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Showing 441 to 460 of 1407 Records
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2015 (2) TMI 972
Valuation - inclusion of value of material - authorised service station for Maruti cars - Board's Circular no. 96/7/2007-ST dated 23/08/2007 - Held that:- Appellant are charging handling charges whenever automobile parts are sold either independently or part of the service and repair of automobiles. In both the situations, invoices are issued for the sale of the goods as well as for collection of service charges for the services rendered. Handling charges were incurred in connection with the procurement of the goods and are included in the value of the goods sold and sales tax/VAT liability is discharged on the value inclusive of the handling charges. Therefore, we do not understand how service tax levy would apply especially when the goods are subject to sales tax/VAT on a value inclusive of handling charges. It is not in dispute that the handling charges are incurred in connection with the procurement of the parts. If that be so they will obviously form part of the value of the goods when they are subsequently sold. - Section 67 of the Finance Act, 1994 mandate levy of Service Tax on a value or consideration received for rendering the services. Therefore, any consideration received for supply of goods is not covered within the scope of section 67. The decisions of the Tribunal in the case of Ketan Motors Ltd. [2014 (3) TMI 226 - CESTAT MUMBAI] and Dynamic Motors cited [2011 (11) TMI 308 - CESTAT, NEW DELHI] also support this view. - Accordingly, the impugned order is clearly unsustainable in law and, therefore, the same is set aside - Decided in favour of assessee.
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2015 (2) TMI 971
Denial of exemption from service tax - Whether sub-contractors engaged for building residential complexes for Delhi Police could be considered for receiving services on behalf Govt. of India and no service tax liability could be fastened on them - Held that:- Commissioner (Appeals) has distinguished that Govt. of India enterprise cannot be equated with any Govt. Department which were on behalf of Government of India or President of India. He also come to conclusion that appellant had entered into contract of service with M/s HPL and referred the construction service with M/s HPL and not to Delhi Police rightly and being a sub-contractor they were liable to pay the service tax. - it is seen that major beneficiary of contractor or residential complex is the Delhi Police (Govt. of India) and M/s HPL is only the contractor executing agency who have provided the service to the Delhi Police through sub- contractor. They have further got the work done from the appellants who were connected as a sub-contractor. I find that intention of the Government is not to levy service tax on the service received by the Government of India through contractor or subcontractor. I have also examined the exemption. If sub-contractor is directed to pay the service tax which have ultimately to be utilizes by the Delhi Police (Govt. of India) only on technicality that a sub-contractor is involved in the construction of building, will ipso facto take away the exemption granted to the Government of India. Further use of housing complex for non-commercial use and will not come under the service leviable to service tax. In this regard definition of the service of commercial and industrial construction service became taxable as per the Section 65 (25b) in 2004. However, the definition and scope of service was changed by Finance Act, 2005 and revised definition is reproduced for appreciation.
Building has been got constructed by the Government of India for their own use as residential complexes for Delhi Police, it does not result in construction for commercial purposes further construction by Government for non-commercial purpose was not taxable, however construction by the Government for commercial activities such as civil body construction for shops or commercial complexes laying in the nature of commercial activity were taxable. - merely because the construction has been get done from the contractor/sub-contractor, it will not change the nature or the activity from non-commercial to commercial. Once it comes out that Government has undertaken a project which is non-commercial in nature and not taxable, service received on this account by the Government would not come under the taxability. - even subcontractor cannot be directed to pay service tax when the taxability of the construction is non commercial in nature being not taxable. - Decided in favour of assessee.
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2015 (2) TMI 970
Helicopter Chartering service - Supply of tangible Goods for Use services or Air Transport of Passengers services - Held that:- We have carefully considered the rival submissions. In the present case the appellant has been discharging service tax liability under the category of 'Air Transport of Passenger' since 2010. Whether operating helicopter on charter basis for transport of passengers would merit classification under 'Air Transport of Passenger Service' or under the category of 'Supply of Tangible Goods for Use' is a complicated and contentious issue. There can be arguments for classification under either of the category with equal force. Therefore, considering the fact that the appellant has paid a sum of about ₹ 37 crores as against the demand of about ₹ 67 crores, we consider the same to be sufficient for the purpose of hearing of the appeal. - Stay granted.
