Central Information Commission
Aritendu Das vs Chief Commissioner Of Customs, Kolkata ... on 6 June, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CCUKL/A/2022/656034
ARITENDU DAS ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
O/o DY. COMMISSIONER OF CUSTOMS,
BALMAR LAWRIE CFS, RTI CELL, P-3/1,
TRANSPORT DEPOT ROAD, KOLKATA-700088,
WEST BENGAL. .... ितवादीगण /Respondent
Date of Hearing : 05/06/2023
Date of Decision : 05/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 25/08/2022
CPIO replied on : 13/09/2022
First appeal filed on : 25/09/2022
First Appellate Authority order : 13/10/2022
Second Appeal dated : 19/10/2022
Information sought:
The Appellant filed an RTI application dated 25.08.2022 seeking the following information:1
"...INFORMATION REGARDING STATUS OF THE CARGO GOODS IMPORTED BY ADVANCE MACHINE TOOLS AGAINST FILLNG BILL OF ENTRY NO. 7071059 DATED 13.01.2022.
xxx Kindly supply me with the total number/quantity of cargo goods on which basis OOC was given by customs authority on 22.01.2022 & also supply me the inspection report of cargo goods by customs authority dated 22.01.2022..."
The CPIO furnished a reply to the appellant on 13.09.2022 and denied the information under Section 8(1)(j) of RTI Act.
Being dissatisfied, the appellant filed a First Appeal dated 25.09.2022. FAA's order dated 13.10.2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal on the ground of denial of information by the CPIO under Section 8(1)(j) of RTI Act ignoring the fact that Mrs Dipanwita Paul Das, the proprietor of M/s Advance Machine Tools is the wife of the Appellant.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Not present.
Respondent: Rajan Kumar Verma, Asst. Commissioner and CPIO present through video-conference.
The CPIO invited attention of the bench towards his latest written submission filed prior to hearing whereby he apprised the Commission as under -
"...2. The brief facts related to the case are as below:
on 22.01.2022, the authorised customs Broker, M/s. Maxim creating & shipping Forwarding Pvt. Ltd., of the importer approached customs for clearance of the above-mentioned consignment. on checking the said bill of entry in the EDI system, it was seen that the said consignment was facilitated through RMS (Assessment and Examination not prescribed for this BOE).2
The marks and nos. of the said goods were inspected on 22.01.2022 before giving ooc. The goods were presented by the CHA in three (03) pallets and 180 loose cartons. The same was also verified from the survey report of M/s J B Boda lnsurance Surveyors & Loss Assessors pvt Ltd, the authorised surveyor of the Custodian, Balmer Lawrie CFS (Copy enclosed as Annexure-
E). The goods were found in accordance with the declaration with respect to the import documents, viz Bill of Entry, lnvoice, Packing List etc. Accordingly, out of charge (ooc) was given for the said consignment on 22.01.2022 after inspection, which is stiil pending at PCV section due to non-payment of duty by the importer. The goods are still lying at Balmer Lawrie CFS.
The inspection report as given in the RCES is "checked marks and nos. also, checked declaration w.r.t. import documents. Also, complied with rms instructions(copy enclosed as Annexure_ F).
Notice dated 24.01.2022, addressed to the authorised cHA with a copy to the AC/DC Balmer Lawrie CFS, was received from Shri Prasenjit Burman, the Advocate of Mrs. Dipanwita paul Das, the proprietor of M/s Advance Machine Tools, calling for clarification regarding the said unauthorised Out of charge of the subject cargo imported by M/s Advance Machine Tools without any prior intimation. (copy enclosed as Annexure-G).
ln response to the said notice, the CHA, M/s Maxim clearing and shipping Forwarding Pvt Ltd, gave a reply with the detailed explanation of allegations made by the advocate of the importer. (copy enclosed as Annexure-H).
ln the meantime, a letter dated 31101t2022 was received from PSAFL Speedmark Forwarding Private Ltd, the freight forwarder of the subject imported cargo stating that "They came to know after arrival of the cargo from EMU Lines Pvt Ltd that four pallets were dismantled at the origin port and came as lBilcartons/pieces plus three pallets. We understand that the entire 330 pieces arrived at the port in totality but our client M/s Advance Machine Tools is disputing the arrival of the total shipment as four pallets were dismantled,,, (copy enclosed as Annexure-l).
