judgement:
vil Appeals Nos.
359394 of 1989.
From the Order dated 26.5.1988 of the Customs Excise and (;old (Control) Appellate Tribunal, New Delhi in 545 546/88 C in Appeal No. E/COD/699/87 C in Appeal No. E/847/84 C with E/1/85 C. WITH Civil Appeals Nos. 642 643/91, 1723 1731/91.
A.K. Ganguli, Ms. Sushma Suri, P. Parmeshwaran and A. Subba Rao for the Appellant.
Rajinder Sachar, Aruneshwar Gupta, Manu Mridul, P.I. Jose and Sanjay Parekh for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
These appeals by the Revenue under Section 35L of the in volve the interpretation of the Notification No. 179/77 CE dated 18.6.1977.
The Notification read thus: "In exercise of the powers conferred by sub rule (1) of rule 8 of 128 the Central Excise Rules, 1944, the Central Government hereby exempts all goods failing under Item No. 68 of the First Schedule to the (1 of 1944) in or in relation to the manufacture of which no process is ordinarily carried on with the aid of power, from whole of the duty of excise leviable thereon".
Tariff Item 68 during the relevant period read: "All other goods, not elsewhere specified, manufactured in a factory but excluding. " M/s. Rajasthan State Chemical Works, the respondents in Civil Appeals Nos.
3593 94 of 1989, are manufacturers of crude sodium sulphate.
In the process of manufacture of common salt from brine, in the salt pans in which the proc ess of evaporation takes place some quantities of sodium sulphate present in the brine also crystalise and settle at the bottom as crust.
The sodium sulphate is thus obtained as a bye product.
For the purpose of the manufacture, brine is pumped into salt pans using diesel pumps.
The benefit of the aforesaid notification was not given to these respondents as pumping of brine into the pans was carried on with the aid of power.
The claim for exemption though denied by the original authority, was allowed by the Collector of Customs (Appeals) and that order was affirmed by the Tribunal.
M/s. Sunderson (Minerals) Ltd., the respondents in Civil Appeals Nos.
642 643 of 1991 and 1723 1731 of 1991 are manufacturers of lime from coke and lime stone.
The raw materials are lifted to the platform at the head of the kiln by the aid of power.
At the kiln head, the raw materials are mixed manually and fed into the kiln.
Since power is used for lifting the raw materials at the kiln head, these re spondents were denied the benefit of the notification by the Assistant Collector.
The appeal before the Collector of Appeals was dismissed.
The Tribunal, however, accepted the claim of the respondents.
The Revenue being aggrieved has challenged the respec tive orders of the Tribunal in these appeals.
129 In both these set of cases, the view taken by the Tribu nal is that the manufacturing process starts from the stage of feeding raw materials into the salt pan or the kiln as the case may be.
The transportation of the raw materials to the platform at the kiln head and the pumping of brine into the salt pan is a stage prior to the commencement of manu facturing process.
Therefore, the transferring of the raw materials is not a part of the process of manufacture and the use of power for such transfer would not disentitle the respondents from the benefit under the notification.
It has been contended before us on behalf of the appel lant that pumping the brine into the pan o: lifting the raw materials to the kiln head is a process in relation to the manufacture of the final product and since that process with the aid of power is integrally connected with the manufac ture, the exemption would not apply.
On the other hand, it is reiterated for the respondents that if the process car ried on with the aid of power does not bring about any change in the raw material, it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and, therefore, mere transfer of raw materials by the use of power cannot be considered as a process of manufacture.
The Central Government has exempted all goods failing under Item No. 68 of the First Schedule to the Act in or in relation to the manufacture of which no process is ordinari ly carried on with the aid of power from the whole of the duty of excise leviable thereon.
The exemption under this notification is available only when the goods are manufac tured without the aid of power at any stage of the process.
Where manufacture involves series of processes and if anyone of such processes is carried on with the aid of power, the case is taken out of the purview of the notification.
We have to consider what activity amounts to process in or in relation to manufacture of goods for the application of the notification.
The word 'manufacture ' has been defined in Section 2(1) of the , thus: "2(1). 'Manufacture ' includes any process (i) incidental or ancillary to the completion of a manufactured product; and (ii) which is specified in relation to any goods in the Section or Chapter notes of the Schedule to the as amounting to manufacture".
130 Clause (f) gives an inclusive definition of the term 'manufacture ', According to the dictionary, the term 'manu facture ' means a process which results in an alteration or change in the goods which are subjected to the process of manufacturing leading to the production of a commercially new article.
In determining what constitutes 'manufacture ' no hard and fast rule can be applied and each case must be decided on its own facts having regard to the context in which the term is used in the provision under consideration.
Manufacture implies a change but every change is not manufacture, yet every change of an article is the result of treatment, labour and manipulation.
Naturally, manufacture is the end result of one or more processes through which the original commodities are 'made to pass.
The nature and extent of processing may vary from one class to another.
There may be several stages of processing, a different kind of processing at each stage.
With each process suffered the original commodity experiences a change.
Whenever a commodi ty undergoes a change as a result of some operation per formed on it or in regard to it, such operation would amount to processing of the commodity.
But it is only when the change or a series of changes take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that a manufacture can be said to take place.
Manufacture thus involves series of processes.
Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations.
It is the cumulative effect of the various processes to which the raw material is subjected to, manufactured product emerges.
Therefore, each step towards such production would be a process in relation to the manufacture.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture.
The natural meaning of the word 'process ' is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject matter in order to transform or reduce it to a certain stage.
According to Oxford Dictionary one of the meanings of the word 'process ' is "a continuous and regular action or succession of actions taking place or carried on in a defi nite manner and leading to the accomplishment of some re sult.
" The activity contemplated by the definition 131 is perfectly general requiring only the continuous or quick succession.
It is not one of the requisites that the activi ty should involve some operation on some material in order to its conversion to some particular stage.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be a process which con sists only in handling and there may be a process which involves no handling or not merely handling but use or also use.
It may be a process involving the handling of the material and it need not be a process involving the use of material.
The activity may be subordinate but one in rela tion to the further process of manufacture.
In J.K. Cotton Mills vs
S.T. Officer; , , this Court 'in construing the expression 'in the manufacture of goods ' held thus: "But there is no warrant for limiting the meaning of the expression 'in the manufacture of goods ' to the process of production of goods only.
The expression 'in the manufac ture ' takes in within its compass, all proc esses which are directly related to the actual production".
The Court further held thus: "The expression 'in the manufacture of goods ' would normally encompass the entire process carried on by the dealer of converting raw materials into finished goods.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process, manufacture or processing of goods would be commercially inexpedient, goods required in that process would, in our judg ment, fail within the expression 'in the manufacture of goods '.
" In that case, the assessee carrying on the business of manufacturing textile goods claimed that certain goods namely drawing material etc.
were used in the manufacture.
The Court said that if the process of designing is so inte grally connected with the process of manufacturing of cloth, there is no reason to regard the process of designing as not being a part of the process of manufacture.
The process of designing may be distinct from the actual process of turning out finished goods but, there is no warrant for limiting the meaning of the expression 'in the manufacture of goods ' to the process of production of goods only.
The expressions ' 'in the manufacture of goods ' takes within its encompass all processes which are directly related to the actual produc tion.
