IN THE HIGH COURT OF DELHI, when the CWP No.19822 of 1983 was decided on 19.9.1983, in re: SUNDER GROVER vs UNION OF INDIA it was observed as follows:-
QUOTE: Now Fundamental Rule 56(j) porivdes that if the appropriate authority is of the opinion that it is in public interest so to do, have absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months pay and allowance in lieu of that notice. This power thus permits the government to compulsorily retire an employee at the age of 50 years before reaching the normal age of superannuationat 58 yeas. One would, at first, blush think that this action of compulsory retirement which will affect an employee so seriously by throwing him out of employment somany years in advance with obvious loss in earning, status, material as well as financial should at least attract natural justice and require a hearing to be given to him before taking any action. And this is what a Division Bench of this Court as held in 1970 SLR 213. But this view was not approved by the Supreme Court in AIR 1971 SC 40. The Supreme Court though it recognised the essential sweep of the natural justice and also recognising that the compulsory retirementof an officer is bound to have some adverse effect on the employee compulsorily retired yet held that it involved no civil consequence nor is such a rule intended to take any penal action against the government servant. Reversing the reasoning for the applicability of principles of natural justice it said that in our opinion the High Court erred in thinking that the compulsory retirement involveds civil consequences. Such a retirement does not take away any of the rights that have accrued to the Government servant because of his past service. Thus the broad argument put forth by Mr. Sorabjee that in every case even in the case of temporary employee and in case of reversion without any stigma demand of principles of natural justice requires hearing to be given must be rejected. If the case of compulsory retirement of government servant who has the normal expectation of remaining in service upto 58 years principles of natural justice and hearing are not attracted, it is impossible to accept the argument that opportunity of being heard was necessary to be given to the petitioner, when he was only being reverted to his old post, and apparently in accordance with the conditions and terms of his appointment. No invalidity can therefore attach to the impugned order merely on the ground that no opportunity of being heard was given to the petitioner before making the order of reversion. UNQUOTE
[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_1983_hc_del_cwp_1922]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
56 (j), being heard, compulsory retirement, FUNDAMENTAL RULE, natural justice, pubic interest
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ petition no. 2686 of 1993, on 18.8.09, in re: RAMESH SAKALCHAND JAIN vs UNION OF INDIA, it was held as follows:-
QUOTE: The question before us for consideration is whether the Tribunal was right in arriving at a conclusion it has arrived at namely that it was not the forum to hear the appeal arising from an order passed by the Dy. Collector. The issue whether Dy. Collector rightly heard the matter has not been convassed before us. In our opinin, considering the provisions of Section 128(1) of the Customs Act, 1962 , the Tribunal was within the jurisdiction to arrive at a finding which it has arrived at. Apart from that, in the order dated 30th January, 1990 which was served on the petitioner along with the forwarding communication, it was clearly set out that the appeal against the order would lie with the Collector of Customs [Appeals]. It is therefore not a case where the petitioner was caught by surprise. It is not possible to accept that a failure by the consultant will give cause to the petitioner to approach this court in the exercise of its extraordinary jurisdiction. UNQUOTE
[for full text of the judgement, please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_2586]
HIGH COURT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
APPEAL TO APPELLATE TRIBUNAL, Customs Act, JURISDICTION
IN THE HIGH COURT OF DELHI, while dismissing the petition W.P.(C) No. 11460 & C.M. No. 11182 of 2009, decided on 30.10.2009, in re: MICROSOFT CORPORATION (INDIA) PVT. LTD vs COMMR. OF SERVICE TAX, it was observed as follows : -
QUOTE: We are afraid, the petitioner cannot pitch its case to that level as there are various thronging issues which are settled and cobwebs cleared. As per the respondents, in view of their submissions taken note of above, the case at hand is not that of plain and simple import of goods. The agreement makes it clear that MS provides services to the petitioner and the petitioner provides service to MS. The consumers are based in India, both destination and consumption is in India. Indian Consumers pay for services which go out to the owners, namely, the Holding Company and part of its comes back to India in the shape of commission. Economic and commercial activities also take place in India. On the basis of these features, it is the argument of the respondent that entire performance is is existed and becomes extinct in India. It is not the province of this Court, in these proceedings, to finally pronounce on these aspects and once we take the view that both sides have arguable case and final determination of these issues is to be done in the first instance by the Tribunal only, it would not be even wise to venture into that exercise. Insofar as the Tribunal is concerned, it has kept in mind all necessary parameters which are required to be gone into for deciding such applications for stay / waiver of pre-deposit and has passed an equitable order. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_11460]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
