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Taxation law : ii

Submitted to: by: Prof. Dr.Ajay Kumar

Faculty (taxation)

Submitted Vijay kumar

4th Year, 8TH Semester Roll.no-75

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I take this opportunity to express my humble gratitude and personal regards to for inspiring me and guiding me during the course of this project work and also for his cooperation and guidance from time to time during the course of this project work on the topic Delegated legislation under custom and excise law. I express my gratitude to the faculty, TAX LAW for the concepts given by him in the subject which has been the base for this small piece of work.

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Aims and Objectives: The aim of the project is to present a detailed study of the topic through decisions and suggestions and different writings and articles. The aim has been to identify that what IS DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW. Scope and Limitations: Though the topic Directors liability under corporate legal system is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail. Points on which especial emphasis has been given in this research are: MEANING OF DELEGATED LEGISLATION MEANING OF CUSTOM DUTY. PROVISION RELATED TO DELEGATED LEGISLATION. CONSTITUTIONAL PROVISION RELATED TO CUSTOM AND EXCISE LAW. Sources of Data: The following secondary sources of data have been used in the project1. Articles/Journals/Documents/Year Books 2. Books 3. Websites Method of Writing and Mode of Citation: The method of writing followed in the course of this research paper is primarily analytical. The researcher has followed Uniform method of citation throughout the course of this project.

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2. 3 4. 5. 6.


3 5 6 7




8 10 14 18 20

2) ASSESSMENT OF IMPORT DUTY AND CLEARANCE 3) Provisional Assessment A part of delegated legislation 4) Constitution of India.

7. 8.


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INTRODUCTION It is very difficult, if not impossible, to give a precise definition of Law. Many renowned jurists have held forth their own definitions of the term Law. Law, in the broadest and most

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comprehensive sense means a set of rules and norms and a standard of pattern of behaviour to which every individual of the society has to conform to. Another often quoted, although not widely believed, definition of Law is of that given by Austin according to which Law is the command of the sovereign1. Sources of law may be classified into Legal and Historical sources as well as Formal and Nonformal sources. Legal sources are those which are recognized as such by law itself. Historical sources are those sources lacking formal recognition by law. The legal sources of law are authoritative and are allowed by the law courts as of right. The historical sources of law are unauthoritative. They influence more or less extensively the course of legal development, but they speak with no authority. All rules of law have historical sources but not all of them have legal sources. By formal sources it is meant, sources of law which are available in an articulated textual formulation embodied in an authoritative legal document. The chief examples of such formal sources are Constitutions and Statutes, Executive orders, administrative regulations, Ordinances, Charters and by-laws of autonomous or semi-autonomous bodies and organizations, treaties and certain other agreements, and Judicial precedents. On the other hand, Non-formal sources of law are legally significant materials and considerations, which have not received an authoritative or at least articulated formulations and embodiment in a formalized legal document. Non-formal sources of law may be Customs or Customary law, Standards of justice, principles of reason and considerations of the nature of things (natura rerum), individual Equity public policies, moral convictions and social trends. Although a formalized, authoritative source of law provides a precise and clear-cut answer to a legal problem, non-formal sources are also not unimportant and should not be ignored. Where a formalized legal document reveals ambiguities and uncertainties making alternative courses of interpretation possible, the non-formal sources should be resorted to for the purpose of arriving at a solution most conductive to reason and justice. When the formal sources entirely fail to provide a rule of decision for a legal case, reliance on the non-formal sources becomes mandatory.

