1

CUSTOMS, EXCISE & SERVICE TAX APPELLATE

TRIBUNAL, NEW DELHI
PRINCIPAL BENCH

COURT NO.I
APPEAL NO.C/79/2005-AD.
(Arising out of Notification No.80/2004-Customs dated 28.7.2004 passed by
the Secretary Revenue, Ministry of Finance, Government of India, New
Delhi and Final Findings No.15//2/2003-DGAD dated 30.6.2004 passed by
the Designated Authority, Directorate of Anti Dumping & Allied Duties,
Ministry of Commerce, Government of India, New Delhi ]

For approval and signature:

Honble Mr. Justice R.K. Abichandani, President
Honble Mr. S.S. Kang, Vice-President
Honble Mr. K.C. Mamgain, Member (Technical)

1. Whether Press Reporters may be allowed to see the Order

for publication as per Rule 27 of the CESTAT (Procedure)
Rules, 1982 ? :

2. Whether it should be released under Rule 27 of the CESTAT

(Procedure) Rules, 1982 for publication in any authoritative
report or not ? :

3. Whether Their Lordships wish to see the fair copy of the

Order ? :

4. Whether Order is to be circulated to the Departmental

authorities ? :

M/s. H & R JHONSON (INDIA) LTD. Appellant

VERSUS
Designated Authority /
Ministry of Finance & Others Respondents

APPEARANCE:-
Mr. A. Hidayatullah, Sr. Advocate, Mr. Aspi Kapadia, Advoate, Mr. A.
Shuraz,Advocate, Mr. Sharad Bhansali, Advocate & Mr. Jitender Singh, Advocate
for the Appellant

Secretary, Ministry of Finance - Absent

Mr. Inder Bir Singh Dagar,Advocate for the respondent Designated Authority
Mr. V.Lakshmi Kumaran, Advocate & Mr. Parthasarthy,Advocate for the
respondents New Shippers, Producer, Exporter and Importer-Interested Parties.

CORAM : MR. JUSTICE R.K. ABICHANDANI, PRESIDENT

MR. S.S. KANG, VICE- PRESIDENT
MR. K.C. MAMGAIN, MEMBER (TECHNICAL)

DATE OF DECISION: 19.05.2005

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ORDER
INDEX

Brief Facts - Paragraphs 1 & 2

Arguments on behalf of - Paragraph 3

the Appellants

Arguments on behalf of - Paragraph 4

of the Respondent
Designated authority

Arguments on behalf of - Paragraph 5

the contesting participants

Reasoning - Paragraphs 6 to 11

Final Order - Paragraph 12

Per Justice R.K. Abichandani : (For the Bench)

Brief facts

This appeal has been filed under Section 9C of the Customs

Tariff Act, 1975, challenging the final findings of the Designated

authority given on 30.1.2004 and the Notification No.80/2004-Cus.

Dated 28.7.2004 accepting the recommendation that no anti-dumping

duty be imposed on imports of vitrified/porcelain tiles falling under

Chapter 69 of the Tariff Act, produced by M/s. Nanhai Shagyuan

Oulin Construction Co. Ltd. China PR ( now known as M/s. Foshan

Qualin Construction Ceramic Ltd.) and exported from M/s. Prestige

General Trading, Dubai, UAE. After the Notification of the final

findings was issue on 4.2.2003 in which the Designated Authority

came to the conclusion that vitrified/porcelain tiles were exported by

UAE and China PR to India below the normal value, resulting in

dumping, that the domestic industry had suffered material injury, and

that, the injury had been caused cumulatively by the imports from the

subject countries, and recommended imposition of anti-dumping duty

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on all imports of vitrified/porcelain tiles from these countries in order

to remove the injury to the domestic industry, at the rates of US$ 8.28

per sq. mtr. in respect of exporters/producers from China PR and

US$ 0.74 for M/s. RAK Ceramics of UAE, and US$ 5.54 for other

exporters/producers of UAE.

1.1 An application (bearing the dated 28.3.2003), came to be made

for initiation for New Shipper Review by Nanhai Shanguyan Qualin

Construction Ceramic Co. Ltd. (hereinafter referred to as Nanhai)

producer from China PR, which was forwarded to the Designated

Authority by the advocate of Nanhai under his letter dated 15.3.2003

(the application bearing the date 28.3.2003). After this application

was forwarded, Customs Notification No.73/2003 dated 1.5.2003 was

issued under Section 9A(1) of the Tariff Act, on the basis of the final

findings dated 4.2.2003. The Public Notice came to be issued in

respect of initiation of new shipper review on 23.5.2003. Due to the

pendency of these proceedings, Customs Notification No.98/2003

dated 1.7.2003 exempting Nanhai from payment of anti-dumping duty

till the review was completed was issued under the proviso to Rule

22(2) of the Customs Tariff (Identification, Assessment and Collection

of Anti-dumping Duty on Dumped Articles and for Determination of

Injury) Rules, 1955 (hereinafter referred to as the Rules of 1995). It

was made clear in paragraph 3 of the Notification that in case of

recommendation of anti-dumping duty after completion of the said

review by the Designated Authority, the importer shall be liable to pay

the amount of such anti-dumping duty recommended on review and

imposed on all imports into India of vitrified/porcelain tiles from

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Nanhai the producer from China and M/s. Prestige General Trading

(hereinafter referred to as Prestige), UAE as exporter from Dubai,

from the date of initiation of the said review.

2. For the purpose of the review proceedings under Rule 22 the

Designated Authority made investigation for the period from

1.7.2002 to 30.6.2003 for the purpose of determination of dumping.

After taking into consideration the views of the interested parties

at/after the initiation and their examination including the views of

domestic industry, producer Nanhai of China and exporter Prestige of

UAE, the Designated Authority came to a finding that the

exporter/producer had not exported the product under consideration

during the period of investigation, as the production of

vitrified/porcelain tiles was started in April 2002, much after the period

of investigation (which obviously referred to investigation prior to the

notification which was issued under Section 9A(1) of the Act) and

declared that they were not related to any of the exporter or producer

in the exporting country who were subject to the anti-dumping duties.

It was observed that during the investigation, the Authority did not find

any evidence of relationship with any of the exporters and producers

in China PR who are subject to anti-dumping duty. It was, therefore,

held that the investigation was initiated in line with provisions of Rule

22 of the said Rules which was in conformity with Article 9.5 of the

WTO Anti-Dumping Agreement. The designated authority after

dealing with the contentions raised by the interested parties arrived at

the ex factory normal value of the products, calculated ex-factory

export price during the period of that investigation, worked out the
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dumping margin, and made recommendations to the effect that the

export price of vitrified/porcelain tiles exported to India produced by

Nanhai of China PR (now known as Foshan Qulian Construction

Ceramic Ltd.) and exported from Prestige of Dubai, UAE was above

its normal value during the period of investigation and therefore, no

anti-dumping duty be imposed on the imports of vitrified/porcelain

tiles falling under Chapter 69 of the Customs Tariff Act, 1975. By the

impugned Notification No.28/2004 dated 28.7.2004 the Central

Government, in exercise of the powers conferred by sub-section (1)

read with sub-section (5) of Section 9(A) of the said Act read with

Rules 18, 20 and 22 of the Rules of 1995, on the basis of the said

final findings of the designated authority amended the Notification

No.73/2003 dated 1.5.2003 by inserting a proviso that no anti-

dumping duty shall be imposed on the imports into India of subject

goods produced by Nanhai of China and exported by Prestige, UAE.

