LAW FOR ALL : December 2015

Friday, December 18, 2015

The “settled law” spoken of would refer to a CBEC circular No.268/85-CX.8 dated 29.9.1994 which deals with valuation of goods manufactured by units working under the 100% EOU scheme. The said circular refers to Rule 8 of the Customs Valuation Rules and not the Central Excise Valuation Rules. The four factors laid down in the said circular have relevance only qua goods that are cleared in the DTA and how their valuation is to be arrived at. We have already seen that the manner of valuation of such goods would not be relevant for the simple reason that what has to be determined in the facts of the present case is the valuation of the duty of excise leviable under Section 3 of the Central Excise Act on like goods produced or manufactured in India by undertakings other than 100% EOUs. The application of this circular and consequently any FOB export price would be wholly irrelevant for the purpose of this case and as has been held above, is only for arriving at the duty of excise leviable under Section 3(1) Proviso (ii) of the Central Excise Act. On the facts of the present case, it is clear that the said duty of excise arrived at based on Section 3(1) Proviso (ii) is more than the duty determinable for like goods produced or manufactured in India in other than 100% EOUs. Since the notification exempts anything that is in excess of what is determined as excise duty on such like goods, and considering that for the entire period under question the duty arrived at under Section 3(1) proviso (ii) is in excess of the duty arrived at on like goods manufactured in India by non 100% EOUs, it is clear that the whole basis of the show cause notice is indeed flawed. Further, the show cause notice is based on one solitary circumstance – the fact that goods captively consumed by the two sister units of the unit in question are not “sold”. We are afraid this approach flies in the face of the language of the notification dated 1.3.1997. The test to be applied under the said notification is whether the goods in question are “allowed to be sold” in India. The aforesaid expression is obviously different from the expression “sold” and does not require any actual sale for the notification to be attracted. In fact revenue’s case is also that even though the said notification is attracted, yet because there is no sale somehow the FOB export price of like goods alone is to be looked at. If this were to be so, not only would the object of the notification not be sub-served but even its plain language would be violated. It is clear that the said notification has been framed by the Central Government, in its wisdom, to levy only what is levied by way of excise duty on similar goods manufactured in India, on goods produced and sold by 100% EOUs in the domestic tariff area if they are produced from indigenous raw materials. If the revenue were right, logically they ought to have contended that the notification does not apply, in which event the test laid down under Section 3(1) proviso (ii) would then apply. This not being the case, we are of the view that the Tribunal’s judgment is correct and requires no interference. The appeal is, accordingly, dismissed.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.951 of 2008

COMMISSIONER OF CENTRAL EXCISE …APPELLANT

VERSUS

M/S NESTLE INDIA LIMITED …RESPONDENT

J U D G M E N T

R.F. Nariman, J.

The respondent herein is a 100% EOU engaged in the manufacture of instant
tea falling under Chapter 2101.20 of schedule to the Central Excise Tariff
Act, 1985. The present appeal is concerned with clearances of their
product to two sister units on payment of duty in terms of Notification
No.8/97 - CE dated 1.3.1997 and Notification No.23/2003 CE dated 31.3.2003.
The first notification would cover the period 1.11.2000 to 30.3.2003 and
the second notification would cover the period 31.3.2003 to 31.5.2005.
Inasmuch as the instant tea was manufactured wholly out of indigenous raw
materials, the notifications aforesaid applied and whatever was in excess
of what is chargeable by way of excise duty on the said tea is exempted. It
is not in dispute that the said notifications applied in the facts of the
instant case.

A show cause notice dated 23.9.2005 was issued by the Department stating
that ordinarily Rule 8 of the Central Excise Valuation (Determination of
Price of Excisable Goods) Rules, 2000 would apply and that the tea being
captively consumed and not sold should be valued at 115% of the cost of
production or manufacture of such goods. However, the show cause notice
then goes on to say that as the said tea is transferred only to two sister
concerns and no sale is involved, the assessable value of instant tea
removed to the respondent’s own units would be determined on the basis of
the export price of similar goods and not 115% of the cost of production.

The order in original dated 31.5.2006 passed by the Additional Commissioner
upheld the show cause notice and confirmed the duty amount, interest, and
penalty as follows:-

“ORDER

I confirm the duty amount of Rs. 42,86,079/- (Rupees Forty two lakhs,
eighty six thousand and seventy nine only) (Centvat: Rs.42,62,545/- and
Education Cess Rs.23,534/-) under Section 11A (1) of the Central Excise
Act, 1944.

I demand appropriate interest on the above amount confirmed under Section
11AB(1) of the Central Excise Act, 1944.

I impose a penalty of Rs.42,86,079/- (Rupees Forty two lakhs, eighty six
thousand and seventy nine only) under Section 11A (1) of the Central Excise
Act, 1944.

As I have imposed penalty on them under Section 11AC of Central Excise Act,
1944, I do not impose a separate penalty under Rule 173Q or 209 of
erstwhile Central Excise Rules 1944 and Rule 25 of erstwhile Central Excise
(No2) Rules, 2001 read with Section 38A of Central Excise Act, 1944 and
Rule 25 of Central Excise Rules, 2002.”

4. The appeal by the assessee was also dismissed by an order dated
26.9.2006 passed by the Commissioner (Appeals) upholding the show cause
notice and stating that Section 3 (1) Proviso (ii) of the Central Excise
Act would apply to the facts of the case and that being so, it is clear
that the basis for valuation had to be on the FOB value of export of
similar goods and not on the basis of cost of production under Rule 8 of
the Central Excise Rules.

5. By the impugned judgment dated 16.5.2007, CESTAT set aside the
judgment of the Commissioner (Appeals) by reasoning that since the
exemption notifications would apply and since what has to be determined
under the said notifications is excise duty payable in India, such duty
could only be arrived at by applying Rule 8 in cases of captive consumption
and that therefore the basis of the show cause notice and the decisions by
the original and appellate authorities was incorrect. It accordingly set
aside the order of the Commissioner (Appeals).

6. Shri A.K. Sanghi, argued before us that since the case was covered by
Section 3 (1) Proviso (ii) of the Central Excise Act, the Customs Act alone
was to be looked at and if the Customs Act was so looked at, the test as to
value of goods would be the test of similar goods of a like value that are
exported. Hence, according to him, the original authority and the
appellate authority were correct in applying the said Section and the
Tribunal was wrong in ignoring the said Section and applying exemption
notifications to the facts of the case instead.

7. Ms. L. Charnaya, learned counsel appearing on behalf of the assessee
on the other hand, supported the decision of the tribunal and read to us in
some detail not only the Central Excise Valuation Rules but also the
notifications aforementioned. It is her case that the show cause notice
itself was flawed in that the basis of the said notice is that since no
sale had taken place on the facts of the present case, the FOB value of
export of similar goods has to be taken into account. She laid great
stress on the fact that in the notification dated 1.3.1997 the language
used is not “sold” but “allowed to be sold” and that if this were kept in
mind it is clear that the very basis of the show cause notice being
incorrect would lead to incorrect orders that were passed by the original
and first appellate authority.

8. Having heard learned counsel for the parties we think it is necessary
to first extract the relevant statutory provisions and the notifications
insofar as they have a bearing on the facts of the present case.

9. Section 3(1) proviso as it stood at the relevant time is extracted
hereinbelow:-

“SECTION 3. Duties specified in First Schedule and the Second Schedule to
the Central Excise Tariff Act, 1985 to be levied.

Provided that the duties of excise which shall be levied and collected on
any excisable goods which are produced or manufactured, -

In a free trade zone or a special economic zone and brought to any other
place in India; or

By a hundred per cent export-oriented undertaking and brought to any other
place in India,

shall be an amount equal to the aggregate of the duties of customs which
would be leviable under the Customs Act, 1962 (52 of 1962) or any other law
for the time being in force, on like goods produced or manufactured outside
India if imported into India, and where the said duties of customs are
chargeable by reference to their value; the value of such excisable goods
shall, notwithstanding anything contained in any other provision of this
Act, be determined in accordance with the provisions of the Customs Act,
1963 (52 of 1962) and the Customs Tariff Act, 1975 (51 of 1975).”

10. Section 5A being the Section under which the two notifications in the
present case were issued is also of some relevance and reads as follows:-

“SECTION 5A. Power to grant exemption from duty of excise. -

(1) If the Central Government is satisfied that it is necessary in the
public interest so to do, it may, by notification in the Official Gazette
exempt generally either absolutely or subject to such conditions (to be
fulfilled before or after removal) as may be specified in the notification,
excisable goods of any specified description from the whole or any part of
the duty of excise leviable thereon :

Provided that, unless specifically provided in such notification, no
exemption therein shall apply to excisable goods which are produced or
manufactured-

In a free trade zone or a special economic zone and brought to any other
place in India; or

By a hundred per cent export-oriented undertakings and brought to any place
in India.”

11. Rule 8 of the Central Excise Rules, 2000 as it stood at the relevant
time reads as follows:-

“RULE 8. Where the excisable goods are not sold by the assessee but are
used for consumption by him or on his behalf in the production or
manufacture of other articles, the value shall be one hundred and fifteen
per cent of the cost of production or manufacture of such goods.”

12. Inasmuch as a great deal turns on the two notifications that we are
concerned with on the facts of the present case, it is necessary to quote
in full the first of the two notifications.

“Notification: 8/97-CE dated 01-Mar-1997

Exemption to finished products, rejects and waste or scrap produced in a
100% EOU or FTZ In exercise of the powers conferred by sub-section (1) of
section 5A of the Central Excise Act, 1944 (1 of 1944), the Central
Government, being satisfied that it is necessary in the public interest so
to do, hereby exempts the finished products, rejects and waste or scrap
specified in the Schedule to the Central Excise Tariff Act, 1985 (5 of
1986) and produced or manufactured, in a hundred per cent export-oriented
undertaking or a free trade zone wholly from the raw materials produced or
manufactured in India, and allowed to be sold in India under and in
accordance with the provisions of paragraphs 102 and 114 of the Export and
Import Policy 1 April 1992 – 31 March 1997, from so much of the duty of
excise leviable thereon under section 3 of the Central Excise Act, 1944 (1
of 1944), as is in excess of an amount equal to the duty of excise leviable
under the said section 3 of the Central Excise Act, on like goods, produced
or manufactured in India other than in a hundred per cent export-oriented
undertaking or a free trade zone, if sold in India.”