by MOHAR89 on MARCH 12, 2010

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The 'person in charge of conveyance' (carrier of goods) has to follow prescribed procedure. Arrival at customs port/airport only - Section 29 provides that personin- charge of a vessel or an aircraft entering India shall call or land at customs port or customs airport only. It can land at other place only if compelled by accident, stress of weather or other unavoidable cause. In such case, he should report to nearest police station or Customs Officer. While arriving by land route, the vehicle should come by approved route to land customs station only2. Import Manifest / Report- Person-in-charge of vessel, aircraft or vehicle has to submit Import Manifest / Report. [also termed as IGM - Import General Manifest]. (In case of a vessel or aircraft, it is called import manifest, while in case of vehicle, it is called import report.) The import manifest in case of vessel or aircraft is required to be submitted prior to arrival of a vessel or aircraft. Import report (in case of vehicle) has to be submitted within 12 hours of arrival at the customs station. If the report / manifest could not be submitted within prescribed time, person-in-charge or any person specified as responsible by a notification is liable to penalty upto Rs 50,000 IGM can be submitted electronically through floppy where EDI facility is available. Import manifest should be filled before arrival of ship aircraft. Normally, agent submits the import manifest before arrival, so that maximum possible formalities are completed before vessel or aircraft arrives. This also enable importer to file Bill of Entry in advance. Grant of Entry Inwards by Customs Officer - Unloading of cargo can start only after Customs Officer grants Entry Inwards. Such entry inwards can be granted only when berthing accommodation is granted to a vessel3. Carrier responsible for shortages during unloading - If the goods are short landed, the carrier is liable to pay penalty upto twice the amount of duty payable on such short landed goods. ASSESSMENT OF IMPORT DUTY AND CLEARANCE
The documents submitted by importer are checked and assessed by Customs authorities and then goods are cleared.

Datey, V.S, 2005. Indirect Taxes, Taxmann Publisher, Delhi. Twentieth Edition.


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Noting of Bill of Entry - Bill of Entry submitted by importer or Customs House Agent is crosschecked with Import Manifest submitted by person in charge of vessel / carrier. It is noted if the description tallies. . Date of presentation of bill of entry is highly relevant and the rate of duty as applicable on this date will be considered for calculating the duty payable. Bill of Entry is accepted only after proper scrutiny vis-vis import manifest and various declarations given in bill of entry and attached documents like invoicing, bill of lading etc. If such documents are not attached, the authorities can refuse to accept the Bill of Entry Prior Entry of Bill of Entry - After the goods are unloaded, these have to be cleared within stipulated time - usually three working days. If these are not so removed, demurrage is charged by port trust/airport authorities, which is very high. Hence, importer wants to complete as many formalities as possible before ship arrives. Assessment of Customs duty and excise duty: Assessment of goods will be made after Bill of Entry is filed 4. Date stamp of receipt is put on the Bill of Entry and then it is sent to appraising department either manually or electronically There are various Appraising groups for different Chapter headings. Each group is under an Assistant/Deputy Commissioner. Group consists of

Examiners and Appraisers:

APPRAISING THE GOODS - Appraiser has to (a) correctly classify the goods (b) decide the Value for purpose of Customs duty (c) find out rate of duty applicable as per any exemption notification and (d) verify that goods are not imported in violation of any law. He can call for any further documents that may be required for assessment. If he is of the opinion that goods have to be examined for appraisal, he will issue an examination order, usually on the reverse of Bill of Entry.

