Central Information Commission
Rahul Gupta vs Directorate General Of Foreign Trade on 6 June, 2023
Author: Saroj Punhani
Bench: Saroj Punhani
के य सूचना आयोग
Central Information Commission
बाबागंगनाथमाग, मु नरका
Baba Gangnath Marg, Munirka
नई द ल , New Delhi - 110067
File No.: CIC/DGOFT/A/2022/669439 +
CIC/DGOFT/A/2022/669445 +
CIC/DGOFT/A/2022/669449 +
CIC/DGOFT/A/2022/669509 +
CIC/DGOFT/A/2022/669510 +
CIC/DGOFT/A/2022/669555 +
CIC/DGOFT/A/2023/610664
RAHUL GUPTA ......अपीलकता/Appellant
VERSUS
बनाम
CPIO,
DGFT, Office of the Additional Director
General of Foreign Trade (CLA),
RTI Cell, A-Wing, Indraprastha Estate,
Indraprastha Bhawan,
New Delhi-110002 .... तवाद गण /Respondent
Date of Hearing : 22/05/2023
Date of Decision : 02/06/2023
INFORMATION COMMISSIONER : Saroj Punhani
Note - The above-mentioned Appeals have been clubbed together for decision
as these are based on similar RTI Applications.
1
Relevant facts emerging from appeal(s):
RTI applications filed on : 03/09/2022
CPIO replied on : 19/09/2022
First appeal filed on : 17/10/2022
First Appellate Authority order : 10/01/2023
Second Appeal dated : 26/12/2022, 27/12/2022 & 25/02/2023
Information sought:
The Appellant filed seven RTI Application(s) on 03.09.2022 seeking the following information related to the different Advance Authorization Nos.:
"1. Copy of Utilization Report in regard to Advance Authorization
(s) No. 0510407123, 0510408294, 0510408823, 0510409190, 0510404456, 0510403359 & 0510403759.
2. Copy of Item wise Ledger of Import in regard to Advance Authorization
(s) No. 0510407123, 0510408294, 0510408823, 0510409190, 0510404456, 0510403359 & 0510403759.
3. Copy of Item wise Ledger of Export in regard to Advance Authorization
(s) No. 0510407123, 0510408294, 0510408823, 0510409190, 0510404456, 0510403359 & 0510403759.
4. Copy of correspondence/complete set of communication in regard to Advance Authorization (s) No. 0510407123, 0510408294, 0510408823, 0510409190, 0510404456, 0510403359 & 0510403759."
The CPIO furnished separate replies against each RTI Application to the Appellant on 19.09.2022 and denied the information under section 8(1)(h) of the RTI Act, 2005 stating as under -
"...As per the information received from the Directorate of Revenue Intelligence, M/s. Its My Name Pvt. Ltd. (The firm wherein the RTI Applicant is a Director) is under investigation under Section 124 of the Customs Act 1962. The investigation is on the serious nature of alleged grounds such as misuse of the Advance Authorizations by indulging into Circular trading and Smuggling of GOLD, Round-tripping, Duty-evasion, and Trade Mis-invoicing. The DRI has issued Show 2 Cause Notice dated 26.09.2019 to the firm in this regard. Further, based on the investigation conducted by the DRI, the principal Commissioner of Customs (Import) and the Joint Commissioner of Customs (Export) have also issued two Show Cause Notices both dated 28.06.2022. Furthermore, the office of the Additional DGFT, CLA Delhi has also issued a Show Cause Notice dated 17.07.2020 under the Foreign Trade Development and Regulation Act (FTDR Act) 1992 for contravening of Customs Act and the Foreign Exchange Management Act 1999. The investigations/proceedings under all the Show Cause Notices are underway and adjudication of the SCNs is pending for final decision.
It is submitted that the term "investigation" in the above context will mean not only initial investigation but all subsequent actions which included all levels of appeals and final determination of the Custom Duty and Penalty liability based upon the investigation as well as a final decision about prosecuting or not prosecuting the concerned person has been taken by an appropriate competent authority. Till that has been completed, no investigation can be said to be complete in its true sense.
In reference to the specific information sought by you, it is submitted that, firstly, the information sought by you which concerns with the value and the quantity of Gold imported or exported under the Advance Authorization (ledger/utilization report) is a matter under investigation and cannot be established as a matter of fact at present. Secondly, the information regarding complete correspondence/communication on file pertaining to the said Advance Authorisation again involves information which can compromise the integrity of the investigative process, expose the investigating and the adjudicating officers to external influences and duress and prevent them from concentrating on the case on hand. Hence, Any disclosure of the information connected with the initial investigation, at any stage prior to final conclusion of prosecution, if any, would be detrimental to the cases of different agencies and compromise the larger public interest as the cases involves both huge revenue implications for Government of India and the prosecution for the serious nature of financial crimes such as circular trading and smuggling of GOLD, round-tripping, duty-evasion, and Trade Mis- invoicing.
