By TIOL News Service

NEW DELHI, OCT 08, 2016: 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-TIOL-21-SC-AD 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 the Supreme Court in the case of Reliance Industries Ltd. v. Designated Authority & Others - 2006-TIOL-120-SC-AD and also by following interpretation of Section 9-A(5) given in Rishiroop Polymers (P) Ltd. v. Designated Authority & Additional Secretary- 2006-TIOL-26-SC-AD. 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, only the other relevant question requiring answer by the Larger Bench is:

"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."

Rule 7 reads as:

"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 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."

It is the interpretation of this Rule 7 that is before the Larger Bench of the Supreme Court.

The Supreme Court observed,

No ambiguity in Rule 7:

"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 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 . 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. Rossminster Ltd. (1980) 1 All ER 80. However, in our view, there are no ambiguities in Rule 7 to require departure from the rule of Literal Construction."

The Court further observed,

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 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 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. "

Reference answered accordingly.

(See 2016-TIOL-170-SC-CUS-LB)