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Supreme court upholds CESTAT view that the process of labeling/ re labeling, packing / re-packing amounts to “manufacturing”.

Case title: Commissioner of central excise Belapur V. Jindal Drugs Ltd

Case no: Civil appeal No. 1121 of 2016 and 788-790 of 2022

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the Case:

This is an Appeal against the Order dated 16.04.2015 passed by Customs Excise and Service Tax Appellate Tribunal (CESTAT) against Appeal No.E/86389/13-Mum . The Respondent is engaged in the business of exporting cocoa butter and cocoa powder. Its factory at Jammu manufactures cocoa butter and cocoa powder. Respondent has another unit located at Taloja. The Cocoa butter manufactured at Jammu are received by the Respondent’s unit at Taloja. In the Taloja unit, respondent affixed two labels on two sides of the packages of the goods received from its Jammu factory and had claimed rebate of the duty paid on the exported goods. Further, respondent availed cenvat credit of the duty paid on those two goods at the time of clearance from Jammu. Respondent also imported cocoa butter and cocoa powder from China and Malaysia which was received at Taloja. The factory of the respondent at Taloja was visited by the officials of the appellant and it was found that the respondent was not only putting labels on the good bought from the Jammu unit but also was putting labels on the imported goods. As the labels were already fixed on the boxes containing the two goods additional labels affixed did not amount to manufacture as the additional labels affixed would not enhance the marketability of the goods which were already marketable. The appellant then issued a show cause notice to the respondents on 09.10.2012 to show cause as to why activity of labelling undertaken by the respondent on the product received from the Jammu unit and also on the imported goods are not to be held as activity of manufacturing in the terms of Note 3 chapter 18 of the Central Excise Tariff Act. It was alleged that the respondent had wrongly availed cenvat credit amounting to Rs. 23,02,53,752/. from the period of June, 2008 to July 2012. It was also alleged that the rebate amounting to Rs. 13,22,30,368 from the period of June, 2008 to July, 2011 was erroneously sanctioned. Thereafter, hearing the respondent, appellant passed an order on 25.02.2013 that the cenvat credit availed was irregular and the rebate sanctioned was erroneous thereby, the respondent was made liable to refund the credit availed for Rs. 23,02,53,752/- and a rebate of Rs. 13,22,30,368/- along with interest and penalty of 23,02, 53,752/- However, the penalty could be reduced to 25%, if the assessee paid the duty within 30 days of order.  The Respondent preferred appeal before CESTAT. After hearing the matter CESTAT passed an order dated 16.04.2015 by stating that activity undertaken by respondent is covered by Note 3 to chapter 18 which amounts to manufacture and that there was no suppression or misrepresentation of the material fact by the respondent. That being the position the cenvat credit and the refund availed by the respondent was right and hence no penalty could be imposed. Aggrieved by the same, the appellant has now preferred appeal.

Contentions of the Appellant:

The activity undertaken at the Taloja unit i.e; putting labels on both the sides of the cartons that were labelled at Jammu is not a manufacturing activity. Note 3 to chapter 18 Central Excise Tariff Act cannot be read in the manner that the activity of the labelling amounted to manufacture. The Technical Member of CESTAT had given a good reason to why such an activity cannot be considered as a manufacturing activity.

Contentions of the Respondent:

In Note 3 chapter 18 of the Central Excise Tariff Act, Parliament has consciously replaced the word ‘and’ by the word ‘or’, vide amendment dated 01.03.2008, thereby making it clear that the activity of labelling or re-labelling amounted to “manufacture”.

Legal Provisions:

Section 11A (1) of the central excise act- deals with recovery of duties not levied or paid or short-levied or short-paid or erroneously refunded.

Rule 14 of Cenvat credit rules 2004- credit has been taken wrongly or erroneously refunded.

Rule 3 of cenvat credit rules- A manufacturer or producer of final products shall be allowed to take credit.

Note 3 Chapter 18 Central Excise Tariff Act

Issue:

Whether the activity of labelling amounts to manufacture?

