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Rejecting value declared – factors to be considered. – Supreme Court

Commissioner of Customs, Vishakhapatnam Vs. M/s. Aggarwal Industries Ltd. JUDGMENT D.K. JAIN, J.: SC October 17, 2011.

This fact is also proved by the actual amount paid to the supplier. There is no allegation of the supplier and importer being in collusion.

It is also not the case of the revenue that the transaction entered into by the respondent was not genuine or under-valued. Nor was there a mis-description of the goods imported. It is also not the case of the revenue that the subject imports fell within any of the situations enumerated in Rule 4(2) of CVR 1988. It is manifest from the show cause 15notice, extracted in para 3 supra, that the contract value was not acceptable to the Adjudicating Authority in terms of Section 14(1) of the Act read with Rule 4 of CVR 1988 merely because by the time actual shipment took place in August 2001, international price of the oil had increased drastically.

No other reason has been ascribed to reject the transaction value under Rule 4(1) except the drastic increase in price of the commodity in the international market and the difference in price in the invoices in relation to the goods imported under contracts entered by the respondents in the month of August 2001.

In our opinion, the import instances relied upon by the revenue could not be treated as instances indicating contemporaneous value of the goods because contracts for supply of the goods in those cases were entered into almost after a month from the date of contract in the present cases, more so, when admittedly there were drastic fluctuations in the international price of the commodity involved. We are, therefore, of the opinion that the revenue was not justified in rejecting the transaction value declared by the respondents in the invoices submitted by them.

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CESTAT Final Order not produced to the Supreme Court – Case dismissed.

Commissioner of Central Excise, Delhi Vs. M/s. Minimax Industries [Civil Appellate Jurisdiction Civil Appeal No. 1545 of 2012 (@ Special Leave Petition (C) No.26078 of 2011)]  http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1830

O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order passed by the High Court of Delhi in CEAC No.12/2010 dated 17.01.2011.

3. The Adjudicating Authority, while deciding the issue whether exemption should be granted to the Respondent - Assessee under Notification No.1/93 dated 28.02.2003 had denied the claim of the Assessee. Aggrieved by that, the assessee had carried the matter by filing an appeal before the First Appellate Authority. The appeal was dismissed by the First Appellate Authority. Against the said order, the Assessee had carried the matter before the Central Excise & Service Tax Appellate Tribunal (for short 'CESTAT'). The CESTAT, by its order dated 12.01.2010 has reversed the findings and the conclusions reached by the Adjudicating Authority as well as the First Appellate Authority.

4. Aggrieved by the same, the Revenue had approached the High Court in C.E.A.C. No.12/2010. The High Court, while affirming the view of the CESTAT has rejected the appeal filed by the Revenue. Aggrieved by the same, the Revenue is before us in this appeal.5. After hearing the matter for some time, we notice that the Revenue has not produced the order passed by CESTAT dated 10.01.2010 and the only order produced by them is the interim passed by CESTAT and not the final orders against which the appeal had been preferred by the Revenue before the High Court.6. In the absence of the order passed by the CESTAT on merits, which has been affirmed by the High Court, it would not be proper for us to decide the lis between the parties.

Further, we would be handicapped while appreciating the stand of the Assessee as well as the Revenue, while appreciating the legal issues that the parties would urge before us. In that view of the matter, we reject the appeal solely on the ground that the Revenue has not filed the appropriate papers before this Court. The appeal is disposed of accordingly. Ordered accordingly.

...................J. (H.L. DATTU)

...................J. (ANIL R. DAVE)

NEW DELHI;

FEBRUARY 02, 201

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There could be no expression without these rights. Liberty of thought enables liberty of expression. Belief occupies a place higher than thought and expression. Belief of people rests on liberty of thought and expression. Placed as the three angles of a triangle, thought and expression would occupy the two corner angles on the baseline while belief would have to be placed at the upper angle. Attainment of the preambled liberties is eternally connected to the liberty of expression. (Ref. Preamble, The Spirit and Backbone of the Constitution of India, by Justice R.C. Lahoti).

14. Any action taken by a public authority which is entrusted with the statutory power has, therefore, to be tested by the application of two standards -first, the action must be within the scope of the authority conferred by law and, second, it must be reasonable. If any action, within the scope of the authority conferred by law is found to be unreasonable, it means that the procedure established under which that action is taken is itself unreasonable.