The amendment was made effective from the date of the issue of the

notification ordering provisional assessment i.e. 1.7.2003.

Arguments on behalf of the Appellants:

3. It was contended by the learned Senior Advocate appearing on

behalf of the appellant that there were five conditions precedent for

initiating review under Rule 22 of the said Rules of 1995. These

were: -

(i) Definitive anti-dumping duties must be in place before a

review under Rule 22;
(ii) Review of the ADD was required to be periodical as
envisaged under Rule 22;
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(iii) Exporter of the exporting country had to make the

application for New Shipper Review;
(iv) Country of export was relevant for determining the normal
value, export price and the dumping margin ; and
(v) Exporter/producer in the country of export was required to
show that he was not related nor did he export during the
period of investigation.

It was submitted that the application in the present case was made
by Nanhai before the issuance of the final notification imposing the
anti-dumping duty under Section 9A(1) of the Act. The earlier
application which was in similar terms had met an abrupt end in
view of the letter dated 11.12.2002 of the Central Government. It
was contended that the second application by the same producer
i.e. Nanhai should have met the same fate, because, the final
findings made earlier than the second application were only
recommendatory. The application for review under Rule 22 was,
therefore, non-est , as there was no anti-dumping duty imposed on
the date when that application was made. He pointed out, by
reading both the applications of Nanhai, that they were identical
and submitted that an identically worded second application was
entertained though there was no change in circumstances after the
first application was disposed of. The learned counsel argued that
the purchase order, which was attached to the application and on
the strength of which the review power under Rule 22 was
invoked, clearly indicated that Prestige, the UAE trader, had
purchased the goods from the producer, Nanhai of China. He,
therefore, submitted that exports in reality, were made from UAE
and not from China, and therefore, the producer of China could not
have made the New Shipper Review application. He submitted
that the language of Rule 22 precluded the designated authority
from exercising any suo moto power. According to him, the
expression periodical review in Rule 22, was consciously used
and review undertaken just 22 days after the notification, was not a
periodical review. He submitted that the words periodical was
 7

used in Rule 22 to mean periodic i.e. at regular time intervals. He

argued that the exporter from the UAE, who never made an
application under Rule 22, did not show that he was not related
to the exporter/producer of the country of export. He submitted
that power of review under Rule 22 cannot be exercised if there is
no application by an appropriate person which in the present case
was Prestige of Dubai and not Nanhai of China, because, Prestige
of UAE Dubai had bought the goods from the producer. He also
argued that physical exportation by the Dubai exporter was shown,
and therefore, there was no warrant for initiating any review under
Rule 22 in respect of either the exporter or the producer as none of
the requirements under Rule 22 were satisfied. The learned
Senior Advocate for the appellant then argued that the entire
proceedings were vitiated because the domestic industry was
denied a fair opportunity to defend itself due to all the vital
evidence supplied by the New Shipper being treated as
confidential. He submitted that the designated authority was
requested to supply the non-confidential version of the documents,
but, even the non-confidential information was not supplied in
sufficient detail. He pointed out from the record, various
communications addressed to the designated authority seeking
information on matters which ought not to have treated as
confidential. He argued that the information which by its nature is
not confidential cannot be treated as confidential and the
designated authority must use its discretion under Rule 7 of the
said rules, and not mechanically accept the stand taken by the
party supplying the evidence. Referring to Rule 7, he submitted
that the expression not being satisfied as to its confidentiality,
clearly indicated that the designated authority was not required to
blindly accept the desire of the party submitting evidence to treat it
as confidential, and was required to apply its mind and on
objective material decide whether such information should be
treated as confidential or not. He argued that this was more so
because the determination under Rule 7 was subject to a judicial
review, by a full-fledged judicial Tribunal, which was akin to a
 8

judicial review undertaken by a High Court. It was submitted that

the party should give reasons to satisfy the designated authority as
to why the information for which the confidentiality is claimed, is
not to be disclosed. In short, he submitted that there was non-
application of mind by the Designated authority on the
confidentiality issue.

3.1 In support of his contentions, the learned Senior Advocate

relied on the following decisions and material: -

(a) Decision of the Supreme Court in Snow While Industrial

Corporation Vs. Collector of Central Excise, reported in
1989 (41) ELT 360 (SC), was cited to point out that in
paragraph 7 of the judgment the Supreme Court had observed
that it was well settled that whether there was an agreement for
sale or an agreement of agency, must depend upon the facts
and the circumstances and the terms of each case to be judged
in the background of the totality of the circumstances. All the
terms and conditions should be properly appreciated and a
mere description that a personal was a selling agent was not
conclusive.

(b) Hallsburys Laws of England, Fourth Edition Volume 1(2),

wherein the decision of W.T. lamb & Sons v. Goring Brick Co.
Ltd. [1932] 1KB 710 at 717(Court of Appeal) was cited to place
reliance on the following excerpt from para 2, page 5:-

In addition to meaning a person employed to create

contractual relations between two parties, the word agent is
used in at least two other senses. Thus it is often used in
business in a non-legal sense to refer to a distributor, as in
the case of the appointment of a sole-selling agent,
exclusive agent or authorized agent. The relation so
established between the appointor and appointee is usually
that of vendor and purchaser and no contractual
 9

relationship is established between the appointor of the

agent and third parties by the sale of goods by the so-called
agent to those third parties.

(c) Blacks Law Dictionary defining the meaning of Periodic-

Recurring at fixed intervals to be made or done, or to
happen at successive periods separated by determined
intervals of time, periodic payments of interest on a bond or
periodic alimony payments.

(d) Strouds Judicial Dictionary defining Periodic Payments-

apportionable under the Appointment Act 170(s.35),s.2,

must be payments periodically, that is, at fixed times from

some antecedent obligation, and not at variable periods at

the discretion of individuals (per Selborne C. Jones v. Ogle 8

Ch.192).

(e) The Shorter Oxford English Dictionary defining

Periodic-
coming round at certain intervals; of pertaining, or
proper to the revolution of a heavenly body in its orbit,.
(f) Complete Wordfinder defining Periodic-
Appearing or occurring at regular intervals.

