Dev Singh Vs. Subhash Chandra - Court Judgment

Excerpt:
- section 2(f): [dipak misra, k.k. lahoti & rajendra menon, jj] service tax - packaging and bottling of liquor whether amounts to manufacture within meaning of section 2(f) of central excise act 1944? finance act 932 of 1994), section 65 (76 b) (as amended on 16.6.2005) - held, the first limb of the inclusive definition of the manufacture under section 2(f) of central excise act has a very wide connotation. as the definition clause lays down an inclusive facet, the term manufacture has to be construed in a natural and plain manner and would include any process incidental or ancillary to the completion of a manufactured product. keeping in view the context in which the term manufacture has been used, it would take in its fold incidental and ancillary process in the manufacture or finishing of any manufactured product. it does not leave any room for doubt that an allied process should be integral and inextricable part of manufacture of completeness and presentability of the manufactured product. section 65(76b) of finance act used the words but it does not include. thus it is a definition which has the inclusive as well as exclusive facet. by virtue of the same it may include certain things and exclude others. it is well settled principle of law that a definition is not to be read in isolation and has to read in context of phrase which it defines, releasing that function of a definition is to give precision and certainty to the word or phrase which would otherwise be vague and uncertain. regard being had to the exclusionary fact in the finance act, though a limited one it would exclude the manufacturing process as defined under section 2(f) of the 1944 act. keeping in view the aforesaid dictionary clauses and circulars issued by the c.b.e.c. it is quite luminescent that would manufacture has to be understood in a broader sense and not to be confined or restricted to the excisable product in the act. it would include all processes which amount to manufacture whether or not the final product is an excisable product. in the process of manufacturing of country spirit, the over proof spirit which is not potable is reduced to issuable strength, which is potable. colouring and flavouring agents are added at the time of maturation. thereafter the liquor is supplied in sealed bottles to the retail contractors. this is the process of treatment given to over proof spirit in order to render it fit for human consumption in the form of country liquor. if the process is analysed there cannot be any scintilla of doubt that the process involves the manufacturing one under the provisions of section 2(f) of central excise act, 1944. as per the m.p. country spirits rules as well as clause 6 of the tender conditions it is mandatory for a distiller to supply country liquor in sealed bottles and not otherwise. therefore, packaging and bottling of liquor come within the ambit and sweep of manufacture within the meaning of clause (f) of section 2 central excise act, 1944 in view of the definition contained in section 65(76b) of the finance act especially keeping in view the exclusionary facet and further regard being had to the circular issued by central board of excise and customs. - ramautar bihari, 1981 mplj 333 :(air 1981 madh pra 181). in both these cases it was held that the judgment-debtor can oppose the decree by saying that he has already satisfied the decree without certification.orders. samvatsar, j.1. heard.2. this revision is tiled by the judgment-debtor against the order dated 4-4-2003 passed by the executing court whereby the court below has rejected his objection as to the executability of the decree.3. the brief facts of the ease are that a decree, for recovery of rs. 11,000/- is passed in favour of the respondent decree-holder. the decretal amount is to be paid as per the terras of the decree in two instalments. as the said installments are not paid the decree-holder filed execution proceedings. in the said execution proceedings an objection was raised by the judgment-debtor stating that, lie has already paid the amount to the decree-holder, hence the decree cannot be executed. the court below rejected the objection relying on the provisions of order 21, rule 2 sub-clause (3) of the code of civil procedure by stating that since the payment is not certified in accordance with the provisions of order 21, rules 1 and 2 cpc the same cannot be recognised.4. learned counsel for the applicant has submitted that the view taken by the executing court is without jurisdiction. for this purpose he relied upon a judgment of apex court in the case of m.p. shreevastava v. mrs. veena, (air 1967 sc 1193) and on a division bench decision of this court in the case of bherulal narayanji v. ramautar bihari, 1981 mplj 333 : (air 1981 madh pra 181). in both these cases it was held that the judgment-debtor can oppose the decree by saying that he has already satisfied the decree without certification. the scope of order 21, rule 2, cpc and objection under section 47, cpc are quite different and objections without certification of the execution of the decree can be gone into by the executing court. in both these cases to decree was passed prior to the amendment in the code of civil procedure and the decree put into execution prior to the amendment in the civil procedure code in the year 1976 which has come into force from 1-2-1977. by the said amendment sub-clause (3) is incorporated under order 21, rule 2, cpc which provides that a payment or adjustment which has not been certified or recorded as provided by rules 1 and 2 shall not be recognised by any court executing the decrees. thus, this proviso is introduced which creates a bar against executing court to recognize any payment which is not certificated as provided by rules 1 and 2, cpc in the light of the said proviso, the decisions referred by the learned counsel for the petitioner, have no application in the present case.5. in the present case the decree is passed after aforesaid amendment in the code of civil procedure hence i do not find any jurisdictional error in the impugned order. the revision is, therefore, dismissed with no orders .as to costs.

Judgment:
ORDER

S. Samvatsar, J.

1. Heard.

2. This revision is tiled by the judgment-debtor against the order dated 4-4-2003 passed by the Executing Court whereby the Court below has rejected his objection as to the executability of the decree.

3. The brief facts of the ease are that a decree, for recovery of Rs. 11,000/- is passed in favour of the respondent decree-holder. The decretal amount is to be paid as per the terras of the decree in two instalments. As the said installments are not paid the decree-holder filed execution proceedings. In the said execution proceedings an objection was raised by the judgment-debtor stating that, lie has already paid the amount to the decree-holder, hence the decree cannot be executed. The Court below rejected the objection relying on the provisions of Order 21, Rule 2 sub-clause (3) of the Code of Civil Procedure by Stating that since the payment is not certified in accordance with the provisions of Order 21, Rules 1 and 2 CPC the same cannot be recognised.

4. Learned counsel for the applicant has submitted that the view taken by the Executing Court is without jurisdiction. For this purpose he relied upon a judgment of Apex Court in the case of M.P. Shreevastava v. Mrs. Veena, (AIR 1967 SC 1193) and on a Division Bench decision of this Court in the case of Bherulal Narayanji v. Ramautar Bihari, 1981 MPLJ 333 : (AIR 1981 Madh Pra 181). In both these cases it was held that the judgment-debtor can oppose the decree by saying that he has already satisfied the decree without certification. The scope of Order 21, Rule 2, CPC and objection under Section 47, CPC are quite different and objections without certification of the execution of the decree can be gone into by the Executing Court. In both these cases to decree was passed prior to the amendment in the Code of Civil Procedure and the decree put into execution prior to the amendment in the Civil Procedure Code in the year 1976 which has come into force from 1-2-1977. By the said amendment sub-clause (3) is incorporated under Order 21, Rule 2, CPC which provides that a payment or adjustment which has not been certified or recorded as provided by Rules 1 and 2 shall not be recognised by any Court executing the decrees. Thus, this proviso is introduced which creates a bar against executing Court to recognize any payment which is not certificated as provided by Rules 1 and 2, CPC in the light of the said proviso, the decisions referred by the learned counsel for the petitioner, have no application in the present case.

5. In the present case the decree is passed after aforesaid amendment in the Code of Civil Procedure hence I do not find any jurisdictional error in the impugned order. The revision is, therefore, dismissed with no orders .as to costs.