Courts Analysis and Judgement:

Supreme court examined the definition of “manufacture” under Section 2(f)(ii) under Central excise Act “manufacture” includes any process,- (i) incidental or ancillary to the completion of a manufactured product;

(ii) which is specified in relation to any goods in the Section or Chapter notes of the First Schedule to the Central Excise Tariff Act (5 of 1986) as amounting to manufacture; or

(iii) which, in relation to the goods specified in the Third Schedule, involves packing or repacking of such goods in a unit container or labelling or re-labelling of containers including the declaration or alteration of retail sale price on it or adoption of any other treatment on the goods to render the product marketable to the consumer, and the word “manufacturer” shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account;

Therefore, the word ‘manufacture’ includes any process which is incidental or ancillary to the completion of a manufactured product; any process specified in Section or chapter notes of the first schedule to the Central Excise Tariff Act or any process in relations to goods specified in 3rd schedule which involves packing or re-packing, labelling or re-labelling, declaration or alteration of retail sales price or adoption of any other treatment on the goods to render the product marketable. Further, post-amendment of 01.03.2008 to Note 3 to chapter 18 of the Central Excise and Tariff Act, “manufacture” contemplates any of the three processes. The three process are-

i) labelling or re-labelling of containers; or

ii) repacking from bulk packs to retail packs; or

iii) the adoption of any other treatment to render the product marketable to the consumer.

If any one of the above three processes is satisfied then the same would amount to “manufacture” under Section 2 (f) (ii) of the Central Excise Act.

There is no dispute as to the activity carried out by the respondent at the Taloja unit. Whether the goods are brought from Jammu or are imported, those re-labelled on both the sides of the pack containing the goods at the Taloja unit and thereafter, introduced in the market or sent for exports, in terms of Note 3 to the chapter 18 this process of re-labelling amounts to “manufacture”. The view taken by the CESTAT is correct and no case for interference is made out. Accordingly, the civil appeal 788-790 of 2022 stands dismissed.

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Supreme Court Directs Bombay High Court to Scrutinize Legality of Advocates’ Filed ‘Minutes of Order’

Case Title: Ajay Ishwar Ghute and Ors V. Meher K. Patel and Ors

Case no: Civil appeal No. 4786 of 2024

Dated on: 30th April, 2024

Quorum: Justice Abhay S. Oka and Justice Ujjal Bhuyan

Facts of the case:

An Arbitration Petition was filed under the Arbitration and Conciliation Act, 1996 before single judge of Bombay High court wherein consent terms were filed in the arbitration petition preferred by the first respondent. In terms of the consent terms the learned single judge recorded that the process of handing over the possession of the suit property by the respondents to the first respondents as commenced. The disputes were related to lands of Parsi Dairy Farm. The seventh respondent filed an interim application after two years of filing the consent terms by stating that High court had directed the Police to give police protection to the parties for completing the process of handing over possession. A compound wall was to be constructed in terms of the consent terms, which according, to the seventh respondent could not be done as local persons obstructed the work. The learned single judge of the Bombay High court disposed the interim application by directing Police/Tahasildar/ Collector/ Gram Panchayat office and all other Government authorities to offer assistance to construct a wall to safeguard the suit property. The persons who had obstructed the construction of the wall were not part to the arbitration proceedings/ interim application. An application was filed to Deputy Superintendent of Land Records by first respondent and five others for measuring the land who vide later dated 20.11.2021 informed the first respondent that several persons have objected, in writing, in carrying out the survey. Hence, holding an enquiry was necessary. First and second respondent filed a writ petition under Article 226 of the constitution for non-compliance with the orders of the Arbitration Petition regarding survey and construction of compound wall. The persons who raised objections were not impleaded in the Writ Petition. The Division Bench on 09.03.2022 ordered the Superintendent of Police to be present. The Superintendent of Police filed an affidavit stating that local tribals have gathered an impression that they were attempted to be illegally dispossessed and they insisted that the lands be demarcated before constructing the compound wall. The District Superintendent of Land Records vide an affidavit stated that there are certain persons to whom the petitioners and others have sold small portions of land and if a compound wall is constructed the third parties are likely to get landlocked. The Division bench without noticing the contentions of the above Government officers, instead of directing impleadment of the affected parties passed an order in terms of ‘Minutes of order’ dated 16.03.2022, for issuing a direction to survey authorities to carry out demarcation of the boundary and to direct the police to provide protection for constructing the compound wall.

