Supreme Court

CRRC Corporation Ltd. V.  Metro Link Express for Gandhinagar and Ahmedabad (MEGA) Company Ltd.

MANU/SC/0633/2017

15.05.2017

Contract

Government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of Clause of tender conditions

In instant case, dissension centres around exposition of an eligibility norm engrafted in tender conditions qua a prestigious project with global participation. Appellant stands disqualified by Respondent on touchstone of its perception of relevant qualifying criterion as endorsed by High Court vide judgment rendered in Special Civil Application, thus propelling it to this Court for redress. Appellant submitted that, exposition of Clause 2.4 of "Evaluation and Qualification of Criteria" furnished on behalf of MEGA and endorsed by High Court is patently erroneous and is incompatible with letter and spirit of Clause 4.1. Issues involved in present case is whether Appellant-corporation, to meet experience norm, as prescribed by Clause 2.4 of "Evaluation and Qualification of Criteria", can utilize experience of its subsidiary companies to qualify in "Initial Filter-cum-Qualification Requirement Bid".

Reading of Clause 4.1 of Instructions to Bidders reveals that, a bidder can be a single entity or a combination of such entities in form of a J.V. or a Consortium under an existing agreement or with intent to enter into such an agreement supported by a letter of intent. Thus, a single entity has been construed to be a valid bidder for all intents and purposes. In view of magnitude of project as well as experience and expertise essential for quality execution thereof, there seems to be no justification to infer, at first place, to exclude a government owned entity with its 100% wholly owned subsidiaries to be ineligible to participate in process. A single entity would assuredly include such a government owned entity along with its 100% wholly owned subsidiaries.

As recorded in Consortium of Titagarh Firema Adler SPA-Titagarh Wagons Ltd. v. Nagpur Metro Rail Corporation Limited, Appellant-corporation is a government owned entity with 100% wholly owned subsidiaries as a composite unit, so much so that, experience of any one of its constituent 100% wholly owned subsidiaries would be construable as its experience. It was proclaimed that, Petitioner (Respondent No. 2 therein) was a Government Company and owner of its subsidiary companies and that concept of "government own entity" could not be given a narrow construction so as to exclude its subsidiaries with their experience and that there was no necessity for formation of a joint venture and consortium for Government own entity to avail benefit of experience of its subsidiary companies. Acceptance of Petitioner (Respondent No. 2) therein in context of work awarded to it was in accord with public interest, Process of merger of M/s. CNR Corporation and M/s. CSR Corporation and integration thereof along with their subsidiaries to metamorphosise into Appellant-corporation is borne out by coeval records.

In that view of matter, status and entitlements of Appellant-corporation, as already adjudicated in Consortium of Titagarh Firema Adler SPA, as a single entity bidder in present tender process would also by yardstick of simple logic and analogy be available to it. Absence of words "government owned entity" in Clause 4.1, presently under consideration, is of no consequence. Plea of Respondent that, tender conditions involved demand a different perspective in overall conceptual framework thereof, lacks persuasion. Significantly, in Clause 4.1 involved in Consortium of Titagarh Firema Adler SPA, "government owned entity" had been contemplated as one of bidders in contradistinction to "private entity" and "any combination of such entities" in form of a joint venture (J.V.). Expression used in present Clause being "single entity", it is inclusive of a private as well as a government owned entity. Unit envisaged as a single entity is thus, independent of any combination or formation in form of a J.V. or a Consortium and thus, is visualised to be one integral and composite whole. In such a logical premise, a government owned company with its 100% wholly owned subsidiaries has to be comprehended as a single entity, eligible to bid in terms of Clause 4.1 of tender conditions and is to be regarded as single, coherent and homogeneous existence and not a disjointed formation.

Not only Appellant as record testifies had offered its responses to clarifications sought for, its status as a government owned corporation, by no means, has been disputed by MEGA. Further, in face of its demonstrated structural integrity and functional unity qua its subsidiaries with all consequential legal implications, apprehension of MEGA that, subsidiary companies of Appellant, if necessity so arises, would not be available for execution of project, not being a party to contract, is speculative, unfounded, farfetched and wanting in reason and rationale. Whether subsidiary companies of Appellant would be responsible for execution of work is evinced by formational specifics and functional dynamics of Appellant and its wholly owned subsidiary companies, as noticed in Consortium of Titagarh Firema Adler SPA in affirmative and does not call for further dilation.

