Calcutta High Court
India Paint Association vs The Union Of India & Ors on 22 September, 2025
2025:CHC-OS:189
IN THE HIGH COURT AT CALCUTTA
EXTRAORDINARY CIVIL JURISDICTION
ORIGINAL SIDE
BEFORE:
HON'BLE JUSTICE RAJA BASU CHOWDHURY
WPO 148 of 2025
India Paint Association
Versus
The Union of India & Ors.
For the petitioner : Mr. S. N. Mookherjee, Sr. Advocate.
Mr. Ashish Chandra, Advocate.
Mr. Anupal Dasgupta, Adv.
Mr. Shubrojyoti Mookherjee, Adv.
Ms. Y. Mookherjee, Adv.
Mr. Arnab Roy, Adv.
For the UOI : Mr. Siddhartha Bhattacharyya, Adv.
Mr. Prithu Dudhoria, Adv.
For the respondent : Mr. Pragyan Pradip Sharma, Sr. Adv. (VC)
Nos. 3 to 5. Mr. Rajesh Sharma, Adv.
Mr. Awani Kumar Roy, Adv.
Mr. Arijeet Bera, Adv.
For the respondent : Mr. Abhrajit Mitra, Sr. Adv.
No.5. Mr. Samriddha Sen Adv
Heard on : 03.04.2025, 07.04.2025, 08.04.2025,
09.04.2025, 10.04.2025, 22.04.2025,
02.05.2025, 14.05.2025 and 21.05.2025.
Judgment on : 22.09.2025
RAJA BASU CHOWDHURY, J:
1. The present writ petition has been filed, inter alia, challenging the
disclosure statement dated 29th January, 2025, and the final findings
2
2025:CHC-OS:189
dated 12th February, 2025 passed by the respondent no.2, being the
designated authority, within the meaning of the Customs Tariff Act,
1975, and Customs Tariff (Identification, Assessment and Collection of
Anti-Dumping Duty on Dumped Articles and for Determination of Injury)
Rules, 1995 (hereinafter referred to as the "said Act" and "said Rules",
respectively), on the ground of procedural irregularity, in relation to the
non-disclosure of the summary of confidential information in non-
confidential form, including but not limited to the non-compliance of the
said Rules.
2. Although, the respondent nos. 2 to 5 have questioned the maintainability
of the writ petition largely on the ground of presence of alternative
remedy in the form of an appeal before the Customs, Excise and Service
Tax Appellate Tribunal constituted under Section 129 of the Customs
Act, 1962 (hereinafter referred to as the "appellate tribunal" or "appellate
authority" or "CESTAT"), however, since, by an affidavit the petitioner
contends that the Bench of the appellate tribunal to hear out tariff
related cases has not been constituted for more than a year and further
the parties on that basis having advanced arguments touching the merits
of the matter, this Court has proceeded to hear the matter. On the issue
of alternative remedy at the time of moving the petition, the petitioner
has affirmed an affidavit stating that although, the appellate authority
under Section 9C of the said Act has been provided for however, such
appellate authority is of no avail, as the anti dumping Bench of the
3
2025:CHC-OS:189
CESTAT which is empowered to hear the appeals under Section 9C of the
said Act has not been constituted for more than one year and is not
functional. In support of the aforesaid, the roster of CESTAT from 26 th
October, 2023 till 28th February, 2025 has been disclosed. Having regard
thereto, this Court had continued to hear the challenge and accepted the
petition by keeping the issue of maintainability on the ground of
alternative remedy alive.
3. The petitioner claims to be a society registered under the Societies
Registration Act, 1860 and is engaged in the business of selling and
manufacturing paints used across India for domestic, commercial,
industrial and other purposes. According to the petitioner, the total
aggregate market share held by the members of the petitioner
tantamount to almost 90 per cent of the market share of domestic paint
industry in India. The respondent no.2 is the Directorate General of
Trade Remedies (DGTR), which is the designated authority under the
said Act (hereinafter referred to as the "designated authority"). On the
basis of a complaint filed by the respondent nos. 3, 4 and 5 (in short, the
"domestic industry"), the designated authority had initiated an anti-
dumping investigation vide a Notification Case No. AD(OI)-03/2024 dated
28th March, 2024 (hereinafter referred to as the "said Complaint").
According to the petitioner, the domestic industry had alleged material
injury and threat being caused to the domestic industries due to the
dumped imports of the products under consideration (PUC) from China.
4
2025:CHC-OS:189
4. The petitioner had duly participated as an interested party before the
designated authority in the anti-dumping investigation and had opposed
the imposition of anti-dumping duties on the imports of PUC from China
and had also requested that certain products which the petitioner claims
are not "like articles" to the products of the domestic industry which
allegedly suffered due to dumping, should be excluded from the scope of
PUC and consequentially not be subjected to the anti-dumping
investigation.
5. It is the petitioner's case that the petitioner had submitted its comments
on the scope of the PUC on 6th May, 2024 and the PCN methodology
before the designated authority urging that the anti-dumping
investigation be limited to PUC of the grades/variants that are
manufactured and commercially sold by the domestic industry.
Accordingly, the petitioner had sought for exclusion of Rutile-Sulphate
grade/variant and certain superior performance grades/variants of the
PUC, as there is no comparable domestic production and commercial
sales of these products by the domestic industry, during the period of
investigation.
6. According to the petitioner, the designated authority had issued a public
notice on 9th May, 2024 circulating a list of interested parties in the
impugned anti-dumping investigation, wherein the petitioner was also
acknowledged as an interested party. The list was later reviewed/revised
5
2025:CHC-OS:189
on 29th August, 2024 wherein the petitioner was named as a registered
interested party.
7. Subsequently, on 29th January, 2025 the designated authority issued a
disclosure statement in terms of Rule 16 of the said Rules by permitting
the interested parties to offer their comments within the time specified
therein. According to the petitioner, the designated authority in the
disclosure statement while dealing with the exclusion request made by
the petitioner, to exclude Rutile through Sulphate process Tio2., while
controverting the claims made by the petitioner that the domestic
industry does not produce Rutile through sulphate process had noted in
such disclosure statement that the domestic industry produces Rutile
through sulphate process, as well as through chloride process and that
the respondent no.4 (one of the domestic industry) has the necessary
technology and setup, to produce Rutile through sulphate route and has
manufactured and sold Rutile Tio2 produced using sulphate process.
Since, according to the petitioner, the above did not constitute an
appropriate disclosure for the petitioner to appropriately respond, as the
petitioner had always maintained that there was no commercial sale of
Rutile through sulphate process to the Indian industries, and the
aforesaid finding of the designated authority being contrary to the claim
made by the petitioner, without any supporting particulars, the
petitioner had sought for the names of the paints companies, who had
purchased such products so as to verify the claim of the domestic
6
2025:CHC-OS:189
industry and to appropriately respond to the disclosure statement. Such
fact would corroborate from the email communication dated 30 th
January, 2025. According to the petitioner, notwithstanding the
aforesaid representation, the designated authority did not respond to the
same, consequentially, in the facts noted hereinabove, the petitioner was
compelled to file a response holding out that the observation made by the
designated authority were factually incorrect, legally untenable and lacks
eventual substantiation. In such representation the petitioner had
categorically held out that though the designated authority had claimed
that rutile sulphate has been sold, no particulars thereof had been
disclosed, no separate evidence to substantiate the same had been also
disclosed for the petitioner to verify the authenticity of such claim.
Records would reveal that a final finding was published by the
designated authority on 12th February, 2025 and in paragraph 10
thereof, the designated authority had reproduced the reasons for
disregarding the exclusion request made by the petitioner to exclude the
Rutile through sulphate process from the PUC. According to the
petitioner, such reasons reflected in the final findings are verbatim
reproduction of the disclosure statement and no attempt had been made
by the designated authority to redress the grievances of the petitioner as
reflected in the email communication dated 30 th January, 2025 or the
representation dated 5th February, 2025. According to the petitioner,
7
2025:CHC-OS:189
non-disclosure of the aforesaid particulars has the effect of vitiating the
final finding and constitutes denial of principles of nature justice.
8. Mr. Mookherjee, learned senior advocate appearing in support of the writ
petition, by drawing attention of this Court to the initiation notification
published in the Gazette of India on 28th March, 2024, would submit
that the product under consideration which is alleged to be dumped in
India is Titanium Dioxide, the same is within the exclusions as
enumerated in paragraph 3 and 4 of the said notification. He would
submit that there are ordinarily two grades of titanium dioxide i.e. rutile
and anatase grades. These grades are identifiable, and have independent
physical and chemical properties. While drawing attention of this Court
to paragraph 12 of the said notification, it is submitted that the
interested parties in the investigation were offered opportunity to provide
their comments on the product under consideration (PUC). He would
submit that the said notification, inter alia, also provided for a sub-
heading 'L' as regards "Submission of Information on a Confidential
Basis". By referring to paragraph 32 of the aforesaid notification under
sub-heading 'L', he would submit that the same duly clarified that
although, a party was entitled to disclose any information on confidential
basis before the designated authority, however, the said party was
required simultaneously, to submit a non-confidential version or
summary of the same in terms of Rule 7(2) of the said Rules, and that
failure to adhere to the same may lead to rejection of
8
2025:CHC-OS:189
response/submission. The manner in which confidential version and the
non-confidential version, were to be provided has also been detailed in
the said notification. By placing reliance on paragraph 38 under sub-
heading 'L', it is submitted that an opportunity was required to be given
to the interested parties to offer their comments on the issue of
confidentiality claimed by the other interested parties within 7 days of
circulation of non-confidential version of the documents filed before the
designated authority. According to him, since India is a signatory to the
General Agreement on Tariff and Trade, 1994 (hereinafter referred to as
the "GATT agreement"), the aforesaid clause has been incorporated in
consonance with the Agreement on Implementation of Article VI of the
GATT agreement (hereinafter referred to as the "anti-dumping
agreement" or "ADA"). In the event, according to him, if any information
is claimed as confidential by any of the parties although, the designated
authority has no right to disclose the same however, whether or not to
accept such information as confidential information is within the
competence of the designated authority. To emphasise, he would submit
that the language used in Rule 7(2) of the said Rules and paragraph 36
of the notification affords the designated authority the right either to
accept or to reject a request for confidentiality on examination of the
nature of information submitted. If the designated authority is not
satisfied with the request for the confidentiality as being not warranted,
or if the supplier of information is either unwilling to make the
9
2025:CHC-OS:189
information public or authorise its disclosure in generalised or summary
form, it may disregard such information. According to him, in this case,
no intimation was given to the petitioner contending that any
party/domestic industry had claimed confidentiality with regard to any
information within 7 days of circulation of such alleged confidential
information for the petitioner to object to the acceptance of such
confidential information. He submits that in the instant case, it is only
when the disclosure statement was circulated in connection with the
above anti-dumping investigation on 29th January, 2025, inviting
comments from the parties by overruling the objection raised by the
petitioner as regards exclusion of titanium dioxide manufactured
through rutile process, it was asserted that one of the domestic
industries namely the respondent no.4 has the necessary technology and
set up to produce rutile through sulphate route and has manufactured
and sold rutile titanium dioxide products using sulphate process during
the period of investigation.
9. Since, the aforesaid disclosure statement was made without making
disclosure as regards the basis therefor, especially having regard to the
positive claim made by the petitioner that the domestic industry does not
manufacture titanium dioxide through sulphate process that the
petitioner was compelled by email communication dated 30 th January,
2025, to call upon the designated authority so as to contend that merely
disclosing the name of the paint company would not constitute
10
2025:CHC-OS:189
disclosure of non-confidential summary of the confidential information
and as such sought for details of the transactions. This according to the
petitioner was crucial for the petitioner to verify the accuracy of the
domestic industry's claim as the petitioner maintained its position that
no commercial sale of rutile sulphate had taken place. Notwithstanding
issuance of such letter, since, the petitioner did not receive any response,
without prejudice to the above, the petitioner had offered its comments
within the time specified in the disclosure statement. The petitioner
maintained and denied that titanium dioxide in the form of Rutile
sulphate grade had been sold by the domestic industry during the period
of investigation. No disclosure had been made, for the petitioner to verify
the assertion of manufacture and sale of Tio2 by the domestic industry.
The claim is not substantiated with supporting evidence, the volume of
sale was also not disclosed. Having regard thereto, the petitioner once
again called upon the designated authority to make the disclosure of the
names of the companies who had purchased titanium dioxide procured
through rutile sulphate grade, from the domestic industry to verify the
credibility of the assertion made by the domestic industry. By referring to
the final findings of the designated authority and determination made, he
would submit that in paragraph 10 of the final findings the assertion
made in the disclosure statement has only been reiterated.
