Central Information Commission
Tushar Joshi vs Central Board Of Indirect Taxes And ... on 27 May, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File Nos: CIC/CBECE/A/2023/111013
CIC/CBECE/A/2023/111012 &
CIC/CBECE/A/2023/111010
Tushar Joshi .....अपीलकर्ाग /Appellant
VERSUS
बनाम
CPIO,
O/O THE CPIO & UNDER SECRETARY
(CUS-IV) CENTRAL BOARD OF
INDIRECT TAXES AND CUSTOMS
NORTH BLOCK, NEW DELHI - 110004 ....प्रनर्वािीगण /Respondent
Date of Hearing : 15-05-2024
Date of Decision : 24-05-2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeals:
RTI applications filed on : 02-09-2022
CPIO replied on : 29-09-2022
First appeals filed on : 03-11-2022
First Appellate Authority's order : 22-12-2022 & 07-12-2022
2nd Appeal/Complaint dated : 07-03-2023
Page 1 of 11
The above-mentioned appeals are clubbed together as the Appellant and
Respondent are common and subject-matter is similar in nature and hence are
being heard together and disposed of through a common order to avoid
multiplicity of proceedings.
CIC/CBECE/A/2023/111013
Information sought:
The Appellant filed an RTI application dated 02-09-2022 seeking the following information:
"a) By way of Notification No. 25/2022-Customs (NT) dated 31.03.2022, the Central Board of Indirect Taxes and Customs ('Board') has appointed various officers of Directorate of Revenue Intelligence and vested them with powers of various classes of officers of Customs. The Notification is enclosed herewith as Annexure 1.
b) By way of Notification No. 26/2022- Customs (NT) dated 31.03.2022, the Board has assigned Deputy Director of Revenue Intelligence or Assistant Director of Revenue Intelligence and officers above in rank to them as proper officers in relation to the various functions specified under Section 28 of the Customs Act. The Notification is enclosed herewith as Annexure
2. In respect of Notification No. 25/2022- Customs (NT) dated 31.03.2022 and Notification No. 26/2022-Customs (NT) dated 31.03.2022 i. The Applicant requests your good self to kindly provide the Applicant with all the file notings, note sheets and/or internal orders/ circulars/ instructions issued by the Board or the Customs Department in respect of issuance of Notification No. 25/2022-Customs (N'T') dated 31.03.2022.
ii. The Applicant requests your good self to kindly provide the Applicant with all the file notings, note sheets and/ or internal orders/ circulars/ instructions issued by the Board or the Customs Department in respect of issuance of Notification No. 26/2022- Customs (NT) dated 31.03.2022.
iii. The Applicant request your good self to kindly provide any other relevant document(s) available with your good self-pertaining to Notification No. 25/2022- Customs (NT) dated 31.03.2022 and Notification No. 26/2022- Customs (NT) dated 31.03.2022."
Page 2 of 11The CPIO furnished a reply to the Appellant on 29-09-2022 stating as under:
"In this regard, it is observed that the information requested by you pertains to Budget exercise. Disclosure of the information including the process, notings, deliberations that go into the making of the budget has the potential to adversely impact the nation's economic interest. Being a Budget related matter, disclosure of the information sought by you shall be prejudicial to the economic interests of the country and shall also prejudicially affect the legitimate commercial interests of various third parties who give information and data to the government for formulation of Budget and with whom consultations are held in this connection. All budget-related activity of the government is conducted in secrecy. Information and suggestions are given by Ministries, trade bodies and individuals in fiduciary capacity for taking Budget-related policy decisions. The information sought by you is covered by the exemption contained in section 8(1) (a), 8(1) (d), 8(1) (c) of the RTI Act.
Further, CIC in the case of Shri Amin Merchant versus Department of Revenue [Order No. CIC/AT/A2006/00456 dated the 3rd January, 2007] has held as under:
"As is very well known, all matters connected with the Budget and their approvals are essentially part of the legislative process. It is not possible for the Ministry of Finance to furnish any answers about how that process was completed and various approvals taken. If the appellant has any query about certain aspects of the Union Budget, he should take it up at an appropriate forum. The RTI Act cannot provide him any relief, answers or information."
In view of the above, the CPIO cannot provide the information sought for."
Being dissatisfied, the appellant filed a First Appeal dated 03-11-2022. The FAA vide its order dated 22-12-2022, upheld the reply of CPIO.
