20 May 2024


High Court of Delhi

Suraj Kumar vs. State of NCT of Delhi (Neutral Citation: 2024:DHC:4045)




Power to grant a pre-arrest bail under Section 438 of the CrPC is extraordinary in nature and is to be exercised sparingly

The present application is filed under Section 438 of the Code of Criminal Procedure, 1973 (CrPC) read with Section 482 of the CrPC seeking pre-arrest bail in FIR registered at Police Station for offences under Sections 365/323/34 of the Indian Penal Code, 1860 (IPC).

The considerations governing the grant of pre- arrest bail are materially different than those to be considered while adjudicating the application for grant of regular bail, as in the latter case, the accused is already under arrest and substantial investigation is carried out by the investigating agency. It is trite law that the power to grant a pre-arrest bail under Section 438 of the CrPC is extraordinary in nature and is to be exercised sparingly. Thus, pre-arrest bail cannot be granted in a routine manner.

It is settled law that the custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the CrPC. In view of the nature of allegations with respect to the offences as alleged, there is a justified concern regarding the applicants’ potential to influence over the witnesses. The investigation conducted thus, so far does not indicate that the applicant is sought to be falsely implicated. The material presented by the prosecution establish a prima facie involvement of the applicant. The investigation is at a nascent stage and the investigating agency needs to be given a fair play in the joints to investigate the matter in the manner they feel appropriate.

It is clear that the victim has been compelled by use of force to sit in the car and forcibly taken to the factory of the applicant. The argument that the complainant was not abducted with intent to be secretly and wrongfully confined and thus, is not punishable, is also meritless. It is apparent that the complainant was compelled by use of force and was pushed into the car and was, therefore, confined in the car wrongfully. The present application is accordingly dismissed.

Tags : FIR Bail Grant

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Customs, Excise and Service Tax Appellate Tribunal

Gee Pee Mica Enterprises vs. Commissioner Of Customs




Once the party admits, the same need not be proved by the department

The Appellant filed the Bill of Entry for clearance of the goods declared as "Copper Clad Laminates-AL grade" classified under CTH 7474102100. The goods were put under preventive check and on examination were found to be mis-declared in terms of the description of the classification as they appeared to be "Aluminium Paste Copper Clad Laminates" classifiable under CTH 76061200. Hence the goods were seized.

The goods were ordered to be confiscated being mis-declared under the provision of section 111(m) of the Customs Act, 1962 an option was given to the appellant to redeem the same on payment of redemption fine of Rs. 50,000 in terms of provisions of Section 125 of the Act. The adjudicating authority imposed the penalty of Rs. 2,03,701 under the provisions of section 114A of the Act. In appeal, the Commissioner (Appeals) upheld that the impugned consignment was mis-classified and were, therefore, liable for confiscation, modified the order of penalty by setting aside the penalty under section 114A and imposing penalty for a sum of Rs. 20,370 under Section 112 of the Act.

It is evident that the appellant has voluntarily accepted and admitted that the goods have been mis-classified due to mistake and, therefore, paid the differential customs duty. The principle settled by judicial pronouncements is clear that once the party admits, the same need not be proved by the department.

On the issue of retraction, that the statement was made on 25th March, 2021 and the retraction was made vide communication dated 16th April, 2021, which is nothing but afterthought and belated action and hence no reliance can be placed thereon. Mere fact of retraction of the confessional statement by itself is not sufficient and if on further examination nothing is found to hold the statement having been given under the exhortation or duress, the same can be made the basis for holding the appellant guilty.The statement that, Appellant paid the differential duty amount under protest is just an afterthought and has no evidential value and, therefore, the plea needs to be rejected.

The Commissioner (Appeals) travelled beyond the jurisdiction in the matter of imposing penalty under Section 112 of the Act and, therefore, the same is set aside. To the extent, the impugned order stands modified.In so far as the evidence on merits are concerned regarding the imposition of differential customs duty, confiscation and redemption fine is concerned, the same is confirmed, also for the reason that during the hearing the learned counsel for the appellant categorically stated that he does not dispute the same except the issue of penalty. Therefore, the imposition of penalty under Section 112 of the Act stands set aside. The appeal is, accordingly, partially allowed.

