Central Information Commission
Mr.R K Jain vs Department Of Revenue on 29 August, 2013
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/SS/A/2012/003663/LS
File No.CIC/SS/A/2012/003664/LS
File No.CIC/SS/A/2012/003665/LS
( R.K. Jain -Vs- Department of Revenue )
Dated : 29.08.2013
This matter was initially heard on13.8.2013. The proceedings of the day are
extracted below :-
File No.CIC/SS/A/2012/003663/LS
File No.CIC/SS/A/2012/003664/LS
File No.CIC/SS/A/2012/003665/LS
Appellant : Shri R.K. Jain
Public Authority : Tax Research Unit/Department of Revenue.
Date of hearing : 13.08.2013
Date of decision : 13.08.2013
Facts :-
The above cited three appeals are heard today dated 13.08.2013. As a common question of law is raised in these appeals, it has been decided to dispose them of through a consolidated order. Appellant present. TRU is represented by Shri Santosh Kumar Vatsa, Deputy Commissioner(CPIO). The case-wise position is as follows :-
File No.CIC/SS/A/2012/003663/LS :-
2. In the RTI application dated 27.8.2012, the appellant had sought the following information :-
"(A) Please provide inspection of the file from which Notification No. 12/2012-Cus. Dated 17.3.2012 was issued.
(B) Please provide inspection of the digital data/copy of notification No. 12/2012-Cus. Dated 17.3.2012 sent to the Govt. of India Press for publication of Gazette and to the Directorate of Systems for putting the same on website.
(C) Please also provide certified copy of the serial No. 148 of the aforesaid notification as on 25.8.2012.1
Note : The above information is required in public interest as there are different versions of the aforesaid Notification appearing in the Gazette of India Official website and signed copy of the aforesaid notification issued by the Finance Minister."
3. Through letter dated 31.8.2012, the CPIO had refused to disclose this information on the ground that disclosure of information regarding budget making exercise even in respect of past budgets could seriously compromise the economic interests of the nation. Para 04 of his letter is extracted below :-
"4. Hence, you are not permitted to inspect the files relating to the issue of lNotification No. 12/2012-Customs, dated 17.03.2012. Such files are classified as TOP SECRET. Any disclosure of how such budget-making exercise was conducted and approval were taken in respect of any proposal may impact the future budget making process. In this regard, I also place reliance upon CIC judgment in the case of Shri Shanmuga Patro Vs Department of Revenue (TRU), F. No. CIC/AT/A/2008/01395 dated the 31st July, 2009, where Hon'ble Information Commissioner has held that "there is no scope to disclose such consultations as the Finance notification is only the next step in the chain of implementation of the parliament's approval of the Budget and the Finance Bill." Any disclosure of information regarding the budget making exercise in respect of even past budgets can also seriously compromise the economic interest of the nation. However, a copy of S. No. 148 of Notification No. 12/2012-Customs, dated 17.03.2012 as appearing in the Gazette of India, is enclosed. This reflects the correct position and has not been amended so far. It is also informed that an inadvertent typographical error ["-"instead of "5" appearing in column (6) of S. No. 148(B)] had taken place while sending the soft copy of updated version of the Notification for uploading on the departmental website. The same now stands corrected. "
4. On appeal, the Appellate Authority, in order dated 4.10.2012, had upheld the decision of the CPIO.
File No.CIC/SS/A/2012/003664/LS :-
5. In RTI application dated 18.6.2012, the appellant had sought the following information :-
"(A) Please provide the copies of the all the note sheets and correspondence pages of file No. 334/1/2012-TRU.
(B) Please provide copy of all note sheets and correspondence pages regarding issue of corrigenda F. No. 334/1/2012-TRU dated 19.3.2012 for 2 Notification No. 12/2012-Cus and Notification No. 20/2012-Cus dated 17.3.2012.
(C) Please provide the inspection of all records, documents, files, note sheets, correspondence regarding issue of Corrigendas to Central Excise, Customs and Service Tax Notifications from 1.1.2012 till the date of providing the information."
6. Through letter dated 25.6.2012, the CPIO had refused to disclose this information under section 8(1)(a) of the RTI Act. In pursuance of the orders of the Appellate Authority, the CPIO had also passed a detailed order on 29.8.2012 affirming his earlier decision regarding the non-disclosure of requested information.
