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On the issue concerning anti-dumping duty relating to 19 top telecom and cable companies, including Samsung, HFCL, Sterlite, Aksh, LG and RPG, the larger bench of CESTAT (Central Excise and Service Tax Appellate Tribunal) has directed the designated authority on anti-dumping to disclose confidential information and data which the authority was not interested in revealing under cover of Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on Dumped Articles and for Determination of Injury) Rules, 1995.
It was the contention of the appellants, including exporters, that the actual figure of normal value (NV) and export price (EP) should be disclosed and cannot be treated as confidential.
At present the DGAD does not disclose the actual figure of NV and EP. They submitted that the basis and method by which the designated authority arrived at the NV and EP should be treated as non-confidential. They further submitted that if normal value is arrived at on the basis of constructed cost, other than of an individual manufacturer, full disclosure must be made of all elements going into it.
As far as export price is concerned it was their contention that such details on the basis of which export price had been worked out are to be disclosed. The designated authority submitted that if actual figure of normal value is disclosed, it may enable the parties to work back to the actual information and data of individual exporters, and thus, compromising confidentiality.
A similar objection was raised on behalf of the DGAD in respect of disclosure of actual figure of export price also.
The tribunal observed that it is clear from sub-rule (1) of Rule 7 that confidentiality can apply only to 'information' provided on a 'confidential basis'. Thus, confidentiality applies only to specific factual, commercial data of a party.
Normal value is a figure worked out by the DGAD. This, therefore, cannot come within the confidentiality provisions under Rule 7. It was not shown as to how from such figure one can work back to the actual data required to be kept confidential.
Normal value is worked out either as weighted average price of domestic sales or of export sales to an appropriate third country or as constructed cost.
It was held that 'since normal value is an average price/cost for the period of investigation, it does not relate to any particular transaction. Therefore, the apprehension expressed by the counsel for DGAD is misplaced. We are of the view that normal value cannot be treated as confidential. Similarly, the basis and method by which DGAD had arrived at the normal value and the various components thereof cannot be treated as confidential.'
'The specific information about the above components (price of materials, cost of energy, return on capital etc) also cannot be treated as confidential when actual data of a manufacturer is not the basis for any of the components of the value of the goods. When the normal value is construed based on information furnished by the petitioner, the entire information so furnished is required to be disclosed unless such information relates to a particular manufacturer. The same principle should apply to export price also,' the tribunal said.
It was held that all factors other than dumped imports causing injury should be treated as non-confidential.
Cestat held that non-injurious price figures have to be disclosed. The methodology and factors considered for arriving at NIP has to be treated as non-confidential. Details and figures not hit by the rule of confidentiality are also to be disclosed.
The DGAD was directed to disclose actual amount of normal value, export price and non-injurious price and all other information which was held as non-confidential. The disclosure statement should contain all these particulars.
The domestic industry was also directed to disclose to the appellants and DGAD all information with specific reference to the product under investigation which would find a place in the balance-sheet of the company if the product in question was its only product.
The Supreme Court had earlier remanded the appeals to the Tribunal for fresh consideration with certain directions.
The Supreme Court referred to the norms to be adopted in the matter of claim to confidentiality made under Rule 7 of the Customs Tariff (Identification), Assessment and collections of anti dumping Duty on dumped Articles and for Determination of Injury) Rule 1995. The paragraph is quoted below:
'3. In our view, it is not necessary for us to go into the merits of this matter as we proposed to send the matter back to CEGAT after laying down certain guidelines. From what has been argued before us, it appears that in pursuance of Rule 7 of the Customs Tariff (Identification, Assessment and Collection of Anti-dumping duty on Dumped Articles and for Determination of Injury) Rules, 1995 the designated authority is treated all materials submitted to it as confidential merely on a party asking that it be treated confidential. In our view, that is not the purport of Rule 7. Under Rule 7, the designated authority has to be satisfied as the the confidentiality of that material. Eve if the material is confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the designated authority a statement of reasons why summarisation is not possible. In any event, under Rule 7(3) the designated authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affect the other side as they get handicapped in filing ion effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases their is need for confidentiality as otherwise trade competitors would obtain confidential information which they cannot otherwise get. But whether information supplied do required to be kept confidential has to be considered on a case to case basis. It is for the designated authority to decide whether a particular material is required to be kept confidential. Even where confidentiality is required, it will always be open for the appellant authority, namely, CEGAT to look into the relevant files.'
While setting aside the impugned order and remitting the appeals back to this tribunal for decision on merits, the Supreme Court clarified that the tribunal will be at liberty to decide 'whether any material which has been placed before the designated authority is required to be kept confidential or not.'
See full text of Judgement in 2004-TIOL-292-CESTAT-DEL-LB in Legal Corner
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