Kenya High Court
Case BriefsForeign Courts

African Court on Human and People’s Rights (‘AFCHPR’): While deciding the instant matter concerning the eviction of a Kenyan indigenous minority ethnic group — the ‘Ogiek‘ community from the Mau Forest area, the AFCHPR directed the Republic of Kenya to take all necessary measures, [legislative, administrative or otherwise] to identify, and delimit, demarcate and title the Ogiek ancestral land and to grant collective title to such land in order to ensure, with legal certainty, the Ogiek’s use and enjoyment of the same. The respondent State was also directed to pay monetary compensation for the moral and material prejudices suffered by the Ogiek due to this dispute. It is to be noted that the present decision deals only with the reparations to the affected community.

Background of the case: The instant application was filed in respect of the Ogiek of the Mau Forest. Ogiek are an indigenous minority ethnic group in Kenya comprising of about 20,000 members, about 15,000 of whom inhabit the greater Mau Forest complex – a land mass of about 400,000 hectares straddling about seven administrative districts.

In October 2009, the Kenyan Government, through the Kenya Forestry Service, issued a 30 days’ eviction notice to the Ogiek and other settlers of the Mau Forest, demanding that they move out of the forest on the grounds that the forest constituted a reserved water catchment zone, and was in any event part and parcel of government land under Section 4 of the Government’s Land Act. As per the Government, this decision was taken by the State in order to conserve the forest which is a water catchment area.

Contentions and Prayer: It was contended by the applicant that the decision by the Kenyan Government will have far reaching implications on the political, social and economic survival of the Ogiek Community. It was also contended that Kenya violated Arts. 1, 2, 4, and 17 (2) and (3) of the African Charter on Human and People’s Rights1.

The Applicant prayed before the Court to-

  • Halt the eviction of the Ogiek from the East Mau Forest and refrain from harassing, intimidating, or interfering with the community’s traditional livelihoods.
  • Recognize the Ogiek’s historic land, and issue it with legal title that is preceded by consultative demarcation of the land by the Government and Ogiek Community, and for the Respondent to revise its laws to accommodate communal ownership of property.
  • Pay compensation to the community for all the loss they have suffered through the loss of their property, development, natural resources and also freedom to practice their religion and culture.

Per contra, Republic of Kenya contended that –

  • There is no basis for a claim for compensation for any violations before the year 1992 when it became party to the Charter. It further contends that “any claim for financial compensation can only be computed from 26-10-2009 and only in relation to the notice given to the Ogiek to vacate the South-western Mau Forest.
  • The State also submitted that the instant matter is a proper case for an amicable settlement in line with Art. 9 of the Protocol to African Charter on Human and People’s Rights2.

Observations: The Court comprising of Imani D. Aboud, (President); Blaise Tchikaya, (Vice-President), Rafaâ Ben Achour, Suzanne Mengue, M-Thérèse Mukamulisa, Tujilane R. Chizumila, Chafika Bensaoula, Stella I. Anukam, Dumisa B. Ntsebeza, Modibo Sacko, JJ., and Robert Eno (Registrar); recalled that in their decision dated 26-05-2017, the Court found that the Respondent State had violated the rights of the Ogiek under Arts. 1, 2, 8, 14, 17(2) and (3), 21 and 22 of the Charter. It was also decided that the Court would rule on reparations in a separate judgment and invited the Parties to file submissions on reparations.

Regarding the reparations, the Court made the following observations-

  • The Right to Reparations for the breach of human rights obligations is a fundamental principle of international law. It was also observed that it is a general principle of international law that the Applicant bears the burden of proof regarding the claim for reparations. “It is not enough for the Applicant to show that the Respondent State has violated a provision of the Charter, it is also necessary to prove the damage that the State is being required to indemnify(…) There must, therefore, be a causal link between the wrongful act that has been established and the alleged prejudice”. The Court also observed that reparations must cover both material and moral damages. The Court must also take into account not only a fair balance between the form of reparation and the nature of the violation, but also the expressed wishes of the victim.
  • Regarding material prejudice, it was observed that even though the Court acknowledges that compensation is an important means for effecting reparations, it is not enough for an Applicant to show that the Respondent-State has violated a provision of the Charter; it is also necessary to prove the damage that the State is being required to indemnify. “Applicant, therefore, bears the duty of proving the causal nexus between the violations and the damage suffered. Additionally, all material loss must be specifically proved”. The Court observed that it is incontrovertible that the Respondent State’s actions resulted in violation of Ogiek community’s rights, therefore the State bears the responsibility for rectifying the consequences of its wrongful acts.
  • It was also noted that in view of the length of time over which the violations occurred, the number of people affected by the violations, the Ogiek way of life and the general difficulties in attaching a monetary value to the loss of resources in the Mau Forest etc., it is difficult to make a precise and mathematically exact quantification of pecuniary loss. Therefore, the Court must exercise its discretion in equity to determine what amounts to fair compensation to be paid to the Ogiek.
  • Regarding moral prejudice, the Court noted the contentions made by the Applicant where it was highlighted that how the Ogiek have not been able to practice their religion including prayers and ceremonies intimately connected to the Mau Forest. It was also noted that Ogiek people have also been denied access to an integrated system of beliefs, values, norms, traditions and artefacts closely linked to the Mau Forest and have had their right to development violated due to the Respondent State’s failure to consult with or seek their consent about their shared cultural, economic, and social life within the Mau Forest.
  • The Court pointed out that that the Respondent State violated the Ogiek’s rights under Arts. 2, 8, 17(2) and (3) and Art. 22 of the Charter by failing to recognise the Ogiek as a distinct tribe like other groups; by making it impossible for the Ogiek to continue practicing their religious practices; by evicting the Ogiek from the Mau Forest area thereby restricting them from exercising their cultural activities and practice; and Art. 22 was violated due to the manner in which the Ogiek were evicted from the Mau Forest.
  • It was observed that while it is not possible to allocate a precise monetary value equivalent to the moral damage suffered by the Ogiek, nevertheless, the Court can award compensation that provides adequate reparation to the Ogiek. It was also noted that since the Respondent State violated the rights that are central to the very existence of Ogiek, therefore the State is under a duty to compensate the Ogiek.
  • The Court also observed that in the context of indigenous peoples’ claims to land, demarcation is the formal process of identifying the actual locations and boundaries of indigenous lands. The Court noted that in international law, granting indigenous people privileges such as mere access to land is inadequate to protect their rights to land. “The Court wishes to emphasise though that given the unique situation and way of life of indigenous people, it is important to conceptualise and understand the distinctive dimensions in which their rights to property like land can be manifested”.
  • The Court fervently reiterated that the Ogiek have right to the land that they have occupied and used over the years in the Mau Forest Complex. “However, in order to make the protection of the Ogiek’s right to land meaningful, there must be more than an abstract or juridical recognition of the right to property. It is for this reason that physical delineation, demarcation and titling is important”.