10. By referring to the post disclosure submissions made both by the
interested parties as also by the domestic industries and the examination
11
2025:CHC-OS:189
by the designated authority, he highlights that in paragraph 127 thereof,
it has been asserted that the domestic industry has provided the names
of paint manufacturers to whom goods have been sold along with
relevant evidence, though no particulars of the evidence has, however,
been disclosed, no disclosure had been made as to whether the domestic
industry had also disclosed any summary of the confidential information
in non-confidential form. In any event, he would submit that the
designated authority while deciding on the confidential information
submitted by the interested party/domestic industry, has claimed that
the information provided on confidential basis were examined concerning
sufficiency of such confidentiality, whereupon the designated authority
held that the domestic industry's claim on confidentiality of the price
parameters have been accepted, while the volume parameters have been
disclosed and that the designated authority is satisfied with the
information provided on confidential basis. He would submit that in the
instant case, the non-confidential summary of the volume of sales had,
however, not been disclosed to the petitioners, though the acceptance on
the claim of confidentiality was only limited on price and having regard
thereto, the other information ought to have been supplied by the
designated authority and that the designated authority could not have
held on to the same by treating the same to be confidential. According to
Mr. Mookherjee, if the domestic industry had insisted for holding back all
information, such information ought to have been rejected, having regard
12
2025:CHC-OS:189
to the procedure provided for holding the investigation, in particular Rule
7(3) of the said Rules. According to him, the recording of satisfaction as
required under Rule 7 of the said Rules is mandatory, the same cannot
be lightly resorted to, so as to deny a registered interested party, a
credible information, to object to the determination. Any infraction in this
regard vitiates the investigation and the final findings, especially having
regard to the terms contained in ADA and the GATT agreement to which
India is a signatory.
11. Thus, according to him, the designated authority could not have
claimed confidentiality in respect of data for selling titanium dioxide
through rutile sulphate process, especially when the petitioner claims
that there is no commercial sale of rutile sulphate and especially when
such contention had been turned down by contending that the
respondent no.4 has the necessary technology and set up to produce
rutile through sulphate route and has manufactured and sold titanium
dioxide products using sulphate process. Since, the aforesaid finding is
contrary to the claim made by the petitioner, the same has to be
supported by reasons and documentary evidence. Ordinarily, the
evidence in support ought to have been disclosed, for the petitioner to
test out the veracity thereof, and in the event the domestic industry
insisting for confidentiality, to ignore the same.
12. By placing reliance on a judgment delivered in the case of
Reliance Industries Ltd. v. Designated Authority & Ors. reported in
13
2025:CHC-OS:189
(2006) 10 SCC 368, he would submit that the Hon'ble Supreme Court
while considering the scope of the disclosure of the confidential
information as provided for in Rule 7 of the said Rules had concluded
that Rule 7 of the said Rules does not contemplate any right in the
designated authority to suo moto claim confidentiality. Rule 7 of the said
Rules provides that the right on confidentiality is restricted to the
parties, who had supplied information and that the said party has to
satisfy the designated authority that the matter is confidential. Even if
the material is confidential, the designated authority has to ask the
parties which provide information on confidential basis to furnish a non-
confidential summary thereof. By placing reliance on paragraph 45 of the
judgment, he would submit that the Hon'ble Supreme Court has opined
that excessive and unwarranted claim of confidentiality has the effect on
defeating the right to appeal. It held that in absence of knowledge of the
consequences, grounds, reasoning and methodology by which designated
authority has arrived at its decision and made recommendation, the
parties to the proceedings cannot effectively exercise their right to appeal
either before the Tribunal or before any other forum. By placing reliance
on a judgement delivered by the Hon'ble Supreme Court in the case of
S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594, he
would submit that it is now well recognized that the rule, requiring
reasons to be given in respect of an order is like the principles of audi
alteram partem, a basic principle of natural justice.
14
2025:CHC-OS:189
13. He has also placed reliance on the and the judgment delivered by
the Division Bench of the Hon'ble High Court of Gujarat in the case of
Nirma Limited v. Union of India & Ors., reported in 2017 SCC
OnLine Guj 2526., and would submit that the Division Bench of the
Hon'ble High Court of Gujarat has categorically held that all information,
which are relied upon by the designated authority to the extent the same
is not protected by Rule 7 of the said Rules is in the nature of necessary
information, which should be disclosed to the interested parties to enable
them to comment on the completeness and correctness of facts that were
being considered by the designated authority and to provide additional
information to correct the perceived errors and to make arguments on
proper interpretation of those facts. Having regard thereto, the Division
Bench had concluded that non-disclosure of essential information/facts
is clearly in breach of the principles of natural justice and that disclosure
statement forms the very foundation of the final findings.
14. On the scope of powers of designated authority to treat an
information as confidential and the manner in which a decision in that
regard is made, he places reliance on the judgment delivered by the
Hon'ble Gauhati High Court in the case of Century Plyboards Ltd. &
Anr. v. Union of India & Ors., having neutral citation
GAHC010219632017. He has also placed reliance on the judgment
delivered in the case of Jindal Saw Ltd. v. Ministry of Finance,
reported in 2019 (369) E.L.T. 507 (Guj.), concerning the exercise of
15
2025:CHC-OS:189
powers of judicial review under Article 226 of the Constitution of India
from an order passed by the designated authority in a quasi-judicial
proceedings. According to him the final findings stands vitiated by
reasons of non-compliance with the principles of natural justice, as no
requisite information was made available and the conclusions were not
supported by the materials on record. To drive home the point that in
pursuance of ADA and the amendments to which India is a signatory,
the said Act was enacted, and that the provisions of the said Act and the
Rules framed thereunder are thus, to be read in consonance with same,
reliance is placed on the judgment delivered in the case of
Commissioner of Customs, Bangalore v. G.M. Exports and Ors.,
reported in (2016) 1 SCC 91. On the issue of the jurisdiction of this
Court to entertain this petition, Mr. Mookherjee, has submitted that the
initiation of the enquiry was by publication of notification in the official
gazette, thereby, inviting objections from all interested parties. The same
has the effect through-out the length and breadth of India. The petitioner
had participated from Kolkata, effect of the final findings is also being felt
by the petitioner within the jurisdiction of this Court and as such, part
case of action has arisen within the jurisdiction of this Court. Having
regard thereto, this Court has the jurisdiction to try and entertain the
instant petition. The effect of the final findings is also being felt by the
petitioner within the jurisdiction of this Court and the resultant levy
would be collected by the Customs Authority operating within the
16
2025:CHC-OS:189
jurisdiction of this Hon'ble Court. In support of this contention, he
placed reliance on the judgment delivered in the case of M/s. Vikash
Trading Company v. Designated Authority, reported in 2012 SCC
OnLine Mad 4801. On the issue of alternative remedy, reliance has
been placed on the judgment delivered by the Hon'ble Supreme Court
in the case of Whirlpool Corporation v. Registrar of Trade Marks,
Mumbai & Ors., reported in (1998) 8 SCC 1. He submits that the
petitioner having been denied the opportunity to make an effective
representation in tune with article 6.9 of the ADA and the said Rules,
the final findings stands vitiated and the consequential the levy of
anti-dumping duty effected by notification dated 10th May, 2025
which has been made during the pendency of the petition, by an order
of this Court has been made to abide by the result of the writ petition.
According to him if the final findings stands vitiated the imposition of
levy by the central Government also cannot be sustained, the same
should be quashed.
15. Per contra, the Mr. Bhattacharyya learned advocate appearing on
behalf of the Union of India, would submit that this Court in exercise of
its extraordinary writ jurisdiction ought not to entertain the writ petition,
since, an efficacious alternative remedy in the form of an appeal under
Section 9C of the said Act is available to the petitioner. He would submit
that having regard to the availability of efficacious alternative remedy,
17
2025:CHC-OS:189
there is no scope to enter into the facts. According to the learned
advocate for the Union of India and the respondent no.2, the only remedy
available to the petitioner is to prefer an appeal that too from the
decision to impose levy and not from the final findings. The writ petition
is premature at this stage, and this Court should dismiss the writ
petition at the threshold. In support of his contention that the petitioner
has an efficacious alternative remedy in the form of an appeal, he has
placed reliance on Section 9C of the said Act and has also on the
following judgments:
1). The unreported judgment of the Hon'ble Supreme Court
dated 28th August, 2019 dismissing the special leave petition in
the case of The Directorate General of Trade Remedies v.
Jindal Saw Ltd. & Anr., in Civil Appeal no 6678 of 2019.
2). The judgment delivered in the case of Nitco Tiles Ltd. v.
Gujarat Ceramic Floor Tiles MFG Assn., reported in (2005)
12 SCC 454 : 2006 (199) E.L.T. 198(S.C.)
3). Designated Authority v. Sandisk International Ltd.,
reported in (2018) 13 SCC 402 : 2017 (347) E.L.T. 577 (S.C.)
4). Saint Gobain India Pvt. Ltd. v. Union of India, reported
in 2018 (359) E.L.T. 373 (Mad.)
5). Jindal Poly Film Ltd. v. Designated Authority, reported
in 2018 (362) E.L.T. 994 (Del.)
18
2025:CHC-OS:189
6). M/s. Suncity Sheets Pvt. Ltd. v. The Designated
Authority & Ors., reported in 2017 SCC OnLine Del 9412
7). Unreported judgment delivered by the Hon'ble High Court of
Delhi at New Delhi, in the case of Exxonmobil Asia Pacific
Pvt. Ltd. v. Union of India & Ors., in W.P ( C) 1856 0f 2025.
16. Mr. Sharma, learned advocate representing the respondent no.3,
on the other hand, has placed before this Court the provisions of Section
9A and 9C of the said Act. He has also placed before this Court in detail
that the said Rules, inter alia, including the definition of like article as
defined in Rule 2(d) of the said Rules, the scope of initiation of
investigation as defined in Rule 5, the confidential information as
identified in Rule 7, the preliminary findings in terms of Rule 9, the
disclosure of information and the final findings as provided in Rules 16
and 17, and the levy of duty as provided in Rule 18 thereof.
17. Apart from submitting that this Court ought not to entertain a writ
petition of this nature especially when an alternative remedy is available,
he has also claimed that it is entirely pre-mature at this stage for the
petitioner to challenge the final findings, since, according to him, the
final findings at the stage of filing the petition had not fructified into an
order of determination of anti-dumping duty in terms of Section 9A of
the said Act, and the final findings are at the stage of a recommendation
only which may or may not be accepted by the central Government. The
challenge to the same is entirely pre-mature. It is only when the central
19
2025:CHC-OS:189
Government accepts the same and a notification to that effect is
published that a cause of action to challenge the same arises. In support
of his contention, he places reliance on a judgment delivered by the
Hon'ble Supreme Court in the case of Designated Authority & Ors. v.
Andhra Petrochemicals Limited, reported in (2020) 10 SCC 209.
18. While addressing this Court on the scope of the confidential
information as provided in Rule 7 of the said Rules, he would
acknowledge that such a clause incorporated in the form of Rule 7 of the
said Rules is based on the ADA. Under such agreement all members
states including India, concurred on the broad principles for applying
anti-dumping measures under the circumstances as provided for in the
ADA and on the investigation process in accordance with the provisions
of ADA. He would submit that the aforesaid aspect has been elaborately
dealt in the case of Union of India & Anr. v. Meghmani Organics
Limited & Ors., reported in (2016) 10 SCC 28, wherein the judgment
delivered in the case of Reliance Industries Ltd. (supra) has duly been
considered. According to him the Hon'ble Supreme Court while
interpreting Rule 7 had observed that the said Rule was an exception to
the principles of natural justice. By referring to paragraph 29 of the said
judgment, he would submit that the Hon'ble Supreme Court has come to
a finding that the Hon'ble Supreme Court in the case of Reliance
Industries Ltd. (supra) did not go into the details of the relevant rules
including Rule 7 but the observations made therein in respect of the rule
20
2025:CHC-OS:189
of confidentiality as spelt out in Rule 7 of the said Rules do not diminish
the scope of Rule 7 as provided. He has next placed reliance on the
judgment delivered in the case of Outokumpu Oyj v. Union of India &
Ors., reported in 2017 SCC OnLine Del 12643, to drive home the point
that the review provided under Article 226 of the Constitution of India is
an extraordinary remedy and the High Courts do not as a matter of
course entertain a writ petition when an equally efficacious alternative
remedy is available. Similar principle applies especially when, the statute
which creates a right or liability, provides for a machinery to remedy and
correct any wrong by way of an appeal. He would next submit by drawing
attention of this Court to the final findings that the product under
investigation (PUC) in this case is titanium dioxide, the respondent no.4
is a manufacturer and has the capability to manufacture and has
manufactured and has sold the PUC. The respondent no.4 had also
disclosed data in the form of confidential information as regards
manufacture and sale of rutile sulphate. The plea raised by the petitioner
herein to seek exclusion of rutile sulphate is an entirely hyper technical
one and this Court ordinarily ought not to entertain a challenge of this
nature as the same deals with disputed questions of fact.
