In the last few years, there has been tremendous growth in digital and internet media. In this #digital era, #internet has become the most effective medium of conducting #business, trade and commerce, education, governance and communication.
Moreover, during the #Covid-19 and Lockdown period, there has been a significant rise in online presence. People have become increasingly dependent on digital media for communication, work, business, entertainment, education, etc. There has also been an increase in the #domain name registrations across the globe.
The Indian Lawyer & Allied Services is a multi-city commercial and business boutique Law Firm that provides advice in different aspects of Contract Law and has expertise in corporate and commercial laws.
Thus, in our endeavour, we bring before you the Eighth Episode of our YouTube Series called ‘TIL Legal Fundamentals’ and enable parties to understand domain name dispute resolution practices and policies that are followed across the world.
Please find the link below of Episode 8 of TIL Legal Fundamentals: Domain Name Dispute Resolution:
Written and Edited By: Team, The Indian Lawyer & Allied Services
Greetings, Kovise Foundation Conflict Resolution International (KFCRI) under the guidance of the Project Advisor, Mr.V.Inbavijayan the institution will be conducting a Webinar on the Topic ‘Domain Name Disputes Arbitration’
The Panelist leading the webinar is Mrs. Sushila Ram Varma. Mrs. Sushila Ram Varma is the founder and Chief Consultant of “The Indian Lawyer & Allied Services”, Litigator, Arbitrator, and Negotiator. She is also the President of The Child Foundation and a Member of the Supreme Court Bar Association and Delhi High Court Bar Association.
The session shall be moderated by Mrs. Gaana Priya, a Research Associate of KFCRI. Date: 8th October 2020 (Thursday)
Time: 3:00 PM – 4:00 PM (IST) (GMT+5.30)
Topic: ‘Domain Name Disputes Arbitration’ – A KFCRI ‘Sector-Specific’ Webinar Series – 08.10.2020
After registering, you will receive a confirmation email containing a link to join and more information about the webinar. The same can be used to attend the webinar.
For any queries relating to KFCRI as an Accreditation Body and a Service Provider email us at firstname.lastname@example.org or connect with Suvethan.G.S (+91 9042343543) or Sharukumar.S.I (+91 9003184869) or Shanmuga Dev ( +91 7358579597).
The #SupremeCourt has in a matter of M/S Magma Fincorp Ltd. vs Rajesh Kumar Tiwari passed a Judgment dated 01-10-2020 and reiterated the principles of transfer of #ownership in #hirepurchase #agreements.
In this case, the Complainant-Respondent had entered into a Hire-Purchase Agreement (the Agreement) with the Appellant- then known as M/S Magma Fincorp Ltd for hire-purchase of a Mahindra Marshal Economic Jeep (the Vehicle). The cost of the Vehicle was Rs. 4,21,121/- out of which Rs. 1,06,121/- had been paid by the Respondent. The balance amount of Rs. 3,15,000/- was paid by the Appellant-Financier to the vendor. The Respondent then received possession of the #Vehicle from the dealer/vendor on 29-07-2002.
As per the Agreement, the Respondent had to repay a sum of Rs. 4,38,585/- including finance charges, to the Appellant-Financier in 35 monthly instalments commencing from 01-08-2002 till 01-06-2005 (the Amount). But the Respondent only paid the first 7 instalments and failed to pay the monthly instalments thereafter. As a result, the Appellant took re-possession of the Vehicle from the Respondent on 14-07-2003 allegedly by giving a prior Notice dated 26-07-2003 to the Respondent. But as the Respondent still did not pay the instalments, the Appellant sold the Vehicle in November 2003 and recovered the dues from the sale proceeds.
Aggrieved by the actions of the Appellant, the Respondent filed a Complaint on or about 15-07-2005 under Section 12 of the Consumer Protection Act 1986 for deficiency of services, before the District Consumer Dispute Redressal Commission (District Forum). The Complaint was made on the ground that he could not repay the instalments due to illness and that the Appellant did not allow any further time for repayment.
The District Forum passed an Order dated 22-08-2008 allowing the Complaint on the ground that the prior sale Notice dated 26-07-2003 was not sent to the Respondent at the address mentioned in the Agreement and thus, it would not be deemed to have been served upon the Respondent. Further, the Appellant-Financier was directed to pay compensation and damages to the Respondent.
Aggrieved by the Order of the District Forum dated 22-08-2008, the Appellant-Financier filed an Appeal before the State Consumer Dispute Redressal Commission (State Commission), which passed an Order dated 31-08-2017 and upheld the Order of the District Forum.
Aggrieved by the Order of the State Commission dated 31-08-2017, the Appellant filed a Revision Petition before the National Consumer Dispute Redressal Commission (National Forum), which passed an Order dated 02-08-2018 and upheld the Order of the State Commission.
Aggrieved by the Order dated 02-08-2018 of the National Forum, the Appellant filed an Appeal before the Supreme Court. The Apex Court made the following observations in the said case:
1- Hire-purchase contracts:
i) A hire purchase agreement is an executory contract of sale, conferring no right in rem on the hirer (purchaser), until the conditions for transfer of the property to him have been fulfilled. The financier continues to be the owner of the goods under a hire purchase agreement until all the instalments are paid or otherwise as mentioned in the hire-purchase agreement.
ii) Thus, when the financier takes re-possession of a vehicle under hire, upon default by the hirer in payment of instalments, it is deemed that the financier has taken repossession of its own vehicle.
iii) In this case, as per the Hire-Purchase Agreement, ownership of the Vehicle was to remain with the Financier until all the instalments were repaid by the Respondent-Purchaser.
iv) So as the Respondent had defaulted in repayment of the monthly instalments, the Financier was entitled to take re-possession of the Vehicle and sell it to recover the unpaid dues from the sale proceeds.