132 In Union of India vs Delhi Cloth & General Mills, [1963] Supp. 1 S.C.R. 586, this Court held thus: "The definition of 'manufacture ' as in section 2 (13 puts it beyond any possibility of contro versy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be applicable; and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available." In that case, it was contended that manufacture is complete as soon as by the application of one or more proc esses the raw material undergoes some change.
In answering the contention, the Court stated thus: "We are unable to agree with the learned Counsel that by inserting this defini tion of the word "manufacture" in section 2 (f) the legislature intended to equate "processing" to "manufacture" and intended to make mere "processing" as distinct from "manufacture" in the same sense of bringing into existence of a new substance known to the market, liable to duty.
The sole purpose of inserting this definition is to make it clear that at certain places in the Act the word 'manufacture ' has been used to mean a process incidental to the manufacture of the article.
Thus in the very item under which the excise duty is claimed in these cases, we find the words: "in or, in relation to the manufacture of which any process is ordinarily carried on with the aid of power".
The definition of 'manufacture ' as in section 2 (f) puts it beyond any possibility of controversy that if power is used for any of the numerous processes that are required to turn the raw material into a finished article known to the market the clause will be ap plicable; and an argument that power is not used in the whole process of manufacture using the word in its ordinary sense, will not be available.
It is only with this limited pur pose that the legislature, in our opinion, inserted this definition of the word 'manufac ture ' in the definition section and not with a view to make the mere '*processing" of goods as liable to excise duty.
" A process is a manufacturing process when it brings out a complete transformation for the whole components so as to produce a commercially different article or a commodity.
But, that process itself may consist of 133 several processes which may or may not bring about any change at every intermediate stage.
But the activities or the operations may be so integrally connected that the final result is the production of a commercially different arti cle.
Therefore, any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification.
In our view, the word 'process ' in the context in which it appears in the aforesaid notifi cation includes an operation or activity in relation to manufacture.
The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process but for which the manufacture would be impossible.
The handling of the raw materials for the purpose of such trans fer is then integrally connected with the process of manu facture.
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion, it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process.
The use of diesel pump sets to fill the pans with brine is in activity with the aid of power and that activity is in relation to the manufacture.
It is not correct to say that the process of manufacture starts only when evaporation starts.
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place.
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture.
Similarly, when coke and lime are taken to the platform in definite proportions for the purpose of mixing, such operation is a step in the manufacturing process.
It precedes the feeding of the mix ture into the kiln where the burning takes place.
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning.
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed.
There fore, if power is used in anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case where in or in relation to the manufac ture the process is carried on with the aid of power.
Learned counsel for the appellant relying on the deci sion of the Gujarat High Court in Nirma Chemical Works & Ors.
vs Union of india & Ors., , submitted that process means an operation which brings about some change in the raw material.
That in the present case, the operation of putting the raw materials, namely, coke ,red lime 134 stone on the kiln head does not bring about any change in the raw material but the raw materials remain in the same shape as they were when they were brought in the truck and were dumped separately on the ground and, therefore, this operation can be termed only 'transportation ' and cannot be called a 'process '.
The Gujarat High Court in Nirma Chemi cal Works (supra) said: "It must be made clear that it is only at the stage of transferring liquid raw materials from the motor tanker to the storage tank that power is used and at no subsequent stage is any power used.
If no change is brought about in the raw material until it reaches the re action ves sel, then no process of manufacture can be said to have taken place until the raw materi als are taken to the re action vessel.
Till then they are all preparations made but the raw materials continue to be the same raw materials.
Until sulphuric acid and alkyd benzene start re acting on each other, no change takes place in the raw materials.
Merely because the goods are stored in one place, may be at an elevated place above the ground, it cannot be said that a process of manufacture which would convert the raw mate rial by different stages into the final product has been undergone.
In view of the decision in Chowgule & Co. 's (supra) as to what is meant by processing, it is clear that unless and until some change takes place in the raw material of the original commodity, no process can be said to have been gone through.
Before any operation can be characterised as a process, the commodity must, as a result of the operation, experience some change.
" Counsel for the respondents submitted that a process in or in relation to the manufacture commences as soon as the change is brought about in the raw material and ends till the manufactured product is marketed.
Until some change physical or chemical is brought about in the raw material, there is no process in or in relation to the manufacture.
Mere collecting, storing or dealing with the raw material are operations and/or activities prior to the beginning of process.
Mere physical alteration of the site or placement of raw materials or stacking, storing the same cannot be said to be a process in relation to manufacture.
In the case of preparation of sodium sulphate, it is said that the process in or in relation to manufacture commences after the brine is placed in the salt pans.
The counsel 135 submits that if every operation and/or activity and/or action is treated as a 'process ' in or in relation to manu facture then power is used in (i) erection of factory where steel, cement, bricks etc.
are used, (ii) day to day trans portation and (iii) use of electricity for lights, fans etc.
These arguments are far fetched.
The activity in relation to which power is used is not to be considered into isolation where the activity is such that it forms an integral part of the whole process.
The Gujarat High Court in interpreting the word 'process ' has assumed that 'process ' is synonymous to 'processing ' and has drawn support from the observations of this Court in Chowgule & Co. Pvt. Ltd. vs Union of India, ; We are afraid, the observations had not been properly understood or applied in drawing inference that process when used in relation to manufacture must be one that produces a change in the commodity.
It has been made clear in Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; that: "Commonly manufacture is the end result of one or more processes through which the original commodity is made to pass.
The nature and extent of processing may vary from one case to another, and indeed there may be several stages of processing and perhaps a different kind of processing at each stage.
With each process suffered, the original commodity experiences a change.
But it is only when the change, or a series of changes, take the commodity to the point where commercially it can no longer be regarded as the original commodity but instead is recognised as a new and distinct article that manufacture can be said to take place? It has been made clear in Union of India vs Delhi Cloth & Genera, Mills (supra) that the definition of the word 'manufacture ' in Section 2 (f) puts it beyond any possibili ty of controversy that if the power is used for any of the numerous processes that are required to turn the raw materi als into a finished article known to the market, it would be a case where in or in relation to manufacture process has ordinarily been carried on with the aid of power.
It is, therefore, wrong to conclude that every operation in the course of the manufacture should bring about a change and if any operation with the aid of power does not result in a change, it cannot be an integral part of the process in or in relation to manufacture.
In Chowgule & Co. Pvt.
Ltd. case, what this Court said is that: 136 "Wherever a commodity undergoes a change as a result of some operation performed on it or in regard to it, such operation would amount to processing of the commodity.
" What is necessary in order to characterise an operation as "processing" is that the commodity must, as a result of the operation, experience some change.
The question is not whether there is manual application of energy or there is application of mechanical force.
Whatever be the means employed for the purpose of carrying out the operation, it is the effect of the operation on the commodity that is material for the purpose of determining whether the opera tion constitutes "processing".
In drawing the distinction between 'processing ' and 'manufacture ', this Court observed in Delhi Cloth Mills case thus: "To say this is to equate "processing" to "manufacture" and for this we can find no warrant in law.
The word "manufacture" used as a verb is generally understood to mean as "bringing into existence a new substance" and does not mean merely "to produce some change in a substance", however minor in consequence the change may be." Thus "processing" may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage, we cannot say that it has been manufac tured.
