Provide fool-proof security or else we will move SC: Bhim Singh
http://www.hindu.com/thehindu/holnus/002200811241848.htm
Srinagar (PTI): The Jammu and Kashmir Panthers Party on Monday threatened to move the Supreme Court if its candidates contesting the ongoing state assembly poll were not provided adequate security.
An emergency meeting convened by party chief Bhim Singh accused the state administration of not providing sufficient security to party candidates, a Panthers Party statement said.
The meeting was held to discuss the attack two days ago on the residence of party contestant Abdul Rashid Ganaie who has entered the fray Kangan constituency.
Bhim Singh threatened to seek intervention of the Supreme Court if adequate security was not provided to party nominees, the statement by party's Coordination Secretary Jagdev Singh said.
In the recent past, Bhim Singh had repeatedly requested Prime Minister Manmohan Singh, Union Home Minister Shivraj Patil and Governor N N Vohra to provide fool-proof security to its party candidates, it said.
Meanwhile, the Panthers Party held several rallies in Kupwara district which is going to polls on November 30 in the third phase.
Wooing voters, Bhim Singh demanded extension of mobile phone service to residents of Tangdhar near the Line of Control.
Align Customs duty on medicines, cosmetics
http://www.business-standard.com/india/news/align-customs-dutymedicines-cosmetics/01/46/341143/
EXPERT EYE
Sukumar Mukhopadhyay / New Delhi November 24, 2008, 0:14 IST
Boroline, a household medicine for skin problems , alone has a dozen reported judgments to its credit over the last couple of decades. This includes one Supreme Court judgement[1][1] also which has finally called it medicine and not cosmetics. Nobody , except revenue officers, can call it cosmetics.
The most recent case[2][2] decided by the Supreme Court is about bio-aloevera, bio-bhringrai, bio-cucumber, bio-coconut, bio-costus, etc. which contain elements that have ayurvedic medicinal value and were produced under drug license issued under Drugs and Cosmetics Act, 1940. The court has held them to be medicines.
The distinction between medicine and cosmetics has not been codified, in spite of several judgements by the Supreme Court on the issue. The reason is that there are overlapping uses. The best that has been enunciated so far is in a land mark judgement[3][3] of the Supreme Court where it went elaborately into various aspects of the use of an anti dandruff preparation known as ‘Selsun’.
It observed that the distinction should be on the basis of definition given in the Drugs and Cosmetics Act 1940. On the perusal of the definition, the Supreme Court broadly distinguished cosmetics and drugs as follows:
“A ‘cosmetic’ means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and includes any article intended for use as a component of cosmetic.”
And “a ‘drug’ includes all medicines for internal or external use of human beings or animals and all substances intended to be used for or in the diagnosis, treatments, mitigation or prevention of any disease or disorder in human being or animals, including preparations applied on human body for the purpose of repelling insects”.
However, while applying the definitions to individual items like Selsun, the question that arises is that while it is basically medicine, it is used as a shampoo which is normally a cosmetic. The Supreme Court observed that several considerations should be taken into account..
CAUGHT IN INTERPRETATION
The Supreme Court has observed that several considerations should be taken into account to solve the conundrum. They are the following: (i) How is it understood in the common parlance though that is not “be all and end all”. The writing on the label to indicate how it is sold is also relevant. (ii) The therapeutic quality is more or the quality for beautifying, cleansing, and promoting attractiveness is more.(iii) Are they available with or without prescription?ALL THE ABOVE CRITERIA ARE SUBJECT TO CONTROVERSY
The common parlance criterion involves making enquiry in the market but that also becomes vague if opinions given by shopkeepers and users differ. The predominant quality is often subject to chemical testing. Availability with the prescription is not always clinching evidence.
The idea of differential duties has been on the basic thesis that while cosmetics are used by the rich, medicines are used by the poor also. Historically customs duty on cosmetics used to be very high almost in the region of 100 per cent. Gradually it has come down to 30 per cent.
Medicines on the other hand attract the customs duty of 12.5 per cent. In central excise the duties have been made 14 per cent for both but due to various exemptions for different types of medicines various exemptions for different types of medicines, the need to distinguish between medicine and cosmetics still continues. Even if the excise duties become the same, the distinction still will have to be made for the purpose of levying customs duty and the countervailing duty which is equal to the excise duty.
The conclusion is that the solution to this controversy lies in abolishing the exemptions and make the effective rates of duty same.
“Judgement” published even before it's pronounced, probe ordered http://www.zeenews.com/states/2008-11-23/485928news.html
Chennai Nov 23: The Madras High Court has ordered an inquiry into the publication of a "judgement" in a law journal even before it could be pronounced by a single-judge bench. The Chief Justice of the High Court has asked one of the judges of the Court to conduct the inquiry. Tamil Nadu Law Notes journal published in its November 10 issue a judgement by Justice M Jayapaul on a case relating to Maran brothers' Sun TV network versus Royal cable vision run by the family members of M K Azhagiri, son of DMK Chief M Karunanidhi. The judge never pronounced the judgement as he had permitted further arguments in the case and had not passed any order. Advocates involved in the case said the judge had reserved its order on the case and when he came to the court with the judgement in a sealed cover, one of the advocates wanted further arguments, which he permitted and did not deliver the judgement. The judges were, however, puzzled over the publication of a non-delivered judgement, lawyers said. Bureau Report
SC rejects PIL seeking MCOCA case against MNS chief
http://www.indianexpress.com/news/SC-rejects-PIL-seeking-MCOCA-case-against-MNS-chief/389021
Express news service Posted: Nov 22, 2008 at 0010 hrs IST
New Delhi, November 21 : On Friday, the SC expressed its displeasure at the increasing tendency of people to rush to court seeking directions for registering criminal cases against all and sundry. The apex court refused to pass directions on a PIL seeking registration of a criminal case under MCOCA against MNS chief Raj Thackeray for his party’s hate campaign and violence against north Indians in Maharashtra. “How can such a petition be filed? We are not a police station,” said a Bench of Chief Justice K G Balakrishnan and Justice P Sathashivam, dismissing the petition filed by an NGO, Yuva Shakti.
The counsel for the petitioner, Rakesh Kumar Singh, submitted that the violence triggered by the MNS activists against north Indians violated the victims’ Fundamental Rights to settle anywhere in the country and seek employment. However, unimpressed by the argument, the Bench remarked that the petitioner was not a victim. “You are not an aggrieved party. Only an aggrieved party can file a petition for initiation of a criminal procedure,” the Bench said.
The PIL had also sought a direction to the EC to derecognise MNS as a political party. The advocate submitted that how can the apex court be silent when a political party was encouraging and spearheading violence against citizens.
Sugar coated
http://www.indianexpress.com/news/Sugar-coated/389762
The Indian Express Posted: Nov 24, 2008 at 0113 hrs IST
This refers to Madhav Khosla’s article ‘Bitter PIL’. Before delving into the pros and cons of public interest litigation, we should first realise that the idea of PILs in India was borrowed from Australia in the eighties and that it was not an established convention of legal jurisprudence but sheer judicial innovation. By enabling a mere postcard as writ petition it has greatly empowered the common masses living in India’s hinterland to access and exercise their fundamental right to constitutional remedies. These are people who could otherwise be afraid of approaching the legal system, complex and intimidating as it can be.
Concerns like balancing between “frivolous petition” and “appropriate representation” are bound to occur. But the PIL system cannot be dismissed just because of this, especially since it, as the the writer rightly says, helps in delivering fruits of good governance, as both the executive and legislative wings can be horribly dishonest in their duties.
The judiciary itself is aware of this. Like any human beings judges can also falter in recognising the genuineness of PILs, but their introspection in rectifying the same is heartening.
— Sourabh Jyoti Sharma
Bitter PIL for non-official directors on bank boards
http://www.indianexpress.com/news/Bitter-PIL-for-non-official-directors-on-bank-boards/389621
Syed Khalique Ahmed Posted: Nov 24, 2008 at 2359 hrs IST
Ahmedabad, November 23 : Senior citizen trust moves court, alleges foul play in selection of 37 independent directors
The controversy over the appointment of 37 independent directors on the board of Government banks and 33 of them having allegiance to the Congress has now been taken to the court. This issue was first raised by The Indian Express in its edition dated May 6, 2007.
Challenging the appointments, Vadodara-based Senior Citizens Service Trust has filed a public interest litigation (PIL) in the Gujarat High Court. Trust secretary Praful Desai submitted before the court that these appointments were not done on merit but to favour the politicians connected with the Congress and its allies in the UPA government.
He contended that the appointment of independent directors, also known as ‘non-official directors’ in banking parlance, was done by the Department of Banking of the Union Finance Ministry in violation of norms and guidelines.
Retailer directed to repair mobile, pay up for harassing customer
http://www.indianexpress.com/news/Retailer-directed-to-repair-mobile--pay-up-for-harassing-customer/389785
Express News Service Posted: Nov 24, 2008 at 0130 hrs IST
Chandigarh, November 23 : A mobile set purchased for Rs 2,700 gave a harrowing time to its owner after it broke down within a week of its purchase and the retailer refused to repair it even though it was in the warranty period.
The District Consumer Disputes Redressal Forum has directed the retailer in Sector 37 to repair the phone and pay Rs 500 as compensation for harassment.
The complainant, Khyali Ram Tiwari, had purchased an LG mobile for Rs 2,700 from Lovneet Jolly of Fun Time Videos, a retailer in Sector 37.
Within a week, the phone stopped working and the complainant then took it to the service centre, where he was told to replace the cover.
A request was then sent to the retailer, but he paid no heed. The complainant then moved the forum.
Notices of the complaint were sent to the retailer, seeking their version. But despite several reminders, no one turned up, and the proceedings therefore, started ex-parte.
The forum said the facts mentioned by the complainant in his complaint and affidavit sufficiently prove that the set was sold to him for Rs 2,700. After it went out of order, the retailer was bound to repair the same as the phone was under the warranty period, but demanded Rs 1,000 for the same.
The forum held: “Due to the non-cooperating attitude of the opposition in removing the defect, the complainant was unable to use his phone and was harassed.”
