Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 to be interpreted literally

Supreme Court

Supreme Court: Interpreting the 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 Court said that the source of power in the Designated Authority (DA) to treat an information as confidential must be within the confines of Rule 7 of the Rules and the said Rule should be interpreted literally.

The Union of India and the DA had sought that the interpretation made by the Court in Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC 368, where it was held 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, needed a fresh look as it diminishes the rule of confidentiality statutorily provided for under Rule 7.

Rejecting the said contention, the Bench of J. Chelameswar, Shiva Kirti Singh and A.M. Sapre, JJ said that 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 is it warranted by the context. 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. The effect of Rule 7 is clear, it permits an exception to the principles of natural justice.

It was further explained that In case the DA is conceded power to gather information 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 of information supplied, as per Rule 7, the DA has to take all necessary precautions to decide the genuineness of such claim. While taking precautions not to disclose the sensitive confidential information, 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.

Regarding the cases where it is not possible to accept a claim of confidentiality, the Court said that 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. [Union of India v. Meghmani Organics Ltd., 2016 SCC OnLine SC 1119, decided on 07.10.2016]

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