2- Deficiency of services:
i. Section 2 (g) of the Consumer Protection Act 1986 (the Act) defines “deficiency” as any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
ii. In this case the Agreement did not provide that the Financier had to issue a mandatory prior sale notice to the Respondent-Purchaser before terminating the Agreement or taking re-possession of the Vehicle.
iii. But as the Appellant had issued a Notice prior to the sale of the Vehicle, it is deemed that the obligation for issue of a prior notice was implicit in the Agreement.
iv. Thus, in the present case, as there was an error in the address of the Respondent in the said Notice, the Appellant was liable for deficiency only to the extent that it omitted to give the Respondent a proper notice before taking re-possession and selling the Vehicle.
3- Erroneous Orders of the District Forum, the State Commission and the National Forum
The District Forum, the State Commission and the National Forum had erred in passing their respective Orders on the following grounds:
(i) The District Forum has held the Appellant liable for deficiency in services as it had taken possession of the Vehicle “forcefully” or by “snatching” upon default and then, sold it to third parties. But the Respondent did not make any allegation in his Complaint about breach of the Agreement due to Appellant’s act of taking possession of the Vehicle “forcefully”. The District Forum erred in making out a new case when there were no pleadings/submissions to support the same.
(ii) The State Commission and the National Forum made unsubstantiated assumptions that the Appellant had deliberately sent the Notice to a wrong/different address so that it can sell the Vehicle without the knowledge of the Respondent. But it was not the case of the Respondent that the Vehicle was sold without notice or knowledge.
(iii) Further, the District, State and National Forums did not properly assess the loss/damages, if any, suffered by the Respondent due to non-service of Notice before determining the amount of compensation and damages in the said case.
Thus, the Apex Court held that the Appellant in this case cannot be held liable for deficiency in service on account of entering the premises of the Respondent to take re-possession of the Vehicle upon default of payment of instalments, as the Agreement had authorized the Financier to do so. Therefore, the Supreme Court set aside the Orders of the District Forum, the State Commission and the National Forum.
But the Apex Court directed the Appellant to pay a composite sum of Rs. 15,000/- to the Respondent for deficiency on account of failure to serve a proper notice before taking re-possession of the Vehicle.
In recent times the Investigation on the #SushantSinghRajput’s Death case has taken a complete turn after the Narcotic Drugs Bureau (#NCB) joined the #Investigations regarding the cause of the death of the late Actor. Investigation by the NCB has opened a pandora’s box of celebrities who are either taking restricted drugs or peddling the same.
This paper seeks to give an overview of the offences committed and penalties that can be levied. The Author does not cast aspersions on any of the celebrities who are being named or shortlisted in the investigations by the NCB.
The Indian law and Regulations regarding the control of #Narcotic #Drugs and #PsychotropicSubstances is based on the country’s obligations towards the United Nations (#UN) Conventions where India is a signatory and where various countries have entered into these Conventions for controlling and limiting the use of narcotic drugs and psychotropic substances for medical and scientific purposes. The following Conventions by which India is bound is as follows:
The UN Single Convention on Narcotic Drugs 1961,
The Convention on Psychotropic Substances, 1971 and
The Convention on Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988
The law pertaining to use and abuse of drugs is the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The NDPS Act is very stringent and drug offences invite heavy penalties including imprisonment.
The quantum of sentence and fine depends on the quantity of drugs involved – small quantity, more than small but less than commercial quantity or commercial quantity of drugs. Commercial quantities that are allowed are notified for each drug and if a person is found to have the notified quantity for Commercial use, it will not be deemed to be an Offence.
Under the NDPS Act, abetment to an offence will fall within the definition of criminal conspiracy and will attract penalties and prosecution. The penalties can range from a fine to a death penalty in the case of repeated offenders. Though the NDPS Act provides for some immunities depending on the facts.
The penalties for various offences under the NDPS Act are as follows:
Sections of the Act
Cultivation without license of opium, cannabis or coca plants
Rigorous imprisonment-up to 10 years + fine up to Rs.1 lakh
Opium – 18(c) Cannabis – 20 Coca-16
Embezzlement of opium by licensed farmer
Rigorous imprisonment -10 to 20 years + fine of Rs. 1 to 2 lakhs (regardless of the quantity)
Production, manufacture, possession, sale, purchase, transport, import inter- state, export inter-state or use of narcotic drugs and psychotropic substances
Small quantity – Rigorous imprisonment up to 6 months or fine up to Rs. 10,000 or both. More than small quantity but less than commercial quantity – Rigorous imprisonment. up to 10 years + fine up to Rs. 1 Lakhs. Commercial quantity – Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 Lakhs
Prepared opium-17 Opium – 18 Cannabis-20 Manufactured drugs or their preparations-21 Psychotropic substances -22
Import, export or transhipment of narcotic drugs and psychotropic substances
Same as above
External dealings in NDPS-i.e. engaging in or controlling trade whereby drugs are obtained from outside India and supplied to a person outside India
Rigorous imprisonment 10 to 20 years + fine of Rs. 1 to 2 lakhs (Regardless of the quantity)
Knowingly allowing one’s premises to be used for committing an offence
Same as for the offence
Violations pertaining to controlled substances (precursors)
Rigorous imprisonment up to 10 years + fine Rs. 1 to 2 lakhs
Financing traffic and harbouring offenders
Rigorous imprisonment 10 to 20 years + fine Rs. 1 to 2 lakhs
Attempts, abetment and criminal conspiracy
Same as for the offence
Attempts-28 Abetment and criminal conspiracy – 29
Preparation to commit an offence
Half the punishment for the offence
One and half times the punishment for the offence. Death penalty in some cases.
