Central Information Commission
Shri Rajiv Gupta vs Customs Department, Raigad on 14 November, 2008
CENTRAL INFORMATION COMMISSION
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F.No.CIC/AT/A/2008/00525
Dated, the 14th November, 2008.
Appellant : Shri Rajiv Gupta
Respondents : Customs Department, Raigad
This matter was heard through videoconferencing on 10.11.2008. The appellant and the respondents both were present at the NIC Studio at Mumbai. Commission conducted the hearing from the office of CIC at New Delhi.
2. The second appeal is related to appellant's RTI-application dated 27.11.2007.
3. During the hearing, respondents pointed out that the matter which the appellant has raised through his RTI-query is over 14 years old. The queries are mostly requests for explanations and reasons from the respondents about certain suppositions which appellant seems to have been making. A part of the information has been provided to him which the respondents could lay their hands on but most information could not be given as, according to the respondents, it is untraceable, possibly destroyed in the fire which engulfed the office in the year 2002.
4. The RTI-queries of the appellant read as follows as contained in his application dated 27.11.2007:-
"1. Is the Customs department made aware by the Central Warehousing Corporation (CWC), CFS, JNP that the goods were stolen.
2. What did the Customs department do after it was informed by the CWC that the goods have been stolen.
3. What is the responsibility of the Customs department when the goods are stolen.
4. If the goods are stolen & no delivery is given by the Customs department then is the Customs required to re-credit the debit entry in the entitlement i.e. the corresponding Advance Licence & the DEEC book.
5. If the answer to question No.4 is yes then why it has not been carried out in case of B/E No.001281 dtd. 12.8.94. Who is responsible for this lapse & when action is being taken to rectify the position.Page 1 of 6
6. Did the exporter make a request to re-credit the entry in respect of Trimethoprim, which was reportedly stolen in respect of DEEC book No.068652 dtd. 14.8.92.
7. If the answer to question No.6 is yes then is the credit due to the exporter in the entitlement i.e. DEEC book in light of the fact that the material was not delivered to the exporter.
8. Was the Customs required to pass an order in respect of the credit in DEEC book No.068652 dtd.14.8.1992 or issue a deficiency memo if there were any discrepancies.
9. Please let me know if any deficiency memo if there were any discrepancies requested by the importer in respect of book No.068652 dtd. 14.8.1992. If yes, please provide copy thereof.
10. Please let me know if any Order has been issued in respect of the credit being requested by the importer in respect of book No.068652 dtd. 14.8.1992. If yes, please provide copy thereof.
11. If the DEEC No.068652 dtd. 14.8.92 has not been credited because of the goods not being delivered by the CWC (because of theft) then what is the reason for the same.
12. Did the RLA, Mumbai call for a report from the JNPT in this matter.
13. If the answer to question No.9 is yes then please furnish a copy of the report sent to RLA, Mumbai.
14. If no report as [sic] been sent to RLA, Mumbai then who is responsible for it & what action is being taken by the Customs department.
15. The CWC says goods were stolen; exporter has made a request for credit; Customs has been independently informed by the CWC regarding the theft of goods; FIR is filed about the loss of goods; RLA, Mumbai has called for the report but still the Customs, JNPT prefers to sleep over the matter. What else is required to give re-credit. Please give detailed reply in relation to the procedure left to be completed.
16. Please refer Annexue-5. [sic] This is a copy of the letter addressed to the Chief Commissioner, JNPT, Nhava Sheva by the applicant on 16.11.07. What action the Chief Commissioner has taken in this matter on receipt of the letter. Please provide details of the remark / file note.
