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Everything you need to know while travelling with gold.

Chandni Joshi , , , , , ,

Everything you need to know while travelling with gold.

CUSTOM GUIDELINES

Every passenger entering India has to pass through Customs check. The passenger has to declare the contents of his baggage in the prescribed Indian Customs Declaration Form At airports the passenger has the option  of seeking clearance through the Green Channel or through the Red Channel subject to the nature of goods being  carried.

Everything you need to know while travelling with gold & customs - Bhatt & Joshi Associates

GREEN AND RED CHANNELS

For the purpose of Customs clearance of arriving passengers, a two channel system has been adopted:-

  1. Green Channel for passengers not having any dutiable goods.
  2. Red Channel for passengers having dutiable goods. However, Green channel passengers must deposit the Customs portion of the disembarkation card to the Customs official at the exit gate before leaving the terminal.

Passengers walking through the Green Channel with dutiable/prohibited goods are liable to prosecution/ penalty and confiscation of goods.

Baggage rules 2016

The question is whether the Baggage Rules, 2016 have any application to the gold bangles worn by the Applicants also arises for consideration?

Rule 3:Passenger arriving from countries other than Nepal, Bhutan or Myanmar

An Indian resident or a foreigner residing in India or a tourist of Indian origin, not being an infant arriving from any country other than Nepal, Bhutan or Myanmar, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say :-

 

  • used personal effects and travel souvenirs; and
  • articles other than those mentioned in Annexure-I, upto the value of fifty thousand rupees if these are carried on the person or in the accompanied baggage of the passenger.

 

Provided that a tourist of foreign origin, not being an infant, shall be allowed clearance free of duty articles in his bona fide baggage, that is to say,

 

  • used personal effects and travel souvenirs; and
  • articles other than those mentioned in Annexure- I, upto the value of fifteen thousand rupees if these are carried on the person or in the accompanied baggage of the passenger.

 

Provided further that where the passenger is an infant, only used personal effects shall be allowed duty free.

Explanation.- The free allowance of a passenger under this rule shall not be allowed to pool with the free allowance of any other passenger.”

Rule 5  Jewellery:

A passenger residing abroad for more than one year, on  return to India, shall be allowed clearance free of duty in   his bona fide baggage of jewellery upto a weight, of twenty grams with a value cap of fifty thousand rupees if brought by a gentleman passenger, or forty grams with a value cap of one lakh rupees if brought by a lady passenger.

ANNEXURE–I

(See rule 3, 4 and 6)

 

  • Fire arms.
  • Cartridges of fire arms exceeding 50.
  • Cigarettes exceeding 100 sticks or cigars exceeding 25 or tobacco exceeding 125 gms.
  • Alcoholic liquor or wines in excess of two litres.
  • Gold or silver in any form other than ornaments.
  • Flat Panel (Liquid Crystal Display/Light-Emitting Diode/ Plasma) television.”

 

PROVISIONS UNDER WHICH PASSENGERS MADE LIABLE.

Section 111. Confiscation of improperly imported goods, etc.—

The following goods brought from a place outside India shall be liable to confiscation:—

 

  • any goods imported by sea or air which are unloaded or attempted to be unloaded at any place other than a customs port or customs airport appointed under clause (a) of section 7 for the unloading of such goods.
  • any goods imported by land or inland water through any route other than a route specified in a notification issued under clause (c) of section 7 for the import of such goods.
  • any dutiable or prohibited goods brought into any bay, gulf, creek or tidal river for the purpose of being landed at a place other than a customs port.
  • any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force.
  • any dutiable or prohibited goods found concealed in any manner in any conveyance.
  • any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report which are not so mentioned.
  • any dutiable or prohibited goods which are unloaded from a conveyance in contravention of the provisions of section 32, other than goods inadvertently unloaded but included in the record kept under sub-section (2) of section 45.
  • any dutiable or prohibited goods unloaded or attempted to be unloaded in contravention of the provisions of section 33 or section 34.
  • any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof.
  • any dutiable or prohibited goods removed or attempted to be removed from a customs area or a warehouse without the permission of the proper officer or contrary to the terms of such permission.
  • any dutiable or prohibited goods imported by land in respect of which the order permitting clearance of the goods required to be produced under section 109 is not produced or which do not correspond in any material particular with the specification contained therein.
  • any dutiable or prohibited goods which are not included or are in excess of those included in the entry made under this Act, or in the case of baggage in the declaration made under section 77.
  • any goods which do not correspond in respect of value or in any other particular] with the entry made under this Act or in the case of baggage with the declaration made under section 77 in respect thereof or in the case of goods under transhipment, with the declaration for transhipment referred to in the proviso to sub-section (1) of section 54.
  • any dutiable or prohibited goods transisted with or without transhipment or attempted to be so transited in contravention of the provisions of Chapter VIII.
  • any goods exempted, subject to any condition, from duty or any prohibition in respect of the import thereof under this Act or any other law for the time being in force, in respect of which the condition is not observed unless the non-observance of the condition was sanctioned by the proper officer 
  • any notified goods in relation to which any provisions of Chapter IVA or of any rule made under this Act for carrying out the purposes of that Chapter have been contravened.”

 

 

Section 77  Declaration by owner of baggage.—The owner of any baggage shall, for the purpose of clearing it,  make a declaration of its contents to the proper officer.”

Section 112 Penalty for improper importation of goods, etc. —Any person—

 

  • who, in relation to any goods, does or omits to do any act which act or omission would render such goods liable to confiscation under section 111, or abets the doing or omission of such an act, or
  • who acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing, or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111, shall be liable.
  • in the case of goods in respect of which any prohibition is in force under this Act or any other law for the time being in force, to a penalty ,not exceeding the value of the goods or five thousand rupees, whichever is the greater.
  • in the case of dutiable goods, other than prohibited goods, to a penalty not exceeding the duty sought to be evaded on such goods or five thousand rupees, whichever is the greater;
  • in the case of goods in respect of which the value stated in the entry made under this Act or in the case of baggage, in the declaration made under section 77 (in either case hereafter in this section referred to as the declared value) is higher than the value thereof, to a penalty not exceeding the difference between the declared value and the value thereof or five thousand rupees], whichever is the greater.
  • in the case of goods falling both under clauses (i) and (iii), to a penalty 220 not exceeding the value of the goods or the difference between the declared value and the value thereof or five thousand rupees], whichever is the highest.
  • in the case of goods falling both under clauses (ii) and (iii), to a penalty 221 not exceeding the duty sought to be evaded on such goods or the difference between the declared value and the value thereof or five thousand rupees,whichever is the highest.

 

 

NOW QUESTION ARISES WHETHER THERE IS NEED FOR ABSOLUTE CONFISCATION OR NOT?

The issue of absolute confiscation of goods and option of redemption thereof has been subjected to judicial interpretation in the past with rulings of the High Court and Tribunal on the same.

In case of : Commissioner Of Customs … vs Uma Shankar Verma Calcutta High Court:

Para 10

“…..

has held that if the goods are prohibited then the option is with the Customs Authority to confiscate without giving any option to pay fine in lieu thereof but  when the goods are not prohibited then the Customs Authority has no other option but to allow grant of an option to the party to pay a fine in lieu of confiscation.

  ….”

In the case of :Kuber Casting Private Limited v. Commissioner of Commissioner of Customs, Amritsar-( Tribunal-Chandigarh):

Para 5

“….

As the goods impugned are not restricted goods, therefore, they can be released on payment of redemption fine and penalty, the Tribunal held that the redemption fine and penalty imposed on the appellant highly excessive and the goods cannot be held for confiscation on the charge of misdeclaration of Description.

….”

 

CONFISCATION OF GOLD NOT DECLARED

Central board of indirect tax and customs, vide their Letter No.  495/5/92-CUS-VI dated 10.5.93 have instructed that in case of non-declaration of gold even in respect of passengers otherwise eligible to bring gold should be absolutely confiscated.

In Shri Kamlesh Kumar In re 1993(67) ELT 1000, The Government of India in revision, it was held that such an option cannot be claimed as a right. This is because the condition regarding payment of duty in forign exchange is not satisfied (as goods were not declared) and hence these become ‘prohibited goods’. However, if a passenger is otherwise eligible to import gold, the option to pay redemption fine may be given considering all aspects. 

CONFISCATION EVEN IF DECLARATION MADE

In R Karuppan v. R Namachivayam 1998 ElT 214 

Hon’ble Madras High Court (Divisional Bench) , it was held that goods can be confiscated and penalty imposed even if the passenger had voluntarily declared the goods in his baggage.

GENERAL DEFENSE AVAILABLE

Section 2(3):“Section 2(3):includes unaccompanied baggage but does not include motor vehicles.”
Section 2(39):“Section 2(39): “smuggling”, in relation to any goods, means any act or omission which will render such goods liable to confiscation under section 111 or section 113.
Section (33):“Section (33):“prohibited goods” means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported, have been complied with.

[While prohibited and restricted items may sound the same, there is an actual difference – prohibited items must never be sent in the post, while restricted items may be sent in the post, but restrictions will apply.]”

 

Section 125. Option to pay fine in lieu of confiscation

 

  • Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit:

 

Provided that, without prejudice to the provisions of the proviso to subsection (2) of Section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable therein.

 

 

  • Where any fine in lieu of confiscation of goods is imposed under  subsection (1), the owner of such goods or the person referred to in Sub-section (1), shall, in addition, be liable to any duty and charges payable in respect of such goods.”

 

In Collector of Customs, Bombay vs M/s Elephanata Oil and Industries Ltd.

“Hon’ble Supreme Court held that from the perusal of Section 112 and 125 of Customs Act 1962 it is apparent that both operate in different fields, namely, one requires imposition of penalty and other provides for confiscation of improperly imported goods section 111 provides that goods brought from the place outside India are liable to confiscation, discretion is given to the authority to impose penalty . Further Section 125 empowers confiscation of such goods and thereafter , confiscated goods vest in the Central Government. The Section further empowers the authority to give an option to the owner or the person from which goods are seized to pay a fine lieu of such confiscation for return of goods and the fine is also limited up to the market price of the goods. Therefore, levy of fine in lieu of confiscation is in addition to levy of penalty impossible under Section 112.”

CONCLUSION

in our respectful opinion the body of the passenger is not ‘baggage’, gold ornament worn by passengers need not be declared “Section 2(3): “baggage” includes unaccompanied baggage but does  not include motor vehicles.” In vigneswaran Sethuraman v. Union Of India WP(C).No. 6281 of 2014 (I) Hon’ble High Court Of Kerala At Ernakulam stated that

that the body of a passenger is not ‘baggage’ Hence, gold ornaments worn by passengers need not to be declared. Baggage rules do not prohibit a foreign tourist entering into india from wearing a gold chain or other gold jewellery.. In Kartar Singh V. State of Punjab The Hon’ble Supreme Court of India has stated  and held that. “It is the basic principle of legal jurisprudence that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. It is insisted or emphasised that laws should give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Such a law impermissibly delegates basic policy matters to policemen and also judges for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. More so uncertain and undefined words deployed inevitably lead citizens to “steer far wider of the unlawful zone….than if the boundaries of the forbidden areas were clearly marked.”. 

 

The Customs Act, 1962 or the Baggage Rules, 2016 do not stipulate that a foreign tourist or Indian Resident entering India cannot wear gold ornaments on his body. The Customs Act, 1962 and the Baggage Rules, 2016 do not provide sufficient warning to foreign tourists or Indian residents entering India that wearing a gold chain is prohibited. The Act and the Rules do not even remotely indicate that a foreign tourist or indian resident entering India cannot wear a gold chain on his person. In other words, foreign tourists entering India are in a boundless sea of uncertainty as to whether it is prohibited or not. As the Customs Act, 1962 and the rules framed thereunder contemplate confiscation and levy of penalty as also prosecution, the State has a duty to specify with a degree of certainty as to what is prohibited and what is not, without leaving it to the foreign tourist to guess what is prohibited and what is not.

