6 December 2021


Judgments

Customs, Excise and Service Tax Appellate Tribunal

Nayara Energy Ltd vs. Jamnagar (Prev)

MANU/CS/0144/2021

02.12.2021

Excise

Even in absence of specific letter for payment of duty under protest, the payment of duty for which refund sought can be treated under protest

The issue involved in the present case is that whether the Appellant's refund claim is hit by limitation and whether in absence of any specific letter for payment of duty under protest, the payment of duty for which refund sought for can be treated under protest.

The Appellant submits that, even though specific letter for payment of duty under protest was not filed but the same should be treated under protest particularly when no show cause notice was issued to appropriate amount to duty paid as deemed under protest. He submits that, the words "under protest" need not be specifically mentioned on the payment documents. He submits that, the payment was made during investigation, therefore, the said payment is deemed to be under protest. He further submits that, during investigation DRI was not entitled to collect any amount therefore, the amount of duty paid on the behest of DRI should be treated under protest. He further submits that, the amount paid is a deposit and not duty.

The refund was rejected being time barred as the same was filed after one year from the date of payment of duty. Both the lower authorities have held the refund as time bar on the ground that the appellant have not paid the duty "under protest" by submitting a letter of protest. It is the submission of the appellant that even though the letter of protest was not given but since the duty was paid during investigation and no show cause notice was issued in respect of such duty payment, the duty so paid should be deemed to be under protest.

Even if letter of protest is not filed, the Appellant is protesting the demand, the same should be treated under protest. Since, the main reason for holding the refund as time bar is the appellant has not filed a specific letter of protest for payment of duty. The expression of protest itself is payment under protest. However, in the facts of the case on the basis of correspondence made between the appellant and department, it is to be ascertained that the appellant have protested the payment of duty on demand of duty by the department at any point of time and on that basis the issue to be decided a fresh.

Accordingly, present Tribunal set aside the impugned order and the appeal is allowed by way of remand to the adjudicating authority for passing a fresh de novo order.

Tags : Duty Payment Refund

Share :

Top

Supreme Court

Committee of Creditors of Amtek Auto Limited through Corporation Bank vs. Dinkar T. Venkatsubramanian and Ors.

MANU/SC/1171/2021

01.12.2021

Insolvency

Resolution process has to be completed within the period stipulated under Section 12 of IBC

The Committee of Creditors of Amtek Auto Limited through Corporation Bank (‘COC’) has preferred the present appeal feeling aggrieved and dissatisfied with the impugned judgment and order passed by the National Company Law Appellate Tribunal, New Delhi (‘Appellate Authority’) in Company Appeal. The appellate authority by the impugned judgment and order disposed of the appeal filed by the COC and rejected the prayer for exclusion of time. Consequently, virtually ordered the liquidation of the Corporate Debtor.

Under the approved resolution plan, both the parties have to fulfil their obligations. The Corporate Debtor has also to perform its obligations simultaneously so that the amount of Rs.500 crores be transferred to the financial creditors/lenders of the Corporate Debtor. It is the case on behalf of the respective parties that the aforesaid obligations are to be performed mutually and simultaneously.

As per Section 12 of the Insolvency And Bankruptcy Code, 2016 (IBC), subject to sub-section (2), the corporate insolvency resolution process shall be completed within a period of 180 days from the date of admission of the application to initiate such process, which can be extended by a further period of 180 days. As per proviso to Section 12 of the IBC, which has been inserted by Act 26 of 2019, the insolvency resolution process shall mandatorily be completed within a period of 330 days from the insolvency commencement date, including any extension of the period of corporate insolvency resolution process granted under Section 12 of the IBC and the time taken in legal proceedings in relation to such resolution process of the Corporate Debtor. As per the third proviso to Section 12 of the IBC, which is also inserted by Act 26 of 2019, where the insolvency resolution process of a Corporate Debtor is pending and has not been completed within a period stated hereinabove, i.e., within a period of 330 days, such resolution process shall be completed within a period of 90 days from the date of commencement of the IBC amendment Act, 2019, i.e., 16.08.2019.

Thus, the entire resolution process has to be completed within the period stipulated under Section 12 of the IBC and any deviation would defeat the object and purpose of providing such time limit. However, by earlier order, the time limit has been condoned in view of the various litigations pending between the parties and in the peculiar facts and circumstances of the case. Therefore, any further delay in implementation of the approved resolution plan submitted by Deccan Value Investor (DVI) which as such has been approved by the adjudicating authority in the month of July, 2020 and even the appeal against the same has been dismissed subsequently, any further delay would defeat the very object and purpose of providing specific time limit for completion of the insolvency resolution process, as mandated under Section 12 of the IBC.

Therefore, all the concerned parties to the approved resolution plan and/or connected with implementation of the approved resolution plan including Implementation and Monitoring Committee (IMC) are directed to complete the implementation of the approved resolution plan, within a period of four weeks. On implementation of the approved resolution plan and even as per the approved resolution plan, an amount of Rs. 500 crores now deposited by DVI-successful resolution applicant be transferred to the respective lenders/financial creditors as per the approved resolution plan and/or as mutually agreed. Present appeal disposed of.