13. To similar effect for the subsequent period is the notification No.23
of 2003 dated 31.3.2003.

14. The first thing to be noticed is that Section 5A under which the
exemption notifications are issued states in the proviso that no exemption
shall apply to excisable goods which are produced or manufactured by a 100%
Export Oriented Undertaking and brought to any place in India unless
specifically provided in such exemption notification. When we turn to the
notification dated 1.3.1997, we find that there is specific provision for
exemption of certain goods produced in a 100% EOU wholly from raw materials
produced or manufactured in India. It is not disputed by the revenue that
the instant tea manufactured by the respondent would be covered being a
finished product specified in the schedule to the Central Excise Tariff
Act. Further, the notification goes on to state that the said tea should
be “allowed to be sold” in India in accordance with the relevant EXIM
policy. It further goes on to state that the exemption from payment of the
duty of excise that is leviable thereunder under Section 3 is what is
payable in excess of an amount equal to the duty of excise leviable on
like goods produced or manufactured in India produced in an undertaking
other than in a 100% Export Oriented Undertaking, if sold in India.

15. It is clear that the object of the notification is that so far as the
product in question is concerned, so long as it is manufactured by a 100%
EOU out of wholly indigenous raw materials and so long as it is allowed to
be sold in India, the duty payable should only be the duty of excise that
is payable on like goods manufactured or produced and sold in India by
undertakings which are not 100% EOUs.

16. There is no doubt whatsoever that the duty of excise leviable under
Section 3 would be on the basis of the value of like goods produced or
manufactured outside India as determinable in accordance with the
provisions of the Customs Act, 1962 and the Customs Tariff act, 1975.
However, the notification states that duty calculated on the said basis
would only be payable to the extent of like goods manufactured in India by
persons other than 100% EOUs. This being the case, it is clear that in the
absence of actual sales in the wholesale market, when goods are captively
consumed and not sold, Rule 8 of the Central Excise Rules would have to be
followed to determine what would be the amount equal to the duty of excise
leviable on like goods. This being so, it is clear that learned counsel
for the assessee is right in her contention that the basis of the show
cause notice is itself flawed. The show cause notice in the present case,
as has been noticed above, refers to Rule 8 of the Central Excise
Valuation (Determination of Price of Excisable Goods) Rules, 2000, but then
goes on to state that:

“It is settled law that the value shall be determined keeping in view the
following factors:

sale price of goods under assessment

sale price of other consignments of identical/ similar goods

export price of identical/similar goods

nature of sale transactions etc.”

The “settled law” spoken of would refer to a CBEC circular No.268/85-CX.8
dated 29.9.1994 which deals with valuation of goods manufactured by units
working under the 100% EOU scheme. The said circular refers to Rule 8 of
the Customs Valuation Rules and not the Central Excise Valuation Rules.
The four factors laid down in the said circular have relevance only qua
goods that are cleared in the DTA and how their valuation is to be arrived
at. We have already seen that the manner of valuation of such goods would
not be relevant for the simple reason that what has to be determined in the
facts of the present case is the valuation of the duty of excise leviable
under Section 3 of the Central Excise Act on like goods produced or
manufactured in India by undertakings other than 100% EOUs. The
application of this circular and consequently any FOB export price would be
wholly irrelevant for the purpose of this case and as has been held above,
is only for arriving at the duty of excise leviable under Section 3(1)
Proviso (ii) of the Central Excise Act. On the facts of the present case,
it is clear that the said duty of excise arrived at based on Section 3(1)
Proviso (ii) is more than the duty determinable for like goods produced or
manufactured in India in other than 100% EOUs. Since the notification
exempts anything that is in excess of what is determined as excise duty on
such like goods, and considering that for the entire period under question
the duty arrived at under Section 3(1) proviso (ii) is in excess of the
duty arrived at on like goods manufactured in India by non 100% EOUs, it is
clear that the whole basis of the show cause notice is indeed flawed.
Further, the show cause notice is based on one solitary circumstance – the
fact that goods captively consumed by the two sister units of the unit in
question are not “sold”. We are afraid this approach flies in the face of
the language of the notification dated 1.3.1997. The test to be applied
under the said notification is whether the goods in question are “allowed
to be sold” in India. The aforesaid expression is obviously different from
the expression “sold” and does not require any actual sale for the
notification to be attracted. In fact revenue’s case is also that even
though the said notification is attracted, yet because there is no sale
somehow the FOB export price of like goods alone is to be looked at. If
this were to be so, not only would the object of the notification not be
sub-served but even its plain language would be violated. It is clear that
the said notification has been framed by the Central Government, in its
wisdom, to levy only what is levied by way of excise duty on similar goods
manufactured in India, on goods produced and sold by 100% EOUs in the
domestic tariff area if they are produced from indigenous raw materials. If
the revenue were right, logically they ought to have contended that the
notification does not apply, in which event the test laid down under
Section 3(1) proviso (ii) would then apply. This not being the case, we
are of the view that the Tribunal’s judgment is correct and requires no
interference. The appeal is, accordingly, dismissed.

……………………J.

(A.K. Sikri)

……………………J.

New Delhi; (R.F. Nariman)

November 24, 2015.

the respondent though covered by exemption notification under Section 8(3) of the Act could be at a disadvantage because finally when the subsequent sale is made by a non-exempted dealer or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos cement sheet, would suffer the tax on the entire sale consideration. This would place an exempted manufacturer-dealer at a disadvantageous position and make his products uncompetitive inspite of the exemption notifications under Section 8(3) of the Act.=where the appellant wanted to restrict the benefit of ITC when a particular dealer or transaction was exempted, it was so stipulated in the exemption notification issued under Sections 8(3) and 8(4) of the Act. Such notifications admittedly do exist and were issued by the appellant. They are also right in drawing support from the note sheets relating to Finance Bill 2007 as also the communications issued by Commissioner of Commercial Taxes. The note sheets and the communication of the Commissioner draw a clear distinction between exemptions when the goods were not taxable as they do fall under the First Schedule and when an exemption was granted under the Second Schedule, which relates to specified transaction of sale or exempted dealers even when the goods were taxable goods. In latter cases, subsequent dealers undertaking sale of goods would be liable to pay tax on sale of such products. There can be no shadow of doubt that subsequent dealers undertaking sale of goods manufactured and sold by the respondent company would be liable to pay tax on such products.

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2806 OF 2015

Commercial Taxes Officer ... Appellant

Versus

A Infrastructure Ltd. ... Respondent

WITH
CIVIL APPEAL NO. 2807 OF 2015
CIVIL APPEAL NO. 2808 OF 2015
CIVIL APPEAL NO. 2809 OF 2015
CIVIL APPEAL NO. 2810 OF 2015

J U D G M E N T

Dipak Misra, J.

