Central Information Commission
Mr.Deepak Agrawal vs Department Of Revenue on 21 December, 2012
Central Information Commission
Room No. 305, 2nd Floor, 'B' Wing, August Kranti Bhavan,
Bhikaji Cama Place, New Delhi110066
Web: www.cic.gov.in Tel No: 26167931
Case No. CIC/SS/A/2011/000906, 000907,
000908, 000819, 000904, 000905,
000926, 000927, 001100
Dated: 21.12.2012
Name of Appellant : Shri Deepak Agrawal
Name of Respondent : Office of the Commissioner of Central
Excise, Thane-II, Mumbai
Date of Hearing : 11.01.2012 & 16.10.2012
ORDER
Shri Deepak Agrawal, the appellant has filed following nine appeals before the Commission against the respondent Office of the Commissioner of Central Excise, Thane-II, Mumbai for not providing information to his RTI-requests. The matter came up for hearing on 11.01.2012 at Commission's Office and on16.10.2012 through video-conferencing. The appellant was present, whereas the respondents were represented by Shri Ashok Kumar, Additional Commissioner, Shri S.S. Ahmed, Dy Commissioner, Shri J.S. Dubey, Superintendent and Shri P.M. Rane, Inspector.
.
CIC/SS/A/2011/000906 1.1. The appellant filed an RTI-application dated 20.1.2011 seeking information on "All records documents and information, held by the Public Authority, in respect of S.D. Enterprises, Unit No,. III under the Jurisdiction of Commissioner, Central Excise, Thane-II, including all correspondence 2 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 exchanged. File notings, file orders, reports filed. Action taken by the CPU and the office of the Commissioner, Central Excise, Thane-II filed before the Office of the Chief Commissioner Central Excise, Mumbai-I in respect of representations filed by S.D. Enterprises, under Excise 6/md/2004/12 dated 16.12.04, Excise6/MD/2004/18 dated 24.12.04, Excise6/md/2004/25 dated 31.12.04, Excise6/md/4 dated14.12.04 etc during the period 2002-03, 2003-04." The CPIO vide letter No. V/Tech/RTI/10/2011/Th-II dated 17.2.2011 informed the appellant that various show cause notices have been issued to M/s. S.D. Enterprises, Unit- III pending adjudication by the competent authority and hence the information sought by him. i.e. all correspondence exchanged, file notings, file orders reports filed, action taken by the CPU and O/O the Commissioner Central Excise, Thane-II filed before the Chief Commissioner Office, Central Excise, Mumbai-I in respect of S.D. Enterprises during the period 2002-03 and 2003-04 etc. were protected under the provisions of Section 8(1)(h) of the RTI Act, 2005.
1.2. Aggrieved by the non receipt of information, the appellant filed first-appeal on 23.4.2011 before FAA. The FAA vide order No. V/Tech/RTI- Appeal/42/2011/Th-II/2462 dated 1.4.2011 upheld the reply of CPIO with the observation that the appellant's seeking file notings, file orders, report filed, action taken by the CPU and the Office of the Commissioner of Central Excise, Thane-II is barred by Section 8(1)(h) of the RTI Act, as the case is still to reach its finality in as much as all the relied upon documents in respect of charges alleged in the show cause notice have already been provided and the stage of the case can be treated as at investigation stage.
1.3. The respondent vide their para-wise written submissions dated 7.10.2011 filed before the Commission submits as follows: Para-1: The appellant has requested to provide all correspondences exchanged file notings, file orders reports filed action taken by CPU and Office of the Commissioner of Central Excise, Thane-II in respect of S.D. Enterprises during the period 2002-03 and 2003-04. The show cause notices issued to M/s. S.D. Enterprises Vasai are 3 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 pending for adjudication by adjudicating authority and case has not attained its finality. In view of various judgment cited wherein CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation. Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act as the show cause notices are still pending for adjudication.