Section 17 of custom act

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VALUATION OF GOODS -The importer has to file declaration about full 'value' of goods5. If the assessing officer has doubts about the truth and accuracy of 'value' as declared, he can ask importer to submit further information, details and documents. If the doubt persists, the assessing officer can reject the value declared by importer. APPROVAL OF ASSESSMENT - The assessment has to be approved by Assistant Commissioner, if the value is more than Rs one lakh. (in cases covered under fast track clearance for imports, appraiser is also authorised to approve valuation). followed by his name, preferably by rubber stamp. PAYMENT OF CUSTOMS DUTY - After assessment of duty, necessary duty is paid. Regular importers and Custom House Agents keep current account with Customs department. The duty can be debited to such current account, or it can be paid in cash/DD through TR-6 challan in designated banks. After payment of duty, if goods were already examined, delivery of goods can be taken from custodians (port trust) after paying their dues. If goods were not examined before assessment, these have to be submitted for examination in import shed to the examining staff. After shed appraiser gives out of charge order, delivery of goods can be taken from custodian. First and second system of assessment - There are two systems of assessment. Section 17(2) provides for assessment after examination of goods and section 17(4) provides for assessment on basis of documents, followed by inspection and testing of goods. First appraisement system or 'first check procedure' is followed if the appraiser is not able to make assessment on the basis of documents submitted and deems that inspection is necessary. Goods are examined first and then these are assessed. First appraisement is generally carried out in following cases If complete documents are not submitted Goods are to be tested for correct classification Goods are re-imported Goods are damaged or deteriorated and abatement is claimed Goods are abandoned and remission of duty is applied for When goods are provisionally assessed

As per rule 10 of Customs Valuation Rules

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When importer himself requests for examination of goods before payment of duty. In Second Appraisement System or 'second check procedure', which is normally followed, assessment is done on basis of documents and then goods are examined. Such examination is not mandatory. It is done on selective basis on the basis of risk assessment or specific intelligence report. If initially assessment is done on basis of documents6, re-assessment can be done after examination or testing of goods or otherwise, if it is found subsequent to examination or testing or otherwise, that any statement made on Bill of Entry or any information supplied is not true in respect of matter relevant to assessment of duty.

LEGISLATION Legislation has become the commonest source of new laws or of law reforms today. It is the source of law which consists in the declaration of acts legal rules enforceable by a competent authority. To legislate is to make new laws in any fashion. Legislation includes every expression of the will of the legislature. Every Act of Parliament is an instance of legislation. The legislature does not confine its action to the making of rules, yet all its functions are included in the term legislation7. Law that has its source in legislation may be most accurately termed a enacted law, all other forms being distinguished as unenacted. The more familiar term used is, however, statute law. Blackstone and other writers use written and unwritten law to distinguish between legislation and other sources of law. Legislation may be either supreme or subordinate. Supreme legislation is that which proceeds from the supreme or sovereign power in the state, and which is therefore incapable of being repealed, annulled or controlled by any other legislative authority. Subordinate legislation is that which proceeds from any authority other than the sovereign power. Such legislation is subordinate in that it can be repealed by, and must give way to, sovereign legislation. It may also be of a derivative nature, the power to legislate having been delegated by the sovereign to the subordinate.

Section 17(4) of Customs Act

Salmond on Jurisprudence, Universal Law Publishing Co. Pvt. Ltd., Delhi, 12th ed., pp109

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In Delegated legislation, power to bring an Act into operation; power to apply the Act; power to exempt from or extend the scope of the Act; powers to make rules, regulations and bye-laws, power to impose tax etc. Besides delegation, there is sub-delegation also. In sub-delegation, the agency to whom the power is delegated in the Act may further delegate it to another agency to perform the duty8. Subordinate legislation may be delegated to the Executive. The essential function of the executive is to conduct the administrative departments of the state. But it combines with this certain subordinate legislative powers which have been expressly delegated by the Parliament. The statutes entrust to some executive department the duty of supplementing the statutory provisions by the issue of more detailed regulations bearing on the matter. Certain delegated legislative powers are also possessed by the judicature. The superior courts have the power of making rules for the regulation of their own procedure. The Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the areas under their control. The enactments so authorised are termed by-laws, and this form of legislation may be distinguished as municipal. The major change in the custom and excise act are discussed below: 1. section 26(A) has been inserted in the custom act to provide for refund of import duty paid on imported goods if they are found to be defective or not conforming to the specification agreed upon between the importer and the seller, subject to certain conditions. 2. Section 28 F of the custom act has been amended to provide that the central government may by notification authorize the authority for advance ruling constituted under section 245 of the income tax act to act as an authority for the purpose of the custom, central excise and service tax subject to some modification regarding the constitution of the authority. 3. Section 137 of the custom act has been amended to empower the high courtr to condone the delay in filing of appeals/application of the cross objection where it is satisfied that there is sufficient cause for delay.