19. According to Mr. Sharma since, the final findings are mere
recommendations and they do not assume any final character though
the determination on recommendation may be final, the final decision
thereof whether or not to levy and impose a duty is decided by the
21
2025:CHC-OS:189
central Government, and till such time a decision is made there, no
cause of action to challenge the same arises and the entire matter
remains pre-mature. Further ordinarily, when an alternative remedy in
the form of an appeal under Section 9C is available unless the order is
wholly without jurisdiction, a writ remedy cannot be invoked. In support
of his aforesaid contention he has placed reliance on the following
judgments:
1) Jindal Poly Flim Ltd. v. Designated Authority (supra)
2) Designated Authority v. Sandisk International Ltd. (supra)
3) Saint Gobain India Pvt. Ltd. v. Union of India, (supra)
4) Nitco Tiles Ltd v. Gujarat Ceramic Floor Tiles Mfg. Assn. &
Ors. (supra).
20. Mr. Mitra, learned senior advocate ably assisted by Mr. Sen,
learned advocate appearing on behalf of the respondent No. 5 would at
the very outset submit that the instant writ petition is not maintainable
by reasons of lack of territorial jurisdiction to entertain the same. He
would submit that the entire cause of action relating to the challenge to
the final findings issued by the designated authority had arisen outside
the jurisdiction of this Court. According to him not only the initiation
notification was published outside the jurisdiction of this Court but the
petitioner had also responded to the same through its advocate who are
based in New Delhi, outside the jurisdiction of this Court. All
communications were exchanged between the petitioner through its
22
2025:CHC-OS:189
advocates and the designated authority at the office of the designated
authority at New Delhi, outside the jurisdiction of this Court. The
disclosure statement including the final findings were published at New
Delhi outside the jurisdiction of this Court. The petition doses not
disclose any cause of action at least on the basis of the statements made
in the petition to invoke the extraordinary writ jurisdiction of this Court
as admittedly, all records are situated outside the jurisdiction of this
Court. In support of his aforesaid contention he has placed reliance on
the judgments delivered in the following cases.
1) State of Rajasthan & Ors. v. M/s Swaika Properties &
Anr., reported in (1985) 3 SCC 217.
2) Oil and Natural Gas Commission v. Utpal Kumar Basu &
Ors., reported in (1994) 4 SCC 711.
3) Kusum Ingots & Alloys Ltd. v. Union of India & Anr.,
reported in (2004) 6 SCC 254.
21. Alternatively, Mr. Mitra would submit that if this court is of the
view that this Court has the jurisdiction to entertain the writ petition, the
same should not be entertained by reasons of the alternative remedy
available to the petitioner. In support of his aforesaid contention he has
placed reliance on the following judgment:
1) Jindal Poly Film Ltd. v. Designated Authority (supra)
2) Outokumpu Stainless v. Union of India, reported in 2013
(288) E.L.T. 67 (Mad.) and
23
2025:CHC-OS:189
3) An unreported judgment delivered by the Hon'ble High Court
at Delhi in WPC 1856 of 2025 on 28th March 2025
22. On the issue that the final findings are only the recommendations
which may or may not be accepted by the central Government and the
writ petition is thus, pre-mature, reliance is placed on the following
judgments:
1) Union of India & Ors v. Pradip Kumar Dey, reported in
(2000) 8 SCC 580.
2) Union of India & Anr. v. Mohit Minerals Private Limited,
reported in (2022) 10 SCC 700.
23. In the facts noted hereinabove, he submits that the instant petition
deserves to be dismissed.
24. Heard the learned advocates appearing for the respective parties
and considered the materials on record. It appears that the respondent
no.5 has come forward to resist the writ petition, at the very threshold,
from being entertained by claiming that no part of cause of action has
arisen within the jurisdiction of this Court on the basis of the disclosures
made in the petition, and that the above writ petition is not only
premature but also should not be entertained by reasons of the
alternative remedy available.
25. In this case, the petitioner questioning the final determination
made by the designated authority has approached this Court and claims
that the same suffers from procedural irregularities and the action of the
24
2025:CHC-OS:189
designated authority is not only violative of the constitutional provisions
but is also contrary to the very statutory provision which enables the
designated authority to carry out the investigation. Thus, on the basis of
the submissions made by the parties, the following questions fall for
consideration:
a. Whether this Court has the territorial jurisdiction to entertain
the writ petition? [paragraphs 27 to 36]
b. Is the challenge premature? [paragraphs 37 to 44]
c. Whether the petitioner had an alternative efficacious remedy
available to approach the Appellate Tribunal (CESTAT)?
[paragraphs 45 to 51]
d. Whether the designated authority had committed procedural
irregularity & whether its actions are violative of principles of
natural justice? (Issue of judicial review and decision making
process) [paragraphs 52 to 56]
e. Does failure to disclose and to rely on confidential material
without disclosure of the summary of the confidential information
constitutes any statutory infraction and/or procedural
irregularities by the designated authority? (Issue of Confidentiality)
[paragraphs 52 to 56]
f. Whether denial of opportunity to contest the non-disclosure of
confidential information and to rely upon the same without the
domestic industry disclosing relevant information in terms of the
25
2025:CHC-OS:189
initiation notification published on 28th March, 2024, the final
findings stand vitiated? And to what reliefs if any, the petitioner is
entitled to? (Issue of non-disclosure and reliefs) [paragraphs 52 to
56 ]
26. In order to consider the above issues, including but not limited to
the issue no.(a), it is necessary to note that the entire investigation had
been conducted as per Section 9A of the said Act and the rules framed
thereunder.
Territorial Jurisdiction
27. On the issue of territorial jurisdiction it is thus, necessary to
consider the provisions of 9A of the said Act and Rules 3, 4, 5, 6, 7, 12,
14, 16, 17 and 18 of the said Rules, which are extracted hereinbelow.
" 9-A. Anti-dumping duty on dumped articles.--(1) Where [any
article is exported by an exporter or producer] from any country or
territory (hereinafter in this section referred to as the exporting
country or territory) to India at less than its normal value, then, upon
the importation of such article into India, the Central Government
may, by notification in the Official Gazette, impose an anti-dumping
duty not exceeding the margin of dumping in relation to such article.
Explanation--For the purposes of this section,--
(a) "margin of dumping", in relation to an article, means the
difference between its export price and its normal value;
(b) "export price", in relation to an article, means the price of the
article exported from the exporting country or territory and in cases
where there is no export price or where the export price is unreliable
because of association or a compensatory arrangement between the
exporter and the importer or a third party, the export price may be
26
2025:CHC-OS:189
constructed on the basis of the price at which the imported articles
are first resold to an independent buyer or if the article is not resold
to an independent buyer, or not resold in the condition as imported,
on such reasonable basis as may be determined in accordance with
the rules made under sub-section (6);
(c) "normal value", in relation to an article, means--
(i) the comparable price, in the ordinary course of trade, for the like
article when [destined for consumption] in the exporting country or
territory as determined in accordance with the rules made under
sub-section (6); or
(ii) when there are no sales of the like article in the ordinary course
of trade in the domestic market of the exporting country or territory,
or when because of the particular market situation or low volume of
the sales in the domestic market of the exporting country or territory,
such sales do not permit a proper comparison, the normal value shall
be either--
(a) comparable representative price of the like article when exported
from the exporting country or [territory to] an appropriate third
country as determined in accordance with the rules made under sub-
section (6); or
(b) the cost of production of the said article in the country of origin
along with reasonable addition for administrative, selling and
general costs, and for profits, as determined in accordance with the
rules made under sub-section (6):
Provided that in the case of import of the article from a country other
than the country of origin and where the article has been merely
transhipped through the country of export or such article is not
produced in the country of export or there is no comparable price in
the country of export, the normal value shall be determined with
reference to its price in the country of origin.
27
2025:CHC-OS:189
[(1A) Where the Central Government, on such inquiry as it may
consider necessary, is of the opinion that circumvention of anti-
dumping duty imposed under sub-section (1) has taken place, either
by altering the description or name or composition of the article
subject to such anti-dumping duty or by import of such article in an
unassembled or disassembled form or by changing the country of its
origin or export or in any other manner, whereby the antidumping
duty so imposed is rendered ineffective, it may extend the anti-
dumping duty to such article or an article originating in or exported
from such country, as the case may be [from such date, not earlier
than the date of initiation of the inquiry, as the Central Government
may, by notification in the Official Gazette, specify].]
[(1B) Where the Central Government, on such inquiry as it may
consider necessary, is of the opinion that absorption of anti-dumping
duty imposed under sub-section (1) has taken place whereby the
antidumping duty so imposed is rendered ineffective, it may modify
such duty to counter the effect of such absorption, from such date,
not earlier than the date of intitiation of the inquiry, as the Central
Government may, by notification in the Official Gazette, specify.
Explanation.--For the purposes of this sub-section, "absorption of
anti-sumping duty" is said to have taken place,--
(a) if there is a decrease in the export price of an article without any
commensurate change in the cost of production of such article or
export price of such article to countries other than India or resale
price in India of such article imported from the exporting country or
territory; or
(b) under such other circumstances as may be provided by rules.]
(2) The Central Government may, pending the determination in
accordance with the provisions of this section and the rules made
thereunder of the normal value and the margin of dumping in
relation to any article, impose on the importation of such article into
28
2025:CHC-OS:189
India an anti-dumping duty on the basis of a provisional estimate of
such value and margin and if such anti-dumping duty exceeds the
margin as so determined:--
(a) the Central Government shall, having regard to such
determination and as soon as may be after such determination,
reduce such anti-dumping duty; and
(b) refund shall be made of so much of the anti-dumping duty which
has been collected as is in excess of the anti-dumping duty as so
reduced.
[(2A) Notwithstanding anything contained in sub-section (1) and sub-
section (2), a notification issued under sub-section (1) or any anti-
dumping duty imposed under sub-section (2) shall not apply to
articles imported by a hundred per cent. export-oriented undertaking
or a unit in a special economic zone, unless,--
(i) it is specifically made applicable in such notification or to such
undertaking or unit; or
(ii) such article is either cleared as such into the domestic tariff area
or used in the manufacture of any goods that are cleared into the
domestic tariff area, in which case, anti-dumping duty shall be
imposed on that portion of the article so cleared or used, as was
applicable when it was imported into India.
Explanation --For the purposes of this section,--]
(a)the expression "hundred per cent. export-oriented undertaking"
shall have the same meaning as assigned to it in clause (i)
of Explanation 2 to sub-section (1) of section 3 of the Central Exise
Act, 1944 (1 of 1944);
(b) the expression "special economic zone" shall have the same
meaning as assigned to it in clause (za) of section 2 of the Special
Economic Zones Act, 2005 (28 of 2005);]
(3) If the Central Government, in respect of the dumped article under
inquiry, is of the opinion that--
29
2025:CHC-OS:189
(i) there is a history of dumping which caused injury or that the
importer was, or should have been, aware that the exporter practices
dumping and that such dumping would cause injury; and
(ii) the injury is caused by massive dumping of an article imported in
a relatively short time which in the light of the timing and the volume
of imported article dumped and other circumstances is likely to
seriously undermine the remedial effect of the antidumping duty
liable to be levied,
the Central Government may, by notification in the Official Gazette,
levy anti-dumping duty retrospectively from a date prior to the date
of imposition of anti-dumping duty under sub-section (2) but not
beyond ninety days from the date of notification under that sub-
section, and notwithstanding anything contained in any law for the
time being in force, such duty shall be payable at such rate and from
such date as may be specified in the notification.
(4) The anti-dumping duty chargeable under this section shall be in
addition to any other duty imposed under this Act or any other law
for the time being in force.
(5) The anti-dumping duty imposed under this section shall, unless
revoked earlier, cease to have effect on the expiry of five years from
the date of such imposition:
Provided that if the Central Government, [on consideration of a
review], is of the opinion that the cessation of such duty is likely to
lead to continuation or recurrence of dumping and injury, it may,
from time to time, extend the period of such imposition for a further
period [up to five years] and such further period shall commence
from the date of order of such extension:
Provided further that where a review initiated before the expiry of
the aforesaid period of five years has not come to a conclusion before
such expiry, the anti-dumping duty may continue to remain in force
30
2025:CHC-OS:189
pending the outcome of such a review for a further period not
exceeding one year.
[Provided also that if the said duty is revoked temporarily, the period
of such revocation shall not exceed one year at a time.]
