2016 SCC Vol. 1 January 7, 2016 Part 1

Central Excise Act, 1944 — S. 11-B (as amended in 1991) — Refund: Amended provisions of S. 11-B are not applicable to applications for refund initiated and which had attained finality by order of refund by Tribunal under previous provisions. Mere pendency of implementation of order of refund does not permit reopening of refund proceedings that had attained finality, under amended provisions. Amendment to S. 11-B made in 1991 providing that any person applying for refund has to establish that incidence of excise duty has not been passed on by him to any other person. [CCE v. Dalmia Cement (Bharat) Ltd., (2016) 1 SCC 124]

Companies Act, 1956 — S. 10-F — Appeal before High Court against order of CLB on “any question of law arising out of such order” — Scope of jurisdiction of High Court: In case of interim/interlocutory order, it being in exercise of judicial discretion and based in equity, unless findings of CLB suffer from perversity and arbitrariness, or are based on irrelevant material or in disregard of relevant material, High Court’s interference therewith on merits not called for. Decision on issues raised or controversies involved sine qua non for existence of question of law. Appellate forum must confine its judicial scrutiny within framework of findings undertaken by CLB, particularly when exercising appellate jurisdiction against a decision based on discretion rendered at an interlocutory stage of proceeding, which lacks attributes of final verdict. [Purnima Manthena v. Renuka Datla, (2016) 1 SCC 237]

Constitution of India — Art. 136: Where rights of party already protected, no interference called for. As appellant filed application for impleadment claiming himself to be lessor of land of which lessee Company was in liquidation, proceedings in respect of which were pending before Company Court, his rights were safeguarded by order passed by Company Court, which rejected his impleadment application, hence, as rights of proposed party already safeguarded by Company Court, no need for granting appellant any relief. Appellant entitled to appropriate amount coming out of sale of lands. [Girishchandra Manubhai Patel v. Vedica Procon (P) Ltd., (2016) 1 SCC 89]

Constitution of India — Arts. 142, 129, 21 and 32 — Personal liberty vis-à-vis public interest in ensuring compliance with court orders: This case of recovery of money illegally collected from the public by the contemnors is a classic case where approach adopted is influenced by the necessity of “making the law work”. Therefore, the orders via which three contemnors were directed to be lodged in custody for refusing to comply with Supreme Court orders, passed may not be strictly construed as arising out of contempt jurisdiction, but in exercise of inherent jurisdiction vested in Supreme Court to do complete justice in the matter and to ensure that applicant contemnors render full compliance with court orders. It is the unprecedented situation which has led to passing of unprecedented, but justifiable, orders. Hence, bail to contemnors could only be granted upon strict compliance with interim bail order dt. 26-3-2014. Payment of balance amount of about Rs 36,000 crores permitted in nine 2-monthly instalments. In the event of default in payment of two instalments (not necessarily consecutive) bank guarantee of Rs 5000 crores shall be encashed by SEBI. Once released on bail after having complied with interim bail order dt. 26-3-2014, in the event of failure of contemnors to deposit three instalments (not necessarily consecutive), contemnors shall surrender back to custody and in case they fail to do so, they shall be taken into custody and committed to jail. Contemnors directed to deposit their passports in Supreme Court within 15 days from the date of this order or before their release, whichever is earlier. They shall not leave the country without prior permission of Supreme Court. Insofar as their movements within the country are concerned, contemnors shall keep Police Station Tilak Marg, New Delhi informed and updated about their whereabouts every fortnight. [SEBI v. Sahara India Real Estate Corpn. Ltd., (2016) 1 SCC 48]

