SUPREME COURT

• CIVIL LAWS

The following directions alongwith a clarification were given:

[i] In addition to normal mode of service, service of Notice(s) may be effected by E-Mail for which the advocate(s) on-record will, at the time of filing of petition/appeal, furnish to the filing counter a soft copy of the entire petition/appeal in PDF format;

[ii] The advocate(s) on-record shall also simultaneously submit E-Mail addresses of the respondent(s) Companies/Corporation(s) to the filing counter of the Registry. This will be in addition to the hard copy of the petition/appeal;

[iii] If the Court issues notice, then, in that event alone, the Registry will send such an additional notice at the E-Mail addresses of the respondent(s) Companies/Corporation(s) via E-Mail;

[iv] The Registry will also send Notice at the E-Mail address of the advocate(s) for respondent(s) Companies/Corporation(s), who have filed caveat. Advocate(s) on-record filing caveat shall provide his/her E-Mail address for effecting service; and

[v] Within two weeks from today, Cabinet Secretariat shall also provide centralized E-Mail addresses of various Ministries/Departments/ Regulatory Authorities along with the names of the Nodal Officers, if already appointed, for the purposes of service.

Clarification:

The above facility is being extended in addition to the modes of service mentioned in the existing Supreme Court Rules. This facility, for the time being, is extended to commercial litigation and to those cases where the advocate(s) on record seeks urgent interim reliefs.

• FAMILY LAWS

Section 24 provides that in any proceeding under the Act, the spouse who has no independent income sufficient for her or his support may apply to the court to direct the respondent to pay the monthly maintenance as the court may think reasonable, regard being had to the petitioner's own income and the income of the respondent. The very language in which Section is couched indicates that wide discretion has been conferred on the court in the matter of an order for interim maintenance. Although the discretion conferred on the court is wide, the Section provides guideline inasmuch as while fixing the interim maintenance the court has to give due regard to the income of the respondent and the petitioner's own income. In other words, in the matter of making an order for interim maintenance, the discretion of the court must be guided by the criterion provided in the Section, namely, the means of the parties and also after taking into account incidental and other relevant factors like social status; the background from which both the parties come from and the economical dependence of the petitioner.

Since an order for interim maintenance by its very nature is temporary, a detailed and elaborate exercise by the court may not be necessary, but, at the same time, the court has got to take all the relevant factors into account and arrive at a proper amount having regard to the factors, which are mentioned in the statute.

• SERVICE LAWS

Held, In the instant case, as per the records, in the opinion of the Medical Board, the condition of the Appellant cannot be said to have triggered on account of the military service and in the opinion of the Medical Board, the disease was not at all attributable to the military service.

The Medical Board is an expert body and they take into consideration all relevant factors and essential practice before arriving at any opinion and its opinion is entitled to be given due weight, merit credence and value.

Board in the instant case, gave unanimous opinion that the disease was neither attributable to nor aggravated by the military service. The findings of the Medical Board were accepted by the Division Bench of the High Court, which does not call for any interference. Appellant not entitled to the disability pension. Appeal was dismissed.

Automobile Products India Ltd. v. Das John Peter & Ors. (Decided on 20.07.2010) MANU/SC/0494/2010

A criminal complaint seeking possession of the servant quarter at the instance of Company against the accused was maintainable and cognizance thereof was rightly taken by the Magistrate but committed a grave error in rejecting it on technical grounds, instead of deciding it on merits. Eviction of the employee in the instant case from the servant quarter is inevitable, since he committed default of his own promise. Accordingly, accused persons directed to vacate the premises and to hand over its peaceful vacant possession to the Company.

• CRIMINAL LAWS

Mohd. Ayub Dar. v. State of J&K (Decided on 21.07.2010) MANU/SC/0497/2010

Held, The Appellant herein on one hand has chosen to rely upon a part of the confession and on the other hand, he asserted that he had, at no point of time, made any confessional statement. The confession was indeed made by the Appellant and the details given in the confession and the meticulous planning that went behind committing murder, not only render it voluntary, but truthful also. The confession thus not only a good, voluntary and truthful but a reliable one also. Once confession made Under Section 15 of the TADA Act is accepted, there is no necessity of any other evidence being required. Appeal was dismissed.

Evidentiary value of extra judicial confession depends upon trustworthiness of the witness before whom confession is made. Law does not contemplate that the evidence of an extra judicial confession should in all cases be corroborated. It is not an inflexible rule that in no case conviction can be based solely on extrajudicial confession. It is basically in the realm of appreciation of evidence and a question of fact to be decided in the facts and circumstances of each case.

The evidence of both the prosecution witnesses held to be slippery, from which it was difficult to hold with certainty that any extra judicial confession in fact was made by the Appellant. The witnesses of the extrajudicial confession does not inspire confidence and merely on the ground of recovery of weapon of crime at the instance of the Appellant, it was unsafe to sustain the conviction of the Appellant. Accordingly, Appellant was granted the benefit of doubt and the Appeal was allowed.

• EXCISE  LAWS

The Hon’ble Supreme Court while deciding this matter namely National Leather Cloth Manufacturing Co. Vs. Union of India (UOI) and Anr. dated July 23, 2010, gave its finding on the issue as to whether the cost of packing of fabric in hessian cloth, which, according to the Assessee, is not required for sale of their goods at the factory gate and is necessitated to protect the fabric from damage during the course of transportation to up-country customers is includible in the assessable value of the coated fabric manufactured by the Assessee for the purpose of levy of excise duty?

