Taxation law : ii

Submitted to: by: Prof. Dr.Ajay Kumar
Faculty (taxation)

Submitted Vijay kumar
4th Year, 8TH Semester

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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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The aim has been to identify that what IS DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW.  PROVISION RELATED TO DELEGATED LEGISLATION. Websites Method of Writing and Mode of Citation: The method of writing followed in the course of this research paper is primarily analytical.  CONSTITUTIONAL PROVISION RELATED TO CUSTOM AND EXCISE LAW. Sources of Data: The following secondary sources of data have been used in the project1. The researcher has followed Uniform method of citation throughout the course of this project.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW RESEARCH METHODOLOGY 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. Points on which especial emphasis has been given in this research are:  MEANING OF DELEGATED LEGISLATION  MEANING OF CUSTOM DUTY. Page 3 . Books 3. 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. Articles/Journals/Documents/Year Books 2.

DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW TABLE OF CONTENTS S. 3 4. if not impossible. 5. RESEARCH MRTHODOLOGY 3 5 6 7 INTRODUCTION DELEGATED LEGISLATION MEANING OF CUSTOM AND EXCISE LAW CHAPTERS: 1) JUDICIAL PRONOUNCEMENTS. 8. to give a precise definition of Law. 7. Many renowned jurists have held forth their own definitions of the term Law.No 1. PARTICULARS ACKNOWLEDGEMENT PAGE 2 2. CONCLUSION BIBLIOGRAPHY 23 24 INTRODUCTION It is very difficult. 6. 8 10 14 18 20 2) ASSESSMENT OF IMPORT DUTY AND CLEARANCE 3) Provisional Assessment – A part of delegated legislation 4) Constitution of India. Law. in the broadest and most Page 4 .

By formal sources it is meant. Another often quoted. Although a formalized.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW 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. administrative regulations. although not widely believed. Legal sources are those which are recognized as such by law itself. Ordinances. Charters and by-laws of autonomous or semi-autonomous bodies and organizations. definition of Law is of that given by Austin according to which Law is the command of the ‘sovereign1’. 2010 Page 5 . non-formal sources are also not unimportant and should not be ignored. treaties and certain other agreements. When the formal sources entirely fail to provide a rule of decision for a legal case. They influence more or less extensively the course of legal development. which have not received an authoritative or at least articulated formulations and embodiment in a formalized legal document. individual Equity public policies. 1 by MOHAR89 on MARCH 12. principles of reason and considerations of the nature of things (natura rerum). The legal sources of law are authoritative and are allowed by the law courts as of right. authoritative source of law provides a precise and clear-cut answer to a legal problem. reliance on the non-formal sources becomes mandatory. the non-formal sources should be resorted to for the purpose of arriving at a solution most conductive to reason and justice. sources of law which are available in an articulated textual formulation embodied in an authoritative legal document. moral convictions and social trends. Where a formalized legal document reveals ambiguities and uncertainties making alternative courses of interpretation possible. Sources of law may be classified into Legal and Historical sources as well as Formal and Nonformal sources. The historical sources of law are unauthoritative. The chief examples of such formal sources are Constitutions and Statutes. and Judicial precedents. On the other hand. but they speak with no authority. Executive orders. All rules of law have historical sources but not all of them have legal sources. Standards of justice. Non-formal sources of law are legally significant materials and considerations. Historical sources are those sources lacking formal recognition by law. Non-formal sources of law may be Customs or Customary law.