 

Customs Law and Procedures

Chandni Joshi , , , ,

Customs Law and Procedures

Introduction

Customs duty is a tax which the State collects on goods imported into or exported out of the boundaries of a country. Customs duties now form a significant source of revenue for all countries, more so in the case of developing countries like India. loopchain technology to be applied to Import Customs Clearance Procedure for the Korea Customs Service | by ICON Foundation | Hello ICON World | MediumIn India, customs duties are levied on the goods and at the rates specified in the Schedules to the Customs Tariff Act, 1975. The taxable event is import into export from India. Export duties are practically non-existent at present. They are levied occasionally to mop up excess profitability in international price of goods in respect of which domestic prices may be low at given time. But sweep of import duties is very wide, almost universal, barring a few goods like food grains, fertilizer, life saving drugs and equipment etc. Import duties generally consist of the following: 

  1. Basic duty. It may be at the standard rate or, in the case of import from some countries, at the preferential rate.
  2. Additional customs duty equal to central excise duty leviable on like goods produced or manufactured in India. It is commonly referred to as countervailing duty or C.V.D.
  3. Special additional duty of Customs at the rate of 4% in order to provide a level playing field to indigenous goods which have to bear sales tax. This duty is to computed on the aggregate of–
  1. assessable value; 
  2. basic duty of Customs;
  3. surcharge; and
  4. additional duty of Customs leviable under section 3 of the Customs Tariff Act, 1975 (c.v.d.)
  1. Additional duty of Customs at the rate of Re. 1/- per liter on imported motor spirit (petrol) and high speed diesel oil.

Anti-dumping duty/Safeguard duty for import to specified goods with a view to protecting domestic industry from unfair injury.

Import & Export through Courier

In order to regulate the import and export, of light weight goods into and out of the country the Government of India had framed Courier Imports (Clearance) Regulation in 1995 which were revised by framing an up to date Courier Imports and Exports (Clearance) Regulations in 1998. Private companies have been registered as authorised couriers in the International Airports at Mumbai, Delhi, Chennai, Calcutta, Bangalore, Hyderabad, Ahmedabad and Jaipur by the Customs Commissioner of the respective places.

TYPE OF GOODS THAT CAN BE SENT

 All types of goods can be sent through the courier mode into India and out of India except few articles. The goods which are prohibited for import through courier are:

  1. Animals & parts thereof or plants & parts thereof, 
  2. Perishable goods, 
  3. Publications containing maps showing incorrect boundaries of India,
  4. Gold or silver in any form,
  5. Precious and semi precious stones & Studded jewellery,
  6. Chemicals of chapter 28, 29 & 38 of the first schedule to Customs Tariff Act which need testing

Similarly, the export of the following goods are also restricted:

  1. Goods which are subject to levy of any duty on their export,
  2. Goods proposed to be exported with claim for Draw of Customs duty,
  3. Goods exported under Duty Entitlement Pass Book Schemes or Duty Exemption Scheme or Export Promotion Capital Goods Scheme, and
  4. Goods where the value of consignment is above Rs. 25,000/- and Waiver from the RBI not to bring in Foreign Exchange is not available, 

SAMPLES, GIFTS AND TRADE GOODS 

  1. Document of any form including messages, information or data recorded on papers, cards, photographs which are not subjected to any prohibition or restrictions can be imported and exported. 
  2. Bonafide commercial samples can be imported through courier provided the said samples are being received free of cost (see Import of Samples). Similarly, gifts from persons abroad up to the value of Rs. 5,000/- and all the life saving drugs and equipment which are not chargeable to any duty at present (see Notification 20/99-Cus) can also be sent to India through the courier mode. 
  3. Commercial goods which are dutiable can also be imported through the courier without any restriction of quantity subject to payment of duty by the courier company at the time of clearance of the said goods from the Customs. 

IMPORTANT CLARIFICATIONS

Whether the value of Rs. 5,000/- for the gift or the commercial samples means the value of the goods in India or the country of sender?

The value of Rs. 5,000/- is the export value of the goods excluding locally refundable taxes like VAT in the country from where the goods have been dispatched. In case of gifts and samples up to Rs. 5000/- it does not include freight or courier charges and insurance. However, in case of goods valued above Rs. 5000/- it freight and insurance would be added to calculate the duty payable. The sender may not necessarily be residing in the country from where the goods have been dispatched. A sender in the U.K. can send goods from South Korea to India. The value in South Korea would be taken into consideration.

What types of goods cannot be sent as gift or commercial samples through courier?

 All types of goods which are banned for import under the Foreign Trade (Development and Regulation) Act, 1992 are banned for import into India even as gifts or as commercial samples. The example of such goods are wild animals, wild birds or parts of wild animals and birds, narcotic drugs like opium, marijuana, ivory, arms like revolvers or pistols or other hand guns and ammunitions

 Can a person send jewellery to any manufacturer in India as sample?

 Gold jewellery or studded jewellery including samples thereof is not allowed to be imported by or sent to ordinary persons in India through courier route. However, the units in export processing zones or Export Oriented Units are allowed to import gems and jewellery, including samples thereof, through an authorised courier. However, the jewellery and its samples can be exported by all units through the courier.

 Why is there a prohibition for import of chemicals and perishable goods even of low value?

 It is not convenient to handle perishable goods through normal courier mode. The system of import or export of goods through courier is designed for very fast movement through the Customs. The chemicals imported may require testing of the same to ascertain its identity which would need some time and would also delay the processing of other consignments through courier. Therefore, the import of chemicals have been prohibited through courier route.

Chemicals can be sent through the same courier company who would submit it separately at the Air Cargo Complex for clearance. The Air Cargo Complex is invariably situated beside the Courier Terminal. However, the clearance is likely to take more time.

 Is there any limit of weight and size of the package that can be sent through the courier?

Packages up to 70 Kgs. of weight can be imported to India through courier mode. However, there is no such weight limit for export of goods through courier from India.

Why there is a restriction on goods to be exported with claim for Draw or any duty entitlement pass-book scheme of Export Promotion Capital Goods Scheme?

Under these schemes additional paper work is involved and, therefore, it delays clearance of this packet and in addition clearance of other packages is also delayed. However, these consignments can be cleared through the air-cargo complex by the same courier company. Invariably the air cargo complex and the courier terminal are situated side by side and, therefore, there is no inconvenience to the exporters.

HOW DUTY IS PAID, IF LEVIABLE?

 If the duty is small, the Courier Company makes the payment and collects it from the receiver at the time of delivery of the goods. If the duty assessed is high, they advise the party of the arrival of the goods and the party clears the goods directly from the Customs. The courier can get the goods detained, inform the client and with his consent make the payment of duty.

Machinery parts are sent abroad through couriers for repairs and reconditioning etc. what procedure is to be adopted during export of the said goods.

While sending the goods abroad, proper documents should accompany the package. The invoice may be attested by the Customs and a copy retained to enable Customs to identify the goods at the time of re-import of the said goods. The repairer may be advised to enclose a copy of sender invoice along with their own invoice. The repairer may be advised to clearly mention their repair charges for similar goods in the invoice, even if they have done it free. Along with invoice or on its body list of jobs carried out (fault list) may be given.

If part of the machinery cannot be repaired or replaced then during re-import such machinery has to bear duty as if it is being imported. The invoice should show separately cost of such parts/raw materials to enable proper valuation.

Refer to Notification No. 87/98-Cus (NT) dt. 9.11.98

Import of Gifts

All goods imported into India from abroad is liable to duties of Customs under

Section 12 of the Customs Act and also is liable to all the restrictions under the Foreign Trade (Development & Regulations) Act 1992. However, the Government has exempted gifts received from abroad by persons residing in India from the whole of duties of Customs and from restriction under FT (D&R) Act. At present, import of goods upto the value of Rs. 5,000/- is allowed as gift, duty free. This exemption is allowed only for bona fide gifts imported by air or post. For the purpose of calculation of this value of Rs. 5,000/- the air freight or postal charges paid are not added.

IMPORTANT CLARIFICATIONS

1. The value of Rs. 5,000/- is the value of the goods in the country from where the goods have been dispatched. The sender may not necessarily be residing in the country from where the goods have been dispatched.

2. The import has to be only through Air or through Post Parcel. 3. Any person abroad can send gifts. There is no specific restriction that only relatives can send the goods. Business associated, friends, relatives, companies or acquaintances can also send the gifts to residents in India.

ELEMENTS NECESSARY FOR DRAW UNDER SECTION 74 

The elements necessary to claim drawback are:

  1. The goods on which drawback is claimed must have been previously imported;
  2. Import duty must have been paid on these goods when they were imported;
  3. The goods should be entered for export within two years from the date of payment of duty on their importation (whether provisional or final duty). The period can be further extended to three years by the Commissioner of Customs on sufficient cause being shown.
  4. The goods are identified as the goods imported.
  5. The goods must be capable of being identified as imported goods.
  6. The goods must actually be re-exported to any place outside India.
  7. The market price of such goods must not be less than the amount of drawback claimed.
  8. The amount of drawback should not be less than Rs. 50/- as per Section 76-(1) (c) of the Customs Act. 

PROCEDURE TO CLAIM DRAW UNDER SECTION 74.

Drawback claims under Section 74 of the Customs Act are now being processed manually. To claim drawback under Section 74, the exporter should file the shipping bill under claim for drawback in the prescribed form and after assessment the goods are to be examined by the Customs officers for purposes of physical identification. After shipment, the claim is filed in the department, for sanction of drawback. The pre-receipted drawback payment order has to be forwarded to the drawback department upon which cheque is issued. If the information submitted by the exporter is insufficient to process the claim, a deficiency memo will be issued to the exporter seeking further information or documents to process the claim. On compliance the claims will be processed in the usual manner.

SUPPORTING DOCUMENTS REQUIRED FOR PROCESSING DRAW CLAIM UNDER SECTION 74 

  1. Triplicate copy of the Shipping Bill bearing examination report recorded by the proper officer of the customs at the time of export.
  2. Copy of the Bill of entry or any other prescribed documents against which goods were cleared for importation.
  3. Import invoice.
  4. Evidence of payment of duty paid at the time of importation of goods.
  5. Permission from the Reserve Bank of India for re-exports of goods, wherever necessary.
  6. Export invoice and packing list.
  7. Copy of the Bill of Lading or Airway bill. 
  8. Any other documents as may be specified in the deficiency Memo.

TIME LIMIT UNDER SECTION 74

In order to claim drawback under Section 74 the goods should be entered for export within two years from the date of payment of duty on the importation thereof. Provided that in any particular case the period of two years may on sufficient cause shown be extended by the by the Central Board of Customs and Central Excise by such period as it may deem fit.

The time limit have to be computed from the date of payment of duty up to the date of entry of goods for export under Sec 50 of the Customs Act for export by air or sea, under Section 77 for baggage items and Under Section 83 of the Customs Act for export by post

The claims should be filed in the manner prescribed under Rule 5 of Re-export of Imported Goods(Drawback of Customs Duties) Rules,1995, read with Public Notices issued by the Custom Houses. The time limit for filing the claim is three months from the date of let export order. If the exporter was prevented by sufficient cause from filing the claims within three months, the Asst. Commissioner of Customs can relax the time limit by three months.