(6) The margin of dumping as referred to in sub-section (1) or sub-
section (2) shall, from time to time, be ascertained [* * *] by the
Central Government, after such inquiry as it may consider necessary
and the Central Government may, by notification in the Official
Gazette, make rules for the purposes of this section, and without
prejudice to the generality of the foregoing, such rules may provide
for the manner in which articles liable for any anti-dumping duty
under this section may be identified, and for the manner in which
the export price and the normal value of, and the margin of dumping
in relation to, such articles may be determined and for the
assessment and collection of such anti-dumping duty.
[(6A) The margin of dumping in relation to an article, exported by an
exporter or producer, under inquiry under sub-section (6) shall be
determined on the basis of records concerning normal value and
export price maintained, and information provided, by such exporter
or producer:
Provided that where an exporter or producer fails to provide such
records or information, the margin of dumping for such exporter or
producer shall be determined on the basis of facts available.]
(7) Every notification issued under this section shall, as soon as may
be after it is issued, be laid before each House of Parliament.
[(8) The provisions of the Customs Act, 1962 (52 of 1962) and all
rules and regulations made thereunder, including but not limited to
those relating to the date for determination of rate of duty,
assessment, non-levy, short-levy, refunds, exemptions, interest,
recovery, appeals, offences and penalties shall, as far as may be,
apply to the duty chargeable under this section as they apply in
31
2025:CHC-OS:189
relation to duties leviable under that Act or all rules or regulations
made thereunder, as the case may be.]"
Rules 3 to 7, 12, 14 and 16 to 18 of the said Rules are also extracted
herein below.
" 3. Appointment of designated authority.--(1) The Central
Government may, by notification in the Official Gazette, appoint a
person not below the rank of a Joint Secretary to the Government of
India or such other person as the Government may think fit as the
designated authority for purposes of these rules.
(2) The Central Government may provide to the designated authority
the services of such other persons and such other facilities as it
deems fit.
4. Duties of the designated authority.--It shall be the duty of the
designated authority in accordance with these rules--
(a) to investigate as to the existence, degree and effect of any alleged
dumping in relation to import of any article;
(b) to identify the article liable for anti-dumping duty;
(c) to submit its findings, provisional or otherwise to Central
Government as to--
(i) normal value, export price and the margin of dumping in relation
to the article under investigation; and
(ii) the injury or threat of injury to an industry established in India or
material retardation to the establishment of an industry in India
consequent upon the import of such article from the specified
countries.
32
2025:CHC-OS:189
(d) to recommend the amount of anti-dumping duty, which if levied
would be adequate to remove the injury to the domestic industry and
the date of commencement of such duty; and
(e) to review the need for continuance of anti-dumping duty.
5. Initiation of investigation.--(1) Except as provided in sub-rule
(4), the designated authority shall initiate an investigation to
determine the existence, degree and effect of any alleged dumping
only upon receipt of a written application by or on behalf of the
domestic industry.
(2) An application under sub-rule (1) shall be in the form as may be
specified by the designated authority and the application shall be
supported by evidence of--
(a) dumping,
(b) injury, where applicable, and
(c) where applicable, a casual link between such dumped imports
and alleged injury.
(3) The designated authority shall not initiate an investigation
pursuant to an application made under sub-rule (1) unless--
(a) it determines, on the basis of an examination of the degree of
support for, or opposition to the application expressed by domestic
producers of the like product, that the application has been made by
or on behalf of the domestic industry:
Provided that no investigation shall be initiated if domestic
producers expressly supporting the application account for less than
twenty-five per cent. of the total production of the like article by the
domestic industry, and
33
2025:CHC-OS:189
(b) it examines the accuracy and adequacy of the evidence provided
in the application and satisfies itself that there is sufficient evidence
regarding--
(i) dumping,
(ii) injury, where applicable, and
(iii) where applicable, a casual link between such dumped imports
and the alleged injury, to justify the initiation of an investigation.
Explanation.--For the purpose of this rule the application shall be
deemed to have been made by or on behalf of the domestic industry,
if it is supported by those domestic producers whose collective
output constitute more than fifty per cent. of the total production of
the like article produced by that portion of the domestic industry
expressing either support for or opposition, as the case may be, to
the application.
(4) Notwithstanding anything contained in sub-rule (1), the
designated authority may initiate an investigation suo motu if it is
satisfied from the information received from the Collector of Customs
appointed under the Customs Act, 1962 (52 of 1962), or from any
other source that sufficient evidence exists as to the existence of the
circumstances referred to in clause (b) of sub-rule (3).
(5) The designated authority shall notify the Government of the
exporting country before proceeding to initiate an investigation.
6. Principles governing investigations.--(1) The designated
authority shall, after it has decided to initiate investigation to
determine the existence, degree and effect of any alleged dumping of
any article, issue a public notice notifying its decision and such
public notice shall, inter alia, contain adequate information on the
following:--
34
2025:CHC-OS:189
(i) the name of the exporting country or countries and the article
involved;
(ii) the date of initiation of the investigation;
(iii) the basis on which dumping is alleged in the application;
(iv) a summary of the factors on which the allegation of injury is
based;
(v) the address to which representations by interested parties should
be directed; and
(vi) the time-limits allowed to interested parties for making their
views known.
(2) A copy of the public notice shall be forwarded by the designated
authority to the known exporters of the article alleged to have been
dumped, the Governments of the exporting countries concerned and
other interested parties.
(3) The designated authority shall also provide a copy of the
application referred to in sub-rule (1) of Rule 5 to--
(i) the known exporters or to the concerned trade association where
the number of exporters is large, and
(ii) the Governments of the exporting countries:
Provided that the designated authority shall also make available a
copy of the application to any other interested party who makes a
request therefor in writing.
(4) The designated authority may issue a notice calling for any
information, in such form as may be specified by it, from the
exporters, foreign producers and other interested parties and such
information shall be furnished by such persons in writing within
thirty days from the date of receipt of the notice or within such
extended period as the designated authority may allow on sufficient
cause being shown.
35
2025:CHC-OS:189
Explanation.--For the purpose of this sub-rule, the notice calling for
information and other documents shall be deemed to have been
received one week from the date on which it was sent by the
designated authority or transmitted to the appropriate diplomatic
representative of the exporting country.
(5) The designated authority shall also provide opportunity to the
industrial users of the article under investigation, and to
representative consumer organisations in cases where the article is
commonly sold at the retail level, to furnish information which is
relevant to the investigation regarding dumping injury where
applicable, and casualty.
(6) The designated authority may allow an interested party or its
representative to present the information relevant to the investigation
orally but such oral information shall be taken into consideration by
the designated authority only when it is subsequently reproduced in
writing.
(7) The designated authority shall make available the evidence
presented to it by one interested party to the other interested parties,
participating in the investigation.
(8) In a case where an interested party refuses access to, or
otherwise does not provide necessary information within a
reasonable period, or significantly impedes the investigation, the
designated authority may record its findings on the basis of the facts
available to it and make such recommendations to the Central
Government as it deems fit under such circumstances.
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
36
2025:CHC-OS:189
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 authorisation 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 summarisation 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 authorise its disclosure in a
generalised or summary form, it may disregard such information.
12. Preliminary findings.--(1) The designated authority shall
proceed expeditiously with the conduct of the investigation and
shall, in appropriate cases, record a preliminary finding regarding
export price, normal value and margin of dumping, and in respect of
imports from specified countries, it shall also record a further finding
regarding injury to the domestic industry and such finding shall
contain sufficiently detailed information for the preliminary
determinations on dumping and injury and shall refer to the matters
of fact and law which have led to arguments being accepted or
rejected. It will also contain--
(i) the names of the suppliers, or when this is impracticable, the
supplying countries involved;
37
2025:CHC-OS:189
(ii) a description of the article which is sufficient for customs
purposes;
(iii) the margins of dumping established and a full explanation of the
reasons for the methodology used in the establishment and
comparison of the export price and the normal value;
(iv) considerations relevant to the injury determination; and
(v) the main reasons leading to the determination.
(2) The designated authority shall issue a public notice recording its
preliminary findings.
14. Termination of investigation.--The designated authority
shall, by issue of a public notice, terminate an investigation
immediately if--
(a) it receives a request in writing for doing so from or on behalf of
the domestic industry affected, at whose instance the investigation
was initiated;
(b) it is satisfied in the course of an investigation, that there is not
sufficient evidence of dumping or, where applicable, injury to justify
the continuation of the investigation;
(c) it determines that the margin of dumping is less than two per
cent. of the export price;
(d) it determines that the volume of the dumped imports, actual or
potential, from a particular country accounts for less than three per
cent. of the imports of the like product, unless, the countries which
individually account for less than three per cent. of the imports of the
like product, collectively account for more than seven per cent. of the
import of the like product; or
(e) it determines that the injury where applicable, is negligible.
38
2025:CHC-OS:189
16. Disclosure of information.--The designated authority shall,
before giving its final findings, inform all interested parties of the
essential facts under consideration which form the basis for its
decision.
17. Final findings.--(1) The designated authority shall, within one
year from the date of initiation of an investigation, determine as to
whether or not the article under investigation is being dumped in
India and submit to the Central Government its final finding--
(a) as to,--
(i) the export price, normal value and the margin of dumping of the
said article;
(ii) whether import of the said article into India, in the case of imports
from specified countries, causes or threatens material injury to any
industry established in India, or materially retards the
establishment of any industry in India;
(iii) a casual link, where applicable, between the dumped imports
and injury;
(iv) whether a retrospective levy is called for and if so, the reason
therefor and date of commencement of such retrospective levy:
Provided that the Central Government may, in circumstances of
exceptional nature, extend further the aforesaid period of one year
by six months:
Provided further that in those cases where the designated authority
has suspended the investigation on the acceptance of a price
undertaking as provided in Rule 15 and subsequently resumes the
same on violation of the terms of the said undertaking, the period for
which investigation was kept under suspension shall not be taken
into account while calculating the period of said one year.
39
2025:CHC-OS:189
(b) recommending the amount of duty which, if levied, would be
adequate to remove the injury where applicable, to the domestic
industry.
(2) The final finding if affirmative, shall contain all information on the
matter of facts and law and reasons which have led to the
conclusion and shall also contain information regarding--
(i) the names of the suppliers, or when this is impracticable, the
supplying countries involved;
(ii) a description of the product which is sufficient for customs
purposes;
(iii) the margins of dumping established and a full explanation of the
reasons for the methodology used in the establishment and
comparison of the export price and the normal value;
(iv) considerations relevant to the injury determination; and
(v) the main reasons leading to the determination.
(3) The designated authority shall determine an individual margin of
dumping for each known exporter or producer concerned of the
article under investigation:
Provided that in cases where the number of exporters, producers,
importers or types of articles involved are so large as to make such
determination impracticable, it may limit its findings either to a
reasonable number of interested parties or articles by using
statistically valid samples based on information available at the time
of selection, or to the largest percentage of the value of the exports
from the country in question which can reasonably be investigated,
and any selection of exporters producers or types of articles, made
under this proviso shall preferably be made in consultation with and
with the consent of the exporters, producers or importers concerned:
40
2025:CHC-OS:189
Provided further that the designated authority shall, determine an
individual margin of dumping for any exporter or producer, though
not selected initially, who submit necessary information in time,
except where the number of exporters or producers are so large that
individual examination would be unduly burdensome and prevent
the timely completion of the investigation.
(4) The designated authority shall issue a public notice recording its
final findings.
18. Levy of duty.--(1) The Central Government may, within three
months of the date of publication of final findings by the designated
authority under Rule 17 impose by notification in the Official
Gazette, upon importation into India of the article covered by the
final finding, anti-dumping duty not exceeding the margin of
dumping as determined under Rule 17:
Provided that in case of imports from the specified countries the
amount of duty shall not exceed the amount which has been found
adequate to remove the injury to domestic industry.
(2) In cases where the designated authority has selected percentage
of the volume of the exports from a particular country, as referred to
in sub-rule (3) of Rule 17, any dumping duty applied to imports from
exporters or producers not included in the examination shall not
exceed--
(i) the weighted average margin of dumping established with respect
to the selected exporters or producers or,
(ii) where the liability for payment of anti-dumping duties is
calculated on the basis of a prospective normal value, the difference
between the weighted average normal value of the selected
exporters or producers and the export prices of exporters or
producers, not individually examined:
41
2025:CHC-OS:189
Provided that the Central Government shall disregard for the
purpose of this sub-rule any zero margin, margins which are less
than 2 per cent. expressed as the percentage of export price and
margins established in the circumstances detailed in sub-rule (8) of
Rule 6. The Central Government shall apply individual duties to
imports from any exporter or producer not included in the
examination who has provided the necessary information during the
course of the investigation as referred to in the second proviso to
sub-rule (3) of Rule 17.
