Thursday, September 30, 2010

HC dismisses SHO plea in rape case

The Delhi High Court has dismissed a petition by a Delhi police inspector challenging a Sessions Court order to register a case against him for allegedly trying to protect an accused in a gang rape case.

While convicting the accused in the case, the Additional Sessions Judge had asked the Deputy Commissioner of Police of the district concerned to register a case against Inspector Gurmeet Singh, then SHO of the Gokulpuri police station in North-East Delhi.

The incident had occurred in 2005. There was another police officer from the same police station involved in the attempt to shield the accused. He expired during trial of the case.

The two police officers had refused to register a rape case against one of the accused and arrested him for investigation only when the victim and her husband caught hold of him and brought him to the police station.

ASI Darshan Kumar, allegedly at the instance of the inspector, had asked the victim to lodge a complaint against the accused under Section 107 (breach of peace) of the Criminal Procedure.

The case was then sent to the Special Executive Magistrate for further proceedings. However, the victim there also reiterated her earlier charge that she was gang-raped.

The Magistrate then asked the police officer to register a rape case against the accused persons. Yet, the case was not lodged. It was lodged only when the Magistrate sent a reminder to the police station.

Justice S.N. Dhingra dismissed the petition on Wednesday saying that there was no merit in it.


Ayodhya Verdict and Main points

Justice Dharam Veer Sharma, Justice Sibghat Ullah Khan and Justice Sudhir Agarwal

The following are key parts of the judgments on Ayodhya matters of the three Judges comprising the Special Full Bench of the High Court of Allahabad:

Justice Sibghat Ullah Khan
Main Points:

1. The disputed structure was constructed as mosque by or under orders of Babar.

2. It is not proved by direct evidence that premises in dispute including constructed portion belonged to Babar or the person who constructed the mosque or under whose orders it was constructed.

3. No temple was demolished for constructing the mosque.

4. Mosque was constructed over the ruins of temples which were lying in utter ruins since a very long time before the construction of mosque and some material thereof was used in construction of the mosque.

5. That for a very long time till the construction of the mosque it was treated/believed by Hindus that some where in a very large area of which premises in dispute is a very small part birth place of Lord Ram was situated, however, the belief did not relate to any specified small area within that bigger area specifically the premises in dispute.

6. That after some time of construction of the mosque Hindus started identifying the premises in dispute as exact birth place of Lord Ram or a place wherein exact birth place was situated.

7. That much before 1855 Ram Chabutra and Seeta Rasoi had come into existence and Hindus were worshipping in the same. It was very very unique and absolutely unprecedented situation that in side the boundary wall and compound of the mosque Hindu religious places were there which were actually being worshipped along with offerings of Namaz by Muslims in the mosque.

8. That in view of the above gist of the finding at serial no.7 both the parties Muslims as well as Hindus are held to be in joint possession of the entire premises in dispute.

9. That even though for the sake of convenience both the parties i.e. Muslims and Hindus were using and occupying different portions of the premises in dispute still it did not amount to formal partition and both continued to be in joint possession of the entire premises in dispute.

10. That both the parties have failed to prove commencement of their title hence by virtue of Section 110 Evidence Act both are held to be joint title holders on the basis of joint possession.

11. That for some decades before 1949 Hindus started treating/believing the place beneath the Central dome of mosque (where at present make sift temple stands) to be exact birth place of Lord Ram.

12. That idol was placed for the first time beneath the Central dome of the mosque in the early hours of 23.12.1949.

13. That in view of the above both the parties are declared to be joint title holders in possession of the entire premises in dispute and a preliminary decree to that effect is passed with the condition that at the time of actual partition by meets and bounds at the stage of preparation of final decree the portion beneath the Central dome where at present make sift temple stands will be allotted to the share of the Hindus.


Accordingly, all the three sets of parties, i.e. Muslims, Hindus and Nirmohi Akhara are declared joint title holders of the property/ premises in dispute as described by letters A B C D E F in the map Plan - I prepared by Sri Shiv Shanker Lal, Pleader/ Commissioner appointed by Court in Suit No.1 to the extent of one third share each for using and managing the same for worshipping. A preliminary decree to this effect is passed.

However, it is further declared that the portion below the central dome where at present the idol is kept in makeshift temple will be allotted to Hindus in final decree.

It is further directed that Nirmohi Akhara will be allotted share including that part which is shown by the words Ram Chabutra and Sita Rasoi in the said map.

It is further clarified that even though all the three parties are declared to have one third share each, however if while allotting exact portions some minor adjustment in the share is to be made then the same will be made and the adversely affected party may be compensated by allotting some portion of the adjoining land which has been acquired by the Central Government.

The parties are at liberty to file their suggestions for actual partition by metes and bounds within three months.

List immediately after filing of any suggestion/ application for preparation of final decree after obtaining necessary instructions from Hon'ble the Chief Justice.

Status quo as prevailing till date pursuant to Supreme Court judgment of Ismail Farooqui (1994(6) Sec 360) in all its minutest details shall be maintained for a period of three months unless this order is modified or vacated earlier.

Justice Sudhir Agarwal

(Relevant paragraphs containing result/directions issued)

4566. In the light of the above and considering overall findings of this Court on various issues, following directions and/or declaration, are given which in our view would meet the ends of justice:

(i) It is declared that the area covered by the central dome of the three domed structure, i.e., the disputed structure being the deity of Bhagwan Ram Janamsthan and place of birth of Lord Rama as per faith and belief of the Hindus, belong to plaintiffs (Suit-5) and shall not be obstructed or interfered in any manner by the

defendants. This area is shown by letters AA BB CC DD is Appendix 7 to this judgment.

(ii) The area within the inner courtyard denoted by letters B C D L K J H G in Appendix 7 (excluding (i) above) belong to members of both the communities, i.e., Hindus (here plaintiffs, Suit-5) and Muslims since it was being used by both since decades and centuries. It is, however, made clear that for the purpose of share of plaintiffs, Suit-5 under this direction the area which is covered by (i) above shall also be included.

(iii) The area covered by the structures, namely, Ram Chabutra, (EE FF GG HH in Appendix 7) Sita Rasoi (MM NN OO PP in Appendix 7) and Bhandar (II JJ KK LL in Appendix 7) in the outer courtyard is declared in the share of Nirmohi Akhara (defendant no. 3) and they shall be entitled to possession thereof in the absence of any person with better title.

(iv) The open area within the outer courtyard (A G H J K L E F in Appendix 7) (except that covered by (iii) above) shall be shared by Nirmohi Akhara (defendant no. 3) and plaintiffs (Suit-5) since it has been generally used by the Hindu people for worship at both places.

(iv-a) It is however made clear that the share of muslim parties shall not be less than one third (1/3) of the total area of the premises and if necessary it may be given some area of outer courtyard. It is also made clear that while making partition by metes and bounds, if some minor adjustments are to be made with respect to the share of different parties, the affected party may be compensated by allotting the requisite land from the area which is under acquisition of the Government of India.

(v) The land which is available with the Government of India acquired under Ayodhya Act 1993 for providing it to the parties who are successful in the suit for better enjoyment of the property shall be made available to the above concerned parties in such manner so that all the three parties may utilise the area to which they are entitled to, by having separate entry for egress and ingress of the people without disturbing each others rights. For this purpose the concerned parties may approach the Government of India who shall act in accordance with the above directions and also as contained in the judgement of Apex Court in Dr. Ismail Farooqi (Supra).

(vi) A decree, partly preliminary and partly final, to the effect as said above (i to v) is passed. Suit-5 is decreed in part to the above extent. The parties are at liberty to file their suggestions for actual partition of the property in dispute in the manner as directed above by metes and bounds by submitting an application to this effect to

the Officer on Special Duty, Ayodhya Bench at Lucknow or the Registrar, Lucknow Bench, Lucknow, as the case may be.

(vii) For a period of three months or unless directed otherwise, whichever is earlier, the parties shall maintain status quo as on today in respect of property in dispute.

4571. In the result, Suit-1 is partly decreed. Suits 3 and 4 are dismissed. Suit-5 is decreed partly. In the peculiar facts and circumstances of the case the parties shall bear their own costs.

Justice Dharam Veer Sharma

Issues for briefing

1. Whether the disputed site is the birthplace of Bhagwan Ram?

The disputed site is the birth place of Lord Ram. Place of birth is a juristic person and is a deity. It is personified as the spirit of divine worshipped as birth place of Lord Rama as a child.

Spirit of divine ever remains present every where at all times for any one to invoke at any shape or form in accordance with his own aspirations and it can be shapeless and formless also.

2. Whether the disputed building was a mosque? When was it built? By whom?

The disputed building was constructed by Babar, the year is not certain but it was built against the tenets of Islam. Thus, it cannot have the character of a mosque.

3. Whether the mosque was built after demolishing a Hindu temple?

The disputed structure was constructed on the site of old structure after demolition of the same. The Archaeological Survey of India has proved that the structure was a massive Hindu religious structure.

4. Whether the idols were placed in the building on the night of December 22/23rd, 1949?

The idols were placed in the middle dome of the disputed structure in the intervening night of 22/23.12.1949.

5. Whether any of the claims for title is time barred?

O.O.S. No. 4 of 1989, the Sunni Central Board of Waqfs U.P., Lucknow and others Vs. Gopal Singh Visharad and others and O.O.S. No.3 of 1989, Nirmohi Akhara and Another Vs. Sri Jamuna Prasad Singh and others are barred by time.

