UNION OF INDIA & ANR.versusM/S MEGHMANI ORGANICS LTD. & ORS.

                         [2016] 9 S.C.R. 353


                    UNION OF INDIA & ANR.                                  A
                                  v.
           M/S MEGHMANI ORGANICS LTD. & ORS.
                   (Civil Appeal No. 1679 of2010)
                         OCTOBER 07, 2016                                  B
      [J. CHELAMESWAR, SHIVA KIRTI SINGH AND
              ABHAY MANOHAR SAPRE, JJ.]
      Anti Dumping:
      Customs Tariffs (Identification, Assessment and Collection of        C
Anti-Dumping Duty on Dumped Articles and for Determination of
Injury) Rules, 1995 - r. 7 - Interpretation of - Plea of Union of
India and Designated Authority that the Reliance Industries case
diminishes the rule of confidentiality statutorily provided under r. 7
- Held: Ordinary meaning of the words used in r. 7 are clear and
there is no requirement to depart from the golden rule of                  D
interpretation i.e., the rule of Literal Construction - Reliance
Industries case did not go into the details of the relevant Rules
including r. 7 - Observations made therein in respect of rule of
confidentiality as spelt out in r. 7 does not diminish the scope of r. 7
as provided - Further, reasons or findings of Designated Authority         E
cannot be equated with the information supplied by a party claiming
confidentiality in respect thereto - Hence, r. 7 does not empower the
DA to claim any confidentiality in respect of reasons for its finding
given against a party - Customs Tariff Act,1975 - ss.9A, 9B -
General Agreement on Tariffs and Trade 1994 - Arts. V. VI - Treaties
- Interpretation of Statutes.                                              F
      Answering the question referred, the Court
       HELD: 1. It is correct to submit that the source of power
in the Designated Authority to treat an information as confidential
must be within the confines of Rule 7 of Customs Tariffs
(Identification, Assessment and Collection of Anti-Dumping Duty            G
on Dumped Articles and for Determination oflnjury) Rules, 1995.
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. The
                                                                           H
                                  353
354            SUPREME COURT REPORTS                      [2016] 9 S.C.R.



A     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
B
      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". However, there are no
c     ambiguities in Rule 7 to require departure from the rule of Literal
      Construction. [Para 22)(369-H; 370-A-E]
            Simms v. Registrar of Probates (1900) AC 323; Madhav
            Rao Jivaji Rao Scindia v. Union of India (1971) 1 SCC
            85: 1971 (3) SCR 9; Union of India v. B. S. Agar11'al
D           (1997) 8 SCC 89: 1997 (4) Suppl. SCR 327 - relied
            on.
            In land Revenue Commissioner v. Rossminster Ltd.
            (1980) 1 All ER 80; Designated Authority (Anti-
            Dumping Directorate), Ministry of Commerce " Haldor
 E          Topsoe AIS (2000) 6 SCC 626; Commissioner of
            Customs, Bangalore v. GM Exports (2016) 1 SCC 91;
            Krishena Kumar v. Union of India & Ors. (1990) 4 SCC
            207: 1990 (3) SCR 352 - referred to.
             2. In the light of facts and submissions, the question
 F    referred 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
G     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 is affirmed. Also, the Reliance Industries
H     case does not adversely affect or run counter to the law spelt out
  UNION OF INDIA & ANR. v. M/S MEGHMANLORGANICS                        355
                    LTD. & ORS.

in Sterlite Industries case. Further, while dealing with objections A
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. But in the garb of unclaimed confidentiality, the DA
cannot shirk from its responsibility to act fairly in its quasi-judicial B
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 C
the view that the information is really not confidential and still
the concerned party docs 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 11011 est. [Para 2511371-D-H; 372-
A,B]
                                                                        D
      Reliance Industries Ltd. v. Designated Authority &
      Others (2006) 10 SCC 368: 2006 (6) Suppl. SCR 1 -
      explained.
      Sterlite Industries (India) Ltd. v. Designated Authority,
      Mio Commerce & Others (2006) 10 SCC 386- affirmed.                E
      Designated Authority, Ministry of Commerce and
      Industry & Am: v. Indian Metals & Ferro Alloys Limited
      (2009) 2 SCC 510: 2009 (1) SCR 653; Rishiroop
      Polymers (P) Ltd. v. Designated Authority & Additional
      Secretary (2006) 4 SCC 303: 2006 (3) SCR 252; S.N.                F
      Mukherjee i~ Union of India (1990) 4 SCC 594: 1990
      (1) Suppl. SCR 44 - referred to.
                       Case Law Reference
      2009 (1) SCR653                   referred to     Para 1
                                                                        G
      2006 (6) Suppl. SCR 1             explained       Para 1
      2006 (3) SCR 252                  referred to     Para 1
      (2006) 10 sec 386                 affirmed        Para2
      1990 (1) Suppl. SCR 44            referred to     Para2
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356               SUPREME COURT REPORTS                        [2016] 9 S.C.R.