The claim for drawback is processed under the following systems:

  1. Manual System
  2. EDI System
  3. By Post

PROCEDURE FOR CLAIMING DRAW UNDER SECTION 75 OF THE CUSTOMS ACT UNDER THE MANUAL SYSTEM: 

For the purpose of claiming drawback, the exporter is required to file a drawback-shipping bill in the prescribed Format as required under Rule 13 along with the necessary declaration. The goods after assessment are examined by the officers posted in the Examination Shed as required for each individual case. The examination report will indicate the nature of goods in terms of drawback schedule for classification and application of correct rate. Samples may have to be drawn for testing by lab in respect of chemicals, synthetic fabrics’ etc as specified from time to time to confirm the declarations in the export documents. The triplicate Copy if the drawback shipping bill which contain the examination report is the claim copy

SUPPORTING DOCUMENTS REQUIRED FOR PROCESSING THE CLAIM. 

  1. Triplicate of the Shipping Bill
  2. Copy of the Bank Certified Invoices.
  3. Copy of the Bill Lading/Airway Bill
  4. Sixtuplicate Copy of AR-4 wherever applicable
  5. Freight and Insurance certificate wherever the contract is CIF / C&F
  6. Copy of the Test report where the goods are required to be tested
  7. Copy of the Brand rate letters where the drawback claim is against the Brand rate
  8. Mate receipt
  9. Copy of the Contract or Letter of credit as the case may be
  10. Modvat Declaration wherever applicable
  11. Any declaration required as per foot note of the Drawback schedule
  12. Worksheet showing the drawback amount claimed
  13. DEEC Book and license copy where applicable.
  14. Transshipment certificate where applicable
  15. Proof of foreign agency commission paid if any
  16. Blank acknowledgement card in duplicate
  17. Pre–receipt for drawback amount on the reverse of Shipping Bill duly signed on the Rs1/- revenue stamp 

The claims are settled and passed by the appraiser if the amount sanctioned is below Rs 1,00,000/- and by the Assistant Commissioner, if the amount of drawback exceeds Rs1.00.000/-. After pre-audit, the cheques are issued to the designated banks for credit to the exporters account or handed over to the authorized representative of the exporter. For further details refer to the Public Notices issued by the concerned Custom Houses/ Central Excise Commissionerate. 

PROCESSING OF DRAW CLAIMS UNDER SECTION 75 OF THE CUSTOMS ACT UNDER THE EDI SYSTEM 

  1. Computerized processing of shipping bills is in vogue at over 19 ports in India. The shipping bills are processed under the Indian Customs EDI systems (ICES).
  2. Under the system, there would be no processing of paper documents except statutory declarations and endorsements until ‘let export’ order stage. Till such time exporters / CHAs are given access to file documents through the Service centre set up in the Custom Houses / Air Cargo complexes.
  3. Processing of drawback claims under the system will be applicable for all exports except in respect of the claims under Section 74 of the Customs Act and those relating to EPZ/100% EOU.
  4. For the excluded categories the export Shipping Bills will be filed manually and processed by AC Drawback, as hitherto. Under the EDI system there is no need for filing separate drawback claims. The shipping bill itself treated as drawback claim.
  5. In the EDI system the exporters are required to open their accounts with the Bank nominated by the Custom Houses/ ACC. This has to be done to enable direct credit of drawback amount to their accounts, obviating the need for issue of cheques.
  6. For export of goods under claim for drawback, the exporters will file S.D.F declaration in Annexure B in lieu of GR –1 FORM. The declaration in Annexure C would also be filed when the export goods are presented at the Export shed for examination and Let export. In addition they should file a declaration if any in the appendices applicable to the goods mentioned in the Public Notices issued by the Customs Houses / ACC for processing Shipping Bills under the EDI system.
  7. The rates of drawback under S.S Nos. are dependent upon conditions mentioned against them in the Drawback Schedule. To enable the EDI system to process the claims correctly exporters are advised to give the correct Sl.No. of relevant appendix applicable to their case. If the relevant declarations are not filed along with the Shipping Bill the system will not process the drawback claims. The exporters are therefore advised to file the declaration along with the Shipping Bills.
  8. After actual export of the goods, the drawback claims will be processed through the system on first come first served basis. The status of Shipping Bills and sanction of drawback claim can be ascertained from the query counter set up at the Service centre. If any query has been raised or deficiency noticed, the same will be shown on the terminal provided there. The exporter or his authorised representative may obtain a printout of the query/deficiency form the Service Centre if he so desires. The claim will come in Que. of the system as soon the reply is entered.
  9. Shipping Bills in respect of goods under claim for drawback against brand rates would also be processed in the same manner, except that drawback would be sanctioned only after the original brand letter is produced to AC Export and is entered in the system. The exporter should specify the S.S No 98.01 for such provisional claim
  10. All the claims sanctioned on a particular day will be enumerated in a scroll and transferred to the Nominated Bank through the system. The Bank will credit the drawback amount in their respective accounts of the exporters on the next day. Bank will send a fortnightly statement to the exporters of such credits made in their accounts.
  11. The steamer agents / Airlines will transfer the EGM electronically to the system so that the physical Export of goods is confirmed. The system will process the claims only on receipt of the EGM. 
  1. PROCEDURE FOR CLAIMING DRAW ON EXPORT BY POST- SECTION 75 OF THE CUSTOMS ACT 

For claiming drawback on goods exported by post, exporter is required to file his claim at the time of booking parcel with the postal authorities in the form prescribed in the Rules. The date of receipt of this form from the postal authorities by the Customs Authorities shall be treated as date of filing claim by the exporter for the purpose of Section 75 A of the Customs Act. Thus drawback is paid to the exporter within three months from the date of receipt of claim from the postal authorities. On receipt of the claim form, intimation is to be given to he exporter. Where claim form is incomplete a deficiency memo is issued within fifteen days of its receipt form the postal authorities. The exporter can resubmit this form after compliance with deficiencies within a period of 30 days. If such a claim is found to be in order, the same is acknowledged and the period of three months for payment of drawback in terms of Section 75 in such cases shall commence form the date of such acknowledgement.

TIME LIMIT UNDER SECTION 75

The claims should be filed in the manner prescribed under Rule 13, read with Public Notices issued by the Custom Houses. The time limit for filing the claim is three months from the date of let export order. If the exporter was prevented by sufficient cause FORM filing the claims within three months, the Asst. Commissioner of Customs can relax the time limit by three months and the Commissioner of Customs can relax the time limit for a period of nine months. Duties Rebated Under Drawback Scheme

Under the drawback scheme, the relief is given from the burden of duty incidence of Customs & Central Excise on basic inputs like raw materials. Components, Intermediates and packing materials used at various stages of production/manufacture. No relief of drawback is extended to duties suffered on capital goods, fuels and consumables used in relation to the manufacture of the export goods. It may also be noted that no relief of Sales Tax or Octroi or any other indirect tax is given by way of drawback. The finished stage of excise duties on the export product is also not reimbursed under this scheme and there are separate provisions for rebate of such finished stage duties under the Central Excises and Salt Act 1944 and the Rules framed thereunder.

Interest Payment

A new Section 75 A has been incorporated in the Customs Act to provide for payment of interest on delayed payment of drawback. Interest at the rate of 15% P.A. is payable to the exporters if the claim is not settled within three months from the date of issue of acknowledgement by the department. Acknowledgement under Rule 13(I) is issued only if the claim is complete in all respect. If the claim is deficient, the department within 15 days from the date of filing the claim will issue a deficiency memo. The exporter is required to comply with the deficiency memo within 30 days from the date of receipt of deficiency memo. The time limit in these cases will be completed after receipt of compliance and issue of acknowledgement card. Similarly, where an exporter has been paid erroneous or excess drawback and fails to repay the same within three months from the date of demand, he is liable to pay interest at the rate of 20% P.A.

Supplementary Chain

If the exporter finds that the amount of drawback paid is less than what he is entitled to, there is a provision for claiming supplementary drawback claims in the prescribed Format Under Rule 15 of the Drawback Rules, 1995. The time limit filing supplementary claim is three months from the date of original settlement.

CONCLUSION

Customs Duty is a tariff or tax imposed on goods when transported across international borders. The purpose of Customs Duty is to protect each country’s economy, residents, jobs, environment, etc., by controlling the flow of goods, especially restrictive and prohibited goods, into and out of the country.

NEW SOCIAL MEDIA RULES TO CURB MISUSE OF SOCIAL MEDIA

Chandni Joshi , , , , ,

NEW SOCIAL MEDIA RULES TO CURB MISUSE OF SOCIAL MEDIA

Introduction

The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “Intermediary Rules”) fundamentally change the way the internet will be experienced in India. Most notably, the Rules now will bring government control rather than regulation over digital news platforms and OTT video content providers. Several requirements under them suffer from unconstitutionality and undermine the free expression and privacy for millions of internet users in India.

On Feb 25, these rules were notified in the official gazette as the “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021”. For convenience, let’s just call them the Intermediary Rules. The Intermediary Rules have replaced the Information Technology (Intermediaries guidelines) Rules, 2011 (or the 2011 Rules). In this post, we bring a much more in-depth and legal analysis of the Intermediary Rules breaking down the top five changes in each chapter that impact your digital rights. New Social Media Rules LIVE Updates: Facebook Says It Aims To Comply With The Guidelines

Due Diligence Requirements for Intermediaries

The Rules came into effect on 25 February 2021. However, the provisions pertaining to due diligence requirements for significant social media intermediaries have been given a lead time of three months from the date of notification of the threshold of a significant social media intermediary (i.e. 25 February 2021) to implement the prescribed measures. Non-compliance with the provisions of the Rules may disqualify the intermediary from seeking exemption of liability under the IT Act and the intermediary may be liable to punishment under any law for the time being in force, including the IT Act and the Indian Penal Code 1860.

  1. Furnishing information to the government: The Rules state that intermediaries must provide information for verification of identity or assistance to any lawfully authorised government agency for prevention, detection, investigation and prosecution of offences or for cyber security incidents, no later than 72 hours of receiving a written order.
  2. Preservation of records: The Rules require intermediaries to preserve, maintain, and/or store the following information for 180 days: (a) any information that has been removed or access to which has been disabled under certain provisions of the Rules; and (b) user’s information regarding registration, after cancellation or withdrawal of such registration.
  3. Disabling access: Intermediaries are not permitted to store, host or publish unlawful information which is prohibited under any law for the time being in force. In case such unlawful information is hosted, stored or published, the intermediary must remove or disable access to such information as early as possible, but within 36 hours of receiving a court order or being notified by a government agency.
  4. Removal of/ disabling access to explicit content: The Rules require expeditious action from an intermediary to remove or disable, within 24 hours of complaint, access to any material exposing the private area of any person, material with any nudity or depiction of any sexual act or conduct, or impersonation in an electronic form. In addition, intermediaries must provide a mechanism for receipt of complaints from users to enable them to provide details in relation to such explicit content.
  5. Grievance redressal: Under the Rules, intermediaries must prominently publish on website, mobile application or both- (a) the name and contact details of grievance officer and (b) the complaint mechanism. The grievance officer must acknowledge the complaint within 24 hours and dispose of it within 15 days and provide reasons to the complainant for any action / inaction.
  6. Details to be published: Intermediaries must prominently publish rules and regulations, privacy policy and user agreement on its website, mobile based application or both. The users must be informed about types of information that are ‘objectionable’ which they shall not share, display, upload, etc. In addition to the types of objectionable information prescribed under the 2011 Rules, certain new types of information have been specified under the Rules. Therefore, intermediaries will have to consider revising the existing documents in this regard. Intermediaries must inform users at least once every year about (a) rules and regulations, privacy policy or user agreement and any changes thereunder; and (b) intermediary’s right to terminate user’s access or remove the non-compliant information from its platform in case of non-compliance with the rules and regulations, privacy policy or user agreement.