Contentions of the appellant:

Of the thirty review petitioners Nos. 7-18 were shown as interveners in the “Minutes of order” though they had not engaged any advocate. The said interveners never met the advocate who is shown to have signed ‘Minutes of order’ on their behalf. The appellants had rights in respect of several properties which were likely to be adversely affected by the construction of the compound wall. The principles of Natural justice were not followed before permitting the construction of the compound wall. The impugned order based on ‘Minutes of order’ is completely illegal and vitiated by the non-joinder of the necessary parties.

Contentions of the respondent:

The compound wall had been built in such a manner that no person was landlocked or in any manner inconvenienced. The owners of the adjacent lands continue to enjoy unhindered and unfettered access to their respective land.

Legal provisions

Article 226- Writ Jurisdiction of High Court.

Issue: 

Whether the High court was justified in passing a order while exercising Writ Jurisdiction under Article 226 of the constitution of India permitting the first and second respondent to construct a compound wall under police protection in terms of “Minutes of Order”?

Court’s Analysis and Judgement:

The court summarised conclusions regarding the concept of Minutes of order as follows:
a) The practice of filing ‘Minutes of order’ prevails in Bombay High court the object of which is to assist the court.
b) An order passed in terms of ‘Minutes of order’ is not a consent order. It is an order in invitum.
c) The Courts to apply its mind as to whether parties likely to be affected by an order in terms ‘Minutes of order’ have been impleaded to the proceedings and whether such order is lawful? If the court finds that all parties are not impleaded the court to defer passing of the order till all the necessary parties are impleaded.
d) If the court is of the view that an order made in terms of ‘Minutes of order’ will not be lawful court should decline to pass order in terms of ‘Minutes of order’.

It was the duty of the Court to call 1st and 2nd respondent to implead persons who were likely to be affected by the construction of the compound wall. The Division Bench of the High court failed to make an enquiry as to whether the third parties will be affected by the construction of the compound wall. Hence, order dated 16.03.2022 in terms of ‘Minutes of order’ is entirely illegal and must be set aside. The writ Petition to be remanded to the High court. After remand, High court must decide who are the necessary parties to the petition in case of failure of 1st and 2nd respondents to implead the necessary parties the High court is within its power to dismiss the Writ Petition and pass an order of restoration of status quo ante by directing demolition of the compound wall.

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Supreme Court Directs Implementation of Standard Operating Procedure for Filing Paper Books.

Case title: Anjumol V.A. and Ors V. Kerala Public Service Commission and Ors.

Case no: petition (s) for special leave to appeal (C) No. 13242/2021

Dated on: 16.04.24

Quorum: Hon’ble Mr. Justice J.K. Maheshwari and Hon’ble Mr. Justice Sanjay Karol.

Facts of the case:

The Petition(s) for Special Leave to Appeal (C) No. 13242/2021 is arising from final. Judgment and Order dated 04-06-2019 passed by the Hon’ble High Court of Kerala at Ernakulum) in OPKAT No. 62/2017.

Court’s  Analysis and Judgement 

The Hon’ble Supreme Court, while hearing the above case, has perceived various practical difficulties both on miscellaneous or non-miscellaneous days and some of them are as mentioned herein below:

(i) The Orders passed during the proceedings are not attached to the paper books;

(ii) In Service matters, the counsels for the Petitioner are not attaching the relevant Service Rules with Appendix in the SLP paper book or the same is not referred in the pleadings. The Rules, sometimes, are filed in piecemeal with Applications or with additional documents, due to which matters are postponed. This causes financial burden upon the parties and further results in delay in adjudication;

(iii) Counter Affidavits are sometimes attached to the main SLP paper book without flagging, inviting attention and sometimes as separate paper book which requires unnecessary search and wastage of time by the Judges;

(iv) Upon directions and after filing the convenience compilation, the same is not sent to the residential offices of the Judges either in hard copy or by way of email and even during the hearing;

(v) The IA number is not properly exhibited on its face. The Applications are not attached date wise, with paper books. This causes inconvenience to the Judges;

(vi) Other ancillary issues in various paper books is also causing difficulty in day to day court functioning.

