Case BriefsTribunals/Commissions/Regulatory Bodies

Custom, Excise and Service Tax Appellant Tribunal (CESTAT): A Division Bench of Rachna Gupta (Judicial Member) and C.L. Mahar (Technical Member) dismissed a rectification appeal filed by the applicant.

The applicant had submitted that the Tribunal in the impugned order had committed an error by not dealing with the following contentions of the appellant as were made against impugned order-in-original dated 31-03-2014:

  • No specific categorization of demand was made in the impugned show-cause notice which should render the entire proceedings as vague and bad in law.
  • In Skylarks Cazers International v. CST 2018 (5) TMI 877, a similar demand was set aside for want of bifurcation of demand under various services.
  • The order omitted to consider the other grounds mentioned in the appeal and therefore must be an error apparent on the face of the record.

On the other hand, the department contended that the impugned appeal has been allowed by way of remand. The demand for Service Tax was confirmed on principle, however, quantification of the same was given to the adjudicating authority for de novo adjudication. Thus, all the grounds as raised by the appellant were not the subject matter of rectification of mistake.

The Tribunal explained that the show-cause notice proposing the impugned demand of Rs 64,04,301 was served upon the appellant observing that the appellant had a number of companies under its aegis and was availing payment of Service Tax by suppressing the full taxable amount collected from various clients who were receiving the services as that the security agency and manpower supply services from the appellant. The contention about show-cause notice being barred was also considered. Finally, the contention that the demand for gross turnover of all the services provided by the appellant without bifurcation had also been dealt with as the matter had been remanded back for the quantification of the demand on the basis of financial year-wise receipt service tax value.

The Tribunal finally dismissed the appeal stating that the decision cannot be re-opened under the guise of rectification of mistake. As far as the arbitrary/vagueness of a show-cause notice was concerned, the same was held to be correct in principle by the Tribunal. A decision on a debatable point of law or fact cannot be corrected by way of rectification. Otherwise also the impugned final order was remanded to the adjudicating authority for quantification of the demand. [Skylark Hi-Tech Solution (P) Ltd. v. Commissioner, 2019 SCC OnLine CESTAT 303, decided on 11-11-2019]

Case BriefsHigh Courts

Rajasthan High Court: The Bench of Arun Bhansali, J., allowed the application filed to seek corrections, however, the Court ordered the applicant to deposit cost in regard to this.

The facts of the case were that the petitioners sought correction in one of the petitioner’s father’s name in the cause title of the order passed. It was claimed that due to some clerical mistake and typographical errors, mistake qua petitioner’s father’s name was committed and, therefore, in the interest of justice, the same should be permitted to be corrected. Along with the application, the amended cause title was also filed.

The Court in lucid words stated that nature of mistake which was claimed to be inadvertent typographical/clerical errors indicated that it was actually the result of casualness on the part of petitioners/counsel for the petitioners and such nature of mistakes leads to unnecessary burden on the Court in thereafter permitting corrections once the cases are decided. However, in view of the fact that once the petition had been decided and if corrections were not permitted, the petitioners would not be able to reap the benefits of the order, the Court permitted the corrections. Nevertheless, for the casualness on the part of the petitioners/counsel for the petitioners, it was ordered that the petitioner deposit a sum of Rs 2000 as the cost with the Legal Services Authority of the Court. [Pep Singh Rathore v. State Of Rajasthan, 2019 SCC OnLine Raj 501, decided on 17-05-2019]

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): A Single Member Bench of Prem Narain (Presiding Member), partly allowed a review petition filed against the order of the Commission, whereby names of various complainants were included in the order although some of them had withdrawn their complaints while others were not even impleaded in the first place.

The main issue that arose before the Commission was whether any sort of interference was called for in the review petition filed by the petitioner.

The Commission observed that Section 22(2) of the Consumer Protection Act, 1986 (COPRA) is limited to the error apparent on the face of the record. The Commission then referred to the Supreme Court judgments of Union of India v. Sandur Manganese and Iron Ores Ltd., (2013) 8 SCC 337 and S.Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464, wherein it was held that the power of review cannot be exercised solely on basis that the parties do not agree with the view of the judgment, as long as the point is already dealt with and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction. Under the review jurisdiction, rehearing of issues is not allowed but the same issues can be decided just by a perusal of the records and if a prima facie error is detected then it can be corrected using the review jurisdiction. In the instant case, the error was apparent only with respect to certain complainants.

The Commission held that the names of those complainants, who had withdrawn their complaints and also those who were not impleaded in the complaint, can be deleted from the order; however, the similarly situated complainants can still derive the benefit of the impugned order since it was a class complaint. On the issue of compensation, the Commission held that some of the complainants had taken possession prior to the date till when the compensation was awarded to them, hence in such cases the compensation shall be given to them only up to the date when they were handed over the possession. Resultantly, the impugned order was modified and the review petition was partly allowed.[R.V. Prasannakumaar v. Mantri Castles (P) Ltd., Review Application No. 198 of 2018, order dated 27-11-2018]

Case BriefsHigh Courts

Orissa High Court: A Single Judge Bench of Dr B.R. Sarangi, J., dismissed a writ petition filed against the notification which had been issued in partial modification of a previous notification and a subsequent order passed by the Vice Chancellor of the University where the petitioner was studying. The petitioner was declared failed after the results were revised, whereas initially she was declared as 2nd Class passed.

The main issue that arose before the Court was whether the respondents had violated principles of natural justice while passing the impugned notification and the impugned order.

