Central Information Commission
S.P. Goyal vs Cbdt on 13 January, 2010
CENTRAL INFORMATION COMMISSION
Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066
File No.CIC/AT/A/2007/01377/LS
S.P. Goyal Vs CBDT
Dated : 13.1.2010
This is in continuation of this Commission's Interim Decision dated 16.11.2009 wherein Shri V. Sridhar, Chairman, CBEC, New Delhi was directed to determine as to who is the custodian of the remnant of the samples and inform the Commission in 02 weeks time.
2. In compliance with the directions of the Commission, Chairman, CBEC, has filed a written representation dated 3.12.2009 before the Commission which is taken on record and a copy thereof provided to the appellant. As scheduled, the hearing is resumed today dated 4.12.2009 at 1030 hrs. The following are present :-
Appellant
1. Shri S.P. Goyal Respondent
1. Shri M.K. Gupta, Commissioner of Customs (I&G);
2. Shri A.K. Khatri, Addl. Director, DRI, DZU;
3. Shri Navraj Goyal, Under Secretary (Customs), CBEC; &
4. Shri M.V.V. Surya Narayana, Dy. Commissioner of Customs.
3. I have carefully perused the written representation submitted by Chairman, CBEC wherein he has categorically stated that the physical custody of the remnant of samples is with the Commissioner of Customs (I&G), New Delhi. Paras 3.1 of his representation is extracted below :-
"3.1 As far as the issues at serial no. 3 (i) & (ii) are concerned, from the facts made available by Commissioner of Customs (I&G), New Delhi and ADG, DRI DZU, it appears that the samples were drawn by the DRI. However, as desired by the adjudicating authority i.e., Commissioner of Customs (I&G), the remnants of samples were sent by the DRI to him. In para 18 of the denovo adjudication order (Annexure-I) dated 11.1.2008, this fact has been mentioned."
4. Chairman, CBEC, has also commented on whether remnant of samples can be provided to the appellant under the RTI Act. Para 4.1 of his representation is extracted below :-
"4.1 Regarding the issue at serial no. 3 (iii) as to whether the remnants of the samples can be provided to the RTI applicant, it is stated that, in the matter of Shri V.R. Eliza, CPIO, Commissioner of Customs, Import & General, new Delhi Vs Central Board of Excise & Customs (CIC/AT/A/2008/00291 dated 8.9.2008), it was held by the CIC that information can not be obtained from an organization that is included in the Second Schedule as RTI Act is not applicable to such an organisation. Also, the exemption will include any information furnished by that organisation to Government. The case of remnants of the samples provided by the DRI to Commissioner of Customs (I&G), New Delhi (adjudicating authority) squarely falls under the category of underlined text."
5. Shri M.K. Gupta, Commissioner of Customs (I&G) states before the Commission that physical custody of the remnant of samples is presently with his office.
6. The appellant has filed a representation dated 4.12.2009 before this Commission enclosing therewith certain materials to buttress his case that the matter in hand not only involves violation of Human Rights but also Corruption. The first document annexed with the representation is the telegram dated 14.3.1990 purported to have been sent by Shri H.L. Goyal (appellant's brother) addressed to DG, DRI, wherein it has been alleged that one Shri Kaushik of DRI told him to "Shut-up, Bloody Fool". This was followed by a "train of indecent unparliamentary and abusive phrases in the true rural expression." The telegram further states that said Kaushik asked Shri H.L. Goyal to get out of his office.
7. The appellant would submit that his brother Shri H.L. Goyal had received a letter dated 16.4.1990 from Shri Govind S. Tampy, Addl. DG DRI, to say that on enquiry, the allegations made by him (H.L. Goyal) had been found to be false. Thereupon, Shri H.L. Goyal had addressed a letter dated 2.5.1990 to Shri Tampy challenging the casual inquiry made into the matter.
8. The appellant would further submit that Shri R.K. Goyal partner of M/s Sanjeev Wollen Mills had lodged a complaint dated 3.3.1990 with DG, DRI wherein he had alleged harassment at the hands of concerned DRI officers and had sought the following relief:-
"(a) Constitute a departmental enquiry against Shri S. Sharma, Asstt. Director DTI, D.Z.U. New Delhi.
(b) Suspend Mr. Shalinder Sharma so that the enquiry may be fair and just. It is very clear that so long he is in office, the enquiry can not be just and fair because he will use his official position to create and manufacture evidence.
(c) Permit us to take suitable action against Mr. Shalinder Sharma do in the court of Law.
Shift him from the examination of our goods and any other team may be disputed for the purpose as Mr. Shailinder Sharma will no longer be a fair and just officer but a bias and prejudicial officer."