That does not, however, mean that any operation in :he course of such process is not in relation to the manu facture.
While interpreting the same exemption notification in Standard Fireworks Industries vs Collector, , it was held that manufacture of fireworks requires cutting of steel wires and the treatment of papers red, therefore, it is a process for manufacture of goods in question.
The Notification purports to allow exemption from duty only when in relation to the manufacture of goods no process is ordinarily carried on with the aid of power.
It was observed that cutting of steel wires or the treatment of the papers is a process for the manufacture of goods in question.
We are, therefore, of the view that if any operation in the course of manufacture is so integrally connected with the further operations which result in the emergence of manufactured goods and such operation is carried on with the aid of power, the process in or in relation to the manufac ture must be deemed to be one carried on with the aid of power.
In this 137 view of the matter, we are unable to accept the contention that since the pumping of the brine into the salt pans or the lifting of coke and lime stone with the aid of power does not bring about any change in the raw material, the case is not taken out of the Notification.
The exemption under the Notification is not available in these cases.
Accordingly, we allow these appeals.
In the facts and cir cumstances of the case, we make no order as to costs.
G.N. Appeals allowed.

summary/full:
By way of notification dated 18.6.1977, the Central Government exempted from duty all goods falling under Tariff item No. 68 of the First Schedule to the in or in relation to manufacture of which no process was ordinarily carried on with the aid of power.
The respondents in the first set of appeals have been manufacturing crude sodium sulphate.
Since the respondents used diesel pumps for pumping brine into salt pans, in the process of manufacture, the benefit of the said notification was denied to them on the ground that the process of manu facture was carried on with the aid of power.
However, on appeal, the Collector of Customs (Appeals) allowed the benefit to the respondents.
Revenue preferred an appeal and the Tribunal affirmed the Collector 's order.
In the other appeals, the Respondents, manufacturer of lime, used to lift the raw materials to the platform at the head of the kiln by the aid of power and the raw materials were mixed manually into the kiln.
The benefit of the said notification was denied to the Respondents by the Assistant Collector.
Even an appeal before the Collector of Appeals failed.
However, on appeal the Tribunal accepted the claim of the Respondents.
In all these matters the Tribunal took the view that the manufacturing process started from the stage of feeding raw materials into the salt pan or the kiln as the case may be and the transferring of the raw materials was a stage prior to the manufacturing process and so the 125 use of power for such transfer would not disentitle the respondents from the benefit under the said notification.
Aggrieved by the orders of the Tribunal, the Revenue has preferred the present appeals.
Before this Court, the Revenue contended that pumping the brine into the pan or lifting the raw materials to the kiln head was a process in relation to the manufacture of the final product and since that process with the aid of power was integrally connected with the manufacture, the exemption would not apply.
The Respondents contended that if the process carried on with the aid of power does not bring about any change in the raw materials, it cannot be said that any process in or in relation to the manufacture of an article has been carried on with the aid of power and, therefore, mere transfer of raw materials by the use of power cannot be considered as a process of manufacture.
Allowing the appeals, this Court, HELD: 1. Process in manufacture or in relation to manufacture implies not only the production but the various stages through which the raw material is subjected to change by different operations.
It is the cumulative effect of the various processes to which the raw materials is subjected to the manufactured product emerges.
Therefore, each step towards such production would be a process in relation to manufacture.
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture of processing of goods would be impossible or commercially inexpedient, that process is one in relation to the manufacture.
[130 E F).
2.1 The natural meaning of the word 'process ' is a mode of treatment of certain materials in order to produce a good result, a species of activity performed on the subject matter in order to transform or reduce it to a certain stage.
There is nothing in the natural meaning of the word 'process ' to exclude its application to handling.
There may be process which consists only in handling and there may be a process which involves no handling or not merely handling but also use.
It may be a process involving the handling of the material and it need not be a process involving the use of material.
The activity may be subordinate but one in relation to the further process of manufacture.
[130G, 131 A B] 126 2.2 A process is a manufacturing process when it brings out a complete transformation for the whole compo nents so as to produce a commercially different article or a commodity.
But, that process itself may consist of several processes which may or may not bring about any change at every intermediate stage.
But the activities or the opera tions may be so integrally connected that the final result is the production of a commercially different article.
Therefore, any activity or operation which is the essential requirement and is so related to the further operations for the end result would also be a process in or in relation to manufacture to attract the relevant clause in the exemption notification.
The word 'process ' in the context in which it appears in the notification includes an operation or activi ty in relation to manufacture.
[132H, 133 A B] J.K. Cotton Mills vs
S.T. Officer; , ; Union of lndia vs Delhi Cloth & General Mills, [1963] Supp. 1 SCR 586, relied on.
3.1 The transfer of raw material to the reacting vessel is a preliminary operation but it is part of a continuous process ,but for which the manufacture would be impossible.
The handling of the raw materials for the purpose of such transfer is then integrally connected with the process of manufacture.
The handling for the purpose of transfer may be manual or mechanical but if power is used for such opera tion, it cannot be denied that an activity has been carried on with the aid of power in the manufacturing process.
The use of diesel pump sets to fill the pans with brine is an activity with the aid of power and that activity is in relation to the manufacture.
It is not correct to say that the process of manufacture starts only when evaporation starts.
The preliminary steps like pumping brine and filling the salt pans form integral part of the manufacturing proc ess even though the change in the raw material commences only when evaporation takes place.
The preliminary activity cannot be disintegrated from the rest of the operations in the whole process of manufacture.
Similarly, when coke and lime are taken to the platform in definite proportions for the purpose of mixing, such operation is a step in the manufacturing process.
It precedes the feeding of the mix ture into the kiln where the burning takes place.
The whole process is an integrated one consisting of the lifting of the raw materials to the platform mixing coke and lime and then feeding into the kiln and burning.
These operations are so interrelated that without anyone of these operations manufacturing process is impossible to be completed.
There fore, if power is used in 127 anyone of these operations or anyone of the operations is carried on with the aid of power, it is a case when in or in relation to the manufacture the process is carried on with the aid of power.
[133 C G] 3.2 'Processing ' may be an intermediate stage in manu facture and until some change has taken place and the com modity retains a continuing substantial identity through the processing stage, one cannot say that it has been manufac tured.
That does not, however, mean that any operation in the course of such process is not in relation to the manu facture.
[136 E] Dy.
Commissioner, Sales Tax; Ernakulam vs Pio Food Packers, ; ; Union of India vs Delhi Cloth & General Mills, [1963] Suppl.
1 SCR 586; Standard Fireworks Industries vs Collector, , relied on.
Nirma Chemical Works & Ors.
vs Union of India & Ors.
, ; Chowgule & Co. Pvt. Ltd. vs Union of India, ; , referred to.


judgement:
Special Leave Petition (Civil) No. 6497 of 1991.
From the Judgment and Order dated 18.4.1990 of the Bombay High Court in W.P. No. 419 of 1990.
section Ganesh, Ravinder Narain, P.K. Ram and Ms. Amrita Mitra for the Petitioner.
K.K Singhvi and A.K Gupta for the Respondent.
The Order of the Court was delivered by: K. JAYACHANDRA REDDY, J. The petitioner Company is engaged in the business of manufacture of aluminium products and its factory is located at Kalwa in Thane District (Maharashtra).