ARGUAQBLE CASE, ECONOMIC AND COMMERCIAL ACTIVITIES, EQUITABLE ORDER, SERVICE TAX, SERVICES
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ Petition No. 7577 of 2009 on 29.9.09 in re: GAWAR CONSTN. LTD vs U.O.I., it was observed as follows:-
QUOTE: It is axiomatic to say that where civil rights of a person are likely to be affected by an administrative or quasi-judicial order, rules of natural justice require that the person affected be given a reasonable opportunity of being heard before the order is passed unless the statute under which the order is passed specifically excludes such opportunity. Even when the statute specifically excludes the opportunity of being heard, Courts would be entitled to consider the legality and constitutional validity of such a provision but, in any event, when the statute does not exclude their observance, the auhtoirty passing the order affecting civil rights of a person must follow the principles of natural justice which includegiving of a reasonable opportunity of being heard to the person affected. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation: taxind_2009_hc_bom_wp_7577]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
axiomatic to say, civil rights, REASONABLE OPPORTUNITY, rules of natural justice
IN THE HIGH COURT OF KARNATAKA AT BANGALORE, while deciding the C.R.P. Nos. 126/2005, C/W/CRP/294/2005, 587-589, 591, 592-697, 609, 614-621, 623-637/2007 and CRP/586/2007 in re: MYSORE SALES INTERNATIONAL LTD vs UNITED INDIA INSURANCE CO. LTD., it was observed as follows:-
QUOTE: There is no difficulty in holding that having regard to the scheme of the Act and the manner in which the imported goods landing in Customs Area are handled, the Customs authorities are liable to account for the loss of such imported goods. The Court below in SC No. 1087 of 2003 has rightly held that the Customs authrorities are answerable to the claim of the plaintiff. However, the learned Judge, in other cases, has over-looked the purpose and the Scheme of the Act as contained in the aforesaid provisions and purpose and the scheme of the Act as contained in the aforesaid provisions and has gone to an extent of holding that the Customs authorities do not exercise any control over the imported goods handed over to the possession of the custodian and therefore, they are not liable to account for the loss of goods. In my considred opinion, the said finding is erroneous having regard to the scheme of the Act. Any arrangement made by the Customs department for proper storage of such imported goods, by appointing the custodian, would not absolve its liability to account for the loss, if any, of such imported goods even if such goods were in posession of the custodians. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_kar_crp_126]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
custodian, loss of goods, scheme of the Act
IN THE HIGH COURT AT CALCUTTA, while deciding the Writ Petition No.261 of 2008 with W.P. Nos. 1161, 230, 1016, 2428 (W) and 4006(W) OF 2008, ON 23.6.09 in re: PROMISING EXPORTS LTD vs U.O.I. it was observed as follows: -
QUOTE: It has been noted that Section 35C(2A) directs that the “Appellate Tribunal” to “hear and decide every appeal” and significantly its first proviso speaks of “an order of stay made in any proceeding relating to an appeal”. Now what is the ambit of the words “an order of stay in any proceeding relating to an appeal”. Does it include an order passed under Section 35F? Since the proviso to Section 35F speaks of, in case of “undue hardship”, dispensing with the deposit of duty demanded or penalty levied on certain conditions “pending appeal”, it is certainly a proceeding relating to an appeal filed under sub-section (1) of Section 35B as contemplated in 35C(2A). Moreover, that an order passed under 35F is a part of the proceedings in appeal is evident from the words at the outset of the said section which relates to “any appeal under this Chapter”. Further, though the words “an order of stay” or “stay order” appearing in 35C(2A) do not appear in Section 35F, it cannot but mean an order of stay passed by the Appellate Tribunal made on an application of waiver of predeposit while dispensing with the predeposit of duty demanded or penalty levied under Sec 35F which otherwise should have been deposited. Looking at the provisions, in my view, Section 35C(2A) has to be interpreted in a manner so as to bring it in harmony with the other provisions particularly Section 35F. Intention must not be inferred solely from Section 35F if it militates against the expressed and unambiguous provisions in 35C(2a).