9. The appellant would also reiterate that Bill of Entry of the imported goods is dated 19.1.1990 but the samples were drawn as late as 5th & 6th March, 1990, that is, after a gap of about 06 weeks. It is his submission that this was deliberately done with a view to harass him and his partners for ulterior motives. Besides, this also caused him financial detriment.
10. It is also the forceful plea of the appellant that Shri A.C. Buck, (AA) in his order dated 3.9.2007 had held that the samples do not fall in the ambit of word 'information' as defined in section 2 (f) of the RTI Act which was set aside by Shri A.N. Tiwari, Information Commissioner, vide order dated 3.4.2008. Hence, it is now not open to the public authority to deviate from its earlier plea and invoke section 24 of the RTI Act to deny him the requisite information.
11 The appellant also forcefully pleads that the matter is of 1990 vintage and he has been agitating the matter for seeking remnant of samples since 18.6.2007 but to no avail. This has caused him financial detriment and he seeks compensation of 75000/- u/s 19 (8) (b) of the RTI Act.
12. He would also reiterate his earlier submissions that as per prevailing practice, out of 4 sets of samples drawn by the concerned officers, one set of samples is mandated to be provided to the party but this was not done in the present case. Even the order dated 7.5.1993 of Shri Sai Ram, the then Collector of Customs, (Judicial), Delhi, was disregarded. This was done with a view to harass and humiliate him and also to cause him financial detriment for not accepting Shri Shailender Sharma's illegal demands. It is, thus, the case of the appellant that the bar of section 24 is not applicable in the matter in hand and he is fully entitled to obtain the remnant of samples. According to him, the existing provisions of the Customs Acts and Rules framed thereunder support his case.
13. Shri A.K. Khatri, Addl. Director, DRI would make the following submissions :-
(i) that the allegations regarding violation of Human Rights and corruption etc were made by the appellant before the Bench of Shri A.N. Tiwari, Information Commissioner, in File No. CIC/AT/A/2007/00346 & 00817 and in the context of this very consignment but in para 28 of its decision, the Bench had held that there was no substance in the allegations. Para 28 of Shri Tiwari's decision is extracted below :-
"I find myself in agreement with the respondents. It is true that the appellant had raised certain charges against Shri Shailender Sharma and other members of the investigating team, way back in 1990 and 1993, but these were enquired into and were found to be baseless. The appellant can not be allowed to resurrect such a matter once again after such a long gap of time to suit his purpose, viz. raising allegations of corruption in order to get the advantage of the exception proviso of Section 24(1) of the RTI Act. In so far as the allegations in this matter have long been enquired into and concluded as unsubstantiated they can not be said to remain alive to be used at the convenience of interested parties."
(ii) that the issues raised by the appellant in the matter in hand were amply raised by him before the bench of Shri A.N. Tiwari and all the issues have been squarely dealt with in Shri Tiwari's order under reference.
14. Shri M.K. Gupta, Commissioner of Customs (I&G) would make the following submissions :-
(i) that the remnant of samples are part of the adjudication procedure and they can not be provided to the appellant till the matter has reached finality. This is supported by departmental instructions. He relies on para 40 of chapter 03 titled 'Sample of Appraising Manual, Volume-III, 1990' which is extracted below :-
"40. Retention of duty for volatile goods lost in W/ House. In certain cases where the Appellate Authority sets aside the orders of the Adjudicating Authority on the ground of violation of principles of natural justice, and leaves it to the discretion of the Adjudicating Authority to adjudicate the case de novo, after compliance of the principles of natural justice, it sometimes becomes difficult of the Adjudicating Authority to launch de novo proceedings on account of the fact that the goods, which provide the main evidence, have already been cleared by the party on payment of duty, fine etc. In such cases the Adjudicating Authorities should retain samples of goods involved for use, if necessary, at the stage of appeal, revision petition, or de novo adjudication. There is no legal bar to the retention of samples in this manner, since Section 144 Customs Act, 1962, empowers the proper officer to draw samples of goods "for examination or testing, or for any other purposes of the Act" - and the words "any other purposes" occurring here could include the purpose of deciding appeal/revision petitions/de novo adjudication."
(ii) that the Commissioner of Customs had adjudicated the matter and the appellant has filed an appeal against his decision before CESTAT. The matter, thus, is subjudice. Disclosure of any information at this stage is barred under clause (h) of section 8 (1) of the RTI Act.