The Company obtains aluminium as raw materi als for consumption from another factory of theirs situated in a different State.
With effect from 1.10.82 the Company at Kalwa was included in the municipal jurisdiction of Thane.
Prior to that date the factory was not within the jurisdiction of Thane Municipality and did not have to pay any octroi on the raw materials brought into its factory at Kalwa.
By a notification dated 23.8.82, the Government of Maharashtra constituted the Municipal Corporation of the City of Thane and Kalwa was brought within the jurisdiction of the Thane Municipal Corporation, the respondent herein and all goods imported into the area of the Thane Municipal Corporation were subjected to octroi at the rates mentioned in Schedule I to the Maharashtra Municipalities (Octroi) Rules, 1968 ( 'Rules ' for short).
Schedule I to the said Rules contains description of various goods and articles which were liable to octroi and minimum and maximum rates are prescribed.
Item No.77 in the said Schedule I to the said Rules covered non ferrous metals, including aluminium and Entry provided for the levy of octroi duty on the alu minium and_other goods mentioned therein at the minimum rate of 0.5% and at the maximum of 4%.
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the 212 petitioner Company into Kalwa at the rate of 1.3% from 1.10.1982 to 14.4.1987.
Then with effect from 15.4.87 the respondent Corporation was levying octroi at the rate of 2%.
On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates pointing out that the increase was having a disastrous effect on their industrial units located within the limits Of the Corporation.
In reply to the said representation, the respondent Corporation addressed a letter dated 20.11.1987 in which it was pointed out and clarified inter alia that goods specified in Entry 77 in Schedule I to the said Rules, when raw material is imported for use in the manufacture of finished goods it would be subject to the levy of octroi not exceeding 1.25% and not less.
On receipt of this letter the petitioner Company made detailed enquiries and was informed that under Rule 4 of the said Rules the goods mentioned in Part IA of that Schedule which were imported by certain industrial undertakings are liable to be subjected to octroi at a lower rate.
The Compa ny also noticed further that Part IA of the Rules provided that the goods specified in Entry 77 when imported by an industrial undertaking for use as a raw material for proc essing within that undertaking and if a declaration in Form 14 is filed, the levy.
octroi in such cases would not exceed 1.25% and would not be less than 0.25%.
The petitioner, however, did not file any such Form 14 duly filled in and according to them they acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate.
The petitioner however having later realised by going through the records and the financial accounts and other documents which are duly audited claimed refund of the excess of octroi duty which has been paid by them.
On 8.3.88 the petitioner Company addressed a letter to the respondent Corporation pointing out that under a mistake of law they paid excess amount and therefore the excess amount so paid should be refunded.
The respondent Corporation in their reply dated 16.5.88 stated that the petitioner company had not complied with the procedure specified in Part IA of the Schedule II to the said Rules for availing such concessional rates therefore the refund cannot be sanctioned.
However, the petitioner Company by their letter dated 19.4.89 claimed a refund of total amount of Rs. 13,54,101.79 p.
The respond ent again rejected the claim reiterating that the procedure specified in Part IA of Schedule II to the Rules was not complied with.
Being aggrieved the Company filed a writ of mandamus seeking ' refund.
A Division Bench of the High Court dismissed the.
same holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filed with the octroi authorities.
Questioning the said 213 Order, this special Leave Petition has been filed and it is being disposed of at the admission stage itself after no tice.
Most of the facts in this case are not in dispute.
Admittedly the aluminium raw material was imported by the petitioner Company and octroi duty at the normal rate was paid and no declaration in Form 14 was filed.
It is only after the lapse of long time that the petitioner Company has made a claim for refund.
The learned counsel for the peti tioner Company submitted that a procedural failure should not disentitle the petitioner Company provided if otherwise the Company could have legitimately claimed.
The learned counsel appearing for the respondent Municipal Corporation submitted that the concessional rate would be available only if the raw material was utilised by the Company for manufac turing goods within the industrial undertaking.
If a decla ration had been filed in proper Form 14 there could have been a scope for verification and in the absence of such a declaration the question of refunding at this distance of time does not arise.
It is also his further submission that the concession should have been availed at the time when it was available.
Having failed to avail the question of claim ing the same later does not arise and consequently no refund can be claimed.
The amended Rules came into force in 1970.
Rule 4(2) provides for payment octroi at a lower rate by certain industrial undertakings in respect of the goods mentioned in Part IA of Schedule II to the Rules.
Aluminium is at Entry No.77.
Part I A reads thus: "PART I A List of goods on which octroi shah be payable at a lower rate by Certain industrial under takings.
(1) All goods specified in entries 6(c), 35, 40, 64, 65, 71, 77 and 86 in Schedule I, and khobra mentioned in entry 25, raw rubber and latex mentioned in entry 70 in that Schedule, when imported by an industrial undertaking for use as raw material for processing within that undertaking and when declaration in respect thereof is issued by the undertaking in Form 14, shall be subject to octroi by any Council at a rate not exceeding 1.25 per cent and not less than 0.25 per cent.
XX XX XX It can be seen from the above rule that to avail the concession, a declaration in Form 14 has to be made in respect of the raw material 214 imported.
Form 14 is as under: "FORM 14 (Part I A and I1 of Schedule II ) Declaration to be made by an importer import ing dutiable 'goods as raw material for his industrial undertaking I . . . do hereby declare that the goods in respect of which I have separately given a declaration under rule 14 have been imported by me as raw material to be used in the manufacture of . . . in my industrial undertaking, viz. (here give full name and address of the undertaking ) . . . . and I shall not use them for any other purpose for sale or otherwise dispose them of to any other party for any other purpose, except having previously paid the difference between the octroi due on such goods at ordinary rates and the octroi paid on concessional rates under Schedule I1 to the Maharashtra Municipalities (Octroi) Rules, 1968.
Date . . . .
Signature of the Importer" The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or otherwise etc.
It can thus be seen that an incentive is sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise.
That being the object a verifica tion at the relevant time by the octroi authorities becomes very much necessary before a concession can be given.
In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify.
Therefore the petitioner Company has definitely failed to fulfil an important obligation under the law though proce dural.
The learned counsel, however, submitted that even now the authorities can verify the necessary records which are audited and submitted to the authorities and find out wheth er the material was used in its own undertaking or not.
We do not think we can accede to this contention.
Having failed to file the necessary declaration he cannot now turn around and ask the authorities to make a verification of some records.
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has ceased to be there.
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be.
In any event the failure to file the necessary declaration has necessarily prevented the 215 authorities to have a proper verification.
Shri Ganesh, learned counsel for the petitioner Company relied on the judgment of this Court in Kirpal Singh Duggal vs Municipal Board Ghaziabad ; in support of his submission that the non fulfilment of procedural re quirement does not bar the claimant from persuing his remedy in a court of law.
That was a case where the appellant entered into a contract and supplied the goods to the Gov ernment.
The Municipal Board collected toll when the trucks were passing through the toll barrier.
The appellant ob tained a certificate that the transported goods were meant for Government work.
The appellant claimed exemption on the basis of the certificate but not within time.
The Court observed thus: "But counsel for the respondent contended that the rules framed by the Government regarding the procedure constituted a condition prece dent to the exercise of the right to claim refund and recourse to the civil court being conditionally strict compliance with the procedure prescribed the civil court was incompetent to decree the suit unless the condition was fulfilled.
