Supreme Court

The State of Orissa and Ors. Vs. Mahimananda Mishra and Ors.

MANU/SC/1011/2018

18.09.2018

Criminal

Court must not go deep into merits of matter while considering an application for bail

The two instant appeals have been preferred by the State of Orissa and the de-facto informant in FIR registered at Police Station in Orissa State against the order of the High Court, by which an application for bail filed by the Respondent herein in connection with the aforementioned first information has been allowed. Issue raised in present case is whether High Court is right in granting bail to Respondent.

It is common knowledge that, generally direct evidence may not be available to prove conspiracy, as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, the Court, while evaluating the material, may rely upon other material which suggests conspiracy. Such material will be on record during the course of trial. However, at this stage, prima facie, the Court needs to take into consideration the overall material while considering the prayer for bail.

Though present Court may not ordinarily interfere with the orders of the High Court granting or rejecting bail to the Accused, it is open for this Court to set aside the order of the High Court, where it is apparent that, the High Court has not exercised its discretion judiciously and in accordance with the basic principles governing the grant of bail.

It is by now well settled that, at the time of considering an application for bail, the Court must take into account certain factors such as the existence of a prima facie case against the Accused, the gravity of the allegations, position and status of the Accused, the likelihood of the Accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the Accused. It is also well settled that, the Court must not go into deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of a prima facie case against the Accused.

The High Court was not justified in going into the evidence on record in such a depth which amounts to ascertaining the probability of the conviction of the Accused. On the other hand, the High Court has failed to appreciate several crucial factors that indicate that it was highly inappropriate to grant bail in favour of the Respondent.

Since the Respondent is an influential person in his locality, in terms of both money and muscle power, there is a reasonable apprehension that he might tamper with or otherwise adversely influence the investigation, which is still going on qua some of the co-accused in the case, or that he might intimidate witnesses before or during the trial. The High Court in observing that, there was no possibility of the Respondent's absconding in light of his being a local businessman, not only completely overlooked his past attempt to evade the process of law, but also overlooked the implications of the clout enjoyed by him in the community. The impugned judgment of the High Court granting an order of bail in favour of the Respondent is set aside. The instant appeals are accordingly allowed.

Tags : Bail Grant Legality

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Customs, Excise and Service Tax Appellate Tribunal

EIH Limited Vs. C.C.E., Delhi-I

MANU/CE/0426/2018

14.09.2018

Service Tax

For invoking extended period of limitation, there should be an intention to evade duty

The Appellants are having a unit of Maidens Hotels for providing Renting of Immovable Property Services, Mandap Keeper Service, Dry Cleaning Services, Business Auxiliary Services & internet cafe services and they have been accordingly registered. They have also got registered for providing Aircraft operator Services. However, Department in furtherance of an investigation on an intelligence gathered, noticed that Appellants were supplying the Aircraft/Helicopter service to different service receivers as per the agreement entered into and as such, it was alleged that they were providing services under the category of supply of tangible goods, for which they neither took any Service Tax Registration nor did they paid any service tax on the said activity. Resultantly, show cause notice was served upon them demanding Service Tax under the category of supply of tangible goods for the relevant period, alongwith the interest and the proportionate penalties. The said show cause notice was adjudicated thereby confirming the said demand. Being aggrieved thereof, an appeal was filed before the Commissioner (Appeals) who has upheld the said order and rejected the appeal.

The moot question to be considered is as to whether in the given facts and circumstances of the case, the services provided by the appellant are the Aircraft Operator Service as assumed by the appellant or, are the services for supply of tangible goods for use as alleged by the Department.

For an "Aircraft operator service", the activity is regulated under strict observation of Aviation Industry subject to stringent regulatory controls, Director General of Civil Aviation grants permits to the scheduled aircraft transport service. Even a non-scheduled permit can be granted by DGCA and the fact remains is that any person in Aviation has at least to be a non-scheduled operator. As far as supply of tangible goods is concerned, it is apparent that it is the transfer of the goods to be used without the transfer of its legal possession and effective control by one person to another. As per the invoice, the Aircraft was given on hire for use of charterer on the terms and conditions of the permit in favour of the Appellant. It is evident that, the Aircraft was supplied alongwith the licensed/trained Pilot and necessary Engineering Crew to operate the Aircraft. Thus, the effective control and possession of the Aircraft was still with the Appellant, who was charging the charterer on the basis of actual time consumed during the said flight.

