Central Information Commission
Dipanwita Paul Das vs Chief Commissioner Of Customs, Kolkata ... on 30 April, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के न्द्रीय सूचना आयोग
Central Information Commission
बाबागंगनाथमागग, मुननरका
Baba Gangnath Marg, Munirka
नईदिल्ली, New Delhi - 110067
File Nos.: CIC/CCUKL/A/2022/638995
CIC/ CCUKL/A/2022/661744
Dipanwita Paul Das ......अपीलकर्ाग/Appellant
VERSUS
बनाम
CPIO,
O/o Chief Commissioner of
Customs (Kolkata Zone), RTI
Cell, 15/1, Strand Road,
Custom House, Kolkata-700001,
West Bengal.
CPIO,
Office of the Dy. Commissioner
of Custom, RTI Cell, Balmer
Lawrie CFS, P-3/1, Transport
Depot Road, Kolkata-700088,
West Bengal. ....प्रनर्वािीगण /Respondent(s)
Date of Hearing : 25/04/2023
Date of Decision : 25/04/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note: The above referred Appeal(s) have been clubbed for decision as these
relate to RTI Applications seeking the same information.
Relevant facts emerging from appeal:
RTI application filed on : 27/03/2022 & 20/03/2022
1
CPIO replied on : Not on record & 18/05/2022
First appeal filed on : 26/04/2022 & 25/05/2022
First Appellate Authority's order : 12/05/2022 & 07/09/2022
2nd Appeal/Complaint dated : NIL
File No. CIC/CCUKL/A/2022/638995
Information sought:
The Appellant filed an RTI application dated 27.03.2022 with Chief Commissioner of Customs, Kolkata Zone seeking the following information:
"1. From which documents the customs authority confirmed in the above report that the total cartoons in this consignment is 330 in nos where my shipper had confirmed that the total no of cartoons in the consignment is 380 inside 7 intact pallets?
2. On 22nd Jan 2022, they had passed out order of the said consignment after verifying the 7 intact pallets in good condition. So now instead of 7 intact pallets why in the examination report 3 intact pallets are found and how the 4 pallets got missing?
3. As per examination report, the total loose cartoons declared are 330 in numbers but as per our shipper had handed over 7 intact pallets which contained 380 cartoons to the Shipping Line Company, so how did the 50 cartoons got missing?
4. The cargo goods of 7 pallets are 100% RMS as per examination of above referred Bill Of Entry, so how in the report Customs Authority examined the 180 loose cartoons?
5. Regarding this in their report no where is mentioned, Where are the 4 intact pallets missing?
6. How can they say in the report that the loose 180 cartoons are the ones which are shipped by our shipper? Do they have any confirmation documents?
7. Our declaration in Bill Of Entry, the items shipped are welding machines with HSN code 85153990 one complete set of machines has different kind of accessories like Welding power source, welding cable, HF Tig unit, water cool unit 2 and etc. In this connection as per Bill Of Entry, did the customs department and their agent check each individual model with its accessories?
8. Have they done the loose cartoons calibration test so that it can be checked that the machines technical specifications are matched as what is declared in the Bill of Entry?
9. Without our intimation & presence can they dismantle the 3 intact pallets where we have not given the CHA any authorization letter in this regard?
10. During this examination why did they misbehave with us, making us leave and then conducting the examination without our presence? In this regard what intention did they had?
11. How did the Customs Authority allowed the CHA in this examination, did he submitted any authorization letter or KYC on our behalf to the Customs Department?"
Being dissatisfied with the non-receipt of any reply, the appellant filed a First Appeal dated 26.04.2022.
FAA, O/o the Pr. Commissioner of Customs (Port) vide order dated 12.05.2022 directed the CPIO to provide 'the decision as per provisions of RTI Act 2005 to the Appellant.' Subsequently, the CPIO, O/o the Pr. Commissioner of Customs (Port) transferred the RTI Application on 13.05.2022 to the CPIO, Dy. Commissioner of Customs, Balmar Lawrie CFS for providing information to the appellant.
Feeling aggrieved and dissatisfied with the non-compliance of the FAA's order, appellant approached the Commission with the instant Second Appeal.
File No: CIC/ CCUKL/A/2022/661744 Information sought:
The Appellant filed an RTI application dated 20.03.2022 Chief Commissioner of Customs, Kolkata Zone seeking the following information:3
"a) Why after examination of the Goods in 7 Intact Pallets by the Customs Authority, The Balmer Lawrie CFS failed to present 7 intact pallets of cargo goods before me for verification?
b) What happened to the Four (4) Intact Pallets within the Premises of Balmer Lawrie Warehouse?
c) Who is responsible for the missing of 4 Pallets out of 7 Pallets?
d) How the Customs duty has been calculated on goods after examination of 7 Intact Pallets where in reality 7 pallets were not there?
e) What action the authority may take against the person responsible for missing of 4 intact pallets cargo goods?
f) Whether Balmer Lawrie Authority is duty bounded to deliver goods in intact pallets to me as per IGM Documents?
g) How can Customs Authority calculate duty on 7 intact pallets of cargo goods and interest on duty day by day where in reality 7 pallets are not there for delivery of the same to the undersigned?"