The repeated RTI applications by the applicant gives the impression that RTI Act is being used to garner case-sensitive information in a gradual manner. A disclosure of information will cause serious harm to the government and the 3 public authority's ability to safeguard public interest by attrition with the information sought through repeated RTI applications...."
Being dissatisfied, the appellant filed separate First Appeal(s) for each RTI Application on 17.10.2022. Feeling aggrieved and dissatisfied, vide Second Appeal(s) dated 26.12.2022 and 27.12.2022, the Appellant has argued as under:
"7. Thus the present Second Appeal is filed on the following grounds:-
a. The department should have replied within the stipulated time ie. 30 days as granted in the RTI Act b. The department i.e. DGFT is not exempted under RTI Act. c. The investigation cannot continue after issuance of Show Cause Notices, it is submitted with folded hands even as a matter of right for adjudication such information should have been provided. Such non providing of information is beyond the law of natural justice. Also it is suppression on fellow citizens by reply issuing authority. It is important to state that it is a well settled principle of law encapsulated by judicial forums that it is only after the investigation is complete that a show cause notice may be issued by the Department. Reliance is placed on the judgment passed by Hon'ble Calcutta High Court in the matter captioned as SA International versus Collector of Customs d. Further the non-supply of the requisite documents deprive the applicant with the right to exercise an opportunity of being heard effectively. Also the Appellant is seeking an information like utilisation report, ledger etc which in no way will affect any proceedings.
e. The applicant further submits that the reply provided by the department to the RTI states that, "the information sought by you, which concerns with the value and the quantity of Gold imported or exported under the Advance Authorization (ledger /utilization report) is a matter under investigation and cannot be established as a matter of fact at present" itself shows that the CPIO, DGFT is merely victimizing the Company and as such has no case at all. It is submitted that if the quantity and value are still not established then on what basis the allegations are being averred by the department in the Show Cause Notice. Further, even after a passage of 3 years, the Department is unable to satisfactorily explain the basis of issuing the show cause notice referred to in the captioned reply, hence, not just the reply is vague & ambiguous but also the show cause notice which are issued by the department.
f. Furthermore investigation and adjudication both are completely different procedures. It is pertinent to state that adjudication begins when the Show Cause 4 Notice is issued and the show cause notice will be issued only after completion of investigation.
g. The reply provided by the department further states that:
-investigations in the Show Cause Notice are still underway
-The information sought concerns ledger/utilization report is a matter under investigation and it involves information which can compromise the integrity of the investigative process, expose the investigating and the adjudicating officers to external influences and duress leading to derail the investigation.
-Disclosure of the information connected with the initial investigation, at any stage prior to final conclusion of prosecution, would be detrimental to the case. Thereby meaning that the department has issued the Show Cause Notice without conclusion of the investigation which is mere non application of mind as well as bad in law."
The FAA's order dated 10.01.2023 is extracted from File No. CIC/DGOFT/A/2023/610664 (Second Appeal filed on 25.02.2023) stating an Interim Order as under:
"....The present status of the cases has been sought from the concerned investigating agencies in a time bound manner to take further necessary action in the matter....."
Subsequently, vide order dated 14.02.2023, the FAA in furtherance of the interim order upheld the denial of the information by the CPIO under Section 8(1)(h) of the RTI Act.
Against the FAA's order, the appellant filed the Second Appeal vide above referred File No. CIC/DGOFT/A/2023/610664, additionally arguing that - "The department should have passed a speaking order giving reasons for not providing information which is being sought by the Appellant under First Appeal."
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Represented by advocate Akansha Kaul and Akash Malik through intra- video conference.
Respondent: Nitish Suri, Joint DGFT & FAA along with Rajiv Bhargava, Assistant DGFT present through intra-video conference.5
The Advocate of the Appellant reiterated the information sought for in the RTI Application to emphasise that the nature of the information sought for does not attract Section 8(1)(h) of the RTI Act in the absence of any justification for the same tendered either by the CPIO or the FAA. She further urged that the instant RTI Application is rather similar to an earlier request for information, in which case, the CPIO & FAA had infact facilitated them with information but somehow in this case, they have resolved to not divulge the information based on flimsy arguments. Further, the sum and substance of the Appellant's argument was that the information is being desired to aid them in defending their case before the Court and the entire set of records relate to the Appellant's own case so where is the question of impeding any investigation.
It will be expedient to reproduce the contents of the written submissions filed by the Appellant in the matter stating as under:
"...At the outset, the present Second Appeal has been filed by the Appellant against the final order dated 14.02.2023 (hereinafter referred to as "impugned order") passed by the Hon'ble First Appellate Authority reaffirming the decision taken by CPIO dated 16.09.2022, without considering the appeal and submissions put forth by the Appellant and thereafter denying information sought by the Appellant basis section 8(1)(h) of RTI Act when the Show Cause Notice had been issued by the department in 2019 i.e. 4 years back (DRI issued in 2019 on 26.09.2019, DGFT issued in 2019 on 27.06.2019, Customs issued in 2022 on 28.06.2022). The information has been denied stating the adjudication is investigation only, whereas in the present case the information has been sought to deal with deficiency memos and show cause issued by DGFT. As per the settled position of law decided by Hon'ble Apex Court, the department whimsically turns a blind eye & is farcical writing that investigation is pending when show cause notice has already been issued that too 4 years back. Copy of the order passed by Hon'ble First Appellate Authority dated 14.02.2023, is annexed and marked herewith as Annexure-3.