Taxmann Publisher. •Import Manifest / Report. it is called import report. 3 ibid Page 6 .000 • IGM can be submitted electronically through floppy where EDI facility is available.Section 29 provides that personin. person-in-charge or any person specified as responsible by a notification is liable to penalty upto Rs 50.If the goods are short landed. aircraft or vehicle has to submit Import Manifest / Report. It can land at other place only if compelled by accident. • Import manifest should be filled before arrival of ship aircraft. the carrier is liable to pay penalty upto twice the amount of duty payable on such short landed goods. agent submits the import manifest before arrival. Normally. it is called import manifest. Import report (in case of vehicle) has to be submitted within 12 hours of arrival at the customs station. Twentieth Edition. 2 Datey.Import General Manifest]. • Grant of Entry Inwards by Customs Officer . • Carrier responsible for shortages during unloading . While arriving by land route. the vehicle should come by approved route to ‘land customs station’ only2. If the report / manifest could not be submitted within prescribed time.Person-in-charge of vessel. [also termed as IGM . stress of weather or other unavoidable cause.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW The 'person in charge of conveyance' (carrier of goods) has to follow prescribed procedure. V. Delhi. Such entry inwards can be granted only when berthing accommodation is granted to a vessel3. ASSESSMENT OF IMPORT DUTY AND CLEARANCE The documents submitted by importer are checked and assessed by Customs authorities and then goods are cleared.) The import manifest in case of vessel or aircraft is required to be submitted prior to arrival of a vessel or aircraft. (In case of a vessel or aircraft. 2005. This also enable importer to file ‘Bill of Entry’ in advance. In such case.Unloading of cargo can start only after Customs Officer grants ‘Entry Inwards’. Indirect Taxes. so that maximum possible formalities are completed before vessel or aircraft arrives.charge of a vessel or an aircraft entering India shall call or land at customs port or customs airport only. he should report to nearest police station or Customs Officer. • Arrival at customs port/airport only . while in case of vehicle.S.

the authorities can refuse to accept the Bill of Entry • Prior Entry of Bill of Entry . Group consists of ‘Examiners’ and ‘Appraisers’: • APPRAISING THE GOODS . Bill of Entry is accepted only after proper scrutiny vis-àvis import manifest and various declarations given in bill of entry and attached documents like invoicing. If these are not so removed. importer wants to complete as many formalities as possible before ship arrives. 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. usually on the reverse of Bill of Entry. demurrage is charged by port trust/airport authorities. which is very high. he will issue an examination order. bill of lading etc. ‘. If he is of the opinion that goods have to be examined for appraisal. It is noted if the description tallies. Each group is under an Assistant/Deputy Commissioner.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW • Noting of Bill of Entry . Hence. these have to be cleared within stipulated time . He can call for any further documents that may be required for assessment. 4 Section 17 of custom act Page 7 .usually three working days. Assessment of Customs duty and excise duty: Assessment of goods will be made after Bill of Entry is filed 4.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. If such documents are not attached.After the goods are unloaded. • 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 submitted by importer or Customs House Agent is crosschecked with ‘Import Manifest’ submitted by person in charge of vessel / carrier.

The duty can be debited to such current account.The assessment has to be approved by Assistant Commissioner. • First and second system of assessment . the assessing officer can reject the value declared by importer. followed by inspection and testing of goods. these have to be submitted for examination in import shed to the examining staff. 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 5 As per rule 10 of Customs Valuation Rules Page 8 .DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW • VALUATION OF GOODS -The importer has to file declaration about full 'value' of goods5. if goods were already examined. necessary duty is paid. • APPROVAL OF ASSESSMENT . After shed appraiser gives ‘out of charge’ order.There are two systems of assessment. Regular importers and Custom House Agents keep current account with Customs department.After assessment of duty. • PAYMENT OF CUSTOMS DUTY . followed by his name. If goods were not examined before assessment. • “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. he can ask importer to submit further information. delivery of goods can be taken from custodians (port trust) after paying their dues. If the assessing officer has doubts about the truth and accuracy of 'value' as declared. details and documents. If the doubt persists. Section 17(2) provides for assessment after examination of goods and section 17(4) provides for assessment on basis of documents. appraiser is also authorised to approve valuation). preferably by rubber stamp. Goods are examined first and then these are assessed. (in cases covered under ‘fast track clearance for imports’. • After payment of duty. if the value is more than Rs one lakh. delivery of goods can be taken from custodian. or it can be paid in cash/DD through TR-6 challan in designated banks.

