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Board not liable to pay any amount to the Bank towards subsidy amount as the Borrower committed default =The Borrower had borrowed money from the Bank for its business and as per policy of the State of Karnataka, the Board had assured the Bank that by way of subsidy, the amount of interest would be paid by the Board to the Bank, provided there was no default in repayment of the principal amount by the Borrower.= the Board has been wrongly saddled with the liability of paying Rs.75,213/-.= The question only is with regard to the liability of the Board. The Board is neither a borrower nor a guarantor. = The Commission and the Karnataka State Khadi and Village Industries Board, will have no liability of any kind either in respect of the principal amount of loan or payment of 4% or revised rate of interest to be borne by the borrowers for which interest subsidy eligibility certificate has been issued by the Commission. Its liability shall be restricted only to the extent of payment of interest subsidy as per scheme. The Commission would be liable to pay interest subsidy as per the scheme only for the period of which the loan is sanctioned by the Bank and is not liable to pay such interest subsidy for the defaulted period 87-88.”= In other words, upon default committed by the Borrower, the Board was absolved of its liability of paying interest on behalf of the Borrower to the Bank and its liability was only to the effect that it would surrender its first charge over the moveable and immoveable assets of the borrower in favour of the Bank. 10. In spite of the aforestated facts, the trial court came to the conclusion that the Board was liable to pay interest which was due and payable by the Borrower. In our opinion, the said finding of the trial court is not correct. Even the High Court’s view of confirming the said finding is not correct and therefore, we quash and set aside the judgment of the appellate court as well as the decree passed by the trial court so far as it makes the Board liable to pay the interest on behalf of the Borrower. In view of the contents of the aforestated letter dated 23rd March, 1988, the Board shall surrender its first charge over all the moveable and immoveable assets of the Borrower in favour of the Bank as soon as possible. 11. The appeal stands partially allowed to the above extent with no order as to costs. Karnataka State K.V. Industries Board …..APPELLANT VERSUS Punjab National Bank & Ors. ….RESPONDENTS
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40772 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NO. 8182 OF 2003 (Arising out of SLP ( C) No. 12161 of 2006) Karnataka State K.V. Industries Board …..APPELLANT VERSUS Punjab National Bank & Ors. ….RESPONDENTS 1 J U D G M E N T … Continue reading
adverse possession can be used as a shield/defence but not as a weapon = Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the appellant and appellant is arrayed as defendant that it can use this adverse possession as a shield/defence.- As the appellant is in possession of the suit property since 13.4.1952 and has been granted the decree of injunction, it obviously means that the possession of the appellant cannot be disturbed except by due process of law. We make it clear that though the suit of the appellant seeking relief of declaration has been dismissed, in case respondents file suit for possession and/or ejectment of the appellant, it would be open to the appellant to plead in defence that the appellant had become the owner of property by adverse possession. Needless to mention at this stage, the appellant shall also be at liberty to plead that findings of issue No.1 to the effect that the appellant is in possession of adverse possession since 13.4.1952 operates as res- judicata. Subject to this clarification, the appeal is dismissed.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40774 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8244/2013 (arising out of S.L.P.(Civil) No. 23728 of 2012) Gurudwara Sahib …Appellant Vs. Gram Panchayat Village Sirthala & Anr. …Respondents J U D G M E N T A.K.SIKRI,J. 1. Leave granted. 2. The appellant herein … Continue reading
Industrial dispute = The Industrial Tribunal/ Labour Court constituted under the Industrial Disputes Act is a creature of that statute. It acquires jurisdiction on the basis of reference made to it. The Tribunal has to confine itself within the scope of the subject matter of reference and cannot travel beyond the same. This is the view taken by this Court in number of cases including in the case of National Engineering Industries Limited v. State of Rajasthan & Ors. 2000 (1) SCC 371. 19. It is for this reason that it becomes the bounden duty of the appropriate Government to make the reference appropriately which is reflective of the real/ exact nature of “dispute” between the parties. In the instant case, the bone of contention is as to whether the respondent workmen were simply transferred by the appellant to M/s. Lafarge or their services were taken over by M/s. Lafarge and they became the employees of the M/s. Lafarge. Second incidental question which would follow therefrom would be as to whether they have right to join back the services with the appellant in case their service conditions including salary etc. which they were enjoying with the appellant are not given or protected by M/s. Lafarge? If it is proved that their service conditions are violated, another question would be as to whether they can claim the service benefits/ protection from M/s. Lafarge or they have the right to go back to the appellant?