2018 SCC Vol. 3 March 28, 2018 Part 2

CENVAT Credit Rules, 2004 — S. 2(l), as existing prior to 1-4-2008 — Circular No. 97/8/2007-ST dt. 23-8-2007 issued by the Central Board of Excise and Customs (CBEC) — CENVAT credit in respect of service tax paid on transportation of goods from factory of manufacturer to the place of purchaser — Availment of: Following Vasavadatta Cements Ltd., (2018) 3 SCC 769, and in the absence of any challenge by Revenue to the satisfaction of the three conditions laid down in Circular dt. 23-8-2007 by the assessee, namely, (i) the ownership of goods and the property in the goods remains with the seller of the goods till the delivery of the goods in acceptable condition to the purchaser at his doorstep; (ii) seller bears the risk of or loss or damage to the goods during transit to the destination; and (iii) freight charges are integral part of the price of the goods, held, the service used by the manufacturer for clearance of final products “from the place of removal” i.e. factory premises of the assessee, to the warehouse or customer’s place, etc. was exigible for CENVAT credit. [CCE v. Andhra Sugars Ltd.,  (2018) 3 SCC 223]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail — Alleged abetment of suicide: Deceased a Civil Engineer and working as a civil contractor, and accused were other contractors charged under Ss. 306/34 for abetting his suicide. All five accused were implicated in alleged suicide note by deceased. High Court denied protection under S. 438 CrPC. While issuing notice by order dt. 12-1-2018 Supreme Court noted that appellant-accused had already taken voluntary retirement in 2011 and suicide is of 2017. Before High Court also accused had pleaded that none of them was engaged as a contractor by municipal corpn. concerned since 2011. On request counsel for State on instruction submits that investigation is in progress and same is yet to be completed. It was held, it is a case where appellant needs to be given protection on condition that he would cooperate with investigation. In case appellant is arrested he shall be released on bail on his executing bond of Rs 25,000 with two sureties of like amount, subject to conditions under S. 438(2) CrPC and appellant directed to cooperate with investigation. [Bhausaheb v. State of Maharashtra, (2018) 3 SCC 221]

Criminal Procedure Code, 1973 — S. 439 — Grant of bail — Foreign citizen: No special consideration can be given to accused in granting bail simply because he is a foreigner. [Lachhman Dass v. Resham Chand Kaler,  (2018) 3 SCC 187]

Criminal Procedure Code, 1973 — Ss. 482 and 320 — Quashing of criminal proceedings — Exercise of power by High Court — Quashing of proceedings based on compromise/settlement between parties: The principles on this point relevant to this case are, that where offences are predominantly of civil character, particularly arising out of commercial transactions, dispute should be quashed when parties have resolved their dispute. Further, timing of settlement would be crucial for exercise of power or declining to exercise power. Where settlement is arrived at between parties immediately after commission of offence and matter is still under investigation, High Court may be liberal in accepting settlement to quash proceedings/investigation as investigation is in its early stage and charge-sheet has not been filed. Where charges are framed and recording of evidence is yet to commence or is at early stage, proceedings can be quashed after prima facie assessment of circumstances/materials. Where trial is at fag end, High Court should refrain from exercising its power as trial court would be in position to decide matter on merits. Where accused already convicted and appeal against conviction is pending, mere settlement or compromise between victim and accused is not ground to accept the same resulting in acquittal of offender. [Anita Maria Dias v. State of Maharashtra, (2018) 3 SCC 290]

Employees’ Compensation Act, 1923 — S. 30 — Improper disposal of appeal — Remand — When warranted: Judgment of High Court setting aside order of Employees’ Compensation Commissioner awarding Rs 8,70,576 compensation for injuries sustained by appellant claimant without hearing him, not sustainable. Matter remitted to High Court to decide appeal filed by Insurance Company afresh, after granting opportunity of hearing to appellant claimant. [Mohd. Anwar v. Oriental Insurance Co. Ltd., (2018) 3 SCC 300]

Family and Personal Laws — Family Property, Succession and Inheritance — Will — Subsequent will/Revocation/Alteration/Codicil: First will, a registered deed, executed in favour of minor daughter and minor son from first wife of testator, but kept in possession of the son U (Defendant 1). Subsequent alleged will in favour of defendant unregistered and having no mention of earlier registered document and its revocation. Minor on attaining majority filed suit for declaration of ownership of property on strength of earlier will but having no access to it produced certified copy thereof and proved the same in terms of S. 68 of Evidence Act. It was held on facts that earlier will is genuine. Hence, plaintiff entitled to declaration of her ownership over bequeathed property. [H.V. Nirmala v. R. Sharmila, (2018) 3 SCC 303]

