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In CS (COMM) 253/2019-DEL HC- “NOW” is a common word used by number of other entities: Delhi HC vacates injunction order passed against E! Now; dismisses application of Times Group
Justice Mukta Gupta [31-05-2023]

Read Order: BENNET, COLEMAN & COMPANY LIMITED versus E! ENTERTAINMENT TELEVISION LLC.

 

Tulip Kanth

 

New Delhi, June 1, 2023: The Delhi High Court has granted relief to E! Entertainment Television LLC by vacating an ad-interim injunction order passed in favour of Times Group restraining the American pay television channel from starting any channel/ programme in India by the mark “NOW” or any other mark deceptively similar to the mark “NOW”.

“From the facts as noted it is evident that though the plaintiff has number of registrations with suffix and prefix “NOW”, it is a common word and is used by number of other entities”, Justice Mukta Gupta asserted.

The plaintiff- Times Group had prayed for an order restraining the Defendant from adopting and using the mark “NOW”, “E NOW” and “E NEWS NOW” or any other mark or name which is identical or deceptively similar to plaintiff’s channel name/ registered mark or mark’s logo style.

The plaintiff also prayed for restraining the Defendant from using the plaintiff’s domain name/ website timesnow.tc, moviesnow.co.in, romedynow.com, economictimes.indiatimes.com/et-now, etc. or any other domain name similar in fashion for any internet site or social media site, account or handle of the plaintiff or to create any third party interest in the domain name currently in use by the defendant and for direction to defendant to maintain accounts of profit illegally earned by them.

Summons in the suit were issued and interim injunction was also granted in favour of the plaintiff restraining the respondent from starting any channel/ programme in India by the mark “NOW” or any other mark deceptively similar to the mark “NOW”.

The defendant thereafter sought vacation of this injunction order dated May 14, 2019.By another interim application, the defendant also prayed for rejection of the plaint filed by the plaintiff with exemplary costs, or in alternative, the return of plaint for presentation before a court of competent jurisdiction.

It was claimed by the plaintiff that the trademarks “TIME”, “TIMES” and “NOW” are the property of the plaintiff company only, and its subsidiaries and affiliates have been allowed to use the same. The plaintiff has been using the series of mark “TIMES” and “NOW” in various combinations, in respect of television channels for more than a decade. It was contended on behalf of the plaintiff that the present suit is limited to class 38 and 41 of the trademark registrations which pertain to “television broadcasting services” and “television based entertainment services” respectively.

It was also submitted that the defendant had not filed any trademark application for ‘E! Now’ or ‘E! News Now’ in India till date and hence, no right could be claimed by the defendant.

The Defendant had put forth a case stating that the earliest registration of the mark “NOW” by the plaintiff was of  July 31, 2008 which was subsequent to the date of use of “E! News Now”  by the defendant, and hence, the “NOW” label and marks had been wrongly registered.

 

Noting the fact that the plaintiff was not the proprietor of the standalone trademark “NOW” nor prior user of the said mark in Class-38 and the stand-alone registration of the plaintiff in Class-41 was of September 18, 2014 on the proposed to be used basis and had not been used till date, the Bench said, “Thus, the registration of “NOW” simplicitor in Class-41 cannot be used to seek an injunction against the defendant‟s mark “E! Now” and “E! New Now” and the defendant’s first use of “E News Now” was since September 30, 2007.”

It was also clarified by the Bench that whether a mark is a common to trade or not is a question of fact. Similarly, a mark may be a trademark in some jurisdiction and publici juris in others, but a mark which may be common to trade at one time may become distinctive over a period of time, or vice versa.

The Bench made it clear that though the plaintiff has number of registrations with suffix and prefix “NOW”, it is a common word and is used by number of other entities. Further the plaintiff’s own stand is that the mark “NOW” is common to trade as stated by the plaintiff in response to the examination report for ROMEDY NOW under No.2589055 in Class-9, and the counter statement in relation to opposition filed against the mark “NOW” under No.1716885 in Class-9.

The plaintiff had also given a disclaimer on “NOW” in registration for LOVCOM in Class-9, LOVCOM NOW in Class-16 and ROMEDY NOW in Class-38. Thus, the plaintiff cannot be permitted to claim that the word ‘NOW’ used by it as a prefix or suffix has acquired a distinction. Therefore, the defendant who is a prior user of mark ‘E’ or E! with ‘NOW’ and ‘E NEWS NOW’ cannot be injuncted.

It was also observed that the Plaintiff in his plaint had claimed that it has principal office in Delhi which fact to the knowledge of the plaintiff was incorrect and was sought to be amended by way of an application under Order VI Rule 17 CPC. Further the plaintiff on the one hand claimed that the defendant had no transborder reputation affecting the plaintiff’s reputation, thus, denying the existence of the defendant as a prior user, however, on the other hand claimed defendant’s transborder reputation to claim injunction from the Court.

Further, the order granting ad-interim injunction also noted that the same was granted on the representation that the trademark ‘NOW’ had been registered in various categories in favour of the plaintiffs since 2006 but the plaintiff had registration only in Class 41 which was also on the proposed to be use basis and till now the plaintiff had not used the trademark ‘NOW’ simplicitor in Class 41.

Consequently, the ad-interim injunction was vacated by the Bench. The Court also dismissed the Plaintiff’s application under Order XXXIX Rule 1 & 2 CPC and disposed of the defendant’s application.