We are unable to agree with that contention.
The rules framed by the Government merely set up the procedure to be followed in preferring an application to the Municipality for obtaining refund of the tax paid.
The Municipality is under a statuto ry obligation once the procedure followed is fulfilled, to grant refund of the toll.
The application for refund of the toll must be made within fifteen days from the date of payment of the toll.
It has to be accompanied by the original receipts.
If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit.
It would then be open to the party claiming a refund to seek the assistance of the court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under section 157(3) of the Act.
The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the civil court if the procedure is not followed." Relying on these observations, Shri Ganesh, learned counsel for the petitioner Company contended that in the instant case though the procedural requirement is not ful filled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the civil court or the High 216 Court by way of a writ and seek a refund.
We are unable to agree.
In Duggal 's case, the appellant, as a matter of fact, obtained certificate but failed to make the application for refund within time.
It is in that context this Court ob served that the Municipality was under a statutory obliga tion once the procedure followed is fulfilled and if it is not fulfilled the Municipality may decline.
The granting of a certificate that the appellant used the goods for Govern ment work made all the difference.
But, in the instant case, the non fulfillment of the requirement even though procedur al, has disentitled the petitioner Company because there was no way to verify whether it was entitled for such conces sion.
In HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 S C C 640 no doubt the view taken in Dugal 's case was confirmed but it does not make any difference so far as the present case is concerned for the reasons stated above.
In that case the question was whether the goods namely Horlicks was consumed within the city or not and there was no dispute as to the quantum which was credited pursuant to the directions of the High Court.
Hence no further verification was necessary.
Therefore these two cases are distinguishable.
However, a concession has to be availed at the time when it was available and in the manner prescribed.
The common dictionary meaning of the word "concession" is the act of yielding or conceding as 10 a demand or argument, something conceded; usually implying a demand.
claim, or request, "a thing yielded", "a grant".
In the Dictionary of English Law by Earl Jowitt, the meaning of "concession" is given as under: "Concession, a grant by a central or local public authority to a private person or pri vate persons for the utilisation or working of lands, an industry, a railway waterworks, etc.
" The expressions "rebate" and "concession" in the commer cial parlance have the same concept.
In Halsbury 's Laws of England, 4th edn.
Para 198 it is observed as under: "Application for rebate.
When a rating author ity receives an application for a rebate it has a duty to determine whether the residen tial occupier is entitled to a rebate and, if so, the amount to which he is entitled; and it must request him in writing to furnish such information and evidence as it may reasonably require as to the persons who reside in the hereditament, his income, and the income of his spouse.
Unless 217 the rating authority is satisfied that the residential occupier has furnished all the information and evidence it requires, it is under no duty to grant a rebate. " (emphasis supplied) In Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta and Ors. ; , the appellant which was a public limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub clause granting exemption.
It was contended on behalf of the appel lant that proviso to the sub clause was only directory and the dealer is not precluded where the proviso is not strict ly complied with from producing other relevant evidence to prove that the sales were for the purposes mentioned in the said sub clause.
The contention on behalf of the respondent was that the dealer can claim exemption under the sub clause but he must comply strictly with the conditions under which the exemption can be granted.
Rejecting the appellant 's contention, this Court held thus: "Section 5(2)(a) (ii) of the Act in effect exempts a specified turnover of a dealer from sales tax.
The provision prescribing the exemption shall, therefore, be strictly con strued.
The substantive clause gives the exemption and the proviso qualifies the sub stantive clause.
In effect the proviso says that part of the turnover of the selling dealer covered by the terms of sub clause (ii) will be exempted provided a declaration in the form prescribed is furnished.
To put it in other words, a dealer cannot get the exemption unless he furnishes the declaration in the prescribed form.
" It was further held as under: "There is an understandable reason for the stringency of the provisions.
The object of section 5(2) (a) (ii) of the Act and the rules made thereunder is self evident.
While they are obviously intended to give exemption to a dealer in respect of sales to registered dealers ' of specified classes of goods, it seeks also to prevent fraud and collusion in an attempt to evade tax.
In the nature of things, in view of innumerable transactions that may be entered into between dealers, it will wellnigh be impossible for the taxing authorities to ascertain in each case whether a dealer has sold the specified goods to another for the purposes mentioned in the section.
Therefore, 218 presumably to achieve the twofold object, namely, prevention of fraud and facilitating administrative efficiency, the exemption given is made subject to a condition that the person claiming the exemption shall furnish a decla ration form in the manner prescribed under the section.
The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid" It can thus be seen that the submission namely that the dealer, even without filing a declaration, can later prove his case by producing other evidence, is also rejected.
This ratio applies on all fours to the case before us.
As already mentioned the concession can be granted only if the raw material is used in the industrial undertaking seeking such concession.
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification.
Fail ure to file the same would automatically disentitle the Company from claiming any such concession.
In any event the petitioner Company cannot claim conces sion at this distance as a matter of right.
In Orissa Cement Ltd. vs State of Orissa & Ors, A I R , it was observed thus: "We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatical ly result in a direction for a refund of all collections thereof made earlier.
The decla ration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion.
It is well settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to ad vance the interests of justice." In the instant case the octroi duty paid by the peti tioner Company would naturally have been passed on to the consumers.
Therefore there is no justification to claim the same at this distance of time and the court in its discre tion can reject the same.
For the above reasons, this Spe cial Leave Petition is dismissed with costs.
V.P.R. Petition dis missed.

dataset_name: IN-Abs

summary/full:
The petitioner Company was engaged in the business of manufacture of aluminium products and its factory was locat ed at Kalwa in Thane District, obtaining aluminium as raw materials from its another factory, situated In a different State.
With effect from 1.10.82 the Company at Kalwa was included in the municipal Jurisdiction of Thane, and prior to that date, the Company did not have to pay any octroi on the raw materials brought into its factory at Kalwa.
The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the petition er Company at the rate of from 1.10.1982 to 14.4.1987 and from 15.4.87 at the rate of 2%.
On 18.5.87 the Thane Manufacturer 's Association made a representation to the respondent Corporation about the increase in octroi rates.
The respondent Corporation in Its letter dated 20.11.1987 pointed out that when raw material specified In Entry 77 in Schedule I to the Maharashtra Municipalities (Octroi) Rules imported for use in the manufacture of fin ished goods, It would be subject to the levy of octroi not exceeding 1.25% and not less.
On receipt of this letter, the petitioner Company made detailed enquiries and was informed that under Rule 4 of the Rules the goods mentioned In Part IA of the Schedule I1, which were imported, were liable to be subjected to octroi at a lower rate.
The Company also noticed further 209 that Part IA of the Rules provided that the goods specified in Entry 77, when imported by an industrial undertaking for use as a raw material for processing within that undertaking and if a declaration in Form 14 was filed, the levy of octroi in such cases would not exceed 12.5% and would not be less than 0.25%.
The petitioner, however, had not filed any Form 14 duly filled in and according to it, it acted under a mistake of law and under the bonafide impression that the octroi levied on and recovered by the Corporation at the rate of 1.3% in respect of the period from 1.10.82 to 14.4.87 and at the rate of 2% from 15.4.87 onwards, represented the correct rate.
