This all is sufficiently indicative of enforcement of law of limitation with all its vigour except for the exceptions carved out in the provision itself. This principle squarely applies with greater impact upon the special legislations providing a special period for remedies available under that statute. In the present cases, we are concerned with the language of Sec.35 G of the Central Excise Act, 1944. Under sub-section (1) of Sec. 35 G, an appeal shall lie to the High Court from every order passed in appeal by the appellate tribunal passed on or before 1st July, 2003 but only where the High Court is satisfied that the case involves a substantial question of law. Sub-sec.(2) further commands that the party aggrieved by the order of the appellate tribunal may file an appeal to the High Court but such appeal under sub-sec. (1) shall be filed within 180 days from the date from which the order appealed against is received by the party. There is no provision in this section which gives power to the High Court to condone the delay or to entertain an appeal if filed beyond the prescribed period of limitation under Sec.32 G (2)(a). It must be noticed that the section elaborately deals with the necessity for framing the question of law entertained and deciding the question of law.

[contd.]

HIGH COURT JUDGEMENTS, SUPREME COURT JUDGEMENTS

The High court of Judicature at Bombay while deciding the Central Excise Appeal [LODGING] No.114 OF 2OO8 on 29/08/2008 in re: COMMISSIONER OF C.EXCISE, PUNE II vs SHRUTI COLORANTS LTD observed as follows:-

“Expiration of the period of limitation as a necessary corollary given rise to a right in favour of the beneficiary of the order. This right attains higher dimensions and greater projection when the provisions relating to such an appeal do not permit condonation in the event the remedy is invoked after the prescribed period. When the language of the provision under the special Act giving inherent power to the Court to condone the delay and intent of the Legislature is clear to exclude recourse to general provision, the Courts would hardly have any power to condone the delay on general principles or by recourse to inherent powers that may be vested in the Court by its very constitution.

Limitation even in common parlance has been explained as the Act of Limitation, the state of being limited a restriction and a statutory period after which a law suit or prosecution cannot be brought in the Court of Law. No system of administration of justice permits or grants delay as a matter of right. On the contrary, Maxim LEX  REPROBATE MORAM   is the precept to governance of law. The provisions under the general or a special statute which provides for act and occassions to be taken with a specified period are based upon the maxim OMNES ACTIONES IN UNDO INFRA CETRA TEMPORA HABENT LIMITATIONEM.  As already noticed, the limitation, particularly in special statute is subjected to reasonable or strict construction as may be bar of limitation causes hardship as delays in law are odious. The period of limitation once starts from terminus a qua, it does not stop, may be the party in default, is entitled to exclusion or condonation if specifically so contemplated under the provisions of the relevant law. It is expected of every litigant to be vigilant and mindful of their rights. Another point of view which supports strict interpretation is of law of limitation is that the remedy and relief both could be declined on the ground of laches, that is, where a party could invoke the remedy but there is unreasonable delay in pursuing the right to claim, the course of equity even there the court would decline to grant a relief to the applicant. Laches, thus, are capable of prejudicing and existing legal right. (Referred in Blacks Law Dictionary, 8th Edition).                                                              [contd.]

HIGH COURT JUDGEMENTS, SUPREME COURT JUDGEMENTS

The High Court of Judicature for Andhra Pradesh at Hyderabad vide Writ Petition Nos. 27706 of 2006 , 6028 and 6114 of 2008 decided on 14/07/2008 in re: A.P. FEDERATION OFCHIT FUNDS vs U.O.I. held:

QUOTE: The petitioners herein include many of the chit fund companies and a registered Federation of Chit Funds, of which those companies are members in the writ petitions. The petitioners sought for a MANDAMUS and assailing the correctness of Circular No. 96/7/2007-ST [Circular No. 034-04] dated 23/08/2007 and proceedings No. HAST 141/2007, dated 18/12/2007 isssued by the second respondent as being violative of Articles 14, 19(1)(g) and 265 of the Constitution of India and Section 65(2) read with Section 65(105)(zm) of the Finance Act, 1994 and to set aside the same. The case of the petitioners is that they are doing business in chit funds, the transactions of which are clearly covered by the provisions of the A.P. Chit Funds Act, 1971 and the Rules made thereunder. According to them, very nature of transaction stands quite apart. In support, the petitioners referred to various provisions of the said Act.=UNQUOTE

According to the Court, after having considered  the submissions made and on perusal of the material, the crux of the matter for consideration is as to whether the petitioners” business i.e. chit fund fall within the mischief of expression “CASH MANAGEMENT”, as amended under sub-section 12 of Section 65 of the Finance Act, 2007 and consequently under the impugned circular issued by the resondent is valid?