This was also noted in the case of Madhav Hayawadanrao Hoskot v. State of Maharashtra (1978) 3 SCC 544 where this Court took the following view: "Procedure established by law are words of deep meaning for all lovers of liberty and judicial sentinels."

22. Further, there is a direct and not merely implied responsibility upon the Government to function openly and in public interest. The Right to Information itself emerges from the right to freedom of speech and expression. Unlike an individual, the State owns a multi-dimensional responsibility. It has to maintain and ensure security of the State as well as the social and public order. It has to give utmost regard to the right to freedom of speech and expression which a citizen or a group of citizens may assert.

But we cannot simply balance the two interests as if they are of equal weight. Our commitment of freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a "spark in a power keg"."

23. Where the Court applies the test of 'proximate and direct nexus with the expression', the Court also has to keep in mind that the restriction should be founded on the principle of least invasiveness i.e. the restriction should be imposed in a manner and to the extent which is unavoidable in a given situation. The Court would also take into consideration whether the anticipated event would or would not be intrinsically dangerous to public interest.

28. The courts must bear a clear distinction in mind with regard to 'restriction' and 'prohibition'. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a 'prohibition' is imposed, besides satisfying all the tests of a reasonable 'restriction', it must also satisfy the requirement that any lesser alternative would be inadequate.

Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:-"75. Three propositions are well settled:

i. 'restriction' includes cases of 'prohibition';

ii. the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and

iii. whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the 22 ambit of the right and the effect of the restriction upon the exercise of that right....."

29. The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution.

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22. In Deputy Commissioner Sales Tax (Law), Board of Revenue (Taxes), Ernakulam Vs. Pio Food Packers22, a three Judge Bench of this Court, while deciding whether conversion of pineapple fruit into pineapple slices for sale in sealed cans amounted to manufacture, observed as follows:- "4......Commonly, manufacture is the end result of one or more processes through which the original commodity is made to pass.

The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage. With each process suffered, the original commodity experiences a change. But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognized as a new and distinct article that a manufacture can be said to take place.

Where there is no essential difference in identity between the original commodity and the processed article it is not possible to say that one commodity has been consumed in the manufacture of another. Although it has undergone a degree of processing, it must be regarded as still retaining its original identity. (Emphasis supplied by us)"  Commissioner of Central Excise Bangalore-II Vs. M/s. Osnar Chemical Pvt. Ltd.  [Civil Appeal Nos. 4055-4056 of 2009]  [Civil Appeal No. 5633 of 2009 and Civil Appeal No. 7142 of 2010]  SC JANUARY 13, 2012

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Extract of Judgement of Hon’ble Supreme Court of India dated 13.02.2012

In the aforesaid decision in the case of Collector of Customs, Bombay v. J.K. Synthetic Limited (supra) this Court took the view that where there was evidence on record that show the intended use of the material, the benefit of exemption could be granted. In a subsequent decision in the case of Collector of Central Excise, Jaipur v. J.K. Synthetics [2000 (120) ELT 54 (SC)] = [(2000) 10 SCC 393] a three-Judge Bench of this Court took the view that if there was substantial compliance of the procedure laid down in Chapter X of the Rules, exemption could be granted.

In the case of Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal [2010 (260) ELT 3 (SC)] = [(2011) 1 SCC 236] a Constitution Bench of this Court considered the decisions of this Court in Thermax Private Limited v. The Collector of Customs (Bombay), New Customs House (supra) and Collector of Central Excise, Jaipur v. J.K. Synthetics (supra) and held that a provision for exemption, concession or exception, as the case may be, has to be construed strictly and if the exemption is available only on complying certain conditions, the conditions have to be complied with. In the aforesaid decision, the Constitution Bench further held that detailed procedures have been laid down in Chapter X of the Rules so as to curb the diversion and utilization of goods which are otherwise excisable and the plea of substantial compliance or intended use therefore has to be rejected. http://164.100.9.38/judis/bitstream/123456789/21042/1/38970.pdf

 

M/s. Indian Oil Corporation Ltd. Vs. Commissioner of Central Excise, Vadodara  [Civil Appeal No. 4530-4532 of 2005] M/S Indian Oil Corporation Ltd. Vs. Commissioner of Central Excise, Lucknow [With Civil Appeal No. 8048 of 2004]  January 13, 2012. SC  http://164.100.9.38/judis/bitstream/123456789/21042/1/38970.pdf

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In the present case, as aforesaid, each machine is tailor made according to the requirements of individual customers. If the results are not in conformity with the order, then the machine loses its marketability and is of no use to any other customer. Thus, the process of manufacture will not be said to be complete till the time the machines meet the contractual specifications and that will not be possible unless the machines are subjected to individual testing.