= It follows from the above that the reference in the present form is clearly defective as it does not take care of the correct and precise nature of the dispute between the parties. On the contrary, the manner in which the reference is worded shows that it has already been decided that the respondent workmen continue to be the employees of the appellant and further that their services were simply transferred to M/s. Lafarge. This shall preclude the appellant to put forth and prove its case as it would deter the labour court to go into those issues. It also implies that by presuming so, the appropriate Government has itself decided those contentious issues and assumed the role of an adjudicator which is, otherwise, reserved for the Labour Court/ Industrial Tribunal. 21. As a consequence, this appeal is allowed and the impugned judgment of the High Court is set aside. Sequitur to that would be to quash the references made in the present form. However, at the same time, direction is given to the appropriate Government to make fresh reference, incorporating real essence of the dispute as discussed in this judgment, within a period of two months from the date of receipt of the copy of this judgment.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40776 [REPORTABLE] IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8246 OF 2013 (Arising out of Special Leave Petition (Civil) No. 20494 of 2011) M/s. Tata Iron & Steel Co. Ltd. …….Appellant(s) Versus State of Jharkhand & Ors. ……Respondent(s) WITH C.A. No. 8247/2013 (@ SLP(C) No. 21086 of 2011) … Continue reading
Workmen compensation Act – whether the employee’s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. – remanded = The Commissioner, Workmen’s Compensation (1st Court), West Bengal held on 24.6.2010 that the Applicant/Respondent had met with an accident on 27.12.1999 while in the employment of the Appellant and that considering his age, wages and injury he was entitled to compensation computed at Rs.12,00,000/- (Rupees Twelve Lac) which is the maximum awardable, together with simple interest at the rate of twelve per cent per annum till the date of realization. = His argument is that this health malady has not arisen as a consequence of the Respondent’s services with the Appellant, and hence no compensation was payable under Section 3 of the Employee’s Compensation Act, 1923 which comes into operation only in the event of an employee suffering personal injury caused by an accident arising out of and in the course of his employment.= whether the employee’s ischemic heart condition developed as a consequence of any stress or strain of his employment with the Appellant-company. There can be no gainsaying that the Employee’s Compensation Act, 1923 is a beneficial legislation requiring some play at the joints so far as considering a disabled employee’s claim is concerned. In these circumstances, parties shall appear before the Commissioner, Workmen’s Compensation (1st Court) West Bengal or its successor Court, as the case may be, on 11.11.2013. 4. The Appeal stands allowed accordingly.= A perusal of the impugned order makes it palpably clear that the Appellant-company’s Appeal was dismissed following the decision in FMAT No.1327 of 2010 (Dredging Corporation of India Ltd. v. P.K. Bhattacherjee). In these circumstances, this matter also requires to be remanded to the High Court of Calcutta for a fresh hearing in F.M.A. No.869 of 2010. Parties to appear before the High Court on 18.11.2013. 6. The Appeal stands allowed accordingly.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40779 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 8278 OF 2013 [Arising out of S.L.P.(C)No.26414 of 2011] Dredging Corporation of India Ltd. …..Appellant Versus P.K. Bhattacherjee …..Respondent W I T H CIVIL APPEAL NO. 8279 OF 2013 … Continue reading
A street vendor / hawker is a person who offers goods for sale to the public at large without having a permanent structure / place for his activities. Some street vendors / hawkers are stationary in the sense that they occupy space on the pavements or other public / private places while others are mobile in the sense that they move from place to place carrying their wares on push carts or in baskets on their heads.= For facilitating implementation of the 2009 Policy, we issue the following directions: i) Within one month from the date of receipt of copy of this order, the Chief Secretaries of the State Governments and Administrators of the Union Territories shall issue necessary instructions/directions to the concerned department(s) to ensure that the Town Vending Committee is constituted at city / town level in accordance with the provisions contained in the 2009 Policy. For the cities and towns having large municipal areas, more than one Town Vending Committee may be constituted. (ii) Each Town Vending Committee shall consist of representatives of various organizations and street vendors / hawkers. 