An identical issue regarding charter hire of helicopter came up before the Tribunal in the case of Global Vectra Helicorp Ltd. v. CC (Import) Mumbai, in that case the Appellant therein claimed the classification of their service as Transportation of Passengers by Air Service. But, the Tribunal after very detailed discussion of the facts and various case laws on the subject as well as CBEC Circular No. 20/2009 dated 9th February, 2009 came to the conclusion that, the services will be rightly classifiable under the category of "Supply to Tangible Goods Service". By following the decision of the Tribunal, classification of the service under the category of STGS ordered. Consequently, confirmation of demand of service tax on merit upheld.

The law for invoking extended period of limitation is stated that, the onus heavily rest upon the Department to prove the alleged suppression of facts. Perusal of entire record shows no such discharge on part of the Department, except merely raising the oral allegation of suppression. The Hon'ble Supreme Court in the case of Gopal Zarda Udyog v. CCE, Delhi, has held that extended period is applicable only when something positive other than mere inaction or failure on part of the Assessee is proved conscious and deliberate with holding of information by the assessee is necessary for invoking the extended period. It was clarified by the Hon'ble Apex Court that, if it comes to the knowledge of Department that Assessee had reasonable belief that, he is not required to give particular information only normal period of limitation i.e. one year is applicable.

In an earlier decision also in Cosmic Dye Chemical v. CCE, Bombay, it was clarified that for invoking extended period of limitation, there should be an intention to evade duty. The alleged suppression must be wilful and it is for the Department to prove the same. The Department has failed to prove the wilful intention. The Department was not entitled to invoke the extended period of limitation. Accordingly, the demand falling beyond one year period preceding show cause notice is not sustainable and accordingly is set aside. The order under challenge is modified in the above discussed terms confining the demand for a period of one year only. Appeal disposed off.

Relevant

Gopal Zarda Udyog v. CCE, Delhi - MANU/SC/0809/2005
, Cosmic Dye Chemical v. CCE, Bombay - MANU/SC/0791/1995

Tags : Demand Confirmation Validity

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Supreme Court

Jagjit Singh (D) thr. L.Rs. Vs. Amarjit Singh

MANU/SC/0982/2018

13.09.2018

Civil

Plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance

The Plaintiff filed a suit for specific performance of contract. The trial Court concluded that, no agreement to sell had been executed between the parties and accordingly dismissed the suit. Aggrieved, the Plaintiff filed an appeal. The first appellate Court set aside the finding of the trial court, however, the first appellate court concluded that, the so called agreement was, in fact, not an agreement to sell. It further held, that assuming that the said agreement was an agreement to sell, the Plaintiff had failed to prove that he was ready and willing to perform his part of the agreement. The appeal was consequently dismissed. The second appeal filed by the Plaintiff has been allowed by the High Court without framing any question of law much less a substantial question of law.

It is settled law that, a Plaintiff who seeks specific performance of contract is required to plead and prove that he was always ready and willing to perform his part of the contract. Section 16(c) of the Specific Relief Act, 1963 mandates that the Plaintiff should plead and prove his readiness and willingness as a condition precedent for obtaining relief of grant of specific performance. It is the duty of the Plaintiff to plead and then lead evidence to show that, the Plaintiff from the date he entered into an agreement till the stage of filing of the suit always had the capacity and willingness to perform the contract.

In present appeal, the finding of the first appellate Court that, the Plaintiff had failed to plead or prove his willingness to perform his part of the contract from the date of agreement till filing of the suit is a pure finding of fact based on evidence and law. The High Court has while upsetting the judgment of the District Judge lost sight of the provisions of the Specific Relief Act and the law in this regard. Hence, the appeal is allowed, the judgment of the High Court is set aside and that of the lower appellate Court is restored.

