Central Information Commission
Shri Vijay Kamble vs Customs Department, Mumbai on 23 March, 2009
CENTRAL INFORMATION COMMISSION
.....
F.No.CIC/AT/A/2008/01466
Dated, the 23rd March, 2009.
Appellant : Shri Vijay Kamble
Respondents : Customs Department, Mumbai
This matter came up for hearing on 19.03.2009. Appellant was present through his authorized representative, Shri S.L. Bhatia, while the respondents were represented by Shri R. Rajendran, Assistant Commissioner.
2. RTI-application of the appellant dated 30.09.2007 referred to copies of show-cause notices and other documents relating to the proceeding by Directorate of Revenue Intelligence (DRI) and currently under adjudication by Commissioner of Customs (Exports).
3. Through their replies dated 29.10.2007, the CPIO and dated 17.12.2007 the Appellate Authority declined to disclose the information variously citing Sections 8(1)(d), 8(1)(h) and Section 8(1)(j) of the RTI Act. It was the conclusion of the respondents that the information sought by the appellant properly was in the domain of the third-party, whose interest would be affected if this information were to be disclosed.
4. Appellant has countered this argument stating that respondents were wrong in holding that the entire range of information was exempt under the several Sections of the RTI Act. He points out that there has been little application of mind because if the respondents so wished, they could well have supplied to him the information not attracting the exemption Sections of the RTI Act.
5. Appellant has further argued that respondents had not carried out third-party consultations under Section 11(1) of the RTI Act before rejecting the appellant's plea. He believes that there was public interest in the disclosure of the requested information which, according to him, outweighed the harm to the protected interest in terms of Section 8(2) of the Act. He has further urged that Section 124 of the Customs Act cannot be invoked in this case to decline the information to the appellant as there is no provision in this Section of the Customs Act to decline copies of the show cause notices and other documents to a person who applies for it. Appellant has argued that the requested disclosure of AT-23032009-13.doc Page 1 of 4 information could not in any way harm the competitive position of the third- party. The information relates to the year 1997-1999, which was over 10 to 12 years ago, and no objection at any time has been raised by any exporter about disclosure of the requested information.
6. Appellant has further argued that it cannot be held that the disclosure of the requested information could impede the process of investigation or prosecution. All investigations in this matter are long over. The issue of the show cause notice under Section 124 of the Customs Act signals conclusion of the investigation. Nothing what the respondents have stated would show that disclosure of this information could impede an investigative process.
7. Appellant believes that the disclosure of the requested information would show the massive fraud which caused loss of public money 'to the tune of hundreds of crores of rupees' and he, as an alert citizen, was helping the State by exposing the 'fraud'. According to the appellant, unnecessary secrecy has been allowed to surround the decision-making process relating to, what he believes, was recovery of over Rs.67 crores defrauded in the claims of duty drawbacks sanctioned by the Customs authority to the fraudster-exporters. A sum of Rs.424 crores was reimbursed to the alleged fraudster-exporters as export proceeds.
8. Appellant has urged that "if entire information sought cannot be provided, the information may be provided partly which is not exempted from disclosure".
9. Respondents have stated that following the receipt of appellant's RTI-application, they had called upon the third-parties numbering 12 to file their objections under Section 11(1) of the RTI Act. Five of those parties filed their objections to the disclosure. Respondents thereafter concluded that all third-parties were opposed to disclosure of the requested information.
10. In their comments filed before the Commission, respondents have reiterated their point that the subject matter of this RTI-query was regarding evidence in an ongoing investigation conducted by Commissioner of Customs (Exports). Disclosure of any information at this stage would hamper the current investigation. During the hearing, respondents submitted that any process of investigation needs to be protected from intrusive intervention of third-parties claiming to be do-gooders. Unless the investigation is allowed to be conducted in the letter and spirit of the law ⎯ in this case the Customs Act ⎯ and if unconnected persons are allowed to intervene in the proceeding through intrusive enquiries, it would be difficult to maintain the integrity of the investigative process, expose the investigating and the adjudicating officers to external influences and duress and prevent them from concentrating on the case on hand. They also pointed out during the hearing that the adjudicating process was a AT-23032009-13.doc Page 2 of 4 quasi-judicial proceeding and in terms of the full Bench decision of the Commission Rakesh Kumar Gupta Vs. Income Tax Appellate Tribunal (ITAT); Appeal No.CIC/AT/A/2006/00586; Date of Decision: 18.09.2007, it is beyond the scope of the RTI Act. If intervention for disclosure of information germane to an ongoing adjudication process is allowed, it will lead to questions being asked about proceedings before judicial courts and even the superior Courts. This should go against the scheme of separation of powers under the Constitution of India.
11. Respondents have argued that the disclosure of information as requested by the appellant would go counter to the provisions of Section 8(1)(d) as well as Section 8(1)(j) of the RTI Act as the matter was relating to the commercial interests of the third-parties besides being personal to those third-parties.
Decision:
12. Certain key aspects of this particular appeal relating to the information are: (i) the information is relating to a current adjudication proceedings before the Commissioner exports; (ii) matter was investigated by the Directorate of Revenue Intelligence, whereafter it was transferred to the Commissioner (Exports) for further adjudication; (iii) the adjudication proceedings are presently going on; (iv) the information relates to twelve third-parties, seven of which have objected to its disclosure on the ground of these items of information being their commercial confidence besides being personal to them; (v) Commissioner Customs (Export) has issued show cause notices to all 12 parties as a prelude to conduct the adjudication and (vi) matter has been hanging fire since 1998.
13. Both appellant and respondents have brought-forth multiple aspects of this case in the context of the provisions of the RTI Act. The principal factor, which needs to be addressed, nevertheless, is whether the proceedings before Commissioner of Customs ⎯ admittedly a quasi-judicial proceeding ⎯ would admit of action under the RTI Act. It has been the decision of the Commission in Rakesh Kumar Gupta Vs. Income Tax Appellate Tribunal (ITAT); Appeal No.CIC/AT/A/2006/00586; Date of Decision: 18.09.2007 that once it is established that a certain information requested by an applicant is related to a quasi-judicial proceeding, RTI Act cannot be invoked to access the information related to that proceeding.
14. That full Bench decision is entirely applicable to the present case. In view of this, it will not be possible for me to allow disclosure of the requested information.
15. Appeal disposed of with these directions.
AT-23032009-13.doc Page 3 of 4
16. Copy of this direction be sent to the parties.
( A.N. TIWARI ) INFORMATION COMMISSIONER AT-23032009-13.doc Page 4 of 4