IMPORTANT POINT
Section 129(6), Customs Act is neither ultra vires nor retrospective.

Headnote:(a) Constitution of India – Chapter III – Fundamental rights – Restrictions – Vires – Restriction, if prima facie violative of the fundamental right and applied without due process of law and unreasonable will be vitiated – Law providing for such restriction would be unconstitutional. (Paras 7 and 11)
        (1989) 2 SCC 574 – Relied upon
        (b) Administration of Justice – Judicial Review – Legislative determination of what restriction to impose on a freedom is final and conclusive – It is not open to judicial review. (Para 12)
        (c) Customs Act, 1962 – Section 129(6) – Restrictions imposed on retired President/ Vice-President on legal practice – Not absolute but limited to CESTAT only – Not unreasonable. (Paras 20 and 29)
        (1989) 2 SCC 574; (1993) 3 SCC 723; (1986) 3 SCC 20; AIR 1962 SC 201; (1987) 2 SCC 692; AIR 1977 SC 36; (1985) 1 SCC 479; (1995) 1 SCC 732 – Relied upon
        (d) Customs Act, 1962 – Section 129(6) – Restrictions – Aimed not only to adhere to but to enhance the values and dignity of the legal profession – Would add to the confidence of the common litigant in the administration of justice and the performance of duties by the Tribunal. (Para 30)
        (1996) 3 SCC 342 – Relied upon
        (e) Judicial Bias – Test to determine – Reasonable possibility – Bias must be shown to be present – Automatic disqualification on apprehension of bias – Greater degree of flexibility required. (Paras 34 to 36)
        (2002) 2 AC 357 – Relied upon
        (1924) 1 KB 256 KBD – Referred
        (f) Bias – Doctrine of real likelihood and reasonable suspicion – Suspicion, however strong or reasonable, is not enough. (Para 40)
        AIR 1957 SC 425; (2000) 10 SCC 502; (2001) 1 SCC 182; (1974) 3 SCC 459; (2001) 2 SCC 330 – Relied upon
        (g) Interpretation of Statutes – Distinction between statutory and fundamental rights – Reasonable restrictions can be imposed – Distinction between a law enforced retrospectively and a law that operates retroactively – Rights are subject to restrictions and restrictions are subject to judicial review – Enforcement of the restriction retroactively u/s 129(6), Customs Act, 1962 would not be impermissible. (Para 44)
        (1881) 12 QB 149; (1957) 96 CLR 261; (2006) 6 SCC 289; (2000) 3 SCC 607 – Relied upon
        (h) Customs Act, 1962 – Sections 146A and 129(6) – Both these provisions would have to be read in conjunction with and harmoniously. (Para 52)
       Facts of the case:
        Vires of Section 129(6) of the Customs Act, 1962 is challenged in these appeals.
       Finding of the Court:
        Section 129(6) is neither ultra vires nor retrospective.

JUDGMENT

Swatanter Kumar, J.

1. Leave granted.

2. This judgment shall dispose of all the above three appeals, as common questions of law arise therefrom, on somewhat similar -facts for consideration of this Court. In these appeals, the following questions have been raised :

“(i) Whether Section 129(6) of the Customs Act, 1962, which stipulates that on demitting office as Member of the Customs Excise and Service Tax Appellate Tribunal (hereinafter referred to as the “CESTAT”) a person shall not be entitled to appear before the CESTAT, is ultra vires the Constitution of India?

(ii) Whether the said provision applies to the petitioner, as it was introduced after the petitioner had not only joined as Member of the CESTAT but also demitted office as such Member?”

3. We may notice the basic factual premise from which the above legal questions have arisen for consideration of this Court. Primarily, we would be referring to the facts of SLP (C) No.8482 of 2010 titled P.C. Jain v. Union of India & Ors.

4. The appellant joined the Indian Customs and Central Excise Service, Class - I (later called Group ‘A’), in the year 1956, where he served for a number of years, in different capacities. On 1st November, 1990, the appellant was selected as a Member (Technical) in the Customs, Excise and Gold (Control) Appellate -Tribunal (CEGAT). The appellant demitted his office as Member (Technical) of CEGAT on 7th March, 1993. As he was a law graduate, he was enrolled as an advocate with the Bar Council of India on 18th March, 1993. The CEGAT was replaced by the Central Excise and Service Tax Appellate Tribunal (for short, ‘the CESTAT/Tribunal’. Vide Finance Act, 2003, Section 129(6) was introduced to the Customs Act, 1962 (for short ‘Customs Act’) in terms of which, the members of the Tribunal were debarred from appearing, acting or pleading before it. Aggrieved by this amendment, the appellant along with other appellants in other appeals claimed to have met the Finance Minister and submitted a detailed representation bringing out the inequities and arbitrariness claimed to be resulting from the insertion of Section 129(6) of the Customs Act. The Tribunal, on 9th July, 2007, passed an order holding that the appellant or the persons similarly situated, were not entitled to appear before it in view of the bar contained in Section 129(6) of the Customs Act. In the meanwhile, the Ministry also responded negatively to the representations submitted by the appellants. Faced with these circumstances, the appellants filed a writ petition before the High Court of Delhi at New Delhi being Writ -Petition No.6712 of 2007, which was heard by a Division Bench of the High Court and was dismissed vide judgment dated 13th April, 2009, hence, giving rise to the present appeals.

5. The Tribunal took the view that the word ‘appellate tribunal’ as referred to in Section 129(6), is defined under Section 2(1B) of the Customs Act to mean the Customs, Excise and Service Tax Appellate Tribunal constituted under Section 129 of the Customs Act and any person ceasing to hold office as President, Vice-President or Member cannot appear before the Tribunal or its Benches anywhere in India in view of the bar in Section 129(6). One of the appellants, namely, N.K. Bajpai, was relieved from the case. The appellants had contended before the High Court that Section 129(6) of the Customs Act is ultra vires Articles 14, 19(1)(g) and 21 of the Constitution of India. It was further contended that, in any event, Section 129(6) has no applicability to the appellants, in view of the fact that the amendment was prospective, but when the appellants were appointed to the Tribunal as well as when they demitted office, the said provision was not a part of the Customs Act. Thus, they prayed for consequential relief. The High Court, -by a detailed judgment, rejected both these contentions. It was of the view that the predominant rationale for introduction of this provision was to strengthen the cause o

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2012 Supreme(SC) 235

IMPORTANT POINT Section 129(6), Customs Act is neither ultra vires nor retrospective.

Cases Referred (17)

IMPORTANT POINT
Section 129(6), Customs Act is neither ultra vires nor retrospective.