Order
1. All these appeals are against the order of the Customs, Excise and Gold (Control) Appellate Tribunal (cegat) dated 13-12-2000.
2. Briefly stated, the facts are as follows:
M/s Sterlite Industries (India) Limited made a complaint to the Designated Authority that optical fibre was being dumped in India. On the basis of that complaint inquiry was conducted. The Designated Authority proposed levy of anti-dumping duty. Pursuant to that, notification dated 28-6-2000 bearing No. 94/2000-Customs came to be issued. Three appeals were filed before cegat. Cegat has set aside the notification by the impugned order.
3. In our view, it is not necessary for us to go into the merits of this matter as we propose 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 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 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 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. Even where confidentiality is required, it will always be open for the Appellate Authority, namely, cegat to look into the relevant files.
4. In this case, we find that cegat has held in favour of M/s Sterlite Industries (India) Limited on the aspect of margin of dumping, injury suffered by domestic industry and causal connection between dumping and material injury. cegat has, however, quashed the notification on the ground that the Designated Authority has wrongly taken the production capacity of M/s Sterlite Industries (India) Limited at 10 lakh km during the period of investigation i.e from 1-4-1998 to 28-2-1999. According to cegat the production capacity during the period of investigation was not 10 lakh km. We have also examined the file and we find that the conclusion of cegat that the Designated Authority had taken the production capacity at 10 lakh km is not correct. Even otherwise, we find that the approach of cegat is wrong. Once it comes to the conclusion that there was dumping and that the domestic industry was injured, merely on the ground that the Designated Authority did not properly assess the injury, cegat cannot set aside the order of the Designated Authority or the notification. In such cases it is the duty of cegat to rework the figures and decide what, if any, should be the anti-dumping duty.
5. For these reasons, we set aside the impugned order and remit these appeals back to cegat for decision on merits. We clarify that cegat 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.
6. It is claimed that the three appellants before cegat have now become manufacturers in India. This is denied by M/s Sterlite Industries Limited. However, in our view, it is not necessary to get into this controversy as even if the appellants do not press their appeals it will always be open for the other respondents, in those appeals, who are affected parties, to challenge the levy of anti-dumping duty on all grounds legally available to them.
7. cegat is requested to dispose of all these appeals as expeditiously as possible and in any event within a period of three months from today.
8. Accordingly, these appeals stand disposed of. There will be no order as to costs.