INTERIM ORDER AGAINST PUBLIC AUTHORITIES

[Mr. M. GOVINDARAJAN]

In indirect tax cases an assessee is having right to file appeal against the order of Adjudicating authority before the appellate authorities. The right of filing appeal is conditional as held by the Supreme Court in ‘Vijay Prakash D. Mehta V. Collector’ – 1988 (8) TMI 109 - SUPREME COURT OF INDIA Before the filing the appeal by the assessee has to pay the demand of tax/duty as confirmed by the Adjudicating Authority along with interest, if any and also penalty. The evidence as to the payment of confirmed demand of duty along with interest, if any and also penalty is to be produced while filing the appeal. The provisions of indirect taxes give an option to the assessees filing appeal to file a stay petition for operation of the order of the lower authority and also to dispense with the pre deposit.

The Supreme Court in ‘Alex Enterprises V. Union of India’ –2009 (3) TMI 2 - SUPREME COURT held that it may be stated that under Customs Act, 1962 appeals pass through two stages i.e., stage of stay hearing and the stage of appeal hearing. The first stage is to cross the hurdle of pre deposit.   Only after that stage subject to compliance to the interim order, if any, assessee gets right to be heard on appeal in full length and fair opportunity is granted to place his case to decide the contentious issues involved.

The purpose of passing interim orders is well explained by the Supreme Court in ‘Ravi Gupta V. Commissioner of Sales Tax’ – 2009 (3) TMI 200 - SUPREME COURT OF INDIA It was held that the main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the framework of the legislation and to ensure that no irreparable injury is occasioned.   Courts are therefore required to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and both litigants before the Court are equally dealt under law.   Every court is made to ensure that no prejudice is caused to the litigants and no decision is made hurriedly to burry justice and virtually to do injustice.

While interest of revenue weights consideration, undue hardship that an assessee may suffer by an interim order also equally invites attention of the Courts while hearing interim application.

The Supreme Court elaborately discussed about the interim orders passed in Revenue matters in ‘Assistant Collector of Central Excise, West Bengal V. Dunlop India Limited and others’ – 1984 (11) TMI 63 - SUPREME Court In considering the interim orders passed in revenue matters the Supreme Court have come across cases where the collection of public revenue has been seriously jeopardized and budges of Governments and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders passed by the Courts. In fact, instances have come to the knowledge of Supreme Court where the Governments have been forced to explore further sources for raising revenues, sources which they would rather well leave alone in the public interest, because of the stays granted by courts. Where an entire service is left in a stay of flutter and unrest because of interim orders passed by courts, leaving the work they are supposed to do in a state of suspended animation.

The Supreme Court have come across cases where –

• buses and lorries are being run under orders of Court though they were either denied permits or their permits had been cancelled or suspended by transport authorities;
• liquor shops are being run under interim orders of court;
• the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the end of the year the contractor has paid nothing but made his profits from the shop and walked out;
• dealers in food grains and essential commodities have been allowed to take back the stocks seized from them as if to permit them to continue to indulge in the very practices which were to be prevented by the seizure;
• land reform and important legislations have been stayed by courts.

The Supreme Court observed that incalculable harm has been done by such interim orders.   All this is not to say that interim orders may never be made against public authorities.   There are of course, cases which demand that interim orders should be made in the interests of the justice. Where gross violations of the law and injustice are perpetrated or are about to be perpetrated it is the bounden duty of the Court to intervene and give appropriate interim relief.

The Supreme Court further observed that in cases where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizen’s faith in the impartiality of public administration, a Court may well be justified in granting interim relief against public authority.   But since the law presumes that the public authorities function properly and bona fide with due regard to the public interest, a Court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative, burdensome inconvenience or orders preventing collection of public revenue for non better reason than the parties have come to the Court alleging prejudice, inconvenience or harm and that prima facie case has been shown. There can be and there are no hard and fast rules.   But prudence, discretion and circumspection are called for. There are several other vital considerations apart from the existence of a prima facie case. There is the question of balance of convenience. There is the question of irreparable injury.   There is the question of public interest. There are many such factors of worthy of considerations.

However the Supreme Court wondered why in the case of indirect taxation where the burden has already been passed on the consumer, any interim relief should at all be given to the manufacturers dealers and the like.