(3) Notwithstanding anything contained in sub-rule (1), where a
domestic industry has been interpreted according to the proviso to
sub-clause (b) of Rule 2, a duty shall be levied only after the
exporters have been given opportunity to cease exporting at dumped
prices to the area concerned or otherwise give an undertaking
pursuant to Rule 15 and such undertaking has not been promptly
given and in such cases duty shall not be levied only on the articles
of specific producers which supply the area in question.
(4) If the final finding of the designated authority is negative that is
contrary to the evidence on whose basis the investigation was
initiated, the Central Government shall, within forty-five days of the
publication of final findings by the designated authority under Rule
17, withdraw the provisional duty imposed, if any."
28. As would appear from the provisions contained in Section 9A of the
said Act, Rule 5 of the said Rules read with the notification dated 28 th
March, 2024, the designated authority upon publication of such
notification had invited all interested parties throughout the territory of
India to offer their comments within the time specified therein, not only
on the scope of consideration of the products under consideration but
42
2025:CHC-OS:189
with regard to the exclusion thereof, and also with regard to any
information that the party interested may make available. The aforesaid
initiation notification was published in the Gazette of India and was
intended to operate throughout the length and breadth of India.
29. The petitioner has its registered office at Kolkata, and claims, upon
going through the above notification had participated in such enquiry
through its advocates. The preliminary objection of the petitioner was
with regard to the inclusion of rutile sulphate in PUC on the ground of
lack of domestic capability in manufacturing and commercial sale
thereof. The petitioner also contended that a comparative analysis
between the rutile sulphate and rutile chloride is impractical. According
to the petitioner, the domestic industry lacks the necessary
manufacturing setup to produce sulphate based rutile as their facilities
are configured solely for chloride process. According to the petitioner,
chloride process is inherently distinct from the sulphate process and
requires a completely separate specialized plant and infrastructure,
precluding any possibility of conversion or production of sulphate based
rutile. The physical characteristic, colour of the sulphate based rutile
and chloride based rutile, have also been distinctly identified by the
petitioner.
30. On 29th January, 2025, a disclosure statement was published. It
would transpire from such disclosure statement and in particular
43
2025:CHC-OS:189
paragraph 10 thereof, that the designated authority had made the
following observations:
"10. The Authority proposes to consider as follows with regard to
exclusion requests made and concerns expressed by the interested
parties:
a. Rutile through sulphate TiO2 should be excluded- With respect to
submissions alleging that the domestic industry does not produce
rutile through sulphate process, the Authority notes that the Indian
industry produces rutile grade through sulphate process as well as
chloride process. Further, it is noted that TTPL, has the necessary
technology and setup to produce rutile through sulphate route and
has manufactured and sold rutile Tio2 produced using sulphate
process during POI. Therefore, the Authority proposes to disagree
with the exclusion sought for this product type."
31. A perusal of disclosure statement would also demonstrate that the
interested parties were offered an opportunity to offer their comments to
the same. According to the petitioner, the above disclosure did not
constitute appropriate disclosure for the petitioner to test out the
veracity of the claim, especially having regard to the consistent stand
taken by the petitioner that there has been no commercial sale of rutile
sulphate to the Indian paint industries and having regard thereto, since
merely disclosing the names of the paint industries would not constitute
appropriate information, the petitioner by email dated 30 th January,
2025 had sought for the details of the names of the paint companies who
had purchased the same from the domestic industry, so as to verify the
44
2025:CHC-OS:189
accuracy of the claim made by the domestic industry that it had the
technical setup not only to produce rutile sulphate but also has
manufactured and sold of the same during the period of investigation
(POI).
32. Since, the petitioner did not receive any response, without
prejudice to the above, the petitioner had filed a comprehensive response
through its advocates on 5th February, 2025. The same was followed by
the final findings which had been notified in the Gazette of India on 12 th
February, 2025. It appears that in paragraph 10 a., of the final findings
the designated authority had reproduced its earlier stand by verbatim
reproduction thereof. In this context, it would be relevant to note that the
learned advocate representing the respondents have jointly claimed that
the information which have not been disclosed are all confidential
information and the designated authority is estopped from disclosing the
same having regard to the provisions contained in Rule 7 of the said
Rules.
33. Mr. Sharma, has in fact went on to add that non-disclosure of
such information which is confidential does not constitute violation of
principles of nature justice and the same has the sanction of the Hon'ble
Supreme Court in the case of Union of India & Anr. v. Meghmani
Organics Limited & Ors. (supra). In this context, I may note that a
procedure had been laid down to deal with the confidential information,
and in fact the initiation notification dated 28th March, 2024 elaborately
45
2025:CHC-OS:189
deals with the same. To morefully appreciate the same, paragraphs 32 to
38 of the aforesaid initiation notification is extracted hereinbelow:
"32. Any party making any confidential submissions or providing
information on a confidential basis before the Authority is required to
simultaneously submit a non-confidential version of the same in
terms of Rule 7(2) of the Rules. Failure to adhere to the above may
lead to rejection of the response/submissions.
33. The parties making any submission (including
Appendices/Annexures attached thereto), before the Authority
including questionnaire response, are required to file confidential
and non-confidential versions separately.
34. The "confidential" or "non-confidential" submissions must be
clearly marked as "confidential" or "non-confidential" at the top of
each page. Any submission made without such marking shall be
treated as non-confidential by the Authority, and the Authority shall
be at liberty to allow the other interested parties to inspect such
submissions.
35. The non-confidential version is required to be a replica of the
confidential version with the confidential information preferably
indexed or blanked out (in case indexation is not feasible) and
summarized depending upon the information on which
confidentiality is claimed. The non-confidential summary must be in
sufficient detail to permit a reasonable understanding of the
substance of the information furnished on a confidential basis.
However, in exceptional circumstances, the party submitting the
confidential information may indicate that such information is not
susceptible to summary, and a statement of reasons why
summarization is not possible must be provided to the satisfaction of
the Authority.
46
2025:CHC-OS:189
36. The Authority may accept or reject the request for confidentiality
on examination of the nature of the information submitted. If the
Authority is satisfied that the request for confidentiality is not
warranted or if the supplier of the information is either unwilling to
make the information public or to authorize its disclosure in
generalized or summary form, it may disregard such information.
37. Any submission made without a meaningful non-confidential
version thereof or a good cause statement on the confidentiality
claim shall not be taken on record by the Authority.
38. The interested parties can offer their comments on the issues of
confidentiality claimed by other interested party within 7 days of the
circulation of the non-confidential version of the documents filed
before the Authority."
34. From the petition it is abundantly clear that not only the
investigation initiated vide initiation notification dated 28 th March, 2024
was to operate throughout the territory of India but all the interested
parties were called upon to provide their inputs primarily with regard to
the product under consideration (PUC) and subsequently at the various
stages of the investigation which provide rights to such interested parties
to seek for necessary particulars in relation to investigation including but
not limited to objecting to the claim of confidentiality made by a party. As
would appear from the petition, the final findings and the levy are to
have a direct impact on the business of an interested party including the
petitioner which has the registered office at Kolkata and has been
operating from Kolkata. As such it cannot be said that no part of cause of
action had arisen within the jurisdiction of this Court. In fact, the effect
47
2025:CHC-OS:189
of the initiation notification, disclosure statement, the determination as
reflected in the final findings and the levy, are to have a direct impact
and the effect thereof, was felt by the petitioner at its registered office at
Kolkata, within the territorial limits of Kolkata and within the jurisdiction
of this Hon'ble Court.
35. Mr. Mitra, learned senior advocate, has, however, by placing
reliance on the judgments delivered in the case of M/s Swaika
Properties (supra), Oil and Natural Gas Corporation (supra) and
Kusum Ingots & Alloys Ltd. (supra) has purported to claim that this
Court does not have the territorial jurisdiction since, no part of cause of
action has arisen within the jurisdiction of this Court. I, however, find
that while in the case of M/s Swaika Properties (supra) the acquisition
proceedings which was initiated by the State of Rajasthan in respect of
the land situated at Jaipur, of a Kolkata based company and the cause of
action in such case notwithstanding service of notice at the registered
office of the company at Kolkata could not have arisen within the
territorial limits and the jurisdiction of this Court for the simple reason
that the service of a mere notice under Section 52(2) of the Rajasthan
Urban Improvement Act, 1959 which was served at Kolkata, did not give
right to a cause of action for acquisition of such property situated
outside the jurisdiction of the Court at Rajasthan. The above judgment is
distinguishable on facts and does not assist Mr. Mitra's client. The
judgment delivered in the case of Oil and Natural Gas Corporation
48
2025:CHC-OS:189
(supra) also does not assist Mr. Mitra's client for the simple reason that
in the said case bids were invited from outside the jurisdiction of the
Court for setting up a Kerosene rectifying processing unit at Hazira
Complex in Gujarat, by circulating an advertisement in the 'Times of
India' within the jurisdiction of the Calcutta High Court though the final
decision in that regard was to be taken by the steering committee at New
Delhi presided over by the chairman of ONGC. Admittedly, in a matter
relating to formation of contract on the basis of a notice inviting tender,
the contract comes into being with the acceptance of the offer. Though,
the party had made an offer from Kolkata, acceptance or non-acceptance
thereof, was to take place at Delhi. Since, the offer was not accepted the
same did not culminate into a contract and the effect of non-acceptance
could not extent to Kolkata for the simple reason in such case the non-
acceptance of the offer can at best give rise to a cause of action which
arose at Delhi, outside the territorial limits of the High Court at Calcutta.
Without going into the issue that a point of territorial jurisdiction if
taken, as and by way of demurer, the statement made in the petition has
to be taken to be true and correct the Hon'ble Supreme Court held in
such case even by accepting the statement made in the petition to be
correct, no part of the cause of action has arisen within Kolkata. Such is
not the case here. The above judgment also does not assist Mr. Mitra's
client at all.
49
2025:CHC-OS:189
36. In so far as the judgment delivered in the case of Kusum Ingots &
Alloys Ltd. (supra) is concerned the Hon'ble Supreme Court in
paragraph 6 of the judgment has amplified the implication of the cause
of action and has noted that the cause of action implies a right to sue
and the material facts which are imperative for the suitor to allegedly
constitute a cause of action. As per the observations made therein, each
and every fact which is necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court, negatively put it
would mean everything which, if not proved, gives the defendant an
immediate right to judgment, would constitute to be part cause of action.
In the said case one of the questions that fell for consideration was the
situs of the respondents. It is in that context the Hon'ble Supreme Court
observed that when an order is passed by a Court or tribunal or an
executive authority, part cause of action arises at that place, the same
includes both an appellate order or a revisional order though the original
order was passed at a place outside the said area. As such, when a part
of the cause of action has arisen within one or the other High Court, it
will be for the petitioner to choose therefrom. Although, according to Mr.
Mitra since, the decision of the designated authority is being rendered
from outside the jurisdiction of this Court, this Court does not have
jurisdiction, I am afraid such contention cannot be sustained for the
simple reason that in the present case the enquiry is not limited to a
particular place or a particular state but is Pan India, giving rise to rights
50
2025:CHC-OS:189
and obligations of the parties to participate in the determination process
from their respective place of business and the decision or the
determination is to be felt at their respective place of business. The
judgement delivered in the case of Otokumpu Stainless (supra) does not
consider the aforesaid aspect. The Hon'ble Court in the said case had
noted from the pleadings that the concerned goods would be cleared
through Chennai airport i.e. the assessment of duties upon clearance of
the subject goods exported by the petitioner would take place at
Chennai. Thus, the issue was whether the assessment and payment of
anti-dumping duty on the goods that is going to take place constitute a
material, essential or integral part of the cause of action. Since, an
anticipated event would not give rise to cause of action and noting that
the petitioner was a non-resident company and was represented by its
Power of Attorney holder, who resides at New Delhi and the respondent
who passed the order was also situated at New Delhi, the Hon'ble Madras
High Court had decided to conclude that no cause of action had arisen
within the territory of the Hon'ble Court. The above judgment does not
consider the scope of either the initiation notification or the right of the
parties to participate in the adjudicating process, in fact such issue did
not fall for consideration. The above judgement in the facts of this case
cannot assist the respondents having regard to the scope of cause of
action being elaborately dealt with herein above. On such grounds, the
51
2025:CHC-OS:189
objection on territorial jurisdiction as raised by Mr. Mitra fails and the
issue no.(a) is decided in favour of the petitioner.
Is the Challenge Premature?
37. Moving on to the next issue of the writ petition being premature
and not being maintainable by reasons of the presence of an alternative
remedy, although, the parties have advanced detailed arguments and
have relied on several judgments, I find that Section 9C of the said Act
which deals with the scope of the appellate provision has since been
amended. To understand the aforesaid provision and the implication of
the amendment, it is necessary to consider the scope of the aforesaid
amendment. In that context, I may note that the said Act has been
amended by the Finance Act, 2023 (No. 8 of 2023) (in short, the "Finance
Act") which was published in the Gazette of India on 31st March, 2023.
