Legislation UpdatesRules & Regulations

The Central Board of Direct Taxes notifies Income-tax (Twenty Second Amendment) Rules, 2022 to amend the Income-tax Rules, 1962. The amendment introduces a provision dealing with Application u/s 158AB to defer filing of appeal before Tribunal or jurisdictional High Court.

Key points:

  • Rule 16 which specifies “Declaration under Section 158A” has been renumbered to Rule 15A.
  • New Rule 16 which specifies “Application under section 158AB to defer filing of appeal before the Appellate Tribunal or the jurisdictional High Court” has been inserted:

“The application referred to in sub-section (2) of section 158AB, required to be made before the Appellate Tribunal or the jurisdictional High Court, as the case may be, shall be made in Form No. 8A by the Assessing Officer”

  • In Appendix II a new Form 8A has been inserted.
Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Fateh Deep Singh, J., dismissed a review application on the ground that no mistake or error was found on the records which would be self-evident, and any interpretation put forth by the applicant cannot be considered at this juncture according to Order 47 Rule 1 of Code of Civil Procedure, 1908 (‘CPC’).

Order 47 Rule 1 states that a judgment/ order could be sought only if there is a discovery of new and important matters/ evidence which was not in the knowledge of the applicant even after due diligence and if the same was not produced by the applicant at the time judgment/ decree was passed or there was some mistake or error on the face of record.

The applicant made assailments on merits and interpretation of the evidence over the family settlement dated 15-03-1985, 17-07-1995 and 29-03-1997. The applicant has laid challenge over the documents in question executed between them on merits which is not permissible. Another argument was that self-contradictions and self- defeating stands cannot be taken into consideration.

The respondent relied on Sasi v. Aravindakshan Nair, (2017) 4 SCC 692 and Parsion Devi v. Sumitri Devi, (1997) 8 SCC 715, where the Supreme Court laid down that a review application cannot be disguised as an appeal for getting an incorrect decision reheard and corrected. It was also held that to rectify any patent error on the records, a review has to be filed within the ambit of Order 47 Rule 1 of the Code.

In the present case, the issue was whether an application be made to reheard and correct an erroneous decision outside the ambit of Order 47 Rule 1The Court after perusal of the arguments advanced held that there was no such mistake or error on the face of the record and no merit was found. Hence, the application was dismissed.

[Paramjit Singh v. Gurdial Singh, 2022 SCC OnLine P&H 1637, decided on 05-07-2022]

Customs, Excise and Services Tax Appellate Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): While dealing with an issue relating to payment of 6% on empty packaging drums of cenvatable input considering the same as non-excisable goods, Ramesh Nair (Judicial Member) held that the empty packaging material of cenvatable input is not liable for payment.CA appearing on behalf of the appellant submitted that the adjudicating authority and Commissioner (Appeals) confirmed the demand considering the drum as non excisable goods. He further submitted that the empty drums are not generated during the process of manufacture it is cleared after emptying the inputs therefore, the drums are cleared as such and the same is not liable for payment under Rule 6(3).

The Tribunal considered the submission made by both sides, perused the records and found that the lower authorities have confirmed the demand only on the ground that empty drums of cenvatable input is a non excisable goods and therefore, the clearance there of will attract 6% reversal in terms of rule 6(3) of Cenvat Credit Rules, 2004. The Tribunal further considered and reiterated the judgment of the Tribunal in Banco Gasket (INDIA) Ltd. v. CCE & ST, (2021) 8 TMI 77 which was also dealing with an identical issue. The Tribunal relied on the above judgment stating that the very identical issue has been considered and categorically held that empty packaging material of cenvatable input is not liable for payment either as excise duty or as Cenvat credit under Rule 6(3) of Cenvat Credit Rules, 2004.

The Tribunal allowed the appeal, setting aside the impugned order holding that the appellant is not liable to make any payment on clearance on empty drums.

[Cadila Healthcare Ltd. v. C.C.E & ST, Excise Appeal No. 10100 of 2020, decided on 24-06-2022]


Advocates who appeared in this case :

Shri Mitesh Jain, Advocate, for the Appellant;

Shri Vinod Lukose, Superintendent (AR), for the Respondent.


*Suchita Shukla, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court: While deciding the instant appeal directed against the decision of the Single Judge Bench in Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433; the Division Bench of Pankaj Mithal, CJ., and Javed Iqbal Wani, J., directed the appellants to allow Mohd. Lateif Magery and his family to perform Fatiha Khawani (religious rituals/prayers after burial) of deceased Mohd. Amir Magrey at the Wadder Payeen graveyard, subject to taking into account the required security measures and COVID-19 guidelines. The Court also upheld the compensation of Rs. 5 Lakhs awarded to the respondents in the afore-stated case.

Facts of the case: The respondent’s son named Mohd Amir Magrey, was amongst four persons who were killed in an encounter between the Police and Militants that took place on 15-11-2021 at Hyderpora area of Budgam, Kashmir. Next day, the respondent received a call from Gool Police Station that his son got killed in an encounter. The respondent upon reaching Saddar, Police Station, Srinagar, was told that his son, was in fact a militant and had got killed along with his two other associates and had been buried by appellants at the Wadder Payeen graveyard. The respondent even met the Lieutenant Governor on 07-12-2021 seeking return of the body of his son, but the meeting yielded no results.

Legal Trajectory: In Mohd. Latief Magrey v. Union of India, 2022 SCC OnLine J&K 433, dated 27-05-2022, the Single Judge Bench of this Court directed the Union Territory to make arrangements for exhumation of the body/remains of the deceased Amir Latief Magrey from the Wadder Payeen graveyard in presence of Mohd. Lateif. The State was also directed to pay to the father compensation of Rs. 5 lakhs for deprivation of his right to have the dead body of his son and give him decent burial as per family traditions, religious obligations and faith.

The decision was appealed in UT of J&K v. Mohd. Latief Magrey, LPA No. 99/2022 thereby which the operation of impugned judgement was stayed by way of an interim relief by the Division Bench. Next date of hearing was set for 28-06-2022.

The stay was challenged by Mohd. Latief in the Supreme Court. Lateif submitted before the Court that he wants to perform the last rites of his deceased son, as per their family’s religious practices at the Wadder Payeen Graveyard. He also sought the alternative relief of payment of compensation of Rs. 5 lakhs as granted by the Single Judge in his decision dated 27-05-2022. The Division Bench of Surya Kant and J.B. Pardiwala, JJ., in Mohd. Lateif Margey v. UT of J&K, Special Leave to Appeal (C) no. 10760/2022, observed that the matter is already slated for hearing in the High Court. The Bench directed the High Court to consider the alternative reliefs sought by Mohd. Lateif within 1 week.

Contentions

  • The respondent stated that the dead body of his deceased son was not handed over to him by appellants for burial as per religious rites and practices, thus, resulting in infringement of rights guaranteed under Art. 21 of the Constitution, as it extends to the right to have a decent burial as per religious ceremonies. The respondent submitted that that right to live with human dignity extends even beyond death and the said dignity has to be given to the dead by providing a proper funeral/burial.
  • The respondent submitted before the Court that his request to hand over the dead body of his son to provide a decent burial was rejected by the appellants citing the reason that the deceased was a militant. The respondent however stated that dead bodies of two other persons, killed in the encounter returned back to their families following relentless protests.
  • The respondent also contended that he has been instrumental in fighting and curbing the militancy in his native place Gool Sangaldan, Ramban, along with Indian Army and in this regard, cited an incident, which took place on 06-08-2005, when he and his wife caught hold of a LeT militant, who had barged into their house and opened indiscriminate firing. It was also submitted that the respondent had been conferred with the State Award for Bravery for the afore-stated incident by the then Government of Jammu and Kashmir in the year 2012. The respondent was also well appreciated by the Indian Army and for the services rendered by him in eradicating the militancy in Gool Sangaldan area.

Per-contra, the appellants argued that-

  • The respondent’s demand to return the body of his deceased son is not fair, because it is not the dead body of an ordinary citizen but of a terrorist having got killed in an encounter with security forces. Return of the dead body would lead to law, order and security problems.
  • The deceased was found to be a terrorist indulging in militant activities by the authorised investigating agency. In terms of previous practice and procedure to avoid larger ramifications and adverse impact upon law-and-order situation, the dead body of deceased was shifted and was buried in accordance with all religious obligations at Wadder Payeen Graveyard, performed in presence of Executive Magistrate, Zachaldara. A proper procedure was followed by appellants while dealing with the dead body of deceased in the matter of his burial.
  • It was submitted that after taking adequate security measures, the dead bodies of other two persons killed in the encounter, were returned to their families, as they were not found to be terrorists.
  • It was submitted that, Mohd. Latief and his family can be allowed to perform Fatiha Khawani (prayers after burial) at the grave of the deceased subject to security measures as may be required to be put in place.