This batch of appeals, by special leave, calls in question the legal
acceptability of the common order dated 19th December, 2013 passed by the
learned Single Judge of the High Court of Judicature for Rajasthan, at
Jodhpur in a batch of revision petitions filed by the assessee-respondent
assailing the judgment dated 23.11.2011 passed by the Rajasthan Tax Board,
Ajmer (for short ‘the Board’) in Appeal No. 680 of 2009 and other connected
appeals whereby it had affirmed the decision rendered in appeals by the
Deputy Commissioner (Appeals) who had upheld the assessment orders passed
by the Commercial Taxes Officer in respect of various quarters of the years
2006-2007, 2007-2008 and 2008-2009 disallowing the claim of Input Tax
Credit (ITC) and charging interest under Sections 18, 22 and 55(4) of the
Rajasthan Value Added Tax Act, 2003 (for brevity “the 2003Act”).
2. The facts giving rise to this batch of appeals are that the assessee-
company is engaged in the business of manufacturing Asbestos Cement
Pressure Pipe and Asbestos Cement Sheets and it had availed ITC on the
purchase of raw material used in the manufacture of A.C. Sheets. The
assessing authority issued notice to the assessee for the purpose of
disallowing ITC on purchase of raw material used in manufacturing A.C.
Sheets for the period mentioned hereinabove and pursuant to the show cause
notice the assessee filed a detailed reply and eventually the assessing
authority passed orders under Section 22 of the Act disallowing the ITC and
charged interest. The said orders were assailed before the Appellate
Authority which declined to interfere with the orders appealed against,
compelling the assessee to file second appeals before the Board which
placed reliance on ACTO v. M/s. Suncity Trade Agency[1] and dismissed the
appeals. The Board while dismissing the appeals opined that the assessee-
Company, a manufacturing unit, had not been charged on the sales of its
product, as per the notification which squarely fall under the definition
of exempted goods and hence, the final product was exempted, but it was not
entitled to avail ITC as the notification clearly postulated that the
units/institution was not exempted from the tax but the sales of its goods
were exempted from tax as per the definition of “Exempted Goods”.
3. The grievance of dismissal constrained the assessee to file the
revision petitions before the High Court, and seeking interference in the
revision petition it was contended that the scheme of Section 8 of the Act
which deals with exemption of tax and the notification issued under the
Rajasthan Sales Tax Act, 1994 (for short, ‘the 1994 Act’) and the various
notifications issued under the said Act from time to time deal with A.C.
Sheets and in view of the postulates laid down in the notification dated
09.03.2007, issued under sub-section (3A) of Section 8 wherein the
manufacturer of asbestos cement sheets and bricks have been exempted and,
therefore, it could not be said that A.C. Sheets manufactured by the
assessee were exempted goods which is the pre-requisite for denying ITC
under Section 18 of the Act. Reliance was placed on the judgment of ACTO
v. Abishek Granites Ltd.[2] to buttress the proposition that exemption to
unit is different from the exemption to the transaction of sale of the
commodity. It was also highlighted before the High Court that when two
views are possible, the view in favour of the assessee should be accepted
and for the said purpose reliance was placed on CIT v. Kulu Valley
Transport Co. (P) Ltd[3]. The background of the issue of notification
dated 09.03.2007 and the communication issued by the Commissioner,
Commercial Taxes, Rajasthan, Jodhpur were stressed upon to bolster the plea
that assessee was exempted from tax and not the A.C. Sheets manufactured by
it.
4. The stand of the assessee was controverted by the revenue contending,
inter alia, that vide notification S.O. 372, manufacturers of A. C. Sheets
and Bricks were included at S. No. 20 in Schedule-II, which entitles the
units to claim exemption on the sale of manufactured goods on the
fulfillment of certain conditions and in view of the specific conditions
stipulated in Section 18(1)(A) of the Act, ITC was not allowed. Reliance
was placed on notification S.O. 377, dated 09.03.2007 issued under Section
8(3) of the Act to harp that A.C. Sheets clearly fall within the category
of exempted goods. Reference was made to the definition of ‘exempted
goods’ and ‘goods’ contained in Section 2(13) & (15) of the Act. It was
further submitted that irrespective of whether the notification was issued
under sub-Section (1) or (3) or (3A) or (4), the goods would fall within
the definition of exempted goods and consequently the assessee would not be
entitled to ITC. For the said purpose, reliance was placed on M/s. Sun
City Trade Agency (supra).
5. The High Court referred to the dictionary clause as enumerated in
Section 2(13) which deals with “exempted goods”, Section 2(15) that defines
the terms “goods”, Section 8 which provides for “exemption of tax” and
Section 18 which deals with “Input Tax Credit and thereafter, referred to
the notification dated 16.03.2005 under the 1994 Act and the notifications
dated 01.06.2006, 05.07.2006, 09.03.2007 and the amendment notification
issued on the same day by the Finance Department (Tax Division). The
learned Single Judge analysed the provisions of the Act and the
notifications and took note of the fact that under the 1994 Act exemption
granted related to sale of A.C. Sheets and Bricks, subject to the
conditions indicated therein. The High Court further noted that the
notification dated 01.06.2006 which had been issued in exercise of power
under Section 8(2) and Schedule-I which was amended and A.C. Sheets and
Bricks having contents of fly ash 25% more than by weight was inserted as
entry 60A, and further adverted to the notification issued under the same
provision, on 05.07.2006 vide which the Schedule-I was amended and entry
60A was substituted. After so stating, the learned Single Judge referred to
the notifications issued on 09.03.2007 that deals with A.C. Sheets and also
noted the fact that vide S.O. 371 issued under Section 8(2) of the Act, the
existing entry 60A was deleted from Schedule-I and further by S.O. 377
issued under Section 8(3A) of the Act which pertained to “manufacturers of
asbestos cement sheets and bricks” were added in Schedule-II and it
provides the conditions for availing exemption for sale of A.C. Sheets and
Bricks manufactured in the state.
6. On the aforesaid basis, the Court proceeded to further observe that
by notification dated 16.03.2005 under the 1994 Act and the notifications
dated 16.02.2006 and 05.07.2006 read with notification dated 09.03.2007
A.C. Sheets and Bricks were exempted. The goods, that is, A.C. Sheets and
Bricks were taken out by S.O. 371 and the manufacturers of A.C. Sheets and
Bricks were exempted by inclusion in Schedule-II by S.O. 372 and conditions
for availing such exemption by the manufacturers were indicated by S.O.
377. On the basis of the aforesaid analysis, the revisional Court opined
that it is significant that while S.O. 371 had been issued under Section
8(2) of the Act, S.O. 372 and 377 had been issued under Section 8(3A) and
(3) respectively, which provisions, as noticed hereinbefore, dealt with
Schedule-I under Section 8(2) and Schedule-II under Sections 8(3) and (3A),
which in turn related to exemption of goods and exemption of persons
respectively, therefore, it was apparent from the notifications issued on
09.03.2007 that the intention of the State was to exempt the manufacturers
of A.C. Sheets and Bricks subject to fulfillment of conditions as indicated
in S.O. 377 and to take away exemption available to A.C. Sheets and Bricks
as goods, as was available before the said date on account of its inclusion
in Schedule-I.
7. As the impugned order would show, the High Court distinguished the
judgment rendered in Sun City Trade Agency (supra), on the ground that the
said decision dealt with a situation wherein the exemption notification
pertaining to stainless steel flats, ingots and billets were exempted from
tax on the conditions indicated in the notification and it had been held
therein that merely because the exemption is conditional or given subject
to fulfillment of certain conditions it does not mean that such goods would
fall outside the definition of exempted goods.
8. The learned Single Judge referred to the definition contained in
Section 2(13) of the Act which deals with exempted goods and not with
exemption of person or class as indicated in Section 8(3) of the Act, and
observed that the intention of the legislature in incorporating Section
18(1)(e) of the Act takes away the exempted goods from the purview of the
ITC and not the person or class of persons exempted under Section 8(3) and
the intention of the legislature was not to include exempted goods in the
category of exempted persons as mentioned in Section 18(1)(e) of the Act,
and hence, it was demonstrable that the goods and dealers are treated
separately and the same was also evident from the provision of Section 5 of
the Act.
9. As is evident, the High Court further proceeded to opine that the
goods included in Schedule-II were entitled for ITC inasmuch as the said
conditions indicated for exemption related to Self-Help Groups and those
who had been registered with the Khadi and Village Industries Commission or
Rajasthan Khadi and Village Industries Board by the notifications S.O. 376
and S.O. 378 issued on 09.03.2007 wherein a specific stipulation had been
made to the extent that no input tax credit shall be claimed by such
dealers in respect of purchase of raw materials used for manufacture of
aforesaid goods. Thereafter, the High Court proceeded to observe:-
“If the persons included in Schedule-II were not entitled to claim ITC,
there was no reason to include the said conditions for the above noted
persons. Apparently, it is the sale of goods made by person or persons
included in Schedule-II, which is exempt and not the goods manufactured by
them, whereas, for denying ITC, the requirement is that of ‘exempted
goods’.”

10. Being of this view the learned Single Judge held that:-
“In view of express language of Section 18(1)(e) of the Act, notifications
S.O. 371 and S.O. 372 read with S.O. 377, the petitioner who is a
manufacturer of A.C. Sheets is entitled to avail ITC and the authorities
below were not justified in denying Input Tax Credit to the petitioner
based on interpretation put by them on inclusion of the petitioner in
Schedule-II under Section 8(3A) and notification S.O. 377 dated 09.03.2007
issued under Section 8(3) of the Act.”

11. The expression of the said view and the ultimate setting aside of the
orders of the Court below, as stated earlier, is the subject matter of
assail in these appeals.

12. We have heard Mr. Shovan Mishra and Mr. Milind Kumar, learned counsel
for the appellant and Mr. Paras Kuhad, learned senior counsel for the
respondent.

13. To appreciate the controversy at hand, it is necessary to scrutinize
the various provisions of the Act and the notifications that have been
issued from time to time. Section 2(13) and 2(15) define “exempted goods”
and “goods” respectively, and they are extracted below:-
“Section 2(13) “Exempted goods” means any goods exempted from tax in
accordance with the provisions of this Act;

xxx xxx xxx
Section 2(15) “goods” means all kinds of movable property, whether tangible
or intangible, other than newspapers, money, actionable claims, stocks,
shares and securities, and includes materials, articles and commodities
used in any form in the execution of works contract, livestock and all
other things attached to or forming part of the land which is agreed to be
served before sale or under the contract of sale.”

14. Section 8 deals with exemption of tax and Section 18 lays down the
method, the manner and the conditions prescribed for availing the input tax
credit. Section 8 and the relevant portion of Section 18 are reproduced
below:-

“Section 8 – Exemption of tax –

(1) The goods specified in the Schedule-I shall be exempt from tax,
subject to such conditions as may be specified therein.

(2) Subject to such conditions as it may impose, the State Government
may, if it considers necessary so to do in the public interest, by
notification in the Official Gazette, add to or omit from, or otherwise
amend or modify the Schedule-I, prospectively or retrospectively, and
thereupon the Schedule shall be deemed to have been amended accordingly.

(3) The State Government in the public interest, by notification in the
Official Gazette, may exempt whether prospectively or retrospectively from
tax the sale or purchase by any person or class of persons as mentioned in
Schedule-II, without any condition or with such condition as may be
specified in the notification.

(3A) Subject to such conditions as it may impose, the State Government
may, if it considers necessary so to do in the public interest, by
notification in the Official Gazette, add to or omit from, or otherwise
amend or modify the Schedule-II, prospectively or retrospectively, and
thereupon the Schedule shall be deemed to have been amended accordingly.

(4) The State Government may, if it considers necessary in the public
interest so to do, notify grant of exemption from payment of whole of tax
payable under this Act in respect of any class of sales or purchases for
the purpose of promoting the scheme of Special Economic Zones or promoting
exports, subject to such conditions as may be laid down in the
notification.

(5) Every notification issued under this section shall be laid, as soon
as may be after it is so issued, before the House of the State Legislature,
while it is in session for a period of not less than 30 days, which may
comprised in one session or in two successive sessions and if before the
expiry of the sessions and if before the expiry of the sessions in which it
is so laid or of the session immediately following the House of the State
Legislature makes any modification in such notification or resolves that
any such notification should not be issued, such notification thereafter
have effect only in such modified form or be of no effect, as the case may
be, so however, that any such modification or annulment shall be without
prejudice to the validity of anything previously done thereunder.”