Tags : Agreement Performance Willingness

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High Court of Calcutta

Hemanta Biswas Vs. The State of West Bengal

MANU/WB/0829/2018

13.09.2018

Criminal

Non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused, when enough evidence was available for conviction

Present appeal has been preferred by the Appellant assailing the judgment, order of conviction and sentence respectively passed by the learned Additional Sessions Judge, arising out of Sessions Case convicting the Appellant for the commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (IPC) and sentencing him to suffer imprisonment for life and to pay a fine of Rs. 2000 in default to suffer rigorous imprisonment for further period of one year.

Admittedly, none of the witnesses examined by the prosecution are the witness to the occurrence and the case is based on the circumstantial evidence. It is the settled proposition of laws that, where the cases rests squarely on the circumstantial evidence the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the offence of the accused. The chain of circumstances should be of a conclusive nature and must be completed and most clearly point out to the guilt of the accused.

With regard to the motive behind the murder, it was the specific allegation of P.W. 1 in her complaint that for the last 2/3 days before the death of Kusum Biswas, appellant started suspecting his wife of having illicit relation with outsiders which gave rise to strained relation in their family life. From the trend of cross-examination also, it was evident that there was a strained relation in the marital life of the Appellant and victim over the issue of chastity of the victim. Thus, the existence of motive was very much there.

In the matter of Promode Dey v. State of West Bengal, it was decided by the Hon'ble Supreme Court that, non-collection of FSL report might be a defect of investigation which could not result in acquittal of an accused against whom enough evidence was available for conviction. This principle has also been repeated and reiterated by the Hon'ble Apex court in a number of decisions time and again.

Investigating officer (P.W. 13) though seized bloodstained weapon of offence, blood stained earth etc. and sent the same for forensic examination but could not collect the same. Even P.W. 12, who submitted the charge-sheet, specifically stated that he failed to collect the FSL report inspite of several attempts. He was not cross-examined by the defence on this score. Non collection of FSL report at best could be termed as negligence on the part of the I.O. and defect in investigation. Non production of the dao during trial also cannot wash out the evidence of prosecution witnesses who saw the same in the hand of the appellant in the room where dead body of the victim bearing sharp cut injuries was found. The place of occurrence is the room of the appellant. This has duly been proved by P.W. 1, P.W. 2, P.W. 3 and P.W. 4. This also found corroboration from the rough-sketch map (Ext. 6). Dao was used in the commission of the offence. This also finds support from the medical evidence.

The number and nature of the injuries suggest that, the intention was clearly to cause death. Therefore, there was no impropriety on the part of the learned Court below to pass the order of conviction and sentence under section 302 of IPC against the Appellant. There is no illegality in appreciation of evidence, or in arriving at the conclusion as to the guilt of the appellant by the learned Trial Court. Appeal dismissed.

Relevant

Promode Dey v. State of West Bengal, reported inMANU/SC/0231/2012

Tags : Conviction Circumstantial evidence Validity

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Customs, Excise and Service Tax Appellate Tribunal

Miraj Products Pvt. Ltd. Vs. C.E. & S.T., Udaipur

MANU/CE/0422/2018

13.09.2018

Excise

Non grant of an opportunity to cross examine a witness may attract the doctrine of fairness and even held to be violative of principles of natural justice

In facts of present case, the Appellant is engaged in manufacture of chewing tobacco falling under Chapter 24 of Central Excise Tariff Act, 1985. The income tax authorities had conducted an investigation against the Appellant in September 2013 during which the Appellant had surrendered unaccounted income of Rs. 129.41 crores. In pursuance of the said information alongwith the documents received by the Excise Commissionerate, Udaipur from the income tax Department, the Department after necessary investigations, alleged that the Assessee/Appellant has evaded the Central Excise duty amounting to Rs. 1,63,06,00,000.

Resultantly, a Show Cause Notice was served upon the appellant proposing the recovery of the alleged unpaid amount of duty alongwith appropriate interest and the penalties under Central Excise Act, 1944 and also under Chewing Tobacco and Unmanufactured Tobacco Packing Machines (Capacity Determination and Collection of Duty) Rules, 2010. After being served with the said Show Cause Notice, the Appellant made the request for cross examination. The said request was declined vide the order under challenge, hence the present Appeal.