Observations: Perusing the ‘peculiar’ facts of the case and contentions of the parties, the Court observed that, Mohd. Lateif has given up the first relief granted by the Single Judge vis-a-vis exhumation of the remains of his son. The Court rejected the insistence by the counsels of Mohd. Latief regarding exhumation of the remains stating that the last rites of deceased have already been performed while burying him at the Wadder Payeen Graveyard.

The Court also rejected the prayer of the respondent’s counsel that the family members be allowed to see the face of the deceased by opening the grave, on the ground of the advanced stage of decay the body will be in; and also taking into account that the respondent has given up the prayer of exhumation of the dead body.

The Court pointed out that the respondents have been subjected to ‘emotional and sentimental melancholy’ as the authorities deprived them of the right to perform last rites and rituals of deceased admittedly without there being any policy/guideline, which cannot be endorsed by law. The Court also stated that there was no way that the appellants could have overlooked the contribution made by the respondents’ family in fighting terrorism; therefore, the decision to award compensation by the Single Judge was correct.

Decision: Allowing the respondents to perform Fatiha Khawani, the Court directed the appellants to fix a date for the same in consultation with the respondents.

Regarding the direction to pay compensation of Rs. 5 Lakhs, the Court clarified that said compensation shall not form a precedence for future in view of the fact that the same was awarded in relation to the peculiar facts and circumstances of the instant case.

[Union Territory of J&K v. Mohd. 2022 SCC OnLine J&K 516, decided on 01-07-2022]


Advocates who appeared in this case :

D. C. Raina, Advocate General with Asifa Padroo, AAG and Sajad Ashraf GA, Advocates, for the Appellants;

Deepika Singh Rajawat, Advocate with Zarin Ali and Yasmeen Wani, Advocates and T. M. Shamsi, ASGI, Advocates, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Madras High Court
Case BriefsHigh Courts

Madras High Court: A Division Bench of R Mahadevan and Sathya Narayan Prasad, JJ. dismissed the tax appeal holding that guarantee commission as well as royalty must be excluded from the business profit for the purpose of calculation of deduction under Section 80 HHC of the Income Tax Act, 1961. 

 

The facts of the case are such that the appellant was engaged in the business of manufacture and sale of V & Fan Belts, Oil Seals etc. For the assessment year 2004-2005, they filed its return admitting a total income of Rs.14, 02, 65,870/-, which was subsequently, revised by them. Upon scrutiny of the same, the respondent issued notice under section 143(2) of the Income Tax Act, 1961 (hereinafter, “the Act”) and thereafter, completed the assessment under section 143(3) determining the total income which excludes long term capital gains. While doing so, the assessing officer, among others, restricted the claim of deduction under Section 80HHC by excluding 90% of the royalty receipts from the profits of the business under clause (baa) to explanation to section 80HHC (4). The order of AO was challenged before the Commissioner of Income Tax Madurai, who partly allowed the appeal. Aggrieved by this, the Revenue filed an appeal before the Income Tax Appellate Tribunal (‘ITAT’) which thereby set aside the impugned order. Assailing this, the present tax appeal was filed under Section 260 A of the Income Tax Act, 1961. 

 

Counsel for appellants submitted that the appellant entered into a MOU with its 100% subsidiary company; the subsidiary company manufactures the goods as per the specifications given by the appellant and the appellant has also provided know-how, secret formula manufacturing process and methods to ensure the same quality of manufactured goods; for providing these services, the subsidiary company paid royalty and hence, the royalty receipts are directly related to the goods exported by the appellant and the same cannot be excluded from the profits of the business. 

  

The Court relied on CIT v. Bangalore Clothing Co., 2003 SCC OnLine Bom 40 , wherein it was categorically held that “guarantee commission as well as royalty viz., a payment for using a right, must be excluded from the business profit for the purpose of calculation of deduction under section 80HHC of the Act. 

  

The Court noted that there is no concrete material produced by the appellant / assessee to prove that the royalty income received from the subsidiary company is related to export business,  

  

Thus, the court held the “Tribunal has rightly directed the assessing officer to exclude the royalty income from the business profits for the purpose of calculation of deduction under section 80HHC of the Act, which warrants no interference.” 

[Fenner India Ltd. v. Assistant Commissioner of Income Tax, 2022 SCC OnLine Mad 2923 , decided on 08-06-2022] 

 

Appearances 

For Appellant: Mr. Subbaraya Aiyar 

For Respondent: Mr.M. Swaminathan, and Mrs. V. Pushpa 

 


*Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., observed that, the right to claim maintenance under the Domestic Violence Act and those under Section 125 CrPC are not mutually exclusive i.e. the aggrieved person can seek interim maintenance before the Magistrate while also seeking permanent maintenance under Section 125 CrPC.

In the present matter, the petitioner and respondent 2 were husband and wife and multifarious litigation was going on between them, one before the MM under the Protection of Women from Domestic Violence Act, 2005 and the other before the Family Court under Section 125 CrPC.

Instant petition was preferred against the orders passed by the ASJ, Saket Court in an application preferred by respondent 2 under Section 5 of the Limitation Act against the order of the MM condoning a delay of three years and ninety-nine days in filing an appeal against the order.

Analysis and Decision

High Court observed that the present case appeared to be a case where different avenues for relief caused enough confusion, which both, the Family Court as well as the ASJ, tried to sort out.

“The D.V. Act is, without doubt a piece of welfare legislation, to protect the interests of women in a domestic relationship and shared household, against not just physical abuse but also emotional and financial abuse.”

Hence, the ASJ was right in dealing with the condonation of application in that perspective and not choosing to dismiss the appeal on procedural technicalities.

Law of Limitation and DV Act, both have to be balanced out.

Further, the Bench expressed that,

“No doubt, inordinate delay would vest certain rights in the opposite party but when it comes to the question of maintenance and welfare of family members protected by the D.V. Act, there can be no vesting of such rights that would result in the divesting of rights assured by a special piece of legislation.”

In the present matter, respondent 2 did not resort to dilatory tactics to file an appeal in order to harass the petitioner, instead, she continued to pursue her right to maintenance before the Family Court under Section 125 CrPC.

High Court noted that the Courts always held that “sufficient cause” under Section 5 of the Limitation Act, 1963 was elastic enough to be applied by the Courts in a meaningful manner, which subserved justice.

Elaborating further, the Court stated that the facts, as brought as the explanation for the delay, and the intent of the party seeking condonation as evidenced by the circumstances, would guide the court in the exercise of its discretion to condone the delay in family matters.

Settled Law

Under Section 482 CrPC, this Court will not act as a Court of appeal and only if perversity or non-application of mind is disclosed in the impugned order or the impugned order results in a grave miscarriage of justice, that the court would interfere with it in the exercise of these powers. Though the present case does not disclose any such circumstance.

Hence, in view of the above, the pending application was dismissed. [Jagmohan Kashyap v. Govt. of NCT of Delhi, 2022 SCC OnLine Del 1609, decided on 27-5-2022]


Advocates before the Court:

For the Petitioner:

Ashish Upadhyay, Advocate

For the Respondents:

Meenakshi Chauhan, APP for R-1/State

S.S. Wani and Hasnain Khwaja, Advocates, for R-2

Case BriefsHigh Courts

Madhya Pradesh High Court: Dwarka Dhish Bansal, J. allowed a civil revision under Section 115 of CPC against the order rejecting application filed under Section 151 of CPC holding that the same was not maintainable.

Order sheet of the trial Court showed that respondent 2 was not present when the suit was dismissed for want of payment of requisite Court fee, therefore, in view of order 41 Rule 14 (4) of CPC service of notice on her is not necessary. Counsel for the applicant submitted that he instituted a suit for specific performance of agreement of sale, on which Court fee of Rs.1,25,000/- (Rs One Lakh Twenty Five Thousand) was required to be paid but due to non-payment of requisite Court fee the suit was dismissed. He submitted that the applicant instead of filing First Appeal against the order filed an application under Section 151 of CPC with a prayer to restore the Civil Suit and to permit the plaintiff to pay the court fee.

