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[No.142]
December
10, 2005 |
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Supreme
Court |
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The present appeal
was filed challenging imposition of differential duty by the commissioner on
repacking of detergent powder and whether cost of repacking of detergent powder,
which did not amount to manufacture, includible in assessable value of powder.
The appellants who were engaged in manufacture of detergent powder were alleged
to have evaded duty by removing AMS in bulk packs of 25 kgs and further packing
the power in 20gms and 30gms sachets. The manufacturing of detergent powder fell
under Chapter 34 of the Schedule to the Act 1985.The collector issued a show
cause notice and demanded the differential duty from the appellants. On the
other hand the appellants contended that repacking did not constitute ‘manufacture’
under Section 2(f) of the Act, therefore, the department was not entitled to
levy differential duty on the price of the sachets. The commissioner confirmed
the show cause notice and held that there was suppression of duty. The
appellants brought the matter before the tribunal, which dismissed the same.
The Supreme Court
held that the levy of excise duty is on the "manufacture" of goods. The
excisable event is the manufacture. The levy is on the manufacture and the
measure or the yardstick for computing the levy was the "normal price" under
Section 4(1)(a) of the Act. The concept of "excisability" is different from
the concept of "valuation". In the present case only valuation was into
consideration and there was no dispute that AMS fell under Sub-heading 3402.90
of the Tariff and was dutiable under Section 3 of the Act. In the case of Union
of India and Ors. etc. v. Bombay India International Ltd. etc, it was observed
that the measure of levy did not conclusively determine the nature of the levy.
It was held that the fundamental criterion for computing the value of an
excisable article was the price at which the excisable article was sold or was
capable of being sold by the manufacturer. It was further held that the price of
an article was related to its value and in that value, we have several
components, including those components which enhance the commercial value of the
article and which give to the article its marketability in the trade. Therefore,
the expenses incurred on such factors, inter alia, have to be included in the
assessable value of the article up to the date of the sale, which was the date
of delivery.
The key question
which was required to be decided by the Tribunal in the present case was
concerning determination of the "assessable value" of 25 kgs. bulk packs of
AMS from the appellants’ factory at Mandideep, Bhopal. If the activity of
repacking did not amount to manufacture at the relevant time, was the
commissioner justified in computing the assessable value of the bulk packs based
on the retail price of 20 gms. and 30 gms. sachets sold through the depots of
the appellants? The Tribunal did not decide the question. Similarly, in the
context of suppression and in the context of invocation of the extended period
of limitation, the Tribunal failed to take into consideration the argument of
the appellants that they were not guilty of suppression as the law was amended
vide Finance Bill, 1994, when the activity of "repacking" was treated as "manufacture"
for the first time. Thus, the question was required to be decided by the
Tribunal in the light of the provisions of Section 4(4)(d)(i) of the said Act.
The civil appeal
filed by the assessees was allowed and the impugned judgment of the tribunal was
set aside and the matter remitted to the tribunal for its fresh decision.
The present appeal
was filed challenging certain pensionery benefits granted to the respondent by
the High Court who was removed from service due to long absence from it. The
respondent, employed as an assistant in the Coimbatore branch of the LIC was
transferred to Attur. However, he did not join duty and sought for privileged
leave. Thereafter he claimed leave on medical grounds and continued to remain
absent till the time the charge sheet was issued to him. As the period of
absence from duty was about 233 days, LIC asked the respondent to appear before
the doctor designated by it. He did not appear before the court and the
disciplinary authority finding him guilty directed for his removal from service.
Thereafter the respondent raised an industrial dispute The Industrial Tribunal
concluded that the enquiry had been properly held, the respondent was stubborn
and adamant and there was no justifiable reason for not reporting on duty. The
Tribunal further held that even in spite of all the lapses highlighted,
punishment of removal from service was harsh and accordingly directed
reinstatement. The writ petition filed by LIC against the same was dismissed.