Tags : Penalty Imposition Legality

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Supreme Court

Dani Wooltex Corporation and Ors. vs. Sheil Properties Pvt. Ltd. and Ors. (Neutral Citation: 2024 INSC 433)




Abandonment of claim cannot be readily inferred, there must be convincing circumstances on record which lead to an inevitable inference about the abandonment

In present appeal, the issue involved is about the legality and validity of the order of termination of the arbitral proceedings under Clause (c) of Sub-section (2) of Section 32 of the Arbitration and Conciliation Act, 1996 ('the Arbitration Act') passed by the Arbitral Tribunal.

If parties do not agree on the timelines for filing statements of claim and defence, under Sub-section (1) of Section 23, the Arbitral Tribunal has the power to determine the timelines for filing pleadings. Sub-section (4) of Section 23, provides that the filing of pleadings (statements of claim and defence) shall be completed within six months from the date the learned Arbitrator or all the learned Arbitrators, as the case may be, receive notice of their appointment in writing.

The power under Clause (c) of Sub-section (2) of Section 32 of the Arbitration Act can be exercised only if, for some reason, the continuation of proceedings has become unnecessary or impossible. Unless the Arbitral Tribunal records its satisfaction based on the material on record that proceedings have become unnecessary or impossible, the power under Clause (c) of Sub-section (2) of Section 32 cannot be exercised. If the said power is exercised casually, it will defeat the very object of enacting the Arbitration Act;It is the Arbitral Tribunal's duty to fix a meeting for hearing even if parties to the proceedings do not make such a request. The failure of the claimant to request the Arbitral Tribunal to fix a date for hearing, per se, is no ground to conclude that the proceedings have become unnecessary.

The abandonment of the claim by a claimant can be a ground to invoke Clause (c) of Sub-section (2) of Section 32. The abandonment of the claim can be either express or implied. The abandonment cannot be readily inferred. There is an implied abandonment when admitted or proved facts are so clinching that the only inference which can be drawn is of the abandonment. Only if the established conduct of a claimant is such that it leads only to one conclusion that the claimant has given up his/her claim can an inference of abandonment be drawn. Even if it is to be implied, there must be convincing circumstances on record which lead to an inevitable inference about the abandonment. Only because a claimant, after filing his statement of claim, does not move the Arbitral Tribunal to fix a date for the hearing, the failure of the claimant, per se, will not amount to the abandonment of the claim.Therefore, present Court concur with the view taken by the learned Single Judge. Appeal dismissed.

Tags : Arbitral proceedings Termination Legality

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High Court of Bombay

Ramchandra Baburao Tadge vs. The State Of Maharashtra And Ors




Applications for change of date of birth at the fag end of service cannot be entertained

Petitioner has filed present petition challenging the Judgment and Order passed by the Maharashtra Administrative Tribunal dismissing Original Application filed by him seeking alteration of his date of birth in the service book. Petitioner prays that, his date of birth recorded in the service book as '1 June 1964' be changed to '21 March 1966'. The Tribunal has proceeded to dismiss the Original Application holding that the same could not be entertained at the fag end of his service as he is due to retire on attaining the age of superannuation on 31stMay, 2024.

Though Petitioner may have made representation for change of date of birth on 2 February 1995 and went on making various representations thereafter, the fact remains that he approached the Tribunal for the first time in February 2024 when he was due to retire on attaining the age of superannuation on 31 May 2024. Thus, despite being appointed in service in the year 1994, Petitioner thought of approaching the Tribunal with his grievance relating to change of his date of birth 30 years later in February 2024. The approach to the Tribunal was made 3 months before retirement.

The Apex Court has repeatedly frowned upon the tendency of Government servants in approaching the Courts at the fag end of their service for change of date of birth. The Tribunal, while dismissing Petitioner's Original Application has relied upon judgment of this Court in State of Maharashtra vs. Sudhir Bhagwat Kalekar. The Apex Court has time and again held that, applications for change of date of birth at the fag end of service cannot be entertained.

There is no reason to take a different view in the present case than the one taken in Sudhir Bhagwat Kalekar. The Tribunal has rightly dismissed the Original Application fled by the Petitioner. The order passed by the Tribunal to be unexceptionable. Petition dismissed.

Tags : Alteration Date of birth Eligibility

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Customs, Excise and Service Tax Appellate Tribunal

Rubamin Private Limited vs. Commissioner of C.E. & S.T.



Goods and Services Tax

Assessee who is eligible for cenvat credit and unable to take the credit due to CGST regime after 1st July, 2017 shall be eligible for the cash refund

The issue involved in the present case is that whether the appellant is eligible to claim refund of CVD and SAD in respect of payment of custom duty for regularizing excess import under advance authorization prior to introduction of GST regime but the duty liability was finalized and paid after the introduction of GST. The said CVD and SAD was paid by the Appellant on their own suo moto in order to regularize excess import qua export obligation fulfillment.