Impugned disqualification of Appellant on ground of deficiency, in experience in terms of Clause 2.4, is unsustainable in law and on facts being grossly illegal, arbitrary and perverse. As a corollary, judgment of High Court in challenge is also set-aside. Tender process in view of the above conclusion, would be furthered as per the terms and conditions thereof and in accordance with law and taken to its logical end as expeditiously as possible.

Relevant

Consortium of Titagarh Firema Adler SPA-Titagarh Wagons Ltd. v. Nagpur Metro Rail Corporation Limited C.A. Nos. 1353-1354 of 2017

Tags : Tender Dis-qualifcation Validity

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Customs, Excise and Service Tax Appellate Tribunal

Sobha Developers Ltd. v. Commissioner of Central Excise, LTU, Bangalore

MANU/CB/0070/2017

15.05.2017

Excise

Refund claim cannot be converted into rebate claim without following prescribed procedure

In facts of present case, Appellants are engaged in manufacture of excisable goods falling under Chapter Heading 7308 90 90 of Central Excise Tariff Act, 1985. Appellants have filed an application for refund of Rs. 10,48,313/- being duty paid on goods cleared to Infosys Technologies Ltd., Chandigarh. Infosys Technologies Ltd., Chandigarh was declared as a Special Economic Zone (SEZ) unit by Development Commissioner, Noida, Special Economic Zone, Ministry of Commerce and Industries vide letter No. 5/5/2006-Chg.SEZ/8797 dated 16th June, 2006. Appellant cleared goods on payment of duty even after receipt of approval by M/s. Infosys Technologies Ltd. as SEZ. Duty thus, paid for supplies made from 17th June, 2006 to 16th November, 2006 to Infosys Technologies in absence of Domestic Procurement Certificate/ARE-1 is claimed as refund before lower authority. Refund claim of Assessee was rejected by Deputy Commissioner on ground that, Appellant had not followed prescribed provisions of SEZ Rules which came into force from 10th February, 2006 and has not cleared goods to SEZ Unit of Infosys Technologies under cover of Duty Procurement Certificate/ARE-1. Aggrieved by said order, Appellant filed appeal before Commissioner (A) and Commissioner (A) vide impugned order has upheld the order.

Appellants have made supplies to Infosys Technologies Ltd. which was a SEZ unit during relevant time and said supplies were made on payments of duty and later filed refund claim for same on ground that, any supplies made to SEZ unit is not taxable. But, Appellants have failed to follow procedure which is prescribed in SEZ Act for claiming exemption. Further, Appellant has also not followed procedure as prescribed in Notification No. 58/2003 which was in force at that point of time. Commissioner has considered all grounds which were raised by Appellant and has rightly come to conclusion that, Appellant have not followed prescribed procedure.

Appellant has cleared goods during period from 17th June, 2006 to 16th November, 2006 on payment of duty and later filed claim for refund. However, SEZ Rules, 2006 were already in vogue, as it was notified on 10th February, 2006 and same have not been followed by appellant for clearance. Lower authority has rejected refund claim on grounds that, they are not eligible for refund as there was no exemption available for such clearance excepting claiming of rebate which is not admissible since, Appellant has not followed prescribed procedure for clearance of goods to SEZ unit. Here, unlike clearance to 100% EOU, no exemption is available for clearance made to SEZ's. Only option is to pay, duty and claim rebate. Export under bond or under claim for rebate of duty cannot be equated with an exemption from payment of duty granted under a notification issued under Section 5A of Central Excise Act, 1944. Therefore, goods at time of their clearance from place of manufacture were rightly chargeable to duty as per Central Excise Act, 1944 and same has been discharged by Appellant.

