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Jai Hind Jai Bharat

Wednesday, March 30, 2011

Representation of People (Amendment) Act, 2010


The Representation of the People (Amendment) Act, 2010 (36 of 2010) which seeks to amend the Representation of the People Act, 1950 (43 of 1950) was enacted and published in the Gazette of India on the 22nd September, 2010. The amending Act confer voting rights to citizens of India who are absenting from their place or ordinary residence in India owing to their employment, education or otherwise outside India (whether temporarily or not). Vide the amending Act, they shall be entitled to have their names registered in the electoral roll in the Assembly/Parliamentary constituency in which their place of residence in India as mentioned in their passport is located.



The Central Government, in consultation with the Election Commission prepared and published the Registration of Electors (Amendment) Rules, 2011 on 3rd February, 2011 {S.O 244 (E)} dt. 03.02.2011} {S.O. 306 (E) dt 09.02.2011}. The Central Government has issued necessary notification bringing the Act into force on the 10th day of February, 2011. Accordingly, the rules have also come into force on the 10th day of February, 2011. The overseas Indians can now furnish the documents self attested by them.


Living abroad will not stop you anymore to have your say back home in the political and democratic processes, including the general elections.

Indian elections are typically characterised by heat and dust, rebel violence, campaign trails and most importantly the dramatic shifts in political and social orientation of voters, which are visible only in India.

The recent amendments in the Representation of People Act enable people, who are living/working abroad and have not obtained citizenship of any foreign country to use their voting rights in the country. For this, they would have to enrol themselves in the electoral rolls, from where they have been issued passports.

These people are termed as `overseas electors' and will be using their voting rights for the first time in the upcoming assembly polls, to be held in Tamil Nadu, Assam, Kerala and West Bengal and the union territory of Pondicherry in 2011.

According to the Election Commission of India, for getting registered in the electoral rolls, overseas electors will be required to submit claim applications through form 6A in person directly to the election returning officer (ERO) of the constituency concerned or sent by post to the ERO along with self-attested copy of the requisite documents as mentioned in the form 6A. This will confer them the voting rights.

In countries like Great Britain, Australia, Singapore there is a provision for overseas electors to exercise their voting rights.

"The Election Commission has also decided to confer on overseas electors the right to contest an election. The move is already underway with the EC busy formulating the modalities for this," says KF Wilfred, secretary, EC in his latest communication issued on March 23.

Since the process may take some time, the new system will be in place by 2012, when politically crucial state like UP goes to poll along with Uttarakhand, Himachal Pradesh and Punjab.

Within the political circle here, it is being hailed as a welcome step. Om Prakash Singh, a senior BJP leader says, "This is expected to add a new colour and dimension to the politics and also bring in foreign money in the elections. On the other hand, the process may also help change the political behaviour patterns and perceptions of rulers and ruled and may also illuminate the muddy path of India's democratic evolution in future."

The matrix for this new idea comes from the new section 20A incorporated in the Representation of People's Act, 2010. This provides that every citizen of India, who has not acquired citizenship of any other country and who is absenting from his place of ordinary residence in India owing to employment, education or otherwise outside India (whether temporarily or not), shall be entitled to have his/her name registered in the electoral roll of the constituency, at his/her place of residence in India as mentioned in his/her passport.

The EC has also decided to confer on overseas electors the right to contest elections, subject to the fulfilment of certain requirements specified under the law. One of the essential qualifications prescribed under the law (Articles 84 and 173 of the Constitution.Section 4(a) of the government of Union Territory (UT) Act, 1963, or section 4(a) of the government of National Capital Territory (NCT) of Delhi Act, 1991, as the case may be), is that the candidate should make and subscribe an oath or affirmation in the prescribed form, before ERO or additional election returning officer (ARO), authorised by the commission for this purpose.

In case, a candidate who is outside India, the oath can be made before the diplomatic or consular representative of India in the country, where the candidate happens to be. Similarly, an overseas elector may approach the authorised person in the Indian Mission of the country concerned for making the oath or affirmation.

If an overseas elector, who may file nomination papers is in India at the time of filing nomination, he may make the oath or affirmation before the ERO/ARO. If a candidate, who is an overseas elector appears before the RO/ARO to make the oath, the RO/ARO concerned shall ensure that the identity of the person is properly verified by carefully going through the particulars in the passport of the person. Thus such person will necessarily have to produce his/her original passport for verification by the ERO/ARO at the time of making the oath or affirmation.

"At the time of voting also, the identity of the overseas electors has to be verified by checking the particulars in their passports," the EC says.


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Compiled from-

lawyers club India and times of India.

http://eci.nic.in/eci_main/nri/rpa.pdf



thanks,
Haider Ajaz


Tuesday, March 29, 2011

Sangam Spinners Ltd. Vs. Union of India & Ors.

Dr. MUKUNDAKAM SHARMA, J.

1. The issue that falls for consideration in these appeals is whether the appellants are entitled to credit of duty paid on High Speed Diesel oil at any time during the period commencing on and from 16th March, 1995 and ending with the day of Finance Act, 2000 which received assent of the President on 1st April, 2000.In Civil Appeal No. 476 of 2003: The appellants are engaged in the business of manufacturing and selling Man Made PV Blended Yarn and have installed a diesel generating set for generation of electricity for captive consumption in their factory premises. It is the case of the appellants that they purchased High Speed Diesel oil for generation of electricity from Indian Oil Corporation Ltd. / Hindustan Petroleum Corporation Ltd. through their sales office/depots in Rajasthan, which was cleared under heading 27.10 (sub heading 2710.90) on payment of central excise duty.