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2015 (2) TMI 969
Classification of Pressure cooker under Assam Value Added Tax Act, 2003 - Aluminium utensil- covered in Second schedule or Not an Aluminium utensil- covered under residual fifth schedule - Penalty due to consequential assessment - Held that:- The reasoning given by the Commissioner is a plausible one and appeals to the Court. This position has been further explained in the affidavit filed by the Commissioner. It is stated that pressure cookers have valves made of steel, rubber gasket and also have rubber insulating materials. Pressure cooker is not made solely of aluminium so as to qualify for inclusion in Entry No. 6 of Part-A General of the Second Schedule. In common parlance, pressure cookers are not understood as mere utensils, but contrived appliances meant for domestic use. To fall within the sweep of Entry No. 6, the item must not only be a utensil, but must be aluminium or enamelled utensil. The affidavit has stated that in other States where tax on pressure cooker is levied at the rate of 4%, the description in the entry is "utensils of all kinds including pressure cookers except made of precious metals"
We agree with the stand taken by the Commissioner of Taxes in the aforesaid affidavit. Whether pressure cooker falls within the sweep of Entry No.6 of Part-A General of Second Schedule or not will have to be determined keeping in mind the legislative intent expressed through the words in the entry. When the description of the entry is aluminium utensils and enamelled utensils, the legislative intent is quite clear that to come within the sweep of Entry No.6, the good in question has to be an aluminium utensil and enamelled utensil. Had the Legislature intended to give the benefit of the entry to goods, such as pressure cooker, it would have been clearly mentioned in the entry itself. We cannot go beyond the description of the goods under Entry No.6 as given in the statute. As is well accepted, a taxing statute has to be strictly construed.
The order imposing penalty, the reasons for imposition of penalty as well as the quantum of penalty must be discernible.This will reflect application of mind by the authority imposing the penalty and also allow the higher authorities to examine the reasons assigned for imposition of penalty in the event of appeal or revision. The order of penalty must indicate that all relevant factors were taken into consideration before imposing penalty. The discretionary power to impose penalty must be exercised in a reasonable and rational manner, otherwise it would be arbitrary and capricious. Penalty set aside. - Decided in favour of appellant.
Having regard to the classification, we are of the clear opinion that the view taken by the Revenue that pressure cooker does not come within the ambit of Entry No.6 of Part-A General of the Second Schedule to the VAT Act appears to be the correct view and we see no reason to interfere with the decision taken by the revenue authorities in this regard. - Decided against the appellants.
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2015 (2) TMI 968
Deferment & Exemption from sales tax - Mode of computation of notional sale tax liability - Whether Rule 2 (xxi) (ii) of the Rules which provides for calculation of "notional sale tax liability" by including branch transfers, fastens a liability to pay tax on branch transfers or merely provides a methodology for calculating notional tax liability for the purpose of achieving the amount of deferred tax - Held that:- Admittedly, branch transfers outside the State of Punjab are exempted from the payment of sales tax. The State of Punjab has from time to time, notified schemes for deferment and exemption from payment of sales tax and for the said purpose, has enacted Section 10-A of the 1948 Act. A perusal of Section 10-A of the 1948 Act, reveals that the State Government may defer the payment of "tax due" if it is necessary or expedient to do so in the interest of industrial development subject to such conditions as may be prescribed.
Admittedly, branch transfers outside the State of Punjab are not exigible to sales tax. A taxing statute imposes tax by enacting a taxing provision that sets out the taxing event. The exigibility of a transaction to tax must flow from the statute and, therefore, requires legislature to enact a specific provision setting out the contours of the event/transaction that would invite tax. If liability to pay tax is not set out in the parent statute, a rule, a policy, an instruction or a clarification cannot whether by intent or by interpretation, be used to impose a tax. The words "subject to such conditions" used in Section 10-A of the Act while referring to the deferment, cannot be construed to confer power to prescribe a fresh tax by way of a rule.