File No.CIC/SS/A/2012/003665/LS :-
7. In the RTI application dated 18.5.2012, the appellant had sought the following information :-
"(A) Please provide inspection of all records, files, documents, correspondence and note sheets for Notification No. 24/2012-C.E. dated
8.5.2012.
(B) Please provide copy of all note sheets and correspondence in relation to issue of any corrigenda to the said notification.
(C) Please provide date and time and copy of the aforesaid notification including digital copy of the email sent to Directorate of System for uploading on CBEC/DOR website.
(D) Please provide date and time and copy of the aforesaid notification including digital copy of the email sent to Directorate of System for uploading on CBEC/DOR website, subsequently with a different version.
(E) After providing the above information, please provide inspection of all records, documents, note-sheets and files relating to the information as referred to in clause (A) to (D) above. Please provide inspection of complete file(s) even if they contain part of the information."
8. Again, the CPIO, in order dated 20.6.2012, had refused to disclose this information under section 8(1)(a) of the RTI Act. On appeal, the first Appellate Authority in order dated 3.10.2012 had upheld the decision of the CPIO.
9. The appellant has filed three separate appeals against the orders passed by the CPIO and Appellate Authority referred to herein above. The first and foremost submission of the appellant is that he has sought the background material leading to the issue of notifications which are subject matter of his RTI requests. These notifications were issued under section 5A of the Central Excise Act, 1944 a day after 3 the presentation of the budget in the Parliament. It is his contention that these notifications are not a part of the budget. The proximity of issue of these notifications with the presentation of the budget does not and cannot make them a part of the budget. Further, the materials on the basis of which these notifications have been issued cannot be said to be budget making process in as much as these notifications continue to be issued by throughout the year from time to time. This clearly demonstrates that neither the notifications nor the material on the basis of which these notifications have been issued from time to time can be said to be a part of the budget making process. Therefore, the plea taken by the CPIO and Appellate Authority that disclosure of requested information would harm or injure the economic interests of the nation is not correct.
10. The appellant further submits that section 8(1)(a) bars disclosure of information which would, inter-alia, prejudicially affect the economic interests of the State. The disclosure of budget or budget related documents cannot be interpreted to mean that it would harm the economic interests of the State.
11. It is his further submission that after the presentation of the budget in the Parliament, disclosure of documents relating to the budget ipso facto does not harm the economic interests of the State and, therefore, is not barred from disclosure.
12. His further contention is that total reliance on the order dated 31.7.2009 passed by a coordinate bench of the Commission in Shanmuga Patro -Vs- Department of Revenue(TRU) (File No. CIC/AT/A/2008/01395 & 01396) would not be expedient as it leaves scope for disclosure of some information after applying severability clause under section 10(1) of the RTI Act. In other words, it is his contention that blanket denial of information on the basis of the aforesaid decision is not in line with the provisions of the RTI Act.
13. The appellant also relied on order dated 8.12.2010 of a Coordinate Bench of this Commission in Girish Chandra Joshi -Vs- Department of Revenue(TRU) (File No. CIC/AT/A/2010/000729) in which the Commission had held that any documents which are not connected with the budget or budget making process are likely to be disclosed and the ratio of this decision squarely applies in appeal No. CIC/SS/A/2012/003664.
14. The appellant has also relied on the Kerala High Court judgment dated 15.6.1960 in State of Kerala -Vs- K.A. Balakrishna (AIR 1961 Ker 25) wherein the court held that the budget matters are guarded secrets until the budget is actually presented in the Legislature. In other words, after the budget has been presented in the Legislature, the secrecy attached to the budget disappears and entire material becomes open to the public.
