Central Information Commission
Mrr K Jain vs Cbec on 5 April, 2016
CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi110067
Decision Nos.CIC/SS/C/2013/000070/SB
Dated 05.04.2016
Complainant : Shri R.K. Jain,
1512B, Bhishm Pitamah Marg,
Opp. ICICI Bank of Defence Colony,
New Delhi - 110 003.
Respondent : CPIO cum Under Secretary,
(Custom IV Unit),
Central Board of Excise & Customs,
253A, North Block, New Delhi110 001.
Date of Hearing : 17.07.2015/05.04.2016
ORDER
1. Shri R.K.Jain, filed an application under the Right to Information Act, 2005 on 22.10.2012 with the CPIO/Under Secretary(Customs IV) Central Board of Excise & Customs, Department of Revenue seeking the following information:
(1) Provide inspection of the records, data, documents, files etc. relating to the following orders issued under Notification No. 15/2002Cus.(NT) appointing common Adjudicating Authority:
i) Order dated 1.8.2012 (case of Tirupati Microtek)
ii) Order dated 9.10.2012 (case of Nitco Tiles) 1
iii) Order dated 11.10.2012 (case of Akhil Bhartiya Samjhota Sansthan)
2. Vide letter dated 22.11.2012 the CPIO offered inspection of the relevant files to the complainant on 07.12.2012 as requested by him in his RTI application dated 22.10.2012. The complainant stated that inspection of the relevant files did not take place on that day since the concerned Section Officer was on leave. The complainant finally inspected the files on 14.12.2012. Vide his letter dated 17.12.2012 to the CPIO, the complainant stated that complete records have not been provided to him during inspection and that this fact has been recorded by him in the Inspection Note. In his letter the complainant stated that the CPIO had illegally and malafidely and with a view to cause obstruction of supply of information had reviewed his earlier order dated 22.11.2012 and then to cover up this illegality, he had antedated his directions for denial of information. The complainant also mentioned that for such an act, the CPIO is liable for penalty and disciplinary action as provided in Section 20 of the RTI Act r/w section 18 of the RTI Act. The complainant requested the CPIO to provide the information within 10 days, failing which he shall be compelled to file a complaint under section 18 of the RTI Act. Vide letter dated 26.12.2012 the CPIO informed the complainant that in order to promote transparency and to comply with the provisions of law an offer was granted to him for complete inspection of the file except certain information which are not required to be informed in public wherein private rights, trade information/data and interests are involved. In this letter, the CPIO also mentioned that basically copies of the SCN relating to Tirupati Microtech, M/s Nitco Ltd and M/s Akhil Bhartiya Samjota Sansthan were not supplied on account of the fact that the said SCN contains certain findings of the department and certain allegations against an assessee. The CPIO also mentioned that it was considered that dissemination of such information may lead to violation of the privacy of the notice since the matter is yet to be adjudicated. Aggrieved by the response of the CPIO, the complainant filed a complaint before the Commission on 31.12.2012.
Hearing held on 17.07.2015:
2
3. The complainant Shri R.K. Jain and respondent Shri Pawan Khetan, CPIO and OSD (Customs), CBEC, New Delhi were present in person.
4. The complainant submitted additional documents during the hearing, a copy of which has also been served on Shri Pawan Khetan, CPIO. The complainant also pointed that he has been served a copy of cross appeal dated 24.5.2013 by Shri M.V. Vasudevan, the then CPIO.
5. The respondent submitted that there is no record available on their file relating to this RTI.
Interim Decision:
6. The Commission noted that the complainant has submitted that he has been served a copy of cross appeal filed by the then CPIO. The Commission therefore directed that matter may be listed in due course after ascertaining the facts relating to the cross appeal.
Hearing on 05.04.2016
7. The complainant Shri R.K. Jain and the respondent Shri Anil Kumar Sapra, CPIO, Custom -IV, CBEC were present in person.
