Ashima Joshi Vs. Sameer Joshi - 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.ordera.m. sapre, j.1. this is a writ under article 227 of the constitution of india. it is filed by the defendant, against an interim order, passed by the family court on an application under section 24 of the hindu marriage act. by impugned order, the learned family judge has fixed rs. 2,500/- per month by way of maintenance to be paid to petitioner i.e. wife, rs. 500/- per month for her minor child and rs. 3,000/- towards litigation expenses. petitioner says that it is less and should have been more. she also claim some amount towards maternity expenses.2. in my view, writ court may not be able to go into the factual issues arising out of disposal of such interim applications, which does not decide the rights of the parties. when the revision is held barred then writ can not be a substitute in every case. a writ court can come in only when there is gross injustice caused to the parties or where it is a pure question of jurisdiction. every intention order deciding the application of interlocutory nature can not be made subject matter of scrutiny on writ side under article 227 of the constitution. in the present case, the learned family judge has taken into account, the income of husband and then in her discretion fixed the monthly alimony for wife and child. this finding being pure finding of fact and is based on exercise of discretion conferred upon the learned family judge, it is binding on this court while hearing the writ under article 227 of the constitution. it is not a first appeal where the court is empowered to examine the evidence and then record a finding other than the one recorded by the trial court on such interlocutory application. in other words, this distinction must always be borne in mind while deciding writ arising out of any interlocutory matter. every order, if not to the liking of a litigant can not be subjected to denovo scrutiny in writ else there is no end for its judicial scrutiny. finality has to be attached at some place.3. learned counsel for the petitioner than placing reliance on a decision reported in air 2003 karnataka 183, urged that maternity expenses ought to have been awarded. i find no merit in it. in the first place, it is the discretion of the family court in grant of such interim alimony. in the second place, it can not be claimed as of right, thirdly, merely because the nature of expenses not being mentioned, does not entitle the petitioner to claim alimony if all other expenses are found to be based on reasonable platform.4. petition, thus, fails and is dismissed in limine.

Judgment:
ORDER

A.M. Sapre, J.

1. This is a writ under Article 227 of the Constitution of India. It is filed by the defendant, against an interim order, passed by the Family Court on an application under Section 24 of the Hindu Marriage Act. By impugned order, the learned Family Judge has fixed Rs. 2,500/- per month by way of maintenance to be paid to petitioner i.e. wife, Rs. 500/- per month for her minor child and Rs. 3,000/- towards litigation expenses. Petitioner says that it is less and should have been more. She also claim some amount towards maternity expenses.

2. In my view, Writ Court may not be able to go into the factual issues arising out of disposal of such interim applications, which does not decide the rights of the parties. When the revision is held barred then writ can not be a substitute in every case. A Writ Court can come in only when there is gross injustice caused to the parties or where it is a pure question of jurisdiction. Every intention order deciding the application of interlocutory nature can not be made subject matter of scrutiny on writ side under Article 227 of the Constitution. In the present case, the learned Family Judge has taken into account, the income of husband and then in her discretion fixed the monthly alimony for wife and child. This finding being pure finding of fact and is based on exercise of discretion conferred upon the learned Family Judge, it is binding on this Court while hearing the writ under Article 227 of the Constitution. It is not a first appeal where the Court is empowered to examine the evidence and then record a finding other than the one recorded by the Trial Court on such interlocutory application. In other words, this distinction must always be borne in mind while deciding writ arising out of any interlocutory matter. Every order, if not to the liking of a litigant can not be subjected to denovo scrutiny in writ else there is no end for its judicial scrutiny. Finality has to be attached at some place.

3. Learned Counsel for the petitioner than placing reliance on a decision reported in AIR 2003 Karnataka 183, urged that maternity expenses ought to have been awarded. I find no merit in it. In the first place, it is the discretion of the Family Court in grant of such interim alimony. In the second place, it can not be claimed as of right, thirdly, merely because the nature of expenses not being mentioned, does not entitle the petitioner to claim alimony if all other expenses are found to be based on reasonable platform.

4. Petition, thus, fails and is dismissed in limine.