31 Death – 31A
Consumption of drugs
Cocaine, morphine, heroin – Rigorous imprisonment up to 1 year or fine up to Rs. 20,000 or both. Other drugs- Imprisonment up to 6 months or fine up to Rs. 10,000 or both. Addicts volunteering for treatment enjoy immunity from prosecution
27 Immunity – 64A
Punishment for violations not elsewhere specified
Imprisonment up to six months or fine or both
Small and Commercial Quantities
For several offences under the NDPS Act, the punishment depends on whether the quantity of drugs involved is small, is more than small but less than commercial or is commercial. Small and Commercial quantities for each drug have been notified. The quantities for some common drugs are as follows:-
Who gets immunity?
A person gets immunity from the applicability of NDPS under Section 64 and 64A. As per these Sections, a person can get immunity from prosecution and penalties if he/she makes a full and true disclosure of the whole circumstances relating to such contravention of the NDPS Act.
As per the law, if any addict, who is charged with an offence punishable under Section 27 or with offences involving small quantity of narcotic drugs or psychotropic substances, voluntarily seeks to undergo medical treatment for de-addiction from a hospital or an institution maintained or recognised by the Government or a local authority and undergoes such treatment, then he/she shall not be liable to prosecution under Section 27 or under any other section for offences involving small quantity of narcotic drugs or psychotropic substances. Provided that the said immunity from prosecution may be withdrawn if the addict does not undergo the complete treatment for de-addiction.
Punishment for repeat Offenders
As drug abuse is generally habitual in nature, the NDPS Act aims to discourage repeated misuse and abuse by imposing often far stricter punishment on repeat offenders. Generally, punishment is decided by the offence and in case of a repeated offence the punishment can range anywhere from 18 months to 30 years. Similarly, the fine also increases in case of a repeated offence.
There is a provision that even invites death penalty for repeated offences. This provision is often criticized. But one cannot lose view of the larger picture which is, that the Government wants to discourage and eradicate the use of drugs and psychotropic substances from society. In recent times, a movie called Udta Punjab shows that drugs are being used as soft terrorism to harm the youth of Punjab which adjoins Pakistan. In this movie, the Director endeavours to show the harmful effects of substance and drug abuse and the helplessness of the family of the victim.
The Indian Government in a move that was widely hailed by the Human Rights Community in the 2014 Amendment, clarified that the death penalty can be imposed only as a substitute for the other punishments. However, on a close inspection of the drug market globally, it seems that even the drug penalty does not act as a sufficient deterrent for drug dealers and prevent them from surreptitious practices that these laws seek to control.
Procedural safeguards in the NDPS Act
Since the NDPS Act gives extensive powers to law enforcement agencies there is a need for providing adequate safeguards to prevent innocent civilians from being unnecessarily harassed. An authorised person who makes an arrest under the NDPS Act has to report all details to his immediate superior. Similarly, the Code of Criminal Procedure 1973 (CrPC) requires that a Police Officer who makes a search for drugs to do so in the presence of 2 panchas i.e. witnesses and these panchas must be persons who are considered respectable in society. Thereafter, a statement containing the details of the search and seizure, with the signature of the panchas, must be given to the accused for his perusal.
Another Section that provides safeguard is Section 50 of the Act that gives the accused the right to be searched in the presence of a Magistrate or a gazetted officer. The Hon’ble Supreme Court of India in the case of State of Punjab v. Balbir Singh1994 AIR 1872 upheld this right and held that the police officer must, inform the accused about this right.
Finally, Section 58 of the NDPS Act imposes strict punishments on people making vexatious or frivolous complaints.
Though the NDPS Act allows drugs for scientific or medical purposes the provisions are very stringent thereby making it virtually impossible for the health sector for the use of such restricted drugs for scientific or medical purposes. There are times that such drugs are required for terminally ill patients who cannot tolerate the pain.
The Medical Institutions require licenses from various regulatory agencies. Hence, the 2014 Amendment seeks to provide a single window clearance system, so that they could have an easy access to these drugs and thus these Institutes have been given the status of Recognized Medical Institution (RMI).
Therefore, a special category of drugs called Essential Narcotic Drugs has been created and its use is regulated by the Central Government. Hopefully, it will help in giving some relief to the terminally ill patients who require drugs.
Sushila Ram (Varma)
Chief Legal Consultant
The Indian Lawyer and Allied Services
 Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences
 Available at https://dor.gov.in/narcoticdrugspsychotropic/punishment-offences
Q1. How to show advance receipts of FY 17-18 and adjusted in FY 18-19?
Closing advances for FY 17-18 must have been reported under table 4F of FY 17-18 which gets adjusted with sales made during FY 18-19 and getting auto populated in table 4B of GSTR 9 of FY 18-19. Advances adjusted can be reported in table 4F of GTSR 9 as negative figures. As we are providing the consolidated figures in table 4. We can reduce the advances from the turnover of this tear. Tax on that figure is already paid in PY. Take care to adjust the advances related to the supply of services only. As GST is not leviable in advance related to the Goods.
Q2. What if a particular supply is not reported in GSTR 1 but reported under GSTR 3B?
Show it now under table 4A if B2C or table 4B if B2B of GSTR 9 for FY 18-19. It is reported in GSTR 3b, it means that the tax on this supply has already been paid. Thus no additional liability is there.
Q3. What if GSTR 1 is not amended but taxes have been paid in GSTR 3B of FY 19-20?
Table 10 of GSTR 9 deals with amendments made during April 19- Sept 19 pertaining to FY 18-19. Same can be shown under table 10 and corresponding effect under table 14. It can be reflected there.
Q4. Taxes paid by DRC 03 for FY 18-19 before filing GSTR 9, do we need to show it under table 14?
No, since taxes have already been paid the same needs to be shown under table 4 and 9 of GSTR 9. Further reasons can be given in table 10 of GSTR 9C.
Q5. Debit/credit note issued during FY 19-20 pertaining to FY 18-19. This will affect the revenue for FY 19-20. How to report the same in GSTR 9 of FY 18-19?