Section 18 – Input Tax Credit:-
(1) Input tax credit shall be allowed, to registered dealers, other than
the dealers covered by sub-section (2) of Section 3 or Section 5, in
respect of purchase of any taxable goods made within the State from a
registered dealer to the extent and in such manner as may be prescribed,
for the purpose of :-

(a) sale within the State of Rajasthan or;

(b) sale in the course of Inter-State trade and commerce; or

(c) sale in the course of export outside the territory of India; or

(d) being used as packing material of goods, other than exempted goods,
for sale; or

(e) being used as raw material except those as may be notified by the
State Government in the manufacture of goods other than exempted goods, for
sale within the State or in the course of Inter-State trade or commerce; or

(f) ........

(g) ........”

15. As has been stated earlier, the High Court has referred to various
notifications. The notification dated 16th March, 2005 was issued under
Section 15 of the Rajasthan Sales Tax Act, 1994. It is as under:-
“Notification dated 16.03.2005 under the Act of 1994:-

S. No. 1874; F.4(78)FD/Tax/2004-168 dated 16.03.2005

In exercise of the powers conferred by section 15 of the Rajasthan
Sales Tax Act 1994 (Rajasthan Act No. 22 of 1995) and in supersession of
this Department’s Notification No. F.4/(68)FD/Tax-Div/99-271 (S.No. 1147),
dated, January 24, 2000 (as amended from time to time), the State
Government being of the opinion that it is expedient in the public interest
so to do, hereby exempts form tax the sale of asbestos cement sheets and
bricks, manufactured in the State by an industrial unit having fly ash as
its main raw material on the following conditions, namely:-

that such fly ash shall constitute twenty five percent or more in the
contents by weight of such asbestos cement sheets and bricks; and

that such unit commences commercial production by 31.12.2006.

This notification shall remain in force upto 23.1.2010.”

16. The said notification as mentioned therein was to remain in force
upto 23.1.2010. When the said notification was in vogue another
notification dated 1.6.2006 was issued under Section 8 of the 2003 Act. The
said notification is as under:-
“Notification
Jaipur, Dated : 01.06.2006

In exercise of the powers conferred by sub-section (2) of Section 8 of the
Rajasthan Value Added Tax Act, 2003 (Rajasthan Act No. 4 of 2003), the
State Government being of the opinion that it is expedient in the public
interest so to do, hereby makes the following further amendments is
SCHEDULE-I appended to the said Act; namely :-
AMENDMENTS

After the existing S.No. 60 and before S.No. 61, the following new S. No.
and entries thereto shall be inserted, namely :-

”

17. On 05.07.2006 another notification was issued in exercise of the
powers conferred by sub-section (2) of Section 8 of the 2003 Act. On
09.03.2007, S.O. 371 was issued by the Finance Department (Tax Division)
vide which S. No. 68A from Schedule-I appended to the Act (2) deleted. May
it be noted that S. No. 60A was substituted by notification dated
05.07.2006 which has been referred to hereinbefore.

18. The notification dated 09.03.2007, S.O. 372 was issued by the Finance
Department (Tax Division) and the said department also issued another
notification on the same day which is relevant. Both the notifications are
reproduced below:-

“Notification dated 09.03.2007 S.O. 372:-
FINANCE DEPARTMENT
(TAX DIVISION)

NOTIFICATION
Jaipur, March 9, 2007

S.O. 372 – In exercise of the powers conferred by sub-section (3A) of
Section 8 of the Rajasthan Value Added Tax Act, 2003 (Rajasthan Act No. 4
of 2003), the State Government being of the opinion that it is expedient in
the public interest so to do, hereby makes the following amendments is
Schedule-II appended to the said Act, namely :-

AMENDMENTS

In Schedule-II appended to the said Act:-

(1) ........
(2) After the existing S.No.18 and entries thereto the following new
S.Nos. and entries thereto shall be added; namely :-

|19 |Self Help Group | |
|20 |Manufacturers of asbestos cement sheets and| |
| |bricks | |

Notification dated 09.03.2007, S.O. 377

“FINANCE DEPARTMENT
(TAX DIVISION)

NOTIFICATION
Jaipur, March 9, 2007

S.O. 377 – In exercise of the powers conferred by sub-section (3) of
Section 8 of the Rajasthan Value Added Tax Act, 2003 (Rajasthan Act No. 4
of 2003), the State Government being of the opinion that it is expedient in
the public interest so to do, hereby exempts from payment of tax, the sale
of asbestos cement sheets and bricks manufacturers in the State having
contents of fly ash twenty five per cent or more by weight, on the
following conditions, namely :-

(1) that the goods shall be entered in the registration certificate of
the selling dealer;

(2) that the exemption shall be for such goods manufactured by the dealer
who commenced commercial production in the State by 31.12.2006; and

(3) that the exemption shall be available up to 23.01.2010.”

19. As we find the High Court in the impugned order has referred to the
provisions of the Act and the notifications. On a careful scrutiny of the
order passed by the High Court, it is perceivable that it has proceeded on
the foundation that there is a distinction between the exempted units and
exempted sales, and finally manufactured sales area, or to put it
differently, the final transactions of goods or a sale when it takes place.
Thus, the distinction as laid down by the learned Single Judge is based on
exemption of unit and exemption on transaction or sale.
20. On an analysis of the scheme of the Act, it is manifest that there is
difference between exempted goods, i.e., goods on which no Value Added Tax
is payable and are, therefore, not taxable and other cases where a
particular transaction when it satisfies specific condition is not taxable.
In this regard reference to the authority in State of Tamil Nadu v. M.K.
Kandaswami & others[4], would be seemly, for this Court had adverted to
three distinct concepts; taxable persons, taxable goods and taxable events
and how they were distinguished. It was observed in the said case that if
the said distinction is overlooked, it may lead to serious error in
construction and application of a taxing provision or enactment. In the
case of taxable or non-taxable/exempted goods, the focal point and the
focus is on the character and class of goods in relation to their
exigibility. Referring to the provisions of Section 7-A of the Madras
General Sales Tax, 1959, the expression in the Act “taxable goods”, it was
opined as regards the goods mentioned in the First Schedule of the Act that
the sale and purchase was liable to tax at the rate and at the point
specified therein. It was further held that the goods which were exempt
were not taxable goods and, therefore, could not be brought to charge and
taxed. However, notwithstanding the goods being taxable goods, there could
be circumstances in a given case by reason of which a particular sale or
purchase would not attract sales tax.
21. Be it noted, in the said decision, Section 7-A of the Madras General
Sales Tax Act, 1959, which reads as under, fell for consideration:-
“(1) Every dealer who in the course of his business purchases from a
registered dealer or from any other person, any goods (the sale or purchase
of which is liable to tax under this Act) in circumstances in which no tax
is payable under Sections 3, 4 or 5, as the case may be, and either-

(a) consumes such goods in the manufacture of other goods for sale or
otherwise; or

(b) disposes of such goods in any manner other than by way of sale in the
State; or

(c) dispatches them to a place outside the State except as a direct result
of sale or purchase in the course of inter-State trade or commerce, shall
pay tax on the turnover relating to the purchase aforesaid at the rate
mentioned in Sections 3, 4 or 5 as the case may be whatever be the quantum
of such turnover in a year:

Provided that a dealer (other than a casual trader or agent of a non-
resident dealer) purchasing goods the sale of which is liable to tax under
sub-section (1) of Section 3 shall not be liable to pay tax under this sub-
section, if his total turnover for a year is less than twenty-five thousand
rupees.”

Section 7-A, it was observed, provided for such situations where the
goods were taxable goods in the hands of the purchasing dealer, if any of
the conditions (a), (b) and (c) of sub-section (1) of Section 7-A was
satisfied. In the facts of the case, it was noticed that the goods in
question were chargeable to tax as they were taxable goods under Schedule
I, but exemption had been granted. Reversing the decision of the High
Court, reference was made to an earlier decision of the Supreme Court in
Ganesh Prasad Dixit Vs. Commissioner of Sales Tax[5] and a decision of
Kerala High Court in Malabar Fruit Products Co. Vs. Sales Tax Officer,
Palai[6] (1972) 30 STC 537 (Ker).
22. With reference to the decision in Ganesh Prasad Dixit (supra) and the
language in Madhya Pradesh General Tax Act, 1959, it was observed:
“29. The impugned Section 7-A is based on Section 7 of the Madhya Pradesh
Act. Although the language of these two provisions is not completely
identical, yet their substance and object are the same. Instead of the
longish phrase, “the goods, the sale or purchase of which is liable to tax
under this Act” employed in Section 7-A of the Madras Act, Section 7 of the
Madhya Pradesh Act conveys the very connotation by using the convenient,
terse expression, “taxable goods”. The ratio decidendi of Ganesh Prasad
(supra) is therefore, an apposite guide for construing Section 7-A.
Unfortunately, that decision, it seems, was not brought to the notice of
the learned Judges of the High Court.”

23. With reference to Kerala General Sales Tax, 1963, this Court noted
the following reasoning given by the Single Judge of the Kerala High Court
:-
“32. Holding that Section 5-A, was valid and intra vires the State
Legislature, the learned Judge explained the scheme of the section, thus:-

Though normally a sale by a registered dealer or by a dealer attracts
tax, there may be circumstances under which the seller may not be liable
as, for example, when his turnover is below the specified minimum. In such
cases the “goods” are liable to be taxed, but the sales takes place in
circumstances in which no tax is payable at the point in which tax is
levied under the Act. If the goods are not available in the State for
subsequent taxation by reason of one or other of the circumstances
mentioned in clauses (a), (b) and (c) of Section 5A(1) of the Act then the
purchaser is sought to be made liable under Section 5A.

* * *

Another instance I can conceive of is a case of a dealer selling
agricultural or horticultural produce grown by him or grown in any land in
which he has interested, whether as owner, usufructuary mortgagee, tenant
or otherwise. From the definition of “turnover” in Section 2 (xxvii) of
the Act it is evident that the proceeds of such sale would be excluded from
the turnover of a person who sells goods produced by him by manufacture,
agriculture, horticulture or otherwise, though merely by such sales he
satisfies the definition of ‘dealer’ in the Act. Thus, such a person
selling such produce is treated as a dealer within the meaning of the Act
and the sales are of goods which are taxable under the Act but when he
sells these goods, it is not part of his turnover. Therefore, it is a case
of a dealer selling goods liable to tax under the Act in circumstances in
which no tax is payable under the Act. In such a case, the purchaser is
sought to be taxed under Section 5A provided the conditions are satisfied.
The case of growers selling goods to persons to whom Section 5A thus
applies is covered by this example.”

