Research › Search › Judgment

Gujarat High Court · body

2009 DIGILAW 666 (GUJ)

MESSRS MEGHANI ORGANICS LIMITED v. UNION OF INDIA

2009-10-09

A.L.DAVE, K.A.PUJ

body2009
JUDGMENT HONOURABLE MR.JUSTICE K. A. PUJ 1. RULE. Mr. R. M. Chhaya, learned Standing Counsel for the respondent Nos.1 & 2 and learned advocate Mr. Bijal Chhatrapati for Singhi & Co. for respondent Nos.3 & 4 waives service of Rule. 2. Looking to the issue involved in the petition and with consent of parties, the matter is taken up for final hearing. 3. The petitioners have filed this petition under Articles 226 & 227 of the Constitution of India seeking appropriate writs, orders and/or directions to quash anti-dumping duty proceedings initiated vide Initiation Notification No.14/18/2008-DGAD dated 17.11.2008 against import of Diethyl Thio Phosphoryl Chloride originating in or exported from China P.R., on the ground that such initiation is without jurisdiction and contrary to law. The petitioners have also prayed for issuance of a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, direction or order, thereby permanently prohibiting the respondents from taking any action pursuant to Initiation Notification No.14/18/2008-DGAD dated 17.11.2008, order dated 06.05.2009 made by respondent No.2, the preliminary findings dated 25.05.2009 and Notification No.73/2009 - Customs dated 22.06.2009. The petitioners have further prayed for quashing and setting aside this Initiation Notification / order / preliminary findings and notification dated 22.06.2009. 4. It is the case of the petitioners that the petitioner No.1 Company is engaged in the business of manufacture of chemicals and chemical compounds and one of its raw materials is Diethyl Thio Phosphoryl Chloride (DETPC) imported this input / raw material regularly from China. In or around August 2008, M/s. Cheminova India Limited, respondent No.3 herein, filed an application before respondent No.2 alleging dumping of the above material originating in or exported from China. The respondent No.2 has issued a Notification No.14/18/2009-DGAD initiating anti-dumping duty proceedings against import of DTPC originating in or exported from China P.R. Objections and views of affected parties have also been invited by the respondent No.2. The petitioners filed the importer's questionnaire response on 29.01.2009, inter alia, pointing out that the initiation of the proceedings was without jurisdiction. The petitioners filed further letter dated 17.02.2009 pointing out to the respondent No.2 that non-confidential version of the application of the respondent No.3 was not in terms of the recent guidelines as regards non-confidential version to be exact replica of the confidential version. The petitioners filed further letter dated 17.02.2009 pointing out to the respondent No.2 that non-confidential version of the application of the respondent No.3 was not in terms of the recent guidelines as regards non-confidential version to be exact replica of the confidential version. The petitioners further submitted a detailed letter dated 18.02.2009 containing various objections and mainly contending that the applicant industry did not account for a major proportion of the total domestic production and therefore, without obtaining information of the third producer in India, the precondition for initiating anti-dumping duty investigation was without jurisdiction, and that excessive confidentiality claimed by the applicant was contrary to the law laid down by the Hon'ble Supreme Court in case of Sterlite Industries (India) Limited. Various other objections of facts as well as of law have also been raised, and various important details and information have also been requested by the petitioners from the respondent No.2. The petitioners thereafter reminded the respondent No.2 on 26.02.2009 for details and informations with reference to their earlier letters dated 17.02.2009 and 18.02.2009, while complaining that effective opportunity as contemplated under the law was being denied to the petitioners since the required information and details were not being disclosed to the petitioners. 5. The petitioners thereafter filed writ petition being Special Civil Application No.2201 of 2009 before this Court on 12.03.2009 challenging the initiation of anti-dumping duty investigation proceedings. After allowing the parties to complete pleadings and after hearing the parties, this Court vide its order dated 08.04.2009 disposed of the petition recording the statement of the learned Counsel appearing for the designated authority that the designated authority shall deal with the preliminary objections raised by the petitioners about jurisdiction and decide the same within four weeks after hearing the parties, and thereupon allowing withdrawal of the petition. 6. The petitioners thereafter submitted their written submissions on 28.04.2009 and 01.05.2009 before the designated authority. The domestic industry also submitted their written submissions and the petitioners submitted their rejoinder. The respondent No.2 thereafter issued preliminary findings about the investigation thereby recommending mere duty against import of DETPC from China. 6. The petitioners thereafter submitted their written submissions on 28.04.2009 and 01.05.2009 before the designated authority. The domestic industry also submitted their written submissions and the petitioners submitted their rejoinder. The respondent No.2 thereafter issued preliminary findings about the investigation thereby recommending mere duty against import of DETPC from China. Based on the said recommendations of the designated authority, the notification under Section 9A (2) of the Customs Tariff Act read with Rules 13 & 20 of the Customs Tariff Rules, 1995 has been issued on 22.06.2009 thereby accepting recommendations of the respondent No.2 and imposing steep rate of anti-dumping duty and provisional basis on the DETPC imported from China. 