Bodenheimer, Edgar, Jurisprudence: The Philosophy and Method of the Law, Universal Law Publishing Co. Pvt. Ltd.,

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4. Section 3 of the custom act has been amended so as to provide that where central government has fixed tariff value for the collection of central and excise duty on an article produced or manufactured in india

Section 8B ,8C and 9 of the custom act has been amended so as to provide the provision of custom act to the duties levied under these provision.

Constitution of India:
Since constitution of india is the foundation and the source of powers of all laws in India . it is necessary to understand the general background of the constitution to enable us to understand each law in India. In India constitution came in 26 jan.1950 is supreme and all laws and government actions are subordinate to our constitution9. Constitution is supreme law- clear understanding of concepts is vital for any discussion on taxation matter as power to levy and collect tax is derived from constitution. If it found that any act,rule , notification or government actions are not according to constitution , it is illegal and it is called ultravirus the constitution10. India is union of state: our constitution generally follows british pattern though concepts of federal structure are borrowed from American and other constitutions. Article 1(1) of the constitution of india reads india that is bharat shall be union of states. Government of india has certain power in respect of whole country .india is divided into various states and union territories and each state and union territory has certain powers in respects of that particulars state. Thus there are states like Gujrat,Maharashtra,Kerela,etc and union territory like Pondicherry Chandigarh etc. PRECEDENTS It is today the prevailing opinion that a decision of a court of law, particularly a court of high authority, which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of law. It is the reason or legal principle of the case, which is known as the ratio

Bengal Immunity Co. v State of Bihar, AIR 1956 SC 631



v Narayan, AIR 1952 Bom 84

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decidendi applied by the Doctrine of stare decisis, which forms the law for the future. A decision is not binding because of its conclusion, but in regard to its ratio and the principles laid down therein which is declared in the case Bachan Singh v State of Punjab11. In Krishena Kumar v Union of India12, the Supreme Court has observed, The Ratio Decidendi is the underlying principle, namely, the general reasons or general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The Ratio Decidendi has to be ascertained by an analysis by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge made, and a minor premise, consisting of the material facts of the case under immediate consideration. Obiter dicta on the other hand are observances of the court in the judgments passed by it. Although it is of persuasive value, normally even an obiter dictum of the Supreme Court is expected to be obeyed and followed. Precedents may be classified into original and declaratory precedents. Original precedents are those that create and apply a new rule or law, while declaratory precedents are those that merely declare or apply the same pre-existing legal principle on a similar case. Both original as well as declaratory precedents are equally important sources of law. Precedents may also be classified into authoritative and persuasive precedents according to its binding force on the lower courts. An authoritative precedent is one in which judges must follow it whether they approve of it or not. A Persuasive precedent is one in which the judges are under no obligation to follow, but which they will take into consideration, and to which they will attach as much weight as it seems to them to deserve. In India, Article 141 of the Indian Constitution says that Law declared by the Supreme Court is binding on all courts while the judgment of one High Court of a state has persuasive authority over another High Court. Precedents are binding only from a higher court to a lower one while persuasive authority exists only between collateral courts or courts of the same rank. One Division Bench decision


