High Court of Himachal Pradesh

Sham Singh Vs. State of Himachal Pradesh and Ors.

MANU/HP/1037/2019

09.08.2019

Criminal

Powers to summon any witness can be invoked at any stage of inquiry or trial, if such evidence appears to the Court to be essential

The present criminal revision petition is filed under Section 482 of the Code of Criminal Procedure, 1973 (CrPC) for quashing of order passed by learned Judicial Magistrate. In facts of present case, the victim, who works as a Junior Engineer in the IPH Department, in her complaint, alleged that, Petitioner, who is a Contractor, keeps on calling her on phone and pressurizes her to establish sexual relations with him. She further alleged that, for the last six months, Contractor Sham Singh was mentally disturbing her. On these allegations, FIR under Sections 354A, 354D, 379 and 506 of the Indian Penal Code, 1860 and Section 66A of the Information and Technology Act, 2000, was registered.

After investigation, police filed a report under Section 173 of the CrPC and consequently, accused is facing the trial. During the pendency of the trial, the victim through Public Prosecutor filed an application under Section 311 of the CrPC for placing on record one CD containing some vulgar remarks made by the accused. The trial Court, vide order allowed the application and ordered that the CD be taken on record. The trial Court further ordered examination of Keshav Kumar, the Government Contractor and summoned him for 15th May, 2019. This order is under challenge vide the present petition.

There are two limbs of arguments addressed by learned counsel for the Petitioner. The first limb touches the scope and powers under Section 311 of the CrPC to summon such evidence at a belated stage and second limb of his arguments is that, this application was simply a tactics played by the victim to drag on the prosecution and delay the outcome of the trial. The first limb of the argument has a very limited scope. Section 311 of the CrPC defines the powers of criminal Courts to summon any person as a witness, at any stage of inquiry, trial or other proceedings, if such evidence appears to the Court to be essential to the just decision of the case.

This Court is of the opinion that there is no necessity to refer all the vulgar remarks in such kind of application because the victim had placed on record CD, which can always be played by the Court to decipher the allegations. This is not an order, but allegations of vulgar remarks by a lady. The possibility cannot be ruled out that to save her dignity, she might have restrained from reproducing the text of the audio recording. Even otherwise, in the absence of hearing the CD, no conclusion can be drawn that, it did contain obscene language or not. Therefore, the first limb of the argument has no substance and is without any merit.

Regarding second limb of argument that, these proceedings are with a view to delay the trial, this argument itself is contradictory to the effect that, through the impugned order, the witness was summoned for 15.5.2019 and because of this petition, the trial Court proceedings are delayed till date. If the accused was very serious in early disposal of the entire trial, then he would have not opposed the examination of such a witness. The fear of the accused that the victim filed this application with a view to delay the trial, can be addressed by requesting the trial Court to complete the trial within a time frame. Petition dismissed.

Tags : Witness Summon Proceedings Quashing of

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High Court of Bombay

Meso Private Limited Vs. Liberty Shoes Ltd. and Ors.

MANU/MH/2163/2019

08.08.2019

Intellectual Property Rights

Court must consider mode of purchasing the goods, class of consumers, surrounding circumstances and degree of similarity in order to ascertain likelihood of confusion

The Appellant-Plaintiff manufactures and sells of various cosmetic products, including two perfumes with trademarks Legend and Flirt. The Liberty Group, the Respondents-Defendants, launched two perfumes with names Legend and Flirt. This led to MESO filing a Trade Mark suit in this Court and moving for an injunction to restrain Liberty from selling these perfumes. The learned Single Judge initially granted an ex parte ad-interim order of injunction, which was subsequently vacated. Being aggrieved, MESO approached with present appeal seeking a grant of an injunction against Liberty Group regarding these two products.