In view of the statutory provisions of Section 4 and 4(1) of the Central Excise Act, 1944 which provides as to how the value of excisable goods is to be determined, evidently, by including the cost of packing in the value of goods, the legislature has sought to extend the levy beyond the manufactured article itself and, therefore, the provision has to be strictly construed. Further in accordance to various precedents on similar issue, since, as admitted in the instant case, the fabric manufactured by the Assessee was sold by the Assessee to the wholesalers at the factory gate only in polythene bags, the further packing of three rolls in hessian cloth was not in the course of normal delivery to the customers in the wholesale trade at the factory gate and was, therefore, not required to make the product marketable. The additional packing in the nature of a secondary packing, which was done for the purpose of convenience of the up-country customers in the transportation of the goods manufactured by the Assessee. Accordingly the cost of secondary packing in hessian cloth cannot be included in the value of the goods in terms of Section 4(4)(d)(i) of the Act for the purpose of assessment of excise duty.

Held, after examined the facts of the instant case on the touchstone of the test laid down in the many cases, it was admitted that the fabric manufactured by the assessee was sold by the assessee to the wholesalers at the factory gate only in polythene bags, the further packing of three rolls in hessian cloth was not in the course of normal delivery to the customers in the wholesale trade at the factory gate and was, therefore, not required to make the product marketable. The additional packing in the nature of secondary packing was done for the purpose of convenience of the up-country customers in the transportation of the goods manufactured by the assessee. Hence Court held that the cost of secondary packing in hessian cloth cannot be included in the value of the goods in terms of Section 4(4)(d)(i) of the Act for the purpose of assessment of excise duty.

HIGH COURT

• SALES TAX

M/s In Bloom The Leela Kempinski Bombay .v. The Commissioner of Sales Tax Maharashtra State (Decided on 15.07.2010) MANU\MH\0781\2010

In the instant case the invoice submitted by the applicant and on the basis of which, the decision has been given by the Tribunal shows description of the goods as "fresh flowers bouquet". Court considered the simple arrangement of fresh flowers and answered both the issues in the negative. Schedule Entry A36 reads as a "Natural flowers including Mahua flowers". Each product will have to be examined on its own facts and determined for the purpose of its taxability.

• SERVICE

Regularization 0f the services -consequential benefits- Challenged thereto- Whether the authorities of the State can discriminate one applicant vis-a vis another in the matter of appointment to the Road/Building Construction Department by denying such appointment in that department to a senior while offering appointment to a junior in the select list?

On considering the rival submissions and the relevant facts Court find that the respondent -petitioner has made out a case that person junior in the merit list was offered appointment as Assistant Engineer in the Road Construction Department and his representation had merit but has been kept pending in-spite of principle of law having been clarified by Court in the case of Daya Shankar Mishra.Court find that the writ petition of the respondent-petitioner deserved to be allowed even on merits in the light of views taken by Division bench of this Court subsequently in the case of Syed Jamil Ashgar (Supra). Hence Court find no merit in this appeal and it is accordingly dismissed. In the light of the views taken by Court the respondent-writ petitioner will be entitled to appropriate reliefs .

No perversity in the approach of the Labour Court nor there is any error of law, which is apparent on the face of the record warranting interference under Article 226 of the Constitution of India. In the instant case, the Labour Court was satisfied by appreciating the evidence on record that the scheme itself had come to an end, after completion of the work, and therefore, question of regularization does not arise and the status of permanency cannot be granted.

Duty leads to grave misconduct -Integrity to devotion to duty missing -Lack of devotion gross and culpable- whether the misconduct was a grave misconduct

As it would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude, dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the 'integrity to the devotion of duty' is missing and the lack of devotion' is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression 'integrity to the devotion of duty'. Every concept has a core value and a fringe value. Similarly every duty has a core and a fringe. Whatever is at core of a duty would be the integrity of duty and whatever is at the fringe would not be the integrity but may be integral to the duty.

• CIVIL

Petition under Article 226 of the Constitution of India - Arrangement of "public hearings"- On the Civil Liability for Nuclear Damage Bill, 2010- Before the introduction of the Bill in the parliament - Whether public hearing was required?

A public hearing is required only when a specific statute requires one to be conducted, but it is always open to the Government to hold public hearings in other instances. In the process of law making, which are governed by a separate set of rule, the theory of public hearing as stipulated under the Environment Protection Laws cannot be incorporated into the rules of procedure of Lok Sabha, which are already codified and Court didn’t find any sufficient grounds to grant the prayer sought for in the Writ Petition as it would amount to enacting a separate set of rules of procedure, which this Court is not entitled to do .

• LIMITATION LAWS

Appeal under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 - Condonation of delay - Whether delay in filing the Appeal before the first Respondent under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 can be condoned?

Held, relying on the Case Land Acquisition, Ananinag and another Vs. Mst. Katiji and others, Court held that the petitioners have shown sufficient cause for condonation of delay and the first Respondent ought to have condoned the delay and allowed the parties to agitate the matter on merits. Therefore, writ petitions are allowed and the Impugned Orders are set aside and the delay in filing the Appeal before the first Respondent under Section 41(2) of the Tamil Nadu Shops and Establishment Act, 1947 is condoned.

• DIRECT TAXATION

Held, the provisions of chapter XVI I are relevant only for ascertaining the deductibility of the tax at source and not for the actual deduct ion and payment for attracting the provisions of sect ion 40(a) Income Tax Act 1961. Since in the case in hand when the assessee had deducted the tax in the last month of the previous year i.e. March 2005 and deposited the same before the due date of filing of the retune Under Section 139(1) then it is covered under clause” A" of Section 40(a) Income Tax Act 1961 so deduction had to be allowed Under Section 40(a) Income Tax Act 1961. Hence, the assessee's case covered under the main provisions of exist ing law then no need to go to the issue of prospective or retrospective effect of the amendment in the provisions by the Finance Act, 2010.