Legal Eagles Soar As Markets Crash
http://tricom.wordpress.com/2008/11/24/legal-eagles-soar-as-markets-crash/
THE TIMES OF INDIA
24 Nov 2008, 0109 hrs IST, Manoj Mitta, TNN
NEW DELHI: While BPO companies are feeling the heat of the global meltdown and resorting to layoffs and other cost cutting measures, their LPO
(legal process outsourcing) counterparts are thriving like never before because of the legal activity that has been generated by the sub-prime crisis in US. What is more, the LPO segment reflects the prevailing boom in the legal servicesindustry in India.
Law firms dealing with foreign companies operating in India have also seen an increase in their turnover, even if their work is now more about post-meltdown issues like restructuring, downsizing, layoffs, closure of branches, winding up of subsidiaries and termination notices to collaborators and franchisees.
Take the example of Delhi-based Titus & Co, whose clientele consists almost entirely of foreign companies and governments. Its managing partner Diljeet Titus said, “We have had at least a 50% rise in the volume of transactional work ever since Lehman Brothers imploded two months ago.” Since these transactions are mostly related to cost-cutting measures, Titus did his bit for his clients by offering a 20% discount in his fee. “The reduction in our fee is made up for by the increase in the quantum of work as well as the dollar rate,” he added.
Fox Mandal Little, the largest law firm in the country, displays more signs of it being business-as-usual. In the last two months, it has recruited 27 more lawyers at various levels, opened its 13th office (which is in Kochi) and forged ahead with negotiations to acquire another law firm. It is poised to recruit more lawyersfor its recently launched LPO subsidiary, Legal Circle. The firm’s managing partner Som Mandal said, “We are most bullish about our LPO because of the sheer deluge of enquiries we have received from US to do litigation support from India.”
The timing of the meltdown could not have been better for LPO companies as the e-discovery law, governing the storage and management of electronic data that might be relevant to litigation, came into effect in US only two years ago. The meltdown has forced more American companies to turn to LPO set-ups in India for help because of the enormous cost differential. For performing document review, a key aspect of the e-discovery process, a senior associate in US is paid $200-300 per hour while an LPO based in India charges barely $25-30 per hour for the same work, according to Mandal’s estimate.
Not surprisingly, Pangea3, one of India’s largest LPO companies, claims to have registered 100% increase in volumes in the last six months. “We are witnessing an extraordinary influx of work directly or indirectly related to the sub-prime crisis,” said CEO Sanjay Kamlani. The surge in Pangea3’s e-discovery work involves court disputes among investors, lenders, borrowers, homeowners and banks. Post-meltdown, it is also cashing in on the demand for greater scrutiny of financial transactions and corporate governance.
As Pangea3 CEO Sanjay Kamlani put it, “cost cutting measures have spared budgets only for non-discretionary items like legal services related to litigations and regulatory compliance. While BPOs must deal with delayed decision making, uncertainty and wait for new government policies in US, LPOs grow business almost as a function of the slowdown.”
For all the surge in business for LPOs and law firms, there is one part of the legal services industry that seems to have remained relatively unaffected: the vast majority of individual lawyers involved in litigation within the country. P H Parekh, president of Supreme Court bar association, dismissed the suggestion that senior advocates like him were under pressure to accept a fee cut in view of the economic slump. “The demand for top lawyers is so high and the supply of them so little, the worst that may happen is that the number of briefs we return for want of time may come down,” Parekh said.
CJI inaugurates country's 1st mobile Adalat
http://www.indlawnews.com/Newsdisplay.aspx?cb6ec2f7-8095-42c1-97b0-70036d11d1d0
11/23/2008
Chief Justice of India, Justice K G Balakrishnan inaugurated the country’s first Mobile Adalat and Literacy Chariot intended to spread Legal Literacy throughout the state and facilitate Lok Adalats at Panchayath level.Speaking after flagging off the vehicle, he said by educating the rural masses about the National Rural Employment Guarantee Scheme (NREGS), through Legal State Services Authorities, courts were also playing a significant role to empower the rural poor.Stating that by enacting NREGS, Centre has recognised people’s employment right enshrined in the Directive Principles in the Constitution as a fundamental right, the Chief Justice said state Legal Service Authorities can play a vital role in spreading messages to the rural poor on creating awareness on the same.He said several legislations passed both in Parliament and state Assemblies, intended to empower the poor and downtrodden, had not reached the people due to lack of awareness. The Mobile Adalat and Literacy Chariot, flagged-off by the Chief Justice was provided by state Legal Service Authorities, who had acquired it from state-run Bangalore Metropolitan Transport Corporation (BMTC).The Mobile Lok Adalat and Literacy Chariot will be used for spreading Legal Literacy throughout the state and Lok Adalat will be organised in two phases, the second at Gram Panchayaths headquarters.The Chariot has been designed to hold the sitting of Lok Adalat in the bus itself.The Mobile Adalat is expected to commence its sittings in Bidar soon. Karnataka Chief Ministwer B S Yeddyurappa , who also participated in the flag off, said full time administrative and technical manpower was imperative for effective implementation of the scheme.Through capacity building measures, trained personnel have to be recruited at Gram Panchayat level and improve the capacity of Panchayat Presidents and members, he said. Karnataka High Court Chief Justice P D Dinakaran, speaking on the occasion, expressed concern over increasing number of pending cases especially those filed by underprivileged people, the number being 2,25,452 of the 7,44,831 cases pending.UNI
State diktat to HC on sentences of convict
http://timesofindia.indiatimes.com/Mumbai/State_diktat_to_HC_on_sentences_of_convict/articleshow/3752986.cms
25 Nov 2008, 0248 hrs IST, TNN
MUMBAI: The Bombay high court on Monday was informed by the state government once again that a convict facing two different sentences in two different cases cannot undergo the sentences concurrently, but has to serve the sentences consecutively. Additional public prosecutor Aruna Kamat Pai cited Supreme Court judgments to buttress her arguments that two sentences in two different cases have to run consecutively and not concurrently. A full bench of the Bombay high court on Monday reserved judgment after completing the hearing in a reference based on a letter written by an HIV positive patient last December seeking that his sentences run concurrently. The full bench comprising Chief Justice Swatanter Kumar, Justice S A Bobde and Justice V K Tahilramani heard the matter at length. The HIV positive status of this convict could be treated as different, said rights activists. The petitioner was convicted by a Satara sessions court for seven years in 2002. He was also sentenced to two years by a court in Amritsar in a narcotics case in 1997. He is currently lodged in Kolhapur Central Prison, and in his letter he stated that his health was deteriorating every day and he was not sure about how long he would live. The petitioner's advocate Yug Mohit Chaudhry, had argued that the court can exercise discretion under the CrPC to make the sentences concurrent. Chaudhry argued that in a case where a man is convicted for simple theft eight times, his consecutive sentence will amount to 16 years' imprisonment which is too harsh. Chaudhry submitted that Section 427 is a beneficial provision meant to provide amelioration to the prisoner. The convict already served two years awarded by the Amritsar court. Now he has urged the high court to make his sentences concurrent as he wished to die in his native place where his family resided. His case was first heard by a single judge of the HC who then directed that the case be placed before a larger bench. Justice Abhay Oka in his order cites several division bench orders as well as an apex court judgment put forward by the defence and prosecution. It held that this conflict will have to be resolved by placing the matter before a larger bench. Justice Oka observed that the question which arises for decision is "whether power under Section 427 of the CrPC can be exercised when the conviction of the accused is in two or more cases for distinct and separate offences arising out of different incidents.''
Reservation harmful for national integrity: HC
http://timesofindia.indiatimes.com/Lucknow/Reservation_harmful_for_national_integrity_HC/articleshow/3752757.cms
24 Nov 2008, 2327 hrs IST, TNN
LUCKNOW: The Lucknow bench of the Allahabad high court has taken a firm stand against the continuity of reservation in the country.
"For national integration and development, it is necessary to take affirmative action to produce able and knowledgeable personalities from the deprived class, instead of expanding and abusing the process of reservation or keeping its continuity for all times to come, at the cost of efficiency enshrined in the constitution of India,'' said a division bench of Justices Devi Prasad Singh and VD Chaturvedi. The observation came on a writ petition filed by the UP irrigation departments officials, Dharam Pal Singh Chauhan and another. Chauhan's counsel, senior advocate SK Kalia had contended that in the department there were two posts of engineer-in-chief. One was occupied by the general candidate, and the other was filled up by the state government by a scheduled caste (SC) candidate on August 27. Since according to rules the reservation to SC was limited to 21 per cent the promotion of SC candidate on one of the two posts amounted to 50 per cent, the same being against law, was arbitrary and illegal, argued Kalia. Defending the promotion, additional advocate general, JN Mathur, chief standing counsel Devendra Upadhyay and PN Gupta contended in the light of a government order of March 8, 1973, that in case there was one post even then that could be reserved for SC candidate. The bench, however ruled that since the sanctioned strength of the post of engineer-in-chief was two and the quota of scheduled caste was 21 per cent under the act, one out of two posts could not be reserved for a SC candidate. Accordingly, the court set aside the promotion and directed the state government to proceed to fill the vacancy in view of this observation. Delivering the bench said that the abuse of constitutional power in the matter of reservation in any way is against the constitutional spirit, shall cause reverse discrimination and may be counter-productive and divisive in due course of time which should be checked by enforcing the rule of law in its letter and spirit. The HC said, "Reservation may be provided only keeping in view the inadequacy of representation, backwardness of class, necessity for reservation, judging the adverse effect, without compromising on efficiency of administration and excellency, keeping in view the constitutional mandate.'' Subscribing to the view of the supreme court, while delivering the judgment, Justice Singh has said there should be a review of the reservation process at an interval of 5-10 years to find out the necessity for its continuance but it appears that instead of reviewing the necessity of reservation, even after a period of 60 years of Independence, when a new generation has taken over the national scene and has got no concern with the past exploitation, reservation has become an electoral issue an is being used as a vote capturing device. Holding the reservation process responsible for creating fissure in the Indian society, the bench expressed its annoyance that a new form of leadership has raised head based on caste, creed and religion raising slogans amounting to abuse of reservation process against the constitutional mandate. The high court showed its anguish that in last 60 years, casteism, corruption and communalism has increased manifold in the country. "No effective effort has been taken by the constitutional functionaries to develop the sense of national feeling which may unite the countrymen into one thread,'' the bench said adding that it has taken notice that sometimes elections are contested in a planned manner on the basis of caste, creed and religion. Supporting Sardar Vallabbhai Patel's view against the expansion of reservation, the judges quoted his words. "Separate electorate given to the Muslims has done irreparable damage to the cause of India; this was done deliberately as a policy of divide-and-rule and we are paying dearly the price for this act of mischief. Let us hope that all communities will realise in course of time that it is more in the interest of the country and of the community as a whole to fall in line with the general national regeneration of the country as a whole.'' Giving impetus to a nationwide debate on the policy of continuing reservation in the country, the judges reminded that even Dr Bhim Rao Ambedkar, the framer of the constitution had suggested the provision of reservation for first ten years only but it has been extended from time to time.