24. In CST v. Pine Chemicals Limited[7], this Court posed the following
question:-
“7. The simple question before us is whether the Bench which decided Pine
Chemicals is right in holding that the benefit of the said sub-section is
available even where the goods are exempted with reference to industrial
unit and for a specified period, viz., period of five years from the date
the relevant unit goes into production. In other words, the question is
whether an exemption of the nature granted under Government Order No. 159
dated 26-03-1971 is an exemption available “only in specified circumstances
or under specified conditions” within the meaning of the Explanation to
Section 8(2-A), as contended by the State or is it a case where the goods
are exempt from the tax ‘generally’ within the meaning of Section 8(2-A),
as contended by the respondents/dealers? We are of the opinion that the
respondents/dealers’ contention cannot be accepted in view of the clear and
unambiguous language of the sub-section.”

25. Thus, the Court drew a distinction between goods, generally exempt
from tax after noticing that Section 8(2A) of the Central Sales Tax Act
specifically uses the expression “exempt from tax generally or subject to
tax generally at a rate which is lower than 4%”, and accordingly observed
that when the goods are exempt under certain specified circumstances alone,
the exemption is not a general, but a conditional one. In such
circumstances, it cannot be said that the goods are exempt from tax
generally for the exemption may vary from unit to unit and would depend
upon date of commencement of production of each unit. Reference was made
to earlier decision in Indian Aluminium Cables Limited v. State of
Haryana[8], wherein it has been held that exemption from tax when conferred
by conditions or in certain circumstances, there was no exemption from tax
generally.
26. At this juncture, we are required to understand the effect of the
principles spelt out in above decisions especially in K.N. Kandaswami and
Others (supra) on the facts of the present case. There is no doubt that a
distinction has to be drawn between exempted goods, which means complete
exemption for the specified goods, and when the goods are taxable goods,
but a transaction or a person is granted exemption. When the goods are
exempt, there would be no taxable transactions or exemption to a taxable
person. In other cases, goods might be taxable, but exemption could be
given in respect of a taxable event, i.e., exemption to specified
transactions from liability of tax or exemption to a taxable person, though
the goods are taxable. Such exemptions operate in circumscribed boundaries
and not as expansive as in the case of taxable goods. Exemptions with
reference to taxable events or taxable persons would not exempt the goods
as such, for a subsequent transaction or when the goods are sold or
purchased by a non-specified person, the subsequent transaction or the
taxable person would be liable to pay tax. It is, in this context, it has
been highlighted by the respondent and, in our opinion, absolutely
correctly that Section 4 of the Act provides for levy of tax in a situation
where the goods, which were not exempted but could otherwise not be
subjected to tax on account of exemption granted to a person or to a
transaction. The goods remain taxable goods through exemption stands
granted to a particular individual or a specified transaction. That being
so, all subsequent transactions in those goods, which are not specifically
exempt and not undertaken by an exempted person could be subjected to
taxation. Therefore, the appellant though exempted from payment of tax,
subsequent transactions of sale of asbestos cement sheets would be taxable.
The transaction of sale by the manufacturer/dealer covered by the exemption
notifications issued under Section 8(3) of the Act would be protected or an
exempted transaction, but the goods not being exempted goods would be
taxable and could be taxed on the happening of a taxable or charging event.
It is simply because the goods are not exempt from tax or exempted goods,
but are taxable. As a logical corollary it follows that the Value Added
Tax would have to be paid on the taxable goods in a subsequent transaction
by the purchasing dealer.
27. As a sequitur, we are obliged to observe that if the contention of
the appellant is to be accepted, the respondent though covered by exemption
notification under Section 8(3) of the Act could be at a disadvantage
because finally when the subsequent sale is made by a non-exempted dealer
or tax stands paid on the non-exempted transfer, the goods, i.e., asbestos
cement sheet, would suffer the tax on the entire sale consideration. This
would place an exempted manufacturer-dealer at a disadvantageous position
and make his products uncompetitive inspite of the exemption notifications
under Section 8(3) of the Act.
28. In the context of the issue in question, the respondents have rightly
highlighted that where the appellant wanted to restrict the benefit of ITC
when a particular dealer or transaction was exempted, it was so stipulated
in the exemption notification issued under Sections 8(3) and 8(4) of the
Act. Such notifications admittedly do exist and were issued by the
appellant. They are also right in drawing support from the note sheets
relating to Finance Bill 2007 as also the communications issued by
Commissioner of Commercial Taxes. The note sheets and the communication of
the Commissioner draw a clear distinction between exemptions when the goods
were not taxable as they do fall under the First Schedule and when an
exemption was granted under the Second Schedule, which relates to specified
transaction of sale or exempted dealers even when the goods were taxable
goods. In latter cases, subsequent dealers undertaking sale of goods would
be liable to pay tax on sale of such products. There can be no shadow of
doubt that subsequent dealers undertaking sale of goods manufactured and
sold by the respondent company would be liable to pay tax on such products.
29. In view of the aforesaid premised reasons, we do not find any merit
in these appeals and accordingly they stand dismissed. There shall be no
order as to costs.

.............................J.
[Dipak Misra]

..........................., J.
[Prafulla C. Pant]
New Delhi
November 24, 2015
-----------------------
[1] (2006) 147 STC 405
[2] 23 Tax-world 285
[3] (1970) 2 SCC 192
[4] (1975) 4 SCC 745
[5] (1969) 1 SCC 492
[6] (1972) 30 STC 537 (Ker)
[7] (1995) 1 SCC 58
[8] (1976) 4 SCC 27

-----------------------
|“60A. |Asbestos cement |Subject to the condition|
| |sheets and bricks |of entry in Registration|
| |having contents of |Certificate of the |
| |fly ash 25% or more |selling dealer.” |
| |by weight. | |

-----------------------
28

Thursday, December 17, 2015

whether retention of stridhan by the husband or any other family members is a continuing offence or not. There can be no dispute that wife can file a suit for realization of the stridhan but it does not debar her to lodge a criminal complaint for criminal breach of trust. We must state that was the situation before the 2005 Act came into force. In the 2005 Act, the definition of “aggrieved person” clearly postulates about the status of any woman who has been subjected to domestic violence as defined under Section 3 of the said Act. “Economic abuse” as it has been defined in Section 3(iv) of the said Act has a large canvass. Section 12, relevant portion of which have been reproduced hereinbefore, provides for procedure for obtaining orders of reliefs. It has been held in Inderjit Singh Grewal (supra) that Section 498 of the Code of Criminal Procedure applies to the said case under the 2005 Act as envisaged under Sections 28 and 32 of the said Act read with Rule 15(6) of the Protection of Women from Domestic Violence Rules, 2006. We need not advert to the same as we are of the considered opinion that as long as the status of the aggrieved person remains and stridhan remains in the custody of the husband, the wife can always put forth her claim under Section 12 of the 2005 Act. We are disposed to think so as the status between the parties is not severed because of the decree of dissolution of marriage. The concept of “continuing offence” gets attracted from the date of deprivation of stridhan, for neither the husband nor any other family members can have any right over the stridhan and they remain the custodians. For the purpose of the 2005 Act, she can submit an application to the Protection Officer for one or more of the reliefs under the 2005 Act. In the present case, the wife had submitted the application on 22.05.2010 and the said authority had forwarded the same on 01.06.2010. In the application, the wife had mentioned that the husband had stopped payment of monthly maintenance from January 2010 and, therefore, she had been compelled to file the application for stridhan. Regard being had to the said concept of “continuing offence” and the demands made, we are disposed to think that the application was not barred by limitation and the courts below as well as the High Court had fallen into a grave error by dismissing the application being barred by limitation. Consequently, the appeal is allowed and the orders passed by the High Court and the courts below are set aside. The matter is remitted to the learned Magistrate to proceed with the application under Section 12 of the 2005 Act on merits.

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1545 OF 2015
(@ SLP(Crl) No. 10223 OF 2014)

Krishna Bhatacharjee ... Appellant

Versus

Sarathi Choudhury and Anr. ... Respondents

J U D G M E N T

Dipak Misra, J.

Leave granted.

2. The appellant having lost the battle for getting her Stridhan back
from her husband, the first respondent herein, before the learned
Magistrate on the ground that the claim preferred under Section 12 of the
Protection of Women from Domestic Violence Act, 2005 (for short, ‘the 2005
Act’) was not entertainable as she had ceased to be an “aggrieved person”
under Section 2(a) of the 2005 Act and further that the claim as put forth
was barred by limitation; preferred an appeal before the learned Additional
Sessions Judge who concurred with the view expressed by the learned
Magistrate, and being determined to get her lawful claim, she, despite the
repeated non-success, approached the High Court of Tripura, Agartala in
Criminal Revision No. 19 of 2014 with the hope that she will be victorious
in the war to get her own property, but the High Court, as is perceivable,
without much analysis, declined to interfere by passing an order with
Spartan austerity possibly thinking lack of reasoning is equivalent to a
magnificent virtue and that had led the agonised and perturbed wife to
prefer the present appeal, by special leave.

3. Prior to the narration of facts which are essential for adjudication
of this appeal, we may state that the 2005 Act has been legislated, as its
Preamble would reflect, to provide for more effective protection of the
rights of the women guaranteed under the Constitution who are victims of
violence of any kind occurring within the family and for matters connected
therewith or incidental thereto. The 2005 Act is a detailed Act. The
dictionary clause of the 2005 Act, which we shall advert to slightly at a
later stage, is in a broader spectrum. The definition of “domestic
violence” covers a range of violence which takes within its sweep “economic
abuse” and the words “economic abuse”, as the provision would show, has
many a facet.