The CPIO, CPIO, Dy. Commissioner of Customs, Balmar Lawrie CFS furnished a reply to the appellant on 18.05.2022 stating as under:
"(a)The Bill of Entry No. 7071059 dated 13.01.2022 filed is a facilitated one (RMS facilitated) ie no examination or assessment was prescribed for the said BE.
Since it was LCL, marks and numbers were checked by Custom authorities in compliance of RMS instructions. Hence at this stage only inspection of marks and numbers was done by custom authorities and OOC given which lay pending as duty remained unpaid. Examination was conducted much later on 04.03.2022 on receipt of intelligence for misdeclaration, under intimation to importer to be present during the proceedings.
(b)As per the letter dated 31.01.2022 addressed to DS Balmer Lawrie CFS received from PSAFL SPEEDMARK, the concerned freight forwarder, it is clarified that "they have handed over seven pallets/packages of cargo to their overseas counterpart EMU lines Pvt. Ltd who happen to be the LCL consolidator of this shipment. On landing of the cargo in Kolkata port, the freight forwarder stated 4 that they came to know from EMU lines Pvt Ltd that four pallets were dismantled at the origin port and came as 180 cartons and 3 pallets.
(c )May refer to reply of question no 2.
(d)Customs Duty has been calculated based on BE filed by authorized representative of the importer. BE date 13.01.2022 states import of.
Sl no. 1 - 100nos Sl no.2 - 50nos Sl no. 3 - 100nos Sl no. 4 - 30nos Sl no. 5 - 50nos Description: welding machine model-Details as per CL & PL) As per commercial Invoice quantity as declared in BE that is total 330 pieces. As per Packing List quantity as declared in BE that is total 330 pieces. Hence Customs duty has been calculated as per documents uploaded by importer in E Sanchit.
(e)As per documents filed with Customs 330 pieces have been found in the examination conducted on 04.03.2022 and hence no cargo appears to be missing.
(f) The issue does not pertain to this office.
(g) As per reply stated in question number 4."
Being dissatisfied, the appellant filed a First Appeal dated 25.05.2022. FAA's order, dated 07.09.2022 held as under:-
5 6 7 8 9 10 11Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.12
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present and assisted by Aritendu Das through video conference. Respondent No.1: Anindita Nag, Assistant Commissioner & CPIO present through video conference.
Respondent No.2: Rajan Kumar Verma, CPIO & Asstt. Commissioner of Customs, Balmer Lawrie CFS present through video conference.
Respondent No.1 submitted that the instant set of RTI Application(s) being concerned with the Port Commissionerate was transferred to their office and the subsequent appeal was also forwarded to the said office, so no action is pending at their end.
Respondent No.2 was heard at length narrating the massive factual report of the Appellant's grievance submitted vide his written submissions dated 20.04.2023 to arrive at the following points in File No. CIC/CCUKL/A/2022/638995 that:
"It is pertinent to mention here that the appellant has filed multiple RTI applications and Appeals on the same issue, including the instant RTI application CCUKL/RE2022/00024 dated 27.03.2022. No reply to the said RTI application was given by the then CPIO, Balmer Lawrie. During that period of time, the CPIO, Balmer Lawrie, was Mrs. Zainab Sayeed, Deputy Commissioner of Customs. The undersigned and the present CPIO, Balmer Lawrie, assumed the office as Assistant Commissioner, Balmer Lawrie, on 14.09.2022.
An appeal was filed by the Appellant on 26.04.2022 before the FAA. The FAA vide order dated 12.05.2022, directed the CPIO to give decision as per provisions of the RTI Act, 2005 to the Appellant. It is submitted that no reply was given by the then CPIO, Balmer Lawrie (Mrs. Zainab Sayeed, Deputy Commissioner of Customs).
2. Further. it is to mention here that the appellant has filed multiple RTI applications (09 RTI applications) and Appeals on the same issue, one of them being RTI application CCUKL/R/E/22/00022 dated 20.03.2022. The reply to it was given on 18.05.2022 by the CPIO. This RTI application dated 20.03.2023 had sought information which are almost similar to the ones that has been sought by appellant in the instant RTI application CCUKL/RE2022/00024 dated 27.03.2022. Hence, it appears to the undersigned that as the reply to the RTI application CCUKL/R/E/22/00022 dated 20.03.2022 was already given on 18.05.2022 on the similar queries, the then CPIO, Balmer Lawrie (Mrs. Zainab Sayeed, Deputy 13 Commissioner of Customs) had not given a separate reply in compliance to the FAA's order dated 12.05.2022.