A               (2016) 1 sec 91                  referred to      Para 11
                 1990 (3) SCR 352               referred to       Para 15
                 (2000) 6 sec 626               referred to       Para 21
                 (1900) AC 323                   relied on        Para 22
B                1971 (3) SCR 9                  relied on        Para 22
                 1997 (4) Suppl. SCR 327         relied on        Para 22
                 (1980) 1 All ER 80              referred to      Para 22
           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1679
C     of2010.
            From the Judgment and Order dated 09.10.2009 of the High Court
      of Gujarat in Special Leave Application No. 6881 of2009.
                                        WITH
D              SLP(C) No. 1409912015
               SLP(C) No. 1452412015
               C.A. Nos. 3498-350012004.
         Yashank Adhyaru, Basava Prabhu Patil, Sr. Advs., Raj iv Nanda,
 E R. Balasubramanian, Ms. Rash mi Malhotra, G S. Makker, Arvind Kumar
   Sharma, B. Krishna Prasad, Mahesh Agarwal, Ankur Saigal, Raghav
   Dwivedi, E. C. Agrawala, Ad vs. for the Appellants.
            V. Lakshmikumaran, T. D. Satish, Darpan Bhuyan, Ankur Sharma,
      M. P. Devanath, Jitendra Singh, Prashant Kumar, Saurabh S. Sinha,
 F    Mis. AP & J Chambers, E. C. Agrawala, Sanjay Sherawat,
      B. Krishna Prasad, Rajesh Kumar, Satyendra Kumar, Mis. Dua
      Associates, Ms. Indra Sawhney, Ms. Kum Kum Sen, Advs. for the
      Respondents.
                The Judgment of the Court was delivered by
 G          SHIVA KIRTI SINGH, J. I. While hearing special leave petition
      against a judgment ofthe 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'
      noticed that in the context of interpretation ofanti-dumping provisions of
       1
           (2009) 2 sec 510
 H
  UNION OF INDIA & ANR. v. MIS MEGHMANI ORGANICS                          357
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

the Customs TariffAct, 1975 (in short "the Act") and the Customs Tariff A
(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 0 and also by B
following interpretation of Section 9-A(5) given in Rishiroop Polymers
(P) Ltd. v. Designated Authority & Additional Secretary.' At the
instance ofcounsel 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 C
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      D
      statutorily provided for under Rule 7."
      2. Learned counsels for the rival parties have advanced
submissions only in relation to the aforesaid question oflaw 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         E
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. YashankAdhyaru, learned senior advocate F
appearing for the appellants in Civil Appeal No. 1679of2010 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 G
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.
 ' 12006) 1o sec 368
 ' 12006) 4 sec 303                                                        H
358             SUPREME COURT REPORTS                          (2016] 9 S.C.R.


A     Designated Authority, Mio Commerce & Others• 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 oflndia. 5
             4. To the contrary, as we shall notice hereinafter, a stand has
      been taken by the counsels appearing for the parties who have made
B     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/
c     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
D  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
 E explanation, margin of dumping has been clarified as the difference
   between the export price and the nonnal value ofan 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
 F necessary enquiry, the margin of dumping but also empowers it to make
   rules for identifying articles liable for anti-dumping duty and forthe manner
   in which the export price, the normal value and the margin of dumping in
   relation to such at1icles need to be determined as v,1ell as for the
   assessment and collection of such anti-dumping duty. Section 9B ( 1)
 G 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

      '(2006) I 0 SCC 386 decided on November 25, 2003
      '(1990) 4 sec 594
 H
  UNION OF INDIA & ANR. v. MIS MEGHMANI ORGANICS                        359
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

made for the purpose of Section 9B to meet exceptional situation        A
contemplated by Section 98(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 98 of the Act. There is no dispute that
the Rules are based largely upon an International Agreement on B
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 provisions of the Agreement. Let us take a bird's eye-view of C
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 D
it has sufficient evidence of dumping. A time limit ofone 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 E
herein below:
      "6.2 Throughout the anti-dumping investigation all interested
      parties shall have a full opportunity forthe defence of their
      interests. To this end, the authorities shall, on request,
      provide opportunities for all interested parties to meet those     F
      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 pa11ies. There
      shall be no obligation on any party to attend a meeting, and       G
      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.
      6.3 xxxxxxxxxxxx
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360         SUPREME COURT REPORTS                            [2016] 9 S.C.R.