 

 

In CRL.M.C. 3884 of 2023- DEL HC- Courts can cancel bail only if either there exists supervening circumstances or there is an inherent defect in the order granting bail, says Delhi High Court while setting aside the order cancelling bail of petitioner accused under Arms Act
Justice Dinesh Kumar Sharma  [25-05-2023]

Read Order: Sangram Singh v State of NCT of Delhi

 

 

Simran Singh

 

New Delhi, June 1, 2023: The Delhi High Court has set aside the impugned order dated 25-02-2023 cancelling the bail of the petitioner in the FIR registered under Section 336, 387, 506 and 34 Indian Penal Code,1860 (IPC) and 25, 27, 54 and 59, Arms Act, 1959 (Arms Act) on the ground that the accused was involved in another case in FIR registered under Sections 25, 54 and 59 of Arms Act, stating that it was unsustainable in the eyes of law.

 

 

In the matter at hand, the petitioner impugned the order dated 25-02-2023 passed by the Additional Session Judge, (ASJ) New Delhi whereby the bail granted to the petitioner was cancelled. The ASJ had previously, vide order dated 22-02-2022 had granted bail to the petitioner accused in case FIR subject to the condition that the accused would not commit any other offence or offence of similar nature. The Sessions Court was of the view that the said condition had been violated by the accused as subsequently another FIR was registered against the accused under sections 25, 54 and 59 of Arms Act and thus the bail was liable to be cancelled.

 

 

The petitioner submitted that FIR under Sections 25, 54 and 59 Arms Act, was falsely lodged and the Sessions Court without going into the facts of the case mechanically cancelled the bail. The Additional Public Prosecutor vehemently opposed the petition and submitted that the Sessions Judge correctly cancelled the bail of the accused as the petitioner was a habitual offender. There were 5 other cases pending against the petitioner and that the regular bail application of the petitioner had also been dismissed vide order dated 08-05-2023.

 

 

The Bench stated that the jurisdiction regarding cancellation of bail was a very limited jurisdiction. It was settled law that the bail once granted could only be cancelled if there were very cogent and overwhelming supervening circumstances or if the accused had misused his liberty of bail. “The Courts can cancel the bail only if either there exists supervening circumstances or if there is an inherent defect in the order granting bail.”

 

 

The Bench noted that in the present case, while granting bail, a condition was imposed vide order dated 22-02-2022 that the petitioner would not commit any offence or offence of similar nature. However, subsequently, another FIR was registered under Section 25, 54 and 59 Arms Act.

 

 

The Court considered that simply because an FIR had been lodged, the bail granted to the accused on merits could not have been cancelled. Needless to say that the same would depend upon the facts and circumstances of each case. However the impugned order cancelling the bail was silent on the facts or the gravity of the offence alleged to have been committed by the accused.

 

 

The Court thus was of the view that the impugned order dated 25-02-2023 cancelling the bail could not be sustain in the eyes of law and the same was liable to be set aside. Accordingly, the impugned order dated 25-02-2023 was set aside.

In WP 15139 of 2021- KARN HC- Non-compliance to Sec 19 of Prevention of Corruption Act & Sec 197 of CrPC leads to Karnataka HC setting aside FIR for third time against former MLA Abhay Kumar accused of accumulating disproportionate assets
Justice K. Natarajan [18-05-2023]

Read Order: Abhay Kumar v Superintendent of Police

 

 

Simran Singh

 

 

New Delhi, June 1, 2023: The Karnataka High Court has set aside for the third time in a row the FIR filed against Abhay Kumar, former MLA from Bagevadi Assembly constituency in Karnataka’s Belagavi district, who is accused of accumulating disproportionate assets.

 

 

The Single-Judge Bench of Justice K. Natarajan noted that the Trial Court had directed the police twice before to register FIR and on both occasions the FIRs were quashed by the High Court since no sanction had been obtained from the State Government to prosecute him. Despite such facts, the Trial Court had directed the police to file FIR for the third time to investigate the matter.

 

 

In the matter at hand, the accused sought quashing the order dated 21-09-2017 passed by the Additional District and Sessions Judge, Belagavi, Trial Court and consequently quash the FIR, as being illegal and void. The defacto complainant had filed a private complaint before the Trial Court for the offence punishable under Sections 13 (1) (e) read with 13(2) of Prevention of Corruption Act,1988 (PC Act), in turn the Special Judge referred the complaint to the Lokayuktha police for investigation under Section 156 (3) of Criminal Procedure Code,1973 (CrPC).

 

 

It was alleged that the accused being a sitting MLA during the parade 2004 to 2008 representing the Bagevadi Assembly constituency in Belagavi district, during which he had amassed wealth more than the known sources of income, thereby the accused being public servant committed the offence under the provisions of PC Act. It was referred to the Lokayukta police who registered an FIR but in 2013, the High Court had quashed the FIR and remitted the matter back to the Special Court Judge.

 

 

The Trial Court once again referred the complaint to the Lokayukta police (subsequently Anti-Corruption Bureau) which had registered an FIR in 2017 but in the same year, the High Court had quashed this FIR. Once again, the Trial Court referred the matter to ACB but after it was scrapped and all its cases shifted to the Lokayukta police, the FIR was investigated by it which was challenged in 2021 before the High Court.