The Court considered the judgment relied on by the Counsel for the applicant Ajab Singh v. Amar Singh, 2000 (1) MPWN 77 wherein the decision in the case of Padmalaya Panda v. Masinath Mohanty AIR 1990 Orissa 102 (DB) was considered, which has also been relied on in the case of Pravesh Pathak v. Shakuntala Sharma, 2016 (1) MPLJ 358 and also in the case of Jagdeesh v. Narayan decided on 22-2-2018 in M.P.No.1132 of 2017, whereby the application under Section 151 of CPC was found to be maintainable despite the fact that order allowing the application under Order 7 Rule 11 of CPC is appealable like a decree under Section 96 of CPC.

The Court was of the opinion that Trial Court has not carefully considered both the decisions relied on by the Counsel thus the impugned order is not sustainable. Trial was directed to restore the civil suit.[Anil Kumar Jain v. Maniram Singraha, 2022 SCC OnLine MP 971, decided on 11-05-2022]


For applicant: Mr Sanjay Kumar Jain

For respondent: Mr Sidharth Sharma, Mr R.P. Khare


Suchita Shukla, Editorial Assistant has reported this brief.

Uttarakhand High Court
Case BriefsHigh Courts

Uttaranchal High Court: Ramesh Chandra Khulbe, J. dismissed a criminal appeal which was filed from jail assailing the judgment and order whereby the Trial Court had convicted and sentenced the appellant on the counts of Sections 376, 377, 506 Penal Code and Section 6 of POCSO Act.

Victim, who was merely a child of 9 years of age, has been traumatized at the hands of appellant who raped and sodomized the victim, who was none other than his real niece. Amicus Curiae argued that there was no evidence against the appellant; there was no medical report regarding sexual offence; and the trial Court did not assess the evidence properly. Counsel for the State has argued that the prosecutrix was minor; she supported the prosecution story; there is no infirmity in the impugned finding; and accordingly, the appeal was liable to be dismissed.

From the evidence of witnesses it was borne out that the accused-appellant who was none other than the real maternal uncle of the victim, had sexually molested the victim 2-3 times earlier than the incident of 27-04-2014 when he was nabbed red handed by his own sister. The accused not only sexually assaulted the victim but also sodomized her. The entire tale of incidents had unequivocally been disclosed by the victim who appeared in the dock of the Court. Moreover, the medical evidence in this case further corroborated the prosecution story.

The Court relied on the judgment of the Supreme Court in Ganesan v. State, (2020) 10 SCC 573 and Phool Singh v. State of Madhya Pradesh, (2022) 2 SCC 74 where it was held that the testimony of a victim was found reliable and trustworthy, conviction on the basis of her sole testimony is permissible.

The Court stated that it is well settled that in cases involving sexual harassment, molestation etc., the Court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case.

The Court finally dismissed the appeal holding that the testimony of the victim was absolutely trustworthy and unblemished and her evidence is of sterling quality. Therefore, without any further corroboration, the conviction of the accused relying upon the testimony of prosecutrix was sustained.[Ashok Singh Kandari v. State of Uttarakhand, 2022 SCC OnLine Utt 400, decided on 07-05-2022]


Counsel for the appellant : Mr Mukul Dangi

Counsel for the State : Mr V. S. Rathore


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Chhattisgarh High Court: A Division Bench of Arvind Singh Chandel and Sanjay K. Agrawal, JJ. dismissed the acquittal appeal being devoid of merits.

The facts of the case are such that marriage between the deceased and the son of the Respondent/accused was solemnised in the month of April, 2018. In November the same year, Mahima Kaushik committed suicide by hanging herself. FIR was registered and charges were framed and the Trial Court acquitted the accused. Assailing this acquittal order, instant appeal was filed.

Counsel for the Appellant/State submits that the Sessions Judge has committed manifest illegality in acquitting the Respondent/accused of the charge under Section 304B IPC as all the ingredients constituting the offence have been duly established by the prosecution and, therefore, the judgment of acquittal deserves to be set aside.

The Court relied on judgment Anjanappa v. State of Karnataka, (2014) 2 SCC 776, it has been held by the Supreme Court as follows:

“9. It is well settled that an order of acquittal is not to be set aside lightly. If the view taken by the trial Court is a reasonably possible view, it is not to be disturbed. If two views are possible and if the view taken by the trial Court is a reasonably possible view, then the appellate Court should not disturb it just because it feels that another view of the matter is possible. However, an order of acquittal will have to be disturbed if it is perverse. We have examined the trial Court’s order of acquittal in light of above principles. We are of the considered opinion that the High Court was justified in setting it aside as it is perverse.

The Court after perusing evidence and facts observed that the finding of the Trial Court that the prosecution has failed to prove that soon before the death of the deceased she was subjected to cruelty on account of demand of dowry is totally based on the evidence available on record. Furthermore, from perusal of the evidence, it also appears that the fact regarding demand of dowry itself is suspicious.

The Court thus held “there is no manifest legal error in the judgment of acquittal recorded by the Learned Additional Sessions Judge and we do not consider it a fit case where this Court should re-appreciate the entire evidence on record or it is not a case where the view taken by the Additional Sessions Judge is so arbitrary or bears manifest error requiring interference.”

[State of Chhattisgarh v. Chameli Kaushik, 2022 SCC OnLine Chh 691, decided on 11-04-2022]


Appearances

For Appellant/State: Shri Kapil Maini


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: The bench of MR Shah* and BV Nagarathna, JJ has held that merely because a long period has lapsed by the time the appeal is decided cannot be a ground to award the punishment which is disproportionate and inadequate.

Factual Background

The Court was deciding the case where the accused was convicted by the trial Court for the offence under Section 307 IPC for having caused serious injuries on the vital part of the body of the victim/injured and sentenced him to undergo three years’ rigorous imprisonment. In the appeal before the Rajasthan High Court, the accused did not challenge the conviction, but only prayed the Court to reduce the sentence to the period already undergone by him by submitting that occurrence took place on 31.03.1989, i.e., about 26 years ago; that they were facing trial since last 26 years; and when the occurrence took place, they were young and now they are aged persons. The High Court, without any detailed analysis of the facts of the case, nature of injuries caused, weapon used, has simply reduced the sentence to the period already undergone (44 days).

Analysis and Ruling

The Court condoned the delay of 1880 days in preferring the appeal and observed that,

“Merely on the technical ground of delay and merely on the ground that after the impugned judgment and order, which is unsustainable, the accused have resettled in their lives and their conduct has since been satisfactory and they have not indulged in any criminal activity, is no ground not to condone the delay and not to consider the appeal on merits.”

The Supreme Court noticed that, in the present case, the accused could have been sentenced to undergo life imprisonment and/or at least up to ten years, however, the trial Court sentenced the accused to undergo three years rigorous imprisonment. Therefore, as such, the trial Court had already taken a very lenient view while imposing the sentence of only three years’ rigorous imprisonment. Therefore, the High Court ought not to have interfered with the same.

Noticing that the High Court has not at all adverted to the relevant factors which were required to be while imposing appropriate/suitable punishment/sentence, the Court held that the High Court had dealt with and disposed of the appeal in a most cavalier manner. The High Court has disposed of the appeal by adopting shortcuts. The manner in which the High Court has dealt with and disposed of the appeal is highly deprecated.

The Court, further made observation on the manner in which many High Courts are disposing off criminal appeals and said,

“We have come across a number of judgments of different High Courts and it is found that in many cases the criminal appeals are disposed of in a cursory manner and by adopting truncated methods. In some cases, the convictions under Section 302 IPC are converted to Section 304 Part I or Section 304 Part II IPC without assigning any adequate reasons and solely recording submissions on behalf of the accused that their conviction may be altered to Section 304 Part I or 304 Part II IPC. … We deprecate such practice of disposing of criminal appeals by adopting shortcuts.”

Therefore, the impugned judgment and order passed by the High Court reducing the sentence to the period already undergone (44 days) from three years rigorous imprisonment imposed by the trial Court was held to be absolutely unsustainable and was hence, quashed and set aside

“The judgment and order passed by the High Court reducing the sentence is nothing but an instance of travesty of justice and against all the principles of law laid down by this Court in a catena of decisions on imposing appropriate punishment/suitable punishment.”

Restoring the judgment of the Trial Court, the Court directed the accused to surrender before the appropriate jail authority/concerned Court, within a period of four weeks from the date of the judgment, to undergo the remaining sentence.