8. The complainant submitted that he has sought inspection of records, data documents, files etc. relating to the following orders issued under Notification No. 15/2002Cus.(NT) appointing common Adjudicating Authority:
i) Order dated 1.8.2012 (case of Tirupati Microtek)
ii) Order dated 9.10.2012 (case of Nitco Tiles)
iii) Order dated 11.10.2012 (case of Akhil Bhartiya Samjhota Sansthan) The complainant further submitted that inspection was allowed to him on 07.07.2012, however, on that day inspection could not take place as the complainant was informed that the Section Officer concerned was not present. Subsequently, the CPIO vide his letter dated 22.11.2012 3 informed the complainant that he can inspect the records on 14.12.2012. Accordingly, inspection was done and the complainant vide his letter dated 17.12.2012 requested to provide copies of records pertaining to files mentioned in the inspection note and for this he enclosed a postal Order of Rs.10/ and Pay Order of Rs.160/ towards the photo copying fee. However, copies of SCNs were not provided to him on the ground that the said SCNs contain certain findings of the department and certain allegations against the assessee. Consequently, the Postal Order of Rs.10/ and Pay Order of Rs. 160/ were returned on the ground that the information sought in earlier application and the present subject letter are one and the same and by the same person and hence, information sought was denied on the ground of resjudicata. The complainant further stated that the principle of resjudicata would not apply to proceedings under the RTI Act as under Section 6(2) of the Act, no reasons for seeking information are required to be given and moreover, every RTI application made on different date is a separate cause of action as there is always a development in the Government records and file relating to the information sought. Therefore, the order of the CPIO is liable to be set aside.
9. With regard to denial of copies of SCNs, the complainant submitted that the copies of the SCNs cannot be denied as the same are public document as per Section 74 of the Evidence Act, 1872. The complainant further submitted that as per Section 153 of the Customs Act, 1962, the notice/summons etc. are to be put up on the notice board of the Customs House and it is in this light that such a document which is displayed on the notice board cannot be denied on the ground that the same contains findings of the department and certain allegations against the assessee.
10. The respondent submitted that the copy of the SCNs cannot be provided as per Section 8(1)(j) r/w Section 11(1) of the RTI Act. The respondent further submitted that service of notice is governed by the provision of Section 153 of the Customs Act, 1962 which is as follows:
153. Service of order, decision, etc. Any order or decision passed or any summons or notice issued under this Act, shall be served 4
(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or
(b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house.
The respondent submitted that it is only when the notice is not served on the intended person or on his agent that it is put up on the notice board of the Customs House and therefore, it is not a general practice. With regard to the issue of re judicata, the respondent submitted that he will have to peruse the records in order to ascertain as to when the similar information was provided to the complainant. Interim Decision:
11. The Commission after hearing both the parties and upon perusal of records finds that certified copies of documents sought after inspection were not provided despite submission of the Pay Order of Rs. 160/ by the respondent to the complainant. Therefore, the then CPIO is liable for imposition of penalty in terms of provision under Section 20(1) of the RTI Act, 2005.
12. The then CPIO, CBEC is hereby directed to submit an explanation both by post and through email at do.icsb[email protected] before the Commission, on or before 25.04.2016, explaining why action under Section 20(1) of the RTI Act should not be initiated against him. Shri Anil Kumar Sapra, CPIO, CBEC will ensure that a copy of this show cause notice is served upon the officer concerned.
13. The then CPIO, CBEC is further directed to appear before the Commission on 17.05.2016 at 1:15pm along with a copy of his written explanations.
14. The CPIO is also directed to inform if there is/ are other person(s) responsible for knowingly not providing complete information to the complainant and if so to inform such 5 persons of the show cause hearing and direct them to appear before the Commission on 17.05.2016 at 1:15pm along with his/ their written explanations.
15. Copy of decision be given free of cost to the parties.
(Sudhir Bhargava) Information Commissioner Authenticated true copy (V.K. Sharma) Designated Officer 6