CENTRAL INFORMATION COMMISSION
…..
F.No.CIC/AT/A/2009/000523
Dated, the 31st July, 2009.
Appellant
: Shri Rajiv Gupta
Respondents : Central Board of Excise and Customs
This second-appeal came up for hearing on 21.07.2009 through
videoconferencing with appellant present at NIC VC facility at Mumbai
and the respondents present at the CIC office at New Delhi, from where
the Commission also conducted its hearing.
2.
The second-appeal is related to appellant’s RTI-application dated
22.08.2008, a copy of which is annexed to this order.
3.
CPIO’s order dated 04.09.2008 stated that apart from queries at
Sl.Nos.2, 5 and 8 in appellant’s RTI-application, no other query could be
related to anything that answered the definition of information under
Section 2(f) of the RTI Act. In relation to queries at Sl.No.2, 5 and 8,
CPIO’s replies stated the following:“On point 2:- There are only three types of Bills of Entry i.e. 1)
for home consumption; 2) for warehousing and 3) for ex-bond
clearance for home consumption.
On point 5:- Such requirements are prescribed in the notification
itself. Copy of the Notification No.32/97-cus. dated 1-4-1997 is
being provided to you herewith.
On point 8:- Copy of the EDI Declaration Form for Import, set out
in Appendix ‘A’ of the Bill of Entry (Electronic Declaration)
Regulations, 1995 and issued vide M.F. (D.R.) Notification
No.62/95-Cus. (N.T.), dated 5-10-1995, is being provided
herewith.”
4.
However, Appellate Authority, in his order dated 13.02.2009,
provided information to the appellant in respect of all his questions in
the manner considered appropriate by Appellate Authority, which read
as follows:AT-31072009-27.doc
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“Question 1. Whether goods which are sold under a commercial
invoice can be cleared under the Notification No.32/97-customs
dated 1.4.1997.
Reply: The scope of goods that are allowed clearance with
customs duty exemption under the Notification No.32/97-customs
dated 1.4.1997 are as follows: the goods covered under the first
schedule to the Customs Tariff Act, 1975 which fulfill the
following conditions, (i) that the goods are imported for
execution of an export order placed on the importer by the
supplier of goods for jobbing; (ii) that the goods so imported,
including resultant products, are re-exported to the supplier of
the goods or to any other person which the said supplier may
specify within six months from the date of clearance (iii) the
goods are utilized only for the discharge of export obligation and
no part there of shall be sold, loaned, transferred or otherwise
used or disposed of; (iv) that the FOB value of the resultant
products exported is at least 10% more than the C.I.F. value of
all goods imported in relation to the said resultant products.
Further, the term ‘goods’ have also been explained for the
purpose of this notification as follows: “Goods” means raw
materials, components, intermediates, semi-finished goods,
consumables, parts, packing materials including hangers for
garments, patterns, drawings, jigs, tools, fixtures, moulds,
tackles, instruments, and computer hardware and software, as
are directly related to the export order and supplied free of cost
by the foreign buyer.
Question 3. What steps are taken by the Customs department to
stop the remittance against the B/E cleared under Notification
No.32/97. Are there any instructions in this matter, please
provide copy thereof.
Reply: The instructions available in the form of Board’s circular
No.26/2001-Customs dated 24-04-2001 and Circular No.18/2004Customs dated 20.2.2004 and its copy is enclosed.
Question 4. If the goods invoiced under Commercial invoice &
the Commercial invoice placed on record at the time of clearance
of goods & the goods are cleared under Notification No.32/97
then can the importer be prosecuted:
AT-31072009-27.doc
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Question 6.
If the jurisdictional Excise document is not
produced on record at the time of clearance of goods & the goods
are cleared under Notification No.32/97 then can the importer
be prosecuted.
Question 7. If there is violation in terms of Notification
No.32/97 then what is the penal provisions applicable.
Reply:
The Notification No.32/97-Customs dated 1.4.2007
provide that he importer shall follow the procedure set out in
the Customs (Import of goods at Concessional Rate of Duty for
Manufacture of Excisable Goods) Rules, 1996. These rules,
interalia, provide that “The Assistant Commissioner of Central
Excise or Deputy Commissioner of Central Excise shall ensure
that the goods imported are used by the manufacturer for the
intended purpose and in case they are not so used take action to
recover the amount equal to the difference between the duly
leviable on such goods but for the exemption and that already
paid, if any, at the time of importation, along with interest, at
the rate fixed by notification issued under Section 28AB of the
Customs Act, 1962, for the period starting from the date of
importation of the goods on which the exemption was availed
and ending with the date of actual payment of the entire amount
of the difference of duty that he is liable to pay.”