The appellants have claimed the refund of CVD and SAD in terms of Section 142 (3) of CGST, 2017. As per Section 142 (3) of CGST, it is clear that, an assessee who is eligible for cenvat credit and unable to take the credit due to CGST regime after 01.07.2017 shall be eligible for the cash refund. In the present case, the CVD and SAD was paid which is admissible as cenvat credit to the appellants under the existing law i.e. Cenvat Credit Rules, 2004. Secondly the said amount is refundable to the appellants.

As regard the issue that whether the appellant's claim of CVD and SAD is hit by Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004, present Tribunal find that firstly there is no demand notice in respect of CVD and SAD which was paid by the appellants on their own and also no adjudication as regard the suppression fact, therefore, in absence of any charge by way of show cause notice or adjudication thereof, the allegation of suppressionof fact only to invoke Rule 9 (1) (b) or(bb) of Cenvat Credit Rules, 2004 is on assumption and presumption which cannot be accepted. Moreover, the payment of CVD and SAD is not towards the non-payment of duty by suppression of fact.

In the present case, the advance license is on record and since there was excess import as compared to the eligible under advance license, the Appellant have discharged the duty of CVD and SAD Suo moto for which no offence was made out by the department. Therefore, no suppression of fact is involved. Consequently, penal provision under Rule 9 (1) (b) or (bb) shall also not apply. Except the legal issue there is no discussion about the fact, documents and verification thereof, hence the matter needs to be remanded for this limited purpose for processing the fund claim of the Appellant.Accordingly, the impugned order is set aside. Appeals allowed by way of remand to the Adjudicating Authority.

Tags : Duty Refund Eligibility

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High Court of Bombay

Next Gen Agro vs. Nab Foundation Fully Owned Subsidiaryof NABARD




Courts cannot interfere with the conditions of tender, tendering Authority is the best Judge to specify a particular eligibility criteria in the tender document

By present petition, the Petitioner challenges rejection of its technical bid in the tender process initiated by Respondent No.1 for supply, installation of PUSA-STFR Meter Kit and onsite training for setting up 1000 mini soil testing labs in 1000 identified schools.

Petitioner is aggrieved by action of Respondent No. 1 declaring it ineligible in the tender process qua the condition of existence for at least three years as on 31 December 2023. It contends that the cut off date for deciding the eligibility criteria of firm's existence ought to have been considered as 31 March 2024, as turnover of the bidders for FY 2023-2024 is permitted to be considered. It contends that if criteria of firm's existence for 3 years as on 31 March 2024 is applied, Petitioner qualifies all tender conditions. Petitioner is also aggrieved by the scoring pattern introduced by Respondent No.1 for evaluation of bidders.

It is the contention of Respondent No.1 that what is done by the Corrigendum is only relaxation of number of years from 5 to 3, without altering the cut-off date of 31 December 2023. This is the interpretation placed on tender condition by the tendering authority. By now, it is well settled law that Courts cannot interfere with the conditions of tender and that the Tendering Authority is the best Judge to specify a particular eligibility criteria in the tender document. It is also equally well settled law that in the event of any ambiguity in the tender conditions, the interpretation placed by the Tendering Authority shall prevail. In Afcons Infrastructure Limited v. Nagpur Metro Rail Corporation Limited & Anr., the Apex Court held that the owner or the employer of a project, having authored the tender documents, is the best person to understand and appreciate its requirements and interpret its documents.

Corrigendum merely reduced the period of existence of Firms from 5 years to 3 years, without effecting any change in the cut-off date. The Petitioner could not prove its existence for three years either as on 31 December 2023 or even on 1 April 2024. The decision of the Tendering Authority in disqualifying the Petitioner's bid therefore does not suffer from any serious infirmity.

Petitioner's financial bid, as declared in the Petition is for Rs. 69,000 per unit whereas the lowest bid of Respondent No.3 is of Rs. 59,800 per unit. There is substantial difference between the rates quoted by Petitioner and Respondent No.3. Respondent No.3 has already been awarded Work Order on 30 April 2024. Therefore, even on this ground, no interference can be made in the impugned decision of the Respondent No.1.Petition dismissed.

Tags : Technical bid Rejection Legality

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