RTI APPLICATION
5. The appellant filed an RTI Application bearing Registration Nos.
DGOFT/R/E/22/00236 dated 03.09.2022 filed with the CPIO, DGFT, New Delhi for seeking following information:
xxx 6
6. RTI Reply received dated 16.09.2022 from Mr. Saurabh Goyal, CPIO, Deputy Director of DGFT. Subsequently, a reply to the said RTI was received on 16.09.2022 xxx It is reiterated that the investigation has already concluded and culminated into Show Cause issued on 17.07.2020...
7. Response dated 01.10.2022 to Reply received from the Deptt. By the aggrieved Appellant. In response to the reply received from the department, the aggrieved appellant/applicant wrote an email dated 01.10.2022 to the Department containing comprehensive submissions. Relevant Extracts of the email dated 01.10.2022 are reiterated hereunder:
"The submissions are elaborated hereunder: Firstly, it is important to apprise your good office that it is a well settled principle of law encapsulated by judicial forums that it is only after the investigation is complete that a show cause notice may be issued by the Department. The reply issued by you substantiates beyond doubt that the show cause notices issued by the various departments including DRI (stayed by Hon'ble High Court of Delhi vide order dated 12.04.2021), DGFT (set aside and another one pending before Hon'ble High Court of Delhi vide order dated 18.03.2020) and Customs (Contemptuous to the judicial orders), are with a predetermined mindset of issuing a show cause notice, without even the investigation being complete. Reliance is placed on the judgment passed by Hon'ble Calcutta High Court in the matter captioned as SA International versus Collector of Customs. Copy of the judgment passed hereinabove, are annexed and marked herewith as Annexure-3. Therefore, in the light of the above referred judgments, it is clear that the purported Show Cause Notices as issued are contrary to law. Moving further, the first reason for denying the information, as stated in your office letter, is the information received from "Directorate of Revenue Intelligence (DRI) informing the DGFT that M/s Its My Name Pvt Ltd is under investigation u/s 124 of Customs Act 1962", however the date of such information has not been disclosed which, as per the documents provided in the past, pertains to the period prior to September 2019, and on 26.09.2019 the investigation by the DRI culminated into Show Cause Notice dated 26.09.2019. Further your good office is well aware about the order dated 12.04.2021 of the Hon'ble Delhi High Court, passed in WP(Crl) 821/2021, whereby the DRI SCN was stayed...."7
Comprehensive submissions have been given to the department in the interest of justice.
FIRST APPEAL
8. The Appellant, being aggrieved by the reply received in the RTI, filed a First Appeal dated 17.10.2022 giving detailed submissions and applying emphasis on the fact that the information sought is necessary and be kindly provided to the Appellant. In the First Appeal, it was submitted that the investigation cannot be conducted after the issuance of Show Cause Notice, one Show Cause Notice issued by DGFT is set aside, SCN issued by DRI is stayed, SCN issued by customs is in contempt. Also, the fact findings given by judicial forums including Ld. CESTAT, Hon'ble High Court of Delhi, Hon'ble Apex Court has been explained. Copy of the First Appeal dated 17.10.2022 filed by the Appellant is annexed herewith and marked as Annexure-6 COMPLAINT U/S 18 OF RTI ACT 2005 FOR NON SUPPLY OF INFORMATION
9. On 26.11.2022 U/s 18 RTI Act, 2005 filed the complaint with CIC as no response had been received from the First Appellate Authority within 30 days.
The Appellant/Applicant did not get any response from the First Appellate Authority within 30 days, therefore, the Appellant/Applicant filed a complaint under Section 18 of the RTI Act with the Central information Commission (hereinafter referred to as CIC) on 26.11.2022 regarding the information sought in RTI dated 03.09.2022 for the above mentioned licenses.
PERSONAL HEARING BY FIRST APPELLATE AUTHORITY xxx Subsequently, owing to an undue delay of over two months in the listing and hearing and non-action by the First Appellate Authority with respect to the First Appeal preferred by the Appellant, the Appellant was constrained to file Second Appeal on 27.12.2022 in the interests of justice.
13. On 04.01.2023 Appellant received the letter of Physical Hearing dated 17.01.2023 from the Office of the Hon'ble CIC in respect of the Complaint filed on 26.11.2022 (detailed in Para 10 above) 8
14. On 10.01.2023, Hon'ble First Appellate Authority, passed a cryptic and non-speaking Order-in-appeal(interim) dated 10.01.2023, completely disregarding the submissions of the Appellant .