In this case, debit/credit note issued during FY 19-20 pertaining to FY 18-19 will be considered as debit/credit note for FY 19-20 only as clarified vide Press Release dated 03.07.2019 and it will be reported under table 4I and 4J for FY 19-20.
Q6. Outward supply pertaining to FY 17-18 but reported and taxes paid in FY 18-19.
Total outward supply as per books FY 18-19 (a)
Outward supply reported in FY 18-19 related to FY 17-18 (b)
Outward supply reported in FY 18-19 related to FY 18-19 (c)
Taxes paid in GSTR 3B w.r.t (b) & (c) in FY 18-19 (d)
Assume tax rate 18%.
Two scenarios are possible:
Scenario I: Outward supply not reported in GSTR 9.
Scenario II:Outward supply reported in GSTR 9.
Total outward supply as per books- FY 18-19 of Rs 2,00,000 show under table 5A of GSTR 9C.
Outward supply reported in FY 18-19 related to FY 18-19 Rs 2,00,000 show under table 4B (if B2B) and table 5Q of GSTR 9C.
Taxes paid in GSTR 3B in FY 18-19 show Rs 36,000 in table 9 of GSTR 9 and table 9Q of GSTR 9C.
Balance of Rs 1,00,000 and taxes of Rs 18,000 must have already been shown under table 10 and 14 of FY 17-18. You are required to maintain reconciliation at your end.
Total outward supply as per books FY 18-19 of Rs 2,00,000 show under table 5A of GSTR 9C.
Outward supply reported in FY 18-19 related to FY 18-19 Rs 3,00,000 show under table 4B (if B2B) and table 5Q of GSTR 9C.
Taxes paid of Rs 54,000 to be reported under table 9 of GSTR 9 and table 9Q of GSTR 9C.
The difference of Rs 1,00,000 and tax thereon of Rs 18,000 will need reconciliation and to be reported under table 6 of GSTR 9C.
Q7. What if a supply is neither shown during FY 18-19 nor reported in April-Sept 19?
Report it now under table 4B (if B2B) and corresponding effect in table 9 of GSTR 9. Taxes to be paid via DRC 03 along with interest.
Q8. What if advance received against nil/zero rated/ exempt supplies?
Not to be reported anywhere.
Q9. What if a supply covered under RCM is paid during FY 18-19 but later on gets to know that it was covered under Forward Charge and rectified in FY 19-20?
RCM adjustment made during FY 19-20is to adjusted in GSTR 9 of FY 19-20 only. However, forward charge transaction reported in FY 19-20 is to be reported in GSTR 9 of FY 18-19 under table 10 and 14 respectively.
Q10. RCM liability belonging to current year i.e FY 18-19 is still not paid till date. Can we pay it now in FY 19-20 and claim the credit of taxes paid?
As per section 16(4) of CGST Act, 2017, limit to avail credit has been expired but for supplies covered under RCM credit is to be availed as and when paid.
So it is a matter subject to litigation but one can take a view that RCM liability paid during FY 19-20, credit can be availed.
INWARD SUPPLY BASED QUESTIONS
Q11. What treatment is required to be done if RCM credit is claimed in FY 17-18 but actually paid during FY 18-19?
ITC in case of RCM can be availed only when paid. So, ITC availed in FY 17-18 need to be reversed and should be availed in FY 18-19 only after due payment of taxes.
Q12. Do we need to report ineligible ITC shown under table 4(D) of GSTR 3B in GSTR 9 of FY 18-19?
No, ITC reversal u/s 17(5) is to be reported in GSTR 9 only when the same is reported under table 4(B) of GSTR 3B. Table 4(D) of GSTR 3B is only and only for reporting purposes.
Q13. Debit note issued during April-Sept 19 for FY 18-19, what should be the treatment?
As discussed, debit notes issued during FY 19-20 will form part of turnover of FY 19-20 only. No need to introduce back to FY 18-19.
Q14. Can RCM related to FY 17-18 be paid now?
Yes, report it under table 4 and correspondingly in table 9 of GSTR 9 and pay via DRC 03.
Q15. Where to report credit booked in FY 19-20 pertaining to FY 18-19?
Report such ITC in table 13 of GSTR 9 but it will not be reported under table 12 of GSTR 9C as the same is required for ITC availed during the financial year.
Q16. What if ITC on goods purchased is booked during FY 18-19 but ITC is availed during April 19 as goods are received in the month of April 18?
Since invoice is related to FY 18-19, ITC pertaining to such invoice can be shown under table 8C of GSTR 9.
Q17. ITC pertaining to FY 17-18 but availed during FY 18-19
Q18. Consequences of credit not shown in GSTR 2A but availed in GSTR 3B?
One of the conditions of section 16(2) is payment of taxes to the government. If the same is not paid then it is not allowed to claim the ITC. Hence, credit will be disputed by the department.
Q19. ITC as per books Rs 100 and GSTR 3B is Rs 130, how to report?
Excess paid can be claimed as refund. Report Rs 100 in table 4 and taxes thereon under table 9 of GSTR 9 and claim refund of excess paid.
Q20. Can we take ITC pertaining to FY 17-18 under table 12B of GSTR 9C?
Yes, if it has been duly entered in books during FY 17-18 and reported in GSTR 3B in FY 18-19 then it can be taken.
About the Author
CA Shaifaly Girdharwal is a qualified chartered accountant practicing in GST. She is the co-founder of www.consultease.com and a famous YouTuber with more than 2,40,000 subscribers for her channel dedicated to the GST videos. She is also a trainer and author. She is a trainer at https://www.consultease.com/courses/. She is also a renowned author. She has written a book on GST for Taxmann Ltd.
