Court:
       There is no conflict between the view taken in Reliance Industries case and that in Sterlite Industries.

JUDGMENT :

SHIVA KIRTI SINGH, J.

1. While hearing special leave petition against a judgment of the Delhi High Court, the Division Bench on January 27, 2009 in the case of Designated Authority, Ministry of Commerce and Industry & Anr. v. Indian Metals & Ferro Alloys Limited, (2009) 2 SCC 510 noticed that in the context of interpretation of anti-dumping provisions of the Customs Tariff Act, 1975 (in short “the Act”) and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (for brevity “the Rules”), the Delhi High Court had allowed the writ petition mainly by following the judgment of this Court in the case of Reliance Industries Ltd. v. Designated Authority & Others, (2006) 10 SCC 368 and also by following interpretation of Section 9-A(5) given in Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary, (2006) 4 SCC 303. At the instance of counsel for the petitioners in that case, in paragraph 5 of that judgment, the Division Bench recorded its views that Reliance Industries case needed a fresh look and two questions needed to be dealt with by a larger Bench. Since the first question, as per submissions of all the parties is no longer relevant on account of subsequent amendment of the Act, we take note of only the other relevant question requiring answer by this Bench. The question reads thus:

“Whether the interpretation placed upon Rule 7 of the Rules is correct insofar as it diminishes the rule of confidentiality statutorily provided for under Rule 7.”

2. Learned counsels for the rival parties have advanced submissions only in relation to the aforesaid question of law and 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 taking a somewhat different view by a misplaced reliance upon the view taken by the Constitution Bench in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594.

4. To the contrary, as we shall notice hereinafter, a stand has been taken by the counsels appearing for the parties who have made complaints of dumping, that Rule 7 has been correctly understood and interpreted in Sterlite Industries Ltd. (supra) casting duty upon the DA to examine and decide on case to case basis whether information supplied is required to be kept confidential or not. The whole of the paragraph 3 of that judgment has been highlighted to submit that it is for the DA to decide in any relevant situation whether a particular material/information for which confidentiality has been claimed, is required to be kept confidential. Of course the Appellate Authority namely CEGAT will always have the power to look into the relevant files including the materials treated as confidential for deciding the issues raised in appeal.

5. With a view to place Rule 7 and other relevant rules in their correct perspective, we

Click Here to Read the rest of this document

2016 Supreme(SC) 822

Cases Referred (9)