30% of the representatives from the category of street vendors / hawkers shall be women. iii) The representatives of various organizations and street vendors / hawkers shall be chosen by the Town Vending Committee by adopting a fair and transparent mechanism. iv) The task of constituting the Town Vending Committees shall be completed within two months of the issue of instructions by the Chief Secretaries of the State and the Administrators of the Union Territories. v) The Town Vending Committees shall function strictly in accordance with the 2009 Policy and the decisions taken by it shall be notified in the print and electronic media within next one week. vi) The Town Vending Committees shall be free to divide the municipal areas in vending / hawking zones and sub-zones and for this purpose they may take assistance of experts in the field. While undertaking this exercise, the Town Vending Committees constituted for the cities of Delhi and Mumbai shall take into consideration the work already undertaken by the municipal authorities in furtherance of the directions given by this Court. The municipal authorities shall also take action in terms of Paragraph 4.2(b) and (c). vii) All street vendors / hawkers shall be registered in accordance with paragraph 4.5.4 of the 2009 Policy. Once registered, the street vendor / hawker, shall be entitled to operate in the area specified by the Town Vending Committee. viii) The process of registration must be completed by the municipal authorities across the country within four months of the receipt of the direction by the Chief Secretaries of the States and Administrators of the Union Territories. ix) The State Governments / Administration of the Union Territories and municipal and local authorities shall take all the steps necessary for achieving the objectives set out in the 2009 Policy. x) The Town Vending Committee shall meet every month and ensure implementation of the relevant provisions of the 2009 Policy and, in particular, paragraph 4.5.1 (b) and (c). xi) Physically challenged who were allowed to operate PCO’s in terms of the judgment reported in (2009) 17 SCC 231 shall be allowed to continue to run their stalls and sell other goods because running of PCOs. is no longer viable. Those who were allowed to run Aarey/Sarita shall be allowed to continue to operate their stalls. xii) The State Governments, the Administration of the Union Territories and municipal authorities shall be free to amend the legislative provisions and/or delegated legislation to bring them in tune with the 2009 Policy. If there remains any conflict between the 2009 Policy and the municipal laws, insofar as they relate to street vendors/hawkers, then the 2009 Policy shall prevail. xiii) Henceforth, the parties shall be free to approach the jurisdictional High Courts for redressal of their grievance and the direction, if any, given by this Court in the earlier judgments / orders shall not impede disposal of the cases which may be filed by the aggrieved parties. xiv) The Chief Justices of the High Courts are requested to nominate a Bench to deal with the cases filed for implementation of the 2009 Policy and disputes arising out of its implementation. The concerned Bench shall regularly monitor implementation of the 2009 Policy and the law which may be enacted by the Parliament. xv) All the existing street vendors / hawkers operating across the country shall be allowed to operate till the exercise of registration and creation of vending / hawking zones is completed in terms of the 2009 Policy. Once that exercise is completed, they shall be entitled to operate only in accordance with the orders/directions of the concerned Town Vending Committee. xvi) The provisions of the 2009 Policy and the directions contained hereinabove shall apply to all the municipal areas in the country. 17. The aforesaid directions shall remain operative till an appropriate legislation is enacted by Parliament or any other competent legislature and is brought into force. 18. The parties, whose applications have remained pending before this Court, shall be free to institute appropriate proceedings in the jurisdictional High Court. If so advised, the aggrieved person shall be free to file petition under Article 226 of the Constitution. 19. All the appeals and I.As are disposed of in the manner indicated above. 20. The Registry is directed to send copies of this order to the Chief Secretaries of all the States, Administrators of the Union Territories and Registrar Generals / Registrars (Judicial) of all the High Courts, who shall place the order before the Chief Justice for consideration and necessary directions.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40757 1 REPORTABLE IN THE SUPRME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal Nos.4156-4157 of 2002 WITH Civil Appeal Nos. 4161-4162 of 2002 AND Civil Appeal Nos. 4175-4176 of 2002 AND I.A.Nos.266-285, 288-289, 294-299, 304-309, 312-321 & 324-335 IN Civil Appeal Nos.4156-4157 of 2002 AND I.A.Nos.7-8 in Civil Appeal Nos. 4161-4162 of 2002 … Continue reading