(1979) 3SCC 727 (1990) 4 SCC 207,226


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is binding on another Division Bench of the same court13. Judgment of earlier Division Bench of the High Court is binding in subsequent proceedings of the same case. Authoritative precedents may further be classified into absolute and conditional. Absolutely authoritative precedents are binding on lower courts irrespective of however erroneous it may be. Conditionally authoritative precedents are usually binding on all ordinary cases, however in one special case its authority may lawfully be denied if the wrong and unsound nature of the law is proved14. When a precedent is disregarded, the court may either overrule it, or merely refuse to follow it. Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority, and becomes null and void and a new principle is authoritatively substituted for the old. The Supreme Court will not ordinarily depart from its earlier decision. However, if an earlier decision is found erroneous, and is thus detrimental to the general welfare of the public, the Supreme Court will not hesitate in departing from it, as it laid down in the case Sajjan Singh v State of Rajasthan. Where a precedent is merely not followed, the result is the two stand side by side conflicting with each other. Such a situation can be solved only when a higher authority formally overrules one of the laws and sanctions the other. The Supreme Court is not bound by its own decisions and may overrule its previous decisions. It may overrule them either by expressly saying so, or impliedly by not following them in a subsequent case. Judgments are not scriptural absolutes but relative reasoning. The binding force of the precedent may be destroyed when it is overruled by a higher authority or if it is in opposition to a pre-existing statute or an earlier decision of a superior court. A number of decisions on Constitutional law have been abrogated by constitutional amendments such as the decisions in Golak Nath v State of Punjab. The binding force of the precedent may also be weakened if a particular point of law involved in the decision is not perceived by the court, which is known as precedents sub silentiocpp153 and does not have any precedental value15.

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M Abdul Sattar v H.A. Hakim, AIR 1976 AP 84 Tripathi, B.N.Mani, Jurisprudence (Legal Theory), Allahabad Law Agency, Allahabad, pp 216


Tripathi, B.N.Mani, Jurisprudence (Legal Theory), Allahabad Law Agency, Allahabad, pp 216

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The value of the doctrine of precedent has been much debated. 133 Judges have been criticised on the grounds that precedents give them the power to transform from law-implementors to law-makers. However, it has also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law. At a time of commercial development and constitutional jurisprudence, it is the duty of the superior courts to be cautious in laying down precedents keeping in mind future developments16. TREATIES A treaty is an agreement entered into by countries, nations, or other legal persons recognized in international law. If only two nations or other international persons are the contracting parties, the treaty is called bilateral; if more than two are involved, it is usually called multilateral. The typical legislature of a modern nation-state may pass laws which a minority of the legislators are unwilling to approve, and these laws will bind everybody subject to the jurisdiction of the legislating body. Norms imposed by multilateral treaties, on the other hand, ordinarily bind only those countries which have manifested their approval by signing the treaty or otherwise adhering to it. CUSTOM Custom has an important place as a source of law. It is the most important non-formal source of law. Custom exists as law in every country, though it everywhere tends to lose its importance relatively to other kinds of law. Usage, or rather the spontaneous evolution by the popular mind of rules of existence and general acceptance of which is proved by their customary observance, is no doubt the oldest form of law making. It marks the transition between morality and law17. Custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. For a custom to be valid and operative as a source of law, it must conform to certain conditions and requirements. The chief requisites of a valid custom are:-


Shukla, V.N., Constitution of India, Eastern Book Company, Lucknow, 10th ed. pp. 456 Ibid


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i) Reasonableness- The most important requisite that a custom has to fulfill so as to become a valid source of law is that it has to be reasonable. For example, the practice of Sati in India was banned by law in spite of being a custom of the land. However, it also does not mean that the courts of law have the liberty to disregard a custom whenever they are not satisfied of the absolute rectitude and wisdom of it, for that would mean to deprive the custom of all its authority. To deprive a custom of its legality, it has to be so seriously repugnant to law, that to enforce it would cause more harm than good to the public18. ii) Immemorial Antiquity- In order to become legally enforceable, a custom has to be followed from time immemorial. However, General customs, or customs of the realm which prevail through the whole territory does not have such a requirement. It is the Local customs, or customs which are limited to a special part of the realm, which, in order to become law, need to prove the condition of having continued for a long time or time immemorial. i) Opinio Necessitatis- Another requirement for a custom to be a valid source of law is that there must be an ethical conviction on the part of the people following the custom that it is obligatory and not merely optional. Mere custom itself, as such, does not have any legal authority. It becomes legally effective only because it is the expression of an underlying principle of right approved by its practitioners. ii) Conformity with Statute law- A custom must be pleaded and proved to become law. All custom which has the force of law is of two kinds, which are essentially distinct in their mode of operation. These two kinds of custom may be conveniently distinguished as legal and conventional. A legal custom is one whose legal authority is absolute, while a conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements between parties to be bound by it. The term law includes custom and usages having the force of law.T he Indian Constitution provides for customs and usages as sources of law in Article 13 (3) (b). In Dasharatha Rama Rao v State of Andhra Pradesh19, Das, J., said Even if there was a custom which has been recognized by law.that custom must yield to a fundamental right. But personal laws, such