7. At this stage, the present petition is filed by the petitioners before this Court. 8. Mr. S. N. Soparkar, learned Senior Counsel appearing with Mr. Paresh M. Dave for the petitioners has raised the following issues while challenging the impugned action of the authorities : i. The initiation of the present enquiry is wholly illegal and without jurisdiction because the respondent No.3 is deemed not to form part of domestic industry and consequently, investigation could not have been initiated upon receipt of application by the respondent No.2. All subsequent actions including the order, preliminary findings as well as the notification dated 22.06.2009 are, therefore, without jurisdiction. ii. The application is filed by only one producer i.e. the respondent No.3 with a support letter by the respondent No.4, but the application in these circumstances could not have been considered as one filed by or on behalf of the domestic industry. The respondent No.2 admittedly did not possess adequate data so as to satisfy himself that the investigation was required to be initiated under Rule 5 of the Rules of 1995. iii. The designated authority has acted unreasonably and arbitrarily in not affording adequate opportunity of being heard to the petitioners as well as other interested parties and the entire procedure followed by him is in violation of the principles of natural justice. iv. The initiation notification, the order dated 06.05.2009, the preliminary findings and the resultant notification dated 22.06.2009 suffer from material irregularities, which are incurable at this stage and, therefore, all these proceedings are vitiated. iv. The initiation notification, the order dated 06.05.2009, the preliminary findings and the resultant notification dated 22.06.2009 suffer from material irregularities, which are incurable at this stage and, therefore, all these proceedings are vitiated. v. The petitioner has specific information that related Companies of respondent No.4 have imported subject goods from China during the period of investigation and such imports continued even thereafter, but still however, the respondent No.2 has not obtained mandatory certification from respondent No.4 on relationship with foreign producer, relationships with the importers or self imports prior to bestowing upon respondent No.4 a status of the domestic industry. vi. The petitioners have not been allowed any access to essential public documents and a complete non-confidential version of responses and submissions, filed during investigation has not been made available to the petitioners. vii. The respondent No.2 has committed material irregularity in the matter of confidentiality and he has mixed the issue of confidentiality as to information and confidentiality as to findings. 9. In support of his submissions, Mr. Soparkar has relied on the decision of the Apex Court in the case of Sterlite Industries Limited, 2003 (158) ELT 673 S.C. and in the case of Shenyang Mastsushita Battery Company, 2005 (181) ELT 320 (SC) and also in the case of Reliance Industries Limited V/s. Designated Authority, 2006 (2002) ELT 23 (SC). 10. On behalf of the respondent No.2, Mr. R.M. Chhaya, learned Standing Counsel appeared. An affidavit-in-reply is filed on behalf of the respondent No.2 by Mr. D.P. Mohapatra, Director, Foreign Trade, Government of India. Based on this affidavit, Mr. Chhaya has submitted that the petition is not maintainable, more particularly, at this stage when the proceedings are pending before the respondent No.2 who has yet to take final decision in the matter. He has further submitted that the present petition is nothing but an attempt to thwart the pending proceedings initiated under the provisions of Section 9-A of the Customs Tariff Act read with the Rules framed thereunder. The investigations have been initiated on being satisfied that the application made by the respondent No.3 is by domestic industry which accounts for more than 25% of the total production of the like product by the domestic industry. The application moved by the respondent No.3 is further supported by the respondent No.4 which alone accounts for 71% of the total production. The application moved by the respondent No.3 is further supported by the respondent No.4 which alone accounts for 71% of the total production. He has, therefore, submitted that the bar of proviso to Sub-Rule (3) of Rule 6 cannot be invoked in the present case. He has further submitted that the details of the figures of production of the goods in question supplied by the Department of Chemicals and Petro-chemicals and the weightage of the percentage of the applicant before the designated authority clearly show that the contention of the petitioners that the initiation of proceedings lacks jurisdiction is factually incorrect, unsustainable and is denied. Under Anti Dumping Rules, the designated authority is required to consider whether the applicant is related to an exporter or importer of alleged dumped articles and such practice has been upheld by the Tribunal in various cases. The import from different market is quite low and negligible and, therefore, the designated authority has discretion to consider the applicant as eligible domestic industry inspite of such imports under Rule 2 (V). What is under investigation is the import of subject article under investigation from the subject country