Central Information Commission
Ahsan M Hussain vs Central Board Of Excise And Customs - ... on 1 March, 2017
CENTRAL INFORMATION COMMISSION
Room No. 06, Club Building, Old JNU Campus
New Delhi -110067. Tel: 011 - 26182597, 26182598
Email: [email protected]
Appeal No.:-CIC/SB/A/2016/000215-BJ-Interim
Appellant : Mr. Ahsan Hussain
26/28 Gun Powder Road,
Fatima Apartment
Mazagaon -400010.
Respondent : CPIO & Dy. Commissioner of Customs,
O/o The Commissioner of Customs, NHAVA
SHEVA - I, III and V, 7TH Floor, Jawaharlal
Nehru Custom House, NHAVA SHEVA,
District Raigad - 400707, Maharashtra.
Date of Hearing : 24.01.2017, 20.02.2017
Date of Decision : 24.01.2017, 01.03.2017
Date of filing of RTI applications 26.05.2015
CPIO's response 04.06.2015
Date of filing the First appeal 04.07.2015
First Appellate Authority's response 03.08.2015
Date of diarised receipt of second appeal by the 02.01.2016
Commission
ORDER
FACTS:
The appellant, vide his RTI application sought information relating to copies of note sheet as well as correspondence from investigation file No. SG/Misc.
-167/2014 SIIB (I) JNCH from which a Show Cause Notice dated 25.11.2014 had been issued to appellant.
The CPIO, vide its letter dated 04.06.2015, stated that show cause notice had been issued and was pending adjudication. It was therefore submitted that providing information may impede the process of investigation or apprehension or prosecution of offenders, hence, the information sought was exempted under Section 8(1)(h) of the RTI Act, 2005. In support of its decision, the CPIO cited the Decision of the Commission in CIC/AT/A/2010/000611 and CIC/AT/A/2010/000673 dated 28.10.2010. Dissatisfied by the response of the CPIO, the appellant approached the FAA. The FAA, vide its order dated 03.08.2015 upheld the reply of CPIO. HEARING:
Facts emerging during the hearing on 24.01.2017: The following were present:Page 1 of 6
Appellant: Mr. Aditya Udeshi (Legal Intern) (M: 9619678003) appellant's authorized representative through VC;
Respondent: Absent;
The respondent remained absent despite prior intimation. The representative of appellant reiterated the contents of RTI application and stated that the respondent vide their letter dated 02.06.2015, denied the information under Section 8(1) (h) of the RTI Act, 2005. The first appeal of the appellant was also decided on similar lines vide order dated 03.08.2015. The representative of appellant contested that the basis on which information was denied from disclosure was a letter of Dy. Commissioner of Customs, SIIB (1), JNCH dated 02.06.2015, wherein it was only stated that a show cause notice was issued to the applicant vide letter dated 25.11.2014 and the same was pending adjudication. However, no substantial, reasoned and comprehensive response was provided as to how disclosure would impede the process of investigation. The representative of appellant drew reference to section 3 read with section 19 (5) of the RTI Act, 2005 to submit that the onus to prove that a denial of a request was justified was on the CPIO. In support of his contention, the appellant cited the decision of the Hon'ble High Court of Delhi in Bhagat Singh v. CIC & Ors.
WP(C) 3114/2007 to submit that mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would impede the investigation process. The representative of appellant also stated that he sought information regarding the basis on which show cause proceedings were initiated against the appellant. In support of his argument he referred to the observation of the High Court of Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007, mentioned as under
"15. As to the issue of whether the investigation has been complete or not, I think that the authorities have not applied their mind about the nature of information sought. As is submitted by the Petitioner, he merely seeks access to the preliminary reports investigation pursuant to which notices under Sections 131, 143(2), 148 of the Income Tax have been issued and not as to the outcome of the investigation and reassessment carried on by the Assessing Officer. As held in the preceding part of the judgment, without a disclosure as to how the investigation process would be hampered by sharing the materials collected till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. The CIC, even after overruling the objection, should not have imposed the condition that information could be disclosed only after recovery was made."