(g) The Random house dictionary defining Periodic (i)

recurring at intervals of time and (ii) occurring or appearing
at regular intervals

Arguments on behalf of the Designated authority

4. The learned counsel appearing for the designated authority

contended that no pre-authenticated enquiry was contemplated under

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Rule 22 of the said Rules like the one contemplated under Rule 5 for

initiating investigation. Therefore, before initiation of review it was not

determined in the present case, whether the new shipper-

producer/exporter was related within the meaning of Rule 22. He,

however, contended that at no point of time, the domestic industries

raised the question whether the new shipper/producer/exporter was

not so related. He pointed out that notice was sent to all the

interested parties including seven exporters of China and UAE. The

notice was widely circulated to about 26 interested parties. The

officers had visited China and verified the existence of the producer

and examined their record. They also verified that they were

manufacturers of the product. On confidentiality aspect, he submitted

after verifying the record that no formal decision was taken by the

designated authority. Confidentiality was claimed by the parties and

such claim of confidentiality was straightaway accepted. He,

however, submitted that no prejudice had been caused to any

interested party since the public notices as well as the non-

confidential summaries carried all the required information.

Arguments on behalf of the Contesting Respondents

5. The learned counsel appearing for the respondents New

Shippers and the importer, supporting the final findings and the

impugned notification submitted that the New Shipper Review was

provided for in Rule 22 in consonance with the International

Agreements and Understandings and was designed to safeguard the

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interests of those who were not dumping goods in India by their

exports. He submitted that during the course of the investigation

under Rule 5 before the imposition of the anti-dumping duty under

Section 9A(1), no Chinese exporter had co-operated and the

designated authority had taken the information submitted by the

domestic industry as a gospel truth. He submitted that the period

under consideration for the purpose of New Shipper Review under

Rule 22 was from 1.7.2002 to 30.6.2003, and the designated

authority had given wide publicity by issuing a public notice to the

proposed review. A large number of transactions both domestic as

well as exports that had taken place during the period of investigation

under review were brought to the notice of the designated authority.

He submitted that the New Shippers had claimed confidentiality under

Rule 7 of the said Rules by their letter dated 16.8.2003 to which they

were entitled, and non-confidential version containing sufficient

information was supplied to the interested parties. According to him,

the designated authority rightly treated the information as confidential

in consonance with the provisions of Rule 7. He submitted that the

material supplied to the domestic industry was sufficient for it to

defend itself on the subject matter of review. He submitted that the

information about domestic sales was supplied to the designated

authority to enable it to determine the individual margins. The

learned counsel argued that the quantity of export by the applicant-

New Shipper was more than 15 lac sq. mtrs. of tiles which was more

than significant to merit a review. He submitted that even between

July 2002 and 23rd May 2003 when the review was initiated, the New

Shipper had exported large quantities of its product to India. The

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large exports between 1.7.2002 to 30.6.2003 during the period of

investigation showed that New Shipper was a genuine

producer/exporter of the product in question. The learned counsel

further argued that the material was exported from China and not

from Dubai, as per the Bill of Lading of China. The New Shipper,

Nanhai was the exporter through UAE person Prestige. The country

of export being China, it cannot be said that the producer Nanhai

could not have applied for review under Rule 22. Referring to the

relevant provisions of the Tariff Act and the Rules of 1995 the learned

counsel argued that the applicant under Rule 22, was only required to

make a self declaration to the effect that, the applicant was not

related to any exporter/producer in the country of export. The fact

that the applicant was not so related was never challenged despite

the fact that in the application, the New Shipper made a clear

assertion that it was not a related person within the meaning of

Rule 22. He submitted that Rule 22 did not contemplate any formal

application unlike Rule 5(1), and the designated authority could have,

as he did, validly acted upon the review application pending on the

date of Notification issued under Section 9A(1) of the Act. The

learned counsel further argued that periodic review contemplated by

Rule 22 was meant to ensure that cases of genuine new exporters

would be promptly taken up for review so that they are not put to

disadvantage unjustly. The review under Rule 22 could, according to

the learned counsel, be taken up as and when necessary in

consonance with the principle underlying the GATT, of encouraging

free trade. There was a clear finding reached, according to him, by

the designated authority, that it did not find any evidence of

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relationship. He contended that there were no pre-conditions under

Rule 22 as were sought to be urged, and even in the absence of a

formal application the designated authority can review a New

Shippers case and can give relief to an innocent new shipper who

did not indulge in dumping. It was also contended that the

expression anti-dumping duty in Rue 22(1) included even a

provisional anti-dumping duty which could be imposed under Section

9A(2) of the said Act and therefore, the application of the New

Shipper was validly made after the imposition of anti-dumping duty

under Section 9A(2). The learned counsel then argued that when an

information is by law or custom treated as confidential and it is so

claimed, the designated authority will be bound to treat it as such.

Only when information is accessible in the public domain, it may not

be treated as confidential. He finally argued that even if initiation of

the review was faulty that will not vitiate the material gathered, which

showed that there was no dumping done by the applicant.

5.1 In support of his submissions, the learned counsel placed

reliance on the following decisions and material :-

(a) Decision of the Supreme Court in Pratap Singh & Another

Vs. Director of Enforcement, Foreign Exchange

Regulation Act & Others reported in (1985) 3 Supreme

Court Cases 72, was cited for the proposition that illegality

of the search does not vitiate the evidence collected during

such illegal search. The only requirement is that the court or

the authority before which such material or evidence seized

during the search and shown to be illegal is placed, has to

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be cautious and circumspect in dealing with such evidence

or material.

(b) For pointing out that there was no periodicity, as sought to be

suggested, for the exercise of the review power under Rule

22, the learned Counsel referred to the New Shipper Review

Notification dated 27.04.2004 in respect of the review done

at the instance of M/s Yusua Battery Guangdong Company

Ltd., China PR, pointing out therefrom that where anti-

dumping duty was imposed by notification published on

2.1.2002, a New Shipper Review was entertained by

initiating it under Notification dated 27.08.2002. In that case,

as observed in paragraph 7 of the notification, the authority

has received a request to initiated a New Shipper review of

Notification dated 7.12.2001 pursuant to Rule 22 of the Anti-

Dumping Rules from M/s. Yusua Battery Guangdong

Company Ltd., China PR which claimed that it was not

related to any of the exporting producers subjected to anti-

dumping measures in force with regard to the product

concerned and had claimed it had not exported goods during

the original period of investigation. The Authority had, prima

facie, examined the evidence submitted by the Chinese

producer concerned and considered it sufficient to justify

initiation of review in accordance the provisions of Rule 22.