Tripathi, B.N.Mani, Jurisprudence (Legal Theory), Allahabad Law Agency, Allahabad, pp 216


AIR 1961 SC 564

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as Hindu Law, Mohammedan Law, are not included within the expression which has been expounded by the courts. Standard of Justice is used in cases where there is no statutory provision for a particular case in which the judge has to depend on his own common sense or standard of justice or borrow the relevant legislations from other countries so that no injustice is done to any party concerned in the case. There are a number of judicial decisions where the courts, without any special authorization by the positive law to decide the unprovided case according to considerations of equity have granted relief to novel situations on grounds of natural justice and reason20. In the areas of conflict of laws, general considerations of fairness and justice have played a particularly important part in developing this particular branch of law. Courts have also resorted to considerations of justice in interpreting vague and ambiguous clauses in constitutional and statutory documents. The notion of justice has been used rather extensively by the judiciary and as played a prominent role in the decision of controversies. It is particularly in situations where the scales are heavily weighed on one side and where a strong need for relief is apparent that the courts are willing to allow new claims or defences on grounds of essential justice and equity.dpp354 Equity in its technical and scientific legal sense, means neither natural justice, nor even all that portion of natural justice which is susceptible of being judicially enforced. It has, when employed in the language of English Law, a precise, definite, and limited significance and is used to denote a system of justice in a particular court. The lay notion of equity is that its purpose is to administer justice in the particular case without regard to fixed or general rules, and indeed to set aside rules of law when essential to do so to the ends of natural justice. Agricultural Training Board v Aylesbury Mushrooms Ltd21 [Delegated Legislation supervision of the courts procedural requirements]


Tripathi, B.N.Mani, Jurisprudence (Legal Theory), Allahabad Law Agency, Allahabad, pp 247


AIR 1967 SC164

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Held: providing the statute stated that there must be consultation - there is no requirement otherwise. However, there is no requirement to do any more than ask for the consulted parties' views - they can be ignored. Customs and Excise v Cure & Deeley22 [Delegated Legislation limits of enabling act] Finance Act 1940 gave Customs and Excise power to make any law they wanted. This was wrong as it gave a government department more power than Parliament The meaning of unreasonableness was laid down. Per Lord Russell: "that by-laws should be"benevolently" construed. A by-law would be unreasonable "for instance, if they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there." The applicant, a prisoner, applied for judicial review of which allowed a prison governor to read every letter to or from a prisoner and stop any letter that was objectionable or of inordinate length. unless it was between a prisoner who was a party to proceedings and his legal adviser23. The question was the rules ultra vires of the Prison Act 1952, which authorised the making of rules. The more fundamental the right interfered with by a rule and the more drastic the interference, the more difficult it was to imply such a rule-making power. A prisoners right of access to a solicitor for advice as to instituting proceedings was an inseparable part of his right of access to the court. The rule created a substantial impediment to the exercise of the right to unimpeded access to the courts and to a solicitor for advice as to instituting proceedings. A by-law would be