Income Tax Rules, 1962 (as amended by the Noti. dt. 24-3-2008) — R. 8-D — Prospective operation of: S. 14-A was first inserted by the Finance Act, 2001 with retrospective effect from 1-4-1962 and sub-sections (2) & (3) were later inserted w.e.f. 1-4-2007 for the purposes of computing the expenditure incurred in relation to income which did not form part of the total income. R. 8-D was inserted by an amendment to the Rules by Noti. dt. 24-3-2008 to give effect to the provisions of sub-sections (2) & (3) of S. 14-A and provided for the method for determining amount of expenditure in relation to income not includible in total income. Applying the principles of statutory interpretation for interpreting retrospectivity of a fiscal statute, looking into the nature and purpose of subsections (2) & (3) of S. 14-A as well as purpose and intent of R. 8-D coupled with the Explanatory Notes in the Finance Bill, 2006 and the Departmental understanding as reflected by Circular dt. 28-12-2006, held, R. 8-D is intended to operate prospectively i.e. for Assessment Year 2007-2008 and onwards. [CIT v. Essar Teleholdings Ltd., (2018) 3 SCC 253]

Infrastructure Laws — Water and Water Resources — Canals, Dams and Irrigation — Flood/Inundation Management and Safety Measures — Apprehended cataclysm and unforeseen calamity to human life and property due to bursting of Mullaperiyar Dam: As far as safety measures of Mullaperiyar Dam are concerned, directions issued by Supreme Court in State of T.N., (2014) 12 SCC 696 would be binding and provisions of 2005 Act implemented. Further held, greater degree of disaster management and better preparedness to face any kind of disaster caused by dam is to be ensured since life without basic needs and liberty replete with fear is meaningless. Hence, it is the duty of States concerned to create sense of confidence in people and to ensure that adequate measures have been taken so that safety of citizens is not compromised at any level. Directions issued for constitution of different Sub-Committees by the Central Government, States of T.N. and Kerala to exclusively monitor measures for ensuring high level preparedness to face any disaster, which would be in addition to existing Committees. [Russel Joy v. Union of India, (2018) 3 SCC 179]

Land Acquisition Act, 1894 — Ss. 23, 11 and 18 — Fair market rate of acquired land prevalent on date of acquisition — Determination of: There are several factors which govern determination of fair market rate of acquired land. Said market rate therefore cannot be decided in isolation on basis of only one factor. These factors are required to be proved with sufficient evidence. It must appear that courts have made sincere endeavour to determine fair market rate of acquired land taking into account all relevant aspects of the case. In this regard, duty of landowners and State is to adduce proper and sufficient evidence to enable courts to arrive at a reasonable and fair market rate of acquired land prevalent on date of acquisition. [Surender Singh v. State of Haryana, (2018) 3 SCC 278]

Motor Vehicles Act, 1988 — S. 149(2) — Third-party insurance — Defences available to insurance company — Burden of proof: Following Swaran Singh, (2004) 3 SCC 297, reiterated that insurance company is entitled to take a defence that offending vehicle was driven by an unauthorised person or that person driving vehicle did not have a valid driving licence. Onus would shift on insurance company only after owner of offending vehicle pleads and proves basic facts within his knowledge that driver of offending vehicle was authorised by him to drive vehicle and was having a valid driving licence at relevant time. [Pappu v. Vinod Kumar Lamba, (2018) 3 SCC 208]

Motor Vehicles Act, 1988 — Ss. 166 and 168 — Fatal accident — Compensation — Computation of — Multiplier — Age of deceased or claimant parents — Future prospects: Deceased, 29 yrs old was serving as an Assistant Teacher in a school run by a Trust on a temporary basis who would have been made permanent and would have been entitled to 6th Pay Commission wages of at least Rs 40,000 p.m. Adopting a multiplier of I7, Tribunal awarded compensation of Rs 61,20,000 and added Rs 35,000 under conventional heads with interest @ 9% p.a. However High Court having regard to age of father at 65 yrs and mother 50 yrs, concluded that a multiplier of 7 should be adopted. The Supreme Court held that in terms of judgment of five-Judge Bench in Pranay Sethi, (2017) 16 SCC 680 and in Sarla Verma, (2009) 6 SCC 121, correct multiplier to be applied in present case would be 17, having regard to age of deceased at 29 yrs. For future prospects, adding 50%, and making a deduction of 50% towards personal expenses (deceased being a bachelor), total compensation quantified at Rs 61,20,000. After making additions on account of conventional heads, total compensation at Rs 61,90,000 carrying interest @ 9% p.a. from date of filing of claim petition awarded. Apportionment to be carried out in terms of award of Tribunal. [Ramrao Lala Borse v. New India Assurance Co. Ltd., (2018) 3 SCC 204]

