VALIDITY OF INFORMATION FURNISHED UNDER ‘RIGHT TO INFORMATION ACT’ 2005

[Mr. M. GOVINDARAJAN]

Right to Information Act, 2005 gives rights to the citizens of India to obtain information from the Public authority subject to the provisions of this Act.   According to this Act every public authority shall maintain proper records and disclose information in their web site and the said records are to be preserved for the period prescribed in the Act.   Any person who wants to get information from any public authority he has to apply to the proper Officer with the fees prescribed. Time limit is given for disposal of requests by such authorities.   If any person is aggrieved by non receipt of information or not satisfied with the information furnished he may file appeal to the appellate authority for redressal. It is expected that the information furnished by the public authority shall be correct and valid.  

Once information is furnished under this Act, the authority is estopped from denying the furnished fact. One such case is dealt with by the Bangalore CESTAT in ‘Trade Wide Exports V. Commissioner of Customs, Mangalore’ –2013 (8) TMI 211 - CESTAT BANGALORE.   In this case the appellant filed a shipping bill for export of casuarina wood poles.   The appellant prescribed the size of each pole.   The Officer examining the consignment did not indicate any difference of opinion as regards the declaration given by the appellant. After ‘Let Export’ was given the consignment was intercepted by the DRI. Proceedings were initiated which resulted in confiscation of the goods and imposition of redemption fine and penalty on the view that the item which was presented for export has to be considered as ‘fresh cut casuarina wood in rough logs with bark’.

The appellant filed appeal against the order before CESTAT. The Revenue submitted the following arguments before the Tribunal in their favor:

• The samples were considered as wood and containing bark to an extent 3-5% and species was identified as casuarina;
• The report indicates that the sample of wood goes against the assessee because wood in primary form is classifiable under 4401 of ITC (HS) and according to the Foreign Trade Policy, the wood classified under 4001 are prohibited for export;

The appellant contended that there was a ‘No Objection Certificate’ issued by Deputy Conservator of Forest Department, Mangalore Division who after taking note of the item being exported and considering the law as applicable. The appellant relied on the clarification issued by the DGFT on the application of the appellant under the Right to Information Act, 2005 which indicated that the items proposed to be exported are not covered by Foreign Trade Policy. For this argument the Revenue contended that the reply given under the RTI Act cannot be considered as valid. The appellant further contended that they had exported four consignments earlier which were allowed by the customs authorities.

After hearing both sides, the Tribunal observed that the Forest Department and the examining authorities of customs and the assessing officers did not consider the goods as prohibited. The shipping bill and the documents and the records furnished by the appellant cannot also be considered as not applicable to the goods proposed to be exported.   In fact, the casuarina poles can be fresh cut wood with some bark also depending upon the age of the tree and the nature, quality of the tree. Therefore it cannot be said that the appellant had misdeclared the description.

The Tribunal did not accept the arguments of the Revenue that the reply given under the RTI Act cannot be given any authenticity or value.   The Tribunal held if that is the case, there is no use for seeking information under the RTI Act.   If the Government Departments are going to give wrong information under RTI Act and information given under RTI Act cannot be relied upon, it will be totally against the concept under which the RTI Act was brought out in statute book. The opinion given by the DGFT and the NOC issued by the Forest Department also support the case of the appellant that there was no intention to export the prohibited goods and there was no misdeclaration.

The Tribunal held that even if the goods were prohibited, the customs authorities as well as the appellants genuinely believed that the same was not prohibited.   In the absence of any misdeclaration or deliberate attempt to export goods which are prohibited without having any ground for a belief that the same are not prohibited, imposition of fine and penalty cannot be sustained.   The Tribunal set aside the confiscation and redemption fine and penalty. The goods shall be allowed to be taken back into the country by the customs authorities without further delay.