6. What will be the status of the disputed site e.g. inner and outer courtyard?

It is established that the property in suit is the site of Janm Bhumi of Ram Chandra Ji and Hindus in general had the right to worship Charan, Sita Rasoi, other idols and other object of worship existed upon the property in suit. It is also established that Hindus have been worshipping the place in dispute as Janm Sthan i.e. a birth place as deity and visiting it as a sacred place of pilgrimage as of right since time immemorial.

After the construction of the disputed structure it is proved the deities were installed inside the disputed structure on 22/23.12.1949. It is also proved that the outer courtyard was in exclusive possession of Hindus and they were worshipping throughout and in the inner courtyard (in the disputed structure) they were also worshipping. It is also established that the disputed structure cannot be treated as a mosque as it came into existence against the tenets of Islam.






1. This Special Leave Petition is directed against the judgment and order dated 23rd June, 2008, passed by the Karnataka High Court in W.P.

No.14078 of 2007, dismissing the Petitioner's 2 writ petition seeking a Mandamus upon the Respondents to allow him to perform passport work as a travel agent, though he was not a member of the Travel Agents' Association of India (TAAI).

2. The Petitioner claims to have been working as a travel agent, without being a member of TAAI, and has been acting on behalf of various clients since 1997 for submitting applications for obtaining passports on their behalf. It is also the Petitioner's case that he was issued with a Travel Agent Code number by the Passport Officer, Government of India, in the Ministry of External Affairs, the Respondent No.2 herein, to whom the applications would be submitted and after the applications had been accepted, the same would be processed by the said Officer upon payment of the prescribed service charge. According to the Petitioner, 3 guidelines were issued from time to time, but the said Respondent withdrew the entire system of recommending travel agents to deal with passport work and issued instructions that in respect of travel agents who were present before the passport office earlier, even if they were not members of TAAI, they would be permitted to continue to do the work which they had been performing. In order to avail of the said benefit, the travel agents, who were similarly placed as the Petitioner, filed applications for permission to continue the work which they had been performing. However, since the said applications were rejected by the authorities, the Petitioner was compelled to file this Special Leave Petition.

3. On behalf of the Petitioner it was also contended that the aforesaid question had been considered by the Karnataka High Court and had been 4 decided in Writ Petition No.40360 of 2004, and, ultimately, the impugned restrictions came to be quashed and all travel agents who were carrying on business earlier became entitled to continue to do the work and the endorsements dated 14th March, 2006, issued by the Respondent No.2 were quashed.

4. According to the Respondents, however, the system of recommending travel agents to carry on the work of applying for and receiving passports on behalf of their clients was dispensed with in July, 1992. Although, the said de-recognition of travel agents in July, 1992, was challenged in various courts, including this Court, the scheme was ultimately upheld and the Ministry of External Affairs, Government of India, gave the benefit thereof to the travel agents who were not members of TAAI, provided they were recognized as travel agents before July, 1992, when the recognition of travel agents was dispensed with. Since the 5 petitioner had started operating as a travel agent only in 1997, after such derecognition, he was not entitled to the benefit of the Scheme promulgated on 18th July, 2000.

5. The matter was considered in some detail by the High Court which took the view that travel agents, who were not members of TAAI, had been recognized by the Department for the issuance of passports on behalf of their clients. Ultimately, all the matters which were filed before this Court were transferred to the various High Courts and fresh guidelines came to be issued on 18th July, 2000. As a one-time concession, agents who were working prior to 1992 were given the benefit of the scheme, even though they were not members of TAAI. The scheme was formulated on 18th July, 2000, and under the scheme travel agents who had been working from before 1992 continued to be recognized as travel agents, although, they were not members of TAAI.

6 Based on the aforesaid reasoning, the High Court held that once the scheme came into operation and a one-time concession was made in respect of travel agents who were working from before 1992 but were not members of TAAI, the Petitioner who commenced business as a travel agent from 1997, was not entitled to the benefit of the scheme. The High Court dismissed the Petitioner's writ petition upon holding that since the Petitioner was not a member of TAAI and was not also recognized as a travel agent prior to 1992, he was not entitled to the benefit of the scheme promulgated on 18th July, 2000.

6. Mr. Manohar Lal Sharma, learned Advocate who appeared for the Petitioner, urged that since the Petitioner had been awarded a Code Number by the Ministry of External Affairs, Government of India, it must be deemed that he was an accredited agent, notwithstanding the fact that he was not a member 7 of TAAI. Mr. Sharma submitted that pursuant to the decision taken by the Ministry which came into effect from the month of August, 2000, all travel agents who were then recognized by the passport office under the previous dispensation, would continue to be recognized even if they were not members of TAAI. However, no new non-TAAI recognized travel agent could be added to the earlier list in future. Mr. Sharma submitted that since the Petitioner was an accredited agent, the aforesaid provisions would govern the Petitioner as well, despite the fact that he was not a member of TAAI. He also submitted that when the scheme was promulgated and the Petitioner was already functioning as a travel agent, it would be highly arbitrary to prevent him from continuing to function as a travel agent in view of the new policy whereunder only those travel agents who were members of TAAI would be entitled to perform the 8 work of submitting applications on behalf of Indian citizens applying for passports.

7. As indicated hereinbefore, the Respondents took the stand that when the entire system of recognizing travel agents to deal with passport work had been withdrawn in February, 1992, the Petitioner, who was not a member of the TAAI at that point of time, could not get the benefit of the scheme floated by the Respondent.

8. The controversy in this Special Leave Petition hinges on the question as to whether the Petitioner had been unjustly prevented from carrying on business as travel agent since he was not a member of TAAI and, therefore, not entitled to the benefit of the scheme promulgated on 18th July, 2000. The reasoning of the High Court that the Petitioner could not be recognized as a travel agent since he had started his business in 1997, long after the system had been withdrawn, is in keeping with the 9 said scheme and does not require any interference.

Once the policy of recognizing travel agents for the purpose of submitting passport applications and receiving the same on behalf of a client, was discontinued after July, 1992, the Petitioner, who had begun his travel agency after the said date, was not entitled to the benefit of the fresh guidelines which came to be issued on 18th July, 2000, by providing a one-time concession for all travel agents who were working prior to 1992, even though they were not members of TAAI.

9. The new policy adopted by the Government has not been questioned by the Petitioner, whose grievance is confined to his exclusion from the scheme which came into operation in August, 2000.

We are not, however, inclined to accept the submissions made on the Petitioner's behalf since a decision had been taken by the Central Government to derecognize travel agents who were not members 10 of TAAI, giving a one-time concession to those travel agents who were not members of TAAI but had been performing passport work for clients prior to 1992. The policy is neither irrational nor unreasonable and appears to have been made to streamline the system of applying for and receiving passports.

10. We, therefore, find no reason to interfere with the decision of the High Court and the Special Leave Petition is, accordingly, dismissed.


(ALTAMAS KABIR) ................................................J.




Department of Telecommunications ... Appellant 
Gujarat Co-operative Milk Marketing Federation Ltd. ... Respondent


Leave granted.

2. The respondent was the subscriber of telephone bearing No.40193, in Anand Town installed at the residence of its Managing Director (for convenience we will also refer to the Managing Director as the `subscriber').

The bi-monthly bills in regard to the said telephone were usually around Rs.8500. The appellant served on the respondent the following two bills aggregating to Rs.454,652 :

Bill date Period of the bill Amount 1.4.1996 16.1.1996 to 15.3.1996 362,723/- 1.6.1996 16.3.1996 to 15.5.1996 91,929/- 2 The huge billing was on account of a large number of international calls known as `party calls' or `sex talk calls' to number 001-4152-085-234 and several calls to 001-4152-085-220/230/236/239.

3. The respondent made a written complaint dated 25.4.1996 after the receipt of the first bill stating that it had been mischievously and unscrupulously billed for large number of international calls made from some other numbers, but shown as having made from its number. It also complained in the said letter that many a time, when the subscriber lifted the telephone for making calls, he used to hear some ongoing talk. The Divisional Engineer of the appellant after verification informed the respondent by letter dated 21.5.1996 that the bills were correct for the following reasons :

(a) Total line was underground and no portion of the line was exposed;

(b) Absolute control to make a call or not to make a call, was with the subscriber as the phone had dynamic lock facility.

(c) The telephone was working continuously and there was no complaint of the telephone being out of order. (Note : If the line is misused externally, the telephone of the subscriber will be dead with no dial tone).

(d) The bills showed that the calls were made daily over a long period and not on any particular single day.

(e) As the telephone was connected to an electronic exchange, there was no chance of excess metering.


4. The respondent filed an administrative appeal to the General Manager, Kheda Telecom District, Nandiad. However as the bills amounts were not paid, the telephone was disconnected on 29.5.1996. A writ petition (SCA No.4188/1996) filed by the respondent was disposed of by the High Court by order dated 29.7.1997 directing the General Manager of the appellant to examine the appeal filed by the respondent in regard to the bills in question and render a reasoned order after giving a hearing to the respondent. After hearing, the General Manager, Kheda Telecom District, Nadiad made an order dated 12.2.1998 rejecting the appeal and confirming the demands under the two bills, for the following reasons: (i) The subscriber had not made use of the STD/ISD dynamic locking facility which was available through a sophisticated electronic exchange; (ii) all rooms in the residence of the subscriber had plug/socket arrangements and all family members and visitors could use the parallel lines for making ISD calls (in particular `party line calls') even without the knowledge of the subscriber; (iii) the possibility of any external misuse was ruled out as the Distribution Point Box was located within the campus premises of the respondent which was under around the clock security of the security guards employed by the respondent and no part of the underground cable was exposed; (iv) significantly during the disputed period not even a single complaint was booked from the 4 telephone; and though in the complaint dated 25.4.1996, it was stated for the first time that many a time when the subscriber lifted the phone to receive the call he heard someone talking on the line, no such complaint was ever made prior to 25.4.1996 to the department; and (v) the disputed ISD calls were `party line international sex talk calls' which originated from the subscriber's telephone and having regard to the fact that these calls were made in between the calls to other stations in India in such close proximity that there was no chance of possible misuse by any third party or staff of telecom department.