CIC/CBECE/A/2023/111012 Information sought:
The Appellant filed an RTI application dated 02-09-2022 seeking the following information:
"a. By way of Finance Act, 2022, the following amendments were carried out in the Customs Act, 1962 (Customs Act)-Page 3 of 11
(i) In the Customs Act, in section 2, in clause (34), after the words "Principal Commissioner of Customs or Commissioner of Customs", the words and figure "under section 5" were inserted vide Section 86 of the Finance Act, 2022;
(ii) For section 3 of the Customs Act, the following section was substituted vide Section 87 of the Finance Act, 2022, namely:-
"3. There shall be the following classes of officers of customs, namely:-
(a) Principal Chief Commissioner of Customs or Principal Chief Commissioner of Customs (Preventive) or Principal Director General of Revenue Intelligence;
(b) Chief Commissioner of Customs or Chief Commissioner of Customs (Preventive) or Director General of Revenue Intelligence;
(c) Principal Commissioner of Customs or Principal Commissioner of Customs (Preventive) or Principal Additional Director General of Revenue Intelligence or Principal Commissioner of Customs (Audit);
(d) Commissioner of Customs or Commissioner of Customs (Preventive) or Additional Director General of Revenue Intelligence or Commissioner of Customs (Audit);
(e) Principal Commissioner of Customs (Appeals);
(f) Commissioner of Customs (Appeals); (g) Additional Commissioner of Customs or Additional Commissioner of
Customs (Preventive) or Additional Director of Revenue Intelligence or Additional Commissioner of Customs (Audit);
(h) Joint Commissioner of Customs or Joint Commissioner of Customs (Preventive) or Joint Director of Revenue Intelligence or Joint Commissioner of Customs (Audit);
(i) Deputy Commissioner of Customs or Deputy Commissioner of Customs (Preventive) or Deputy Director of Revenue Intelligence or Deputy Commissioner of Customs (Audit);
(j) Assistant Commissioner of Customs or Assistant Commissioner of Customs (Preventive) or Assistant Director of Revenue Intelligence or Assistant Commissioner of Customs (Audit);Page 4 of 11
(k) such other class of officers of customs as may be appointed for the purposes of this Act"
(iii) Vide Section 88 of the Finance Act, 2022, in section 5 of the Customs Act,-
(a) after sub-section (1), the following sub-sections was inserted, namely: -
"(1A) Without prejudice to the provisions contained in sub-section (1), the Board may, by notification, assign such functions as it may deem fit, to an officer of customs, who shall be the proper officer in relation to such functions.
(1B) Within their jurisdiction assigned by the Board, the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, may, by order, assign such functions, as he may deem fit, to an officer of customs, who shall be the proper officer in relation to such functions.";
(b)after sub-section (3), the following sub-sections was inserted, namely:- "(4) In specifying the conditions and limitations referred to in sub-section (1), and in assigning functions under sub-section (1A), the Board may consider any one or more of the following criteria, including, but not limited to-- (a) territorial jurisdiction; (b) persons or class of persons; (c) goods or class of goods; (d) cases or class of cases; (e) computer assigned random assignment; (f) any other criterion as the Board may, by notification, specify.
(5) The Board may, by notification, wherever necessary or appropriate, require two or more officers of customs (whether or not of the same class) to have concurrent powers and functions to be performed under this Act.".
b. Further, Section 97 of the Finance Act, 2022, provided as under:
"97. Notwithstanding anything contained in any judgment, decree or order of any court, tribunal, or other authority, or in the provisions of the Customs Act, 1962 (hereinafter referred to as the Customs Act), -
(i) anything done or any duty performed or any action taken or purported to have been taken or done under Chapters V, VAA, VI, IX, X, XI, XII, XIIA, XIII, XIV, XVI and XVII of the Customs Act, as it stood prior to its amendment by this Act, shall be deemed to have been validly done or performed or taken;
(ii) for the purposes of this section, sections 2, 3 and 5 of the Customs Act, as amended by this Act, shall have and shall always be deemed to have effect for all purposes as if the provisions of the Customs Act, as amended by this Act, had been in force at all material times.Page 5 of 11
Explanation. -- For the purposes of this section, it is hereby clarified that any proceeding arising out of any action taken under this section and pending on the date of commencement of this Act shall be disposed of in accordance with the provisions of the Customs Act, as amended by this Act."
5. Information sought by the Applicant: In respect of amendments to the Customs Act, 1962 i. The Applicant requests your good self to kindly provide the Applicant with all the file notings, note sheets and/or internal orders/ circulars/ instructions issued by the Board and/or the Customs Department in respect of amendments to Section 2, 3 and 5 of the Customs Act carried out vide Section 86, 87 and 88 of the Finance Act, 2022 respectively.
ii. The Applicant requests your good self to kindly provide the Applicant with all the file notings, note sheets and/or internal orders/ circulars/ instructions issued by the Board and/or the Customs Department in respect of Section 97 of the Finance Act, 2022.
iii. The Applicant request your good self to kindly provide any other relevant document(s) available with your good self pertaining to the above."
