While clarifying the legal position on the liability of the owner of vehicle for any mis-declaration by the owner of goods, the Punjab and Haryana High Court in a learned, laudable, landmark and latest judgment titled Vijay Mamgain Vs State of Haryana in 2022 LiveLaw (PH) 34 and Case No. – CWP-1564-2022 (O&M) delivered as recently as February 15, 2022 has held that the owner of the vehicle who is seeking only release of the vehicle is not liable to pay fine for the confiscated goods. It must be apprised here that the Division Bench of Justice Ajay Tewari and Justice Pankaj Jain has observed without mincing any words that to force the owner of the vehicle to pay the tax, penalty and fine on the goods would mean that the owner of the vehicle is also foisted with the vicarious liability of any mis-declaration/fraud by the owner of the goods despite the proviso engrafted on to Sub Section 2 of Section 130 of the Central Goods And Services (CGST) Act, 2017. The goods and conveyance were confiscated by the Tax Authorities during transit as the tax against the goods was not paid. The proceedings under Section 130 were initiated for the reason that the fine and penalty was not paid for 14 days.
To start with, this learned, laudable, landmark and latest judgment authored by Justice Ajay Tewari for a Bench of Punjab and Haryana High Court comprising of himself and Justice Pankaj Jain sets the ball rolling by first and foremost putting forth in para 1 that, “By this petition the petitioner has challenged the action of the respondents in not releasing the conveyance even though he had paid the fine prescribed under Section 130 (2) proviso of the Central Goods and Services Act, 2017 (for short ‘the Act’).”
Be it noted, the Bench then discloses in para 2 that, “It is his contention that the scheme of Section 130 of the Act makes it clear that the owner of the goods and the owner of the conveyance are two separate entities and the liability of one can not be foisted upon the other. Section 129 and 130 of the Act, are reproduced herein below:-
“129. Detention, seizure and release of goods and conveyances in transit
“(1) Notwithstanding anything contained in this Act, where any person transports any goods or stores any goods while they are in transit in contravention of the provisions of this Act or the rules made thereunder, all such goods and conveyance used as a means of transport for carrying the said goods and documents relating to such goods and conveyance shall be liable to detention or seizure and after detention or seizure, shall be released, —
(a) on payment of the applicable tax and penalty equal to one hundred per cent of the tax payable on such goods and, in case of exempted goods, on payment of an amount equal to two per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods comes forward for payment of such tax and penalty;
(b) on payment of the applicable tax and penalty equal to the fifty per cent of the value of the goods reduced by the tax amount paid thereon and, in case of exempted goods, on payment of an amount equal to five per cent of the value of goods or twenty-five thousand rupees, whichever is less, where the owner of the goods does not come forward for payment of such tax and penalty;
(c) upon furnishing a security equivalent to the amount payable under clause (a) or clause (b) in such form and manner as may be prescribed:
Provided that no such goods or conveyance shall be detained or seized without serving an order of detention or seizure on the person transporting the goods.
(2) The provisions of sub-section (6) of section 67 shall, mutatis mutandis, apply for detention and seizure of goods and conveyances.
(3) The proper officer detaining or seizing goods or conveyances shall issue a notice specifying the tax and penalty payable and thereafter, pass an order for payment of tax and penalty under clause (a) or clause (b) of sub section (1).
(4) No penalty shall be determined under sub- section (3) without giving the person concerned an opportunity of being heard.
(5) On payment of amount referred in sub-section (1), all proceedings in respect of the notice specified in sub-section (3) shall be deemed to be concluded.
(6) Mere the person transporting any goods or the owner of the goods fails to pay the amount of penalty under sub-section (1) within fifteen days from the date of receipt of the copy of the order passed under sub-section (3), the goods or conveyance so detained or seized shall be liable to be sold or disposed of otherwise, in such manner and within such time as may be prescribed, to recover the penalty payable under sub-section (3):
Provided that the conveyance shall be released on payment by the transporter of penalty under sub-section(3) or one lakh rupees, whichever is less:
Provided further that where the detained or seized goods are perishable or hazardous in nature or are likely to depreciate in value with passage of time, the said period of fifteen days may be reduced by the proper officer.”
“130. Confiscation of goods or conveyance and levy of penalty
“(1) [Where] any person-
(i) supplies or receives any goods in contravention of any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or
(ii) does not account for any goods on which he is liable to pay tax under this Act; or
(iii) supplies any goods liable to tax under this Act without having applied for registration; or
(iv) contravenes any of the provisions of this Act or the rules made thereunder with intent to evade payment of tax; or
(v) uses any conveyance as a means of transport for carriage of goods in contravention of the provisions of this Act or the rules made thereunder unless the owner of the conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance, then, all such goods or conveyances shall be liable to confiscation and the person shall be liable to penalty under section 122.