In Civil Appeal No. 477-478 of 2003: The appellants are engaged in the business of manufacturing and selling Portland cement and have installed a diesel generating set for generation of electricity for captive consumption in their factory premises. It is the case of the appellants that they purchased High Speed Diesel oil for generation of electricity from Indian Oil Corporation Ltd. / Hindustan Petroleum Corporation Ltd. through their sales office/depots in Rajasthan, which was cleared under heading 27.10 (sub heading 2710.90) on payment of central excise duty. In Civil Appeal No. 479 of 2003 :

The appellants are engaged in the business of manufacturing and selling Cotton Yarn and Yarn of Synthetic/Artificial Staple Fiber and have installed a diesel generating set for generation of electricity for captive consumption in their factory premises. It is the case of the appellants that they purchased High Speed Diesel oil for generation of electricity from Indian Oil Corporation Ltd. / Hindustan Petroleum Corporation Ltd. through their sales office/depots in Rajasthan, which was cleared under heading 27.10 (sub heading 2710.90) on payment of central excise duty.

2. In all these Appeals, identical issues are involved and therefore, we propose to dispose of all these appeals by this common judgment and order.

3. The case of the appellants is that the said diesel oil is used as input/goods in the said diesel generation set for generation of electricity which is used in the manufacture of final goods or for other purposes in the factory of the appellants. They submitted a declaration in respect of the diesel as well as oil and lubricants as required under Rule 57G read with Rule 57B of the Central Excise Rules 1944, [for short "the Rules"] intending to avail the credit of duty on the said goods/inputs on 17/18.3.1997 with the Assistant Commissioner, Central Excise, Ajmer. But the Assistant Commissioner informed the appellants that after 1.3.1997, MODVAT credit was not available on high speed diesel oil and therefore no action could be taken on the declaration submitted by the company. The appellant company submitted declaration under Rule 57(H) of the Rules declaring the stock position of HSD oil as on 17.3.1997. They also prayed for condonation of delay in submitting the declaration. The Superintendent, Central Excise Range Beawar vide letter dated 25.6.1997 informed the appellant company that the MODVAT credit was not admissible on high speed diesel oil under Rule 57(A) of the Rules.

4. After denial of MODVAT credit, the appellant company was given a show cause notice by Superintendent Central Excise Range, Beawar to project as to why the credit given should not be disallowed to the appellant.

5. The appellant filed a writ petition in the year 1997 seeking direction to quash the Trade Notice No. 26/27, the entry regarding the explanation of the HSD Oil in the Notification No. 5/94 and also the order dated 2.9.1997.

6. The said writ petition came up for consideration before the Rajasthan High Court and by the impugned judgment and order dated 3.4.2002, the writ petition was dismissed.

7. Aggrieved by the aforesaid judgment and order, the present appeals were filed on which we heard the learned counsel appearing for the parties.

8. Counsel appearing for the parties drew our attention to Chapter V of the Rules which deals with levy of excise duty on manufactured goods other than salt. Rule 43 to Rule 57 under Section A of Chapter V provides the general provisions. Rule 57 speaks of finances and penalties. Rule 57A provides for availment of MODVAT credit in respect of inputs used in manufacture of the finished product. The rule empowers the Central Government to specify the final product by issuing notifications in the official gazette for the purpose of allowing MODVAT credit of any duty of excise paid on the goods i.e. inputs used in the manufacture of the said final products.

9. Learned counsel appearing for the parties also drew our attention to various notifications issued by the Government of India which are relevant for the purpose of deciding the present case and also to various decisions to which reference shall be made during the course of our discussion.

10. Learned counsel appearing for the appellants submitted that the High Court in the impugned judgment failed to draw a distinction between an accrued and vested right because of the operation of the Rules and the power to tax which in certain circumstances could be used retrospectively by issuing a validating Act to cure the defect in the statute. It was also contended that MODVAT credit is an accrued and vested right and therefore it would be governed by the Rules prevailing on that date and such vested and accrued right cannot be taken away by an Act of Parliament giving retrospective effect. It was also contended that the explanation added to Rule 57B with notification dated 2.3.1998 was retrospective in nature and the explanation can only clarify a legal 7 position already existing but it cannot restrict or enlarge the scope of the substantive provisions of law so as to nullify the substantive provisions itself. Another submission of the counsel appearing for the appellants was that the Finance Act of 2000 intends to take away the rights accrued retrospectively which is burdensome and oppressive as the appellants were unable to pass on the burden on the customer and that in view of the law enacted, the appellants would have to bear the entire burden and that too retrospectively and therefore such provision is in violation of Article 14 of the Constitution of India.

11. Counsel appearing for the respondent, however, refuted all the aforesaid allegations and submitted that the Act sought to be named as a validating Act by the appellant is not a validating Act, but in fact explanatory in nature in order to clarify and put in proper perspective the legal position as existing on the issue. It was also submitted that the courts have held that the power of the legislature to validate the acts done in respect of a particular 8 provision is permissible particularly in respect of fiscal matter. Reference was also made to the decision of this Court in Central Excise, Meerut Vs. Rama Vision Ltd. reported in 2005 (181) ELT 201 (SC), wherein it was held by this Court that no such MODVAT credit is available on the duty paid on HSD Oil as fuel in the generation of electricity for the period 16.3.1995 to 1.4.2000.