Custom, Excise & Gold (Control) = In order to avail of MODVAT/CENVAT credit, an assessee has to satisfy the assessing authorities that the capital goods in the form of components, spares and accessories had been utilized during the process of manufacture of the finished product. Admittedly, in this case the appellant was not able to identify the machinery for which the goods in question had been used. In the absence of such identification, it was not possible for the assessing authorities to come to a decision as to whether MODVAT credit would be given in respect of the goods in question.”- It is also not in dispute that the appellant had purchased some machinery from others and such machinery had not even been unpacked by it and in the exact condition it had been transported along with the machinery manufactured by it to Vietnam. Thus, the appellant did not use the purchased machinery in its premises or in its factory and therefore, necessary condition incorporated in the Rules for availing credit of the MODVAT had not been complied with. To avail the MODVAT credit, the input on which excise duty is paid must be used in the manufacture of the final product in the factory of the assessee. The machinery purchased by the appellant had not even been tested or was not even unwrapped in the factory of the appellant. In case of such an admitted fact, it cannot be said that the machinery so purchased from others was used by the appellant in the manufacture of the sugar plant. 25. In the instant case, the appellant had only acted as a trader or as an exporter in relation to the machinery purchased by it, which had been exported and used for setting up a sugar plant in a foreign country. In any case, it cannot be said to have manufactured that plant in its factory. Moreover, it is also clear that the appellant-assessee did not pay any excise duty on the sugar plant set up by it in Vietnam and therefore, there cannot be any question of availing any MODVAT credit. 27. For the aforestated reasons as well as for the reasons stated by the Tribunal in the impugned order, we are of the view that the Tribunal had come to a correct conclusion and the conclusion so arrived at by the Tribunal does not require any interference. 28. The appeals are, therefore, dismissed with no order as to costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40718 NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION 1 CIVIL APPEAL NOS.5509-5510 OF 2003 M/S. KCP Ltd. …..APPELLANT VERSUS Commissioner of Central Excise, Chennai ….RESPONDENT 1 J U D G M E N T 1 ANIL R. DAVE, J. 1. … Continue reading
2G Spectrum case.=whether two orders passed by this Court on 11.04.2011 and 09.11.2012 in Civil Appeal No.10660 of 2010, in exercise of powers conferred on this Court under Articles 136 and 142 of the Constitution of India, while monitoring the investigation of 2G related cases, are liable to be recalled, de hors the rights guaranteed to the Petitioners to invoke the jurisdiction of this Court under Articles 32 and 136 of the Constitution of India, if aggrieved by the orders passed by the Special Court dealing with 2G Spectrum case.= No Court, other than the Court seized with the trial, has the power to monitor the proceedings pending before it. Order dated 11.4.2011 only facilitates the progress of the trial by ordering that the trial must proceed on a day-to-day basis. Large backlog of cases in the Courts is often an incentive to the litigants to misuse of Court’s system by indulging in unnecessary and fraudulent litigation, thereby delaying the entire trial process. Criminal justice system’s procedure guarantees and elaborateness sometimes give, create openings for abusive, dilatory tactics and confer unfair advantage on better heeled litigants to cause delay to their advantage. Longer the trial, witnesses will be unavailable, memories will fade and evidence will be stale. Taking into consideration all those aspects, this Court felt that it is in the larger public interest that the trial of 2G Scam be not hampered. Further, when larger public interest is involved, it is the bounden duty of all, including the accused persons, who are presumed to be innocent, until proven guilty, to co-operate with the progress of the trial. Early disposal of the trial is also to their advantage, so that their innocence could be proved, rather than remain enmeshed in criminal trial for years and unable to get on with their lives and business. 29. We fail to see how the principle laid down by this Court in A.R. Antulay’s case (supra) would apply to the facts of these cases. We have found no error in the orders passed by this Court on 11.04.2011 or on 09.04.2012. Therefore, the question of rectifying any error does not arise. On the other hand, as we have already indicated, the purpose and object of passing those orders was for a larger public interest and for speedy trial, that too on day-to-day basis which has been reflected not only in the various provisions of the PC Act, 1988 but also falls within the realm of judicial accountability. 