(iii) that the remnant of samples were sent to the Customs Department by DRI for adjudication purposes. As Commissioner of Customs (I&G), he is holding the samples in a fiduciary capacity and, therefore, can not provide these samples to the appellant in terms of clause (e) of section 8 (1)
(iv) that his office is in physical custody of the remnant of samples and if the samples are held to be information u/s 2 (f) of the RTI Act, then disclosure of this information is barred under section 24 of the RTI Act. This contention has been upheld by the Full Bench of this Commission in File No. CIC/AT/A/2008/00291 dated 5.3.2008. He also relies on this Commission's decision dated 7.9.2009 in File No. CIC/AT/A/2007/00435 & 00440 (S.P. Goyal Vs Commissioner of Custom); and
(v) that the mandate of this Commission is limited and confined to the question of whether the matter in hand involves violation of Human Rights or Corruption. If the Commission holds that there has been an element of corruption or violation of human rights in the whole process, then it is open to the Commission to disclose the information; but if the finding of the Commission is in the negative, information sought by the appellant can not be disclosed. It is not open to the Commission to go beyond the limited mandate given by the Hon'ble Delhi High Court.
15. At this juncture, the appellant would intervene and submit that he will be satisfied if the Customs Deptt. agrees to send the remnants of samples to the following three Laboratories, which have been duly approved by the Customs Deptt., for fresh tests :-
(i) Silk & Art Silk Mills Research Association, Worli, Mumbai;
(ii) Bombay Textile Research Association, Ghatkopar, Mumbai; &
(iii) Textile Committee Textile Lab & Research Centre, Prabhadevi Chowk, Mumbai.
16. Shri Khatri seeks a short adjournment to seek instructions on this point. Hence, the matter is adjourned to 7th December 2009. Shri Khatri is directed to convey the Department's views to the Commission telephonically or otherwise by this date.
17. On 7th December, 2009, a letter is received from Shr Khatri by the Commission in which he requests for a weeks' time to file his say in the matter. Pursuant there to letter dated 11.12.2009 is received from Addl. DG, DRI wherein she has indicated DRI's non-acceptance of the appellant's suggestion for fresh testing. She has also reiterated DRI'ss plea that it is an exempted organisation u/s 24 of the RTI Act and that the two exceptions of Human Rights violations and corruption are not applicable in the present case. Paras 4.3 & 4.4 of her letter are extracted below :-
"4.3 In the normal circumstances, after drawal of samples, the department gets them tested from one laboratory only. In the instant case the samples were first got tested from IPCL, Baroda. However, on the insistence of the party, the samples were got tested again from CRCL. Both the times, the test reports were against the party. However, the party kept on raising the issue of getting the samples retested from still more laboratories as both the test reports had gone against them. No investigating agency can go on testing the samples indefinitely or till the time the report is in the favour of the party.
4.4 The DRI is an exempted organisation under Section 24 of the RTI Act 2005 without any condition attached to it except violation of Human Rights and corruption cases, and the same has been upheld by the Hon'ble Central Information Commission it its various judgements. The two exceptions of human rights violation and corruption cases are not applicable in the present case as has been held by the Hon'ble Central Information Commission vide its order No. CIC/AT/A/2007/00346 & 00817 (2 Appeals) dated 22.10.2007. the 3 letters dated 16.4.1990, 3.3.1990 and 2.5.1990 enclosed by the applicant as enclosures to his letter dated 4.12.2009, have all been considered in para 14 & 23 of this order dated 22.10.2007."
18. It may be noted that vide letter dated 21.12.2009, the Commission had directed Addl. DG, DRI to depute a senior officer to produce the relevant records before the Commission on 24.12.2009 at 1030 hrs. Accordingly, a senior officer appeared before the Commission along with records and the same were perused and returned.
DECISION AND REASONS
19. From the forgoing paras, the following facts clearly emerge:-
(i) The Bill of Entry of the impuned goods is 19.1.1990 but the samples were drawn on 5/6th March, 1990, that is, after a gap of about 06 weeks. The delay in the drawing of samples remains unexplained.
(ii) The DRI/Customs officials have not denied the prevailing practice of drawing 04 sets of samples out of which one set of samples is required to be given to the concerned party. However, in the matter in hand, this practice was not followed.
(iii) It is a matter of record that the appellant and his brother Shri H.C. Goyal had levelled allegations of corruption and Human Rights violations contemporaneously. The concerned authority had looked into the matter but found no truth in them.
(iv) Shri Sai Ram, former Collector of Customs in his proceedings dated 7.5.1993 extracted in para 09 of this Commission's Interim Decision dated 16.11.2009 had directed the concerned officers to provide a set of samples to the appellant. The operative part of his order is extracted below :-
"Further, the adjudication authority was informed that the sets of samples due to them had not been given to them at the time of sampling. These sets should also be handed over to them. This request is also reasonable and, hence, the DRI is hereby directed to make available the said samples due to them under proper receipt, if not already sent."