On 8.3.1988 the petitioner Company in its letter to the respondent Corporation stated that under a mistake of law it paid excess amount and same should be refunded.
On 16.5.1988, the respondent Corporation replied that as the petitioner Company had not complied with the procedure specified in Part IA of the Schedule 11 to the Rules for availing such concessional rates and therefore the refund could not be sanctioned.
On 19.4.1989 the petitioner Company claimed a refund of total amount of Rs. 13,54,101.79 p.
The respondent rejected the claim, against which the Company filed a writ petition in the High Court, seeking refund.
A Division Bench of the High Court dismissed the writ petition holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filled with the octroi authorities.
Questioning the High Court 's Order, this Special Leave Petition was filed.
The petitioner Company contended that a procedural failure should not disentitle the petitioner Company, pro vided, if otherwise the Company could have legitimately claimed.
The respondent Corporation submitted that the conces sional rate would be available only if the raw material was utilised by the Company for manufacturing goods within the industrial undertaking; that if a declaration had been filed in proper Form 14 there could have been a 210 scope for verification and in the absence of such a declara tion the question of refunding at this distance of time did not arise; and that the concession should have been availed at the time when it was available, and having failed to avail, the question of claiming the same later did not arise.
Dismissing the petition, this Court, HELD:.
A verification at the relevant time by the octroi authorities becomes very much necessary before a concession can be given.
In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify.
Therefore the petitioner Company has definitely failed to fulfil an important obliga tion under the law though procedural.
[214 F] 2.
The verification at the time when the raw material was still there is entirely different from a verification at a belated stage after it has seized to be there.
May be that the raw material was used in the industrial undertaking as claimed by the petitioner Company or it may not be.
In any event the failure to file the necessary declaration has necessarily prevented the authorities to have a proper verification.
[214 H, 215 A] 3.
A concession has to be availed at the time when it was available and in the manner prescribed.
[216 D] 4.
The concession can be granted only if the raw materi al is used in the industrial undertaking seeking such con cession.
For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration has to be filed in Form 14 facilitating verification.
Fail ure to file the same would automatically disentitle the Company from claiming any such concession.
[218 C D] 5.
In the instant case the octroi duty paid by the petitioner Company would naturally have been passed on to the consumers.
Therefore, there is no justification to claim the same at this distance of time and the court in its discretion can reject the same.
[218 G] kirpal Singh Duggal vs Municipal Board Ghaziabad, [ ; ; HMM Limited and another vs Administrator, Bangalore City Corporation and another, [1989]4 SCC 640, distinguished.
Kedarnath Jute Manufacturing Co. vs Commercial Tax Officer, Calcutta 211 and Ors.; , , followed.
Orissa Cement Ltd. vs State of Orissa & Ors., AIR 1991 SC 1676, referred to.
Dictionary of English Law by Earl Jowitt; Halsbury 's Laws of England, 4th Edn.
Para 198, referred to.


judgement:
Criminal Appeal No. 214 of 1979.
From the Judgment and Order dated 22.11.1978 of the Punjab and Haryana High Court in Criminal Appeal No. 701 of 1975.
A.N. Mulla, O.P. Sharma and R.C. Gubrele for the Appellants.
Ms. Amita Gupta and R.S. Suri for the Respondents.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Balbir Singh and Inderjit Singh, the appellants, are brothers.
Onkar Singh, brother of Brijinder Singh, the father of the appellants, died of multiple in juries on 8.7.1974.
The appellants along with Mehar Singh, were tried on the charge of murder under Section 302, I.P.C. read with Section 34, I.P.C. The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal pre ferred by the State, convicted these appellants and sen tenced them to undergo imprisonment for life under Section 302, I.P.C. The appeal being one under Section 2 of the , the appellants ' learned counsel persuaded us to go through the entire evidence maintaining that the High Court has erred in interfering with the order of acquittal.
Ac cording to the learned counsel, the view taken by the trial court is reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence.
It was contended that the High Court has not effectively dislodged the various reasons given by the trial Court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record is clearly wrong.
In order to appreciate these arguments, it is necessary to set out briefly the facts of the case and summarize the relevant evidence.
The deceased, Onkar Singh, at the time of his death was employed in government service and was resid ing in Chandigarh.
His brother, Darbara Singh, and his son Iswardial Singh, as well as these appellants were residing in the village.
Onkar Singh came to the village on 6th July, 1974.
On 8th July, 242 1974, at about 10.30 A.M., Darbara Singh, along with his wife, Surjit Kant, and son Ishwardial Singh had gone to the mango grove across the choe to collect mangoes for being given to Onkar Singh.
While they were returning home along the pathway, Onkar Singh was seen coming in the opposite direction.
These two appellants along with their companion emerged on the scene and attacked Onkar Singh Balbir Singh had a datar and Inderjit Singh had a sua and Mehar Singh had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased, Onkar Singh, was removed to the house of Darbara Singh for being rushed to the hospi tal but within a short time, he breathed his last.
The first information was lodged at the police station around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination on the dead body revealed that Onkar Singh had sustained besides lacerated injuries three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that belonged to the family, among the children of the three brothers.
The land stood in the name of the deceased 's son under cultivation of Darbara Singh at the material time.
The land was originally gifted to the appellants in 1964 but was reconveyed to the deceased.
The learned Sessions Judge found that the motive had been proved.
The two eye witnesses to the occurrence were Darbara Singh and his son Ishwardial Singh.
They narrated the incident.
Their evidence was discarded by the trial court for the reasons that there was a thick growth of reeds on either side of the pathway which was running zigzag and it was not, therefore, possible for the witnesses even if they were present in the vicinity to observe the assault and identify the assailants.
Another reason was that the medical evidence was in distinct conflict with the oral testimony and the nature of injuries were such that the same could not be attributed to the use of the weapons mentioned by the witnesses.
Yet another reason was that there had been no trace of blood either on the pathway or on the clothes worn by the deceased.
The time of death of the deceased as dis closed by the medical evidence did not agree with the ver sion of the witnesses.
There had been inordinate delay in lodging the F.I.R.
The first information report did not inspire confidence.
The witnesses had no consistent case regarding the role played by Mehar Singh and the evidence was interested and unconvincing.
The learned Judge, there fore, rejected the 243 same and recorded the order of acquittal.
The High Court had cautioned itself on the limited scope of interference while analysing and appreciating the evi dence and arriving at its own conclusion.
The High Court has given very cogent reasons to establish that the whole ap proach by the trial court was wrong and reasons for reject ing the evidence did not stand scrutiny.
Having heard the counsel on both sides, we agree with the High Court that the prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that these appellants had intentionally caused the death of Onkar Singh.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R, is substantially the same as the one spoken to by the witnesses before the court.
There had not been any accept able suggestion why Darbara Singh should foist a case against the appellants.
It is most unlikely that these witnesses would allow the real culprits to escape and their near relations to be implicated on the happening of such a tragedy in the family.
Both the father and the son have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action.
The evidence is also clear that there had not been thick growth of reeds to cause complete obliteration of the scene.
It could not, therefore, be assumed that the place of occurrence was out of bounds and that the witnesses have weaved a story of their own.
As rightly pointed out by the High Court, the medical evidence is not inconsistent.