30. We also find no reason to lay down any guidelines as prayed for by the petitioners in a Court monitored investigation. In a Court monitored investigation, as already pointed out the Court is not expected to interfere with the trial proceedings. The conduct of the trial is the business of the trial judge and not the court monitoring the investigation. A superior court exercising the appellate power or constitutional power, if gives a direction to conduct the trial on day-to-day basis or complete the trial in a specific time by giving direction is not interfering with the trial proceedings but only facilitating the speedy trial, which is a facet of Article 21 of the Constitution of India. That being the factual situation in these cases, the principle laid down by this Court in Rajiv Ranjan Singh “Lalan” VI and another v. Union of India and others (2006) 1 SCC 356, Brij Narain Singh v. Adya Prasad (2008) 11 SCC 558 and Ankul Chandra Pradhan (supra), are not applicable. 31. We, therefore, find no good reason either to frame guidelines to be followed by a constitutional court in relation to monitoring of criminal investigation or any legal infirmity in the orders passed by this Court on 11.04.2011 or 09.04.2012. Writ Petitions lack merits and they are accordingly dismissed, so also IA Nos.59, 61, 63 and 68 in Civil Appeal No.10660 of 2010.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40716 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (C) NO.548 OF 2012 Shahid Balwa …Petitioner Versus Union of India and others …Respondents With WRIT PETITION (C) NO.550, 551, 552 OF 2012, 17 of 2013, and I.A. Nos.59, 61, 63 and 68 IN CIVIL APPEAL … Continue reading
Or.VII, rule 11 Rejection of plaint – Pending sec. 80(2) C.P.C. = whether there can be any presumption with regard to grant of the application filed under Section 80(2) of the CPC, even if no order was passed on the said application and whether the Trial Court was justified in dismissing the applications of the appellants filed for rejection of the plaint though the application filed by respondent No.1- plaintiff under Section 80(2) of the CPC was not finally decided.=The High Court noted that I.A. No. I was pending before the Trial Court and yet applications praying for rejection of the plaint had been heard by the Trial Court. The High Court, therefore, presumed that I.A. No. I, filed under Section 80(2) of the CPC, was granted and therefore, the objection with regard to non-compliance of Section 80(1) of the CPC was not justifiable. whether such an application should be granted, the court is supposed to give hearing to both the sides and consider the nature of the suit and urgency of the matter before taking a final decision. By mere filing of an application, by no stretch of imagination it can be presumed that the application is granted. If such a presumption is accepted, it would mean that the court has not to take any action in pursuance of such an application and if the court has not to take any action, then we failed to understand as to why such an application should be filed. It is an admitted fact that no order had been passed on the application filed under Section 80(2) of the CPC. Till a final order is passed granting the said application, in our opinion, the irregularity in filing of the suit continues. If ultimately the application is rejected, the plaint is to be returned and in that event the application filed on behalf of the appellants under Order VII Rule 11 is to be granted. If the application filed under Section 80(2) is ultimately granted, the objection with regard to non issuance of notice under Section 80(1) of the CPC cannot be raised and in that event the suit would not fail on account of non- issuance of notice under Section 80(1) of the CPC. We reiterate that till the application filed under Section 80(2) of the CPC is finally heard and decided, it cannot be known whether the suit filed without issuance of notice under Section 80(1) of the CPC was justifiable. According to the provisions of Section 80(2) of the CPC, the court has to be satisfied after hearing the parties that there was some grave urgency which required some urgent relief and therefore, the plaintiff was constrained to file a suit without issuance of notice under Section 80(1) of the CPC. Till arguments are advanced on behalf of the plaintiff with regard to urgency in the matter and till the trial court is satisfied with regard to the urgency or requirement of immediate relief in the suit, the court normally would not grant an application under Section 80(2) of the CPC. We, therefore, come to the conclusion that mere filing of an application under Section 80(2) of the CPC would not mean that the said application was granted by the trial court. In the aforestated circumstances, we hold that the trial court had wrongly rejected the applications filed by the appellants under Order VII Rule 11 of the CPC. The trial court ought to have heard and decided the application filed under Section 80(2) of the CPC before hearing the applications under Order VII Rule 11 of the CPC. 28. As a result of the above discussion, the appeal is allowed. The impugned judgment delivered by the High Court confirming the order of the Trial Court dated 30th September, 2001 is quashed and set aside. The order of the Trial Court rejecting applications under Order VII Rule 11 is also quashed and set aside. It is directed that the trial court shall first of all decide the application filed by respondent no. 1 under Section 80(2) of the CPC and only after final disposal of the said application, the applications filed by the appellants under Order VII Rule 11 of the CPC shall be decided. 