On 10.01.2023, Hon'ble First Appellate Authority, passed an interim order dated 10.01.2023, which apparently is cryptic order, without giving any consideration to the submissions made by the Appellant during the Personal Hearing and the contents of the First Appeal and also that similar information was supplied to the appellant in another RTI a few days before the present RTI Applications.
Relevant extracts reproduced as under :
"The present status of the cases has been sought from the concerned investigating agencies in a time bound manner to take further necessary action in the matter. Appellate Authority decided to seek the present status of investigation from the concerned investigating agency in a time bound manner based on which the decision shall be taken in these cases."
As is evident from the above extracts no time line was mentioned in the order for final order and not even for the status of the cases from the concerned investigating agencies.
15. First Appellate Authority failed to take actions against the Deptt. for not complying with directions given by the First Appellate Authority vide Interim Order dated 10.01.2023 Despite this fact no material information has been furnished by the CPIO in compliance with the interim order passed by Hon'ble First appellate authority dated 10.01.2023. Moreover, the First Appellate Authority failed to take stringent steps against the department for not complying with the directions given by the Hon'ble First Appellate Authority vide their interim order dated 10.01.2023.
16. Vide Order dated 17.01.2023, the CIC decided the Complaint preferred by the Appellant under Section 18 of the RTI Act basis the interim order dated 10.01.2023 passed by the First Appellate Authority and also gave following observations:
'.....the Commission takes grave exception to the delay caused by the FAA in acting upon the instant First Appel(s) and it is rather unnerving to note that the prima-facie the First Appeals were considered by the FAA only after 9 receipt of the Commission's hearing notice. Further even as the FAA considered the First Appeals at this belated stage, he issued what appears to be an evasive and inconclusive order with no reference to the merits of the reply provided by the CPIO or any timeline for the "concerned agencies"
to inform the status of investigation, which renders the exercise of dwelling on the First Appeal futile and defeats the role of the FAA as envisaged under the RTI Act.
The Commission therefore records adverse remarks for the above stated conduct of the FAA in the instant matter(s) and warns him to exercise due caution in the future.'
17. On 14.02.2023 First Appellate Authority passed the final order reaffirming the decisions of CPIO & dismissing the First Appeal; Relevant extracts of the order dated 14.02.2023 is reiterated below.
Despite the fact that the investigating agency did not file material information for which specific directions were given by the concerned authority vide order dated 10.01.2023, the First Appellate Authority passed a final order dated 14.02.2023 reaffirming the decision of CPIO and dismissing the First Appeal. Relevant Extracts of the order dated 14.02.2023 passed by Hon'ble First Appellate Authority, are reiterated hereunder:
"The decision taken by CPIO against the RTI Applications is upheld."
18. It is a settled position that any Public official who deliberately delays or obstructs an application for information, or who deliberately provides incorrect or misleading information, can be punished under the RTI laws. The final order dated 14.02.2023 passed by the First Appellate Authority is bad in law and is liable to be set aside.
19. On 24.05.2020 Appellant filed an RTI application with Registration No. DGOFT/R/E/20/00234 w.r.t Advance Authorisaton License Nos. 0510403359, issued to M/s Its My Name Pvt Ltd, It is not out of context to mention herein that on 24.05.2020, the Appellant has filed an RTI bearing registration no DGOFT/R/E/20/00136 with respect of the Authorisation number 0510404456, 0510403359, 0510403152, 0510403759 issued to M/s Its My Name Pvt Ltd, seeking thereof following information/documents:
101. That on which dates your good office has issued the deficiency letter and received the reply of the same in respect to all licenses mentioned above.
2. That who all from your office deal with this letter and their replies and what has been the noting for the same.
3. Who all from your office marked the comment for the same.
4. Please provide the coloured copy of the noting sheet.
Pertinently, upon not receiving the information through RTI Application, the Appellant knocked the doors of Hon'ble Central Information Commission wherein Personal Hearing was conducted on 23.12.2021 & the Hon'ble Commission has taken a stringent view to the DGFT department to the conduct of not providing information to the Appellant and causing unreasonable delay and harassment to the Appellant. Order has been passed by Hon'ble CIC issuing show cause notice against the CPIO, DGFT department, the relevant extracts of the order passed are reiterated hereunder.
'The Commission takes grave exception to the sheer confusion caused by the CPIO during the hearing and for his failure to properly present the facts of the case. Moreover, based on a perusal of the facts on record it is prima facie evinced that no reply was provided to the RTI Application dated 24.05.2020 within the stipulated time frame of the RTI Act and even as on date the same remains unattended. The said omission of the CPIO amounts to causing unwarranted obstruction to the Complainant's right to information and is a gross violation of the provisions of the RTI Act. Having observed as above, the Commission directs the CPIO to send his written submissions to show-cause as to why maximum penalty should not be imposed and disciplinary action should not be initiated against him under Section 20 of the RTI Act for the continuing dereliction of the statutory duty cast upon him by virtue of the RTI Act. The said written submissions of the CPIO along with supporting documents shall strictly reach the Commission within 15 days from the date of receipt of this order.'