It was pointed out from para 22 of the notification that the

trader having exported the product under consideration, had

neither joined in the petition, nor had certified that it had not
 15

exported the material in the past period of investigation, nor

had it certified that it was not related to any

producer/exporter who exported in the earlier POI. In fact,

the trader had exported the material in the past POI and was

related to a producer who had exported the material in the

past POI. Without any application the trader introduced itself

at the stage of questionnaire response, that too without any

letter of authorization, and certification. In the final findings,

the Authority concluded that M/s. Yusua Battery Guangdong

Company Ltd. producer from China and M/s. Yusua

Corporation of Japan had exported to India the product

above its normal value during the period of investigation and

dumping margin was de-minimis. The Authority did not,

therefore, recommend anti-dumping measures as the anti-

dumping margin was de-minimis.

(c) CFR Title 19, Part 351.214 was cited to point out that in the

context of New Shipper Review it was provided in the U.S.A.

that a request for a New Shipper Review must contain a

certificate that the person requesting a review did not export

subject merchandise to the United States and was not

affiliated with any exporter or producer. He submitted on the

strength of this provision that only certification was required

and the new Shipper Reviews was not required to adduce

any detailed evidence about his relationship. It was

sufficient for him to certify that he was not related to any

exporter/producer within the meaning of Rule 22.

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(d) Referring to the replies given to the questions posed by the

United States concerning the Notifications provided by the

Government of India in the context of anti-dumping

methodology, from the World Trade Organization (WTO)

Document G/ADP/W/291 / G/SCM/W/299 dated

27.2.1996, he pointed out that in answer to Question Nos. 12

& 13 India stated that Rule 22 of Anti-Dumping Rules

provides for reviews of New Shippers and procedures for

such reviews. Rule 22 (1) states that reviews will be carried

out for new exporters or producers who demonstrate that

they are not related to the exporters or producers already

subject to anti-dumping duties. He also pointed out that in

answer to Question No.14 referring to the expression

periodical review in their reply India stated that no specific

time-frame for new shippers review is provided. However,

periodical reviews implies accelerated reviews.

(e) Referring to a similar document of the WTO (G/ADP/W/287/

G/SCM/W/295 dated 26.2.1996 in the context of Rule 7, it

was pointed out that in answer to Question No.20 in their

reply, India stated that the provisions of Rule 7(2) imply that

the Designated authority in exercise of its discretion shall

require the parties to supply non-confidential summaries and

that Rule 7(3) governs admissibility of such information.

From the said document, he pointed out that for Question

Nos. 36 & 37 in their reply, India stated that the designated

 17

authority intended to deal with the new shipper reviews

expeditiously, and that the term periodic review implies

accelerated reviews. He pointed out that in answer to

Question No.38 in their reply India stated that Rule 16 of the

Anti-Dumping Rules required the designated authority,

before giving its final findings, to inform all interested parties

the essential facts under consideration which form the basis

for its decision. It implies that the interested parties will have

the opportunity to comment. From these replies, the learned

counsel wanted to emphasize that the international

community was satisfied about the provisions made in the

Indian Rules and the New Shipper Review was the review

which was to be undertaken as and when the issue was

raised.

(f) From the World Trade Organization document dated

27.2.1966 (G/ADP/W/291 / G/SCM/W/299) he pointed out

that in answer to Question No.4 India reiterated that it

intended to deal with new comers reviews expeditiously and

that the term periodical reviews implied accelerated

reviews.

6. Anti-Dumping duties are a statutory mechanism to increase the

cost of selling a foreign product in the domestic market place that was

originally sold for export to India at the price less than the product is

sold in the domestic market of the exporting country. If foreign sales

for export are less than normal value and result in economic injury
 18

to the domestic industry, then, anti-dumping duties are assessed to

level the playing field. Section 9A (1) of the Customs Tariff Act, 1975 ,

is attracted when any article is exported from any country or territory

to India at less than its normal value as defined in clause (c) of the

Explanation to Section 9A (1). It fixes the upper limit of anti-dumping

at the margin of dumping, as defined in clause (a) of the Explanation

so as to mean the difference between the export price and its normal

value.

6.1 The price of the article exported to India will be considered to

be the export price of that article under clause (b) of the Explanation.

It is only when, (i) there is no export price i.e. the article is not priced

or, (ii) the price of the article exported is unreliable because of

association or a compensatory arrangement between the exporter

and the importer or the exporter and third party, that the export price

of the article may be reconstructed. Therefore, when the price of the

article exported is reliable there can arise no occasion to reconstruct

the export price.

6.2 In cases where the price of the article exported to India is

unreliable and requires to be constructed, it is required to be done on

the basis of the price at which the imported articles are first re-sold to

an independent buyer in the same condition. Thus, re-sale price of

the subject articles to an independent buyer will be the constructed

export price of that article. Until this exercise of reconstruction is

adopted and it is found that the imported article is not re-sold to any

independent buyer or not re-sold in the condition as imported, there is

 19

no need to reconstruct the export price by resorting to the rules made

under sub-section (6) of Section 9. Ordinarily, it should be possible

for the authorities to construct the export price of the article on the

basis of the price at which they are re-sold unless the imports are for

the consumption of the importer himself and not for re-sale.

6.3 Finding out a normal price, as defined by clause (c) of the

Explanation would, however, required a detailed exercise to ascertain

the comparable price. The comparable price is the price at which the

like article is sold for consumption in the country of export itself. The

comparable price will have to be determined in accordance with the

rules made under sub-section (6) of Section 9A, for ascertaining and

determining the margin of dumping, as referred in sub-section (1) or

(2). Such rules may provide for the manner of identifying the articles

for the purpose of the anti-dumping duty and the manner of

determining the export price, the normal value and the margin of

dumping, in relation to such identified articles as also for the

assessment and collection of such anti-dumping duty.

6.4 The said Rules of 1995 are framed under sub-section (6) ) of

Section 9A and sub-section (2) of Section 9B of the said Act. Rule 5

of the said Rules lays down as to how the investigation to determine

the existence, degree and effect of any alleged dumping shall be

initiated. The principles governing investigations are enumerated in

 20

Rule 6 which requires issuance of a public notice notifying the

decision of the designated authority to initiate investigation and

containing adequate information on the matters enumerated therein.

The designated authority has the power to call for any information

from the exporters, foreign producers and other interested parties

under sub-rule (4), which is required to be furnished by such persons

within 30 days from the date of receipt of the notice. Sub-rule (7) of

Rule 6 provides that the Designated Authority shall make available

the evidence presented to it by one interested party to the other

interested parties participating in the investigation. Rule 7 relates to

confidential information. Since it falls for our interpretation, it is

reproduced hereunder: -

7.Confidential information:- (1) Notwithstanding anything

contained in sub-rules (2), (3) and (7) of rule 12, sub-rule (4) of
rule 15 and sub-rule (4) of rule 15 and sub-rule-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 authorisation of the party providing such information.
(emphasis added)

(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 (20), 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.
 21

6.5 Under Rule 8 the Designated authority is required to satisfy

itself as to the accuracy of information supplied by the interested

parties upon which its findings are based, except in cases referred to

in sub-rule (8) of Rule 6 i.e. where any interested party refuses

access to, or otherwise does not provide necessary information within

a reasonable period, or significantly impedes the investigation. Under

Rule 9 the Designated authority may carry out investigation in the

territories of other countries, if the circumstances of the case so

warrant; provided that the Designated authority obtains the consent of

the person concerned and notifies the representatives of the

concerned government which does not object to such investigation.

