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[No.135]
September 30,
2005 |
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To keep you informed about the latest Legislative
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Supreme
Court |
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Commissioner of
Central Excise, Hyderabad Vs. M/s. Aldec Corporation and Ors.
The question before
the Supreme Court in this case was the interpretation of the word “manufacture”
under section 2(f) of Central Excise Act, 1944. The civil appeals challenged the
order of the Customs, Excise and Service Tax Appellate Tribunal which remitted
that reducing the thickness or slitting of the aluminum sheets into strips did
not amount to “manufacture” and therefore the department has no authority to
claim the recovery of excise duty.
The appellant
contended that the concept of “manufacture” has to be taken on first
principles as well as under section 2(f) of the Act and if one looks at totality
of all the fragmented activities taken individually and/or jointly, it would
amount to manufacture of a different, independent and identifiable product.
Department further contended that the respondent was not a trader and is infact
a processor which has resorted to the modus operandi to evade excise duty. While
dismissing the appeals, the Supreme Court held that the respondent has acted on
the basis of the decision of the collector for last ten years therefore court
doesn’t find any intention on the part of the respondent to evade duty.
However the tribunal should have examined the effect of bifurcation of
activities by respondent and also the functional utility of the product.
Aggrieved by the
decision of the National Consumer Disputes Redressal Commission, appeals were
filed by the statutory corporation questioning the correctness of its decision.
Question before the Apex Court was whether the loss of cheques in transit,
towards maturity amount of the units to be paid to the unit holders, is to be
borne by the unit holder payee and/or by the appellant. The Supreme Court held
that in the absence of any contract or request from the payee, mere posting
would not amount to payment and the post office would continue to act as the
agent of the drawer and hence the drawer would be bound to borne the loss.
The appellant (U.T.
I.) a statutory corporation as part of its activities floated various schemes
from time to time issuing cheques towards maturity amount of the units purchased
and/or towards repurchases value. All the cheques were intercepted and new
accounts opened in Banks/Post Offices in the names of payees of the cheques and
thereafter the monies withdrawn. As the unit holders had not received the money,
they filed complaints in various District Forums. The District Forums held that
the appellants were bound to pay the amounts to the unit holders. Most of the
Appeals and/or Revision Petitions had been dismissed. Hence the present appeals
were preferred before this Court.
The High court by
the judgment, which is under challenge in this appeal, confirmed the decree of
divorce granted by the Trial Court on the ground of desertion. This is an appeal
by the wife against the judgment of the High Court passing a decree of divorce
on a petition filed by the husband under Section 13(1)(ia) and (ib) of the Hindu
Marriage Act 1955.
Marriage between the
parties took place on 2nd November, 1992 at Ulhasnagar, Mumbai. The wife stayed
in the matrimonial home for some months. She went to her parents’ house twice
in between and did not come back after the delivery of their child. During the
course of trial the wife said that the husband visited her off and on, which the
husband denied. The husband contended that because he was not making enough
money while the wife was earning well, she always wanted him to stay with her at
Adipur. The husband got two notices served on the wife alleging desertion on her
part and also alleging that the wife wanted that the husband should resign his
job in Ulhasnagar and stay with the wife at Adipur, Gujarat. From the exchange
of notices and the replies only one thing emerged that till 1996 there was no
attempt on the part of the wife to join the husband. The trial court after
recording evidence accepted both the grounds and granted a decree of divorce. On
an appeal filed by the wife, the lower Appellate Court reversed the judgment of
the Trial Court and dismissed the divorce petition filed by the husband. The
husband appealed to the High Court against the said order.
The Apex Court held
that from this fact alone animus deserendi on the part of the wife was clearly
established. She had chosen to adopt a course of conduct, which proved desertion
on her part. The Apex Court opined that, it could not be said that this
desertion on the part of the wife was with a reasonable cause. Such a course of
conduct over a long period indicated total abandonment of marriage and could not
be justified on ground of monetary consideration alone as a reasonable cause to
desert.
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High Courts |
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Kerala
The issues in this
case were whether the receipt of a registered notice by the wife of the accused,
with acknowledgement due, sent by the complainant under proviso (b) to Sec.138
of the Negotiable Instrument Act, is sufficient notice and dismissal of
complaint by the Magistrate on the ground that the said notice is invalid is
sustainable under the Act.
It was held that the
proof of sending of the notice at the correct last known address is sufficient
compliance, as contemplated under Section 138 of the N.I. Act. As the wife of
the accused had admittedly received the notice, it was not necessary for the
complainant to cite and examine the postman or the wife of the accused to show
that she had been duly authorized by the accused to receive the notice. There
was a valid notice and receipt of notice by the wife of the accused was
sufficient notice to the accused and dismissal of complaint on this ground was
bad in law.
Delhi
The issue in this
case was whether a delay simplicitor is a ground sufficient for the Company Law
Board to dismiss an application under Sections 397,398 of the Companies Act,
i.e. Oppression and Mismanagement where no statutory limitation for such
application is provided?