The Supreme Court has in a matter of Union of India and Others vs M/S G S Chatha Rice Mills & Anr. passed a Judgment dated 23-09-2020 pertaining to whether #Government #notifications issued in the e-#Gazette under the Customs Tariff Act 1975 would have #retrospective effect on goods #imported prior to the #publication of such notification.
In the aftermath of Pulwama Terrorist Attacks that happened on 14-02-2019, the Union Government had issued a Notification dated 16-02-2019 (Notification) around 20:46 hours under Section 8A of the Customs Tariff Act 1975 (the Customs Tariff Act), thereby inserting a new tariff entry pertaining to #customsduty of 200% on all goods originating or exported from the Islamic Republic of #Pakistan to India. The purpose of issuing the Notification was to discourage imports from Pakistan to India. A copy of the said Notification is attached below:
But the Customs Authorities at Attari sought to enforce the enhanced customs duty on importers who had already presented their bills of entry before the said Notification was notified in the e-Gazette. As a result, the aggrieved importers had challenged the said action of the Customs Authorities before the High Court of Punjab and Haryana.
The High Court passed an Order dated 26-08-2019 and held that as the importers had already presented the bills of entry and completed the process of “self-assessment” before the said Notification was issued, so the enhanced customs duty would not be applicable to them. Aggrieved by the Order of the High Court dated 26-08-2019, the Union of India filed an appeal before the Supreme Court.
The Apex Court made the following observations in this case:
1- Section 15 of the Customs Act 1962 (the Customs Act) provides that the rate of customs duty and tariff would be determined at the rate and valuation “in force” “on the date on which” bill of entry with respect to imported goods is presented/filed electronically on the custom automated system and self-assessed by the importer under Section 46 of the Customs Act 1962.
2- Regulation 4 of the Bill of Entry (Electronic Integrated Declaration and Paperless Processing) Regulations, 2018 (the 2008 Regulations) provides that the bill of entry is deemed to have been filed and self-assessment is deemed to have been completed, when the importer enters the electronic integrated declaration in the Customs Automated System and thereafter, a bill of entry number is generated by the Indian Customs Electronic Data Interchange System.
3- As per Section 7 (1) (c) of the Information Technology Act 2000, the date, time and details of receipt or dispatch of electronic record is crucial for maintenance of an electronic record.
4- Thus, the customs duty is leviable at the rate prevailing on the date of electronic filing of declaration and electronic generation of bill of entry number.
5- Section 8A of the Customs Tariff Act provides that the Central Government may increase the import duties in certain circumstances which render it necessary to exercise such emergency powers. But the Legislature has not authorised the Central Government to have retrospective effect of exercise of such emergency powers under the Act.
6- Further, the concerned officer may re-assess the duty under Section 17 (4) of the Customs Act, only if the self-assessment is not correctly processed.
7- But in this case, the importers had properly carried out declaration and self-assessment on the basis of the rate of duty which prevailed at the time of presentation of bill of entry, i.e. prior to the time when the enhanced rate was notified.
8- Thus, as the self-assessment of duty was correctly processed in terms of the rate which was in force on that date and at that time, the Customs Authorities could not have re-assessed the duty.
Therefore, the Apex Court while dismissing the Appeals held that in the scheme of the Customs Act, Customs Tariff Act and the 2018 Regulations, the time at which the notification is published under Section 8A of the Customs Tariff Act 1975 would have relevance.
The Three Members Bench of National Company Law Appellate Tribunal, New Delhi (#NCLAT), vide its Judgment dated 25.09.2020 in the case of Bishal Jaiswal v. Asset Reconstruction Company (India) Ltd and Another [CA (AT) (Ins) No. 385/2020] opined and held that Judgment rendered by Five Hon’ble Members of this Appellate Tribunal in the Case of V. Padamakumar vs. Stressed Assets Stabilization Fund (SASF) & Anr[CA (AT)(Ins)No. 57/2020] (V. Padma Kumar Case) requires reconsideration with respect to whether reflection of #debt in a #balancesheet is ‘acknowledgement of debt’ for the purpose of Section 18 of the #Limitation Act 1963 (Limitation Act).
Section 18 of the Limitation Act uses the term ‘acknowledgement’ to mean an admission of an existing liability in lieu of which the period of limitation is extended.
Brief facts of the instant case are that the Corporate Power Ltd (Corporate Debtor) had availed the loan from the Infrastructure Finance Co. Ltd., (Consortium Lenders or Banks) for setting up 1080 MW coal-based plant at Chandwa of Latehar District in the State of Jharkhand in two phases. The Corporate Debtor has availed loan facilities aggregating to Rs.5997,80,02,973/- (Rupees Five Thousand Nine Hundred Ninety-Seven Crore Eighty Lakhs Two Thousand Nine Hundred Seventy-Three only) from Consortium Lenders and loan agreements have been executed between the Corporate Debtor and the Consortium Lenders.
However, the Corporate Debtor failed to repay the dues under the facilities granted by the Banks. The Banks had assigned the debt in favour of Asset Reconstruction Company (India) Ltd (Financial Creditor). Therefore, the Financial Creditor has filed the Application under Section 7 of the Insolvency and Bankruptcy Code 2016 (IBC).
NCLT Decision: The National Company Law Tribunal, New Delhi (NCLT) has admitted the Application on the ground that the debt and default are not under-challenge and with respect to the issue of limitation of the said Application it observed that in the Balance Sheet the Corporate Debtor, admitted its liability, which was signed prior to the expiry of three years from the date of default. It is an acknowledgement of debt in terms of Section 18 of the Limitation Act and is therefore, not barred by Limitation. Being aggrieved with the said decision the Corporate Debtor filed the Appeal before the NCLAT.