Conclusion/ Decision: With the afore-stated observations, the Court held that

  • The Respondent State to pay the sum of KES 57 850 000 free from any government tax, as compensation for the material prejudice suffered by the Ogiek; and a sum of KES 100 000 000, free from any government tax, as compensation for the moral prejudice suffered by the Ogiek.
  • The Respondent State should undertake an exercise of delimitation, demarcation and titling in order to protect the Ogiek’s right to property, which in this case revolves around their occupation, use and enjoyment of the Mau Forest Complex and its various resources. The demarcation process is to be undertaken in consultation with the Ogiek and/or their representatives.
  • the Respondent State must take all appropriate measures, within one 1 year, to guarantee full recognition of the Ogiek as an indigenous people of Kenya in an effective manner, including but not limited to according full recognition to the Ogiek language and Ogiek cultural and religious practices
  • Respondent State, to commence dialogue and consultations between the Ogiek and their representatives and the other concerned parties for purposes of reaching an agreement on whether or not they can be allowed to continue their operations by way of lease and/or royalty and benefit sharing with the Ogiek in line with all applicable laws.

[African Commission on Human and People’s Rights v. Republic of Kenya, APPLICATION No. 006/2012, decided on 23-06-2022]

*Sucheta Sarkar, Editorial Assistant has prepared this brief.


1. African Charter on Human and People’s Rights

2. Protocol to African Charter on Human and People’s Rights on establishment of an African Court on Human and People’s Rights

CBIC
Legislation UpdatesRules & Regulations

On 24th June, 2022, Central Board of Indirect Taxes and Customs (CBIC) notified Customs Brokers Licensing (Amendment) Regulations, 2022. The amendment revises the provisions of Customs Brokers Licensing Regulations, 2018, being effective from its publication.  

Key Points: 

  • Any agent or broker who intends to make any business transactions on behalf of his exporter/importer under Customs Station has to be an authorised licenced broker. 
  • Earlier, in order to conduct such transactions he has to associate himself with any of the Custom Brokers’ Association at the Customs’ Station. Even as a mandate the membership with any such Custom Brokers’ Association did not exceed more than one. 
  • With the amendment of Regulation 20, broker has to become member of Custom Brokers’ Association at every jurisdiction he operates. 
  • Likely, the broker may operate at more than one Customs’ Station therefore, has to be a member with every station recognised by the Principal Commissioner of Customs or Commissioner of Customs. In that given situation, the membership at one jurisdiction shouldn’t again exceed by one. 
  • The brokers are obliged to comply with the norms given for licensing, however with addition of new Regulation 21, liberty of an extended time period is provide wherein he fails to comply with the same. 

 


*Shubhi Srivastava, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Rajasthan High Court: A Division Bench of Akil Kumar, CJ and Sameer Kureshi, J. allowed the writ petition and set aside the proceedings issued by show cause notice and subsequent demands confirmed by OIO. 

The case of the petitioner is that he is a Customs House Agent and the co-petitioners were importers engaged in the import of Glass Chatons at Customs ports at Jaipur. One investigation was conducted by Additional Director, DRI (Zonal) Unit Ahmedabad, in connected matter by DRI, Jaipur who after the investigation demanded custom duty under Section 28 of the Act of 1962 and proposed confiscation of the seized goods and imposition of penalty under Section 124, 112, 114A of the Act, 1962. The show cause notice was issued as back as dated 06.08.2014 and in connected matter in 2019. By way of present petitions, the show cause notice (SCN) issued by officers of Directorate of Revenue Intelligence (DRI) under Sections 28 and 124 of the Customs Act, 1962 (in short, ‘Act’ of 1962), are challenged.

Counsel for petitioner submitted that the DRI Officers are not proper officers and show cause notice issued by them are ab initio void, illegal and lacks jurisdiction.

Counsel for respondents submitted that a number of writ petitions were filed before various High Courts for quashing of show cause notices issued by DRI Officers in which directions have been given to first approach Adjudicating Authority to decide the issue of jurisdiction.

The Court in the judgment titled M/s Canon India Private Ltd. v. Commissioner of Customs, AIR 2021 SC 1699 observed

  1. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions.”

The court thus observed that On perusal of judgment referred above and relying on provisions of Section 2(34) which defines “proper officer”, Section 6 which defines “functions and powers of custom officer” and Section 28 which refers to “procedure of demand and recovery by the proper officer” having jurisdiction to issue show cause notice and to carry out adjudication, we hold that the entire proceedings initiated by officers of DRI in as much as by issuance of show cause notice under Section 28/124 of the Customs Act lacks jurisdiction and are without any authority of law because the present show cause notice is not issued by custom officer but by DRI officer who has not been assigned specific function/power under Section 6 to issue show cause notice U/S 28 of the Act of 1962. DRI officer is not Competent Authority to issue show cause notice and adjudicate the same as “proper officer”. The Act, the notification relied upon do not define and bring the DRI officers within four corners of “proper officers” having functions and powers to act under Section 28 of the Act of 1962.

The Court held “The proceedings issued by show cause notice and subsequent demands confirmed by OIO are set aside, as prayed in the writ petitions.”

[Fairdeal Shipping Agency Pvt Ltd v. Joint Commissioner of Customs (Preventive), Jaipur; 2022 SCC OnLine Raj 411; decided on 09-02-2022]


Appearances:

For Petitioner(s): Mr. Arun Goyal

For Respondent(s): Mr. Kinshuk Jain


Arunima Bose, Editorial Assistant has reported this brief.

Customs, Excise and Services Tax Appellate Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Sulekha Beevi, C.S. (Judicial Member) and P. Anjani Kumar (Technical Member) decided on an appeal which was filed in the matter of non-compliance with the pre-deposit.

It was alleged that M/s. Sri Vasavi Gold and Bullion Pvt. Ltd. (the main appellant) in the course of its business had imported articles of jewellery from Thailand as per Notification No. 85/2004-Cus dated 31.8.2004. During the investigation, the DRI unearthed incriminating documents relating to the import by which it appeared that the M/s. Sri Vasavi Gold and Bullion Pvt. Ltd. had been wrongly availing the benefit of exemption under the said Customs Notification No. 85/2004 dated 31.8.2004 r/w Notification No. 101/2004-Cus. (NT) dated 31.8.2004.

The notice proposed to deny the exemption benefit in respect of 48 bills of entry and also raised differential duty of Rs.19,03,19,798/- along with interest. The appellant herein was also issued a Show Cause Notice as to why penalty should not be imposed upon him under Sections 112(a) and 114AA of the Customs Act, 1962.

The Tribunal perused Section 129E of the Customs Act, 1962 and analyzed that unless the appellant has deposited 7.5% of the penalty when the penalty is in dispute, the appeal cannot be entertained by the Tribunal. The Tribunal has no power to waive the mandatory requirement of predeposit. On perusal of the impugned order, separate penalty has been imposed upon the business entity and the appellant herein.

