28 三月 2023

Anti-dumping Rules are not inconsistent with RTI Act – Disclosure of ‘confidential information’ is not possible

In an interesting dispute involving interplay of anti-dumping proceedings under the Customs Tariff Act, 1975 and the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (‘Anti-dumping Rules’) with the Right to Information Act, 2005 (‘RTI Act’), the Delhi High Court has held that there is no inconsistency between the provisions of the RTI Act and the Anti-dumping Rules. According to the Court, the entire purpose of having a complete and self-sufficient scheme for disclosure of confidential information under the Anti-dumping Rules would be defeated if persons who are participating in anti-dumping investigation are permitted to tangentially seek information under the RTI Act.

The High Court, by its Judgement dated 23 March 2023, hence set aside the order of the Central Information Commission, directing the Anti-dumping Authority to provide the information regarding a note sheet relating to initiation of anti-dumping investigation, containing various portions of information which, according to the Court, may be confidential to the Applicants who had asked to initiate anti-dumping investigations.

It was of the view that the Anti-dumping Authority is vested with specialised knowledge relating to the trade as also the exclusive knowledge in respect of anti-dumping proceedings, and that such knowledge would enable the said Authority to take a considered decision as to whether the particular information is to be disclosed or not. It also noted that such expertise does not vest with the CPIO/PIO or other authorities under the RTI Act.

The High Court in the case Union of India v. Arvind M Kapoor was also of the opinion that the imposition of anti-dumping duty and confidential information disclosed in such proceedings would have a significant impact on the economic interest and trade relations of India, as also would constitute information received by the authority in confidence, in the course of adjudication, which cannot be subjected to disclosure. It observed that the level of recognition accorded to preserving confidentiality of information in the larger interest of global trade, countries involved, entities from different countries who could be exporters, importers and other stakeholders, cannot be ignored and deserves to be protected and recognized.

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