It was held that
delay is not an absolute bar for dismissing the petition. Petition is not to be
dismissed where the delay is explained. Delay simplicitor would not be a ground
to disentitle an aggrieved party to have his petition decided on merits. The
test is not the physical running of time. Where the circumstances justifying the
conduct exist, petition cannot be dismissed on the sole ground of laches.
The issue in this
case was whether an employee working on contractual employment is entitled to
the benefits of the Maternity Benefits Act, 1961 after the date of termination
of contract where the undisputed facts show that the employee continued to
report on duty after the expiry of contract period?
It was held that the
nature of maternity benefits and the entitlement of employees have been clearly
spelt out by the provisions of the Act itself. These provisions are in
furtherance of two objectives—affirmative action and non-discrimination. There
universality is undeniable. When facts show that the employee continued in
employment after the end of contract period, the employer cannot escape
obligation to pay benefits under the Maternity Benefits Act, 1961. More so, when
it is a State within the meaning of Art.12 of the Constitution of India .
Madhya Pradesh
The issue in this
case was whether on a private complaint, which alleges commission of offences
exclusively triable by the Court of Sessions, a Magistrate can direct
investigation under 156(3) Cr.P.C. if he doesn’t find enough material in
complaint to take cognizance?
It was held that the
Magistrate had no power to issue direction under 156(3), Cr.P.C. in cases where
offence is triable exclusively by Sessions Court and if directions are issued
that would be without jurisdiction. In a case where a complaint is made to the
Magistrate of an offence which is exclusively triable by Sessions Court it is
incumbent upon him to call upon the complainant to produce witnesses on whom he
relies and after recording their statements the Magistrate may decide whether
cognizance of offence is to be taken or not.
Karnataka
The issue in this
case was whether a divorced wife who declined to claim maintenance from the
husband at the time of passing of consent divorce decree on the ground that she
was gainfully employed can file an application under Sec 127 Cr.P.C. reclaiming
maintenance later if there is a change in circumstances?
It was held that a
divorced wife who had voluntarily surrendered rights to maintenance from her
divorced husband, on proof of change in the circumstances, can maintain a
petition under Sec 127 of Cr.P.C. and as long as the divorced wife has not been
remarried and/or not living in adultery, husband cannot shrink from his
responsibility to maintain a divorced wife.
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| PIB
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Dated 22.09.2005:
All proceedings undertaken under section 12, 18,19,20,21,22 and 23 and offences
under Section 31 of the Protection of Women from Domestic Violence Act, 2005
shall be governed by the provisions of the Code of Criminal Procedure, 1973. An
appeal can be made to the Court of Sessions within 30 days from the date on
which the protection order made by the Magistrate is served on the aggrieved
person or the respondent (adult male person) as the case may be, whichever is
later. The offence under sub-section (1) of section 31 shall be cognizable and
non-bailable.
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RBI |
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APDIR
Circular No. A.P.
(DIR Series) Circular No.13 Dated 27.09.2005: The Reserve Bank of India vide the
above circular has issued directions to Authorised Dealers under sections 10(4)
and 11(1) of the Foreign Exchange Management Act, 1999 (42 of 1999). It has now
been decided that ADs may permit airline companies (other than a Public Sector
company or a Department/Undertaking of the Government of India/State
Government/s) to remit up to USD 1,000,000 (US Dollar one million only) per
aircraft towards security deposit (for payment of lease rentals) with lessor for
import of aircraft / aircraft engine / helicopter on operating lease without a
standby letter of credit or a guarantee from a reputed international bank abroad
or a guarantee of an AD in India against the counter-guarantee of a reputed
international bank abroad subject to the conditions as mentioned in the said
circular.
RPCD
Circular No.
RPCD.CO.RF.BC40/07.02.03/2005-06 Dated 21.09.2005: The Reserve Bank of India has
clarified vide this circular that there is no relaxation in the overall limit of
non-SLR investment, which is fixed at 10 per cent of the bank’s total deposits
as on March 31 of the previous year with a sub-ceiling of 5 per cent.
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Ministry of
Personnel, Public Grievances and Pensions |
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Personnel and
Training
Notification
No.GSR593 (E) Dated 12.09.2005: The Central Government in consultation with the
Governments Manipur-Tripura, vide this notification, made the Indian Forest
Service (Pay) Amendment Rules, 2005. They shall come into force with effect from
29th March, 1988.
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| Ministry of Commerce & Industry |
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Industrial Policy
and Promotion
Notification No.
SO1371 (E) Dated 19.09.2005: The Central Government, vide the said notification
further amended the Newsprint Control Order, 2004, adding to the list of the
names of the mills and locations of the indigenous newsprint manufacturers.
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| Ministry of Finance |
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Economic Affairs,
Banking Division
Notification SO1261
(E) Dated 12.09.2005: The Central Government, vide this notification, has
brought forward the, Board for Industrial and Financial Reconstruction (Salaries
and Allowances and Conditions of Service of Chairman and other Members)
Amendment Rules, 2005 amending Board for Industrial and Financial Reconstruction
(Salaries and Allowances and Conditions of Service of Chairman and other
Members), Rules, 1987. These rules shall come into force on the date of their
publication in the Official Gazette. The amendment was made in Rule 10 of the
Board for Industrial and Financial Reconstruction (Salaries and Allowances and
Conditions of Service of Chairman and other Members), Rules, 1987.