3. Moreover, almost similar information, as sought in the instant RTI application CCUKL/R/E/2022/00024 dated 27.03.2022, have been sought by the Appellant in her subsequent 07 RTI applications to which the replies have been sent by the CPIO to the Appellant."
While in File No. CIC/ CCUKL/A/2022/661744, the point being arrived at by Respondent No.2 was:
"It is pertinent to mention here that the appellant has filed multiple RTI applications and Appeals on the same issue, including the instant RTI application CCUKLIR/E/22/00022 dated 20.03.2022. The reply to it was given on 18.05.2022.An appeal against the reply was filed by the Appellant on 25.05.2022 before the FAA. The FAA vide order dated 25.07.2022 ordered the CPIO to re- examine the RTI application dated 20.03.2022 and provide specific replies/information. In compliance of the FAA's order dated 25.07.2022, a reply dated 13.08.2022 was given by the CPIO. The Appellant filed an appeal before the FAA on 24.08.2022 against the CPIO's reply dated 13.08.2022. The said appeal was disposed of by FAA's order dated 07.09.2022 stating that the appellant is not challenging the "non supply" or "supply of incorrect information but is raising fresh queries, which are not part of the original RTI application. Thus, the said submission is not admissible at the appeal stage."
Now the Appellant did not accept or deny the averred submissions of the CPIO but stated their angst against the non-resolution of their grievance and challenged the factual position explained by the CPIO regarding the same.
The Commission remarked at this point that a perusal of the information sought for in the RTI Application(s) and the arguments placed on record by the Appellant suggests clearly without any reasonable doubt that this is not about seeking access to information as envisaged under the RTI Act, but seeks to avail clarifications, answers to interrogative queries and justifications regarding the grievances of the Appellant against the averred import.
The Appellant was counselled about the scope and ambit of the RTI Act as well as that of the powers of the Commission under the Act and she was advised about the channels/avenues available to her for redressal of grievances.
14Decision:
In furtherance of the hearing proceedings, the Commission observes that the FAA's order of 07.09.2022 leaves nothing further to add or discuss in the matter within the confines of the RTI Act. The CPIO & FAA of Balmer Lawrie CFS have gone above and beyond the mandate of the RTI Act to provide the Appellant with clarifications and answers vide the replies of 18.05.2022; 13.08.2022; 07.09.2022 and now vide the supplementary comments tendered on 20.04.2023, no scope of adjudication remains in the matter.
For better understanding of the mandate of the RTI Act, the Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act. For the sake of clarity, the provision of Section 2(f) of the RTI Act is reproduced hereunder:
"2. Definitions.--In this Act, unless the context otherwise requires,--
(f) "information" means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;.."
In this regard, the Appellant's attention is drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors.[CIVIL APPEAL NO.6454 of 2011]wherein it washeld as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing.........A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and 15 opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." (Emphasis Supplied) Similarly, in the matter of Khanapuram Gandaiah vs Administrative Officer &Ors. [SLP (CIVIL) NO.34868 OF 2009], the Hon'ble Supreme Court held as under:
"7....Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him...."
(Emphasis Supplied) And, in the matter of Dr. Celsa Pinto, Ex-Officio Joint Secretary,(School Education) vs. The Goa State Information Commission [2008 (110) Bom L R 1238], the Hon'ble Bombay High Court held as under:
"..... In the first place, the Commission ought to have noticed that the Act confers on the citizen the right to information. Information has been defined by Section 2(f) as follows.
Section 2(f) -Information means any material in any form, including records, documents, memos e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force;
The definition cannot include within its fold answers to the question why which would be the same thing as asking the reason for a justification for a particular thing. The Public Information Authorities cannot expect to communicate to the citizen the reason why a certain thing was done or not done in the sense of a justification because the citizen makes a requisition about information. Justifications are matter within the domain of adjudicating 16 authorities and cannot properly be classified as information." (Emphasis Supplied Similarly, the Appellant is advised about the powers of the Commission under the RTI Act by relying on certain precedents of the superior Courts as under:
The Hon'ble High Court of Delhi in the matter of Hansi Rawat and Anr. v. Punjab National Bank and Ors. (LPA No.785/2012) dated 11.01.2013 has held as under:
"6. ....proceedings under the RTI Act cannot be converted into proceedings for adjudication of disputes as to the correctness of the information furnished."(Emphasis Supplied) The aforesaid rationale finds resonance in another judgment of the Hon'ble Delhi High Court in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 wherein it was held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) The Appellant is therefore advised to exercise her right to information in an informed and judicious manner in the future. She is further advised to pursue the grievances before the appropriate forum.17
Respondent No.2 is directed to however ensure that a copy of written submissions dated 20.04.2023 in both the referred appeals has been also sent to the Appellant.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहानन) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दिनांक / 18