(1998) 8 SCC 275 r 33(3) of the Prison Rules 1964


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unreasonable "for instance, [if] they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. Held: The duty to lay before Parliament is directory. Greenham Common women defended charges on the grounds that bye-laws should not have been made on common land Delegated Legislation supervision of the courts defence to a charge. Greenham Common women defended charges on the grounds that bye-laws should not have been made on common land. A by-law would be unreasonable "for instance, [if] they were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient, or because it is not accompanied by a qualification or an exception which some judges may think ought to be there24." Delegated legislation Parliament is mainly concerned with policies of law. It is not interested in routine procedures etc. Moreover, since the situation are constantly changing, changes are inevitable. It is not practicable to approach parliament and seek its approval for every minor change. Parliament, therefore, delegates some powers to other authorities usually some boards or government,to make rules, regulation and issue notification. This is called delegated legislation25. Often these are required to be published in official gazette. If the rules or regulation are made or

24 25

Controller of Estate Duty v KantilalTtrikamal (1976) 4 SCC 643 Holland on Jurisprudence, Universal Law Publishing Co. Pvt. Ltd., 13th edn., pp 56, 59

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notifications are issued under the powers granted in the act, they have the same force as the main act26. The limitation on delegated legislation is 1. It cannot be contrary to any act. 2. It cannot be issued with retrospective effect, unless there is a specific provision in the act. 3. It cannot restrict or widen scope of the act. 4. It cannot override provision of the main act or any other act.
5. Delegated legislation must be read in the context of the context of the

primary/legislative act and not vice-versa. In case of conflict between a substantive provision of an act and delegated legislation, the act prevails.
6. Rules should be read in such a way as to make it in accordance with the main object

contained in the act. Section is primary and rule is accessory. It was held in the case of Ispat Industries Ltd. V. CC27.
7. Rules are meant only for purpose of carrying out the purpose of act and they cannot

take away what was conferred by the act or whittle down its effect. 8. Rules can be referred to as contemporanea exposition to interpret the act, but otherwise they cannot be used to interpret main act. 9. Act should contain guidance for use of powers of delegated legislation. Uncontrolled and unguided delegation is not permissible. 10. Essential legislative function cannot be delegated. 11. If act lapses , rules/notification issued under the act automatically lapse. Effective date of a notification- a notification has to be published in official gazette, which is then made available to public. In U.O.I v. Ganesh Das Bhojraj28. It has been held that notification comes into operation from date of publication in official gazette. The gazette is

Shukla, V.N., Constitution of India, Eastern Book Company, Lucknow, 10th ed. pp. 456 2006(202)ELT 561 (SC)


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official record evidencing public affairs. Courts is required to presumes its contents as genuine u/sec. 35 & 38 of evidence act , unless contrary is proved. Thus notification come into effect on the day it published in official gazette and no further publication is required. Same view was observed in the case of State of U.P. v Twin Jewellers Association 29. There is a gap between issue of notification and publication in the official gazette. Supreme court had held in some earlier cases that notification only become effective when it published in official gazette and made available for sale. To overcome the problem created by this judgement , it has been provided that a notification will become effective on the date it issued. In order to insure that public is aware of change, it has been provided that the notification will be published and made available for sale by the director of publicity & public relation, cetral excise and custom , on the day the notification is issued30. Mere publishing of notification in official gazette will be enough. It is not necessary for government to prove that it was made available for sale. Provisional Assessment A part of delegated legislation Provisional assessment can be done in following cases31 (a) When Customs Officer is satisfied that importer or exporter is unable to produce document or furnish information required for assessment (b) It is deemed necessary to carry out chemical or other tests of goods (c) When importer/exporter has produced all documents, but Customs Officer still deems it necessary to make further enquiry. In such cases, assessment is done on provisional basis. The importer/exporter has to furnish guarantee/security as required by Customs Officer for payment of difference if any. Goods can be cleared after payment of duty provisionally assessed and after providing the security. After final assessment, difference is paid by importer or refunded to him as the case may be. If the imported goods were warehoused after provisional assessment, the Customs Officer may require importer to execute a bond for twice the difference in duty, if duty finally assessed is

116 ELT 431=AIR 2000 SC 1102 (2006) 147 STC 354(SC) Section 5A(5) of CEA and section 102(4) of custom act Section 18 of Customs Act, 1962




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higher32. The bond is called as 'P D Bond' (Provisional Duty Bond). The bond is with security or surety. Bank guarantee can also be given as a security.