A registered trademark is infringed when a person not being a registered proprietor or a person using by way of permitted use, uses in the course of trade, a mark which is identical with or deceptively similar to the registered trademark in relation to the goods and services for which the trademark is registered. Further, if the person uses the mark which is because of its identity with the registered trademark and similarity of good and services covered by such registered trademark and its identity with the registered trademark or likely to cause confusion on the part of the public or is likely to have an association with the registered trademark. Section 29(3) raises a presumption regarding the likely confusion on the part of the public, if the usage by a person not a registered proprietor falls under clause (c) of sub-section (2) of Section 29 of the Trademarks Act, 1999.

To ascertain whether there is a likelihood of confusion in such matters, the Court must consider the mode of purchasing the goods, the class of consumers, surrounding circumstances and the degree of similarity. These factors would differ from case to case. The test of likelihood of confusion encompasses all factors relevant to the circumstances. The perception in the mind of the average consumer of the goods is the touchstone of the concept of the likelihood of confusion. Perception to be considered is of the average consumer of such products who is reasonably well informed and reasonably observant and circumspect.

The wrapper of perfume marketed by MESO under the name Flirt has "FLIRT" printed on it in bold letters with "DEVON" also prominently written on the wrapper. Similar is the position with trademark Legend wherein "LEGEND" is written on the wrapper which also has "DEVON" written on the wrapper. Both these words 'legend' and 'Flirt' along with word "DEVON" appear on the same side of the wrapper. The wrappers of the perfumes marketed by Liberty also have words 'FLIRT and 'LIBERTY' written on the same side of the wrapper. The house names are clearly noticeable on these wrappers. The marks Legend or Flirt are, therefore, along with house name when the consumers notice these products. MESO is thus selling the products as Devon Legend and Devon Flirt, while liberty is selling them as Liberty Legend and Liberty Flirt.

Words Legend and Flirt have been used regarding perfumes falling in Class-3 along with house names by various companies. The average consumer of premium lifestyle product such as perfumes does not choose them causally. The average consumer's choice of perfume is influenced by the blends, diffusion, distillation and fragrance, concentration of perfume. Thus, this product is not chosen with indifference. Various brands and houses aggressively build up associations with the house and brand names. Recommendations exchanged between average consumers are generally on the house names. A discerning consumer knows there could be various perfumes in the market with names Legend, Flirt, Gentlemen, but such consumer will first go by the name of the house or a group marketing such variants.

Therefore, the defence of Liberty that, use of Legend and Flirt along with its house name will not cause confusion regarding the marks of MESO has to be accepted at this stage to sustain the order of refusal of an injunction. The learned single Judge has placed conditions on Liberty in respect of disclosure of accounts, which are sufficient safeguards till the disposal of the Suit. The appeal is dismissed.

Tags : Confusion Likelihood Injunction Grant

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High Court of Calcutta

Biswabani Private Limited Vs. Rabindra Nath Dutta and Ors.

MANU/WB/2014/2019

07.08.2019

Property

An error which is not self-evident and has to be detected by exercise of scrutiny at length cannot be said to be an error apparent on face of record

The Petitioner being a Defendant in a suit for eviction filed an application for mandatory injunction restraining the Plaintiff/landlord from surrendering the cinema licence which was held by the landlord. The learned trial Court disposed of the injunction application restraining the Plaintiffs from doing anything including surrendering licence of the cinema house that would injure the business of the Defendant No. 1 with the observation that on the question of renewal of licence appropriate authority should decide the controversy.

Aggrieved thereby the Defendant/Petitioner filed Miscellaneous Appeal which was dismissed by the First Appellate Court. The learned Judge while dismissing the Miscellaneous Appeal also held that, the Appellant filed some documents showing that the report of inspection of cinema recording sight line to show that the chartered engineer had inspected/recorded sight lines and it was followed up to 2014 and the certificates of Md. Sahzada and Pradip Kumar Bachar were also followed up to 16.04.2015 and there was no bar for renewal of license. Against such an order passed in Miscellaneous Appeal, the Petitioner filed a revisional application before this Court.

