4 February 2019


Judgments

Supreme Court

The State of Bihar and Ors. Vs. Sachindra Narayan and Ors.

MANU/SC/0100/2019

30.01.2019

Education

Legitimate expectation is not a wish or a desire or a hope, it cannot be claimed or demanded as a right

The present appeal is directed against an order passed by the High Court whereby the Writ Petition was allowed directing the Appellant to provide financial assistance for payment of the arrears as well as current pension to the employees of the Anugraha Narayan Sinha Institute of Social Studies. Question involved in present case is whether the financial burden of the Retirement Benefit Scheme canbe foisted upon the State.

It is true that in certain financial years as per documents on record, the amount of pension was specifically mentioned while granting grant to the Institute, but such amount is in discretion of the State and cannot be enforced by a writ of mandamus. There is no obligation on the State to disburse the grant towards the pension amount in terms of the Act or the Rules or even in terms of the resolution of the Board.

Sub-section (1) of Section 8 of the Anugraha Narayan Sinha Institute of Social Studies Act, 1964 mandates the State Government to contribute a sum of rupees two lacs in each financial year for the maintenance of the Institute, whereas, Sub-section (2) empowers the State Government to contribute from time to time, such additional sums as it may deem fit for special items of research or education work, publication, buildings and for proper maintenance and development of the Institute. Such payment for the special projects, is in discretion of the State Government in view of the object for which the grant is to be disbursed, but Sub-section (2) does not include disbursement of the amount of pension as the contribution is for limited purpose which is not recurring in nature.

The money contributed to the Institute by the State Government is one source of the fund of the Institute fund. Section 9(3) of the Act provides that the funds shall be applied towards meeting the expenses of the Institute including expenses incurred in exercise of its powers and discharge of its functions under the Act. Therefore, the retirement pension scheme, at best can be treated to be a part of obligation of utilization of funds of the Institute but such obligation to bear the amount of pension fund is not on State Government as it is not mandated either by Section 8 or Section 9 of the Act.

Legitimate expectation is one of the grounds of judicial review but unless a legal obligation exists, there cannot be any legitimate expectation. The legitimate expectation is not a wish or a desire or a hope, therefore, it cannot be claimed or demanded as a right. The payment of pension in the past will not confer an enforceable right in favour of the Institute or its employees.

Thus, the resolution of the Board of the Institute to implement a retirement benefit scheme from its own resources will not bind the State Government to pay the amount of pension to the employees of the Institute. The employees of such Institute cannot be treated at par with the employees of the State Government nor the State can be burdened with the responsibility to pay pension to the employees of the Institute. Consequently, the order of the Division Bench is not legally sustainable. The appeal is allowed.

Tags : Financial assistance Direction Validity

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Supreme Court

The State of Madhya Pradesh and Ors. Vs. Dharmendra Rathore and Ors.

MANU/SC/0092/2019

29.01.2019

Criminal

Madhya Pradesh Rajya Suraksha Adhiniyam, 1990 does not prohibit Additional District Magistrate to pass externment order

In facts of present matter, the Additional District Magistrate, has passed an order externing Respondent for a period of one year from the district concerned. An appeal was filed by the Respondent against the order of the Additional District Magistrate before the Commissioner, which too was dismissed. A writ Petition was filed by the Respondent challenging the order of the Additional District Magistrate as well as of the Commissioner. The main ground taken by the Respondent before the High Court was that the Additional District Magistrate had no jurisdiction to pass the order under the Madhya Pradesh Rajya Suraksha Adhiniyam, 1990. The order can be passed only by District Magistrate.

The High Court relying on judgment of Arvind Sharma v. State of Madhya Pradesh and Ors. allowed the writ petition holding that, Additional District Magistrate was incompetent to pass the order under the Adhiniyam, 1990. Writ Appeal was filed against the judgment of the High Court was dismissed holding that, the order could not have been passed by any authority lower than the rank of District Magistrate. State aggrieved by the order has come up in this appeal.