[State of Rajasthan v. Banwari Lal, 2022 SCC OnLine SC 428, decided on 08.04.2022]


*Judgment by: Justice MR Shah


For accused: Advocate Abhishek Gupta

Experts CornerTarun Jain (Tax Practitioner)

  1. Introduction

It is a well-known fact that there is an innate complexity in fiscal law and policy. It has been commented upon by many Judges, much less the experience of ordinary citizens, that it is not easy to decipher the fine text of the tax law. Such policy choices in fiscal laws, however, are there for specific reasons. Larger underlying objectives and competing priorities are often the reason for the crisscross in tax law and policy. A fairly recent debate upon the scope of appellate remedies under the anti-dumping duty (ADD) law is one such illustration which explains the reasons for controversies in the fiscal space. The issue at hand is an innocuous question regarding the jurisdiction of the Customs Excise and Service Tax Appellate Tribunal (CESTAT) and whether there is a provision to file an appeal in ADD dispute in a particular situation. In order to appreciate the controversy some background is necessary. It relates to the peculiar scheme of how the circumstances warranting the levy (or non-levy) of ADD are appreciated under the administrative and legal framework in India which will also explain the reason for the controversy.

  1. Legal framework for levy of anti-dumping duty in India

ADD is administered under the overall customs law framework in India. The Customs Act, 1962 (1962 Act) provides for the legal framework governing import and export of goods in India. However, the 1962 Act does not carry the rate of tax leviable as customs duty. The classification and rate of tax is provided for under the Customs Tariff Act, 1975 (1975 Act). The 1975 Act is also a repository of a host of other taxes which are imposed at the time of import or export of goods. For illustration, safeguard duty, countervailing duty, etc. are certain other illustrations of taxes imposed under the overall customs law framework. However, conceptually ADD is not a customs duty, the latter being levied upon the act of importation of goods in a particular country. Instead ADD is understood as a trade protection measure which is deployed by the importing country in order to deal with the pernicious activity of dumping of goods by another country in the importing country.

The levy of ADD is now internationally aligned in terms of the legal framework mooted by the World Trade Organisation (WTO), as codified in terms of the “Agreement on Implementation of Article 6 of the General Agreement on Tariffs and Trade 1994[1].” This agreement sets out the international consensus and standards on the ingredients to be satisfied for levy of ADD besides the procedural steps and safeguards which are to be observed by the importing country for the levy of ADD. India as a member of the WTO has adopted this framework on ADD both in letter and spirit. In fact the Supreme Court of India has categorically declared that the levy of ADD under the Indian law must be in due compliance of India’s commitment to agree and abide by the WTO Agreement on ADD.[2]

The legal framework in India relating to ADD is set out in Section 9-A of the 1975 Act. This provision is a standalone code governing the levy of ADD and is supplemented by three other provisions in the 1975 Act; (a) Section 9-AA, which provides for refund of ADD in certain cases; (b) Section 9-B, which specifies certain situations in which ADD is not to be levied; and (c) Section 9-C, which provides for appeal to CESTAT in ADD cases. The present controversy relates to the interpretation of this Section 9-C. However, we shall come back to it after a brief appreciation of the administrative position in which ADD is levied in India.

  1. Administrative scheme for levy of anti-dumping duty in India

The Government of India had adopted a peculiar scheme for levy of ADD. Ordinarily the Ministry of Finance (MoF) is the sole repository for the levy of taxes enacted by the Union Parliament. For illustration, income tax, wealth tax, service tax, central excise duty, customs duty, etc. are the various union taxes which have been implemented and enforced by the MoF. The levy of ADD is also the responsibility of the MoF. However, unlike other taxes where the MoF is this sole Judge and authority on the executive and administrative framework of all union taxes, such is not the case in ADD. Instead, an inquiry as to whether ADD should be levied or not is undertaken by the Ministry of Commerce and Industry (MoC) of the Government of India.

The Directorate General of Trade Remedies (DGTR), as a department of the MoC, undertakes the investigation if there is dumping and whether ADD is required to be levied in a given situation. This investigation is undertaken in terms of the Customs Tariff (Identification, Assessment and Collection of Anti-Dumping Duty on Dumped Articles and for Determination of Injury) Rules, 1995 (1995 Rules). These 1995 Rules supplement the legal framework for levy of ADD by laying out the detailed procedural framework to be followed by the DGTR during the investigation, including rights and obligations of the affected parties.

What is notable in the aforesaid scheme is that the principal agency empowered to carry out the investigation (i.e. MoC), however, does not have the authority to implement the levy of ADD. The MoC, in a situation in which it considers that levy of ADD is warranted after a technical evaluation of the prescribed variable, can only make a recommendation to the MoF to such effect. It is thereafter the MoF which is the final arbiter as regards the decision whether or not to levy ADD. This is not a mere procedural mechanism whereby the MoC would recommend and the MoF would routinely impose ADD. Instead, it is the MoF which independently evaluates, having regard to other factors which it finds relevant to adjudge the recommendations of the MoC and thereafter arrives at a conclusion whether or not the levy of ADD is warranted. In other words, the MoF can approve or reject the recommendations of MoC. There are multiple illustrations with many such frequent instances, where the MoF disagrees with the MoC and refuses to levy ADD despite a positive recommendation of the MOC to such effect.

  1. Contextualising the issue

It is in the aforesaid legal and administrative framework that the issue arises. Under law as also under the administrative framework, neither any parameter is set out as regards the obligation of MoF while considering the recommendations of MoC nor any enumeration of factors has been made which must be considered by the MoF in order to decide whether or not levy of ADD is warranted in a given fact pattern. Resultantly, the MoF only publishes its conclusion upon review of the recommendations of the MoC. In the event the MoF agrees with the recommendations of the MoC, it will issue a notification under the relevant legal provisions providing for levy of ADD. In such circumstances, the recommendations and the detailed findings of the MoC reflect the rational for the levy of ADD. The affected parties can rely upon such recommendations and findings in order to canvas appropriate legal action in case of prejudice being caused through such levy. In a reverse situation i.e. where the MoF disagrees with the recommendation of the MoC and chooses not to levy any ADD, in such a case the MoF publishes its conclusions regarding the disagreement. However, as a matter of convention, the MoF does not set out the reasons as to why it disagrees with the recommendations and findings of the MoC. It is at this stage that the issue arises because a decision not to levy ADD can also cause prejudice to certain persons.

The precise issue to be answered is whether there is a right of appeal in the event MoF rejects the recommendations of the MoC and decides not to levy ADD.

  1. Appreciating the appellate mechanism for anti-dumping duty

This takes us to legal framework relating to CESTAT as the Appellate Tribunal. Though CESTAT is constituted under the 1962 Act, it is also the Appellate Tribunal for the purposes of ADD. Section 129-B of the 1962 Act provides for the remedy of appeal before the CESTAT in respect of a matters arising in relation to customs law. There is, however, a distinct provision for appeal in relation to ADD. The difference between the scope of two provisions is stark and accordingly warrants a closer review.

Section 129-B of the 1962 Act provides for the appellate remedy against “any order” passed by the specified officer of customs.[3] This is, however, not the case with Section 9-C of the 1975 Act which provides for an appeal remedy before CESTAT in relation to the ADD. In this situation, the appeal provision permits an appeal only “against an order of determination or review” in relation to ADD.[4]

In the aforesaid background, a question has arisen as to whether an appeal can be filed before the CESTAT in a situation where the MoC recommends for levy of ADD but the MoF decides to the contrary and does not levy ADD. Before that, one may ask, why does the issue of filing of appeal even arises when no ADD is levied. This is an interesting question, the response to which lies in appreciating the scheme of ADD. There are multiple interested parties in an ADD contest. As noted above, ADD is a trade protection measure invoked by an importing country the situation of dumping is not conducive to its interests. This is because dumping hurts the domestic industry of the importing country engaged in the manufacture or trade of such goods which have been dumped from abroad. Thus, in a situation where the MoC has concluded and recommended upon the levy of ADD, it implies that there is indeed dumping of goods being carried out in India by the exporters of another country which is creating injury to the domestic industry of India. Thus, in a situation where the MoF disagrees with the recommendation made by the MoC to levy ADD, the view of MoF prejudices the interests of the domestic industry of India insofar as no ADD would be imposed despite the conclusion by the MoC that such ADD is warranted in order to protect the interests of the domestic industry. In such a circumstance, therefore, it is obvious to expect that the domestic industry would be aggrieved by the decision of MoF not to impose ADD and may like to claim legal remedies against the refusal of the MoF to impose ADD. This takes us to the conjoint questions, whether CESTAT has jurisdiction in such a situation and whether the domestic industry (being an aggrieved party) can successfully prosecute an appeal against the MoF’s refusal to levy ADD.