(2) Whenever confiscation of any goods or conveyance is authorised by this Act, the officer adjudging it shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the said officer thinks fit:
Provided that such fine leviable shall not exceed the market value of the goods confiscated, less the tax chargeable thereon:
Provided further that the aggregate of such fine and penalty leviable shall not be less than the [penalty equal to hundred per cent of the tax payable on such goods]:
Provided also that where any such conveyance is used for the carriage of the goods or passengers for hire, the owner of the conveyance shall be given an option to pay in lieu of the confiscation of the conveyance a fine equal to the tax payable on the goods being transported thereon.
(3) Mere any fine in lieu of confiscation of goods or conveyance is imposed under sub-section (2), the owner of such goods or conveyance or the person referred to in sub-section (1), shall, in addition, be liable to any tax, penalty and charges payable in respect of such goods or conveyance.
(4) No order for confiscation of goods or conveyance or for imposition of penalty shall be issued without giving the person an opportunity of being heard.
(5) Mere any goods or conveyance are confiscated under this Act, the title of such goods or conveyance shall thereupon vest in the Government.
(6) The proper officer adjudging confiscation shall take and hold possession of the things confiscated and every officer of Police, on the requisition of such proper officer, shall assist him in taking and holding such possession.
(7) The proper officer may, after satisfying himself that the confiscated goods or conveyance are not required in any other proceedings under this Act and after giving reasonable time not exceeding three months to pay fine in lieu of confiscation, dispose of such goods or conveyance and deposit the sale proceeds thereof with the Government.””
To put things in perspective, the Bench then envisages in para 3 that, “The facts are that in this case an order of penalty and tax was made against the goods but since the same was not paid within 14 days proceedings under Section 130 of the Act were initiated. At that stage also the owner of the goods did not come forward to pay the tax and penalty or the fine in view of the confiscation. However, the owner of the conveyance i.e. the petitioner went and paid the fine imposed on the vehicle but, since the vehicle was not released he has filed the present writ petition.”
As we see, the Bench then states in para 4 that, “Learned State counsel states that a perusal of Sub Section 1 of Section 129 of the Act clearly shows that on detention the goods and the vehicle can only be released on the payment of the applicable tax and penalty and the mere fact that Section 130 of the Act is subsequently invoked would not take away the rigour of Section 129 (1). She has further argued that there is no warrant for the proposition that the owner of the goods and the owner of the conveyance are two separate entities because as per her under the main Sub Section 2 of Section 130 of the Act it is clear that whoever wants the goods or the vehicle to be released has to pay the tax, penalty and fine imposed for all the things i.e. to say for the goods also as well as for the conveyance also. As per her, the proviso would not affect this basic provision.”
It is worth noting that the Bench then hastens to add in para 5 that, “In our opinion, if this argument is to be accepted then the Section might well be rendered unconstitutional. In CWP No.18392 of 2021 titled as M/s Shiv Enterprises Vs. State of Punjab and others, decided on 04.02.2022 this Court held as under :-
“21. Section 129 deals with contravention of the provisions of the Act by person transporting goods or storing goods while in transit. The provision provides for consequence of contravention of the provisions of the Act in form of detention or seizure of goods. In case, transport of goods in transit is found to be in contravention of the provisions of the Act, the same are liable to detention/seizure. On the other hand, Section 130 provides for S different situations in which the goods or conveyances are liable to confiscation and the person is liable to penalty under Section 122. Reading of Section 131 further makes it clear that Section 130 is a penal clause and confiscation is a form of punishment over and above other punishments prescribed under the Act. Section 130 is more stringent as compared to Section 129.
25. Men the aforesaid principles of law and the bare provisions of law are applied to the present case, we find that the investigation report relied upon by the respondents to initiate proceedings under Section 130 against the petitioner lacks sting. Under the 2017 Act, a trader is either a ‘supplier’ qua ‘outward supply’ or is a ‘recipient’ of ‘inward supply’. The alleged ‘intent to evade tax’ must have a direct nexus with the activity of trader. The opinion formed by the authorities must reflect such nexus before proceeding under Section 130 of 2017 Act. A trader cannot be accused of having intention to evade payment of tax for act or omission on part of a person not immediately linked to his activity. Learned counsel for the State agreed that even if a trader wants to be prudent, there is no system in place from where he can check as to whether his predecessors in supply chain have paid input tax credit or not. Meaning thereby, it is virtually impossible for a trader to ascertain as to whether input tax has been paid by his predecessors or not and it is for this reason also that the claim to input tax credit has been made subject to scrutiny and assessment. It is the fundamental legal principle embedded in legal maxim “LEX NON COGIT AD IMPOSSIBILIA”-That the law does not compel a man to do that which he cannot possibly perform”. Once a person cannot be compelled to do something not possible, definitely he cannot be penalized for not doing so.””