It would also be appropriate to point out that the words "and liable to tax" used in the explanation and the words "on the presumption that these transactions are exigible to tax under the aforesaid Act" used do not lend themselves to an interpretation that raises them to the status of a charging provision thereby imposing a fresh charge or tax rendering an assessee exigible to a tax that is not imposed by the parent statue. It is, therefore, apparent that Rule 2(xxi) of the Rules is a provision that aids and assists the assessee and the State in calculating notional tax liability for deferment and empowers the State Government while calculating the limit of deferment to include sale tax on branch transfers outside the State of Punjab on a presumption that they shall be deemed to be taxable but only for the purpose of calculating the quantum of deferred tax achieved by the assessee. The proviso cannot whether by interpretation or by reference to the presumption be assigned the status of a taxing provision rendering an assessee liable for a taxing event which is exempted under the parent statute i.e. the 1948 Act. Consequently, we allow the writ petition as well as the appeal, set aside the impugned orders and remit the matter to the assessing officer to decide the matter afresh and in accordance with law. - Decided in favour of assessee.
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2015 (2) TMI 967
Recall of final order - Ex-parte order passed - Wrong Date of hearing noted down mistakenly - Held that:- Matter had been decided ex parte and the Revenue's appeal has been allowed following the Apex Court's judgment in the case of Ind -Swift Laboratories (2011 (2) TMI 6 - Supreme Court), subsequently, it has been found that interpreting the above judgement , Hon'ble Karnataka High Court in the case of CCE , Bangalore Vs. Bill Forge Pvt. Ltd. (2011 (4) TMI 969 - KARNATAKA HIGH COURT) has held that in the cases where the cenvat credit has been taken wrongly but the same had not been utilized, there would not be interest liability and that interest liability would arise only in the cases where the wrongly taken cenvat credit had also been utilized. It is seen that same view had been taken by the Hon'ble Madras High Court in the case of M/s. Strategic Engg . (P) Ltd. (2014 (11) TMI 89 - MADRAS HIGH COURT) . It is also seen that the judgment of the Karnataka High Court in the case of M/ s.Bill Forge Pvt. Ltd. (supra) has been followed by this Tribunal in the case [2014 (7) TMI 849 - CESTAT NEW DELHI].
According to the respondent, their case is covered by the above mentioned judgements of the Hon'ble Karnataka High Court and Madras High Court as in their case, there was no utilization of the wrongly availed cenvat credit. Since at the time of hearing of this matter on 23.12.2013, Revenue's appeal was disposed of ex parte and decided in the Revenue's favour , as there was nobody representing the respondent, the above mentioned judgements of the High Courts; which were favourable to the Respondent could not be considered. In my view, as held by the Tribunal in the case of Hindustan Ferro and Industries Ltd. (2009 (9) TMI 772 - CESTAT NEW DELHI), the assessee should not be made to suffer for any failure on the part of the Advocate. The Final Order dated 23.12.2013 therefore needs to be recalled and the matter needs to be re-heard on the question as to whether the judgements of Hon'ble Madras High Court and Karnataka High Courts are applicable to the facts of this case. - Order recalled.
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2015 (2) TMI 966
Maintainability of appeal - Denial of rebate claim - SEZ - Held that:- issue relates to the sanction of rebate claims on TMT bars supplied to SEZ. The adjudicating authority has sanctioned the rebate claim of ₹ 16,98,128/- on the duty paid on the goods supplied to SEZ units. Whereas, the Commissioner (Appeals) allowed the Revenue appeal and set aside the order of the adjudicating authority, in terms of first proviso (b) to Section 35 B (1) of the Central Excise Act, 1944 and no appeal shall lie before the Tribunal against the order passed by the Commissioner (Appeals), if the order relates to rebate of duty of excise on goods exported. Since, the appeal filed by the appellant relates to rebate of duty, it is outside the powers vested by this Tribunal under the Act. Accordingly, the appeal is dismissed under the first proviso to Section 35 B (1) of the Central Excise Act, 1944 and the appellant is at liberty to file appeal before the Government of India, Revision Authority. - Decided against assesse.
