Central Information Commission
Venkat Prasad P vs Chief Commissioner Of Customs & Central ... on 15 September, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No: CIC/CCEVZ/A/2022/665221
CIC/DGSTX/A/2022/159702
CIC/DGSTX/A/2023/100458
Venkat Prasad P ......अपीलकता/Appellant
VERSUS
बनाम
The CPIO,
Assistant Commissioner of
Central Tax, RTI Cell,
Vizianagaram Division,
Visakhapatnam Commissionerate,
Near Dandumaramma Temple,
Vizianagaram-535003,
Andhra Pradesh. .... ितवादीगण /Respondent
Date of Hearing : 11/09/2023
Date of Decision : 14/09/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note: The above referred appeals have been clubbed for decision as the same
appeal has been filed/registered multiple times.
Relevant facts emerging from appeals:
RTI application filed on : 21/06/2022
CPIO replied on : 21/07/2022
First appeal filed on : 20/08/2022
First Appellate Authority order : 09/09/2022
2nd Appeals/Complaints dated : 06/12/2022 re-submitted on 27/12/2022
1
Information sought:
The Appellant filed an RTI application dated 21.06.2022 seeking the following information:
"1. Whether any certificate in Form A-2 under Notification No.12/2013 S.T dated 01.07.2013 (as amended) was issued to M/s. Dr. Reddy's Laboratories Ltd. (FTO SEZ Process Unit -II), registered with STC AAACD7999QSE010, located at Sy.No. 70,71, & 73, DevunipalavaIasa Village, Ranasthalam Mandal, Srikakulam District -- 532 409, Andhra Pradesh, India for the services procured by it for the SEZ authorized operations during the period April 2013 to July 2017.
2. If answer is yes, please provide the copy of all those certificates (Form A-2) given to M/s. Dr. Reddy's Laboratories Ltd. (FTO SEZ Process Unit -II) during the period April 2013 to July 2017.
3. Also provide the copies of Quarterly returns filed Form A-3 filed for the period April 2013 to July 2017."
The CPIO furnished a reply to the appellant on 21.07.2022 stating as under:
"In respect to the information solicited vide RTI application, it is to state that the information cannot be furnished by this office as it attracts exemption under section 8(1)(j) of Right to Information Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 20.08.2022. FAA's order dated 09.09.2022, upheld the reply of CPIO stating inter alia as under:
"On perusal of the above it is observed that Form A-2 is a certificate and Form A-3 is a quarterly statutory return and both contain details of the persons who provided the services to M/s. Dr Reddy Labs along with other details. The act of filing the returns with the department cannot be construed as public activity. The expression "public activity" would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression "public activity would denote activity done for the public and/or in some manner available for participation by public or some section of public.
In the instant case, though the certificates were issued (In Form A2) by Revenue authorities exercising the power given under Notification issued under law, the same contain information of service providers, their addresses and registration nos., with whom M/s. Dr. Reddy Labs have business dealings with for provision of different services to be used in authorized operations of M/s. Dr. Reddy Labs as 2 approved by Unit Approval Committee. That means & contains the trade confidential personal information of suppliers of services of M/s. Dr. Reddy Labs. This on one hand falls under "personal Information as per the case law in Naresh Kumar Trehan v. Rakesh Kumar Gupta in W.P.(C) 85/2010 & CM Nos. 156/2010 & 5560/2011 dated 24.11.2014, wherein the Hon'ble High Court of Delhi held that:
'25 Indisputably, Section 8(1) of the Act would be applicable to the information pertaining to Dr Naresh Trehan (petitioner in W.P.(C) 88/2010) and the information contained in the income tax returns would be personal information under Section 8(1)(1) of the Act. However, the CIC directed disclosure of information of Dr Trehan also by concluding that income tax returns and information provided for assessment was in relation to a "public activity." in my view, this is wholly erroneous and unmerited. The act of filing returns with the department cannot be construed as public activity. The expression "public activity" would mean activities of a public nature and not necessarily act done in compliance of a statute. The expression "public activity" would denote activity done for the public and/or in some manner available for participation by public or some section of public. There is no public activity involved in filing a return or an individual pursuing his assessment with the income tax authorities. In this view, the information relating to individual assesse could not be disclosed. Unless, the CIC held that the same was justified "in the larger public interest' Further the Hon'ble High Court of Bombay in the decision of Shailesh Gandhi Vs. CIC and Ors [WP 8753 of 2013 dated 06.05.2015] had held as under:
'16. the said contention is thoroughly misconceived as filing of Income Tax Returns can by no stretch of imagination be said to be a public activity, but is an obligation which a citizen owes to the State viz to pay his taxes and since the said information is held by the Income Tax Department in a fiduciary capacity, the same cannot be directed to be revealed unless the prerequisites for the same are satisfied.' The same view was fortified by Hon'ble Supreme Court in Girish Ramchandra Deshpande Vs Central Information Commission &Ors. [(2013) 1 SCC 212. (2012) 8 SCR 1097] xxx 3 In the instant case, the devolution of details of service providers, their address & Service tax registrations, with whom M/s. Dr. Reddy Labs have business relationship for provision of different services to be used in their authorized operations would definitely have an effect and harm on the competitive position of M/s Dr Reddy Labs and would be detrimental to the business interests and competitive edge. It's a matter of commercial confidence, if disclosed would harm the competitive position of the third party The same view was upheld by Hon'ble CIC in Shri. Dinesh Sankla Vs IOCL (CIC/LS/A/2013/001128/L5 dated 27-01-2014), wherein it was held that sales figures in respect of Shri Hiraji Filing Station pertains to commercial confidence trade secrets of third party and therefore the provisions of Section 8(1) (d) and (e) would apply. Similarly in Shri Ram Avtar Singla Vs HPCL (CIC/SH/A/2014/000624 dated 13-04-2015 where information regarding the expenditure incurred by twenty retail outlets of HPCL on developing their premises and the date of commissioning of the outlets was sought, CIC upheld the decision of CPIO holding that information regarding the expenditure incurred by the owners of the outlets to develop their premise is concerned, it is a matter of commercial confidence."
Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal stating inter alia as under:
"In the above background, it is submitted that an SEZ Unit Developer who receives any goods/services is not entitled to collect an indirect tax levy (viz., erstwhile Central Excise, Service Tax, VAT etc., now GST) from supplier of goods/services. Form- A-2 is the evidence that for supplies approved by SEZ officer there will not be any indirect tax levy. Form-A-2 will be shared to provider of supplies or his sub-contractor/s also and is in public domain always.
Further, Form- A-2 is not a rigid document, the details contained therein viz., approved supplies and provider of such approved supplies are always subject to change. Many times, one service provider can sub-contract the supply of goods/services to any person and such sub-contractor have to show the Form-A-2 collected from SEZ Unit/Developer to claim the exemption from payment of indirect tax levy.
Further, Form A-2 is issued by revenue authorities exercising power given under Central Govt Notification issued under Central Laws and is not the personal information which invades the privacy of the person. It is submitted that both CPIO and FAA erred in not allowing the information of at-least Form A-2 as it is just an exemption certificate on certain type of transactions which do not reveal anything 4 about the exact nature of work done or actual transaction thereby does not contain any private information.
Further, Form- A-3 is a document which is to be filed by the SEZ Unit/Developer correctly reflecting the value of the supply of goods/services received by them and exemption claimed from payment of service tax.
Both Form A-2 and A-3 are documents which are having direct nexus with the Public Interest at large as the service tax if collected by one entity in the supply chain during the transaction between the SEZ Unit Developer and the supplier of goods or services, the incidence of which will have to be borne by the ultimate consumer of such supplier of goods/services. Further, Appellant submits that that the records and files relating to protection of public revenue or enforcement of laws are public documents and providing access to the same serves larger public interest of safeguarding public revenue. Denial of information can always lead to presumption that government case/money has been compromised/lost due to irregularities, collusion and other lapses on the part of the departmental officials or persons representing department in different foras and public confidence in the government and its machinery is vital for a vibrant and working democracy. Hence, disclosure of information in question is in public interest.
In this regard, reliance is placed on:
(a) R.K Jain Vs Department of Central Excise, Delhi-I 2009 (241) ELT 2O4 (C.B.E. & C)
(b) V. Madhav Vs Tamil Nadu Information Commission 2012 (276) ELT 24 (Mad) Appellant submits that from the above referred. decisions, it is clear that the information requested by the Appellant can be accessed as a matter of Right.
xxx The cases relied upon by the CPIO and FAA pertains to access of information covered under Income Tax laws (where tax is paid by the person himself on his earnings) and documents are personal in nature. whereas, the information requested here pertains to Indirect Tax law (where tax paid by the manufacturer, trader or supplier is passed on to ultimate public who pays more for such product or services and such information requested has direct nexus to public at large and their interest.
