Ice cream by any other name

Last Updated: Mon, Dec 03, 2012 04:12 hrs

The Supreme Court last week upheld the view of the commissioner of central excise and ruled that the ‘soft serve’ provided by McDonalds is in fact ice cream for purposes of excise. The firm had argued that it was liable to pay less duty since the product is marketed and sold around the world as ‘soft serve’. The court, while allowing the appeal of the revenue authorities in the case, Commissioner vs Connaught Plaza Restaurant Ltd, stated that “the manner in which a product may be marketed by a manufacturer does not necessarily play a decisive role in affecting the commercial understanding of such a product. What matters is the way in which the consumer perceives the product at the end of the day.” A person who walks into the restaurant to buy ice cream is not likely to know the intricacies of the manufacture of the product and its difference from soft serve, the judgment explained.

Signature variation in cheque
The Supreme Court set aside the view of the Gujarat high court which had held that prosecution for issuing a dishonoured cheque was valid only in cases where the cheque is dishonoured either because the amount of money is insufficient to pay the cheque amount or the cheque amount exceeds the amount arranged to be paid from the account. Dishonour of a cheque on the ground that the signatures of the drawer do not match the specimen signatures available with the bank does not, according to the high court, fall in either of these two contingencies. In such cases prosecution was not permissible. The Supreme Court overruled this decision and stated that so long as the change in the signature is brought about “with a view to preventing the cheque being honoured the dishonour would become an offence under Section 138 of the Negotiable Instruments Act, subject to other conditions prescribed being satisfied.” There may be change in the directors of a company or other valid reasons for the mismatch between the signatories on the cheque. These cases would not attract the penal provisions.

Himachal tourism official acquitted
The Supreme Court has ruled that if a government servant is acquitted of a charge under Section 7 (taking illegal gratification of official work) of the Prevention of Corruption Act, he cannot be convicted and sentenced under Section 13(2) of the same law which prescribes punishment for the offence. In this case, Rakesh Kapoor vs State of Himachal Pradesh, the allegation was that an officer of the state tourism development corporation had demanded bribe for sanctioning a hotel in Dharamshala. The courts below had acquitted him of the charge under Section 7 but convicted him under Section 13. The Supreme Court set him free granting him the benefit of doubt.

NTC arbitration appeal dismissed
The Delhi high court has dismissed the writ petition moved by National Textiles Corporation (NTC) against the arbitration notice in its dispute with the government and UCO Bank. NTC assailed the notice issued by the arbitrator, who is acting under the aegis of the Permanent Machinery of Arbitrators (now said to be defunct). The dispute started when UCO bank laid monetary claim against Sita Ram Mills. Since several complicated issues were involved, including whether the mills were the property of NTC, the high court stated that it was not proper to interdict the arbitral proceedings at this stage. It would result in delaying the adjudication of the disputes. The court added that the arbitrator was right in holding that to avoid delay, all issues need to be decided together as much depended on facts and evidence. “The sensible course would be the one adopted by the arbitrator, which is to decide the all issues at one go.”

Disqualification of co-op directors
The Bombay high court has dismissed a batch of petitions against notices issued to 14 directors of Yavatmal District Central Cooperative Bank asking them to show cause why they should not be disqualified from holding the office under the provisions of the Maharashtra Co­operative Societies Act. The basic ground raised in the show cause notices by the Joint Registrar, Co­operative Societies was on the basis of a report of NABARD. The directors were members of Primary Agricultural Co­operative Credit Societies, which societies were defaulters and as such, they had incurred disqualification. The first bench dismissed the petitions based on lack of effective consultation and violation of principles of natural justice. The division bench rejected the appeals against that decision.

Don’t blame the lawyers
The National Consumer Commission has rejected the appeal of Citibank in a credit card case because it filed the appeal after a delay of 214 days and it blamed its lawyer for causing the delay. Dismissing the appeal in the case, Citibank vs GC Padmini, it said: “Now-a-days, it has become a fashion to transfer the responsibility upon the advocate and that, too, in his absence. It is the duty of the litigant (bank) to peruse the order and take action accordingly. It is also the duty of the litigant to go to the office of the advocate and find out the true state of affairs.”

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