Power of review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (CPC) constitute an exception to the general rule to the effect that once a judgment is signed and pronounced it cannot afterwards be altered. Thus, power to review is exercisable only where the circumstances are strictly covered by the statutory exceptions contemplated under the provision of Order XLVII Rule 1 of CPC. While deciding the Civil Revision it was the definite finding of the Court that prayer for renewal implies various other consequences and unless the party applying for renewal of license is satisfied about the documentation and its authenticity Court cannot compel such person to apply for renewal. Once such a prayer was rejected by the trial Court an identical opinion is formed by this Court in a revision so also by the First Appellate Court in Miscellaneous Appeal, the situation cannot be altered by way of review simply saying that this Court would have passed some other order had this Court considered the entire documents.

It is settled law that, a review can only be entertained, when there is a mistake or error apparent on the face of the record. An error which is not self-evident and has to be detected by exercise of scrutiny at length cannot be said to be an error apparent on the face of the record. Power of review is a statutory power and by exercising such statutory power Court has to confine its decision within the ambit of Rule I under Order XLVII of the CPC and it cannot the illustricise the scope of review. It is not permissible for the Court for an erroneous decision to be re-heard and corrected for which parties ought to have recourse to appeal. An error apparent on the face of record is always distinguishable from an erroneous decision. The Petitioner in this case has resorted to really argue an appeal in disguise of review. Accordingly, Review Application is rejected.

Tags : Injunction Review Maintainability

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Customs, Excise and Service Tax Appellate Tribunal

Blue Star Ltd. Vs. Commissioner of Central Tax, Secunderabad GST

MANU/CH/0124/2019

07.08.2019

Service Tax

Trading is an exempted service, Rule 6(3) of CENVAT Credit Rules applies in case credit has been taken on input/input services used in trading activity

The Appellant is a manufacturer of air conditioners and refrigeration products. They also undertake works contract service, erection commissioning and installation service, maintenance and repair service, business auxiliary services and goods transport agency services and have been registered with the service tax department. They availed CENVAT credit on various inputs, input services and capital goods. Some of these services are also used by them for trading activity. Apart from manufacture and the aforesaid services, the Appellant also sells air conditioners and this trading activity was considered by the Department as an exempted service. Since the Appellant had availed CENVAT credit on input services which went into trading activity, the Department raised demand on the Appellant in four show-cause notices alleging that, they have irregularly availed CENVAT credit in violation of Rule 6(3) of the CENVAT Credit Rules, 2004 by using the CENVAT availed input services in rendering an exempted service namely trading.

It is undisputed in present case that, the Appellant has been manufacturing air conditioners and providing services and that the input/input services on which CENVAT credit has been availed has been utilised for trading as well. It is also not in dispute that Rule 6(1) and 6(2) do not apply to the appellant because they have neither avoided taking credit on input services used in trading nor have they maintained separate accounts.

In the case of Lally Automobiles Pvt. Ltd. Vs. CST Delhi, the principal bench of the Tribunal, has held that, trading being not a taxable service is not covered under the scope of CENVAT Credit Rules 2004 and therefore credit needs to be reversed as per Rule 6(3).

It has been well settled that trading is an exempted service and Rule 6(3) applies in case credit has been taken on the input/input services used in trading activity. Trading activity is an exempted service to which Rule 6(3) applies. This position has not changed with the introduction of explanation (3) to Rule 6(1). Trading activity has always been an exempted service both prior to and after introduction of this explanation. Accordingly, the assessee is not entitled to CENVAT credit to that extent.

A plain reading of Rule 6(3)(c) shows that, the restriction on utilisation of CENVAT under Rule 6(3)(c) is not confined to any form of CENVAT credit but is related to the value of output taxable services rendered by the Appellant. The credit cannot be utilised in excess of 20% of the amount of service tax payable on taxable output services. Therefore, if service tax is paid utilising the CENVAT, it does not amount to paying service tax and service tax can be demanded.

