Punampursho Vs. Putsh - 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. - hitinder singh, reported in 2000 apradh nirnay journal 286. 3. in reply the submission of the learned counsel for the non-applicant/ husband is that the marriage took place at indore but the child does not belong to the husband and, therefore, he has filed this petition on the ground of cruelty as well as on the ground that the applicant is living in adultery and having a son not out of the wedlock of the non-applicant but with some other person, namely radhamohan khare who is the brother-in-law of the applicant. the further submission of the learned counsel for the non-applicant is that an application under section 24 of the hindu marriage act is also pending for consideration in which she has claimed the expenses of attending the hearing along with one attendant and she can attend the court very well and she may also engage the services of some lawyer and also claim the amount of legal expenses. it would have been desirable for the applicant to file such an application after filing written-statement as well as after consideration of the application under section 24 of the hindu marriage act and after two or three hearings and thereafter should have narrated the difficulties which she is facing in attending the trial.a.k. gohil, j. 1. heard. this is a transfer application under section 24 of the code of civil procedure which has been filed by the applicant/wife for transfer of suit/proceedings for divorce pending before the court of ixth additional district judge, indore as divorce case no. 174 of 2000.2. the applicant has filed this application on the ground that the marriage between the parties took place on 20th november, 1995 at indore and thereafter out of the wedlock one son sanjay was also born but the non-applicant/husband deserted the applicant/wife when she was pregnant and now at present she is residing at chhatarpur along with her father. the further submission of the learned counsel for the applicant is that the father of the applicant is old and infirm and a retired person aged about 65 years and the distance between chhatarpur to indore is around 525 kms., therefore, she cannot come on each and every hearing along with a small child to attend the hearing. the further submission is that to reach indore she has to undertake a long journey including one night and there is no body in the family to come along with the applicant. therefore, it is very difficult to perform such a long journey safely. in support of the submission, the learned counsel for the applicant relied on a decision of the supreme court in the case of ravinder kaur v. hitinder singh, reported in 2000 apradh nirnay journal 286.3. in reply the submission of the learned counsel for the non-applicant/ husband is that the marriage took place at indore but the child does not belong to the husband and, therefore, he has filed this petition on the ground of cruelty as well as on the ground that the applicant is living in adultery and having a son not out of the wedlock of the non-applicant but with some other person, namely radhamohan khare who is the brother-in-law of the applicant. the further submission of the learned counsel for the non-applicant is that an application under section 24 of the hindu marriage act is also pending for consideration in which she has claimed the expenses of attending the hearing along with one attendant and she can attend the court very well and she may also engage the services of some lawyer and also claim the amount of legal expenses. he relied on the decision in the case of smt. nirmala devi v. ravindra singh, reported in 1999 (1) mpwn 9=1 (1999) dmc 467.4. i have heard learned counsel for the parties and perused the record.5. it is true that an application under section 24 of the hindu marriage act is pending for claiming the legal expenses and also the expenses for attending the court but the trial court has not decided the same uptil now. it is also true that the applicant/wife has not filed written-statement of the application of the divorce before the trial court. i have also gone through the application of the applicant in which she has not stated that whether the father of the applicant is a permanent resident of chhatarpur or whether he is residing there temporarily. as she has also not filed any written-statement on the record to know something about the fact and truthfulness of the allegations of having adultery. in view of the averments mentioned in the application and also in view of the fact that an application under section 24 is pending before the trial court in which she has also claimed expenses for coming to attend the case at indore, therefore, according to this court this application seems to be pre-mature. the applicant can claim and the trial court may also award the amount towards expenses for attending the court along with the son and also for one attendant and may also consider inconvenience of the applicant. the court may also consider the circumstances that the applicant may come along with the father or any other relative of the family to attend the court and may also claim the expenses of one attendant/assistant. since the applicant has not stated that how she is living at chhatarpur whether temporarily or permanently along with the father, when the marriage took place at indore, whether the parents of the applicant are the residents of indore. therefore, in the absence of the aforesaid pleadings in the application the correct and full facts are not known to the court to reach on some conclusion about the difficulties of the applicant. it would have been desirable for the applicant to file such an application after filing written-statement as well as after consideration of the application under section 24 of the hindu marriage act and after two or three hearings and thereafter should have narrated the difficulties which she is facing in attending the trial. as the applicant has not filed any written-statement or written reply of the main application of divorce petition. this transfer petition at this stage is misconceived and pre-mature.6. accordingly at this stage i do not see any merit in this application. it is dismissed. no order as to costs. record be returned.