Thereafter a letters patent appeal was filed. The High Court held that on the
facts of the case, the conduct of the respondent disclosed gross disobedience
and the proved misconduct was one of deliberate disobedience. The appeal was,
therefore, allowed and the award of the Tribunal directing reinstatement with
back wages was set aside. After doing so, the High Court granted some reliefs,
which has been challenged in this appeal. The question that arose was whether
Industrial Court has power to interfere with the decision of the management
The Supreme Court
held that, Industrial Tribunal or Labour Court was expected to interfere with
decision of management under Section 11A only when it was satisfied that
punishment imposed by management was wholly and shockingly disproportionate to
degree of guilt of workman concerned. Industrial Tribunal or Labour Court had to
give reasons in support of its decision. Power had to be exercised judiciously
and mere use of words "disproportionate" or "grossly disproportionate"
by itself would not be sufficient. Though under Section 11A, the Tribunal has
the power to reduce the quantum of punishment it has to be done within the
parameters of law. Possession of power is itself not sufficient; it has to be
exercised in accordance with law It further held that, pension rules clearly
justified the stand of the appellant that the respondent was not entitled to
receive any pension or benefit under the scheme. However, respondent was not
liable to refund the wages paid to him during pendency of the proceedings
This appeal was
filed against an order of the Madras High Court whereby the Single Bench of the
High Court had acquitted the accused by its order dated 11th July, 2001 passed
in Criminal Appeal No. 231/2000. The Deputy Superintendent of Police, Chennai,
had filed the present appeal against the order of acquittal. The respondent, a
senior I.A.S. Officer, was charged of offence punishable under sec 13 (2) read
with sec 13(1) (e) of the Prevention of Corruption Act, 1988.
The income tax
authorities had conducted a raid on his house on 14 sept 1993, and procured
large amount of cash, gold and documents relating to purchase of immovable
property It was pointed out by the appellant that in fact all the money belonged
to his wife as she was running three companies and she had admitted that out of
the unaccounted sale of rims of cycle as well as the leather shoe uppers without
bills she earned this huge wealth and she had owned it. Therefore, recovery in
this raid by Income-tax department cannot be considered to be from exclusive
possession of the accused. Especially when the wife had accepted that she had
earned all the money by sale of goods without bill.
The basic question
that emerged was that whether the accused could be saddled with all the
unaccounted money at his hand or not. It is the admitted position that both the
husband and wife were living together. Therefore, in this context, the question
arises whether the joint possession of the premises by the husband and wife and
the unaccounted money that has been recovered from the house could be said to be
in exclusive possession of the accused.
The Supreme Court
held that the initial burden of proof lies on the prosecution, Section 5(3) does
not create a new offence but only lays down a rule of evidence, enabling the
court to raise a presumption of guilt in certain circumstances- a rule which is
a complete departure from the established principle of criminal jurisprudence
that the burden always lies on the prosecution to prove all the ingredients of
the offence charged, and that the burden never shifts on to the accused to
disprove the charge framed against him. He has satisfactorily explained that the
whole money that has been recovered from his house does not belong to him and it
belonged to his wife. Therefore, he had satisfactorily accounted for the
recovery of the unaccounted money. Thus were premises in question is jointly
shared by the wife and the husband and the wife having accepted the entire
recovery at her hand, husband could not be held guilty. The court upheld the
order of acquittal.
The present appeal
was filed challenging the conviction of the appellant in a rape case. The
appellants alleged that the prosecutrix had consented to the act and hence he
was not guilty . The appellant had committed rape upon the prosecutrix. On
complaint, police official reached hospital for inquiry but did not register any
case, presumably thinking that the age of the prosecutrix recorded in the
school-leaving certificate was more than 16 years and that she was a consenting
party. However on the complaint of the father of the prosecutrix to the
commissioner of police, reinvestigation was ordered. He was accused under
Sections 366/376 Indian Penal Code 1860 (IPC) and Section 57 of the Bombay
Children’s Act. On completion of the trial the appellant was convicted and
sentenced.
The Supreme Court
held that the expert medical evidence is not binding on the ocular evidence. The
opinion of the medical officer is to assist the court as he is not a witness of
fact and that the evidence given by the medical officer is really of an advisory
character and not binding on the witness of fact. In the case of determination
of date of birth of the child, the best evidence is of the father and the
mother, prosecutrix was born on 29th November, 1964, is supported by the
unimpeachable documents i.e the birth register Book No. 24 of Municipal
Corporation of Greater Bombay. These are the statements of facts. If the
statements of facts are pitted against the so called expert opinion of the
doctor with regard to the determination of age based on ossification test
scientifically conducted, the evidence of facts of the former will prevail over
the expert opinion based on the basis of ossification test. It further held that
prosecutrix was ravished sexually by force and against her wishes. It upheld the
conviction of the accused.