HC forms panel to look into Botanic butchery
http://timesofindia.indiatimes.com/Kolkata_/HC_forms_panel_to_look_into_Botanic_butchery/articleshow/3753289.cms
25 Nov 2008, 0418 hrs IST, TNN
KOLKATA: A three-member high-powered committee will be formed to investigate the felling of trees in Botanic Garden. The panel will submit a preliminary report by Friday after taking photographs and video-filming the area, if necessary, Calcutta High Court
ruled on Monday. The court-appointed committee will be headed by senior advocate Anindya Mitra. Police commissioner Gautam Mohan Chakrabarti and principal chief conservator of forests Atanu Raha will also be part of the panel. It will have the liberty to examine all relevant records and visit any site, the court observed. The Green Bench of Chief Justice S S Nijjar and Justice Sanjib Banerjee passed the order after the garden's additional director, Girija Shankar Giri, submitted through his counsel that no specific permission had been taken for cutting trees under the provisions of the West Bengal Trees Act, 2006. The court observed, "Prima facie, it appeared that healthy trees had been cut without any application of mind." Environmentalist Subhas Datta, who is the petitioner in a public interest litigation on mismanagement and irregularities at the Botanical Garden, made a submission that over 100 fully-grown trees some of which belonged to rare species, had been indiscriminately felled without permission from any competent authority. This contravenes the Act, Dutta submitted. Responding to his allegation, the court had, on November 21, directed the additional director of Indian Botanic Garden (IBG) to be present in court on Monday to respond to the allegation. Justifying the procedure adopted for cutting off trees, Giri's counsel argued that prior to 1970, the area in question which was identified as a flower garden, had been covered by trees. Therefore, it was decided to cut down the trees in the nine bigha area for which no permission was required under the Act. In support of his contention, the counsel also produced some photostat copies of records. After pursuing the records, the court observed that the records did not indicate how the decision was taken to fell perfectly healthy trees without identification of the species or their dimensions. "There is no record available on the location of trees... It has also been stated that there is no written record of any decision-making process for felling of trees," the court noted. The court also imposed a ban on further felling of any trees and sale of any uprooted trees within the Garden till further orders of the court. The matter will come up for hearing again on November 28.
HC takes suo motu cognizance
http://timesofindia.indiatimes.com/Lucknow/HC_takes_suo_motu_cognizance/articleshow/3753185.cms
25 Nov 2008, 0104 hrs IST, TNN
LUCKNOW: The high court on Monday took suo motu cognizance of bulldozing of the irrigation department colony at Parikalp Nagar and proceeded to adjudicate whether the colony or any government premises could be removed overnight without preparing a development plan for the vacated land. Over the apprehension that the government is set to demolish PWD Colony as well, the division bench of Justice Pradeep Kant and Justice Shabihul Hasnain recorded the firm denial of the state government, reducing in words the statement of the advocate general (AG), Jyotindra Mishra. On Monday, the judges seemed to be irked that on November 17, senior advocate and BSP leader SC Mishra submitted in the court that the government had no plans to demolish the said colony and thereafter, the next hearing was set on Monday but in the meanwhile, the LDA and Nirman Nigam demolished the colony on the directions of the state government, without even waiting for the outcome of the next hearing. The judges expressed helplessness to understand the statement made by Mishra in the court on November 17. The orders came in course of hearing of a Public Interest Litigation (PIL) preferred by one Mithilesh Singh, who sought a check on the demolition spree of the Mayawati government and focus of public fund on the development work in spite of installing statues. The AG contested that the PIL was politically motivated and in a similar matter the Supreme Court had already passed a stay order, rendering the instant PIL futile, and not maintainable. After heated arguments by the senior advocate Prashant Chandra against the demolition drive and rebuttal of the AG, the bench proceeded to take suo motu notice of the recent demolition.
HC stays surveyor general's visit to mine site
http://timesofindia.indiatimes.com/Hyderabad/HC_stays_surveyor_generals_visit_to_mine_site/articleshow/3752744.cms
25 Nov 2008, 0335 hrs IST, TNN
HYDERABAD: The AP High Court on Monday stayed the impending visit of the Surveyor General of India to the disputed site between Obulapuram Mining Company (OMC) and Bellari Iron Ore Pvt Ltd (BIOPL) in Anantapur district. BIOPL first approached the court with a charge that OMC has been forcibly excavating iron ore from its lease area and the court had ordered Surveyor General to identify the missing boundary line between both the companies. Aggrieved by this, the OMC filed an appeal against this order expressing certain apprehensions over the visit of the surveyor general or his officer. The division bench comprising Justice D S R Varma and Justice G Chandraiah stayed all proceedings and posted the matter to December 3.
HC seeks details from PMC on apartments violating rules
http://timesofindia.indiatimes.com/Cities/Patna/HC_seeks_details_from_PMC_on_apartments_violating_rules/articleshow/3752910.cms
24 Nov 2008, 2353 hrs IST, TNN
PATNA: The Patna High Court (HC) on Monday directed the Patna Municipal Corporation (PMC) to give details of the apartments under construction in Patna in which there was violation of Apartment Acts. A division bench, comprising Justice Chandramauli Kumar Prasad and Justice Ravi Ranjan, expressed dissatisfaction at the PMC report in this regard as it did not carry details. The order was passed on the PIL of Ravindra Prasad Roy who alleged mass scale violation of the relevant laws in construction of apartments in Patna. Vigilance Court: Special judge, vigilance (trap cases), Qayoom Khan on Monday awarded three years rigorous imprisonment and imposed Rs 4,000 fine to a commercial tax assistant, Narendra Kumar Sinha, who was arrested red-handed while taking bribe of Rs 4,000 from the complainant, Deepak Kumar. The latter had alleged that the accused had demanded bribe for giving no objection certificate regarding payment of commercial taxes.
HC readmits PIL challenging land allotted to Prakash Jha's firm
http://timesofindia.indiatimes.com/Cities/Patna/HC_readmits_PIL_challenging_land_allotted_to_Prakash_Jhas_firm/articleshow/3752907.cms
24 Nov 2008, 2352 hrs IST, TNN
PATNA: The Patna High Court (HC) on Monday admitted for hearing the public interest litigation (PIL) of state Congress leader Prem Chandra Mishra challenging the settlement of the erstwhile Patna Industrial Area Authority's (PIADA) one-acre plot of land and industrial plots in five other industrial areas in the state with Bollywood director and producer Prakash Jha's firm by the Bihar Industrial Area Authority (BIADA) for construction of multiplex complex. A division bench, comprising Chief Justice R M Lodha and Justice K K Mandal, fixed January 19, 2009, as the date of hearing of the case. This division bench heard the matter afresh at admission stage on the directive of the Supreme Court (SC) which had remanded back the PIL for fresh hearing by the HC. Another division bench of the HC had earlier allowed the PIL of Mishra, who was then (in 2006) the spokesperson of Bihar Pradesh Congress Committee (BPCC) challenging settlement of the above mentioned land with Jha. Jha, whose enterprise M/S Holi Cow Pictures was given the industrial plots, had moved Special Leave Petition before the SC challenging the Patna HC verdict on Mishra's PIL. SC remanded Mishra's PIL to Patna HC for fresh hearing with observation that HC's verdict on the basis of the records of settlement of the land by BIADA was not enough. The SC had accepted the plea of Jha that he was not given sufficient opportunity during hearing of the PIL by the Patna HC to explain his case clearly regarding the BIADA records on the basis of which the judgement was passed. On remand of the PIL to Patna HC, the division bench, comprising Lodha and Mandal, had directed all the parties in the case to file their objections. Jha in his defence maintained that the industrial plots had been settled with his firm in accordance with the BIADA rules to provide land for entertainment industry. Representing Mishra, his counsel, Satish Chandra Jha, submitted that the industrial plots are supposed to be the public property and that they were settled with Jha's firm without auction at a throwaway price just because Jha happened to be a friend of CM Nitish Kumar and that both had campaigned together during the last assembly polls. The stand taken by BIADA was that the industrial plots are settled without auction and at industrial rate, which was done in case of Jha's firm.