17. Please refer Annexe-6. [sic] This is a copy of the letter addressed to the Commissioner (Import), JNPT, Nhava Sheva by the applicant on 16.11.07. What action the Commissioner has taken in this matter on receipt of the letter. Please provide details of the remark / file note."Page 2 of 6
5. The Appellate Authority's order mentioned "The appellant has applied for information under the Right to Information Act, 2005 vide his letter number CPIO:03 dated 25.11.2007 regarding re-credit of the DEEC Book for the imported goods which were not delivered to importer but debited in Advance Licence. While seeking information the appellant has listed 17 queries. CPIO has furnished reply vide order dated 18.12.2007. The Appellant is not satisfied with reply of CPIO in respect of questions no.1, 2, 3, 4, 6, 11, 12 and 15.
In reply to queries no.1, 2, 6, 11 and 12 CPIO has furnished the reply that records are not available along with the reasons for non-availability. The Appellant's plea is that base documents were provided and that action/information based on such documents was necessary. The appellant's plea basically is that CPIO should have reconstructed the files on the basis of documents submitted by appellant and taken action accordingly. The appellant plea is not justified. That CPIO has to furnish information available with the public authority. That CPIO is not the proper authority to reconstruct the documents.
In reply to queries no.3 CPIO has furnished the reply that responsibility is of custodian, however while replying query no.15 CPIO has furnished the reply that the customs duties has to be recovered from the custodian.
The information sought by appellant basically is in the form of queries seeking opinion, explanation and clarification from CPIO for non-credit off DEEC Book on account of the stolen goods. The queries no.3, 4, 11 and 15 particularly are in the nature of seeking clarification and explanation of CPIO. Hon'ble CIC in various cases has held that information has to be provided in the form in which it exists, it does not have to be created afresh by the public authority to supply to the information requested. Further information and the right to seek does not include opinion, explanation, etc. CIC vide decision dated 6.11.2006 in Appeal no.151/ICPB/2006 has held that AA has rightly pointed that the information sought being in the nature of opinion, explanation and clarification, etc cannot be furnished.
It is also observed that this is a very old case, the goods were imported in 1994. The appellant while seeking information is basically asking CPIO to reconstruct the case papers based on the documents supplied by appellant and take action. The CPIO or the Appellate Authority cannot reconstruct the file. This is beyond the jurisdiction of CPIO. Moreover, the appellant at length has tried to make a case that base documents have been supplied based on which action should have been taken by CPIO.
Page 3 of 6But the only communication from appellant to Customs is one letter addressed to Deputy Commissioner (there is no date on the letter) and letters written by appellant to Chief Commissioner of Customs and Commissioner of Customs on November 14, 2007. CPIO in reply to query no.16 and 17 has already replied that letter dated 5.12.2007 has been written to the party to furnish all the relevant documents and previous correspondence. As held by the CIC in the case of Shri R.S. Kaushik vs. Northern Railway, New Delhi (decision dated June 16.1.2008). RTI is not a right platform for redressal of the grievance. These issues can be settled at the department level only. I advice the Appellant to approach the concerned section in this matter.
In view of the above I do not find any merit in appeal hence the same is rejected."
6. The appellant's contention is "The CPIO simply cannot say that the records are missing and come out of the responsibility more so when the documents are made available by the applicant.
The information does not mean that the CPIO has to look into the question bank and give the reply. If there is a circular of the CBEC, New Delhi, the CPIO cannot deny that this information is not available with him. Similarly, if the issue has been subject matter of court decision then that CPIO needs to be aware of that and this information cannot be ignored. The officials in position are to be abreast of the latest and not history. They cannot take advantage of their ignorance or their inefficiency to harass the public. When these officials are in public service organization, it is their responsibility to help them and not to lord over them by ignoring whatever is convenient to them. This is specified here because behind the back of the importer the letter has been written to the CWC to claim their duty. Now, why this information should not be given to the applicant are why the authority is taking a stand as if they owe no responsibility at all by claiming the loss of records. If the records are lost does that mean that the authority is not bothered at all and just because the records are not available then the cases of these nature die and those who have liability against them they can be freed of their liability. This only speaks of and shows that the officials in position are not bothered about any liability/responsibility and it gives an impression that they care a hoot about such losses. The CPIO is not saying that the documents given by the applicant are bogus therefore in relation to them, why the information cannot be given.