Tribunal further clarified that there was no document produced by the business entity that the pre-deposit made by them can be stretched and applied for compliance of mandatory pre-deposit of the appeal filed by the appellant therein and in these circumstances, the request made by the counsel for appellant to waive the mandatory pre-deposit was not considered.[P. Seetharam v. Commr. Of Customs, 2022 SCC OnLine CESTAT 30, decided on 04-02-2022]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of M. T. Mohammed Laffar and S. U. B. Karalliyadde, JJ. decided over a petition which was filed seeking reliefs, inter alia, to issue writs of Certiorari to quash the order informing the Petitioner to pay the short-paid levies with immediate effect and a writ of Mandamus directing the Respondent to seek opinion of the WCO regarding the appropriate HS Code.

Petitioner was a Company duly incorporated under the Companies Act, No. 7 of 2007 and the Respondent is the Director General of Sri Lanka Customs. The Petitioner was engaged in importation and distribution of ‘Pringles’ brand Potato chips in Sri Lanka. For the purpose of clearing the Potato chips, from the Customs, Petitioner used the Harmonized Code (HS Code) 2005.20.00.

Counsel for the Petitioner submitted to the Court that since the Post Clearance Audit Directorate of the Sri Lanka Customs (PCAD) did not communicate any determination and/or change in respect of the HS Code under which the Potato chips were imported, the Petitioner continued to import the good under the same HS Code believing genuinely that HS Code 2005.20.00 is the correct HS Code. The learned SSC appearing for the Respondent submitted to Court that in pursuant to the post-clearance audit, a Customs Inquiry had been conducted by the PCAD under the reference No. PCAD/HQO/070/2017 and at the Inquiry it was found that the appropriate HS Code for the product is HS 1905.90.20. Notably, the Custom duties payable for the goods imported into Sri Lanka under HS Code 1905.90.20 are higher than the Custom duties payable for the goods imported under the HS Code 2005.20.00. In pursuant to the Customs Inquiry, the Respondent decided to charge Rs. 54 576 752.76 as short-paid levies from the Petitioner for 17 consignments imported into Sri Lanka. The argument of the learned Counsel for the Petitioner is that the decisions of the Respondent to categorise the ‘Pringles’ Potato chips under HS Code 1905.90.20 and to charge Rs. 54 576 752.67 as short levies are ultra vires the powers conferred on the Respondent and those decisions were unreasonable, irrational, illogical and contrary to the principles of natural justice and therefore, the Petitioner has a legitimate expectation of directing the Respondent through Court to refer the dispute to the WCO for determination of the correct HS Code.

Main issue to be decided in this Application was whether the correct HS Code for the ‘Pringle’ Potato chips imported by the Petitioner should be 2005.20.00 or 1905.90.20.

The Court discussed in detail the guidelines in the National Imports Tariff Guide issued by Sri Lanka Customs and was of the opinion that the respondents had failed to satisfy that Customs Inquiry had been conducted fairly and reasonably adhering to the principles of natural justice. Furthermore, the Court observed that no reasons have been given in R5 for the classification of the product under HS Code 1905.90.20 and therefore, the decision taken at the Customs Inquiry is arbitrary and unreasonable.

The Court further reiterated that in Karunadasa v. Unique Gem Stones Ltd and Others, (1997) 1 SLR 256 it was held that “Natural Justice means that a party is entitled to a reasoned consideration of his case; and whether or not the parties are also entitled to be told the reasons for the decision, if they are withheld, once judicial review commences, the decision may be condemned as arbitrary and unreasonable.”

The Court finally was of the opinion that the petitioner was entitled to a writ of Mandamus not to the extent that is prayed for in prayer (d) to the amended Petition dated 11.06.2019 but to the extent that the matter should be referred to the Nomenclature Committee of the Respondent to determine the appropriate HS Code. Therefore issuing writ of Certiorari as prayed for in prayer (c) to the amended Petition quashing the contents of the letters and a writ of Mandamus directing the Respondent to refer the matter to the Nomenclature Committee of the Respondent for determination of the appropriate HS Code.[Hayleys Consumer Products Ltd v. Director General of Customs, CA / WRIT / 31/2019, decided on 26-01-2022]


Suchita Shukla, Editorial Assistant has reported this brief.


Thishya Weragoda with Kasun Illangatillake and Mahela Liyanage for the Petitioner

Manohara Jayasınghe SSC for the Respondent

Case Briefs

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Sulekha Beevi C.S. (Judicial Member) allowed an appeal brief facts of which were that the appellants imported Lead Ingots and Refined Lead Ingots for manufacture of pure lead and lead alloys and had entered into contract with M/s. KYEN Resources Pte. Ltd. Singapore for import of refined lead ingots and based on the documents received it was observed that M/s. Navam Lanka Ltd. was the manufacturer and shipper of the goods. The appellant claimed exemptions from payment of BCD vide Notification No. 26/2000 dated 1.3.2000 under FTA. The said bills of entry were assessed to duty and facilitated under RMS. The appellant had paid the IGST of Rs.61, 24,785/- on 5.9.2018 and 11.9.2018. The appellant was not able to get the original documents for taking delivery of the impugned goods. It was understood by the appellant that the supplier at Singapore had become bankrupt and was not in a position to provide the original documents. The appellant filed application for refund of the IGST paid on the imported goods as he did not intend to take release of goods. Meanwhile, M/s. Navam approached the appellant to grant NOC (No Objection Certificate) to enable Navam to take charge of the goods and to mitigate the losses.

Pursuant to the issue of NOC, the appellant was under the impression that M/s. Gravita India Ltd. would get the IGM amended and would file fresh bills of entry in their name for clearing the goods. However, M/s. Gravita India Ltd. informed that since cancellation of the bills of entry was not possible in the ICEGATE system, they amended the name of the importer in the bills of entry. Ideally, the customs department ought to have refunded the IGST initially paid by the appellant and ought to have collected the IGST from the substituted importer (M/s. Gravita India Ltd. in this case) with applicable interest. As the refund claim was already withdrawn, the appellant did not respond to the deficiency memo. A Show Cause Notice dated 6.2.2019 was issued proposing to impose penalty on the appellant under sec. 114AA of the Customs Act, 1962 alleging attempt to claim undue refund of the duty to the tune of Rs.61,24,784/-.

Section114AA of the Customs Act, 1962 prescribes that penalty is to be imposed for use of false and incorrect material.

The Tribunal was of the opinion that appellant has replied to the Show Cause Notice explaining the entire situation by which he had to file the refund claim and thereafter the application for withdrawing the refund claim. The adjudicating authority however proceeded to impose a penalty of Rs.50 lakhs. The Tribunal believed that appellant has been put to hardship of making predeposit on such huge penalty by wrong appreciation of facts. The tribunal further found that there was nothing brought out in evidence which attracts the ingredients of section 114AA of the Customs Act, 1962. The mere fact that the department had already appropriated the duty amount paid by the appellant towards the imported goods and therefore could not collect further amount against the amended bills of entry presented by the new purchaser cannot be a ground to issue a Show Cause

Notice alleging attempt to claim undue refund. The appeal was allowed.[Chloride Metals Ltd. v. Commr. Of Customs, 2021 SCC OnLine CESTAT 2599, decided on 02-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Coram of Dilip Gupta (President) and P.V. Subba Rao (Technical Member) partly allowed an appeal which was filed assailing order-in-original passed by the Commissioner of Central Excise, Customs & Service Tax, Cochin.