Section 134 of the Finance Act deals with the amendment of Section 9,
9A and 9C of the said Act, while Section 135 of the Finance Act deals
with the amendment of first schedule of the said Act and the Section 136
of the Finance Act deals with the amendment of the second schedule of
the said Act. To understand the scope of the above amendment, both the
unamended provisions and the amended provisions of the said Act, as
amended by the Finance Act, 2023 are set out hereinbelow in a tabulated
form:
52
2025:CHC-OS:189
Provision of Customs
Unamended Provision Amended Provision
Tariff Act, 1975 as has
been amended by the
Finance Act, 2023
(No. 8 of 2023)
Section 9
(a) in sub-section (6), in (6) The countervailing (6) The countervailing
the first proviso, for the duty imposed under this duty imposed under this
words "in a review", the
section shall, unless section shall, unless
words "on consideration of
revoked earlier, cease to revoked earlier, cease to
a review" shall be
have effect on the expiry have effect on the expiry
substituted;
of five years from the of five years from the
date of such imposition: date of such imposition:
Provided that if the Provided that if the
Central Government, in a Central
review, is of the opinion Government, 29[on
that the cessation of consideration of a
such duty is likely to review], is of the opinion
lead to continuation or that the cessation of
recurrence of such duty is likely to
subsidization and injury, lead to continuation or
it may, from time to time, recurrence of
extend the period of such subsidization and injury,
imposition for a further it may, from time to time,
period 30[up to five years] extend the period of such
and such further period imposition for a further
shall commence from the period 30[up to five years]
date of order of such and such further period
53
2025:CHC-OS:189
extension: shall commence from the
Provided further that date of order of such
where a review initiated extension:
before the expiry of the Provided further that
aforesaid period of five where a review initiated
years has not come to a before the expiry of the
conclusion before such aforesaid period of five
expiry, the countervailing years has not come to a
duty may continue to conclusion before such
remain in force pending expiry, the countervailing
the outcome of such a duty may continue to
review for a further remain in force pending
period not exceeding one the outcome of such a
year. review for a further
31[Provided also that if period not exceeding one
the said duty is revoked year.
temporarily, the period of 31[Provided also that if
such revocation shall not the said duty is revoked
exceed one year at a temporarily, the period of
time.] such revocation shall not
exceed one year at a
time.]
(b) in sub-section (7), the (7) The amount of any (7) The amount of any
words "and determined" such subsidy as referred such subsidy as referred
shall be omitted; to in sub-section (1) or to in sub-section (1) or
sub-section (2) shall, sub-section (2) shall,
from time to time, be from time to time, be
54
2025:CHC-OS:189
ascertained and ascertained 32[* * *] by
determined by the the Central Government,
Central Government, after such inquiry as it
after such inquiry as it may consider necessary
may consider necessary and the Central
and the Central Government may, by
Government may, by notification in the Official
notification in the Official Gazette, make rules for
Gazette, make rules for the identification of such
the identification of such article and for the
article and for the assessment and
assessment and collection of any
collection of any countervailing duty
countervailing duty imposed upon the
imposed upon the importation thereof
importation thereof under this section.
under this section.
Section 9A
(a) in sub-section (5), in 5) The anti-dumping 5) The anti-dumping
the first proviso, for the duty imposed under duty imposed under
words "in a review", the this section shall, this section shall,
words "on consideration of unless revoked earlier, unless revoked earlier,
a review" shall be cease to have effect on cease to have effect on
substituted; the expiry of five years the expiry of five years
from the date of such from the date of such
55
2025:CHC-OS:189
imposition: imposition:
Provided that if the Provided that if the
Central Government, in Central
a review, is of the Government, [on
opinion that the consideration of a
cessation of such duty review], is of the
is likely to lead to opinion that the
continuation or cessation of such duty
recurrence of dumping is likely to lead to
and injury, it may, from continuation or
time to time, extend the recurrence of dumping
period of such and injury, it may, from
imposition for a further time to time, extend the
period [up to five years] period of such
and such further period imposition for a further
shall commence from period [up to five years]
the date of order of and such further period
such extension: shall commence from
Provided further that the date of order of
where a review such extension:
initiated before the Provided further that
expiry of the aforesaid where a review
period of five years has initiated before the
not come to a expiry of the aforesaid
conclusion before such period of five years has
expiry, the anti- not come to a
dumping duty may conclusion before such
continue to remain in expiry, the anti-
force pending the dumping duty may
outcome of such a continue to remain in
56
2025:CHC-OS:189
review for a further force pending the
period not exceeding outcome of such a
one year. review for a further
[Provided also that if period not exceeding
the said duty is one year.
revoked temporarily, [Provided also that if
the period of such the said duty is
revocation shall not revoked temporarily,
exceed one year at a the period of such
time.] revocation shall not
exceed one year at a
time.]
(b) in sub-section (6), the (6) The margin of (6) The margin of
words "and determined" dumping as referred to dumping as referred to
shall be omitted; in sub-section (1) or in sub-section (1) or
sub-section (2) shall, sub-section (2) shall,
from time to time, be from time to time, be
ascertained and ascertained [* * *] by
determined by the the Central
Central Government, Government, after such
after such inquiry as it inquiry as it may
may consider consider necessary and
necessary and the the Central Government
Central Government may, by notification in
may, by notification in the Official Gazette,
the Official Gazette, make rules for the
make rules for the purposes of this
purposes of this section, and without
57
2025:CHC-OS:189
section, and without prejudice to the
prejudice to the generality of the
generality of the foregoing, such rules
foregoing, such rules may provide for the
may provide for the manner in which
manner in which articles liable for any
articles liable for any anti-dumping duty
anti-dumping duty under this section may
under this section may be identified, and for
be identified, and for the manner in which
the manner in which the export price and the
the export price and the normal value of, and
normal value of, and the margin of dumping
the margin of dumping in relation to, such
in relation to, such articles may be
articles may be determined and for the
determined and for the assessment and
assessment and collection of such anti-
collection of such anti- dumping duty.
dumping duty.
Section 9C
(a) in sub-section (1), the (1) An appeal against (1) An appeal against
words "order of" shall be
the order of the 50[* * *] determination
omitted;
determination or review or review thereof shall lie
thereof shall lie to the to the Customs, Excise
Customs, Excise and and Service Tax
Service Tax Appellate Appellate Tribunal
Tribunal constituted constituted under section
58
2025:CHC-OS:189
under section 129 of the 129 of the Customs Act,
Customs Act, 1962 (52 of 1962 (52 of 1962)
1962) (hereinafter (hereinafter referred to as
referred to as the the Appellate Tribunal),
Appellate Tribunal), in in respect of the
respect of the existence, existence, degree and
degree and effect of-- effect of--
(i) any subsidy or (i) any subsidy or
dumping in relation to dumping in relation to
import of any article; or import of any article; or
(ii) import of any article (ii) import of any article
into India in such into India in such
increased quantities and increased quantities and
under such condition so under such condition so
as to cause or as to cause or
threatening to cause threatening to cause
serious injury to serious injury to
domestic industry domestic industry
requiring imposition of requiring imposition of
safeguard duty in safeguard duty in
relation to import of that relation to import of that
article.] article.]
(2) Every appeal under (2) Every appeal under
(b) in sub-section (2), for
the word "order", the this section shall be filed this section shall be filed
words "determination or within ninety days of the within ninety days of the
59
2025:CHC-OS:189
review" shall be date of order under date of 52[determination
substituted; appeal: or review] under appeal:
Provided that the Provided that the
Appellate Tribunal may Appellate Tribunal may
entertain any appeal entertain any appeal
after the expiry of the after the expiry of the
said period of ninety said period of ninety
days, if it is satisfied that days, if it is satisfied that
the appellant was the appellant was
prevented by sufficient prevented by sufficient
cause from filing the cause from filing the
appeal in time. appeal in time.
(c) in sub-section (3), for (3) The Appellate (3) The Appellate
the word "order", the Tribunal may, after Tribunal may, after
words "determination or giving the parties to the giving the parties to the
review" shall be appeal, an opportunity of appeal, an opportunity of
substituted; being heard, pass such being heard, pass such
orders thereon as it orders thereon as it
thinks fit, confirming, thinks fit, confirming,
modifying or annulling modifying or annulling
the order appealed the 53[determination or
against. review] appealed against.
(d) after sub-section (5), (5) Every appeal under (5) Every appeal under
the sub-section (1) shall be sub-section (1) shall be
following Explanation shall
heard by a Special Bench heard by a Special Bench
60
2025:CHC-OS:189
be inserted, namely:-- constituted by the constituted by the
President of the President of the Appellate
'Explanation.- For the
Appellate Tribunal for Tribunal for hearing
purposes of this section,
"determination" or hearing such appeals such appeals and such
"review" means the and such Bench shall Bench shall consist of
determination or review consist of the President the President and not
done in such manner as and not less than two less than two members
may be specified in the
members and shall and shall include one
rules made under
include one judicial judicial member and one
Sections 8-B, 9, 9-A and
member and one technical member.]
9-B.'.
technical member.]
54[Explanation.--For the
purposes of this section,
"determination" or
"review" means the
determination or review
done in such manner as
may be specified in the
rules made under
Sections 8-B, 9, 9-A and
9-B.]
First Schedule
In the Customs Tariff Act, the First Schedule shall--
(a) be amended in the manner specified in the Second Schedule;
(b) be also amended in the manner specified in the Third Schedule;
61
2025:CHC-OS:189
(c) with effect from the 1st May, 2023, be also amended in the manner specified in
the Fourth Schedule;
(d) with effect from the 1st April, 2023, be also amended in the manner specified
in the Seventh Schedule;
Second Schedule
In the Customs Tariff Act, the Second Schedule shall, with effect from the
1st May, 2023, be amended in the manner specified in the Fifth Schedule.
38. In the above context, it must be borne in mind that the ADA
envisages an appellate mechanism to review the administrative action
relating to the final determination by the designated authority. Following
the above, an appellate mechanism has been provided for in the said Act
and the application of such appellate mechanism in the Rules has also
been incorporated. Section 9C of the said Act deals with the appellate
provision. It may be noted that the above provision of Section 9C as it
stood prior to the amendment used the words "order of determination or
review thereof" has been interpreted to mean the decision of the central
Government, though in the case of Jindal Poly Film Ltd. (supra), the
Hon'ble Delhi High Court observed that the refusal to levy anti-dumping
duty would also constitute an order of determination. The court, in such
case by observing that the word 'determination' qualifies the word 'order',
held that an appeal would lie only against such orders which are
determinative and final in respect of the existence, degree and effect of
62
2025:CHC-OS:189
any subsidy or dumping in a relation to import of any article. The above
situation has since, changed with the amendment of Section 9, 9A and
9C of the said Act. Today, an appeal would lie from the 'determination'
itself. Post the amendment the word 'determination' no longer qualifies
the word 'order'.
39. I find that the word determination as rightly pointed out by Mr.
Mookherjee, both in the said Act and Rules appear to be derived from
Articles 2 and 3 of the ADA. To morefully appreciate the same the
relevant portions of the aforementioned articles are extracted below:
"Article-2 - Determination of Dumping
2.1 For the purpose of this Agreement, a product is to be considered
as being dumped, i.e. introduced into the commerce of another
country at less than its normal value, if the export price of the
product exported from one country to another is less than the
comparable price, in the ordinary course of trade, for the like product
when destined for consumption in the exporting country.
2.2 When there are no sales of the like product in the ordinary
course of trade in the domestic market of the exporting country or
when, because of the particular market situation or the low volume
of the sales in the domestic market of the exporting country, such
sales do not permit a proper comparison, the margin of dumping
shall be determined by comparison with a comparable price of the
like product when exported to an appropriate third country, provided
that this price is representative, or with the cost of production in the
country of origin plus a reasonable amount for administrative, selling
and general costs and for profits. ..."
63
2025:CHC-OS:189
"Article 3 - Determination of Injury
3.1 A determination of injury for purposes of Article VI of GATT 1994
shall be based on positive evidence and involve an objective
examination of both (a) the volume of the dumped imports and the
effect of the dumped imports on prices in the domestic market for like
products, and (b) the consequent impact of these imports on domestic
producers of such products.
3.2 With regard to the volume of the dumped imports, the
investigating authorities shall consider whether there has been a
significant increase in dumped imports, either in absolute terms or
relevant to production or consumption in the importing Member. With
regard to the effect of the dumped imports on prices, the
investigating authorities shall consider whether there has been a
significant price undercutting by the dumped imports as compared
with the price of a like product of the importing Member, or whether
the effect of such imports is otherwise to depress prices to a
significant degree or prevent price increases, which otherwise would
have occurred, to a significant degree. No one or several of these
factors can necessarily give decisive guidance.
