Shraddha Vs. Badresh and ors. - 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.n.k. mody, j.1. being aggrieved by the inadequacy of the amount awarded vide award dated 18.12.2002 passed by learned m.a.c.t., district jhabua (m.p.) in claim case no. 127 of 1997 whereby a sum of rs. 1,50,000 has been awarded along with interest at the rate of 9 per cent per annum, the present appeal has been filed.2. learned counsel for the appellant submits that appellant was aged 24 years at the time of accident and was literate lady running fine art classes. it is submitted that at the time of accident appellant was pregnant, as she was carrying a male baby of 7 months. it is submitted that on account of accident which took place on 3.7.1997, appellant delivered a dead male baby by operation. it is submitted that the amount of rs. 1,50,000 has been awarded out of which rs. 70,000 is for medical expenses and rs. 80,000 is on account of other heads which is on lower side. earned counsel submits that permanent disability was assessed as 15 per cent for which the medical evidence has been produced and doctor has been examined. appellant was admitted in hospital for a period of 45 days, it is also submitted that no amount has been awarded on account of permanent disability which was assessed by learned tribunal as 15 per cent. similarly, no amount has been awarded on account of death of first male baby.3. learned counsel for the appellant submits that because of death of a male baby the appellant suffered mental shock, apart from physical pain and suffering and will also suffer on that account in her future life. it is submitted that it was the first pregnancy of the appellant and thereafter, appellant has delivered a female baby in february 2004, i.e., after a period of 7 years.4. learned counsel for the appellant placed reliance on a decision in the matter of divisional controller, b.t.s. division, karnataka state road trans. corporation v. vidya shindhe 2005 acj 69 (karnataka), wherein karnataka high court has awarded a sum of rs. 1,50,000 on account of death of stillborn male baby. in this case mother sustained grievous injuries while traveling as pillion rider on scooter. male born baby kept in i.c.u. died after two days of delivery. it is submitted that in this case for the injuries sustained by mother separate claim petition was filed. further reliance was placed on r.d. hattangadi v. pest control (india) pvt. ltd. 1995 acj 366 (sc), wherein hon'ble supreme court has laid down the gravity for awarding pecuniary and non-pecuniary damages. it was held:.that damages have to be assessed separately as pecuniary damages and special damages. pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. in order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant: (i) medical attendance; (ii) loss of earning of profit up to the date of trial; (iii) other material loss. so far as non-pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering already suffered or likely to be suffered in future; (ii) damages to compensate for the loss of amenities of life which may include a variety of matters, i.e., on account of injury the claimant may not be able to work, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life.5. learned counsel for respondent no. 3 further submits that from the record it is proved that the appellant was having a pregnancy of 28 weeks. since for giving a birth conception of 36 weeks are necessary, therefore, no separate amount can be awarded on account of death of alleged male child. it is also submitted that the case of karnataka state road trans. corpn. 2005 acj 69 (karnataka), is altogether different. in that case the lady claimant gave birth to a live male child, who died after two days, therefore, that case is not applicable.6. learned counsel for the respondent no. 3 submits that rs. 1,50,000 has been awarded by the learned tribunal to the appellant which is just and proper looking to the injuries sustained by the appellant. it is submitted that out of the amount of rs. 1,50,000, rs. 80,000 covers the non-pecuniary damages including the compensation payable to the appellant on account of death of male baby. it is submitted that appellant was carrying pregnancy of 28 weeks which can be said to be a foetus only.7. it is not in dispute that claimant was pregnant and the child was in the womb of the mother at the time of accident. it is also not in dispute that the mother who is appellant herein has sustained grievous injuries and on account of which she was hospitalized. it is also not in dispute that if claimant had not suffered injuries, child in her womb would not have been affected. she had to undergo a surgery and delivered a dead male baby. for the purpose of considering the case for awarding compensation even the stillborn baby has to be considered as child. stillborn baby died in the womb due to the injuries sustained by the appellant in the accident. in the opinion of this court there is a nexus between the accident and the cause of death of the child. appellant is entitled for compensation on account of death of or stillborn male baby. it was first delivery of the appellant. since, no separate amount has been awarded on that account, therefore, this appeal stands allowed. appellant shall be further entitled for a sum of rs. 1,00,000 on account of death of stillborn male child. total sum for which appellant shall be entitled comes to rs. 2,50,000. the enhanced amount of rs. 1,00,000 shall carry interest at the rate of 6 per cent per annum from the date of application.8. with the aforesaid modifications in the award, appeal stands disposed of. no order as to costs.