 

 

It was argued that in spite of quashing the FIR twice, the Special Court once again had referred the complaint without getting the sanction from the Government to prosecute. Therefore, continuing the investigation based upon the private complaint was an abuse of process of law. The private complaint being referred to the police and registering of the FIR was illegal as the petitioner was an MLA, and a prior sanction was required while directing the police investigation of the matter.

 

 

The Single-Judge Bench of Justice K. Natarajan while quashing the latest and the third FIR pointed out to the fact that since sanction under Section 19 of PC Act had not been obtained from the Government to prosecute the then MLA, he was protected under Section 197 of CrPC which provided with the fact that no Court could take cognizance of alleged offence by public servants without obtaining the sanction of the Government, and therefore the private complaint was not sustainable under the law.

 

 

The Court while placing reliance on the judgment of the Supreme Court in Priyanka Srivastava v. State of U.P. observed that a complainant could not directly file a private complaint under Section 200 CrPC for the purpose of referring the complaint to police under Section 156(3) CrPC without the compliance or without approaching the police by the complainant under Section 154(1) CrPC. He shall approach the higher officer of the police under Section 154(3) CrPC and only after exhausting the remedies before both the provisions, only then the complainant should approach the Magistrate under Section 200 CrPC for the purpose of reference under Section 156(3) CrPC.

 

Thus, the Bench held that there was no document to show that there was a compliance of the aforesaid legal position in order to refer the complaint and to register the FIR and to investigate the matter as against the accused. Accordingly, the Court held that the private complaint was not sustainable in law and therefore continuing the investigation was nothing but an abuse of the process of law and was liable to be quashed. The Court thus allowed the Writ Petition.

 

In Writ Tax No. - 336 of 2023 – ALL HC - Notice under Sec 61(3) of Central Goods and Service Tax Act not a condition precedent for action under Sec 74, rules Allahabad High Court
Justice Ashwani Kumar Mishra & Justice Vinod Diwakar [15-05-2023]

Read Order: M/s Nagarjuna Agro Chemicals Pvt. Ltd v. State of U.P. and Another

 

Chahat Varma

 

New Delhi, June 1, 2023: The Allahabad High Court has ruled that issuance of notice under Section 61(3) of Central Goods and Service Tax Act, 2017 (CGST Act), is not a condition precedent for initiating action under Section 74 of the Act.

 

Briefly stated facts of the case were that the petitioner, an assessee under the GST regime, had submitted returns for the assessment year 2019-20. The department had initiated proceedings under Section 74 of the CGST Act against the petitioner with regard to classification and consequential tax payable of certain goods. The department passed an order demanding deposit of appropriate short fall in the deposit of tax as also interest and penalty. The petitioner's counsel argued that since the petitioner had already submitted returns, the department should have first pointed out any deficiencies in the returns, giving the petitioner an opportunity to rectify them before initiating action under Section 74 of the Act.

 

The division bench of Justice Ashwani Kumar Mishra and Justice Vinod Diwakar observed that in the present case the department did not identify any discrepancy or deficiency in the petitioner's returns, nor any such deficiency was pointed out to the petitioner for it to be rectified by it. It was only during the consideration of the returns, that the department found that proper tax had not been deposited, leading to the initiation and conclusion of proceedings under Section 74 of the CGST Act.

 

The bench held that in the statutory scheme, the course followed by the department was permissible in law. The argument that the department cannot proceed under Section 74 without pointing out deficiencies in the return and giving the petitioner an opportunity to rectify them, was rejected by the court.

 

“In our view, merely because no notices were issued under Section 61 of the Act would mean that issues of classification or short payment of tax cannot be dealt with under Section 74 as exercise of such power is not dependent upon issuance of notice under Section 61. The argument is misconceived is thus, repelled,” said the court.

 

 In ITA No.74/PUN/2023 - ITAT – Capital Gain calculation not based on gross receipts, clarifies ITAT (Pune)
Members R.S. Syal (Vice President) & Partha Sarathi Chaudhury (Judicial) [30-05-2023]

Read Order: Bhausaheb Sopanrao Bhoir v. ITO

 

Chahat Varma

 

New Delhi, June 1, 2023: The Pune bench of the Income Tax Appellate Tribunal has held that capital gain does not refer to taxing the gross receipt. The Tribunal referred to Section 48 of the Income Tax Act, which provides the mechanism for computation of capital gain, i.e., the cost of acquisition of the asset and cost of any improvement should be reduced from the full value of consideration, in addition to the expenditure incurred wholly and exclusively in relation to the transfer.

 

In the matter at hand, the assessee had raised an additional alternative ground contending that deduction of cost of acquisition should be given in the computation of the capital gain. Further, in the said case, the Assessing Officer (AO) had added a sum of Rs. 4,95,37,200/- to the assessee's income, invoking the provisions of Section 56(2)(vii)(b) of the Income Tax Act. This was based on the AO's observation that soon after purchasing the land, the assessee entered into an agreement to sell it and hence the assessee’s claim that the purchase was not complete, was wrong.

 

The bench comprising of R.S. Syal (Vice President) and Partha Sarathi Chaudhury (Judicial) noted that the AO had computed the capital gain at the gross value of the stamp value without allowing any deductions towards the cost of acquisition and cost of improvement. Therefore, the bench directed the AO to consider the deduction towards the cost of acquisition while computing the capital gain in accordance with the law.


