In India, challenging an Unconstitutional Provision of Law is a heart burning and long long procedure, which permits such laws to to injustice for a long time.
Since August, 2014, new provisions are Added in Customs Act and Excise Acts which requires an Appellant to Pre Deposit 10% Amount of Duty or Penalty demanded. Unless the pre deposits such amount is made, his Appeal is not heard.
In my view, this provisions appear unconstitutional for following reasons.
A. Art.14. Arbitrariness, Classifications has no nexus to rationales.
B. Unjust unfair enrichments. - Govt not liable to pay interest for period of appeal even when appellant succeeds in Appeal.
C. In operations, violative of inherent jurisdiction of every judicial body to hear any appeal without insisting any Pre- Deposits.
REASONS IN DETAILS.
A) Three classes of Appeals are defined.
1) Appeal only against main order 2) Appeal against order asking Penalty
3) Order challenging both. For all three classes pre deposit of 10% is asked.
Provisions further says that no forcible recovery during pendency of Appeal, if 10% is paid.
Now, Penalty is only a Consequence of main order.
If a person appeals only against main order, than it cannot be enforced during appeal.
When main order is stayed by Law, it's consequences also remain suspended.
If main order is set aside, Penalty will have to go as I understand.
If this is correct than the provision is violative of Art.14 so far as it asks for 10% deposit on penalty.
B) Unjust Enrichment. Unfairness.
The principle says that no one should get unjustly and unfairly enriched by virtue of court orders.
Here, no interest is provided for period during which appeal is pending as per my reading of provisions.
Thus revenue authorities gets unjust enrichment by making wrong or excessive demands.
C) Violative of Judicial Powers by operating procedures.
It is unwritten law that every judicial body hearing any appeal can pass any interim orders, whether provided by law or not.
Law cannot bind court by saying that such body will not pass such interim orders.
Here, the provisions in the first part say that "No Appeal without Pre Deposit" but in last part says "Appeal Shall Be Liable To Be Rejected".
It means, Appeal and Application for Waiver of Pre Deposit have to be first heard if such an application is filed.
Secondly, if any Pre Deposit is deficient, the Tribunal has inherent power to grant time to deposit balance amount.
It means, Tribunal cannot refuse to hear an appeal related applications unless full Pre Deposit is made.
A friend told me that in practice, no appeal is accepted at counter unless full pre deposit made.
In my personal view, such procedure not sustainable in law.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