Tags : Resolution Process Time period

Share :

Top

High Court of Calcutta

Dibyendu Chakraborty Vs. Union of India and Ors.

MANU/WB/0843/2021

01.12.2021

Service

Lack of care and caution on the part of an employer in detecting the fraud could act as acquiescence and as a consequent waiver of irregularity in certain cases

Present application is directed against a judgment and order passed by the Learned Central Administrative Tribunal, thereby affirming an order issued by the disciplinary authority as affirmed by the appellate authority. The main allegation was that wrong information was supplied before the employer on behalf of the petitioner during his appointment. But, there was a delay of about 11 years in bringing up the issue.

It is alleged that, the Petitioner had obtained the job at the first instance by relying on some fake documents. However, this was not pointed out for a very long time and the Petitioner was allowed to work in the department and get promotions by sitting in appropriate test/s. The authorities did not exercise due care and caution for an inordinately long time. So, the alleged illegality could be detected after nearly 11 years of service of the Petitioner. All this long, the Petitioner worked in the capacity in which he was to serve the employer. The very fact that, the Petitioner was promoted on certain occasions makes it abundantly clear that, he was doing his job quite well.

Although ordinarily an act of fraud would vitiate a process and would date back to the earliest point in time when the engagement in question was initiated, yet a patent lack of care, caution and sincerity on the part of an employer in detecting the same could act as an acquiescence and as a consequent waiver of irregularity in certain cases. In the present case, a hiatus of 11 long years in the employer's urge to exercise reasonable care and caution does vitiate the belated departmental proceeding. The decisions relied upon on the issue of effect of delay, too indicate that an inordinate and unexplained delay may act as a bar to such a belated proceeding.

As regards non supply of copies, the view of the learned Tribunal that, the Petitioner failed to explain why he needed the copies of documents is not quite relevant. All the documents that would be relied upon against the Petitioner have to be supplied to him. Even as far as the other documents available with the employer, it was the Petitioner's right to pray for supply of such documents, which would ensure to his benefit. The failure of the authorities to supply copies of documents as sought by the petitioner strikes the proceeding at its root.

So far as the withdrawal of the first charge sheet and the introduction of second is concerned, the same too could not be casually brushed aside. There is an established procedure by which a charge sheet in a departmental proceeding can be withdrawn and a second one instituted. In the present case, no worthwhile reason was cited for withdrawing the first charge sheet and instituting the second charge sheet. Such cavalier acts seriously prejudicing an employee cannot be sustained in the eye of law. Accordingly, the impugned order passed by the Learned Central Administrative Tribunal is set aside. The writ application is allowed.

Tags : Dismissal Affirmation Legality

Share :

Top

Supreme Court

Hasmat Ali vs. Amina Bibi and Ors.

MANU/SC/1160/2021

29.11.2021

Civil

High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion

Present appeal is preferred against the order passed by the High Court in Regular Second Appeal whereby the High Court had dismissed the appeal in limine thereby confirming the judgment passed by the Additional District Judge.

The order of the High Court is challenged by the Defendant mainly on the ground that, it is not supported by any reasons. The Appellant submits that, the appeal involves substantial questions of law and that the High Court ought to have entertained the appeal for considering these questions of law. The High Court was not justified in dismissing the appeal in limine.

Order XLII of the Code of Civil Procedure, 1908 (CPC) provides for the procedure to be followed while deciding appeals from the appellate decrees. It states that, the Rules of Order XLI shall apply, so far as may be, to the appeals from appellate decrees. By virtue of Order XLII Rule 1, the provisions of Order XLI are applicable to second appeal as well, though not in their entirety, but to certain extent.

An appeal under Section 100 of the CPC could be filed both against the ‘concurrent findings’ or ‘divergent findings’ of the Courts below. Sub-section (1) of Section 100 of the CPC states that, a second appeal would be entertained by the High Court only when the High Court is satisfied that the case ‘involves a substantial question of law’. Therefore, for entertaining an appeal under Section 100 of the CPC, it is immaterial as to whether it is against ‘concurrent findings’ or ‘divergent findings’ of the Courts below.

Even when any concurrent finding of fact is appealed, the Appellant is entitled to point out that, it is bad in law because it was recorded de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent.

In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. The High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.

In the instant case, since the High Court has not assigned any reasons for the dismissal of the appeal, the order needs to be set aside. The order of the High Court is set aside and the matter is remitted back to the High Court for fresh disposal in accordance with law. Appeal allowed.