20. Providing incomplete information in the RTI Reply bearing Reg. No. DGOFT/R/E/22/00213 dated 09.08.2022 It is important to note herein that the Appellant filed a RTI Application bearing no DGOFT/R/E/21/00177 dated 08.07.2021 seeking following information
1. The date on which the application dated 19.04.2021 is received in your good office.
112. The status of the application for issuance of EODC in reference to the Advance Authorization License No 0510408823
3. All the records of the proceeding in respect to the application for issuance of EODC.
a. The details of the officer i.e. the name and designation of the officer who has booked into the Application for issuance of EODC and copy of the letter which authorize him to deal with the application.
4. The details of the officer i.e. the name and designation of the officer who is looking into the application for issuance of EODC and the copy of the letter which authorizes him to deal with this application.
5. Complete set of the file/certified copy of the file maintained by your good office regarding the Advance Authorization License No 0510408823.
6. Details of the deficiency memo issued, if any issued with respect to Advance Authorization License No 0510408823.
Reply has been given by the Directorate General of Foreign Trade to the RTI Application bearing no DGOFT/R/E/22/00213 dated 09.08.2022 enclosing therewith the copy of the Utilization Report qua Advance Authorization License 0510403152, Import Item wise ledger qua Advance Authorization License 0510403152, Deficiency Letter dated 30.04.2019 issued by DGFT qua Advance Authorization License 0510403152, correspondence between Customs Department and DGFT regarding utilization report. etc.
21. Thus, the present Written Submission is filed on the following grounds:-
A. BECAUSE, the Hon'ble First Appellate Authority, DGFT has wrongfully denied the information/document sought by way of RTI Application and erroneously dismissed the First Appeal vide order dated 14.02.2023.
B. BECAUSE, the grounds of exemption under Section 8(1)(h) of the Right to Information Act, 2005 taken by DGFT for refusing to provide the information sought by the Appellant, misplaced and not sustainable in law.
xxx A careful perusal of the language used in the above-mentioned provision evinces that the exemption under Section 8(1)(h) of the Right to Information Act, 2005 is not absolute. The Hon'ble Supreme Court of India as well as other courts of law in the country have satisfactorily established through various judgements that the exemption under the above stated provision is not absolute and is contingent upon the Investigation agency first establishing that the information sought by 12 way of an RTI will impede an ongoing investigation or apprehension or prosecution of offenders.
C. Because, the reasons provided by DGFT in their response dated 16.09.2022 are untenable and devoid of any logic or reason. DGFT has essentially provided the following two reasons for withholding information sought by the Appellant.
a. The information sought by the Appellant concerning the value and the quantity of gold imported or exported under the Advance Authorisation by way of a ledger/utilization report cannot be provided as the same is under investigation.
b. The information sought by the Appellant can compromise the integrity of the investigation process, expose the investigating and the adjudicating officers to external influences and duress and prevent them from concentrating on the case on hand.
D. Because the contention of the DGFT that investigation is in process is wrong, as Show Cause Notice(s) have already been issued almost 4 years back.
E. Because, the utilization and ledger reports sought by the appellant by way of RTI are merely records maintained by the concerned department and DGFT has failed to explain how providing such records is subject to the conclusion of the investigation. The said documents are public records containing information relating solely to the operations of the Applicant and the refusal to provide the same by DGFT is not sustainable under law. Provisions of records will not in any manner change the outcome of investigation or inquiry into facts relating to the quantity of the goods. Further, the CPIO and the FAA have ignored the fact that the said records/information are necessary for the Appellant to defend the SCN dated 27.06.2019.
F. Because, the DGFT has miserably failed to provide any basis or reasons to support their claim of exemption under Section 8(1)(h). The apprehensions of impediment of investigation and the possible influencing of the adjudicating officers is entirely baseless and with no substance and reason. DGFT has miserably failed to establish any reason for seeking an exemption under Section 8(1)(h) and therefore, the order dated 14.02.2023 must be set aside.
13G. BECAUSE, that the Hon'ble First Appellate Authority failed to appreciate the fact that investigation cannot continue after issuance of Show Cause Notices, it is submitted with folded hands even as a matter of right for adjudication such information should have been provided. Such non providing of information is beyond the law of natural justice. Also it is suppression on fellow citizens by reply issuing authority. It is important to state that it is a well settled principle of law encapsulated by judicial forums that it is only after the investigation is complete that a show cause notice may be issued by the Department. Reliance is placed on the judgment passed by Hon'ble Calcutta High Court in the matter captioned as SA International versus Collector of Customs.
H. BECAUSE, the Hon'ble First Appellate Authority ignored the fact non supply of the requisite documents deprive the appellant with the right to exercise an opportunity of being heard effectively. Also the Appellant is seeking an information like utilization report, ledger etc which in no way will affect any proceedings.