The appellant manufactured electric cables/ACSR conductors and supplies to M/s Kerala State Electricity Board (KSEB) as per the contract which included a price variation clause. They paid duties at the time of the removal of goods subsequently prices were enhanced retrospectively in view of the increased in the cost of raw material. The differential duty in respect of such goods which were already cleared was paid by issuing supplementary invoices using Cenvat credit.

A show cause notice was issued to the appellant alleging that the supplementary invoices were raised and, therefore, they are relatable to the clearances already made during the previous months.

As per the proviso to Rule 3 (4) of Cenvat Credit Rules, 2004 and proviso to Rule 3 (3) of Cenvat Credit Rules, 2002, the appellant could not have used Cenvat credit, which was taken after the last day of month for payment of duty relating to that month. Therefore, the assessee/ appellant was called upon to pay the differential central excise duty on the supplementary invoices in cash and not using Cenvat credit. The Commission had confirmed the demand of Rs. 89,95,674/- plus interest along with penalty.

The appellant had contended that the supplementary invoices were relatable to the month in which the supplementary invoices were raised and not relatable to the month in which the goods were originally cleared because the duty became payable only when the price was enhanced and not before and that they had correctly availed and utilized Cenvat credit available at the time of raising supplementary invoices in its account and since the duty is relatable to the date of supplementary invoices, no interest was payable. Lastly, he concluded that no penalty was imposable under Rule 25 of Central Excise Rules, 2002 and Rule 15 of Cenvat Credit Rules, 2004 as there was no violation of any Act or Rules and they had paid the duty on such supplementary invoices when they raised.

The Tribunal opined that on the first question as to whether the supplementary invoices relate to the date of original clearance or the date on which the supplementary invoice was raised had been decided in Steel Authority of India Ltd. v. CCE, 2019 (366) E.L.T. 769 (S.C.) and thus interest under Section 11AB needs to be paid by the appellant on the differential amount of duty.

On the second question of whether Cenvat credit can be utilized for payment of duty in view of the proviso to Rule 3 (4) of the Cenvat Credit Rules, 2004, the tribunal found that High Court of Gujarat in Advance Surfactants India Ltd. v. Union of India, 2017 (358) E.L.T. 53 (Guj.) had held that this proviso is ultravires therefore the appellant was correct in utilizing the Cenvat credit for payment of the excise duty.

On the third question of imposition of penalty the Tribunal found that from the facts of the case its clear that assessee has not violated any provision of the Act or the Rules to attract penalty under Rule 25 of the Central Excise Rules, 2002.

The Tribunal partly allowed the appeal and modified the order accordingly.[Traco Cable Co. Ltd. v. Commr. Of CE & Customs, 2021 SCC OnLine CESTAT 2595, decided on 01-11-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): P. Dinesha (Judicial Member) allowed an appeal which was filed with the point of consideration of eligibility of the appellant for refund of 4% of Special Additional Duty (SAD). The appellant made the above claim for refund and after due adjudication, the Assistant Commissioner rejected 4% SAD being time barred in terms of the above Notification. The Commissioner of Customs (Appeals), Cochin upheld the rejection against which, the present appeal had been filed before this forum.

Counsel for the appellant contended that neither the statute nor the original notification prescribed any limitation for claiming the refund of SAD and hence, imposition of time restriction by an Amending notification is clearly bad in law.

The Tribunal after hearing the contentions was of the view that appellant was correct in claiming refund of 4% SAD which was in terms with the settled position.

The Tribunal explained that the doctrine of precedence only mandates that it is the ratio in the decision of higher courts to be followed, and not conclusions. The Tribunal was of the view that it will be wholly inappropriate to choose views of one of the High Courts based on perceptions about reasonableness of the respective viewpoints, as such an exercise will de facto amount to sitting in judgment over the views of the Hon’ble High Courts- something diametrically opposed to the very basic principles of hierarchical judicial system. When there is a reasonable interpretation of a legal and factual situation, which is favourable to the assessee, such an interpretation is to be adopted.

The Tribunal further held that High Court’s judgment in favour of the assessee, in the light of this legal principle laid down by Supreme Court, is to be preferred over the Hon’ble non-jurisdictional High Court not favourable to the assessee finding guidance from the case of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192.

The appeal was allowed holding the denial of refund is bad in law.[John’s Cashew Co. v. Commr. Of Customs, 2021 SCC OnLine CESTAT 2598, decided on 18-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


 

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): The Division Coram of Sulekha Beevi C.S. (Judicial Member) and P. Anjani Kumar (Technical Member) partly allowed an appeal which was filed assailing an impugned order by which the appellant customs broker’s licence was revoked on the grounds of contravention of Regulations 10(b), 10(d) and (10)(n) of the Customs Brokers Licensing Regulations, 2018; security deposit was forfeited and penalty was also imposed.

Appellant had filed a Shipping Bill on behalf of the exporter i.e. M/s. Syed Holdings for the purported export of glass bangles to Malaysia; examination of the consignment, on receipt of a specific intelligence, 105 kg of Ephedrine concealed in polyethylenebag/s was found concealed in the consignment; on conclusion of the investigation, the appellant’s customs broker license was suspended and vide the impugned order the same was revoked.

Counsel for the appellant, submitted that one Shri Shabie Mohammed handled the documents on their behalf who was working with the firm for seven years and left in February2017 and joined back in 2019; he handled the documents; his H-Card has expired and remained to be re-issued ; the appellants have obtained all necessary KYC documents and the documents were not proved to be fictitious and the exporter was existing at the address mentioned therein. It was further submitted that it was wrongly concluded by them that there is negligence on the appellant’s part; however, this cannot be a basis to stop the appellant’s business permanently; revocation of licence was an extreme step and a harsh punishment; circumstances of the case do not warrant such a severe punishment.

The Tribunal found that it was a case of misdeclaration of an export consignment. Examination conducted on receipt of intelligence by department revealed that 105 kg of Ephedrine, a narcotic substance was concealed in the consignment. Keeping apart the omissions and commissions of the exporter in the smuggling, we are concerned with the role of the CHA is to be examined in this case.