Even though the revenue has alleged that the process of manufacture is complete as soon as the machine is assembled, yet it has not discharged the onus of proving the marketability of the machines thus assembled, prior to the stage of testing. Moreover, as has been held in the case of Hindustan Zinc Ltd. Vs. Commissioner of Central Excise, Jaipur, the burden of proving whether a 20 (2005) 2 SCC 662; particular product is marketable or not is on the department and in the absence of such proof it cannot be presumed to be marketable.

In the absence of the revenue having adduced any such evidence or contorted the assessee's claim that the machines cannot be sold unless testing is done with some alternative evidence as to their marketability, the stand of the revenue cannot be accepted.  SC 13 January, 2012 -  M/s. Flex Engineering Limited Vs. Commissioner of Central Excise [Civil Appeal No. 7152 of 2004]  [Civil Appeal No.429 of 2012 arising out of S.L.P. (C) No. 875 of 2008)] [Civil Appeal No.430 of 2012 arising out of S.L.P. (C) No. 10759 of 2010)] [Civil Appeal No.431 of 2012 arising out of S.L.P. (C) No. 6501 of 2011)] D.K. JAIN, J.:

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Refund – Interest - 15. In view of the above analysis, our answer to the question formulated in para (1) supra is that the liability of the revenue to pay interest under Section 11BB of the Act commences from the date of expiry of three months from the date of receipt of application for refund under Section 11B(1) of the Act and not on the expiry of the said period from the date on which order of refund is made. SC October 21, 2011  Ranbaxy Laboratories Ltd. Vs. Union of India & Ors – by .J. (D.K. JAIN) & J. (ANIL R. DAVE)  http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1444

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14. In the present case, it is clear that the process of repair and maintenance of the machinery of the cement manufacturing plant, in which M.S. scrap and Iron scrap arise, has no contribution or effect on the process of manufacturing of the cement, which is the excisable end product, as since welding electrodes, mild steel, cutting tools, M.S. Angles, M.S. Channels, M.S. Beams etc. which are used in the process of repair and maintenance are not raw material used in the process of manufacturing of the cement, which is the end product.

The issue of getting a new identity as M.S. Scrap and Iron Scrap as an end product due to manufacturing process does not arise for our consideration. 18 The repairing activity in any possible manner cannot be called as a part of manufacturing activity in relation to production of end product. Therefore, the M.S. scrap and Iron scrap cannot be said to be a by-product of the final product.  SC M/s. Grasim Industries Ltd. Vs. Union of India  SC October 13, 2011 J. [H.L. DATTU] J. [CHANDRAMAULI KR. PRASAD]

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Includes: in order to enlarge the meaning of words or phrases occurring in the body of the statute;/ means

16. In South Gujarat Roofing Tiles Manufacturers Assn. & Anr. v. State of Gujarat & Anr., (1976) 4 SCC 601, this Court has held thus:"Though "include" is generally used in interpretation clauses as a word of enlargement, in some cases the context might suggest a different intention. Pottery is an expression of very wide import, embracing all objects made of clay and hardened by heat. If it had been the legislature's intention to bring within the entry all possible articles of pottery, it was quite unnecessary to add an explanation. We have found that the explanation could not possibly have been introduced to extend the meaning of potteries industry or the articles listed therein added ex abundanti cautela. It seems to us therefore that the legislature did not intend everything that the potteries industry turns out to be covered by the entry.

