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TMI Blog2023 (3) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commerce & Industry. The CIC, by way of the impugned order, directed the Directorate General of Anti-Dumping and Allied Duties to provide the information sought by the RTI Applicant- Mr. Arvind M. Kapoor. Factual Background 3. The Petitioners in W.P.(C) 2603/2017 jointly filed an application (for clarity it is referred to as `Complaint') before the Designated Authority, Directorate General of Anti-Dumping and Allied Duties (hereinafter 'DA'). The said complaint was filed for initiating investigation qua imports of Styrine Butadine Rubber (hereinafter 'SBR') of 1500 and 1700 series originating in or exporting from European Union, Korea RP and Thailand. Pursuant to the said complaint, the DA vide notification No.14/10/2015-DGAD dated 14th January, 2016 initiated an anti-dumping investigation. 4. Almost immediately after the investigation was initiated, the RTI Applicant - Mr. Arvind M. Kapoor filed an application dated 29th January, 2016 under the Right to Information Act, 2005 (hereinafter 'RTI Act') seeking information qua seven issues in relation to initiation of anti-dumping investigation concerning imports of SBR from European Union, Korea RP and Thailand. The seven issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Soft copy of the Non-Confidential petition is available in CD-Rom is enclosed herewith. 3. The investigation was initiated on 16.01.2016. Note sheet being confidential, cannot be provided. 4. The copy of the initiation notification was sent to the embassies/representatives of the subject countries in India on 03.02.2016 (Copy of the letter is enclosed) 5. The known exporters were intimated about the initiation of the investigation on 03.02.2016 (Copy of the letter is enclosed) 6. Yes, the initiation notification was sent to the Govt. of India Press for Gazette Notification. 7. The initiation notification was published on 16.01.2016." 7. Thus, apart from the note sheet which was sought, almost all the information sought was provided by the CPIO to the RTI Applicant. Aggrieved by the non-supply of all the information as sought in the RTI application, the Applicant preferred an appeal dated 11th April, 2016 to the First Appellate Authority. The First Appellate Authority (FAA) vide reply dated 3rd June, 2016 intimated that the note sheet sought by him comprised of confidential information that cannot be summarised into non-confidential version. Qua the other non-confidential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by him that he wants to claim exemption in providing the required noting portion to the appellant against second part of issue no.3. On this, the Commissioner asked him to produce the relevant File for kind perusal. At this, is submitted by Sh. Rajiv Arora, Additional DG(FT), that he has not brought the relevant file and seeks some time in this regard. Thus, the matter was kept back for four hours and taken back again at 1500 hrs for further hearing of the case accordingly. 4. At this time, Sh. Rajiv Arora, Additional DG(FT), came before the Commission with the relevant file but was not inclined to show the relevant Noting Portion (against which he wanted to claim exemption) of the file to the Commissioner. At this, Commission asked him to pin-point the Note-Sheet or the exact portion against which he wants to claim exemption. On this very aspect, Sh. Rajiv Arora, again failed to highlight any portion of the Note Sheet. Furthermore, on repeated request, Sh. Rajiv Arora, handed over the relevant file to the Commissioner for the kind perusal of the Commissioner. The Commissioner has perused thoroughly the Noting Portion of the file and finds that there is nothing, which can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .(C) 8281/2016 passed an interim order staying the operation of the CIC's order in the following terms: Till the next date of hearing, the operation of the order dated 29.07.2016 insofar as it relates to supply of information relating to second part of issue No.3, i.e., supply of portion of the note sheet of the file pertaining to M/s. Indian Synthetic Rubber Private Limited be disclosed, is stayed. Submissions 11. Mr. Digpaul, ld. CGSC appearing for the Union of India submits that the only objection of the Petitioners is in respect of disclosure of the photocopy of the note sheet which contains confidential information of the complainants. According to Mr. Digpaul and Mr. Rajesh Sharma, ld. Counsels, the RTI Applicant is an importer of goods from various foreign countries and has participated in the enquiry and the proceedings for imposition of the anti-dumping duty before the DA. Though the note sheet and the basis of the decision to initiate anti-dumping investigation is not disclosed, the findings are published by way of a public notice which is issued under Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A, it cannot be held that the entire data has to be disclosed. Reliance is placed upon Rule 5 to argue that the DA cannot initiate investigation without examining necessary data which is filed by the complainant including the injury and the link between the dumped imports and the alleged injury. The degree of support required for the domestic industry would also have to be analyzed in a prima facie manner. 