The CPIO furnished a reply to the Appellant on 29-09-2022 stating as under:
"In this regard, it is observed that the information requested by you pertains to Budget exercise. Disclosure of the information including the process, notings, deliberations that go into the making of the budget has the potential to adversely impact the nation's economic interest. Being a Budget related matter, disclosure of the information sought by you shall be prejudicial to the economic interests of the country and shall also prejudicially affect the legitimate commercial interests of various third parties who give information and data to the government for formulation of Budget and with whom consultations are held in this connection. All budget-related activity of the government is conducted in secrecy. Information and suggestions are given by Ministries, trade bodies and individuals in fiduciary capacity for taking Budget related policy decisions. The information sought by you is covered by the exemption contained in section 8(1) (a), 8(1) (d), 8(1) (e) of the RTI Act.
Further, CIC in the case of Shri Amin Merchant versus Department of Revenue [Order No.CIC/AT/A2006/00456 dated the 3rd January, 2007] has held as under:Page 6 of 11
"As is very well known, all matters connected with the Budget and their approvals are essentially part of the legislative process. It is not possible for the Ministry of Finance to furnish any answers about how that process was completed and various approvals taken. If the appellant has any query about certain aspects of the Union Budget, he should take it up at an appropriate forum. The RTI Act cannot provide him any relief, answers or information."
In view of the above, the CPIO cannot provide the information sought for."
Being dissatisfied, the appellant filed a First Appeal dated 03-11-2022. The FAA vide its order dated 22-12-2022, upheld the reply of CPIO.
CIC/CBECE/A/2023/111010 Information sought:
The Appellant filed an RTI application dated 02-09-2022 seeking the following information:
"By way of the Customs (Amendment and Validation) Act, 2011 dated 16.092011, in Section 28 of the Customs Act, 1962, after sub-section (10), the following sub-section has been inserted, namely:-
"(11) Notwithstanding anything to the contrary contained in any judgment, decree or order of any court of law, tribunal or other authority, all persons appointed as officers of Customs under sub-section (1) of section 4 before the 6th day of July, 2011 shall be deemed to have and always had the power of assessment under section 17 and shall be deemed to have been and always had been the proper officers for the purposes of this section.".
Information sought by the Applicant:
i. The Applicant requests your good self to kindly provide the Applicant with all the notifications, file notings, note sheets and/ or internal orders/ circulars/ instructions issued by the Board or the Customs Department in respect of Customs (Amendment and Validation) Act, 2011 dated 16.09.2011 and insertion of Section 28(11) to the Customs Act.
ii. The Applicant request your good self to kindly provide any other relevant document(s) available with your good self- pertaining to Customs (Amendment and Validation) Act, 2011 dated 16.092011 and insertion of Section 28(11) to the Customs Act."
The CPIO furnished a reply to the Appellant on 29-09-2022 stating as under:Page 7 of 11
"In this regard, it is observed that the information requested by you pertains to Budget exercise. Disclosure of the information including the process, notings, deliberations that go into the making of the budget has the potential to adversely impact the nation's economic interest. Being a Budget related matter, disclosure of the information sought by you shall be prejudicial to the economic interests of the country and shall also prejudicially affect the legitimate commercial interests of various third parties who give information and data to the government for formulation of Budget and with whom consultations are held in this connection. All budget-related activity of the government is conducted in secrecy. Information and suggestions are given by Ministries, trade bodies and individuals in fiduciary capacity for taking Budget related policy decisions. The information sought by you is covered by the exemption contained in section 8(1) (a), 8(1) (d), 8(1) (e) of the RTI Act.
Further, CIC in the case of Shri Amin Merchant versus Department of Revenue [Order No. CIC/AT/A2006/00456 dated the 3rd January, 2007] has held as under:
"As is very well known, all matters connected with the Budget and their approvals are essentially part of the legislative process. It is not possible for the Ministry of Finance to furnish any answers about how that process was completed and various approvals taken. If the appellant has any query about certain aspects of the Union Budget, he should take it up at an appropriate forum. The RTI Act cannot provide him any relief, answers or information."
In view of the above, the CPIO cannot provide the information sought for."
Being dissatisfied, the appellant filed a First Appeal dated 03-11-2022. The FAA vide its order dated 07-12-2022, upheld the reply of CPIO.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeals.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Present in person Respondent: Sanjeet Kumar US and CPIO appeared in person The appellant inter alia submitted that the information sought does not pertain to Budgetary exercise of the Parliament. He stated that the information Page 8 of 11 requested has no proximity/nexus to the Union Budget, and reply given by the CPIO as well as the FAA is without any basis. He informed that the information sought by him pertains to the issuance of notifications related to the appointment/ powers of certain customs officers, has no direct budgetary financial implication and the potential to prejudicially affect the nation's economic interest. Besides, the FAA vide order dated 07.12.2022 simply upheld the CPIO's reply without determining the fact as to how the information sought would affect the nation's economic interest.