Rule 13 provides for levy of provisional duty which is defined in Rule

2 (e) of Section 9A to mean an anti-dumping duty imposed under sub-

section (2) of the Act. Such provisional duty shall remain in force

only for a period not exceeding six months or to an extended period

of nine months. Final findings are required to be given by the

Designated authority within one year from the date of initiation of

investigation, as required by Rule 17. Such final finding, if affirmative,

shall contain all information on the matter of facts and law and

reasons which have led to the conclusion, and also other information

as required by sub-rule (2) of Rule 17. The Central Government,

within three months of the publication of the final findings by the

designated authority, may impose the duty, by notification in the

Official Gazette, as required by Rule 18. Such 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, as provided by sub-rule (3) of

 22

Rule 18. The anti-dumping duty levied under Rules 13 and 18 takes

effect from the date of its publication in the Official Gazette, as

required by Rule 20.

6.6 Rule 22 relates to the power of the designated authority to carry

out a review of margin of dumping for exporters not originally

investigated. Since the main controversy has centered around the

interpretation of Rule 22 it is reproduced below-

22. Margin of dumping, for exporters not originally investigated -

(1) If a product is subject to anti-dumping duties, the Designated

authority shall carry out a periodical review for the purpose of
determining individual margins of dumping for any exporters or
producers in the exporting country in question who have not exported
the product to India during the period of investigation provided that
these exporters or producers show that they are not related to any of
the exporters or producers in the exporting country who are subject to
the anti-dumping duties on the product. (emphasis added)

(2) The Central Government shall not levy anti-dumping duties under
sub-section (1) of section 9A of the Act on imports from such
exporters or producers during the period of review as referred to in
sub-rule (1) of this rule:

Provided that the Central Government may resort to provisional

assessment and may ask a guarantee from the importer if the
Designated authority so recommends and if such a review results in a
determination of dumping in respect of such products or exporters, it
may levy duty in such cases retrospectively from the date of the
intimation of the review.

Rule 23 also relates to review but of a different kind. It is a review

by the designated authority from time to time as to the need for the

continued imposition of the anti-dumping duty and the designated

authority may recommend to the Central Government for withdrawal

of the anti-dumping pursuant to such review.

 23

7. It was contended for the Respondents New Shipper/Importer,

that an application under Rule 22 could be made even before the

definitive imposition of anti-dumping duties under section 9 A (I) when

provisional anti-dumping duty is imposed under Section 9A(2) and

therefore, the application made by Nanhai of China prior to the

issuance of notification imposing anti-dumping duty under Section

9A (I) but after the provisional anti-dumping duty was imposed under

Section 9A (2) was validly made when the product was subject to

anti-dumping duty within the meaning of Rule 22(I) which applies, if a

product is subject to anti-dumping duty. The scheme of the said

Rules of 1995 indicates levy of provisional duty under Rule 13 read

with Rule 2 (e), the life of which is only six months which can be

extended to nine months under the 2 nd provisio to Rule 13. After the

final findings are reached under Rule 17, the Central Government ,

within three months of the date of publication of final findings, may

impose by Notification in Official Gazette upon importation of the

article covered by the final findings, anti-dumping duty not exceeding

the margin of dumping determined under Rule 17. The anti-dumping

duty so imposed under Rule 18, may be levied from the date of

provisional duty imposed under Rule 13. If the anti-dumping duty is

lower than the provisional duty collected, the differential duty is

required to be refunded to the importer under Rule 21 (2). Rule 22

(1), therefore operates when the product is already subjected to anti-

dumping duty under Rule 18 and the exporters/producers in the

exporting country are already subjected to anti-dumping duty on the

product.
 24

7.1 The anti-dumping duty levied under rule 13 (provisional) and

rule 18 takes effect from the date of publication. The imposition of

provisional duty is anterior to and distinct from the anti-dumping duty

properly so-called. During the currency of provisional duty there

cannot arise any question of exercising the power of review which

comes into play only when the product is subjected to anti-dumping

duty. We consider that the term provisional duty is consistently

used where the intention is to refer to the measures imposed before

the end of the investigation process. In our view, the rules which are

in conformity with the Anti-Dumping Agreement clearly distinguish

between provisional measures and anti-dumping duties which term

consistently refers to definitive measures. Thus, in our view, the

meaning of the expression anti-dumping duties in rule 22 is clear, it

refers to the imposition of definitive anti-dumping measures at the

end of the investigative process and not provisional duty under

Section 9A (2) of the said Act.

7.2 In the present case, the earlier application of Nanhai was

terminated on the ground that the notification of anti-dumping duty

was not yet issued and anti-dumping duty was not imposed under

Rule 18. The subsequent application on the basis of which the

review was initiated under Rule 22 though made before the

notification imposing the anti-dumping duty was made after the final

findings were notified under Rule 17. When the application was

taken up for consideration, the notification under Rule 18 was already

in force and the anti-dumping duty was already imposed on the

product in question. Therefore, the question whether the new shipper

 25

was entitled to review under Rule 22 did arise for consideration after

the product was subjected to anti-dumping duty. Rule 22 does not

specify when the new exporter/producer could make an application

and did not preclude the designated authority, unlike under Rule 5 (I),

from taking up the second application of Nanhai for consideration

after the notification was issued under Rule 18.

7.3 Under Rule 22, there is an obligation on the designated

authority to carry out a periodical review after the product is subjected

to anti-dumping duty. The purpose of such review is to determine

individual margins of dumping for any exporters or producers in the

exporting country in question who have not exported the product to

India during the period of investigation. For getting their individual

margins of dumping determined, these exporters or producers must

show that they are not related to any exporters or producers in the

exporting country who are subject to anti-dumping duty on the

product. The periodical review under Rule 22 thus differ from the

review, from to time, of the need for the continued imposition of the

anti-dumping duty under Rule 23 which may lead to its withdrawal

when there remains no justification for its continuance. The

designated authority can periodically exercise that power coupled

with duty, as and when the occasion to determine such individual

margins of dumping arise. Ordinarily, however, when an application

is moved under Rule 22, an obligation to undertake the periodical

review arises. The period of investigation would be a period much

prior to the imposition of the anti-dumping duty. Therefore, the

proximity of the time, when application under Rule 22 is made, would

 26

not be judged by reference to the date of the notification imposing the

anti-dumping duty for contending that the application is made rather

too soon to make a periodical review possible. In a periodic review

the designated authority has to review the situation in the context of

the exporters and producers who were not in picture during the period

of investigation under Rule 5 relatable to the notification under

Section 9 A (I) but have entered the field later. Such review may lead

to determination of different margins of dumping in respect of

exporters and importers under review, if the investigation so warrants.