15. It is submitted by Mr. Rajesh Sharma, ld. Counsel that in the present case, the complainants had filed confidential and non-confidential versions of the complaint. If the RTI Applicant so wish to obtain the confidential information, the correct process would have been to approach the Anti-Dumping Authority. Imposition of anti-dumping duty which took place in this matter after the issuance of the public notice and receiving various other inputs from other industry players, was upheld right till the Supreme Court. Thus, at this stage, the disclosure of the confidential information could severely impact the domestic industry. The findings relating to imposition of anti-dumping duty having attained finality, the RTI mechanism cannot be used for obtaining sensitive commercial dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfaction and thereafter the issuance of public notice has to be done. He submits that the prima facie satisfaction being a satisfaction which is quasi-judicial in nature, the reasons cannot be kept away from the concerned parties. Even the final decision is always published, though in redacted form. Therefore, in a similar manner, even the prima facie decision of the DA ought to be published after redacting the sensitive data. 19. In rejoinder submissions, Mr. Ajay Digpaul, ld. CGSC has drawn the attention of the Court to paragraph 30 of judgment of the Supreme Court in Meghmani Organics (supra) to argue that the Supreme Court recognizes the position that confidential information can be a part of DA's findings as also the files which are maintained. It is his further submission that the Supreme Court also clearly holds that precautions have to be taken not to disclose sensitive information. Analysis 20. The present writ petitions raise important issues concerning the interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and Anti-Dumping Rules with the Right to Information Act, 2005. During the 1990s, when global trade saw extensive expansion, apprehension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term "countervailing duty" shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly, or indirectly, upon the manufacture, production or export of any merchandise.* 4. No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to antidumping or countervailing duty by reason of the exemption of such product from duties or taxes borne by the like product when destined for consumption in the country of origin or exportation, or by reason of the refund of such duties or taxes. 5. No product of the territory of any contracting party imported into the territory of any other contracting party shall be subject to both anti-dumping and countervailing duties to compensate for the same situation of dumping or export subsidization. 6. (a) No contracting party shall levy any anti-dumping or countervailing duty on the importation of any product of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation of production, or otherwise, as not to stimulate exports unduly or otherwise seriously prejudice the interests of other contracting parties." 22. Thereafter, the Agreement on Implementation of Article VI of the General Agreement of Tariffs and Trade 1994 (hereinafter 'Anti-Dumping Agreement') was agreed upon by a significant number of countries in the world. 23. The international regime dealing with anti-dumping has been considered by the Supreme Court in the judgment of Meghmani Organics Ltd. (supra). The relevant excerpt from the judgment reads as under: "The Central Government framed and notified the Rules on 1.1.1995 in exercise of powers conferred by sub-section (6) of Section 9-A and sub- section (2) of Section 9-B 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 applying anti-dumping measures only under the circumstances provided for in Article VI of GATT 1994 and pursuant to investigation in accordance with the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure 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 in 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 informat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ality of specific information. The ultimate discretion under the Anti-Dumping Agreement is to be vested in the authority concerned to decide as to whether any information is to be disclosed or not. 26. In the spirit of the provisions of the Anti-Dumping Agreement, the Anti-Dumping Rules, 1995 were enacted in exercise of the power conferred under the Customs Tariff Act, 1975. The scheme of the Anti-Dumping Rules is broadly aligned with the international framework. The said Rules came into force on 1st January, 1995. The scheme of the Anti-Dumping Rules is that as per Rule 5, a written complaint can be filed on behalf of the domestic industry, as defined in Rule 2(b), to the effect that injury is being caused to the domestic industry by furnishing evidence of dumping. The Anti-Dumping Rules require a link between the dumped imports and the alleged injury to be established. As per Rule 6(1), the Designated Authority (hereinafter 'DA'), after examining the complaint and upon recording its satisfaction in terms of Rule 6 is to issue a public notice specifying the following facts included in 6(1)(i) to 6(1)(vi): "(i) the name of the exporting country or countries and the article invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o authorise its disclosure in a generalised or summary form, it may disregard such information." 29. A perusal of Rule 7 above would show that if any information is provided by any party to the DA on a confidential basis, upon the said Authority being satisfied of the same being confidential, the said information is not to be disclosed to any party, without authorization of the party providing such information. Further, in order to ensure that the crux of the said information is still made available to the concerned stakeholders, a non-confidential summary can be provided. Moreover, if the party providing the information contends that the said information is not susceptible of summary, then such party has to provide a statement of reasons as to why summarisation of the information is not possible. Under Rule 7(3), the authority has the final say on deciding as to whether the request of confidentiality is warranted or not. 30. In the present case, the anti-dumping investigation was initiated at the instance of ISRPL and Reliance Industry Ltd. i.e., the Petitioners in W.P.