CIC/SS/A/2011/000907
2. Appeal dated 23.4.2011 for not providing information on Point Nos. 2, 3, 4 and 9 of his RTI-request dated 21.1.2011.
2.1. The appellant filed an RTI-application dated 21.1.2011 seeking information on eleven queries in respect of the investigation carried out by CPU Thane of SDE-III - "(1) The applicant would like to receive copies of invoices produced by SDE, during the investigation, as per the records of investigations; (2) The applicant would like to receive records, including file workings of the CPU, showing procurement of SS Patta Patti without duty paying documents; (3) The applicant would like to receive records, including file workings of the CPU, showing non availability of the SS Patta Patti invoices of Unisons Metals Ltd. Inv No. 471, 472, 474 in respect of seized Patta Patti, with the department; (4) The applicant would like to receive records, showing the working sheets and documents of the CPU, Thane II, in respect of the co relation and showing non co relation of inputs with input invoices when the SS Patta Patti of Unisons Inv No. 471, 472, 474 were available under Input Purchase record and also the utilization was available under the ARE2 as well as the Production Log at Sr. No. 23; (5) The applicant would like to receive records held by the public authority, showing purchase/payment in cash of SS Patta Patti; (6) The applicant would like to receive records showing various types of raw material supplied to SDE by input suppliers; (7) The applicant would like to receive copies of PO, placed by SDE to input suppliers; (8) The applicant would like to receive records from the public authority showing contradictions in quality/grade/thickness etc of the input 4 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 purchased by SDE, on comparison of the contents under the Production log 23; (9) The applicant would like to receive records of the CPU, showing file notings observations showing non availability of quality-wise or grade-wise and the consumption of the different varieties of raw material (quality-wise/grade-wise) in the manufacture of the various utensils; (10) The applicant would like to receive records and ARE 2, showing the consumption of the inputs of SS Patta Patti, of Unisons Metals Ltd. 471, 474, 474 inputs, in November , 2003calculated on arithmetical basis inputs; and (11) The applicant would like to receive COPU recordings and notings during investigation, in 2004-05, showing non availability of grade, gauge etc under the production Log of 23 corresponding to the issue slips." The CPIO vide letter No. V/Tech/RTI/09/2011/Th-II/1354 dated 17.2.2011 informed the appellant on Point No. 1 that the copies of 28 invoices mentioned in Annexure-A at Sr. No. 10 of Annexure to Show cause Notice dated 31.1.05 have already been provided to him on 31.1.05; on Point No. 2,3,4 and 9 the appellant was informed that various show cause notices have been issued to M/s. S.D. Enterprises, Unit-III were pending adjudication by the competent authority and hence the information sought by him was protected under the provisions of Section 8(1)(h) of the RTI Act; on Point No. 5 - no such record available on Point No. 6 the appellant was informed that the information ought was provided in the Show Cause Notice dated 31.1.05; on Point No. 7 - copies of purchase orders were not available in the Raw Material purchase files withdrawn from the Office of M/s. S. D. Enterprises under panchnama dated 20.1.04; on Point No. 8 and 11 the appellant has already been informed several times earlier that File No. 23 was a non-relied document and the issue has already been decided by the Commissioner of Central Excise, Thane-II and on Point No. 10 - copy of ARE-2 register has already been provided with show cause notice dated 31.1.05 and the said question was also replied vide order dated 28.10.05 passed by the Commissioner of Central Excise, Thane-II.
2.2. Aggrieved by the reply of the CPIO, the appellant filed first-appeal on nil before FAA. The FAA vide order No. V/Tech/RTI-Appeal/40/2011/Th-II/2645 5 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 dated 7.4.2011 upheld the reply of CPIO on Point Nos. 2, 3, 4, 8, 9 and 11. On Point Nos. 6 and 10 the FAA held that the appellant has not given the details of information sought and also information sought was vague hence does not fall under the purview of the RTI Act. On Point No. 1 the FAA directed the CPIO to get correct information from concerned section and provide to the appellant within 15 days.
2.3. The respondent vide their para-wise written submissions dated 7.10.2011 filed before the Commission submits as follows: Para-2, 3, 4 and 9: The appellant under the above mentioned paras has requested to provide file noting, observation and records including file working of CPU. The show cause notices issued to M/s. S.D. Enterprises Vasai are pending for adjudication by adjudicating authority and case has not attained its finality in view of various judgment cited by the CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation. Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act as the show cause notices are still pending for adjudication; Para-6: The appellant has requested to provide records showing various types of raw materials supplied to S.D.E. ;by input supplier. The information sought is already detailed in the show cause notice dated 31.1.2005 issued to M/s. S.D. Enterprises in which appellant is a Managing Partner; Para 8 & 1: The appellant has requested to provide records and noting under the production log 23. The appellant has already been informed that the file number 23 is a non relied document of the SCN and also missing file which was also informed to the appellant vide order F. No. V/Ad(SCN)/30-14/Th-II/05 passed by Commissioner of Central Excise, Thane-II; Para-10: The appellant has requested to provide copy of ARE-2. The copy of ARE-2 register has already been provided which show cause notice dated 31.1.2005 and the said question was also replied vide order dated 28.10.2005 passed by the Commissioner of C. Excise, Thane-II.