The Tribunal was of the opinion that there was a strong case that the appellant Customs Broker had no previous knowledge of the concealment; the role of the appellant-customs broker is to be examined in this background. The only mistake or negligence on the part of the appellant-customs broker appears to be permitting an ex-employee whose H-Card has expired to file documents on their behalf. This Tribunal and various High Courts have held that revocation of licence entails in loss of livelihood for not only the customs broker but also the families depend on them and recourse to revocation should be taken in extreme circumstances only and not in respect of violations for which there are other provisions to deal with them. The Tribunal finally held that in the present circumstances revocation of licence was an extremely harsh step. However, the act of the appellant in allowing an ex-employee and that too without a valid G-Card, was a clear violation of the Customs Brokers Regulations further finding that it would suffice if the penalty and forfeiture of security deposit are upheld to meet the ends of justice.

The appeal was partly allowed by setting aside the revocation and upholding the penalty imposed and forfeiture of security deposit.[Freight Bridge International v. Principal Commr. Of Customs, 2021 SCC OnLine CESTAT 2600, decided on 29-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): Rachna Gupta (Judicial Member) allowed an appeal which was filed against the order of Commissioner (Appeals) in which he had wrongly invoked the principle of unjust enrichment while rejecting the refund of the appellant.

The appellant in the present case had imported 3000 MT of Aluminium Nitrate from Indonesia. At the time of filing home consumption clearance, appellant had claimed preferential rate of Basic Customs Duty (BCD) @ 5% under Notification No.46/2011 Entry No. 358(1) against BCD @ 7.5%. However, at that time, he could not produce original certificate of origin with authentic signatures. Accordingly, provisional assessment was resorted for. The bills were, therefore, assessed provisionally in terms of section 18(1) of the Customs Act, 1962, however, by extending the aforesaid notification benefit. The appellant later submitted the original certificate of origin along with original revenue deposit challans with the request for finalization of the provisional assessment. The appellant also requested for refund of aforesaid revenue deposit of Rs.15,09,146/-. The original authority after examining the applicability of principles of unjust enrichment and considering the certificate issued by the appellant’s Chartered Accountant, sanctioned the aforesaid refund. However, review order passed under section 129D(2) of the Customs Act, 1962 that the Deputy Commissioner of Customs, Visakhapatnam was required to file an appeal against the said Order-in-Original. The said appeal of the department had been adjudicated thereby setting aside the Order-in-Original. Being aggrieved, the importer had filed the present appeal before this Tribunal.

The appellant had submitted that the BCD as was applicable to the import of Aluminium Nitrate made by the appellant was @ 5% in terms of Notification No.46/2011 Entry No. 358(1). However, a provisional assessment was resorted to for want of certain documents and customs duty @ 7.5% was paid by the importer. At the time of final assessment, the benefit of notification was extended. Accordingly, the appellant became entitled for the refund of the duty paid to the extent of excess 2.5% thereof.

The Tribunal assessed the two findings given by the Commissioner (Appeals) while rejecting the refunds:

  1. i) that the appellant/assessee has not proved constructively with the supporting documents that the duty paid is not charged to the buyer and whether there was any change in the price of the goods produced by them to that effect.

(ii) CA certificate is not sufficient to show that burden has not been passed on to other persons.

The Tribunal was of the view that the said document was opined to be a sufficient document to ascertain whether the incidence of duty has or has not been passed on to the customers as the cost of the product because the books of account are the only way for examining the same. If an amount is shown in books of accounts as cost of material the amount has to be debited from the cash account and has to be credited towards expenses of materials account in the profit and loss statement. On the other hand, if the burden of duty has been borne by the manufacturer itself, the amount shall be debited in the cash account and a credit as receivables shall be shown in the books of accounts. The tribunal drew support from various decisions of Uniword Telecom Ltd. v. CCE, 2017 (358) ELT 666 (Tri-All.), Savita Oil Technologies Ltd. v. CCE, 2017 (358) ELT 331 (Tri-Mumbai).

The Tribunal distinguished the decisions of Hindustan Petroleum Corprn. Ltd. v. Commissioner of Customs, 2015 (328) ELT 410 and UOI v. Solar Pesticides (P) Ltd., 2000 (116) ELT 401 (SC) stating that they were wrongly applied to the facts of the present case which simply talks about the documents to be mandatorily provided in terms of section 27(1A) of the Customs Act to prove that there has been no unjust enrichment.

The Tribunal allowed the appeal and finally held that the findings of Commissioner (Appeals) while rejecting the refund of Rs.15,09,146/- which admittedly was an excess amount paid by the appellant, over and above his liability of paying BCD @ 5% in terms of Notification No. 46/2011 Entry No. 358(1), was not sustainable.[Indian Explosives (P) Ltd. v. Commr. Of Customs & ST, Customs Appeal No. 30258 of 2019, decided on 03-09-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Legislation UpdatesNotifications

The Ministry of Finance has issued a notification dated September 10, 2021 which rescinds the previous notification dated June 29, 2021, which had prescribed relaxation of customs tariff duty for oil products. It was amended by notification dated August 9, 2021 to provide further relaxation of customs tariff duty for Sunflower seed oil, Sunflower oil, edible grade and Crude oil.

Now, the notification dated September 10, 2021 rescinds the previous notification with effect from September 11, 2021 thereby rescinding the relaxation of custom duty on oil products.


*Tanvi Singh, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Calcutta High Court: Sabyasachi Bhattacharyya, J., expressed that:

Where a conflict arises between individual conscience of the concerned Judge and judicial conscience, supported by law of the land, the former has to give way to the latter.

Second wife of Sardar Natha Singh (deceased) who was a freedom fighter getting a pension from the Central Government under the Swatantra Sainik Samman Pension Scheme, 1980 till his demise has preferred the present challenge.

Petitioner, relying on a deed of declaration of divorce, executed by respondent 11, the first wife and Sardar Natha Singh, the husband of petitioner claimed widow pension, which was refused on the ground that such deed of divorce was not acceptable under the Hindu Marriage Act, 1955 in the absence of a decree of divorce obtained from a competent court of law.

It was submitted that the petitioner and her husband were governed by customs of Jat Sikhs, which permit such a divorce. Petitioner claimed that Section 29(2) of the Hindu Marriage Act, 1955 is attracted.

Analysis and Decision

While noting the facts and circumstances of the case, Bench expressed that for Section 29(2) of the Hindu Marriage Act, 1955 to be invoked, it has to be established by the party relying on a custom that the right of the party was recognized by custom, to obtain the dissolution of a Hindu marriage.

Court noted that in the present matter, High Court did not approach the civil court for a declaration regarding the validity of the divorce deed.

Further, Bench added that the burden and the initial onus lies on the petitioner to prove the existence of a custom having the force of law, to be proved by evidence – oral or documentary – in order to attract the benefit of Section 29(2) of the Hindu Marriage Act.

Section 2(1)(b) of the Hindu Marriage Act, 1955 stipulates that the Act applies to Sikhs as well. Thus, the provisions of the Act, including Section 13 thereof (pertaining to divorce), applies to Sikhs in general.

 High Court stated that marriage between respondent 11 and her deceased husband could only be dissolved by a decree of divorce passed by a competent court on any of the grounds as mentioned in Section 13 of the Act, unless the existence of any contrary custom was proved by evidence.