3However, later on it was revealed that there is an error in the container no. mentioned in the said letter which reads 'TCMU30 s4161" instead of "TCNU3054161", which went unnoticed at that time. However, when it was revealed, the matter was brought to the notice of the freight forwarder and they responded with a letter dated 14/11/2022 stating that there was a typographical error and the container number should be read as'TCNU3054 1 61 140' instead of 'TCMU3 0s4161 l4o'. Moreover, there was no such container with no. 'TCMU3054161t40'. (copy enclosed as Annexure- J).
It is pertinent to mention here that recently this department has received a letter dated 24.02.2023 from PSAFL Speedmark Forwarding private Ltd, the freight forwarder of the subject imported cargo, enclosing a copy of e-mail dtd. 28.01.2022 quoting their communication with EMU k. Lines which clearly indicates that the origin port and there were total 330 cartons(copy enclosed-as Annexure-K).
A letter dated 28-01-2022 from the Addl. commissioner of customs issued vide C. No.Vlll(48)02lMisccorres/GenEnq/p&t/ccp MBt2o21-22-part2, was received, in which specific information was provided that sockets/capacitors fitted machines of foreign origin have been stocked inside the contained No. TCNU3054161t4o'and further necessary action was to be taken at this end (copy enclosed as Annexure-L). As the subject goods (LCL cargo), which are covered under BoE No. Tozlosg dated13.01 .2022, was imported in the same container, the goods were required to be examined.
Accordingly, letters dated xxx were issued to M/s. Advance Machine Tools (lmporter) and M/s. Maxim clearing & shipping Forwarding pvt. Ltd. (customs Broker) regarding examination of the goods covered under said BOE. The importer finally turned up on 04.03.2022 for examination of the goods but refused to participate in the examination process and left the examination area. The goods were examined 100o/o in presence of the representative of the custodian (B/L CFS), M/s EMU Lines pvt Ltd (consolidator), Freight Forwarder (M/s PSAFL speedmark Forwarding pvt Ltd), M/s JB Boda Surveryor (the authorised surveyor of the Custodian), M/s pacific Surveyor (the authorised surveyor of the shipping Line), authorised chartered Engineer of Balmer Lawrie CFS, the representative of the customs Broker, the officials of Customs and two independent witnesses. A total of 330 cartons were found (in 03 pallets and 1g0 loose cartons). copy of the Panchanama is enclosed as Annexure-M. 4 The examination findings along with the copy of Panchnama was intimated to the appellant importer vide letter dated 1s.03.2022 (copy enclosed as Annexure-N).
ln the meantime, WPA No 2450 of 2022 dated 17/o2/2o22 was filed by Mrs. Dipanwita Paul Das vs. The chief commissioner of customs & others regarding her alleged missing of goods. The Hon'ble High court vide order dated 17.02.2022 dismissed the same with the findings that "this is not a fit case for invoking Constitutional writ jurisdiction for the reason that the claim of the petitioner is against missing of her goods in question from the premises of a third party where the customs have got no role to play,'. (Annexure_O) m. The importer has not paid the customs duty till date and the goods are lying in the shed of Balmer Lawrie CFS.
(a) From the above facts, especially from the e-mail dtd.2g.01.2022, quoting the communication between psAFL speedmark Forwarding Private Ltd and EMU Lines, it is clearly evident that the goods were dismantled at the port of origin and reached at the Balmer Lawrie CFS in the same condition as they were loaded in the port of origin. The said e-mail also clearly states that there were total 330 cartons.
(b) Further, the department has given all the available documents and records as sought by the importer from time to time vide the importer's subsequent RTI applications.
(c) Further, it is pertinent to mention that the quantity of the goods as declared ln the Bill of Entry, is 7 pkgs in IGM details and 330 nos. in item details ln the Commercial invoice, is "330" ln the Packing List, is "330 pcs"
in" 7 packages, ln the Bill of lading is "7 Packages".
The goods as presented before the Customs authorities at the time of examination on 04.03.2022 were found to be 330nos/cartons.
ln the view of the above, it is seen that there is no discrepancy in the quantity of goods declared in the B/E, invoice, packing list and the quantity which arrived at 5 the CFS, i/e., 330 nos. Even the duty in the B/E has been calculated by the lcES as per the declared item, i.e., upon 330 nos.