5. Feeling aggrieved, the respondent again approached the High Court by filing another writ petition (SCA No.1416/1998). The said petition was disposed of on the ground of availability of alternative remedy of arbitration under section 7B of the Indian Telegraph Act, 1885 (`Act' for short). The respondent challenged the said order in a Letters Patent Appeal wherein by order dated 21.10.1989 the Division Bench directed the dispute to be referred to arbitration. In pursuance of it, the Central Government in exercise of power under section 7B of the Act appointed Mr. Vineet Bhatia, Deputy General Manager, Telecom East and Arbitrator for Ahmedabad Telecom district as Arbitrator for deciding the dispute.


6. The Arbitrator after hearing made an award dated 4.5.2000 holding that the bills were proper and the respondent had to make complete payment of the said bills. The following summary of the reasoned award is extracted below:

"1. Though STD/ISD dynamic locking facility for the telephone was available, it was not used by the subscriber.

2. There was no possibility of external misuse from distribution point or pillar or from the Main Distribution Frame, as these were under lock and key or around the clock supervision.

3. Even though the subscriber stated that he used to hear some cross talk on the line during the period of the disputed bill, no complaint was registered with the Telephone Department. Therefore the said complaint was apparently an afterthought made up after receiving the first bill for the disputed period.

4. All the rooms in the house of subscriber had plug and socket arrangement and there were two telephone instruments in the house and as such calls could be made from anywhere in the house.

5. The calls preceding/succeeding the disputed calls were admittedly made by the subscriber. Hence no misuse by diversion was possible.

6. The disputed calls were `international party line calls'. For dialing these numbers there was no need to establish any prior relationship between caller and the called numbers. As such there was no age/sex bar for dialing these numbers and hence could have been done by any of the family members of the subscriber. From the school details of his son, presented by the subscriber vide his letter dated 3.5.2000, it was clear that his final Pre-Board examinations for X Std. were concluded on 03.02.1996 and the disputed calls started from the very next day. As such, the possibility of these calls having made by the son of the subscriber cannot also be ruled out."

7. The said award was challenged by the respondent in a writ petition (SCA No.8734/2000). A learned Single Judge of the High Court allowed the 6 writ petition with costs of Rs.5000 and quashed the bills dated 1.4.1996 and 1.6.1996 and the consequential demand notice dated 4.5.2000. The last para of the order of the learned Single Judge extracted below, demonstrates the manner in which he viewed the entire matter:

"This is a peculiar case showing the adamant attitude on the part of the respondent authorities. The bill has been issued in the year 1996 and there were about three round of litigations. The Arbitrator who was appointed was subordinate to the General Manager who is bound to be influenced by the decision of the General Manager or could not have taken a contrary view to the order of his superior. Therefore, before the argument was started, an opportunity was given to the counsel for the respondent to reconsider their decision. However the officer as well as the learned counsel, who is an officer of the Court, has not accepted the said suggestion. It was also open to the respondent to issue a revised bill as per the decision of this court or at least average bills for the last six months. It goes without saying that the adamant attitude of such litigants increases the unwanted litigation. Therefore, the respondent shall pay a sum of Rs.5,000/- (Rupees Five Thousand only) by way of costs."

The findings recorded by the learned Single Judge in support of his order, in brief are:

(i) As the appeal against the Bills had been decided by the General Manager, Kheda Telecom District on 12.2.1998 upholding the bills, the Arbitrator should have been a person higher in rank to the General Manager.

As the Arbitrator was of a lower rank of a Deputy General Manager, the decision of the Arbitrator was not valid in law and on this ground alone the writ petition had to be allowed.

(ii) The Arbitrator had decided the matter on inferences and presumptions without any evidence. Reference to the existence of parallel telephone lines and subscriber's son being at home after examinations, to infer that he might 7 have misused the telephone was a finding which was without basis in the absence of evidence that the subscriber's son had in fact misused the telephone. Similarly, the assumption by the Arbitrator that any member of subscriber's family could have used the phone for making `party line calls' was a casual presumption.

(iii) A complaint dated 25.4.1996 was made by the subscriber stating that the first bill dated 1.4.1996 was excessive. Even assuming that there was misuse of the phone, in the house of the subscriber, when the subscriber came to know about the misuse when the bill was received, he would have restricted or prevented the misuse. That means the next bill dated 1.6.1996 should have been a normal bill. But the said bill was also excessive thereby demonstrating that the mischief calls continued even during the second bill period. This showed that there was a possibility of someone else misusing the number of the subscriber for making ISD calls.

(iv) The complaint dated 25.4.1996 stating that the subscriber sometimes used to hear ongoing talk, when he lifted the phone for making calls, was not properly considered by the Arbitrator.

The Letters Patent Appeal filed by the appellant against the said order of the learned single Judge, has been dismissed by a Division Bench by a brief non-speaking order dated 23.1.2007. The said order is challenged in this appeal.


8. The scope of interference in writ jurisdiction in regard to Arbitral awards under section 7B of the Act was considered by this Court in M.L.Jaggi v. Mahanagar Telephones Nigam Ltd. [1996 (3) SCC 119] :

"It is seen that under Section 7-B, the award is conclusive when the citizen complains that he was not correctly put to bill for the calls he had made and disputed the demand for payment. The statutory remedy opened to him is one provided under Section 7-B of the Act. By necessary implications, when the Arbitrator decides the dispute under Section 7-B, he is enjoined to give reasons in support of his decision since it is final and cannot be questioned in a court of law. The only obvious remedy available to the aggrieved person against the award is judicial review under Article 226 of the Constitution. If the reasons are not given, it would be difficult for the High Court to adjudge as to under what circumstances the Arbitrator came to his conclusion that the amount demanded by the Department is correct or the amount disputed by the citizen is unjustified.

The reason would indicate as to how the mind of the Arbitrator was applied to the dispute and how he arrived at the decision. The High Court, though does not act in exercising judicial review as a court of appeal but within narrow limits of judicial review it would consider the correctness and legality of the award. No doubt, as rightly pointed out by Mr.

V.R.Reddy, Additional Solicitor General, the questions are technical matters. But nonetheless, the reasons in support of his conclusion should be given."

(emphasis supplied) Though the learned Single Judge referred to the said decision, he has ignored the law laid down therein. The learned Single Judge has proceeded as if he was sitting in appeal over the award of Arbitrator. He also assumed, without any basis, that the Arbitrator had proceeded on presumptions and inferences, when in fact it is the learned Single Judge who made assumptions and drew inferences, not based on evidence. We may briefly refer to them.


9. The learned Single Judge held that the Arbitrator had without any evidence assumed that the son or other family members of subscriber must have used the telephone available on account of plug/socket arrangement in every room as also an extra telephone, parallel lines for making the "international party calls". The basis for the billing is not the said assumption or inference. The basis is the clear evidence consisting of the records of Telecom and the meters which showed that the billed calls, that is, the international party line calls, were regularly being made from the said telephone. The inference drawn by the Arbitrator that the subscriber's son or other family members must have made the calls from a parallel line by using the plug and socket facility available in various rooms, has to be read in the context of the assertion of the subscriber that he had not made any such party calls. The Arbitrator had three facts before him : (1) that the department records showing that the disputed international party calls were made from the telephone in question regularly; (2) that the subscriber had plug and socket facility in several rooms with an extra telephone which could be used any time by any one in the house; and (3) that the subscriber had not made use of the STD/ISD dynamic lock facility, though available.

Therefore when there was an assertion by the subscriber that he had not made any such calls, the Arbitrator merely made an inference from the 10 proved facts that even if the subscriber had not made the calls, it was possible that his family members including his son (who had returned home a day prior to the commencement of `party calls') could have made such calls by using the plugs and sockets arrangement and parallel lines in several rooms without the knowledge of the subscriber. The Arbitrator was only dealing with a contention by the subscriber that he had not made any such calls and giving his reasons for rejecting such a contention.

10. The learned Single Judge next inferred that even if such calls were being made earlier, after receiving the bill dated 1.4.1996, the subscriber would have naturally restricted any such calls; and the fact that even after receipt of the first bill, there were such `party calls' as was evident from the second bill, made it improbable that the subscriber's phone was used for making such `party calls' and therefore it had to be inferred that someone else was mischievously using the said telephone connection for making unauthorised ISD calls. This inference is also contrary to facts. The first bill dated 1.4.1996 was for the period 16.1.1996 to 15.3.1996. Though the second bill dated 1.6.1996 was subsequent to complaint dated 25.4.1996, the said bill related to the period 16.3.1996 to 15.5.1996, major portion of which was prior to 25.4.1996. Further, the second bill was only for Rs.91,929/- as against the first bill for Rs.3,62,723/-. The amount of the second bill and the 11 period for the second bill demonstrates that after receipt of first bill and complaint, there was in fact some kind of control and reduction in such phone calls. Therefore the inference by the learned Single Judge was absolutely baseless.

11. The finding of the learned Single Judge that the Arbitrator had not given importance to the complaint in the letter dated 25.4.1996 that he had heard cross talk on the line is also incorrect. The Arbitrator has dealt with this matter. The simplest explanation is the existence of plug-socket facility and parallel lines. If the parallel line was being used and the subscriber lifted the receiver, he would certainly hear the conversation or talk, which was not from any external source, but from the very same telephone.