To justify an exception to Section 13 within the purview of Section 29(2), petitioner had to approach a civil court and establish by evidence that the dissolution of the marriage between respondent 11 and her deceased husband was recognized by custom.

Bench also stated that respondent-authorities do not have the jurisdiction in law to decide the matrimonial status of the private parties and/or the validity of the deed of declaration, which could only be done before a civil court.

The initial grant of pension to respondent 11 is an endorsement of the fact that the first wife was found eligible for such pension by the respondent authorities and she had already started getting pension.

A suit in question was filed by respondent 11, inter alia, for a declaration that she was the only married wife and the only widow of Sardar Natha Singh and was entitled to widow pension and that the present petitioner was not the wife and widow of Sardar Natha Singh.

While concluding, Court expressed that the divorce decree executed purportedly between respondent 11 and her deceased husband was not endorsed by any valid custom, the exception envisaged in Section 29(2) of the 1955 Hindu Marriage Act would not be attracted.

Thus, the spouses had to revert back to Section 13 of the Act, which sanctions dissolution of marriage only by a decree of divorce, for the dissolution of marriage to be valid in the eye of law.

Bench held that the fact that pension was granted earlier in favour of respondent 11 upon a valid sanction being issued by respondent-authorities, it would be unjust to deprive respondent 11 of such pension at the behest of petitioner, merely on the basis of the petitioner’s assertion on oath in the present writ petition that a deed of divorce, supported by valid and recognized customs, was executed between respondent 11 and her deceased husband.

Hence, the High Court decided that in view of the long-pending litigation between the private parties, it would be lucrative to direct pension to be paid equally between the petitioner and respondent 11. However, such a course of action would be grossly illegal.

Although Court’s empathy went fully with the petitioner, who was an unemployed lady of about 63 years as per her affidavit, however, the Court found that it had no power to enact law but was bound by the provisions of law as the Parliament, in its own wisdom, chose to promulgate.

Therefore, the writ petition was dismissed.[Krishna Veni v. Union of India,  2021 SCC OnLine Cal 437, decided on 18-02-2021]


Advocates who appeared for the parties:

For the petitioner: Gunjan Shah and Vinit Kumar Choubey

For respondents 1, 2 and 4: Kumarjyoti Tiwari

For respondent 9: Subrata Roy

Case BriefsHigh Courts

Allahabad High Court: Vivek Chaudhary, J., held that while giving notice under Section 5 of the Special Marriage Act, 1954, it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or NOT to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act.

Backdrop – Story of many Safias and Abhisheks

A Habeas Corpus petition was filed by one Safia Sultana through her husband Abhishek Kumar Pandey claiming that they got married as per Hindu rituals after Safia converted to Hindu religion and got a new name Simran. It was alleged that Safia’s father was not permitting them to live together. They claimed that both of them were adults, married of their free will, and desired to live together. They alleged that Safia’s custody by her father was illegal. However, before the Court, Safia’s father fairly accepted that since Safia married Abhishek with her choice and wants to live with him, he accepted her decision and wished both of them best for their future.

The issue of the petition concluded there. But the views expressed by the young couple, compelled the Court to look into the deeper issue. Safia and Abhishek expressed that they could have solemnized their marriage under the Special Marriage Act, 1954 but the Act requires a 30 days notice to be published and objections to be invited from the public at large. They expressed that any such notice would be an invasion in their privacy and would have definitely caused unnecessary social pressure/interference in their free choice with regard to their marriage. The personal laws do not impose any such condition of publication of notice, inviting and deciding objections before solemnizing any marriage. They further state that such a challenge is being faced by a large number of similarly situated persons who desire to build a life with a partner of their own choice.

It is further submitted that such young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner.

Discussion & analysis

PROVISIONS

For the purpose of the present discussion, the Court referred to Section 4 (Conditions relating to solemnization of special marriages); Section 5 (Notice of intended marriage); Section 6 (Marriage notice book and publication); Section 7 (Objection to marriage); Section 8 (Procedure on receipt of objection); and Section 46 (Penalty for wrongful action of Marriage Officer).

QUESTION

After briefly visiting the history and development of law with regard to civil marriages in India, it was considered that the question before the Court was:

“Whether the social conditions and the law, as has progressed since passing of the Special Marriage Act, 1872 and thereafter the Special Marriage Act, 1954 till now, would in any manner impact the interpretation of Sections 5, 6 and 7 of the 1954 Act and whether with the change the said sections no more remain mandatory in nature.”

INTERPRETATION PARADOX

The Court noted that the Golden Rule of Interpretation is that so far as possible plain reading of the provisions should be accepted. However, at the same time, there is another Principle of Interpretation, that, an ongoing statute should be interpreted on the basis of present day’s changed conditions and not on old obsolete conditions. Reliance was placed on the Supreme Court decision in Satyawati Sharma v. Union of India, (2008) 5 SCC 287; and Kashmir Singh v. Union of India, (2008) 7 SCC 729. Reliance was also placed on Githa Hariharan v. RBI, (1999) 2 SCC 228; N. Kannadasan v. Ajoy Khose, (2009) 7 SCC 1; and K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.

Thus, said the Court, it was required to consider the changes in the social and legal aspects, if any, that may impact the interpretation of the provisions of the 1954 Act.

CHANGES IN SOCIO-LEGAL ASPECTS

While discussing the changes in Socio-legal aspects, the Court referred to the 59th Law Commission Report; the 212th Law Commission Report; and the 242nd Law Commission Report and recommendation made by the Law Commission in these reports.

DEVELOPMENT OF LAW

While walking through the Development of Law on the present aspects, the Court relied on a number of Supreme Court decisions and concluded that since the case of Lata Singh v. State of U.P., (2006) 5 SCC 475, till the case of Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the law has travelled a long distance defining fundamental rights of personal liberty and of privacy:

  • Once a person becomes a major he or she can marry whosoever he/she likes.” [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.” [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19.” [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution.” [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • “Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them.” [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right.” [S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

Decision

In view of the changed social circumstances and progress in laws noted and proposed by the Law Commission as well as law declared by the aforesaid judgments of the Supreme Court, the High Court held that:

“It would be cruel and unethical to force the present generation living with its current needs and expectations to follow the customs and traditions adopted by a generation living nearly 150 years back for its social needs and circumstances, which violates fundamental rights recognized by the courts of the day.”

In view of the Court, the interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in 1954 Act thus has to be such that would uphold the fundamental rights and not violate the same. It was held:

“In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

It was further noted that even today, majority of marriages in India are performed under personal laws which do not require publication of any notice or calling for objections with regard to such a marriage. However, under Sections 6 and 7 of the 1954 Act, the persons intending to solemnize a marriage are required to give a notice and the Marriage Officer thereafter is made duty-bound to publish the notice for a period of 30 days and invite objections with regard to the same. Any person can object to the marriage on the ground that it violates any of the condition of Section 4 of the 1954 Act. None of the conditions under Section 4 is such, violation of which would impact rights of any person in any manner different than the same would in case of marriage under any personal law. Even if a marriage takes place in violation of any of the conditions of Section 4, legal consequences would follow and the courts can decide upon the same, including declare such a marriage to be void, as they do under the personal laws.