1- lt is pertinent to mention that a reply dated 13.09.2022to the RTI Application dated 25.08.2022 was furnished to the appellant, Shri Aritendu Das, stating that the information sought pertained to a third party and, therefore, as per Section g (1) of the RTI Act, 2005, cannot be supplied to the applicant as the applicant has no relation with the importer. 2- Clarifications of the CPIO and Assistant Commissioner of Customs. Balmer Lawrie. on the qrounds of appeal made by the Appellant in his Appeal Application before the Ld. Central lnformation commission. Being aggrieved, the applicant filed an appeal before the First Appellate Authority vide Appeal dated 25.09.2022. The First Appellate Authority vide order dated 13'10.2022, rejected the said appeal on the grounds that the said applicant is no way related to the information sought for and the information sought for relates to third party. Further, it was stated that the applicant did not try to bring forward any circumstances which might relate him to the information sought for.
It is submitted here that the IEC (lmporter Exporter Code) pertaining to the concerned Bill of Entry is 0214031888, which, according to the DGFT website (copy attached as Annexure P), is registered against M/s. Advance Machine Tools, the proprietor of which is Mrs. Dipanwita Paul Das. The applicant of the RTI application dated 25.08.2022,Shri Aritendu Das, has nowhere mentioned in his application regarding his relation with M/s. Advance Machine Tools or with the Proprietor of M/s Advance Machine Tools. ln view of the above, the concerned RTI application was treated as a third party application and was replied accordingly. Hence, the applicant's contention that the provisions of the RTI Act, 2005 have been violated does not hold ground.
2- Further, it is pertinent to mention here that the Proprietor of M/s. Advance Machine Tools, Mrs. Dipanwita Paul Das, has filed multiple RTI applications till date on the same matter. The CPIO vide replies to these RTI Applications has provided specific information/document sought by her and which were available with the department at that particular point of time, except for those information sought which were not under the purview of the definition of "information" as per Section 2 (f) of the RTI Act, 2005. The documents which were later received in the department were also provided to the importer through replies to the subsequent 6 RTls. The information sought in the related RTI Application dated 25.08.2022 has also been provided in the subsequent RTI replies."
Decision:
The Commission observes from a perusal of records that the core contention raised by the Appellant in the instant Appeal was denial of information including the total number/quantity of cargo goods on which basis OOC was given by Customs authority on 22.01.2022 as also the inspection report of cargo goods by customs authority ; by the CPIO under Section 8(1)(j) of RTI Act. In this regard, the Commission arrives at the conclusion that the CPIO has appropriately denied the personal information of third party proprietorship which stands exempted from disclosure under Section 8(1)(j) of RTI Act. The same can be garnered from a bare perusal of the text of Section 8(1)(j) of the RTI Act as under:
"8. Exemption from disclosure of information.--
(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, Xxxx
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information;.."
In this regard, attention of the Appellant is also drawn towards a judgment of the Hon'ble Supreme Court of India in the matter of Central Public Information Officer, Supreme Court of India Vs. Subhash Chandra Agarwal in Civil Appeal No. 10044 of 2010 with Civil Appeal No. 10045 of 2010 and Civil Appeal No. 2683 of 2010 wherein the import of "personal information" envisaged under Section 8(1)(j) of RTI Act has been exemplified in the context of earlier ratios laid down by the same Court in the matter(s) of Canara Bank Vs. C.S. Shyam in Civil Appeal No.22 of 2009; Girish Ramchandra Deshpande vs. Central Information Commissioner & Ors., (2013) 1 SCC 212 and R.K. Jain vs. Union of India & Anr., (2013) 14 SCC 794.The following was thus held:
7"59. Reading of the aforesaid judicial precedents, in our opinion, would indicate that personal records, including name, address, physical, mental and psychological status, marks obtained, grades and answer sheets, are all treated as personal information. Similarly, professional records, including qualification, performance, evaluation reports, ACRs, disciplinary proceedings, etc. are all personal information. Medical records, treatment, choice of medicine, list of hospitals and doctors visited, findings recorded, including that of the family members, information relating to assets, liabilities, income tax returns, details of investments, lending and borrowing, etc. are personal information. Such personal information is entitled to protection from unwarranted invasion of privacy and conditional access is available when stipulation of larger public interest is satisfied. This list is indicative and not exhaustive..."
In view of the above and considering the absence of the Appellant during hearing, the Commission finds no scope for further intervention in the matter.
However, in pursuance to clause 4 of hearing notice, the CPIO is directed to share a copy of her latest written submission free of cost with the Appellant immediately upon receipt of this order under due intimation to the Commission.
The appeal is disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8