Bombay High Court
Nashik - 422 007 vs The Commissioner Of Central ... on 16 December, 2010
Bench: V.C. Daga, R. M. Savant
RPA NO.33/2010 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
ORDINARY ORIGINAL CIVIL JURISDICTION
REVIEW PETITION NO.33 OF 2010
IN
NOTICE OF MOTION NO.2482 OF 2008
IN
CENTRAL EXCISE APPEAL NO.136 OF 2009.
RPA NO. 33/2010.
VIP Industries Ltd.,
a company duly registered under
Companies Act, 1956 and having its
office at 78-A, MIDC Estate, Satpur
Nashik - 422 007, Maharashtra.
....PETITIONER.
(Org. Appellant)
// VERSUS //
The Commissioner of Central Excise,
Kendriya Rajaswa Bhawan, Gadkari
Chowk, Old Agra Road,
Nashik - 422 002, Maharashtra.
....RESPONDENT.
(Org. Respondent)
--------------------------------------------------------------------------------------------------------------
Mr. V. Sridharan i/b. PDS Legal for the petitioner.
Mr. Pradeep S. Jetly with Mr. R.B. Pardeshi, Advocates for Respondent.
CORAM : V.C.DAGA AND R.M.SAVANT, JJ.
Date of Reserving Judgment : 26 .10.2010.
Date of Pronouncing Judgment : 16.12.2010.
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RPA NO.33/2010 2 Judgment
JUDGMENT ( Per : V.C.Daga, J.)
This review petition raises question : Whether the High Court has
[de hors of the provisions of the Central Excise Act, 1944 ("The Act" for short)]
power to review its own decision rendered in appeal filed under the Act.
FACTUAL BACKGROUND :
Factual background giving rise to the present review petition is as
under :
2. The petitioner, being aggrieved by portion of final order
No.A/702-704/07/C-II/EB in Appeal No.E/3077 to 3079/04-MUM passed by the
Customs, Excise and Service Tax Appellate Tribunal ("The Tribunal" for short),
filed the subject Central Excise Appeal under Section 35G of the Act. There was a
delay of four days in filing the appeal. The petitioner took out a Notice of Motion
No.2482 of 2008, seeking condonation of delay in filing the subject Central Excise
Appeal.
3. The learned Division Bench of this Court, for the reasons set out in
the judgment and order dated 29th August, 2008 in the case of Commissioner of
Central Excise, Pune-II Vs. Shruti Colorants Ltd., was pleased to hold that High
Court has no jurisdiction to condone delay in filing Central Excise Appeal under
Section 35G of the Act. Consequently, dismissed the application for condonation
of delay.
RPA NO.33/2010 3 Judgment
4. In the case of Commissioner of Customs Vs. Sujog Fine Chemicals India
Ltd., another Division Bench of this Court by judgment and order dated 13 th
August, 2008, held that in the light of Section 29(2) of the Limitation Act, 1963,
in an appeal filed under Section 130 of the Customs Act, 1962 High Court was
empowered under Section 5 of the Limitation Act to condone the delay.
5. In view of the above conflicting decisions of the two learned Division
Benches on the issue a Full Bench was constituted by the learned Chief Justice to
which one of us (Daga, J) was a party to decide the question framed herein
below vide its judgment and order dated 19th December, 2008 : whether this
Court is empowered to condone delay in filing appeals under Sections 35G of the
Act ?
6. A full bench of this Court following the judgments in Mukri Gopalan
Vs. Cheppilat Puthanpurayal Abbubacker, reported in AIR 1995 SC 2272, State of
West Bengal and Others Vs. Karthik Chandra and others, reported in 1996(5) SC
342 and CIT Vs. Velingkar Brothers, reported in 2007(289) ITR 382 agreed with
the view expressed by the learned Division Bench in Commissioner of Customs Vs.
Sujog Chemicals dated 13th August, 2008 and held that Section 5 of the Limitation
Act would be applicable to appeals filed under Section 35G of the Act.