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2015 (2) TMI 965
Waiver of predeposit of duty - Denial of CENVAT Credit - Insurance service and various other services - Held that:- Out of the total credit disallowed, ₹ 4,21,458/- relates to insurance service. I find that that insurance service not only relates to the employees but also to the plant, machinery and stocks. The credit disallowed in respect of payroll services is about ₹ 50,341/- and the credit of ₹ 14,673/- is towards photocopier service and towards travel agency service the credit disallowed is ₹ 39,623/-. I find that the applicant has made out a prima facie case for waiver of predeposit except for corporate membership services and photocopier services. Accordingly, I direct the applicant to predeposit a sum of ₹ 30,000/- within a period of four weeks - Upon such deposit, predeposit of the balance dues stands waived and recovery thereof stayed during the pendency of the appeal. - Partial stay granted.
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2015 (2) TMI 964
CENVAT Credit - Notification No.214/86-CE - Denial of the credit on the ground that credit taken on inputs used for job work done for other unit is not admissible and confirmed the demand along with interest and imposed penalty - Held that:- Considering the Tribunal's Larger Bench decision in the case of Sterlite Industries (2004 (12) TMI 108 - CESTAT, MUMBAI) and the Hon'ble High Court's judgement in the case of Hwashin Automotive India Pvt. Ltd. (2014 (9) TMI 444 - Madras High Court), I find that appellants have made out a prima facie case for waiver of dues arising out of the impugned order. Accordingly, the predeposit of duty along with interest and penalty is waived and its recovery is stayed during pendency of the appeal - Stay granted.
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2015 (2) TMI 963
Waiver of pre deposit - duty on breakages of bottles while handling - Held that:- Appellants are manufacturer of aerated waters as seen from para-14 of the OIO, it is stated that percentage of breakages was 0.45% which is well below the limit of 0.5% prescribed by the Board's circular dt. 8.9.1971 and 17.9.1975. The adjudicating authority has demanded duty only on the ground that the appellants have not followed the remission procedures. Following the ratio of judgement of the Hon'ble Allahabad High Court in Hindustan Coca-Cola Beverages Pvt. Ltd. (2013 (4) TMI 83 - ALLAHABAD HIGH COURT) and also Tribunal's decision (2009 (7) TMI 1135 - CESTAT NEW DELHI), I find that appellants have made out a prima facie case for waiver of predeposit. In view of the above discussion, I waive the requirement of predeposit of duty, interest and penalty and stay its recovery till disposal of appeal. - Stay granted.
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2015 (2) TMI 962
Denial of CENVAT Credit - Outdoor Catering Services and Clearing & Forwarding services - Held that:- major amount of the total demand of input credit relates to outdoor catering services and the amount involved on this count is ₹ 1,86,466 and in respect of C&F services the amount in dispute is ₹ 13352/-. On a query from the Bench as to whether the appellant has collected from the employees towards catering services, the learned advocate submitted that this aspect was not part of the SCN. However, he submits that he will file the supporting documents at the time of hearing the appeal to establish if any charges are reimbursed towards catering services. The appellants are eligible for cenvat credit if employees are more than 250 and if they have not reimbursed the catering charges from the employees. Since the appellant is not able to produce any evidence to prove reimbursement charges has not been collected from employees, prima facie, the appellant has not made out a case for waiver of entire amount of duty along with interest and penalty. The plea of the appellant for production of supporting documents in respect of reimbursement of catering charges would be examined at the time of appeal hearing. Accordingly, I direct the appellant to make a predeposit of ₹ 35,000 within 4 weeks - Partial stay granted.
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2015 (2) TMI 961
CENVAT Credit - appellants have distributed the credit of the service availed prior to April 2011 therefore, it was of the view of the lower authorities that from April 2011 the appellants are not entitled to take CENVAT Credit on these goods - Held that:- The issue of availment of service prior to April 2011 is not in dispute. Therefore, I hold that as per Rule 6(5) of Cenvat Credit Rules, 2004, during the relevant time, the appellants are entitled to take CENVAT Credit on inputs service namely security service. It is immaterial whether the same is taken later on as held in the Circular No. 943/04/2011-CX dated 29.04.2011. In these circumstances, I hold the appellants are entitled to take CENVAT Credit and are not required to reverse the amount equivalent to 5%/10% of the value of the exempted goods. - Decided in favour of assessee.