12. Reference was also made to the decision of this Court in M/s. Gujarat Ambuja Cement Vs. UOI reported in 2005 (182) ELT 33 (SC), wherein this Court held that because of the inherent complexity of fiscal adjustments of diverse elements in the field of tax, the legislature has large discretion in classifying as to what should be taxed in which manner. It was also the submission of the learned counsel appearing for the respondents that the respondents never intended to allow any such credit which is being claimed by the appellants and a Finance Bill was introduced justifying the action taken to deny 9 the credit of any duty paid on the HSD oil from 16.3.1995. In fact the explanatory note is not issued to signify any legislative change but the same was issued in order to explain the real position as existing by issuing an Act by way of Finance Bill 2000 and thereafter the Finance Act, 2000 which was passed by the Parliament and received the assent of the Parliament on 12.5.2000.

13. In the context of the aforesaid submissions of the counsel appearing for the parties, we proceed to deal with the issues raised before us more elaborately. However, in order to effectively deal with and understand the implications and ambit of the issues raised it may be necessary to set out the various relevant provisions of the Central Excise Act, 1944 [for short "the Act"], and the Rules framed thereunder and also the various notifications issued which are relevant for the purpose of deciding the present issues.

14. In order to appreciate the contentions raised and also to answer the issue that falls for our consideration it would 10 be necessary to extract herein relevant part of the notifications in question as also relevant part of Section 112 of the Finance Act, 2000 and such other related provisions.

15. The Finance Act, 2000 received the assent of the President on 1st April, 2000 and the said Act was enacted for validation of the denial of duty paid on High Speed Diesel oil. Sub-section (1) of Section 112 of the Finance Act, 2000, which is material, reads as follows: "112(1) Notwithstanding anything contained in any rule of the Central Excise Rules, 1944, no credit of any duty paid on high speed diesel oil at any time during the period commencing on and from the 16th March, 1995 and ending with the day, the Finance Act, 2000 received the assent of the President shall be deemed to be admissible."

16. In order to understand and appreciate the true import of the aforesaid provision it is also necessary to read clause 108 of the Finance Act, 2000, the same reads as follows: "Clause 108 - seeks to deny credit of the duty paid on high speed diesel oil when used in the manufacture of excisable goods with retrospective effect from the 16th day of March, 1995. It was never the legislative intention to 11 permit credit of duty paid on high speed diesel oil. The clause also seeks to validate the action taken in the past on this basis. This amendment has become necessary to overcome certain judicial pronouncements."In this connection, memorandum to legislative changes, which is a part of the document is also required to be noted, which reads as under: "Modvat Credit on high speed diesel oil was not intended to be allowed at any stage. Suitable retrospective provision made to give effect to confirm this."

17. We are also concerned for the purpose of deciding the issues with the contents and scope of with Notification No. 5/94-CE(NT) dated 01.03.1994, Notification No. 8/95-CE(NT) dated 16.03.1995 and Notification No. 11/95-CE(NT) dated 16.03.1995.

18. Notification No. 5/94-CE(NT) dated 01.03.1994 was issued by the Central Government specifying therein the final products described in column (3) of the Table in respect of which credit of duty under MODVAT was made available. However, in the said table it was provided that high speed diesel oil which fell under tariff entry 2710.31 of the Central Excise Tariff Act, 1985, would not be considered as eligible input and it was specifically excluded from the list of eligible inputs. In the same notification, it was mentioned that the final product, Man Made PV Blended Yarn falling under Chapter 55 of the Central Excise Tariff Act, 1985 was also specifically excluded.

19. The aforesaid notification was issued in exercise of the powers conferred by Rule 57A of the Central Excise Rules, 1944. By issuing the said notification the Central Government identified the inputs in respect of which duty paid was allowed as credit if they were used in relation to the manufacture of the final products which were also specified in the notification as indicated hereinbefore. The high speed diesel oil and the final product of the Man Made PV Blended Yarn falling under Chapter 55 of the Central Excise Tariff Act, 1985 were specifically excluded from the list of eligible inputs.

20. The aforesaid notification came to be amended specifically by issuing Notification No. 8/95-CE(NT) dated 16.03.1995, where also high speed diesel oil classifiable under 13heading 27.10 was specifically excluded from the list of eligible inputs. Woven fabrics classifiable under Chapter 52 or Chapter 54 or Chapter 55 were also specifically excluded from the list of final products. Thus, the input and the final product of the appellants were specifically excluded in the Notification No. 8/95-CE(NT) dated 16.03.1995.

21. Reliance was also placed on the 2nd proviso in Rule 57D by Notification No. 11/95-CE (NT) dated 16th March, 1995. The aforesaid amendment was to the following effect: "4. In the said Rules, in Rule 57D, for the proviso, the following provisos shall be substituted, namely:- Provided that such intermediate products are - (a) ................................... (b) Specified as inputs or as final products under a notification issued under rule 57A: Provided that the credit of specified duty shall be allowed in respect of inputs which are used for generation of electricity, used within the factory of production for manufacture of final products or for any other purpose."

22. It is to be remembered at this stage that although the aforesaid 2nd proviso in Rule 57D was brought in, but inputs like high speed diesel oil used for the purpose of generation of 14electricity was specifically excluded by another Notification issued on the same date i.e. on 16.03.1995 to which we have already made a reference.