7.4 The words periodical review in rule 22 (I) have to be viewed in

the context of the words provided that these exporters or producers

show., and the nature of review which is confined to determining

individual margins. Therefore, the review power is initiated to relieve

the new exporters who may not in fact be dumping the product that is

already subject to the anti-dumping duty which applied even in cases

where the exporter/producer did not dump the product in the Indian

market. The periodicity of review under Rule 22 is linked with the

new shippers seeking initiation of review by showing that such new

shippers were eligible to seek the review. Cases of only those who

did not export the product to India during the period of investigation

under Rule 5 are required to be reviewed for determining their

individual dumping margins if they are not related. Rule 22 does not

specify any periodic cycle for exercise of the power to review such

cases since the frequency of review will depend upon whenever the

designated authority is moved by the exporter or producer of the

exporting country for such review.

 27

7.5 The nature of review under rule 22 is case specific with a

defined purpose of determining individual margins for such

exporter/producer, and no full-fledged investigation, as is required

before imposing the anti-dumping duty, is contemplated by rule 22.

The proceedings under Rule 22 are initiated after it is shown to the

designated authority that the applicant-producer/exporter is related

person to any such producer/exporter in the exporting country. The

applicant-exporter/producer has to demonstrate before the

designated authority that such exporter/producer is not related to any

exporters/producers in the exporting country who exported during the

period which was the subject matter of the investigation under Rule 5.

The word related is not confined to familial relations but would

encompass other relations through whom the anti-dumping duties

already imposed might be circumvented, for example, by creating a

shell company or appointing a sole agent for the product. The word

show is not meant to prescribe just a formality of a bare assertion by

the applicant that the applicant is not related but is meant to

incorporate in rule 22 an anti-circumvention measure by alerting the

designated authority to examine first whether potentially

circumventing relationship exists. The requirement on the part of the

new shippers to show that they are not related is a corresponding

obligation on the part of the designated authority to verify that there is

no circumvention of anti-dumping duty being attempted by invoking

the review.
 28

7.6 The expression provided these exporters or producers show

that they are not related to any of the exporters/producers in the

exporting country in rule 22, clearly implies that the designated

authority has to first be satisfied that the applicant-exporter/producer

is not so related. The designated authority should be conscious of

the possibility of the abuse of the New Shipper rules. An exporter

subject to a high-dumping duty may set up a new shell company in

the exporting country to act as a new shipper, and in some cases,

also a shell company in India to act an importer. Such new shipper

may, by moving an application under rule 22 request the designated

authority to undertake a New Shipper Review of its export sales

price after shipping a few orders to Indian market as a new shipper.

The undertaking of such review under rule 22 would qualify the

importer for the privilege of being subjected to provisional duty and a

guarantee under the proviso to rule 22(2), in lieu of making a cash-

deposit of high anti-dumping duty rate. This privilege continues while

the detailed investigation proceeds. In the interim period, such new

shipper may then ship a large volume of product. At the same time,

other shippers may attempt to counterfeit the new shippers identity

by submitting counterfeit invoices in order to take advantage of the

privileges under the proviso to rule 22(2). While the investigation

under rule 22 goes on, the shippers or importers can operate for

several months and avoid the requirement of anti-dumping duty

deposit. When the designated authority completes the investigation it

publishes the final results of the review formed on the basis of review

of sales for export and import activity over the period. If the new

shipper cannot substantiate that it qualifies for lower anti-dumping

 29

rate than the anti-dumping duty imposed, the anti-dumping duty will

be collected on all the previous entry transactions from such new

shipper. Subsequently, the shipper or importer or both may

disappear never having any intention of paying the anti-dumping duty

increases. Many times there would be a revenue short fall

inadequately secured by the provisional duty or guarantee under the

proviso to rule 22(2) and the deposit of anti-dumping duty which but

for the initiation of review would have been made. In such cases, the

Government may have to write off the uncollectible debt. All parties

lose. The domestic industry that sought to be protected, the law

abiding exporters/producers of the exporting country and the

legitimate importers in India, all continue to be injured by these

fraudulent trade practices. All the while, those who illegally export

and import obviously benefit. We have referred to this real possibility

of the abuse of the provisions of rule 22 just to emphasise the role

that the designated authority has to play while exercising its power of

review under rule 22. The designated authority must rule out any

possibility of abuse by an adequate investigation into the

genuineness of the new shippers and their not being related to the

exporters or producers in the exporting country who are subject to the

anti-dumping duty on the product. The very initiation of review under

rule 22 for determining the individual margins of the new

exporters/producers would depend upon their showing that they are

not related. This is clear from the words .provided that these

exporters or producers show that they are not related...

Therefore, until they show that they are not related, the designated

authority will normally not initiate the review. Having regard to the
 30

possibility of abuse of the New Shipper review rule, the designated

authority is bound to consider whether the new shipper seeking

review under rule 22 is related or not.

7.7 The learned senior advocate for the appellant argued that the

real exporter was Prestige of Dubai, UAE to whom porcelain tiles

were to be sold under the purchase order by Nanhai for export from

China to the importer in India. Therefore, it was necessary for the

purpose of Rule 22 for the designated authority to determine whether

the UAE exporter Prestige was related to any producer/exporter in

the country of export. He submitted that the real exporter was

Prestige of UAE because the goods were to be sold to it under the

purchase order.

7.8 There appears to be no prior decision taken by the designated

authority under rule 22 before initiating the review by issuance of the

public notice dated 23.5.2003. In the said notice, it is made clear at

the outset, while describing the subject of the notice, that the review

was initiated at the instance of the producer, Nanhai of China and the

exporter, Prestige of Dubai. The period of review was 1.7.2002 to

30.6.2003. In paragraph 4 of the notice it is stated: -

EXPORTER INVOLVED

4. The present investigations relate to exports of

Vitrified/Porcelain Tiles M/s. Nanhai Shangyuan Qulian

Construction Ceramics Co. Ltd., China, producer with

M/s. Prestige General Trading, Dubai, UAE as exporter to

India (hereinafter also referred to as the Petitioner).

 31

Thus, the review was undertaken in respect of both, the producer

Nanhai and the exporter Prestige. This seems to have been done in

view of the statement made in the letter dated 15.3.2003 sent on

behalf of Nanhai to the designated authority forwarding the

application dated 28.2.2003 requesting the initiation of a New

Shipper Review under Rule 22, in para 4 of which it was

stated: since the goods are being manufactured by a producer in

China and exported through a trader in Dubai, we request that the

initiation and determination may be for the producer/exporter

combination, i.e. M/s. Nanhai Shangyuan Qulian Construction

Ceramics Co. Ltd., Guanggong, China (Producer) and M/s. Prestige

General Trading, Dubai (Exporter).