Contentions: The Corporate Debtor (Appellant) contended before the NCLAT that the Application is barred by Limitation. The account of the Appellant was declared as Non-Performing Assets on 28.02.2014. The Application under Section 7 of the IBC was filed in December 2018, i.e. after a delay of almost five years. Therefore, the Corporate Debtor’s Balance Sheet cannot be considered as an Acknowledgement under Section 18 of the Limitation Act, 1963 and this Section cannot be applied in Insolvency Cases.
It relied on the V. Padama Kumar Case (Supra) wherein the issue was considered explicitly by the Five Hon’ble Members of the NCLAT and it was held that the Books of Accounts are to be prepared as per Section 92 of the Companies Act, 2013. Therefore, it cannot amount to an acknowledgement for Section 18 of the Limitation Act. The acknowledgement to extend the period of limitation should be voluntary and cannot be given under the compulsion of law or with the threat of any penalty or punishment.
However, the Financial Creditor contended that it is settled law that the entries made in the Balance Sheet of the Company amounts to an acknowledgement of debt under Section 18 of the Limitation Act, for the same he placed reliance on the law laid down by Hon’ble Supreme Court in various Judgments. It further contended that the issue framed in the V. Padama Kumar Case (Supra) was not whether Section 18 of Limitation Act is applicable to Insolvency Cases? The issue formulated in the said case was whether Section 18 of the Limitation Act, 1963 could be applied to the facts of the present case which deal with Insolvency?
During the course of arguments, a Judgment rendered by Five Hon’ble Members of NCLAT in V. Padma Kumar Case (Supra) has been cited. After hearing the contentions of the Parties the NCLAT in the instant case made the following issue and decided that:
“Hon’ble Supreme Court and various Hon’ble High Courts have consistently held that an entry made in the Company’s Balance Sheet amounts to an acknowledgement of debt under Section 18 of the Limitation Act, 1963, in view of the settled law, V. Padmakumar’s Case requires reconsideration.”
It is further held the following essential reasons for reconsideration of V. Padma Kumar’s (Supra) Judgment:
There is consistent view of the Hon’ble Supreme Court and various High Courts that the entries in the Balance Sheet of the Company are to be treated as an acknowledgement of debt for the purpose of Section 18 of Limitation Act and the majority view in V. Padma Kumar’s Case (Supra) is contrary to settled law.
In V. Padama Kumar’s Case (Supra) minority view is in the line of settled law that Balance Sheet of the Company be treated as acknowledgement of debt for the purpose of Section 18 of the Limitation Act. In the majority Judgment no reasons have been assigned for disagreement with this view.
In V. Padama Kumar’s Case (Supra), it is discussed that the Balance Sheet of the Company is prepared pursuant to Section 92 of the Companies Act, 2013 and filing of Balance Sheet/Annual Return being mandatory under Section 92 (4) of the Companies Act, 2013, failing of which attracts penal action under Section 92 (5) and (6) of the Act. And that the Balance Sheet is a Financial Statement.
In V. Padama Kumar’s Case (Supra) it is held that the Balance Sheet is required to be prepared under the obligation cast under Section 92 of the Companies Act, 2013. Therefore, Acknowledgement should be voluntary and cannot be given under compulsion of law or with the threat of any penalty/punishment. It is also important to note that Hon’ble Calcutta High Court in the case of Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, [(1961) SCC Online Cal 128] and Hon’ble High Court of Delhi in the case of South Asia Industries (P) Ltd. vs. Krishna Shamsher Jung Bahadur Rana and Ors.MANU/DE/0372/1972 held that merely on the ground that the Balance Sheet of the Company is prepared under the compulsion of law or in discharge of statutory duty cannot be held that the Balance Sheet of the Company cannot amount to an acknowledgement of liability.
Therefore, the NCLAT declined the contentions of the Corporate Debtor that Section 18 of Limitation Act is not applicable to Insolvency Cases. It finally held that V. Padma Kumar’s (Supra) Judgment requires reconsideration. Thus in view of the aforesaid reasons the Three Members Bench of NCLAT referred the matter to a Bench of Five Hon’ble Members of this NCLAT.
A Three Judge Bench of the Hon’ble #SupremeCourt comprising of Justices Sanjay Kishan Kaul, Aniruddha Bose and Krishna Murari passed a Judgment dated September 23, 2020 in the case of Beli Ram v. Rajinder Kumar & Anr. Civil Appeals Nos. 7220-7221 of 2011 and held that if a valid #drivinglicense of an #employee has expired, the #employer is #liable under the Workmen’sCompensationAct, 1923 and not the employee or the #insurance company.
In this case, the First Respondent who was gainfully employed by the Appellant, met with an accident on 20.5.1999, and as a result of which he was 20 per cent permanently disabled. Subsequently, a Petition was filed on 17.2.1999 by the First Respondent under the Workmen’s Compensation Act, 1923 before the Commissioner, Sadar, Bilaspur seeking compensation of an amount of Rs. 5,00,000/- from the Appellant and the Insurance Company which had insured the vehicle. The Commissioner on 8.12.2004 awarded compensation of Rs. 94,464/- for the injuries suffered and Rs. 67,313/- towards the medical expenses of the First Respondent. The Commissioner ordered that amount awarded as compensation shall carry interest at 9% and which was to be paid by the Appellant whereas the compensation amount was mulled on to the Insurer. Aggrieved by the said Order, Appeals were filed in the High Court of Rajasthan.
High Court’s View
An important issue that was raised before the High Court related to the validity of the driving license of the First Respondent at the time of the accident. The said driving license which expired on 6.9.1996 was endorsed by the Superintendent of R&LA Office, Udaipur and there was no endorsement for renewal thereafter. Thus, the First Respondent was employed as the driver of the Appellant for almost three years without the license being approved.