23. The contention of the appellants in this regard was that by the insertion of the 2nd proviso in Rule 57D by Notification No. 11/95-CE (NT) dated 16th March, 1995 they became entitled for the credit of duty paid on high speed diesel oil which was used for generation of electricity.

24. But in our observation, high speed diesel oil for the purpose of generation of electricity was specifically excluded from the list of eligible inputs in the Notification No. 5/94-CE(NT) dated 1st March, 1994 issued under Rule 57A also under Notification No. 8/95-CE(NT) dated 16.3.1995 from the list of eligible inputs. Therefore on a conjoint reading of the aforesaid Notifications dated 1st March, 1994 and 16.3.1995 as also the amendment to Rule 57D, it is sufficiently indicated that the appellants are not entitled to credit of duty paid in 15respect of high speed diesel oil which was used for the purpose of generation of electricity.

25. Our attention was also drawn to the Notification dated 1.3.1997 whereby the Central Government amended Central Excise Rules and the provisos of Rule 57D were deleted, but the appellants, however, claim that they became entitled to such benefit as per Rule 57B. Relevant part of which reads as follows: "57B. Eligibility of credit of duty on certain goods:- (1) Notwithstanding anything contained in Rule 57A, the manufacturer of final products shall be allowed to take credit of the specified duty paid on the following goods, used in or in relation to the manufacture of the final products, whether directly or indirectly and whether contained in the final products or not, namely,:-

i. goods which are manufactured and used within the factory of production;

ii. paints;

iii. goods used as fuel;

iv. goods used for generation of electricity or steam, used for manufacture of final products or for any other purpose, within the factory of production. xxxxxxxxxxxxxxxxxxxxxxxxxx"

26. On 10.03.1997, a Notification No. B42/1/97 was issued in the nature of corrigendum whereby in Rule 57B in sub-rule (1) for "goods" wherever it occurs it was provided that it should be read as "Inputs". The relevant part of the same read as under: "Explanation: For the purposes of this sub-rule, it is hereby clarified that the term "inputs" refers only to such inputs as may be specified in a notification issued under rule 57A."

27. We may also refer to another Notification No. 5/98-CE(NT) dated 2.3.1998 wherein an explanation was added in Rule 57B in sub-rule (1), which reads as follows: "(I) in rule 57B, in sub-rule (1), for "goods" wherever it occurs read "inputs"."

28. A careful reading of the above said provision would make it explicitly clear that by adding the aforesaid explanation by Notification No. 5/98-CE(NT) dated 2.3.1998 the inputs mentioned in Rule 57B refers only to such inputs as specified in the notification issued under Rule 57A. Accordingly, the appellants are not entitled to get the benefit of, credit of duty paid on High Speed Diesel oil as high speed diesel oil is 17excluded from the list of eligible inputs as per notification issued under Rule 57A of the Central Excise Rules, 1944.

29. It is the contention of the respondents that despite the aforesaid clear position the Central Excise Gold (Control) Appellate Tribunal (in short "the Tribunal") delivered three judgments, namely, (a) India Cements Ltd. vs. Commissioner of Customs & C.Ex., Hyderabad reported in 1997 (95) .E.L.T. 520. (b) Jindal Polymers vs. Commissioner of C. Ex., Indore reported in 1999 (114) E.L.T. 322; and (c) Commissioner of Central Excise, Shillong vs. Vinay Cement Ltd. reported in 1999 (114) E.L.T. 753.wherein it was held that high speed diesel oil would be considered as eligible input to get the benefit.

30. The intention regarding availment of the credit under MODVAT would be guided and governed by the aforesaid notifications which specifically excluded the benefit of availment of such credit as high speed diesel oil is specifically excluded from the list of eligible inputs as per notification 18under Rule 57A of the Central Excise Rules, 1944. Since it was specifically excluded from the list of eligible inputs such credit though may otherwise be available would not have credited a vested right.

31. In the light of the aforesaid factual as also legal position, this Court in the case of Commissioner of Central Excise, Hyderabad Vs. Associated Cement Companies Ltd. reported in 2005 180 ELT 3 (S.C.) and Commissioner of Central Excise, Meerut Vs. Rama Vision reported in 2005 181 ELT 201 clearly laid down the proposition that no credit is admissible on any duty paid on high speed diesel oil for the period commencing from 16.3.1995 and ending with the day of Finance Act, 2000 which received the assent of the President on 1st April, 2000.

32. Despite the aforesaid factual position, since the Tribunal held otherwise, therefore, there was a necessity for the Finance Act to be brought in whereby a clarificatory explanation to the legal position was laid down.

33. Despite the aforesaid two decisions of this court laying down the proposition, it must be clarified that in those decisions validity of Section 112 of the Finance Act was not challenged and therefore this Court did not have the opportunity to examine all the aspects of Section 112.

34. In the case of Tata Motors Ltd. Vs. State of Maharashtra reported in (2004) 5 SCC 783, this Court observed that retrospective withdrawal of the benefit of set-off only for a particular period should be justified on some tangible and rational ground when challenged on the ground of unconstitutionality. However, in the present case the ratio of the Tata Motors case [supra] would not be applicable as the appellants in this case never had a right with regard to availment of MODVAT credit. Hence, the contentions of the appellants that their vested and accrued right cannot be taken away with retrospective effect cannot be held as just and proper.