  1. Stock-taking the rival contentions and the current position

There are certain well-settled legal aspects regarding right to appeal; (a) an appeal is a creature of statute; (b) there is no inherent right to file an appeal; (c) a remedy by way of appeal must be specifically provided by law; and (d) no appeal is maintainable in the absence of a specific law providing for an appeal remedy.[5]

Applying this standard, a view has arisen that there is no right of appeal in a situation where the MoF refuses to levy ADD. The proponents of this view indicate two broad reasons to substantiate their position; (a) Section 9-C of the 1975 Act which provides the appellate remedy is limited to a situation where there is an “order of determination or review” in relation to ADD whereas no such order exists in wake of MoF’s refusal to accede to the views of the MoC; and (b) Section 9-C of the 1975 Act, which is specific to ADD, is at contrast with the appeal provision relating to customs duty under the 1962 Act. Under the latter, any person aggrieved has the right to file an appeal against any order passed by the specified customs officer. The contrast between the two provisions is crucial and determinative because this implies that a person being aggrieved is irrelevant under the 1975 Act, and also there is no right of appeal against every order of MoF. Accordingly it is argued that there is no legislative intent to provide for an appeal against MoF’s refusal to impose ADD.

Conversely, those carrying the opposite view contend that the refusal of the MoF to impose ADD despite a positive recommendation of the MoC warrants a judicial review and the appeal mechanism cannot be made defunct by the MoF’s refusal to provide reasons for its disagreement with the detailed findings of the MoC. The proponents of this view highlight that the constitutional scheme neither permits any wing of the Government to act unilaterally or arbitrarily so as to trample upon the legal rights of the citizens nor can the government’s decisions affect the citizens without being substantiated with valid rationale and adequate reasons to support its decision. On this account it is argued that irrespective of the correctness of the view of the MoF that ADD should not be imposed, the MoF does not have an unbridled discretion and it is obliged to give reasons for its decision not to impose ADD. Such reasons it is further contended, must be also subjected to judicial review as non-levy of ADD (particularly when one wing of the Government has concluded and recommended levy of ADD) has serious consequences and severely prejudices the affected domestic industry.

It is crucial to note that the aforesaid discussion and the rival positions are not a hypothetical or mere academic inquiry and in fact have received judicial advertence. In Jindal Poly Film Ltd. v. Designated Authority[6] the Delhi High Court by way of a detailed order rejected a writ petition (as non-maintainable) against refusal of the MoF to levy ADD being of the view that even in such a situation an appeal was maintainable before the CESTAT.[7] This order of the High Court was premised principally upon the conclusion that the refusal of the MoF to levy ADD also constitutes an “order of determination” and thus appeal is indeed maintainable. This order actually reversed the tide as prior to this delineation by the Delhi High Court, the CESTAT was taking a consistent view that no appeal is maintainable when no ADD is levied by the MoF.[8]

The High Court’s exposition of the statutory provisions, however, appears not to have extinguished the debate. For illustration, the Government continues to hold the view that an order of the MoF refusing to levy ADD cannot be subjected to appeal before the Appellate Tribunal. This view of the Government has been noted by the Appellate Tribunal but only to be rejected.[9] However, at this stage, it is not clear if the Government has accepted the position emanating from the legal exposition of the Delhi High Court or would seek the final view by way of appeal to Supreme Court. Thus, as of date, precarious tranquillity prevails on the lis and the aggrieved domestic industry.

  1. Factoring the policy considerations

It is critical to note that the determination whether or not an appeal lies against the MoF’s decision not to levy ADD does not depend only on the interpretation of Section 9-C of the 1975 Act. Instead, there are multiple policy considerations which are relevant in order to arrive at a balanced position. Some of these are enlisted below:

  • The 1995 Rules provide the statutory framework for the levy of ADD. Of these, Rule 18 is relevant for the purpose of our inquiry. It states that “[t]he Central Government may, within three months of the date of publication of final findings by the designated authority under Rule 17, impose by notification in the Official Gazette, … anti-dumping duty ….” Two aspects of this provision are relevant. First, there is no obligation upon the Central Government to impose ADD as Rule 18 states “may”. The contours of this expression are well settled, especially when contrasted from the expression “shall”, which is also frequently employed[10] in the 1995 Rules. Put differently, there is no obligation upon the Government to impose ADD and instead it is the discretion of the Government to impose a tax. Thus, the necessity for judicial review is doubtful. Second, Rule 18 clearly delineates the position of MoC vis-à-vis MoF. The MoC, acting through the DGTR is referred only as the “designated authority” in the 1995 Rules whereas it is the MoF which acts as the “Central Government” in the setting of Rule 18. Thus, the decision to levy or not to levy the ADD is of the MoF and no legal consequences should arise from the determination and recommendations of the MoC alone.
  • In addition to the aforesaid aspect a critical and noteworthy aspect is that ADD is a tax. Under the constitutional scheme, the judiciary is certainly competent to annul a tax liability or even quash the statutory provision levying a tax. However, it is doubtful if the judiciary can direct the Government to issue a particular notification[11] or levy the tax itself. Equally, levy of tax is policy matter where is generally beyond the judicial prowess, especially in the fiscal realm.[12] In fact, in the very context of ADD, there are decisions to support that levy of ADD is a legislative function.[13]
  • The decision of the Gujarat High Court in Alembic[14] provides an added perspective insofar as it highlights the limited role of MoC and the larger balancing rule of MoF in the context of ADD so as to approve the MoF’s exclusive role by enumerating a host of factors which require appreciation. One of these overwhelming reasons assigned by the High Court to approve independent role and overriding authority of the MoF relates to the finer distinction between the role of MoF and the MoC. According to the High Court, the role of MoC is limited and “specific, to ascertain existence, degree and effect of any alleged dumping and various factors connected therewith”. In comparison, the role of MoF is much wider as it needs to appreciate a “[n]umber of other questions of larger public interest such as possible impact of ADD on other industries, on consumption, on supply, etc. of such articles may not possibly be within the purview of designated authority while carrying out investigation envisaged under the rules”. Hence, the statutory provisions should not be interpreted in a manner which renders MoF to “be oblivious of all such factors and once through mathematical exercise, task of ascertaining extent of dumping and causal injury to the domestic industry is completed, necessarily to such extent, ADD must follow. Any such proposition would be putting the Central Government into too straitjacket a situation wherein on a mere ascertainment of dumping and its impact on domestic industry, the Government in all cases invariably be bound to impose duty irrespective of fact that such imposition may for valid reasons found to be not in public interest”.
  • The decision in Alembic[15] is also relevant from the perspective of the wide-ranging non-legal variables which form the MoF’s zone of consideration while evaluating MoC’s recommendations. In this case the MoF defended non-levy of ADD inter alia citing lack of domestic industry’s capacity to address the local demand, which defence was accepted by the High Court. Courts are clearly not the best forums for adjudication of such economic and financial variables.[16]
  • Also relevant is the perspective that there are inherent differences in scope and approach of judicial review between an appeal remedy before the CESTAT versus a writ petition before the High Court. This is because it is well settled that the appellate forum is obliged to examine validity of appeal and all antecedents to it, including review of all aspects relating to the order challenged before it.[17] This scope of appeal is at contrast with the scope of inquiry in a writ petition wherein the High Court generally has a limited scope to address violation of constitutional rights or legal errors without adverting to disputed questions of facts. Thus, pragmatically there is a significant distinction in the standard of judicial review by CESTAT in appeal vis-à-vis High Court in writ petition. Thus, there is added reason to determine the correct forum to address propriety of MoF’s refusal to levy ADD.
  • In any case, the scheme of appeal before the CESTAT in an ADD dispute is also peculiar. Unlike the provision under the 1962 Act which confers wide powers upon the CESTAT, limited powers are vested in the CESTAT under the 1975 Act in respect of ADD disputes. To elaborate, Section 9-C(4) of the 1975 Act states that “the provisions of sub-sections (1), (2), (5) and (6) of Section 129-C of the Customs Act, 1962 shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962”. Section 129-C of the 1962 Act, however, has clauses (1) to (8). Thus, clauses (7) and (8) of Section 129-C of the 1962 Act do not apply to CESTAT while considering ADD appeals under Section 9-C of the 1975 Act. This has a crucial relevance because clause (7) vests the powers of a civil court in the CESTAT thereby authorising it to pass orders for “(a) discovery and inspection; (b) enforcing the attendance of any person and examining him on oath; (c) compelling the production of books of account and other documents; and (d) issuing commissions”. Clause (8) deems “any proceeding before the Appellate Tribunal … to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the Penal Code”. By exclusion of these clauses (7) and (8), therefore, the 1975 Act has severely restricted the powers and scope of inquiry by the CESTAT. Does this aspect manifest the legislative intent of a limited scope of review by the CESTAT in ADD matters generally?