In view of the above, the Secretary General and the Registry Officers, in particular the Registrar (Judicial) shall prepare a Standard Operating Procedure (SOP) for properly maintaining the SLP paper books and also to eliminate the difficulties mentioned above. The SOP is to be notified after seeking appropriate orders from the Hon’ble Chief Justice of India. The due compliance shall be made as expeditiously as possible for efficient functioning of the court. Learned counsel for the parties were heard the hearing is concluded. The Learned State Counsel and the Counsels for Respondents are granted two weeks’ time to file affidavit clarifying how many persons have been appointed along with their qualifications and the status of the Petitioners in the present Special Leave petition.

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Allegations of Illegal Eviction Remain Unresolved: Supreme Court

Case title: Sanjay Maruti Jadhav v. Amit Tatoba Sawant

Case no: Civil appeal No. 72 of 2012

Dated on: April 26,2024

Quorum: Justice Vikram Nath.

Facts of the case:
A Leave and License Agreement was entered between the Appellants and the Respondent. The Appellants are the owners of the property, which was the subject matter of the Suit. The Respondent herein had filed Suit against the Appellant for illegal and unauthorized eviction from the Suit Schedule property which was decreed by the Trial Court and further concurred by the High Court as well. Appellant, aggrieved by the Orders of the High Court, preferred Civil Appeal wherein the Supreme Court had reserved the matter for orders on 18.01.2024. The Supreme Court, left it open for the parties to move appropriate application within a period of two weeks, in case there is any probability for settlement. However, as three months elapsed and since no such application was filed, the Hon’ble Supreme Court proceeded to decide the matter on merits.
Contentions of the appellant:
The Appellants contended that the Suit under Section 6 of The Specific Relief Act not being maintainable. The subject property was handed over voluntarily by the Respondent and to prove the said contention the Appellant relied on the Possession Receipt.
Contentions of the respondent:
The Respondent filed a suit, within six months of dispossession, under Section 6 of the Specific Relief Act, 1961 by alleging that they were illegally and unauthorizedly by use of force, evicted by the Appellant.
Issues:
Whether any merit is there in the Appeal preferred and whether any interference is required?
Legal Provisions:
Section 6 of the Specific Relief Act: Suit by person disposed of immovable property.
Courts judgement and analysis:
The Trial Court decreed the suit of the Respondent disbelieving the contentions of the Appellants that the subject property was handed over voluntarily by the Respondent thereby not talking into consideration the possession receipt relied upon by the Appellant. The Trial Court rejected the appellant’s plea of non-maintainability of the suit under Section 6 of the Specific Relief Act. Appellant, aggrieved by the decision preferred a Revision Petition before the High Court, which was also dismissed. The High Court also found that the plea of maintainability of the suit raised by the appellant was devoid of merits and further concurred with the finding of the Trial Court that the Respondent was illegally dispossessed by the Respondent. The Appeal is accordingly dismissed as there are concurrent findings, based upon the evidence on record and findings of fact.

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SC Affirms Summoning of Wife in ‘Cheating’ Complaint by Husband: Prima Facie Case Established

Case title: Aniruddha Khanwalkar v. Sharmila Das and Ors.