LEGISLATION Legislation has become the commonest source of new laws or of law reforms today.. ‘statute law’. The more familiar term used is. yet all its functions are included in the term legislation7. Pvt. Universal Law Publishing Co. Such legislation is subordinate in that it can be repealed by. Such examination is not mandatory. and must give way to. It is done on selective basis on the basis of ‘risk assessment’ or specific intelligence report.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW • When importer himself requests for examination of goods before payment of duty. Blackstone and other writers use ‘written’ and ‘unwritten’ law to distinguish between legislation and other sources of law. If initially assessment is done on basis of documents6. re-assessment can be done after examination or testing of goods or otherwise. 6 Section 17(4) of Customs Act Salmond on Jurisprudence. Law that has its source in legislation may be most accurately termed a ‘enacted law’. pp109 7 Page 9 . Subordinate legislation is that which proceeds from any authority other than the sovereign power. The legislature does not confine its action to the making of rules. which is normally followed. Supreme legislation is that which proceeds from the supreme or sovereign power in the state. all other forms being distinguished as ‘unenacted’. Ltd. and which is therefore incapable of being repealed. In “Second Appraisement System” or 'second check procedure'. Delhi. if it is found subsequent to examination or testing or otherwise. 12th ed. To legislate is to make new laws in any fashion. It may also be of a derivative nature. Every Act of Parliament is an instance of legislation. Legislation includes every expression of the will of the legislature. assessment is done on basis of documents and then goods are examined. that any statement made on Bill of Entry or any information supplied is not true in respect of matter relevant to assessment of duty. It is the source of law which consists in the declaration of acts legal rules enforceable by a competent authority. sovereign legislation. annulled or controlled by any other legislative authority. Legislation may be either supreme or subordinate. however. the power to legislate having been delegated by the sovereign to the subordinate..

regulations and bye-laws. Subordinate legislation may be delegated to the Executive. 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. The essential function of the executive is to conduct the administrative departments of the state. subject to certain conditions. 8 Bodenheimer. Jurisprudence: The Philosophy and Method of the Law. power to exempt from or extend the scope of the Act. power to bring an Act into operation. 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. power to apply the Act.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW In Delegated legislation. there is sub-delegation also. Certain delegated legislative powers are also possessed by the judicature. and this form of legislation may be distinguished as municipal. The Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the areas under their control. central excise and service tax subject to some modification regarding the constitution of the authority. 3. powers to make rules. The major change in the custom and excise act are discussed below: 1. Besides delegation. The enactments so authorised are termed by-laws. But it combines with this certain subordinate legislative powers which have been expressly delegated by the Parliament.. The superior courts have the power of making rules for the regulation of their own procedure. 2. Page 10 . the agency to whom the power is delegated in the Act may further delegate it to another agency to perform the duty8. Universal Law Publishing Co. 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. In sub-delegation. power to impose tax etc. Ltd. 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. Pvt. Edgar.

v State of Bihar. notification or government actions are not according to constitution .etc and union territory like Pondicherry Chandigarh etc. If it found that any act.india is divided into various states and union territories and each state and union territory has certain powers in respects of that particulars state.Kerela.clear understanding of concepts is vital for any discussion on taxation matter as power to levy and collect tax is derived from constitution. Government of india has certain power in respect of whole country . AIR 1952 Bom 84 Page 11 .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. PRECEDENTS It is today the prevailing opinion that a decision of a court of law.rule . It is the reason or legal principle of the case. Article 1(1) of the constitution of india reads india that is bharat shall be union of states. particularly a court of high authority.Maharashtra. it is necessary to understand the general background of the constitution to enable us to understand each law in India.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW 4. which explicitly or implicitly lays down a legal proposition constitutes a general and formal source of law. 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 5. it is illegal and it is called ultravirus the constitution10.1950 is supreme and all laws and government actions are subordinate to our constitution9. AIR 1956 SC 631 State 10 v Narayan. Constitution of India: Since constitution of india is the foundation and the source of powers of all laws in India . which is known as the ratio 9 Bengal Immunity Co. Constitution is supreme law. Section 8B . In India constitution came in 26 jan. India is union of state: our constitution generally follows british pattern though concepts of federal structure are borrowed from American and other constitutions. Thus there are states like Gujrat.