Trade circulars and trade notices:

It is normal for government to issue trade circulars, trade notices and clarification from time to time. These are issued to clarify the views of the government in respect of any Act, rules or notification or to give some information, etc. Such trade circulars / trade notices do not have any legal force and they are not binding on taxpayers or quasi judicial authorities. If such trade notice circular or trade notice is beyond the provision of the Act or Rules, such trade notice cannot be binding on government also, as there is no estoppels against a statute. However, the department, which issued the trade notice with prospective effect, if felt to be against law. The circulars/trade notices are not binding on assessee, quasi judicial authorities or courts.


section 18(2) (a) of custom act

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It is difficult to define law, but it is easy to define about law. Sources of law are an important facet to law as it helps in giving a definition to law. If a study is made of the legal systems in the world in modern times, it would be found that most of the law is made by legislation. In some countries, especially in Common Law countries, the decisions of the superior courts, or precedents, also form a source of law. Customs, too, play a very important parting the framing of laws, and the rights and liabilities of individuals are determined on the basis of customs, especially upon matters on which there are no pre-existent legislation, and no precedent to cover the matter. Sometimes customs are abrogated by the legislation, and at other times are confirmed by their decisions. The judges, in passing their judgment, take help from numerous other sources of law to, juristic or authoritative writings, foreign decisions (Standard of Justice), moral considerations and public opinion. The law generally comes from these sources. Sources of law are the tools, methods a techniques that are availed by the legal system in order to carry out its social goals and objectives, which is to provide justice to the people, most effectively and adequately. Sources of law concerns itself with the methodology, modes of reasoning and the interpretation of law, and not with the problems, principles and rules of specified law. Customs duties levied by central government import of goods into, and export of goods from, India. These rules are applicable for imported good not applicable to exported goods. Good are imported or exported from India through sea, air or land. Goods can come through post parcel or as baggage with passengers. Procedure naturally varies depending on mode of import or export. There are separate provisions for baggage. There are provisions for draw back of custom and excise duty paid on inputs. Article 265 of the constitution states that no tax shall be levied or collected except by authority of law. Article 300 A of the constitution states that no person shall be deprived of its property save by authority of law . the effect of these n provision is that any taxation which is found to levy that tax. If any amount is collected under a law which is found to be illegal, government cannot retain such amount and must repay such illegally collected tax. Thus whenever it has been found that government has collected tax without proper authority of law, courts have held that the illegally collected taxes must be refunded subject to provision of unjust enrichment in respect of indirect taxes. BIBLIOGRAHY

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1. V.S.Datey, Taxmanns indirect taxes, 24th ed. 2010, Taxmann Publications (P.) Ltd. 2. Mohd. Rafi, Bharats Indirect Taxes, 3rd ed., 2010, Bharat Law House Pvt. Ltd.

Websites : 1.www.indiandata.com/import_procedures.
3. www.dateyvs.com/custom 4. www.authorstream.com 5. dacnet.nic.in/ppin/IpmImport 6. www.jeena.com 7. www.chennaicustoms.gov.in/ediimpo/import 8. finance.indiamart.com/exports_imports/importing 9. www.eximkey.com 10. cenexcisenagpur.nic.in/Customs/import 11. www.sezindiainvest.com/Import_Procedure 12. www.mumbaiport.gov.in 13. www.envfor.nic.in 14. www.hktdc.com

15. en.wikipedia.org/import_procedure 16. www.infodriveindia.com

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