Former cop who investigated Abhaya case found dead
http://timesofindia.indiatimes.com/India/Former_cop_who_investigated_Abhaya_case_found_dead/articleshow/3756418.cms
25 Nov 2008, 1908 hrs IST, IANS
KOTTAYAM: A former police official who had prepared the inquest report of Sister Abhaya, a nun who was murdered in a Kerala convent in 1992, was found dead on Tuesday near his home here, the police said. V.V. Augustine, a former assistant sub-inspector of police, is reported to have slashed his wrist. In his suicide note, he held the Central Bureau of Investigation (CBI) responsible for his death, the police said. Abhaya, a resident of Pious X Hostel, was found dead in the well of the Kottayam convent March 27, 1992. Augustine last year was subjected to the truth serum test by the CBI and was recently questioned by the investigating agency over allegations of destroying crucial evidence in the Abhaya murder case. Varghese P. Thomas, former CBI deputy superintendent of police who first concluded that Abhaya was murdered, said that Augustine would probably be under heavy mental pressure since the investigation has reached a turning point. "It was Augustine who had prepared the inquest report of Abhaya and there were several lapses in the report. Maybe he was under duress when he prepared the inquest report and now he probably felt that he would be arrested also," said Thomas. Augustine's body was found near his residence Tuesday afternoon and a large team of police officials reached the place. On Nov 19, the 13th team of the CBI set up to probe the case - after 12 earlier teams failed - arrested Father Jose Putarika, 56, a former Malayalam professor at a Kottayam college where Abhaya studied, Father Thomas Kottor, 61, the Diocesan chancellor of the Catholic Church at Kottayam, and Sister Seffi, who was a resident of the convent when the incident took place. Last week the CBI sleuths questioned Archbishop Mathew Mulekattu for over two hours here to elicit more information about the murder of Sister Abhaya. A day earlier to that, it questioned retired bishop Kuriakose Kunnasery, who was the serving bishop when the murder took place. The police officials said that Augustine's body will be taken to the Kottayam Medical College Wednesday and till then the body would be left at the spot. The CBI had concluded in November 1996 that Sister Abhaya's death was a homicide but the murderer remained untraced. The Kerala police had earlier dismissed the case as suicide.
NGO moves HC against DoT on excess spectrum
http://www.business-standard.com/india/news/ngo-moves-hc-against-dotexcess-spectrum/00/36/341247/
BS Reporter / New Delhi November 25, 2008, 0:31 IST
Adding to the woes of the Department of Telecommunications (DoT), Telecom Watchdog, a Delhi-based NGO, has filed a petition to the Delhi High Court on the issue of allocation of excess spectrum to telcos.
Telecom Watchdog has alleged that DoT has been distributing spectrum much beyond the entitlement to the private operators and that too without any extra fee. The NGO has named Bharti Airtel, Vodafone, Idea Cellular, Aircel, Reliance Communications, Spice Communications and BPL Mobiles as the beneficiaries.
The petitioner has therefore asked for an increase in the spectrum charges for excess spectrum. It has also urged the court to direct DoT to implement the Telecom Engineering Centre (TEC) norms. According to the TEC norms, the basis for allocation of additional spectrum should be the subscriber base.
This comes close on the heels of a public interest litigation (PIL) petition filed in the High Court against the first-come-first-serve policy followed by the government in allocating spectrum.
Indian SC clears Lafarge's limestone quarrying case
http://www.thefinancialexpress-bd.com/search_index.php?page=detail_news&news_id=18286
FE Report
The Indian Supreme Court (SC) in an interim order Friday allowed operation of the limestone quarrying in forest areas of Meghalaya and supply of raw material to French cement giant Lafarge's US$255-million cement plant in Bangladesh based on the Indian ministry of forest and environment's (MoEF) no-objection. To maintain the balance in the sensitive bilateral relations with Bangladesh, the ministry of forest and environment Friday did a U-turn on its objection to limestone quarrying in forest areas of Meghalaya and its transportation to the plant across the border through a conveyor belt, according to a report received in Dhaka Saturday. With this, operations at the Lafarge Surma Cement Project at Chhatak in Sunamganj, Bangladesh, which were stopped in May this year, can begin. Lafarge had moved the court challenging MoEF's unilateral decision to stop limestone mining in the quarry area spread over 100 hectares near the Indo-Bangladesh border in the north-eastern state. The MoEF, however, wished that the limestone from the N-E (North-East) state should be utilised in India for the benefit of the country and proposed that Lafarge should set up a similar plant in the state.Appearing for the French multinational, senior advocate Mukul Rohtagi said that Lafarge had already moved a proposal for setting up a cement plant in Meghalaya, but at a location away from the present quarry area because of its inaccessibility. Amicus curiae Harish Salve said that employment and contribution to the Indian exchequer could be best served if the limestone quarried from Meghalaya was utilised in the state. A Bench comprising CJI K G Balakrishnan and Justices Arijit Pasayat and S H Kapadia also took objection to the small number of Indians employed at the quarrying site. "You have employed only 175 persons in India, though you claim to be a multinational. A small tea stall in India employs five persons."
Arguments in Roy's case to continue on November 26
http://www.hindu.com/thehindu/holnus/002200811242053.htm
Mumbai (PTI): Arguments on a petition filed by Maharashtra Director General of Police Anami Roy would continue before the Bombay High Court on Wednesday. Stay granted by the High Court on CAT order will continue.
Roy, and state government, have moved High Court against Central Administrative Tribunal's order last month holding Roy's appointment illegal.
The crux of the CAT order is that state should have chosen -- in accordance with Supreme Court judgement -- one of the three officers who are senior to Roy, namely, S S Virk, S Chakravarti and J D Virkar. Supreme Court's judgement in Prakash Singh case says that three senior most officers should be considered for the post.
But Roy's lawyer Rafiq Dada argued that S S Virk, former Punjab DGP and currently DG (Housing), was ineligible for the post since he had a case pending against him in a court in Chandigarh.
He also pointed out that at the time of appointing a new DGP for the state Virk was under suspension.
Virk had also never challenged the appointment of Roy in the Central Administrative Tribunal unlike S Chakravarthy, Dada said.
Janak Dwarkadas, who is also appearing for A N Roy, said the appointment of Roy was logical since he could hold office for the tenure of two years, the others in the race, namely, Virkar and Chakravarti, are due to retire next year.
But the division bench of Chief Justice Swatanter Kumar and Justice Sharad Bobde pointed out that as per the CAT's reasoning, person appointed to DGP's post would have got two years' extension automatically.
PIL to implement Inquiry Commission recommendations filed
http://www.indlawnews.com/Newsdisplay.aspx?e80a98d7-f5a5-4660-9716-313856666c08
11/25/2008
A Public Interest Litigation (PIL) petition to implement the recommendations of the Justice K S Bhakthavatsalam Commission of Inquiry, which probed the December 2001 attack on law college hostel students, has been filed in Madras High Court.Immediately after the December 7, 2001 violent clash between law college hostel student and public and subsequent police excesses inside the Millers Road hostel at Purasavakkam, the then AIADMK government constituted the Inquiry Commission.On February 26, 2004, an order was issued by the government, formally accepting the commission’s findings and recommendations.The panel had called upon the authorities to enforce strict discipline among hostel students, and made a categorical suggestion that though the standard of student discipline was falling it cannot be a reason to shift the hostel from Miller’s road. The panel urged the government to construct a residential premises for the hostel warden inside the campus in order to ensure that the warden remained there to supervise students round the clock. It also said as the warden was not visiting the hostel premises daily, day to day affairs of the hostel had been left to a deputy warden.Seeking an immediate implementation of these recommendations, the petitioner, C Vijayakumar, President of Lawyer’s Centre for Human Rights, said though more than 4 years after the recommendations were accepted by the government, they were yet to be implemented.The PIL is likely to come up for hearing before the first bench of the High Court tomorrow.UNI
Spot the lake here if you can...
http://www.expressbuzz.com/edition/story.aspx?Title=Spot+the+lake+here+if+you+can...&artid=Sr7zdaHrTSE=&SectionID=Qz/kHVp9tEs=&MainSectionID=Qz/kHVp9tEs=&SEO=Lake,+Development,+Authority&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==
Navya P K
First Published : 25 Nov 2008 04:01:00 AM IST
Last Updated : 25 Nov 2008 09:00:12 AM IST
BANGALORE: For families staying near the Arekere lake in Hulimavu, clean water is a rare, precious commodity. Here groups of 10 to 12 families share water from one well each. While seepage from the highly-polluted Arekere lake has caused water in the wells to be polluted, residents are left with no other option but to use it. Raw sewage and effluents from the nearby garment factory make their way into Arekere lake, which is almost completely covered with water hyacinth, an indication of reduced oxygen content due to pollution.
“Well water is unfit for consumption. We use it only for ablution, washing clothes and dishes. In the common borewell, water comes only once a week. Otherwise, we rely on private tankers for water supply,” says Amjad, a resident in the area. However, private water supply is not affordable to many families here.
“Even borewell water is not clean. There is high incidence of fever, allergy and respiratory problems among people. But it has become so routine that no one complains anymore,” says another resident Mohan Gupta. The stench from the lake is unbearable during rains and mosquitoes which breed in the open drains and the lake also contribute to diseases.
The case is not unique to Arekere lake.
People residing near many lakes in the city, such as Singasandra, Chikkabegur and Bellandur lakes, face similar problems and the poor people are the worst-affected. Advocate S Vasudev, counsel for the PIL demanding potable water supply in areas surrounding Bellandur lake, says, “Builders of new apartments pay crores of rupees for unrestricted water supply while local residents are deprived.” When contacted, Public Relations Officer of BWSSB A N Prahlada Rao said, “Until two to three years back, water was provided to apartments that paid nearly Rs 80 lakh for laying of water connection pipelines.
But due to supply constraints, new apartments would not have the option. Water supply problems are higher in areas that are newly added to the BBMP. Borewells are being dug in these areas from the last three to four months. By 2012, 500 MLD of Cauvery water will be available, which can solve water shortage problems.” However, in reply to a PIL filed by Bellandur gram panchayat, the High Court had in 1999 ordered immediate measures to supply potable water to residents in Bellandur, clean all lakes in the city and to channelise sewage to the treatment plants. Following the authorities’ lack of compliance to the HC directives, another petition on contempt of court was filed. It is still pending before the Lok Adalat.
The sewage treatment plants (STPs) around Bellandur now have a capacity of 248 MLD, which is insufficient to handle sewage from the area. “The BWSSB has spent nearly Rs 185 lakh to divert sewage to the treatment plant, without much respite.
While sewage is accumulating in the lake, it’s impossible to clean it,” says C S Vedant, Chief Executive Officer, Lake Development Authority (LDA).
Pollution in lakes also assume larger dimensions, threatening livelihoods. “The vegetation in areas surrounding Bellandur lake were damaged due to pollution. The vegetables taste different and are no longer accepted in the market. Agricultural activities have come to a standstill and farmers are suffering silently,” says Advocate Vasudev. The fishing community is also affected as the fish have died in many lakes.
