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Since Mr. Yashank Adhyaru, learned senior advocate for the Union of India has based his criticism of the judgment in Reliance Industries on the basis of observations in paragraph 43 of that judgment, the same is reproduced hereinbelow:

“43. In our opinion, Rule 7 does not contemplate any right in the DA to claim confidentiality, Rule 7 specifically provides that the right of confidentiality is restricted to the party who has supplied the information, and that party has also to satisfy the DA that the matter is really confidential. Nowhere in the rule has it been provided that the DA has the right to claim confidentiality, particularly regarding information which pertains to the party which has supplied the same. In the present case, the DA failed to provide the detailed costing information to the appellant on the basis of which it computed NIP, even though the appellant was the sole producer of the product under consideration, in the country. In our opinion this was clearly illegal, and not contemplated by Rule 7.” Elaborating his points further, learned senior counsel for the Union of India submitted that the very opening sentence of above quoted para 43 lays down an incorrect proposition of law that Rule 7 does not permit the DA to claim confidentiality and that right to make such a claim is vested only in a party who has supplied the particular information. The use of the term ‘any party’ in the opening sentence of Rule 7(1) in place of the expression ‘interested party’, according to learned counsel, indicates that the DA may receive in course of his suo motu action certain confidential informations and in such a situation if he is satisfied that the confidentiality of such information needs to be protected and should not be disclosed to any other party without specific authorisation, the DA may be justified in his action whereby he himself claims confidentiality in appropriate cases without any party exercising the right of confidentiality.

The other reason is provision of appeal under Section 9C of the Act. The appeal provided is against the order of determination or review thereof regarding the existence, degree and effect of any subsidy or dumping in relation to import of any article. It is one thing to use confidential information for the purpose of investigation on account of statutory provisions and not communicating the same. It is quite another, not to maintain transparent records of reasons as to why claim of confidentiality made by any party has been accepted by the DA. Where appeal is provided, the appellate authority will definitely be entitled to look into the records including the confidential information as well as into the correctness of the decision for accepting a claim of confidentiality. The situation is similar to one under the administrative law where a policy may exempt the authority from requirement of communicating its reasons for an administrative decision/order affecting rights and interests of parties but certainly reasons must exist in the records so as to justify the reasonableness and fairness of the decision if it has adverse effects upon any party. Any court or tribunal exercising judicial review is entitled to call for the records to satisfy itself as to the existence of reasons in appropriate cases involving a challenge to such order. In case the DA is conceded power to gather informations from sources other than interested parties, he must not treat such information as confidential unless the party which has supplied the information makes a request to keep the information confidential. Even in such a situation where an uninterested party claims confidentiality in respect of information supplied, as per Rule 7, the DA has to take all necessary precautions to decide the genuineness of such claim. In appropriate cases he must ask for summary of the information and if that is also not possible, the reasons as to why it is not possible should be supplied for scrutiny. The reasons of confidentiality must be discernible on scrutiny of records by the appellate authority because of mandate of Rule 7(3) that if the claim of confidentiality is not worthy of acceptance, or the supplier of the information is unwilling to make the information public without any good reasons, the DA has to disregard such information.

The aforesaid discussion leads to the conclusion that even the relevant provisions in the GATT 1994 relied upon on behalf of appellant do not require the interpretation of Rule 7 in the manner sought for on behalf of the Union of India or the DA.

Mr. Basava Prabhu Patil, learned senior advocate appearing for the petitioner – Moser Baer India Ltd. – in one of the SLPs has taken pains to refer to various paragraphs of the judgment in the case of Reliance Industries to submit that the said judgment was rendered in an entirely different context which did not involve detailed discussion of Rule 7. On the basis of para 23 of the judgment it was shown that the two main issues falling for determination were – (1) the correct principles for determination of Non Injurious Price (NIP) of PTA, and (2) the scope of Rule 7 of the Rules. Referring to para 37 of the judgment, he pointed out that the Court had directed for revising NIP by taking the market price of electricity and the actual capacity utilisation during the period of investigation. Since the DA in that case had refused to disclose its findings even to the person who had supplied the information leading to such findings, the court observed thus : “Further, the DA should be directed not to misuse Rule 7, by keeping confidential its findings and that too from the person who has supplied the information to it.” In para 39 it was held that the proceedings before the DA are quasi judicial. Then came a reiteration in para 41 in the following words :

In the light of facts and submissions noted earlier as well as conclusions already recorded at various places, we are of the considered view that the question referred for our answer can be answered in a very straight forward manner by holding that Reliance Industries case did not go into the details of the relevant Rules including Rule 7 but the observations made therein in respect of rule of confidentiality as spelt out in Rule 7 of the Rules does not diminish the scope of Rule 7 as provided. The reasons or findings cannot be equated with the information supplied by a party claiming confidentiality in respect thereto. Hence, Rule 7 does not empower the DA to claim any confidentiality in respect of reasons for its finding given against a party. The law laid down in respect of rule of confidentiality in Sterlite Industries case also has our respectful concurrence. But at the same time, we reiterate that the Reliance Industries case does not adversely affect or run counter to the law spelt out in Sterlite Industries case. We may only explain here that while dealing with objections or the case of the concerned parties, the DA must not disclose the information which are already held by him to be confidential by duly accepting such a claim of any of the parties providing the information. While taking precautions not to disclose the sensitive confidential informations, the DA can, by adopting a sensible approach indicate reasons on major issues so that parties may in general terms have the knowledge as to why their case or objection has not been accepted in preference to a rival claim. But in the garb of unclaimed confidentiality, the DA cannot shirk from its responsibility to act fairly in its quasi-judicial role and refuse to indicate reasons for its findings. The DA will do well to remember not to treat any information as confidential unless a claim of confidentiality has been made by any of the parties supplying the information. In cases where it is not possible to accept a claim of confidentiality, Rule 7 hardly leaves any option with the DA but to ignore such confidential information if it is of the view that the information is really not confidential and still the concerned party does not agree to its being made public. In such a situation the information cannot be made public but has to be simply ignored and treated as non est. Having answered the question thus, we direct the cases to be posted before appropriate Bench for disposal on merits and in the light of our answer to the question referred and considered.