A       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.
B
         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
c        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.
 D       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 perm'ita reasonable understanding of the substance
         of the information submitted n confidence. In exceptional
 E       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
 F       is not warranted and if the supplier of the information is
         either unwilling to make the infonnation 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.
 G
         6.6 xxxxxxxxxx
         6.7 xxxxxxxxxx
         6.8 In cases in which any interested party refuses access
         to, or otherwise does not provide, necessary information
 H
  UNION OF INDIA & ANR. v. MIS MEGHMANI ORGANICS                          361
         LTD. & ORS. [SHIVA KIRT! SINGH, J.]

      within a reasonable period or significantly impedes the              A
      investigation, preliminary and final determinations,
      affirmative or negative, may be made on the basis of the
      facts available. The provisions ofAnnex II shall be observed
      in the application of this paragraph.
       7. Before adverting to Rule 7 which is of prime significance, it B
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
                                                                             c
from the informatiop 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 D
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 be made available to all concerned as noted
above. The DA has power to issue a notice calling for any information in E
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 F
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          G
      (7) of rule 6, sub-rule (2) of rule 12, sub-rule (4) ofrule 15
      and sub-rule (4) of rule 17, the copies of applications
      received under sub-rule ( 1) of rule 5, or any other infonnation
      provided to the designated authority on a confidential basis
      by any party in the course of investigation, shall, upon the
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362            SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A           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
B           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.
c           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 infonnation public
            or to authorize its disclosure in a generalized or summary
            form, it may disregard such information."
D
             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 I2 contains details as to how preliminary
      findings are to be arrived at and a public notice to be issued of such
 E    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
 F    Government grants the extension. The DA is required to issue public
      notice of its final findings also. Rules 13 and 18 whcreunder 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.
0     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 appears to have a discretion in the matter of determining
      the quantum of provisional duty as well as final duty but with a clear
H
  UNION OF INDIA & ANR. v. MIS MEGHMANI ORGANICS                               363
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

limitation that anti-dumping duty cannot exceed the margin of dumping          A
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:                                            B
      "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.            c
      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                  D
      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 oflndia submitted that the very opening sentence of above quoted          E
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 of Ru le 7( I) in
place of the expression 'interested party', according to learned counsel,       F
indicates that the DA may receive in course of his suo motu action
certain confidential informations and in such a situation ifhe 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     G
of confidentiality.
      11. To buttress his aforesaid stand learned senior counsel placed
emphasis upon Articles 6.2 and 6.5 ofGATT 1994. By placing reliance
upon paragraph 23 of the judgment in the case of Commissioner of
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364           SUPREME COURT REPORTS                          [2016) 9 S.C.R.


A ·Customs, Bangalore v. GM. Exports6 he submitted that in the light
   ofArticle 51 (c) of the Constitution oflndia, 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
B 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 6.5. While interested parties are entitled to
   have full opportunity to defend their interests, such opportunities need to
c be he9ged 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
D good cause shown for the confidentiality claimed. No doubt the opening
   clause ofArticle 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
E 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
F 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 ofa 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
G 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,
H , (2016) 1 sec 91
  UNION OF INDIA & ANR. v. M/S MEGHMANI ORGANICS                            365
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

not to maintain transparent records of reasons as to why claim of A
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
                                                                               B
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 ifit has adverse effects
upon any party. Any court or tribunal exercisingjudicial review is entitled
to call for the records to satisfy itself as to the existence of reasons in C
appropriate cases involving a challenge to such order. In case the DA is
conceded power to gather informations 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 infonnation confidential. Even in such a situation where an D
 uninterested party claims confidentiality in respect of infornmtion 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 ifthat 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 E
  authority because of mandate of Rule 7(3) that if the claim of
  confidentiality is not worthy of acceptance, or the supplier of the
  infonnation is unwilling to make the infonnation public without any good
  reasons, the DA has to disregard such information.
       13. The aforesaid discussion leads to the conclusion that even the     F
 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 G
 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
 Rule 7. On the basis of para 23 of the judgment it was shown that the
 two main issues falling for detennination were-( I) the correct principles
                                                                            H
366               SUPREME COURT REPORTS                         [2016] 9 S.C.R.