Another problem plaguing residents is flooding during rains. The leakage of a drain connecting to Arekere lake has led to lake water flowing out into the residential areas. “We had complained about the issue many times and efforts were made to stop the leak. But as water flows in great force, temporary measures do not work,” says a resident in the area. Now many houses here are surrounded by water during all seasons.
Lack of proper drainage system worsens the situation.
LDA officials flatly blame encroachments for outflow from lakes. “People encroach outflow channels, making them narrow.
During rains, water gushes out causing flooding. BDA and BBMP should take initiative to demolish illegal structures,” says Vedant. He cites interlinking of lakes as a key cause for pollution. “In Bangalore, all lakes are interlinked, due to which pollutants from one lake will be carried to another during rains. There is lack of funds from the state government and it takes nearly five years after a proposal is submitted for any project to take off,” he adds.
Ever since LDA’s constitution in 2002, three lakes - Vengaiahnakere, Nagavarakere and Jaraganahallikere - were rejuvenated.
Whether masterplans are chalked out or not, the lives of many still hang in the balance
Committee to address grievances of the haemophiliac
http://timesofindia.indiatimes.com/Lucknow/Committee_to_address_grievances_of_the_haemophiliac/articleshow/3752736.cms
24 Nov 2008, 2322 hrs IST, TNN
times news network Lucknow: The director general, medical and health services on Monday informed the High Court that a high-level committee has been constituted to look-into grievances of the haemophilia patients. The committee includes DG (medical and health), DG (medical education) head of department, blood transfusion medicine, SGPGIMS, and a professor of SGPGIMS, CSMMU and BHU each. The order was passed by the bench of Justice Pradeep Kant and Justice Shabihul Hasnain on a PIL filed by secretary, Haemophilia Society, Vinay Manchanda and a law student Nimisha R Bahadur. The PIL had sought free and safe treatment to haemophiliac patients in the state. Direction has also been issued to the Centre and state government to develop anti-factors against the disease. The case will come-up for hearing on December 15. HC asks govt on steps for farmers Lucknow: A division bench of the high court comprising Justice Pradeep Kant and Justice Shabihul Hasnain has sought information from the state government as to what steps it has taken to ensure supply of seeds and fertilisers to farmers. The PIL filed by HB Singh will come up for hearing after two weeks.
Forest land: Affidavit to include residents'
http://timesofindia.indiatimes.com/Mumbai/Forest_land_Affidavit_to_include_residents/articleshow/3752950.cms
25 Nov 2008, 0234 hrs IST, Viju B, TNN
MUMBAI: The government has agreed in principle to incorporate submissions made by residents-whose homes fall in the jurisdiction of the private forest land category-in its affidavit to be filed before the central empowered committee (CEC) on Tuesday. Two months ago, the Supreme Court had directed the CEC, comprising environmentalists and senior government officials, to submit a report after studying the forest land issue in detail. The apex court issued the directive while hearing an appeal filed by residents and developers whose plea was rejected by the Bombay high court earlier this year. The high court had accepted the government's contention that around 1,500 acres in Mumbai and Thane fell in the private forest land category and all structures that had come up there were, therefore, illegal. The Hill Road Residents' Welfare Association and builders then approached the Supreme Court and appealed against this order, arguing that around 15 lakh people would be rendered homeless if the ruling was implemented. Last week, the CEC, while rejecting the scheme proposed by the state, directed it to file a revised scheme. The panel also directed the residents' body and People's Power of Nation, an NGO, to file an affidavit giving details of the affected areas in Mulund and Nahur. "The state has incorporated our suggestions and will not insist on producing occupancy certificates. Instead, the residents will now have to produce commencement certificates. Also, slums that have come up on the private forest land but have got permission under the slum act will be regularised,'' said P Padikal, president of the residents' association who met chief secretary Johnny Joseph and senior forest officials. Padikal said that in places like Mulund, where hundreds of people stayed in large refugee settlements (and got title deeds from the President of India), would have to produce `sanath' as proof of residence. The forest land issue came up after a PIL was filed in 2002 pleading that land acquired under the Maharashtra Private Forest Acquisition Act, 1975, had not been recorded properly by the revenue department. A high court bench, after hearing the PIL, passed an order directing the state to update all records by May 2006. "The residents will now have to pay afforestation charges, which will be a uniform rate irrespective of the date of construction,'' said Padikal.
No "urgent" acquisition of land: SC
http://timesofindia.indiatimes.com/India/No_urgent_acquisition_of_land_SC/articleshow/3756305.cms
25 Nov 2008, 1828 hrs IST, PTI
NEW DELHI: The Supreme Court has held that the Government cannot forcibly acquire private lands by invoking the "urgency clause" without inviting objections from the aggrieved persons or citing sufficient justification. A bench of Justices C K Thakker and D K Jain said this while quashing the acquisition proceedings launched by the Haryana Government to acquire private lands "for public purpose" in the State's Kheri Nangal village in Panipat district. The bench held that the acquisition proceedings sought to be launched under the "urgency clause" were not justified as the authorities had failed to cite any urgent cause for it. A company, Essco Fabs Pvt Ltd, the Panipat Teachers Housing Cooperative Society and another organisation had challenged the acquisition proceedings alleging they would be displaced as a result of the process. In this case, the Government chose to take over the land in 2001 by invoking the urgency clause under Section 17(4)of the Land Acquisition Act to acquire land for which the actual proceedings were in fact initiated in 1982. Under Section 5A of the Act it is mandatory for the Government to invite objections from the aggrieved land owners, but Section 17(4) gives discretionary powers to the authorities to acquire the land without even inviting objections.
SC upholds sacking of IAF man who leaked information to wife
http://timesofindia.indiatimes.com/India/SC_upholds_sacking_of_IAF_man_who_leaked_information_to_wife/articleshow/3756217.cms
25 Nov 2008, 1801 hrs IST, PTI
NEW DELHI: Disclosure of "classified information" by a defence personnel or government servant to his wife can cost him his job if she passes it on to anti-nationals, the Supreme Court held on Tuesday. "Unfortunately, today if something is classified or confidential information, it becomes most widely circulated. Even if you had disclosed it to your office it is an offence," a bench of Justices Arijit Pasayat and Mukundakam Sharma observed. The bench passed the observation while dismissing the appeal filed by Ullash Bhattacharjee, an Indian Air Force sergeant, was sacked by the Government on February 10 2003 after his wife Munmun Bhattacharjee was allegedly found leaking information to suspected anti-national elements. The IAF sergeant was working at Gwalior, Madhya Pradesh, in 2002 when his wife collected the confidential information from him and allegedly passed it on to their neighbours Sushil Kumar and Kailash, both alleged Pakistani intelligence agents. Bhattacharjee had appealed against the dismissal in the Delhi High Court which dismissed his plea following which he appealed in the apex court. Appearing for Bhattacharjee, counsel Aishwarya Bhati and Karan Singh Bhati claimed that he was innocent and the confession about his involvement in the leakage of confidential information was extracted from him under duress by the authorities.
Petition against ATS for picking a person illegally from MP
http://timesofindia.indiatimes.com/India/Petition_against_ATS_for_picking_a_person_illegally_from_MP/articleshow/3755060.cms
25 Nov 2008, 1410 hrs IST, PTI
INDORE: A habeas corpus petition has been filed in a Madhya Pradesh High Court's bench here alleging the Mumbai Anti Terrorists Squad (ATS) for illegally picking up a person in the second week of this month from the city. The petition filed by Ramswaroop Patidhar yesterday stated that the ATS picked up his brother Dilip Patidhar, living in Shanti Vihar Colony, illegally on the intervening night of November 10 and 11 saying that he should be produced before the court. Patidhar was a tenant of Ramji - one of the alleged accused in the Malegaon bomb blasts - who is absconding. Advocate of Ramswaroop, Dipak Rawal said that Dilip was an electrician and his family members were anxious with his missing and had even tried to lodge complaint with the local Kajrana police station. Ramswaroop said that he had come to know from the police station that Mumbai ATS has taken away Dilip. Rawal said family members of missing person had even petitioned the state top police officials in connection with the missing of Dilip, but to no avail.
CIC demands records of Army wives' body
http://timesofindia.indiatimes.com/India/CIC_demands_records_of_Army_wives_body/articleshow/3753407.cms
25 Nov 2008, 0356 hrs IST, TNN
CHANDIGARH: Reacting to questions surrounding functioning and funding of the Army Wives Welfare Association (AWWA) and its relationship with the Army, the Central Information Commission in New Delhi on Monday issued a notice to the defence ministry asking for AWWA balance sheets of the past 7 years. Satyanand Mishra, information commissioner, issued the notice after taking note of the statement made by Lt-Col Anil Chandra on behalf of chief of Western Command, stating AWWA is not part of the Army and that the body is not funded by it. CIC also sought a list of serving defence personnel performing "any duty in any establishment of AWWA during or after office hours for the period 2007 and 2008".