8. Conclusion

The aforesaid discussion, even though hinged upon the interpretation of statutory provisions governing appeal in ADD matters, reveals the complexities which are inherent in tax policy. Viewed from the judicial perspective, the observations of the Delhi High Court and the CESTAT’s current outlook appear to be a reasonable interpretation to subject MoF’s refusal to levy ADD within the appellate framework. However, examined from the larger policy perspective, many other variables require appreciation in order to arrive at a balanced conclusion which takes into consideration the innate limitations of a judicial review whether to impose a tax, such as the ADD. One would hope that the debate attains a quietude sooner than later, given the larger implications the conclusion has on the role of judiciary in rejudging the government’s decision not to levy a tax.

 


Tarun Jain, Advocate, Supreme Court of India; LLM (Taxation), London School of Economics

[1] Available HERE

[2] Commr. of Customs v. G.M. Exports, (2016) 1 SCC 91.

[3] S. 129-B of the Customs Act, 1962, providing for “appeals to the Appellate Tribunal” inter alia states that “any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order ….”

[4] S. 9-C(1) of the Customs Tariff Act, 1975, providing for “appeals” states that “an appeal against the order of determination or review thereof shall lie to the Customs, Excise and Service Tax Appellate Tribunal constituted under S. 129 of the Customs Act, 1962 (hereinafter referred to as “the Appellate Tribunal”), in respect of the existence, degree and effect of – (i) any subsidy or dumping in relation to import of any article; or (ii) import of any article into India in such increased quantities and under such condition so as to cause or threatening to cause serious injury to domestic industry requiring imposition of safeguard duty in relation to import of that article”.

[5] See generally, Raj Kumar Shivhare v. Directorate of Enforcement, (2010) 4 SCC 772.

[6] 2018 SCC OnLine Del 11395 : (2018) 362 ELT 994.

[7] 2018 SCC Online Del 11395 : (2018) 362 ELT 994.

[8] For illustration, see SI Group India (P) Ltd. v. Designated Authority Anti-Dumping Appeal No. 50456 of 2017, decided by CESTAT, Delhi on 17-8-2017 vide Final Order No. 56445 of 2017, following Panasonic Energy India Co. Ltd. v. Union of India Anti-Dumping Appeal No. 50452 of 2017 decided by CESTAT, Delhi on 20-7-2017 vide Final Order No. 55305 of 2017.

[9] Jubilant Ingrevia Ltd. v. Union of India, Anti-Dumping Appeal No. 50461 of 021, decided by CESTAT, Delhi on 27-10-2021 vide Final Order No. 51988 of 2021. This final order has been followed subsequently by the CESTAT in Assn. of Chloromethanes Manufacturers REGUS v. Union of India, 2021 SCC OnLine CESTAT 2622 and SI Group India (P) Ltd. v. Union of India, 2021 SCC OnLine CESTAT 2623.

[10] For illustration, Rule 4 states that “[i]t shall be the duty of the designated authority, in accordance with these rules, ….” As another illustration, Rule 5 states, “the designated authority shall initiate an investigation to determine the existence, degree and effect of any alleged dumping only upon receipt of a written application by or on behalf of the domestic industry”.

[11] See generally Mangalam Organics Ltd. v. Union of India, (2017) 7 SCC 221.

[12] See generally, Federation of Railway Officers Assn. v. Union of India, (2003) 4 SCC 289 inter alia observing that “[i]n examining a question of this nature where a policy is evolved by the government judicial review thereof is limited. When policy according to which or the purpose for which discretion is to be exercised is clearly expressed in the statute, it cannot be said to be an unrestricted discretion. On matters affecting policy and requiring technical expertise court would leave the matter for decision of those who are qualified to address the issues. Unless the policy or action is inconsistent with the Constitution and the laws or arbitrary or irrational or abuse of the power, the court will not interfere with such matters”.

[13] This aspect, however, is a debatable proposition. For rival positions, see generally, Haridas Exports v. All India Float Glass Manufacturers’ Assn., (2002) 6 SCC 600 and Reliance Industries Ltd. v. Designated Authority, (2006) 10 SCC 368.

[14] Alembic Ltd. v. Union of India, 2011 SCC OnLine Guj 7686.

[15] 2011 SCC OnLine Guj 7686.

[16] See generally, Manohar Lal Sharma v. Narendra Damodardas Modi, (2019) 3 SCC 25.

[17] Kapurchand Shrimal v. CIT, (1981) 4 SCC 317.

Case BriefsSupreme Court

Supreme Court: In a trade mark infringement case where interlocutory injunction was sought during the pendency of the suit, the bench of L. Nageswara Rao and BR Gavai*, JJ, was faced with a strange situation where at first, an adjournment order of the single judge of Calcutta High Court was treated as a ‘judgment’ and appealed against and later on, in appeal, the division bench took in upon itself to dispose of the interlocutory application instead of relegating it to the court below for its disposal because it did not want to prolong the litigation.

Single Judge Bench’s order

The order was postponement of the question as to whether the respondent-plaintiff was entitled to grant of an ad-interim injunction or not, and that too, by merely three weeks.  The order was only giving an opportunity to the appellants-defendants to file their affidavit-in-opposition within a period of two weeks. The order clarified that no prayer for extension of time shall be entertained.

Was it a ‘judgment’?

There was no adjudication with regard to the rights of the respondent-plaintiff to get an ad-interim injunction during the pendency of the suit.  Though by postponement of the issue with regard to grant of ad-interim injunction, the order might have caused some inconvenience and may be, to some extent, prejudice to the respondent-plaintiff; the same could not be treated as a ‘judgment’ inasmuch as there was no conclusive finding as to whether the respondent-plaintiff was entitled for grant of ad-interim injunction or not.

“As such, the order passed by the learned Single Judge did not contain the traits and trappings of finality. If it is held otherwise, this will open a floodgate of appeals for parties who may even challenge the order of adjournment or grant of time to the other side to file affidavit-in-reply.”

Hence, the said order cannot be construed to be a ‘judgment’ within the meaning of Clause 15 of Letters Patent and as such, the appeal to the Division Bench of the High Court was not tenable.

Division Bench’s order

The Single Judge passed an order on 2nd  April 2019 and the appeal to the Division Bench was filed immediately thereafter in the month of April, though the exact date of filing of appeal is not known. The judgment and order impugned herein was passed after a gap of about 8-9 months from the date of the order passed by the Single Judge.

The perusal of the judgment and order impugned herein would clearly reveal that the counsel for the appellants-defendants had specifically submitted that the appeal was against an ad-interim order and therefore, the appellate court should not interfere by substituting its views but should instead direct a speedy hearing of the interim application of the respondent-plaintiff. The Division Bench of the High Court after recording the said submission, observed thus:

“Before entering into a discussion with regard to the merits of this case I say that all the facts and papers which were necessary for deciding the prima facie case of the parties were before us.  On these facts and evidence we were in a position to assess their respective   prima   facie   case   and   the   balance   of convenience. In those circumstances we propose to dispose of the interlocutory   application   ourselves   instead of entering a prima facie finding and relegating it to the court below for its disposal. That would be unnecessary prolongation of the litigation and utter wastage of time.”

What was wrong with the order?

The Supreme Court could not understand the anxiety on the part of the Division to itself dispose of   the interlocutory application instead of relegating it to the court below for its disposal when it itself took 8-9 months to decide the appeal.

“If the learned Judges of the Division Bench were so much concerned with the prolongation of litigation, they could have very well requested the learned Single Judge to decide the injunction application within a stipulated period. Instead of waiting for a period of 8-9 months, this could have been done by them at the very first instance when the appeal was listed. The hierarchy of the trial court and  the appellate  court  exists  so  that the  trial court exercises its discretion upon the settled principles of law.  An appellate court, after the findings of the trial court are recorded, has an advantage of appreciating the view taken by the trial judge and examining the correctness or otherwise thereof within the limited area available. If the appellate court itself decides the matters required to be decided by the trial court, there would be no necessity to have the hierarchy of courts”

Hence, having waited for 8¬9 months after the Single Judge had passed the order, all that ought to have been done by the Division Bench was to request the Single Judge to decide the application for ad-interim injunction, which in fact, the Single Judge had scheduled to do after three weeks from 2nd April 2019.  It was not even necessary for the Division Bench to have waited till 24th December 2019 and taken the pains of deciding the application at first instance.  It could have very well, in the month of April, 2019 itself, done the exercise of requesting the Single Judge to decide the application as scheduled.

