Case BriefsTribunals/Commissions/Regulatory Bodies

Customs, Excise and Service Tax Tribunal (CESTAT): Justice P. Dinesha (Judicial Member) allowed the appeal filed by a shipping company against the Commissioner of Customs. He further decided that the impugned penalties stand set aside.

The authorities filed allegations against the appellant under Sections 112(d) and 114AA of the Customs Act, 1962. A show-cause notice was issued against the appellant herein under Sections 28 and 124 of the Customs Act stating that he did not inform the Revenue that the importer did not possess licence for import of Chlorodifluoromethane (R-22 Gas); he did not present the imported goods for examination; and thus he was liable for penalty under Section 112(a) of the Act for abetting smuggling of R-22 gas, for non-compliance of Regulations 11(d) and 11(n) of the Customs Broker Licensing Regulations, 2013 (CBLR).

Issue: Whether the Revenue was justified in imposing a penalty under Sections 112 (d) and 114AA of the Customs Act, 1962 on the appellant who was only a Customs Broker and not the importer.

J.V. Niranjan, Advocate for the appellant, contended that the Revenue had not established mens rea for levying penalty and that the authorities did not conduct any investigation, filed an appeal against the above allegations. L. Nandakumar, Advocate for the Respondent, prayed for sustaining the penalty contending that the Bill-of-Entry did not contain sufficient details of the goods sought to be imported and the appellant did not bother to ascertain whether the importer had the required licence, constituting a serious lapse covered under Regulations 11(d) and 11(n) of the CBLR.

The Tribunal opined that the Revenue was not able to clearly establish either active or passive role or any deliberate or mala fide act; and the appellant had advised the importer as to the requirement of import licence, being sufficient compliance insofar as Regulation 11(d) is concerned. It was further held that the allegations were not sufficient to fasten with the penalty of the nature impugned as it was not established that appellant handled the work of clearance with mala fide motive and Sections 112(a) and 114AA of the Customs Act include an intentional or deliberate act or omission and even the motive is attributable to the act of abetment to do any act or omit to do any act.

The appeal was allowed stating that Section 114AA could be invoked only on the establishment of the fact that the declaration, statement or document submitted in the transaction of any business for the purpose of the act is false or incorrect. The penalties and impugned order confirming the penalties questioned herein was set aside. [Sea Queen Shipping Services (P) Ltd. v. Commr. of Customs, 2019 SCC OnLine CESTAT 1483, decided on 05-12-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: Sudip Ahluwalia, J. disposed of the matter directing the parties that a disputed land cannot be used by either of them and also stated that a regular second appeal can be accepted without a substantial question of law.

In the present case, a suit was filed by the respondent in the trial court seeking a mandatory injunction for removal of the temporary tin sheds and other obstructions allegedly raised by the appellant (defendant in the suit) on a piece of land which was a wide public land on the western side of appellant’s house. The disputed land was in an area named Madhu Colony, which was different from Sharma Colony where the respondent-plaintiffs house was located. The obstructions on this land caused a hindrance in the respondent’s (plaintiff in the suit) ingress and egress to his house. The Trial Court granted an injunction to the respondent. Appellant challenged the said order in the Court of District Judge, who dismissed his appeal. Thereafter, the present appeal was filed and the same was disposed of by a co-ordinate Bench of this Court in 2010 observing that plaintiff-respondent had no right of ingress and egress for his house through the disputed road, and thus the finding of the lower courts was reversed to that extent. However, the decree of the Courts below directing appellant-defendant to remove encroachment from the disputed road was affirmed. Aggrieved by this decision, respondent filed a Special Leave Petition (SLP) in Supreme Court and the matter was remitted back to this Court directing that it be seen if any substantial question of law arises in the second appeal and then rehear the parties.

Issue: where encroachments on the disputed land are directed to be removed by a Court, would the party directed to remove encroachments, be still entitled to use the said land for ingress and egress from the side gate of his house.

The Court relied on the decision in Pankajakshi v. Chandrika, (2016) 6 SCC 157 where it was held that provisions of the Punjab Courts Act, 1918, which permitted filing of Regular Second Appeals, was operative notwithstanding the restrictive conditions subsequently incorporated by way of amendment of Section 100 of the Code of Civil Procedure in 1976. Consequently, the requirement of framing any substantial question of law was no longer a sine qua non for deciding a Regular Second Appeal by this Court

It was opined that a substantial question of fact and law had arisen in this case. The Court noted that respondent-plaintiff had no case that he was using the disputed area for ingress and egress on account of any Easementary right, or even by way of ‘easement of necessity’. There was no evidence to the effect that the side gate of respondent’s house was constructed with the approval of municipal authorities.

Thus, the appeal was disposed of directing the appellant to remove tin-shed and other man-made structures raised by him on the disputed land; and the respondent was also directed to not use the disputed land for ingress and egress unless expressly authorized by the local authorities. Further, the respondent was granted liberty to demolish the unauthorized concrete structures on the disputed land, in case the same were not removed by the appellant.[Mohan Lal v. Baldev Raj, 2019 SCC OnLine P&H 698, decided on 30-05-2019]

Case BriefsHigh Courts

Delhi High Court: A Single Judge Bench comprising of Anu Malhotra, J., allowed a criminal petition filed against the judgment of the trial court wherein the appellant was convicted under Sections 392 and 397 IPC along with Section 27 of Arms Act.

The appellant was alleged to have robbed the house of the victim (complainant), and in the act, it was alleged, he used a deadly weapon (knife) that terrorized the victim. The appellant was booked under the above-mentioned sections. He was tried and convicted by the trial court. In the instant appeal, the appellant confined his challenge to the conviction under Section 397. It was contended that there were no allegations against the appellant that he used any deadly weapon in the course of committing the robbery, and as such, he could not be convicted under the said section.

The High Court perused the record and found that in his statement, the victim clearly stated that the co-accused in the case had a knife. But as to the appellant, the victim stated that he did not remember what weapon the appellant was holding. The Court referred to a Supreme Court decision in Dilawar Singh v. State of (NCT of Delhi),(2007) 12 SCC 641: (2008) 3 SCC (Cri) 330, wherein it was held, the word ‘offender’ (as used in Section 397 IPC) envisages individual liability and not any constructive liability. In the instant case, though recovery of the knife was made on the statement of the appellant, however, no specific attributions were made to the appellant carrying a knife at the day of the incident. Noting such facts and circumstances, the High Court held that no culpability could be fixed against the appellant under Section 397, for which the use of a knife is a sine qua non. Accordingly, while upholding his conviction under Section 392 IPC along with Section 27 of Arms Act, the High Court set aside the appellant’s conviction and sentence under Section 397 IPC. [Mumtaz v. State,2018 SCC OnLine Del 9534, decided on 13-06-2018]