As a corollary, the Bench then most commendably holds in para 6 that, “By this judgment this Court has held that the principle of vicarious liability can not be extended indefinitely. In the present case also to force the owner of the conveyance to pay the tax, penalty and fine on the goods would mean that the owner of the conveyance is also foisted with the vicarious liability of any mis-declaration/fraud by the owner of the goods despite the proviso engrafted on to Sub Section 2 of Section 130 of the Act.”
As a consequence, the Bench then directs in para 7 that, “Consequently, the argument of the learned State counsel is rejected and it is directed that the conveyance be released forthwith. The goods obviously would be confiscated and disposed of by the respondents in accordance with law.”
Furthermore, the Bench then states in para 8 that, “Petition stands allowed.”
Finally, the Bench then concludes by holding in para 9 that, “Since the main case has been decided, the pending Misc. Application, if any, also stands disposed of.”
In conclusion, the Punjab and Haryana High Court has rightly, rationally and robustly held that owner of vehicle is not vicariously liable for any mis-declaration by owner of goods. It has adequately explains also the reasons for it as discussed herein aforesaid. No denying it in any way!
Sanjeev Sirohi, Advocate
By this judgment this Court has held that the principle of vicarious liability can not be extended indefinitely. In the present case also to force the owner of the conveyance to pay the tax, penalty and fine on the goods would mean that the owner of the conveyance is also foisted with the vicarious liability of any mis-declaration/fraud by the owner of the goods despite the proviso engrafted on to Sub Section 2 of Section 130 of the Act.
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Supreme Court: Notice issued on DCPCR plea challenging Juvenile Justice Act 2021 amendments making certain offences non-cognizable
The Supreme Court in the case Delhi commission for protection of child rights v UOI observed and issued in a petition filled by the Delhi Commission for Protection of Child Rights (DCPCR) challenging the 2021 amendment made to the Juvenile Justice (Care and Protection) Act 2015 (JJ Act), which came into force on 1st September, 2022, whereby certain categories of offences against children have been made non-cognizable.
The bench comprising of Justice D.Y. Chandrachud and the Justice Hima Kohli observed, the counsel, Advocate, Mr. Preteek K Chadha appearing for DCPCR argued that the amendment sets out a less stringent standard than the Code of Criminal Procedure, 1973 or the unamended JJ Act.
However, the commission is challenging the 2021 Amendment to the extent it made the following categories of offences non-cognizable:
A. Using of children for drugs peddling
B. Using of children by terrorists
C. Exploitation of the child employee
D. Cruelty against the children
It was observed when the offences are non-cognizalbe, the police cannot register FIR and the investigation can commence only on the basis of a complaint filed before the concerned Magistrate.
Further, in 2021, the Juvenile Justice (Care and Protection of Children) Amendment Act, 2021 was passed to amend various provisions of the Juvenile Justice Act, 2015 which received the assent of the President on 07th August 2021. As the Amendement Act is yet to be notified. Thus, there are 29 Amendments carried out in the Juvenile Justice (Care and Protection of Children) Act, 2015 by the Amendment Act, 2021.
It is stated that Section 26 of the Amendment Act categorizes serious offences i.e., offences with an imprisonment for a term of three years and above, but not more than seven years as non-cognizable offence. Such offences include sale and procurement of children, employment of children for child begging, exploitation of child employee, giving intoxicating liquor or narcotic drug to a child, etc.
It is argued by the commission that such categorization violates Article 14 and 21 of the Constitution of India and also various other international obligations under the United Nations Convention on the Rights of the Child for which India is a signatory. However, such categorization is contrary to the scheme of the Juvenile Justice Act which is progressive in nature and protects children against all forms of exploitation.
Before the Court, it was argued that the categorization is also contrary to the general scheme of IPC wherein offences punishable with imprisonment for more than three years are categorized as Cognizable whereas offences are punishable with imprisonment for up to three years as non-cognizable offence. Consequently, there is no reasonable justification or rational nexus sought to be achieved by reclassifying the cognizable offences as non-cognizable offences.
