Jurispruden tiol - Yesterday's SC Judgements
WE bring you the highlights of two important Supreme Court judgements delivered yesterday.
The Tribunal's judgment has proceeded on the basis that even though the samples were drawn contrary to law, the appellants would be estopped because their representative was present when the samples were drawn and they did not object immediately. This is a completely perverse finding both on fact and law.
Tribunal ought to have realized that there can be no estoppel against law. If the law requires that something be done in a particular manner, it must be done in that manner, and if not done in that manner has no existence in the eye of law at all. The Customs Authorities are not absolved from following the law depending upon the acts of a particular assessee. Something that is illegal cannot convert itself into something legal by the act of a third person.. Maybe every tax officer should read these lines every day. The importer imported coal in 1991 and got relief from the Supreme Court now after 24 years. An Inspector drew sample without the importer's presence, crushed it with stones and got a test report to demand a duty of about 4.5 crores from the importers. If you cross that all powerful inspector, you may still get justice - in the Supreme Court - after a quarter of a century.
Please see: Breaking News - Tata ChemicalsVsCommissioner of Customs-
Central Excise - Can recovery proceedings be initiated without show-cause notice under Section 11A of the Excise Act, which is mandatory? NO - Supreme Court.
It is fundamental that before taking any adverse action against a person, requirement of principles of natural justice is to be fulfilled. It is also trite that when a statute is silent, with no positive words in the Act or Rules spelling out need to hear the party whose rights or interests are likely to be affected, requirement to follow fair procedure before taking a decision must be read into statute, unless the statute provides otherwise.
Why it is necessary that before an adverse action is taken against a person he is to be given notice about the proposed action and be heard in the matter? Why is it treated as inseparable and inextricable part of the doctrine of principles of natural justice?
Principles of natural justice are grounded in procedural fairness which ensures taking of correct decision and procedural fairness is fundamentally an instrumental good, in the sense that procedure should be designed to ensure accurate or appropriate outcomes. In fact, procedural fairness is valuable in both instrumental and non-instrumental terms. The courts have consistently insisted that such procedural fairness has to be adhered to before a decision is made and infraction thereof has led to the quashing of decisions taken. In many statutes, provisions are made ensuring that a notice is given to a person against whom an order is likely to be passed before a decision is made, but there may be instances where though an authority is vested with the powers to pass such orders, which affect the liberty or property of an individual but the statute may not contain a provision for prior hearing. But what is important to be noted is that the applicability of principles of natural justice is not dependent upon any statutory provision. The principle has to be mandatorily applied irrespective of the fact as to whether there is any such statutory provision or not.