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C.A.No. 1679 of 2010 etc.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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 Limited1 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,

1  (2009) 2 SCC 510

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C.A.No. 1679 of 2010 etc.

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 & Others2 and also by following interpretation

of Section 9-A(5) given in Rishiroop Polymers (P) Ltd. v. Designated

Authority & Additional Secretary.3 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

2  (2006) 10 SCC 368

3  (2006) 4 SCC 303

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C.A.No. 1679 of 2010 etc.

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  &  Others4 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.5

4  (2006) 10 SCC 386 decided on November 25, 2003

5  (1990) 4 SCC 594

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C.A.No. 1679 of 2010 etc.

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

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C.A.No. 1679 of 2010 etc.

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  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

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C.A.No. 1679 of 2010 etc.

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

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 6 deals with “Evidence” which is

generally to be made known to all interested parties except where the

information is confidential. Paragraphs 2, 4, 5 and 8 under Article 6,

shown as paragraphs 6.2, 6.4, 6.5 and 6.8 have ample connection

with the matter at hand and hence they are extracted herein below:

“6.2  Throughout  the  anti-dumping  investigation  all interested parties shall  have a full  opportunity for the defence of their interests.  To this end, the authorities shall, on request, provide opportunities for all interested parties to meet those parties with adverse interests, so that  opposing  views  may  be  presented  and  rebuttal arguments offered.  Provision of such opportunities must take account of the need to preserve confidentiality and of  the  convenience  to  the  parties.   There  shall  be  no obligation on any party to attend a meeting, and failure to  do so  shall  not  be  prejudicial  to  that  party’s  case. Interested  parties  shall  also  have  the  right,  on justification, to present other information orally.

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6.3 XXXXXXXXXXXX

6.4 The authorities  shall  whenever  practicable  provide timely opportunities for all interested parties to sell all information that is relevant to the presentation of their cases, that is not confidential as defined in paragraph 5, and that is used by the authorities in an anti-dumping investigation, and to prepare presentations on the basis of this information.

6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive  advantage  to  a  competitor  or  because  its disclosure would have a significantly adverse effect upon a person  supplying  the  information or  upon a  person from whom  that  person  acquired  the  information),  or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed  without  specific  permission  of  the  party submitting it.  

6.5.1  The  authorities  shall  require  interested  parties providing  confidential  information  to  furnish non-confidential  summaries  thereof.  These  summaries shall  be  in  sufficient  detail  to  permit  a  reasonable understanding  of  the  substance  of  the  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

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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 2 embodies definition of

various terms such as ‘domestic industry’, ‘interested party’ etc. Rules

3 and 4 relate to appointment of Designated Authority and its duties.

Rule 5 relates to initiation of investigation. Usually it is done upon a

written application by or on behalf of the domestic industry but in

certain circumstances it may be initiated suo motu by the DA on being

satisfied from the information received from the Collector of Customs

as to the existence of certain circumstances. The DA has the duty to

notify  the  Government  of  exporting  countries  before  proceeding  to

initiate  an  investigation.  Rule  6  contains  principles  governing

investigations.  It  includes  provisions  for  issuance  of  public  notice

notifying  the  decision  to  initiate  an  investigation  with  adequate

informations of specified nature. The copy of the public notice is to be

given  to  all  known exporters  of  the  article  involved  in  the  alleged

dumping, the Government of exporting countries concerned and other

interested parties. Copy of the application alleging dumping is also to

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be made available to all concerned as noted above. The DA has power

to issue a notice calling for any information in the specified form from

the exporters, foreign producers and other interested parties within a

time bound schedule.  The DA is required to provide opportunity of

furnishing  relevant  information even to  the  industrial  users  of  the

article  under  investigation  and  to  representative  consumer

organizations (in appropriate cases).  Rule 6 (7)  obligates the DA to

“make available the evidence presented to it by one interested party to

the other interested parties, participating in the investigation.” Rule 7

is as follows:

“Rule 7. Confidential  information –  (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 authorization of the party providing such information.