[for full text please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_cal_wp_261]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
HARMONY, ORDER OF STAY, PENDING APPEAL, RELATING TO AN APPEAL, UNDUE HARDSHIP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY while deciding the Customs Appeal No.53 of 2009 on 25.6.09 in re: POONA HEALTH SERVICES vs C.C.[AIRPORT] ACC MUMBAI, it was observed as follows:-
QUOTE: ADMIT on the following questions: (1) whether in the facts and circumstances of the case, it was open to CESTAT to hold that whether or not the confiscated Hospital equipments are redeemed by the Appellant, they would be required to pay the Customs duty payable on confiscated Hospital equipments? (2) Whether in the facts and circumstances of the case while passing a common ordr, it was open to CESTAT to hold that one of the parties viz. HARKRISHNADAS HOSPITAL before it is not required to pay the duty on the confiscated goods if not redeemed but the present appellant would be liable to pay the duty on the confiscated goods whether or not the same are redeemed?
In these circumstances, in our opinion, considering the language of sections earlier considered, we are of the considered view that there is no ambiguity in the language of the sections. No interpretation is possible, different from the view which we have taken, which is that even in a case where the goods are confiscated and fine is not paid, the duty is payable as assessed.
Considering the above, the following order:
Question (1) is answered in the affirmative against the assessee and in favour of the Revehue. In so far as Question (2) is concerned, in the absence of HARKISHANDAS HOSPITAL being a party to this proceedings, the said question is left unanswered. Appeal disposed off accordingly. UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_cusa_53]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
ambiguity, confiscated, language of the sections, redeemed
IN THE H.C. OF PUNJAB & HARYANA AT CHANDIGARH, while deciding the CEA No.48 of 2006, decided on 3.8.09 in re: CCEX PANCHKULA vs SPECIAL MACHINE, it was observed as follows:-
QUOTE: the substantial question of law raised in these appeals, which are stated to have been arising from the Tribunal, relates to determination of a question having relation to the rate of duty of excise, therefore, we are of the considered view that for determination of such question, remedy of appeal lies to Honble the Supreme Court under Section 35L of the Act. As a sequel to the above discussion, we are of the view that the present appeals are not maintainable and the only remedy which is available to the revenue is to file an appeal before Honble the Supreme Court under clause (b) of Section 35L of the Act, if so advised. Hence, the Registry is directed to return these appeals to be presented before the appropriate Court of competent jurisdiction. UNQUOTE.
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_ph_cea_48]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
COURT OF COMPETENT JURISDICTION, RATE OF DUTY OF EXCISE, SEC 35G, SEC 35L
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding the Writ Petition No. 3296 of 2009, on 07/09/09, in re: SAMRUDDHI INDUSTRIES vs CESTAT, MUMBAI, it was observed as follows:
QUOTE: Making any observation on these issues in the present writ petition arising out of an order refusing complete waiver would amount to pre-empting the discussion and decision which may be appropriately required to be taken by the appellate Tribunal. Should this Court express a view which Tribunal may eventually find untenable, it would have to virtually overrule a judgement of a constitutional Court, which may be embarassing. Hence, apart from the fact that the Tribunal is not shown to have passed a perverse or untenable order, it is not shown that the Tribunal exceeded its jurisdiction or failed to exercise the jurisdiction vested in it, in order to justify invocation of superintendence jurisdiction or power to issue a Writ of Certiorari. The petition is therefore dismissed. UNQUOTE.
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_wp_3296]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
CONSTITUTIONAL COURT, PERVERSE OR UNTENABLE ORDER, SUPERINTENDENCE JURISDICTION, WRIT OF CERTIORARI
IN THE HIGH COURT OF JUDICATURE AT BOMBAY, while deciding on 30.6.09 the C.EX. APPEAL No. 199 of 2006 in re: CCEX & CUS vs SHRI RAM ALUMINIUM PVT. LTD it was held as follows:-
QUOTE: In so far as mandatory penalty is concerned, the law stands now concluded in DHARMENDRA TEXTILE PROCESSORS [2008-331-ELT-3 (S.C.)]. The law as now settled is that there is no jurisdiction in the authority to impose penalty lesser than the mandatory penalty which has to be co-extensive with the duty which is payable. The Supreme Court has further held that there is no requirement of existence of mens rea. Mens rea as understood in criminal law is not an essential ingredient for holding a delinquent liable to pay penalty for a tax delinquency which is a Civil obligation, remedial and coercise in its nature, and is far different from the penalty for a crime or a fine or forfeiture provided as punsihment for the violation of criminal or penal laws.
UNQUOTE
[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_bom_cea_199]
HIGH COURT ORDERS
VENKATRAMAN RAGGHUPATHY, Web admin.
HIGH COURT JUDGEMENTS
civil obligation, co-extensive, criminal law, mandatory penalty, mens rea