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High Courts |
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Allahabad
The petitioner was
an applicant for the post of stenographer advertised by Rajput Regimental
Centre, Fatehgarh along with other posts. The note appended to the advertisement
required applications along with testimonials to reach the office. The
petitioner had the requisite qualification to apply for the post. She applied
and was selected and was placed at serial no.2 in the selected list. Petitioner
made a representation to Chief of Army Staff stating that the advertisement
provided the qualification to be matriculate with requisite speed of short hand
and typing the concerned officer has raised a doubt on her first year Diploma
Certificate in spite of medical examination and police verification completed
she was not considered for appointment, she requested that since she will
complete the maximum age limit of 25 years the appointment letter be issued to
her. She has prayed for a writ of certiorari calling for the records and
quashing the letter.
The court held that
when a candidate holds the minimum qualification provided in the rules and in
the advertisement, the fact that she could not produce the certificate of the
additional qualification by the last date provided by the appointment authority
could not be a ground to deny appointment to her. The petitioner shall be given
appointment without any delay with seniority with effect from the date she was
entitled to be appointed if her candidature was not struck out.
Gujarat
The dispute between
the parties lies in a very narrow compass- As to whether the order of the
Commissioner (Appeals) is served on the petitioner or not? The petitioner vide
communication dated 16th September, 2004 has categorically stated that on
inquiry with the postal department, the petitioner has been informed that no
such delivery has been effected by registered post. This communication has been
addressed to the Commissioner (Appeals) and is in context of the earlier
communication dated 1st September, 2004 from the superintendent stating that the
Order-in-Appeal dated 24th November, 2003 issued by Commissioner (Appeals) had
been dispatched to the petitioner by registered post on 6th September,2003. In
light of the aforesaid fact situation, time was sought for on behalf of the
respondents to ascertain the factual position from the records.
The respondent
authorities have failed to show by tendering any evidence on record that in fact
the order has been served as in absence of the acknowledgement receipt in
possession of the respondent authorities, the certificate issued by the postal
authorities remain undisputed. The petition was accordingly allowed.
Madhya Pradesh
The assessee was a
Government of India undertaking formed under the provisions of the Madhya
Pradesh Co- operative Societies Act. In the assessment year 1987-88 due to non
–disclosure of one entry, certain additions were made. This gave rise to
initiation of penalty proceedings. The explanation of assessee in substance was
that it was not due to any deliberate intention on its part but it occurred due
to the fact that accounts were prepared in the head office, that the amount in
question was at the disposal of in reserve account. It was also contented that
the assessee being in the nature of a non-profit making society under the
control of the Central Government, it never had any intention to conceal any
income or entry.
The court held,
dismissing the appeal, that the assessee being a non-profit organization managed
and controlled by the Government of India for supply/ distribution of
electricity in the State, it could not be held that it had any deliberate
intention to evade payment of tax.
Andhra Pradesh
The proprietor of
the Petitioner Hotel obtained a term loan and cash credit facility from the
respondent Bank by creating an equitable mortgage of a building, and petitioner
Nos. 2 to 5 standing as guarantors. The Bank filed an application before the
Debts Recovery Tribunal for sale of the mortgaged properties. In the meanwhile
the Bank also initiated proceedings under the provisions of the Securitisation
and Reconstruction of Financial Assets and Enforcement of Security Interest Act,
2002 and called upon the first petitioner to pay the loan amount within 60 days.
In a writ petition the petitioner contended that the bank having initiated
proceedings under the 1993 Act could not have proceeded simultaneously under the
Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002.
It was held
dismissing the petition that the 2002 Act was enacted for enforcement of
security interest of the lending banks. The requirement of law was only to issue
notice under section 13(2) of the 2002 Act and nowhere does it bar the Bank from
proceeding under the 2002 Act during the pendency of an original application
before the Debts Recovery Tribunal.