The Court was of the view that:

“There is no apparent reasonable purpose achieved by making the procedure to be more protective or obstructive under the 1954 Act, under which much less numbers of marriages are taking place, than procedure under the other personal laws, more particularly when this discrimination violates the fundamental rights of the class of persons adopting the 1954 Act for their marriage.”

However, held that Court, that in case, such individuals applying to solemnize their marriage under the 1954 Act themselves by their free choice desire that they would like to have more information about their counterparts, they can definitely opt for publication of notice under Section 6 and further procedure with regard to objections to be followed. Such publication of notice and further procedure would not be violative of their fundamental rights as they adopt the same of their free will. Therefore, the requirement of publication of notice under Section 6 and inviting/entertaining objections under Section 7 can only be read as directory in nature, to be given effect only on request of parties to the intended marriage and not otherwise.

Operative Portion of the Order

“Thus, this Court mandates that while giving notice under Section 5 of the Act of 1954 it shall be optional for the parties to the intended marriage to make a request in writing to the Marriage Officer to publish or not to publish a notice under Section 6 and follow the procedure of objections as prescribed under the Act of 1954. In case they do not make such a request for publication of notice in writing, while giving notice under Section 5 of the Act, the Marriage Officer shall not publish any such notice or entertain objections to the intended marriage and proceed with the solemnization of the marriage. It goes without saying that it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”[Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19, decided on 12-01-2021]

Case BriefsSupreme Court

Supreme Court: The bench of UU Lalit and Indu Malhotra, JJ has upheld the rights of the Travancore royal family in the administration of Sree Padmanabhaswamy Temple, one of the world’s richest temples, in Kerala’s Thiruvananthapuram. Allowing the appeal filed by members of the Travancore family, the Court observed that the death of the Travancore ruler, who signed the covenant, does not affect the rights of the Shebaitship Travancore family over the temple and it will survive as per the customs.

The Court noticed after the major fire that occurred in the year 1686, the Temple was reconstructed and a new idol was installed by the King of Travancore Shri Marthand Varma and since then right upto the day the Covenant was signed, the management of the Temple had always been with the Kings of Travancore. The shebaitship or the managership of the Temple passed on to the succeeding Kings, coming from the royal family of Travancore. This chain was unbroken till the then Ruler of Travancore signed the Covenant in May 1949.

After referring to a number of decisions, the Court concluded that when the idol is installed and the temple is constructed or an endowment is founded, the shebaitship is vested in the founder and unless the founder himself has disposed of the shebaitship in a particular manner or there is some usage or custom or circumstances showing a different mode of devolution, the shebaitship like any other species of heritable property follows the line of inheritance from the founder; and it is not open to the Court to lay down a new rule of succession or alter the rule of succession.

“… the shebaitship has the elements of office and property, of duties and personal interest blended together and they invest the office of the shebait with the character of proprietary right.”

Key takeaways from the 218 pages long verdict:

  • Article VIII of the Covenant not only acknowledged and accepted the factum that the administration with respect to the Temple, its properties, as well as with respect to Pandaravaga properties, had already vested in “the Ruler of the Covenanting State of Travancore”, but the said Article expressly continued the same status and stipulated that such administration shall be conducted subject to the supervision and control of “the Ruler of Travancore”, the meaning of which expression has already been dealt with and deduced earlier.
  • Provisions of the Constitution of India as it stood before the Constitution (Twenty Sixth Amendment) Act, 197,as well as that of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (TC Act) did not, in any way, upset or abridge the status enjoyed by the Ruler of Travancore as Shebait of the Temple and also did not, in any manner, adversely impact the right of administration vested in the Ruler of Travancore. As a matter of fact, the relevant provisions of the TC Act afforded statutory flavour to the status contemplated by Article VIII of the Covenant.
  • The Constitution (Twenty Sixth Amendment) Act, 1971 did not in any way impact or affect the administration of the Temple, Sri Pandaravaga properties and the properties of the Temple, which continued to be under the control and supervision of the Ruler of Travancore.
  • The death of Sree Chithira Thirunal Balarama Varma who had signed the Covenant, would not in any way affect the Shebaitship of the Temple held by the royal family of Travancore; that after such death, the Shebaitship must devolve in accordance with the applicable law and custom upon his successor; that the expression “Ruler of Travancore” as appearing in Chapter III of Part I of the TC Act must include his natural successors according to law and custom; and that the Shebaitship did not lapse in favour of the State by principle of escheat.

Modification in the composition of the interim Administrative Committee

Considering the fact that the present interim Administrative Committee headed by the District Judge is in seisin for the last more than five years, and various District Judges as Chairpersons of the Committee conducted themselves quite well, the Court was opinion that a minor change in the Administrative Committee was called for. It hence, directed,

“Instead of a retired Indian Administrative Service Officer of the rank of Secretary to the Government of Kerala as the Chairperson of the Administrative Committee, in the interest of justice, the District Judge, Thiruvananthapuram shall be the Chairperson of the Committee. Needless to say that the present Chairperson of the Interim Administrative Committee shall continue to be the Chairperson so long as he holds the post of the District Judge, Thiruvananthapuram. The composition of the Advisory Committee will ensure that the administration of the Temple is conducted in a fair and transparent manner.”

Directions to the interim Administrative Committee

The Administrative Committee and the Advisory Committee shall do well to discharge all their functions including performance of the worship of the deity, maintenance of its properties, diligently and in the best interest of the Temple, and provide adequate and requisite facilities to the worshippers; and more particularly:-

(a) Preserve all treasures and properties endowed to Sree Padmanabhaswamy and those belonging to the Temple.

(b) Protect all tenanted properties and take appropriate measures to ensure reasonable returns from such tenanted properties.

(c) Ensure that all rituals and religious practices are performed in accordance with the instructions and guidance of the Chief Thantri of the Temple and according to custom and traditions. In temporal matters, the Committees shall be guided by the advice given by the Chief Thanthri. The designation of the Chief Thanthri shall be done in accordance with the customs and traditions

(d) Shall take appropriate steps to return to the State the amounts expended by the State Government

(e) All the income accruing to the Temple, as well as the offerings made by the worshippers, shall be expended in the following manner:

(i) To improve the facilities for the worshippers; and

(ii) For such religious and charitable purposes as the Advisory Committee may deem appropriate; and

(iii) In investments that will fetch reasonable returns and ensure that the properties of the Temple are completely safe and secure.

(f) Recover and retrieve any property or funds of the Temple which have been put to misuse or have been in unauthorized occupation or misappropriated.