Other Diligence Requirements for Significant Social Media Intermediaries

  1. Significance threshold: Social media intermediaries with fifty lakh (five million) registered users or more have been classified as significant social media intermediaries and are subject to additional due diligence requirements beyond those prescribed for intermediaries in general. However, the Government may require any other intermediary to also comply with the rules applicable to significant social media intermediaries if services of such intermediary impose a material risk to the sovereignty or integrity of India, security of the State, etc. While in practice this could prove to be more of an enabling provision for the Government, at this initial juncture it appears that even relatively smaller social media platforms, could be brought under the ambit of stricter compliances under the Rules.
  2. Officers and contact address in India: All significant social media intermediaries are required to appoint: 
    1. Chief Compliance Officer; 
    2. Nodal Contact Person; and 
    3. Resident Grievance Officer, 

each of whom are to be employees residing in India. The Rules also necessitate significant social media intermediaries to have a physical contact address in India published on its website or mobile application or both. These mandatory requirements for all significant social media intermediaries, not only has significant implications in terms of setting up infrastructure and deployment of resources and employees in India but may also have significant commercial and tax implications for such intermediaries. However, absence of a mandatory incorporation requirement does leave flexibility for foreign intermediaries who do not have an incorporated entity in India.

  1. Active monitoring: In a departure from the 2011 Rules, significant social media intermediaries shall endeavour to deploy technology-based measures, including automated tools to identify information that depicts rape, child sexual abuse or conduct, or information that has previously been removed. The Rules also require maintenance of appropriate human oversight, and periodic review of such automated tools. The measures deployed are required to take into consideration the interests of free speech and expression, and privacy of users, including interests protected through the appropriate use of technical measures.
  2. Compliance report: Significant social media intermediaries must publish a monthly report containing details of- 
    1. the complaints received; 
    2. action taken; and 
    3. number of links/ information removed or to which access is disabled, 

pursuant to any proactive monitoring by using automated tools or any other relevant information as may be specified.

  1. Identification of first originator of information: Significant social media intermediaries which provide messaging services will be required to enable identification of the first originator of information if required by a court order or an order passed under Section 69 of the IT Act. In case the originator is outside the Indian territory, the first originator in India will have to be identified. The Rules mention that the contents of the message are not required, but the identity of the originator is required to be disclosed.
  2. Voluntary verification: The Rules impose an obligation on significant social media intermediaries to enable users who register for their services from India, or use their services in India, to verify their accounts by using any appropriate mechanism, including the active Indian mobile number of such users, to verify their accounts and to provide a visible mark of verification. However, it is specified that the verification cannot be used for any other purpose unless consented by the user.
  3. Grievance redressal: The grievance redressal mechanism of a significant social media intermediary is required to enable tracking of the grievance/complaint through a ticket number associated with such complaint. The intermediary is required to provide reasons for any action/inaction. The proposed mandatory grievance redressal mechanism may entail considerable overhaul of the existing grievance redressal mechanism.
  4. Removal of/disabling access to information: In case any objectionable information is removed by an intermediary on its own accord, following steps need to be taken – 
    1. ensure that prior to the removal/ disabling access, the user who created, shared, uploaded such content is notified of such removal/ disabled access along with reasons; 
    2. provide adequate and reasonable opportunity to the user to dispute the action and request for reinstatement of such access; and 
    3. resident grievance officer to maintain appropriate oversight over the dispute resolution mechanism.

RULES FOR OTT Platform & Digital Media

  1. The government has called for a grievance redressal system for OTT platforms and digital news media portals as well. The government is also asking OTT platforms and digital news media to self-regulate and wants a mechanism for addressing any grievances.
  2. While films have a censor board, OTT platforms will be required to self-classify their movies and content based on age. The content will have to be classified based on age appropriateness. The government wants the OTT players to classify films based on 13+, 16+ and those for adults and clarified it is not bringing any kind of censorship to these platforms.
  3. There has to be a mechanism of parental lock and ensuring compliance with the same. Platforms like Netflix already have an option for a parental lock.
  4. For publishers of news on digital media, they will be “required to observe Norms of Journalistic Conduct of the Press Council of India and the Programme Code under the Cable Television Networks Regulation Act thereby providing a level playing field between the offline (Print, TV) and digital media,” according to the government.
  5. It also wants a three-level grievance redressal mechanism. This will include self-regulation by the publishers; self-regulation by the self-regulating bodies of the publishers and oversight mechanism.
  6. The government wants digital media to appoint a Grievance Redressal Officer based in India who shall be responsible for the redressal of grievances received by it. The officer shall take decision on every grievance received by it within 15 days.
  7. There may be one or more self-regulatory bodies of publishers. According to the rules, this body “shall be headed by a retired judge of the Supreme Court, a High Court or independent eminent person and have not more than six members.”
  8. The body will have to register with the Ministry of Information and Broadcasting. This body will oversee the adherence by the publisher to the Code of Ethics and address grievances that have not been resolved by the publisher within 15 days.
  9. Further, the Ministry of Information and Broadcasting shall formulate an oversight mechanism. It shall publish a charter for self-regulating bodies, including Codes of Practices and establish an Inter-Departmental Committee for hearing grievances.

Current Scenario

As per May 26, Indian microblogging platform Koo on Saturday said it has met the compliance requirements of the new guidelines for digital platforms.  

  • A Facebook spokesperson noted that the company is working to implement operational processes and aims to comply with the provisions of the IT rules.
  • A Google spokesperson said the company has consistently invested in significant product changes, resources and personnel to ensure that it is combating illegal content in an effective and fair way, and to comply with local laws in the jurisdictions it operates in.

However, As per May, 26 both the companies have not yet accepted the rules laid by the central government.

On May, 26 WhatsApp moved the Delhi high court against the new rules announced in February for digital media companies, saying the requirement for them to adopt features such as traceability for identifying originators of messages violated the right to privacy under the Indian law and the company’s end-to-end encryption policy. It said the company does not believe traceability can be imposed in a way that cannot be spoofed or modified, leading to new ways for people to be framed for things they did not say or do.

Conclusion

The massive growth of digital platforms and social media in India has largely been fuelled by a moderate regulatory framework under the IT Act and 2011 Rules, with the online curated content space being largely unregulated. However, given the growing concerns around the information and content available over social media and content platforms across both, domestic, and foreign owned platforms accessible in India, detailed regulations for digital media from the Government were imminent.

With the digital space and technology constantly evolving world over, the regulatory framework for digital media will also develop further. Keeping this in perspective, it is imperative that stakeholders, policy makers, and Governmental bodies continue to engage in consultations and dialogue, to eventually achieve a regulatory landscape that is effective yet balanced for everyone.

 

Author: Vinay Sachdev

Editor: Adv. Aditya Bhatt & Adv. Chandni Joshi

How to Register a Cooperative Society

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Registration of Societies

RCPS Act Notification

List of Documents required to be submitted for Societies:

 

Checklist

List of common documents to be submitted by all types of societies

S. No.Name of Document
1Signed copy of Form – A (Rule – 3) for Registration
2Signature of Main Promotor in application & Signatures of minimum 10 persons from different families (or representatives of minimum 10 societies in case of federal society) who are eligible for becoming member of the Society
3Certified copy of resolution authorizing the Main Promoter to sign the application for registration (Section – 8 (3))
4Certificate by Police Station stating that the Main Promoter and members signing the application are not involved in criminal activity.
5Certificate by District Central Cooperative Bank regarding Bank Balance (Rule – 3 B)
6list of members/promotors with contribution towards share capital & admission fee
7Project Report (The scheme showing the details explaining how the working of the society will be economically sound and, where the scheme envisages the holding of immovable property proposed to be purchased, acquired or transferred to the society)
8No Objection Certificate from other Societies working in the area of operation

  • Not required iff same type of society is not existing in the area of registering society.
9Opinion of the Federal Society relating to Financial viability (It may apply to the cooperative credit structures)
10Certificate stating that 10 promotors are from different families and are residing in the area of operation of the Society (Certified copy of the Certificate by Talati / Chohra)
11Four copies of proposed by-laws of the Society (with signature of all promoters)
12Every proposed society has to pass the following resolutions (before filing the application for registration of society) And issue affidavit on Rs. 20 Stamp Paper (1 TO 6 resolution)

  • Appointment of Chairman of the meeting
  • Appointment of Main Promotor
  • Resolution regarding delegation of power for collecting Share Capital
  • Resolution regarding delegation of power for signing Certificates and Undertakings
  • Regarding selection of promotors and delegate the power to for signing By-laws
  • Regarding finalizing name of the Proposed Society and its area of operation.
  • Certificate by main promoter stating that no members of the society has any bad overdue debt of any other society
  • After registration only those persons include except have been the qualifiers as mentioned in By-laws.
  • Undertaking by main promoter stating that If Registrar suggests some modification in By-laws, then it shall be sanctioned in first general meeting of Society.
  • Affidavit by the Main Promoter declaring that members of proposed society are not member of other Societies having similar objectives.

List of Documents required to be submitted for specific Societies:

Industrial Cooperative Societies

S. No.Name of Document
1Experience certificates of members about work related to objectives of the Society
2Undertaking by main promoter assuring that the Society will get building for its activities
3Undertaking by main promoter that tools available with the Society for carrying out work activities as per the objective of the Society.
4Technical Opinion in cases whether required.

Labour Society

S. No.Name of Document
1There should be atleast 50 members and Promotors should not be contractors.
2Copies of Ration card and / or Aadhar card for residential proof
3Certificate regarding population of the area of operation from Talati cum Mantri
4Certificate by the Executive Engineer regarding society will get sufficient civil work after registration.
5Certificate by the Competent Authority – Members are beneficiaries of Integrated Rural Development Program (BPL)
6Certificate by the Roads and Building Department that members / Promotors are not associated with other Society and are not contractors

Agriculture Credit Cooperative Society Service / Multipurpose Agriculture Cooperative Credit Society

S. No.Name of Document
1Farmers, Khatedars, rural artisans, farm labourers, members of Scheduled Caste are to be member of Society. There should be 15 Farmer Khatedar members and Society can be enabled to loan Rs 2 lakhs.

  • Latest 7/12 of Farmers (Khatedars) to be submitted.
2Was there any Service Society in the area of operation? If Yes, Names:
3If any of the above society had gone under liquidation then

  • Yes
  • No

If Yes, Names

4Proof of amount deposited in bank
5Bank Balance Certificate
6Account statement of Income and Expenditure
7Undertaking by the main promoter stating that “We will align with District Central Cooperative Bank (DCCB) and seek loans for the members”
8Notes of proceedings of the General Meeting held for forming of the Society
9Proof of residence of all members of society showing that members shall be permanent residents of that village or Group of Village
10Undertaking by the main promoter that society is capable of hiring a building and provide proper training to the secretary.
11Register containing details of land occupied by the members and Form 8- A signed by the Talati of land owned by the members
12Certificate by the Talati regarding population of the village
13Register of comparative details of crops taken in the village.