The petition stated that on 08.04.2022, it is mentioned that five State Commissions for Protection of Child Rights representing the States and Union Territories of Chandigarh, Delhi, Punjab, Rajasthan and West Bengal in exercise of their powers vested under Section 15 of the Commissions for Protection of Child Rights Act, 2005 recommended to the Government of India that a Bill be tabled in the Parliament for further amending the Juvenile Justice Act, 2015 in order to restore the cognizability status of the serious offences under the Juvenile Justice Act, 2015. It is stated by DCPCR that no such response has been received from the Central Government on the recommendations.
Against this backdrop, the plea has been filled seeking a declaration that declaring the amendment to Section 86 of the Juvenile Justice (Care and Protection of Children) Act, 2015 by way of Section 26 of the Juvenile Justice (Care and Protection of Children) Act, 2021 as unconstitutional and violative of Articles 14 and 21 of the Constitution of India to the extent it makes offences under the Act which are punishable with imprisonment for a term of three years and above, but not more than seven years as non-cognizable.
Supreme Court live-streaming hearings for first time today
The Supreme Court went live for the first time on Tuesday when the cases’ hearings, which were planned to be livestreamed during the day, could be viewed online. One of the three cases slated for live streaming was from Maharashtra and pitted Team Uddhav Thackeray against Team Eknath Shinde over a dispute over the Shiv Sena’s symbol, with the Election Commission already involved. This was the second live hearing where the attorney, Kapil Sibal, could be seen arguing.
Live broadcasting was recommended by the Supreme Court around four years ago.
The former chief justice of India, Dipak Misra, had passed the landmark ruling on September 27 on the live telecast of important proceedings, saying “sunlight is the best disinfectant”.
Following discussion on the issue by the whole top court on September 20, it was decided to begin live-streaming constitutional bench hearings this week. Chief Justice of India (CJI) Uday Umesh Lalit presided over the whole court meeting, and all the judges agreed that constitutional matters should be the first to be streamed live on a regular basis.
A bold plan to integrate the use of information and technology with India’s judiciary, the e-courts project’s third phase included the proposal to have an exclusive platform for live-streaming Supreme Court sessions.
The high courts in Gujarat, Orissa, Karnataka, Jharkhand, Patna, and Madhya Pradesh are some of the high courts that broadcast hearings live as well.
Dipankar Dutta, Chief Justice of the Bombay High Court, recommended his elevation to the Supreme Court
Following a flurry of deliberations, the Supreme Court collegium has recommended Bombay High Court Chief Justice Dipankar Dutta for appointment as a judge to the highest court.
According to a resolution posted on the court’s website, Justice Dutta’s name was finalised at the collegium meeting on Monday.
The collegium is currently led by Chief Justice of India Uday Umesh Lalit and includes justices Dhananjaya Y Chandrachud, Sanjay Kishan Kaul, SA Nazeer, and KM Joseph, the Supreme Court’s first five judges.
This is the collegium’s first recommendation since Justice Lalit took over as CJI on August 27.
The top court currently has 5 vacancies despite having a sanctioned strength of 34 judges.
On September 23, Justice Indira Banerjee was the last judge to resign.
Following back-to-back meetings in the last week, the collegium could decide on a name for elevation to the Supreme Court, according to people familiar with the situation. While the collegium members were unable to reach an agreement in the three meetings held last week, justice Dutta was a unanimous choice on Monday.
Other names for the apex court were also discussed during the meeting, and the collegium may recommend more names during the week, according to people in the know. Furthermore, the collegium deliberated on a few names for the appointment of high court chief justices, and some of them may be approved by the collegium soon.
In June 2006, Justice Dutta, 57, was appointed to the Calcutta High Court.
In April 2020, he was appointed Chief Justice of the Bombay High Court.
If the collegium’s recommendation is approved by the union government, Justice Dutta will be appointed to the Supreme Court for an eight-year term.
Delhi High Court orders AAP leaders to remove posts defaming the Lieutenant Governor
The Delhi High Court has ordered AAP leaders to remove posts defaming Lieutenant Governor Vinai Kumar Saxena as an interim measure. A detailed order is awaited on this.
LG Saxena sought to restrain the ruling Aam Aadmi Party in Delhi, its leaders Atishi Singh, Saurabh Bharadwaj, Durgesh Pathak, Sanjay Singh, and Jasmine Shah, who was appointed by the Government of NCT of Delhi as vice chairperson of the Dialogue and Development Commission, from deleting or removing the alleged false and libellous posts, tweets, or videos circulated and issued on social media.