The bench further noted that in this case, a registered agreement to sell was executed between the assessee and the sellers, with proper documentation including photographs and thumb impressions of all parties involved. Based on this evidence, the bench rejected the assessee’s contention that the sellers were not the real owners of the land. Furthermore, the fact that the assessee had simultaneously agreed to sell the same property to another person on the same day provided further proof that the land was indeed purchased by the assessee at the declared consideration of Rs.1.85 crore. The bench held that Section 56(2)(vii)(b) of the Income Tax Act was applicable in this case, which mandated adding the difference between the stamp value and the declared purchase consideration in the hands of the assessee.

 

In ITA No. 308/DEL/2016 – ITAT - Interest earned on short-term fixed deposits by Kanpur Fertilizers & Cement Ltd. inextricably linked to project revival, considered as capital receipt: ITAT (Delhi)
Members Kul Bharat (Judicial) & Pradip Kumar Kedia (Accountant) [30-05-2023]

Read Order: Kanpur Fertilizers & Cement Ltd v. Income Tax Officer

 

 

Chahat Varma

 

New Delhi, June 1, 2023: In a relief to Kanpur Fertilizers & Cement Ltd. (assessee), the Delhi bench of the Income Tax Appellate Tribunal has directed the Assessing Authority (AO) to delete the disallowance, holding that the interest earned by the assessee from the short-term fixed deposits with scheduled banks, being inextricably linked to the project, was a capital receipt, that reduced the project’s cost and accordingly, the assessee had correctly reduced the same from the cost of expenditure on the project.

 

In the present case, the AO while framing the assessment, noticed that the assessee in its account had shown pre-operative expenditure of Rs. 54,37,00,000/- and out of which the interest received on short-term deposits with scheduled banks was deducted, amounting to INR 1,93,75,802/-. The explanation of the assessee was not found acceptable and this amount was added into the income of the assessee under the head income from other sources. Aggrieved against this, the assessee preferred an appeal before the CIT(Appeals), who also sustained the addition.

 

The bench referred to the judgment of the Delhi High Court in the case of Indian Oil Panipat Power Consortium Ltd v. Income Tax Officer [LQ/DelHC/2009/4960], to analyze whether the interest earned on term deposits could be considered ‘inextricably linked’ to the revamping or renovating of a sick unit.

 

The bench took note of the arguments put forth by the counsel representing the assessee, wherein the counsel highlighted that the amount in question was incurred on the project and referred to the balance sheet, that it was being utilized for renovating and revamping a sick industrial unit. Additionally, the counsel pointed out that the assessee had issued bank guarantees to Indian Oil Corporation and state governments against the FDR, amounting to INR 1417 lakh and INR 7.50 lakh respectively. The bench held that this information demonstrated that the interest income earned by the assessee was inextricably linked to the revival of the project.

 

 

The bench also referred to the decision rendered in ITO vs. M/s Adani Power Rajasthan Limited [LQ/ITAT/2019/1205], wherein the Tribunal was in complete agreement with the action of the CIT(A) in upholding the action of AO to reduce interest income arising from deposits placed with SBI out of project development expenditure.

 

 

In WP(C) 6714 of 2021- DEL HC- PG Diploma in Maternal & Child Health of Indra Gandhi National Open University was never recognised by MCI /NMC, compelling NBE to confer benefit of reducing period of training disallowed: Delhi High Court 
Justice Prateek Jalan [31-05-2023]

Read Order: Ankit Sharma v Union of India

 

Simran Singh

 

 

New Delhi, June 1, 2023: The Delhi High Court declined relief to the doctor-petitioner who had sought a direction to the National Board of Examinations (NBE) to permit him to participate in the Post Diploma Centralised Entrance Test Counselling (CETC) on the basis of marks obtained by him in the Post Graduate Diploma in Maternal and Child Health (PGDMCH) course completed from the Indra Gandhi National Open University (IGNOU).

 

 

The Single-Judge Bench of Justice Prateek Jalan stated that the case of a regulated profession, such as medicine, was entirely different. The Post Graduate Diploma in Maternal and Child Health course of Indra Gandhi National Open University (IGNOU/respondent 3) was never recognised as a qualification by the Medical Council of India (MCI) with National Medical Commission (NMC), and to compel NBE to confer a benefit on the basis of such a qualification by reducing the period of training for Diplomate of National Board (DNB) would, in view of the Court, propagated a benefit being granted for a course which the regulator did not recognise.

 

The Bench stated that the admission to any other Post Graduate DNB course eligibility criteria for DNB-Post Diploma Centralised Entrance Test, required a Post Graduate Diploma recognised by the MCI/NMC. The petitioner admittedly did not possess such a qualification, and had also not challenged the eligibility criteria.

 

He had also sought a direction for allotment of a seat in the DNB for Family Medicine (Secondary) course on the basis of marks obtained by him in the PGDMCH course completed from IGNOU. He also preferred an alternative prayer for allotment of a seat in DNB for Obstetrics and Gynecology (Secondary) or Paediatrics (Secondary) course, or a seat in DNB Family Medicine (Primary) course, exempting him from appearing in the entrance exam, and also from payment of fee for first year, again on the basis of his PGDMCH qualification.

