2016 SCC Vol. 1 January 14, 2016 Part 2

SCC Weekly  V 1 Part_2 (14-1-2016)

Central Excise Act, 1944 — S. 4(4)(d)(i) — Cost of packaging: The appellant had charged for the value of the gunny bags from the customers by adding the same to the cost of soda ash and relied on letters dated 15-12-1970, 1-2-1971 and 2-4-1971, to show that there was an arrangement for return of packaging material. In the present case, the inclusion of value of the gunny bags in the final sale price of the soda ash and a careful perusal of the letters would clearly go to show that no express arrangement has been made by the appellant with the buyers for the return of the gunny bags for the reason that there would be a deduction in the sale price, only when the gunny bags were returned to the appellants. The fact that some of the customers of the appellant returned the gunny bags out of several ones already sold between the period of 1971 to 1988, does not entitle it to get the benefit of exclusion of the cost of all the gunny bags which were not even returned to the appellant. Thus, the soda ash is sold in bulk in the gunny bags at the factory gate to the wholesale market and such packing is indispensible for the transport and preservation of soda ash. Thus, gunny bags are excisable under the Act and appellant directed to pay the total amount of the gunny bags. [Tata Chemicals Ltd. v. CCE, (2016) 1 SCC 263]

Central Excise Act, 1944 — S. 4(4)(d)(i) — Value of excisable goods — Buyer providing packaging material for goods already in marketable state: If packing materials are supplied by buyer, levy could not have been imposed. [Tata Chemicals Ltd. v. CCE, (2016) 1 SCC 263]

Civil Procedure Code, 1908 — Or. 1 Rr. 3 and 10(2) and S. 115 — Impleadment as defendants when original defendants set ex parte: As the impleadment application moved by appellants for impleading themselves as defendants when original defendants set ex parte, was allowed by trial court, but set aside in revision, it is held that particularly when original defendants being set ex parte, presence of appellants in suit would be in the interest of justice. Accordingly, impugned order set aside and order passed by trial court, impleading appellants as Defendants 2 and 3, restored. [Dilbag Singh v. Ravinder Kaur, (2016) 1 SCC 388]

Civil Procedure Code, 1908 — S. 144 — Power to order restitution: S. 144 CPC vests expansive power in court. Such power must be exercised to ensure equity, fairness and justice to both the parties. For ascertaining the value of property which is no longer available for restitution on account of it having been further sold, etc., court should adopt a realistic and verifiable approach instead of resorting to hypothetical and presumptive value. Court should keep under consideration not only the loss suffered by the party entitled to restitution but also the gain, if any, made by the other party who is obliged to make restitution. No unmerited injustice should be caused to either party. [Citibank N.A. v. Hiten P. Dalal, (2016) 1 SCC 411]

Corporate Laws — Companies Act, 1956 — S. 111(7) — Rectification of register on transfer of shares, etc.: Issues which truly relate to rectification of the register fall within summary jurisdiction of Company Law Board (CLB). Complex questions of title fall outside its jurisdiction. But when there was no complicated question of title and no real dispute between parties about entitlement of members of one party to company shares in their favour and rectification of register, CLB erred in taking view that it lacked jurisdiction on ground of existence of complexity of facts and law. [Jai Mahal Hotels (P) Ltd. v. Devraj Singh, (2016) 1 SCC 423]

Courts, Tribunals and Judiciary — Judicial Process — Judicial discipline and comity: As judgments in rem were affirmed by Supreme Court, extending benefit of the same, to all similarly situated persons, reopening of the issue conclusively determined by said previous judgments by High Court, not permissible. [Sunil Kumar Verma v. State of U.P., (2016) 1 SCC 397]