However, Appellant failed to follow procedure set out to SEZ's. Even though Section 11B of Act, provides for claiming of refund of duty paid within one year from relevant date, a refund is admissible provided goods are exempt from payment of duty leviable under statute. There is no exemption notification granting waiver from payment of duty leviable. Clearances to SEZ under bend or under claim for rebate of duty is subject to observance of various conditions. Neither before lower authority nor during present appeal proceedings, Appellant have demonstrated that, barring procedural formalities they; satisfy other conditions covering clearance to SEZ. Since, goods were paid on payment of duty, they should have followed correct procedure even to claim rebate, if not refund. Refund claim cannot be converted into rebate claim in absence of following prescribed procedure. Therefore, lower authority was right in rejecting refund claim. Therefore, Appellants are not entitled to refund of duty paid as they have not followed procedure prescribed under law.

Tags : Refund Entitlement Procedure Compliance

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Customs, Excise and Service Tax Appellate Tribunal

Pioma Industries and Ors. Vs. C.C.E. & S.T.-Ahmedabad-III and Ors.

MANU/CS/0072/2017

15.05.2017

Excise

Sale price realized by an Assessee be regarded as price inclusive of excise duty

In present case, Appellant was manufacturing un-branded Soft Drink Concentrates and were classifying said goods prior to April 2005 under six digit classification of Central Excise Tariff under Heading 2108.90 and were having benefit of Nil rate of duty as tariff rate was Nil. After introduction of eight digit classification for Central Excise, Appellant-Assessee classified subject goods under Tariff Sub Heading 21.06.9099 whereas Department decided to classify goods under Central Excise Tariff Sub Heading No. 2106.9019. Assessee-appellant after classifying subject goods under Tariff Heading 2106.9099, is claiming benefit of Notification No. 3/2005-CE: MANU/EXCT/0010/2005
for said goods. However, Departments stand is that, benefit of Notification No. 3/2005-CE : MANU/EXCT/0010/2005
is not available to subject goods as goods deserve classification under Tariff Sub Heading 2106.9019. Vide impugned orders, Department classified subject goods under Chapter sub-heading 2106.9019 of Central Excise Tariff without benefit of Notification No. 3/2005-CE : MANU/EXCT/0010/2005
and confirmed demand against Assessee-Appellant. Hence, present appeals before Tribunal.

Goods deserve classification under Central Excise Tariff sub-heading No. 2106.9019 as Others, which specifically covers Soft Drink Concentrates other than Sharbat, which is one of sub entries of description Soft Drink Concentrates. For Soft Drink Concentrates, there are only two sub headings one for Sharbat which is covered by Heading 2106.9011 and second one is Other category which is covered by Heading 2106.9019.

Thus, there are only two choices for classifying Soft Drink Concentrates which could be either Sharbat or could be others. In light of descriptions and wordings of Central Excise Tariff, it is clear that, there cannot be two opinions regarding classification of item Soft Drink Concentrates (unbranded) and, therefore, its correct classification is 2106.9019 only. Assessee is pleading classification of their goods under Central Excise Tariff Sub Heading 2106.9099 for which there is no basis.

In light of Indirect Tax Scheme/Structures of Union of India, where duty of Central Excise is levied on manufacturing and set off for taxes paid on inputs (raw materials/services) used for manufacturing a product is generally allowed (unless there is contrary provisions to such effect), Appellant would be entitled to claim benefit of MODVAT/CENVAT Credit for inputs utilized for manufacturing subject goods.

In present case, goods have already been sold to customers and there is no likelihood of further recovery from past consumers of any duty of Central Excise, if levied and confirmed against Appellant now. Supreme Court in case of CCE Delhi Vs. Maruti Udyog Ltd. has held that, sale price realized by an assessee should be regarded as price inclusive of excise duty as purchaser has no obligation to pay any amount in excess of what has already been paid as price for goods purchased.

In light of discussion and observations of Apex Court, Appellant is entitled to cum duty benefit for sales made during period under dispute and liability of duty of Central Excise against them is to be computed accordingly, for which matter is being remanded to Adjudicating authority viz. jurisdictional Commissioner of Central Excise. Appellant is entitled to benefit of MODVAT/CENVAT Credit, when they make payment of their liability of Central Excise duty to Department.

Impugned order is modified and matter is accordingly remanded to Adjudicating authority viz. Commissioner Incharge for re-quantification of liability of duty of Central Excise against appellant, and he shall adjudicate the same after giving opportunity of personal hearing and submission of documents to Appellant.

