1. Advocate – Professional Misconduct – Advocate cannot file an affidavit in his own name on behalf of his client. [Advocates Act, 1961, Section 30, S ection 35]
Baljeet Singh vs. Pratap Singh and Others. AIR 2017 ALLAHABAD 165
The simple issue before the Hon’ble court was whether the counsel for the appellant before the lower appellate court could have filed the affidavit in support of the present appeal as a family friend?
It was observed that an advocate gets his right to practise in a court only u/s. 30 of the Act. ‘Practise’ in itself means to appear on behalf of his client before a Court or Tribunal in the best interest of his client. Practise, however, certainly does not give liberty to an advocate to identify himself with his client and step into the shoes of his client, so far as the rights of his client are concerned.
It was held by the Hon’ble Court that the said counsel who filed the affidavit is guilty of professional misconduct in identifying himself with his client and filing an affidavit in support of the appeal, but considering that he himself expresses that he had acted under naivety and has submitted an unconditional apology, the matter may not be referred to the Disciplinary Committee of the State Bar Council.
2. Evidence – Admissibility of evidence during the appellate proceedings. [Evidence Act, 1872, Section 65B(4)].
Sonu alias Amar vs. State of Haryana AIR 2017 SUPREME COURT 3441
An objection w.r.t. electronic record being not admissible unless it was accompanied by a certificate was raised in the appellate proceedings.
The only issue is the permissibility of an objection regarding inadmissibility of evidence at the Appeal stage. Admittedly, no objection was taken when the CDRs were adduced in evidence before the Trial Court. It does not appear from the record that any such objection was taken even at the appellate stage before the High Court.
It was observed that objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
It was held by the Hon’ble Court that it is clear that an objection relating to the mode or method of proof has to be raised at the time of marking of the document as an exhibit and not later. Objections regarding admissibility of documents which are per se inadmissible can be taken even at the appellate stage. Admissibility of a document which is inherently inadmissible is an issue which can be taken up at the appellate stage because it is a fundamental issue. The mode or method of proof is procedural and objections, if not taken at the trial, cannot be permitted at the appellate stage.
3. HUF – Ancestral property – Deemed to be joint – Unless proved otherwise. [Hindu Law]
Adiveppa & Ors. vs. Bhimappa & Anr. CIVIL APPEAL No. 11220 OF 2017 SUPREME COURT (www.itatonline.org)
The disputes were regarding ownership and extent of the shares held by the Appellants (Plaintiffs) in the agricultural lands.
It was alleged that while some properties were ancestral while others were self-acquired and hence the Plaintiffs (Appellants) have 4/9th share in the ancestral properties as members of the family. The Respondents (Defendants) denied the plaintiffs’ claim and averred inter alia that all the suit properties were ancestral properties. It was alleged by the Respondents that during the lifetime of the father of the plaintiff, an oral partition had taken place amongst the family members in relation to the all the suit properties pursuant to which all family members were placed in possession of their respective shares.
It was held by the Hon’ble Court that it is a settled principle of Hindu law that there lies a legal presumption that every Hindu family is joint in food, worship and estate and in the absence of any proof of division, such legal presumption continues to operate in the family. The burden, therefore, lies upon the member who after admitting the existence of jointness in the family properties asserts his claim that some properties out of entire lot of ancestral properties are his self-acquired property. Since the Plaintiffs themselves had based their case by admitting the existence of joint family nucleus and also could not prove with any documentary evidence that the suit properties described were their self-acquired properties, the appeal was dismissed.
4. Search/Survey – Undated cheques for collection of differential duty – Illegal. [Central Excise Act, 1944, Section 12F]
Digipro Import & Export Pvt. Ltd. vs. Union of India & Ors. 2017 (350) E.L.T. 145 (Del.).
Five undated cheques totalling to Rs. 1.25 crore were collected from the Petitioner by the officers of the Anti-Evasion Wing, Commissioner of Central Excise, Delhi-I during a Search/Survey conducted under the Central Excise Act, 1944.
The only issue was whether such an act of the department of collecting ‘undated cheques’ constituting the differential duty liability during the process of a visit/search or survey was sustainable.
The Hon’ble Court relying on various decisions held that there was no provision of law or any notification or any circular that permitted the officers who visited the Petitioner’s business premises to collect undated cheques which purportedly constitute the differential duty. It must be realised that the officers of the Anti-Evasion Wing of the Central Excise Department have to function within the four corners of the law. They are bound by not only the Central Excise Act and the Rules made thereunder but all the notifications/circulars/instructions issued from time to time including those issued by the CBEC. There is no scope at all to collect duty and that too without even quantifying the extent of duty evasion.
5. Rectification of mistake apparent – Within 6 months – Date of Order not to be seen. [Central Excise Act, 1944 –Section 35C, Section 37C]
Liladhar T. Khushlani vs. Commissioner of Customs 2017 (351) E.L.T. 36 (Guj.)
The short question, which was posed for consideration was, whether for the purpose of filing the rectification application, period of limitation of six months would commence from the date of the order, which is sought to be rectified or from the date of receipt of the order sought to be reviewed/rectified by the concerned assesse under the Central Excise Act, 1944?
It was held by the Hon’ble court that unless and until a party to the appeal is in a position to go through and study the order it would not be possible, nor can it be envisaged, that a party can claim to be aggrieved by the mistake apparent from the record. Hence, even on this count, the period of limitation has to be read and understood so as to mean from the date of the receipt of the order. In the result, the impugned order passed by the learned CESTAT was quashed and set aside.
