In Re: Sessions Judge - 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.order1. the sessions judge, sagar had sent a memo dated 27-1-2004 requesting transfer of cases arising out of commission of sati (prevention) act, 1987 (hereinafter referred to as 'the act') registered as special case no. 1/02 (state of madhya pradesh v. ashok kumar and ors.) and special case no. 2/02 (state of madhya pradesh v. ashok kumar and 16 others) from special court, sagar to special court, panna.2. the matter has been placed on the judicial side by order of hon'ble acting chief justice.the state government vide notification no. f-1-4-2002/xxi-b(1), bhopal dated 14th august, 2002 issued under section 9 of the act, constituted seven special courts, out of which, one court was constituted as special court, sagar to take cognizance of the cases arising out of sagar, damoh, panna, tikamgarh and chhatarpur districts. the aforesaid two cases are arising out of district panna and are pending in the special court, sagar at the stage of prosecution evidence.3. on 14-1-2004 a notification was issued by the state government in supersession of the earlier notification dated 14-8-2002 under section 9 of the act and as many as 40 special courts were constituted for the places mentioned in column (2) of the schedule of the said notification for the areas specified in column (3). as per the notification dated 14-1-2004, for the revenue district panna, special court has been constituted at panna and sessions judge, panna has been appointed as presiding officer of that court.4. in view of this notification dated 14-1-2004, the sessions judge, sagar has requested this court to transfer the aforesaid cases arising out of panna district to the special court at panna.i have carefully examined the provisions of the act and the notification referred to above. in my view, the request of the learned sessions judge, sagar cannot be allowed since in a similar situation the division bench of this court in case of barji v. state of m. p. (2000 (1) mplj 390) : (1999 cri lj 4197) arising out of narcotic drugs and psy-chotropic substances act. 1985 has considered the effect of the issuance of subsequent notification issued under n. d. p. s. act, 1985 and has held as under (para 10) :'the notification in question is obviously issued by the state government under the delegated powers conferred by section 36 of the act. generally speaking, such power may be conferred to make subordinate legislation in the shape of a rule, a bye-law or a notification, which have retrospective operation. however, in the absence of an express or necessarily implied power to that effect, subordinate legislation be it a rule, a bye-law or a notification, cannot have retrospective operation (see principles of statutory interpretation by justice g. p. singh, 6th edition, 1996, chap. 12, syn. 6). in the instant case section 36 of the act does not seem to have given any such power either expressly or by necessary implication to the state government to issue a notification having retrospective operation. the notification dated 2-4-1998 also does not give even slightest indication of being retrospective in operation.'5. further, in para 15, the division bench has held that the subsequent notification shall not affect the special cases pending on the date of subsequent notification in which cognizance had already been taken by the special courts already constituted under the previous notification. such cases shall be continued to be tried by the courts in which they are pending on that date. the cases in which cognizance has not been taken shall alone stand transferred to the special courts constituted under the subsequent notification for the respective areas.6. in the present case, as per the memo sent by the learned sessions judge, sagar, cognizance had already been taken and the cases are at the stage of prosecution evidence.7. in that view of the matter, applying the ratio of the judgment of the division bench of this court (1999 cri lj 4197) (supra), the request made by the sessions judge, sagar for transferring the cases from special court, sagar to special court panna cannot be allowed and the same is rejected.m. cr. c. stands disposed of.

Judgment:
ORDER

1. The Sessions Judge, Sagar had sent a Memo dated 27-1-2004 requesting transfer of cases arising out of commission of Sati (Prevention) Act, 1987 (hereinafter referred to as 'the Act') registered as Special Case No. 1/02 (State of Madhya Pradesh v. Ashok Kumar and Ors.) and Special Case No. 2/02 (State of Madhya Pradesh v. Ashok Kumar and 16 others) from Special Court, Sagar to Special Court, Panna.

2. The matter has been placed on the judicial side by order of Hon'ble Acting Chief Justice.

The State Government vide Notification No. F-1-4-2002/XXI-B(1), Bhopal dated 14th August, 2002 issued under Section 9 of the Act, constituted seven Special Courts, out of which, one Court was constituted as Special Court, Sagar to take cognizance of the cases arising out of Sagar, Damoh, Panna, Tikamgarh and Chhatarpur districts. The aforesaid two cases are arising out of District Panna and are pending in the Special Court, Sagar at the stage of prosecution evidence.

3. On 14-1-2004 a notification was issued by the State Government in supersession of the earlier notification dated 14-8-2002 under Section 9 of the Act and as many as 40 Special Courts were constituted for the places mentioned in column (2) of the schedule of the said notification for the areas specified in column (3). As per the notification dated 14-1-2004, for the revenue district Panna, Special Court has been constituted at Panna and Sessions Judge, Panna has been appointed as Presiding Officer of that Court.

4. In view of this notification dated 14-1-2004, the Sessions Judge, Sagar has requested this Court to transfer the aforesaid cases arising out of Panna district to the Special Court at Panna.

I have carefully examined the provisions of the Act and the notification referred to above. In my view, the request of the learned Sessions Judge, Sagar cannot be allowed since in a similar situation the Division Bench of this Court in case of Barji v. State of M. P. (2000 (1) MPLJ 390) : (1999 Cri LJ 4197) arising out of Narcotic Drugs and Psy-chotropic Substances Act. 1985 has considered the effect of the issuance of subsequent notification issued under N. D. P. S. Act, 1985 and has held as under (Para 10) :

'The Notification in question is obviously issued by the State Government under the delegated powers conferred by Section 36 of the Act. Generally speaking, such power may be conferred to make subordinate legislation in the shape of a Rule, a Bye-law or a Notification, which have retrospective operation. However, in the absence of an express or necessarily implied power to that effect, subordinate legislation be it a Rule, a bye-law or a Notification, cannot have retrospective operation (See Principles of Statutory Interpretation by Justice G. P. Singh, 6th Edition, 1996, Chap. 12, Syn. 6). In the instant case Section 36 of the Act does not seem to have given any such power either expressly or by necessary implication to the State Government to issue a notification having retrospective operation. The notification dated 2-4-1998 also does not give even slightest indication of being retrospective in operation.'

5. Further, in para 15, the Division Bench has held that the subsequent notification shall not affect the Special cases pending on the date of subsequent notification in which cognizance had already been taken by the Special Courts already constituted under the previous notification. Such cases shall be continued to be tried by the Courts in which they are pending on that date. The cases in which cognizance has not been taken shall alone stand transferred to the Special Courts constituted under the subsequent notification for the respective areas.

6. In the present case, as per the memo sent by the learned Sessions Judge, Sagar, cognizance had already been taken and the cases are at the stage of prosecution evidence.

7. In that view of the matter, applying the ratio of the judgment of the Division Bench of this Court (1999 Cri LJ 4197) (supra), the request made by the Sessions Judge, Sagar for transferring the cases from Special Court, Sagar to Special Court Panna cannot be allowed and the same is rejected.

M. Cr. C. stands disposed of.