7.9 It is, therefore, clear that the new shipper review was initiated at

the instance of the producer/exporter combination and therefore, the

designated authority was required to ascertain whether any one of

them did not export during the relevant period of investigation and

whether any of them was related to any other exporter/producer of

the country of export who had exported the product during the period

of investigation that preceded the notification under Section 9A(1). If

they qualified for consideration under rule 22, the designated

authority was required to determine their individual margin of

dumping. Rule 22 does not require any prior application of a new

shipper to initiate a review. Initiation of review is different from

initiation of an investigation under Rule 5, the purpose of which is to

determine existence, degree and effect of any alleged dumping.

There is an express requirement under Rule 5(1), that the initiation of

 32

investigation shall be done, only upon receipt of written application

by or on behalf of the domestic industry. Therefore, the imposition of

anti-dumping duty under Section 9A(1) is itself dependent upon the

domestic industry applying in writing to initiate the statutory

proceedings. Albeit, the designated authority can also initiate an

investigation suo moto under rule 5(4) of the Rules. The procedural

requirement of a written application, however, is not incorporated in

rule 22 for initiating a review for determining individual margins of the

new shippers. Therefore, even if the designated authority has

initiated the review application on the basis of the application dated

15.3.2003 of the producer, Nanhai, the review proceedings will not be

vitiated on the ground that the initiation was bad as the review

application was made before the issuance of the Notification

Nos.73/03 dated 1.5.2003 imposing anti-dumping duty under Section

9A(1). The contention that review proceedings were void ab initio is,

therefore, misconceived.

8. The contention that the words periodic review in rule 22

precluded consideration of the application of Nanhai of a review

within 22 days of the notification under Section 9A(1) of the Act is

equally misconceived for the simple reason that the word periodical

which is used in the sense of periodic (and not journal or magazine

as per its common parlance) only the means, in the context of the

provisions of rule 22, that the review can be undertaken intermittently.

There are no time intervals intended by this expression and it only

means that as and when the occasion arises to determine the

individual margins, the designated authority may intermittently

 33

undertake a review. The review for determining individual margin, by

its very nature, is case specific and does not require any full fledged

investigation of the nature covered by rule 5. This is why it was left to

the designated authority when to undertake the review, without

prescribing any time intervals.

9. There can be no dispute over the proposition that the

designated authority is required to undertake an exercise to ascertain

whether the new producer/exporter was related to any

producer/exporter of the country of export, as contemplated by rule

22. The designated authority has to consciously consider whether

the new shipper was related to any producer or exporter who

exported the product, during the period of investigation earlier made

under rule 5. The new shipper is required to show that he is not

related to any such producer/exporter. The word related is to be

understood in the context of the possibility of circumvention by the

exporter/producer of the country of export subject to the anti-dumping

duty, who might resort to the device of a shell company or simply of

changing the business-name of the concern. The designated

authority has to lift the veil of the producer/exporter concerned and

detect the circumvention attempt, if any. In the present case, the

designated authority has relied on the application of Nanhai dated

28.2.2003 for initiation of review, in which it was stated that the

producer Nanhai was independent company and was not related to

any other exporter or producer from China who may have exported

the goods to India. In that letter there was no statement that Prestige

of UAE was also not so related. Having regard to the fact that
 34

initiation of new shipper review was in respect of both, the producer

Nanhai of China, and Exporter Prestige of Dubai, the designated

authority was required to ascertain the position of both under rule

22(1), as to whether they had shown that they were not so related to

any other exporter or producer in the country of export which was

China from where the goods were exported directly to India. The

designated authority seems to have overlooked this requirement and

did not examine whether the exporter Prestige was so related.

Moreover, the entire exercise has been, with respect, casual and

though it may not vitiate the initiation of review, the reliance merely on

the bare assertion of the new shipper-producer for holding that the

new producers/shippers were not related as the authority did not find

any evidence of relationship, shows that the authority was oblivious

of the importance of the anti-circumvention aspect that is ingrained in

rule 22 when it requires the designated authority to exercise the

review power only when it is shown that the new shipper is not so

related. The domestic industry, however, has not been able to

assail this finding by reference to any cogent material on record. In

our view, notwithstanding that no prior determination was made on

the relationship aspect before initiating the review under rule 22, the

new shipper could have shown at any stage of the review

proceedings that no inhibiting relationship existed and it was equally

open for the domestic industry to show, it did exist. No such fresh

exercise is called for at this appellate stage in the facts of the case,

nor is it attempted with any seriousness. The material gathered

during the review proceedings continues to be validly collected for the

purpose of all determinations, and the proceedings, in our view, are

 35

not void ab initio, as was sought to be contended on behalf of the

appellant.

10. It was contended by the learned senior advocate for the

appellant that the approach of the designated authority to

mechanically accept the claims of confidentiality of all vital evidence

of the new shipper, without reaching the requisite satisfaction has

prevented the domestic industry to adequately defend itself and even

to find out whether the new producer/exporter were related to any

other producer/exporter, as contemplated by rule 22. It was

submitted that the balance-sheets of the new shipper Nanhai, which

were withheld on the ground of confidentiality, would have enabled

the appellant to find out whether there were subsidiaries who

exported the product during the period of investigation for imposition

of anti-dumping duty. The relevant record would have shown,

according to him, the product capacity on the basis of which the

genuineness of the purchase order could have been verified. The

contract copy which was specifically mentioned in answer to question

no.3 of the questionnaire (Provide sales negotiation process and

how you sell the goods in your home market and export to India),

was not supplied. It could have shown whether Prestige was a

wholesale agent of Nanhai or had become the owner of the goods.

The confidentiality barrier was put up ignoring the transparency

provisions of the rules and there was total non-application of mind on

the part of the designated authority, according to the learned senior

counsel.
 36

10.1 Every application or information contemplated by rule 7 is not,

by itself, required to be treated as confidential merely because

it is provided to the designated authority on a confidential basis

by any party in the course of investigation. It is only when the

designated authority is satisfied as to its confidentiality that

such information is required to be treated as confidential.

Therefore, the designated authority is not required to

mechanically treat the information provided by a party as

confidential merely because that party has desired it to be kept

confidential. The designated authority has to be satisfied about

the confidentiality of the information on the basis of various

factors such as the nature of information and whether such type

of information is by law, custom, usage, or practice treated as

confidential in the field to which the information relates (e.g.

industrial sector, service sector etc.). If in the field to which the

information relates, its disclosure is not treated as confidential,

either under the law or by custom, usage or practice of the

trade or industry, then the claim to confidentiality is ill founded

and will not be accepted by the designated authority. However,

in the areas where confidentiality of information, having regard

to its nature and content, is accepted by law, custom, usage or

practice, (e.g. about know how as in the field of intellectual

property), the designated authority will be satisfied about the

confidentiality. Confidentiality, however, is not a mere tool to

deny disclosure of information provided during investigation in

order to kill all transparency provisions of the rules and create a

handicap for the opposing parties. Any claim to treat the

 37

information as confidential must be bonafide and germane to

the rights and legitimate interests of the party wanting to treat

the information it provided as confidential.