The respondent was not present to contest the submissions of the appellant or to substantiate their claims further. As per the records available with the Commission, the CPIO and the FAA relied upon the decision of the Commission in Shri Brijkishore Maniyar v. Customs, Central Excise and Service Tax, CIC/AT/A/2010/000611 and CIC/AT/A/2010/000673 dated Page 2 of 6 28.10.2010 to support their view that mere issuance of the show cause notice cannot be cited as conclusion of an investigation. The respondent further relied on the decision in Shankar Sharma and Others v. DCIT, CIC/A/A/2007/00007, 10, 11 dated 10.02.2007 and stated that when the matter was under investigation, either before or after the issue of show cause notice or after its issuance, any disclosure of relevant information would impede investigative process.
The Commission observed that the appellant had sought information relating to a matter pertaining to investigation against him and not against any third party. The information sought as per the RTI application related to copies of note sheet as well as correspondence from investigation file quoted in the RTI application wherein a reference was made to the showcause notice dated 25.11.2014 issued to the appellant. The Commission finds the following observation of the Hon'ble High Court Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 pertinent in this matter.
"13. Access to information, under Section 3 of the Act, is the rule and exemptions under Section 8, the exception. Section 8 being a restriction on this fundamental right, must therefore is to be strictly construed. It should not be interpreted in manner as to shadow the very right itself. Under Section 8, exemption from releasing information is granted if it would impede the process of investigation or the prosecution of the offenders. It is apparent that the mere existence of an investigation process cannot be a ground for refusal of the information; the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process. Such reasons should be germane, and the opinion of the process being hampered should be reasonable and based on some material. Sans this consideration, Section 8(1)(h) and other such provisions would become a haven for dodging demands for information."
Furthermore, the Hon'ble High Court of Delhi in B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 had held that :
"19. The question that arises for consideration has already been formulated in the Court's order dated 21st April 2011: Whether the disclosure of the information sought by the Petitioner to the extent not supplied to him yet would "impede the investigation" in terms of Section 8(1)(h) RTI Act" The scheme of the RTI Act, its objects and reasons indicate that disclosure of information is the rule and non-disclosure the exception. A public authority which seeks to withhold information available with it has to show that the information sought is of the nature specified in Section 8 RTI Act. As regards Section 8(1)(h) RTI Act, which is the only provision invoked by the Respondent to deny the Petitioner the information sought by him, it will have to be shown by the public authority that the information sought "would impede the process of investigation." The mere reproducing of the wording of the statute would not be sufficient when recourse is had to Section 8(1)(h) RTI Act.Page 3 of 6
The burden is on the public authority to show in what manner the disclosure of such information would 'impede' the investigation...............
22. ...........The mere pendency of an investigation or inquiry is by itself not a sufficient justification for withholding information. It must be shown that the disclosure of the information sought would "impede" or even on a lesser threshold "hamper" or "interfere with" the investigation. This burden the Respondent has failed to discharge."
The respondents were not present to substantiate their claims further or to demonstrate how the disclosure of information would impede the process of investigation in the matter as claimed by the appellant.
INTERIM DECISION:
Keeping in view the facts of the case and the submissions made by the appellant, the Commission directs the respondent CPIO to re-examine and address the issues raised by the appellant and putup their written submission for their absence on the date of the hearing of the second appeal within a period of 10 days from the date of receipt of this order.
The Dy. Registrar, CIC is instructed to fix another short date for hearing in the matter.
Note: Subsequently, the Dy. Registrar, vide its letter dated 02.02.2017 fixed 20.02.2017 as the next date of hearing in the matter HEARING:
Facts emerging during the showcause hearing on 20/02/2017: The following were present:
Appellant: Mr. Aditya Udeshi (Legal Intern) (M: 9619678003) and Mr. Stevin Mathew (Advocate) (M: 9920255997) appellant's authorized representatives through VC;
Respondent: Mr. C. P. Singh Chauhan, Dy. Commissioner, CBEC (M: 9819193032) through VC;
The representative of appellant re-iterated the contents of his RTI application and drew reference to para 8 of respondent's written submission dated 08.02.2017 wherein it was stated that process of investigation and prosecution of offenders were yet to be completed. It was however contended that as on date no prosecution was pending against the appellant. The representative of appellant further drew reference to provisions of the Customs Act, 1962 and related circulars and stated that the amount of goods for which the show cause notice was issued was Rs. 29,41,901/- (Rupees Twenty Nine Lakh Forty One Thousand Nine Hundred and One Only) which was below the threshold limit of Rs. 1,00,00,000/- for initiating prosecution. Furthermore, the appellant relied on the decision of the Hon'ble High Court of Delhi in Bhagat Singh v. CIC & Ors. WP(C) 3114/2007 and Page 4 of 6 B.S. Mathur v. PIO in W.P. (C) 295 of 2011 dated 03.06.2011 to contend that the respondent public authority would have to demonstrate that the information sought would impede the process of investigation.