35. We have already discussed the applicability of the provisions of the Central Excise Act and the Rules made 20there under, which are also read in context of the various notifications issued by the Government of India. When read collectively in the aforesaid context the only conclusion that can be drawn is that the appellants are not entitled to the credit of duty as high speed diesel oil is specifically excluded from the list of eligible inputs as per the notification issued under Rule 57A of the Central Excise Rules 1944. Therefore, the contention of the counsel appearing for the appellants that explanation to Section 57-B not being clarificatory, and to whittle down the width of non-obstante clause of Section 57-B, cannot be accepted. The contention that the provisions of Rule 57B prevails over Rule 57A and consequently the inputs enumerated under Rule 57B would be inputs for the availment of MODVAT credit in spite of any provision to the contrary which may be contained in Rule 57A, is misreading of the provisions, for in our considered opinion, the aforesaid explanation added to the Notification No. 5/98 dated 2.3.1998, clearly intends that the inputs mentioned in Rule 57B refers only to such inputs as 21 specified in a notification issued under Rule 57A.

36. So far the contention with regard to concept of MODVAT is concerned, the intention regarding availment of the credit under MODVAT would be guided and governed by the aforesaid notifications which specifically excluded the benefit of availment of such credit, as high speed diesel is specifically excluded from the list of eligible inputs as per the notification under Section 57A of the Central Excise Rules. Since, it was specifically excluded, such credit though may be otherwise available, could not have created any vested right. In our considered opinion the intention of the legislature is clear from the beginning to exclude the benefit of such credit by excluding high speed diesel oil from the list of eligible inputs by making substantial exclusion thereof in the notifications referred to hereinbefore. The aforesaid position is also verified by the decision of this Court in the case of Commissioner of Central Excise, Hyderabad Vs. Associated Cement Companies Ltd. reported in 2005 180 ELT 3 (S.C.) and 22 Commissioner of Central Excise, Meerut Vs. Rama Vision reported in 2005 181 ELT 201 (supra).

37. The aforesaid decisions of this Court have clearly laid down the proposition that no credit is admissible on any duty paid on high speed diesel oil for the period commencing from 16.3.1995 and ending with the day of Finance Act, 2000 which received the assent of the President on 1st April, 2000.

38. Despite the aforesaid fact, since the Tribunal held otherwise, therefore, there was a necessity for the Finance Act to be brought in giving a clarificatory explanation to the legal position which is being prevailing all alone and established by the long list of the notifications which were issued from time to time and referred to hereinbefore.

39. We may also appropriately refer to at this stage to the decision of this Court in Shri Prithvi Cotton Mills Ltd. and Another Vs. Broach Borough Municipality and Ors. reported in (1969) 2 SCC 283 wherein the Supreme Court in paragraph 4 has stated thus:- "4. Before we examine Section 3 to find out whether it is effective in its purpose or not we may say a few words about validating statutes in general. When a Legislature sets out to validate a tax declared by a court to be illegally collected under an ineffective or an invalid law, the cause for ineffectiveness or invalidity must be removed before validation can be said to take place effectively.

The most important condition, of course, is that the Legislature must possess the power to impose the tax, for, if it does not, the action must ever remain ineffective and illegal. Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is done by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law.

Sometimes the Legislature gives its own meaning and interpretation of the law under which tax was collected and by legislative fiat makes the new meaning binding upon courts. The Legislature may follow any one method or all of them and while it does so it may neutralise the effect of the earlier decision of the court which becomes ineffective after the change of the law. Whichever method is adopted it must be within the competence of the legislature and legal and adequate to attain the object of validation. If the Legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a Validating Law, therefore, depends upon whether the 24 Legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the courts had found in the existing law and makes adequate provisions in the Validating Law for a valid imposition of the tax."

40. There are similar decisions to that effect of this Court in D.G. Gose & Co. (Agents) Pvt. Ltd. Vs. State of Kerala & Anr. reported in (1980) 2 SCC 410. In paragraph 14 of the said judgment, this Court stated thus:- "14. Craies on Statute Law, seventh Edn., has stated the meaning of "retrospective" at p. 367 as follows: "A statute is to be deemed to be retrospective, which takes away or impairs any vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already past. But a statute `is not properly called a retrospective statute because a part of the requisites for its action is drawn from a time antecedent to its passing'." It has however, not been shown how it could be said that the Act has taken away or impaired any vested right of the assessees before us which they had acquired under any existing law, or what that vested right was. It may be that there was no liability to building tax until the promulgation of the Act (earlier the Ordinances) but mere absence of an earlier taxing statute cannot be said to create a "vested right", under any existing law, that it shall not be levied in future with effect from a date anterior to the passing of the Act. Nor can it be said that by imposing the building tax from an earlier date any new obligation or disability has been attached in respect of any earlier transaction or consideration. The Act is not therefore retrospective in the strictly technical sense."