Similarly, the exemption under Sections 8 (1) (d) and (e) of the RTI Act have been invoked by the CPIO and the FAA merely to deny the information to the Appellant. Since, the information sought does not in any way affect any third party, commercially or otherwise. Further, no attempt has been made by the FAA to establish that the information being withheld was received by the Department in any fiduciary capacity or to demonstrate how disclosure of such information will result in any kind of breach of trust.
The appellant relied upon the decision of the Commission in the matter of R K Jain v. CPIO & Under Secretary, Ministry of Finance (File No. CIC/CBECM/A/2016/291574 dated 10.10.2017), wherein the appellant has requested for information relating to amendments made in the Central Excise Act, 1944. This information was denied on the ground that the information pertained to the Union Budget, 2016. ln this regard, the Hon'ble CIC expressed its displeasure in respect of the manner in which the CPIO therein denied the disclosure of information without recording any reasons as to why such exemption under Section 8 of the RTI Act was claimed.
The respondent while defending their case inter alia submitted that reiterated the CPIOs' reply dated 29-09-2022 and the FAAs' orders dated 22-12-2022 & 07-12-2022. They further submitted that information sought was related to Budget exercise, disclosure of information including the process, notings, deliberations that go into the making of the budget has the potential to adversely impact the nation's economic interest. They stated that all budget- related activity of the government was conducted in secrecy. The information and suggestions were given by Ministries, trade bodies and individuals in fiduciary capacity for taking Budget related policy decisions. Therefore, they Page 9 of 11 expressed their inability to provide the information under section 8(1) (a), 8(1)
(d), 8(1) (e) of the RTI Act.
Decision:
The Commission after adverting to the facts and circumstances of the case, hearing both the parties and perusal of the records, notes that the appellant sought information pertained to the appointment of officers of customs for exercise of certain powers under the Customs Act; amendments made to Section 2, 3 and 5 of the Customs Act; and file notings, note sheets and/ or internal orders/ circulars/ instructions issued by the Board or the Customs Department in respect of Customs (Amendment and Validation) Act, 2011 dated 16.09.2011 and insertion of Section 28(11) to the Customs Act and relates issues.
The appellant inter alia submitted that the information sought was in no manner connected to any budgetary exercise but rather the manner in which such power has been granted to officers of customs to exercise such powers. A bare perusal of the reply given by the CPIO, and order passed by the FAA indicates that the aspect as to how the disclosure of information would fall within the exempted category are not explained by them. Merely, citing that the information is exempted under 8(1) (a), 8(1) (d), 8(1) (e) of the Act would not absolve the public authority from discharging its onus as required to claim such exemption.
The appellant in his first appeal made detailed submissions regarding disclosure of information which were not addressed, and the FAA vide orders dated 22-12-2022 & 07-12-2022 simply endorsed the replies given by the CPIO. It may not be out of place to mention that the exemption claimed by the CPIO, and the FAA need to be established by way of cogent reasons. Thus, the Commission is of the view that the FAA has passed their orders dated 22-12- 2022 & 07-12-2022 mechanically. Moreover, the FAA has not given an opportunity of hearing to the appellant. Furthermore, in OM No. 20/10/23/2007-IR dated 09.07.2009, while elaborating on the duties and responsibilities of the FAA, it was stated that:
"3. Deciding appeals under the RTI Act is a quasi judicial function. It is, therefore, necessary that the appellate authority should see that the Page 10 of 11 justice is not only done but it should also appear to have been done. In order to do so, the order passed by the appellate authority should be a speaking order giving justification for the decision arrived at.
In view of the above facts and circumstances of the case, the Commission finds it just and reasonable, in accordance with principles of natural justice, that a fair and proper hearing is conducted by the First Appellate Authority, by giving due opportunity to the Appellant to present his case before the FAA. Hence, the instant cases are remanded back to Shri R. Ananth, First Appellant Authority, for fresh adjudication of the First Appeal upon providing fair hearing to both the parties. The First Appeal shall be decided by a reasoned, speaking order on merits. The above directions be complied within four weeks from the date of receipt of this order. The appellant is at liberty to approach the Commission, if aggrieved with the orders passed by the FAA.
The appeals are disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181927 Date Copy To:
THE FAA, CENTRAL BOARD OF INDIRECT TAXES AND CUSTOMS NORTH BLOCK, NEW DELHI - 110004 Page 11 of 11 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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