Court denies cops custody of key Malegaon accused
http://timesofindia.indiatimes.com/India/Court_denies_cops_custody_of_key_Malegaon_accused/articleshow/3752182.cms
25 Nov 2008, 0231 hrs IST, Kartikeya , TNN
MUMBAI: In a major setback for the anti-terrorism squad, a special Maharashtra Control of Organised Crime Act (MCOCA) court on Monday refused to grant it custody of key accused in the Malegaon blast case. The prosecution had pleaded for custody of three main accused — Lt Col Shrikant Purohit, 'Sadhvi' Pragya Singh Thakur and Ajay Rahirkar — till December 3 saying it wanted to interrogate them about the source of explosives used in the Malegaon blasts and certain 'hawala' deals to finance their operations. The defence argued that MCOCA was not applicable to the case, that the accused had already been tortured in custody, and the ATS had come up with no new evidence to justify their fresh questioning. "It is a big blow for the cops. Usually, police custody is granted by the courts but for it not to be given at the first remand itself is a serious matter," said former IPS officer and lawyer Y P Singh while commenting on the developments. "I have never heard of such a thing. It is very rare," he added. The rejection of the very first remand plea by special MCOCA judge Y D Shinde implies that for now until December 3 the ATS will not get a chance to question the accused or lay its hands on them. They will all be lodged in Arthur Road jail under the custody of court. The defence pointed out that MCOCA was applicable only to crimes for pecuniary gain and not to acts of terrorism. The court also seems to have been swung by the argument that the ATS had already had the accused in its custody for more than two weeks and had not come up with any new fresh substantive evidence for them to be interrogated further. The court also seems to have taken the allegations of torture seriously and is expected to pass an order on Tuesday on whether there should be a probe against officers specifically named by the accused. Police invoked the stringent MCOCA in the case on Thursday — a special law that makes confessions given to police officers admissible as evidence against them in court. However, while it sought custody under the law for the first time, defence advocate Shrikant Shivade argued that "the ATS now wants their custody only to obtain their signatures on confession statements that have already been written down". He also quoted from Lt Col Shrikant Purohit's service record to show that he was a decorated officer who had been commended for fighting terrorists in the past. "And today we are calling him a traitor?" Shivade asked. However, before that, Purohit and others told stories of brutal torture at the hands of police officers. "My hands were tied to a rod and I was beaten up so badly that I lost all sensation in them. I was abused and told that RDX will be planted at my house. I was threatened that even my wife would not be spared and I will be killed in an encounter," Purohit said.
Child Labour – Legislation Alone not Enough
Shridhar Naik November 23, 2008
http://www.chowk.com/articles/15006
Statistics presented at the International Labour Organisation (ILO) Conference in Geneva recently, reveal that India has 17 million child labourers, (children under the age of 14) the highest in the world. Unofficial estimates by UNICEF place the number at anything between 70 and 80 million, around 12 to 13 million of whom work in hazardous occupations. This gap between official figures and estimates can be attributed to the fact that most parents and employers are hesitant to include child workers in the census. More important the US in its recent annual state Department Report has placed India in its second worst category of human trafficking and child labour, for the fifth time in a row. Though in the recent past, several hundreds of child labourers have been “rescued” from small scale units, the ecstasy of NGOs, child rights activists and government authorities can at best be short lived. In the absence of an adequate rehabilitation programme or financial support, after the so called rescue operations the children are often back to square one. Clearly legal remedies are inadequate to yield the desired results. Sending the rescued children to observation homes, prior to restoring them to their parents does not really help solve the problem. It is imperative that the “rescued” children are properly rehabilitated and are assured of two square meals a day, a decent roof over their head and proper clothing, in order to avail of the benefits of a decent education.A boy, rescued form one such embroidery unit in a Bombay slum, and now roaming the streets in the vicinity, told an NGO volunteer that in the embroidery unit, at least he was assured of two meals a day. Moreover the embroidery unit meant a roof over his head and protection against the hazardous vagaries of street life.Most children in the child labour force work in small scale units, cottage industries, brick kilns, hotels or as domestic servants, agricultural labourers, or street vendors. Working conditions are generally sub human and at times even hazardous. Apart from being denied education, they are often subject to different forms of exploitation and abuse.The Government of India on its part, has always been committed to the elimination of child labour. Article 21A – “Right to Education” in the section of fundamental rights states that the state shall provide free and compulsory education to all children in the age of 6 to 14 years. Article 24 states that no child below the age of fourteen years shall be employed in any factory or mine or any other hazardous employment.The Government of India also passed the Child Labour (Prohibition and Regulation Act) 1986. The Acts prohibits the employment of children under 14 years of age in a number of listed occupations. The Act specifies a penalty for employers employing children. In October 2006, the government by law banned the employment of children as domestic helpers or in hotels canteens etc. However the acts and the laws have remained largely on paper. Enforcement or even a workable machinery to implement the policies seems to be totally lacking in the government’s efforts. For instance it is a well known fact that a large number of children in the age group of 6 to 14 years do not attend school, or drop out in between. The figure is far greater in the rural areas as compared to the urban areas. These are the children who then form part of the child labour force.A noteworthy point is that very few people have either been booked or prosecuted under the laws. In a discussion on the issue in the Lok Sabha over a Private Member’s Bill introduced by Mr. Iqbal Ahmed Saradgi, it was unanimously agreed that the problem of child labour can not be solved by legislation alone, since it was inextricably linked with poverty and illiteracy. Hence a holistic multi pronged and concerted effort is imperative to tackle this problem. This in turn implies an extensive reform process to strike at the root cause of the problem. As a first step towards dealing with the problem, the Government, in conjunction with various Child Rights NGOs and the state run schools, should put machinery in place to monitor the implementation of Government policies. A conciliatory rather than disciplinary approach needs to be adopted, using a team of counsellors whose task would be to analyse the cause of the problem, put the children and parents through counselling sessions and then arrive at a practicable solution.A cardinal cause for the increasing incidence of child labour is parental poverty. Almost all those in question are children of unskilled labourers subsisting on very low family income levels. The parents, who often struggle for long hours in sub human conditions, are unlikely to spend time and money to further the child’s education. Coupled with this is the problem of large families and consequently more mouths to feed. Hence, a working child means additional income, however marginal. Successful family planning programmes in different parts of the country have shown in many cases that child labour declines as the birth rate drops.The Government initiated the Sarva Shikshan Abhiyan (Education for All) in sink with Article 21, has remained a non starter. A Government decree announcing free education programme does not exempt parents and guardians from incurring related costs like transport, books, clothing, which they can not afford.Another deterrent in the success of the Sarva Shikshan Abhiyan is the pathetic state of the quality of education in government run schools. Over crowded classrooms, improper ventilation, indifferent and apathetic teachers are some of the rampant problems that need to be dealt with. Moreover, the drop out rate is very high, up to 50% ion several cases. Merely establishing schools with brick and mortar in a bid to stamp out illiteracy is definitely not a feasible solution. What the children actually need is motivation and some incentive to attend school regularly. An initiative to be considered is some form of stipendiary or financial support to cover minimum expenses, plus decent meals. Priority should also be given to improving the quality of education and the facilities. Here the corporate sector should be roped in to foster a government – corporate joint initiative to better the quality of education in state run schools so that the maxim of “learning is fun” is adhered to, and the drop out rate minimized.Further, lack of proper credit facilities often compels the labourers to fall into the debt trap of local moneylenders at exorbitant rates of interest. As a result, a large number of children particularly in the rural areas find themselves forced into bonded labour. Sadly, the Act abolishing bonded labour, passed in 1976, has met the same fate as all other legislations and constitutional safeguards.One way out of this situation is that various state governments in conjunction with NGOs consider setting up credit societies to reach this stratum of society. Such credit societies if established properly, would in the long run also automatically act as a safeguard against under exploitation of its members. A major adverse impact of child labour is that it creates a cycle of poverty. The child labourer remains illiterate and can at best be suited for causal labour in his or her adulthood. This ends up in the continuation of the cycle of poverty and child labour to the next generation. It is therefore the responsibility of the government and all the agencies involved to ensure that each succeeding generation is able to rise above the problem.The priority of the government here is to ensure that the basic needs of the poor are fulfilled before the problem of child labour is directly tackled. If poverty is addressed, the incidence of child labour will automatically decline. Otherwise rescued child labourers will be back on the streets or worse still it could be a return to back breaking work in another part of the country; situations that need to be avoided at all costs.The writer is a free lance journalist and can be contacted at shridharnaik@gmail.com
By TIOL News Service
http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8197
NEW DELHI, NOV 25, 2008 : REGULAR power is the lifeline for industry. But, given the hiatus between what India produces and what is demanded, a decision to go for a captive power generation unit has of late become a common management tool. But the major question is: In the absence of a third party sale, what would be the acceptable sale price to calculate the profit and whether it would constitute business within the meaning of Explanation (iv) of to Sec 115JA as the main line of activity of the assessee is not the business of power generation? To find their answers let's go to the latest decision of the Delhi High Court.
First, the matrix of facts
The assessee has four divisions namely Shriram Fertilisers and Chemicals, Shriram Cement Works, Shriram Alkalies and Chemicals and the textile division. In addition, the assesses also has four industrial undertakings which are engaged in captive power generation (CCPs). Three out of the four CPPs are situated at Kota, which generate power equivalent 10 MW, 30 MW and 35 MW respectively. The fourth CPP, at Bharuch, which is situated in the State of Gujarat, generates 18 MW power. For the purposes of setting up CPPs the assesses has taken requisite permission from the Rajasthan State Electricity Board as well as the Gujarat State Electricity Board. These permissions have been referred to by the authorities below. A reference in this regard has been made to the orders issued by the RSEB dated 23.4.1967, 18.6.1982 and 16.2.1993 and the orders of GSEB dated 22.11.1995 as modified by its letter dated 31.1.1996.
It is in this background that on 29.11.1997 the assessee had filed a return declaring a loss of Rs 43,31,74,077/-. It is important to bring to the fore at this stage that, in a note attached to the return the assessee had disclosed the profit and loss derived from each of the CPPs, and also, indicated the formula adopted for computation of the profit derived from the respective CPPs. Briefly, the method for computation of profit and loss indicated in the note appended to the return was-the rate per unit as charged by the respective State Electricity Board for transfer of power, reduced by 7%, on account of absence of transmission and distribution losses (wheeling charges). From the figure obtained by applying the reconfigured rate per unit, deduction was made towards specific expenses, as well as, common expenses attributable to each CPP so as to arrive at the figure of profit/loss of each CPP. In the note appended to the return of the assessee the break up of total profit in the sum of Rs.41,88,50,862/- is detailed out in the following manner:-
Captive Power Plant
Units generated
Profit derived
Kota
35MW
18,41,17,747
30MW
19,26,70,899
10MW
7,70,25,351
Bharuch
18MW
(-) 3,49,63,135
Total profit from generation of power
41,88,50,862
The assessee however, for the purposes of provisions of Section 115JA of the Act based on its books of accounts, disclosed income in the sum of Rs 86,33,382/-. By an intimation dated 07.07.1998, the Revenue processed the return filed by the assessee under the provisions of Section 143(1)(a) of the Act. On 30.3.1999, the assessee filed revised return declaring a loss of Rs 39,36,71,056/-. Interestingly though, for the purposes of Section 115JA of the Act, the assessee continued to show its income as Rs 86,33,382/-. The case of the assessee was taken up by the Assessing Officer for scrutiny. A notice under Section 143(2) of the Act was issued. During the course of scrutiny, the Assessing Officer raised a query with regard to the deduction of a sum of Rs 41,88,50,862/- from book profit by the assessee while, computing tax under Section 115JA of the Act. In response to the query, the assessee informed that the said amount has been reduced from the book profit as this amount was profit derived from CPPs set up by the assessee with the permission of the RSEB and the GSEB. The deduction from book profit was justified by taking resort to explanation (iv) to Section 115JA of the Act.