Case no: Criminal appeal no of 2024 (arising out of SLP. (CRL.) No. 10746 of 2023)

Dated on: April 26th ,2024

Quorum: Justice Rajesh Bhindal

Facts of the case:
The appellant’s marriage was officiated with the respondent no.1 on 28.04.2018 in the presence of the respondents no.2 and no.3. The appellant on that date realized that the respondent was already married and had not obtained divorce from her first husband. The appellant then filed a petition under Section 11 of the 1955 Act (The Hindu Marriage Act), to seek nullification of marriage between the appellant and the respondent no.1. The appellant then filed a case against the respondents no. 1,2, and 3 to the magistrate. The magistrate then booked the respondent no.1 under Section 494 and 420 and, against the respondents no.2 and 3 under Section 420 read with section 120-B , IPC. The above order was then challenged by the respondents no.1 to 3 by filing a revision petition. On 16.06.2018, when Respondent no.1 visited the doctor for a checkup, she was found to be pregnant and wanted to undergo an abortion, but when confronted by the appellant, the Respondent informed that she has not yet obtained divorce from her previous marriage. It was revealed then the document shown to the Appellant was forged which revealed that the consent for marriage was obtained dishonestly. The Appellant felt cheated and then filed a written complaint to the Superintendent of Police on 07.07.2018 and then to the Station in-Charge, on 08.07.2018. However, as no action was taken, a complaint was filed in the court before the Magistrate on 20.07.2018. The Trial Court after recording the preliminary evidence summoned the Respondent no.1 to face trial under Sections 494 and 420 read with Section 120-B, IPC and the respondent nos.2 and 3 to face trial under Section 420 read with Section 120-B, IPC. The aforesaid order was challenged by the respondents before the Additional Sessions Judge. The Sessions Court held that no offence punishable under Section 420 read with Section 120-B, IPC was made out as the factum of earlier marriage of the Respondent no.1 was clearly disclosed to the Appellant. The said Order was challenged by the Appellant before the High Court, which was in turn dismissed by the High Court without assigning any reasons.
Contentions of the appellant:
The appellant contended that the Court failed to appreciate the facts of the case. A prima facie case has been made out which shows that the Appellant has been dishonestly induced by Respondents number 1, 2 and 3 in believing that the Respondent no. 1 had obtained divorce, by showing a forged order, knowing very well that the marriage had not yet been dissolved as on the date of marriage with the Appellant and therefore the Order is liable to be set aside. The Respondents are therefore liable to face trial under Section 420 read with Section 120-B, IPC for the reason that they had conspired with each other and dishonestly induced the Appellant into marrying Respondent no.1 and parting with huge expenses towards fare for travel from Vishakapatanam to Gwalior and vice versa along with expenditure to be incurred for the marriage.

Contentions of the respondent:
On the basis of the pleaded facts and the material produced by the Appellant before the Magistrate, no offence under Section 420, IPC could be made out. The Appellant could not make any case of criminal conspiracy and offence of cheating against the Respondents. There is no error in the orders passed by the Sessions Court or the High Court. There was no concealment or cheating as the Respondents had clearly disclosed all the facts to the Appellant before marriage and hence the appeal deserves to be dismissed.

Issues:
Whether the High court and the trial court was right in setting aside the summoning order passed by the trial court?

Legal provisions:
Sections 494 IPC- Punishment for bigamy.

Section 420 IPC-Punishment for cheating.

Section 120-B, IPC-Punishment for criminal conspiracy.

Courts judgement and analysis:
The Sessions Judge failed to appreciate the fact that certain events had taken place such as apprising the appellant about the decree of divorce having been passed and showing the forged copy of the same on mobile. The Learned Sessions Court has considered the revision against the summoning order as if, after trial, the findings of conviction/ acquittal was to be recorded. The matter was only at a preliminary stage of summoning and for summoning an accused, prima facie case needs to be made out on the basis of allegations and the pre-summoning evidence given by the Complainant. The High Court, further, has dismissed the petition without recording any reasons. The Learned Sessions Court and the High Court Order in setting aside the summoning order against the accused persons is not legally sustainable. On the basis of the facts pleaded and evidence adduced by the Appellant, prima facie case is made out for issuing process against the respondents to face trial for the offence punishable under Section 420 read with Section 120-B, IPC, for which they were summoned. The appeal is accordingly allowed. The impugned orders passed by the High Court and the Sessions Court are thus set aside and that of the Magistrate is restored.

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