i.e. China and hence, there was no concealment of any information by the domestic industry so as to initiate the investigation. He has further submitted that considering the reasons given by the domestic industry in respect of the confidentiality version contained in the application, the designated authority has been satisfied that such information has to be treated as confidential and it shall not be disclosed to any other party. As per the recent order passed by the Apex Court on 27.01.2009 in the case of Designated Authority V/s. Indian Mills and Ferra Alloys Limited, the Apex Court has expressed the view that the view expressed in M/s. Reliance Industries case needs a fresh look and has referred the matter to the Chief Justice to deal with the issue of confidentiality by a larger Bench of the Apex Court. He has, therefore, submitted that the petition deserves to be dismissed. 11. Mr. Mihir Thakore, learned Senior Counsel appears with Mr. Bijal Chhatrapati for the respondent No.3. An affidavit-in-reply is filed by Mr. Ajit Laxman Inamdar on behalf of respondent No.3. He has submitted that the petition is thoroughly misconceived and not maintainable. He has, therefore, submitted that the petition deserves to be dismissed. 11. Mr. Mihir Thakore, learned Senior Counsel appears with Mr. Bijal Chhatrapati for the respondent No.3. An affidavit-in-reply is filed by Mr. Ajit Laxman Inamdar on behalf of respondent No.3. He has submitted that the petition is thoroughly misconceived and not maintainable. The petition seeks to invoke the discretionary jurisdiction of this Court so as to stop the proceedings which have already been commenced before the designated authority by initiation of anti-dumping investigation concerning import of DETPC originating in or exported from China. The preliminary findings recorded by the designated authority, upon investigation are merely recommendatory in nature and it is for the Central Government to levy or not to levy any provisional duty on the basis of the findings of the designated authority. In the event of imposition of any anti-dumping duty by the Government, the petitioner would have remedy of statutory appeal in terms of the provisions of Section 9 (c) of the Customs Tariff Act. Rule 21 clearly contemplates refund of duty if the anti-dumping duty fixed after the conclusion of the investigation is lower than the provisional duty already imposed and collected. 12. Mr. Mihir Joshi, learned Senior Counsel appeared for respondent No. 4. An affidavit-in-reply is filed by the respondent No.4 and simply adopted the contentions raised and averments made by the respondent No.3. 13. A further affidavit was filed on behalf of the respondent No.4 on 05.10.2009. Based on that affidavit, Mr. Joshi has submitted that it is alleged by the petitioners that a related entity of the respondent No.4 has imported subject goods from China and that contrary contention was raised by the respondent No.4 in its earlier affidavit. However, this is not correct. He has further submitted that the entire basis of the allegations canvassed by the petitioners is not correct. Excel Crop Care Limited, which the petitioners claim to be related entity of the respondent No.4, is not a related entity in terms of the explanation to the definition of domestic industry under Rule (b) of the Rules. Neither of the Companies control each other, whether directly or indirectly and both of the Companies are not controlled by a third person, nor do the companies together control a third person. The respondent No.4 has 11 Directors and Excel Crop Care Limited has 13 Directors. Neither of the Companies control each other, whether directly or indirectly and both of the Companies are not controlled by a third person, nor do the companies together control a third person. The respondent No.4 has 11 Directors and Excel Crop Care Limited has 13 Directors. Out of these Directors, only two Directors are common. Further more, in terms of shareholding, the respondent No.4 has a nominal 0.91% share in the paid up share capital of Excel Crop Care Limited, while Excel Crop Care Limited has no shares in the respondent No.4 Company. He has further submitted that the imports made by the Excel Crop Care Limited during the period of investigation were only to the tune of 80 tons as against the total imports of 12616 tons, which is merely 0.634% of the total imports. He has, therefore, submitted that since the very foundation of the allegations of the petitioners as to respondent No.4 in Excel Crop Care Limited being 'related' entitles, is misconceived and factually incorrect, the other and consequent allegations of so called imports by Excel Crop Care Limited are of no consequences and deserve to be rejected. 14. Having heard the learned Counsels appearing for the parties and having considered their rival submissions in light of statutory provisions and decided case law on the subject, we are of the view that since the petitioners have approached this Court at the interim stage and final determination of anti-dumping duty is yet to be made, we do not propose to deal with all these issues nor do we think it just and proper to express our opinion on these issues. We are, however, primarily concerned to decide as to whether the present petition is maintainable at this stage and if yes, to what extent ? Whether any relief can be granted to the petitioners in this petition. 