Central Information Commission
Yogesh Padmakar Mhatre vs Chief Commissioner, Central Excise, ... on 22 April, 2024
केन्द्रीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ मागग, मुननरका
Baba Gangnath Marg, Munirka
नई निल्ली, New Delhi - 110067
File No : CIC/CCEM1/A/2023/113832
Yogesh Padmakar Mhatre .....अपीलकर्ाग /Appellant
VERSUS
बनाम
PIO,
Assistant commissioner CGST & Central
Excise, Belapur V Division,
3rd Floor, C.G.O. Complex,
Sector 10, C.B.D. Belapur,
Navi Mumbai - 400614 ....प्रनर्वािीगण /Respondent
Date of Hearing : 18-04-2024
Date of Decision : 19-04-2024
INFORMATION COMMISSIONER : Vinod Kumar Tiwari
Relevant facts emerging from appeal:
RTI application filed on : 23-09-2022
CPIO replied on : 12-10-2022
First appeal filed on : 08-11-2022
First Appellate Authority's order : 05-12-2022
2nd Appeal/Complaint dated : 18-03-2023
Information sought:
The Appellant filed an RTI application dated 23-09-2022 seeking the following information:
"It is reliably learnt that:
1. A Show Cause Notice F.No. CGST/Bel-V/R-V/CBDT Data-II/YPM/135/2019-20 dated 12/11/2020 issued by the Assistant Commissioner, CGST & C.Ex., Division V, Belapur and
2. Order in original No. 04/AC/Bel-V/R-V/YPM/3PD/2022 dated 04/05/2022 is issued by Shri. Kumar Bharosa Nanadan, I.R.S, Assistant Commissioner, CGST & C.Ex. Belapur, Division V, is also issued in my name by the Department;Page 1 of 7
As I haven't got any of these documents viz. Show Cause Notice and / or Order in Original stated above I request for providing me the following under RTI Act immediately on receipt of my RTI Application:-
a. Certified copy of the Show Cause Notice F.No. CGST/Bel-V/R-V/CBDT Data- II/YPM/135/2019-20 dated 12/11/2020 stated to have been issued by the Assistant Commissioner, CGST & C.Ex., Division V, Belapur; b. The proof of delivery of this Show Cause Notice to me by the Department; C. Certified copy of Order in original No. 04/AC/Bel-V/R-V/YPM/3PD/2022 dated 04/05/2022 stated to have been issued by Shri. Kumar Bharosa Nanadan, I.R.S, Assistant Commissioner, CGST & C.Ex. Belapur, Division V; d. All the relied upon documents appearing in Show Cause Notice as well Order in Original.
e. The proof of delivery of the Order in Original to me by the department with documentary evidences if any.
I call upon this above information and copies of certified documents for my furtherance as it is learnt to be issued in my name in connection with Service tax matters for which I need to have these documents as I am totally unaware of any such incidents and left in dark till date."
The CPIO furnished a point-wise reply to the Appellant on 12-10-2022 stating as under:
"a. Reply: Copy of the SCN Notice vide F.No. CGST/Bel-V/R-V/CBDT Data- II/YPM/135/2019-20 dated 12.11.2020 has already been dispatched vide dispatch No. 535 dated 12.11.2020.
b. Reply: The proof of delivery of SCN issued by the Department has been attached as "Annexure-A".
c. Reply: Copy of Order in Original No. 04/AC/Bel-V/R-V/YPM/3PD/2022 dated 04.05.2022 has already bean dispatched vide dispatch No. 138 dated 04.05.2022.
d. Reply: Copy of all relied upon documents appearing in Show Cause Notice have been attached with the copy of SCN. There are no relied upon documents with Order in Original.