12. The last assumption by the learned Single Judge was with reference to an affidavit filed by the Telecom Department in some criminal proceeding against some departmental employee unconcerned with this case, admitting that its employee had tampered with the instruments for making international calls, and as a result the department had to grant rebates to several subscribers. But that cannot be a ground for granting rebate in this case, as no irregularity was found in this case. The fact that in some case, 12 some departmental employee had committed some tampering, is not a ground for inferring that there must have been tampering in this case. The High Court has inferred that the fault was with the department because it refused to refer the matter for CBI for investigation. The learned Single Judge has observed:

"It is also required to be noted that the petitioner had requested for an investigation into the matter by Central Bureau of Investigation.

According to the petitioner, if such an investigation is resorted to, it would unearth the mischief and it was further stated that the petitioner was ready and wiling to bear the costs thereof. Even this was not accepted by the respondent authority, which would indicate that the respondent did not want to go deep into the matter."

Reference to CBI is not a condition precedent for raising a bill, merely because the subscriber demands it.

13. There was thus no ground for the High Court to interfere with the findings arrived at by the Arbitrator in exercising the power of judicial review. By assuming a non-existing appellate jurisdiction and by making wrong assumptions and drawing wrong inferences, the learned Single Judge has interfered with a reasoned arbitral award.

14. We may next deal with the conclusion of the learned Single Judge that the award was invalid because it was made by an Arbitrator who was junior 13 in rank, when compared to the officer who passed the appellate order dated 12.2.1998. It is a usual practice for the government departments to have the employees of the department (high level officers unconnected with the contract) as Arbitrators. The mere fact that the Arbitrator is of a rank lower than the officer who rejected the claim of the subscriber would not invalidate the arbitration or can be a reason for imputing bias to the Arbitrator (see Secretary to Govt., Transport Department v. Munuswamy Mudaliar - 1988 (Supp) SCC 651 and Indian Oil Corporation Ltd. v. Raja Transport (P) Ltd.

- 2009 (8) SCC 520). In Indian Oil Corpn. Ltd. (supra) this court held thus :

"The fact that the named Arbitrator is an employee of one of the parties is not ipso facto a ground to raise a presumption of bias or partiality of lack of independence on his part.

There can however be a justifiable apprehension about the independence or impartiality of an Employee-Arbitrator, if such person was the controlling or dealing authority in regard to the subject contract or if he is a direct subordinate (as contrasted from an officer of an inferior rank in some other department) to the officer whose decision is the subject matter of the dispute. Where however the named Arbitrator though a senior officer of the government/statutory body/government company, had nothing to do with execution of the subject contract, there can be no justification for anyone doubting his independence or impartiality, in the absence of any specific evidence. Therefore, senior officer/s (usually heads of department or equivalent) of a government/statutory corporation/public sector undertaking, not associated with the contract, are considered to be independent and impartial and are not barred from functioning as Arbitrators merely because their employer is a party to the contract."

(emphasis supplied) 14 In this case, the Arbitrator had neither dealt with the matter at any point of time nor was he a subordinate of the appellate authority in the concerned telecom district who decided the matter. The bills related to a telephone installed at the premises in Anand/Nadiad falling within the jurisdiction of the General Manager Telecom Kheda Telecom District, Nadiad and the appellate order dated 12.2.1998 was passed by the General Manager of Kheda Telecom District, Nadiad. The Arbitrator was working as a Deputy General Manager (T) East & Arbitrator Ahmedabad Telecom District, not under the General Manager who passed the appellate order but in a different telecom district. Therefore, there was no justification for the learned Single Judge to hold that the award was invalid merely because the Arbitrator was of a rank lower than that of the officer who passed the appellate order. It should also be noted that the appeal was decided by the General Manager, Kheda Telecom district in pursuance of a direction of the High Court. Again in a subsequent proceeding the High court directed that the matter should be referred to arbitration under section 7B of the Act and accordingly the dispute was referred to arbitration and the departmental officer functioning as Arbitrator decided the matter. There is nothing irregular or erroneous in the said procedure.


15. The last para discloses the learned Single Judge had virtually prejudged the matter and was prejudiced against the appellant. The learned Single Judge allowed himself to be swayed by the following irrelevant factors in deciding against the appellant: (i) the respondent had come up before the High Court thrice; and (ii) the department counsel did not agree with the suggestion of the learned Single Judge to reconsider the bill amounts by issuing a revised bill on the basis of the average of the bills for last six months. The learned Single Judge proceeded on the basis that the attitude of the department was adamant and it was indulging in unnecessary litigation. The department was simply pursuing a legitimate claim. The matter had been decided by a statutory Arbitrator. Therefore if the department decided not to give up or reduce its claim that cannot be held against the department. The order shows that the learned Single Judge had tried virtually to force the department to agree for suggestions which obviously the officers and the counsel for the department could not agree.

Such attitude on the part of the High Court requires to be discouraged.

Unfortunately the division bench did not examine any of these aspects and merely affirmed the decision of the learned Single Judge.


16. We therefore allow this appeal, set aside the order of the learned Single Judge and the Division Bench and dismiss the writ petition filed by the respondent challenging the bills.


(R V Raveendran) New Delhi; ...........................J.

Ayodhya land to be divided into three parts: HC

The Lucknow bench of the Allahabad High Court has ordered that the disputed holy site in Ayodhya be divided into three parts: one-third for Hindu Mahasabha, one-third for Sunni Waqf Board and one-third for the Nirmohi Akhara.

The three-member bench of the Allahabad High Court, comprising justices SU Khan, Sudhir Agarwal and DV Sharma today delivered a split verdict in 60-year old Ayodhya title suit.

The majority ruled that the disputed land in Ayodhya was a joint property, held by all the three claimants namely Hindu Mahasabha , Nirmohi Akhara and Sunni Central Waqf Board. Justice SU Khan said that the mosque was built by Babar, not by demolishing a temple , but on the ruins of a temple.

According to Chief Standing Counsel of the UP Government, Devendra Upadhaya, the two judges namely Justices Khan and Agarwal ruled that the disputed property should be equally divided ( One third each) among the three parties. Justice DV Sharma has been categorical that the land belongs to Hindus and has rejected the claim of the Sunni Waqf Board.

However, the entire bench is of the view that the central dome of the disputed structure goes to Hindu Mahasabha, where the idols were installed in 1949 and again in 1992 after the demolition of the Babri Mosque. The sita rasoi and ram chabootara have been given to Nirmohi Akhara.

The bench has also directed maintenance of status quo for three months and invited suggestions from all the parties for demarcation of the land.

In view of the verdict, the nation has been put on high alert. Uttar Pradesh has turned into a fortress with thousands of paramilitary personnel patrolling the streets.

The intelligence network is on high alert throughout the state to monitor movement and activities of anti-social elements.
Aerial surveys of "sensitive places", including the Ram Janmbhoomi complex in Ayodhya has been done, police sources said.

All the security personnel deployed in Ayodhya and Faizabad have been equipped with tear gas shells and rubber bullets and the gazetted officers of various government departments have been asked to assist in policing. They have also been provided with rubber bullets and tear gas shells.

On Tuesday, the Supreme Court paved the way for the Ayodhya verdict to be delivered by the Lucknow bench of the Allahabad High Court.

Ayodhya a Judgement Day

Allahabad High Court ruled by majority that the disputed land in Ayodhya be divided into three parts to be distributed among the Sunni Waqf Board, Nirmohi Akhara and the party for 'Ram Lalla'.

The Allahabad High Court has divided the ownership of the disputed site into three parts: Ram Lalla idol site to Ram, Nirmohi Akhara gets Sita Rasoi and Ram Chabutara, Sunni Wakf Board gets the rest.

How to get your unique ID from govt of India( Aadhaar)

India's ambitious Unique ID project dubbed "Aadhaar", which aims to give every Indian citizen a unique number mapped to biometrics, was launched on Wednesday in the Nadurbar district of Maharashtra. The team got a sneak peek at the UIDAI (Unique ID Authority of India) tech centre in Bangalore, to tell you everything you need to know about the enrolment process.

The setup

The enrollment officer (EO) sits at right angles to you and enters data into a laptop. The insight of the Aadhaar team here is that the person getting enrolled must see what is being entered. Thus there's a monitor in front of you, which mirrors the enrolment officer's screen so that you can point out spelling mistakes or other errors. If the person getting enrolled is illiterate, he or she can nominate someone to accompany and verify. There's a small laser printer behind the EO's laptop and a webcam, fingerprint reader and iris scanner account for the remainder of the hardware setup. Unless, of course, you count the light bulb hanging from the ceiling and a white "roll-up" chart behind you for the "passport photo studio" effect!

Compulsory information

Name (first and last name compulsory but middle name optional), Gender (Male/Female/Transgender) and Date of Birth are the compulsory fields. Whereas postal address is also required, it's more for the sake of mailing your UID number than strictly being a proof of residence. The EO asks you for a PIN code and the city/district fields are automatically populated. The rest of the address is entered manually.

Supporting documents

The UID team acknowledges the fact that a large number of people may not have any supporting documents to prove their identity. In this case, one is allowed to bring another resident who is already in possession of an Aadhaar number to be an "introducer" by vouching for the person seeking to enroll. Of course, there is scope for fraud either with a colluding introducer or by just using fake supporting documents. However, the whole point of Aadhaar is that one can only fake one's identity once and this prevents large-scale "ghost identity" creation, which is the bane of most Indian government schemes. The great PAN (Permanent Account Number with the Income Tax department) card scam after all involved a single person creating thousands of different PAN numbers.