I. BECAUSE, the authority take no notice of the fact that the appellant that the reply provided by the department to the RTI states that, "the information sought by you, which concerns with the value and the quantity of Gold imported or exported under the Advance Authorization (ledger /utilization report) is a matter under investigation and cannot be established as a matter of fact at present" itself shows that the CPIO, DGFT is merely victimizing the Company and as such has no case at all. It is submitted that if the quantity and value are still not established then on what basis the allegations are being averred by the department in the Show Cause Notice. Further, even after a passage of 3 years, the Department is unable to satisfactorily explain the basis of issuing the show cause notice, hence, not just the reply is vague & ambiguous but also the show cause notice which are issued by the department.
J. BECAUSE, it is ignored that investigation and adjudication both are completely different procedures. It is pertinent to state that adjudication begins when the Show Cause Notice is issued and the show cause notice will be issued only after completion of investigation.
K. Because, it is completely ignored that the department further states that:
-investigations in the Show Cause Notice are still underway -The information sought concerns ledger/utilization report is a matter under investigation and it involves information which can compromise the integrity of the investigative 14 process, expose the investigating and the adjudicating officers to external influences and duress leading to derail the investigation. -Disclosure of the information connected with the initial investigation, at any stage prior to final conclusion of prosecution, would be detrimental to the case. Thereby meaning that the department has issued the Show Cause Notice without conclusion of the investigation which is mere non application of mind as well as bad in law.
L. BECAUSE, the department has time and again issued multiple deficiency memos of 0.736 grams minsicle value of deficiencies which are even cleared by submitting adequate replies with the department; the department turned a blind eye towards the reply submitted by the Appellant which is bad in the eyes of law;
M. BECAUSE, as per 4.46 of Foreign Trade Policy, it is in law that if equivalent export and import value is shown thereupon, it is upheld that export obligations have been fulfilled & EODC is liable to be released; but in case of Appellant, department ignored the fact deliberately that export and import quantities matched & export obligations have been duly fulfilled which entitle the Appellant with the release of EODC;
N. BECAUSE, the department turned a blind eye towards the fact that monitoring of the export obligation is to be done as per 4.44 Foreign Trade Policy by the department itself;
O. BECAUSE, the department shut their eyes towards the fact that documents have been duly submitted by the Appellant along with the application for EODC which clearly substantiate the fact that equivalent export and import is being done;
P. BECAUSE, an opportunity of being heard and represent them before the department for the sake of justice is being hampered and consequently Article 14, Constitution of India is being violated by the department;
Q. It is submitted that as a citizen of India, a person has a fundamental right to know the information pertaining to which the allegations are being made by the department. Denial of such information amounts to abuse of privilege...."
The FAA reiterated the reply of the CPIO and submitted that this bench has already taken a view regarding the said reply in its earlier order of 17.01.2023, wherein the denial was upheld. He further submitted that nonetheless, when the 15 status of the cases from the concerned investigating agencies was gathered by him, he learnt that in addition to the cases already informed to be underway against the Appellant, it is given to understand that the CBI is also investigating against the same allegations and the Regional Economic Intelligence Committee has also entrusted DGFT with certain investigations. He further urged that the alleged offence amounts to an exponential revenue loss to the GOI, therefore, any disclosure of the case records during the pendency of the investigation with the multiple agencies will be an impediment to the process thereof. He furthermore explained that the nature of the inputs received from the concerned agencies were such that he could not have incorporated those sensitive details in the order passed on the instant First Appeal and therefore he upheld the reply of the CPIO. Lastly, he submitted that considering the involvement of so many agencies and the gamut of records desired for by the Appellant, it is very difficult for the CPIO or the FAA to decide on the probability of permissible documents, if any, that could have been severed and disclosed, therefore the exemption of Section 8(1)(h) of the RTI Act bears maximum relevance and applicability in the matter.
The Advocate of the Appellant drew concluding remarks by reiterating that they do not appreciate the stand of the Respondent in denying the simple nature of the information sought for in the RTI Application under the garb of Section 8(1)(h) of the RTI Act and prayed for relief to be ordered in the matter.
Decision:
The Commission observes at the outset that a bunch of cases filed under Section 18 of the RTI Act by the Appellant with respect to RTI Applications seeking the same information sought for in the instant set of RTI Applications (except for the difference in the advance authorization numbers) and same reply of the CPIO has been already heard by this bench on 17.01.2023. The following were the relevant contentions of the parties as well as the observations and decision of the Commission:
The Rep. of Complainant stated that the Appellant's firm M/s. Its My Name Pvt. Ltd. is a three-star export house engaged in the business of export/import of gold bars. The further narrative of the case explained by the Rep. of the Complainant citing certain orders of the superior Courts issued in their matter, were on the same lines as that of the grounds mentioned in the First Appeal inter alia, contents of which is reproduced hereunder for clarity:16
"The reply dated 16.09.2022 states that "Directorate of Revenue Intelligence (DRI) informing the DGFT that M/s Its My Name Pvt Ltd is under investigation u/s 124 of Customs Act 1962.....The DRI has issued Show Cause Notice dated 26.09.2019 to the fir in this regard...", however the date of receipt of such information by DGFT has not been disclosed. Further DGFT is well aware about the order dated 12.04.2021 of the Hon'ble Delhi High Court, passed in WP(Crl) 821/2021, whereby the DRI SCN was stayed.