 

 

It was the case of the petitioner that PGDMCH qualification entitled him to admission in the DNB-FM course as a Secondary candidate vis-a-vis public notice dated 31-03-20101, issued by the NBE, and the 'Guidelines for Competency Based Training Programme in DNB- Family Medicine’ , which provided that a holder of the PGDMCH qualification would not be required to appear in the CETC, and could participate in counselling for DNB-FM (Secondary) course. He was aggrieved by the fact that when he had sought to apply for DNB-FM in the year 2021, NBE did not provide for such a benefit to PGDMCH qualified candidates. The petitioner raised his grievance with the Prime Minister’s Office, to which he received a response on 11-06-2021, stating that ‘the PGDMCH course of IGNOU was not recognised by MCI / NMC.

 

 

The Bench stated that the relief sought by the petitioner could not be granted both on account of the fact that the Secondary DNB-FM course had been discontinued by NBE, and on the ground that NBE was, in any event, entitled to modify the eligibility criteria in respect of the PGDMCH course.

 

 

In any event, an academic bodys right to so decide is well established, and the proposition that courts should not sit in appeal over a policy decision is no longer res integra.” This principle had been laid down in the Supreme Court case in National Board of Examinations v. G. Anand Ramamurthy wherein it was stated that the High Court was not justified in directing the petitioner to hold examinations against its policy which was in complete disregard to the mandate of this Court for not interfering in the academic matters particularly when the interference in the facts of the instant matter lead to perversity and promotion of illegality.

 

 

The Bench disregarded petitioner’s reliance upon Suresh Pal v State of Haryana and stated that the Supreme Court was concerned with qualification for the purpose of employment as Physical Training Instructors. The qualification of the petitioner therein was recognised at the time when he took admission into the course. There was no question of requirement of a qualification recognised by a professional regulatory body such as the MCI/NMC and the recognition in question was only by the prospective employer for the purposes of the job.

 

 

 

It further stated that the petitioner’s alternative prayer for admission in Post MBBS DNB in Family Medicine without taking the NEET-PG examination was unmerited. The award of an unrecognised

qualification could not, in any event, confer a right upon the petitioner to an admission to a course without taking the basic qualifying examination. Petitioner’s final submission that he be allotted a Sponsored seat in DNB- Family Medicine also could not be granted. He was not qualified for the Sponsored seats which were available to government employees.

 

 

The Bench was of the view that in any event, the request was beyond the scope of writ petition, and had made by way of an additional affidavit dated 26-07-2022, when the admissions to the 2021-22 sessions were already long over. “The petitioner could not claim a vacant seat for which he is not otherwise eligible, merely on the ground that the seat remains vacant.”

In W.P.(C) 5718/2023-DEL HC- Merely being named in FIR cannot be treated as impediment for public appointment unless involvement is substantiated on investigation, especially in relation to matrimonial offences, rules Delhi HC while directing appointment of candidate to post of Sub-Inspector
Justices V. Kameswar Rao & Anoop Kumar Mendiratta [31-05-2023]

Read Order:  VIKRAM RUHAL Vs. DELHI POLICE & ORS

 

Tulip Kanth

 

New Delhi, June1, 2023:  While considering a matter where the candidate applying for the post of Sub Inspector in Delhi Police had disclosed information regarding the FIR relating  to allegations of dowry demand made against his brother whereby the petitioner-candidate and his family members were roped in as accused, the Delhi High Court has asked the Delhi Police to consider the candidate’s appointment by observing that merely naming in the FIR does not lead to an inference that the employer can keep in abeyance the employment of an applicant for an indefinite period.

“Merely being named in the FIR cannot be treated as an impediment for public appointment, unless the involvement is substantiated on investigation, specially in relation to matrimonial offences”, the Division Bench of Justice V. Kameswar Rao & Justice Anoop Kumar Mendiratta asserted.

The petitioner had applied for the post of Sub Inspector in Delhi Police in response to the recruitment notice issued by the Staff Selection Commission and successfully cleared all the examinations. In the interregnum, before the announcement of final result, an FIR under Sections 313/323/406/498A/506/34 IPC was registered by the petitioner’s sister-in-law, implicating all the family members including the petitioner.

Thereafter, petitioner was recommended for appointment as Sub Inspector in Delhi Police, subject to verification. During verification carried out by Delhi Police, petitioner disclosed about the pendency of aforesaid FIR.

Thereupon a show-cause notice was issued to the petitioner as to why the candidature of the petitioner for the post of SI (EXE) Male in Delhi Police-2017 should not be cancelled due to alleged involvement in the aforementioned FIR as disclosed by him at the time of verification In the meantime, a charge-sheet was issued and cognizance was taken by the Court of JMIC, but the petitioner was not summoned.

The petitioner was informed that his reply to the show-cause notice was examined by the Screening Committee and it was decided to keep his case pending till final decision of the criminal case. Petitioner had filed representations before the Commissioner of Police, Delhi thereby requesting to consider his candidature to the post of Sub Inspector, reiterating that no criminal case was pending against him as his name was reflected in Column 12 of the charge-sheet.Since no response was received from respondents, petitioner preferred an application before the Tribunal.