A decision is not binding because of its conclusion.226 12 Page 12 . A Persuasive precedent is one in which the judges are under no obligation to follow. 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. and a minor premise. An authoritative precedent is one in which judges must follow it whether they approve of it or not. Both original as well as declaratory precedents are equally important sources of law. while declaratory precedents are those that merely declare or apply the same pre-existing legal principle on a similar case. normally even an obiter dictum of the Supreme Court is expected to be obeyed and followed. namely. Precedents may also be classified into authoritative and persuasive precedents according to its binding force on the lower courts. In India. which forms the law for the future. Although it is of persuasive value. 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. but which they will take into consideration. 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. 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. Original precedents are those that create and apply a new rule or law. “The Ratio Decidendi is the underlying principle. the Supreme Court has observed. In Krishena Kumar v Union of India12. One Division Bench decision 11 (1979) 3SCC 727 (1990) 4 SCC 207. Precedents may be classified into original and declaratory precedents. either statutory or judge made. 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. and to which they will attach as much weight as it seems to them to deserve. but in regard to its ratio and the principles laid down therein which is declared in the case Bachan Singh v State of Punjab11.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW decidendi applied by the Doctrine of stare decisis.

the Supreme Court will not hesitate in departing from it. The Supreme Court will not ordinarily depart from its earlier decision. as it laid down in the case Sajjan Singh v State of Rajasthan. Such a situation can be solved only when a higher authority formally overrules one of the laws and sanctions the other. Jurisprudence (Legal Theory).Mani. the result is the two stand side by side conflicting with each other.N. Allahabad Law Agency. Authoritative precedents may further be classified into absolute and conditional. AIR 1976 AP 84 Tripathi. however in one special case its authority may lawfully be denied if the wrong and unsound nature of the law is proved14. Conditionally authoritative precedents are usually binding on all ordinary cases. When a precedent is disregarded. or impliedly by not following them in a subsequent case. A number of decisions on Constitutional law have been abrogated by constitutional amendments such as the decisions in Golak Nath v State of Punjab. Allahabad.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW is binding on another Division Bench of the same court13.Mani. and becomes null and void and a new principle is authoritatively substituted for the old. if an earlier decision is found erroneous. A precedent overruled is definitely and formally deprived of all authority.A. Where a precedent is merely not followed. Jurisprudence (Legal Theory). Absolutely authoritative precedents are binding on lower courts irrespective of however erroneous it may be. The Supreme Court is not bound by its own decisions and may overrule its previous decisions. Judgment of earlier Division Bench of the High Court is binding in subsequent proceedings of the same case. However. which is known as precedents sub silentiocpp153 and does not have any precedental value15. It may overrule them either by expressly saying so. Judgments are not scriptural absolutes but relative reasoning. B. Hakim. Allahabad. Overruling is an act of superior jurisdiction. 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. and is thus detrimental to the general welfare of the public. B. pp 216 Page 13 . the court may either overrule it. 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. or merely refuse to follow it. 13 14 M Abdul Sattar v H. pp 216 15 Tripathi. Allahabad Law Agency.N.

Norms imposed by multilateral treaties. If only two nations or other international persons are the contracting parties. on the other hand.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW The value of the doctrine of precedent has been much debated. Custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. It marks the transition between morality and law17. or rather the spontaneous evolution by the popular mind of rules of existence and general acceptance of which is proved by their customary observance. Usage. the treaty is called bilateral. 10th ed. is no doubt the oldest form of law making. though it everywhere tends to lose its importance relatively to other kinds of law. V. it must conform to certain conditions and requirements. CUSTOM Custom has an important place as a source of law. At a time of commercial development and constitutional jurisprudence. Custom exists as law in every country. and these laws will bind everybody subject to the jurisdiction of the legislating body. Lucknow. The typical legislature of a modern nation-state may pass laws which a minority of the legislators are unwilling to approve. if more than two are involved. The chief requisites of a valid custom are:- 16 Shukla.. It is the most important non-formal source of law. 456 Ibid 17 Page 14 . Constitution of India. it has also been argued in favour of Precedents that the practice is necessary to secure the certainty of the law. For a custom to be valid and operative as a source of law. 133 Judges have been criticised on the grounds that precedents give them the power to transform from law-implementors to law-makers. However. or other legal persons recognized in international law. it is the duty of the superior courts to be cautious in laying down precedents keeping in mind future developments16.N. it is usually called multilateral. pp. TREATIES A treaty is an agreement entered into by countries. ordinarily bind only those countries which have manifested their approval by signing the treaty or otherwise adhering to it. Eastern Book Company. nations.