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7. The petitioner, in the aforesaid backdrop, in view of the law laid
down by the Full Bench applied for review of the order of this Court dated
29.08.2008 whereby the application for condonation of delay filed by the
petitioners in filing Central Excise Appeal was dismissed vide order dated 5th
January, 2009 for want of authority or jurisdiction to condone the delay.
8. Before the above review petition could be considered by this Court
the Hon'ble Supreme Court in the case of Commissioner of Customs & Central
Excise Vs. Hongo India (P) Ltd., reported in 2009 236 ELT 417 (SC) held that the
High Court did not have power to condone delay in appeal and provisions of the
Limitation Act, 1963 did not apply. The time limit prescribed in Section 35H of
the Central Excise Act was absolute and that the Court did not have power under
Section 5 of the Limitation Act, 1963 to extend period of limitation.
9. The Parliament to overcome above Judicial Verdict : by Finance Act,
2009 amended Section 35G of the Central Excise Act, 1944 with retrospective
effect from 1st July, 2003 giving powers to the High Court to condone delay in
filing the appeals under that section.
THE ISSUE :
10. The aforesaid judicial and legislative events have given rise to a legal
question : Whether in the absence of an express provision, this Court can exercise
power of review in a matter arising under the Act.
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POINTS URGED :
This is a unique case wherein the petitioners-assessees as well as
respondent-Revenue are jointly canvassing in one voice that this Court has a
power of review even in absence of specific provision within statutes in that
behalf. Both of them want that the question should be answered in affirmative
holding power of review in favour of this Court.
11. Mr. Sridharan, learned counsel representing group of assesses, would
submit that the retrospective amendment can be a ground for review as it can be
styled an error on the face of record. Reliance is placed on a judgment of the
Supreme Court in the case of Raja Shatrunji Vs. Mohammad Azmat Azim Khan,
reported in (1971) 2 SCC 200, holding that one of the grounds for review is an
error apparent on the face of record and where a statute has been amended
retrospectively, a judgment applying the unamended law would constitute an
error apparent on the face of record.
12. Mr.Sridharan further urged that the High Court is a Court of record.
Under its plenary jurisdiction the High Court has power to review. Reliance is
placed on a judgment of the Supreme Court in M.M. Thomas Vs. State of Kerala,
reported in 2000(1) SCC 666 and the Commissioner of Customs and Central Excise
Vs. Hongo India (P) Ltd. (supra). He also placed reliance on the judgment of the
Hon'ble Supreme Court in Shivdeo Singh Vs. State of Punjab, reported in 1963 AIR
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SC 1909 holding that power of review inheres in every Court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and palpable
errors committed by it. The learned counsel also placed reliance on a Full Bench
judgment of Patna High Court in the case of D.N. Singh Vs. CIT, reported in
(2010) 325 ITR 349 wherein the judgment of the Hon'ble Supreme Court in
M.M. Thomas (supra) is followed.
13. Mr. Sridharan also urged when a special enactment adopts the
procedure adopted by the ordinary Civil Court then, according to him, the
presumption is that the practice and procedure of that Court will apply. He while
developing this submission pressed into our service sub-section (9) of Section 35G
of the Central Excise Act, which reads as under :
"35G.(9) Save as otherwise provided in this Act, the provisions
of the Code of Civil Procedure, 1908 (5 of 1908), relating to
appeals to the High Court shall, as far as may be, apply in the
case of appeals under this section."
Based on the above provision, he went on to urge that the said section
does not restrict the jurisdiction of the High Court to only the provisions of the
Code of Civil Procedure relating to the appeals but it brings along with it other
related provisions. In support of his submission he placed reliance on the Privy
Council judgments in the case of Secretary of State for India Vs. Chelikani Rama
Rao, 1916 L.R. 43 IA 192 followed by Privy Council in its another judgment in
the case of Hem Singh Vs. Basant Das, 1936 L.R. 63 IA 180, reiterated in its third
RPA NO.33/2010 7 Judgment
judgment in R.M.A.R.A. Adiakappa Chettiar Vs. R. Chandrashekhara Thevar,
reported in 1947 L.R. 74 I.A. 264.