The petitioner challenged the order of the Central Administrative Tribunal whereby the Tribunal declined to set aside order issued by the Deputy Commissioner of Police, Recruitment NPL, Delhi thereby keeping the recruitment of the petitioner to the post of Sub Inspector (Exe) in Delhi Police pending, till final outcome of the proceedings arising out of the FIR.

The Bench reiterated that even if a disclosure has been truthfully made by the applicant, the employer has the right to consider antecedents and fitness and cannot be compelled to appoint a candidate.

Referring to the guidelines laid down in Avtar Singh vs. Union of India, the Bench held that the Competent Authority in the present case, was required to consider the suitability of the petitioner having regard to result of investigation and cognizance taken thereupon on the charge-sheet. The Competent Authority was accordingly under obligation to examine the nature of offence, the evidence appearing against the petitioner and the attendant circumstances.

While noting the petitioner had truly disclosed on verification regarding the FIR registered before announcement of result and there had been no concealment or suppression in this regard by the petitioner, the Court made it clear that the FIR arose out of a matrimonial dispute between the brother of the petitioner and his wife, wherein the petitioner and all other family members had been named as an accused.

Petitioner being the brother-in-law of complainant was only a "collateral accused" and not the main accused. It was also be noticed that the investigating agency had removed Section 313 of the IPC on investigation and the surviving offences related only to Sections 498-A/406/506/323/34 IPC which were generic in nature who was just aged about 19/20 years at the time of the alleged incident.

As per the charge-sheet, petitioner was placed in column No. 12 and it was categorically observed that from the statement of the witnesses and record that the allegations of demand of dowry and harassment from the petitioner were found false and he was found innocent.

“Mere possibility of being summoned after filing of chargesheet, when the petitioner has been placed in Column 12 of charge-sheet, has no legal foundation for withholding the appointment, specially in matrimonial offences under Sections 498-A/406 IPC”, the Bench held.

The petitioner appeared to have already suffered ignominy due to registration of FIR and also the appointment stood deferred despite the investigation pointing to his innocence. Considering that the petitioner had been placed in Column No. 12 of charge-sheet and the fact that evidence did not establish his involvement in aforesaid offences after investigation, the Bench opined that he should have been logically considered suitable for appointment.

Noting the fact that the Competent Authority as well as the Tribunal ignored the fact that there is a growing tendency amongst the women to rope in all the relatives including minors in case an FIR is lodged with reference to matrimonial disputes, the Bench held, “Merely naming in the FIR does not lead to an inference that the employer can keep in abeyance the employment of an applicant for an indefinite period, even if the applicant has been placed in column No. 12 of the charge-sheet and has not been summoned.”

Thus, dismissing the petition, the Bench held, “It is difficult to presume that the petitioner would be a threat to the discipline of Police Force merely on account of registration of the aforesaid FIR wherein he has even not been summoned.”

 

In Service Tax Appeal No. 40017 of 2014 – CESTAT - Services for testing raw materials eligible for refund, as they have nexus with manufacturing of finished products: CESTAT (Chennai)
Members Sulekha Beevi C.S. (Judicial) & M. Ajit Kumar (Technical) [30-05-2023]

Read Order: R.K. Industries IV v. Commissioner of GST & Central Excise

 

 

Chahat Varma

 

New Delhi, June 1, 2023: The Chennai bench of the Customs, Excise and Service Tax Appellate Tribunal has ruled that services used for testing of raw materials, are eligible for credit or refund, as they have a nexus with the manufacturing of finished products.

 

Brief facts were that the appellants, engaged in manufacture of ready-made garments, had filed refund claim in terms of Notification No.17/2009-ST dated 07.07.2009 for refund of service tax paid by them on services provided to them by Custom House Agents, Technical Testing and Analysis Agencies. The refund claim was rejected on two grounds. Firstly, that it was time-barred. Secondly, that the conditions set out in the notification had not been fulfilled by the appellant.

 

The two-member bench reviewed para 2(f) of Notification No. 17/2009, which stated that the refund claim had to be filed within one year. The bench held that the rejection of the entire claim for a quarter solely based on a few shipping bills beyond the one-year limit was not justified. They held that the invoices filed within the one-year period should have been considered for the respective quarters. The issue was remanded back to the adjudicating authority with directions to examine the shipping bills within the one-year time limit.

 

The bench further noted that the Notification did not impose any conditions regarding refund claims specifically related to testing and analysis services. Consequently, the rejection of the refund claim on the grounds that the services were utilized for testing raw materials was not deemed acceptable by the Tribunal.

 

The bench concluded that when there was no dispute with regard to the services availed and the service tax paid, the rejection of refund was without any basis.

 

In FAO (COMM) 201 of 2021- DEL HC- ‘Once trademark is registered it is truly entitled to all statutory protection recognised and available under Trade Mark Act’: Delhi High Court while granting relief to the joint venture under the trademark ‘VISTARA’
Justice Manmohan and Justice Saurabh Banerjee [31-05-2023]

Read Order: Tata Sia Airlines Limited v Vistara Home Appliances Private Limited

 

 

Simran Singh

 

 

New Delhi, June 1, 2023- The Delhi High Court has set aside the impugned order dated 28-10- 2021 of the Trial Court which had dismissed the application filed by the appellant under Order XXXIX rules 1 & 2 read with Section 151 of Code of Civil Procedure, 1908 (CPC) in a suit for infringement of trademark and passing off against the respondents.