29. The appeal is allowed with no order as to costs.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40715 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7364 OF 2013 (Arising out of SLP (C) No. 10956 of 2005) Govt. of Kerala & Ors. …..Appellants Versus Sudhir Kumar Sharma & Ors. …..Respondents J U D G M E N T 1 … Continue reading
MODVAT- The respondent-company availed deemed MODVAT credit of Rs.77,546/- during the quarter of March, 2000 on the strength of invoices issued by M/s. Sawan Mal Shibhu Mal Steel Re-Rolling Mills, Mandi Govindgarh. During MODVAT verification it was found that the supplier of inputs had not discharged full duty liability for the period covered by the invoices. = Sub-rule (6) of Rule 57A in exercise of which the notification has been issued is as follows: – “(6) Notwithstanding anything contained in sub-rule (1), the Central Government may, by notification in the Official Gazette, declare the inputs on which the duty of excise paid under section 3A of the Central Excise Act, 1944 (1 of 1944), shall be deemed to have been paid at such rate or equivalent to such amount as may be specified in the said notification, and allow the credit of such duty in respect of the said inputs at such rates or such amount and subject to such conditions as may be specified in the said notification: Provided that the manufacturer shall take all reasonable steps to ensure that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid under section 3A of the Central Excise Act, 1944 (1 of 1944).”= “Whether the manufacturer of final products is entitled to deemed credit, under Notification 58/97-CE dated 30.8.97 when the manufacturer-supplier of inputs has not paid Central Excise Duty and given a wrong certificate on the body of invoices about duty dischargement under Rule 96ZP of Central Excise Rules, 1944?” = there is no dispute that a declaration was given by the manufacturer of the inputs indicating that the excise duty had been paid on the said inputs under the Act. It is also not in dispute that the said inputs were directly received from the manufacturer but not purchased from the market. There is no cavil over the fact that the manufacturer of the inputs had declared the invoice price of the inputs correctly in the documents. It is perceivable from the factual matrix that the only allegation is that at the time of MODVAT verification it was found that the supplier of the inputs had not discharged full duty liable for the period covered under the invoices. This lapse of the seller is different and not a condition or rather a pre-condition postulated in the notification. 25. Mr. Prasad, learned counsel for the revenue has vehemently urged that it was requisite and, in a way imperative, on the part of the assessee to verify from the concerned authority of the department whether the excise duty had actually been paid or not. The aforesaid submission leaves us unimpressed. As we notice Rule 57A (6) requires the manufacturer of final products to take reasonable care that the inputs acquired by him are goods on which the appropriate duty of excise as indicated in the documents accompanying the goods, has been paid. The notification has been issued in exercise of the power under the said Rule. The notification clearly states to which of those inputs it shall apply and to which of the inputs it shall not apply and what is the duty of the manufacturer of final inputs. Thus, when there is a prescribed procedure and that has been duly followed by the manufacturer of final products, we do not perceive any justifiable reason to hold that the assessee-appellant had not taken reasonable care as prescribed in the notification. Due care and caution was taken by the respondent. It is not stated what further care and caution could have been taken. The proviso postulates and requires “reasonable care” and not verification from the department whether the duty stands paid by the manufacturer-seller. When all the conditions precedent have been satisfied, to require the assessee to find out from the departmental authorities about the payment of excise duty on the inputs used in the final product which have been made allowable by the notification would be travelling beyond the notification, and in a way, transgressing the same. This would be practically impossible and would lead to transactions getting delayed. We may hasten to explicate that we have expressed our opinion as required in the present case pertaining to clauses 4 and 5 of the notification. 26. Consequently, we concur with the view expressed by the High Court and accordingly the appeals, being devoid of merit, stand dismissed without any order as to costs.