Criminal Procedure Code, 1973 — S. 482 — Quashing of criminal proceedings involving abuse of financial system: As criminal proceedings initiated against both accused for loans availed on basis of mortgages based on forged documents, quashed by High Court under S. 482 CrPC, holding that as “No-dues certificates” were issued by respective banking institutions and settlements were arrived at under settlement scheme, continuance of prosecution was exercise in futility and, therefore, quashing of criminal proceedings was required to prevent abuse of process of law. It is held that High Court was erroneously guided by ambit and sweep of power under S. 482 CrPC for quashing the proceedings. It absolutely fallaciously opined, that continuance of proceeding will be abuse of process of court. It is accepted principle of handling of finance, that whenever there is manipulation and cleverly conceived contrivance to avail such kinds of benefits, it cannot be regarded as a case having overwhelmingly and predominatingly civil character. Ultimate victim is the collective. It creates hazard in the financial interest of society. Gravity of offence creates a dent in economic spine of the nation. Collective interest, of which court is the guardian, cannot be a silent or a mute spectator to allow proceedings to be withdrawn, or yield to ingenuous dexterity of accused to invoke jurisdiction under Art. 226 of Constitution or under S. 482 CrPC and quash the proceeding. It is not legally permissible. Court is expected to be on guard to these kinds of adroit moves. Court’s principal duty, at that juncture, should be to scan entire facts to find out thrust of allegations and crux of settlement. To quash proceeding merely on ground that accused has settled amount with bank, would be a misplaced sympathy. Hence, order passed by High Court set aside and trial Magistrate directed to proceed in accordance with law. [State of T.N. v. R. Vasanthi Stanley, (2016) 1 SCC 376]

Criminal Procedure Code, 1973 — Ss. 482 and 320 — Criminal proceedings involving non-compoundable offences: Economic offences like embezzlement of public money from bank are public wrongs or crimes committed against society and gravity and magnitude thereof affect public at large. Courts must not be swayed by return of money to bank which has been defrauded but must also consider society at large. Instant offence (cheating and using forged documents i.e. forged bills of lading to embezzle public money from bank) was well planned, and committed with deliberate design with an eye on personal profit regardless of consequence to society at large. Cheating of bank exposits fiscal impurity and such financial fraud is an offence against society at large. To quash proceedings merely on ground of settlement with bank amounts to misplaced sympathy. Hence, criminal proceedings involving non-compoundable offences, restored. [CBI v. Maninder Singh, (2016) 1 SCC 389]

Excise — Valuation — Packing material — Cost of wooden crates — Whether is includible in the value of good sold: There is no necessity that the crates must be actually returned so long as there is an obligation on the seller to take back the crates, if the buyer chooses to return them. Wooden crates merely consist of planks of wood which are nailed together. Therefore, even if they are dismantled by the buyer and the planks are returned to the seller, the seller would be in a position to use them again. Wooden crates are durable and returnable packing. Cost of wooden cases, not to be included in the value of glass sheets sold. [Triveni Glass Ltd. v. CCE, (2016) 1 SCC 291]

Indian Medical Council Act, 1956 — S. 10-A and S. 11 r/w Sch. I — Permission to recognised medical college with recognised courses to increase admission capacity from 150 to 250: There is no concept of “recognition”of increased admission capacity of recognised course in recognized institution. There is no requirement to additionally “recognise” increased admission capacity to 250 students by its inclusion in Sch. I. Neither 1956 Act nor MCI Opening of a New or Higher Course of Study or Training (including Postgraduate Course of Study or Training) and Increase of Admission Capacity in any Course of Study or Training (including a Postgraduate Course of Study or Training) Regulations, 2000 contemplate recognition of admission capacity. [Sree Balaji Medical College & Hospital v. Union of India, (2016) 1 SCC 434]

Land Acquisition Act, 1894 — Ss. 34 and proviso, 28, 23, 31 and 26 — Interest on solatium: The issue for determination in the instant case is whether the payment of interest on solatium is a legislative statutory right conferred upon the claimant. In light of disagreement at the Bench, matter referred to larger Bench. [Periyar & Pareekanni Rubbers Ltd. v. State of Kerala, (2016) 1 SCC 294]