The proof of delivery of the Order in Original to me by the department with documentary evidences if any. Reply: The proof of delivery of the Order in Original issued by the Department has been attached as "Annexure-B"." Being dissatisfied, the appellant filed a First Appeal dated 08-11-2022. The FAA vide its order dated 05-12-2022, held as under"-
Page 2 of 7"I refrain from interfering in the replies given by CPIO. In order not to deny the information sought, a photocopy of Show Cause Notice and Order-in-Original be made available to the appellant for information only. This order or the information furnished thereunder, shall not have any bearing which may be prejudicial to the relevant date of issue of show cause notice or Order-in- Original thereof or any of the facts pertaining to the Adjudication proceedings of the subject show cause notice. Accordingly, the RTI Appeal application No. 639 dated 09-11-2022 stands disposed off."
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerged during Hearing:
The following were present:-
Appellant: Not Present.
Respondent: Shri K B Nandan, Assistant Commissioner & CPIO present through Video-Conference.
The written submissions of the Respondent are taken on record.
The Respondent, reiterated the contents of their written submissions, which are reproduced hereinbelow:
"The matter under appeal filed by Shri YOGESH PADMAKAR MHATRE [ herein referred to as 'Appellant'] is in respect of the non-supply of the information sought for under the RTI Act, 2005 relating to (a) The evidence of having served a copy of Show Cause Notice (SCN) dated: 12.11.2020 issued by the Department to the Appellant. (b) The evidence of having served a copy of the Order-in-Original (OIO) dated: 05.04.2022 issued by the Department to the Appellant. At the outset, it is relevant to mention here that the SCN and the OIO referred herein above, is caused and governed under the Service Tax provisions as prescribed under the Finance Act, 1994. In the matter of the dispute raised by the Appellant herein, the ways and means of serving any Notice and/or Order issued by the Department of Customs, Central Excise & Service tax prescribed in Section 37-C of the Central Excise Act, 1994 which is applicable to the provisions of Service Tax in terms of Section 83 of the Finance Act, 1994. 1 2
3. 4 For the sake of reference, the provisions of Section 37(of Central Excise Act, 1994 is produced as under. Central Excise Act, 1944 37C. SERVICE OF DECISIONS, ORDERS, SUMMONS, ETC. (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, (a) by tendering the decision, order, summons or notice, or sending it Page 3 of 7 by registered post with acknowledgement due, to the person for whom is intended or his authorized agent, if any; if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; if the decision, order, summons or notice cannot be served in the manner provided in clauses
(a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (b) (C) (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1) . 5. it is to submit here that the Department having dispatched the copy of the SCN and the OIO through the Department of Posts vide SPEED POST is an effort in terms of the provisions contained in Section 37C of the Central Excise act, 1944. It may also be relevant to mention here that such documents have also been pasted in the Notice Board of the Authority issuing the Order(OIO) in terms of Section 37C(c) of the Central Excise Act, 1944. In the aforesaid matter of allegation framed by the Appellant, it is to submit here that the Department has issued/delivered the SCN dated: 12.
11.2020 and the OIO dated: 04.05.2022 issued under the provisions of Finance Act, 1994, through the Post Office vide Speed Post. The said documents were forwarded to the following address of Appellant which is/was registered with the Income Tax Department. 6. Yogesh Padmakar Mhatre At- Pandive, Post- Koproli, Tal-Uran Uran, Raigad - 400702 7 The relevant Tracking No. of the Speed Post is EM 1851895231N and EM9058688521N relating to the forwarding of the SCN dated: 12.11.2020 and OIO dated: 04.05.2022 respectively, by the Department. 8. In reply to the RTI Application dated:
23.09.2022 filed by the Appellant the said information provided above in Para No.6 & 7, has been duly communicated to the Appellant vide this Office letter dated: GST/BEL-V/T-III/RTI/03/202223/ 1247 dated: 12.10.2022 [DIN-