41. In the light of the aforesaid decisions and legal position which emanates from reading of the provisions of the Act and the Rules framed there under and notifications which are issued from time to time, the contentions of the counsel appearing for the appellants are found to be without any merit. Since the product High Speed Diesel oil was excluded specifically from the list of eligible inputs in the notifications, there was no question of creation of any right in favour of the appellant to avail such benefit. Therefore, contention that a vested or accrued right is sought to be taken away by giving retrospective effect is without any merit. Consequently, in the facts of this case we are not required to answer whether a vested or accrued right could be taken away with retrospective effect. Further on a conjoint reading of all the notifications it is clearly established that the intention of the Government all along was to exclude the appellants from getting the benefit of the 26 MODVAT credit, therefore, the contentions that the Finance Act violates the vested right is without any basis. The various decisions referred to and relied upon by the counsel appearing for the appellants in support of his contention that the vested right created in their favour could not have been divested by the respondent retrospectively is found to be based on misreading of the language of the aforesaid notifications which do not support, but in fact destroy the very basis of the case of the appellants.

42. In that view of the matter, we find no merit in these appeals which are dismissed but leaving the parties to bear their own costs.

............................................J [Dr. Mukundakam Sharma ]

............................................J [ Anil R. Dave ]

New Delhi,

March 18, 2011.

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Haider Ajaz

Advocate Khoj.com


Sunday, March 27, 2011

The Miracle of Numbers in holy Quran



Check this out; very interesting findings of scientists of Qur’anic sciences might grasp your attention:


The scientists discovered some verses in the Holy Qur’an that mention one thing is equal to another, i.e. men are equal to women.

Although this makes sense grammatically, the astonishing fact is that the number of times the word man appears in the Qur’an is 24 and number of times the word woman appears is also 24, therefore not only is this phrase correct in the grammatical sense but also true mathematically, i.e. 24 = 24.

Upon further analysis of various verses, he discovered that this is consistent throughout the whole Qur’an, where it says one thing is like another. See below for astonishing result of the words mentioned number of times in Arabic Qur’an:

Dunya (one name for life) 115. Aakhirat (one name for the life after this world) 115

Malaika (Angels) 88. Shayteen (Satan) 88

Life 145.... Death 145

Benefit 50. Corrupt 50

People 50... Messengers 50

Eblees (king of devils) 11. Seek refuge from Eblees 11

Museebah (calamity) 75. Thanks 75

Spending (Sadaqah) 73. Satisfaction 73

People who are mislead 17. Dead people 17

Muslimeen 41. Jihad 41

Gold 8. Easy life 8

Magic 60. Fitnah (dissuasion, misleading) 60

Zakat (Taxes Muslims pay to the poor) 32. Barakah (Increasing or blessings of wealth) 32

Mind 49. Noor 49

Tongue 25. Sermon 25

Desire 8. Fear 8

Speaking publicly 18. Publicizing 18

Hardship 114.... Patience 114

Muhammad 4. Sharee'ah (Muhammad's teachings) 4

Man 24. Woman 24

And amazingly enough have a look how many times the following words appear:

Salah 5, Month 12, Day 365

Sea 32, Land 13

Sea + land = 32+13= 45

Sea = 32/45*100=71.11111111%

Land = 13/45*100 = 28.88888889%

Sea + land =100.00%

Modern science has only recently proven that the water covers 71.111% of the earth, while the land covers 28.889%.
Is this a coincidence?


--
Haider Ajaz


Resolution Nofifying Constitution of Financial Sector Legislative Reforms Commission (FSLRC) Issued


The Resolution notifying the constitution of Financial Sector Legislative Reforms Commission (FSLRC) was issued today by the Government of India. This is in pursuance to the announcement made by the Union Finance Minister Shri Pranab Mukherjee in his budget speech of 2010-11 to rewrite and harmonise financial sector legislations, rules and regulations. This had become necessary as the institutional framework governing India’s financial sector was built over a century.

The composition of the Commission is as follows:

Justice (Retd.) B. N. Srikrishna

Chairman

Justice (Retd.) Debi Prasad Pal

Member

Dr. P.J. Nayak

-do-

Smt. K.J. Udeshi

-do-

ShriYezdiH.Malegam

-do-

Prof. JayantVarma

-do-

Prof. M. GovindaRao

-do-

Shri C. Achutan

-do-

ShriDhirendraSwarupMember Convenor

Joint Secretary, Capital Markets Nominee Member

Shri C K G Nair is Secretary to the Commission.

The budget announcement was made with a view to rewriting and streamlining the financial sector Laws, Rules and Regulations to bring them in harmony with the requirements of India’s fast growing financial sector.

There are over 60 Acts and multiple Rules/Regulations in the sector and many of them date back decades when the financial landscape was very different from what is obtaining today. Large number of amendments made in in these Acts over time has increased the ambiguity and complexity of the system.

The Commission would simplify and rewrite financial sector legislations, including subordinate legislations, to achieve harmony and synergy among them.This will remove ambiguity, regulatory gaps and overlaps among the various legislations making them more coherent and dynamic and help cater to the requirements of a large and fast growing economy in tune with the changing financial landscape in an inter-connected financial world. In the long-term, it would help usher in the next generation of reforms, contribute to efficient financial intermediation enhancing the growth potential of the nation.

The Terms of Reference of the Commission include the following:

(i) Examining the architecture of the legislative and regulatory system governing the Financial sector in India,

(ii) Examine if legislation should mandate statement of principles of legislative intent behind every piece of subordinate legislation in order to make the purposive intent of the legislation clear and transparent to users of the law and to the Courts.

(iii) Examine if public feedback for draft subordinate legislation should be made

mandatory, with exception for emergency measures.

(iv) Examine prescription of parameters for invocation of emergency powers where regulatory action may be taken on ex parte basis.