Gopalak Multi-Purpose Cooperative Society

S. No.Name of Document
1Certificate by the Talati about population of cowherds/ Gopalak
2Signed copy of List of 51 members (with name & full detail)
3Certification from the Talati about being engaged in Animal husbandry
4Member of the society should not be the member of Agriculture credit society of the village or area of operation

  • Undertaking by the main promoter
  • NOC from Agriculture credit society operational in the area stating the above(if any)
5No family member of the member should be an overdue debtor of any other society

  • A common affidavit to be signed by each member
6No Objection Certificate of other agriculture cooperative credit society within area of operation
7Register of land and animals owned by the members

Milk Society

S. No.Name of Document
1Letter of District Milk Union regarding details of quantity of milk collected / purchased
2Proposed Centre is to be stared first. Registration is to be obtained within 6 to 12 months. Register and balance sheet of milk business of the Society during the said period
3If any another Society registered in the area of operation of the proposed Society, then certificate by the Talati cum Mantri regarding distance between two societies and No Objection Certificate from the existing society

Cooperation Credit/Saving and Credit Cooperative Society

S. No.Name of Document
1Names of villages and population certified by Talati
2In case of cooperative credit society there should be share capital of Rs 1,00,000/- and in case of saving & Credit Cooperative Society share capital Rs 10,000/-
3Register with photographs and signatures of the members
4Certificate by Talati / Chohra of population of the area of operation
5Affidavit of Promoters on Rs. 50/- Stamp Paper

Salaried Employees’ Credit Society

S. No.Name of Document
1Certificate in the issued by the Competent Officer regarding the members / promoters in the Proposed Society being salaried employees of Government or Non-Government Institutions
2There should be Rs. 10,000/- balance in the proposed bank account – Bank balance certificate
3Undertaking by the Main Promoter stating that Loan shall be granted after proper evaluation of loan application and recovery shall be done regularly without partiality
4Undertaking by the Competent Officer regarding making deduction of loan instalment from the salary (every month)
5Undertaking by the Main Promoter regarding maintaining financial liquidity in the Society

Seed Producers Sales /Processing Cooperative Society

S. No.Name of Document
1100 members, Caste wise register
2Records in Form 8-A about promoters occupying land / halting land
3Undertaking by the Main promoter declaring that members occupying land and have knowledge about agriculture produce and research.
4Details on from where loan / assistance/ subsidy for completion of work of the scheme will be obtained
5How the Society complete its project with loan/ assistance/ subsidy. Show the details.

Fruit and Vegetables Producer / Processing Cooperative Society

S. No.Name of Document
1Details of number of Farmer (Khatedar) and number of farmers planting vegetables in the village
2Undertaking by the Main Promoter declaring that all the members of the proposed society are carrying out agriculture and are farming vegetables

Cotton Producers’ Cooperative Society

S. No.Name of Document
1Details of farmers taking cotton crop from amongst the Khatedar Farmers of the village
2Undertaking by the Promoters declaring that all the members carry out agriculture and cotton farming
3Register showing details of cotton farming by the members

Housing Society

S. No.Name of Document
1.Details of scheme under which the Society is to be registered
2.Member should be eligible for entering into contract, should be a common resident of village / city of the area of the society

  • Submit proof of residence of each member
4.Whether Contractor or land owners, Engineers or Architects or family members of the Promoters are member of the society? Yes/No, if yes than detail shall be given.
5.Details of printed receipts that have been given for funds collected
6.Whether advertisements have been published in local tabloids/pamphlets/leaflets by the Society?

  • Yes
  • No

If Yes, please give details & copy of advt.

7.In case the Society is for other than general classes, then society submits of all certificate issue by the Social Welfare Department.
8.Whether provision has been made for transfer Fee in the by-laws?

  • Yes
  • No
9.Whether any member of the proposed Society owns more than one house?

  • Yes
  • No

If Yes, please give details

10.Whether it is a Government Employees’ Housing Society?

  • Yes
  • No

If Yes, submit certificate issued by competent authority stating that the members are government employees.

11.Details of land.

  • Form No. 7 / 12, 8-A records of the latest date for land owners
  • Certificate by the Competent Officer exempting from the Land Ceiling Act
  • If land is NA than the certificate from competent officer
  • If land situated in residential zone, then the market value (as valued by govt. approved valuer) of society match with purchased value of the society. For the certificate of Governmental approved valuer or of Government Engineer
  • In case the land is private, copy of sale agreement
  • Lay-out plan / building plan should be signed by Engineer
  • New by-laws relating to land
  • If the land is fragmented, whether distance in excess of 250 meters has been maintained. Not less than 250-meter distance shall be maintained in fragmented land.
  • Provision for road maintain in map.
  • Whether common plot has been shown in the lay-out plan.
  • Verification Officer has visited the land where the Proposed Society is located
  • Member register shall be submitted.
  • Certificate by the Main Promoter declaring that registration of the Society shall be without Government aid.
  • Leaflet U. (four copies)

Consumer Stores/ Consumer Cooperative Society

S. No.Name of Document
1If there are more than one villages in the area of operation, distance between them

  • Affidavit by main promoter
2Society shall be register with at least 100 members. Promotors shall have to give undertaking after registration of the society, total number of the society shall be 500.
3Certification by Talati regarding village having population of 10,000 or more
4Undertaking of not selling Custom Goods

Community Farming Society

S. No.Name of Document
1Latest copies of Form 7 / 12 and Form- 6 (Records of Rights of lands owned by Members / Promotors)
2Agreement of Sale for the land to be acquired (with copies of 7 / 12 and Form-6 (Records of Rights)
3Register of contribution with complete details of members

Irrigation Cooperative Societies

S. No.Name of Document
1Minimum Share Capital Rs. 500/-
2Copies of land area of members falling within the Command Area (Copy of 7/12 certificates)
3Undertaking by the Main Promotors stating that the all members are staying in the area of operation of the society.
4No Objection Certificate by the Competent Officer regarding any bore or canal passing through the Command Area.
5No Objection Certificate from the Competent Officer of the Corporation or Panchayat if the Society is to be registered on the bore of Corporation or Panchayat
6Undertaking by the Main Promotors regarding compliance to the terms set by Corporation – Panchayat with reference to the bore with the Corporation or Panchayat.
7Undertaking by the Main promotor stating that society will not seek any loan / assistance from the Government or any financing institute for funds for bore scheme or any other scheme.

Narmada Irrigation Cooperative Societies

S. No.Name of Document
1Map of the irrigation area
2Undertaking from the Main Promotor that society will provide water to all members
3Form 8 – A records or 7/12 of lands of Promotors
4Undertaking of letter of acceptance from all the members
5Technical opinion by SSNNLs
6Certificate by concerned Executive Engineer, Canal Scheme, Canal Department regarding recognition of Irrigation Cooperative Society from Minor Branch.

Transportation Cooperative Societies

S. No.Name of Document
1Driving license and address proof of promotors.
2Undertaking and commitment of all the members are current or retired employees of S. T. Corporation and associated with Transport business

Tobacco Growers Cooperative Society

S. No.Name of Document
1Details of the land owned by the member in the area of operation and details of tobacco produced by them.
2Details of activities of purchase and sale of tobacco and other produces as per Cooperative Tobacco Federation and recommendation letter by the Federation.
3Undertaking by each member that they are not associated with business of purchase or processing of tobacco.

/Fees Details

No fees

Timeline

60 Days from the date of application

Consumer Complaint Lodging Important Documents

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To provide simple, speedy and inexpensive redressal of consumer disputes, the CPA envisages a 3-tier quasi-judicial machinery at the National, State and District levels.

National Consumer Dispute Redressal Commission, known as National Commission, deals with complaints involving costs and compensation higher than Rs. One Crore.

State Consumer Dispute Redressal Commission, known as State Commission, deals with complaints involving costs and compensation higher than Rs. Twenty Lakh and less than Rs. One Crore.

District Consumer Dispute Redressal Forum, known as District Forum, deals with complaints involving costs and compensation less than Rs. Twenty Lakh.

Consumers can file different types of complaints depending on their specific grievance by visiting the Consumer Court at the district, state or national level along with the documents required for filing the complaint.

Following is a list of documents that the prospective complainants need to carry with them to the Consumer Court at the time of filing the complaint

Cases at District Forums

Consumer Case (Cc)
# Fee For Making Complainant,If Required(In The Name Of Registrar,Ncdrc,New Delhi)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)
# Index

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Criminal Petition (Cp)
# Index

Interlocutory Application (Ia)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any(2 Years From Cause Of Action)
# Fee For Making Complaint
# Index

Execution Application (Ea)
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any
# Index

Cases At State Disputes Redressal Commissions

Consumer Case (CC)
# Fee For Making Complainant,If Required(In The Name Of Registrar,Ncdrc,New Delhi)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)
# Index

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Criminal Petition (Cp)
# Index

Interlocutory Application (Ia)
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any(2 Years From Cause Of Action)
# Fee For Making Complaint
# Index

Revision Petition (Rp)
# Stay Application With Affidavit,If Required
# Certifeid Copy Of Order Of State Commission
# Revision Petition With Affidavit
# Copy Of Order Of District Forum
# Limitations, If Any(Within 90 Days Of The Receipt Of The Order )
# Supporting Documents In Favour Of Rp
# Index

Transfer Application (Ta)
# Transfer Application With Affidavit
# Index

Execution Application (Ea)
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any
# Index

Review Application (Ra)
# Certified Copy Of Order Of National Commission
# Application For Review With Affidavit
# Supporting Documents In Favour Of Review Application
# Limitations, If Any(Within 30 Days Of The Receipt Of The Order )
# Index

First Appeal (Fa)
# Memo Of Appeal With Affidavit
# Stay Application With Affidavit, If Required
# Certified Copy Of Order Of State Commission
# Bank Drafts (In The Name Of Registrar, Ncdrc, New Delhi)
# Limitations, If Any (Within 30 Days Of The Receipt Of The Order )
# Any Other Documents Required
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Caveat Cases (Cv)
# Application
# Copy Of Order Of District Forum

Criminal Appeal (Ca)
# Memo Of Appeal With Affidavit
# Certified Copy Of Order Of District Forum
# Stay Application With Affidavit,If Required
# Any Other Documents Required
# Limitations, If Any
# Fdr, If Required
# Index

Cases At National Consumer Disputes Redressal Commission (NCDRC)

Consumer Case (CC)
# Fee For Making Complainant, f Required (In The Name Of Registrar, Ncdrc New Delhi)
# Index
# Complaint With Affidavit
# Supporting Documents In Favour Of The Complaint E.G. Receipt, Voucher Etc.
# Limitations, If Any (2 Years From Cause Of Action)

Miscellaneous Application (Ma)
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma
# Index

Revision Petition (Rp)
# Stay Application With Affidavit, If Required
# Certified Copy Of Order Of State Commission
# Revision Petition With Affidavit
# Copy Of Order Of District Forum
# Limitations, If Any (Within 90 Days Of The Receipt Of The Order )
# Supporting Documents In Favour Of Rp
# Index

Transfer Application (Ta)
# Transfer Application With Affidavit
# Index

Execution Application (Ea)
# Index
# Execution Application With Affidavit
# Certified Copy Of Impugned Order(S)
# Limitations, If Any

Review Application (Ra)
# Certified Copy Of Order Of National Commission
# Application For Review With Affidavit
# Supporting Documents In Favour Of Review Application
# Limitations, If Any(Within 30 Days Of The Receipt Of The Order )
# Index

First Appeal (Fa)
# Memo Of Appeal With Affidavit
# Stay Application With Affidavit,If Required
# Certified Copy Of Order Of State Commission
# Bank Drafts (In The Name Of Registrar,Ncdrc,New Delhi)
# Limitations, If Any (Within 30 Days Of The Receipt Of The Order )
# Index
# Any Other Documents Required
# Miscellaneous Application With Affidavit
# Supporting Documents In Favour Of Ma

Caveat Cases (Cv)
# Application
# Copy Of Order Of District Forum

 

What To Do When You Are Arrested

deeppatelj ,

When you are arrested, you are taken into custody. This means that you are not free to leave the scene. Without being arrested, you can be detained, however, or held for questioning for a short time if a police officer or other person believes you may be involved in a crime. For example, an officer may detain you if you are carrying a large box near a burglary site. You can also be detained by storekeepers if they suspect you have stolen something.