14. Mr. Sridharan also placed reliance on the judgment of High Court of
Karnataka in the case of J. Nandanlal Javantaraj Vs. V. Narayanaswamy, reported
in AIR 1975 Kant 237, wherein, in the light of the pronouncement of the Hon'ble
Supreme Court in the case of National Sewing Thread Co. Ltd. Vs. James Chadwick
& Bros. Ltd., reported in AIR 1953 SC 357 and that of the Privy Council in
R.M.A.R.A. Adiakappa Chettiar (supra) the Court held that once the power to
adjudicate is given in special enactment to resolve such dispute, according to the
ordinary rules of practice and procedure then it includes power to review
judgment and orders.
15. Mr. Sridharan in all fairness, also brought to our notice a judgment of
the Hon'ble Supreme Court in the case of Patel Narshi Thakershi and others Vs.
Shri Pradyumansinghji Arjunsinghji, reported in 1971 (3) SCC 844 wherein the
Supreme Court dealt with the power of review holding that it is well settled that
the power to review is not an inherent power, it must be conferred by law either
specifically or by necessary implication. According to him, power of review of a
Court has been expressly provided for in the Code of Civil Procedure under
Section 114 and Order 47 thereof. He, thus, urged that this Court has ample
power to review its earlier order refusing to condone the delay. He further
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submits that this Court did not examine the merits of the prayer for condonation
of delay for want of specific power at the relevant time but now in view of the
changed legal scenario, this Court should consider the prayer on its own merits.
He was heard on the prayer for condonation of delay.
16. Mr. Jetly and Mr. Pardeshi, learned counsel appearing for Revenue
did not contest the submissions made by Mr. Sridharan, though they were
appearing against him. Reliance is placed on a judgment of the Hon'ble Supreme
Court in the case of M.K. Venkatchalam Vs. Bombay Dying and Manufacturing Co.
Ltd., reported in 1958 ITR 143 SC, wherein the Hon'ble Supreme Court held that
in case of apparent error on the face of record the power to review can be
exercised. The learned counsel for the Revenue submits that the said judgment
has been reiterated by the Supreme Court in the case of Consolidated Pnumatic
Tool Co. India Ltd. Vs. Commissioner of Income Tax, 1994 209 ITR 277 Bom.
17. Mr. Jetly also placed reliance on a judgment of learned Division
Bench of this Court in the case of Deepali Exports Vs. Union of India, decided on
30.04.2010 while dealing with Review Petition No.26 of 2010, wherein it has
been held that the Act does not confer any power in the High Court which acts as
appellate Court under the Customs Act to exercise power of review. However, the
Division Bench invoked inherent power and reviewed its own order. With these
submissions, the Revenue also urged that the power of review exists in favour of
RPA NO.33/2010 9 Judgment
this Court and that should be exercised in the interest of justice and each case
should be considered on its own merits for condonation of delay.
CONSIDERATION :
18. Heard both parties canvassing their contentions without any
disagreement. Now, this Court is called upon to decide the issue on its own
merits.
19.
At the outset, it is not necessary to go into the basic question :
Whether this Court has power to condone delay ? Though judicial opinions at
one point of time were contrary, but they having been resolved by virtue of
amendment to Section 35-G of the Act by Finance Act, 2009, whereby sub-section
(2A) was inserted with retrospective effect from 1st July, 2003 conferring power
to the High Court to condone delay in filing appeals under Section 35G. This
amendment, being retrospective in nature, would be deemed to have been in
existence on 25th August, 2008 when this Court passed an order holding that this
Court did not have power to condone delay in filing appeals under Section 35-G
of the Act. Now, it can conveniently be held that this Court has a power to
condone delay in view of subsequent legislative change.