Page 4 of 6The RTI Act does not refrain the CPIO to give the information on the basis of the documents submitted by the applicant. Yes, if required the CPIO can seek more time but this highhandedness of repudiating the liability due to lack of documents is intolerable. Not only this, the Appellate Authority is misleading the information seeker by referring only to one letter addressed to the deputy commissioner by importer and ignoring the others. The Appellate Authority needs to be aware of that the letter sent by the customs department has replied and then customs has failed to take any appropriate action till date. The customs officials are indulging into undue delay to frustrate the efforts of the importer to get the legitimate relief.
As stated earlier, there is a CBEC circular in relation to the theft of material in the custody of the custodian and the CBEC circular clearly says that under such circumstances, the customs authority will claim the duty from the custodian. Now, it is their responsibility of the officials in position that they are aware of the circular, by which they are bound. Secondly, if the customs have claimed the duty from the CWC then they cannot but cancel the liability of the importer. They cannot indulge into cheating and not extinguish the liability of the importer.
The CPIO on purpose has provided wrong information and the Appellate Authority has furthered the cause of CPIO by non-application of mind. If this is permitted then there is no sanctity of the RTI Act people will be just wasting their time. This cannot be permitted.
Please note that the CPIO and the Appellate Authority are not only RTI authorities but they are responsible officials in the customs department and they cannot just disown their basic responsibility of being accountable and responsible in their primary function. Thus just disassociating themselves to walk out of the responsibility to take appropriate action under the RTI Act is not tenable proposition. If the CPIO/appellate authority does not think that they are responsible for taking appropriate action as responsible customs official then they have to pass the request of information to that official and then he becomes the deemed CPIO and required to take appropriate action as per my reading of the RTI Act. It is not comprehensible that the department simply repudiates an action lying on their part in spite of several authorities and importer having taken up the matter in the past. If this continues then there is no transparency in the system, no accountability and responsibility. The citizens the government suffers for the inefficiency of these officials.
Page 5 of 6Appropriate action for giving wrong information & repudiating their basic responsibility therefore needs to be taken when the document copies are made available by the applicant."
7. After perusal of the records submitted by both sides and hearing the arguments, it is noted that the fact that the issue which the appellant is now raising is over 14 years old cannot be ignored. I am also not prepared to go along with the appellant's contention that the information had been denied to the appellant by the respondents due to some mala-fide intention on their part. A look at the queries which appellant has made reveals that he is more interested in seeking explanations and reasons from the respondents in a matter which is admittedly not held by the public authority being untraceable, possibly lost, in an accidental fire several years ago.
8. First Appellate Authority has passed a detailed and reasoned order. He has pointed out that the appellant seems to be dissatisfied with the replies of the CPIO in respect of queries at Sl.Nos.1-6; 11, 12 and 15. Records in respect of queries at 1, 2, 6, 11, and 12 are reported to be unavailable ⎯ possibly lost or destroyed. Appellate Authority has declined to support the appellant's plea that CPIO should be called upon to reconstruct these files for the appellant's benefit on the basis of documents which the appellant has supplied to the CPIO. Appellate Authority has rightly held that CPIO was obliged under the RTI Act to furnish to the appellant information which he held and was not obliged to provide to him any information which was not in the control of the public authority. In reference to query no.3, CPIO has informed appellant that that was beyond the scope of the responsibility of the public authority. He has furnished a reply to query no.15.
9. Appellate Authority has stated that queries at Sl.Nos.3, 4, 11 and 15 are all in the nature of seeking explanations, reasons, etc., which RTI Act did not enjoin the public authority to furnish these. He has held that appellant has attempted to redress an outstanding grievance through recourse to RTI which was not a proper forum for redressal of grievances, much less old grievances such as this.
10. In view of a clear and reasoned finding by the Appellate Authority, I find no reason to interfere with the AA's order.
11. Appeal disposed of with these directions.
12. Copy of this decision be sent to the parties.
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