The AAP and its members claimed that Saxena and his family were involved in a Rs. 1400 crore scam while he was the chairman of the Khadi and Village Industries Commission (KVIC). The party and its leaders claimed, citing the statements of two former KVIC employees, that as KVIC chairman, his daughter was given a contract, which was against the rules.
“I have passed an ad interim order in favour of plaintiff and a takedown order. You can see detailed directions.” justice Amit Bansal said.
Last Thursday, the court reserved its decision on LG Saxena’s interim application, which sought the removal of defamatory content from social media and other online portals.
The L-G, seeking damages of Rs 2 crore, told the court that the party made these allegations with a carefully planned motive in order to divert public attention away from the action being taken by law enforcement agencies against its senior leaders.
In a single day, an Orissa High Court judge issues 32 decisions
A senior judge of the Orissa high court delivered 32 judgments in a single day, amidst large-scale pendencies in high courts across the country.
Officials from the Orissa High Court said on Monday that a single judge bench led by Justice Debabrata Dash delivered judgement in 32 cases, the majority of which were second appeals challenging the decrees of the state’s appellate civil courts.
Thirty-one of the 32 cases were related to the second appeal, with many dating back to 1988 and 1990.
In a second appeal case filed by Gangadhar Pradhan in 1990, the judge upheld his claim of status quo in the sale of land to Saraswati Shishu Vidya Mandir in Balasore district.
Pradhan filed an appeal with the High Court in 1990, claiming that his opponent had sold some of the property to Saraswati Shishu Vidya Mandir office bearers.
In another case, the HC judge upheld the appeal of the district collector of Kalahandi, who had petitioned the Orissa high court in 1999 against the encroachment of government land by Prahallad Aghria and others.
According to Samaresh Jena, additional standing counsel in the Orissa High Court, the passing of 32 judgments in a single day should be emulated and would go a long way toward reducing the pendency in the High Court.
“Till September 23, at least 1.72lakh cases were pending in the high court of which over 67,000 cases are civil writ petition cases. Nearly 20,000 criminal appeal cases are pending. The courts need to clear the backlog quickly,” said Jena.
In August of this year, Union Law Minister Kiren Rijiju told the Rajya Sabha that 59.5 lakh cases are pending in 25 high courts across the country, with a backlog of 4.13 crore in subordinate courts.
More than 71,000 cases are pending in the Supreme Court.
In June of this year, the Orissa High Court became the first in the country to publish an annual report on the state’s judiciary’s performance.
“The greatest challenge to the judiciary is docket explosion i.e., increase in the pendency of cases. While the increase in the institution of cases reflects people’s faith in the judiciary, it also poses challenges,” the report said, adding that the judiciary “appears to have fallen short of expectations”.
According to the annual report for 2021, the high number of cases pending is due to a low judge: population ratio (the number of judges per million people).
Odisha has a judge-to-population ratio of 20.52, compared to the national average of 21.03.
It also stated that, while the sanctioned number of judges in the high court was 33, the current working strength was only 21.
SC notifies Centre on plea against amendments to Juvenile Justice Act
The Delhi Commission for Protection of Child Rights (DCPCR) petition, which questioned 2015 amendments to the Juvenile Justice Act, has resulted in a notice from the Supreme Court to the Center. The panel argued that it was against the interests of the children to classify as non-cognizable certain serious offences committed against them.
On Monday, a bench of justices Dhananjaya Y. Chandrachud and Hima Kohli also sought the Attorney General of India’s assistance in the case. Initially, it was inclined to urge the petitioner to approach the Supreme Court.
But advocate Prateek K Chadha, who represented the panel, told the bench that five state commissions have written to the Centre expressing reservations over the amendments. He added a high court decision will have limited territorial application while this law is applicable across India.
Due to the amendments, several offences against minors are no longer punishable by law, and as a result, police cannot look into them unless given permission to do so by a magistrate. Some of these offences carried punishments of three years or even up to seven years behind bars. These included buying and selling children, abusing them as workers, and using them for child begging, among other things. The law’s amendments were passed in Parliament last year.
In its plea filed in May, the DCPCR said the amendments have resulted in “denuding the police of powers to investigate and arrest the offenders” and place an “undue, unfair and unjustifiable burden on minor victims to come forward and report the commission of a serious offence.”
A police officer was given the authority to conduct an investigation and make arrests after learning of a cognizable offence under the 2015 Act. Police lack this authority when investigating non-cognizable offences unless it has been given permission.
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