Appeal No.CIC/LS/A/2010/001152/SS
CENTRAL INFORMATION COMMISSION
D- Wing, 2nd Floor,
August Kranti Bhavan, Bhikaji Cama Place,
New Delhi - 110066
Appeal No.CIC/LS/A/2010/001152/SS
PARTIES TO THE CASE:
(Through Video Conferencing)
Appellant : Sh. S.K. Ghoshal
Respondent : Deputy Commissioner, Central Excise Hqrs., Jamshedpur
Date of Decision : 04.08.2011
BACKGROUND
OF THE CASE:
1. The present second appeal was scheduled for hearing on 06/07/2011 at 1230
hours before the Commission through video conferencing. The Appellant as
well as the Respondent were present in person at the NIC Centre,
Jamshedpur and were heard through video conferencing.
2. The Appellant vide his RTI Application dated 12/03/2010 (typed in Hindi)
had requested specific information under 3 (three) Questions from the CPIO,
O/o. the Commissioner, Central Excise & Service Tax, Jamshedpur. The
information sought vide these 3 (three) Questions raised is as follows:
Appeal No.CIC/LS/A/2010/001152/SS
“(a) Supply of true copy of agreement made between M/s.
Lafarz and M/s. Suraj Associated Pvt. Ltd.
(b) Supply of true copy of the document regarding amount fixed
for M.T. rate on loaded cement as per para (iii) of the above
agreement.
(c) Supply of documents regarding payment of demand for the
period from 16/06/2005 to 31/02/2007 by M/s. Lafarz and M/s.
Suraj Associated Pvt. Ltd. in respect of (1) Service Tax, (ii)
Edu. Cess and (iii) Interest upto 05/02/2007 total amounting to
Rs.98,78,826 to the central excise department.”
3. The CPIO disposed of the Application vide his Order dated 08/04/2010 and
furnished the information requested under Question No. (c) to the Appellant.
The Appellant is also satisfied with the reply tendered by the CPIO and has
not agitated any denial of information so far as Question No.3 is concerned.
Regarding Question Nos. (a) and (b), the CPIO denied information under
Section 8 (1) (d) of the RTI Act stating that such information relates to a
private commercial agreement between M/s. Lafarz and M/s. Suraj
Appeal No.CIC/LS/A/2010/001152/SS
Associated Pvt. Ltd. and since it is their confidential document, the same
cannot be disclosed.
4. Aggrieved with the CPIO’s Order, the Appellant preferred first appeal
before the Additional Commissioner & FAA, Central Excise & Service Tax,
Jamshedpur on 12/04/2010. While replying to Question Nos. (a) and (b) of
the RTI Application, the FAA vide its Order in Appeal No.02/2010 dated
10/05/2010 held that the information could not be furnished since it was a
private agreement involving commercial confidence and business secrets of
M/s. Lafarz and M/s. Suraj Associated Pvt. Ltd.
5. Hence, aggrieved by the same, the Appellant has preferred second appeal
before this Commission.
DECISION NOTICE:
6. We have carefully perused through the submission made and considered the
arguments advanced by both the parties.
7. We concur with the detailed reply given by the FAA vide its Order dated
10/05/2010 (supra) so far as Question No.(a) of the RTI Application is
concerned. The commercial agreement between M/s. Lafarz and M/s. Suraj
Associated Pvt. Ltd. is a private arrangement between the two parties. The
Respondent CPIO had followed the procedure established under Section 11
Appeal No.CIC/LS/A/2010/001152/SS
(1) of the RTI Act whereby the third party, i.e. M/s. Suraj Associated Pvt.
Ltd. vide their letter dated 26/03/2010 had requested the CPIO Respondent
not to disclose the contents of the said commercial agreement which
contains confidential information including the terms and conditions of their
business etc. The Appellant has also failed to show how ‘larger public
interest’ warrants the disclosure of such agreement.
8. In our opinion, the Order of the FAA has to be upheld since the information
under Question No.(A) cannot be furnished to the Appellant under Section 8
(1) (d) of the RTI Act. We now proceed to deal with Question No. (b) of the
RTI Application.