20. Having said so, it is not in dispute that High Court is a Court of record
as envisaged under Article 215 of the Constitution, having inherent powers to
RPA NO.33/2010 10 Judgment
correct record. The Hon'ble Supreme Court in M. M.Thomas Vs. State of Kerala,
reported in 2000(1) SCC 666 has reiterated the said status of the High Court.
The case related to the decision of the Forest Tribunal under the Kerala Private
Forests (Vesting and Assignment) Act, 1971 and judgment of the High Court in an
appeal against the decision of the Forest Tribunal. Later the State moved an
application for review under Section 8-C of the Kerala Private Forests Act.
Grounds on which review was sought was not covered by the situations
mentioned in Section 8-C. No specific power to review its decision was provided
under Section 8-C. Review was allowed by the High Court without relying on
Section 8-C. Aggrieved party appealed to the Supreme Court. The Supreme
Court concluded that the High Court is a court of record and has inherent power
to correct its record. It further held that it was High Court's duty to correct its
record. The High Court's power in that regard is said to be plenary.
21. In Commissioner of Customs and Central Excise Vs. Hongo India (P)
Ltd., reported in 2009 (236) ELT 417 (SC), the Supreme Court approved this
decision in M.M. Thomas (supra) and said that the High Court possesses all
powers in order to correct the errors apparent on the face of record.
In D.N. Singh Vs. CIT, reported in (2010) 325 ITR 349, the full bench
of Patna High Court held High Court has power to review its order under Section
260A of Income Tax Act. It referred to paragraphs 28 and 29 of the said
judgment and held that as laid down in M.M. Thomas and approved in Hongo
RPA NO.33/2010 11 Judgment
India (supra), the High Court has the inherent power of review, being a court of
plenary jurisdiction.
The Supreme Court in Shivdeo Singh Vs. State of Punjab, reported in
1963 AIR SC 1909 held that power of review inheres in every court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and palpable
errors committed by it.
22. Mr. Sridharan also forcefully canvassed when special enactment in
ordinary Court then the presumption is that practice and procedure of that court
will apply. Let us examine strength of the submission made in this behalf.
In Secretary of State for India Vs. Chelikani Rama Rao, reported in
1916 L.R. 43 IA 192, the Privy Council was dealing with proceedings under
Madras Forest Act. Section 10 of the Act provided that an appeal against an order
passed by the forest settlement officer lay to the District Court. The appellant
contended that further proceedings in Courts in India were incompetent as they
were excluded in terms of the statute. Rejecting this contention, the Privy Council
held as follows :
"In their Lordships' opinion this objection is not well founded.
Their view is that when proceedings of this character reach the
District Court, that Court I appeared to as one of the ordinary
courts of the country, with regard to whose procedure, orders and
decrees the ordinary rules of the Civil Procedure Code apply. This
is in full accord with the decision of the Full bench in Kamaraju
Vs. Secretary of State for India in Council (1), a decision which
was given in 1888 and has been acted on in Madras ever since."
RPA NO.33/2010 12 Judgment
In Hem Singh Vs. Basant Das, reported in 1936 L.R. 63 IA 180, the
Privy Council referred to the decision of the National Telephone Co.Ltd. Vs.
Postmaster General, reported in 1913 AC 546 where it was held that "when a
question is stated to be referred to an established court without more, it imports
that the ordinary incidents of the procedure of that court are to attach, and also
that any general right of appeal from its appeal likewise attaches." Further, the
Privy Council held that :
"Having regard to the character, the variety, and the importance
of questions to be dealt with by a tribunal, and to the terms in
which the right of appeal to the High Court is provided by the
section, their Lordships are of the opinion that the provisions of
Civil Procedure Code with reference to appeals to His Majesty
apply to decrees of the High Court made under S. 3 of the Sikh
Gurdwaras Act."