(C) 2603/2017. The said two companies filed a complaint before the Anti-Dumping Authority with respect to alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed party may inspect the public file containing non-confidential version of the evidence submitted by other interested parties. 34. Final Findings were issued vide notification dated 12th July, 2017 which sets out in details the manner in which the DA proceeded in the said complaint. Notices were issued and questionnaires were sent to various exporters who participated in the proceedings. Stakeholders such as the European Commission (Director General for Trade), Government of Korea RP, and various industry organizations offered comments and submissions. Insofar as confidentiality is concerned, the following paragraphs of the order constituting the final findings of the authority are relevant: "o. The Authority made available non-confidential version of the evidence presented by various interested parties in the form of a public file kept open for inspection by all interested parties. The public file was inspected by a number of interested parties a number of times interested parties, who requested inspection and copies of the documents from the public file, were provided with the same. p. Information provided by interested parties on confidential basis was examined with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue raised by ld. counsel for the RTI Applicant is that the RTI Act would prevail over the Anti-Dumping Rules and the Anti-Dumping Authority is under a legal obligation to provide the information sought by the RTI Applicant. Thus, the request of the RTI Applicant seeking the note sheet of the Directorate General of Anti-Dumping hinges upon the determination of the question as to whether the Anti-Dumping Authority is obliged to provide information under the RTI Act when there is a complete framework governing, inter alia, supply of information in anti-dumping proceedings in the form of Anti-Dumping Rules. 39. Section 22 of the RTI Act provides that the provisions of the said Act shall have effect notwithstanding anything inconsistent therewith contained in any other law, or in any instrument having effect by virtue of any other law. Section 22 of the RTI Act reads as under: "22. The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in the Official Secrets Act, 1923, and any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act." 40. Thus, the Court needs to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn first to the legal framework: the provisions in the rules of court relating to inspection of documents on the file maintained by the court for disqualification proceedings. Unfortunately, the history of this matter has been clouded a little by some confusion about which of two sets of rules is applicable to inspection of documents filed in disqualification proceedings: the Rules of the Supreme Court, or the Insolvency Rules. Indeed, one of the issues before me concerns which of these two sets is the relevant set. The upshot of all this is that the relevant rules regarding inspection of the court file in the present case are the Rules of the Supreme Court. Under R.S.C., Ord. 63 rr. 4 and 4A any person, on payment of the prescribed fee, was entitled to search for, inspect and take a copy of the originating summons. The official receiver's report could be inspected and copied with the leave of the court, which might be granted on an ex parte application. The provision in the Insolvency Rules, for the inspection of the court file by a creditor of the company to which the insolvency proceedings relate, had and has no application. Inspection of documents on the court file othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieved by a hearing in camera in these cases would be at serious risk of prejudice if full affidavits were openly available once filed. 73. Consequently, the SCR would be applicable with regard to the judicial functioning of the Supreme Court; whereas for the administrative functioning of the Supreme Court, the RTI Act would be applicable and information could be provided under it. The dissemination of information under the SCR is a part of judicial function, exercise of which cannot be taken away by any statute. It is settled legal position that the legislature is not competent to take away the judicial powers of the court by statutory prohibition. The legislature cannot make law to deprive the courts of their legitimate judicial functions conferred under the procedure established by law. 74. Also, the RTI Act does not provide for an appeal against a Supreme Court judgment/order that has attained finality. It is clarified that queries under the RTI Act would be maintainable to elicit information like how many leaves a Hon'ble Judge takes or with regard to administrative decision an Hon'ble Judge takes; but no query shall lie with regard to a judicial decision/functio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a v. Subhash Chandra Agrawal 2019 (16) SCALE 40. xxx 27. Rule 151 of the Gujarat High Court Rules, 1993 requires a third-party applicant seeking copies of documents in any civil or criminal proceedings to file an application/affidavit