9. Our attention has been drawn to one of the Appellant’s earlier RTI
Applications dated 22/10/2009 addressed to the CPIO, O/o. the
Commissioner, Central Excise & Service Tax, Jamshedpur. In response to
the same, vide Order dated 29/10/2000, the CPIO (as was then) had enclosed
one letter no.III (10-A)194/IA/ISR/2006 dated 07/03/2007 issued from the
O/o. the Commissioner, Central Excise & Service Tax, Jamshedpur to M/s.
Lafarz India (P) Ltd. bearing the subject matter ‘Service Tax on packaging
of Cement’. The letter bears the signature of the Superintendent (Audit),
Central Excise Hqrs., Jamshedpur.
Appeal No.CIC/LS/A/2010/001152/SS
10. According to contents of the said letter, it was found by the Superintendent
(Audit), Central Excise Headquarters, Jamshedpur during the course of audit
of records of M/s. Lafarz India (P) Ltd, that one M/s. Suraj Associated Pvt.
Ltd was providing manpower to M/s. Lafarz India (P) Ltd. under their
private agreement. The laborers supplied by M/s. Suraj Associated Pvt. Ltd
were doing miscellaneous work in the factory (such as operating the loading
machines used for loading of cement in trucks, operating of cement packing
machine, cleaning of floor and conveyor belts etc.) for which M/s. Lafarz
India (P) Ltd used to pay certain amount of money to M/s. Suraj Associated
Pvt. Ltd in accordance with the terms and conditions of their own private
agreement.
11. The said letter reveals the breakdown of the amount which M/s. Lafarz India
(P) Ltd was supposed to pay to M/s. Suraj Associated Pvt. Ltd in return for
the latter’s services as described above. At point (1) of the said letter, it is
stated that an amount based on loaded cement quantity per Metric Tonne
(MT) as per Para 1.1.1 of the agreement was fixed and it was based on the
rate fixed for payment of workers as per the Central Wage Board. At points
(2) to (4), the letter states that there was fixed amount for helmets, shoes,
dust mask for laborers, expenses for personal consumables for laborers, bus
expenses for commuting of laborers etc.
Appeal No.CIC/LS/A/2010/001152/SS
12. According to the said letter, the practice adopted by M/s. Suraj Associated
Pvt. Ltd was that it provided only labour constituent of each process to M/s.
Lafarz India (P) Ltd whereas the other parts of packing and loading, i.e.
supply of branded packing bags, packing machine, conveyor belt, loading
machine, supervision etc were provided by M/s. Lafarz India (P) Ltd itself.
13. It has been further mentioned in the said letter that the Finance Bill 2005
w.e.f. 16/06/2005 has brought ‘supply of manpower’ under the net of service
tax. However, the service tax paid by M/s. Suraj Associated Pvt. Ltd was
being calculated on the basis of the amount paid to it by M/s. Lafarz India
(P) Ltd under their private agreement and M/s. Suraj Associated Pvt. Ltd has
not paid service tax on the services provided by it in reality to M/s. Lafarz
India (P) Ltd. The said letter describes the total service tax paid by M/s.
Suraj Associated Pvt. Ltd upto 05/02/2007 (for the period 16/06/2005 to
31/01/2007) as Rs.98,78,826/- calculated on the basis of the amount paid by
M/s. Lafarz India (P) Ltd to M/s. Suraj Associated Pvt. Ltd as per their
private agreement.
14. It appears from the above said letter dated 07/03/2007 issued from the O/o.
the Commissioner, Central Excise & Service Tax, Jamshedpur to M/s.
Lafarz India (P) Ltd. that the amount fixed for loading cement per MT was
based on payment of workers as per Central Wage Board rate.
Appeal No.CIC/LS/A/2010/001152/SS
15. It needs to be understood at this juncture that both M/s. Lafarz India (P) Ltd
as well as M/s. Suraj Associated Pvt. Ltd are private limited companies. As
such, they are free to enter into a legally binding contract on such terms and
conditions as they deem fit and so desire. As long as such terms and
conditions contained in their private agreement are not violative of the law
of the land such as Ordinance, order, bye law, rule, regulation, notification,
statutes, guidelines made by Legislature or other competent authority or of
any decree or order passed by a Court of law, there can be nothing to prevent
those two private companies from entering into a commercial agreement on
such terms and conditions as they wish.