The witnesses are clear that the appel lants used the datar on the wrong side and that accounts for the lacerated injuries.
Incised wounds may be produced by using the sua on that part of the body.
We do not find any material to infer that the death could not have happened at the time spoken to by the witnesses.
Since there had been internal hemorrhage and the injured person was immediately lifted from the place of occurrence the absence of blood at the scene is not strange.
The fact that the acquittal of Mehar Singh had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court 244 has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as these appellants are concerned when such evidence does not suffer from any seri ous infirmity.
We find that the High Court had given weighty reasons in accepting the evidence and finding that the view taken by the trial court was clearly wrong.
We reject the contentions of the appellants.
There is no reason to interfere with the judgment of the High Court.
The appeal is accordingly V.P.R. Appeal dis missed.

summary/full:
The appellants along with another were tried of the charge of murder under Section 302, I.P.C., read with Sec tion 34, I.P.C. The prosecution case was that the appellants as well as the deceased 's brother and his son were residing in a vil lage.
The deceased came to the village on 6.7.1974.
On 8.7.1974 at about 10.30 a.m., the deceased 's brother along with his wife and his son had gone to the mango grove across the choe to collect mangoes to give to the deceased.
While they were returning home along the pathway, the deceased was seen coming in the opposite direction.
The two appellants along with another accused, emerged on the scene and at tacked the deceased.
Appellant No.1 had a datar and Appel lant No. 2 had a sua and their companion had a lathi.
After inflicting injuries with the weapons the appellants escaped.
The deceased was removed to the house of one Darbara Singh for being rushed to the hospital, but within a short time, he breathed his last.
The first information was lodged at the police station, around 7.00 P.M., and the crime was registered and investi gated and finally chargesheeted.
The post mortem examination of the dead body revealed that the deceased had sustained lacerated injuries and three stab wounds and that he died on account of the shock and hemorrhage as a result of the injuries.
The motive alleged was that there had been some grouse on account of the transfer of agricultural land that be longed to the family, among the 240 children of the three brothers.
The Sessions Judge acquitted the accused of the charge.
The High Court, in appeal preferred by the State convicted the appellants and sentenced them to undergo imprisonment for life, against which, this appeal under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdic tion) Act, 1970 was filed.
The appellants contended that the view taken by the trial court was reasonable and there was no justification for upsetting the judgment even if a different view could have been taken by the appellate court on reappraisal of the evidence; that the High Court did not dislodge the various reasons given by the trial court for discarding the evidence and that the conclusion drawn by the High Court on the evidence on record was wrong.
Dismissing the appeal, this Court, HELD: 1.
The prosecution evidence in the case is wholly reliable and it leads to irresistible conclusion that the appellants had intentionally caused the death of the de ceased.
The occurrence took place in broad day light at a place close to the residence of the witnesses.
The appel lants are the near relations of the deceased and the wit nesses and it has happened in the background of the family rued.
The first information has been recorded within a few hours which in the circumstances of the case cannot be considered as unreasonably delayed.
The version given in the F.I.R. is substantially the same as the one spoken to by the witnesses before the Court.
[243 C D] 2.
The eye witnesses have given consistent account of the role played by each of the appellants.
There would not have been any difficulty for the witnesses to identify the appellants from a distance and across the reeds even if they could get only a glimpse of them in the course of their action, and the medical evidence is not Inconsistent.
[243 E F] 3.
The fact that the acquittal of the companion of the appellants had not been interfered with by the High Court cannot advance the case of the appellants.
The High Court has given him the benefit of doubt on the materials that emerged in the evidence.
That is no reason to discard the evidence of the witnesses so far as the appellants are concerned when such 241 evidence does not suffer from any serious infirmity; [243 H; 244 A]


judgement:
terim Application Nos.1, 2 and 3 of 1989.
IN Civil Appeal Nos. 3187 and 3188 of 1988.
From the Judgment and Order dated 4.4.1988 of the Madhya Pradesh High Court in Civil Revision No. 26 of 1988.
Soli J. Sorabjee, Attorney General, P.P. Rao, Rajinder Sachher, D.K. Kapur, Mrs. Indu Goswamy, Raju Ramachandran, Mukul Mudgal, S.R. Bhat, M.S. Ganesh, V.B. Mishra, A.M. Khanwilkar, Ms. Madhu Khatri, p. Parameswaran, Ms. A. Subha shini and C.S.Vaidyanathan for the appearing parties.
383 The following Order of the Court was delivered: By these applications the Indian Red Cross Society seeks a modification of certain directions issued by this court on 15th February, 1989, in Civil Appeals Nos. 3187 and 3188 of 1988 pursuant to the settlement of the suit instituted by the Union of India against Union Carbide Corporation and the Union Carbide Corporation (India) Limited arising out of the Bhopal Gas leak disaster.
The prayer of the Indian Red Cross Society in these applications arises in the context of the order dated 7th June, 1985, made by John F. Keenan, Presiding Judge of the Southern District Court at New York (U.S.) directing the utilisation of 5 Million dollars for relief to the victims of the gas leak disaster through Indian Red Cross Society.
In the said order Judge Keenan referred to the willingness of the Union Carbide Corporation "to pay 5 million dollars to aid the victims of the gas plant disaster which occurred in December, 1984 in Bhopal, India" and had desired and indicated that in the administration of this fund, which was intended to be at the disposal of the Union of India, should be subject to certain reporting requirements as to the utilisation of the funds.
Union of India did not agree to subject itself to those conditions.
Referring to the alter native arrangements as to the administration of the interim relief necessitated by Union of India 's disinclination to take up relief operation on the terms stipulated by the Court, Judge Keenan observed: Counsel for the Union of India has informed the Court that the Union of India considers these reporting requirements so onerous as to compel the Union of India to decline the five million dollars in interim relief offered.
Accordingly; the Court directs that Liasion Counsel and Messrs Bailey and Chesley of the Executive Committee contact the American Red Cross Society to arrange for discussions with the Indian Red Cross Society, in order to formulate a plan for distribution of the five million dollars to the victims of the gas plant disaster.
The US District Court, therefore, proposed a scheme for the utilisation of the Interim Relief Fund through the agency of the American Red Cross Society.
But what is of particular significance in the present context is as to how this interim relief fund was to be treated and accounted for at the end of the day when the litigation culminated in a final decision.
That the payment was intended to be without prejudice to the contentions of the Union Carbide Corpora tion and that, further, the amount of interim relief would form part of the quantum that may finally be adjudicated was rendered explicit in the last paragraph of the said order dated 7th June, 1985 which stipulated: 384 "Neither the promulgation, implementation nor anything contained herein shall be asserted or used in any manner against the interests of Union Carbide Corporation.
This provision of interim relief by Union Carbide Corporation shall be credited against the payment of any final judgment or settlement of the claims against Union Carbide Corporation arising out of the Bhopal gas leak of December, 1984." After the proceedings in the US District Court terminat ed upon the Union Carbide Corporation 's plea of forum non conveniens being upheld, Union of India instituted suit No. 1113 of 1986 in the District Court at Bhopal.
The claim in the suit came to be settled in this court in the said Civil Appeal Nos. 3187, 3188 of 1988 by the orders dated 14th/15th February, 1989.
In terms of the said settlement the sum of 5 million US dollars was treated as part of the settlement fund.
