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2022 DIGILAW 4 (MEG)

Nirmalendu Paul v. Customs, Excise & Service Tax Appellate Tribunal

2022-02-07

SANJIB BANERJEE, W.DIENGDOH

body2022
JUDGMENT Sanjib Banerjee, CJ. - The review petition is directed against an order of November 29, 2021 which dealt with an appeal filed by the petitioner herein against an order dated March 11, 2020 passed by the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal reduced the penalty imposed on the petitioner to Rs.10,000/-, though the Tribunal was satisfied that the contraband had been seized from the possession of the petitioner which had, subsequently, been confiscated. 2. The review petitioner says that this Court fell into error in failing to appreciate that the confessional statement of August 22, 2016 attributed to the petitioner may not have been made by the petitioner and that no reasonable opportunity to cross-examine the witnesses was afforded to the petitioner. According to the review petitioner, there is an error apparent on the face of the order of this Court dated November 29, 2021. 3. At the outset, a distinction has to be made between the grounds that may be available in the course of an appeal and the grounds that may be invoked in seeking review of an order. There is a considerable multiplication of the exercise in a bad habit taking root here of frequently seeking review of an order to have a second bite of the cherry. 4. It is possible that an order has been erroneously made in the sense that the adjudication may be incorrect or the assessment may be awry; but every faulty assessment or erroneous adjudication would not permit a party to approach the same forum for a reconsideration. The grounds of review are limited to an error apparent on the face of the order, in the sense that the same is obvious from a plain reading of the order without requiring more inquiry into the matter. Equally, a review may be maintained when a material fact is erroneously not noticed or the obvious inferences not drawn therefrom. Review is also permitted if some new material comes to light, if such material could not have been placed earlier despite the best diligence. However, when the facts are looked into in the backdrop of the applicable law and the order of adjudication is made thereupon, however faulty the assessment may have been, the relevant order would not be amenable to a review. 5. However, when the facts are looked into in the backdrop of the applicable law and the order of adjudication is made thereupon, however faulty the assessment may have been, the relevant order would not be amenable to a review. 5. In the present case, the Court noticed that an opportunity to cross- examine some witness had not been given to the review petitioner but, in the same breath, the Court observed that an immediate objection in such regard was not taken by the petitioner. Further, the Court found that the penalty imposed on the petitioner was nominal and that the petitioner had not, at the outset, indicated that the recovery was not made from his possession. It may have been an erroneous inference drawn from the facts that were presented before the Court, but it is not an error apparent on the face of the order that calls for a review. 6. Again, while not interfering with the order passed by the Tribunal this Court noticed that a criminal case was pending against the petitioner and the Court observed that in the pending proceedings, the petitioner would be entitled to cross-examine any witness whose statement may be used against the petitioner in the course of the proceedings. Thus, the apparent finality of the statement of the relevant witness has been undone, and, in the criminal proceedings that the petitioner faces, the petitioner has been specifically given a right to cross-examine the relevant witness in accordance with law. 7. While the petitioner may not be satisfied with the limited relief that was granted or the refusal by this Court to interfere with the order of the Tribunal, no ground for revisiting the order has been made out in the review petition. Accordingly, the review petition is dismissed. There will, however, be no order as to costs.