 

 

The Division Bench of Justice Manmohan and Justice Saurabh Banerjee stated that “Tainted adoption of the impugned mark VISTARA by respondents, under suspicious circumstances, is a discerning factor playing a dominant role throughout which leaves no doubt in the mind of this Court that the interim application of appellant deserves to be allowed.”

 

 

It was further stated that “Having once adopted the impugned mark ‘VISTARA’ with their eyes and ears open, there is no scope left for the respondents to take refuge of the usage or projected loss of customers, trade channels and industry of operation as it is already too late in the day and when much water has flown under the bridge since then.”

 

 

In the matter at hand, the appellant was a joint venture between TATA Sons Private Limited and Singapore Airlines Limited operating a full-fledged service airline under its trademark ‘VISTARA’ which is a ‘well-known trademark’ as per Section 2(1)(zg) of The Trade Marks Act, 1999 (TM Act) and was entitled to a higher degree of protection under law. In India, the appellant has since obtained registration of the trademark ‘VISTARA’ logo in Classes 12, 39, 16, 21, 25, 27, 28, 18, 9, 35, 39, 43 and 45 from time to time, the earliest being in Classes 12 and 39 on 02-06-2014. A third party had also became the owner of the same trademark ‘VISTARA’ in Class 39 subsequently, however, the same had since been assigned with goodwill to the appellant on 11-02-2016.

 

 

The appellant came to know in September 2020 that respondents 1 had been using its trademark ‘VISTARA’ as its corporate name ‘Vistara Home Appliances Private Limited’; as its domain name 'www.vistarahome.com' and as its device marks, without any authorisation. The respondents were also found selling and offering home appliances like LED TV, OTG, fans and coolers under the impugned mark VISTARA (device) on its website and on third party websites and was active on social media platforms, like Facebook and YouTube since their adoption in December 2018, also without any authorisation from the appellant.

 

 

The appellant, vide its Legal Notice dated 09-09-2020 followed by a reminder notice dated 16-03-2021, called upon the respondents to cease and desist their acts of infringing and passing off the trademark ‘VISTARA’. Non receipt of response to either of them by respondents despite due receipts led to institution of a suit for infringement of trademark, passing off by the appellant in May 2021 seeking a decree of permanent injunction from infringing and/ or passing off by advertising, directly or indirectly offering any goods or services, using or registering corporate names, domain names or in any other manner using the trademark VISTARA before the Trial Court.

 

 

The respondent contended that they had applied for registration of the impugned mark VISTARA (device) in Classes 7, 9 and 11 and the appellant was neither using the trademark ‘VISTARA’ nor had applied for registration for products falling in the said Classes. Further, there could be no confusion as VISTARA was a dictionary word and the respondent 1, since existence as a Company from 2015, had entered into various contracts and established very deep trade channels and business networks and also built a reputation and made extensive investments. Therefore, if the respondents were restricted from using the mark, it would be catastrophic for them. As per respondents, the trademark ‘VISTARA’ of appellant was not a ‘well-known mark’ when respondent 1 commenced using the impugned mark VISTARA (device). They also claimed to be very very cautious that they do not have their mark be confused with that of appellants which was why they had represented their mark in a completely different manner by choosing a different colour combination, font, style of writing, structure and overall representation. As per respondents, they were dealing in goods totally unrelated to those of the appellant and they were not unauthorised users as per Section 29 of the TM Act.

 

 

The Trial Court agreed with the contention of the appellant qua its adoption and uninterrupted extensive use of the trademark ‘VISTARA’ since 2014 and qua it being arbitrary and inherently distinctive with respect to travel services even though it was a Sanskrit word ‘Vistaar’. The Trial Court stated that both the marks were used in different classes of goods and catered to different customers thus granted no injunction against respondents, as there were remote chances of respondents encashing upon the goodwill and reputation of the appellant.

 

 

The Trial Court extended no benefit to the appellant as the subsequent registration by respondents prima facie was neither invalid nor cancelled, as neither any objection to the applications for registration of the impugned mark VISTARA (device) of respondent 1 in Classes 7, 9 and 11 nor objection to use of the website ‘www.vistarahome.com' of respondents since 2018 was filed and as the respondents were using the said impugned mark for unrelated goods. Thus dismissed the interim application of the appellant.

 

 

The Bench noted that the appellant was incorporated in the year 2013, i.e. prior to the formation of the respondent 1 and the appellant was already using the trademark ‘VISTARA’ prior to the respondents. However, the respondents had not given any plausible basis or reason for adopting the impugned mark VISTARA at any stage. Thus, was of the view that this was a sufficient reasons for the Trial Court to allow the interim application of appellant.

 

 

“The respondents subsequently adopted an already existing registered trademark ‘VISTARA’ of the appellant firstly as its corporate name ‘Vistara Home Appliances Private Limited’ in the year 2015, secondly as a (device) mark in the year 2016 and thirdly as its domain name ‘www.vistarahome.com' in the year 2018.”

 

 

It was stated that the respondents were always well-aware of the appellant and its registered trademark ‘VISTARA’, both while adopting and while filing for registration of the impugned mark VISTARA which was apparent from their own reply to the interim application wherein they pleaded that they were very cautious and they their mark be not confused with that of the appellants. Thus, both adoption and usage of the impugned mark VISTARA by respondents were per se, dishonest since inception.