Further, in terms of the Section 111 and 112 of the Customs Act,
1962 provide the following penal provisions:
“The following goods brought from a place outside India shall be
liable to confiscation. This, interalia, include:(d) any goods which are imported or attempted to be imported or
are brought within the Indian customs waters for the purpose of
being imported, contrary to any prohibition imposed by or under
this Act or any other law for the time being in force;
(m) any goods which do not correspond in respect of value or in
any other particular with the entry made under this Act or in the
case of baggage with the declaration made under section 77 in
respect thereof, or in the case of goods under transshipment,
with the declaration for transshipment referred to in the proviso
to sub-section (1) of section 54;
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Further, “Any person, (a) who, in relation to any goods, does or omits to do any act
which act or omission would render such goods liable to
confiscation under section 111, or abets the doing or omission of
such an act, or
(b) who acquires possession of or is in any way concerned in
carrying, removing, depositing, harbouring, keeping, concealing,
selling or purchasing, or in any other manner dealing with any
goods which he knows or has reason to believe are liable to
confiscation under section 111, shall be liable, (i) in the case of goods in respect of which any prohibition is in
force under this Act or any other law for the time being in force,
to a penalty not exceeding the value of the goods or five
thousand rupees, whichever is the greater.
(ii) in the case of dutiable goods, other than prohibited goods, to
a penalty not exceeding the duty sought to be evaded on such
goods or five thousand rupees, whichever is the greater;
(iii) in the case of goods in respect of which the value stated in
the entry made under this Act or in the case of baggage, in the
declaration made under section 77 (in either case hereafter in
this section referred to as the declared value) is higher than the
value thereof, to a penalty not exceeding the difference between
the declared value and the value thereof or five thousand
rupees, whichever is the greater;
(iv) in the case of goods falling both under clauses (i) and (iii), to
a penalty not exceeding value of the goods or difference between
the declared value and the value thereof or five thousand
rupees, whichever is the highest;
(v) in the case of goods falling both under clauses (ii) and (iii), to
a penalty not exceeding the duty sought to be evaded on such
goods or the difference between the declared value and the
value thereof or five thousand rupees, whichever is the highest.”
AT-31072009-27.doc
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Questions 9-16.
9. Please let me know whether in case of Notification No.32/97customs dated 1.4.97, the remittance can be effected to the
sender of goods
10. If the B/E & the S/B are finally assessed & the jurisdictional
Excise authority & certificate regarding complete utilization of
imported material is produced under the Notification No.32/97
then can the release of bond & Bank Guarantee be withheld by
the Customs Department.
11. Whether the Notification No.32/97 requires that all the
inputs required for the manufacture of the export product need
to be cleared under the said notification.
12. Can the importer avail Notification No.32/97 on the optional
basis i.e. one inputs is cleared under the Notification No.32/97 &
the other is cleared without the benefit of the notification.
13. If two inputs are coming from two different countries & are
cleared under Notification No.32/97 then where the final goods
can be exported.
14. If two inputs are coming from two different countries & one
input is cleared under Notification No.32/97 & one input is
cleared under home consumption B/E then where the final goods
can be exported.
15. If the basic & substantive conditions of the law viz.
Notification, rules, etc. are violated in respect of the clearance
of goods under Notification No.32/97 then who is responsible.
16. In reference to point No.15, please let me know whether the
law holds the importer single handedly responsible for
prosecution even after all facts appear on record & breach of
notification conditions are obvious.
Reply: The question as above ask specific query in specific
circumstances illustrated by the applicant, whether certain
actions are permissible, what course of option is available for
importer in a certain specific situations, what action should be
carried on by the importer for export of goods brought for
AT-31072009-27.doc
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jobbing under the Notification No.32/97-customs dated 1.4.2007,
who are responsible for certain action, etc. The above said
questions are in the nature of seeking opinion or views in respect
of Notification No.32/97-Customs dated 1.4.2007, who are
responsible for certain action etc. The above said questions are
in the nature of seeking opinion or views in respect of
Notification No.32/97-Customs dated 1.4.2007 and certain
situations arising therein. As can be seen from above and from
the application, this Public Authority is holding no such
information. Hence, the CPIO could not provide his opinion
which was explained in reply to the applicant.
However, in order to assist the applicant in his quest for
information and the spirit of the RTI Act, 2005, while dealing
with the appeal the information which could be culled out from
the Notification No.32/97-Customs dated 1.4.2007 have been
provided. The questions 9-16 are seeking the opinion or views of
the CPIO / appellate authority; as such these are not information
in terms of Section 2(f) of the RTI Act, 2005. It is however,
requested that applicant may indicate or pinpoint the
information that is being held by this Public Authority, if he
chooses so. Accordingly the same can be furnished to him either
by his inspecting the records maintained by the office of the
CPIO or by offering a personal hearing if he desires so.”