10.2 If on consideration of the relevant factors having bearing

on the aspect whether the information ought to be treated as

confidential, the designated authority reaches satisfaction about its

confidentiality then, and then alone, the embargo against disclosure

will operate. Therefore, if the designated authority, on consideration

of the relevant aspects comes to a satisfaction that there is no

element of confidentiality in the nature and contents of the information

provided by a party and that the claim to confidentiality is baseless

then the designated authority will not treat the information as such,

that is, provided on confidential basis. In such an event, there would

be no need to ask the party providing such information on confidential

basis to furnish a non-confidential summary thereof, and sub-rules (2)

and (3) of rule 7 will have no application since the designated

authority is not satisfied about the claim to confidentiality. Therefore,

the information which is by nature confidential or is provided by any

party to investigation on confidential basis will be treated as

confidential upon good cause shown to the authority. It is, however,

clear that the requests of confidentiality cannot be arbitrarily rejected.

The requirement under rule 7 to protect confidential information

indicates that the investigating authority might need to rely on such

information in making determinations relevant to the provisions of the

Act and the Rules. Rule 7 contains a mechanism that allows parties

to provide the investigation authority with such information for the

 38

purpose of making their determinations, while ensuring that the

information is not used for other purposes. It would be contradictory

to suggest that the rule creates some mechanism (in consonance

with the international agreement) for the protection of confidential

information, but precludes reliance thereon by the authority for

making its determinations. Since the exercise by the designated

authority is a process adopted for making statutory determinations,

once the information given by a party to the authority is validly

treated as confidential, there will be no right in other parties to

challenge the determination on the ground of violation of principles of

natural justice. The process of determinations of anti-dumping duty

and related matters is not an adjudicatory process of resolving

disputes between the parties, but a statutory process for determining

imposition of anti-dumping duty on those who are liable to pay. For

the purpose of transparency, there is an obligation on the authority to

require the parties to furnish non-confidential summaries which shall

be in sufficient detail to permit a reasonable understanding of the

substance of the information submitted in confidence. This is an

important element incorporated in rule 7(2) which reflects the balance

struck by the rules between the need to protect the confidentiality of

certain information, on the one hand, and the need to ensure that all

parties have a full opportunity to defend their interests, on the other.

The transparency required under the rules which obligates the

authority to explain its determination in a public notice is subject to

the need to have regard to the requirement for the protection of

confidential information under rule 7. Confidentiality of the

information limits the manner in which the authority explains and

 39

supports its determinations in a public notice. Therefore, the

designated authority may rely on confidential information in making

determinations while respecting its obligation to protect the

confidentiality of that information.

11. In the present case, the designated authority has not even

cared to pass any formal order in the matter of confidentiality and has

merely accepted the version of the parties providing evidence without

applying his mind as to whether the information supplied deserved to

be treated as confidential or not. We have ascertained from the

learned counsel appearing for the designated authority, on the basis

of the record with him, that despite the objection raised by the

appellant (letter dated 12.1.2004 at annexure 20 addressed to the

designated authority that the responses of the exporter new shipper

did not fulfil the requirement of anti-dumping law and procedure), the

designated authority did not at all direct himself to consider whether

the information supplied by the new shippers ought to have been

treated confidential, and, which of the information supplied should be

so treated, and, if it was to be treated as such, whether the non-

confidential summary of such information contained sufficient detail to

permit a reasonable understanding of the substance of the

information submitted in confidence. Since the very outcome of the

proceedings can be effected if the information which is not required

under the law to be treated as confidential is so treated, we are left

with no option but to require the designated authority to reconsider

the proceedings in the light of the confidentiality issue, as discussed

above. This Tribunal is purely a judicial Tribunal and in exercise of its

 40

appellate power of judicial review under Section 9C(3), may pass,

after giving the parties an opportunity of being heard, such orders

thereon as it thinks fit, confirming, modifying or annulling the order

appealed against. The exercise under rule 7 required to be

undertaken by the designated authority is for the purpose of enabling

the designated authority to reach its own subjective satisfaction.

Since confidentiality issue would be required to be decided in respect

of all the information for which it is claimed, it will not be appropriate

for this Tribunal to embark upon a detailed exercise in its appellate

jurisdiction for substituting its satisfaction for the satisfaction of the

designated authority. It is clear to us from the wordings of sub-

section (3) of Section 9C that while making any final order the

Tribunal has all the powers to issue such orders as it thinks fit to

issue in connection with the order impugned. This wide power of

judicial review conferred under the said provision is in consonance

with the following Article 13 of the Agreement on implementation of

Article 11 of General Trade Agreement on Trade & Tariffs:-

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 and
determinations within the meaning of the Article 11.
Such tribunals or procedures shall be independent of
the authorities responsible for the determination or
review in question. (emphasis added)
 41

This Tribunal is statutorily constituted under Section 129 of the

Customs Act with appellate jurisdiction under Section 129A. Under

sub-section (6) of Section 129C the Tribunal has power to regulate its

own procedure and the procedure of Benches thereof of in all matters

arising out of the exercise of its powers or of the discharge of its

functions. Therefore, the Tribunal and its procedures are

independent of the authorities responsible for final determinations for

judicial review in question, as contemplated by the above Article 13.

In fact, the Union of India or the concerned Ministry would be a party

in the proceedings before the Tribunal, as in the present case, and

will be amenable to the jurisdiction of this Tribunal. Therefore, by the

very judicial nature of its functions and the powers conferred on it,

this Tribunal is independent of the governmental authorities

responsible for final determinations. The Tribunal having such wide

judicial powers to make the appellate orders of the nature

contemplated by Section 9C(3) would have for the effective exercise

of its appellate power of judicial review, the necessary power to

remand the matter to the designated authority for its reconsideration

on the aspect of the confidentiality issue, in the light of the

observations made in the judgement.

FINAL ORDER

12. The impugned Final Findings of the designated authority-dated

30th June 2004 and the notification No.80/2004 dated 28 th July 2004

are, therefore, hereby set-aside, and the respondent designated

authority is directed to examine the confidentiality of information

under rule 7 and make Final Findings afresh in the matter after
 42

hearing the interested parties on the basis of the material already on

record, within three months from today. The appeal is accordingly

allowed.

(Dictated and pronounced in the open Court)

(JUSTICE R.K. ABICHANDANI)

PRESIDENT

(S.S. KANG)
VICE -PRESIDENT

(K.C. MAMGAIN)
(Nk) MEMBER (TECHNICAL)