20221067VUOO00777D3 ll. For the sake of reference, a copy of the said Letter dated: 12.10.2022 and its enclosures is attached herewith as EXHIBIT-I 9. The Appellant purportedly having been aggrieved with the above information provided under the RTI Act, 2005 had filed an Appeal before the First Appellate Authority. This envisages that the Appellant has received the information Page 4 of 7 supplied by this Department vide letter dated: 12.10.2022. 10. In this matter, it may be submitted before your kind authority that there is absolutely no material change in the Postal Address to which the SCN, Olo and the Reply to the RTI Application (filed by the Appellant). There could not be any impediment for the Postal Authorities to deliver the Letters issued by the Department through the Speed Post (stated herein above at Para No.6. 11 This Office would also like to submit here that, the Department vide Letters dated: 03.03.2022 [DIN-20220467VU000000E378] and 07.04.2022 [DIN 20220':+67VU000000A678] have extended the opportunity of 'Personal Hearing to the Appellant, relating to the SC:N dated: 12.11.2020. These letters were tendered through Speed Post Tracking Nos. EM9040800431N and EM9058632851N which have been returned back by the Department of Posts with following remarks noted on the envelopes. " xxxxxxxx" The copy the letter along with the corresponding Returned Envelopes is attached herewith as EXHIBIT-II and EXHIBIT-III. 12. It may also relevant to mention here that the Appellant has been informed about the Show Cause Notice (SCN) proceedings through email forwarded in his email id xxxxxxxxxxx as registered with the Income Tax Department. For the sake of reference, few of the copies along with the envelopes returned by the Department of Post is enclosed herewith as Exhibit-IV and EXHIBIT-V. The Appellant has ignored such email communications. 13 Notwithstanding to the submissions made above, the Respondent herein submit that, the Appellant has sought for, the proof of the Department of having delivered the said SCN and the OIC). In this matter, the Department has submitted the proof of the delivery of the said documents (SCN and C)IO) as is available in this Office/Department in terms of Section 37C of the Central Excise Act, 1944 14. The Respondent having filed the present Appeal on the ground that the procedure of the delivery of the said documents (SCN and OIC)) by the Department is not in sync with ways and means of delivery as is applicable to his choice of things is not correct in law. Whether, the documents (SCN and OIC)) have been delivered by this Department to the Department of posts or not is a matter of enquiry to be initiated at the end of the Postal Authorities. This Office having fulfilled the conditions of Section 37C of the Central Excise Act, 1994 laid down for the delivery of the said documents (SCN and OIC)) is content with its effort and procedures. Any dispute in the methodology of the delivery of the documents as discussed in the foregoing Paras is not a matter of dispute falling under the jurisdiction of the RTI Act, 2005. The Respondent has fully adhered to the provisions of the RTI Act, 2005 Page 5 of 7 and has taken all efforts in providing the information sought for by the Appellant as is available with the Department. The CPIO of the Department is not liable to create any information of its own and provide the information as per the liking of the Applicant/ Appellant. Based on the above submissions, the Respondent herein requests your kind authority to out rightly dismiss the Appeal filed and declare the act of the CPIO to be legal, correct and free from any vices and for such act of your kind authority, the Respondent in duty bound shall remain ever obliged."
Decision:
The Commission after adverting to the facts and circumstances of the case, hearing the Respondent and perusal of the records, notes that the Respondent provided point-wise reply/information to the Appellant vide letter dated
12.10.2022. Further, the FAA had also upheld the reply given by the CPIO. It is an admitted fact that the CPIO is only a communicator of information based on the records held in the office and hence, he is not expected to create information as per the desire of the Appellant. As per Section 2(f) of the RTI Act, the reasons/opinions/advises/rules can only be provided to the applicants if it is available on record of the Public Authority. In this regard, the Commission finds no infirmity in the reply and as a sequel to it further clarifications tendered by the CPIO during hearing as the same was found to be in consonance with the provisions of RTI Act. In view of this, no intervention of the Commission is warranted in the matter.
The appeal is disposed of accordingly.
Vinod Kumar Tiwari (विनोद कुमार वििारी) Information Commissioner (सूचना आयुक्त) Authenticated true copy (अनिप्रमानणर् सत्यानपर् प्रनर्) (S. Anantharaman) Dy. Registrar 011- 26181827 Date Page 6 of 7 Page 7 of 7 Recomendation(s) to PA under section 25(5) of the RTI Act, 2005:-
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