TIOL-DDT 531 · the untouched capture
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<p align="justify"><b><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT
531</font></b><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><br>
12.01.2007<br>
Friday</b></font></p>
<p align=center><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#006600">Tone
up adjudication – CAG is watching – Board </font></b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The CAG
has recommended that the Government may consider prescribing an appropriate
time limit for adjudication of cases under the Customs Act relating to search/seizures.
<b>The Board has accepted this recommendation of the C&AG.</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now
the Board has fixed a time limit for adjudication of cases involving seizure.
The limits are for adjudication by</font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1.
Commissioner/Additional Commissioner/Joint Commissioner- one year</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2.
Assistant Commissioner/Deputy Commissioner - six months</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3.
A Gazetted Officer of Customs lower in rank than an Assistant Commissioner
of Customs - three months</font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Why the
different limits for different officers and why should senior officers require
more time than junior ones? And what are the cases adjudicated by a Gazetted
Officer of Customs lower in rank than an Assistant Commissioner of Customs?
</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It was way
back in 1980, that Board first issued instructions about prompt adjudication
orders, but officers have their own priorities and those officers having good
assistants who can put up good draft orders will naturally pass orders within
a reasonable time after the draft order is put up. When two officers meet informally
and discuss about their adjudication pendency, what they generally compare is
the competence of their adjudication section staff.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In any case,
Board knows that instructions will not be followed; so they have given an escape
route. If you cannot complete the adjudication within the time stipulated, inform
your boss! </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">And does
any one really monitor as to the age of the Show Cause Notice? </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">While at
this, why can’t the Board ask the adjudication authorities to pass orders immediately
after the hearing? When Tribunals and Supreme Court can pass orders immediately
after hearing the case, what prevents the adjudicating authorities from deciding
and pronouncing their orders immediately? All this secrecy about orders should
go. That will also reduce corruption. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We should
take adjudication out of the secret chambers into the open court rooms. Let
there be a court room in every office and let there be a fixed time for hearing,
which should be open to the public and orders pronounced in the open court.
</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Today, adjudication
hearings are a sham; proceedings are often interrupted by phone calls and especially
the calls coming from bosses upsets the officer and he is in a hurry to finish
the formality of hearing and attend to the boss’s work. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">With or
without CAG’s prodding, Board should do something about this and may be adjudication
should also be done by a committee of two officers, which would certainly improve
the quality.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=25&filename=notification/custom/2007/cuscir07_03.htm">CIRCULAR
NO. 3/2007-Cus., Dated: January 10, 2007</a></u></font></p>
<p align=center><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#006600">Mutatis
mutandis for de novo</font></b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The CAG
also wanted the Board to strengthen its internal control mechanism for monitoring
de novo cases so that these are adjudicated at least within six months/one year.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The gracious
Board has accepted this recommendation also.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now the
Board wants de novo cases to be accounted as fresh cases and adjudicated within
six months/one year. And if you are not able to do it; please inform your boss.
</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Perhaps
Board can think of appointing an adjudication Assistant Commissioner in every
division and similarly there should be adjudication Joint Commissioner, Additional
Commissioner and Commissioner in every Commissionerate, whose only job will
be adjudication. If they pass more than 300 orders in three months, they should
be given executive charge and if not transferred to Timbuctoo. In one year
you can wipe off the entire pendency of adjudications. And may be in the process
you can promote a few thousands of officers who are frustratingly stagnating.