Relevant

CCE Delhi Vs. Maruti Udyog Ltd. MANU/SC/0148/2002
: 2002 (141) ELT 3 (SC)

Tags : Demand Confirmation Validity

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High Court of Punjab and Haryana

Satnam Kaur v. Gurjeet Singh

MANU/PH/0385/2017

12.05.2017

Family

Power to transfer a case must be exercised with due care, caution and circumspection

Applicant-wife, by way of instant transfer application under Section 24 of Code of Civil Procedure, 1908 (CPC), seeks transfer of a petition under Section 9 of Hindu Marriage Act, 1955 titled as Gurjeet Singh v. Satnam Kaur filed by respondent-husband from SAS Nagar (Mohali) to Moga. It is relevant to note that, Applicant-wife, along with her minor child, is living with her parents at Moga. Since, Applicant-wife is not working, she is dependent on her parents. Respondent-husband is not paying any amount of maintenance either for Applicant-wife or for minor child. Distance between Mohali and Moga is more than 150 kilometers. Other litigations between the parties, at instance of Applicant-wife, are also pending at Moga.

In view of undisputed fact situation of case, Present Court concluded that, it is just and expedient to transfer petition under Section 9 of Act from SAS Nagar (Mohali) to Moga. Undisputed facts clearly go in favour of Applicant-wife and against Respondent-husband. In circumstances of case, it will not only be inconvenient but would be very difficult for Applicant-wife to go from Moga to SAS Nagar (Mohali) to pursue litigation imposed on her by Respondent-husband under Section 9 of Act. Convenience of wife in transfer applications, like present one, arising out of a matrimonial dispute, is one of relevant consideration. Further, distance between two places, financial status of wife, her source of income, her age as well as her responsibility for bringing up minor child, are relevant factors to be considered, while deciding transfer applications like present one.

Cardinal principle for exercise of power under Section 24 of CPC is that, ends of justice demand transfer of suit, appeal or other proceeding. In matrimonial matters, wherever Courts are called upon to consider plea of transfer, Courts have to take into consideration economic soundness of either of parties, social strata of spouses and behavioural pattern, their standard of life antecedent to marriage and subsequent thereto and circumstances of either of parties in eking out their livelihood and under whose protective umbrella, they are seeking their sustenance to life. Generally, it is wife's convenience which must be looked at by Courts, while deciding a transfer application.

Supreme Court in Kulwinder Kaur @ Kulwinder Gurcharan Singh's case observed that, although discretionary power of transfer of cases cannot be imprisoned within a strait-jacket of any cast-iron formula unanimously applicable to all situations, it cannot be gainsaid that, power to transfer a case must be exercised with due care, caution and circumspection. Reading Sections 24 and 25 of CPC together and keeping in view various judicial pronouncements, certain broad propositions as to what may constitute a ground for transfer have been laid down by Courts. They are balance of convenience or inconvenience to plaintiff or defendant or witnesses; convenience or inconvenience of a particular place of trial having regard to the nature of evidence on points involved in suit; issues raised by parties; reasonable apprehension in mind of litigant that, he might not get justice in Court in which suit is pending; important questions of law involved or a considerable section of public interested in litigation; interest of justice demanding for transfer of suit, appeal or other proceeding, etc. Above are some of the instances which are germane in considering question of transfer of a suit, appeal or other proceeding. They are, however, illustrative in nature and by no means be treated as exhaustive.

In case of Dr. Subramaniam Swamy, Supreme Court held that, question of expediency would depend on facts and circumstances of each case but paramount consideration for exercise of power must be to meet ends of justice. It is true that, if more than one Court has jurisdiction under Code to try suit, Plaintiff as dominus litis has a right to choose Court and Defendant cannot demand that, suit be tried in any particular court convenient to him. Mere convenience of parties or any one of them may not be enough for exercise of power but it must also be shown that trial in chosen forum will result in denial of justice.