Limitation Act, 1963 — Art. 112 — Suit by or on behalf of Central Government: BSNL which is registered under Companies Act, even though fully financed by and under absolute control of Central Government, cannot be construed as “Central Government” within meaning of S. 3(8) of General Clauses Act, and is a separate entity. Further, since Art. 112 of 1963 Act specifically used expression “the Central Government or the State Government” it cannot comprehend agencies or instrumentalities thereof also, since court cannot supply casus omissus. Therefore, suits filed by BSNL for recovery of debts due from subscribers cannot be regarded as suits “by or on behalf of the Central Government”under Art. 112 and as such BSNL not entitled to benefit of limitation period of 30 yrs as available to Central Government, for suits filed by it. [Bharat Sanchar Nigam Ltd. v. Pawan Kumar Gupta, (2016) 1 SCC 363]

Limitation Act, 1963 — Art. 58 — Suit for declaration or amendment of pleadings to incorporate relief of declaration: While enacting Art. 58 of the 1963 Act, the legislature has designedly made a departure from the language of Art. 120 of the Limitation Act, 1908. The word “first” has been used between the words “sue” and “accrued”. This would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. To put it differently, successive violation of the right will not give rise to fresh cause and the suit will be liable to be dismissed if it is beyond the period of limitation counted from the day when the right to sue first accrued. [L.C. Hanumanthappa v. H.B. Shivakumar, (2016) 1 SCC 332]

Narcotic Drugs and Psychotropic Substances Act, 1985 — S. 20(b)(ii)(B) or S. 20(b)(ii)(C) and Ss. 8, 2(vii-a), 2(xxiii-a) & 2(iii) and Noti. dt. 19-10-2001 issued under Ss. 2(vii-a) & (xxiii-a) — Punishment for possession of commercial quantity of charas (derivative of cannabis) under S. 20(b)(ii)(C): In instant case, contraband article seized was “charas” and dictionary clause S. 2(iii), NDPS Act clearly states that it can be crude or purified obtained from cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish. Definition also indicates any mixture with or without any neutral material of cannabis or any drink prepared therefrom. It finds mention at Entry 23 of aforementioned Notification. Notification clearly shows, that more than 1 kg of charas is commercial quantity. Charas found in possession of both respondents weighed 6.2 kg and 4 kg, respectively, which, accordingly, is commercial quantity. Again, commercial quantity for contraband article, tetrahydrocannabinol, as stated in Entry 150, is 50 gm. Tetrahydrocannabinol content in seized item from both respondents was 5.1% and 4.9%, respectively, which by weight comes to 316 gm and 196 gm, which again goes beyond “intermediate” quantity and falls under “commercial” quantity. Judged from any score, view expressed by High Court is not correct. Seized item did fall under commercial quantity and trial court rightly treated the same as such. Hence, conviction recorded by trial court under S. 20(b)(ii)(C). is absolutely impeccable. Therefore, judgment of High Court set aside and conviction of respondents under S. 20(b)(ii)(C) restored. [State v. Mushtaq Ahmad, (2016) 1 SCC 315]

Penal Code, 1860 — S. 420 — When attracted: In order to bring a case for offence of cheating, it is not merely sufficient to prove that a false representation was made, but, it is further necessary to prove that the representation was false to the knowledge of accused and was made in order to deceive complainant. [ARCI v. Nimra Cerglass Technics (P) Ltd., (2016) 1 SCC 348]

Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) — S. 18(2) — Power of Appellate Tribunal under, to condone delay in filing appeal beyond prescribed period of limitation: Delay in filing an appeal under S. 18(1) of 2002 Act can be condoned by Appellate Tribunal under S. 18(2) of 2002 Act r/w proviso to S. 20(3) of 1993 Act. [Baleshwar Dayal Jaiswal v. Bank of India, (2016) 1 SCC 444]

Specific Relief Act, 1963 — Ss. 5 and 6: Suit for possession is not maintainable/cannot be decreed in respect of acquired land. [Market Committee, Hodal v. Sukhdevi, (2016) 1 SCC 290]

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