Calcutta
The appellant
advanced an amount as loan to one T for purchasing equity shares in the
respondent company. Thereafter, it entered into a formal agreement in respect of
repayment of the loan. Later T agreed to transfer the said shares in the
respondent company to the appellant by way of repayment of the loan & handed
over the shares and transfer deeds for doing the needful. It was also stated
that the appellant would be entitled to all benefits accrued in respect of the
said shares. When the appellant lodged the transfer deeds with the respondent,
it refused to register the transfer on the ground that the transfer was in
violation of the provisions of the Securities Contracts (Regulation) Act, 1956,
because (a) the contract for sale of shares was not on spot delivery basis, (b)
there was difference in the signatures of T on the record of the company and (c)
the stamps affixed on the instruments of transfer had not been cancelled.
Held, dismissing the
appeal, that T had agreed to transfer the said shares to the appellant on
account of repayment of loan received by him. The Company Law Board had
considered all the materials placed before it and thereafter arrived at the
finding of fact that the transaction was hit by the provisions of the Securities
Contracts (Regulation) Act, 1956 and the guidelines issued by the Government of
India.
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Telecom
Regulatory Authority of India (TRAI)
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Notification
No.6-20/2005-B&CS Dated 02.12.2005. The TRAI vide the said notification has
amended regulation 6 of The Register of Interconnect Agreements (Broadcasting
& Cable Services) Regulation, 2004. The same shall come into force from the
date of its publication in the Official Gazette. Vide this notification the
broadcaster shall furnish to the Authority, the information relating to the
interconnect agreement in two parts namely, Part A containing the standard
affiliation agreement/service Contract/memorandum of understanding, duly
authenticated in duplicate. And Part B containing in tabular form the details of
individual agreements, of contracting parties with addresses, service area
covered by the agreement etc.
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RBI |
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APDIR(Series)
Circular No: A. P.
(DIR Series) Circular No. 18 Dated 02.12.2005. The Reserve Bank of India vide
the said circular has brought out detailed Anti-Money Laundering (AML)
guidelines. The AML guidelines would be applicable mutatis mutandis to all
franchisees of AMCs. Vide this circular all AMCs are, therefore, advised to
ensure that a proper policy framework on "Know Your Customer" and Anti
Money Laundering measures, in accordance with the guidelines, is formulated with
the approval of the Board of Directors and put in place before March 31, 2006.
Non-compliance with the guidelines would attract penal provisions of Section
11(3) of the Foreign Exchange Management Act, 1999 (42 of 1999).
DBOD
Circular No:
DBOD.NO.BP. 50/21.04.158/2005-06 Dated 06.12.2005. The Reserve Bank of India
vide the said circular has enclosed draft guidelines on Outsourcing. The main
intention is to provide direction and guidance to banks to adopt sound and
responsive risk management practices for effective oversight, due diligence and
management of risks arising from such outsourcing activities. Vide this draft
guidelines, banks would not require prior approval from RBI for outsourcing
services except when the service provider is located outside India or when the
outsourcing is in relation to doorstep banking.
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| Ministry of Finance |
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Circular No: 9/2005
Dated 30.11.2005. Vide the said circular the rates of deduction of income-tax
from the payment of income under the head "Salaries" under Section 192
of the Income-tax Act, 1961, during the financial year 2004-2005, has been
intimated and certain related provisions of the Income-tax Act have been
explained.
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| Ministry of Consumer Affairs,
Food and Public Distribution |
Cigarettes and
other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and
Commerce, Production, Supply and Distribution (Second Amendment) Rules, 2005
Notification No:
GSR698 (E) Dated 30.11.2005. The Central Government vide the said notification
has amended the Cigarettes and other Tobacco Products (Prohibition of
Advertisement and Regulation of Trade and Commerce, Production, Supply and
Distribution) Act, 2003. The same shall come into force on the 1st day of
January 2006. Vide this notification certain clauses in rule 4, sub-rule (6) and
(7) shall be substituted. And the following sub-rule (8) shall be inserted
whereby a Steering Committee shall be constituted. This Committee will take
cognizance suo moto or look into specific violations under section 5 of the Act.
The Committee shall also evaluate cases related to indirect advertising and
promotion and pass orders thereof.
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| Ministry
of Health and Family Welfare |
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Notification No:
GSR691 (E) Dated 24.11.2005. The Central Government vide the said notification
has amended the Drugs and Cosmetics Act, 1940. The same shall come into force
after the expiry of a period of thirty days from the date of its publication in
the official gazette and are made available to the public. Vide this
notification rule 161B shall be inserted whereby the date of expiry of Ayurveda,
Siddha and Unani (ASU) medicines shall be conspicuously displayed on the label
of container or package of an Ayurvedic, Siddhas and Unani drugs after which
they shall not be in circulation.