16. Thus, in accordance with the observations of the Auditing officer of the
Commissionerate, there is no doubt that laborers were being paid an amount
at such rate as was fixed by the Central Wage Board. Thus, there was no
derogation from or violation of any law. Hence, it is difficult for us to find
any merit in the locus standi of the Appellant who has agitated the case as a
laborer by raising the plea of ‘larger public interest’. There is no doubt that
such private agreement as in the present case between two private companies
cannot be disclosed under the RTI Act and there does not seem any larger
public interest involved here either as the two private companies, i.e. M/s.
Lafarz India (P) Ltd and M/s. Suraj Associated Pvt. Ltd have not violated
Appeal No.CIC/LS/A/2010/001152/SS
any law pertaining to laborers or to the payment of wages to such workmen /
laborers.
17. Furthermore, as per his own letter (supra), the Superintendent (Audit),
Central Excise Hqrs., Jamshedpur seems to be already aware of the practice
adopted by M/s. Suraj Associated Pvt. Ltd while paying service tax to the
Commissionerate under the said agreement. The Superintendent (Audit) has
simply apprised and notified M/s. Lafarz India (P) Ltd of this matter through
his letter. The service tax paid by M/s. Suraj Associated Pvt. Ltd has also
been calculated and shown in the letter therein. The document provided to
the Appellant under Question No.(c) of the present RTI Application further
clearly shows that the service tax to the tune of Rs.1,12,54,725/- has been
paid by M/s. Suraj Associated Pvt. Ltd as on 01/05/2007 for the period
16/06/2005 to 31/02/2007. Thus, so far as the O/o. the Commissioner,
Central Excise & Service Tax, Jamshedpur is concerned, they are satisfied
that there is no case of service tax evasion made out with regards to M/s.
Suraj Associated Pvt. Ltd. The private agreement between M/s. Lafarz India
(P) Ltd and M/s. Suraj Associated Pvt. Ltd is already before the
Commissioner, Central Excise & Service Tax, Jamshedpur and so is the
document showing the total service tax paid by M/s. Suraj Associated Pvt.
Ltd on 01/05/2007 for the period 16/06/2005 to 31/02/2007. The
Appeal No.CIC/LS/A/2010/001152/SS
Commissioner, Central Excise & Service Tax, Jamshedpur is competent
enough to assess such documents and decide whether there is a service tax
evasion, if any and is equally well equipped with sufficient powers to hold
an inquiry against M/s. Suraj Associated Pvt. Ltd if at all a case is made out
against them under the relevant law.
18. Hence, with respect to the information sought under Question No.(b) of the
present RTI Application, The Commission is of the view that as per the
observations of the Superintendent (Audit), Central Excise Hqrs.,
Jamshedpur vide its letter dated 07/03/2007, the amount fixed for M.T. rate
on loaded cement as per para (1.1.1) of the said agreement was based on
payment of workers as per Cement Wage Bard rate. Thus, there is no further
obligation either upon the Respondent CPIO herein to disclose any
information sought under Question No.(b).
19.The Appeal is accordingly disposed off.
Sushma Singh
Information Commissioner
04.08.2011
Authenticated True Copies
K.K. Sharma
OSD & Deputy Director
Appeal No.CIC/LS/A/2010/001152/SS
Name & Address of Parties:
Sh. S.K. Ghoshal,
R/o 146/14, Ground Floor,
Vasudha Apartment, Aam Bagaan Road,
Sakchi, Jamshedpur
The Additional Commissioner & Appellate Authority,
O/o the Commissioner of Central Excise & Service Tax,
Central Excise & Service Tax, 143, New Baradwari,
Sakchi, Jamshedpur – 831 001
The CPIO & Deputy Commissioner (Tech.),
Central Excise & Service Tax Headquarters,
Jamshedpur – 831 001