(v) Examine the interplay of exchange controls under FEMA and FDI Policy with other regulatory regimes within the financial sector.

(vi) Examine the most appropriate means of oversight over regulators and their autonomy from government.

(vii) Examine the need for re-statement of the law and immediate repeal of any out-dated legislation on the basis of judicial decisions and policy shifts in the last two decades of the financial sector post-liberalisation.

(viii) Examination of issues of data privacy and protection of consumer of financial services in the Indian market.

(ix) Examination of legislation relating to the role of information technology in the delivery of financial services inIndia, and their effectiveness.

(x) Examination of all recommendations already made by various expert committees set up by the government and by regulators and to implement measures that can be easily accepted.

(xi) Examine the role of state governments and legislatures in ensuring a smooth inter-state financial services infrastructure in India.

(xii) Examination of any other related issues.

The Commission’s headquarter would be in Delhi. The Commission will submit its report to the Union Finance Minister within 24 months.

The first meeting of the Commission is scheduled to be held on 5th April 2011.

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Haider Ajaz


Friday, March 25, 2011

F.I.R.--- First Information Report

F.I.R. is the abbreviated form of First Information Report. It is the information recorded by the police officer on duty, given either by the aggrieved person or any other person about the commission of an alleged offence. On the basis of the F.I.R. the police commences its investigation.

Who can file an F.I.R.

Any person can file an F.I.R. He need not be the aggrieved person. It may be merely hearsay and need not be by the person who has had firsthand knowledge of the facts.

Where to file an F.I.R.

An F.I.R. can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. It must be made to the officer-in-charge of the police station and if he is not available the Assistant Sub Inspector is competent to enter upon the investigation

How to file an F.I.R.

When a wrong has been committed and the aggrieved person or any other person wants to file a F.I.R. it shall be filed in the following manner.

  1. Go to the police station and meet the officer-in-charge.

  2. Step by step in an orderly sequence narrate to the officer every information relating to the commission of the offence.

  3. The officer shall reduce the information given in writing.

  4. The information given shall be signed by the person giving it.

  5. The information given shall be entered in a book to be kept by the officer.

Copy of the information as recorded shall be given free of cost to the informant.

Where an officer-in-charge refuses to record the information

If the officer in charge refuses to record the information, the information may be sent in writing and by post, to the Superintendent of Police concerned who, if satisfied that such information discloses the commission of a cognizable offence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him.


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Haider Ajaz


Thursday, March 24, 2011

Education vs Reservation in India

This could be quite surprising but that is reality that there are so many children who have capability to become a good scholar, a good leader , and more over a good citizen.They even don't get any opportunity to over come from their hesitation and show their talent.

They live whole life without knowing that what are their rights as being a citizen of their own country.

They even don't know what is actually meaning of being a citizen or even meaning of citizen. What is the reason behind it : Improper Education?

Could be. But How Can you forget the helplessness of their parents, Do you think that they have proper money to educate them?

I don't think so... When a baby take his/her first breath in that small hut, their parents start thinking that a new member has come and we have to arrange food for him/ her too. And after four or five year he/she will be able to contribute in earning two square meal for the family.

And then in the place of nurturing their amature skills they start earning for their family....

Now your part begin you tell me what is valid reason for this situation ...

• The only money factor

• The illiteracy of their parents

• The social factor

The root cause of this problem could be everlasting poverty which never let them take any action or it could be lack of resources that should be available for at least primary education of those children.

When we discuss about the poverty, we always say that this problem could not be solved because government is not taking proper action against it. But some where common people are also involved in promoting it.

Everybody knows what the condition of education of India is. Especially government running primary schools and middle schools are in a very poor state.

Either their infrastructure is in poor condition or teachers are not available or not good enough to teach them. Do you know why? Now are you thinking about corruption and my reply will be yes.

This area also has not got untouched by that evil name which we are trying to eradicate.

Problem comes because of lack of administration. Government thinks as they have allotted money for primary education of children in cities and rural areas, people will bet benefitted. But the reality is the money which got issued for this noble cause will get disappeared somewhere in these so called ministers and thekedar’s pocket.

They show development and administration of these schools on papers but ground level reality remains unchanged.

We have heard about “School Chale Ham” and “Midday Meal” schemes. What exactly happened with them? Was it a great success? Yes somewhat, but after sometime, these schemes was more a source to fill the pockets of those people who were the so called administrator.

Now you got to know what the root cause of this issue is. Rather than providing reservation in educational and government institution, Government needs to think about the root cause of the issue which is primary education of these children. If everybody will get proper education they will be able to compete and also will get new opportunities across the globe.

Now I need your views, what do you say? Are you in favor of reservation or need or a healthy basic education system for all?



Compiled By:

Haider Ajaz

Lawyer Allahabad High Court.

Monday, March 21, 2011

Reservation – not a fundamental right


In C. A. Rajendran v. Union of India, (1968) 1 SCC 721 : (AIR 1968 SC 507) it was clearly laid down by the five Judge Bench that Article 16(4) was only an enabling provision, that Article 16(4) was not a fundamental right and that it did not impose any constitutional duty. It only conferred a discretion on the State. The supreme court held: “Our conclusion therefore is that Article 16(4) does not confer any right on the petitioner and there is no constitutional duty imposed on the government to make reservation for Scheduled Castes and Scheduled Tribes, either at the initial stage or at the stage of promotion. In other words, Article 16(4) is an enabling provision and confers discretionary power on the State to make a reservation of appointment in favour of backward class of citizens which, in its opinion, is not adequately represented in the services of the State.”