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| International Legal
Cases and News |
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Cases
Patent
Grant of summary
judgment for defendants on a claim of trademark infringement by the trial court
is affirmed by the appeal court in the present case where the district court did
not err in finding there was no likelihood of confusion between plaintiff's
"Earth Protector" trademark, and defendants' use of the name for a
fictional company in a movie.
Family Law
In the present case,
the Court of appeals judgment restoring a parent's parental rights is reversed
where there was sufficient evidence for a reasonable fact finder to form a
"firm belief or conviction" that the parent knowingly allowed the
child to remain in conditions that endangered his well-being.
Jurisdiction order
declaring the minors at issue to be dependent children of the juvenile court is
reversed by the California Appellate District Court on appeal where substantial
evidence did not support the finding that there was a substantial risk the
minors would be abused or neglected in the future as a result of their mother's
and father's neglect or abuse
Criminal
Reversal of
defendant's conviction for driving while intoxicated is affirmed by the appeal
court on the ground that there was no probable cause for defendant's warrantless
arrest. An officer had arrested defendant based on other deputies' unexplained
opinions that the appellant was intoxicated.
Immigration Law
In the present case,
petition for review of denial of claims for asylum or withholding of deportation
is denied by the appeal court on the ground that there was no error in the Board
of Immigration Appeals findings regarding changed circumstances, petitioners'
past persecution, and potential for safe relocation in Bangladesh.
News
The interim
government of Haiti has removed five of its ten Supreme Court judges in what it
called an "administrative measure, to improve the efficiency of the court."
It is speculated that the forced retirement of the five is a political response
to the presidential candidacy of Dumarsais Simeus, a Haitian-born US
millionaire. The Constitution of Haiti does not allow dual citizenship, and the
interim government fears that Simeus will cause a political crisis in the
already fragile government. Two of the five judges retired Friday supported an
earlier Supreme Court decision to allow Simeus to run for president because no
one has proven that Simeus is a US citizen. In November, the Haitian Electoral
Council defied the Supreme Court and ordered that Simeus be taken off of the
ballot.
In the case of
Daniel Hernandez et al. v. Victor L. Robles, the Supreme Court of New York by
its decision of December 8, 2005 overturned a lower court ruling that would have
allowed a same-sex marriage in New York City. The appeal court stated that the
role of the courts is "to recognize rights that are supported by the
Constitution and history, but the power to create novel rights is reserved for
the people through the democratic and legislative processes". The court
held that the power to regulate marriage lies with the Legislature and not the
judiciary.
The UK House of
Lords, the highest judicial body of the country, ruled against the government in
a case involving the use of evidence that may have been obtained through
torture. The ruling prohibits the UK courts, and especially the Special
Immigration Appeals Commission, from using evidence that may have been obtained
through torture; it ruled that the government has to indicate where its evidence
against suspected terrorists has been obtained, and if it cannot reveal that
source for national security reasons, it has to produce other evidence
sufficient to lead to a criminal conviction. The ruling will require the Home
Secretary to review all other cases where evidence used to convict terror
suspects was obtained from sources are kept secret. The case was brought on the
behalf of eight men held by the UK government without charge while it tried to
find other evidence it could use against them. The court's ruling will require
that instead of merely demonstrating that the UK government had no active
involvement in using torture to obtain the information, prosecutors must
demonstrate that improper methods were not used in any step of the information
procurement.
The US President has
urged Congress to limit debate on the bill reauthorizing sections of the Patriot
Act and vote soon on the compromise announced by House and Senate Republicans on
Thursday. The original Act "allowed federal investigators to pursue
terrorists with the same tools they already use against other criminals. For
example, before the Patriot Act, it was easier to track the phone calls of a
drug dealer than the phone calls of a terrorist. Before the Patriot Act, it was
easier to get the credit card receipts of a tax cheat than those of an al Qaeda
bankroller." The bill reauthorizes roving wiretaps and FBI access to
library and business records for another four years and allows courts to review
issuances of National Security Letters and permits NSL recipients to consult a
lawyer before complying .
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