6 Case No. CIC/SS/A/2011/000906,000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 CIC/SS/A/2011/000908
3. Appeal dated 23.4.2011 for not providing information on Point No. 6 to his RTI-request dated 19.1.2011.
3.1. The appellant filed an RTI-application dated 19.1.2011 seeking information on six queries - "(1) The applicant would like to receive the ARE2 copies showing utilization of SS Patta Patti before 20.1.04 (period 1.5.03 to 20.1.04) of the Invoices - (A) In Nos. 471, 472 dated 13.11.03 for 9924.00 kgs and 9890.10 kgs, Unisons Metals, (B) Inv Nos. 474 dated 14.11.03 for 9921.70 kgs of Unison Metals, (C) Inv No. 31 dated 27.9.03 of 5212.00 kgs, of SS coils under AC Metals, since the Annexure A, compiled by the department on 22.6.04, shows that, the said Invoices were already utilized as on 20.1.04; (2) The applicant would like to receive the AREA2 No. 130 dated 12.1.04 showing non utilization of SS Coils of Bhandari Steel Inv. No. 12 dt. 20.12.03 (period 1.5.03 to 20.1.04). (The inputs under this Inv are shown unutilized on 20.1.04, under Annexure-A); (3) The applicant would like to receive the copy of ARE 2 under which SS Coils/Sheets of AC Metals Inv 53 dated 16.1.04, 8398 Kgs, have been utilized by S.D. Enterprises Unit No. III, Vasai (Period 1.5.03 to 20.1.04); (4) The applicant would like to receive the copy of ARE2 under which the SS Coils of Arihant Coils & Strips P Ltd., Umargaon Iv No. 121 dt. 9.1.04 of 6230.57 kgs, have been utilized by S.D. Enterprises, Unit No,. III, Vasai (Period 1.5.03 to 20.1.04); (5) The applicant would like to receive the copy of ARE2 under which SS Coils/Sheets of Steel World Pvt. Ltd., Inv 630 dated 16.1.04 of 8330 Kgs have been utilized by S.D. Enterprises Unit No. III, Vasai (Period 1.5.03 to 20.1.04); and (6) The applicant would like to receive the rough work/work sheet/note sheet or any record with the CPU Thane II, on which basis of Annexure A of unutilized inputs as on 20.1.04 was prepared by the CPU and produced before Mr. Deepak Agrawal on 22.3.06/23.6.04 of S.D. Enterprises." The CPIO vide letter No. V/Tech/RTI/15/2011/Th-II/1290 dated 15.2.2011 7 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 informed the appellant on Point No. 1, 3, 4, 5 The ARE2 register for the said period withdrawn from the factory premises of M/s. S.D. Enterprises under Panchnama dated 20.1.04; on Point No. 2 Copy of ARE 2 was provided to the appellant and on Point No. 6 the appellant was informed that since various show cause notices issued to M/s. S.D. Enterprises Unit-III were pending adjudication by the competent authority, the information sought for i.e. supply of file notings, observations, file orders etc the same were protected under the provisions of Section 8(1)(h) of the RTI Act.
3.2. Aggrieved by the reply of the CPIO, the appellant filed first-appeal on nil before FAA. The FAA vide order No. V/Tech/RTI-Appeal/39/2011/Th-II/2665 dated 1.4.2011 upheld the reply of CPIO on Point No.2 and 6; on Point No. 1, 3, 4 and 5 the FAA held that since a copy of show cause notice is already given to the applicant, the CPIO was directed to provide further documents, if in possession of the respective section of the Commissionerate and make available within 15 days.
3.3 The respondent vide their para-wise written submissions dated 7.10.2011 filed before the Commission submits as follows: Para-6: The appellant requested to provide rough work/ work sheet/ note sheet or any record with CPU Thane-II on the basis of which Annexure-A prepared. The show cause notices issued to M/s. S.D. Enterprises Vasai are pending for adjudication by adjudicating authority and case has not attained its finality. In view of various judgement wherein CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act as the show cause notices are still pending for adjudication.
CIC/SS/A/2011/000819 8 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100
4. Appeal dated 21.12.2010 for willful denial of information by the CPIO and FAA pertaining to his RTI-request dated 5.10.2010.
4.1. The appellant filed had an RTI-application dated 5.10.2010 seeking "Inspection of all records documents and information held by the public authority, CCE, Thane II, Mumbai, in respect of the Assessee - S.D. Enterprises, Unit No. III, registered under the provisions of Central Excise, Vasai Div, Thane Distt, including all files on investigations, note sheets of the responsible officers, who have been directly associated or indirectly associated in the investigations, of the Unit of SDE Unit No. III, Vasai and with copies of all communications/ correspondences, exchanged with any other Public Authority, Banks, any other registered assessee, with any jurisdictional Excise authority of the suppliers of inputs; any transporters, road authority, Indian Customs, at JNPT Port, Sales Tax Authority, Income Tax Authority, or the superior office of the Central Excise, Mumbai and CBEC, New Delhi with complete files and adjudication till date, with all copies and information exchanged with Law Ministry or any judicial authority, by the public authority, Commissioner of Central Excise, Thane II, Dadar, Mumbai." The CPIO vide letter No. V/Tech/RTI/66/2010/Th-II/5734 dated 29.10.2010 denied inspection of the records u/s 8(1)(h) of the RTI Act with the observation that the investigation records sought by the appellant was a part of investigation of a preventive case involving revenue of crores of rupees and the appellant was one of the notice in show cause notices. In such circumstances records of investigation cannot be allowed by citing the Commission's order in the case of Shankar Sharma Vs Director of Income Tax (Case No. CIC/AT/A/2007/00007, CIC/AT/A/2007/00010 and CIC/AT/A/2007/00011 dated 10.7.2007. However, since the appellant was one of the notice in the show cause notices, he should be accorded the access and inspection of all relied upon documents in the show cause notices.