Municipalities — Municipal taxes — External development charges — Liability to pay: Liability to pay the same is on house construction society, colonisers or individual persons. Central Government entities/PSUs like National Fertilizers Ltd. and Gas Authority of India Ltd., (respondentplaintiffs) who were allotted plots and constructed dwelling units for stay of their employees as distinguished from sale or letting out on rent, held, are not liable to pay said charges. [Municipal Council, Raghogarh v. National Fertilizers Ltd., (2018) 3 SCC 200]

Negotiable Instruments Act, 1881 — S. 138 — Sentence and compensation: Waiver of imprisonment in lieu of payment of additional compensation, permissible under exceptional circumstances. [Priyanka Nagpal v. State (NCT of Delhi), (2018) 3 SCC 249]

Negotiable Instruments Act, 1881 — S. 138: Conviction under S. 138, confirmed, however, accused permitted to pay additional compensation amount to complainant, in lieu of simple imprisonment awarded. [P. Ramadas v. State of Kerala, (2018) 3 SCC 287]

Penal Code, 1860 — S. 201 — Charge under — When can be independently laid and conviction maintained: Charge under S. 201 can be independently laid and conviction maintained also, in case prosecution is able to establish that an offence was committed, person charged with offence had knowledge or reason to believe that offence was committed, said person has caused disappearance of evidence and such act of disappearance was done with intention of screening offender from legal punishment. Mere suspicion is not sufficient, it must be proved that accused knew or had a reason to believe that offence was committed and yet he caused evidence to disappear so as to screen offender. Offender may be either himself or any other person. [Dinesh Kumar Kalidas Patel v. State of Gujarat, (2018) 3 SCC 313]

Penal Code, 1860 — Ss. 304 Pt. I and 307: There were serious burn injuries caused to a number of women, leading to death of two due to burning cow dung cakes which were hurled by accused at them. High Court reversed conviction of accused under Ss. 304 Pt. I and 307. No enmity was found present between accused and victims and no intention of accused to kill a particular person was also established. Material contradictions in statements of eyewitnesses, present. No explanation was given of huge delay in recording statements of witnesses. Inordinate delay in lodging FIR, also not explained. It was held that guilt of accused was not established beyond reasonable doubt, hence, acquittal by High Court, confirmed. [State of M.P. v. Nande, (2018) 3 SCC 196]

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection ) Act, 1994 — Ss. 22 and 18 — Advertisements relating to pre-conception and pre-natal determination of sex and sex selection: Earlier directions issued regarding prohibition of advertisements relating to pre-conception and pre-natal determination of sex and sex selection, summarised and further directions issued with special reference to search criteria “medical tourism in India” and “gender determination”. [Sabu Mathew George v. Union of India, (2018) 3 SCC 229]

Service Law — Appointment — Contractual appointment — Non-renewal of contract — Absence of any right accruing in favour of contractual employee: Services of petitioner appointed as Technical Assistant (ENT) on contract basis without following any prescribed procedure or adherence to rules, though initially for three months but subsequently renewed, were terminated/not renewed after six months. The Supreme Court held, contractual employee has no right to have his/her contract renewed in absence of any statutory or other right in his favour. At best, petitioner can only claim that due consideration for extending his contract may be granted, which was actually done in instant case, but decision not to continue him was taken. Besides, since petitioner’s appointment was not made in accordance with any regular procedure or by following necessary rules, no right accrued in his favour for regularisation of his services. Furthermore, fact that some persons were appointed as ENT in the year 2016 would have no bearing on events of 2010 when decision to discontinue petitioner was taken since change in circumstance would confer no benefit on him. [Yogesh Mahajan v. AIIMS, (2018) 3 SCC 218]

Service Law — Appointment — Eligibility conditions/criteria: For post of Hindi Language Assistant, carving out specific category in Recruitment Rules postulating additional requirement is permissible. [State of Karnataka v. Shankar Baburao Kangralkar, (2018) 3 SCC 296]

Service Law — Retirement/Superannuation — Voluntary retirement — Housing accommodation — SAIL Scheme for Leasing of Houses to Employees, 2002 — Long term (33 yrs) lease of the houses to serving employees opting for VRS: There was claim of respondent ex-employees of Rourkela Steel Plant (RSP), a unit of appellant SAIL (who were already in occupation of official quarters on licence basis for 22 months), to their inclusion within said 2002 Scheme. Scheme remained valid for 3 months only. No vested right was conferred on ex-employees under Scheme. State Government had leased entire land to RSP for use of steel plant and ancillary purposes. In view of subsequent plan of RSP of expansion of its production capacity by plant modernisation which would require additional accommodation for various government agencies within township, any long lease of quarters by RSP would not be feasible. In such circumstances, held, appellant cannot be compelled to grant longterm lease of official quarters in RSP township to respondents. However, respondents (writ petitioners before High Court), 53 in number, directed to be allowed to remain in occupation of the quarters for a period of 33 months from date of decision of this appeal. [SAIL v. Choudhary Tilotama Das, (2018) 3 SCC 308]

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