A photograph is taken of the person getting enrolled, purely for the purpose of printing it out on the enrolment receipt, so that illiterate residents have some way of knowing that the receipt indeed belongs to them. Beyond that, the photograph serves no biometric or authentication purpose.


First there's an iris scan where you look into a binocular-like device held up to your eyes by the EO. After that it's the four fingers of each hand, followed by both thumbs (a process familiar to those entering the US) for your 10 fingerprints.

The wait

The EO makes you review the data entered one final time before giving you a laser-printed receipt. Whereas the residents of Tembhali, the "Aadhaar village", were to get their numbers today, the rest of us won't be that lucky. We'll only get to walk away with our receipts and have to wait for the actual number to be delivered by India Post!

Wednesday, September 29, 2010

125 years after first Babri verdict, it's judgment time again

A special Full Bench of Justices S.U. Khan, Sudhir Agarwal and D.V. Sharma of the Lucknow Bench of the Allahabad High Court will pronounce its verdict on the Ayodhya title suits on Thursday. The final hearing began on July 23, 1996, and verdict was reserved on July 26 this year.

On one side are a number of Hindu plaintiffs, who claim that the disputed site belongs to them and is the spot where a Ram temple once existed. On the other is the Uttar Pradesh Sunni Central Wakf Board, which maintains that the site, where the Babri Masjid stood for five centuries before being demolished by mobs on December 6, 1992, is a Muslim place of worship.

The present legal battle over title has gone on for nearly 60 years. On Thursday, the court is expected to rule on that and also perhaps answer several questions framed by itself in the course of the suit. These include whether the disputed site is the birthplace of Lord Ram and whether the Babri Masjid was built after demolishing a temple there. According to the Wakf Board, the Muslims offered prayers at the mosque from 1528, when it was built by Mughal emperor Babur, up to 1949, when the gates were locked by the local administration after some miscreants  with the connivance of officials  surreptitiously placed Ram idols inside the mosque.

The mosque was razed by kar sevaks brought to the site by leaders from various parts of the country. In their submissions, the Hindu plaintiffs said their right to worship the deity of Ram Lalla, or the infant Ram, at the disputed site must be recognised by the court as “millions of Hindus” have for “several centuries” believed it to be the Lord's birthplace. Their lawyers adduced historical accounts by foreign travellers suggesting that not only before 1528, but even thereafter, Hindus have held the place itself in great reverence.

The case timeline

Idols of Rama Lalla were placed surreptitiously in the middle of the floor space under the central dome on December 23, 1949. Soon thereafter, devotees assembled there to worship. On December 29, 1949, the city magistrate exercised control over the whole area.

The first suit was filed on January 16, 1950 by Gopal Simla Visharad in the Faizabad civil court for exclusive rights to perform pooja to Ram Lalla. He sought a restraint order on removal of the idols and a temporary injunction was issued. This order was later confirmed by the civil judge and later by a Division Bench of the Allahabad High Court.

On December 5, 1950, Paramahansa Ramachandra Das also filed a suit for continuation of the pooja and keeping the idols in the Babri structure. This was pending till August 1990, when out of sheer frustration he withdrew the case.

The third suit was filed in 1959 by the Nirmohi Akhara, seeking a direction to hand over charge of the disputed site from the receiver. The fourth suit was filed in 1961 by the U.P. Sunni Central Wakf Board for a declaration and possession. The fifth suit was filed on July 1, 1989 in the name of Bhagwan Shree Ram Lalla Virajman for a declaration and possession.

On February 1, 1986, a district judge ordered the locks on the mosque removed and the site was opened for Hindu worshippers. Two years earlier, the Vishwa Hindu Parishad had begun a campaign to “liberate” the so-called birthplace of Lord Rama, and the 1986 decision was widely seen at the time as an attempt by the Congress — then in power at the Centre and in U.P. — to upstage the VHP and the Bharatiya Janata Party.

In 1989, the four suits pending in the Faizabad civil court were transferred to the High Court on an application moved by the U.P. Advocate-General.

On October 10, 1991, the U.P. government acquired the 2.77-acre of land around the disputed structure for the convenience of devotees who attend Ram Lalla darshan. On January 7, 1993, the Government of India, with the consent of Parliament, took over some 67 acres of land all around the disputed area and sought the Supreme Court's opinion on whether there existed a Hindu place of worship before the disputed structure was built. But it declined to answer the question. On October 24, 1994, it turned the case back to the Lucknow Bench of the High Court and the suits were heard again from 1996.

Long legal history

In fact, the first suit was filed in 1885, when the Faizabad Deputy Commissioner refused to let Mahant Raghubar Das build a temple on land adjoining the mosque. Das then filed a title suit in a Faizabad court against the Secretary of State for India, seeking permission to build a temple on the Chabutra on the outer courtyard of the Babri Masjid.

His suit was dismissed on grounds that the alleged demolition of an original Ram temple in 1528 had occurred over 350 years earlier, and so it was “too late now” to remedy the grievance. “Maintain status quo. Any innovation may cause more harm than any benefit,” the court said. This suit was revived in 1950.

In August 2002, the High Court ordered a survey by the Archaeological Survey of India to find out whether a temple existed below the mosque or not.

Mumbai-style terror plot targetting European cities uncovered

Media reports quoted security forces as saying that small teams of commandos were to ‘seize and kill’ hostages.

Intelligence agencies on Wednesday claimed that they had uncovered and foiled a plot by Pakistan-based groups to launch simultaneous, Mumbai-style terror attacks against high-profile targets in Britain, France and Germany.

Media reports quoted security forces as saying that small teams of commandos were to ‘seize and kill’ hostages. According to the BBC, the plot is believed to have moved from the ‘aspirational stage to actual planning’.

“Western security agencies may have been hoping to keep the matter out of the public realm for longer so criminal evidence could be gathered but initial details were leaked to the US media,” it said.

In recent weeks, America has intensified its drone attacks against militants in Pakistan to pre-empt the alleged plot. It has been reported that 20 Predator attacks have taken place this month so far — more than twice the number normally launched in a whole month.

The Times said that suspected ‘Islamists’ had been under surveillance for some time. It reported intelligence sources as saying that this was an ongoing investigation and was ‘not over yet’.

“The exact targets of the planned assaults have not been revealed but are believed to involve well-known buildings and sites,’’ it said.

Prime Minister David Cameron was said to have been ‘shocked’ when informed about the alleged plot.

The head of MI5 Jonathan Evans warned of the continuing threat of terror attacks, particularly from groups with links to Pakistan. There were, however, no plans to raise the UK threat level which remains at ‘severe’, meaning that a terror attack is highly likely but not imminent.

India launches ambitious national identity scheme

India has launched a huge national identity scheme aimed at cutting fraud and improving access to state benefits.

Using biometric methods, including an iris scan, the system will log details of India's population of more than one billion people on a central database.

Dr. Singh and Ms. Gandhi distributed the first ten ‘Adhaar’ cards of Unique Identification Authority of India to ten residents of the tribal hamlet at a function attended by Maharashtra Governor K. Shankaranarayanan, Chief Minister Ashok Chavan, Planning Commission Deputy Chairman Montek Singh Alhuwalia and UIDAI chief Nandan Nilekani.

It was launched by Prime Minister Manmohan Singh and Congress party leader Sonia Gandhi in western India.

The biometric evidence will be stored online in what will be the biggest such national database in the world.

The unique identification (UID) programme will help those in poor, marginalised communities who find it difficult to access public services and benefits because they do not have official records, officials say.

The government expects to give a UID number to every Indian citizen within five years.

Birth registration is not universal and it is hoped that the database will give an accurate picture of Indian society, correspondents say.

Calcutta HC strike: State Govt writes to CJ

As the indefinite strike by Calcutta High Court employees entered its eighth day today, the West Bengal government today said a decision on their demand for pay hike would be taken within 15 days if they withdrew the agitation.

“We are examining the recommendations of the High Court Pay Committee received on August 27. We will write to the Chief Justice of Calcutta High Court within 15 days of withdrawal of strike,” Finance Minister Asim Dasgupta told reporters.

The employees would communicate their decision on the strike by 1:00 PM tomorrow, high court sources said.

The union leaders would meet tomorrow and discuss the condition given by the Finance Minister and then communicate their decision to the Registrar General of the high court, they said.

Dr. Dasgupta, however, claimed that over 40 per cent hike on an average has already been given to the employees with effect from April 1, 2009, and two instalments of arrears have been cleared.

Meanwhile, the High Court pay committee recommended further pay revision on August 27, Dr. Dasgupta said adding he along with Law Minister Rabilal Moitra and State’s Advocate General Balai Roy had an informal meeting on the issue.

Doors of courtrooms and judges chambers remained locked and thousands of litigants suffered as their cases could not be heard due to the strike that began on September 21.

Court employees did not report for duty in response to the strike call given by different unions.

The striking employees have claimed that they were yet to get any pay hike despite Central and State governments implementing pay commission recommendations.

Homeland Security apologises to Praful Patel

The United States Homeland Security has apologised to Civil Aviation Minister Praful Patel who was questioned by the immigration authorities in Chicago as his name and date of birth happened to match with that of a person on America’s watch-list.

Mr. Patel, who was in Chicago on a private visit and flew to Montreal for attending an official engagement, was stopped and quizzed at the O’Hare airport.

The Minister was asked why he was visiting the U.S. and whether he had stayed in the country earlier.