Whether you are arrested or detained, you do not have to answer any questions except to give your name and address and show some identification if requested.

What Rights Do I Have?

Whether you are an adult citizen or non-citizen, you have certain rights if you are arrested.
Before the law enforcement officer questions you, he or she should tell you that:
# You have the right to remain silent.
# Anything you say may be used against you.
# You have a right to have a lawyer present while you are questioned.
# If you cannot afford a lawyer, one will be appointed for you.
These are your rights, guaranteed by the Constitution. If you are not given these warnings, your lawyer can ask that any statements you made to the police not be used against you in court. But this does not necessarily mean that your case will be dismissed. This does not apply if you volunteer information without being questioned by the police.

Once I Am Told My Rights, Can I Be Questioned?

You can be questioned, without a lawyer present, only if you voluntarily give up your rights and if you understand what you are giving up. If you agree to the questioning, then change your mind, questioning must stop as soon as you say that you want a lawyer. If the questioning continues after you request a lawyer and you continue to talk, your answers can be used against you if you testify to something different. You may be required to give certain physical evidence. For example, if you are suspected of driving under the influence of alcohol you may be requested to take a test to measure the amount of alcohol in your system. If you refuse to take the test, your driver’s license will be suspended and the refusal will be used against you in court. Once you are booked, meaning your arrest is written into official police records and you are fingerprinted and photographed, you have a right to make and complete three telephone calls that are free within the local dialing area.

When Should I See A Lawyer?

If you are arrested for a crime, particularly a serious one, you should contact a lawyer as soon as possible. He or she has a better sense of what you should and should not say to law enforcement officers to avoid being misinterpreted or misunderstood. The lawyer also can advise you or your family or friends on the bail process.

Who Can Arrest Me?

All law enforcement officers – such as police officers, county sheriff officers, investigators in a district attorney’s or an attorney general’s offices and highway patrol officers – can arrest you whether they are on or off duty, in most cases. A probation or parole officer also can arrest you.

They can arrest you – even if they do not have an arrest warrant – if they have probable cause or good reason to believe you committed a felony, such as armed robbery. (A felony is a crime of a more serious nature than a misdemeanor, usually punishable by imprisonment for more than a year.) They do not have to see you commit a felony in order to arrest you. They do, however, have to see you commit a misdemeanor in order to arrest you.

If you commit an infraction, instead of taking you into custody, they may ask to sign a citation or notice. This is a minor offense, such as a moving violation, where the punishment usually is a fine. If you sign the citation, you are not admitting guilt; you are only promising to appear in court. If you have no identification or refuse to sign, however, an officer may take you into custody.

Can Someone Other Than A Police Officer Arrest Me?

Any person, such as a private security guard, can make a citizen’s arrest if they see a misdemeanor being attempted or committed. (A misdemeanor is a criminal offense, usually punishable with a fine or short jail term.) They also can make a legal arrest for a felony as long as it actually was committed and they have good reason to believe you did it. They must take you to a police officer or judge who is required by law to take you into custody.

When Is An Arrest Warrant Used?

Usually a warrant is required before you can be taken into custody in your home. But you can be arrested at home without a warrant if fast action is needed to prevent you from escaping, destroying evidence, endangering someone’s life or seriously damaging property.

The warrant must be signed by a magistrate or judge, who must have good reason to believe that you, whom the warrant names, committed a crime. If your name is unknown, “John Doe” can be used on the warrant – along with your description.

Once an arrest warrant is issued, any law enforcement officer in the state can arrest you – even if the officer does not have a copy of the warrant. Generally, there is no time limit on using a warrant to make an arrest.

Before entering your home, a law enforcement officer must knock and identify himself or herself and tell you that you are going to be arrested. If you refuse to open the door – or if there is another good reason – the officer can break in through a door or window.

If the police have an arrest warrant, you should be allowed to see it. If they don’t have the warrant with them, you should be allowed to see it as soon as practical.

The police may search the area within your reach. If you are arrested outdoors, they may not search your home or car.

Resisting an arrest or detention is a crime. If you resist arrest, you can be charged with a misdemeanor or felony in addition to the crime for which you are being arrested. If you resist, an officer can use force to overcome your resistance or prevent your escape. The officer can even use deadly force if it appears you will use force to cause great bodily injury.

When Can I Be Released?

If, during the questioning and before a charge is filed, the police are convinced that you have not committed a crime, they will give you a written release. Your arrest then will be considered a detention and not recorded as an arrest.

What Is Bail And How Is It Set?

The amount of bail – money or other security deposited with the court to insure that you will appear – is set by a schedule in each state. You may be notified that you can forfeit or give up bail instead of appearing in court if you receive a traffic citation. However, if you have any doubt, go to court so a warrant is not issued for your arrest for failing to appear. Bail forfeiture does not apply to misdemeanors or felonies. Forfeiting bail does not mean that the charges are dropped and usually works as a conviction for a traffic offense.

Officers at the jail may be able to accept bail. If you cannot post or put up the bail, you will be kept in custody. Depending on where you are arrested, you may have the opportunity to request a bail reduction through a bail commissioner.

When you are taken to court for bail setting or release, the judge will consider the seriousness of the offense you are charged with, any prior failures to appear (even for traffic tickets), any previous record, your connections to the community, as well as the probability that you will appear in court. The amount of bail is set according to a written schedule based on your charges. The law presumes you are guilty of the charges for purposes of setting bail or release.

Instead of paying bail, you might be released on your own recognizance or “O.R.” (or supervised O.R.). This means that you do not have to pay bail because the judge believes that you will show up for court appearances without bail.

Who Maintains Arrest Records And What Do They Include?

Local police departments and the State Department of Justice keep arrest records. According to law, they cannot show them to anyone except law enforcement officers and may only show records of your convictions to certain licensing agencies which have a right by state law to investigate your criminal background.

The arrest record includes when and why you were arrested, whether the charges against you were dropped or whether you were convicted of the charges, and the subsequent sentence imposed. Both pleading guilty and being found guilty after a trial count as convictions.

If you are convicted of committing a misdemeanor, placed on probation and stay out of trouble, you are able to have the conviction removed from your record for such purposes as employment background checks after probation is over. If you are convicted of certain felonies and you successfully complete probation, you can have the felony reduced to a misdemeanor on your record. You must contact the probation officer in either instance to clear your record.

What Happens at an Arraignment?
You have a right to be arraigned without unnecessary delay – usually within two court days – after being arrested. You will appear before a municipal or a justice court judge who will tell you officially of the charges against you at your first arraignment. At the arraignment, an attorney may be appointed for you if you cannot afford one, and bail can be raised or lowered. You also can ask to be released on O.R., even if bail was previously set.

If you are charged with a misdemeanor, you can plead guilty or not guilty at the arraignment. Or, if the court approves, you can plead nolo contendere, meaning that you will not contest to the charges. Legally this is the same as a guilty plea, but it cannot be used against you in a non-criminal case, unless the charge can be punished as a felony.

Before pleading guilty to some first-time offenses, such as drug use or possession in small amounts for personal use, you may want to find out if your county has any drug diversion programs. Under these programs, instead of fining you or sending you to jail, the court may order you to get counseling which can result in dismissal of the charges if you complete the counseling.

If misdemeanor charges are not dropped, a trial will be held later in municipal court. If you are charged with a felony, however, and the charges are not dropped, the next step is a preliminary hearing.

What Happens At A Preliminary Hearing?
During the preliminary hearing, usually within 10 court days of the arraignment, the district attorney’s office must present evidence showing a reasonable suspicion that a felony was committed and that you did it to convince the judge that you should be brought to trial.

You may have a second arraignment. If the felony charges are not dropped at the preliminary hearing, you will be arraigned in superior court where your trial later will be held.

If you are charged with a crime and unable to understand English, you have a right to an interpreter throughout the proceedings.

When Can An Officer Conduct A Search?

An officer always may only make a search with either your consent or a search warrant. You have a right, however, to see the warrant before the search begins.

When Can An Officer Search You, Your Home Or Your Car Without A Warrant?
Body Searches. If you are arrested, an officer can search you, without a warrant, for weapons, evidence or illegal or stolen goods. Strip searches should not be conducted for offenses that do not involve weapons, drugs or violence unless police reasonably suspect you are concealing a weapon or illegal goods and they have authorization from the supervising officer on duty. If you are booked and jailed, you may undergo a full body search, including body cavities.

Home Searches. In emergencies, such as when an officer may be trying to prevent someone from destroying evidence, your home can be searched without your consent and without a warrant. If you are taken into custody in your home, an officer without a warrant can search only the limited area in which you are arrested. Other rooms – and even other parts of the same room – are off limits, unless the officer believes that other suspects are hiding in other rooms. While searching your home, an officer can seize evidence of any crime, such as stolen property or drugs, that is in plain sight.

Car Searches. Your car and trunk can be searched without your consent or a warrant if an officer has good reason to believe it contains illegal or stolen goods or evidence. If the police stop your car for any legal reason – such as a broken tail light – they can take any illegal goods in plain sight.

If you, your home or your car are searched illegally, a judge might say that any evidence found during the search cannot be used against you in court. If you or your lawyer, however, do not object to the evidence before trial, the court might allow the evidence to be used. Even if the judge does decide that the evidence cannot be used against you, that does not always mean that your case will be dismissed.

Hierarchy of Criminal Trial and Criminal Trial in Indian Law

deeppatelj , ,

 

hierarchy of criminal courts in india.png(Note: This is an article written for layman having no knowledge of law. If you are a lawyer or a legal expert, please feel free to point out if there is any mistake in the article. If you want to give your inputs to make this better, please leave a comment at the bottom.)

Many a times we come across the term called criminal trial. In general parlance, we understand trial means that a person is facing a case in court of law. But generally people are not aware of the process of criminal trial in India. So here is the procedure for criminal trial that generally takes place in India.

Types of Criminal Trials

Before we proceed further, we must note that according to Criminal Procedure Code, criminal trial can be of tree types namely Trial in Warrant cases, Trial in Summon Cases and Summery Trial

Trial in Warrant Cases

Warrant cases are those cases in which an offence attracts a penalty of imprisonment for more than seven years and it includes offences punishable with death and life imprisonment. In such cases, the trial starts either by filing of FIR or by filing a complaint before a magistrate. And if the magistrate finds that the case relates to an offence carrying a punishment for more than two years, the case is sent to the sessions court for trial.

Section 193 of the Criminal Procedure Code clearly states that the session court can not take cognizance of any offence unless the case has been sent to it by a magistrate. The process of sending it to sessions court is generally called committing it to sessions court.

Trial in Summon Cases

A summon case is a case which is not a warrant case. So in simple words, those cases in which an offence is punishable with an imprisonment of less than two years is a summon case. In this case, one must understand that if a magistrate, after looking into the case, thinks that a case is not a summon case, he may convert it into a warrant case. In respect of summons cases, there is no need to frame a charge. The court gives substance of the accusation, which is called “notice”, to the accused when the person appears in pursuance to the summons.

Summary Trial

Case of offenses punishable with an imprisonment of not more than six months can be tried in a summary way. It is also to be noted that if the case has been tried in a summary way, a person can not be awarded a punishment of imprisonment for more than three months.

Pretrial stages

Registration of FIR

FIR stands for first information report which is lodged under section 154 of the Criminal Procedure Code. The FIR is only the basis information which is made available to the police when a cognizable offence takes place. FIR is the first stage from which a criminal case takes the birth.

Investigation

FIR in a criminal case leads to investigation in the case. Investigation leads an investigating officer to reach to a conclusion whether a chargesheet has to be filed or a closure report has to be filed in the case. If the investigation result in discovery of an offence, a chargesheet is filed, otherwise a closure report is filed before the concerned court.