</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><u><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=25&filename=notification/custom/2007/cuscir07_04.htm">CIRCULAR
NO. 4/2007-Cus., Dated: January 10, 2007</a></u></font></p>
<p align=center><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Ninth
Schedule subject to judicial scrutiny – but what’s new?</strong></font></p>
<p align=center><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>It
is proper that we are ultimately right rather than be consistently wrong.</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">What’s the
difference between 1980 and 2006? Don’t tell me 26 years! Then there were no
TVs, no live channels, no spot reports, but Article 31 B was very much there
and Schedule 9 was very much there and the issue of immunity to the statutes
mentioned in the ninth schedule was also there. Then what is the hype all about
now? What is the new law laid down by the Supreme Court of India?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The ninth
schedule was included in the constitution by the very First Amendment along
with Article 31 B. Till yesterday it stood as a proviso to the supremacy of
fundamental rights, as the only purpose of the schedule is to save some Acts
and regulations from judicial scrutiny.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Article
31B gives blanket protection to all items in the Ninth Schedule with retrospective
effect. Prime Minister Nehru at that time assured that “there was no desire
to add to the list of 13 items being incorporated in the schedule.” Today the
schedule consists of at least 284 Acts. There are 284 statutes which are out
of bounds for the Supreme Court of India. It is rather a very sad feature that
the Indian legislature wants to keep nearly 300 laws beyond the power of the
Indian judiciary.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">While the
<i>KeshavanandaBharti</i> case advocated the Basic Feature doctrine and limited
of the powers of the legislature, the <i>Waman Rao</i> case upheld the basic
structure doctrine and held that though the Ninth Schedule and Article 31B by
themselves were not violative of the basic structure of the constitution, any
amendments or additions to the schedule after the <i>KeshavanandaBharti</i>
judgment was not immune from the scope of judicial review. The Court observed,</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">“in so far
as the validity of Article 31B read with the Ninth schedule is concerned, we
hold that all Acts and Regulations included in the Ninth Schedule prior to April
24, 1973 will receive the full protection of Article 31B. Those laws and regulations
will not be open to challenge on the ground that they are inconsistent with
or take away or abridge any of the rights conferred by any of the provisions
of Part III of the Constitution. Acts and Regulations, which are or will be
included in the Ninth Schedule on or after April 24, 1973 will not receive the
protection of Article 31B for the plain reason that in the face of the judgment
in KesavanandaBharati (supra) there was no justification for making additions
to the Ninth schedule with a view to conferring a blanket protection on the
laws included therein. The various constitutional amendments, by which additions
were made to the Ninth Schedule on or after April 24, 1973, will be valid only
if they do not damage or destroy the basic structure of the Constitution.” </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">And this
is exactly what the nine judges of the Supreme Court of India pronounced yesterday.
What’s new?</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">But Acts
continued to be added with impunity and immunity. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Incidentally
the <i>Waman</i> judgement had Justice Krishna Iyer in the bench and whenever
you read a judgement of Justice Iyer, you will be floored with a few quotes.
Here are some:-</font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ Don't
be consistent, but be simply true.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ A foolish
consistency is the hobgoblin of little minds, adored by little statesmen and
philosophers and divines.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ With
consistency a great soul has simply nothing to do. He may as well concern
himself with his shadow on the wall.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++
Speak what you think now in hard words and tomorrow speak what tomorrow
thinks in hard words again, though it contradict every thing you said
today.-"Ah,
so you shall be sure to be misunderstood." Is it so bad then to be misunderstood?
pythagoras was misunderstood, and Socrates, and Jesus, and Luther, and Copernicus,
and Galileo, and <st1:place><st1:City>Newton</st1:City></st1:place>, and
every pure and wise spirit that ever took flesh. To be great is to be misunderstood.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ <b>in
constitutional issues over-stress on precedents is inept because we cannot
be governed by voices from the grave.</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ <b>it
is proper that we are ultimately right rather than be consistently wrong.</b></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ Even
so, great respect and binding value are the normal claim of rulings until
reversed by larger benches. That is the minimum price we pay for adoption
of the jurisprudence of binding precedents. I leave it at that because the
learned Chief Justice has held the impugned Act good in its own right. Enough
unto the day is the evil.</font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Incidentally,
the following Acts figure in the list of 284 Acts in the Ninth Schedule.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. The Smugglers
and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (Central
Act 13 of 1976).</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. The Conservation
of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act,
1976 (Central Act 20 of 1976</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. The Foreign
Exchange Regulation Act, 1973 (Central Act 46 of 1973).</font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until
Monday with more DDT </font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Have
a nice week end. </font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail
your comments to</font> <font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a
href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></span></font></p>
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