evolawyer/inlegalbert-sc-ner-silver huggingface dataset:
M/S. WESTON COMPONENTS LTD. v.

COMMISSIONER OF CUSTOMS, NEW DELHI

JANUARY 4, 2000

B (B.N. KIRPAL AND S. RAJENDRA BABU, JJ.j

Customs Act, 1962 :

Customs-Redemption fine---Goods in custody of custom C authority-Goods released to party on execution of bond-Subsequently it was found import was not valid-Held mere release of goods would not take awiry .. power of the authorities to levy redemption fine.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7144 of 1999.

From the Judgment and Order dated 20.8.99 of the Central Excise Gold (Control) Appellate Tribunal, Delhi in A. No. C/44/98A in P.O. No. 1160 of 1999-A.

E L.P. Asthana, C.N. Sreekumar and G. Prakash for the Appellant.

The following Order of the Court was delivered :

It is contended by the learned counsel for the appellant that redemption fine could not be imposed because the goods were no loger in the F custody of the respondent-authority. It is an admitted fact that the goods were released to the appellant Ou an application made by it and on the appellant executing a bond. Under these circumstance& if substquently it is found that the import was not valid or that there was any other irregularity which would entitle the customs authorities to confiscate the said G goods, then the mere fact that the goods were released on the bond being executed would not take away the power of the customs authorities to levy redemption fine.

The appeal is dismissed.

H T.N.A.

Appeal dismissed.
COMMISSIONER OF INCOME-TAX, BOMBAY

MIS. KANJI SHIVJI AND CO.

JANlJARY 25, 2000

(S.P. BHARUCHA, A.P. MISRA AND N. SANTOSH HEGDE, JJ.j

Income Tax Act, 1961.

Section 40(b)-Explanation (2)--Scope and interpretation of-Held: Explanation is declaratory in nature.

Brij Mohan Das Laxman Das v. Commissioner of Income Tax, 223 I.T.R. 825 and Suwalal Anandilal Jain v. Commissioner of Income Tax, 224 LT.R. 753, reiterated.

Rashik Lal & Co. v. Commissioner of Income Tax, 229 I.T.R. 458, D explained. (Observation's therein pertaining to explanation 2 to section 40(b) of Income Tax Act, 1961 held obiter dicta)

CIVIL APPELLATE JlJRISDICTION : Civil Appeal No. 9777 of 1995.

From the Judgment and Order dated 8.9.88 uf the Bombay High Court in I.TA. No. 112 of 1988.

H.N. Salve, Solicitor General, Harish Chandra, K.N. Shukla, B. Sen, (A.C.), S. Rajappa, Ms. Sushma Suri, Shail Kumar Dwivedi, A.V. Rangam, B. Krishna Prasad, Ms. Renu George, B. Gupta, Ms. Bina Gupta, Mrs.

F Rakhi Ray, Mrs. T. Sudha, Ganpathi Iyer, Gopalkrishnan, Raghavendra Gopal Krishnan and M.B. Rao for the appearing parties.

The following Order of the Court was delivered :

This appeal stands referred to a Bench of three Judges because it G was found that a Bench of two learned Judges had taken the view that the conclusion of an earlier Bench of three learned Judges was difficult to accept. The issue relates to whether Explanation (2) to Section 40(b) of the Income Tax Act, 1%1, introduced with effect from 1st April, 1985, is prospective in operation or only declaratory.

H 365

SUPREME COURT REPORTS

[2000] 1 S.C.R.

A In Brij Mohan Das Laxman Das v. Commissioner of Income Tax, {223 l.T.R. 825), two learned Judges concluded that the said Explanation was declaratory. This view was accepted by a Bench of three learned Judges in Suwalal Anandilal Jain v. Commissioner of Income Tax, {224 l.T.R. 753).

In the case of Rashik Lal & Co. v. Commissioner of Income Tax, (229 B l.T.R. 458), this vitw was doubted. A Btnch of two learned Judges observed that it was difficult to accept the proposition that the said Explana: tion was only clarificatory for the reason that if what was contained in the said Explanation was already the law in force, then giving effect to the said Explanation from 1st April, 1985 did not make any sense. But the Bench C immediately noted, "However, in the case before us, no question of payment of any interest is involved". In other words, the application of Section 40{b) and the said Explanation was not really in issue in Rashik Lat's case.

The observations in Rashik Lat's case relative to the said Explanation must, therefore, be treated as obiter dicta.

' .

D The conclusion of the court in the tarlier cases of Brij Mohan Das Laxman Das and Suwalal Anandilal Jain still represents the com:ct exposition of the law. Following these decisions, the civil appeal must be dismissed.

We are obliged to Mr. B. Sen, learned counsel, for his assistance at E our request.

Appeal dismissed.

No order as to costs.

T.N.A.

Appeal dismissed.
RAMAVILASOM GRANDHASALAAND ORS.

A v.

N.S.S. KARAYOGAM

MAY 5, 2000

[V.N. KHARE AND N. SANfOSH HEGDE, JJ.] B

Code of Civil Procedure, 1908 :

S. 100-High Court deciding second appeal without fonnulating any substantial question of law as required under sub-section (4) of s. JOO-Held, C High Court is required to frame substantial question of law and only then it acquires jurisdiction to decide second appeal on merits-Judgment of High Court set aside-Matter sent back to it to decide appeal after framing substantial question of law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3269 of 2000.

From the Judgment and Order dated 19 .12.98 of the Kerala High Court in S.A. No. 1155 of 1989.

S.V. Rajan, C.N. Sree Kumar and P. Sureshan for the Appellant.

T.L.V. Iyer and Remesh Babu M.R. for the Respondent.

The following Order of the Court\was delivered :

Leave granted.

The plaintiff-respondent filed a suit for declaration and possession. The said suit was dismissed. An appeal against the said decree was also dismissed.

Thereafter the plaintiff-respondent filed a second appeal before the High Court. The High Court without formulating any substantial question of law, as required uner sub-section (4) of Section 100 of Code of Civil Procedure allowed the second appeal and decreed the suit. It is against the said judgment the defendant-appellant is in appeal. This Court on more than one occasion . has held that under sub-secti?n (4) of Section 100 of Code of Civil Procedure, the High Court is required to frame substantial question of law and only then it acquires jurisdiction to decide a Second Appeal on merits. In this case the 1151

. 1152

SUPREME COURT REPORTS

[2000] 3 S.C.R.

A High Court without framing any substantial question of law has allowed the appeal and this in itself is a sufficient ground to set aside the judgment under appeal. We, accordingly, set aside the judgment under appeal and send the matter back to the High Court to decide the appeal only after framing substantial question of law which may arise in the case.

B The appeal is allowed. The High Court may decide the matter as expeditiously as possible. No costs.

R.P.

Appeal allowed.