U.S. Secretary of Homeland Security, Janet Napolitano, later apologised to Mr. Patel over the issue.
She also gave an assurance that the US will do whatever required to make necessary amends to prevent any such incidents in the future, Civil Aviation Ministry officials said.
Mr. Patel has earlier sought to downplay the episode and said nothing serious had happened.
“I am in Montreal and nothing serious has happened...there is a person with similar name and birth date. That’s why they just double checked,” he said.
Mr. Patel was questioned by the immigration officials after his name matched with a similar name who is reportedly on US’ watch list.
Brian Bell, the Public Affairs Liaison for Customs and Border Protection at O’Hare International Airport said
“There are 17,000 passengers per day through the O’Hare Airport and it is not uncommon to deal with people whose names are on the US Watch List. Even if If the person is on the US Watch List, he is let off if he is not a person of interest,” he said.
“We deal with such people quickly and efficiently and we release people who do not match,” Mr. Bell added.

HC rejects Kasab’s plea for closed-door interview with lawyers

With strong objections from the prosecution and police and after taking note of the past records of Mohammad Ajmal Kasab, the Mumbai terror convict, the Bombay High Court today rejected his plea for a closed-door meeting with lawyers

Taking note of the past records and aggressive behaviour of Pakistani terrorist Mohammad Ajmal Kasab, the Bombay High Court today rejected his plea for a closed-door meeting with lawyers to take a stand on the confirmation of death sentence awarded to him for his role in the 26/11 attacks.

Justice Ranjana Desai and Justice R. V.More, while dismissing the plea, said they had viewed a CD of CCTV footage submitted by Government Counsel Ujjwal Nikam which showed Kasab attacking prison personnel on September 1 and also considered the past experiences of Kasab on his aggressive posture in jail.

“Threat perception to Kasab cannot be questioned by this court in a case of this nature....National interest and safety outweighs all other considerations. Therefore, we reject Kasab’s prayer seeking legal interview not within the hearing distance of jail staff and police,” the two-judge bench observed.

Kasab’s lawyer Amin Solkar argued that enough security had been provided in and around the jail where Kasab is lodged and said his client wanted to give him instructions in a free atmosphere and not in the presence of police and jail staff.

Nikam objected to Kasab’s plea, saying he was a trained commando, and with swift movements he could pose a danger to his own life as well as to jail guards. Presence of jail staff was necessary to control his aggressive movements.

He submitted confidential reports about Kasab’s behaviour in jail during the trial and thereafter.

The High Court ordered that these reports be kept confidential till the hearing concludes.

The court agreed with Nikam that the presence of jail staff was necessary within a hearing distance from Kasab, taking into account serious threat perception to him and his past experiences in judicial custody.

However, it made it clear that police personnel, particularly those connected with the 26/11 investigation, shall not remain present during the interview.

The Bench referred to judgements given by Supreme Court and Rajasthan HC which had imposed reasonable restrictions on interviews of convicts with lawyers.

The Judges referred to Rule 9(7) of Maharashtra Prison Rules (MPR) which states that if any objectionable matter is being discussed between a convict and his lawyer, the jailer has the discretion to stop it.

They mentioned Rule 11 of MPR which says that every interview with a prisoner shall be held in the presence of jail staff. They also pointed to Rule 13 which states that if interview is in a language not understood by jailer then it can be allowed only in the presence of an interpretor.

The court was of the view that a jailer could use his discretion in allowing convicts, particularly those who have been awarded death sentence, to have interviews with lawyers.

The presence of jail staff is a must in this case.

Having seen relevant rules and CCTV footage we are of the view that the judgements cited by Kasab’s lawyer are not applicable here. The applicant can have interviews within the sight and hearing of jail staff”, the judges noted.

Outside the court, Kasab’s lawyer said, “We are thinking to challenge this order in Supreme Court“.

On May 6, Kasab was awarded death penalty by the trial court for his role in the November 26, 2008 attacks that left 166 people dead.

While handing down death sentence, the court had said that keeping him alive will be a “lingering danger“.

“Keeping Kasab alive would be a lingering danger to the society and the Indian Government,” Special Judge M. L Tahaliyani had observed and added “the possibility of Kasab reforming is completely ruled out.”

The Pakistani terrorist, the only one to be caught alive among the 10 attackers, is lodged in a bomb and bullet— proof cell in the Arthur Road Jail here which is heavily guarded by Indo-Tibetan Border Police.

Tuesday, September 28, 2010

Getting back money deposited in court may become a speedy affair

Ahmedabad: If the chief justice gives nod to the observation made by a division bench, litigants may soon find it easy to claim their money back deposited with courts. A bench last month suggested that the courts should adopt the practice of electronic fund transfers instead of drawing cheques.

A bench of Justice Jayant Patel and Justice Abhilasha Kumari had also observed that all courts in the state should do away with the practice of drawing cheques, for it results in unnecessary delay in transfer of money. Since the new technology is available to speed up the process, the judiciary should adopt it. The bench had observed that it would save a lot of time, energy, cost and manpower at every level. However, the bench referred the issue to the chief justice for approval.
Accordingly, the bench headed by the chief justice has taken up proceeding suo motu in this regard. Due to the busy schedule on Monday, the case could not be taken up for hearing.

India Ayodhya mosque ruling expected later this week

The Supreme Court of India has cleared the way for a lower court to rule on the long-running Ayodhya dispute.

Last week it ordered the Allahabad High Court to defer judgement to give Hindus and Muslims more time to resolve the 150-year dispute.

The High Court is set to rule on who owns land where a 16th Century mosque was destroyed by Hindus in 1992.

Hindus claim the site in the northern state of Uttar Pradesh is the birthplace of their god, Lord Ram.

The destruction of the mosque led to widespread rioting between Hindus and Muslims and some 2,000 people died.

It was some of the worst Hindu-Muslim violence since the partition of India in 1947.

Communal passions
The High Court was to have ruled on Friday on whether the site should be given to the Hindu community to build a temple or returned to the Muslim community to rebuild the 16th-Century Babri Mosque.

Correspondents say that the ruling is expected to be made before Friday, because one of the three High Court judges retires then.

India's home ministry has already warned that the legal decision is likely to evoke sharp reactions and communal passions.

The Uttar Pradesh state government has deployed thousands of extra security forces to deal with any law and order problems.

Monday, September 27, 2010

SC slams CBI for dilly-dallying on Maya assets case

The Supreme Court on Monday slammed the CBI for dilly-dallying on the issue of prosecuting UP chief minister Mayawati in the disproportionate assets case. A Bench of Justices B Sudershan Reddy and S S Nijjar bluntly told the CBI counsel that if it was not keen on pursuing the case, then the “petition must go”. “What is this? Every time, you seek time or an adjournment. Sometimes, you seek time for filing reply, then you say that you want to file a counter affidavit then you say that you want to file an affidavit. If both of you are together then let this pe-tition go,” the bench remarked when CBI counsel sought adjournment of the matter on plea of filing a reply in the case.

Earlier, the CBI had said that Mayawati’s prosecution in the disproportionate assets case cannot be dropped as it has found cogent, credible and admissible evidence against her.
The probe agency, in an affidavit filed in response to Mayawati’s contention that the proceedings against her be dropped in the wake of the Commissioner Income Tax (CIT appeal) order of April 5 and 19, 2010 giving her a clean chit, said that the order has been challenged before the Income Tax Appellate Tribunal (ITAT). Earlier, the CBI had submitted that it will consider arepresentation made by Mayawati for closure of proceedings against her in the corruption case in view of the favourable orders passed by the income tax authorities.The chief minister, in her affidavit, had alleged that the CBI was proceeding in a discriminatory and hostile manner against her in the DA case by adopting different yardsticks vis-a-vis cases those involving Mulayam Singh Yadav and Lalu Prasad.
According to Mayawati, the case registered against her by the CBI six years ago has been “completely demolished” by the two orders that the income tax department passed on April 5 and 19 in her favour. The I-T orders relate to the assessment years 2001-02 and 2002-03.
The investigating agency had said there was evidence to prove that the BSP chief and her family members acquired assets far exceeding their legal sources of income.
The agency had pointed out that her declared assets of Rs 1 crore in 2003 went up to Rs 50 crore in 2007 and said there was “ample evidence” to show she had amassed wealth disproportionate to her known sources of income. PTI

Court denies Zakia Jafri’s plea to depose from home

Ahmedabad: The special court hearing Gulbarg Society massacre case on Monday rejected an application of the special investigation team (SIT) to set up a court commission to record testimony of widow of former Congress MP Ahsan Jafri, Zakia Jafri, at her home in Surat.

Last week, designated judge B U Joshi had dismissed a similar plea filed by Jafri citing her inability to move out of her house due to recent knee replacement surgery. The court had set Monday as the deadline for Jafri to come and depose before the court. The procedure of recording her statement has been delayed since February.
On Monday, special public prosecutor R C Kodekar submitted an application for constitution of a court commission to record Jafri’s statement, stating that she was an important witness for the prosecution. But the special judge held that the court would not form such a commission. However, the court did extend the deadline for Jafri and allowed her to come and depose before the court anytime till the deposition of the investigation officer — DSP J M Suthar was underway.
Jafri is the last witness in this sensitive case to be assessed by the court. Till date, some 332 witnesses have been examined during the trial going on against 67 accused.
It was on Jafri’s petition that the Supreme Court had asked SIT to probe whether there was a larger conspiracy behind the violence that took place at the colony situated in Chamanpura area.
Zakia had complained against 62 persons, including chief minister Narendra Modi. 69 persons were killed in the colony on February 28, 2002.

HC dismisses review plea against Nirma plant

Ahmedabad: The Gujarat High Court on Monday dismissed the review petition filed by a group of farmers against the court verdict giving green signal to Nirma Ltd to construct a cement plant along Mahuva’s coastline.
Shree Mahuva Bandhara Khetiwadi Pariyavan Bachav Samittee, which had fil-PIL in the high ed the court, has also approached the Supreme Court.