To deprive a custom of its legality. However..In order to become legally enforceable. It is the Local customs. need to prove the condition of having continued for a long time or time immemorial. General customs. Mere custom itself. does not have any legal authority. ii) Immemorial Antiquity.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. it has to be so seriously repugnant to law. 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. B. which are essentially distinct in their mode of operation. However. Das. for that would mean to deprive the custom of all its authority.that custom must yield to a fundamental right”. Allahabad.Mani. Jurisprudence (Legal Theory). which.N. or customs of the realm which prevail through the whole territory does not have such a requirement. or customs which are limited to a special part of the realm.A custom must be pleaded and proved to become law. For example. in order to become law. i) Opinio Necessitatis. A legal custom is one whose legal authority is absolute. J. ii) Conformity with Statute law. It becomes legally effective only because it is the expression of an underlying principle of right approved by its practitioners.T he Indian Constitution provides for customs and usages as sources of law in Article 13 (3) (b). The term law includes ‘custom’ and ‘usages’ having the force of law. that to enforce it would cause more harm than good to the public18. as such.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. These two kinds of custom may be conveniently distinguished as legal and conventional. such 18 Tripathi.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW i) Reasonableness. pp 216 19 AIR 1961 SC 564 Page 15 . Allahabad Law Agency. All custom which has the force of law is of two kinds. said “Even if there was a custom which has been recognized by law…. In Dasharatha Rama Rao v State of Andhra Pradesh19. while a conventional custom is one whose authority is conditional on its acceptance and incorporation in agreements between parties to be bound by it. But personal laws. the practice of Sati in India was banned by law in spite of being a custom of the land. a custom has to be followed from ‘time immemorial’.

N. means neither natural justice. There are a number of judicial decisions where the courts. when employed in the language of English Law. 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. Allahabad. and limited significance and is used to denote a system of justice in a particular court. Courts have also resorted to considerations of justice in interpreting vague and ambiguous clauses in constitutional and statutory documents. Agricultural Training Board v Aylesbury Mushrooms Ltd21 [Delegated Legislation supervision of the courts – procedural requirements] 20 Tripathi. The lay notion of equity is that its purpose is to administer justice in the particular case without regard to fixed or general rules. nor even all that portion of natural justice which is susceptible of being judicially enforced. 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. Mohammedan Law.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW as Hindu Law. The notion of justice has been used rather extensively by the judiciary and as played a prominent role in the decision of controversies. B. a precise. In the areas of conflict of laws. Jurisprudence (Legal Theory). and indeed to set aside rules of law when essential to do so to the ends of natural justice. definite. general considerations of fairness and justice have played a particularly important part in developing this particular branch of law. 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 reason”20. are not included within the expression which has been expounded by the courts. Allahabad Law Agency. pp 247 21 AIR 1967 SC164 Page 16 .dpp354 Equity in its technical and scientific legal sense. It has.Mani.