Furthermore, the order of the Ld. CESTAT dated 13.11.2019 has also been completely ignored, which is the final fact-finding authority and it throws sufficient light on the facts of the case, substantiating beyond doubt that the case as set out by DRI is even otherwise not tenable in law. The fact finding given by the Ld CESTAT are not are not traversed by Hon'ble High Court of Delhi and Hon'ble Supreme Court of India.
"6. The Show Cause Notice, therefore, merely states that DRI has informed that the petitioner Firm is "suspected to be misusing the Advance Authorisation". Details of the allegations against the petitioner have not been given in the Show Cause Notice......................
13. .........................As recorded hereinabove, even the Show Cause Notice dated 27.06.2019 is vague and is also set aside."
Further the second show cause notice dated 17.07.2020, is also under challenge before the Hon'ble Delhi High Court in WP(C) 12706/2021 and it is a matter of record before the Hon'ble Delhi High Court that DGFT does not have the requisite documents as relied upon in the SCN as admitted by the department in the CONT CAS 84/2021. Copy of order dated 02.03.2021 is enclosed as Annexure-8. Non supply of the requisite documents deprive the applicant with the right to exercise an opportunity of being heard effectively.
It is important to state that it is a well settled principle of law encapsulated by judicial forums that it is only after the investigation is complete that a show cause notice may be issued by the Department. The reply issued by the CPIO, DGFT substantiates beyond doubt that the show cause notices issued by the various departments including DRI (stayed by Hon'ble High Court of Delhi vide order dated 12.04.2021), DGFT (set aside and another one pending before Hon'ble High Court of Delhi vide order dated 17 18.03.2020) and Customs (Contemptuous to the judicial orders), are with a pre-determined mindset of issuing a show cause notice, without even the investigation being complete. Reliance is placed on the judgment passed by Hon'ble Calcutta High Court in the matter captioned as SA International versus Collector of Customs (annexed as Annexure-9). Therefore, in the light of the above referred judgments, it is clear that the purported Show Cause Notices as issued are contrary to law..."
Lastly, the Rep. of Complainant apprised the Commission that an interim order dated 10.01.2023 has been passed by the FAA directing the CPIO of concerned investigating agency to ascertain the present status of investigation for further action in the matter. Despite this fact no material information has been furnished by the CPIO in compliance of FAA's order. She urged that considering the above-mentioned facts and arguments tendered before the bench, the CPIO may be directed to furnish the requested information.
The CPIO reiterated the denial of the information under Section 8(1)(h) of RTI Act by explaining the fact that as per the information received from the Directorate of Revenue Intelligence, M/s. Its My Name Pvt. Ltd. (The firm wherein the RTI Applicant is a Director) is under investigation under Section 124 of the Customs Act 1962. The investigation is on the serious nature of alleged grounds such as misuse of the Advance Authorisation by indulging into Circular trading and Smuggling of GOLD, Round-tripping, Duty-evasion, and Trade Mis-invoicing. The DRI has issued Show Cause Notice dated 26.09.2019 to the firm in this regard. Further, based on the investigation conducted by the DRI, the principal Commissioner of Customs (Import) and the Joint Commissioner of Customs (Export) have also issued two Show Cause Notices both dated 28.06.2022. Furthermore, the office of the Additional DGFT, CLA Delhi has also issued a Show Cause Notice dated 17.07.2020 under the Foreign Trade Development and Regulation Act (FTDR Act) 1992 for contravening of Customs Act and the Foreign Exchange Management Act 1999. The investigations/proceedings under all the Show Cause Notices are underway and adjudication of the SCNs is pending for final decision. Hence, any disclosure of the information connected with the initial investigation, at any stage prior to final conclusion of prosecution, if any, would be detrimental to the cases of different agencies and may compromise the larger public interest as the cases involve huge revenue implications for the Government of India.
18Decision The Commission upon a perusal of records and after hearing submission of both the parties at length observes that the core contention raised by the Complainant in the instant Complaints was denial of information by the CPIO under Section 8(1)(h) of RTI Act. However, considering the justification of the CPIO tendered vide their reply of 19.09.2022 as well as the explanation tendered during the hearing, the Commission finds no malafides in the averred denial of the information.
xxx Similarly, the Commission is not inclined to assess the merits of the contentions of the Complainant questioning the rationale behind the alleged investigations considering the sub judice status of the cases filed by the Complainant against the said investigations.
Notably, the Appellant has himself made a reference to this earlier decided case in his written submissions as extracted above yet appears to have failed to appreciate that the same issue for determination and same arguments tendered by him against the issuance of the show-cause notices and as to why he believes Section 8(1)(h) of the RTI Act stands unjustified by the Respondent stands decided.
In other words, the Commission has already taken a stand in the matter wherein it was observed that the CPIO has justified the denial of the information under Section 8(1)(h) of the RTI Act and no scope of relief is therefore pertinent in the instant set of cases as well.