The Court observed that the petitioner was a regular student of the concerned University and it is undisputed that in the general examination held, she was initially declared pass in 2nd Division and she was also provided provisional pass certificate and mark sheet. Thereafter, the respondent authorities had revised the results and declared the petitioner as failed; vide impugned notification and the impugned order. The Court observed that if an authority has committed a mistake then it has every right to rectify the same and as per the evidence placed on record by respondents, it is crystal clear that there was a totaling error in case of petitioner and as soon as the error was detected it was rectified vide the impugned order. The Court then referred to the Supreme Court judgment of Raj Kumar Soni v. State of U.P., (2007) 10 SCC 635, wherein it was held that it is not always necessary for the Court to strike down an order merely because the order has been passed in breach of the principles of natural justice. The Court can refuse to exercise its discretion if striking down such an order will result in restoration of another order passed in violation of the principles of natural justice or otherwise not in accordance with law.

The Court held that following the decision of the Supreme Court, if an error was committed by the authority and the same was also rectified by it, then it cannot be said that any illegality or irregularity was committed by the respondents so as to call for interference of the Court under Article 226 of the Constitution of India. Resultantly, the writ petition was dismissed. [Sujata Patra v. Utkal University,2018 SCC OnLine Ori 418, decided on 20-11-2018]

Case BriefsHigh Courts

Jammu & Kashmir High Court: A Single Judge Bench of Sanjay Kumar Gupta, J., dismissed a petition filed under Section 561-A of the Jammu & Kashmir Criminal Procedure Code, 1889 (CrPC), whereby the order of framing of charge passed by the Additional Sessions Judge, Jammu, was challenged.

The respondent/complainant was traveling in his car along with his family members when petitioners in their car and a bike started following the respondent’s car. The petitioners were sometimes coming in front of the respondent’s car and sometimes behind it. On enquiring about the actions of petitioners, the respondent and his wife were beaten by the petitioners with a baseball stick. The respondent cried for help and some passerby intervened and the petitioner fled away from the scene thereafter.

The main issue that arose before the Court was whether the order of the ASJ suffered from any sort of legal infirmities.

The Court observed that according to the reports of the doctor, the injuries received by petitioner and his wife were not grievous in nature, however, non-seriousness of injuries should not be a criterion for framing charges against the accused. Factors such as place of injury; the intentions of accused at the time of inflicting the injuries, weapon of offence with which injuries are caused and other circumstances of the case must be kept in mind while framing the charges. The Court observed that in the instant case, the petitioners dragged the respondents out of their car and started beating them, it was only after the respondent started making hue and cry, some pedestrians gathered and saved the respondent and his wife. Had some person not come on spot, respondent and his wife would have been killed by the accused persons.

The Court held that considering the totality of facts and circumstances of the case, the ASJ did not commit any error while framing charges against the accused under Sections 307, 504 and 506 of the Ranbir Penal Code. Resultantly, the petition was dismissed.[Babloo Kumar v. State of J&K,2018 SCC OnLine J&K 834, order dated 16-11-2018]


Case BriefsForeign Courts

Supreme Court of Canada: This appeal was filed before a 5-Judge Bench comprising of Wagner, CJ. Abella, Cote, Rowe and Martin, JJ., against the judgment of the Court of Appeal of Newfoundland and Labrador.

Facts of the case were that one Mr. Normore was convicted for attempt to commit murder, uttering a threat to cause death and breaking and entering a place. His appeal against the above conviction was allowed by Court of Appeal. However, this appeal was filed by the Crown.

Supreme Court observed that trial court did not err in addressing a witness’s refusal to answer a question put to him by defence counsel. It was upon the discretion of the trial judge to take further steps in attempting to elicit an answer from the witness. Court found it proper on part of the trial judge to proceed to the main proceedings rather than using its discretion as the same was not found to have caused substantial wrong or miscarriage of justice. Therefore, the convictions were restored pursuant to Section 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46.  [Queen v. Alex Normore, No. 37993, dated 17-10-2018]


Case BriefsHigh Courts

Delhi High Court: The Division Bench comprising of Rekha Palli and Hima Kohli, JJ., allowed an appeal and set aside the order passed by Principal Bench, Central Administrative Tribunal, New Delhi concerning the cancelling of candidature for Civil Services Examination 2017 by UPSC.

The present petition was filed under Article226/227 of the Constitution of India, the petitioner had qualified his preliminary and mains stage for Civil Services Examination, 2016. It was noticed that he had mentioned different date of births for both the stages and on reaching the interview stage he filed an affidavit by mentioning the correct date of birth in compliance to his matriculation certificate. Though he did not clear the interview and had further applied for CSE, 2017 in which he again repeated the same mistake, for which a show cause notice was issued to him and his response, was recorded for the same. But due to an unsatisfactory response, his candidature was cancelled for CSE, 2017.

Further, aggrieved by the circumstances and on approaching the tribunal he was allowed to appear for the interview but his final results thereafter were withheld due to the pendency of proceedings at tribunal. Tribunal dismissed petitioner’s OA by upholding the respondent’s decision to cancel his candidature for CSE 2017 on the ground that the mistake was not inadvertent, but a deliberate one. Therefore, the petitioner approached High Court for the dismissal of the same.

The High Court on analysing the circumstances and facts of the matter stated that the mistake on the part of the petitioner in mentioning the date of birth incorrectly has no bearing either on his eligibility for CSE, 2017 or the benefits liable to be derived by him if he ultimately clears the examination. “Error on the part of the petitioner could not be treated as a misrepresentation or suppression of facts.” Thus it was also stated by the Court that in circumstances where petitioner is an SC candidate and a qualified engineer from IIT, cancellation of his candidature at the final stage, would be punitive action, completely disproportionate to a bonafide omission on his part. The order of tribunal and UPSC was quashed and set aside. [Anuj Pratap Singh v. Union of India,2018 SCC OnLine Del 10982, decided on 04-09-2018]