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2011 DIGILAW 4291 (MAD)

Assistant Commissioner, Central Excise v. R. Mani

2011-10-18

K.CHANDRU

body2011
JUDGMENT :- 1. The review application is filed by the Assistant Commissioner, Central Excise, Salem to review the order dated 18.6.2010 passed by this court in W.P.No.4802 of 2009. By the order under review, this court gave a direction to the review petitioner to refund a sum of Rs.45,264/-, which was wrongly deducted and remitted to the Central Excise Department, within a time frame, but no interest was directed to be paid. The order itself came to be made on the basis of the written instructions received from the first respondent in the writ petition and the second respondent not having contradicted those facts by filing any counter affidavit. But, the second respondent in the writ petition has now come before this court with this review application. 2. When the review came to be filed with a delay of 52 days, the same was condoned by this court in M.P.No.1 of 2010. When the matter came up on 10.3.2011, this court had directed notice to the respondents including private notice. The private notice was served and proof of service was also filed. On notice, the first respondent has also filed a counter affidavit, dated 6.7.2011. 3. Heard the arguments of Mr.S.Yaswanth, learned counsel for the review pplicationMr.K.Thiruvengadam, learned counsel for the first respondent and Mr.RM.Muthukumar, learned Government Advocate appearing for second respondent. 4. The grounds stated by the review petitioner was that the first respondent was not the holder of service tax registration as per Section 69 of the Finance Act, 1994 and he had not filed any service tax returns under Section 70 of the Finance Act, 1994. He had also not filed any refund claim before the review petitioner under Section 11(b) of the Central Excise Act, 1944. Under the provisions of the Act, every claimant for refund of service tax has to file a refund claim in a proper form before the Assistant Commissioner within one year from the date of payment of service tax. The first respondent had not filed any refund claim before the review petitioner and he had not produced any document evidencing payment of service tax made by him in the Government account as per Section 68 of the Finance Act, 1994. Hence the writ petition is not maintainable. The first respondent had not filed any refund claim before the review petitioner and he had not produced any document evidencing payment of service tax made by him in the Government account as per Section 68 of the Finance Act, 1994. Hence the writ petition is not maintainable. It was also stated that when the second respondent TASMAC filed a refund claim for Rs.45,264/- in respect of the service tax paid by them for the period from 1.4.2004 to 31.12.2004, the said claim was made only on 1.3.2010. After adjudication, the review petitioner has passed an order-in-original, dated 17.5.2010 in Sl.No.103/2010 and had rejected the refund claim as it was time barred. Though the second respondent had received the said order on 22.5.2010, the same was not brought to the notice of this court when the matter was heard before this court. It is under these circumstances, the order passed by this court directing to refund the amount requires a review. 5. The first respondent in his counter affidavit contended that he had filed the refund application within one year and knowing fully well the pendency of the writ petition, they had passed the order rejecting the request for refund. The service tax was deducted wrongly and hence he is entitled for refund of tax. Therefore, this court should not review the order. 6. However, the review petitioner is functioning under the statute. He had passed a statutory order refusing to refund the claim made by the second respondent TASMAC. The writ petitioner had not taken care in pursuing his refund claim before the authority. The Act in which the review petitioner functions is a self contained code. If the first respondent seeks any refund, he has to move the authority under the Act. In case, if he does not succeed, he should find a solution by way of an appeal within the said enactment. Since these facts were not brought to the notice of this court, this court on the basis of the written instructions given by the second respondent had allowed the writ petition. Further, the second respondent even after knowing that the refund application was rejected as time barred did not bring it to the notice of the court. Under these circumstances, since the order passed by this court suffers from manifest error and in the interest of justice, the review application has to be allowed. 7. Further, the second respondent even after knowing that the refund application was rejected as time barred did not bring it to the notice of the court. Under these circumstances, since the order passed by this court suffers from manifest error and in the interest of justice, the review application has to be allowed. 7. Further, the Supreme Court while dealing with the power of review in passing the order under Article 226 of the Constitution, vide judgment in Rajender Singh v. Lt. Governor, Andaman & Nicobar Islands reported in (2005) 13 SCC 289 had held in paragraphs 15 and 16 as follows : “15.....Law is well settled that the power of judicial review of its own order by the High Court inheres in every court of plenary jurisdiction to prevent miscarriage of justice. 16. The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The courts should not hesitate to review their own earlier order when there exists an error on the face of the record and the interest of justice so demands in appropriate cases....” 8. In the light of the above, the review application stands allowed. The order passed by this court in W.P.No.4802 of 2009, dated 18.6.2010 is set aside. Further, the writ petition itself is not maintainable in the light of the circumstances pleaded by the review petitioner. Hence the writ petition will stand dismissed. However there will be no order as to costs.