5.
Appellant has filed his second-appeal in regard to Appellate
Authority’s replies to his queries at Sl.Nos.1, 3, 4, 9 and 10 to 16 in his
RTI-application. Appellant has the following to say in respect of these
queries:“The Question No.1 is very specific that whether the goods
covered under Commercial Invoice can be covered under Notfn.
No.32/97 dtd. 1.4.07. This information is not given in specific &
transparent manner. The Policy makers are required to give this
information in transparent & specific manner.
The question No.3 very clearly requests to specify the steps
taken to stop remittance against the B/E cleared under
Notification No.32/97. In reply two CBEC circulars have been
attached. These circulars do not specify anything to stop the
remittance. Therefore, the official is trying to pull wool over
the eyes of the authorities to show that information is given. If
AT-31072009-27.doc
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the two CBEC circular’s stop remittance against B/E cleared then
that information may be pointed out in the circulars attached.
The question No.4 is again very specific that if the goods covered
under commercial invoice are cleared under Notfn. No.32/97 &
the commercial invoice was placed on record then can the
importer be prosecuted. The transparent answer is not given to
save the officials of the field formations i.e. those who have
committed wrongs. The same is the case with the question No.5.
Here again the Customs officials have violated the law &
therefore transparent & specific reply is avoided. The policy
makers cannot claim ignorance of the law to save those who have
committed the wrongs. It is pertinent to point out here that
Notification No.32/97 is pertaining to job work.
The specific reply to query no.9 is avoided. Similarly reply to
query No.10, 11, 12, 13, 14 ,15 & 16 are avoided. Please note
that the law has to be transparent & the user as well as the
implementers should know that what is the law & how it is to be
implemented. If the implementers & users do not know the law
then how can that be implemented.
It is definitely the
responsibility of policy makers to lay down the law in clear &
transparent manner in terms of S 4(C) of the RTI Act & this
responsibility means that the citizens need to be necessarily
provided this information.
The law leaves no scope for
interpretation.
If this is not done then the law remains
corruption oriented because those who pay the bribes their work
is done but those who do not, they are made to suffer to no end.
The learned Appellate Authority says that the applicant can
pinpoint the information but then why will the applicant
approach the authority for the information if he is already aware
of it.
Please note that the notification No.32/97 says that goods are to
be supplied fee [sic] of cost but the field formats are clearing
the goods covered under Commercial invoice under Notfn.
No.32/97, which is against the conditions of the notification &
the policymakers are saving them. It cannot be the case of the
Policy makers that they do not understand what job work means
or they cannot read the notification properly. Why they should
try to pull wool over the eyes of authorities. Why they should
cheat the exchequer. If the Director (Customs) in CBEC is not
AT-31072009-27.doc
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aware of the basics then how do you expect that the
implementers can implement & users can comply with the law.”
Decision:
6.
I have carefully perused the above queries made by the appellant
and I notice that while Appellate Authority has attempted to provide to
the appellant as much information as he could in a spirit of enlightening
an information-seeker about the functioning of the Department which
Appellate Authority represents, these queries are clearly outside the
scope of Section 2(f) of the RTI Act. These are in the nature of seeking
respondents’ explanations, elucidations and interpretations apart from
their opinion on various points of law about which appellant seems to
have made certain assumptions. It has been the decision of this
Commission that such queries cannot be asked of a public authority as
these are not covered by the definition of information under Section
2(f) of the RTI Act (Kamal C. Tiwari Vs. Ministry of Defence; Appeal
No.CIC/AT/A/2006/00360; Date of Decision: 23.11.2006 and Subhash
Chandra Vs. Income Tax Department; Appeal Nos.CIC/AT/A/2007/00190
& F.No.CIC/AT/A/2007/00291; Date of Decision: 8.6.2007). If appellant
has any concerns about what a express exception of a statute, rule or
instruction meant, he should better approach the appropriate authority
under the provision of that statute, rule or instruction, or initiate the
proceeding based upon his own interpretation of the statute, rule or
instruction, which then shall be adjudicated upon by the designated
authority for a decision. RTI cannot be a route for seeking
interpretation of law from officers of the public authority.
7.
I, therefore, direct that there shall be no obligation cast on the
respondents to reply to the above queries of the appellant.
8.
Appeal closed.
9.
Copy of this direction be sent to the parties.
( A.N. TIWARI )
INFORMATION COMMISSIONER
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