CIC/SS/A/2011/000904 9 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100
5. Appeal dated 16.4.2011 for not providing information to his RTI-request dated 10.1.2011.
5.1. The appellant filed had an RTI-application dated 10.1.2011 seeking information on seven queries - "(1) The CPIO, is requested to provide the file notings, file order and complete disposal that was carried out, in response to the letter dated 11.11.05, filed by S.D. Enterprises before the Commissioner of Central Excise, Thane-II; (2) The CPIO has under his letter No. V/Tech/RTI/59/2010/Th-II/5085 dated 20.10.2010 stated in response to Para No. 5, that the department had filed a writ petition and transferred the case to call book of SDE, after the CESTAT Order. The applicant request, to be provided, the complete file orders, file notings in respect of the said decision, as advised by the CPIO, along with the copy of the CBEC vide Cir No. 719/35/2003 dated 28.5.03; (3) Please provide copies of records, documents, statement, recorded u/s 14, and any other documents, obtained by the department from Adikanksha Impex Pvt. Ltd., Mumbai during the investigation of SD Enterprises, III, at Vasai. The CPIO is also requested to provide the coy of objection from the third party - Adikansha Impex Pvt Ltd, Mumbai as upheld by the FAA under order F. No. V/Tech/RTI-Appeal/80/2010/Th-II/6346 dated 30.12.2010; (4) Copies of file notings, file orders, passed by the responsible persons in CPU, in the public authority, in respect of contents of the Assessee S.D. Enterprises, file 20-23 on 23.1.04, 26.7.04 by SDE; (5) Copies of file notings and file orders, passed in respect of submissions made under letter dated 2.5.05, of Deepak Agrawal, Managing Partner of SDE requesting for an appointment; (6) Copies of file notings and file orders passed by the Commissioner Central Excise, to provide the records as per the request of Deepak Agrawal on 22.6.04/23.6.04; and (7) The CPIO may provide the copy of the complete file on investigation of S.D. Enterprises, Unit No. III from 22.6.04 till 31.1.05 including file notings/orders thereon. " The CPIO vide letter No. V/Tech/RTI/08/2011/Th-II/1070 dated 9.2.2011 informed the appellant on Point No. 1,2 , 4, 5, 6 and 7 that the various SCNs issued to M/s. S.D. Enterprises, Unit-III, Vasai by the Commissioner of 10 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 Central Excise, Thane-II were pending adjudication by the competent authority and as such the information sought by the appellant cannot be provided since the same are exempted under the provisions of Section 8(1)(h) of the RTI Act; on Point No. 3 the appellant was informed that no such documents are available.
CIC/SS/A/2011/000905
6. Appeal dated 23.4.2011 for not providing information in reply to his RTI- request dated 24.1.2011.
6.1. The appellant filed had an RTI-application dated 24.1.2011 seeking information on "Records of file observations and notings made by the Commissioner P.K. Ajwani, Joint Commissioner, Shri V.K. Srivastav, Dy Commissioner, Shri Ranbir Singh and Supdt Shri S.R. Mayekar for providing the recorded sought by SDE under its letter dated 26.7.04. " The CPIO vide letter No. V/Tech/RTI/12/2011/Th-II/1353 dated 17.2.2011 informed the appellant that various show cause notices have been issued to M/s. S.D. Enterprises, Unit-III pending adjudication by the competent authority and hence the information so9ught by him i.e. observations and notings made by various officers was protected under the provisions of Section 8(1)(h) of the RTI Act.
6.2. Aggrieved by the reply of the CPIO, the appellant preferred first-appeal dated nil before the FAA. The FAA vide order No. V/Tech/RTI- Appeal/41/2011/Th-II/2463 dated 1.4.2011 upheld the reply of the CPIO.
6.3. The appeals No. CIC/SS/A/2011/000819, 000904 and 000905 were heard by the Commission on 17.20.2011 and the Commission vide its Adjunct Order dated 1.11.2011 held that the public authority cannot deny the information merely by quoting Section 8(1)(h) of the RTI Act and the public authority is obliged to give reasons that how the disclosure of requested information would hamper the process of investigation or prosecution of offenders. The Commission directed 11 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 the respondent to produce the requisite records and documents for perusal and inspection before reaching any conclusion.
6.4. In compliance with the directions of the Commission dated 1.11.2011, the respondent brought the relevant records. I have seen the relevant records as directed by the Commission. On perusal of the records it is observed by the Commission that these records pertained to investigations carried out over a period of time with inputs provided by a number of officers, who have handled these files, which culminated in the issue of the show-cause notice based on these inputs. The file notings consists of contributions made and views and opinions of various officers who handled the enquiry into the matter.
CIC/SS/A/2011/000926
7. Appeal dated 15.3.2011 for not providing information in reply to his RTI- request dated 5.1.2011.
7.1. The appellant filed an RTI-application dated 5.1.2011 seeking information on four queries - "(1) The applicant requests, file notings, file orders of the department, showing deficiencies/ inconsistencies, in the records of Transports, production, under File No. 20-23 seized by the Central Excise Department; (2) The applicant requests, for information including file notings file orders, showing deficiencies, inconsistencies, in the records of production-export products, as pointed out by SDE III, under File No. 20-23 under seizure; (3) The applicant requests, for file orders recorded ;by the CPU, Thane II for not providing the records to Mr. Deepak Agrawal since June/July, 2004; and (4) The applicant requests for file notings, file orders recorded by the Supdt Prev, S.R. Mayekar and Jt Commissioner, Prev, V.K. Srivastava, Thane-II, intimating the "Reported loss of records of SDE to the Commissioner Thane-II. The applicant also requests to be provided the file notings, orders passed by the Commissioner Thane II in this respect. ." The CPIO vide letter No. V/Tech/RTI/02/2011/Th- II/890 dated 2.2.2011 denied information to the appellant u/s 8(1) (h) of the RTI 12 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 Act stating that the case has not been reached to its finality i.e. pending adjudication.