What then could be the purpose of the explanation. The explanation says that, for the purpose of Entry 22, potteries industry "includes" manufacture of the nine articles of pottery named therein. It seems to us that the word "includes" has been used here in the sense of 'means'; this is the only construction that the word can bear in the context. In that sense it is not a word of extension, but limitation; it is exhaustive of the meaning which must be given to potteries industry for the purpose of Entry 22. The use of the word "includes" in the restrictive sense is not unknown.

17. It goes without saying that interpretation of a word or expression must depend on the text and the context. The resort to the word "includes" by the legislature often shows the intention of the legislature that it wanted to give extensive and enlarged meaning to such expression. Sometimes, however, the context may suggest that word "includes" may have been designed to mean "means". The setting, context and object of an enactment may provide sufficient guidance for interpretation of the word "includes" for the purposes of such enactment."

20. Principles of Statutory Interpretation (12th Edition, 2010) by Justice G.P. Singh, at pg. 181, has discussed in detail the different connotations of the word 'include' while laying stress on the restrictive as well as exhaustive explanation of the word 'inclusive' thus: "The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used those words or phrases must be construed as comprehending, not only such things, as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word 'include' is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions used. It may be equivalent to 'mean and include' and in the case it may afford an exhaustive explanation of the meaning which for the purposes of the Act must invariably attached to those words or expressions. Thus the word include may in certain contexts be a word of limitation."  Commissioner of Customs, New Delhi Vs. M/s. Caryaire Equipment India Pvt. Ltd. [Civil Appeal No. 6404 of 2003] FEBRUARY 14, 2012 SC

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Processor / Job worker

"We, therefore, do not agree that Ujagar Prints (III) would apply even to a processor who is not independent and, as is alleged in this case, the merchant manufacturers and the purchasing traders are merely extensions of the processor. In the latter case, the processor is not a mere processor but also a merchant manufacturer who purchases/manufactures the raw material, processes it and sells it himself in the wholesale market. In such a situation, the profit is not of a processor but of a merchant manufacturer and a trader.

If the transaction is between related persons, the profit would not be "normally earned" within the meaning of Rule 6(b)(ii). If it is established that the dealings were with related persons of the manufacturer, the sale of the processed fabrics would not be limited to the formula prescribed by Ujagar Prints (III) but would be subject to excise duty under the principles enunciated in Empire Industries as affirmed in Ujagar Prints (II), incorporating t he arms length principle." (Emphasis supplied by us)

11. It is manifest from the above that the only distinctive feature of S. Kumars in comparison with Ujagar Prints (II) and (III) is the emphasis on the factum of relationship between the parties viz., the processor and the merchant manufacturers/traders, in the former. In short, S. Kumars holds that if the processor-assessee is not at arm's length with the merchant manufacturer and is a related person, the formula prescribed in Ujagar Prints (III) would not apply and assessable value for the purpose of levy of excise duty will have to be determined in terms of the ratio of S. Kumar i.e. in accordance with the procedure contemplated in Section 4(1)(b) of the Act read with the relevant valuation Rules. We deferentially concur with the ratio of S. Kumars.

12. In the present case, as aforesaid, neither did the Tribunal address this aspect of the matter, nor did it consider whether the Assessee and Heinz are related persons. It based its decision solely on the observation made by the Adjudicating Authority "that the status of the Assessee was not better than that of a hired labour". SC FEBRUARY 13, 2012. Commissioner of Central Excise, Faridabad Vs. M/s. Food & Healthcare Specialities & ANR. [Civil Appeal Nos. 6539-6540 of 2010] http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1813

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Since department not appealed in another case, department lost this case: Circulars and instructions not binding on assessee / courts.  Commissioner of Central Excise, Bhopal Vs. Minwool Rock Fibres Ltd. [Civil Appellate Jurisdiction Civil Appeal No.4988 of 2003] [With Civil Appeal Nos.2504-2505 of 2004] [C.A.No.4988/2003] SC February 2, 2012.

11. Shri R.P.Bhatt, learned senior counsel appearing for the revenue would submit that when there is a specific heading/sub-heading wherein the goods, such as Slagwool, Rockwool and similar wools are enumerated, that entry requires to be applied and not the general entry or a residuary entry. Learned counsel also brings to our notice about the Circular issued by the Central Board of Excise and Customs (for short `the Board') dated 17.09.2001 to substantiate that the Board, after a detailed consideration of the claim and the counter claim of the traders dealing in Rockwool and Slagwool, has specifically classified that the aforesaid goods requires to be classified under sub-heading No.6803.00 and not under sub-heading No.6807.10.