Pertinently so, the Appellant's arguments throughout the course of these cases are largely premised on questioning the merits of the issuance of show-cause notices to him as well as the administrative actions and decisions of the Respondent office related thereto, none of which is amenable to the jurisdiction of the Commission under the RTI Act. The only argument of the Appellant amenable under the RTI Act is his dissatisfaction with the denial of the information under Section 8(1)(h) of the RTI Act, however, deeming the invocation of this exemption to be invalid by seemingly insisting on the belief that the CPIO has not justified the denial to the Appellant's satisfaction is no ground to allow the disclosure of the information. Moreover, the FAA's submissions in the instant matter are only supplementing the CPIO's rationale behind invoking 19 Section 8(1)(h) of the RTI Act, as discussed in the order of 17.01.2023. Notably, the Commission concedes with the argument of the FAA regarding the complexities involved in deciphering the severability of the available records related to the averred investigation as well as the degree of sensitivity accorded by the concerned investigating agencies to each of the record that has been sought for in RTI Application which includes, copy of "complete set of communication" in regard to the Advance Authorization Numbers. The facts of the instant matter and above observations also warrant taking into consideration the Preamble of 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;.."
Additionally, the Appellant is also advised about the powers of the Commission under the RTI Act by relying on certain precedents of the superior Courts as under:
The Hon'ble High Court of Delhi in the matter of in the matter of Govt. of NCT of Delhi vs. Rajender Prasad (W.P.[C] 10676/2016) dated 30.11.2017 held as under:
"6. The CIC has been constituted under Section 12 of the Act and the powers of CIC are delineated under the Act. The CIC being a statutory body has to act strictly within the confines of the Act and is neither required to nor has the jurisdiction to examine any other controversy or disputes."
While, the Apex Court in the matter of Union of India vs Namit Sharma (Review Petition [C] No.2309 of 2012) dated 03.09.2013 observed as under:
"20. ...While deciding whether a citizen should or should not get a particular information "which is held by or under the control of any public authority", the Information Commission does not decide a dispute between two or more parties concerning their legal rights other than their right to get information in possession of a public authority...." (Emphasis Supplied) 20 Adverting to the foregoing, the Appellant is advised against the repeated filing of RTI Applications seeking for the same information and agitating on the same grounds in the future and he is advised to await the outcome of the matters filed by him before the competent Court.
Here, the Appellant is also reminded that the order of the Commission in File No. CIC/DGOFT/A/2021/152465 being extensively relied upon in all of his cases (under the text of his Second Appeals) to agitate that relief has been ordered in a similar case earlier is an inappropriate interpretation of the averred decision as it is pertinent to note that in the said decision, the applicability of the exemption of Section 8(1)(h) of the RTI was not determined by the bench. Similarly, the reliance placed by the Appellant on the decision in another earlier case vide File No. CIC/DGOFT/C/2020/679419 is also out of context since the Commission dealt with the factum of no reply provided by the Respondent in the said case and not the applicability of the exemption of Section 8(1)(h) of the RTI Act.
Considering the string of cases filed by the Appellant on the same subject matter so far, the Commission deems it relevant to bring to his attention a judgment of the Hon'ble Supreme Court in the matter of Central Board of Secondary Education (CBSE) & anr. v. Aditya Bandhopadhyay and others [(2011) 8 SCC 497] stating that:
"37. The right to information is a cherished right. Information and right to information are intended to be formidable tools in the hands of responsible citizens to fight corruption and to bring in transparency and accountability. The provisions of RTI Act should be enforced strictly and all efforts should be made to bring to light the necessary information under clause (b) of section 4(1) of the Act which relates to securing transparency and accountability in the working of public authorities and in discouraging corruption. But in regard to other information, (that is information other than those enumerated in section 4(1)(b) and (c) of the Act), equal importance and emphasis are given to other public interests (like confidentiality of sensitive information, fidelity and fiduciary relationships, efficient operation of governments, etc.). Indiscriminate and impractical demands or directions under RTI Act for disclosure of all and sundry information (unrelated to transparency and accountability in the functioning of public authorities and eradication of corruption) would be counter-productive as it will adversely affect the efficiency of the administration and result in the executive getting bogged down with the non- productive work of collecting and furnishing information. The Act should not be allowed to be misused or abused, to become a tool to obstruct the national development and integration, or to destroy the peace, tranquility 21 and harmony among its citizens. Nor should it be converted into a tool of oppression or intimidation of honest officials striving to do their duty. The nation does not want a scenario where 75% of the staff of public authorities spends 75% of their time in collecting and furnishing information to applicants instead of discharging their regular duties. The threat of penalties under the RTI Act and the pressure of the authorities under the RTI Act should not lead to employees of a public authorities prioritising 'information furnishing', at the cost of their normal and regular duties."
Having observed as above, the Appellant is advised to make judicious use of his right to information in the future.
The appeal(s) are disposed of accordingly.
Saroj Punhani (सरोज पुनहािन) 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 / 22