7.2. Aggrieved by the reply of the CPIO, the appellant filed first-appeal on nil before FAA. The FAA vide order No. V/Tech/RTI-Appeal/26/2011/Th-II/1696 dated 8.3.2011 upheld the reply of CPIO with the observation that the appellant sought records of a case which has not yet reached finality and hence the order of CPIO appeared to be proper.
7.3 The respondent vide their para-wise written submissions dated 4.1.2012 filed before the Commission submits as follows: Para-1, 2, 3 & 4: For all above mentioned paras the appellant has requested to provide file notings and file orders of various authorities in respect of the files relating to M/s. S.D. Enterprises. The show cause notices issued to M/s. S.D. Enterprises Vasai are pending for adjudication by adjudicating authority and case has not attained its finality. In view of various judgment cited wherein CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation. Further after adjudication of the cases and imposition of penalty etc., the evader are due for prosecution or other actions under the law. Alsoif the file orders and file notings of investigation are provided i.e. where the opinion and views given by different authorities in the files, it may be used by the appellant and this may adversely affect the case. Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act, 2005, as the show cause notices are still pending for adjudication.
CIC/SS/A/2011/000927
8. Appeal dated 15.3.2011 for not providing information to his RTI-request dated 11.1.2011.
13 Case No. CIC/SS/A/2011/000906,000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 8.1. The appellant filed an RTI-application dated 11.1.2011 seeking information on three queries - "(1) The applicant seeks records, file notings to sow that Annexure A of unutilized input invoices prepared by the department was re-verified when pointed out specifically on 29.12.04 by Mr. Deepak Agrawal u/s 14; (2) The applicant seeks file notings /file order of the Commissioner Central Excise Thane II in respect of the submissions made by Mr. Deepak Agrawal u/s 14 on 29.12.04 and 7.1.05; and (3) The applicant seeks records, file orders of the Commissioner in respect of conducting verification of Annexure A, of unutilized input invoices prepared by the Department, as pointed out specifically on 29.12.04 by Mr. Depak Agrawal u/s 14." The CPIO vide letter No. V/Tech/RTI/03/2011/Th-II/889 dated 2.2.2011 denied information to the appellant u/s 8(1) (h) of the RTI Act stating that the case has not been reached to its finality i.e. pending adjudication.
8.2. Aggrieved by the reply of the CPIO, the appellant filed first-appeal on nil before FAA. The FAA vide order No. V/Tech/RTI-Appeal/27/2011/Th-II/1695 dated 8.3.2011 upheld the reply of CPIO with the observation that the appellant sought records, file notings, file orders of a case which has not yet reached finality and hence the order of CPIO appeared to be proper.
8.3 The respondent vide their para-wise written submissions dated 4.1.2012 filed before the Commission submits as follows: Para-1, 2 and 3: For the above mentioned paras appellant has requested to provide the notings, file orders of various files relating to M/s. S.D. Enterprises. The show cause notices issued to M/s. S.D. Enterprises Vasai are pending for adjudication by adjudicating authority and case has not attained its finality. In view of various judgement wherein CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation. Further after adjudication of the cases and imposition of penalty etc., the evader are due for prosecution or other actions under the law. Also, if the file orders and file notings of investigation are provided i.e. where the 14 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 opinion and views given by different authorities in the files, it may be used by the appellant and this may adversely affect the case. Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act as the show cause notices are still pending for adjudication.
CIC/SS/A/2011/001100
9. Appeal dated 7.3.2011 for not providing information on Point Nos. 2 to 8 in reply to his RTI-request dated 13.12.2010.