5As submitted above, the Form A-2 and FormA-3 are public documents in public domain and are not private agreements between private parties about their commercial transaction or trade secret. Hence, rejecting the information on this ground is baseless and without proper appreciation of facts which deserves to be set aside."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through intra-video conference.
Respondent: Not present.
The Appellant reiterated at length the grounds of appeal as mentioned above and emphasised that the preface to the notification dated 01.07.2013 under reference itself contains the mention of "public interest" itself and therefore the information being desired from him cannot be said to not have any public interest. In this regard, he invited the attention of the bench to the following contents of the averred notification:
"In exercise of the powers conferred by sub-section (1) of section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the said Act) read with sub-section 3 of section 95 of Finance (No.2), Act, 2004 (23 of 2004) and sub-section 3 of section 140 of the Finance Act, 2007 (22 of 2007) and in supersession of the notification of the Government of India in the Ministry of Finance (Department of Revenue), No. 40/2012-Service Tax, dated the 20th June, 2012, published in the Gazette of India, Extraordinary, Part II, Section 3, Sub-section (i), vide number G.S.R. 482 (E), dated the 20th June, 2012, except as respects things done or omitted to be done before such supersession, the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the services on which service tax is leviable under section 66B of the said Act, received by a unit located in a Special Economic Zone (hereinafter referred to as SEZ Unit) or Developer of SEZ (hereinafter referred to as the Developer) and used for the authorised operation from the whole of the service tax, education cess, and secondary and higher education cess leviable thereon."
Decision:
The Commission based on a perusal of the facts on record observes that the primary or the sole point of invoking the exemption of Section 8(1)(j) and 8(1)(d) of the RTI Act by the FAA is that "In the instant case, the devolution of details of service providers, their address & Service tax registrations, with whom M/s. Dr. Reddy Labs have business relationship for provision of different services to be used in their 6 authorized operations would definitely have an effect and harm on the competitive position of M/s Dr Reddy Labs and would be detrimental to the business interests and competitive edge." In other words, disclosure of the identity of the service providers will be an invasion of the privacy of the said service providers and will also be a harm to the competitive position of M/s Dr Reddy Labs.
Now, the Appellant has made a rather strong case of larger public interest imminent in the matter by way of placing reliance on the text of the averred notification itself which bears the mention of having implication of public interest. The facts of the instant case call for the applicability of the Preamble to the RTI Act which provides as under:
"And whereas revelation of information in actual practice is likely to conflict with other public interests including efficient operations of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; And whereas it is necessary to harmonize these conflicting interests while preserving the paramountcy of the democratic ideal;.."
In other words, the square denial of the information related to the averred notification which was issued for waiver of service tax of a specified nature does not appear appropriate. The said view has been taken after a considered perusal of the specimen Form A2 and A3 that was placed on record in the FAA's order. Having perused the contents thereof and after taking into consideration the public interest aspect in the case, the Commission opines that Section 10 of the RTI Act can be duly invoked to redact and provide limited information, disclosure of which has no bearing on the privacy of the third-party service providers or on the competitive position of M/s Dr Reddy Labs.
Section 10 of the RTI Act provides for severance of exempted categories of information to facilitate the right to information of the applicants while preserving the confidentiality and sensitivity of exempted information.
Adverting to the foregoing observations, the CPIO is directed to revisit the instant RTI Application and provide the available information in terms of names/description of services; value of services, service tax + cess amount claimed as exemption (i.e subject heads as contained in the specimen Form 2 & 3). For emphasis, the CPIO shall note that NO names, addresses, registration numbers etc. of third-party service providers or any other names & identifying particulars of third parties figuring in the averred Forms will be disclosed in line with the exemption of Section 8(1)(j) and 8(1)(d) of the RTI Act as has been brought out in the FAA's order.
7The said revised reply shall be provided to the Appellant by the CPIO within 30 days from the date of receipt of this order under due intimation to the Commission.
Lastly, the Commission takes grave exception to the fact that neither the CPIO filed any written submissions in the matter, nor did the CPIO appear for the hearing without intimating any reasons thereof. This amounts to causing a grave disregard to the Commission's proceedings and calls for a proper explanation from the CPIO. The CPIO is hereby directed to send a written explanation in this regard to the Commission within 15 days from the date of receipt of this order.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) हािन) Information Commissioner (सूचना आयु ) Authenticated true copy (अिभ मािणत स!यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 8