The respondent while tendering its unconditional apology for not attending the last hearing held on 24.01.2017 submitted that the notice of hearing in the matter was received by them on 16.01.2017 and a written reply was sent by them vide letter dated 19.01.2017. It was submitted that the aforesaid written reply was also sent by fax on 23.01.2017. The respondent re-iterated the contents of his written submission dated 19.01.2017 and relied on para 11 and 12 of the decision of the Commission in Shri Brijkishore Maniyar v. Customs, Central Excise and Service Tax, CIC/AT/A/2010/000611 and CIC/AT/A/2010/000673 dated 28.10.2010 to support their view that mere issuance of the show cause notice cannot be cited to infer conclusion of an investigation.
The respondent also relied on the decision in Shankar Sharma and Others v. DCIT, CIC/A/A/2007/00007, 10, 11 dated 10.02.2007 wherein it was held that "investigation into tax evasion can be said to be over or complete, only after the final adjudication about the tax liability had been made after the matter has gone through all the stages of appeals and revisions as well as a final decision about prosecuting or not prosecuting that person has been taken by an appropriate competent authority." Furthermore, in support of its contentions, the respondent also relied upon the decision of the Commission in Shri Vija Kamble v. Customs Department, Mumbai in CIC/AT/A/2008/01466 dated 23.03.2009 and Shri Vinod Kumar Jain v. Directorate General of Central Excise Intelligence, New Delhi Appeal No. CIC/AT/A/010/000969/SS dated 20.07.2011.
The Commission vide its oral order directed the appellant to submit their written submissions in the matter within two days from the date of order.
Having received the written submission in the matter from the appellant dated 23.02.2017, the Commission pronounces its decision as under
The representative of appellant in its written submission dated 23.02.2017 while re-iterating his submissions made during the last hearing stated in para 5 that in light of the various provisions of the RTI Act, 2005 and statement of objections and reasons, access of information under section 3 is a rule and denial of the same under section 8, an exception. The representative of appellant in para 11 of his written submission submitted that information was being withheld in a mala fide manner with the sole objective of harassing the appellant. A reference was also drawn in para 12 of the written submission dated 23.02.2017 to section 135 of the Customs Act, 1962, as per which a person shall be punishable in a case pertaining to allegation of mis-declaration only if the market price of the goods exceeded Rs. 1,00,00,000/- (Rupees One Crore Only). The representative of appellant also cited paragraph 4.2.1.2 of the circular bearing No. 27/2015- Customs Page 5 of 6 dated 23.10.2015 issued by the Central Board of Excise and Customs pertaining to guidelines for launching prosecution in relation to offences punishable under the Customs Act, 1962 and stated that in the present case, as per the show cause notice the value of the goods was Rs. 29,41,901/- (Rupees Twenty Nine Lakh Forty One Thousand Nine Hundred and One Only). The appellant also contended in para 14 of his written submission that reliance by the respondent on the order of the Commission in Shri Brijkishore Maniyar versus Customs, Central Excise and Service Tax was completely misplaced since the order was per incuriam and contrary to the position settled by the Hon'ble Delhi High Court.
INTERIM DECISION:
Keeping in view he facts of the case and the submissions made by both the parties, the Commission while exercising its power under section 19(8) (a) of RTI Act, 2005 read with rule 11 (ii) of the RTI Rules, 2012 directs the respondent Mr. C. P. Singh Chauhan, Dy. Commissioner, CBEC to depute a person to produce documents/ record regarding the information sought by the appellant in a sealed cover on 27.03.2017 at 02:30 P.M for the perusal of the Commission. The records/ documents produced shall be returned by the Commission subsequent to necessary perusal/ inspection.
(Bimal Julka) Information Commissioner Authenticated True Copy:
(K.L.Das) Deputy Registrar Page 6 of 6