15. The first and foremost issue is in relation to maintainability of petition at this interim stage. The main challenge is against levy of provisional antidumping duty which, inter alia, affects the petitioners. It is true that it is not a stage at which Court could go into validity of preliminary findings / imposition of duty. 15. The first and foremost issue is in relation to maintainability of petition at this interim stage. The main challenge is against levy of provisional antidumping duty which, inter alia, affects the petitioners. It is true that it is not a stage at which Court could go into validity of preliminary findings / imposition of duty. If final duty is not levied, the petitioners will be entitled to refund of anti-dumping duty already paid and if it is imposed, they could appeal to CESTAT or approach this Court or Hon'ble Supreme Court. The moot question still remains as to whether in a given case, grievance against judicial, quasi-judicial or administrative function may itself give rise to cause of action as the very initiation of proceedings under any law or in exercise of public duty aimed at bringing civil consequences for a person against whom such action is initiated, itself becomes cause of action abundantly affecting petitioners' interests. Mr. Thakore's argument is that the impugned action of levy of anti-dumping duty is a legislative action which cannot be challenged in a writ petition filed under Articles 226 & 227 of the Constitution of India. This contention cannot be upheld in view of the decision of Apex Court in the case of Reliance Industries Limited V/s. Designated Authority, 2006 (2002) ELT 23 (SC) wherein, while disagreeing with the Tribunal that the notification of the Central Government under Section 9A is a legislative Act, the Apex Court held that it is clearly quasi-judicial. The proceedings before the Designated Authority are to determine the lis between the domestic industry on the one hand and the importer of foreign goods from the Foreign supplier on the other. The determination of the recommendation of the Designated Authority and the Government notification on its basis is subject to an appeal before the CESTAT. This also makes it clear that the proceedings before the Designated Authority are quasi-judicial. 16. This leads to an another issue as to whether an appeal lies to CESTAT against levy of provisional anti-dumping duty and if yes, whether this Court should entertain the present petition when an alternative remedy in the form of an appeal is available to the petitioners. In support of this contention, Mr. 16. This leads to an another issue as to whether an appeal lies to CESTAT against levy of provisional anti-dumping duty and if yes, whether this Court should entertain the present petition when an alternative remedy in the form of an appeal is available to the petitioners. In support of this contention, Mr. Joshi relied on the decision of this Court in Surfaces Plus V/s. Union of India, 2004 (173) ELT 127 (Guj.) wherein, while considering an issue as to whether an appeal lies against preliminary finding, the Court held that against preliminary finding, which is of a recommendatory nature, an appeal would not be tenable under Section 9 C of the Act. The preliminary finding which is of a recommendatory nature is required to be considered by the Central Government under Rule 13 for the purpose of deciding the question of imposing provisional anti-dumping duty and the Central Government is required to issue notification for imposing anti-dumping duty. Such notification of imposing duty has not been issued so far by the Central Government. On the basis of these observations, the submission of Mr. Joshi is that since the Central Government has already issued notification in June, 2009, the petitioners could avail an alternative remedy of filing appeal before CESTAT. We are not much impressed by this argument. Section 9 C deals with appeal which says that an appeal 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 shall lie to the customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act, 1962. Section 9A (2) of the Act states that 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 India an antidumping 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. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. Thus, the provisional anti-dumping duty is levied pending determination and appeal lies only on determination. Moreover, Rule 17 of the Rules deals with final finding. It says that 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 causal link, where applicable between the dumped imports and injury, (iv) whether a retrospective levy is called for and if so, the reasons therefor and date of commencement of such retrospective levy. This exercise is yet to be undertaken by the Designated Authority. Hence, no appeal lies against the levy of provisional anti-dumping duty and this Court is well within its power to entertain this petition since there being no alternative remedy available to the petitioners despite the fact that they are being saddled with the liability of provisional anti-dumping duty. 17. The last question that remains for our consideration is as to whether the petitioners made out any case for grant of prayers made in the petition and to what extent. At the outset, we make it clear that we would not like to go into various issues raised before us, such as initiation of investigation, status of respondent Nos.3 & 4, validity of proceedings including levy of provisional anti-dumping duty etc. We, however, go into the aspect of confidentiality claimed by the respondent Nos.3 & 4 and accepted by the respondent No.2, with special reference to Rules 7 and 12 of the Rules. 18. We, however, go into the aspect of confidentiality claimed by the respondent Nos.3 & 4 and accepted by the respondent No.2, with special reference to Rules 7 and 12 of the Rules. 