A plain reading of Rule 6(5) shows that exception has been made with respect to some services in it and if the services on which the Appellant claimed credit are covered by Rule 6(5), they are entitled to full credit to that extent. In view of fact that, the assessee was not required in their ST-3 returns to declare the breakup of the CENVAT credit availed by them, there is force in the argument of the learned counsel that, extended period of limitation cannot be invoked in their case.

The Appellant had a bona fide belief that they are entitled to the benefit of CENVAT credit even if it is decided against them in the current proceedings, therefore, the penalty imposed upon them under Sections 76 & 78 may be set aside. They had a reasonable cause for their failure in over-using CENVAT credit in violation of Rule 6(3) and thereby not discharging full amount of service tax.

The demand within the normal period is only upheld. The demand for subsequent periods is upheld subject to verification and re-quantification of the credit eligible to the appellant under Rule 6(5) as above. The interest on the demands gets modified accordingly. The penalties imposed upon the appellant are set aside invoking Section 80 of the Finance Act 1994. The appeals are disposed of.

Relevant

Lally Automobiles Pvt. Ltd. vs. Commissioner of Service Tax, Delhi MANU/CE/1170/2017

Tags : Demand Confirmation Legality

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Customs, Excise and Service Tax Appellate Tribunal

Jaiswal Import Cargo Services Limited Vs. Commissioner of Customs, Airport & General

MANU/CE/0262/2019

07.08.2019

Customs

Revocation of licence can only be justified in presence of aggravating factors that allow infraction to be labelled grave

The Appellant is a Customs Broker with Pawan Kumar Jaiswal as one of its Directors. Department observed the violation of Regulation 11(d) and (e) of Customs Brokers Licensing Regulations, 2013, (CBLR) on the part of the Appellant in a case of import of assorted birthday candles by Ess Enn Impex importer through S. Guha Sarkar & Co. Ltd. vide Bill of Entry. The Department after intercepting and examining the goods observed that, the candles were described as sparkling flower candles.

Commissioner of Customs, vide Order had revoked the Customs Broker Licence of the Appellant and forfeited the whole amount of security deposit of Rs. 75,000. However, no separate penalty was imposed upon Custom Broker in view of the said forfeiture. Being aggrieved of the said Order, the Appellant is before present Tribunal.

Question involved in present case is whether the imported goods i.e. assorted birthday candles can actually be classified as fireworks/pyrotechnics and that, whether the appellant failed to inform the correct classification about the impugned birthday candles to the importer intentionally and as such, the license has rightly been revoked.

Fireworks are considered as low hazard explosives whose sale is regulated by Explosives Rules, 2008 framed under Explosives Act, 1884. The Act does not define the fireworks nor do said Rules. Literally, it is an object that burns or explodes with coloured lights and loud sounds and is used for entertainment.

These reports have admission that, goods in question are candles. However, the Central wig of the candles contains such chemicals as are the contents of fireworks. Thus, the goods are such that a small part thereof contains such chemical as are required to manufacture fireworks. If similarity of contents is the criteria to classify than even match stick should be classified as firework, in the given circumstances and in view of the principle of common parlance/in terms of trade, it is held that, goods are not fireworks.

The present Appellant admittedly has no concern with the intercepted consignment. He rather admittedly was the CHA for the said two previously cleared consignments. The adjudicating authorities have gone beyond the limit while cancelling the Custom Broker Licence of Jaiswal Import Cargo Services Limited whose consignment were never intercepted nor ever got examined by CFSL/PESO simply because his G-Card Holder was same as was for Guha Sarkar & Co. Ltd. whose consignment was intercepted. Question of cancellation of licence because of subsequent interception of consignment of similar goods is held to be highly unjustified which otherwise stands barred by principle of estoppel.