The order of the former Collector of Customs has not been implemented so far. The DRI and Customs Department have not given any explanation for non-implementation of the order.
20. Undeniably, the Directorate of Revenue Intelligence (DRI) is an exempted organisation under section 24 of the RTI Act. Officers of DRI had drawn the samples. Concededly, the custody of the remnant of samples presently is not with DRI but with the Commissioner of Customs (I&G), New Delhi. Legally speaking, if the remnant of samples were with the DRI, the bar of section 24 would apply lock, stock and barel but, as, these samples are in the custody of the Commissioner of Customs (I&G), his office is not an exempted organisation. Nor is the Customs Deptt per se. Further, the remnants of samples, undoubtedly, is 'information' as defined in section 2 (f) and, as stated above, the Commissioner of Customs (I&G) is presently the holder of this information.
21. The plea of the DRI that the samples are being held by Commissioner of Customs (I&G) in fiduciary capacity is also not sustainable in law. Fiduciary can be described as an arrangement expressly agreed to or at least consciously undertaken in which one party trusts, relies and depends upon another's judgment or counsel. This is not so in this case. Both DRI and Commissioner of Customs (I&G) function under CBEC. The relationship between them is of 'official' rather than 'fiduciary' nature. Further, even if it is assumed that the samples are lying with the Commissioner of customs (I&G), in fiduciary capacity, the ratio of the Hon'ble Delhi High Court judgment dated 30th November, 2009 in Writ Petition (Civil) No. 8396/2009 (Union of India Vs CIC) goes in favour of the appellant. Para 16 of the judgment is extracted below :-
"16. Thus, where information can be furnished without compromising or affecting the confidentiality and identity of the fiduciary, information should be supplied and the bar under Section 8(1)(e) of the Act cannot be invoked. In some cases principle of severability can be applied and thereafter information can be furnished. A purposive interpretation to effectuate the intention of the legislation has to be applied while applying Section 8(1)(e) of the RTI Act and the prohibition should not be extended beyond what is required to be protected. In cases where it is not possible to protect the identity and confidentiality of the fiduciary, the privileged information is protected under Section 8(1)(e) of the RTI Act. In other cases, there is no jeopardy and the fiduciary relationship is not affected or can be protected by applying doctrine of severability."
The scales are weighed in favour of the appellant on a purposive interpretation of the Act to effectuate the legislative intent.
22. Similarly, the plea raised by the Commissioner of Customs regarding information being exempt u/s 8 (1) (h) also does not hold ground in the light of the ratio of the Hon'ble Delhi High Court judgment in Bhagat Singh case. (146(2008) Delhi Law Times 385). Para 13 there of is extracted below :-
"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) (h0 and other such provisions would become the haven for dodging demands for information."
The matter has pended for a decade. The ongoing adjudicatory process may take a long time to reach a finality and there appear to be no satisfactory reasons to withhold the information.
23. It, thus, emerges that the samples are 'information' to which the appellant is entitled under section 2 (j) of the RTI Act, and the office of the Commissioner of Customs (I&G) is not an exempt organisation u/s 24 of the RTI Act.
24. However, the submissions of the DRI and the Customs Department that the samples are retained till the proceedings reach a finality can not be totally disregarded inasmuchas an eventuality may arise when the Appellate Authority may like to inspect these samples or have fresh tests conduct in regard thereto. Hence, to direct the Customs Department to supply the whole of samples to the appellant may not be expedient. A balance, therefore, needs to be struck in this regard. In the circumstances, the proper course of action appears to be to direct Commissioner of Customs (I&G), New Delhi, to apply the principle of severability u/s 10 (1) of the RTI Act by way of retaining part of the samples for the purposes of pending adjudication proceedings and supplying another part to the appellant.
25. In the light of the above, the Commission need not pronounce asto whether or not the matter in hand involves violation of human rights or corruption.
26. In view of the above, the Commission endorses the decision dated 3.4.2008 passed by the Bench of Shri A.N. Tiwari, Information Commissioner, for the reasons cited above and directs Shri M.K. Gupta, Commissioner of Customs (I&G), Delhi, to supply the samples to the appellant as indicated hereinabove.
27. The order of the Commission may be complied with in 04 weeks time.
The order reserved and pronounced on 13.1.2010.
Sd/-
(M.L. Sharma) Central 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) Assistant Registrar Address of parties :-
1. Shri M.K. Gupta Commissioner of Customs (I&G), New Custom House, Nr. IGI Airport, New Delhi-110037
2. Shri S.S.N. Moorthy Chairman, Central Board of Direct Taxes, North Block, New Delhi.
3. Shri S.P. Goyal 103-A, Krishna Chambers, 59, New Marine Lines, Mumbai-400020