Confidential Information; Union of India Vs. M/s Meghmani Organics Ltd. [Supreme Court of India, 07-10-2016]

Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 – Rule 7 – Confidential Information – Designated Authority (DA) – The reasons or findings 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. While dealing with objections or the case of the concerned parties, the DA must not disclose the information which are already 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.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

[J. CHELAMESWAR] [SHIVA KIRTI SINGH] [ABHAY MANOHAR SAPRE] JJ.

October 7, 2016

CIVIL APPEAL NO. 1679 of 2010

Union of India & Anr. …..Appellants

Versus

M/s Meghmani Organics Ltd. & Ors. …..Respondents

W I T H

S.L.P.(C) No. 14099 of 2015, S.L.P.(C) No. 14524 of 2015 AND CIVIL APPEAL NOS. 3498-3500 of 2004

J U D G M E N T

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 3

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 have been taken through Sections 9A, 9B and particularly sub-section (2) of Section 9B of the Act. Section 9A clarifies as to when an article exported from any country or territory to India at less than its normal value may be subjected to an anti-dumping duty not exceeding the margin of dumping in relation to such article. By the aid of explanation, margin of dumping has been clarified as the difference between the export price and the normal value of an article. The meaning of export price and normal value require some factual investigation to find out whether dumping has taken place or not and if yes, what is the margin of dumping. Therefore, sub-section (6) of Section 9A not only authorizes the Central Government to ascertain and determine after necessary enquiry, the margin of dumping but also empowers it to make rules for identifying articles liable for anti-dumping duty and for the manner in which the export price, the normal value and the margin of dumping in relation to such articles need to be determined as well as for the assessment and collection of such anti-dumping duty. Section 9B (1) states the circumstances and situation when an article shall not be subjected to countervailing duty or anti-dumping duty under Sections 9 and 9A. However, sub-section (2) of Section 9B 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