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2015 (2) TMI 960
Waiver of pre deposit - Disallowance of cenvat credit availed as input credit on outward transportation upto the buyer's premises - Held that:- On a perusal of copies of purchase orders, invoices submitted by the appellant along with appeal papers and the contract it is stated that "door delivery" to the buyers premises. The appellants have discharged duty on the total value of the goods inclusive of freight and insurance. Considering the decisions of Hon'ble High Court and the Tribunal (2013 (12) TMI 1025 - CALCUTTA HIGH COURT) and [2007 (7) TMI 19 - CESTAT, CHENNAI], I find that prima facie the appellants have made out a case for waiver of predeposit and stay. Accordingly, predeposit of dues arising from the impugned order is waived and its recovery is stayed till disposal of the appeals. - Stay granted.
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2015 (2) TMI 959
CENVAT Credit - Whether the appellant is entitled to take Cenvat Credit on outward Transportation Service was dealt by the various Hon'ble High Courts and in the majority of the High Court decision it was held that Cenvat credit is available on Outward Transportation Service prior to 01.04.2008 - Held that:- Issue came up before the Hon'ble High Court of Gujarat in Ellora Time Ltd. [2014 (3) TMI 567 - GUJARAT HIGH COURT] wherein again it was held that Cenvat Credit on the above said service is available prior to 01.04.2008. In the light of the majority decision of the Hon'ble High Court I am of the view that the appellant is entitled to get Cenvat Credit on Outward Transportation Service in the light of the larger bench decision in ABB Ltd [2009 (5) TMI 48 - CESTAT, BANGALORE]. - Decided in favour of assessee.
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2015 (2) TMI 958
CENVAT credit on supplementary invoices issued by job workers - Suppression of fact- Denial of Cenvat Credit- Held that:- Commissioner (Appeals) have relied upon the order passed by the learned Commissioner (Appeals) in the case of job workers wherein the learned Commissioner (Appeals) held that the job workers have not suppressed the facts and the allegation of suppression was discharged. In these circumstances when the complete finding is on record and nothing contrary has been proved by the Revenue, in these circumstances the impugned order has not infirmity which requires no intervention. The same is upheld - Decided against Revenue.
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2015 (2) TMI 957
Import of Non-Alloy Steel slabs - benefit of Customs Notification No. 21/2002-Cus. dated 1.3.2002 (Sl. No. 190B) - Mis-declaration of goods - NML vide their report dated 27.10.2004 had opined that the samples are not prime quality and can be considered as "Non-Alloy Steel slabs non-prime" - appellant requested to retest of the samples, which was rejected by the Department - Held that:- Adjudicating authority examined the MSME test report dated 21.4.2009 as per direction of the Hon'ble High Court and observed that the report of MSME mentioned, the goods are of uniform size and shape whereas, as seen from the factual data presented, there is a huge heterogeneity in the dimensions of the consignment. The findings of the report and the conclusion are not in tandem. The adjudicating authority reproduced "observed value" of MSME Report in the adjudication order. On perusal of the MSME Testing Report, we find that the "observed value" as reproduced in the adjudication order is incomplete.
The adjudicating authority observed that NML is a specialized agency dealing with metals and therefore, it has accepted the conclusions given by them. It is further observed that its materials evaluation and characterization facilities compare with the best in the world. We are concerned with the particular test report NML and MSME and therefore we would not like to express any opinion on the competency of expert opinion of NML and MSME. In this context, it may be referred that the Tribunal in the case of Sabari Exim Pvt. Ltd. (2004 (10) TMI 460 - CESTAT, CHENNAI) rejected NML report and accepted imported non-alloy steel blooms as prime quality on the basis of report of other agency, imported in December 2002 and extended the benefit of exemption Notification No. 21/2002-Cus. Apart from that, as contended by the appellant, the Department released the goods in respect of six Bills of Entry on the basis of the same MSME Report.
