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1996 DIGILAW 391 (GUJ)

Pioma Industries and Imperial Soda Factory v. Union of India

1996-07-25

B.C.PATEL, R.M.DOSHIT

body1996
JUDGMENT : The petitioner has preferred this application to review the order passed by a Division Bench of this Court (Coram: M.B. Shah & R.D. Vyas, JJ. as they then were) on 28th August 1991, rejecting Special Civil Application No. 329 of 1989 preferred by the petitioner the applicant herein. It is contended by learned advocate Mr. Vakil that certain points urged before the Division Bench were not considered in the judgment. 2. The Special Civil Application was preferred against the order in appeal dated 2.12.1988 passed by the 2nd respondent rejecting the petitioner's Appeal No. 875 of 1988 from the order in original dated 22/27-1-1987 passed by the third respondent. The original order dated 22/27-1-1987 passed by the third respondent was also challenged in the said petition. 3. The petitioner was producing and marketing flavouring essences under the brand name of "Rasna Food Flavours" from the middle of the year 1979 to about April 1984. A show-cause notice was issued to the petitioner, calling upon it to show cause as to why the said product should not be classified as goods covered by the description specified in Tariff Item No. 68 of the First Schedule to the Central Excise and Salt Act, 1944 (hereinafter referred to as the Act), and why duty of excise should not be recovered under Section 3 of the Act. After considering the objections submitted by the petitioner, Assistant Collector passed an order on 18th June 1977, classifying the product under T.I. 68 of the Act and chargeable to the relevant rates of duty as in force during the relevant period under T.I. 68. In the said order, it is also clarified that for the period from 1.1.1980 to April 1984, the petitioner failed in filing classification list under Rule 173-B and also in obtaining Central Excise Licence under Rule 174. Against the said order, the petitioner preferred an appeal before the Collector of Central Excise (Appeals), Bombay which was dismissed by order dated 2nd December 1988. Against both the aforesaid order, the Special Civil Application was preferred which was also rejected by this Court, as stated above. 4. Mr. Vakil, learned advocate vehemently submitted that the two points mentioned in paragraph 3 of this application have not been considered by the Division Bench of this Court while deciding the petition. It is contended by Mr. Against both the aforesaid order, the Special Civil Application was preferred which was also rejected by this Court, as stated above. 4. Mr. Vakil, learned advocate vehemently submitted that the two points mentioned in paragraph 3 of this application have not been considered by the Division Bench of this Court while deciding the petition. It is contended by Mr. Vakil that these grounds were urged at the time of hearing. As these grounds have not been considered, Mr. Vakil submits that the order passed by the Division Bench requires to be reviewed. 5. Mr. Vakil submitted that a review application is competent and merely because a Judge or both the Judges who decided the Special Civil Application are not available, the review application should not be rejected. According to his submission, there is inherent power of review. He further submitted that power to review can be exercised by the Court, and not necessarily by the same Judge or Judges. He further submitted that it is not necessary for the Court to verify whether the grounds were urged or not, and even if it is necessary, it can be verified by calling upon the other side whether the submission were made or not or could be verified from the notes or written submissions or memo of application. He further submitted that in a given case, if it is difficult to ascertain whether the points were urged or not, and if such points, go to the root of the matter, an application for review is competent. He further submitted that in the instant case, the show-cause notice was without jurisdiction and outside the provisions of law as the petitioner's product, if liable for payment of excise duty, would be governed by the self removal procedure and the qualification of classification thereof could arise only when a classification list is filed under Rule 173-B or in proceedings for recovery of past duly under Section 11-A of the Act, and as the show-cause notice is neither referable to Rule 173-B nor to Section 11-A of the Act, the same is outside the provisions of law and the show-cause notice is illegal. Mr. Vakil further contended that pursuant to the said show-cause notice, excise authorities could not make any order for classification for a period subsequent to 15-3-1982 being the date of the show-cause notice. According to Mr. Mr. Vakil further contended that pursuant to the said show-cause notice, excise authorities could not make any order for classification for a period subsequent to 15-3-1982 being the date of the show-cause notice. According to Mr. Vakil, this question goes to the root of the matter, and though this point was argued before the Division Bench, the same has not been considered in the order, and hence the same calls for review. 6. Reading the impugned order, the Division Bench has recorded that the first contention raised by the learned advocate was that the order passed by the Collector is illegal and void because it is passed without following the principles of natural justice inasmuch as no opportunity of hearing was given to the petitioner and the application submitted by the petitioner for adjournment is considered as if the petitioner has shown its unwillingness to appear. The Court dealt with this contention in detail and held that this submission is devoid of any substance. Another submission made by the learned advocate on merits was that the order passed by the authority below is on the face of it illegal and erroneous as the petitioner's product would fall within Tariff Item 1B as it was. The Court did not find any merit in that submission also. Another submission of the learned advocate was that there is no demand notice as provided under Section 11-A of the Act. The Court held that in the circumstances of this case, the said question is not required to be dealt with in this matter. Before parting with the order, the Court even recorded the submission of the learned advocate for extension of ad interim relief but refused to grant the same. Thus, reading the order it is clear that all the points which were argued have been considered by the Court. 7. In the order, as stated above, we find that there is a reference to the submission made by the learned advocate that there is no demand notice as provided under Section 11-A of the Act. That clearly indicates that the Division Bench considered the submission about the recovery under Section 11-A. The Court need not deal with the questions which it may find having no substance. That clearly indicates that the Division Bench considered the submission about the recovery under Section 11-A. The Court need not deal with the questions which it may find having no substance. Again, one has to bear in mind that the Court has rejected the application on the ground that on the face of it, it cannot be said that the order passed by the Collector of Central Excise (Appeals) Bombay is illegal, erroneous or void. The Division Bench also observed in earlier part of the impugned judgment that alternative remedy of filing an appeal before the CEGAT is available and that alternative remedy is much more efficacious because that authority has ample jurisdiction to decide the matter on question of fact as well as law. Therefore, even if the two points mentioned in paragraphs 3(i) and (ii) of this application was heard by the Division Bench, that could not have made any impact on the fate of the petition. 