'Parliament never intended to give authority to make such rules. However.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW Held: providing the statute stated that there must be consultation . A prisoner’s right of access to a solicitor for advice as to instituting proceedings was an inseparable part of his right of access to the court. if they were manifestly unjust. 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. or because it is not accompanied by a qualification or an exception which some judges may think ought to be there. the court might well say. the more difficult it was to imply such a rule-making power. unless it was between a prisoner who was a party to proceedings and his legal adviser23. This was wrong as it gave a government department more power than Parliament The meaning of unreasonableness was laid down. 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. they are unreasonable and ultra vires.they can be ignored. if they disclosed bad faith.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient. which authorised the making of rules. 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. if they were found to be partial and unequal in their operation as between different classes. A by-law would be 22 (1998) 8 SCC 275 r 33(3) of the Prison Rules 1964 23 Page 17 . The question was the rules ultra vires of the Prison Act 1952. The more fundamental the right interfered with by a rule and the more drastic the interference. there is no requirement to do any more than ask for the consulted parties' views .there is no requirement otherwise. A by-law would be unreasonable "for instance. 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. Per Lord Russell: "that by-laws should be"benevolently" construed." The applicant. a prisoner.

if they disclosed bad faith. Ltd. [if] they were found to be partial and unequal in their operation as between different classes. regulation and issue notification. [if] they were found to be partial and unequal in their operation as between different classes. Pvt. 'Parliament never intended to give authority to make such rules. the court might well say. 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. 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. Moreover." Delegated legislation Parliament is mainly concerned with policies of law. This is called delegated legislation25.. if they were manifestly unjust. Greenham Common women defended charges on the grounds that bye-laws should not have been made on common land. It is not practicable to approach parliament and seek its approval for every minor change. they are unreasonable and ultra vires. 13th edn. 59 Page 18 . Often these are required to be published in official gazette. if they disclosed bad faith. if they were manifestly unjust.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW unreasonable "for instance. changes are inevitable.. Parliament. 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. It is not interested in routine procedures etc. therefore.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient. Held: The duty to lay before Parliament is directory. If the rules or regulation are made or 24 25 Controller of Estate Duty v KantilalTtrikamal (1976) 4 SCC 643 Holland on Jurisprudence. the court might well say.' A by-law is not unreasonable merely because judges may think that it goes further than is prudent or necessary or convenient. Universal Law Publishing Co. or because it is not accompanied by a qualification or an exception which some judges may think ought to be there24. they are unreasonable and ultra vires. or because it is not accompanied by a qualification or an exception which some judges may think ought to be make rules. pp 56. delegates some powers to other authorities usually some boards or government. since the situation are constantly changing. 'Parliament never intended to give authority to make such rules. A by-law would be unreasonable "for instance.

8. 2. unless there is a specific provision in the act. 5. Constitution of India. 7. It cannot be issued with retrospective effect. The gazette is 26 Shukla. 9. It cannot be contrary to any act. It has been held that notification comes into operation from date of publication in official gazette. they have the same force as the main act26. 456 2006(202)ELT 561 (SC) 27 Page 19 . 4. Eastern Book Company. In U. The limitation on delegated legislation is 1. the act prevails. 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. Rules should be read in such a way as to make it in accordance with the main object contained in the act. Delegated legislation must be read in the context of the context of the primary/legislative act and not vice-versa. It cannot override provision of the main act or any other act.a notification has to be published in official gazette. It was held in the case of Ispat Industries Ltd. pp. Rules can be referred to as contemporanea exposition to interpret the act. which is then made available to public. If act lapses . rules/notification issued under the act automatically lapse. Uncontrolled and unguided delegation is not permissible. Section is primary and rule is accessory. V. Lucknow. V. 6. In case of conflict between a substantive provision of an act and delegated legislation. Ganesh Das Bhojraj28.I v.N. 11. Act should contain guidance for use of powers of delegated legislation. 10.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW notifications are issued under the powers granted in the act. It cannot restrict or widen scope of the act. CC27. 10th ed. Essential legislative function cannot be delegated. 3. but otherwise they cannot be used to interpret main act. Effective date of a notification..O.

