Central Information Commission
A K Jain vs Chief Commissioner, Central Excise, ... on 30 July, 2018
के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No. CIC/CCEDL/A/2017/153290-BJ
Mr. A.K. Jain
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Office of the Principal Commissioner of
Central Excise, Delhi I, C.R. Building,
I.P. Estate, New Delhi - 110002
... ितवादीगण /Respondent
Date of Hearing : 27.07.2018
Date of Decision : 30.07.2018
Date of RTI application 01.12.2016
CPIO's response 10.04.2017
Date of the First Appeal 12.06.2017
First Appellate Authority's response Not on Record
Date of diarised receipt of Appeal by the Commission 31.07.2017
ORDER
FACTS:
The Appellant vide his RTI application sought inspection of all the files and records concerning and dealing with SCN No. IV (HQ. PREV) 15/43/2000/1527 dated 29.06.2001 issued to M/s M.M. Electronics under the CE Act by the CCE, Delhi-I including the adjudication, if any, done after the issuance of the SCN.
The CPIO vide its letter dated 10.04.2017 denied disclosure of information u/s 8(1)(h) of the RTI Act, 2005. Dissatisfied with the CPIOs response, the Appellant approached the FAA. The FAA order, if any, is not on the record of the Commission.
HEARING:
Facts emerging during the hearing:
The following were present:Page 1 of 4
Appellant: Absent;
Respondent: Mr. Piyush Sharma, CPIO/Assistant Commissioner (CGST); Mr. K. K. Saxena, Superintendent and Mr. Kuldeep Singh, Superintendent;
The Appellant remained absent during the hearing. The Respondent explained that a suitable reply had been furnished by the CPIO/FAA in the matter. Furthermore, it was submitted that the RTI application of the Appellant dated 01.12.2016, was answered by the CPIO on 18.01.2017 wherein the information sought was denied u/s 8(1) (d) of the RTI Act, 2005 as it was related to M/s M. M. Electronics. Dissatisfied with the reply, the Appellant filed his First Appeal on 25.01.2017, received at their office on 30.01.2017. The First Appeal was answered by the FAA on 15.03.2017 in which the CPIO was again directed to look into the matter and for providing reasons to the Appellant. Subsequently, the CPIO vide its letter dated 10.04.2017 in compliance with the direction of the FAA, provided a suitable reply wherein the information sought was denied u/s 8(1)(h) of the RTI Act, 2005 and further Para-I of Boards' Instruction dated 19.08.2011 was re-iterated as "Investigation into tax evasion can be said to be over or complete, only after the final adjudication about the tax liability had been made after the 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". Hence, based on the Board's instruction, the information was denied as the disclosure could impede the process of investigation.
The Commission was in receipt of a written submission from the Respondent dated 18.07.2018 while reiterating the RTI application, reply of the CPIO dated 10.04.2017, it was submitted that the Appeal filed by the Appellant on 19.06.2017 in response to CPIO, Delhi-Is reply dated 10.04.2017 had not taken into consideration by the First Appellate Authority as the same was not filed within the stipulated period of 30 days.
The Commission referred to the definition of information u/s Section 2(f) of the RTI Act, 2005 which is reproduced below:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
Furthermore, a reference can also be made to the relevant extract of Section 2 (j) of the RTI Act, 2005 which reads as under:
"(j) right to information" means the right to information accessible under this Act which is held by or under the control of any public authority and includes ........"
In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC 497 (CBSE and Anr. Vs. Aditya Bandopadhyay and Ors), wherein it was held as under:
Page 2 of 435..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to 'opinion' or 'advice' in the definition of 'information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act."
Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010) had held as under:
6. "....Under the RTI Act "information" is defined under Section 2(f) which provides:
"information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force."
This definition shows that an applicant under Section 6 of the RTI Act can get any information which is already in existence and accessible to the public authority under law. Of course, under the RTI Act an applicant is entitled to get copy of the opinions, advices, circulars, orders, etc., but he cannot ask for any information as to why such opinions, advices, circulars, orders, etc. have been passed."
7. "....the Public Information Officer is not supposed to have any material which is not before him; or any information he could have obtained under law. Under Section 6 of the RTI Act, an applicant is entitled to get only such information which can be accessed by the "public authority" under any other law for the time being in force. The answers sought by the petitioner in the application could not have been with the public authority nor could he have had access to this information and Respondent No. 4 was not obliged to give any reasons as to why he had taken such a decision in the matter which was before him."
Furthermore, the Commission in the decision of K.S. Prasad vs SEBI CIC/AT/A/2007/007/00234 had held as under:
"...as soon as an investigation or an enquiry by a subordinate Enquiry Officer in Civil and Administrative matters comes to an end and, the investigation report is submitted to a higher authority, it cannot be said to be the end of investigation. ... which can be truly said to be concluded only with the decision by the competent authority."
In this context a reference can be made to the decision of the bench of the Commission in Shri Arun Kumar Agrawal v. SEBI CIC/SM/A/2012/000196 dated 28.11.2014 wherein it was held as under:
Page 3 of 4"15. In the present case, final orders are yet to be passed by the competent authority under the SEBI Act. Therefore, the process of investigation against the RIL is still pending before SEBI and it cannot be said the same has reached its conclusion. Hence, the requested information falls under exemption under section 8(1) (h) of the Act.
16. The Commission recognizes the perspective brought out on public interest in the course of the hearing. The appellant had underlined emphatically the dimensions of public interest overriding the protected interest, i.e. the protection given to the 'fiduciary' elements. However, the other side argued that the appellant is overstating the public interest without taking into account that the investigation is still going on. We have, therefore, to await the completion of this investigation. It will not be wise for the Commission to speculate as to what conclusions the SEBI will draw."
The Appellant was not present to contest the submissions of the Respondent or to substantiate his claims further.
DECISION:
Keeping in view the facts of the case and the submissions made by the Respondent, and in the light of abovementioned judgments, no further intervention of the Commission is required in the matter.
The Appeal stands disposed accordingly.
Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/ [email protected]
दनांक / Date: 30.07.2018
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