Trial

If the investigating officer finds out that a case is fit for trial then he files a chargesheet in the case.

Filing of the charge sheet

The charge sheet is the brief summary of how an offence had been committed? What was the role of each person who was involved in the crime and the sections under which the investigating officer had charged all the accused. The charge sheet also contains the names of the person who were investigated but could not be charged due to lack of evidence in the eyes of the investigating agency. Filing of the charge sheet generally means that the investigation in the case is over and now the court has to consider the evidence collected by the investigating agency. It is to be noted, that if during the course of trial, some new facts come to the light, the agency may file additional charge sheets.

Framing of charges/Serving the Notice

if it’s a summon case, a simple notice is given and a response is sought from the accused. But in warrant cases, the court frames the charges.

Framing of charges mean that the court looks into the evidence collected by the investigating agency and applies its mind so as to what are the charges under which an accused has to be booked. For example, the police has filed a chargesheet accusing a person of murder under section 302, but the court deems it proper to charge the person for culpable homicide not amounting to murder under section 304. At this stage, if an accused pleads guilty then the court will apply its judicial mind and decide the punishment accordingly. And if the accused pleads not guilty, he is informed the charges under which he would be required to face the trial.

On the other hand, if the judge finds that no offence against an accused is made out, the accused is discharged from the case. The court has to apply its mind and record the reasons for discharging an accused.

Recording of the Prosecution Evidence

After the charges have been framed against an accused, the prosecution is required to produce  before the court, all the evidence collected by the investigating agency. It is to be noted that when the investigating agency produces the evidence before the court, the evidence has to be supplemented with the statement of the prosecution witnesses (PWs). The process of recording the statement of PWs is called Examination-in-Chief. The evidence which is brought before the court and which the court considers is called “Exhibit” .  The witnesses brought by the prosecution are expected to support the case presented by the prosecution and if they fail to do so, they are declared hostile and the prosecution may request the court not to rely on the statement of such a witness.

In case the witness supports the case of the prosecution, the defense is entitled to cross examine the witness so that they could find out the discrepancies in the statement of the witness concerned. If the defense succeeds in finding the discrepancies in the statement of the witnesses, they may ask the court not to rely on the statement of the said witness.

Statement of the accused

Section 313 of the Criminal Procedure code empowers the court to ask for an explanation from the accused if any. The basic idea is to give an opportunity of being heard to an accused an explain the facts and circumstances appearing in the evidence against him. Under this section, an accused shall not be administered an oath and the accused may refuse to answer the questions so asked. The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him.

Evidence of Defense

After the statement of the accused is over, the court applies its mind and tries to find out if the accused has committed any offence or not. If the court reaches the conclusion that no offence has been committed by the accused, he is acquitted. It must be noted that while acquitting an accused, the judge is expected to give reasons for acquitting the accused.

In cases of accused not being acquitted by the court, the defense is given an opportunity to present any defense evidence in support of the accused. The defense can also produce its witnesses and the said witnesses are cross examined by the prosecution. In India, generally the defense does not provide defense evidence as the criminal justice system in India puts burden of proof on the prosecution to prove that a person is guilty of an offence beyond the reasonable doubt.

Final Arguments of both the sides

Once the defense evidence of the accused is over, the prosecution presents its final arguments. In final arguments, the prosecution generally sum up its case against the accused. After the final arguments of the prosecution are over, the defense also present its final arguments. After the final arguments of both the sides are over, the court generally reserve its judgment.

Delivery of Judgment

After application of mind, the judge delivers a final judgment holding an accused guilty of offence or acquitting him of the particular offence. If a person is acquitted, the prosecution is given time to file an appeal and if a person is convicted of a particular offence, then date is fixed for arguments on sentence.

Arguments on sentence

Once a person is convicted of an offence, both the sides present their arguments on what punishment should be awarded to an accused. This is generally done in cases which are punished with death or life imprisonment.

Judgment with punishment

After the arguments on sentence, the court finally decides what should be the punishment for the accused. While punishing a person, the courts consider various theories of punishment like reformative theory of punishment and deterrent theory of punishment. Court also considers the age, background and history of an accused and the judgment is pronounced accordingly.

 

Format of Consumer Protection Complain

deeppatelj ,
BEFORE THE HON’BLE NATIONAL / STATE / DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION/FORUM AT ( CITY ).

COMPLAINT UNDER CONSUMER PROTECTION ACT, 1986.

 

 

IN THE MATTER OF :

(Name and address of complainant)

……………….. COMPLAINANT

VERSUS

                              (Name and address of the accused)

……………….. OPPOSITE PARTY

INTRODUCTION:

A brief paragraph about the complainant explaining the name, residence address and occupation of the complainant.

A brief paragraph about name, address and occupation of the opposite party.

RESPECTFULLY SHOWETH:

1. Description of the deal and services promised by the opposite parties for the value paid by the complainant.

2. Description of the advertisements given by the opposite parties which attracted the complainant to purchase the commodity and services.
TRANSACTION :

Details of the price of goods and services.

Details of the bill/invoice (bill number and date, item and amount)

Details of payments made by complainant (cheque number/cash, etc.)

NATURE OF COMPLAINT:

(select from list or write as required)

1. Misleading advertisements and false representation.

2. Cheating by giving false promises.

3. Deficiency in after sales service or not abiding by warranty clause.

4. Harassment by the opposite party.

5. Not delivering the goods and services for which payment is made.

6. Charging excess amount.

7. Any other factors that affected the consumer.

OTHER EVIDENCES OF SUPPORT OF COMPLAINT:

Copy of advertisement and catalogue that promised the concerned goods and services.

Copy of bill as evidence of purchase.

Other documents such as agreement copies, bounced cheques, opposite parties’ letters.

Copy of letters sent to the opposite party to request for rectification of fault and settlement of the grievance.

JURISDICTION:

(Select one)

As the total amount involved is more than Rupees 1 crore, the complaint is being filed with the Hon’ble National Consumer Disputes Redressal Commission.

OR

As the total amount involved is more than Rupees 20 lakhs and less than 1 crore, the complaint is being filed with the Hon’ble State Consumer Disputes Redressal Commission.

OR

As the total amount involved is less than Rupees 20 lakhs, the complaint is being filed with the Hon’ble District Consumer Disputes Redressal Forum.

PRAYER:

 

The complainant therefore prays :-

i) relief be granted to the complainant as demanded herein.

ii) that such orders be passed as the Hon’ble Consumer Forum may deem fit in the circumstances of the case.

iii) that the accused should be punished severely so that culprits of similar kind would be afraid to indulge in such criminal activities.

iv) mention any other statement of prayer you wish to state.

 

PLACE :                                                                    Signature

DATED :                                                        NAME OF THE COMPLAINANT
VERIFICATION

I (name of complainant), resident of (residential address) hereby declare that I have not misrepresented any facts nor have tried to hide any information in my above complaint. All the facts mentioned herein are true to the best of my knowledge.

                                                                  Name & signature of the complainant

Please note: The affidavit should be notarized before further copies of complaint set are made for submission.

Arrangement of the complaint papers:

All papers to be kept in paper file in following order:

1. Complaint

2. Affidavit

3. List of documents

4. Documents

5. Vakalatnama

6. Application for injunction (if any)

7. Application for condonation of delay (if any)

 

Page numbers to be written on lower right corner.

 

Deposit the complaint file at the consumer court along with appropriate court fee.

 

 

How to take Action against adulterated food / medicine

deeppatelj

You should write a complaint:

Complaints should be addressed to the Food and Drugs Administration department in your city.

For example at Mumbai you can contact:

Food & Drugs Administration
Survey No.341 Bandra Kurla Complex
Bandra (E) Mumbai 400 051

Tel.No: 26592519 (Asst. Commissioner)

Thane: Tel. No: 2531 1988

The Prevention of Food Adulteration Act, 1954 aims at making provisions for the prevention of adulteration of food. The Act extends to the whole of India and came into force on 1st June 1955.

 

WHAT IS ADULTERATED FOOD?

An article of food shall be deemed to be adulterated –

  1. if the article sold by a vendor is not of the nature, substance or quality demanded by the purchaser or which it purports to be;
  2. if the article contains any substance affecting its quality or of it is so processed as to injuriously affect its nature, substance or quality;
  3. if any inferior or cheaper substance has been substituted wholly or partly for the article, or any constituent of the article has been wholly or partly abstracted from it, so as to affecting its quality or of it is so processed as to injuriously affect its nature, substance or quality;
  4. if the article had been prepared, packed or kept under insanitary conditions whereby it has become contaminated or injurious to health;
  5. if the article consists wholly or in part of any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance or being insect-infested, or is otherwise unfit for human consumption;
  6. if the article is obtained from a diseased animal;
  7. if the article contains any poisonous or other ingredient which is injurious to health;
  8. if the container of the article is composed of any poisonous or deleterious substance which renders its contents injurious to health;
  9. if the article contains any prohibited colouring matter or preservative, or any permitted colouring matter or preservative in excess of the prescribed limits;
  10. if the quality or purity of the article falls below the prescribed standard, or its constituents are present in proportions other standard, or its constituents are present in proportions other than those prescribed, whether or not rendering it injurious to health.

Thus, additions of water to milk amount to adulteration, within the meaning of sub-clauses (b) or (c).

 

WHEN ARE FOODS MISBRANDED     
An article of food shall be deemed to be misbranded-

  1. if it is an imitation of, or is a substitute for, or resembles in a manner likely to deceive, another article of food, and is not conspicuously labelled so as to indicate its true character,
  2. if it is falsely stated to be the product of any place or country,
  3. if it is sold by a name which belongs to another article of food,
  4. if it is so coloured, flavoured, coated, powdered or polished as to conceal any damage to the article or to appear of greater value than it really is,
  5. if false claims are made for it upon the label or otherwise,
  6. if, when sold in sealed or prepared packages by its manufacturer, the contents of each package are not conspicuously and correctly stated on the outside thereof;
  7. if the package containing it is deceptive with respect to its contents, in any manner, such as label, statement, design or device which is misleading,
  8. if the package containing it, or the label thereon, bears the name of a fictitious individual or company as the manufacturer or producer of the article,
  9. if it purports to be, or is represented as being for special dietary uses, unless its label bears the prescribed information concerning its dietary properties,
  10. if it contains any artificial flavouring, colouring or chemical preservatives without declaring the same on the label, or in violation of the requirements of this Act and the Rules made thereunder, and
  11. if it is not labeled in accordance with the requirements of this Act and the Rules made thereunder.

Preservative: means a substance which when added to food, is capable of inhibiting, retarding or arresting the process of fermentation, acidification or other decomposition of food.

 

PROHIBITIONS AND RESTRICTIONS       
PROHIBITION ON THE MANUFACTURE, SALE, ETC. OF CERTAIN FOOD ARTICLES

No person shall manufacture, store, sell or distribute
(i) any adulterated food,
(ii) any misbranded food,
(iii) food articles to be sold under licence without fulfilling the conditions of the licence,
(iv) any food article the sale of which is prohibited by the Food (Health) Authority in the interest of public health,
(v) any food article in contravention of any other provision of the Act or the Rules, (see ‘Conditions for Sale’) or
(vi) any adulterant.