After examining MSME Report as per order of the High Court, we are of the view that MSME report should be accepted, wherein it has been opined that the goods in question are of prime chemistry and meet the quality requirements of prime quality. Accordingly, the demand of duty, penalty and confiscation of goods and imposition of penalty are not sustainable. So, we set aside the impugned order - Decided in favour of assessee.
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2015 (2) TMI 956
Imposition of penalty under Regulation 12(8) of the Handling of Cargo in Customs Area Regulation, 2009 - contravention of Regulations 6(2), 6(1)(k) and 6(1)(q) read with Section 141 (2) of the Customs Act, 1962 - Held that:- Regulation 12(8) providing for penalty does not say that penalty is imposable on each of the contraventions. It merely says that if the Customs cargo services provider contravenes any of the provisions of the Regulations, he is liable to penalty to the extent of ₹ 50,000/-. If the intention of the legislature was to provide for imposition of penalty for each of the contravention, the legislature would have said so specifically. In the absence of any such specification in the provisions, the contention of the Revenue in this regard cannot be accepted and would amount to adding words which the legislature has not done. As per the principles of statutory interpretation, addition or deletion of words to the language employed by the legislature is not permissible. Therefore, imposition of penalty of more than ₹ 50,000/- is not permitted under the law.
As regards the penalty imposed under Section 117, the said provision would apply only if there is no other penalty provide for violations of the provisions of the Handling of Cargo in Customs Area Regulations. Penalty is specified under Regulation 12(8). That being the position, the question of imposition of penalty under Section 117 would not arise at all. Therefore, the penalty imposed under Section 117 is clearly unsustainable in law.
Maximum penalty that can be imposed for contravention of the Handling of Cargo in Customs Area Regulation is only ₹ 50,000/-. In the present case, the gravity of the offence committed is serious i.e. mis-use of the container for smuggling of red sanders and the facts of the case are not in dispute. In the facts and circumstances of the case, the maximum, penalty of ₹ 50,000/- is justifiable. Accordingly, I reduce the penalty imposed on the appellant from ₹ 1.5 lakhs to ₹ 50,000/- in terms of the provisions of the Handling of Cargo in Customs Area Regulations, 2009 and set aside the penalty of ₹ 1 lakh imposed under Section 117 of the Customs Act, 1962. - Decided partly in favour of assessee.
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2015 (2) TMI 955
Valuation of goods - Inclusion of amount of royalty on the imported goods - Held that:- There is a contradiction in the stand taken by the Customs as far as inclusion of royalty on the goods imported. On the one hand it is held that if the foreign supplier is not related, royalty is not includable whereas if the foreign supplier is related royalty is includable. Rule 10 of the Customs Valuation Rule, 2007 does not make any distinction on the basis of relationship between the parties for its application and the said Rule applies uniformly irrespective of whether the supplier and the importer are related or not. Further Rule 10 (1) (c) specifically excludes the charges for the right to reproduce the imported goods in the country of importation as per the interpretative notes given in the schedule thereto. The World Customs Organization has also interpreted the term "right to reproduce the imported goods" as reproduced in para 2 above and as can be seen from the clarification given by the WCO, it would also include animal or plant species which are reproduced from the imported goods.
More or less identical matter was considered by this Tribunal this Tribunal came to the conclusion that royalty paid for the reproduction of imported seeds in India cannot be added to the assessable value of the seeds. The same ration would also apply to the facts of the present case. - royalty paid by the appellants herein for the reproduction of the imported clumps in India cannot be added to the value of the clumps - Decided in favour of assessee.