In the Statutory Scheme of the Adhiniyam, 1990, there is no provision, which prohibit passing an order by an officer lower than the rank of District Magistrate rather under Section 13, there is no limitation on the State Government while specially empowering an officer of the State to exercise the power of District Magistrate under Sections 3, 4, 5 and 6 and further under Section 18, the powers and duties of District Magistrate can be directed to be exercised or performed by Additional District Magistrate or Sub-Divisional Magistrate for such areas as may be specified in the order. Thus, the Scheme of the Adhiniyam, 1990 clearly contemplate exercise of the power of District Magistrate under Sections 3, 4, 5 and 6 by an Additional District Magistrate or Sub-Divisional Magistrate. The Notification dated 5th March, 2003 was not under challenge in the writ petition.

Constitution Bench judgment of present Court in Ajaib Singh was not applicable in the facts of the present case and High Court committed the error in relying on the said judgment for holding that, Additional District Magistrate had no jurisdiction. The impugned judgment is, thus, unsustainable. The appeals are allowed. The impugned judgments of the High Court are set aside.

Tags : Externment order Jurisdiction Additional District Magistrate

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Customs, Excise and Service Tax Appellate Tribunal

CCGST Belapur Vs. Reliance Infocomm Infrastructure Ltd.

MANU/CM/0029/2019

25.01.2019

Service Tax

Penalty can only be invoked, when there is failure to furnish return in prescribed form and not that return has been incorrectly filed

In instant case, order passed by the Commissioner of CGST & CE, (Appeals), setting aside the penalty imposed by the adjudicating authority on the Respondent under Section 77 and 78 of the Finance Act, 1994 read with 15(3) of Cenvat Credit Rules is assailed by the Appellant department before this forum.

The grounds on which Commissioner (Appeals) had set aside the order of the first appellate authority are mainly two. First, for differential short payment of service tax, no show-cause notice was issued as appellant had already paid the said tax along with interest; Second, Appellant was not issued with show-cause under section 73(1) of the Finance Act for which it has to be presumed that department has accepted the liability under section 73(3) of Act.

The adjudicating authority has not indicated the manner in which suppression of fact or misstatement has been established against the Appellant except that he pointed out that short payment was noticed while making reconciliation with ST-3 return. However, considering the fact that on such short payment, no show-cause notice was issued, the same cannot be recorded as suppression with malafide intention to evade payment of tax because no opportunity was provided to the appellant to justify such mismatching.

On being pointed out on such difference of amount which was shown less in the ST-3 return, the appellant had accepted the objection and discharged the service tax liability. In respect of wrong availment of cenvat credit, no finding is given in the Order in Original or Order in appeal that those credits were in fact inadmissible and not supported by the Rule except that respondent had accepted the fact of such availment of such credit as inadmissible.

Though admissibility or inadmissibility of the credit in respect of renting of immovable property and business support service is a mixed question of fact and law, the same requires no discussion in view of admission by the Respondent except to the extent that there is a difference between compliance of audit report and discharge of duty liability in respect of imposition of tax as per Section 265 of the Constitution of India.

In respect of penalty imposed under Section 77 by the adjudicating authority, the Commissioner (Appeals) clearly referred in his order that Section 70 can only be invoked when there is failure to furnish return in prescribed form and not that return has been incorrectly filed. A reading of Section 70 of the Finance Act would take any prudent man to conclude that such a finding made by the Commissioner (Appeals) is not erroneous and therefore his order setting aside penalty under Section 77 of the Finance Act needs no interference. The appeal is dismissed and the order passed by the Commissioner (Appeals) is confirmed.

Tags : Penalty Deletion Validity

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High Court of Allahabad

Md. Qamar Vs. State of U.P.

MANU/UP/0172/2019

24.01.2019

Criminal

Measure of punishment should be proportionate to gravity of offence, to protect society and to deter criminal in achieving avowed object of law

Present Criminal Appeal has been filed by convict Appellant against judgment passed by Additional Sessions Judge/Special Judge related with Case Crime under sections 376, 302, 201 of Indian Penal Code, 1860 (IPC) convicting Appellant. The Appellant submitted that, conviction and sentences are against weight of evidence on record, prosecution has failed to prove guilt of the Appellant beyond reasonable doubt even then judgment of conviction and order of sentence was made therein.

In instant case, deceased, her mother and accused-Appellant were residents of the one and same village and they were fully aware to each other. Deceased was last seen in the house of the accused-Appellant by PW3 in the evening where she was picking flower planted inside house of accused-appellant where the accused-appellant was present.

