28A(1) (d) SEBI's power to order Arrest and Civil Prison is Subject Judicial Precedents under Income Tax & Other Laws
Since August, 2014, SEBI's Recovery Officer is given power to order Civil Prison of defaulter.
The provision further says that this provisions is subject to other provisions of Income Tax Act etc.
The provision itself does not contain any guideline about
1) Length of such Detention and
2) Findings which are necessary to be recorded by Recovery officer before ordering Arrest and Civil Prison.
The section only speaks about purpose of Arrest and Detention.. --That is to enforce recovery of dues of SEBI.
SIMILAR PROVISIONS IN OTHER LAWS.
There are similar provisions in other laws. Namely, in Civil Procedure Code and Income Tax Act.
Validities of such provisions have been challenged upto Supreme Court and the Law is by and large settled by Supreme Court decisions in this area,...
mainly on following THREE POINTS.
Point 1 : India is a signatory to International Convention where it has signed that in India, no one will be sent to jail on ground that he has no money to pay debt.
Point 2 : If a person has no money to pay, he cannot be sent to jail for inability to pay debt.
Point 3 : Even if a person has no money to pay debt, he can be sent to jail if it is found that in order to avoid payment of debt, he had malafidely disposed off all his money and properties.
CONCLUSION
As per judicial precedents, the Recovery officer can arrest and detain a person only if he records findings that
1) Though defaulter had means to pay dues, he has malafidely disposed off his properties to avoid payment of SEBI dues
2) Though he has means to pay, he is avoiding payment.
PROCEDURE
Before ordering Arrest, Recovery Officer issues a notice to Defaulter.
In reply, the Defaulter should produce all details to support his stand that he has actually no property to pay dues, and he has done nothing to malafidely disposed off his properties to avoid debt, and he has bonafidely no means to pay.
If inspite of such facts, Recovery and Arrest are ordered, then Defaulter should take appropriate legal remedy to challenge vires of this provision after taking suitable legal advice.
The views expressed above are in general nature and is not a legal advice.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014. All Rights reserved.
December 31, 2014
Under present law, public is not given right to Appeal against Censor Board Certificate. Only producer can Appeal
At present, under Cinemetrograph Act, as per my reading of the Act, if a person applying for Censor Board Certificate is aggrieved by any orders of cutting scenes or refusing certificate, he can apply to Appellate Tribunal.
But Common man does not appear to have been given a right to challenge a Certificate of Censor Board before any Tribunal.
This is lacuna in law.
A common man can go to High Court or Supreme Court by way of writ petition. But here Court may say, "The people sitting in Censor Board are expert on the Film subject. How can we substitute our decision in place of their decision?"
It means that the person going to High Court or Supreme Court can satisfy Court to interfere only if he produces Opinion of some well known experts on film industry to suggest that Certificate is wrongly given or that certain scenes ought to be cut.
Haresh Raichura
31/12/14
Copyright : Haresh Raichura 2014 All Rights Reserved
Apparently Unconstitutional Provision - 129E & 129EE of Customs Act, Requiring Pre Deposits for Appeals
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.
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.
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