18. Rule 7 deals with confidential information which reads as under :- (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 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. 19. Based on this Rule 7, the respondent No.2, in his affidavit in reply has stated that in any petition, there will be non-confidentiality as well as confidentiality version that considering the reasons given by the domestic industry in respect of the confidentiality version contained in the application, the Designated Authority has been satisfied with such information as to be treated as confidential and it shall not be disclosed to any other party, more particularly, since the party disclosing or providing such information has not specifically authorized the disclosure thereof. Under the circumstances, it is contended that it is not open for the petitioners to challenge subjective satisfaction of the Designated Authority on the confidentiality aspect more particularly, when this exercise is done in confirmity with the provisions of Rule 8. 20. The submission of Mr. Under the circumstances, it is contended that it is not open for the petitioners to challenge subjective satisfaction of the Designated Authority on the confidentiality aspect more particularly, when this exercise is done in confirmity with the provisions of Rule 8. 20. The submission of Mr. Soparkar for the petitioners is, however, that there is no confidentiality as to preliminary findings given by the Designated Authority as per Rule 12 of the Rules. Rule 12 reads as under : RULE 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; 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. 21. Despite Rule 12, the Designated Authority, while recording his findings in his order kept certain things confidential which is contrary to Rule 12 and against settled principles of law propounded by the Apex Court. 22. Mr. Chhaya, the learned Standing Counsel, however, submits that determination by the Designated Authority is nothing but information generated by the Designated Authority. Therefore, conclusion of the Designated Authority is also in the nature of information. The only difference is one is provided by the party and other is generated by the Authority. If information is generated by the Authority from confidential information provided by the authority, it does not loose its character of being commercially sensitive. Mr. Therefore, conclusion of the Designated Authority is also in the nature of information. The only difference is one is provided by the party and other is generated by the Authority. If information is generated by the Authority from confidential information provided by the authority, it does not loose its character of being commercially sensitive. Mr. Chhaya also refers to WTO Agreement (ADA) which provides as under :- “6.5 Any information which is by nature confidential (for example, because its disclosure would be of significant competitive advantage to a competitor or because its disclosure would have a significantly adverse effect upon a person supplying the information or upon a person from whom that person acquired the information), or which is provided on a confidential basis by parties to an investigation shall, upon good cause shown, be treated as such by the authorities. Such information shall not be disclosed without specific permission of the party submitting it. 6.5.1 The authorities shall require interested parties providing confidential information to furnish non-confidential summaries thereof. These summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted in confidence. In exceptional circumstances, such parties may indicate that such information is not susceptible of summary. In such exceptional circumstances, a statement of the reasons why summarization is not possible must be provided. 6.5.2 If the authorities find that a request for confidentiality is not warranted and if the supplier of the information is either unwilling to make the information public or to authorize its disclosure in generalized or summary form, the authorities may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.” 23. Based on the above provision, Mr. Chhaya submitted that the above agreement refers to “information by nature confidential regardless of whether it is supplied by parties or generated by the Authority. Since Govt. of India has obligations under WTO, it is not entitled to disclose even the confidential information generated during the course of investigations. He has further submitted that the difference and similarity between facts, information and conclusions needs to be understood. Parties are providing information, based on which Designated Authority comes to certain facts. Facts are ?processed or unprocessed information” and leads to conclusion. He has further submitted that the difference and similarity between facts, information and conclusions needs to be understood. Parties are providing information, based on which Designated Authority comes to certain facts. Facts are ?processed or unprocessed information” and leads to conclusion. Since facts are processed information and further since information is confidential, the facts are confidential, disclosure of which is prohibited under Rule 7. He has further submitted that Rules contemplate disclosure statement at the stage of Rule 16 i.e. just before final findings, which establishes that disclosure of facts is not contemplated at this stage. According to him, it is further established by the fact that no reference is made to normal value, export price and amount of dumping margin under Rule 12 (1). Since disclosure of facts is contemplated at much later stage, any request at this stage is premature. 