15. On the other hand, Shri Vatsa has enthusiastically supported his own decisions taken as CPIO as also those of the first Appellate Authority. His first and foremost submission is that the materials sought by the appellant are contained in the files of the Department of Revenue, Ministry of Finance, which have been marked Top 4 Secret. His further submission is that this material is directly connected with the budget making process. Even after the presentation of the budget in the Parliament, disclosure of this information may injure the economic interests of the State as disclosure of this information would enable the vested interests to take business decisions to the detriment of the national interest. Shri Vats has primarily relied on decision dated 31.7.2009 passed by a Coordinate Bench of the Commission in Shanmugu Patro -Vs- Department of Revenue, para 19 whereof is extracted below :-
"19. More importantly, however, as spelt-out by the Appellate Authority in his order, the Finance Notification mentioned in appellant's RTI-application was issued only as a sequel to the approval of the budget and the Finance Bill by the Parliament, in order to give effect to the legislative approval of the budget. It follows from it that the Finance Notification was not the result of any consultation as assumed by the appellant, but it was issued as per the extant legislative process in which the provisions of the Finance Bills are implemented through the notification issued by the Ministry of Finance. The sequence of activity, therefore, leads little room for consultations, meetings and so on as assumed by the appellant. It is customary for the Ministry of Finance to engage in elaborate consultations prior to formulating the budget proposals to be submitted to the Parliament. But this exercise is not the subject-matter of this appellant's query. And, even if it were to be so, it would have been fully covered by the exemption under Section 8(1)(a) of the RTI Act. Any disclosure of how the budget-making exercise was conducted in respect of previous projects or is being conducted in respect of the present one, has the potentiality to impact the budget-making exercise and thereby impair the nation's economic interest. It would be facetious to argue that the process of the past budget exercise cannot be seen as impacting future budget-making. Disclosure of information regarding the budget-making exercise in respect of even past budgets, can potentially promote rumour-mongering, innuendos and speculation about why the government engaged in a certain type of exercise and not the other in respect of a given past budget, which can seriously compromise economic interests of the nation at any given point in time. It is, therefore, better to be safe than sorry and not to venture into the uncharted territory of directing disclosure of budget exercise-related information ? no matter whether past or present ? which can lead to unforeseen consequences to the nation's economy."
16. In view of the above discussion, Shri Vatsa is hereby directed to produce atleast three files relating to the matter in hand before the Commission on 22.08.2013 at 1100 hrs."
52. The matter was further heard on 22.8.2013. The proceedings of the day are also extracted below :-
"
"This is in continuation of this Commission's proceedings of 13.8.2013. As scheduled, the matter is heard today dated 22.8.2013. Appellant present. The public authority is represented by Shri Santosh Kumar Vats, Technical Officer (CPIO) and Shri Girish Pai, Director (AA). The appellant submits a written representation before the Commission which is taken on record. A copy thereof is also served to the respondent.
2. The above named officers submit that the relevant records are not in their custody and that they have to seek the permission of the competent authority for their production before the Commission and they request for short adjournment. In the premises, the matter is adjourned to 29th August, 2013 at 1100 hrs."
3. As scheduled, the matter is further heard today dated 29.08.2013. Appellant present. The Department of Revenue is represented by Shri P.K. Mohanty, Joint Secretary; Shri Santosh Kumar Vats, Technical Officer(CPIO) and Shri G.G. Pai, Director(AA).
4. At the threshold of the hearing, Shri Mohanty submits that the 'competent authority' has taken a decision not to produce the relevant records before the Commission, as directed in para 16 of the proceedings of 13.8.2013.
5. Shri Mohanty has addressed the Commission at length on the merits of the matter. His main submissions are as follows :-
(i) A Coordinate Bench of the Commission has already held that budget related documents are confidential and donot fall in public domain. As the appellant is seeking budget related documents, this decision is binding on this Bench.
(ii) The notifications mentioned in the RTI applications filed by the appellant are quint essentially part of the budget making process. The secrecy of the budget has to be maintained under all circumstances for obvious reasons until its presentation before the Parliament and the Presidential assent. As the notifications are a part of budget making process, the material on the basis of which these notifications have been issued also become a part of the budget making process and, therefore, cannot be disclosed under section 8(1)(a) of the RTI Act as doing so would impair the economic interests of the State.
(iii) A Coordinate Bench of the Commission has held in decision dated 31.7.2009 that disclosure of any material relating to the budget making exercise undertaken in the past may impact budget making process in future and disclosure thereof can potentially harm the economic interests of the State. In addition to para 19 of the said decision, Shri Mohanty also relies on para 20 thereof which is extracted below :-6
"20. It was also pointed out during the hearing by the respondents that it is quite common for Finance Notifications to be called in question through court proceedings by interested parties. These proceedings linger long after budgets are prepared and approved by Parliament and their provisions implemented through Finance notifications. Bringing out into the open the processes through which government prepares the budget proposals for approval of Parliament, given the complexity and the elaborate nature of these processes, can be used selectively by interested parties to sow confusion and, to misinterpret government decisions for promoting Private agendas. According to them, the notification about "the Pan Masala Packing Machines (Capacity Determination and Collection of Duty) and the rates of duty on Pan Masala" was one such which generated considerable debate and legal activity much after the notification was issued largely because the action of the government made it impossible for certain unscrupulous elements to evade taxes due to the State."