The above principle was reiterated in two three Judge Bench judgments in P and T SC/ST Employees' Welfare Association v. Union of India (1988) 4 SCC 147 : (AIR 1989 SC 139 : 1989 Lab IC 1045); and in SBI SC/ST Employees Welfare Association v. State Bank of India (1996) 4 SCC 119 : (1996 AIR SCW 2138 : AIR 1996 SC 1838 : 1996 Lab IC 1612). In fact, as long back as in 1963, in M. R. Balaji v. State of Mysore, 1963 Suppl (1) SCR 439 (at p. 474) : (AIR 1963 SC 649 at p. 664) which was decided by five learned Judges, the Court said the same thing in connection with Articles 15(4) and Article 16(4). Stating that Articles 15(4) and 16(4) were only enabling provisions, Gajendra-gadkar, J. (as he then was) observed :

"In this connection, it is necessary to emphasise that Article 15(4) like Article 16(4) is an enabling provision, it does not impose an obligation, but merely leaves it to the discretion of the appropriate Government to take suitable action, if necessary."

A three Judge Bench in Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : (1997 AIR SCW 2257 : AIR 1997 SC 2366 : 1997 Lab IC 2301) took a view that. the right to promotion was a statutory right while the rights of the reserved candidates under Article 16(4) and Article 16(4A) were fundamental rights and in that behalf, it followed Ashok Kumar Gupta v. State of U. P., (1997) 5 SCC 201 where a similar principle had been laid down. In these two cases the earlier constitution bench decisions in C A Rajendran and M.R. Balaji and other larger bench decisions referred above, were not brought to the notice of the court.

In Ajit Singh v. State of Punjab AIR 1999 SC 3471 a Five Judge Bench of the Supreme Court overruled the decisions in Jagdish Lal and Ashok Kumar Gupta and held that: “In view of the overwhelming authority right from 1963, we hold that both Articles 16(4) and 16(4A) do not confer any fundamental rights nor do they impose any constitutional duties but are only in the nature of enabling provision vesting a discretion in the State to consider providing reservation if the circumstances mentioned in those Articles so warranted. We accordingly hold that on this aspect Ashok Kumar Gupta, Jagdishlal and the cases which followed these cases do not lay down the law correctly.”

Special Appeal in Allahabad High Court - when not maintainable


In SPECIAL APPEAL No.1942 of 2008 Sheet Gupta v. State Of U.P. & Others decided on 11/12/2009, the Full Bench of Allahabad High Court resolved the controversy regarding maintainability of Special Appeal (Letters Patent Appeal or Intra-Court Appeal ) against a judgment of single judge of the High Court. The question was referred to Full Bench as there were two contradictory decisions of coordinate two judge benches. The referred question was as under:


"Whether a special appeal under the provisions of Rule 5 of Chapter VIII of the Rules of the Court lies in a case where the judgment has been given by a learned single Judge in a writ petition directed against an order passed in an appeal under paragraph 28 of the U.P. Scheduled Commodities Distribution Order, 2004?"


Laying down general rules regarding maintainability of Special Appeal the Full Bench held that :

“from the perusal of Chapter VIII Rule 5 of the Rules of Allahabad High Court, a special appeal shall lie before this Court from the judgment passed by one Judge of the Court. However, such special appeal will not lie in the following circumstances:
1.The judgment passed by one Judge in the exercise of appellate jurisdiction, in respect of a decree or order made by a Court subject to the Superintendence of the Court;
2.the order made by one Judge in the exercise of revisional jurisdiction;
3.the order made by one Judge in the exercise of the power of Superintendence of the High Court;
4.the order made by one Judge in the exercise of criminal jurisdiction;
5.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or Article 227 of the Constitution of India in respect of any judgment, order or award by
(i) the tribunal,
(ii) Court or
(iii) statutory arbitrator
made or purported to be made in the exercise or purported exercise of jurisdiction under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India;
6.the order made by one Judge in the exercise of jurisdiction conferred by Article 226 or 227 of the Constitution of India in respect of any judgment, order or award of
(i) the Government or
(ii) any officer or
(iii) authority,
made or purported to be made in the exercise or purported exercise of appellate or revisional jurisdiction under any such Act, i.e. under any Uttar Pradesh Act or under any Central Act, with respect to any of the matters enumerated in the State List or the Concurrent List in the Seventh Schedule to the Constitution of India."

Answering the referred question the Full Bench held that: “---- the Essential Commodities Act, 1955 is a Central Act referable to Entry 33 of the Concurrent List in the Seventh Schedule to the Constitution of India. ---In the present case, we find that the Commissioner had exercised powers conferred under Clause 28 of the Distribution Order, 2004, which order has been passed under the provisions of the Act, therefore, the appellate power has been exercised under the Act and, thus, no special appeal would lie. It may be mentioned here that right of an appeal is a statutory right and not a vested right and can be hedged by conditions as held by the Apex Court in the cases of Smt. Ganga Bai[1]and Vijay Prakash & Jawahar. [2]"





[1] Smt. Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126.

[2] Vijay Prakash D. Mehta and Jawahar D. Mehta vs. Collector of Customs (Preventive), Bombay, AIR 1988 SC 2010

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