In view of law laid down by Supreme Court as well as different High Courts, including this Court, it is unhesitatingly held that, Applicant-wife is entitled for getting petition under Section 9 of Act, transferred from SAS Nagar (Mohali) to Moga, so as to enable her to pursue litigation without facing any undue hardship or harassment at hands of Respondent-husband. It is settled principle of law that, justice is not only to be done but it should also appear to have been done. If applicant-wife is forced to go from Moga to SAS Nagar (Mohali), it would amount to denial of justice to her. Thus, to strike a balance between parties with a view to do complete and substantial justice and proceeding on a holistic view of matter, this Court is of considered view that it, would be just and expedient to transfer petition under Section 9 of Act from SAS Nagar (Mohali) to Moga. Instant transfer application deserves to be accepted and same is allowed. Petition under Section 9 of the Act titled as Gurjeet Singh v. Satnam Kaur filed by the respondent-husband is ordered to be transferred from SAS Nagar (Mohali) to Moga.

Relevant

Dr. Subramaniam Swamy vs. Ramakrishna Hegde MANU/SC/0024/1990
Kulwinder Kaur @ Kulwinder Gurcharan Singh vs. Kandi Friends Education Trust and Ors. MANU/SC/7058/2008

Tags : Application Transfer Grant

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High Court of Rajasthan

Pinki v. State of Rajasthan and Ors.

MANU/RH/0319/2017

12.05.2017

Criminal

Court has power to direct further investigation in interest of complete and fair investigation

Present criminal misc. petition under Section 482 of Code of Criminal Procedure, 1973 (Cr.P.C.) has been preferred for quashing of FIR registered as well as proceedings in furtherance thereof for offences under Sections 191, 192, 196, 197, 200, 420, 467, 468, 471, 474 and 120B  of Indian Penal Code, 1860 (IPC). Matter pertains to contest of election by Petitioner as a member of Panchayat Samiti, Jaswantpura. It is alleged in FIR that, alongwith nomination paper, a certificate of Gujarat Higher Secondary Education Board, Gandhi Nagar, Examination Wing, Vadodara was submitted by contestant, present petitioner. Petitioner was elected as member of Panchayat Samiti, and thereafter, again filed a nomination paper for election of Pradhan, Panchayat Samiti, Jaswantpura on 07th February, 2015 and also won said election. Complainant raised a dispute regarding Petitioner's age, not being in conformity with Section 19(k) of Rajasthan Panchayati Raj Act, 1994 and also documents submitted by Petitioner to have inconsistency regarding date of birth 2nd July, 1993 in one of document and 2nd July, 1996 in another document. Petitioner drew attention of this Court to orders passed by Court below in application, whereby amendment in date of birth, as sought by Petitioner has been allowed and a Tehrir regarding same has been issued, which is also on record. Petitioner further submitted that, in larger interest of justice, investigating authority should have considered all documents, which have been subsequently produced by Petitioner before investigating authority, even when investigation has been completed.

Apex Court in Pooja Pal Vs. Union of India & Ors., observed that, precedential ordainment against absolute prohibition for assignment for investigation to any impartial agency like CBI, submission of the charge-sheet by normal investigating agency in law notwithstanding, albeit in an exceptional fact situation warranting such initiative, in order to secure a fair, honest and complete investigation and to consolidate the confidence of victim(s) and public in general in justice administering mechanism, is thus unquestionably absolute and hallowed by time. Such a measure however, can by no means be a matter of course or routine but has to be essentially adopted in order to live up to and effectuate salutary objective of guaranteeing an independent and upright mechanism of justice dispensation without fear or favour, by treating all alike.

Petitioner submitted that, in order to secure a fair, honest and complete investigation and to consolidate confidence of victim and public in general in justice administering mechanism, is thus unquestionably permitted to make further investigation in any case on orders of Court. Law laid down by Apex Court in Pooja Pal Vs. Union of India & Ors. applies in present case, as investigation has been completed, but in interest of complete and fair investigation and for enforcement of fundamental rights judged on touchstone of high public interest and paramountcy of rule of law, it would be appropriate to direct investigating authority to consider all documents that have been placed on record by Petitioner. High Court disposed of present petition with a direction to investigating authority to take all documents submitted by petitioner on record, and conduct fair investigation regarding these documents before re-filing of challan before competent court.