The AO rejected the claim of the assessee and added back the deduction claimed, by the assessee, from book profit, broadly on the following grounds:-
(i) the Memorandum and Articles of Association did not permit the assessee to engage in the business of generation of power;
(ii) the permission granted by the State Electricity Boards prohibited sale of energy so generated or supply of energy free of cost to others;
(iii) the sanction given by RSEB was only for setting up of turbo generator and not for parallel generation and;
(iv) lastly, the assessee was in the business of manufacturing fertilizer, for which purpose, it had received a subsidy as the urea manufactured was a controlled and consequently, a licensed item being, subject to the Retention Price Scheme of Government of India which, mandated that since, sale price and the distribution of urea was fully controlled the manufacturer would be allowed a subsidy in a manner which permitted him to earn a return of 12% on his net worth after taking into account the cost of raw material and capital employed, which included both the fixed and variable cost. From this it was concluded that as the assessee had received a subsidy from the Government of India for manufacture of urea and, as was, apparent from the balance sheet and profit and loss account filed by the assessee, the CPPs, were a part of the fertilizer, cement, and caustic soda plants. The CPPs were included in the aforesaid plants and thus, it could not be said that the income derived from the said plants, keeping in view the subsidy received by the assessee under the Retention Price Scheme, was in any way, income derived from generation of power and;
(v) lastly, the assessee is not in the business of generation of power and that the assessee is not deriving any income from business of generation of power. A distinction was drawn between an industrial undertaking generating power and one which was in the business of generating power. The assessee's case was likened to an undertaking which is generating power but is not in the business of generating power, and hence not deriving income from generation of power.
The assessee being aggrieved, preferred an appeal to the Commissioner of Income Tax (Appeals). The CIT(A) allowed the appeal and the Tribunal simply upheld the CIT(A) order.
Now the issue is before the High Court which has observed that,
++ The fallacy in the Revenue's argument is self evident as it has proceeded on the basis that the words and expressions used in Explanation (iv) to Section 115JA are to be confined to a situation which involves a commercial transaction with an outsider.
++ The profit derived by the assessee on transfer of energy from its CPPs to its other units was "embedded" in the ultimate profit earned on sale of its final products. The assessees by taking resort to Explanation (iv) to Section 115JA has sought to apportion, and consequently, reduce that part of the profit which is derived from transfer of energy from its CPPs in arriving at book profits amenable to tax under Section 115JA of the Act.
++ assessee's CPPs can as a matter of principle derive profits which is in point of fact embedded in the ultimate profit earned on the sale of the final product.
++ Is assessee engaged in the business of power generation: Based on the findings returned both by the CIT(A), as well as, the Tribunal, it cannot be said that the assessee is not engaged in the business. As rightly held by the Tribunal, the assessee had been authorised by the State Electricity Boards to generate electricity. The generation of electricity has been undertaken by the assesses by setting up a fully independent and identifiable industrial undertaking. These undertakings have separate and independent infrastructures, which are managed independently and whose accounts are prepared and maintained separately and subjected to audit.
++ The term ''business" which prefixes generation of power in Clause (iv) of the Explanation to Section 115JA is not limited to one which is prosecuted only by engaging with an outside third party. The meaning of the word 'business' as defined in Section 2(b) of the Act includes any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture. The definition of 'business', which is inclusive, clearly brings within its ambit the activity undertaken by the assesses, which is, captive generation of power for its own purposes.
++ The approach of the CIT(A) and, consequently the Tribunal, both in law and on facts cannot be faulted with. Wa are of the opinion that the Assessing Officer clearly erred in holding that, since the main business of assessee is of manufacture and sale of urea it could not be said to be in the business of generation of power in terms of Explanation (iv) to Section 115JA of the Act.
++ the assessee is entitled to reduce from its book profits, the profits derived from its CPPs, in determining tax payable for the purposes of Section 115JA of the Act.
The Bench also concurs with the line of reasoning adopted both by the CIT(A), as well as, the Tribunal as regards computation of sale price and consequent profits in terms of Explanation (iv) of Section 115JA of the Act. Since the CIT(A) has categorically recorded the facts with regard to computation. It would be neither fair nor would it be in the interest of justice if we were to remand the matter as requested by the Revenue, at this stage, for the purposes of computation of profits in terms of Explanation (iv) under Section 115JA of the Act.
By TIOL News Service
http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8196
NEW DELHI, NOV 25, 2008 : THIS is the dispute which has caused undue delay in some Additional Commissioners in Customs and Central Excise getting promoted as Commissioners.
The Union of India had prepared a seniority list in 2004 of all the Assistant Commissioners, that is, Assistant Commissioners who came from the stream of direct recruits and those who came by way of promotion from the grade of Appraiser and Superintendent. This seniority list appears to have been the subject matter of a challenge and was struck down. The Union of India also prepared another integrated seniority list published on 28th April, 2005. The integrated 2005 seniority list was operated for making promotions to the post of Joint Commissioner. It appears that today this 2005 seniority list is the only existing or operative seniority list.
In respect of one case taken up by the Madras High Court, judgment was delivered on 21st April, 2006 wherein certain principles were laid down with respect to the fixation of seniority of Appraisers and Superintendents. The decision rendered by the Madras High Court was taken up to the Supreme Court in Chennai Customs Appraising Officers Association v. Union of India and Others - 2008-TIOL-109-SC-SERVICE. The Supreme Court approved the principles laid down by the Madras High Court.
The sum and substance of the decision of the Supreme Court is two fold: firstly, the seniority of Appraisers and Superintendents is required to be redrawn on certain principles; secondly, the seniority of Appraisers and Superintendents is again open till it is redrawn and finalized. The effect of this will, of course, be felt up the ladder.
While litigation on seniority was in full swing in several judicial forums, the Union of India/Central Board of Excise and Customs decided to fill up 48 vacancies in the grade of Commissioner of Customs and Central Excise. From the note put up before the Departmental Promotions Committee it appears that the Union of India decided, on the basis of some calculations made by it, that 36 vacancies are to be filled up from the category of directly recruited Assistant Commissioners while 12 vacancies fall to the category of promotee Assistant Commissioners (promoted from the grade of Appraisers and Superintendents). It also transpires from a reading of the note that since there was no dispute about the seniority of the directly recruited Assistant Commissioners, the DPC was requested to make recommendations to fill up only those 36 vacancies. With regard to the 12 vacancies which fell to the category of promotee Assistant Commissioners, the matter was kept in abeyance pending finalization of the inter se seniority of Appraisers and Superintendents. In other words, the integrated seniority list of 2005 was given a partial go by. From the note it also appears that one of the reasons for holding back the filling up of 12 vacancies is that a case for contempt of Court was pending before the Madras High Court (since decided).
The DPC met soon thereafter and made its recommendations on 23rd June, 2008 concerning promotions of directly recruited Assistant Commissioners to the grade of Commissioner of Customs and Central Excise. None of the promotee Assistant Commissioners was considered for promotion.
Feeling upset with this situation, the promotee Assistant Commissioners (actually now Additional Commissioners) preferred O.A. No. 1366/2008 before the Principal Bench of the Tribunal. The prayer made by the promotee Assistant Commissioners/Additional Commissioners was for a declaration to the Union of India to follow the draft seniority list of 2005 in its entirety, and without excluding them from consideration. It was also prayed that the proceedings of the DPC held on 23rd June, 2008 be set aside to the extent that the DPC considered the case of persons who were junior to the promotee Assistant Commissioners/Additional Commissioners. The third important prayer was for a direction to the Union of India to hold a review DPC and consider the case of the promotee Assistant Commissioners/Additional Commissioners for promotion to the grade of Commissioner of Customs and Central Excise before any of their juniors from the draft 2005 seniority list are considered.
By the impugned order, the Tribunal granted a blanket stay of the recommendations of the DPC with the result that even those directly recruited Assistant Commissioners (now Additional Commissioners) who could be promoted as Commissioner of Customs and Central Excise were injuncted from holding that post. The impugned order passed by the Tribunal on 7th August, 2008 was subsequently modified by another order on 17th October, 2008 whereby the Union of India was permitted to promote those directly recruited Assistant Commissioners to the grade of Commissioner, who were senior to the promotee Assistant Commissioners before the Tribunal.
While there is a partial modification of the impugned order passed by the Tribunal on 7th August, 2008 the substantive grievance raised by the promotee Assistant Commissioners before the Tribunal continues to remain, which is that they were not considered for promotion to the grade of Commissioner of Customs and Central Excise.
The High Court observed,
the public interest requires that all the posts of Commissioner of Customs and Central Excise should be filled up by the Union of India. There is no doubt that that grade consists of senior posts in the Government of India and it does not serve anybody’s purpose whatsoever if 48 of these posts lie vacant all over the country (as a result of the impugned order). Similarly, it does not serve anybody’s purpose if only 8 out of these 48 posts are filled up (as a result of order dated 17th October, 2008). The more appropriate course of action would be endeavouring to fill up all the 48 posts so that administrative efficiency does not suffer.
It appears inequitable that until the seniority list is finalized on the principles accepted by the Supreme Court (which may take any amount of time), a vacuum should exist in respect of the posts of Commissioner of Customs and Central Excise from the promotee Assistant Commissioner category. To avoid such a vacuum, which really does not serve any public purpose, it would be appropriate if the 2005 seniority list is actually given full effect to on an ad-hoc basis, subject to implementation of the orders of the Supreme Court.