Thus, the High Court while taking into account the non-validity of the driving license passed a Judgment dated 3.3.2009 and held that that the Insurance Company is absolved of any liability and it is the Appellant who is guilty of material breach of Insurance Policy. Furthermore, the High Court while placing reliance on Section 4 of the Workmen’s Compensation Act, 1923 (the Act) opined that there is no provision under the said Act for payment of medical expenditure incurred by the claimant for the treatment. The monthly wages at the time of the accident was Rs.4500/- and as per the provision of the Act, the maximum amount of wages permissible under the said Act for the purpose of determining the compensation could be Rs. 2000/-. The said compensation was to be paid within 30 days of the accident and the amount could be recovered from the insurance company if it was established that the insurer was liable to indemnify the insured.
However, the Appellant breached the provisions of the Act and therefore, was held to be liable to pay interest and penalty of 50 per cent.
Aggrieved by the Order of the High Court, an Appeal was filed in the Apex Court. The question of law involved in the present Appeal was if a valid driving license has expired, whether it will absolve the insurer from his/her liability.
Contentions of the Appellant
The main contention of the Appellant was that he being the insured had exercised reasonable care at the time of the employment and had properly verified the driving license of the First Respondent and that liability can be fixed on him only if he had the knowledge that the license was fake or invalid and he still permitted the First Respondent to drive. The Appellant further stated that it was the responsibility of the First Respondent to get his license renewed and that there was negligence on his part.
Verdict of the Supreme Court
The Supreme Court while deciding the case opined that it is the employer who has to take basic care of verifying the driving license and to check the validity and the renewal of the driving license. The Court observed that there was a gross negligence on the part of the Appellant as the driving license was not renewed for a period of three years.
Further, the Apex Court held that there was a lack of reasonable care on the part of the Appellant, as being a lawful employer he was under a responsibility to check the validity and the timely renewal of the driving license and that too in respect of a commercial vehicle like truck in the present case. The Appellant is, therefore, liable as he permitted the driver to drive with an expired license and that too for a period of three years.
Further, this was a case of claim under the Workmen’s Compensation Act, 1923 and not the Motor Vehicles Act, thus, the Apex Court held the Appellant-Employer liable as he did not exercise reasonable care in verifying and renewing the license of his Employee. The Apex Court did not fasten any liability on the Employee and the Insurance Company in this case. The Appeals were accordingly disposed off.
A Three Judge Bench of the #SupremeCourt comprising of the CJI SA Bobde and his companion Judges, Justices A.S. Bopanna and V. Ramasubramanian passed a Judgment dated September 18, 2020 in the case of Sagufa Ahmed & Ors. v. Upper Assam Plywood Products Pvt. Ltd. & Ors.Civil Appeal Nos. 30073008 of 2020 and held that any period beyond the #prescribedperiod, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be “prescribed period”.
In this case, the Appellants claimed that they held 24.89% of the shares of Upper Assam Plywood Products Private Limited (First Respondent). The Appellants moved the Guwahati Bench of NCLT for the winding up of the Company, which was dismissed vide an Order dated 25.10.2019. Thereafter, they applied for a certified copy of the NCLT dated 25.10.2019, on 21.11.2019. However, it was received by them on 19.12.2019. An appeal was supposed to be filed on or before 18.03.2020, however, the Appellants made a delay and the same was filed on 20.07.2020.
Therefore, an Appeal was filed along with an Application for Condonation of Delay on 20.07.2020. Subsequently, by an Order dated 04.08.2020, the Application for Condonation of Delay was dismissed by the National Company Law Appellate Tribunal (Appellate Tribunal) on the ground that the delay cannot be condoned beyond a period of 45 days. As a consequence, the Appeal was also dismissed. Hence, the Appellants moved the Apex Court, challenging the Order passed by the Appellate Tribunal dismissing the application for condonation of delay as well as the Appeal.
The Appellants made the following two contentions:
Firstly, that the Appellate Tribunal erred in computing the period of limitation from the date of the Order of the NCLT which is absolutely contrary to Section 421(3) of the Companies Act, 2013.
Secondly, that the Appellate Tribunal failed to take note of the Lockdown as well as the Order passed by this Hon’ble Court on 23.03.2020.
On the first contention, the Supreme Court observed that the Appellants received the copy of the Order on 19.12.2019, and they had a period of 45 days to file an appeal i.e. this period expired on 02.02.2020.
By virtue of proviso to Section 421(3), the Appellate Tribunal was empowered to condone the delay up to a period of 45 days. This extended period expired on 18.03.2020. The Bench observed that the nationwide Lockdown was imposed on 24.03.2020 and that the Appellants had sufficient time to file the appeal on or before 18.03.2020.
The Hon’ble Supreme Court of India vide Order dated 23.03.2020 in Suo Moto Writ Petition (Civil) No. 3 of 2020 extended the period of limitation for filing any proceeding w.e.f 15.03.2020 until further orders. Clarifying the same, the Apex Court said that the said Order extended only “the period of limitation” and not the period up to which delay can be condoned in exercise of discretion conferred by the Statute. The Apex Court opined that such an Order was passed for the benefit of the litigants who could not initiate proceedings within the period of limitation prescribed by general or special law due to the Pandemic and the Lockdown imposed in the country. Further, placing reliance on Section 10 of the General Clauses Act, 1897 and Section 4 of the Limitation Act, the Court held that the expression “prescribed period” cannot be construed to mean anything other than the period of limitation.
Hence, dismissing the Appeal, the Supreme Court held that extension of period up to which delay can be condoned is not same as extension of period of limitation. Thus, the Appellants cannot take the benefit of the Order dated 23.03.2020, which provided for extension of period of limitation only.
In the present age, trans-border transactions have become common across the globe. There is therefore a requirement that countries recognise each other’s legal systems and documents executed in their respective countries. In order to simplify this process, several countries have entered into conventions for recognising documents signed in each other’s countries. Where countries have entered into a #convention, the convention along with the laws of the receiving country will be taken into consideration when receiving documents. But there are instances where countries have not entered into agreements or conventions and in such cases, the laws of the countries receiving the documents has to be taken into account.