9.1. The appellant filed an RTI-application dated 13.12.2010 seeking information on three queries - "(1) Records, documents, information to show, action taken by the public authority when the RTO report, stated that the Vehicles purportedly used for transport are Motor Cars/M/Cycles, as per investigation done by Central Excise w.r.t. SDE III; (2) Records, documents, information, including file notings and file orders showing that CPU Thane II accepted rejected, re-verified the incorrect recordings done u/s 14, when the Mg Partner deposed on 29.12.04, u/s 14 that "statement dated 22.6.04 and 23.6.04 cannot be confirmed" in the entirety; (3) Records, documents, information, including file notings and file orders showing that CPU Thane II provided the records to SDE III, Mg Partner on 29.12.04 u/s 14 when it was specifically pointed out that Annexure A prepared by the department needs to be verified for its correctness; (4) Records, documents, information, including file notings and file orders, showing that "CPU Thane II, provided the seized records of transport vehicles etc were specifically pointed out to be available under the seized records, as stated under the letters, therein (i.e. records to explain and show the correct vehicles that were used and had transported the inputs to SDE Unit No. III at Vasai; (5) records, documents, information, including file notings and file orders, showing that "CPU Thane II, provided the seized records of input - finished product co relation to SDE Unit III, Mg Partner on 29.12.04, 7.1.05 u/s 14 when the details of transport vehicles etc were specifically pointed out, to be available under the seized records, as stated under the letters therein (i.e. 15 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 records to show proper co relation of purchased inputs, finished goods exported, on which rebate was claimed" by SDE Unit No. III at Vasai; (6) Records, documents, information, showing reasons, for not providing the records of transport, receipts, manufacture, input - finished goods co relation and compliance of Central Excise Rules, etc to Mr. Deepak Agrawal, SDE Unit III Mg Partner on 29.12.04, 7.1.05 u/s 14 when specifically pointed out and submitted under the letters, therein (i.e. records to show proper co relation of purchased inputs finished goods exported on which rebate was claimed by SDE Unit No. III at Vasai). Especially when a SCN was issued on 31.1.05 after recording the explanation and submissions by SDE; (7) Records, documents, information, showing reasons, for not recording the statements of the "suppliers Godown Keepers/ Transporters/ Representative of the Buyers SDE", in respect of the inputs supplied to SDE Unit No. III, when the said details, were categorically informed to the CPU during investigation; and (8) Records, documents, information, showing reasons for not confronting the "statement of the vehicle owners" before Mr. Deepak Agrawal on 29.12.04, 7.1.05 while seeking explanation and recording the statements, under section 14 (in respect of the inputs supplied to SDE Unit No. III, when the said details, were already in the department possession.). " The CPIO vide letter No. V/Tech/RTI/89/2010/Th- II/265 dated 10.1.2011 informed the appellant on Point No. 1 that the show- cause notice dated 31.5.05 was issued by the Commissioner, Central Excise, Thane-II after thorough investigation and deducing all the corroborative evidences in the case of M/s. S.D. Enterprises; On Point Nos. 2 to 5 the information was denied u/s 8(1)(h) of the RTI Act stating that since the show cause notices issued in this case were pending adjudication i.e. not reached to its finality; on Point Nos. 6 to 8 the appellant was informed that the information sought by him did not fall within the ambit of Section 2(f) of the RTI Act as the appellant has sought reasons from the public authority for not providing the records of transport, statements etc. 16 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 9.2. Aggrieved by the reply of the CPIO, the appellant filed first-appeal on 14.1.2011 before FAA. The FAA vide order No. V/Tech/RTI-Appeal/13/2011/Th- II/1360 dated 18.2.2011 upheld the reply of CPIO with the observation that the appellant sought information to the sub-judice issues which are yet to be decided by the proper authority.
9.3 The respondent vide their para-wise written submissions dated 4.1.2012 filed before the Commission submits as follows: Para-2 to 5: For the above mentioned paras appellant has requested to provide the notings, file orders of various files relating to M/s. S.D. Enterprises. The show cause notices issued to M/s. S.D. Enterprises Vasai are pending for adjudication by adjudicating authority and case has not attained its finality. In view of various judgement wherein CIC has stated that pending adjudication which follows well established procedure under law, the disclosure of information at this stage impede the process of investigation. Further after adjudication of the cases and imposition of penalty etc., the evader are due for prosecution or other actions under the law. Also, if the file orders and file notings of investigation are provided i.e. where the opinion and views given by different authorities in the files, it may be used by the appellant and this may adversely affect the case. Hence the information sought for cannot be provided under section 8(1)(h) of the RTI Act as the show cause notices are still pending for adjudication; Para 6 to 8: For the paras mentioned above, the appellant has asked the reasons for not recording the statements and providing the records. The reasons asked are not the information in terms of Section 2(f) of the RTI Act, 2005. Hence the information sought for canot be provided.
10. The appellant in his written submissions filed before the Commission stated as under:
• The CPIO/FAA are treating this as a proceeding under Central Excise completely ignoring the provisions of the RTI Act. The RTI Act seeks to provide information and uphold transparency, whereas the CPIO/FAA are providing commentary of various excise Order dated 28.10.05 etc. to 17 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 suppress transparency, culpable actions, without, justifying any providing any tangible reasons, as per RTI.
• The citation of relied/not relied are not relevant under the provisions of RTI to suppress transparency. The fact, being that the said records of the assessee, were destroyed by the public authority, during the investigation by Commissioner P.K. Ajwani and Supdt D. Chaturvedi, in the matter of S.D. Enterprises and who were arrested for their malfeasant acts. CPIO/FAA should be asked to produce all records to the Commission to verify these facts.
• Section 8(1)(h) has been applied in a mechanical and arbitrary manner by mere citation of Section. Reliance is placed in the matter of Bhatat Singh, which is very clear in this regard. It was held, that without a disclosure as to how the investigation process would be hampered by sharing the materials collected, till the notices were issued to the assessee, the respondents could not have rejected the request for granting information. This in essence, would also allow the disclosure of information, unless the Public Authority could adduce proper reasons to deny information, even when a investigation was in progress.