When deceased did not return to home, she was vehemently searched by her mother and other family members. Dead body of the deceased was recovered in the next day morning. The deceased was a minor girl was having injury over private part in form of laceration with mixed semen and blood and injury was found on her neck. This was a murder after sexual assault with her proved by medical evidence.

First information report was instantly lodged after recovery of dead body against accused-Appellant. After registration of case crime number, the Investigating officer had rushed at the spot. Inquest proceeding was conducted, police papers were prepared, dead body was properly sealed and autopsy examination was got done. Investigation resulted in submission of charge-sheet against the accused-Appellant, which was proved by the Investigating Officer. Incriminating evidence were put to convict appellant in statement recorded under Section 313 of Code of Criminal Procedure, 1973 (CrPC) but no answer was given except general and blatant denial.

In present case, events, their link and chain, is complete and shows culpability of Appellant in offence and there was no reason to take a different view than what has been taken by Court below. The Court below has rightly found Appellant guilty of offences with which the Appellant was charged and prosecution has successfully proved its case beyond doubt against appellant, hence he has been rightly convicted and sentenced.

The question of awarding sentence is a matter of discretion to be exercised on consideration of circumstances aggravating and mitigating in the individual case. It is settled legal position that appropriate sentence should be awarded after giving due consideration to the facts and circumstances of each case, nature of offence and the manner in which it was executed or committed. It is obligation of Court to constantly remind itself that right of victim, and be it said, on certain occasions persons aggrieved as well as society at large can be victims, never be marginalised. The measure of punishment should be proportionate to gravity of offence. Object of sentencing should be to protect society and to deter the criminal in achieving avowed object of law.

Punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with the crime has been perpetrated, enormity of crime warranting public abhorrence and it should 'respond to society's cry for justice against the criminal'.

Hence, applying the principles laid down by the Apex Court and in facts and circumstances of case, nature of offence and the manner in which it was executed or committed, punishment imposed upon the Appellant by trial Court in impugned judgment and order is not excessive or exorbitant and no question arises to interfere in the matter on the point of punishment imposed upon them. Impugned judgment and order deserves to be affirmed and appeal is dismissed.

Tags : Conviction Legality Circumstantial evidence

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High Court of Delhi

Rajesh Chugh and Ors. Vs. Chhavi Poplai and Ors.

MANU/DE/0230/2019

23.01.2019

Intellectual Property Rights

Owners of trademarks are not expected to run after every infringer

Application has been filed under Order 39 Rule 4 CPC on behalf of the Defendants No. 1 and 2 for vacation of the ex parte ad interim injunction order passed by present Court in an application for interim injunction filed by the Plaintiffs. The Plaintiffs submitted that, the mala fide intent of the Defendant nos. 1 to 4 is apparent by the manner in which they have given prominence to the word 'Nizam's' in their logo with the words New' and 'Kababs and Biryani' being non-distinctive and being depicted in negligibly small font. Plaintiffs further states that the Defendant nos. 1 to 4's unauthorised adoption of the trademark 'Nizams' in the name of their restaurant 'New Nizam 's Kababs and Biryani' is bound to cause confusion and deception amongst the public that, the Defendant nos. 1 to 4 are somehow connected, affiliated or sponsored by the Plaintiffs and result in an unjust enrichment to the defendant nos. 1 to 4.

Defendant No. 1 having applied for registration of the trade mark Nizam's cannot today contend that the word Nizam's is incapable of protection or registration. It is not open to the Defendant to approbate or reprobate. It is further settled law that dictionary and historical words are capable of protection. Even though a generic word like ARROW cannot be used as a mark for sale of arrows, yet it can be used as a mark for shirts--for which it would be considered an arbitrary or fanciful mark. Consequently, the word Nizam's is capable of protection.

No case of concealment is made out as the Kolkata party has confined its registration and use of the mark Nizam's to the territory of West Bengal. In any event, the Plaintiffs cannot argue the case on behalf of the Kolkata party. Present Court is further of the view that, the owners of the trade marks are not expected to run after every infringer and thereby remain involved in litigations. If the impugned infringement is too trivial or insignificant and is not capable of harming the plaintiff's business interest, Plaintiff may overlook or ignore petty violation till it assumes alarming proportions.