Constitution of India — Arts. 21, 32, 226 and 136 — Gujarat communal riots of 2002: As in Post-Godhra riots cases i.e. alleged cases of police atrocities and alleged involvement of high dignitaries of Gujarat State machinery, including the then Chief Minister of Gujarat, Court having come to its logical end with direction for submission of SIT report to competent court, prayer by petitioner, a police witness and IPS officer of high rank, for de novo investigation and handing over investigation to Special Investigation Team (SIT) by enlarging scope of investigation in two FIRs filed against petitioner for exerting pressure on a witness P/filing false affidavit on P’s behalf and for hacking email accounts of Additional Advocate General (AAG), in which charge-sheets had filed, and linking it with Jakia Jafri case, (2011) 12 SCC 302, in present writ petition, rejected. Conduct of petitioner IPS officer, also stringently deprecated. [Sanjiv Rajendra Bhatt v. Union of India, (2016) 1 SCC 1]

Criminal Procedure Code, 1973 — S. 438 — Anticipatory bail: While considering application for grant of anticipatory bail, court is not concerned with feasibility of framing charge or merits thereof as that would be a matter before trial court for arriving at finding on evidence. Once charge is framed, question for consideration by court in application under S. 438 is whether in the circumstances of the case, applicant is entitled to anticipatory bail or not. [Bhadresh Bipinbhai Sheth v. State of Gujarat, (2016) 1 SCC 152]

Criminal Procedure Code, 1973 — Ss. 438 and 439 — Misappropriation of public funds and corruption: In this case where appellants, Executive Engineer and Sectional Engineer allegedly misappropriated Rs 28.35 lakhs and Rs 13.75 lakhs (funds released for implementation of schemes of drinking water), as investigation was not being able to progress without custodial interrogation, cancellation of anticipatory bail, affirmed. [Sudhir v. State of Maharashtra, (2016) 1 SCC 146]

Customs Tariff Act, 1975 — Ss. 9-A(2), (3) and (6) (As ins. Vide amendment of 1995) — Anti-dumping duty: Levy of anti-dumping duty, during interregnum/gap period between lapse/expiry of provisional duty and imposition of final anti-dumping duty, not envisaged. In delicate balancing act between protection of domestic industry and hardship caused in the course of international trade, balance has been tilted in favour of international trade. [Commr. of Customs v. G.M. Exports, (2016) 1 SCC 91]

Limitation Act, 1963 — Art. 91(a) — Compensation/recovery for conversion, etc. of specific movable property — Suit for — Commencement of limitation period for: According to Art. 91(a) period of limitation for filing a suit for compensation/recovery as regards specific movable property lost/stolen/misappropriated/converted begins to run “when the person having the right to the possession of the property first learns in whose possession it is”. Period of limitation under Art. 91(a) of the Limitation Act starts running on date that plaintiff acquires knowledge of identity of person who is in possession of the property. Apart from knowledge of identity of the person, Art. 91(a) also requires knowledge that possession of specific movable property concerned was acquired by means of wrongful conversion. Thus, term “first learns” places a burden of knowledge which is rather specific in nature. Thus: (1) knowledge must be of identity of a specific person in whose possession the specific movable property concerned is, and (2) that he acquired possession thereof under an arrangement, which in law would constitute wrongful conversion. The knowledge of a specific person against whom the suit can be instituted is what is crucial here. A mere suspicion or a whisper of knowledge is not enough for period of limitation to start running. [Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2016) 1 SCC 207]

Service Tax — Imposition of, on indivisible works contract: Service tax is not leviable on indivisible works contract prior to the introduction, on 1-6-2007, of Finance Act, 2007 i.e. not leviable under Finance Act, 1994. Works contract is distinct from contracts of service on which service tax was levied under the Finance Act, 1994. Works contract is a separate species of contract distinct from contracts for services simpliciter recognised by the world of commerce and the law as such, and has to be taxed separately as such. Service tax charging section itself must lay down with specificity that the levy of service tax can be on works contracts, and the measure of tax can only be on that portion of works contracts which contains a service element which is to be derived from the gross amount charged for the works contract less the value of property in goods transferred in the execution of the works contract. [CCE & Customs v. Larsen & Toubro Ltd., (2016) 1 SCC 170]

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