In R.M.A.R.A. Adiakappa Chettiar Vs. R. Chandrashekhara Thevar,
reported in 1947 L.R. 74 I.A. 264 the Privy Council held as under :
"The true rule is that whether a legal right is that is in dispute
and the ordinary courts of the country are seized of such dispute
the courts are governed by the ordinary rules of procedure
applicable thereto and an appeal lies, if authorized by such rules,
notwithstanding that the legal right claimed arises under a
special statute which does not in terms confer a right of appeal."
(Emphasis supplied)
23. The aforesaid judgments lean in favour of the view canvassed by Mr.
Sridharan and categorically hold that the practice and procedure of the ordinary
Court will apply if the special enactment refers to and adopts the practice and
procedure to be followed by the ordinary Court. The submission made by Mr.
Sridharan in this behalf deserves acceptance.
RPA NO.33/2010 13 Judgment
24. Next submission of Mr. Sridharan is that Section 35G(9) does not
restrict the jurisdiction of the High Court to only the provisions of the Code of
Civil Procedure relating to appeal. Let us now turn to the provisions of sub-
section (9) of Section 35G of the Act to examine whether or not it restricts the
jurisdiction of the High Court to the provisions of the Code of Civil Procedure
relating to appeal only.
25. Section 35G of the Central Excise Act provides for appeal to High
Court against an order of the Tribunal. Sub-section (9) thereof provides that the
provisions of Civil Procedure Code, 1908 relating to appeals to the High Court
shall as far as may be apply in the case of appeals under this Section. Sections 96
to 108 and Order XLI of the Civil Procedure Code deal with appeals, whereas,
Section 114 and Order XLVII of the Civil Procedure Code deal with review. A
debate is raised whether in view of Section 35G(9) provisions of Code of Civil
Procedure relating to appeal alone applied to the High Court, while excluding
other provisions of the Code of Civil Procedure.
26. The dissection of Section 35G of the Act reveals that- Sub-sections
35G (2), (2A), (3) till sub-section 35G(8) provide for various procedures to be
applied by the High Court while deciding the appeals filed under Section 35G.
The procedure provided through various sub-sections may be in variance with
those provided in the Civil Procedure Code. Being a special enactment, sub-
RPA NO.33/2010 14 Judgment
sections 2 to 8 of Section 35G will override a general law such as the Code of Civil
Procedure on these aspects. However, in circumstances not governed by these
sub-sections, the general provisions of the Code of Civil Procedure relating to
appeals will continue to apply. Section 35G(9) reiterates the same by way of
abundant caution, merely to ensure that the event of conflict between Section
35G and the Civil Procedure Code, the procedure under Section 35G (2) to (8)
will be applicable. It merely gives an overriding effect to these sub-sections of
Section 35G vis-a-vis the Code of Civil Procedure.
27. Assuming for the sake of understanding that sub-section (9) of
Section 35G did not exist, the result would still be the same, particularly in view
of the principle enunciated in the judgments of the Privy Council, cited supra,
when an ordinary court is referred to by a special enactment, the ordinary law of
that court would apply and govern those proceedings notwithstanding absence of
specific provision in that behalf. However, to the extent that the special law
contains provisions contrary to the general law, the special law would prevail.
Therefore, Section 35G(9) is merely stating the obvious and has been enacted by
way of abundant caution. It would thus be incorrect to imply from this that other
general laws and powers of the High Court conferred by the Code of Civil
Procedure have been excluded.
In National Sewing Thread Co.Ltd. V. James Chadwick & Bros.Ltd,
reported in 1953 SC 357, the Hon'ble Supreme Court considered the question
RPA NO.33/2010 15 Judgment
whether from the decision of a single Judge of the High Court in an appeal arising
under the Trade Marks Act, 1940, a Letters Patent Appeal would lie to the
Division Bench of that Court. The Trade Marks Act did not provide for such
further appeal. The Hon'ble Supreme Court observed that after an appeal had
reached the High Court, the future conduct or career of that appeal has to be
determined according to the rules of practice and procedure of that Court and in
accordance with the provisions of the Charter under which that Court is
constituted and which confers on it power in respect to the method and manner
of exercising that jurisdiction. Their Lordships held that the Letters Patent Appeal
was competent even though Trade Marks Act did not expressly provide for such
appeal. Their Lordships quoted with approval the observations of the Judicial
Committee of Privy Council in Adaikappa Chettiar V. Chandraserkhara Thevar
(cited supra).