 

 

The Bench disagreed with the contention that the impugned mark VISTARA was a common dictionary word having a meaning in different languages including Sanskrit stated that it was an invented word having no meaning, especially as it was distinct, unconnected, arbitrary and neither synonymous nor related to a particular class of services/ goods of any kind whatsoever and which was bona fidely and genuinely adopted by it. The said trademark ‘VISTARA’ of appellant was thus arbitrary and distinctive.

 

 

“It would not be wrong to infer that the respondent no.1 mala fidely chose to apply for registration of a (device) mark instead of a (word) mark simply to circumvent the hurdles in the way qua the appellant and its registered trademark ‘VISTARA.

 

 

The Bench was of the view that the impugned mark VISTARA (device) of respondents would always be referred visibly, seen and called by the general public as the word VISTARA, it was highly improbable that a man of average intelligence and normal recall would be able to differentiate the said mark with the registered trademark ‘VISTARA’ of appellant which in all likelihood would lead to confusion.

 

 

The Bench stated that there was no occasion for the Trial Court to deny the relief of injunction merely because the respondents adopted and used the impugned mark VISTARA in different Classes/ products, more so, whence the adoption was itself tainted and was not backed by any material particulars.

 

 

The Bench was of the view that there was no proof qua the contention of the respondents that they had entered into various contracts, established deep trade channels, business networks and industry of operations, and that they had many dependent employees and an injunction would result in their loss of customers. Thus stated that the Section 12 of TM Act could not come to the aid of the respondents under suspicious circumstances.

 

“It is a settled principle in trademark law that ‘adoption’ takes precedence over ‘usage’ and any subsequent usage after wrongful adoption of a mark cannot/ ought not be given any credence.” The Court opined that undue importance had erroneously been given to the wrongful adoption and unwarranted usage of the impugned mark VISTARA by the respondents as the same was dissimulating without any explanation from them.

 

 

The Bench was of the view that the Trial Court neglected to give due weightage to its association, existence and popularity with the appellant as those were certainly relevant factors worthy of consideration for any mark to be declared as such, more so, when the legislature in its wisdom had knowingly recognised and accorded a better protection than to an already existing registered trademark.

 

 

“It is reiterated that once a trademark is registered it is well and truly entitled to all the statutory protection recognized and available under the TM Act. This is why, as per the Statute (TM Act) when a word is adopted under Section 2(m) as a ‘mark’ under the TM Act it can not only qualify to become a trade mark as per Section 2(p) of TM Act but can also, with the passage of the time, certainly progress and qualify to become a ‘well-known mark’ as per Section 2(zg) of TM Act.”

 

 

 

The Bench stated that the existence of third parties apart from the respondent 1, who were either using VISTARA as their corporate name or using it as a mark, was immaterial and of no relevance for the purposes of adjudication of the present dispute.

 

 

“A registered proprietor was a master of its own ring and is not expected to be on its toes always to chase each and every infringer passing off its trademark and is free to initiate appropriate actions, if any, against any infringing party of its choice, on its own volition.

 

 

The Bench noted that the appellant was vigilant in pursuing its concern with the respondents as on becoming aware of the adoption of the impugned mark VISTARA by respondents, it issued a legal notice followed up with a reminder thereto, both of which were never replied despite due service, and had instituted the suit before the Trial Court.

 

 

It was of the view that the Trial Court had erred in overlooking the fact that the respondents had, admittedly, not initiated any proceedings against the appellant, either before the Trade Mark Registry or before any Court of law in all the time while the interim application was being heard till passing of the impugned order.

 

 

“Therefore, it would not be wrong for this Court to conclude that the defenses raised by the respondents are after-thoughts and the learned Trial Court ought to have ignored them while passing the impugned order.”

 

The Court found that impugned order was contrary to the settled principles of law, which did not concur with either the reasonings or the findings given by the Trial Court.

In CRM-M-33946-2022 – PUNJ HC - Punjab and Haryana High Court grants bail to petitioner accused of offenses under Central Goods and Services Tax Act, considering ongoing pre-charge evidence stage
Justice Manjari Nehru Kaul [08-05-2023]

Read Order: Shamim Akhtar v. Directorate General of GST Intelligence, Gurugram

 

 

Chahat Varma

 

Chandigarh, June 1, 2023: The Punjab and Haryana High Court has granted bail to the petitioner, who was accused of offenses under the Central Goods and Services Tax Act, 2017 (CGST Act). The court took into account that the trial was still in the pre-charge evidence stage and was unlikely to conclude in the near future.

 

The petitioner had sought the concession of regular bail under Sections 132(1)(A) & (I) of the CGST Act. The petitioner had contended that they were falsely implicated in the case, as evidenced by the absence of any cash or Agriculture Grade Urea being recovered from them. It was argued that the arrest of the petitioner on 26.04.2022 was in contravention of the statutory provisions of the CGST Act, as the adjudication and assessment of tax liability had not yet commenced. On the other hand, the respondent, while opposing the prayer and submissions made by the petitioner, contended that the Agricultural Grade Urea was utilized by the petitioner for producing Resin. The resin was subsequently sold without issuing tax invoices, resulting in a loss to the State Exchequer, on account of the evasion of GST.

 

The court found no justification for continuing the petitioner's incarceration and thus granted bail.