Hajarilal Vs. Smt. Chandrakala - 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.s.b. sakrikar, j. 1. applicant (appellant) has directed this appeal against the judgment and the decree dated 30.8.2000 passed by iiird adj, ujjain in civil suit, no. 78a /95, thereby dismissing the petition filed on behalf of the appellant for grant of divorce against the respondent under the provisions of section 13 of the hindu marriage act.2. the facts of the case in brief are that the appellant has filed a petition before the trial court against the respondent for grant of a decree of divorce oh the ground of desertion and cruel behaviour of the respondent under the provisions of section 13(1)(i-a) and 13(1)(i-b) of the hindu marriage act. on service of notice of the respondent, she opposed the application on various grounds. on behalf of the respondent the objection with regard to the jurisdiction of the trial court was also raised. the learned trial court, on the pleadings of the parties, framed issues and recorded the evidence of both the parties. the learned trial court, by the impugned order, dismissed the application filed on behalf of the appellant and recorded findings on all the issues, framed in the case. aggrieved by the impugned judgment of the trial court, the appellant has filed this appeal.3. the only contention of the learned counsel for appellant is that the trial court has recorded a finding on issue no. 5 with regard to the jurisdiction of the court in favour of the respondent. as such, when the trial court records a finding on issue no. 5 that the court has no jurisdiction to adjudicate the application filed on behalf of the appellant, the trial court should not have recorded the findings on other issues and should not have dismissed the application filed on behalf of the appellant for grant of decree of divorce. the legal and the proper course available to the trial court was to return the plaint (original petition) to the applicant (appellant) for presentation to the proper court under the provisions of order 7, rule 10 of the c.p.c4. the learned counsel for non-applicant submitted that he does not have any objection if this appeal is allowed on the ground to return the plaint for presentation to the proper court under order 7, rule 10, c.p.c. in view of the findings recorded by the trial court as issue no. 55. considering the submission of the learned counsel for parties and on perusal of the impugned judgment, the submission of the learned counsel for appellant deserves to be accepted. when the trial court by recording a finding on issue no. 5 comes to the conclusion that no cause of action accrued to the appellant for filing the petition for grant of decree of divorce against the respondent within the jurisdiction of the court at ujjain, then, the trial court should not have recorded findings on other issues and should not have dismissed the petition filed on behalf of the appellant for grant of decree of divorce. the proper course for the trial court was to record findings on issue no. 5 and in view of the said finding the original petition should have been returned to the appellant (petitioner) for presentation to the proper court under the provisions of order 7, rule 10, c.p.c. needless to say that the court having no jurisdiction to adjudicate the petition filed on behalf of the appellant, does not have jurisdiction to record the findings on the other issues and dismissing the application filed on behalf of the appellant for grant of divorce.6. consequently, this appeal is allowed. the impugned judgment and the decree of the trial court is set aside. the findings on issue no. 4 only recorded by the trial court are upheld and in the result the trial court is directed to return the plaint (petition) to the appellant (petitioner) for presentation to the proper court under the provisions of order 7, rule 10 of the c.p.c. the appellant has unnecessarily filed a petition against the respondent in a court having no jurisdiction to try the application and unnecessarily forced her to contest the petition as also this appeal. as such, the appellant is directed to pay rs. 2,000/- by way of special cost as also pay the cost of the original suit as also in this appeal to the respondent and shall bear his own cost. the counsel fee for this appeal is fixed at rs. 1,000/- to each of the party, on filing certificate. schedule of cost be drawn up accordingly.