24. The whole issue can be examined in light of the observations made by the Apex Court in (i) Sterlite Industries (India) Limited (Supra) and (ii) Reliance Industries Limited (Supra). In Sterlite Industries (India) Limited (Supra), it is held by the Apex Court as under : 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 treating all material submitted to it as confidential merely on a party asking that it be treated confidential. In our view, that is not the purport of Rule 7. Under Rule 7, the Designated Authority has to be satisfied as to the confidentiality of that material. Even if the material is confidential, the Designated Authority has to ask the parties providing information, on confidential basis, to furnish a non-confidential summary thereof. If such a statement is not being furnished then that party should submit to the Designated Authority a statement of reasons why summarization is not possible. In any event, under Rule 7 (3) the Designated Authority can come to the conclusion that confidentiality is not warranted and it may, in certain cases, disregard that information. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. It must be remembered that not making relevant material available to the other side affects the other side as they get handicapped in filing an effective appeal. Therefore, confidentiality under Rule 7 is not something which must be automatically assumed. Of course in such cases, there is need for confidentiality as otherwise trade competitors would obtain confidential information which they cannot otherwise get. But whether information supplied is required to be kept confidential has to be considered on a case to case basis. It is for the Designated Authority to decide whether a particular material is required to be kept confidential.” 25. While examining the scope of Rule 7, the Apex Court in Reliance Industries Limited (Supra) has observed as under :- “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 the 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.” 26. After referring to its earlier judgment in Sterlite Industries (India) Limited (Supra), the Apex Court further held in Reliance Industries Limited (Supra) that “excessive and unwarranted claim of confidentiality defeats the right to appeal. In the absence of knowledge of the consequences, grounds, reasoning and methodology by which the DA has arrived at its decision and made its recommendation, the parties to the proceedings cannot effectively exercise their right to appeal either before the Tribunal or this Court. This is contrary to the view taken by the Constitution Bench of this Court in S. N. Mukherjee's case (supra).” 27. If the impugned notification dated 25.05.2009 is examined in light of the above principles laid down by the Apex Court, it appears that the designated authority has mixed up the confidentiality as to information and confidentiality as to preliminary finding. If the impugned notification dated 25.05.2009 is examined in light of the above principles laid down by the Apex Court, it appears that the designated authority has mixed up the confidentiality as to information and confidentiality as to preliminary finding. After recording the preliminary finding in paragraph 13 of the notification that M/s. Cheminova India Limited supported by M/s. Excel Industries Limited, constitutes domestic industry and the initiation of the anti-dumping investigations by the authority is well within its jurisdiction under antidumping Rules and law in this regard. The designated authority started discussion on the issues regarding normal value, export price and dumping margin. While determination of normal value, the designated authority in paragraph 22 kept the figure of reasonable profit margin as blank of ex-factory cost, excluded interest and while constructing normal value, kept the figure of cost of raw materials, conversion cost, S.G. Expenses and finance cost, profit margin and constructed normal value as blank. Again in paragraph 23, while determining export price, figures of export volume, CIF export price per unit, price adjustments, ocean freight, insurance, commission, inland freight, other auxiliary fees, credit cost, bank charges, VAT differential, total adjustment, ex-factory cost of different importers are kept blank. Even while determining dumping margin in paragraph 25, the figures of normal value, export price, dumping margin and dumping margin percentage of different exporters are kept blank. While determining price effect of the dumped imports on the domestic industry, in paragraph 35, figures of selling price, price under cutting and cost of sales for the years 2004-05, 2005-06, 2006-07 and 2007-08 (period of investigation) are kept blank. While determining price under selling in paragraph 37, figures of non-injurious price and price underselling are kept blank. While discussing about the return of capital employed in paragraph 41, figures of return on capital employed and NFA basis for the years 2004-05, 2005-06, 2006-07 and 2007-08 (period of investigation) are kept blank. Similarly, while discussing about cash flow, cash profits of the domestic industry for the years 2004-05, 2005-06, 2006-07 and 2007-08 (period of investigation) are kept blank. While discussing effect of other non-listed parameters, in paragraph 61, under the heading of export performance of the domestic industry, figures of volume in metric ton for the different years are kept blank. Similarly, while discussing about cash flow, cash profits of the domestic industry for the years 2004-05, 2005-06, 2006-07 and 2007-08 (period of investigation) are kept blank. While discussing effect of other non-listed parameters, in paragraph 61, under the heading of export performance of the domestic industry, figures of volume in metric ton for the different years are kept blank. Similarly, while discussing the magnitude of injury and injury margin in paragraph 63, non-injurious price, landed price of imports, injury margin of different exporters are kept blank. 