stating the reasons for which those documents are required. As such, the High Court Rules do not obstruct a third party from obtaining copies of documents in any court proceedings or any document on the judicial side. It is not as if the information is denied or refused to the applicant. All that is required to be done is to apply for the certified copies with application/affidavit stating the reasons for seeking the information. The reason insisting upon the third party for stating the grounds for obtaining certified copies is to satisfy the court that the information is sought for bona fide reasons or to effectuate public interest. The information is held by the High Court as a trustee for the litigants in order to adjudicate upon the matter and administer justice. The same cannot be permitted by the third party to have access to such personal information of the parties or information given by the Government in the proceedings. Lest, there would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , lest such application would reach unmanageable proportions apart from the misuse of such information. xxx 3. We summarise our conclusion:- (i) Rule 151 of the Gujarat High Court Rules stipulating a third party to have access to the information/obtaining the certified copies of the documents or orders requires to file an application/affidavit stating the reasons for seeking the information, is not inconsistent with the provisions of the RTI Act, but merely lays down a different procedure as the practice or payment of fees, etc. for obtaining information. In the absence of inherent inconsistency between the provisions of the RTI Act and other law, overriding effect of RTI Act would not apply. (ii) The information to be accessed/certified copies on the judicial side to be obtained through the mechanism provided under the High Court Rules, the provisions of the RTI Act shall not be resorted to." 42. A perusal of the above two decisions shows that the Rules which are made by specific authorities to deal with information provided by parties on the judicial side cannot per se be held to be inconsistent with the provisions of the RTI Act. Moreover, the Supreme Court has sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India vs. Subhash Chandra Agarwal (2020) 5 SCC 481 observed as under: 36. If one's right to know is absolute, then the same may invade another's right to privacy and breach confidentiality, and, therefore, the former right has to be harmonised with the need for personal privacy, confidentiality of information and effective governance. The RTI Act captures this interplay of the competing rights under Clause (j) to Section 8(1) and Section 11. While Clause (j) to Section 8(1) refers to personal information as distinct from information relating to public activity or interest and seeks to exempt disclosure of such information, as well as such information which, if disclosed, would cause unwarranted invasion of privacy of an individual, unless public interest warrants its disclosure, Section 11 exempts the disclosure of 'information or record...which relates to or has been supplied by a third party and has been treated as confidential by that third party'. By differently wording and inditing the challenge that privacy and confidentiality throw to information rights, the RTI Act also recognises the interconnectedness, yet distinctiveness between the breach of confidenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mping investigations and is a competitor of the Petitioners could cause serious prejudice and adversely affect various sections of the domestic industry. 47. The Court is also not impressed by the argument of the RTI Applicant that denial of providing information under the RTI Act would lead to breach of principles of natural justice. The parties to an anti-dumping proceeding ought to take recourse to the Rules and Regulations provided in respect of that nature of proceedings. When the Anti-Dumping Rules themselves provide an exception to disclosure in view of the nature of the proceedings, the Court cannot allow the RTI Applicant to bypass the said barrier. Moreover, Mr. Ankur Sharma, ld. Counsel for the RTI has himself brought to the attention of this Court the judgment of the Supreme Court in Meghmani Organics (supra) wherein the Court has interpreted Rule 7 of the Anti-Dumping Rules. The relevant portion of the said judgment is as under: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rade relations of India, as also would constitute information received by the authority in confidence, which cannot be subjected to disclosure. Section 11 of the RTI Act itself recognizes the intention to protect the information received from third parties. This principle is also the very basis of Rule 7 of the Anti-Dumping Rules, which requires specific authorization of the party providing the information. Thus, in effect, there is no inconsistency between the provisions of the RTI Act and the Anti-Dumping Rules. Thus, this case would be clearly governed by the said two decisions by this Court in R.S.Misra (supra) and the Supreme Court in CIC v. High Court of Gujarat (supra) set out above. If any party, especially one who has already participated in the anti-dumping investigation, requires any information, the same would have to be governed and dealt with under the Anti-Dumping Rules, including Rule 7, and the said procedure cannot be bypassed by seeking resort to the provisions of RTI Act. The Anti-Dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings. Such knowledge would enable the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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