(iv) In the budget making process, the Ministry of Finance receives a plethora of representations from the stake holders. These representations are duly considered by the Department of Revenue. These representations contain competing claims of the parties. After a thoughtful consideration of these representations, the Department of Revenue takes a conscious decision regarding the imposition or reduction of duties etc. Disclosure of the material on the basis of which these notifications are issued would give out the tone and tenor of the policy making process in the Department of Revenue thereby enabling vested interests to anticipate the policy making processes in future and thereby adversely affect the economic interests of the State.
(v) The preamble to the RTI Act 2005 contemplates disclosure of such information as is consistent with the efficient functioning of the Government. Disclosure of requested information would adversely affect the efficient functioning of the Department of Revenue in its budget making process. Besides, such disclosure would encourage litigation thereby impeding the enforcement of taxation laws with attendant adverse consequences for the revenues of the Government.
(vi) Information contained in the relevant files is of third party relating to commercial interests of such parties. Disclosure of such information is barred from disclosure under section 8(1)(d) of the RTI Act.
(vii) Besides, the Government receives huge information/suggestions/representations from various Ministries, trade bodies and individuals in fiduciary capacity while 7 preparing the budget. These entities send their suggestions to the Department of Revenue in trust and under the belief that this information would be kept confidential by the Department. Disclosure of this information would amount to breach of confidence on the part of the Department of Revenue and, thus, this information is barred from disclosure under section 8(1)(e) of the RTI Act.
(viii) His last submission is that disclosure of requested information would not be in the larger public interest for reasons cited above.
6. On the other hand, Shri R.K. Jain would repudiate the contentions of Shri Mohanty on the grounds mentioned herein-after :-
(i) His first and foremost contention is that he has sought inspection of files from which these notifications have been issued. These documents are not the documents relating to the budget or the budget making process. He buttresses his argument by submitting that notification No. 12/2012-Customs dated 17.3.2012 was amended 26 times within a period of one and a half years by the following notifications :-
1. Amended by Notification No. 23/2012-Cus. Dated 20.3.2012
2. Amended by Notification No. 24/2012-Cus. Dated 28.3.2012
3. Amended by Notification No. 25/2012-Cus. Dated 30.3.2012
4. Amended by Notification No. 26/2012-Cus. Dated 18.4.2012
5. Amended by Notification No. 31/2012-Cus. Dated 08.05.2012
6. Amended by Notification No. 39/2012-Cus. Dated 12.6.2012
7. Amended by Notification No. 43/2012-Cus. Dated 27.6.2012
8. Amended by Notification No. 45/2012-Cus. Dated 13.7.2012
9. Amended by Notification No. 46/2012-Cus. Dated 17.8.2012
10. Amended by Notification No. 47/2012-Cus. Dated 21.8.2012
11. Amended by Notification No. 49/2012-Cus. Dated 10.9.2012
12. Amended by Notification No. 51/2012-Cus. Dated 13.9.2012
13. Amended by Notification No. 54/2012-Cus. Dated 17.9.2012
14. Amended by Notification No. 55/2012-Cus. Dated 18.9.2012
15. Amended by Notification No. 59/2012-Cus. Dated 21.11.2012
16. Amended by Notification No. 62/2012-Cus. Dated 21.12.2012
17. Amended by Notification No. 1/2013-Cus. Dated 22.1.2013
18. Amended by Notification No. 2/2013-Cus. Dated 23.1.2013
19. Amended by Notification No. 12/2013-Cus. Dated 1.3.2013
20. Amended by Notification No. 18/2013-Cus. Dated 26.3.2013
21. Amended by Notification No. 21/2013-Cus. Dated 18.4.2013
22. Amended by Notification No. 25/2013-Cus. Dated 8.5.2013
23. Amended by Notification No. 27/2013-Cus. Dated 10.5.2013
24. Amended by Notification No. 28/2013-Cus. Dated 16.5.2013
25. Amended by Notification No. 30/2013-Cus. Dated 21.5.2013
26. Amended by Notification No. 31/2013-Cus. Dated 5.6.2013"8
It is his contention that if the notifications under reference were to be treated as a part of budget making process, then the issue of as many as 26 amendment notifications through out the year would also necessarily have to be treated as part of the budget making process but such an interpretation would be absurd and against common-sense. According to Shri Jain, the notifications issued by the Department of Revenue to implement policy decisions of the Government from time to time are independent of the budget making process. Viewed in this light, the order passed by a Coordinate Bench of this Commission in Shanmugu Patro case has no application in the present case. He, thus, repudiates the contention of Shri Mohanty that this Bench is bound by the decision rendered in Shanmugu Patro case.