The Supreme Court in Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., has held that, in case of infringement of a trade mark, normally an injunction must follow. It was further held that mere delay in bringing action is not sufficient to defeat grant of injunction in such cases.

Since in the present case, Defendant has copied the Plaintiffs' registered mark, present Court is of the view that, the ex parte injunction order dated 31st August, 2018 needs to be continued till the disposal of the suit. Accordingly, application filed by the Defendant is dismissed.

Relevant

Midas Hygiene Industries (P) Ltd. & Anr. Vs. Sudhir Bhatia & Ors., MANU/SC/0186/2004

Tags : Infringement Injunction Vacation thereof

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Customs, Excise and Service Tax Appellate Tribunal

Sindia Steels Ltd. Vs. CCGST, Nashik

MANU/CM/0028/2019

23.01.2019

Excise

Mere taking of cenvat credit in book of account would not entail interest and penalty unless same is drawn from account of the government by way of refund or utilisation against duty dues

Appellant manufactures bright bar of stainless steel, and mild steel and mild steel wire. It has registered under the Central Excise Act. It availed cenvat credit on inputs for such manufacturing. During investigation made in January 2013, after intelligence gathered by the excise department, Appellant was informed that as per provision of Rule 3(1) of Cenvat Credit Rules 2004 credit on Education Cess & Secondary and Higher Secondary Education Cess were not admissible and the Appellant should reverse the same. Appellant did the reversal promptly and debited cenvat credit account but it was put to show-cause for such availment of allegedly inadmissible credit.

The matter was adjudicated upon that resulted in the confirmation of demand under Rule 14 of the Cenvat Credit Rules along with applicable interest at the appropriate rate and penalty of equivalent amount as well as penalty on the Director of the Appellant by the adjudicating authority. Appellant preferred appeal against such finding of the adjudicating authority that was dismissed in respect of Appellant company but allowed in respect of the Director absolving the penalty imposed on him. The present appeal is preferred by the Appellant challenging part rejection of its appeal in respect of duty demand interest and penalty on the appellant company.

Customs duty, as per customs tariff act were paid by the Appellant in accordance to Section 3 of Central Excise Act, 1994 as input material were brought by the Appellant from 100% EOU to its manufacturing unit located in India and Education Cess & Secondary and Higher Secondary Education Cess were duly paid by it.

Education Cess & Secondary and Higher Secondary Education Cess paid against additional duty leviable under Section 3 of Customs Tariff Act, 1975 are covered under cenvat credit permitted to be taken under Rule 3(1) of Cenvat Credit Rules 2004. Further, in respect of additional duty leviable under sub-section (5) of Section 3 of the Customs Tariff Act, nothing has been mentioned in Rule 3(1) of Cenvat Credit Rules 2004 that Education Cess & Secondary and Higher Secondary Education Cess paid on those duty is also included for availment of credits by the manufacturer.

According to Section 126 and 129 of the Finance Act, it is clear that Secondary and Higher Secondary Education Cess levied under Section 126 is not to be levied on the additional duty referred in sub-section (5) of Section 3 of the Customs Tariff Act. Therefore, the sample copy of invoice, which is imprinted on the show-cause notice, though reveals payment of additional duty of excise under sub-Rule (5) of Rule 3 was paid by the Appellant under erroneous interpretation of law and the same though taken as a credit should have been refunded back again under proper application. Only education cess paid under sub-section (5) is outside the purview of Cenvat Credit Rules and Secondary & Higher Education cess and of attached to additional duty referred in sub-section (5) of Section 3 of the Customs Tariff Act.

Mere taking of cenvat credit in the book of account would not entail interest and penalty unless the same is drawn from the account of the government by way of refund or utilisation against duty dues. Moreover having regard to the fact that even the intelligence wing officials of the Excise department, who conducted investigation are unaware that, higher education cess is not to be attached to sub-rule (5) of Rule 3 of Customs Tariff Rules, and issued show-cause to the Appellant, the same itself is sufficient indication that even experts in the field of taxation also misinterpreted the provisions due to inadequate understanding. The case of the Appellant can be considered as a bonafide dispute of legal interpretation of the provision as it has reflected the credit in its cenvat credit account without utilisation that would never justify invocation of extended period. The appeal is allowed and the order passed by the Commissioner of Central Excise is set aside.

Tags : Duty demand Interest Penalty

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