14. The learned senior counsel Shri Bhatt invites our attention to the circular instructions issued by the Board. In our view, the departmental circulars are not binding on assesee or quasi judicial authorities or courts and therefore, in that view of the matter, the circular/ instructions issued by the Board, would not assist them.

15. We may also notice that the Full Bench of the Tribunal in the case of Commissioner of Central Excise, Raipur Vs. Punj Star Insulation Fibre Co. has taken a view that the slagwool and rockwool would fall under sub-heading No.6807.10 and not under sub-heading No.6803.00. The judgment of the Tribunal has attained finality, since the revenue has not questioned the same before the appropriate forum. This fact has been noticed by this Court while disposing of Civil Appeal Nos.60-61 of 2003 in the case of M/s.Rockwool (India) Pvt. Ltd. Vs. Commissioner of Customs & Central Excise, Hyderabad decided on 07.05.2008. http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1831

19. The Tribunal has erred in holding that as "particle board" is specifically covered under heading 44.06, laminated particle board will come under the scope of "similar board of wood" under the said heading. It is clear that the product after the lamination is a distinct marketable commodity different from the original one. This conclusion is further substantiated by the fact that Shri B.V. Rao said in his statement that the panels after lamination, become water resistant and look attractive due to printed paper and brings about a change in the name, usage etc. Therefore, the Tribunal's conclusion that the laminated board is similar to `particle board' is incorrect and cannot be accepted.

20. The respondent has placed reliance on the pari materia heading in the HSN 44.10 to contend that the product is classifiable under chapter heading 44.06. We cannot accept this argument. In the proviso to the said heading, it has been mentioned that if the manufacturing process gives the product the essential character of articles of another heading, then chapter heading 44.12 will not apply. In the instant case, going by the statement of the respondent's own officer, the product after lamination assumes a distinct marketability and brings about a change in the product. This change, after lamination makes the product fall outside the purview of chapter heading 44.06 and that would place the product under chapter heading 44.08 as the word used under chapter heading 44.08 is "similar laminated wood" (emphasis supplied).

Further recourse may also be taken to rule 3 (c) of the Rules for interpretation of the Act which envisages that if the products are capable of classification under two chapter headings, then as per the said rule, the classification must be under the heading which occurs last in the numerical order. Therefore, heading 4408.90 would be the appropriate sub heading for classification of the product in question. SC Commissioner of Central Excise, Noida Vs. M/s. Kitply Industries Ltd. September 7, 2011 - ANIL R. DAVE, J.

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Cancellation of Bail – behaviour after bail – SC  [Hasan Ali – Enforcement Directorate ?]

26. Lastly, the manner in which the Respondent No.1 had procured three different passports in his name, after his original passport was directed to be deposited, lends support to the apprehension that, if released on bail, the Respondent No.1 may abscond.

27. As far as Mr. Bagaria's submissions regarding Section 439(2) Cr.P.C. are concerned, we cannot ignore the distinction between an application for cancellation of bail and an appeal preferred against an order granting bail. The two stand on different footings. While the ground for cancellation of bail would relate to post-bail incidents, indicating misuse of the said privilege, an appeal against an order granting bail would question the very legality of the order passed. This difference was explained by this Court in State of U.P. Vs. Amarmani Tripathi [(2005) 8 SCC 21].

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Union of India through its Secretary Ministry of Defence Vs. Rabinder Singh  SC 29 September 2011 H.L. Gokhale J.

18. The respondent had full opportunity to defend. All the procedures and steps at various levels, as required by the Army Act were followed and it is, thereafter only that the respondent was cashiered and sentenced to R.I. for one year. There was no allegation of malafide intention. Assuming that the charge of wrongful gain to the respondent was not specifically averred in the charges, the accused clearly understood the charge of `intent to defraud' and he defended the same. He fully participated in the proceedings and there was no violation of any procedural provision causing him prejudice. The Courts are not expected to interfere in such situations (see Major G.S. Sodhi Vs. Union of India reported in 1991 (2) SCC 382). The armed forces are known for their integrity and reputation. The senior officers of the Armed Forces are expected to be men of integrity and character. When any such charge is proved against a senior officer, the reputation of the Army also gets affected. Therefore, any officer indulging into such acts could no longer be retained in the services of the Army, and the order passed by the General Court Martial could not be faulted.