A) Reciprocating countries:
If the foreign national is executing the document/affidavit in any of the following reciprocal countries, with which India has #reciprocal arrangement to recognise their notarial acts, then he has to get the document/affidavit #notarised in such country. Currently, the following are recognised as reciprocating countries for the purpose of #recognition and #enforcement of #notarialacts:
United Kingdom, the Isle of Man and Channel Islands comprising Guernsey and Jersey
Additionally, if the country is also a Party to the Hague Apostille Convention 1961, then, the document also has to be #apostilled in keeping with the Hague Apostille Convention 1961.
B) Non- Reciprocating countries:
1- If the foreign national is executing a document/affidavit in non-reciprocal countries, then he has to get it notarised and consularized, i.e. obtain Embassy Legalization by the Consular Office of India located in such country.
Additionally, if the country is a Party to the Hague Apostille Convention 1961, then, the document also has to be apostilled first, and then consularised.
2- If the foreign national is executing a document/affidavit in non-reciprocal countries and non-Apostille Member countries, then he has to get it notarised and consularised by the Consular Office of India located in such country.
The aforesaid position has been recognised by the #courts and the Delhi High Court has re-affirmed in the case of Crocodile Int. vs Lacoste 2007 SCC OnLine Del 1690 that in case of a non-reciprocal country, notarial act can be authenticated by the Consular Office.
3. In some cases such as a Power of Attorney that has come from overseas there may be a requirement for adjudication by the District Magistrate of the concerned District where the Power of Attorney is to be used.
Indian Laws regarding legalisation of foreign documents:
1) The Diplomatic and Consular Officer (Oath and Fees) Act, 1948
Section 3: Powers as to oaths and notarial acts abroad
(1) Every diplomatic or consular officer may, in any foreign country or place where he is exercising his functions, administer any oath and take any affidavit and also do any notarial act which any notary public may do within a State; and every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State.
(2) Any document purporting to have affixed, impressed or subscribed thereon or thereto the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence without proof of the seal or signature being the seal or signature of that person, or of the official character of that person.
Embassy- Generally, Embassies are diplomatic missions sent to non-Commonwealth countries to handle major diplomatic issues such as negotiations, represent the host country in the foreign nation where Embassy is situated, to maintain foreign relations and provide assistance to traveling citizens. The highest official in the Embassy is known as ambassador.
Legation- A smaller version of Embassy is known as a Legation where the diplomatic mission is headed by a minister.
High Commission- High Commissions are diplomatic missions sent to Commonwealth countries. The highest official in the High Commission is known as High Commissioner.
Consulate- Whereas, a Consulate is a smaller version of an embassy and is generally located in the larger tourist cities of a country, but not the capital. Consular offices handle minor diplomatic issues such as issuing visas, aiding in trade relationships, and taking care of migrants, tourists, and expatriates.
2) Notaries Act 1952
Section 14: Reciprocal arrangements for recognition of notarial acts done by foreign notaries
If the Central Government is satisfied that by the law or practice of any country or place outside India, the notarial acts done by notaries within India are recognised for all or any limited purposes in that country or place, the Central Government may, by notification in the Official Gazette, declare that the notarial acts lawfully done by notaries within such country or place shall be recognised within India for all purposes or, as the case may be, for such limited purposes as may be specified in the notification.
3) Oaths Act 1969
Oaths Act 1969 provides that witnesses, interpreters and jurors may take oath or give affirmation before persons authorised by law to administer oath. Further, in cases of oaths and affirmations for the purpose of affidavits to be filed in judicial proceedings, even High Courts can administer oath and in case of other affidavits, even State Government may administer oath. This Act has repealed the earlier, Indian Oaths Act 1873.
Judgmentsregarding legalisation of foreign documents:
The Delhi High Court has in a case of Crocodile Int. vs Lacoste2007 SCC OnLine Del 1690 held that in case of a non-reciprocal country, notarial act can be consularised by the Consular Office.
The Court further held as follows:
16. the Diplomatic or Consular Officers were empowered to administer oath and to take any affidavit and also to do the notarial act which a Notary Public may do in the State where the Diplomatic or Consular service is functioning. The documents notarised by such officers were, therefore, deemed to be validly notarized in India. The Court has, in our opinion, rightly held that even though there might be no reciprocity between India and another country under Section 14 of the Notaries Act, 1952, the notarial acts of the Notaries in the foreign country could be given legal recognition by the courts and authorities in India.
The Supreme Court of India in a case of Jugraj Singh and Another vs Jaswant Singh and Others (1970) 2 SCC 386 passed the following Judgment dated 16-03-1970 and recognised the Power of Attorney executed by the Principal which was notarised in the United States of America. The Power of Attorney was not accepted by District Court and the matter went in Appeal to the High Court of Punjab which also did not allow the Appeal. However, the Supreme Court overruled the Judgments and recognised the Power of Attorney as a legal document as it had been validly executed and notarised in the United States. The Apex Court held as follows:
8. The second power of attorney however does show that it was executed before a proper Notary Public who complied with the laws of California and authenticated the document as required by that law. We are satisfied that that power of attorney was also duly authenticated in accordance with our laws.
11. It therefore follows that the second power of attorney was a valid document and it authorised Mr. Chawla to execute the document…
Conventions regarding legalisation of foreign documents:
1- Convention Abolishing the Requirement of Legislation for Foreign Public Documents 1961
As per the Convention Abolishing the Requirement of Legislation for Foreign Public Documents (Hague Apostille Convention) 1961, Apostille is done for personal documents like birth/death/marriage certificates, affidavits, power of Attorney, etc and educational documents like degree, diploma, matriculation and secondary level certificates etc. Any document Apostilled in one member country is acceptable in all the other member-countries. India is a member of the Apostille Convention.