In any event, though the Division Bench of the High Court observes that for deciding the question with regard to grant of interim injunction, it has to put itself in a position as if it was moved to pass an interim order in the suit, it even fails to take into consideration the principles which a court is required to take into consideration while deciding such an application.

Cost Imposed

The Court observed that it is high time that this Court should take note of frivolous appeals being filed against unappealable orders wasting precious judicial time. As it is, the courts in India are already over-burdened with huge pendency. Such unwarranted proceedings at the behest of the parties who can afford to bear the expenses of such litigations, must be discouraged.

Hence, the Court order the respondent-plaintiff to pay a token cost of Rs.5 lakhs to the Supreme Court Middle Income Group Legal Aid Society.

[Shyam Sel and Power Ltd. v. Shyan Steel Industries Ltd., 2022 SCC OnLine SC 313, decided on 14.03.2022]


*Judgment by: Justice BR Gavai


For Appellants: Senior Advocate Mukul Rohatgi

For Respondents: Senior Advocate Neeraj Kishan Kaul

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Anand Pathak and Satish Kumar Sharma, JJ., dismissed a writ appeal under Section 2(1) of the Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005.

Appellant was tried for offence under Sections 294, 336, 341, 506-B of IPC. On the basis of witnesses turned hostile, acquittal has been recorded in favour of appellant so far as offence under Sections 294 and 336 of IPC are concerned. In respect of offence under Sections 341 and 506-B of IPC, complainant and accused entered into settlement and matter has been compromised in respect of those set of allegations pertaining to those offence under Sections 341 and 506-B of IPC.

Counsel for the appellant/petitioner submitted that Single Bench of the Court did not consider the correct import of judgment rendered by the Supreme Court in the case of Avtar Singh v. Union of India, (2016) 8 SCC 471 and caused illegality while affirming the impugned order whereby appellant had been found unfit for appointment on the post of police constable.

Advocate General for the respondents/State submitted that the authorities exercising discretion came to the conclusion that under the present facts and circumstances of the case, appellant did not deserve to be retained in the department as police constable. It was further observed by the Superintendent of Police, District Shivpuri that his acquittal does not come under clean acquittal, therefore, he was not befitting to be retained in police department.

The Court opined that in Avtar Singh (supra) case the Supreme Court had delineated the principles in detail and sufficient discretion had been given to the departmental authorities to look into the matter of different exigencies and thereafter, take a call regarding suitability of candidate if he suffers any criminal trial or registration of offence. The Court was of the view that the Single Judge had considered all the necessary contours of the controversy in detail and thereafter, came to the conclusion about role of appellant vis-a-vis allegations and thereafter, dismissed the petition.

The Court dismissed the appeal holding that when authorities take a view in a particular manner then scope of discretion is limited and thus there is no case of interference.[Bhagwat Singh v. State of M.P., 2022 SCC OnLine MP 457, decided on 11-03-2022]


For the appellant/petitioner: Mr Nirmal Sharma

For the respondents/State: Mr MPS Raghuwanshi


Suchita Shukla, Editorial Assistant has reported this brief.

Customs, Excise and Services Tax Appellate Tribunal
Case BriefsTribunals/Commissions/Regulatory Bodies

Customs Excise and Service Tax Appellate Tribunal: Anil Choudhary (Judicial Member) dismissed applications filed by the Revenue pertaining to rectification of mistakes.

All the appeals had arisen from the common order-in-appeal, whereby the claim of interest on the amount deposited during investigation, and was finally refunded on being successful in appeal, was denied holding that the amount deposited during the investigation, ipso facto, becomes pre-deposit when the assessee carries the dispute before the Appellate Forum.

The Tribunal found that there was no error in the Final Order and the Rectification of Mistake Applications were without any merit.[Hitesh Industries v. Commr. of CGST, 2022 SCC OnLine CESTAT 60, decided on 09-03-2022]


Shri Bipin Garg and Ms J. Kainaat, Advocates for the appellant.

Shri Pradeep Gupta, Authorised Representative for the respondent/Department


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

Court of Appeal of the Democratic Socialist Republic of Sri Lanka: The Division Bench of P. Kumararatnam and  Sampath B Abayakoon, JJ., while hearing an appeal against the order of the High Court dismissed the same holding that the observation of the High court was appropriate.

In the instant case, the victim was the mother-in-law of the appellant in relation.  The incident took place on 06-07-2010 when the appellant visited the home of her mother-in-Law and informed her that her wife has run away with some other person. It was noteworthy that after a span of a short while the appellant attacked the victim from the back side behind using an axe and then eventually ran away from the crime scene. After trial, the appellant was found guilty as charged, and the High Court Judge after hearing both the parties on the sentence, imposed a term of four years rigorous imprisonment to the accused and a fine.

In the present appeal, the counsel for appellant contended that the appellant was 60 years old with three children and a farmer by profession and also that he has no previous convictions. The counsel further reiterated the same mitigatory circumstances and pleaded that given the circumstances, Court may consider the suspension of sentence imposed upon him.

The Court opined that the term of imprisonment imposed by the High Court Judge to the appellants was very much adequate given the facts and circumstances of the case and that the High Court has considered the mitigatory circumstances as well as the gravity of the offence. The appeal was dismissed.[Ratnayaka Arachchilage Wijesinghe v. The Attorney General, CA/HCC/0218/2018, decided on 07-03-2022]


Kugarajah for the Accused-Appellant

Maheshika Silva SSC for the Respondent


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Subodh Abhyankar and Satyendra Kumar Singh, JJ., dismissed an appeal which was filed being aggrieved ofthe order passed by Single Judge wherein he quashed the earlier impugned order passed by the Sub-Divisional Magistrate whereby custody of the children of the appellant was given to her husband (respondent 4). The Single Judge had only partly granted relief by not giving any express direction restoring the custody of the children in favour of the appellant.

Counsel appearing for the appellant had submitted that despite the petition being allowed and the impugned order being quashed, the appellant/petitioner had got no relief as custody of her both the sons have not been given to her, despite the fact that their custody was illegally obtained by the respondent 4 in the first place.

Counsel appearing for the respondent 4, on the other hand had opposed the prayer and it was submitted that no interference was called for as the aforesaid order had been passed by the Single Judge after having an interaction with the respondent 5 and 6, who had expressed their willingness to reside with their father the respondent 4 only.

The Court was of the view that it was true that both respondent 5 and 6 are minor, however, the age of 16 years is not such an age where a child, given a choice, is not able to make up his or her mind as to his or her inclination to reside with either of the parents. In the present case, this choice has been exercised in favour of the father and thus, despite agreeing with the contentions of the appellant/petitioner regarding the legality of the impugned order, the Writ Court has not found it to be appropriate to hand over the custody of the children to the appellant/petitioner/wife.

The Court observed that in the present case, it was nobody’s case that respondent 4 was in any manner incompetent or was having such vices which may prejudice the interest of the children in his company. Thus, the appeal was dismissed.[Jaya Chakravarti v. State of Madhya Pradesh, 2022 SCC OnLine MP 450, decided on 02-03-2022]


Shri Prateek Maheshwari, Counsel for the appellant.

Smt Archana Kher, Deputy Advocate General for the respondent 1 to 3/State.

Shri A. K. Saxena, Counsel for the respondent 4 to 6


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Meghalaya High Court: The Division Bench of  Sanjib Banerjee and W. Diengdoh, JJ., while hearing an appeal which challenged the judgment of conviction of December 21, 2018, which convicted the appellant under Section 3(a) R/W Section 4 of the Protection of Children from Sexual Offences Act, 2012, upheld the same and stated that there was no good reason to interfere with the judgement of the trial court.

The main issue before the court was whether the view taken by the trial court in the present appeal which was regarding the commission of rape by the appellant over a 14 year old minor girl was appropriate or not?

The main contention from the side of the appellant was that the sole basis of Conviction was the statement of the alleged victim considering the fact that there was no eye witness and moreover the corroboration was made regarding the entire incident based on the statement of the close relatives of the victim. Another important submission from the side of the appellant was that there was considerable enmity between the father of the alleged victim and the appellant since the appellant had tried to dissuade the father of the alleged victim from continuing an extra-marital affair with an aunt of the appellant.

Another submission from the side of the appellant was that there had been an unusual delay from the side of the victim in lodging the FIR, to which the court was of the opinion that the delay was usual as the victim was threatened by the appellant to be killed and thus the family waited for her father to return in order to proceed with the FIR and hence the delay was justified.

The appellant also argued over the fact that, in course of the medical examination conducted on the alleged victim, an irregular tear of the hymen was noticed and the medical examiner opined that there were signs of penetrative sex, the fact that the alleged victim did not reveal any sign of external injury would take much of the sheen off her allegations against the appellant.

