Justice SN Jha takes over as President of CESTAT
Legal Corner Icon — the image was hosted by the publisher and was not captured.Born on June 16, 19 45, Justice Jha obtained his degree in Law from Patna Law College and started practice in the Patna High Court in 1969. In July 1990 he was appointed Judge of the Patna High Court. He was elevated as Chief Justice of High Court of Jammu and Kashmir on February 4, 2004. From 12.10.2005 to 15.6.2007, he was the Chief justice of the Rajasthan High Court.
On Friday, 4.1.2008, he took over as the new President of the celebrated CESTAT. The Government deserves all praise for appointing a new president within less than a month of the retirement of the previous President, Justice Abichandani . There was a lot of rumour that Justice Abichandani was trying for an extension. DDT asked him whether it was true. He called his wife and asked her to tell us if it was true. She told DDT in no uncertain terms that even if he was offered an extension, he would not accept it.
The new President is taking over a grand edifice built with high quality judicial cementing legal and technical expertise.
DDT called up the new President to welcome him to his new assignment on behalf of all our esteemed netizens and to find out about his agenda. He was too modest and said that he is too new to lay out an agenda.
While technically and judicially, the Tribunal is very strong, it needs better infrastructure.
Having a former Chief Justice as President certainly adds respect to the stature of the institution and let us hope the new President would be able to influence the Revenue Department to provide better facilities to the Members who are all equal in rank to Additional Secretaries to the Government of India. They sit in rooms which are smaller than rooms occupied by Assistant Commissioners in the field. Some of them are provided with old rickety Maruti 800 cars – the lucky ones that is – many of them don't have even that! And recently the Chief Justice of the Madras High Court remarked that while the High Court often dealt with petty cases, the CESTAT was always dealing with matters of high importance involving huge revenue! This is certainly not the way to treat judges who decide issues worth Crores of rupees every day. They should get a decent car, (with no questions on where they go in that – we are told that there was an RTI question on how the former President used his car!), a steno at home, office facilities at the residence, domestic help, good furniture, library, software etc,. The quality of high value judgements should not be sacrificed at the altar of government's petty parsimony. If the government can't find money to fund the Tribunal, it can increase the fee for appeals and make the CESTAT a self funding organisation. This is a very important area in which the new President can perhaps bestow his attention.
Justice Jha is not exactly new to Customs and excise litigation. The Judge seems to have a lot of respect for the executive's expertise as he observed in a Customs case,
There can be no doubt that while considering the question as to whether the officer had reason to believe that the goods are contraband and liable to confiscation and seizure the Court cannot sit as an appellate authority not can it go into the sufficiency of reasons for holding the belief. In the instant case, trade opinions of the local traders having been abandoned, the visual inspection and smell by Sri K.R.C. Pillai remain as the basis of seizure besides the information received from the Assistant Security Commissioner, R.P.F. It may be stated that although in the grounds of seizure, commercial in the counter affidavit, certain cuttings in paper etc. are also mentioned; they were not referred to during the course of hearing. The Collector of Customs (Prev.) Patna, in his letter dated 8th June, 1993 (supra) has said “the basic problem is that once a particular spice is successfully smuggled and introduced in the local market its identification as a foreign product becomes difficult.” It is, therefore, doubtful that the seized goods could be identified as of foreign origin on the basis of visual inspection and smell. The Assistant Commissioner, R.P.F. had merely informed about movement of articles. The seizure thus really rests not on the basis of identification of the goods as being of foreign origin but on the basis of a general belief that the spices are not grown in the North-Eastern States, and, therefore, any spice coming from that region must be said to be smuggled. Thus, it is not a case where the court should go by the experience and expertise of the Customs officials. The reason for formation of the belief having been spelt out it is open to the court to consider whether the reasons exist or not. And the test would be whether a reasonable, prudent person on the basis of materials relied upon would hold the same belief. Sufficiency of reasons or grounds is not justifiable by the existence of the reasons and the ground certainly is.
In the case of Baljnath Singh Vs. The State of Bihar and Other - Civil Writ Jurisdiction case No.6752 of 1996, Justice Jha observed,
While making judicial review of administrative decision, the court is not supposed to sit as Appellate Authority, and substitute its own findings in place of findings recorded by the authorities. As is often said, the court while making judicial review has to see the correctness or otherwise of the decision making process and not the correctness of the decision itself. Where the court finds that there were materials available before the authority, on the basis of which the impugned decision could be arrived at, it is not supposed to go into the question of adequacy of the material.
However when the Customs Department alleged that “ It is confirmed that these trade and transactions are being conducted in collusion with the Forest Department who are looking their own State revenue, legalise the illegal import, supported by the documents”, he was quick to state, “ A particular officer may be in collusion but it is too much to say that the whole Government is acting in collusion with smugglers and, thus, acting against national interest.”
We welcome Justice Jha to the exciting world of indirect taxes litigation and wish him all the best in his new assignment.