• That the CPIO, has under the omnibus ground of pending adjudication, sought to invoke section 8(1)(h), to deny the information, which is wholly irrelevant to the information sought, in any case, without even showing as to how the information sought can hinder or impede any quasi/judicial process. The information sought, is in respect of the response of the public authority, in respect to replies and representation of SD Enterprises. • That the CPIO/FAA is directed to provide the records sought by the appellant and as per appellate application filed, since they do not pertain to investigation.
• Order is passed in the matter, that the information sought, be provided after applying the severance clause Section 10(1), if necessary, and deemed fit, after verification of the records by the Commission after the CPIO is able to demonstrate, just reasons for the portion sought to be excised.
10.1 Subsequent to the hearing of these cases on 10.1.2012, the appellant vide his letter 15.10.2012 submits before the Commission as follows:
• The Public authority is under the express direction of the Supreme Court to deliver the records to SDE, as per order dated 23.7.2010 and 9.1.2012; • Adjudication has been completed and order passed on 28.5.2012. • The only ground for denial, cited by the CPIO, was pending adjudication. Without prejudice to the submissions made by the appellant, this ground of pending adjudication, stands obfuscated. • In any case, as per Section 8(2), in any case the public authority canot be permitted to withhold the information int eh face of huge corruption and 18 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 malafide actions fo the public authority. As such it is necessary in the larger public interest that the proper facts are placed before the Courts in order to meet justice. Section 8(2) provides that a pubic authority shall allow access to information if the public interest in disclosure outweigh the harm to the protected interest.
• It is pertinent to mention that, the FAA and the CPIO, had suppressed the Hon'ble Supreme Court order of 9.1.2012, when they appeared before the CIC on 11.1.2012 i.e. after 2 days.
• The appellant therefore request that the public authority, is directed to provide the records within a week and oblige and a speaking order is passed in the matter.
11. The respondent in their written submissions dated 4.1.2012 filed before the Commission have stated as follows:
• Shri Deepak Agrawal (appellant) is alleged to have evaded crores of Central Excise duty in his partnership firm M/s. S.D. Enterprises and for this evasion he has been issued several show cause notices which are still pending adjudication with the Central Excise authorities because the said appellant being of litigant nature has stalled the due process of adjudication by filing court cases from time to time. Finally, the Hon'ble Supreme Court of India has ordered conditionality to adjudicate the cases in time-bond manner now. Further, it is found that the appellant is seeking information, documents and records seeking corroboration and co-relation of his seized records., interpretation of Laws Rules and Notifications in respect of cases booked against M/s. S.D. Enterprises where he being the Managing Partner and his wife is the other partner of M/s. S.D. Enterprises. The matter is still sub-judice, pending adjudication. • The appellant has been issued following Show Cause Notices for evasion of Central Excise Duty and fraudulent rebate claims already claimed which are: 1. Vide F. No. V/P1/TH-II/30-06/2004/2634 dated 19.7.2004 for confiscation of seized excisable good valued at Rs. 20,48,282/- and 2. Vide F. No. V/P1/TH-II/3C-06/7753 dated 31.1.2006 for demand of rebate of Rs. 1,53,52,659/- fraudulently claimed by M/s. S.D. Enterprises are for rejection of rebate amounting to Rs. 2,03,81,566/- wrongly claimed by M/s. S.D. Enterprises along with penal action against M/s. S.D. Enterprises, Shri Deepak Agarwal and others both duly approved by the erstwhile Commissioner of Central Excise Thane-II and 3. Vide F. No. V(73)/rebate/ARE-2/1746/04 dated 15.2.2005 issued by Assistant Commissioner of Central Excise, Vasai Division proposing rejection of the pending fraudulent rebate claim of Rs. 1,72,663/- by M/s. S.D. Enterprise. • The show cause notices along with all the relied upon documents were duly received and acknowledged by Shri Deepak Agrawal the Co-noticee vide his letter dated 19.7.2004 and the other one dated 31.1.2005 was 19 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 sent through speed post dated 2.2.2005 by the office to M/s. S.D. Enterprises.
• It is worth to mention that the assessee has not filed any reply to the show cause notices till date and as such, they appear to have defaulted. After the above said judgement Shri Deepak Agrawal, Managing Partner of M/s. S.D. Enterprises has shot number of applications loaded with predominantly uncalled for questions under the pretext of captioned order of the Apex Court and RTI Act.
• Moreover the appellant has filed in all 95 applications under RTI Act under the jurisdiction of this Commissionerate during the period from October 2010 to September 2011. The appellant has also filed subsequent appeals in 46 cases before the FAA during the period from October 2010 to September 2011. All these RTI applications and appeals have been duly replied by the office within the stipulated time frame on the basis of available records with the department, which is in conformity with the 'Principles of Natural Justice' 'Directives of the Apex Court' and RTI Act. • Further, it is not open to an appellant to ask, in the guise of seeking questions to the public authorities about the nature and quality of their actions. The RTI Act does not cast on the public authority any obligation to answer the question with prefixes such as, Why, What, When and Whether. This view has been held by Hon'ble CIC vide F. No. CIC/AT/2006/00045 dated 20.1.2006 in the case of Dr. D.V. Rao Vs. Department of Legal Affairs.