2. The  designated  authority  may  require  the parties providing information 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

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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 which have to be arrived at normally within one year

of investigation and in exceptional cases within further period of six

months provided the Central Government grants the extension. The

DA is required to issue public notice of its final findings also. Rules 13

and 18 whereunder  the  Central  Government  is  empowered to  levy

provisional duty on the basis of preliminary findings or duties as per

final findings, as the case may be, demonstrate that the 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 so that they may also have their say. The Central Government

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appears  to  have  a  discretion  in  the  matter  of  determining  the

quantum of provisional duty as well  as final duty but with a clear

limitation  that  anti-dumping  duty  cannot  exceed  the  margin  of

dumping as determined by the DA.  

9. Since Mr. Yashank Adhyaru, learned senior advocate for the Union of

India has based his criticism of the judgment in Reliance Industries

on the basis of observations in paragraph 43 of that judgment, the

same is reproduced hereinbelow:

“43. In our opinion, Rule 7 does not contemplate any right  in  the  DA  to  claim  confidentiality,  Rule  7 specifically  provides  that  the  right  of  confidentiality  is restricted to the party who has supplied the information, and that party has also to satisfy the DA that the matter is  really  confidential.  Nowhere in the rule  has it  been provided  that  the  DA  has  the  right  to  claim confidentiality, particularly regarding information which pertains to the party which has supplied the same. In the present case, the DA failed to provide the detailed costing  information  to  the  appellant  on  the  basis  of which it computed NIP, even though the appellant was the sole producer of the product under consideration, in the country. In our opinion this was clearly illegal, and not contemplated by Rule 7.”

10. Elaborating his points further, learned senior counsel for the Union of

India submitted that the very opening sentence of above quoted para

43 lays down an incorrect proposition of law that Rule 7 does not

permit the DA to claim confidentiality and that right to make such a

claim  is  vested  only  in  a  party  who  has  supplied  the  particular

information.  The use of the term ‘any party’ in the opening sentence

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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.  Exports6 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, the statutory language should

be interpreted in the same sense as the language of the Treaty. In

abstract the proposition is salutary and needs no caveat. Articles 6.2

and 6.5 have already been extracted earlier.  In essence, Rules 6 and

7 of the Rules ensure the obligations flowing from Articles 6.2, 6.4 and

6  (2016) 1 SCC 91

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6.5.  While interested parties are entitled to have full opportunity to

defend their interests, such opportunities need to be hedged by the

need to maintain confidentiality.  Informations other than confidential

must be shown to all interested parties whenever practicable in terms

of  Article  6.4.   Any information which is  by nature confidential  or

which is provided on a confidential basis is required to be treated as

confidential  by the  authorities  but  only  on being  satisfied by good

cause shown for the confidentiality claimed.  No doubt the opening

clause  of  Article  6.5  covers  any  information  which  is  by  nature

confidential  but  the  examples  indicated  therein  clearly  reveal  that

such  information  is  required  to  be  kept  confidential  because  if

revealed it would give significant advantage to a competitor or would

have  significant  adverse  effect  upon  the  person  supplying  the

information  or  his  resource  person  from  whom  he  acquired  the

information.  The submission that DA is  entitled to presume such

effects  without  any  claim  being  made  by  the  party  supplying  the

information is, however, not acceptable for reasons more than one.

The examples are clearly meant to be only a guiding factor for the DA

who  cannot  by  exercise  of  discretion  presume  confidentiality  and

thereby  restrict  the  rights  of  the  interested  parties  to  see  relevant

informations that may be used by the DA for the investigation. The

DA, being a statutory investigator, cannot assume for himself the role

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of a party for the purpose of Rule 7 and to claim as well as accept on

information to be confidential.   12. The other reason is provision of appeal under Section 9C of the Act.

The appeal provided is against the order of determination or review

thereof regarding the existence, degree and effect of any subsidy or

dumping in relation to import of any article.  It is one thing to use

confidential information for the purpose of investigation on account of

statutory  provisions  and  not  communicating  the  same.  It  is  quite

another,  not to maintain transparent records of reasons as to why

claim of confidentiality 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

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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 of information

supplied, as per Rule 7, the DA has to take all necessary precautions

to decide the genuineness of  such claim.  In appropriate cases he

must  ask  for  summary  of  the  information  and  if  that  is  also  not

possible, the reasons as to why it is not possible should be supplied

for scrutiny.  The reasons of confidentiality must be discernible on

scrutiny of records by the appellate authority because of mandate of

Rule  7(3)  that  if  the  claim  of  confidentiality  is  not  worthy  of

acceptance, or the supplier of the information is unwilling to make the

information public without any good reasons, the DA has to disregard

such information. 13. The  aforesaid  discussion  leads  to  the  conclusion  that  even  the