The Court observed that in the absence of a specific statutory definition of “CASH MANAGEMENT” or even  “ASSET MANAGENENT ” the question of its wider interpretation either by seeking to include or exclude any other transactions or business does not arise and is not permissible and any such act on the part of the Executive would certainly be in the teeth of Article 256 of the Constitution of India. Even the arguments to rope in the definition of the financial institution under the RBI Act, which has been mentioned, could not come to the rescue of the respondents herein to extend the levy of Service Tax on the chit business, since, as per the said definition such business is included. However, it is to be noticed that the said provision has been in vogue all along, and it is not the case of the respondents  that by borrowing the same, the Service Tax could have been levied even much earlier irrespective of the aforesaid Finance Act as mentioned above, which has undergone changes. Therefore, it is not open for the respondents herein merely because a change is brought in the Finance Act and therefore the provisions of the RBI Act would step in cannot be a sound basis.If at all, the respondents wanted to extend the levy to such business, it would have been easier for them to specifically include the same rather than in trying to borrow from different other provisions, which cannot be extended. Therefore, it is quite simply clear that in the absence of any such inclusive definition available in the Statute, it cannot be said that the petitioners would fall within the mischief of the aforesaid provision. The entire action, therefore on the part of the respondents in trying to extend the levy of the tax for the first time by way of a circular is merely an executive fiat, which is not permissible under the law.

The High Court proceeded further by concluding that for the foregoing reasons, the impugned circular dt. 23/08/2007 and consequential proceedings dated 18/12/2007 are set aside and accordingly the writ petitions were allowed.

The matter now goes back to the Tax Research Unit of the Central Board of Excise and Customs to initiate further action to get the chit funds business duly brought under the Service Tax net, after consulting the Law Ministry. Till then the Chit fund companies can have HAPPY DAYS.

[for full text of the judgement please visit www.taxesinindia.com and click on taxind_2008_hc_ap_wp_27706]==RAGGHUPATHY VENKATRAMAN, Web Admin.

HIGH COURT JUDGEMENTS, SUPREME COURT JUDGEMENTS

SUPREME COURT OF INDIA in Civil Appeal No. 7407 of 2008 decided on 18/12/2008 in re: VINOD SOLANKI vs U.O.I. observed that the Indian Evidence Act, 1872 is a special Act, which confers various powers upon the authorities prescribed therein. Even the salutory principles of MENS REA and ACTUS REUS in a proceeding under the Act may not be held to be applicable. It is now a well settled principle that of innocence as contained in Article 14(2) of the International Covenant on Civil and Political Rights is a human right although PER SE it may not be treated to be a fundamental right within the meaning of Article 21 of the Constitution of India. [See Article 11(1) of the Universla Declaration of Human Rights (1948) and Article 6.2 of the European Convention for the protection of Human Rights and Fundamental Freedoms (1950) and Article 14.2 of the International Covenant on Civil and Political Rights (1966).

It is a trite law that evidences brought on record by way of confession which stood retracted must be substantially corroborated by other independent and cogent evidences, which would lend adequate assurance to the Court that it may seek to rely thereupon.

A person accused of commission of an offence is not expected to prove to the hilt that confession had been obtained from him by any inducement, threat of promise by a person in authority. The burden is on the prosecution to show that the confession is voluntary in nature and not obtained as an outcome of threat etc. if the same is to be relied upon solely for the purpose of securing a conviction. With a view to arrive at a finding as regards the voluntary nature of statement or otherwise of a confession which has since been retracted, the Court must bear in mind the attending circumstances which would include the time of retraction, the nature thereof, the manner in which such retraction has been made and other relevant factors. Law does not say that the accused has to prove that retraction of confession made by him was because of threat, coercion, etc. but the requirement is that it may appear to the Court as such.
[for full text please go to www.taxesinindia.com and click on taxind_2008_sc_ca_7407]==VENKATRAMAN RAGGHUPATHY, Web Admin

SUPREME COURT JUDGEMENTS

Akbar founded a new religion called Din-i-Ilahi. It meant ‘religion of one god’. The main idea of this religion was to establish a religious order which would be acceptable to all communities and promote universal brotherhood and unity. Its main feature was to believe in one god. The Din-i-Ilahi ended with Akbar’s death.

Though Akbar was illiterate, he was a patron of Literature and art. He encouraged poetry and patronized many poets. He also had the Ramayana and the Mahabharta translated in Persian. He constructed Karkhanas or workshops. Akbar was a great ruler; He laid the foundation of a secular state based on the principles of religious tolerance and universal brotherhood.

So we can conclude that Akbar did all that which could increase harmony and peace and could decrease violence. If all the people in this world would have the same thinking then this world would be a heaven to live in and if today’s situation is not controlled then the human race would be wiped out from the earth.

SUPREME COURT JUDGEMENTS

In the High Court of Delhi, in CCP No. 126 of 2002 decided on 23/07/2008 in re: SURINDER PAL SINGH vs U.O.I. it was held that the petitioner was supplied the statements of all those witnesses who were to depose against him and the petitioner was also supplied statements of witnesses recorded under Sec.108 of the Customs Act. However, in the Customs Cargo office, the record of statements under Sec.108 of the Customs Act was not traceable at that time and a non-availability certificate was issued in this regard. It seems later on when the contempt notice was issued more efforts were made to trace statements under Sec.108 of the Customs Act and two were found and supplied to the petitioner. The petitioner has not stated how the non-availablity of these statements caused prejudice to him or there was any malafide intentions on the part of the respondent in not supplying these statements or that these statements were so vital for the petitioner’s defence. The Judge found that there was no deliberate violation of the order passed by the Court and no case for contempt was made out against the respondent. The petition was without any basis and was thereby dismissed.

SUPREME COURT JUDGEMENTS