• Further immediately after issuance of Apex Court's directives dated 23.7.2010 the appellant filed application consisting of in all 402 number of questions seeking additional documents as per the directives of the Apex Court from this Commissionerate.
• CIC decision issued vide F. No. CIC/AT/A/2008/00159 dated 17.6.2008 - Bench Shri A.N. Tiwari - wherein the Commission held that disclosure of information at any stage prior to the determination of Tax liability by the designated authority impedes the process of such determination and the ongoing investigation and therefore exempt under Section 8(1)(h). In the case of the appellant, the determination of duty liability under Central Excise Act and further course of action involving prosecution is still not determined and is pending at the level of adjudicating authority which is to be finalized as directed by Apex Court vide order dated 23.7.2010 may impede the process of such action in this case also. Therefore it is exempted u/s 8(1)(h) of the RTI Act.
• CIC decision issued vide F. No. CIC/AT/A/2007/, 00010, 00011 dated 10.7.2007 - Bench Shri A.N. Tiwari - wherein the Commission held - Investigation would mean all actions of law enforcement, disciplinary proceedings, enquiries, adjudications and so on, no investigation could be said to be complete unless it has reached a point where the final decision on the basis of that investigation is taken. In the case of Income Tax Department, investigation into tax evasion can be said to be complete only after the final adjudication about tax liability had been made after the 20 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 matter has gone through all the stages of appeals and revisions as well as a final decision about prosecuting or not prosecuting that person has been taken by an appropriate competent authority. In the instant case the adjudication proceedings are still pending because of non submission of reply by the assessee as well Shri Deepak Agrawal, Managing Partner of M/s. S.D. Enterprises (Co-noticee) to the show cause notices issued by the Department.
• CIC decision issued vide F. No. CIC/AT/2006/00039 dated 1.6.2006 - Bench Shri A.N. Tiwari wherein the Commission held that while in criminal law an investigation can be said to be completed with the filing of the Charge Sheet in an appropriate Court by an investigating agency, in case of vigilance related enquiries, misconduct and disciplinary matters, the investigation can be said to be over when the competent authority makes a determination about the culpability or otherwise of the person or persons investigated against in that sense, the word investigation u/s 8(1)(h) of the Act should be construed rather broadly and should include all enquiries, verification of records, assessment and so on which may be ordered in specific cases. In all such matters the enquiry or the investigation should be taken as completed only after the competent authority makes a prima facie examination about presence or absence of guilt on receipt of the investigation/ enquiry report from the investigation/enquiry officer. • Further after adjudication of the cases and imposition of penalty etc. the evader are due for prosecution or other actions under the law. Also if the file orders and file notings of investigation are provided i.e. where the opinion and views given by different authorities in the files, it may be used by the appellant in this may adversely affect the case. Hence the information sought for cannot be provided under section 8(1) (h) of the RTI Act.
12. In compliance with the directions of the Commission dated 1.11.2011, the respondent brought the relevant records. I have seen the relevant records, on perusal of the records it is observed by the Commission that these records pertained to investigations carried out over a period of time since 2004 with inputs provided by a number of officers, who have handled these files, which culminated in the issue of the show-cause notice based on these inputs. The file notings consists of contributions made and views and opinions of various officers who handled the enquiry into the matter. They also contain notings/ directions given by different authorities as and when the investigation process was brought to their notice. Moreover, though the Central Excise adjudication authority has passed an order on 28.5.2012, the appellant had proceeded to file an appeal against the adjudication order. Therefore, the disclosure of information at any 21 Case No. CIC/SS/A/2011/000906, 000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100 stage prior to determination of tax/duty liability, and further course of action, if any, involving prosecution, may adversely affect the proceedings including prosecution. Therefore, consistent with the aforementioned decisions of the Commission, the respondent have no disclosure obligation under the provisions of Section 8(1) (h) of the RTI Act, 2005. Furthermore, the Commission also notes that a number of queries of the appellant are in the nature of questioning the action/decision of the investigating authorities and seeking reasons for the same. Such queries cannot be termed as "information" as defined u/s 2(f) of the RTI Act. The Commission finds no reasons to interfere with the replies of the respondent in all the nine instant appeals filed by the appellant. No action is called for on the part of the Commission.
(Sushma Singh) Information Commissioner Authenticated true copy:
(K.K. Sharma) OSD & Deputy Registrar Address of the parties:
Shri Deepak Agrawal, 459/A-2, Shah & Nahar Industrial Estate, Dhanraj Mills Compound, Lower Parel (W), Mumbai-400013.
The CPIO, Office of the Commissioner of Central Excise -Thane-II, Navprabhat Chambers, Ranade Road, Dadar, Mumbai-400028.
The First Appellate Authority, Office of the Commissioner of Central Excise -Thane-II, Navprabhat Chambers, Ranade Road, Dadar, Mumbai-400028.22 Case No. CIC/SS/A/2011/000906,
000907,000908, 000819, 000904, 000905, 000926, 000927 & 001100