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2015 (2) TMI 954
Classification of goods - import of Inca Inchi Oil in soft vegetarian Gel Capsules - Classification under CETH 15159091 or under CTH 3004 - claim of the appellant that these are "Extra Virgin Vegetable Oil (Inca Inchi) meriting classification under CETH 15159091 - Held that:- Product merit classification under CTH 3004 as P or P medicaments. Therefore, the onus of proving classification under the said heading lies on the Revenue. The Revenue has not even got the product tested by the Drugs Control authorities to come to the conclusion that the product has therapeutic or prophylactic properties or have been prepared or made so as to have these properties. On the contrary, we find that the product description on the packaging itself, clearly indicates that the product does not have any medicinal use and is not intended to diagnose, treat, cure or prevent any disease.
The product has natural ingredients such as, vitamins "A" & "D" and omega 3, 6 & 9 which has antioxidant properties. There are many products which are naturally occurring which have therapeutic or prophylactic properties. For example products like neem, turmeric, basil leaves, etc, all have medicinal value but nobody considers them medicaments, when they are used as such, without subjecting to any chemical modification. In fact many of these items are used in daily cooking also. Therefore, merely because a product possess certain natural properties, it cannot be said to fall under the classification of medicaments. - the product merits classification under CTH 151590 - Following decision of Banner Pharmacaps (I) Pvt. Ltd. vs. CCE, Bangalore [2004 (12) TMI 203 - CESTAT, BANGALORE] - Decided in favour of assessee.
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2015 (2) TMI 953
Violation of The All India Services (Conduct) Rules, 1968 - Rejection of Enquiry report - Power of state to Second enquiry and appoint a Board of Enquiry - Rule 8(3) of the All India Services (Discipline and Appeal) Rules, 1969 - Held that:- All the parties - the appellant, the respondents and the Central Administrative Tribunal and the High Court proceeded on the basis that the IMPUGNED order constituting a two member Enquiry Board under Rule 8(3) of the DISCIPLINE Rules is an order constituting such a Board under the provisions of the Public Servants (Inquiries) Act, 1850. We do not see any basis for such a conclusion. The IMPUGNED order nowhere refers to the Public Servants (Inquiries) Act, nor there is anything in Rule 8(3) which suggests that whenever a multi-member Board is appointed as an Enquiring Authority, such a Board could be appointed only under provisions of the Public Servants (Inquiries) Act. The language of Rule 8(2) is wide enough to enable the disciplinary authority to appoint either a single member Enquiring Authority or a multi-member Board to inquire into the misconduct of a delinquent officer.
The issue is not really whether the Enquiring Authority should be a single member or a multi member body, but whether a second inquiry such as the one under challenge is permissible. A Constitution Bench of this Court in K.R. Deb [1971 (4) TMI 94 - SUPREME COURT], examined the question in the context of Rule 15(1) of the Central Civil Services (Classification, Control and Appeal) Rules, 1957. It was held that there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under Rule 9.
The scheme of Rule 8 of the DISCIPLINE Rules and Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 are similar. Therefore, the principle laid down in Deb’s case [1971 (4) TMI 94 - SUPREME COURT], in our opinion, would squarely apply to the case on hand.
We are at a loss to comprehend how the filing of the writ petition containing allegations that the Government of India is lax in discharging its constitutional obligations of establishing the rule of law can be said to amount to either failure to maintain absolute integrity and devotion to duty or of indulging in conduct unbecoming of a member of the service.
Even otherwise, the IMPUGNED order, in our opinion is wholly untenable. The purpose behind the proceedings appears calculated to harass the appellant since he dared to point out certain aspects of mal-administration in the Government of India. The whole attempt appears to be to suppress any probe into the question of black money by whatever means fair or foul. The present impugned proceedings are nothing but a part of the strategy to intimidate not only the appellant but also to send a signal to others who might dare in future to expose any mal-administration.
The right to judicial remedies for the redressal of either personal or public grievances is a constitutional right of the subjects (both citizens and non-citizens) of this country. Employees of the State cannot become members of a different and inferior class to whom such right is not available. The appeal is allowed. The judgment under appeal is set-aside. Consequently, the O.A. stands allowed as prayed for. The respondents are liable jointly and severally to pay costs to the appellant which is quantified at ₹ 5,00,000/- (rupees five lakhs). – Decided in favour of appellant.
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9911796707