relevant  provisions  in  the  GATT  1994  relied  upon  on  behalf  of

appellant do not require the interpretation of Rule 7 in the manner

sought for on behalf of the Union of India or the DA. 14. Mr. Basava Prabhu Patil, learned senior advocate appearing for the

petitioner – Moser Baer India Ltd. – in one of the SLPs has taken pains

to refer to various paragraphs of the judgment in the case of Reliance

Industries to  submit  that  the  said  judgment  was  rendered  in  an

entirely different context which did not involve detailed discussion of

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Rule 7.  On the basis of para 23 of the judgment it was shown that the

two  main  issues  falling  for  determination  were  –  (1)  the  correct

principles for determination of  Non Injurious Price (NIP) of PTA, and

(2)  the scope of  Rule  7 of  the  Rules.   Referring  to  para  37 of  the

judgment, he pointed out that the Court had directed for revising NIP

by  taking  the  market  price  of  electricity  and  the  actual  capacity

utilisation during the period of investigation.  Since the DA in that

case had refused to disclose its findings even to the person who had

supplied the information leading to such findings, the court observed

thus : “Further, the DA should be directed not to misuse Rule 7, by

keeping confidential its findings and that too from the person who has

supplied  the  information  to  it.”   In  para  39  it  was  held  that  the

proceedings before the DA are quasi judicial.  Then came a reiteration

in para 41 in the following words :  

“41. The  DA claimed  confidentiality  from the  appellant about its  finding on the data supplied by the appellant itself.   In our opinion, there was nothing confidential in the  matter,  and  hence  reasons  for  not  accepting  the appellant’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

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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

decidendi 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.7  In the given facts, the observations

in paragraph 43 in the case of Reliance Industries are fully justified

and do not require any review.  We are in agreement that Rule 7 does

not postulate that the DA can claim confidentiality and that too not in

respect of any information supplied by a party but in respect of its

reasons or findings derived from information supplied by the same

very party. 16. We  find  no  conflict  between  the  view  taken  in  Reliance

Industries case  and  that  in  Sterlite  Industries, particularly  in

7  (1990) 4 SCC 207

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C.A.No. 1679 of 2010 etc.

paragraph 3, which has been extracted in  Reliance Industries case

and reads as follows : “3. In our view, it is not necessary for us to go into the merits of  this matter as we propose to send the matter back to CEGAT after laying down certain guidelines. From what  has  been  argued  before  us,  it  appears  that  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  if  the  material  is  confidential  the Designated  Authority  has  to  ask  the  parties  providing information,  on  confidential  basis,  to  furnish  a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated  Authority  a  statement  of  reasons  why summarization is not possible. In any event, under Rule 7(3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that  not  making  relevant  material  available  to  the  other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases there is need for confidentiality as otherwise  trade  competitors  would  obtain  confidential information,  which  they  cannot  otherwise  get.  But whether  information  supplied  is  required  to  be  kept confidential has to be considered on a case-to-case basis. It  is  for  the  Designated  Authority  to  decide  whether  a particular  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

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C.A.No. 1679 of 2010 etc.

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 India Limited against imports of USB

Flash Drives exported from China PR, Taiwan and Republic of Korea

during the period of investigation, calendar year 2012. According to

him SanDisk duly participated in the investigation, filed objections,

comments  and  submissions  and  co-operated  at  every  stage  of  the

investigation. His main grievance is that when the reliability of import

volume provided by Moser Baer came under question, the DA claimed

to  have  used  transaction-wise  import  data  provided by  Directorate

General  of  Commercial  Intelligence  and  Statistics  (DGCI&S)  for

arriving at import volume of the subject goods. He has submitted that

the  DA  wrongly  treated  the  import  data  provided  by  DGCI&S  as

confidential and in any case erred in not accepting the request of the

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C.A.No. 1679 of 2010 etc.