A     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
B
      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 :
 c             "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."
D              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 the
      Court was not examining the provisions of Rule 7 in any detail but made
 E    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
 F    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 &
 G    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 thattoo not in respectofany information supplied
      by a party but in respect of its reasons or findings derived from information
 H     1
           (1990) 4 sec 201
  UNION OF INDIA & ANR. v. M/S MEGHMANI ORGANICS                             367
          LTD. & ORS. [SHIVA KIRT! SINGH, J.]

supplied by the same very party.                                             A
      16. We find no conflict between the view taken in Reliance
Industries case and that in Sterlite Industries, particularly in 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             8
      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                 c
      and for Detennination oflnjury) 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              D
      confidential the Designated Authority has to ask the parties
      providing infonnation, 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                         E
      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                F
      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              G
       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 pai1icular material
       is required to be kept confidential. Even where
       confidentiality is required it will always be open for the
                                                                              H
368            SUPREME COURT REPORTS                           [2016] 9 S.C.R.


A           Appellate Authority, namely, CEGATto 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 claims of
      confidentiality has been echoed in the same vein in paragraph 45 of the
B     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
C           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."
D         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 prodµcer Moser Baer India
  Limited against imports ofUSB Flash Drives exported from China PR,
  Taiwan and Republic of Korea during the period of investigation, calendar
E 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
F 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
  SanDisk to furnish the import data after deleting the names of exporters/
  importers concerned, for verifying the veracity of the volume of imports.
G According to him the essence ofinvestigation 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 th~ DA.
H
  UNION OF INDIA & ANR. v. M/S MEGHMANI ORGANICS                               369
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

       19. Mr. V. Lakshmikumaran has in his written notes given two A
instances, one of2007 and another of2014 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 B
Commerce, Government oflndia 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 C
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 ofM/s SanDisk International Limited. However, the submission
that data available with DGCI&S is available to the public and also under       D
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. Baldor Topsoe A/S 8 to
highlight that in the scheme of the Act and the Rules, in paragraph 25 of       E
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           F
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              G
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
 • <2000) 6 sec 626                                                             H
370              SUPREME COURT REPORTS                            [2016] 9 S.C.R.


A     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. Ifthe submission advanced on behalf
      of Union oflndia 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
B
      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 ifthere had
      been some ambiguity and requirement ofresortingto interpretation, the
      proper course would be to adopt a construction which would least offend
      our sense ofjustice, as discussed and enunciated in the cases of Simms
c     v. Registrar of Probates 9 , Madhav Rao Jivaji Rao Scindia v. Union
      of lndia 10 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
D
      the construction "that is least restrictive of individual's rights", as
      propounded in Inland Revenue Commissioner v. 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.
E             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
F     and the actual capacity utilization during the period of investigation.
      Thereafter the Colll1 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.
G     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
      9
         (1900) AC 323
      "'(1971) I SCC85
      11
         (1997) s sec 89
      12
         ( 1980) I All ER 80
H
  UNION OF INDIA & ANR. v. M/S MEGHMANI ORGANICS                                371
         LTD. & ORS. [SHIVA KIRTI SINGH, J.]

appellant. Finally Mr. Lakshmikumaran submitted that the observations           A
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.
      24. Mr. Jitendra Singh, advocate, appearing for Meghmani
Organics Ltd. in the lead case, reiterated the submissions noted earlier.        B
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.
                                                                                 c
        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       D
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 infonnation
supplied by a party claiming confidentiality in respect thereto. Hence,
Rule 7 does not empower the DA to claim any confidentiality in respect           E
of reasons for its finding given against a party. The law laid down in
respect of rule of confidentiality in Sterlitc 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,         F
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 paiiies may in general         G
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 ofunclaimed
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 wi II do well to remember not to treat any information as confidential
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372                SUPREME COURT REPORTS                      [2016) 9 S.C.R.



A     unless a claim of confidentiality has been made by any of the parties
      supplying the infonnation. 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 infonnation if it is of the view that the
      infonnation is really not confidential and still the concerned party does
      not agree to its being made public. In such a situation the information
B
      cannot be made public but has to be simply ignored and treated as non
      est.
             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.
c
      Ankit Gyan                                        Referred question answered.