4. Regard being had to the nature of the legislation, a more sensitive
approach is expected from the courts where under the 2005 Act no relief can
be granted, it should never be conceived of but, before throwing a petition
at the threshold on the ground of maintainability, there has to be an
apposite discussion and thorough deliberation on the issues raised. It
should be borne in mind that helpless and hapless “aggrieved person” under
the 2005 Act approaches the court under the compelling circumstances. It is
the duty of the court to scrutinise the facts from all angles whether a
plea advanced by the respondent to nullify the grievance of the aggrieved
person is really legally sound and correct. The principle “justice to the
cause is equivalent to the salt of ocean” should be kept in mind. The court
of law is bound to uphold the truth which sparkles when justice is done.
Before throwing a petition at the threshold, it is obligatory to see that
the person aggrieved under such a legislation is not faced with a situation
of non-adjudication, for the 2005 Act as we have stated is a beneficial as
well as assertively affirmative enactment for the realisation of the
constitutional rights of women and to ensure that they do not become
victims of any kind of domestic violence.

5. Presently to the narration of the facts. The marriage between the
appellant and the respondent No. 1 was solemnised on 27.11.2005 and they
lived as husband and wife. As the allegations proceed, there was demand of
dowry by the husband including his relatives and, demands not being
satisfied, the appellant was driven out from the matrimonial home. However,
due to intervention of the elderly people of the locality, there was some
kind of conciliation as a consequence of which both the husband and the
wife stayed in a rented house for two months. With the efflux of time, the
husband filed a petition seeking judicial separation before the Family
Court and eventually the said prayer was granted by the learned Judge,
Family Court. After the judicial separation, on 22.5.2010 the appellant
filed an application under Section 12 of the 2005 Act before the Child
Development Protection Officer (CDPO), O/O the District Inspector, Social
Welfare & Social Education, A.D. Nagar, Agartala, Tripura West seeking
necessary help as per the provisions contained in the 2005 Act. She sought
seizure of Stridhan articles from the possession of the husband. The
application which was made before the CDPO was forwarded by the said
authority to the learned Chief Judicial Magistrate, Agartala Sadar, West
Tripura by letter dated 1.6.2010. The learned Magistrate issued notice to
the respondent who filed his written objections on 14.2.2011.

6. Before the learned Magistrate it was contended by the respondent that
the application preferred by the wife was barred by limitation and that she
could not have raised claim as regards Stridhan after the decree of
judicial separation passed by the competent court. The learned Magistrate
taking into consideration the admitted fact that respondent and the
appellant had entered into wedlock treated her as an “aggrieved person”,
but opined that no “domestic relationship” as defined under Section 2(f) of
the 2005 Act existed between the parties and, therefore, wife was not
entitled to file the application under Section 12 of the 2005 Act. The
learned Magistrate came to hold that though the parties had not been
divorced but the decree of judicial separation would be an impediment for
entertaining the application and being of this view, he opined that no
domestic relationship subsisted under the 2005 Act and hence, no relief
could be granted. Be it stated here that before the learned Magistrate,
apart from herself, the appellant examined three witnesses and the husband
had examined himself as DW-1. The learned Magistrate while dealing with
the maintainability of the petition had noted the contentions of the
parties as regards merits, but has really not recorded any finding thereon.

7. The aggrieved wife preferred criminal appeal No. 6(1) of 2014 which
has been decided by the learned Additional Sessions Judge, Agartala
holding, inter alia, that the object of the 2005 Act is primarily to give
immediate relief to the victims; that as per the decision of this Court in
Inderjit Singh Grewal v. State of Punjab[1] that Section 468 of the Code of
Criminal Procedure applies to the proceedings under the 2005 Act and,
therefore, her application was barred by time. Being of this view, the
appellate court dismissed the appeal.
8. On a revision being preferred, the High Court, as is demonstrable
from the impugned order, after referring to the decision in Inderjit Singh
Grewal (supra), has stated that the wife had filed a criminal case under
Section 498(A) IPC in the year 2006 and the husband had obtained a decree
of judicial separation in 2008, and hence, the proceedings under the 2005
Act was barred by limitation. That apart, it has also in a way expressed
the view that the proceedings under the 2005 Act was not maintainable.
9. In our prefatory note, we have stated about the need of sensitive
approach to these kinds of cases. There can be erroneous perception of law,
but as we find, neither the learned Magistrate nor the appellate court nor
the High Court has made any effort to understand and appreciate the stand
of the appellant. Such type of cases and at such stage should not travel to
this Court. We are compelled to say so as we are of the considered opinion
that had the appellate court and the High Court been more vigilant, in all
possibility, there could have been adjudication on merits. Be that as it
may.
10. The facts that we have enumerated as regards the “status of the
parties”, “judicial separation” and “the claim for Stridhan” are not in
dispute. Regard being had to the undisputed facts, it is necessary to
appreciate the scheme of the 2005 Act. Section 2(a) defines “aggrieved
person” which means any woman who is, or has been, in a domestic
relationship with the respondent and who alleges to have been subjected to
any act of domestic violence by the respondent. Section 2(f) defines
“domestic relationship” which means a relationship between two persons who
live or have, at any point of time, lived together in a shared household,
when they are related by consanguinity, marriage, or through a relationship
in the nature of marriage, adoption or are family members living together
as a joint family. Section 2(g) defines the term “domestic violence” which
has been assigned and given the same meaning as in Section 3. Sub-
section (iv) of Section 3 deals with “economic abuse”. As in the facts at
hand, we are concerned with the “economic abuse”, we reproduce Section
3(iv) which reads as follows:-
“Section 3. Definition of domestic violence.
(iv) "economic abuse" includes-

(a) deprivation of all or any economic or financial resources to which the
aggrieved person is entitled under any law or custom whether payable under
an order of a court or otherwise or which the aggrieved person requires out
of necessity including, but not limited to, household necessities for the
aggrieved person and her children, if any, stridhan, property, jointly or
separately owned by the aggrieved person, payment of rental related to the
shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable
or immovable, valuables, shares, securities, bonds and the like or other
property in which the aggrieved person has an interest or is entitled to
use by virtue of the domestic relationship or which may be reasonably
required by the aggrieved person or her children or her stridhan or any
other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or
facilities which the aggrieved person is entitled to use or enjoy by virtue
of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission,
commission or conduct of the respondent constitutes "domestic violence"
under this section, the overall facts and circumstances of the case shall
be taken into consideration.”

11. Section 8(1) empowers the State Government to appoint such number of
Protection Officers in each district as it may consider necessary and also
to notify the area or areas within which a Protection Officer shall
exercise the powers and perform the duties conferred on him by or under the
2005 Act. The provision, as is manifest, is mandatory and the State
Government is under the legal obligation to appoint such Protection
Officers. Section 12 deals with application to Magistrate. Sub-sections
(1) and (2) being relevant are reproduced below:-
“Section 12. Application to Magistrate.-(1) An aggrieved person or a
Protection Officer or any other person on behalf of the aggrieved person
may present an application to the Magistrate seeking one or more reliefs
under this Act: Provided that before passing any order on such application,
the Magistrate shall take into consideration any domestic incident report
received by him from the Protection Officer or the service provider.

(2) The relief sought for under sub-section (1) may include a relief for
issuance of an order for payment of compensation or damages without
prejudice to the right of such person to institute a suit for compensation
or damages for the injuries caused by the acts of domestic violence
committed by the respondent: Provided that where a decree for any amount as
compensation or damages has been passed by any court in favour of the
aggrieved person, the amount, if any, paid or payable in pursuance of the
order made by the Magistrate under this Act shall be set off against the
amount payable under such decree and the decree shall, notwithstanding
anything contained in the Code of Civil Procedure, 1908 (5 of 1908), or any
other law for the time being in force, be executable for the balance
amount, if any, left after such set off.”

12. Section 18 deals with passing of protection orders by the Magistrate.
Section 19 deals with the residence orders and Section 20 deals with
monetary reliefs. Section 28 deals with procedure and stipulates that all
proceedings under Sections 12, 18, 19, 20, 21, 22 and 23 and offences under
Section 31 shall be governed by the provisions of the Code of Criminal
Procedure, 1973. Section 36 lays down that the provisions of the 2005 Act
shall be in addition to, and not in derogation of the provisions of any
other law, for the time being in force.
13. Having scanned the anatomy of the 2005 Act, we may now refer to a few
decisions of this Courts that have dealt with the provisions of the 2005
Act. In V.D. Bhanot v. Savita Bhanot[2] the question arose whether the
provisions of the 2005 Act can be made applicable in relation to an
incident that had occurred prior to the coming into force of the said Act.
Be it noted, the High Court had rejected the stand of the respondent
therein that the provisions of the 2005 Act cannot be invoked if the
occurrence had taken place prior to the coming into force of the 2005 Act.
This Court while dealing with the same referred to the decision rendered in
the High Court which after considering the constitutional safeguards under
Article 21 of the Constitution vis-à-vis the provisions of Sections 31 and
33 of the 2005 Act and after examining the Statement of Objects and Reasons
for the enactment of the 2005 Act, had held that it was with the view of
protecting the rights of women under Articles 14, 15 and 21 of the
Constitution that Parliament enacted the 2005 Act in order to provide for
some effective protection of rights guaranteed under the Constitution to
women, who are victims of any kind of violence occurring within the family
and matters connected therewith and incidental thereto, and to provide an
efficient and expeditious civil remedy to them and further that a petition
under the provisions of the 2005 Act is maintainable even if the acts of
domestic violence had been committed prior to the coming into force of the
said Act, notwithstanding the fact that in the past she had lived together
with her husband in a shared household, but was no more living with him, at
the time when the Act came into force. After analyzing the verdict of the
High Court, the Court concurred with the view expressed by the High Court
by stating thus:-
“We agree with the view expressed by the High Court that in looking into a
complaint under Section 12 of the PWD Act, 2005, the conduct of the parties
even prior to the coming into force of the PWD Act, could be taken into
consideration while passing an order under Sections 18, 19 and 20 thereof.
In our view, the Delhi High Court has also rightly held that even if a
wife, who had shared a household in the past, but was no longer doing so
when the Act came into force, would still be entitled to the protection of
the PWD Act, 2005.”