3.3 Where imports of a product from more than one country are
simultaneously subject to anti-dumping investigations, the
investigating authorities may cumulatively assess the effects of such
imports only if they determine that (a) the margin of dumping
established in relation to the imports from each country is more than
de minimis as defined in paragraph 8 of Article 5 and the volume of
imports from each country is not negligible and (b) a cumulative
assessment of the effects of the imports is appropriate in light of the
conditions of competition between the imported products and the
conditions of competition between the imported products and the like
domestic product. ..."
64
2025:CHC-OS:189
40. As noted above, the amended provision of Section 9C of the said
Act is now in line with the ADA, in particular Article 13 of the ADA,
which provide for prompt review of administrative action.
"Article 13: Judicial Review
Each Member whose national legislation contains provisions on anti-
dumping measures shall maintain judicial, arbitral or administrative
tribunals or procedures for the purpose, inter alia, of the prompt
review of administrative actions relating to final determinations and
reviews of determinations within the meaning of Article 11. Such
tribunals or procedures shall be independent of the authorities
responsible for the determination or review in question."
41. It may also be noted that the word 'determination' and 'review of
determination' appears to be connotations used in the context of
administrative judicial review to be carried out against the decision of the
designated authority. The connotations appear to have been incorporated
in the domestic anti-dumping law, i.e. the said Act, in the form of
borrowed provisions from the GATT agreement and the ADA.
42. By reasons of amendment of the said Act by the Finance Act, 2003,
Section 9A of the said Act has been amended whereby in sub-section (6),
the margin of dumping duty though may be ascertained by the Central
Government, however, the words "and determined" have been omitted.
The amendment of Section 9C makes the position clear as the appeal
would now lie against the determination, thereby bringing within the
ambit of judicial review, the very determination itself unlike, the pre-
amended position. Similar amendment has also been provided for in sub-
65
2025:CHC-OS:189
section (3) of Section 9C which now provides for a remedy against the
determination itself.
43. Thus, on a perusal of the above provision, it is now amply clear
that unlike the pre-amended provisions of the said Act, under the
amended provision, an appeal can be filed against the 'determination' by
the designated authority which if read with the ADA would mean and
include the determination made by the designated authority. As such it
can no longer be said that a challenge to a determination, unlike to an
'order of determination' regarding existence of degree and effect of
dumping, is premature, especially when the 'order of determination' has
been judicially interpreted to be in the form of imposition or non-
imposition of anti-dumping duty. In the former eventuality, the Court
has however, also recognised the right to challenge such negative finding,
as the same is final, as contrary interpretation would be incongruous.
The above position has now been altered. A judicial review in the form of
an appeal having regard to the provisions of said Act can therefore, post
the amendment of Sections 9, 9A, and 9C of the said Act, in my view, is
maintainable. I may note that the respondents have, however, laid much
stress on paragraph 27 of the judgment delivered in the case of
Directorate General of Trade Remedies. v. Andhra Petrochemicals
Ltd., (supra) to hold out that the final findings is only recommendary
and the central Government is the authority to take a final call but
having regard to the amendment of the said Act, the central Government
66
2025:CHC-OS:189
no longer enjoys the right to determine, though it still continues with the
right to ascertain the levy.
44. This apart although, Mr. Bhattacharjee has placed reliance on the
judgment delivered by the Hon'ble High Court of Delhi in the case of
Exxonmobil Asia Pacific Pvt. Ltd. (supra) and the case of Suncity
Sheets Pvt. Ltd. (supra), to, inter alia, contend that this Court ought not
to entertain the writ petition by reasons of presence of alternative
remedy, I find that while in the case of Exxonmobil Asia Pacific Pvt.
Ltd. (supra) the said judgment has been delivered by placing reliance on
the case of Suncity Sheets Pvt. Ltd, and Jindal Poly Film (supra),
both of which have been delivered prior to the amendment of the said
Act. Insofar as the judgment delivered in the case of Suncity Sheets Pvt.
Ltd. (supra) is concerned, I find that the said judgment has also been
delivered prior to the amendment of the said Act. It may, however, be
relevant to note that in the case of ExxonMobil Asia Pacific Pvt. Ltd.
(supra), the petition was disposed of as being premature since, in terms
of Section 9C a determination made was not found to be then appealable
and it was the levy which could be appealed against. Such situation has,
however, completely changed consequent upon the amendment of the
said Act by the Finance Act, 2023 for reasons noted above. The above
issue is thus, decided against the respondents. Thus, the issue no. (b)
is decided against the respondents.
67
2025:CHC-OS:189
Alternative Remedy
45. The parties have elaborately argued on the issue of alternative
remedy. It may be relevant to note that although, in the case of Suncity
Sheets Pvt. Ltd. (supra), the challenge was not entertained by reasons of
presence of an alternative remedy. In paragraph 6 of such judgment, the
Hon'ble Delhi High Court had quoted the observations made in the case
of Hindustan Liver v. Union of India, reported in 2017 SCC OnLine
Del 8354.
" 6. This Court has in its order dated 16th May, 2017 in W.P.(C)
2632/2017 (Hindustan Lever Ltd. v. Union of India) declined to
entertain a writ petition, challenging the Final Finding of the DA on
account of the availability to the Petitioner there of an efficacious
statutory remedy of appeal before the CESTAT. In the said decision,
this Court referred to and distinguished the above decision of the
Gujarat High Court in Nirma Limited v. Union of India (supra). This
Court preferred to follow its earlier decisions in Alcatel-Lucent India
Ltd. v. Designated Authority (2016) 338 ELT 397 (Del); PTA Users
Association v. Union India (2016) 340 ELT 125 (Del) and Balaji
Action Buildwell v. Union of India (2016) 337 ELT 166 (Del.) in which
this Court had consistently declined to entertain a petition under
Article 226 of the Constitution of India challenging the Final Finding
of the DA without the Petitioner exhausting the statutory remedy of
an appeal before the CESTAT. In Hindustan Lever Ltd. v. Union of
India (supra), the Court explained:
"10. The question is not whether this Court can entertain the
present writ petition. The question is whether, in the facts and
circumstances, it should? The power under Article 226 of the
Constitution is an extraordinary one and should not be exercised
in a routine manner especially when the Petitioner has an
efficacious and adequate alternative statutory remedy available.
Otherwise, the Court would be supplanting the functioning of the
statutory appellate authority tasked specifically with reviewing
the correctness of the orders of the subordinate statutory
authorities. Therefore, while acknowledging that this Court does
68
2025:CHC-OS:189
have the jurisdiction to entertain the writ petition, in the facts and
circumstances of the present case the Court finds that no case has
been made out to persuade it to exercise its jurisdiction under
Article 226 of the Constitution to examine the correctness of the
Final Finding of the DA. The Court is of the firm view that every
ground urged in the present writ petition can well be urged before
the CESTAT." "
Thus, from the above quoted paragraph it would be clear that the power
of the writ Court to entertain the writ petition was duly acknowledged
though with the rider that in the facts of the case the petition was not
entertained. It is clear from the above that the Court in the facts of such
case was not persuaded to exercise jurisdiction.
46. Insofar as the judgment relied on by the respondents in the case of
Sandisk International Ltd. (supra) is concerned, I find that in
paragraph 7 of the said judgment the Hon'ble Supreme Court had
observed that from the perusal of the materials on record, there were
serious disputed questions of fact with regard to the locus of the
respondent i.e. Sandisk International Limited, to file writ petition before
the Delhi High Court. The Hon'ble Supreme Court had also observed that
the final notification though published during pendency of the petition
had remained operative and since then the duty had been collected on
such basis, the Sandisk or any importer on whom the levy was imposed
had not came forward to seek interference. It is in such context that the
Hon'ble Supreme Court felt that the appellate tribunal should consider
all aspects of the matter, including correctness of the findings. While
69
2025:CHC-OS:189
observing as such, the Hon'ble Supreme Court in paragraph 7 had
observed and recorded the following:
" Though we would not deem it appropriate to lay down any
inflexible proposition of law that in no case the final findings of the
Designated Authority can be subject to challenge under Article 226
of the constitution of India, we are of the view that in the facts of the
present case the High Court was not justified in exercising its writ
jurisdiction and in setting aside the final findings of the Designated
Authority. "
47. Insofar as the judgment delivered by a coordinate Bench of the
Madras High Court, in the case of Saint Gobain (supra) is concerned,
one of the contentions raised by the domestic industry before the
designated authority was that the designated authority had no
jurisdiction due to the lapse of time as the maximum period available to
the designated authority to conclude the investigation which was 18
months as per Rule 17 of the said Rules had expired. In that context the
Hon'ble Court in paragraph 17 had been pleased to note down the
questions for consideration as follows:
"17. The following questions arise for consideration in these writ
petitions.
(i) Whether the New Shipper Review Investigation commenced by the
Designated Authority vide initiation notification, dated 23-9-2015
culminating in the final findings, dated 10-4-2017 is barred by time
as it has exceeded 18 months?
(ii) Whether the New Shipper Review initiated under Rule 22 of the
ADD Rules is required to be completed within a period of 12 months
70
2025:CHC-OS:189
from the date of initiation, failing which the same will lapse or in 18
months if extension is granted for a further period of 6 months?
(iii) Whether the procedures on time limits for carrying out the New
Shipper Review should be in consonance with the time limit
prescribed under Rule 23(3) read with Rule 17 of the ADD Rules?
(iv) Whether the present writ petitions are maintainable before this
Court?
(v) To what other remedy, the petitioner is entitled to."
48. It is in this context that the coordinate Bench of the Madras High
Court in paragraphs 28, 29 and 30 had decided the issues raised therein
and observed as follows:
" 28. The arguments based on the replies to the questions posed by
Korea concerning the notification provided by Government of India
before the World Trade Organisation does not in any manner
advance the case of the petitioner, as the reply given by India before
the WTO is that the term "periodical reviews" (as appearing in rule
22) implies accelerated review. Thus, it is clear that there are no
timelines prescribed for a review undertaken under rule 22 and
going by the dates and events, it is seen that the initiation
notification is dated September 23, 2015, period of investigation is
from July 1, 2015 to March 31, 2016. After the investigation was
over, the designated authority has forwarded a notification to the
applicant/third respondent, the domestic producers (the petitioner
and others), the interested parties giving them opportunity to make
their views in writing. The non-confidential version of the evidence
presented by the various interested parties were provided for
inspection by the interested parties. Personal hearing was granted
on September 17, 2016 and November 2, 2016. Further, information
71
2025:CHC-OS:189
was sought for from the applicant and other interested parties to the
extent deemed necessary. In accordance with rule 16, the
designated authority informed all the interested parties of the
essential facts under consideration, which form the basis for its
decision and this was required to be done before giving its final
finding and this disclosure of information was made on March 27,
2017. Then, the confidentiality claims of various interested parties in
respect of data submitted by them were examined and the final
findings were issued on April 10, 2017. Thus, the procedure adopted
by the designated authority is undoubtedly an accelerated review
and suffers from no error.
29. In view of the above reasons, questions framed are answered in
the following terms :
(i) The new shippers review initiated vide notification, dated
September 23, 2015, culminating in the final findings dated April 10,
2017, is not barred by time.
(ii) In the absence of any time limit fixed in rule 22, a review
undertaken under rule 22 is not required to be completed within
12/18 months as required under rule 23(3), but an accelerated
procedure.
(iii) As rule 22 and rule 23 of the ADD Rules operate in different
fields spheres and well-defined compartments the limitation
prescribed under rule 23(3) read with rule 17 cannot be
superimposed in rule 22, in doing so, it would amount to rewriting
the rule, impermissible in law.
(iv) For the reasons assigned and in the light of the law laid down in
NITCO Tiles Ltd. and Sandisk International Ltd., the writ petitions
are not maintainable.
72
2025:CHC-OS:189
(v) The petitioner is entitled to avail the alternate remedy available
under section 9C of the Customs Tariff Act.
30. For the above reasons, all the writ petitions are dismissed,
leaving it open to the petitioners to avail the alternate remedy
available to them under the Customs Tariff Act, as against the
Notification dated June 16, 2017, bearing No. 30 of 2017, with a
direction to the first respondent to forthwith give effect to the
notification. No costs. Consequently, connected miscellaneous
petitions are closed."
49. From the above, it was crystal clear that on the question of law
though the writ petition was entertained, the writ petitioners were
directed to avail alternative remedy, once the Court prima facie found
that the procedure adopted by the designated authority suffers from no
error as is noted in paragraph 28 thereof. The aforesaid judgment also
does not assist the respondents.