28. On the basis of the data and information available with the designated authority and after making use of that data and information, while arriving at preliminary finding, the designated authority has ultimately made recommendations in paragraph 67 taking the view that the imposition of provisional duty is required to offset dumping injury, pending completion of the investigation. The designated authority has also considered it necessary to recommend imposition of provisional anti-dumping duty on imports of subject goods from the subject nature. This whole exercise undertaken by the designated authority and withholding of certain relevant data of its preliminary finding is certainly causing prejudice not only to the petitioners but all importers and in absence of such data in respect of its finding, it is practically impossible for them to raise any objection or to make any effective submission. The data on its conclusions is not revealed by the D.A. under a claim of confidentiality under Rule 7. On reading the said provisions, we find that Rule 7 contemplates confidentiality only in respect of information and not conclusion or data of conclusion. The claim of confidentiality by D.A. is, therefore, not well found. This excessive claim of confidentiality defeats the right to appeal. In absence of knowledge of the consequences grounds, reasoning and methodology by which the designated authority has arrived at its decision and made its recommendations, the petitioners could not effectively exercise their right to raise an effective objection in order to ventilate their grievance before this Court in a purposeful manner. Even their right to appeal against the final finding is also put in to jeopardy. We, therefore, do not endorse the view taken by the designated authority so far as the confidentiality as to finding is concerned. The levy of provisional anti-dumping duty based on this preliminary finding cannot, therefore, be enforced against the petitioners. 29. Even their right to appeal against the final finding is also put in to jeopardy. We, therefore, do not endorse the view taken by the designated authority so far as the confidentiality as to finding is concerned. The levy of provisional anti-dumping duty based on this preliminary finding cannot, therefore, be enforced against the petitioners. 29. We, therefore, while not expressing any opinion on other issues decided by the designated authority in the impugned notification and reserving the petitioners' right to challenge at the time of final finding, we disapprove the preliminary finding of the designated authority on the issue of confidentiality and direct the designated authority to provide all necessary details of findings which are kept blank while recording his preliminary findings and permit the petitioners to raise their objections in this regard and while recording the final finding, the designated authority shall take into consideration such objections and submissions that may be made in this regard. Not only this, the designated authority shall take into consideration the issues raised by the petitioners with regard to the respondent No.4 and to decide as to whether they or their allied concerns have made any import of subject goods from China. The details as to finding recorded by the D.A. shall be provided to the petitioners. Till such exercise is undertaken by the designated authority and final finding is arrived at, the petitioners shall not be saddled with the levy of provisional anti-dumping duty on an import of subject goods from China on condition that the petitioners shall file an undertaking within one week from today before the designated authority that in the event they are held to be liable to pay anti-dumping duty on the import of subject goods that may be made, hereinafter from China, while recording final finding on this issue, they will pay such anti-dumping duty subject to their right to appeal and obtaining stay against such duty from any competent Court or Tribunal. 30. It is once again made it clear that we have not expressed any opinion on the other issues which are raised before this Court or on findings recorded by the designated authority and they are kept open and parties are at liberty to agitate before the appropriate forum while challenging final finding, if the occasion so arises. 31. Subject to the aforesaid observations and directions, this petition is accordingly disposed of. 31. Subject to the aforesaid observations and directions, this petition is accordingly disposed of. Rule is made absolute to the above extent only, without any order as to costs. 32. At this stage, a request is made on behalf of respondent Nos.3 & 4 to stay operation of this order to enable them to approach the higher forum, because the confidentiality aspect hurts them. In view of our finding on confidentiality, there is no question of any damage being caused to these respondents. It is also argued that direction not to impose anti-dumping duty on the goods to be imported by the petitioner is likely to affect the interest of the respondent Nos.3 & 4. In our opinion, as a consequence, legal judicial orders are not to be stayed on individual grounds. Therefore, the request cannot be acceded to.