SanDisk  to  furnish  the  import  data  after  deleting  the  names  of

exporters/importers concerned, for verifying the veracity of the volume

of  imports.  According  to  him  the  essence  of  investigation  lies  in

finding out the correct import volume of a particular product under

investigation. The DA disregarded the past practice of disclosing such

details, especially when SanDisk was prepared for deletion of names

of exporters and importers from the import data obtained by the DA.  19. Mr. V. Lakshmikumaran has in his written notes given two

instances,  one  of  2007  and  another  of  2014  where  the  DA  had

disclosed the DGCI&S import  data to exporters and importers  and

had called for comments. According to him DGCI&S had not claimed

confidentiality  in  such  matters  for  good  reasons  because  the

concerned Director General of Commercial Intelligence and Statistics

under  the  Ministry  of  Commerce,  Government  of  India  is  covered

under Right to Information Act and its data is therefore part of official

record  and  lies  in  public  domain.  According  to  him  DA  is  a

quasi-judicial  authority  who must keep in mind that Rule 7 is  an

exception to rules of natural justice and hence DA can accept a claim

of confidentiality only when it is raised by the information provider

and such claim is found acceptable after due scrutiny.  20. Since  we  are  not  entering  into  arena  of  facts  for  deciding

individual  cases,  it  is  not  relevant  to  go  deeper  into  the  facts

highlighted on behalf of M/s SanDisk International Limited. However,

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C.A.No. 1679 of 2010 etc.

the submission that data available with DGCI&S is available to the

public and also under the RTI Act has not 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/S8 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 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

8  (2000) 6 SCC 626

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C.A.No. 1679 of 2010 etc.

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  been  some  ambiguity  and

requirement of resorting to interpretation, the proper course would be

to adopt a construction which would least offend our sense of justice,

as discussed and enunciated in the cases of  Simms v. Registrar of

Probates9,  Madhav Rao Jivaji Rao Scindia v. Union of India10 and

Union of India v. B. S. Agarwal.11 It will be useful to remember that

when two competing public interests are involved, like in the present

case,  one  is  to  supply  all  relevant  informations  to  the  parties

concerned and the other not to disclose informations which are held

to be confidential,  the proper course of  action would be to lean in

favour  of  the  construction  “that  is  least  restrictive  of  individual’s

rights”,  as  propounded  in  Inland  Revenue  Commissioner  v.

9  (1900) AC 323

10  (1971) 1 SCC 85

11  (1997) 8 SCC 89

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C.A.No. 1679 of 2010 etc.

Rossminster Ltd.12 . However, in our view, as already indicated, there

are no ambiguities in Rule 7 to require departure from the rule of

Literal Construction.  23. Mr. Lakshmikumaran also referred to judgment in the case of

Reliance Industries to point out that main issue in that case was

decided in favour of  Reliance Industries in paragraphs 35, 36 & 37

holding  that  the  Non-Injurious  Price  (NIP)  had  been  determined

wrongly and therefore needed to be revised by taking the market price

of electricity and the actual capacity utilization during the period of

investigation. Thereafter the Court simply condemned the approach of

the DA in not disclosing even the reasons for its erroneous decision to

reduce the cost price of electricity supplied by the appellant from its

captive  power  plant.  When  the  data  had  been  supplied  by  the

appellant itself, the Court rightly felt disturbed 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.

12  (1980) 1 All ER 80

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C.A.No. 1679 of 2010 etc.

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 Reliance

Industries case  did  not  go  into  the  details  of  the  relevant  Rules

including Rule 7 but the observations made therein in respect of rule

of confidentiality as spelt out in Rule 7 of the Rules does not diminish

the scope of Rule 7 as provided. 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.  The  law  laid  down  in  respect  of  rule  of

confidentiality  in  Sterlite  Industries  case  also  has  our  respectful

concurrence.  But at the same time, we reiterate that the  Reliance

Industries case does not adversely affect or run counter to the law 24

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C.A.No. 1679 of 2010 etc.

spelt out in Sterlite Industries case. We may only explain here that

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.

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C.A.No. 1679 of 2010 etc.

26. Having answered the question thus, we direct the cases to be

posted before appropriate Bench for  disposal  on merits  and in the

light of our answer to the question referred and considered.

…………………………………….J.       [J. CHELAMESWAR]

      ……………………………………..J.                  [SHIVA KIRTI SINGH]

      ……………………………………..J.                  [ABHAY MANOHAR SAPRE]

 New Delhi. October 7, 2016.

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