14. In Saraswathy v. Babu[3] a two-Judge Bench, after referring to the
decision in V.D. Bhanot (supra), reiterated the principle. It has been
held therein:-
“We are of the view that the act of the respondent husband squarely comes
within the ambit of Section 3 of the DVA, 2005, which defines “domestic
violence” in wide terms. The High Court made an apparent error in holding
that the conduct of the parties prior to the coming into force of the DVA,
2005 cannot be taken into consideration while passing an order. This is a
case where the respondent husband has not complied with the order and
direction passed by the trial court and the appellate court. He also
misleads the Court by giving wrong statement before the High Court in the
contempt petition filed by the appellant wife. The appellant wife having
being harassed since 2000 is entitled for protection order and residence
order under Sections 18 and 19 of the DVA, 2005 along with the maintenance
as allowed by the trial court under Section 20(1)(d) of the DVA, 2005.
Apart from these reliefs, she is also entitled for compensation and damages
for the injuries, including mental torture and emotional distress, caused
by the acts of domestic violence committed by the respondent husband.
Therefore, in addition to the reliefs granted by the courts below, we are
of the view that the appellant wife should be compensated by the respondent
husband. Hence, the respondent is hereby directed to pay compensation and
damages to the extent of Rs 5,00,000 in favour of the appellant wife.”

15. In the instant case, as has been indicated earlier, the courts below
as well as the High Court have referred to the decision in Inderjit Singh
Grewal (supra). The said case has to be understood regard being had to the
factual exposè therein. The Court had referred to the decision in D.
Velusamy v. D. Patchaiammal[4] wherein this Court had considered the
expression “domestic relationship” under Section 2(f) of the Act and
judgment in Savitaben Somabhai Bhatiya v. State of Gujarat[5] and
distinguished the said judgments as those cases related to live-in
relationship without marriage. The Court analyzing the earlier judgments
opined that the couple must hold themselves out to society as being akin to
spouses in addition to fulfilling all other requisite conditions for a
valid marriage. The said judgments were distinguished on facts as those
cases related to live-in relationship without marriage. The Court opined
that the parties therein had got married and the decree of the civil court
for divorce subsisted and that apart a suit to declare the said judgment
and decree as a nullity was still pending consideration before the
competent court. In that background, the Court ruled that:-
“In the facts and circumstances of the case, the submission made on behalf
of Respondent 2 that the judgment and decree of a civil court granting
divorce is null and void and they continued to be the husband and wife,
cannot be taken note of at this stage unless the suit filed by Respondent 2
to declare the said judgment and decree dated 20-3-2008 is decided in her
favour. In view thereof, the evidence adduced by her particularly the
record of the telephone calls, photographs attending a wedding together and
her signatures in school diary of the child cannot be taken into
consideration so long as the judgment and decree of the civil court
subsists. On a similar footing, the contention advanced by her counsel that
even after the decree of divorce, they continued to live together as
husband and wife and therefore the complaint under the 2005 Act is
maintainable, is not worth acceptance at this stage.”
[Emphasis supplied]

16. It may be noted that a submission was advanced by the wife with
regard to the applicability of Section 468 CrPC. While dealing with the
submission on the issue of limitation, the Court opined:-

“...... in view of the provisions of Section 468 CrPC, that the complaint
could be filed only within a period of one year from the date of the
incident seem to be preponderous in view of the provisions of Sections 28
and 32 of the 2005 Act read with Rule 15(6) of the Protection of Women from
Domestic Violence Rules, 2006 which make the provisions of CrPC applicable
and stand fortified by the judgments of this Court in Japani Sahoo v.
Chandra Sekhar Mohanty, (2007) 7 SCC 394, and NOIDA Entrepreneurs Assn. v.
NOIDA, (2011) 6 SCC 508.”

17. As it appears, the High Court has referred to the same but the same
has really not been adverted. In fact, it is not necessary to advert to
the said aspect in the present case.
18. The core issue that is requisite to be addressed is whether the
appellant has ceased to be an “aggrieved person” because of the decree of
judicial separation. Once the decree of divorce is passed, the status of
the parties becomes different, but that is not so when there is a decree
for judicial separation. A three-Judge Bench in Jeet Singh and Others Vs.
State of U.P. and Others[6] though in a different context, adverted to the
concept of judicial separation and ruled that the judicial separation
creates rights and obligations. A decree or an order for judicial
separation permits the parties to live apart. There would be no obligation
for either party to cohabit with the other. Mutual rights and obligations
arising out of a marriage are suspended. The decree however, does not sever
or dissolve the marriage. It affords an opportunity for reconciliation and
adjustment. Though judicial separation after a certain period may become a
ground for divorce, it is not necessary and the parties are not bound to
have recourse to that remedy and the parties can live keeping their status
as wife and husband till their lifetime.
19. In this regard, we may fruitfully refer to the authority in Hirachand
Srinivas Managaonkar v. Sunanda[7] wherein the issue that arose for
determination was whether the husband who had filed a petition seeking
dissolution of the marriage by a decree of divorce under Section 13(1-A)(i)
of the Hindu Marriage Act, 1955 can be declined relief on the ground that
he had failed to pay maintenance for his wife and daughter despite an order
of the court. The husband was appellant before this Court and had filed an
application under Section 10 of the Hindu Marriage Act, 1955 for seeking
judicial separation on the ground of adultery on the part of the appellant.
Thereafter, the appellant presented the petition for dissolution of
marriage by decree of divorce on the ground that there has been no
resumption of cohabitation as between the parties to the marriage for a
period of more than one year after passing of the decree for judicial
separation. The stand of the wife was that the appellant having failed to
pay the maintenance as ordered by the court, the petition for divorce filed
by the husband was liable to be rejected inasmuch he was trying to get
advantage of his own wrong for getting the relief. The High Court
accepted the plea of the wife and refused to grant the prayer of the
appellant seeking divorce. It was contended before this Court that the only
condition for getting divorce under Section 13(1-A)(i) of the Hindu
Marriage Act, 1955 is that there has been no resumption of cohabitation
between the parties to the marriage for a period of one year or upwards
after the passing of the decree for judicial separation in a proceeding to
which both the spouses are parties. It was urged that if the said
condition is satisfied the court is required to pass a decree of divorce.
On behalf of the wife, the said submissions were resisted on the score that
the husband had been living in continuous adultery even after passing of
the decree of judicial separation and had reasonably failed to maintain the
wife and daughter. The Court proceeded to analyse Section 13(1-
A)(i) of the Hindu Marriage Act, 1955. Analysing the provisions at length
and speaking about judicial separation, it expressed that after the decree
for judicial separation was passed on the petition filed by the wife it was
the duty of both the spouses to do their part for cohabitation. The husband
was expected to act as a dutiful husband towards the wife and the wife was
to act as a devoted wife towards the husband. If this concept of both the
spouses making sincere contribution for the purpose of successful
cohabitation after a judicial separation is ordered then it can reasonably
be said that in the facts and circumstances of the case the husband in
refusing to pay maintenance to the wife failed to act as a husband. Thereby
he committed a “wrong” within the meaning of Section 23 of the Act.
Therefore, the High Court was justified in declining to allow the prayer of
the husband for dissolution of the marriage by divorce under Section 13(1-
A) of the Act.
20. And, the Court further stated thus:-
“... The effect of the decree is that certain mutual rights and obligations
arising from the marriage are as it were suspended and the rights and
duties prescribed in the decree are substituted therefor. The decree for
judicial separation does not sever or dissolve the marriage tie which
continues to subsist. It affords an opportunity to the spouse for
reconciliation and readjustment. The decree may fall by a conciliation of
the parties in which case the rights of the respective parties which float
from the marriage and were suspended are restored. Therefore the impression
that Section 10(2) vests a right in the petitioner to get the decree of
divorce notwithstanding the fact that he has not made any attempt for
cohabitation with the respondent and has even acted in a manner to thwart
any move for cohabitation does not flow from a reasonable interpretation of
the statutory provisions. At the cost of repetition it may be stated here
that the object and purpose of the Act is to maintain the marital
relationship between the spouses and not to encourage snapping of such
relationship.”

21. It is interesting to note that an issue arose whether matrimonial
offence of adultery had exhausted itself when the decree for judicial
separation was granted and, therefore, it cannot be said that it is a new
fact or circumstance amounting to wrong which will stand as an obstacle in
the way of the husband to obtain the relief which he claims in the divorce
proceedings. Be it stated that reliance was placed on the decision of
Gujarat High Court in Bai Mani v. Jayantilal Dahyabhai[8]. This Court did
not accept the contention by holding that living in adultery on the part of
the husband is a continuing matrimonial offence, and it does not get frozen
or wiped out merely on passing of a decree for judicial separation which
merely suspends certain duties and obligations of the spouses in connection
with their marriage and does not snap the matrimonial tie. The Court ruled
that the decision of the Gujarat High Court does not lay down the correct
position of law. The Court approved the principle stated by the Madras High
Court in the case of Soundarammal v. Sundara Mahalinga Nadar[9] in which a
Single Judge had taken the view that the husband who continued to live in
adultery even after decree at the instance of the wife could not succeed in
a petition seeking decree for divorce and that Section 23(1)(a) barred the
relief.
22. In view of the aforesaid pronouncement, it is quite clear that there
is a distinction between a decree for divorce and decree of judicial
separation; in the former, there is a severance of status and the parties
do not remain as husband and wife, whereas in the latter, the relationship
between husband and wife continues and the legal relationship continues as
it has not been snapped. Thus understood, the finding recorded by the
courts below which have been concurred by the High Court that the parties
having been judicial separated, the appellant wife has ceased to be an
“aggrieved person” is wholly unsustainable.
23. The next issue that arises for consideration is the issue of
limitation. In the application preferred by the wife, she was claiming to
get back her stridhan. Stridhan has been described as saudayika by Sir
Gooroodas Banerjee in “Hindu Law of Marriage and Stridhan” which is as
follows:-
“First, take the case of property obtained by gift. Gifts of affectionate
kindred, which are known by the name of saudayika stridhan, constitute a
woman’s absolute property, which she has at all times independent power to
alienate, and over which her husband has only a qualified right, namely,
the right of use in times of distress.”