The Court opined that in the present case, the victim’s initial statement and the subsequent testimony bear a close resemblance and she did not flinch during her cross-examination and was perceived by the trial court to have truthfully made the statement. It is difficult to imagine that a conspiracy of such a large-scale could be hatched by the father of the victim along with his three daughters to make a false allegation against the appellant and go through the process in such a perfect manner.

On the basis of the above stated observation and the material and evidences that were placed on record, in the view of the Court it was beyond reasonable doubt that the incident had taken place as the medical examination confirmed penetration and that the appellant had committed the offence. The appeal was dismissed holding that the trial court took relevant considerations into account to arrive at an appropriate conclusion.[Trimborilin Kharbani v. State of Meghalaya, 2022 SCC OnLine Megh 32, decided on 01-03-2022]


For the Petitioner/Appellant(s) : Mr P Yobin, Legal Aid Counsel

For the Respondent(s) : Mr S Sengupta, Addl.P.SP


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Ravi Malimath, CJ. and Dinesh Kumar Paliwal, J. allowed an appeal which was filed aggrieved by the dismissal order of the petition by the Single Judge.

Respondents had filed an election dispute before the Registrar Co-operative Society, Bhopal challenging their election to the Board of Directors. During the pendency of the dispute, an application was filed by the respondents therein under Order VII Rule 11 read with section 151 of the Code of Civil Procedure seeking dismissal of the petition. While considering the said application, an interim direction was issued by the Registrar Co-operative Society, Bhopal to the effect that new members will not be admitted. That they will not allot plot to any new members and they will not take any policy decision. Thus, the instant petition was filed questioning the same. Single Judge had dismissed the petition.

The Court noted that the dispute pending with the Registrar was that of the election of the writ petitioner and others to the Board of Directors. The Court was of the opinion that whether it prejudices anybody or it is in the interest of the society or not, the power cannot be exercised by the concerned authority in an election petition but it does not mean that none of the members has any right to seek for any relief against the contesting respondents.

The Court set aside the order and allowed the appeal holding that Registrar who was trying the election dispute was exercising the power of the election tribunal. Therefore, he could not have passed orders even though it was in the interest of society. Respondent was however at liberty to file requisite application seeking appropriate relief before the appropriate authority.[Vikas Tiwari v. State of Madhya Pradesh, Writ Appeal No. 182 of 2022, decided on 28-02-2022]


For the appellant: Mr Anil Lala

For the respondents: Mr Suyash Thakur, Mr Sanjay K Agrawal


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Karnataka High Court: M. Nagaprasanna, J. allowed the criminal petition and quashed both the orders by the Magistrate and the Sessions Judge.

The facts of the case are such that the petitioner and the respondent are husband and Wife and the marital life between the couple have turned sore, pursuant to which respondent-wife filed a petition invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005. The Magistrate awarded maintenance of Rs.1,000/-. After invoking the provisions of the Act, the respondent-wife filed a invoking Section 127 of the Cr.PC. for enhancement of the maintenance amount awarded under the Act. The petition was allowed and the respondent-wife was awarded maintenance of Rs.5,000/- from the date of the order. Feeling aggrieved by the order, Criminal Revision Petition invoking Section 397 Cr.PC was filed. The Sessions Judge dismissed the said Revision Petition confirming the order passed by the Magistrate enhancing maintenance to the wife from Rs 1,000/- to Rs 5,000/-. It is these two orders that are called in question in the subject petition.

Counsel for the petitioner submitted that the respondent once having invoked the provisions of the Act could not have filed an application seeking enhancement under Section 127 of the Cr.P.C. The order passed by the learned Magistrate as affirmed by the learned Sessions Judge is orders without jurisdiction.

The Court observed that Section 125 of the Cr.P.C. enables the wife to seek maintenance at the hands of the husband inter alia. Invoking this provision, the learned Magistrate can award maintenance. Section 127 of the Cr.P.C. deals with alteration in allowance. Maintenance that is awarded under Section 125 of the Cr.P.C. can be varied in an application filed under Section 127 of the Cr.P.C. What is sine qua non is that an order of maintenance should precede a petition under Section 127 of the Cr.P.C., failing which, a petition under Section 127 of the Cr.P.C. seeking enhancement of maintenance is not available.

The Court further observed that it is an undisputed fact that the respondent-wife invoked the provisions of the Act in which maintenance was awarded. It is also an admitted fact that there is no proceeding initiated by the respondent-wife invoking Section 125 of the Cr.P.C. Therefore, without there being any determination of maintenance under Section 125 of the Cr.P.C. petition under Section 127 of the Cr.P.C. is not maintainable. The language employed in Section 127 of the Cr.P.C. is unequivocal as on a proof of change in the circumstances of any person receiving allowance under Section 125 of Cr.P.C. can maintain a petition under Section 127 of the Cr.P.C. A proceeding under Section 125 of the Cr.P.C. therefore should precede a proceeding under Section 127 of the Cr.P.C. The fact that a provision of Act was invoked for grant of maintenance and provisions of Cr.P.C. are invoked seeking enhancement of maintenance cannot be countenanced in law.

The Court thus held “the order passed by the learned Magistrate enhancing maintenance under Section 127 of the Cr.P.C. was without jurisdiction and a nullity in law. The foundation being a nullity in law, a super structure to it affirming the order of the learned Magistrate, by the learned Sessions Judge will have to follow suit – is to be declared a nullity in law.”

[Shivanand v. Basavva, Criminal Petition No. 101378 of 2019, decided on 17-02-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Delhi High Court: Expressing that, Minor mistakes of inconsequential importance are insufficient to seek a review, Asha Menon, J., elaborated that, while seeking review of orders passed in a Civil Suit, the grounds mentioned in Order XLVII Rule 1 of the CPC have to be satisfied, which would not equate the hearing with the original hearing of the case or a hearing in an appeal.

A review petition was filed wherein the petitioners/defendant submitted that order of the Court dated 7-1-2022 allowing in part the application moved by the respondent/plaintiff under Order XI Rules 2 and 14 of the Code of Civil Procedure, 1907 was liable to be reviewed, as erroneous directions were issued on the basis of an erroneous understanding of the facts of the matter.

Petitioners/defendants were gravely aggrieved by the directions issued by this Court to produce their third-party agreements, since the findings on the basis of which, the directions were issued, were contrary to the submission made by the parties.

Analysis, Law and Discussion

“Scope of a review is extremely limited.”

The errors raised by the petitioners/defendants required the Court to delve into the materials, apply its mind afresh after re-evaluating the materials and further, decide the application.

Bench found the Senior Counsel’s submission to be right, that such a course of action as stated above would be relevant in an appeal.

“An error which is not self-evident and has to be detected by a process of reasoning cannot be described as an error apparent on the face of the record, justifying the court exercising its power of review.”

High Court also observed that, fresh and additional material cannot be pressed into service to seek a review of an order.

The Bench added that the normal principle is that what is pronounced by the Court is final, else, there must be some manifest wrong caused leading to miscarriage of justice.

Settled Law

A review can by no means be an appeal in disguise where an erroneous decision is reheard and corrected, as has been sought to be urged in the present matter.

Review or Appeal?

High Court noted that the emphasis had been on the erroneous understanding of the pleadings of the parties which resulted in erroneous conclusions, hence rehearing was not possible to correct all the said “errors”.

Adding to the above, Court stated that “Error” has to be an error apparent on the face of the record to attract the provisions of Order XLVII Rule 1 of the CPC and must be a patent error which alone can be looked into in review proceedings.

High Court also reiterated the summary of principles governing review petitions as laid down in Kamlesh Verma v. Mayawati, (2013) 8 SCC 320.

Considering the above-stated decision, Bench held that no interference was needed for exercising review jurisdiction.

Therefore, in view of the above discussion, the review petition was dismissed. [Koninklijke Philips N.V. v. Vivo Mobile Communication Co. Ltd., 2022 SCC OnLine Del 470, decided on 15-2-2022]


Advocates before the Court:

For the Plaintiff:

Chander Lall, Senior Advocate with Ashutosh Kumar, Swamil Dey, Vrinda Bagaria, Munesh Sharma, Vinod Chauhan and Ananya Chugh, Advocates

For the Defendants:

Saikrishna Rajagopal, Julien George, Anu Paarcha, Arjun Gadhoke, Avijit Kumar, Aniruddh Bhatia, Skanda Shekhar, N. Parvati & Vivek Ayyagari, Advocates for D-1 & D-2

Nupur Aggarwal & Maanav Kumar, Advocates for D-3