published in http://judis.nic.in/supremecourt/filename=40690 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL No. 7031 of 2009 Commissioner of Central Excise, Jalandhar … Appellant Versus M/s. Kay Kay Industries … Respondent WITH CIVIL APPEAL No. 7032 of 2009 WITH CIVIL APPEAL No. 7034 of 2009 WITH CIVIL APPEAL No. 7392 of 2010 WITH CIVIL APPEAL … Continue reading
contempt of court = Warns=Advocate on record – refused to attend before the court when pressed his presence = An application for restoration of the said appeal was filed by Shri Rameshwar Prasad Goyal, Advocate-on-Record (hereinafter referred to as AOR). The said application was listed in the Court on 8.7.2013. The Court was of the view that the facts contained in the application were not correct and the counsel appearing for the applicant was not able to clarify the same. The Court passed over the matter and asked the counsel appearing therein to call the AOR who would be able to explain the factual controversy. When the matter was taken up in the second round, the Court was informed that Shri Rameshwar Prasad Goyal, AOR refused to come to the Court. It has also been pointed out that the said AOR has filed extremely large number of cases in this Court but never appears in the Court. In view of the refusal of the AOR to come to the Court, this Court had no other option but to dismiss the application. However, the Court issued a show cause notice to the said AOR as to why his name should not be removed from the register of AsOR, as his conduct was ‘unbecoming’ of an AOR. Prima facie, his conduct would tantamount to interfering with the administration of justice. Being an AOR, he ought to have appreciated that the institution of AsOR has been created under the Supreme Court Rules, 1966 (hereinafter referred to as the ‘Rules’) and no one can appear in this Court except by the authority of an AOR; or unless instructed by an AOR. Considering the gravity of the issue involved herein, this Court also requested the Association of AsOR, through its President and Secretary, to assist the Court in dealing with this situation as our experience has been that some AsOR, who have filed a large number of cases have been lending their signatures for consideration and take no responsibility for the matter and never appear in the Court. 2. In response to the same, Shri Rameshwar Prasad Goyal, AOR has filed his reply tendering an absolute and unconditional apology and has given an undertaking that he would not repeat such a mistake again in future. = At the time of hearing, Shri Rameshwar Prasad Goyal, AOR, not only tendered absolute and unconditional apology and promised not to repeat the misconduct in future but also assured the court that he would remain present in the court in all the cases where he had entered appearance for either of the parties. Some senior advocates and a large number of members of the Bar have also asked the Court to pardon him as he would abide by the undertaking given by him.- In view of above, though the conduct of Shri Goyal, AOR, has been reprehensible and not worth pardoning but considering the fact and circumstances involved herein, his conduct is censured and we warn him not to behave in future in such manner and to appear in court in all the cases wherever he has entered appearance. The court shall examine his conduct for one year from now and if no improvement is found, may initiate the proceedings again. With these observations, the matter stands closed for the time being.
published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40678 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION SUO MOTU CONTEMPT PETITION NO. 312 of 2013 In Re: Rameshwar Prasad Goyal, Advocate J U D G M E N T Dr. B.S. Chauhan, J. 1. Civil Appeal No. 1398 of 2005, Mohamed Israfil v. … Continue reading
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