(g) Shall order audit for the last 25 years as suggested by the learned Amicus Curiae. The audit shall be conducted by a firm of reputed Chartered Accountants. The Advisory Committee shall also consider what further steps need to be taken for the preservation of the Temple properties, both movable and immovable.

(h) Take appropriate steps for conservation of the Temple and its precincts, as well as for improvement of all the facilities.

(i) Shall consider whether Kallara B is to be opened for the purpose of inventorization.

(j) Conduct all the obligations which from time to time were bestowed on various Committees by this Court including that of the Selection Committee for Sreekovil.

(k) Shall file Reports in this Court by the second week of December, 2020 stating all the developments in brief till then. The next Report shall be filed after the accounts for the year ending 31.03.2021 are audited.

 (l) Shall file the audited accounts and the Balance Sheet with the office of the Accountant General for the State, every year.

[Sri Marthanda Varma (D) v. State of Kerala, 2020 SCC OnLine SC 569, decided on 13.07.2020]

Case BriefsForeign Courts

Court of Appeal of Sri Lanka: Janak De Silva and Bandula Karunarathna, JJ. entertained a writ petition where gold pieces were confiscated from the petitioner and the dispute was regarding whether he had declared it to the Custom or not. 

In the instant petition, the first petitioner claimed that the second petitioner sought his assistance to bring back gold from Dubai which belonged to him. But the 1st petitioner told the Custom authorities that he went to Dubai to purchase mobile parts and that he met one person who requested him to carry gold pieces to Colombo. The Court observed that the dispute was regarding whether the act performed by the petitioner was after entering the “Green Channel” and without submitting a proper custom declaration or he had made a declaration. 

Subsequently, a Custom inquiry was held by the officials and charges were framed against the 1st petitioner also a show-cause notice was issued as to why the gold should not be seized and a penalty should not be imposed on him. 

The counsel for the petitioner submitted that though importation of goods in this nature in commercial quantity technically amounted to a violation of law. However, in similar cases (particularly has declared the goods) the practice followed by the department was release (sic) the goods on the imposition of penalty in terms of Section 166(B) of the Customs ordinance. Therefore, it was requested by the petitioner to make an order proportionate to the violation committed by the petitioner.

The Court observed that it was clear admission of guilt and now the petitioner was bound by the same. Court further observed that the admission made by the counsel was binding on the client It was sometimes permissible to withdraw admissions on questions of law but admissions on questions of fact cannot be withdrawn. And no attempts were made to withdraw the admission by the petitioner. 

Another issue which Court noted was related to ‘Liable to Forfeiture v shall be forfeited’, the gold item in question was seized by the Customs for violation of various sections of the Ordinance along with the Import and Export Act, 1969. it was further observed that the law was “if any person exports or attempts to export or take out of Sri Lanka … in contravention of the prohibitions and restrictions … such goods shall be forfeited, and shall be destroyed or disposed of as the Director-General may direct” Hence, If the goods were declared to be “forfeited” as opposed to “liable to forfeiture” on the happening of a given event, their owner was automatically and by operation of law divested of his property in the goods as soon as the event occurred. No adjudication declared the forfeiture to have had taken place was required to implement the automatic incident of forfeiture.

The Court stated that forfeiture of goods by operation of law would, of course, be of purely academic interest until the owner was deprived of his property by some official intervention. Court held that “the failure of the petitioner to resort to an alternative remedy prescribed by Section 154 of the Ordinance precludes the court from intervening and exercising its discretionary powers.” Hence there was no merit found in the petitioner’s application. [A.H.M.C.M. Nazeer v. Jagath Wijeweera, 2019 SCC OnLine SL CA 6, decided on 09-08-2019]

Business NewsNews

The government has clarified the E-way bill regarding movement of goods from dry-ports to sea ports and from SEZs within the zone. It is in the backdrop of various representations from Association of Exporters as well as Corporate Bodies seeking clarity on the E-way bill.

Some of the queries regarding the applicability of the E-way bill are —

  1. Exemption for export consignments during custom bonded movement from one airport o another;
  2. Movement from SEZ/FTWZ (Free Trade Warehousing Zone) to port and vice versa;
  3. Parity in movement of export cargo with import cargo.

To clarify this issue the Central Goods and Services tax Rules, 2017 (CGST Rules) have been amended vide notification No. 12/2018-Central Tax dated 07-03-2018. As per sub-clauses (c) and (h) of sub-rule (14) of Rule 138 of the CGST Rules, no E-way bill is required to be generated where the goods are being transported:

  1. from the customs port, airport, air cargo complex and land customs station to an inland container depot or a container freight station for clearance by Customs;
  2. under customs bond from an inland container depot or a container freight station to a customs port, airport, air cargo complex and land customs station, or from one customs station or customs port to another customs station or customs port;
  3. under customs supervision or under customs seal.

[Press Release no. 1525915, dt. 22-03-2018]
Ministry of Finance

Business NewsNews

GST Council: Sending a strong positive signal to the exporting community, the GST Council in its 26th meeting held on 10-03-2018, decided to extend the current tax exemptions on imported goods for a further period of 6 months, i.e., beyond 31-03-2018. Thus, exporters presently availing various export promotion schemes can now continue to avail such exemptions on their imports upto 01-10-2018, by which time an e-Wallet scheme [to be credited with notional/virtual currency by DGFT, for use by exporters to make payments of GST/IGST on goods imported/procured so that their funds are not blocked] is expected to be introduced w.e.f. 01-04-2018 to continue the benefits in future.

In a related development which would benefit the exporters, the Council directed GSTN to expeditiously forward the balance refund claims to the Customs/CGST/SGST authorities, for their immediate sanction and disbursal, with a further direction to all the State tax authorities to proactively clear refund claims. CBEC has taken the initiative to observe a special drive refund sanction fortnight from 15-03-2018 to 29-03-2018 on an all India scale, with special refund cells manned by experienced staff being put in place throughout the country.

In the meeting held on 06-10-2017, the Council had noted difficulties of cash blockage experienced by exporters on account of upfront payment of GST/IGST on inputs, raw materials or finished goods imported/procured for exports and thus had suggested an interim solution by re-introducing pre-GST tax exemptions on such imports, and for merchant exporters a special scheme of payment of GST @ 0.1% on their procured goods was also introduced. Also, domestic procurement made under Advance Authorization, EPCG and EOU schemes were recognized as ‘deemed exports’ with flexibility for either suppliers or exporters being able to claim refund of GST/IGST. All of these avenues were made available upto 31-03-2018.

On 16-12-2017, a Working Group with representatives of Central and State Governments to operationalize the e-Wallet scheme was constituted by the Finance Secretary. The Council being unanimous that there should be no disruption in any manner to affect the exports accordingly agreed to defer the implementation of the e-Wallet scheme by 6 months, i.e., upto 01-10-2018 and extended the present dispensation in terms of exemptions, for a further period of 6 months i.e., upto 01-10-2018.

[Source: Press Information Bureau]

MINISTRY OF FINANCE