The Appellant herein is aggrieved of being denied an opportunity of cross examination. The theory of cross examination has to be examined in the perspective of its purpose. The object of cross examination is twofold - firstly to weaken, qualify or destroy the case of the opponent. To impeach the accuracy, credibility and general value of the evidence given in chief, to shift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross examining party. Secondly, it is to establish the parties own case through his opponents own witnesses. Thus, cross examination is a powerful weapon in hands of advisory. Non grant of an opportunity to cross examine a witness may even attract the doctrine of fairness and may be held to be violative of principles of natural justice as it was held in the case of K. Raghuram Babu Vs. Director General of Railway Protection Force, New Delhi.

The Department has just issued a Show Cause Notice which is based on prima facie material and is nothing more than constituting a prima facie opinion. At the stage of Show Cause Notice, there is no adjudication. It is only a step in process of adjudication because the Show Cause Notice in itself is not an order of assessment. The said order has to be passed post issuance of Show Cause Notice after affording an opportunity of hearing the parties and after considering the evidence and material which is placed before the adjudicating authority, the Central Excise Commissioner in the present case.

After receiving the Show Cause Notice, the only proceeding to respond by the Appellant was the impugned letter praying for cross examination of the witnesses. The findings of the Commissioner "that the persons for whom cross examination was sought have not even tendered any factual statement, the cross examination is not needed and therefore the same is denied" are therefore held to have no infirmity. The appellant is first required to submit his reply to the Show Cause Notice received.

No doubt, the absence of his reply will not debar him from cross examining the witnesses but the stage of cross examination is post the examination in chief of a person who has been summoned by the adjudicating authority, in his discretion after satisfying himself qua his requirement to be examined as a witness to prove the allegations of the Show Cause Notice. Hon'ble Apex Court in the case Modula India Vs. Kamakshya Singh Deo held that, omission on the second party to file the statement of defence will not deprive him an opportunity to participate in the proceedings even if his defence is struck off.

The request of the Appellant in question was a premature request before the Commissionerate hence the order under challenge needs no interference. The adjudicating authority below/Commissioner is required to reconsider the request of the appellant at the appropriate stage. Appeal accordingly stands disposed off.

Relevant

K. Raghuram Babu Vs. Director General of Railway Protection Force, New Delhi MANU/AP/0620/2001
, Modula India Vs. Kamakshya Singh Deo MANU/SC/0283/1988

Tags : Cross examination Request Denial Validity

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High Court of Delhi

Sandisk LLC and Ors. Vs. Memory World

MANU/DE/3332/2018

12.09.2018

Civil

Court is empowered to pass a summary judgment, without recording evidence, if it appears that Defendants have no real prospect of defending the claim

Present suit has been filed for permanent injunction restraining infringement of trade mark, rendition of accounts, damages etc. against the defendant. Learned counsel for the Plaintiffs states that, the Defendant has infringed upon the statutory rights of the Plaintiffs by copying each and every element of the Plaintiffs' product and/or product packaging, with the sole intent of duping unwary customers by selling counterfeit products and to ride on the Plaintiffs' reputation and goodwill. Further, since the plaintiffs' product comes pre-packaged, there is no occasion for genuine loose packaging to be available in the market, which therefore establishes the counterfeit nature of the defendant's product packaging.

Order XIII-A of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 empowers present Court to pass a summary judgment, without recording evidence, if it appears that the Defendants have no real prospect of defending the claim and there is no other compelling reason why claim should not be disposed of.

In the opinion of present Court, the Defendant has no real prospect of defending the claim and no other compelling reason appears to this Court why claim of the Plaintiffs should not be disposed of. This is so because the Defendant has not filed its written statement despite entering appearance on 27th April, 2018, nor denied the documents of the Plaintiffs. Moreover, as the Defendant is selling counterfeit products bearing the plaintiffs' SanDisk trademark and product packaging, it is a clear case of infringement of the Plaintiffs' registered trademark.

The Defendant is using the registered trade mark SANDISK of the Plaintiffs and its product packaging to sell counterfeit products with a view to trade upon and benefit from the immense reputation and goodwill of the Plaintiffs' mark and pass off its products as those of the Plaintiffs. The suit is decreed in favour of the Plaintiffs and against the Defendant.

Tags : Infringement Injunction Grant

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