The act of storing an adulterated article of food would be an offence only if storing is for sale. The sale of a part of the stored article constitutes an offence distinct and independent from the offence of storing for sale.
PROHIBITION ON USE OF CERTAIN EXPRESSIONS WHILE LABELLING OF EDIBLE OILS AND FATS

The package, label or the advertisement of edible oils and fats shall not use the expressions Super-Refined, Extra-Refined, Micro-Refined, Double-Refined, Ultra-Refined, Anti-Cholesterol, Cholesterol Fighter, Soothing to Heart, Cholesterol Friendly, Saturated Fat Free or such other expressions which are exaggerations of the quality of the product. (Rule 37 D).
PROHIBITION ON SALE OF CERTAIN ADMIXTURES

For example, cream which has not been prepared exclusively from milk, milk which contains any added water, ghee which contains any added matter not exclusively derived from milk fat, a mixture of two or more edible oils as an edible oil and turmeric containing any foreign substances, etc. (Rule 44)
PROHIBITION ON USE OF ACETYLENE GAS (carbide gas) in artificially ripening of fruits (Rule 44 AA).
PROHIBITION ON SALE OF FOOD ARTICLES COATED WITH MINERAL OIL, except in accordance with the permitted standards. (Rule 44 AAA and Appendix B).
RESTRICTION ON SALE OF GHEE having less than specified Reichert value except under the “AGMARK” seal. (Rule 46).
PROHIBITION ON SALE OF ADMIXTURES OF GHEE OR BUTTER or on its use as an ingredient in the preparation of an article of food. (Rule 46).

Any food item resembling honey, but not pure honey, shall not be marked “honey”. (Rule 45).
RESTRICTION ON SALE OF KANGRA TEA except only after it is graded and marked in accordance with the provisions of Agricultural Produce (Grading and Marketing) Act, 1937 and the Rules made thereunder. (Rule 44E).
CONDITIONS FOR SALE OF FLAVOURED TEA only by those manufacturers. Who are registered with Tea Board and the package bearing the label, ‘FLAVOURED TEA’ (Common name of permitted flavour, percentage and Registration No.). (Rule 44G).
RESTRICTION ON SALE OF COMMON SALT No person shall, sell or offer or expose for sale or have in his premises for the purpose of sale, common salt for direct human consumption unless the same is iodised. (Rule 44H).
RESTRICTION ON USE AND SALE OF ARTIFICIAL SWEETENERS except that saccharin sodium can be added to carbonated water, supari, pan masala and pan flavouring material within the specified maximum limit and aspertaine may be sold for diabetic use under medical advice. (Rule 47).
PROHIBITION ON SALE OF PERMITTED FOOD COLOURS, i.e. Synthetic colours, or their mixtures or any preparation of such colours, except under a licence. (Rule 48A).
PROHIBITION ON SALE OF PERMITTED FOOD ADDITIVES, except only under the ISI certification marks. (Rule 48C).
PROHIBITION ON USE OF COUMARIN AND DIHYDRO COCUMARIN, TANKABEAN (DIPTERYL ADORAT) AND B-ASARANE AND CINAMYL AUTHRACILATE, as flavouring agents. Any extraneous addition of flavouring agent should be mentioned on the label attached to any package of food so flavoured, in capital letters in the following manner:

“CONTAINS ADDED FLAVOUR”
RESTRICTION ON USE OF PRESERVATIVES, Addition of Class I preservatives i.e. Common Salt, Sugar, Dextrose, Glucose (syrup), Spices, Vinegar or acetic acid, honey and edible vegetable oil, in any food is not restricted, provided that the food article to which the preservative has been added conforms to the specifications laid down in Appendix B.

Class II preservatives such as Benzoic acid and its salts, sodium diacetate and sodium, potassium and calcium salts of lactic acid, etc. can be used only restrictively. Use of more than one Class II preservative is prohibited.
CONDITIONS FOR SALE OF A FOOD ARTICLE, Every utensil or container, used for manufacturing, preparing or containing any food or ingredients therefor, and second hand tin containers for packaging of edible oils and fats, meant for sale, shall be maintained in a clean and sanitary condition, away from impure air or dust, properly covered at all times, and such utensils or containers shall not be used for any other purpose. Use of rusty containers, improperly tinned copper or brass containers, containers of aluminium or plastic not conforming to ISI specifications, etc., in preparation of food, is also prohibited. Besides, certain special conditions for sale of certain articles such as asafoetida, salseed fat, lactic acid, edible oils, katha, margarine, milk powder, etc. have also been laid down.

With effect from 22.2.95, on person shall sell powdered spices except in packed form. No person shall sell or serve food in any commercial establishment in plastic articles used in catering and cutlery, unless the plastic material used in catering and cutlery articles, conform to the food grade plastic

 

PURCHASER MAY HAVE FOOD ANALYSED
A purchaser of any article of food, or a recognised consumer association, may also get an article of food analyzed by the public analyst on payment of the prescribed fees, provided that the vendor is informed of this intended action at the time of purchase. Thereafter, the purchaser or the consumer associations, have to follow the same procedure as discussed above in the case of Food Inspectors. If the article of food is found to be adulterated, the fees paid by the purchaser or the association shall be refunded

 

OFFENCES AND PENALTIES

  • Import, manufacture, storage, sale or distribution of any food article which is adulterated by allowing its quality or purity to fall below the prescribed standard, or is misbranded, or in contravention of any provision of the Act or Rules. Penalty is minimum imprisonment of six months that may extend upto 3 years and minimum fine of Rs 1000.
  • Import, manufacture, storage, sale or distribution of any adulterant not injurious to health. Penalty is minimum imprisonment of six months that may extend upto 3 years and minimum fine of Rs 1000
  • Preventing a Food Inspector from taking a sample or exercising his powers.Penalty is minimum imprisonment of six months that may extend upto 3 years and minimum fine of Rs 1000
  • Giving a false warranty in writing in respect of any food article. Penalty is minimum imprisonment of six months that may extend upto 3 years and minimum fine of Rs 1000
  • Import, manufacture, storage, sale or distribution of any food article which is adulterated within the meaning of any of the sub-clauses(e) to (l) of section 2(ia); or any adulterant which is injurious to health. Penalty is minimum imprisonment of one year that may extend upto 6 years and minimum fine of Rs 2000
  • Sale or distribution of any food article containing any poisonous or other ingredient injurious to health, which is likely to cause death or grievous bodily harm. Penalty is minimum imprisonment of three years that may extend upto life and minimum fine of Rs 5000

 

Address of FDA Department in Maharashtra
Sr. No .Name & Address of Division/ DistrictTelephone Numbers /Fax Numbers  /email
 1.Office of the Commissioner,
Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26592363-65
+ 91  -022  -26591959  ( Fax) fdahq@vnsl.com
2.Joint Commissioner
(Head Quarter.)
Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26591463
+ 91 –022  – 26592363-65
+ 91  -022  -26591463  ( Fax)
3.Joint Commissioner (Food) Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26592207
+ 91 –022  – 26592363-65
4.Joint Commissioner (Law )
Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26592975
+ 91 –022  – 26592363-65
5.Joint Commissioner (Vigilance )
Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26592686
+ 91 –022  – 26592363-65
6.Office of the Joint Commissioner
(Greater Mumbai Division.)
Food and Drug Administration, M.S.,
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26590686
+ 91 –022  – 26592363-65
7.Assistant Director ,
Drug Control Laboratory (Mumbai)
Survey No. 341, Bandra-Kurla Complex,
2nd floor, Bandra (East),
MUMBAI-400051 .		+ 91 –022  – 26592363-65
8.Office of the Joint Commissioner
(Kokan Division.)
Food and Drug Administration, M.S.,
E.S.I.S. Hospital Bldg., 4th floor, Road No.33,
Wagale Estate,
THANE-400604.		+ 91 –022  – 25811988/25821245
+ 91 –022  – 25823189(fax)
9.Office of the Joint Commissioner
(Pune Division.)
Food and Drug Administration, M.S.,
Lucky Bldg., 791/92, New Guruwar Peth,
PUNE-411028		+ 91 –020  -24470276
+ 91 –020  – 24477555 (fax)
10.Office of the Joint Commissioner
(Nashik Division.)
Food and Drug Administration M.S.
Hall No 21 and 23, Udhyog Bhavan,
Tryambakeshwar Road,
NASHIK-422003.		+ 91- 0253 – 2351200 (D) & fax
+ 91- 0253 – 2351201/2
+ 91 –0253  -2351204(fax).
11.Office of the Joint Commissioner
(Nagpur Division.)
Food and Drug Administration,  M.S.,
Limbana Compound, 20 Mount Rd., Sadar,
NAGPUR-440 001		+ 91 –0712  -2564347/2562204
+ 91 –0712  -2555120 (fax)
12.Office of the Joint Commissioner
(Amravati Division.)
Food and Drug Administration,  M.S.,
Amaravati Javade Awar, Mal Tekadi Road,
Near S.T. Stand,
AMARAVATI-444602.		+ 91 –0721  -2663273/2665892/
2665891
+ 91 –0721-2663273(fax)
13.Joint Commissioner ( Aurangabad Division.)
Food and Drug Administration, M.S.,
Aurangabad, Nath Market, 2nd floor,
Aurangapura,
AURANGABAD-431001.		+ 91 –0240  -2331268/2346810
+ 91 –0240  -2331268(fax)
14.Assistant Director ,
Drug Control Laboratory ( Aurangabad )
Aurangabad, Nath Market, 2nd floor,
Aurangapura,
AURANGABAD-431001.		+ 91 –0240  -2331526
+ 91 –0240  -2336122(fax)
15.Office of the Assistant Commissioner,
Food and Drug Administration, M.S.,
Shikshyak Mitra Sahakar Nagar, Primary 2nd Flr, Shikshyak Sahakari Patpedi Bldg.,
PEN RAIGAD-402407.		+ 91 –02143  -252084
16.Office of the Assistant Commissioner,
Food and Drug Administration, M.S.,
855- G, Next to  Pawan Swarup Motor Training School,
Udhyam Nagar,
RATNAGIRI-415639		+ 91 –02352  -222456
17.Office of the Assistant Commissioner,
Food and Drug Administration, M.S.,
Administrative Bldg., Block – A, Ground floor,
Oras (Bu),
SINDHUDURG-		+ 91 –02362  -228881
18.Office of the  Assistant Commissioner,
Food and Drug Administration, M.S.,
City  No.764, Plot No.291,
Ist Flr Vasant Market Marg,
2nd Lane West Side
SANGLI-416416.		+ 91 –0233  -2672201/2
19.Office of the  Assistant Commissioner,
Food and Drug Administration, M.S.,
Administrative Bldg., “A” Block, 2nd floor,
Collector  Compound,
SOLAPUR		+ 91 –0217  -2726572
+ 91 –0217  -2721410

 

The Companies Act: How to Become a Member of a Company?

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A company comprising its shareholders, employees and other members together own the company. The initial members and shareholders of a company are known as subscribers. As per the Companies Act, 1956, a public company must have at least seven members and a private company must have at least two members.

The Companies Act: Options for Becoming a Member

Here are a few ways of becoming a member of a company:

Membership by Subscription: Under Sec. 41 of the Companies Act, 1956, the subscribers to the Memorandum of a company are believed to have given their approval to become members of the company. Their names are entered in the register of members as members of the company, once the company gets registered under the Companies Act, 1956.

Membership by Beneficial Ownership: As per Sec. 41(3) of the Companies Act, 1956, every person whose name is mentioned as beneficial owner in the records of the depository and owns equity shares of the company is considered member of the company.

Membership by Qualification Shares: Under the provisions of Sec.266 of the Act, a person must sign for undertaking to hold and reimburse for qualification shares of a public company before becoming the director of the company. He thus automatically becomes the member of the company.

Membership by Application and Registration: As per Sec.41 (2) of the Act, a person who gives a written approval to become a member and whose name is mentioned in the register of members is considered a member of the company. The name of a person may be registered through many ways, such as by transfer, succession, application and allotment.

Final Legal Take Away Tip: A subscriber to the Memorandum of a company cannot cancel the contract to hold shares of the company on the ground of false representation of facts by the promoter of the company.

 

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