Relevant

Pooja Pal vs. Union of India (UOI) and Ors. MANU/SC/0071/2016

Tags : Investigation Direction Scope

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Central Information Commission

Kalyan Kumar Ganguly v. PIO, ESIC, Kolkata

MANU/CI/0314/2017

11.05.2017

Right to Information

Information relating to wages of employees has to be voluntarily disclosed by public authority

Appellant sought information regarding M/s. Laxmi Distribution. Specifically, he sought relationship between one Mr. H.B. Singhvi and M/s. Laxmi Distribution; return of contribution filed for relevant period and whether it was certified by chartered accountants or not; total number of employees working in said establishment etc. through eight points. CPIO denied on grounds that, information sought was relating to third party. Being dissatisfied by Order given by FAA who upheld decision of CPIO, Appellant approached this Commission. Appellant submitted that, PF amount was deducted for period 1986 to 1988 but it was not deposited, and no benefits were given from 1986 to 2016.

PF account is not like any other individual private bank account where all his personal money also could be transacted, which could be his personal information. PF account does not contain any other money except accumulated amount of both contributions over a period of time. It is mandatory by law to contribute these two amounts to PF account. Hence, it is not private information. It is not personal because it has nothing to do with their private activity. It is relating to social security of workers at post-retirement period, which need to be secured for such longer periods. That is public interest. If it is kept secret, and an individual PF subscribed is cornered under fear or favour not to challenge fraud, employer can perpetuate the fraud. Hence, a third person or trade union leader or citizen can seek such information. Thus, argument of PIO that, worker can ask only about his information about PF account is not tenable. Information sought is available with employer and trustee. It cannot be denied to worker in particular and people in general.

Expression 'personal information' applies to 'individuals' and not 'bodies/institutions' or entities working for public good. Use of term "personal information" under Section 8(1)(j) of Right to Information Act, 2005 means information involving a private individual. Section 8(1)(j) of Act, prescribed 'public interest' as a requirement to decide disclosure of information though exempted. CPIO or First Appellate Authority is not just an executive officer in his office but an "authority" under RTI Act with a responsibility to use his personal discretion as per law while deciding RTI request. Public interest under section 8(1)(j) of Act, requires three conditions to be considered: absence of relationship with public activity or interest or, possibility of unwarranted invasion of privacy or, existence of larger public interest. Language of section 8(1)(j) of Act,  is very clear i.e., it demands satisfaction of CPIO.

In G.R. Rawal v. Director General of Income Tax (Investigation), Ahmedabad, it is o held that, authority may order disclosure of such information, if they are satisfied that, larger public interest justifies disclosure. This would imply that, even a personal information which has some relationship to any public activity or interest may be liable to be disclosed. An invasion of privacy may also be held to be justified, if larger public interest so warrants. It is, therefore, necessary to analyze ambit and scope of both expressions "personal information" and "invasion of privacy".

Commission opines that, information relating to wages of employees has to be voluntarily disclosed by public authority under Section 4(1)(b)(x) of RTI Act, 2005. Workers' list, their salaries, and PF account money deposited in form of contributions by employer and employee as per a statute and a scheme under statute cannot be considered as 'third party' information. Workers file RTI application, only when there is some grievance or complaint regarding depositing or non-depositing of amount or wrong assessment of contribution, non-payment of interest on delayed crediting of contribution. None of this could be private information of some job holder or employer. PF account is different from savings bank account of a person. PF account is exclusively meant for holding contributions by both employer and employee and no other amount gets deposited or withdrawn.

Commission after perusing records finds that, Appellant has been harassed for no rhyme or reason and he has been deprived from getting information, in this regard, Commission suggests Appellant to make a representation to Respondent authority as well as CPIO, EPFO, Salt Lake City, Kolkata about documents that, he is wanting for. Commission directs CPIO, ESIC to provide information sought, after securing them from establishment M/s. Laxmi Distributions. Further, Commission directs CPIO, EPFO, Salt Lake City, Kolkata to provide all details to Appellant with regard to his PF details. Commission also directs M/s. Laxmi Distributions to provide the information sought.

Relevant

G.R. Rawal v. Director General of Income Tax (Investigation), Ahmedabad

Tags : Information Disclosure Direction

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