No doubt, CHA is a link between the Customs Authorities and the importers and the CBLR Regulations imposes obligation upon them which have to be taken as mandatory but law is also settled that not any and every infraction of the CHA Regulations either Regulation 13 or elsewhere leads to the revocation of license rather in line with a proportionality analysis and only grave and serious violation justify revocation. Present Tribunal in the case of Ashiana Cargo Services Vs. Commissioner of Customs (I & G), further clarified that, revocation of licence under Rule 20(1) can only be justified in the presence of aggravating factors that allow infraction to be labelled grave. It is the presence of mens rea to act fraudulent or an act of corruption due to intentional violation of CBLR Regulations with intent to evade duty which invites the punishment as that of cancellation of CB Licence. This punishment cannot be proportionate to the mere absence of due diligence.

As far as Jaiswal Import Cargo Services Limited is concerned, there is nothing on record to even show the absence of due diligence on their part. Thus, there is no reason for the cancellation of Appellant's CHA license. The penalty is also opined to be far beyond the proportion. Hence, same is also held liable to be set aside. The Order under challenge is set aside. Appeal allowed.

Tags : License Cancellation Legality

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National Consumer Disputes Redressal Commission

Branch Manager, New India Assurance Co. Ltd. Vs. A.M. Traders and Ors.

MANU/CF/0527/2019

07.08.2019

Consumer

Rejection of report of its own Surveyor by Insurance Company in absence of any valid reason or proof cannot be sustained

In present matter, aggrieved by the order passed by the State Consumer Disputes Redressal Commission, New India Assurance Company Ltd. preferred the present First Appeal under Section 19 of the Consumer Protection Act, 1986. By the impugned order, the State Commission has allowed the Complaint in part directing the Insurance Company to pay a sum of 54,46,940 with interest @ 9% p.a. from 4th August, 2006 till the date of payment together with compensation of 25,000 and costs of 10,000.

The Complaint was filed before the State Commission on 4th August, 2006, whereas the Report of J.B. Boda Surveyors Pvt. Ltd., dated 23rd March, 2009 was filed before the State Commission only after the Complainant had requested for it, on 15th December, 2011. This act of the Insurance Company in filing the Survey Report after 5 and half years of filing of the Complaint is deprecated.

There is no illegality in the observation made by the State Commission that, the report of J.B. Boda Surveyors Pvt. Ltd. is based on assumptions and technicalities and does not reflect the factual loss. The Supreme Court in Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & Anr., has deprecated the stand of the Insurance Company in appointing one Surveyor after the other without given specific cogent and satisfactory reasons. Even in the instant case, the Preliminary Survey was done on 30th October, 2005 and thereafter an Investigator was appointed and still thereafter J.B. Boda Surveyors Pvt. Ltd., was appointed whose report is dated 23rd March, 2009 and at the cost of repetition the same was filed before the State Commission only on 15th December, 2011, five and half years after the Complainant has filed the Complaint. This is contrary to Regulation 9 of IRDA which stipulates that the Surveyor has to file its Report within 30 days from his appointment.

In New India Assurance Company Ltd. Vs. Luxra Enterprises Private Ltd. & Anr., the Hon'ble Apex Court has clearly laid down that, rejection of report of its own Surveyor by the Insurance Company in the absence of any valid reason or proof that the report was arbitrary or excessive cannot be sustained. In this instant case, there was no cogent reason given by the Insurance Company to appoint one Investigator and again another Surveyor. Hence, judgements rendered by the Hon'ble Supreme Court in Sri Venkateswara Syndicate and in Luxra Enterprises Pvt. Ltd. squarely apply to the facts of this case. There is no illegality or infirmity in the order of the State Commission and hence, present Appeal is dismissed.

Relevant

Sri Venkateswara Syndicate Vs. Oriental Insurance Company Ltd. & Anr. MANU/SC/1500/2009
, New India Assurance Company Ltd. Vs. Luxra Enterprises Private Ltd. & Anr. MANU/SC/0644/2019

Tags : Compensation Direction Legality

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