THE HIGH COURT OF KERALA AT ERNAKULAM while deciding WP ( C ) nO. 26466 of 2003(A) on 13/01/09 in re: KARTHIKAYAN T.K. vs CCEX observed as follows:

QUOTE: The question to be decided is whether the Reward Committee has taken a decision in its discretion in tune with the guidelines as quoted above. I am of opinion that in so far as the maximum amount of reward payable has been fixed as 20% and the amounts recovered as duty and penalty from the company pursuant to the information given by the petitioner comes to above 86 lakhs, the Reward Committee ought to have applied their mind to decide as to why the award amount should be restricted to 8.5 lakhs which is only less than 10% of the amounts recovered as duty and penalty pursuant to the information supplied by the petitioner. From the decision of the Reward Committee quoted above, I do not find proper application of mind in that regard. It is not now disputed before me that but for the information suuplied by the petitioner the particular evasion of duty would never have come to light and the department would not have been able to recover the amount of Rs.85 lakhs at all. That being so, I am of opinion that a more judicious application of mind was called for on the part of the Reward Committee on the amount to be fixed as reward, based on the guidelines quoted above, which does not appear to have been done going by the decision of the Reward Committee which is available in the file produced by the respondents. UNQUOTE.

[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_ker_wpc_26466]

HIGH COURT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS application of mind, guidelines, informers, reward

IN THE HIGH COURT OF DELHI, while deciding on 16/04/09 the C.M. No.3227/2009 (Stay) in W.P. ( C ) No.5901/2008 in re: B.S. INDUSTRIES vs U.O.I the Court observed as follows:-

QUOTE : Learned Counsel for the petitioner relied upon certain decisions such as J.C.C.I & E, Madras vs AMINCHAND MITHA etc., 1999-110-ELT-273 (S.C.) = AIR 1966 sc 478 and JAYANTILAL KUBERDAS KATAKIA and others vs U.O.I ILR 1973 DELHI 433 to contend that the amendment to the Foreign Trade Policy is ultra vires the Foreign Trade (Development and Regulation) Act, 1992. However, this issue can only be deided at the time of final hearing of the writ petition. Merely on the basis of contentions advanced at the interim stage, relief prayed for by the Petitioner cannot be granted particularly since it effect the export policy of the Government and the resource sought to be exported is scarce. The application is dismissed. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and clikc on the citation taxind_2009_hc_del_cm_3227]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS FT Policy, FT [DEV. & REG.] ACT, ultra vires

CITY COURT IN DELHI cautioned Auto rickshaw drivers against reckless driving.

A Sessions Court has held that in a recent judgement that reckless drivers can be burdened with absolute liability of criminal negligence if their auto rickshaws meet with an accident without being hit by any other vehicle while carrying passengers.

Extending the principle of ” RES IPSA LOQUITUR” to criminal law apart from cases of civil dispute and tortuous liabilities, Addl. Sessions Shri J.R. Aryan maintained that in cases where a harmful accident occurs without any external force, there will be a presumption that the driver acted rashly and negligently.

The principle of ” RES IPSA LOQUITUR” — meaning the thing speaks for itself — refers to a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, and the burden to rebut it is on the wrongdoer.

” If a vehicle is moving on a road that is wide enough and it has a roadside pavement, it is for the accused to explain the reasons, othrwise things speak for themselves and that is how the principle of ” RES IPSA LOQUITUR” is attracted even in a case of criminal negligence — said ASJ Shri Aryan in his judgement.

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HIGH COURT RULING

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS AUTO RICKSHAWS, RECKLESS DRIVING, RES IPSA LOQUITUR

In the HIGH COURT OF JUDICATURE AT BOMBAY, while deciding on 2/4/09 the C.Ex. Appeal No.19/2009 in re: CCEX vs MADHURI TRAVELS, the H.C. observed as follows while deciding the two questions of Law :-

1. whether in the facts and circumstances of the case and in law the Hon’ble CESTAT is judtified in reducing the penalty in the case of the respondent who has not been able to prove that there was reasonable cause for the failure?
2. Whether in the facts and circumstances of the case and in law the Hon’ble CESTAT is justified in reducing the penalty to the level below the minimum penalty prescribed under the law, which comes to Rs.40,364/- ?

The H.C. observed that before the Tribunal, the only issue canvassed was whether the Commissioner [Appeals] has a power to reduce the penalty imposed under Sec 76. Question as now framed, therefore, would not arise from the order of the Tribunal. Even otherwise, considering Sec 80 of the Finance Act, 1994, it is clear that there is power in the authority on showing reasonable cause, not to impose penalty or reduce the amount of penalty. That issue is fairly covered by the order of this Court in COMMR. OF C.EX & CUSTOMS, NASHIK vs D.R. GADE — 2008–9–STR–348 (BOM). Considering the above, there is no merit in the appeal which is accordingly dismissed.

[for full text of this judgement, please visit http://www.taxesinindia.com  and click on the citation taxind_2009_hc_bom_cea_19]

HIGH COURT JUDGEMENTS

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS POWER TO REDUCE PENALTY, SECTIONS 76 & 80 OF FINANCE ACT 1994