24. The said passage, be it noted, has been quoted Pratibha Rani v. Suraj
Kumar and Another[10]. In the said case, the majority referred to the
stridhan as described in “Hindu Law” by N.R. Raghavachariar and Maine’s
“Treatise on Hindu Law”. The Court after analyzing the classical texts
opined that:-
”It is, therefore, manifest that the position of stridhan of a Hindu
married woman’s property during coverture is absolutely clear and
unambiguous; she is the absolute owner of such property and can deal with
it in any manner she likes — she may spend the whole of it or give it away
at her own pleasure by gift or will without any reference to her husband.
Ordinarily, the husband has no right or interest in it with the sole
exception that in times of extreme distress, as in famine, illness or the
like, the husband can utilise it but he is morally bound to restore it or
its value when he is able to do so. It may be further noted that this right
is purely personal to the husband and the property so received by him in
marriage cannot be proceeded against even in execution of a decree for
debt.”

25. In the said case, the Court ruled:-
“... a pure and simple entrustment of stridhan without creating any rights
in the husband excepting putting the articles in his possession does not
entitle him to use the same to the detriment of his wife without her
consent. The husband has no justification for not returning the said
articles as and when demanded by the wife nor can he burden her with losses
of business by using the said property which was never intended by her
while entrusting possession of stridhan. On the allegations in the
complaint, the husband is no more and no less than a pure and simple
custodian acting on behalf of his wife and if he diverts the entrusted
property elsewhere or for different purposes he takes a clear risk of
prosecution under Section 406 of the IPC. On a parity of reasoning, it is
manifest that the husband, being only a custodian of the stridhan of his
wife, cannot be said to be in joint possession thereof and thus acquire a
joint interest in the property.”

26. The decision rendered in the said case was referred for a fresh look
by a three-Judge Bench. The three-Judge Bench Rashmi Kumar (Smt) v. Mahesh
Kumar Bhada[11] while considering the issue in the said case, ruled that :-

“9. A woman’s power of disposal, independent of her husband’s control, is
not confined to saudayika but extends to other properties as well. Devala
says: “A woman’s maintenance (vritti), ornaments, perquisites (sulka),
gains (labha), are her stridhana. She herself has the exclusive right to
enjoy it. Her husband has no right to use it except in distress….” In N.R.
Raghavachariar’s Hindu Law — Principles and Precedents, (8th Edn.) edited
by Prof. S. Venkataraman, one of the renowned Professors of Hindu Law para
468 deals with “Definition of Stridhana”. In para 469 dealing with “Sources
of acquisition” it is stated that the sources of acquisition of property in
a woman’s possession are: gifts before marriage, wedding gifts, gifts
subsequent to marriage etc. Para 470 deals with “Gifts to a maiden”. Para
471 deals with “Wedding gifts” and it is stated therein that properties
gifted at the time of marriage to the bride, whether by relations or
strangers, either Adhiyagni or Adhyavahanika, are the bride’s stridhana. In
para 481 at page 426, it is stated that ornaments presented to the bride by
her husband or father constitute her Stridhana property. In para 487
dealing with “powers during coverture” it is stated that saudayika meaning
the gift of affectionate kindred, includes both Yautaka or gifts received
at the time of marriage as well as its negative Ayautaka. In respect of
such property, whether given by gift or will she is the absolute owner and
can deal with it in any way she likes. She may spend, sell or give it away
at her own pleasure.

10. It is thus clear that the properties gifted to her before the marriage,
at the time of marriage or at the time of giving farewell or thereafter are
her stridhana properties. It is her absolute property with all rights to
dispose at her own pleasure. He has no control over her stridhana property.
Husband may use it during the time of his distress but nonetheless he has a
moral obligation to restore the same or its value to his wife. Therefore,
stridhana property does not become a joint property of the wife and the
husband and the husband has no title or independent dominion over the
property as owner thereof.”

27. After so stating the Court proceeded to rule that stridhana property
is the exclusive property of the wife on proof that she entrusted the
property or dominion over the stridhana property to her husband or any
other member of the family, there is no need to establish any further
special agreement to establish that the property was given to the husband
or other member of the family. Further, the Court observed that it is
always a question of fact in each case as to how the property came to be
entrusted to the husband or any other member of the family by the wife when
she left the matrimonial home or was driven out therefrom. Thereafter, the
Court adverted to the concept of entrustment and eventually concurred with
the view in the case of Pratibha Rani (supra). It is necessary to note here
that the question had arisen whether it is a continuing offence and
limitation could begin to run everyday lost its relevance in the said case,
for the Court on scrutiny came to hold that the complaint preferred by the
complainant for the commission of the criminal breach of trust under
Section 406 of the Indian Penal Code was within limitation.
28. Having appreciated the concept of Stridhan, we shall now proceed to
deal with the meaning of “continuing cause of action”. In Raja Bhadur
Singh v. Provident Fund Inspector and Others[12] the Court while dealing
with the continuous offence opined that the expression “continuing offence”
is not defined in the Code but that is because the expressions which do not
have a fixed connotation or a static import are difficult to define. The
Court referred to the earlier decision in State of Bihar v. Deokaran
Nenshi[13] and reproduced a passage from the same which is to the following
effect:-
“A continuing offence is one which is susceptible of continuance and is
distinguishable from the one which is committed once and for all. It is one
of those offences which arises out of a failure to obey or comply with a
rule or its requirement and which involves a penalty, the liability for
which continues until the rule or its requirement is obeyed or complied
with. On every occasion that such disobedience or non-compliance occurs and
reoccurs, there is the offence committed. The distinction between the two
kinds of offences is between an act or omission which constitutes an
offence once and for all and an act or omission which continues, and
therefore, constitutes a fresh offence every time or occasion on which it
continues. In the case of a continuing offence, there is thus the
ingredient of continuance of the offence which is absent in the case of an
offence which takes place when an act or omission is committed once and for
all.”

29. The Court further observed :-
“This passage shows that apart from saying that a continuing offence is one
which continues and a non-continuing offence is one which is committed once
and for all, the Court found it difficult to explain as to when an offence
can be described as a continuing offence. Seeing that difficulty, the Court
observed that a few illustrative cases would help to bring out the
distinction between a continuing offence and a non-continuing offence. The
illustrative cases referred to by the Court are three from England, two
from Bombay and one from Bihar.”

30. Thereafter, the Court referred to the authorities and adverted to
Deokaran Nenshi (supra) and eventually held:-
“The question whether a particular offence is a continuing offence must
necessarily depend upon the language of the statute which creates that
offence, the nature of the offence and, above all, the purpose which is
intended to be achieved by constituting the particular act as an
offence...”

31. Regard being had to the aforesaid statement of law, we have to see
whether retention of stridhan by the husband or any other family members is
a continuing offence or not. There can be no dispute that wife can file a
suit for realization of the stridhan but it does not debar her to lodge a
criminal complaint for criminal breach of trust. We must state that was
the situation before the 2005 Act came into force. In the 2005 Act, the
definition of “aggrieved person” clearly postulates about the status of any
woman who has been subjected to domestic violence as defined under Section
3 of the said Act. “Economic abuse” as it has been defined in Section
3(iv) of the said Act has a large canvass. Section 12, relevant portion of
which have been reproduced hereinbefore, provides for procedure for
obtaining orders of reliefs. It has been held in Inderjit Singh Grewal
(supra) that Section 498 of the Code of Criminal Procedure applies to the
said case under the 2005 Act as envisaged under Sections 28 and 32 of the
said Act read with Rule 15(6) of the Protection of Women from Domestic
Violence Rules, 2006. We need not advert to the same as we are of the
considered opinion that as long as the status of the aggrieved person
remains and stridhan remains in the custody of the husband, the wife can
always put forth her claim under Section 12 of the 2005 Act. We are
disposed to think so as the status between the parties is not severed
because of the decree of dissolution of marriage. The concept of
“continuing offence” gets attracted from the date of deprivation of
stridhan, for neither the husband nor any other family members can have any
right over the stridhan and they remain the custodians. For the purpose of
the 2005 Act, she can submit an application to the Protection Officer for
one or more of the reliefs under the 2005 Act. In the present case, the
wife had submitted the application on 22.05.2010 and the said authority had
forwarded the same on 01.06.2010. In the application, the wife had
mentioned that the husband had stopped payment of monthly maintenance from
January 2010 and, therefore, she had been compelled to file the application
for stridhan. Regard being had to the said concept of “continuing offence”
and the demands made, we are disposed to think that the application was not
barred by limitation and the courts below as well as the High Court had
fallen into a grave error by dismissing the application being barred by
limitation.
32. Consequently, the appeal is allowed and the orders passed by the High
Court and the courts below are set aside. The matter is remitted to the
learned Magistrate to proceed with the application under Section 12 of the
2005 Act on merits.

.............................J.
[Dipak Misra]

..........................., J.
[Prafulla C. Pant]
New Delhi
November 20, 2015

-----------------------
[1] (2011) 12 SCC 588
[2] (2012) 3 SCC 183
[3] (2014) 3 SCC 712
[4] (2010) 10 SCC 469
[5] (2005) 3 SCC 636
[6] (1993) 1 SCC 325
[7] (2001) 4 SCC 125
[8] AIR 1979 Guj 209
[9] AIR 1980 Mad 294
[10] (1985) 2 SCC 370
[11] (1997) 2 SCC 397
[12] (1984) 4 SCC 222
[13] (1972) 2 SCC 890

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