Tags : Appeal Dismissal Legality

Share :

Top

Supreme Court

Mofil Khan And Anr. vs The State Of Jharkhand

MANU/SC/1149/2021

26.11.2021

Criminal

Before imposing the extreme penalty of death sentence, the Court should satisfy itself that, death sentence is imperative

Present Petition has been filed under Article 137 of the Constitution of India, 1950 seeking review of the judgment. The Petitioners were convicted for offences under Sections 302 and 449 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and sentenced to death for offence under Section 302 read with Section 34 of IPC and 10 years of rigorous imprisonment for offence under Section 449 read with Section 34 of IPC. The conviction and death sentence imposed by the trial court was upheld by the High Court by an order and the Criminal Appeal filed by the Petitioners against the said order was dismissed by this Court by its judgment.

In Mohd. Mannan v. State of Bihar, it was held that, before imposing the extreme penalty of death sentence, the Court should satisfy itself that death sentence is imperative, as otherwise the convict would be a threat to the society, and that there is no possibility of reform or rehabilitation of the convict, after giving the convict an effective, meaningful, real opportunity of hearing on the question of sentence, by producing material. The hearing of sentence should be effective and even if the accused remains silent, the Court would be obliged and duty-bound to elicit relevant factors.

It is well-settled law that, the possibility of reformation and rehabilitation of the convict is an important factor which has to be taken into account as a mitigating circumstance before sentencing him to death. There is a bounden duty cast on the Courts to elicit information of all the relevant factors and consider those regarding the possibility of reformation, even if the accused remains silent. A scrutiny of the judgments of the trial court, the High Court and this Court would indicate that, the sentence of death is imposed by taking into account the brutality of the crime. There is no reference to the possibility of reformation of the Petitioners, nor has the State procured any evidence to prove that there is no such possibility with respect to the Petitioners.

Present Court has examined the socio-economic background of the Petitioners, the absence of any criminal antecedents, affidavits filed by their family and community members with whom they continue to share emotional ties and the certificate issued by the Jail Superintendent on their conduct during their long incarceration of 14 years.

In facts of present case, it cannot be said that, there is no possibility of reformation of the Petitioners, foreclosing the alternative option of a lesser sentence and making the imposition of death sentence imperative. Therefore, the sentence imposed on the Petitioners is converted from death to life. However, keeping in mind the gruesome murder of the entire family of their sibling in a pre-planned manner without provocation due to a property dispute, the Petitioners deserve a sentence of a period of 30 years. Accordingly, the sentence of death imposed on the Petitioners is converted to life imprisonment for a period of 30 years. The Review Petition is disposed of.

Tags : Conviction Death sentence Validity

Share :

Top

High Court of Delhi

Tarun Jain vs. Directorate General of GST Intelligence DGGI

MANU/DE/3243/2021

26.11.2021

Criminal

Anticipatory bail is a statutory right in consonance with the right to life and personal liberty under Article 21 of the Constitution

The Petitioner has approached present Court by way of the instant application under Section 438 of the Criminal Procedure Code, 1973 (CrPC) seeking anticipatory bail in a matter pertaining to Section 132 of the Central Goods and Services Act, 2017 ("CGST Act"). Another Application has also been filed before present Court under Section 438 read with Section 482 of the CrPC seeking ad-interim protection from coercive action that might be taken by the Respondent during the pendency of the Anticipatory Bail Application.

There is no embargo under the CGST Act restraining the Petitioner from seeking pre-arrest bail. Economic offences such as tax evasion, money laundering, etc. affect the economy of the country and thus, are considered grave in nature. To deter persons from indulging in such economic offences, criminal sanctions are required to be imposed. One of the most prominent criminal sanctions imposed with regard to economic offences is that of arrest. It is widely acknowledged that, arrests result in deprivation of liberty of a person.

In the present case, there cannot be any conflict with the fact that, Petitioner has been charged with economic offence. However, it is to be reiterated that, the offence does not contemplate punishment for more than five years or commission of any serious offence along with the economic offence as it is usually the case in offences under other special statutes dealing with economic offences like Prevention of Money Laundering Act, 2003. Thus, as per the scheme of the CGST Act, though the offence is of economic nature yet the punishment prescribed cannot be ignored to determine the heinousness of the offence.

Since, anticipatory bail is a statutory right in consonance with the Right to life and personal liberty under Article 21 of the Constitution of India, 1950, it is essential to be alive to the various facets that form a part of rights under Article 21 of the Constitution.

These are competing interests included in an anticipatory bail application i.e., the liberty of the accused and the interest of the investigative authorities for discovering the particular of offence. It is the case of the Petitioner that he failed to appear due to his ill health, which evidently no more exists. The other ground pertains to apprehension of arrest, which can be removed by allowing the present application. Custodial interrogation in the instant matter is neither warranted nor provided for by the statute. Detaining the Petitioner in Judicial Custody would serve no purpose rather would adversely impact the business of the petitioner.

This court must give effect to Article 21 of the Constitution in letter as well as in spirit while deciding the anticipatory bail application. In view of the facts and circumstances and in light of the provisions of law, present Court is inclined to allow the anticipatory bail application with some stringent conditions in view of the prior conduct of the Petitioner.

Tags : Bail Grant Conduct

Share :