Meanwhile, the farmers also filed a review petition citing environmental issues, which according to them were not taken into consideration by the high court while rejecting their PIL. Appearing for the petitioner, senior counsel SB Vakil contended before a bench headed by Chief Justice S J Mukhopadhaya that the bench itself had accepted the fact that water body existed on the land. Still allowing the company to put up construction and accepting Nirma’s offer to surrender a plot was nothing but an effort by the high court to protect the project, and not to protect the water body.
Advocate Vakil argued that the order of the high court can be seen in violation of earlier order, wherein a bench issued directions not to disturb a water body at any cost. He also contended that the high court’s order looks like “fine-tuning” of the state government’s order, though the court is neither an executive body nor an expert body.
The state government and the company’s counsel opposed the petitioner’s arguments.
In April, the high court permitted Nirma to put up the cement plant at the disputed land on certain conditions for protection of reservoir. The court directed Nirma to surrender 46 hectare land to the state government within four weeks as per the proposal mooted by the company itself in order to appease the agitators during the hearing. Earlier, the company had surrendered 54 hectare land as per recommendations of a government’s advisory committee. Thus the cement plant, for which the government had allotted 268 hactare land, will have to come up on 168 hactare land.





CIVIL APPEAL NOS.4608-4609 OF 2005







D.K. JAIN, J.:

1.Challenge in this batch of appeals filed by the revenue under Section

35(L)(b) of the Central Excise Act, 1944 (for short "the Act") is to the orders

passed by the Customs, Excise and Service Tax Appellate Tribunal, South

Zone (for short "the Tribunal"), inter alia, holding that the duty of Central

Excise on shrimps and shrimp seeds produced and removed by the

respondent (hereinafter referred to as "the assessee"), a 100% Export
Oriented Unit (for short "EOU"), in the Domestic Tariff Area (for short

"DTA") without the approval of the Development Commissioner, would be

payable under Section 3(1) of the Act and not under the proviso appended


2.Since the question of law arising for our consideration in all the appeals is

the same, they are disposed of by this common judgment. In order to

comprehend the controversy in these appeals, a brief reference to the facts in

Civil Appeal Nos.4608-4609 of 2005, which was treated as the lead case,

would suffice:

The assessee company is engaged in the production of shrimps and

tiger prawns, falling under Chapter Sub Heading No.0301.00 of the

Schedule to the Central Excise Tariff Act, 1985 (for short "the Tariff Act").

They imported some capital goods, viz. sand blowers and air filters, duty

free under Customs Notification Nos. 188/93 dated 27th December 1993 and

196/94 dated 8th December 1994 for use in their integrated Aquaculture

project. The imports were subject to the condition that the said goods would

be used in the production of aquaculture products and 100% or such other

percentage of the said products, as may be fixed by the Board of Approvals

for 100% EOU, shall be exported out of India for a period of ten years or

such extended period as may be specified by the said Board.

3.As per the Exim Policy (1st April 1992 to 31st March 1997), an EOU Aqua

culture unit was permitted to sell upto 50% of its production in value terms

in DTA, in accordance with the DTA sales guidelines notified in that behalf

and subject to minimum value addition.

4.The guidelines for sale of goods in the DTA by an EOU were prescribed

under Appendix XXXIII of the Hand Book of procedures for the

aforementioned period. As per the said guidelines, sale of goods in the DTA

was subject to payment of applicable duties as notified from time to time by

the department of revenue; the units could opt for DTA sales on a quarterly,

half yearly or annual basis with an intimation to the Development

Commissioner of the EPZ concerned; application for DTA sales was to be

accompanied by a statement disclosing information regarding ex-factory

value of goods produced and of goods actually exported, and the

Development Commissioner was to determine the extent of DTA sales

admissible and issue goods removal authorisation in terms of value and

quantity for sale in DTA.

5.It appears that during the period 1994-95 to 1997-98, the assessee

produced and sold 11,15,29,540 number of shrimp seeds and 48,365 Kgs. of

shrimps in DTA without obtaining the permission of the Development

Commissioner; without issuing proper invoices as mandated under Rule

100E of Central Excise Rules, 1944 (for short "the Rules") and without

payment of Excise Duty. Besides, the assessee also undertook certain job

work whereby it processed 864.238 MT of shrimps and 905.580 MT of fish

and cleared the said goods in DTA. According to the assessee, these goods

were ultimately exported by the DTA units.

6.On 2nd September 1998, a notice was issued to the assessee to show cause

as to why duty of excise equal to aggregate of the duties of customs,

amounting to Rs. 7,80,58,074/-, should not be levied in terms of Section 3 of

the Act read with Rule 9(2) read with proviso to sub-section (1) of Section

11A of the Act, and interest at 20% from first day of the month till the date

of payment of duty should not be imposed under Section 11AB of the Act.

An additional penalty of Rs. 7,80,58,074/- for non-payment of duty for the

reason of wilful suppression of facts and contraventions of the provisions of

the Act, together with additional penalty under Rule 173Q(1) for

contravention of Rule 9(1), 100D, 100E and 100F of the Rules for clearing

goods without issuance of a proper invoice was also proposed to be imposed

on the noticee.

7.The assessee contested the notice on diverse grounds. On adjudication, the

Commissioner of Central Excise & Customs, Visakhapatnam, vide Order-in-

Original No. 9/99 dated 15th April 1999, demanded a duty of

Rs.1,83,46,493/- on the shrimp seeds, shrimps and fish, cleared by the

assessee, under proviso to Section 11A of the Act. Interest at 20% was

demanded on Rs.1,13,05,410/- as being the duty evaded on shrimp seeds,

shrimps and fish cleared after 28th September 1996 under Section 11AB of

the Act. Penalty of Rs. 1,13,05,410/- was imposed under Section 11AC of

the Act with respect to duty evaded since 25th September 1996, and of Rs.

8,00,000/- under Rule 173Q(1) of the Rules.

8.The revenue as well as the assessee questioned the correctness of the

adjudication order by preferring appeals before the Tribunal.

9.The Tribunal, vide order dated 27th December 2004, allowed the assessee's

appeal and dismissed the appeal filed by the revenue. Reversing the order of

the Commissioner, the Tribunal observed thus:

"The commissioner, after classifying the shrimp seeds under
chapter 3, has worked out the amount equal to the aggregate of
the Customs duty leviable as per proviso to section 3(1) of the
CE Act, 1944 and demanded the same. It is on record that for
clearing the shrimp seeds, no permission was taken from the
Development Commissioner. When the goods are cleared with
the permission of the Development Commissioner, then only
proviso to section 3(1) of the CE Act, would be applicable. In
Sam Spintex Ltd. Vs. CCE, Indore 2004 (163) ELT 212 (Tri.-
Del.), it has been held that when there is a removal to DTA
without permission of the competent authority, duty is leviable
under main section 3 of the CE Act, 1944 and not its proviso.
While arriving at the above decision, the Hon'ble Tribunal
relied on the decision in the case of CCE Vs. Pratap Singh 2003
(153) ELT 711 (Tribunal) which has been affirmed by the Apex

Court vide its order reported in 2003 (156) ELT A382. In view
of the above decision, even if the Commissioner's finding on
the classification of Shrimp seeds is upheld, the duty would be
Nil. In that case, the classification issue becomes academic.
However, after going through the HSN Explanatory notes, we
are convinced that Chapter 3 would not cover items unfit for
human consumption. In the present case, the Shrimp seeds are
undoubtedly not fit for human consumption in that stage.
Therefore, it would not be excisable at all. In view of this
finding, the demand of duty on the Shrimp seeds cleared would
be not sustainable."

In relation to the goods cleared on job work basis, the Tribunal held that

since goods were cleared to other exporters, there was no duty liability and

even otherwise, since the permission of the Development Commissioner was

not obtained, its decision in the case of Sam Spintex Ltd. Vs. Commissioner

of C. Ex., Indore1 would be applicable. It also held that there being no

convincing evidence showing suppression of facts, the demand itself was

time barred.

10.Being dissatisfied with the order of the Tribunal, the revenue is before us

in these appeals.

11.Mr. R.P. Bhatt, learned senior counsel appearing for the Revenue

contended that since as per Note 1 of Section 1 of the Customs Tariff Act,

1975, any reference in that Section to a particular genus or species of an

animal, except where the context otherwise requires, includes a reference to

2004 (163) E.L.T. 212 (Tri.-Del.)
the young of that genus or species and, therefore, both live shrimps and

shrimp seeds are classifiable under heading 0306.23 of Chapter 3 of the

Customs Tariff Act, 1975. Learned counsel also submitted that the Tribunal

committed an error in relying on the decision of this Court in SIV Industries

Ltd. Vs. Commissioner of Central Excise & Customs2, because unlike in

that case, in the present case, the assessee had sought permission of the

Development Commissioner, who in turn had advised them to approach the

SIA for permission to clear shrimps and shrimp seeds which, in fact, was

granted and, therefore, they were required to pay duty under proviso to

Section 3(1) of the Act. It was argued that under the Exim Policy, an EOU

is obliged to make exports of the entire production itself and not through any

other entity.

12.Per contra, Mr. Joseph Vellapally, learned senior counsel appearing for

the assessee, contended that the DTA sales made by an EOU without

approval of the Development Commissioner are to be assessed to Excise

Duty under Section 3(1) of the Act and not under proviso to the said Section.