8. It is required to be noted that if the show-cause notice itself was bad and illegal, the same could have been challenged earlier, i.e. immediately after its issuance, but after approaching the appellate Forum, if the decision is against the petitioner, then the petitioner ought to have approached the CEGAT because that is the alternative Forum available for preferring an appeal. ( 1996 (3) JT 564 ). 9. It is required to be noted that review of judgment is not permissible merely for the purpose of rehearing and for a fresh decision of the case. The normal principle is that the judgment pronounced by the Court is final and departure from the principle is justified only when circumstances of a substantially compelling character makes it necessary to do so. In the case of Chandra Kanta v. S.K. Habib reported in AIR 1975 SC 1500 , the Apex Court held as under:- "... A review of a judgment is a serious step and reluctant resort to it is proper only when a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility...." 10. Ordinarily, if a party is aggrieved by the judgment of a Court, the appropriate remedy for the party is to file an appeal against that judgment. Remedy by way of an application for review is misconceived. Ordinarily, if a party is aggrieved by the judgment of a Court, the appropriate remedy for the party is to file an appeal against that judgment. Remedy by way of an application for review is misconceived. In the instant case, the Court is called upon to set aside the judgment of the Division Bench by giving its finding on the two questions raised. That would certainly amount to exercising the appellate powers over the decision of another Division Bench and that is exceeding the jurisdiction of this Court. As held by the Apex Court in the case of Meera Bhanja v. Nirmala Kumari Choudhary reported in (1995) 1 SCC 170 , review must be confined to error apparent on the face of the record without requiring any long-drawn process of reasoning. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of the Civil Procedure Code. An error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The petitioners could have challenged the decision by way of an appeal. The power of review, like that of appeal, must be conferred by statute as held by the Full Bench of the Bombay High Court in the case of In re Prahlad, AIR 1957 Bom. 25. Framers of the Constitution thought it fit to make a specific provision in Article 137 of the Constitution empowering the Apex Court to review any judgment pronounced or made by it. So far as High Court is concerned, the Legislature has not conferred any such power on High Court. However, the Hon'ble Supreme Court has ruled that High Court has inherent power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In case of Shivdeo v. State of Punjab, AIR 1963 SC 1909 , the facts were that on a writ petition by 'A' for cancellation of allotment in favour of 'B', the High Court cancelled allotment though 'B' was not a party. In case of Shivdeo v. State of Punjab, AIR 1963 SC 1909 , the facts were that on a writ petition by 'A' for cancellation of allotment in favour of 'B', the High Court cancelled allotment though 'B' was not a party. Subsequently, 'B' filed a petition under Article 226 for impleading him as a party and for rehearing which was allowed, after hearing. It was pleaded before the Apex Court that in the absence of specific power, High Court cannot review its own order. The Apex Court ruled that previous order affected the interest of persons who were not made parties. Second petition was entertained as per principles of natural justice. In the circumstances, the Court held that: "It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it." Similarly, in the case of Ram Janam Sing v. State of U.P., AIR 1994 SC 1722 , the Apex Court ruled that persons affected by decision who were not made parties can challenge the decision by a separate writ petition or a review petition. In the case of A.T. Sharma v. A.P. Sharma reported in AIR 1979 SC 1047 , the Apex Court pointed out that the power cannot be exercised on the ground that the decision was erroneous on merits. That would be the purview of a Court of appeal. A power of review is not to be conferred with appellate power which may enable an Appellate Court to correct all manner of errors committed by the subordinate Court. In the instant case, it is suggested that grounds are not considered by the Court and, therefore, the Court should consider the grounds and decide the matter. It is nothing but asking the Court to exercise the appellate powers. Learned judges who heard the matter have rejected the application by a speaking order. Allowing this application would amount to rehearing of the application and a fresh hearing before another Bench which is not permissible. It is nothing but asking the Court to exercise the appellate powers. Learned judges who heard the matter have rejected the application by a speaking order. Allowing this application would amount to rehearing of the application and a fresh hearing before another Bench which is not permissible. Honourable Supreme Court, while considering the scope of review, no doubt under Article 137 of the Constitution, has made pertinent observations, as under:- "But whatever the nature of proceedings, it is beyond dispute that a review proceeding cannot be equated with the original hearing of the case and the finality of the judgment delivered by the Court will not be reconsidered except where a glaring omission of a patent mistake or like grave error has crept in earlier by judicial fallibility." The Court further held: "If the view adopted by the court in the original judgment is a possible view having regard to what record states, it is difficult to hold that there is an error apparent on the face of record. AIR 1980 SC 674 in M/s. Northern India Caterers India Ltd. v. Lt. Governor of Delhi.)" It is required to be kept in mind that the statutorily undefined powers of review are in practise to be exercised in a very narrow compass. The error must be such that which can be felt by a simple touch of the order and not which could be dug out after a long drawn process of reasoning. The fact that if counsel is required to argue the matter afresh, even on a point, it cannot be said to be grave or palpable error or a patent mistake. It is not possible to say that view taken by the Court earlier is not a possible view and there is no question of entertaining this application. 11. In the facts and circumstances of the case, the Division Bench has even considered the submission of the learned advocate that there is no demand notice as provided under Section 11-A of the Act which clearly indicates that the Division Bench had considered the submission about the recovery under Section 11-A of the Act, we do not think it proper to entertain this Review Application. In the result, we find no substance in this application and the same is rejected. Notice discharged.