(ii) It is also Shri Jain's contention that different versions of Notification No. 12/2012-Customs dated 17.3.2012 are in circulation in the market thereby creating confusion in the minds of the stake holders. In view of this, there is ample justification for giving inspection of the files from which this Notification has been issued.
(iii) It is also his contention that the information was denied to him under clause (a) of section 8(1). Shri Mohanty has taken additional grounds by involving clauses (d) and (e) of section 8(1). This is not permissible in law at the second appeal stage, being violative of the principles of natural justice.
(iv) The records are being maintained by the Department of Revenue in its official capacity. As per his information, the representations received by the Department of Revenue from various sources are not marked 'secret' or 'confidential'. These records are being maintained in the natural course of business and fall in the ambit of section 2(f) of the RTI Act and are not barred from disclosure under section 8(1)(a), let alone under clauses (d) and
(e). Even so, he would make a concession that if any documents are genuinely 'confidential', it is open to the CPIO to invoke severability clause under section 10(1) of the RTI Act.
(v) Further more, if Shri Mohanty's argument is accepted that the relevant files contain third party information, then the CPIO should have followed the procedure of section 11(1) but this has not been done.
(vi) Lastly, Shri Jain relies on clause (c) of section 4(1) according to which the Public Authority is required to "publish all relevant facts while formulating important policies or announcing the decisions which affect public". According to him, issue of notifications under reference is an important policy decision of the Department of Revenue and, therefore, as per clause (c), all relevant facts relating to the formulation of policy concerning the notifications are required to be placed in public domain. By denying this information, the CPIO and AA have violated the express provisions of law.
7. To sum up, Shri Mohanty hasmade various submissions noted above in support of the decisions of the CPIO & AA regarding non-disclosure of requested information. On the other hand, Shri Jain has forcefully pleaded that the requested information has been wrongly denied to him on the specious plea that the files from which impugned notifications were 9 issued relate to the budget making process. It is his forceful contention that these notifications cannot be deemed to be a part of the budget making process and, therefore, the decision of a Coordinate Bench of this Commission in Shanmugu Patro case does not apply in the present case. It is pertinent to mention that I had wanted to satisfy myself as to whether the requested documents are a part of the budget making process and whether disclosure thereof would adversely affect the economic interests of the State. It is precisely for this reason that I had asked the officers of the Department of Revenue named herein above to produce any three files before me for better appreciation of the issues involved. I had also adjourned the matter on 22.8.2013 with a view to enabling the officers of Department of revenue to produce the documents before me but, as noted herein above, Shri Mohanty informs the Commission that the competent authority has decided not to produce these documents before the Commission. Suffice to say that without the scrutiny of these documents, it is not possible for me to decide these appeals one way or the other. I, therefore, adjourn the matters ad-infinitum. The Registry of the Commission is directed to put up these matters before the new incumbent in due course.
8. However, before parting with this matter, I would like to place on record my dissatisfaction with the decision takppppp/en by the Department of Revenue in not producing the relevant documents before me due to which these matters could not reach a finality.
Sd/-
( M.L. Sharma ) Information Commissioner Authenticated true copy. Additional copies of orders shall be supplied against application and payment of the charges, prescribed under the Act, to the CPIO of this Commission.
( K.L. Das ) Deputy Registrar Address of parties :-
1. The Under Secretary, AD.IC Section & CPIO, Department of Revenue, Room No.220-A, North Block, New Delhi-110001.
2. The Under Secretary AD.I Section & CPIO, Department of Revenue, Room No.220-A, North Block, New Delhi-110001.
3. Shri Pankaj K.P. Shreyaskar, Director and Joint Registrar of the Central Information Commission, 2nd Floor, August Kranti Bhawan, New Delhi.
4. Shri R.K. Jain, No. 1512-B, Bhishm Pitamah Marg, Wazir Nagar, New Delhi-110003.10 11