In support of the submission, learned counsel placed reliance on the decision

of this Court in SIV Industries (supra) and orders of the Tribunal in

Commissioner of Central Excise, Jaipur-II Vs. Pratap Singh3, Sam

Spintex Ltd. (supra) and Modern Denim Ltd. Vs. Commissioner of Central
2000 (117) ELT 281 (SC)
2003 (153) E.L.T. 711 (Tri.-Del.)
Excise, Ahmedabad 4. Learned counsel also submitted that since shrimp

seeds are microscopic post larva of 20 days, which do not contain meat

and as such are not fit for human consumption, on a plain reading of

Chapter Note 1(b) of Chapter 3 of the Tariff Act, these cannot fall within

tariff entry 0301.00. It was argued that for the purpose of the Exim Policy

sale of shrimps by supporting manufacturers carrying out job work and

clearance of the same directly for exports on behalf of other exporters is to

be treated as export sale and therefore, clearance of shrimps by the

assessee on job work basis could not be treated as DTA sales for the

purpose of the Act. It was asserted that since there was regular

correspondence between the department and the assessee in relation to

these sales and invoices and other documents were also submitted, there

was no suppression of DTA sales by the assessee with the intent to evade

payment of duty, particularly when the entire industry as also the

jurisdictional excise authority were under the impression that no duty was

payable on sale of shrimps and shrimp seeds. In support of the

proposition that a mere violation of rule is not sufficient to invoke

extended period of limitation, learned counsel commended us to the

decisions of this Court in M/s Padmini Products Vs. Collector of Central

Excise, Bangalore5; Collector of Central Excise, Hyderabad Vs. M/s

2005 (191) E.L.T. 1174 (Tri.-Mumbai)
(1989) 4 SCC 275
Chemphar Drugs & Liniments, Hyderabad6 and Gopal Zarda Udyog &

Ors. Vs. Commissioner of Central Excise, New Delhi7.

13.The core question for our consideration, therefore, is whether the sales of

shrimps and shrimp seeds by the assessee in DTA, without requisite

permission from the Development Commissioner, are to be assessed to

Excise Duty under Section 3(1) of the Act or under proviso to the said


14.Before evaluating the rival contentions on the point, we may refer to the

relevant part of Section 3 of the Act, which reads as follows :

"3. Duties specified in the Schedule to the Central Excise
Tariff Act, 1985 to be levied.--(1) There shall be levied
and collected in such manner as may be prescribed duties of
excise on all excisable goods other than salt which are
produced or manufactured in India and a duty on salt
manufactured in, or imported by land into, any part of India
as, and at the rates, set forth in the Schedule to the Central
Excise Tariff Act, 1985 :
Provided that the duties of excise which shall be levied
and collected on any excisable goods which are produced or

(i) in a free trade zone and brought to any
other place in India; or
(ii) by a hundred per cent export-oriented
undertaking and allowed to be sold in
shall be an amount equal to the aggregate of the duties of
customs which would be leviable under Section 12 of the
Customs Act, 1962 (52 of 1962) on like goods produced or
(1989) 2 SCC 127
(2005) 8 SCC 157
manufactured outside India if imported into India, and where
the said duties of customs are chargeable by reference to
their value, the value of such excisable goods shall,
notwithstanding anything contained in any other provision
of this Act, be determined in accordance with the provisions
of Customs Act, 1962 (52 of 1962) and the Customs Tariff
Act, 1975 (51 of 1975)".

15.It is manifest that all excisable goods produced or manufactured in India

are exigible to duty of Excise under Section 3 of the Act, the charging

Section, at the rates set forth in the Schedule to the Tariff Act. However,

proviso to the said Section provides that the duties of Excise on any

excisable goods, which are produced or manufactured by a 100% EOU and

allowed to be sold in India shall be an amount equal to the aggregate of the

duties of customs which would be leviable under Section 12 of the Customs

Act, 1962. As aforestated, the controversy at hand is whether in the absence

of an order by the competent authority, allowing the assessee to sell the

shrimp seeds and shrimps in India, Excise Duty on such sales could be

levied and collected in terms of the proviso. To put it differently, the issue

relates to the significance of the expression "allowed to be sold in India" as

appearing in clause (ii) to the proviso to sub-section (1) of Section 3 of the


16.A similar issue fell for consideration of this Court in SIV Industries

(supra). In that case, the assessee was a 100% EOU. Later on they sought
permission to withdraw from 100% EOU Scheme, for which the Ministry

accorded the necessary permission. However, some of the goods lying in the

unit were removed prior to the debonding. A dispute arose regarding the

rate of duty payable on such sales. The plea taken by the assessee was that

they were liable to pay duty under Section 3(1) of the Act together with

customs duty on the imported raw material used in the manufacture of said

finished goods, lying in the stock whereas the stand of the revenue was that

Excise Duty under the proviso to Section 3(1) of the Act was payable on the

finished goods with no customs duty being leviable on the raw materials

used in the manufacture of finished goods. Thus, the bone of contention in

that case was also with regard to the interpretation of the expression

"allowed to be sold in India" appearing in the said proviso. Interpreting the

said expression, this Court held that the expression "allowed to be sold in

India" used in the proviso to Section 3(1) of the Act is applicable only to

sales made in DTA up to 25% of the production by 100% EOU, which are

allowed to be sold into India as per the provisions of the Exim Policy. No

permission was required to sell the goods manufactured by 100% EOU lying

with it at the time the approval is accorded to debond. The Court opined

that the goods having been sold without permission of the Central

Government to debond the unit, the duty on the goods sold by the assessee

was leviable under main Section 3(1) of the Act.

17.It is pertinent to note that after the decision in SIV Industries' case

(supra), a Circular was issued by the Central Board of Excise & Customs,

New Delhi clarifying that prior to 11th May, 2001, the clearances from

EOUs, if not allowed to be sold in India, shall continue to be chargeable to

duty under main Section 3(1) of the Act. For the sake of ready reference

Circular No. 618/9/2002-CX dated 13th February, 2002 is extracted below:

"Circular :618/9/2002-CX dated 13-Feb-2002

EOU- Removal of goods by 100% EOU to DTA - Non-
levy of duty under Section 3(1) of Central Excise Act,
1944 -Clarifications

Circular No. 618/9/2002-CX., dated 13-2-2002
F. No. 268/69/2001-CX.8
Government of India
Ministry of Finance (Department of Revenue)
Central Board of Excise & Customs, New Delhi
Subject : Removal of goods by 100% EOUs to DTA -
Non-levy of duty under Section 3(1) of Central Excise
Act, 1944.

I am directed to invite reference to Supreme
Court's judgment in case of SIV Industries v. CCE [2000
(117) E.L.T. 281 (S.C.) vide which the Apex Court had
held that "proviso to Section 3(1) regarding the duty
chargeable on goods cleared by EOUs shall be applicable
only to sales made in DTA upto 25% of production
which are allowed to be sold into India as per provisions
of EXIM Policy". In other words, Hon'ble Court decided
that if the goods are "not allowed" to be sold in India, the
proviso to Section 3(1) of Central Excise Act, 1944 shall
not be applicable. The expression `allowed to be sold'

has since been replaced with `brought to any other place'
w.e.f. 11-5-2001 vide Section 120 of Finance Act, 2001
[14 of 2001].
2. It has come to the notice of the Board that field
formations are interpreting the judgment of Apex Court
to the effect that if the goods cleared by EOUs are not
allowed to be sold into India, the Section 3(1) of Central
Excise Act, 1944 is not applicable and duty can be
demanded under the provisions of Customs Act, 1962
only. Board has taken a serious view of this mis-
interpretation. The provisions of Central Excise Act,
1944 shall apply to all goods manufactured or produced
in India for which Section 3 is the charging section.
EOUs are also situated in India and the chargeability
under Central Excise Act is never in doubt. Therefore, it
is clarified that prior to 11-5-2001, the clearances from
EOUs if not allowed to be sold in India, shall continue to
be chargeable to duty under main Section 3(1) of Central
Excise Act, 1944. Appropriate action may be taken
immediately to safeguard revenue and all pending
decisions may be settled accordingly."
(Emphasis added by us)

18.As aforesaid, according to the Exim Policy 1992-1997 read with

Appendix XXXIII of the Handbook of Procedures, an EOU may sell 50% of

its production in value terms into a DTA only on issuance of a removal

authorization by the Development Commissioner.

19.In the instant case, admittedly at the time of sales of shrimps and shrimp

seeds by the assessee in DTA, the Development Commissioner had not

issued the requisite removal authorization. Therefore, in view of the dictum

of this Court in SIV Industries (supra), with which we are in respectful

agreement, and the afore-extracted Circular issued by the Board following
the said decision, Excise Duty on such sales is chargeable under main

Section 3(1) of the Act.

20.Having come to the aforenoted conclusion, the controversy with regard to

classification of the shrimp seeds is more in the nature of an academic

exercise in as much as even if the finding of the Commissioner on

classification of shrimp seeds is affirmed, still the duty payable on these

goods would be nil. For the sake of ready reference, the relevant entry in

Chapter 3 of the Tariff Act is extracted below:

"Heading Sub-heading Description of goods Rate of
No. No. duty

(1) (2) (3) (4)

03.01 0301.00 Fish and crustaceans, Nil"
molluscs and other
aquatic invertebrates

21. Thus, it is evident that even if the stand of the revenue is accepted and

shrimp seeds are classified under sub-heading 0301.00 of the Tariff Act, the

rate of Excise Duty chargeable would be nil. Similarly, if the Excise Duty

payable is nil, the other question regarding the extended period of limitation

on the alleged ground of suppression of sales also pales into insignificance.

22.For the foregoing reasons, the impugned orders passed by the Tribunal

cannot be flawed and deserve to be affirmed. Resultantly, these appeals,

being bereft of any merit, are dismissed accordingly. No order as to costs.


SEPTEMBER 24, 2010