In the order of this Court dated 15th February, 1989 this sum of 5 million US dollars was specifically referred to in clause (a) of paragraph 2 and paragraph 5.
The relevant portions of the order are excerpted below: "(a) a sum of US 425 million (Four Hundred and Twenty five millions) shall be paid on or before 23rd March, 1989, by Union Carbide Corporation to the Union of India, less US $ 5 million already paid by the Union Carbide Corporation pursuant to the order dated 7th June, 1985 of the Judge Keenan in the court proceedings taken in the United States of America.
The amounts payable to the Union of India under these orders of the Court shall be deposited to the credit of the Registrar of this Court in a bank under directions to be taken from this Court.
This order will be sufficient authority for the Registrar of the Supreme Court to have tile amount transferred to his credit which is lying unutilised with tile Indian Red Cross Society pursuant to the directions from tile International Red Cross Society." [Emphasis supplied] The case of the applicant Indian Red Cross Society is that in the course of the negotiations the American Red Cross had with it in the matter of administration of this relief, the Red Cross Society of India had made it clear to the American Red Cross that it would not undertake the relief administration unless the fund was assigned to it unconditionally.
Red Cross Society of India would say that it was on this specific understanding that it accepted the engagement to administer the funds in India.
385 Accordingly, the Indian Red Cross Society contends that the order dated 5th February, 1989 in so far it treats the unutilised part of the interim relief fund as part of the settlement fund and authorises the Registrar of he Supreme Court to realise it as such is not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by the Indian Red Cross Society and that, therefore, those directions in the order dated 15th Febru ary, 1989 require to be deleted.
We have heard Dr. Chitaley for the Indian Red Cross Society, Shri F.S. Nariman for the Union Carbide Corporation and the learned Attorney General for the Union of India.
In view of the circumstance that at the time these applications were heard, the validity of the settlement stood assailed in certain proceedings of Review, the Union of India abstained from making any statement as to he merits of the claim of the Indian Red Cross Society.
Union of India sought to steer clear of any possible implication of any appropriation of the settlement fund which might be suscep tible of an inference of rectification it of the settlement.
The Union Carbide Corporation while disputing the claim of the Indian Red Cross Society that the said 5 million US dollars constituted subject matter of a separate and dis tinct fund outside the scope of the litigation culminating in the orders of 14/15th February, 1989, however, stated that it had no objection if the Union of India was agreeable to the Indian Red Cross Society retaining and utilising the money lying with it.
The grantability of the prayer of the Indian Red Cross Society really turns upon whether the interim relief of 5 million US dollars was a distinct award standing inde pendently and outside of the final adjudication.
It is manifestly not so.
Judge Keenan 's order dated 7.6.1985 makes that clear.
It, however, appears true that the Indian Red Cross Society sought to stipulate with its American counter part that the Indian Red Cross Society be free from any contingent obligations stemming from the final result of the litigation one way or the other.
Indeed, at some point of time the American Red Cross, presumably at the instance of the Indian Red Cross Society, desired to have the matter submitted for further consideration of the District Court at New York.
But nothing has been placed before us to indicate that the District Court for the Southern District, New York, ever changed the terms of its order dated 7th June, 1985.
On the contrary, the affidavit dated 20th November, 1989, of Mr. John Macdonald filed on behalf of the Union Carbide Corpora tion indicates that from the very inception this interim 386 relief fund was intended to be in the nature of an "advance payment" or "credit to the defence".
The following observa tions of Judge Keenan on 16th April, 1985 as to the intended nature of the proposed interim relief place the matter beyond doubt.
Judge Keenan observed: "It seems to me that some sort of emergency systematic relief should be supplied to the survivors on a prompt basis.
Any such funding supplied by the defendant would be treated in the nature of an advance payment or credit to the defence.
It would appear that the agreement between the Ameri can Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during hear ing on 20th November, 1985.
The portions of the transcript of what transpired at the hearing furnished in Mr. John Macdonald 's affidavit indicate that, far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing furnished in the affidavit of Mr. John also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
This is not disputed nor any independent material placed before us to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent there with and do not, therefore, require any modification.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 million US dollars will become part of the Bhopal gas relief fund, and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
The present applications of the Indian Red Cross Society are, accordingly, dismissed.
G.N. Applications dismissed.

summary/full:
In the suit filed by the Union of India against Union Carbide Corporation (UCC) filed before the Southern District Court at New York, the presiding Judge directed the utilisa tion of 5 Million Dollars deposited by UCC towards Interim Relief Fund, for affording relief to the victims of the Bhopal Gas leak disaster through the Indian Red Cross Socie ty.
The said payment was intended to be without prejudice to the contentions of UCC.
Also it was to be credited against the payment of any final judgment or settlement of the claims against UCC arising out of the Bhopal Gas leak disas ter.
The Indian Red Cross Society sought to stipulate with the American Red Cross that the Indian Red Cross Society should be free from any contingent obligations stemming from the final result of the litigation one way or the other.
However, the terms of the order were not changed.
After the proceedings in the U.S. District Court termi nated upon UCC 's plea of forum non conveniens being upheld, Union of India instituted a suit In the District Court at Bhopal.
The claim in the suit came to be settled In this Court by its orders dated 14/15th February, 1989.
In terms of the settlement order, the said sum of 5 Million US Dol lars was treated as part of the settlement Fund and a direc tion was given to the Registrar to have the amount trans ferred to his credit which was lying unutilised with the Indian Red Cross Society.
The Indian Red Cross Society has filed the present applications.
It contended that the order dated 15th Febru ary, 1989 in so far as it treated the unutilised part of the interim relief fund and authorising the Registrar to realise it as such, was not consistent with the terms under which the relief fund was agreed to be entrusted to and accepted by it and 382 so the directions given in regard to the said relief fund required to be deleted.
On the question whether the interim relief of 5 Million U.S. Dollars was a distant award standing independently and outside the final adjudication, dismissing the applications, this Court, HELD: 1.
The agreement between the American Red Cross and the Indian Red Cross Society came to be discussed before the District Court, New York, during the bearing on 20th November 1985.
The portions of the transcript of what tran spired at the hearing indicate that far from approving the purported arrangement inter se between the American Red Cross and the Indian Red Cross Society, they show that the terms of the order dated June 7, 1985, as to the nature and character of the interim relief as an "advance payment" or "credit to the defence" were left undisturbed.
The tran script of the hearing also reaffirms that "if there is any recovery against Union Carbide, it is a set off '.
Also there is nothing on record to show that the terms as to the nature and character of the interim payment had been altered in terms of the inter se arrangements pleaded by the Indian Red Cross Society.
In the circumstances, the agreement between the American Red Cross and the Indian Red Cross Society cannot prevail over the effect of the order dated 7th June, 1985 of Judge Keenan.
This Court 's directions in this behalf in the order dated 15th February, 1989, are not inconsistent therewith and do not, therefore, require any modification.
[386 B F] 2.
Now that the terms of the settlement have been upheld in the review proceedings the unutilised part of the interim relief of 5 Million U.S. Dollars will become part of the Bhopal gas relief fund and shall have to be administered as such.
The Registrar of the Supreme Court shall be entitled to call up the funds with the Indian Red Cross Society which stood unutilised as on 15th February, 1989.
[386 F G]