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| Ministry
of Shipping, Road Transport and
Highways |
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Shipping
Notification No.
GSR600 (E) Dated 20.09.2005: Vide this notification, the Central Government has
made Entry of Vessels into Ports Rules, 2005.These rules shall come into force
on the date of their publication in the Official Gazette. The provisions of
these rules shall not be applicable to a non Safety of Life At Sea (SOLAS)
Convention Vessels if the owner of the vessel furnishes an undertaking for
compensation to the port in connection with expenses which port may incur on
removal of wreck and pollution damages caused.
Notification No.
GSR580 (E) Dated 14.09.2005: Further amending the Merchant Shipping (Recruitment
and Placement of Seafarers) Rules, 2005, the Central Government, has by virtue
of this notification, brought about the the Merchant Shipping (Recruitment and
Placement of Seafarers) Amendment Rules, 2005. These rules shall come into force
on the date of their publication in the Official Gazette. Amendments were made
in Rule 4,5 and 8.of the Merchant Shipping (Recruitment and Placement of
Seafarers) Rules, 2005
Road Transport and
Highways
Notification No.
GSR589 (E) Dated 16.09.2005: The Central Government vide the above notification
notified the Central Motor Vehicles (Fifth Amendment) Rules, 2005. The said rule
shall be effective from the date of publication in the official gazette. The
Central Motor Vehicles (Fifth Amendment) Rules, 2005 seeks to amend the
provisions of the Central Motor Vehicles Rules, 1989.
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| International Legal
Cases and News |
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Cases
Administrative Law
The US 10th
Circuit Court of Appeals in the above case upheld The Occupational Safety and
Health Review Commission's imposition of monetary penalties against
plaintiff-business owner for violation of the Occupational Safety and Health Act
on the ground that the same is supported by substantial evidence.
Tort Law
In an action for
invasion of privacy, the Appeal Court held that the defendant is not liable for
the disclosure of plaintiff's medical records where the plaintiff had no
reasonable expectation of privacy in the records and the disclosure was
authorized under the Confidentiality of Medical Information Act.
Criminal Law and
Procedure
In the above suit
involving allegations by minors that a clergy member of a church abused them,
the appeal court held that the trial court abused its discretion when it
compelled the church to produce documents since it failed to properly analyze
the church's clergy-penitent privilege assertion.
Civil Law
The California
Appellate Court in the above case affirmed the trial court's finding that
advertising displays erected on defendant's property are not a public nuisance
over the plaintiff's claim that the court misapplied the provisions of the state
Outdoor Advertising Act.
Banking Law
The appeal court in
the above suit reversed the judgment in favor of plaintiff's suit against the
defendant credit card company, alleging violations of the Unfair Competition Law on the
ground of recent amendments to the Unfair Competition Law.
Arbitration
In the above
arbitration dispute, denial of defendant's motion to compel arbitration by trial
court is affirmed by the Appellate Court where the defendant failed to comply with
stipulations under Health and Safety Code section 1363.1 that arbitration
clauses in health care plans are to be prominently displayed before the
signature line of the enrollment form.
News
While hearing a
petition filed by Canadian tobacco companies challenging the constitutional
validity of the 1998 Tobacco Damages and Health Care Cost recovery Act, which
authorized the province to seek damages against the companies for both past harm
and future health complications, Canada’s highest court ruled that such an act
is constitutional and governments can pass laws to recover health care costs
incurred in taking care of people sickened by smoking. This landmark judgment
allows the government to sue cigarette makers in an effort to recover billions
in health-care costs related to smoking.
With the aim to
provide compensation to workers handling asbestos, their families and residents
near businesses who have suffered from asbestos-induced diseases but are not
covered by the worker’s accident compensation plan, the Japanese government
has proposed to introduce a plan that will have companies involved in asbestos
related activities picking up most of the cost. In Japan, around two thousand
people die every year from mesothelioma or asbestos-induced lung cancer.
With the aim to
enhance the quality of auditing and improve the public trust in the profession,
lawmakers in European Union have approved the new oversight rules for auditors,
which will require the European auditors and auditing companies to prove their
independence from the management of the company they are scrutinizing. The new
rules will require the companies to create a oversight board for accounting
firms and is expected to boost economic confidence by fostering trust on
European quarterly reports on stock markets.
While overhauling
the 1973 Endangered Species Act, the US House of Representatives passed a
legislation that could greatly expand the private property rights under the
environmental law. Threatened and Endangered Species Recovery Act of 2005 will
eliminate the designation of "critical habitat" for those areas
inhabited by protected species, will authorize the interior secretary to
determine the standards for scientific data on which agencies would base their
decisions and require the federal government to compensate the land owners if
the Endangered Species Act prohibits the development of their land.
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