Information with reference to Show Cause Notice was denied u/s 8(1)(d) to the Director of the firm - PIO did not appear before the bench for hearing - Request for adjournment rejected - CIC: Denial of info rejected as being irrelevant and unsubstantiated

Information sought:

The Appellant filed an RTI application dated 22.05.2021 seeking the following information with reference to Show Cause Notice File No. 5/26- Misc.109/2004JNCH/S/10-ADJ-169/04-05GR IV JNCH dated 12.01.2005 issued to M/s Kainya and Associates Pvt. Ltd:

A) “Actions taker or replied by Customs with respect to the previous letter dated L6/04/2021, send by us to you with reference to the above said show cause.

B) Reason for the Non-disposal of the above said 5CN, it the SCN is still pending.

C) Reasons for delay in replying to our above said letter, If not replied.”

The CPIO denied information to the appellant on 08.07.2021 under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act, 2005.

Being dissatisfied, the appellant filed a First Appeal dated 13.07.2021. FAA’s order dated 31.08.2021 upheld the reply of CPIO. Feeling aggrieved and dissatisfied, the appellant approached the Commission with the instant Second Appeal.

Relevant Facts emerging during Hearing:

The following were present:-

Appellant: Present through video conference.

Respondent: Not present.

The Appellant stated that he is gravely aggrieved with the reply of the CPIO as he had categorically specified in all the records that he is the Director of the averred firm and has every right to seek for the information related to the status of the show-cause notice issued to it. He further stated that he is more irked by the fact that at the stage of First Appeal hearing, the FAA was convinced that he is not a third party in the matter and the FAA had also seen the GST certificate containing his name as the Director of the said firm and the FAA had also assured him that the information will be provided but when the FAA’s order arrived, he was shocked to learn that the FAA had merely upheld the CPIO’s reply.

Decision:

The Commission based on a perusal of the facts on record observes that the Appellant had ostensibly clarified in the RTI Application & the First Appeal that he is the Director of M/s Kainya and Associates Pvt. Ltd, yet neither the CPIO nor the FAA have reflected upon the said aspect and have rather mechanically invoked Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act. Even if the CPIO or the FAA had any apprehension regarding the locus standi of the Appellant despite after being informed about his Directorship, they were at liberty to request for documentary proof, which otherwise the Appellant is claiming to have already shown to the FAA.

The Commission also finds that the allegation of the Appellant that the FAA’s hearing proceedings and the order passed by it eventually did not bear congruence is a matter of serious concern.

Further, the CPIO has also not appeared before the bench or deputed any representative to argue in the matter so as to lend clarity on the allegations levelled by the Appellant. In this regard, it may be noted that the request for adjournment sent by Ranjan Kumar Mishra, Asstt. Commissioner of Customs & CPIO cannot be accepted at this belated stage of having listed the matter for hearing and more particularly in the absence of any reasons as to why no other authorized officer was deputed by the CPIO for the hearing as stipulated under para 3(a) of the notice of hearing.

Nonetheless, irrespective of the CPIO’s presence, the scope of relief is pertinent in the matter

Now, therefore, the denial of the information under Section 8(1)(d) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information; of the RTI Act is rejected as being irrelevant and unsubstantiated and the CPIO is directed to revisit the RTI Application and provide the available information to the Appellant within 15 days from the date of receipt of this order under due intimation to the Commission.

The appeal is disposed of accordingly.

Saroj Punhani

Information Commissioner

Citation: Arjun Kainya v. CPIO, Office of the Commissioner of Customs, NHAVA SHEVA-I, III and V in File No : CIC/CCUM1/A/2021/147300, Date of Decision : 01/11/2022