3. The first respondent was deployed between 1.2.1984 and 3.10.1986 as the Commanding Officer of the 6 Armoured Regiment which was a new raising at the relevant time in the Indian Army. The unit was authorized for one signal special vehicle. In case such a vehicle was not held by the unit it was authorized to modify one vehicle with ad-hoc special finances for which it was authorized to claim 75% of Rs.950/- initially and claim the balance amount on completion of modification work.

4. It is the case of the appellant that the unit had sent a claim for 75% of the amount (i.e. Rs.450/- as per the old rates) for modification of one vehicle, but the same was returned for want of justifying documents by the audit authorities. Yet the respondent proceeded to order modification of some 65 vehicles in two lots, first 43 and thereafter 22. There is no dispute that he countersigned those bills, and claimed and received an amount of Rs.77,692/- by preferring four different claims. The case of the appellant is that not a single vehicle came to be modified, the money was kept separately and the expenditure was personally controlled by the respondent. No such items necessary for modification were purchased, but fictitious documents and pre-receipted bills were procured. Though, the counter-foils of the cheques showed the names of some vendors, the amount was withdrawn by the respondent himself. When the annual stock-taking was done, the non-receipt of stores and false documentation having taken place was found entered in the records.

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Union of India & Ors. Vs. M.C. Sharma  [Civil Appeal No. 434 of 2012 @ Special Leave Petition (C) No.12331 of 2011] O R D E R

1. Leave granted.

2. This appeal is directed against the judgment and order dated 19.01.2011 passed by the High Court of Delhi at New Delhi in Writ Petition No.5607 of 2010.

3. Heard learned counsel for the parties to the lis.

4. The High Court, while granting relief sought for by the appellants, has primarily relied on a decision of this Court in the case of Raghu Nandan Lal Chaudhary & Ors. Vs. Union of India, decided on 7th April, 1988, reported in (1988) 2 SCC 406.

5. At the time of hearing of this appeal, it is brought to our notice by learned counsel appearing for the appellants that the decision of this Court in the case of Raghu Nandan Lal Chaudhary (supra) has been over-ruled by a larger Bench of this Court in the case of Union of India & Anr. Vs. Satish Kumar,decided on October 25, 2005, reported in (2006) 1 SCC 360.

6. In our opinion, had the appellants brought to the notice of the High Court, the decision of the larger Bench of this Court in Satish Kumar's case (supra), we do not think the High Court would have committed a mistake in over-looking the later judgment of a larger Bench of this Court.

7. In this view of the matter, we cannot sustain the judgment and order passed by the High Court and the same is set aside, since the matter is squarely covered by the decision of this Court in the case of Satish Kumar (supra). Appeal allowed accordingly. No order as to costs. .J. (H.L. DATTU) J. (CHANDRAMAULI KR. PRASAD) JANUARY 13, 2012  http://www.advocatekhoj.com/library/judgments/announcement.php?WID=1744

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Upright officer – frivolous allegations of absence non training etc. -  Relief given by Supreme Court with back wages.

SC Krushnakant B. Parmar Vs. Union of India & ANR. [Civil Appeal No.2106 of 2012 arising out of SLP (C) No.15381 of 2006] SUDHANSU JYOTI MUKHOPADHAYA, J.

25. In the result, the appeal is allowed. The impugned orders of dismissal passed by disciplinary authority, affirmed by the Appellate Authority; Central Administrative Tribunal and High Court are set aside. The appellant stands reinstated. Taking into consideration the fact that the Charged Officer has suffered a lot since the proceeding was drawn in 1996 for absence from duty for a certain period, we are not remitting the proceeding to the disciplinary authority for any further action. Further, keeping in view the fact that the appellant has not worked for a long time we direct that the appellant be paid 50% of the back wages but there shall be no order as to costs.

.......................................................J. (G.S. SINGHVI)

.......................................................J. (SUDHANSU JYOTI MUKHOPADHAYA)

NEW DELHI,

FEBRUARY 15, 2012

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