50. From the above, it is crystal clear that the High Court while
exercising jurisdiction under article 226 of the Constitution of India has
planetary powers and presence of an alternative remedy does not
interfere with the exercise of its jurisdiction in a fit case. The exercise of
jurisdiction is discretionary, and the High Court follows self-restraint to
weed out matters where adequate alternative remedy is provided for. In
this context it is thus necessary to consider whether the petitioner at the
time of filing the petition had availability of alternative remedy. I find that
though an appellate provision has been provided for, the petitioner has
73
2025:CHC-OS:189
stated on oath that the appellate authority (CESTAT) anti-dumping
Bench has not been constituted for more than one year and is not
functional. In support of the aforesaid, the roster of CESTAT from 26 th
October, 2023 till 28th February, 2025 has also been disclosed. In the
light of the above, the matter had been taken up for consideration. In my
view, simply because there is an appellate forum available though such
forum is not functional, it would be wholly unjust and unfair to direct
the petitioner to approach such forum. In the instant case, since the
tribunal had not been functional, this Court had entertained the petition
and has accordingly taken up the matter for hearing on merits.
51. In the facts of the case, the judgement delivered in the case of
Outokumpu Oyj v. Union of India & Ors. (supra), though provides that
when a machinery is created by the statute to remedy and correct any
wrong and when a right or liability is created by the same statute which
gives a special remedy by way of an appeal, such remedy should not
normally be circumvented, however, since in the instant case, the very
machinery providing for the remedy to correct the wrong being
unavailable, the matter was taken up for consideration. Thus, the above
judgement does not assist the respondent. The issue no. (c) is decided
against the respondents.
On Judicial Review of the Decision Making Process
And
Issue of confidentiality
74
2025:CHC-OS:189
And
Issue of non-disclosure
52. The above issues are taken up together. From the perusal of the
final findings, it would transpire that the designated authority had noted
that requests had been received by the authority to disclose the names of
the paint company that have purchased rutile sulphate from the
domestic industry as claimed in the disclosure statement and have also
noted that the domestic industry had provided the names of the paint
manufacturers to whom goods have been sold along with the relevant
evidence. The said final findings along with disclosure statement does
not however, demonstrate that the petitioner had not been granted any
opportunity to offer its comments on the issue of confidentiality claimed
by the interested parties as required in terms of paragraph 38 of the
initiation notification. Although, a lot has been submitted on the scope of
confidentiality and restriction on the designated authority to disclose the
same, I may, however, note that having regard to the scope of Rule 7(2) of
the said Rules, in my view, in guise of confidentiality, an interested
party/domestic industry cannot be permitted to withhold the necessary
information at least in the form of a non-confidential summary, unless,
the designated authority is satisfied as regards its confidentiality and the
reason for non-summarization of such confidential information. The
aforesaid is also in consonance with the article 6.9 of ADA, which is
extracted hereinbelow:
75
2025:CHC-OS:189
" Article 6: Evidence
...
6.9 The authorities shall, before a final determination is made, inform all interested parties of the essential facts under consideration which form the basis for the decision whether to apply definitive measures. Such disclosure should take place in sufficient time for the parties to defend their interests."
53. In the light of the above, and having regard to the provisions of the said Act and Rules, it would be relevant to test out the following:
(a) whether any confidentiality has been claimed by any of the interested parties and to what extent?,
(b) whether the confidential information had been provided in summarized non-confidential form?,
(c) whether any exemption has been sought for to file the summarized non-confidential form by claiming summarization is not possible.
(d) whether any satisfaction has been arrived at by the designated authority as regards any such claim since, in the absence of such satisfaction the designated authority is ordinarily required to ignore the required information.
54. It would transpire from the records, especially the disclosure statement and the final findings that in paragraph 23, the designated authority has accepted all claims on confidentiality, whenever warranted, and such information has been considered confidential and not disclosed 76 2025:CHC-OS:189 to the other interested parties. Incidentally, however, the designated authority appears to have departed from the procedure of determining confidentiality, and has only provided that disclosure of non confidential information filed on confidential basis wherever possible. The said observation has been made by the designated authority without affording the petitioner who is one of the interested parties to contest the claim for confidentiality by the domestic industry in the tune with paragraph 38 of the initiation notification. In this context it will be relevant to note that the observations made by the Hon'ble Supreme Court in the case of Meghmani Organics Limited & Ors. (supra), wherein the Hon'ble Supreme Court, while noting the observations made in the case of Reliance Industries (supra) had specifically held that the findings returned in Reliance Industries (supra) do not require review and that Rule 7 of the said Rules does not postulate that the designated authority can claim confidentiality in respect of information supplied by the party but in respect of the reasons and findings derived from the information supplied by the very same party. The confidentiality under Rule 7 of the said Rules is not something which must be automatically assumed as that the designated authority has to be satisfied as to the confidentiality of the material and even if the material is confidential, the designated authority has to ask the party to provide information on a confidential basis, and to furnish a non-confidential summary thereof. If such statement is not furnished then the parties should submit to the 77 2025:CHC-OS:189 designated authority a statement of reasons as to why summarization is not possible. In my view, prior to the stage of satisfaction by the designated authority, the interested parties are entitled to, having regard to the provisions contained in paragraph 38 of the initiation notification, not only a notice but a right to object to such confidential information being accepted. It would further appear from paragraph 19 of the final findings that the domestic industry had made the following submission on the issue of confidentiality and the observations made by the designated authority are reproduced hereinbelow:
" E.2. Submission by the domestic industry
19. The following submissions have been made by the domestic industry with regard to confidentiality:
i. The domestic industry consists of three entities: two PSUs (KMML and TTPL) and one private company (VVT). KMML produces only Rutile grade by chloride process, VVT produces only Anatase grade, and TTPL produces both grades. There is a significant difference in the cost and selling price of Rutile and Anatase grades during the POL. ii. Disclosure of aggregate figures could enable producers to deduce the cost and price of grades they do not produce, harming the DI's competitive interests. Cost, profit, and selling price are highly sensitive business information, and disclosure would negatively impact the competitive position of the DI.
iii. It is further submitted by domestic industry that claims of confidentiality are in consonance with the practice of the Authority in cases such as Anti-dumping investigation 78 2025:CHC-OS:189 concerning imports of Phthalic Anhydride originating in or exported from Russia and Japan12, where there were 3 (three) producers as a part of the domestic industry, the Authority did not provide details such as selling price and PBIT of the constituents of the domestic industry and has claimed it confidential. This pattern was also followed in other cases such as Anti-dumping investigation concerning imports of Phthalic Anhydride (PAN) originating in or exported from China PR, Indonesia, Korea RP and Thailand13, Anti-dumping investigation concerning imports of Glazed Unglazed Porcelain Vitrified tiles in polished or unpolished finish from China PR14 and Anti-dumping investigation concerning imports of Plastic Processing Machines originating in or exported from China PR15.
iv. Further, many respondents have not disclosed affiliated companies, names of shareholders, details of the company such as telephone and fax numbers. These details have been claimed confidential without a valid jurisdiction. v. Sample domestic and export sales documents have not been disclosed. While documents itself may be confidential, the list of documents submitted has not been disclosed."
" E.3. Examination by the Authority
20. The Authority made available the non-confidential version of the information provided by the various parties to all the other interested parties as per Rule 6(7).
21. With regard to confidentiality of the information, Rule 7 of the Rules provides as follows:
"7. Confidential Information:79
2025:CHC-OS:189 (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 interested 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 summarisation 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.
22. The information provided by the interested parties on confidential basis was examined with regard to sufficiency of such claims. The Authority holds that the domestic industry's claims on price parameters have been accepted, while volume parameters have been disclosed. Hence, the Authority is satisfied with information provided by the domestic industry on confidential basis. 80
2025:CHC-OS:189
23. On being satisfied, the Authority accepts the confidentiality claims, wherever warranted and such information has been considered confidential and not disclosed to the other interested parties. Wherever possible, the parties providing information on confidential basis were directed to provide sufficient non- confidential version of the information filed on confidential basis. The Authority also notes that all interested parties have claimed their business-related sensitive information as confidential."
55. In the light of the above, it can be deduced that the claim of confidentiality which was allowed by the designated authority was limited to the disclosure of price only, the names of the domestic industries which allegedly purchased the product under consideration, during the period of investigation or the volume thereof was not accepted. Though, Mr. Mookherjee, has submitted that in absence of a claim of confidentiality being allowed the designated authority was not authorized to withhold such information on the claim of confidentiality thereof, I however, find that the domestic industry had claimed complete confidentiality on all information, as such the same could not have authorised the designated authority to disclose such confidential information having regard to the judgement delivered in the case of Meghmani Organics Limited & Ors. (supra). However, at the same time, if the domestic industry failed to disclose non-confidential summary of the confidential information as is required in terms of the initiation notification, it was for the designated authority to call for such information from the domestic industry, and in absence of such 81 2025:CHC-OS:189 disclosure, to reject such information. In this case, admittedly, the petitioner had called upon the designated authority to disclose necessary information as regards the names of the paint companies with whom there have been transactions of the domestic industries in connection with sale of rutile sulphate, for the petitioner to verify the accuracy of such information. In my view, the entirety of the aforesaid disclosure sought for by the petitioner though was not only in consonance with Rule 7(2) of the said Rules, however, the designated authority having only accepted the claim for confidentiality on price parameters and thus, having refused the claim for confidentiality on volume and other parameters as is reflected from the final findings, ought to have directed the domestic industry to provide summary of such confidential information in non-confidential form, and in the event, such disclosure was not made, ought to have refuse the claim in terms of paragraphs 35 to 38 of the initiation notification. The same has not been done. By reasons of refusal of the designated authority to call for information in terms of the initiation notification from the domestic industry and disclose the claim for confidentiality made by the domestic industry to the petitioner, the petitioner has been prevented from objecting and contesting the claim for confidentiality especially when the domestic industry has held all business related information to be confidential. The designated authority could not have allowed confidentiality in respect of all the business data for selling titanium dioxide through rutile sulphate 82 2025:CHC-OS:189 process, especially when the petitioner claims that there are no commercial sale of rutile sulphate and especially when such contention had been turned down by contending that the respondent no.4 has the necessary technology and set up to produce rutile through sulphate route and has manufactured and sold titanium dioxide products using sulphate process. Since, the finding to the contrary has to be supported by reasons and documentary evidence, ordinarily, the same or the non- confidential summary thereof, ought to have been disclosed and in the event the domestic industry insisted for total confidentiality, in terms of Rule 7(3) the said Rules the same ought to have been ignored. Further the designated authority was also obliged to disclose essential facts prior to rendering the final findings in terms of Rule 16 of the said Rules. In absence of such disclosure, the petitioner had been unable to verify the very basis on which the aforesaid product has been included within the scope of product under consideration and to test out whether there has been domestic sale of the PUC which forms the foundation of the claim of the levy of duty. The sub issues are accordingly answered.
56. In my view, the procedural safeguard in terms of article 6.9 of the ADA which has been incorporated in the said Act, and the rules framed thereunder, especially in Rule 7(2) of the said Rules has not been followed. The petitioner was thus, not made aware of the essential facts under consideration which forms the basis of the decision for applying the definitive measures. In the peculiar facts, morefully noted 83 2025:CHC-OS:189 hereinabove, I am of the view that the final findings of the designated authority stands vitiated. In the interregnum, however, there has been a development. During the pendency of the writ petition, the Government has already ascertained and imposed a levy of anti-dumping duty vide notification dated 10th May, 2025. In this context, it would be relevant to note that by an order dated 6th March, 2025, this Court considering the lengthy arguments advanced and considering the balance of convenience and the prima facie case had granted an interim protection by, inter alia, observing that steps, if any, taken by the respondents shall abide by the result of the writ petition. Since, respondents were aware and were conscious that any steps taken by the respondents are subject to the final decision to be rendered by this Court, I am of the view that since, the levy of duty is based on the final findings, which stands vitiated for reasons noted hereinabove, the levy of duty effected by notification dated 10th May, 2025 also cannot be sustained and the same with the final findings are accordingly quashed. The matter is remanded back to the designated authority for reconsideration of the aforesaid issue, from the stage of the response filed by the petitioner for the purpose of considering the same in accordance with the observations made herein and the scope and object of Rule 7(2) of the said Rules. Levy if any, collected in the meantime shall be subject to the final outcome of the proceedings. The issue nos. (d), (e) and (f) are thus, decided in favour of the petitioner. 84
2025:CHC-OS:189
57. The writ petition thus, stands disposed of in the above terms.
58. The copies of documents, which were marked confidential and retained in a sealed cover, are permitted to be taken back in a sealed form by the advocate for the respondent nos. 1 and 2 against a receipt to be retained on the file.
59. There shall be no order as to costs.
Urgent Photostat certified copy of this order, if applied for, be made available to the parties upon compliance of requisite formalities.
(Raja Basu Chowdhury, J.)