Rule 24 of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 makes it quite clear that a senior person cannot be ignored for consideration for promotion if his junior is considered. In the present case, there is admittedly no dispute that some persons junior to the promotee Assistant Commissioners fall in the category of directly recruited Assistant Commissioners who have not only been considered for promotion but have actually been selected. This is contrary to the plain language of Rule 24 of the aforesaid Rules.
So the High Court held:
(i) The Union of India should convene a DPC within a period of one month from today and in any case on or before 31st December, 2008 and consider the promotee Appraisers and Superintendents (who are now Additional Commissioners) for promotion to the grade of Commissioner of Customs and Central Excise on the basis of the 2005 seniority list adverted to above.
(ii) The Union of India should go ahead and promote those already recommended for promotion to the grade of Commissioner of Customs and Central Excise by the DPC held on 23rd June, 2008 but the promotions so made will be purely ad hoc in view of the Office Memorandum dated 30th March, 1988 which deals with revision of the seniority list and provides that ad hoc arrangements should be made instead of delaying regular promotions. All promotions whether of directly recruited Assistant Commissioners or promotee Assistant Commissioners/Additional Commissioners will be on an ad hoc basis and subject to final orders passed by the Tribunal in O.A.No.1366/2008.
The High Court requested
(i) the Chairman of the Central Administrative Tribunal to look into the matter and transfer cases similar to the present one pending in any other Bench of the Tribunal to one central place so that there is no conflict of decisions. This is only a request and not a direction.
(ii) the Bench hearing O.A.No.1366/2008 to expedite the disposal of the Original Application pending before it. We have no doubt that all the parties involved in this litigation will fully co-operate with the Tribunal for an early resolution of the dispute.
By TIOL News Service
http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8195
CHENNAI, NOVEMBER 25, 2008 : AS per Section 65 (30a) “construction of complex” means :-
• Construction of a new residential complex or a part thereof; or
• completion and finishing services in relation to residential complex such as glazing, plastering, painting, floor and wall tiling, wall covering and wall papering, wood and metal joinery and carpentry, fencing and railing, construction of swimming pools, acoustic applications or fittings and other similar services; or
• repair, alteration, renovation or restoration of, or similar services in relation to, residential complex;
Residential Complex has been defined under Section 65 (91a) as
“Residential complex” means any complex comprising of—
• a building or buildings, having more than twelve residential units;
• a common area; and
• any one or more of facilities or services such as park, lift, parking space, community hall, common water supply or effluent treatment system,
located within a premises and the layout of such premises is approved by an authority under any law for the time being in force, but does not include a complex which is constructed by a person directly engaging any other person for designing or planning of the layout, and the construction of such complex is intended for personal use as residence by such person.
It appears that there is an opinion among many that in case where the individual houses are constructed in what they call as “gated communities”, such construction service is also taxable under the above service as it has “more than twelve residential units”
In the present case before the Tribunal, the above question arose as to whether such construction of individual houses is a taxable service. The CESTAT has referred to the definitions as mentioned above and held that for levy of service tax, it should be a residential complex comprising more than 12 residential units. The appellants constructed individual residential houses, each being a residential unit. The law makers did not want construction of individual residential units to be subject to levy of service tax. The Tribunal was also not impressed with the plea that, from 1.6.2007, an activity of the one in question might be covered by the definition of ‘works contract'.
Before parting:
It appears that the CESTAT has not referred to the following explanation while examining the provisions of Sec 65(91a)
Explanation . — For the removal of doubts, it is hereby declared that for the purposes of this clause, —
(a) “personal use” includes permitting the complex for use as residence by another person on rent or without consideration;
(b) “residential unit” means a single house or a single apartment intended for use as a place of residence.
Allegations are purely conjectural and ipse dixit in nature - It is trite law that it is for Revenue to substantiate allegations and not for assessee to prove the contrary - Revenue loses Rs 5.6 Cr Central Excise undervaluation case at hands of Tribunal
http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=8194
By TIOL News Service
MUMBAI, NOV 25, 2008 : IPSE DIXIT– He said it himself, i.e., there is no other authority for it. [The Law Lexicon by P.Ramanatha Aiyer]
It is so easy to raise a demand notice alleging undervaluation, confirm the same with lots and lots of penalty and interest and then let the Tribunal decide the fate of the same. Probably, such demand notices invoking extended period are issued under the umbrella of ‘safeguarding government revenue’ when either the Audit or the CERA or the Anti evasion authorities highlight the enormity of the alleged duty evasion. And the moment the same is confirmed by the adjudicating authority, it is job well done!
One such demand notice for the period 01.07.2000 to 07.01.2005 came to be issued to an assessee who is engaged in the manufacture and sale of P&P medicaments to M/s USV Limited, Mumbai and one M/s Lifeon Paediatrics Ltd. (now merged with USV Limited) . Revenue has alleged that the expenses such as storage, outward handling, distribution, marketing and other expenses, which would form part of the intrinsic value of the said products had been incurred by the said buyers and that these expenses would have otherwise formed part of the assessable value, had the appellants (brand owner) directly engaged themselves in the marketing of the said product. It was further alleged that there was a wide difference between the price claimed as assessable value and the wholesale price at which they were sold by the buyers in wholesale and that the appellants had suppressed the above fact from the Department namely that their buyers had incurred further expenses for the distribution, marketing, etc. for these products.
All said and done, the adjudicating authority had no qualms in upholding the charges leveled and confirming a duty demand of Rs.5.62 crores against the assessee along with penalty and interest.
The assessee is before the Tribunal contending that the sales were at arm’s length and on principal to principal basis; once they sold the said goods to their buyers, they were not concerned with any further expenditure which may have been incurred by the said buyers in selling the said medicaments.
The Tribunal after hearing both sides and on perusal of records observed -
Although allegation leveled is that the appellant’s buyers have incurred expenses on account of several heads “such as storage, outward handling, distribution, marketing and other expenses”, the specific heads of expenditure have not been particularized in the Show Cause notice.
It was incumbent upon the Revenue to specify the expenditure incurred by the appellants under each specific head, pointing out the amount of differential duty payable in respect of each such head.
It was also incumbent upon the Revenue to establish with cogent evidence that such expenditure has, in fact, been incurred by the said buyers on behalf of the appellants but no material evidence is forthcoming from the side of the Revenue on both the counts.
The allegation of the Revenue is, therefore, purely conjectural and ipse dixit in nature; it is for the Revenue to establish that the statutory definition to the term “transaction value” and provisions of Rule 6 of Valuation Rules 2000 are applicable to the facts of the appellants case by producing evidence in this behalf, which has not been done.
The Commissioner, in his findings, has held that the transactions between the appellants and the buyers were governed by the provisions of Section 4(1)(a) of the Central Excise Act, 1944 and that these were on principal to principal basis. In that event if the said buyers were to incur an expenditure whatsoever after purchasing the said medicaments from the appellants on their own account, to further their own sales, it cannot be held that these expenses had been incurred on behalf of the appellants.
It is trite law that it is for the Revenue to substantiate its allegations and not for the assessee to prove the contrary.
The Tribunal also found something interesting in the Annexure ‘A’ to the demand notice which indicated the calculation of the differential Central Excise duty, and that is -
It appears that the Revenue has assumed that the entire difference between the Maximum Retail Price (MRP) at which the goods were sold and the selling price of the appellants represented only the expenditure incurred by the buyers on account of the various selling and distribution expenses on behalf of the appellants.
The Bench, therefore, observed –
It is common knowledge that the MRP comprehends several downstream sale elements such as wholesaler’s margins, retailer’s margins, the margins of the said purchasers, as also the elements of local taxes, freight etc., all of which will form part of the MRP.
It is not correct to assume that the entire difference between the appellant’s sale price to their buyers and the MRP represented only the expenditure incurred by the said buyers.
On the Commissioner’s bombastic observations that a “novel modus operandi” was adopted by the appellant for evading duty, the Tribunal noted -
These observations of the Commissioner lack substance once he has held that the transactions between the buyers and the appellants are on principal to principal basis.
On the casual attitude of the adjudicating authority that ‘though it is customary to pin point an exact quantum of duty liability in the show cause notice yet it would not be great shortcoming of the notice so long as the ways and means of working the differential value is evident from the notice itself’, that is to say, the transaction value has been arrived at by deducting element of duties and taxes from the MRP, the Bench expressed its disagreement with these observations and held –
It is fundamental that a show cause notice is required to be extremely exact in making specific and cogent allegations, in pin pointing and producing cogent evidence, in support thereof, and finally in setting out the exact calculations of duty together with the evidence to support such calculations, when it proposes recovery thereof from the assessee.
Yet another reason given by the adjudicating authority for confirming the demand notice that ‘there was wide difference between the price claimed as assessable value and the wholesale price at which the goods were sold by the buyers’, the Tribunal commented thus –
If there existed difference between the prices claimed as the assessable value by the appellants and the wholesale price at which the buyers sold the goods, it was for the Revenue to have established that the said difference represented first, expenditure on account of the heads set out in the show cause notice, and second, the same w as incurred on behalf of the appellants, neither of which has been done in this case.
Holding that it was wholly untenable on the part of the Commissioner to have upheld the demand of Rs.5.62 Crores raised in the show cause notice, the Tribunal set aside the order and allowed the appeal.
.
About Me
- Kamal Kumar Pandey (Adv. Supreme Court of India)
- Lawyer Practising at Supreme Court of India. Court Experience: Criminal, Civil & PIL (related to Property, Tax, Custom & Duties, MVAC, insurance, I.P.R., Copyrights & Trademarks, Partnerships, Labour Disputes, etc.) Socio-Legal: Child Rights, Mid Day Meal Programme, Sarva Shiksha Abhiyaan, Women Rights, Against Female Foeticide, P.R.Is, Bonded Labour, Child labour, Child marriage, Domestic violence, Legal Literacy, HIV/AIDS, etc. Worked for Legal Aid/Advise/Awareness/Training/Empowerment/Interventions/Training & Sensitisation.
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