Thus notification come into effect on the day it published in official gazette and no further publication is required. In order to insure that public is aware of change. The importer/exporter has to furnish guarantee/security as required by Customs Officer for payment of difference if any. 35 & 38 of evidence act . v Twin Jewellers Association 29. it has been provided that a notification will become effective on the date it issued. Same view was observed in the case of State of U. To overcome the problem created by this judgement . if duty finally assessed is 28 116 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. Supreme court had held in some earlier cases that notification only become effective when it published in official gazette and made available for sale. After final assessment. In such cases. the Customs Officer may require importer to execute a bond for twice the difference in duty. cetral excise and custom . If the imported goods were warehoused after provisional assessment. it has been provided that the notification will be published and made available for sale by the director of publicity & public relation. unless contrary is proved. 1962 29 30 31 Page 20 . on the day the notification is issued30.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW official record evidencing public affairs. It is not necessary for government to prove that it was made available for sale. but Customs Officer still deems it necessary to make further enquiry. Mere publishing of notification in official gazette will be enough. assessment is done on provisional basis. difference is paid by importer or refunded to him as the case may be. There is a gap between issue of notification and publication in the official gazette. 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. Goods can be cleared after payment of duty provisionally assessed and after providing the security. Courts is required to presumes its contents as genuine u/sec.P.

rules or notification or to give some information. If such trade notice circular or trade notice is beyond the provision of the Act or Rules. However. etc. Trade circulars and trade notices: It is normal for government to issue trade circulars. if felt to be against law. Such trade circulars / trade notices do not have any legal force and they are not binding on taxpayers or quasi judicial authorities. The bond is called as 'P D Bond' (Provisional Duty Bond). Bank guarantee can also be given as a security. CONCLUSION 32 section 18(2) (a) of custom act Page 21 . quasi judicial authorities or courts. These are issued to clarify the views of the government in respect of any Act. The bond is with security or surety. the department. trade notices and clarification from time to time. The circulars/trade notices are not binding on assessee. such trade notice cannot be binding on government also. which issued the trade notice with prospective effect.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW higher32. as there is no estoppels against a statute.

Thus whenever it has been found that government has collected tax without proper authority of law. and not with the problems. If any amount is collected under a law which is found to be illegal. in passing their judgment. 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. Sources of law concerns itself with the methodology. the effect of these n provision is that any taxation which is found to levy that tax. and export of goods from. Article 300 A of the constitution states that no person shall be deprived of its property save by authority of law . Article 265 of the constitution states that no tax shall be levied or collected except by authority of law. especially upon matters on which there are no pre-existent legislation. and the rights and liabilities of individuals are determined on the basis of customs. foreign decisions (Standard of Justice). In some countries. BIBLIOGRAHY Page 22 . Customs. modes of reasoning and the interpretation of law. juristic or authoritative writings. but it is easy to define about law. which is to provide justice to the people. the decisions of the superior courts. also form a source of law. Sources of law are the tools. air or land. The judges. The law generally comes from these sources. Sometimes customs are abrogated by the legislation. moral considerations and public opinion. These rules are applicable for imported good not applicable to exported goods. methods a techniques that are availed by the legal system in order to carry out its social goals and objectives. too. There are provisions for draw back of custom and excise duty paid on inputs. take help from numerous other sources of law to. There are separate provisions for baggage. most effectively and adequately. Sources of law are an important facet to law as it helps in giving a definition to law. Goods can come through post parcel or as baggage with passengers. and at other times are confirmed by their decisions. government cannot retain such amount and must repay such illegally collected tax.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW It is difficult to define law. Customs duties levied by central government import of goods into. play a very important parting the framing of laws. principles and rules of specified law. India. Good are imported or exported from India through sea. or precedents. especially in Common Law countries. Procedure naturally varies depending on mode of import or export. courts have held that the illegally collected taxes must be refunded subject to provision of unjust enrichment in respect of indirect taxes. and no precedent to cover the matter.

Bharat Law House Pvt. 3. www. 7. www. Mohd.indiandata.mumbaiport.eximkey. 24th ed. Websites : 1. 2010. 3rd ed.wikipedia.indiamart.dateyvs. Ltd. www. 5. Rafi. 11. 15.) www. Taxmann Publications ( 8. cenexcisenagpur.envfor. “Bharat’s Indirect Taxes”.in/ppin/IpmImport 6.www.S.nic. en. www.jeena.DELEGATED LEGISLATION UNDER CUSTOM AND EXCISE LAW Page 23 . 16. 4.nic. 14. 9. “Taxmann’s indirect taxes”.

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