28. At this stage, it is necessary to examine and understand the
observations made by the Hon'ble Supreme Court in the case of Patel Narshi
Thakershi and others Vs. Shri Pradyumansinghji Arjunsinghji, reported in 1971 (3)
SCC 844 wherein the Hon'ble Supreme Court observed that, it is well settled that
the power of review is not an inherent power. It must be conferred by law either
specifically or by necessary implication. The judgment is clearly distinguishable as
the issue before the Apex Court was absence of power in Government or its
delegate to make review; while in the case at hand issue is about the power of
RPA NO.33/2010 16 Judgment
Court to make review. If the judgment is read in its proper perspective, it will be
clear that the Court was dealing with the provisions of the Saurashtra Land
Reforms Act, 1951 wherein neither powers were given to the State Government
or its delegate to review its own order under Section 63 of the Act nor the
proceedings were to be tried following the procedure provided under the Code of
Civil Procedure or the procedure adopted by the Civil Court. The proceedings
were to be tried by Tenancy Authorities and Tribunal which did not have power
to review its own order. Understood in the context in which the observations are
made, we do not see any conflict between the views expressed in the case of Patel
Narshi Thakershi (cited supra)and the other cases referred to herein above. This
view is in consonance with the view taken by the Privy Council as well as the
Hon'ble Supreme Court in the cases referred to herein above. At any rate, the very
same judgment lays down that the power of review can be spelt out by necessary
implication. The necessary implication required to bestow power of review is to
be found under Section 35G(9) of the Act as discussed herein above.
29. In the light of the above pronouncements of the Supreme Court and
the Privy Council, ordinary Courts which have been seized of a dispute in respect
of a legal right or liability under a special enactment, should be regarded as
having power to adjudicate such dispute according to the ordinary rules of
practice and procedure which would include the power to review judgments and
orders.
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30. On the above premise, in our considered opinion, even in the absence
of an express provision in the Act conferring the power of review, this Court has a
power to review its decision.
31. Having held power to review exists in favour of this Court even in
absence of specific or express provision in that behalf, now let us examine
whether retrospective amendment could be a ground for review.
In Raja Shatrunji Vs. Mohammad Azmat Azim Khan, reported in
(1971) 2 SCC 200, the Hon'ble Supreme Court held that one of the grounds for
review is an error apparent on the face of record and where a statute has been
amended retrospectively, a judgment applying the unamended law would
constitute an error apparent on the face of record. Relevant portion from
Paragraph 13 of this judgment is extracted below :
"Counsel for the appellant submitted that when the High Court
decided the matter, the High Court applied the law as it stood
and a subsequent change of law could not be a ground for review.
The appellant's contention is not acceptable in the present case
for two principle reasons; first, it is not a subsequent law. It is
the law which all along was there from 1952. The deeming
provision is fully effective and operative as from 25 th May, 1953
when the 1952 Act came into force. The result is that the Court
is to apply the legal provision as it always stood. It would,
therefore, be error on the face of record. The error would be that
the law that was applied was not the law which is applicable . "
(Emphasis supplied)
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32. Having reached to the conclusion that the Review Petition is
maintainable and review of the subject order is permissible, let us turn to consider
the merits of the prayer seeking condonation of delay in filing appeal. The delay
in filing appeal is of four days. The Revenue has no objection for condonation of
delay in the Review Petition filed by the Assessee. Even otherwise considering the
good and sufficient cause shown, the delay in filing appeal stands condoned.
Order accordingly.
Registry is directed to register the appeals as well as Review Petitions
filed by the Revenue and place it before the Bench assigned with the subject
matter involved in the appeal. Review petition is allowed in terms of this order
with no order as to costs.
JUDGE JUDGE
RR.
