TMI Blog2010 (6) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicants receive the benefit of the findings of this Court and the directions given in this regard. The directions, contained above, it may be noted, having not been consciously denied, though the petitioners-applicants were entitled to, ought to have been given and it is this error, which was apparent on the face of the record and which has, now, been corrected. Such directions, one must reiterate, shall be made available to the petitioners-applicants so that they can enjoy the fruits of the directions already passed, in their favour, in their writ petitions - Misc. Case No. 479 of 2010 in W.P.(C) No. 591 of 2008 - - - Dated:- 29-6-2010 - I.A. Ansari, J. Shri A. Roy, S.K. Medhi, Ms. P. Das and R.K. Bharali, Advocates, for the Appellant. Shri K.N. Choudhury, Sr. Advocate and K.K. Dey, Advocate, for the Respondent. ORDER By a common judgment and order, dated 6-1-2010, three writ petitions, namely, WP(C) No. 591/2008, 1048/2008 and 2814/2008, were allowed to the extent as were indicated in the said judgment and order. All these three writ petitions arose out of actions, which had been taken by the respondents/authorities concerned on their interpretation of cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland or Tripura; (c) The scheme would be applicable to only those units, which had commenced commercial production on or after 24-12-1997, but not later than 28-2-2001; (d) The unit should have had continued its manufacturing activities after 28-2-2001 and should have had availed the benefits under earlier Notification Nos. 32/99-C.E. and 33/99-C.E., both dated 8-7-1999; (e) The sum of duty payable, but for the exemption, would have to be utilized by the manufacturer only for investment in plant and machinery in a manufacturing unit; (f) The said investment s were to be made before expiry of a period of six months from the end of each quarter; (g) The manufacturer was obliged to furnish, to a Committee, within one month of the expiry of the period of six months as described hereinbefore, details of the investments made by the manufacturer; (h) The said Committee was to consist of the Chief Commissioner of Central Excise, Shillong, the Principal Secretary of the Department of Industry of the State in which the unit was located and the Principal Secretary of the Department of Industry of the State in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment stood expanded inasmuch as a manufacturer became eligible to receive exemption from payment of excise duty, or additional duty of excise, if he could prove, to the satisfaction of the IAC, that the investment was made either in plant and machinery in a manufacturing unit, located in any of the States aforementioned, or that the investment was made, in infrastructure or civil work , or a social project , in any of the said States; (vi) By, however, yet another Notification, dated 9-7-2004, a series of procedural amendments were introduced to the Notification, dated 21-1-2004, aforementioned. (vii) The subsequent Notification, dated 9-7-2004, stipulates : (a) That the sum, equal to the excise duty that was payable, but for the exemption, would be deposited by the manufacturer, within 60 days from the end of the quarter, in an Escrow Account to be opened by the manufacturer in a bank authorized for excise duty collection; (b) The Notification provides that operations, including withdrawals from, and closure of, the said Escrow Account, shall be made with the prior approval of the jurisdictional Commissioner of Central Excise, who has been given the onus o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioners bankers were appointed as Escrow Agents. It is stipulated in the agreements that operations, including withdrawals from, and closure of, the said Escrow Accounts, are to be made with the prior approval of the jurisdictional Commissioner of Central Excise, Shillong. It has also been provided therein that if the balance amount, lying in the Escrow Account, is not re-invested in terms of the Notification No. 8/2004-C.E., dated 21-1-2004, as amended by Notification No. 28/2004-C.E., dated 9-7-2004, the Petitioner No. 1 shall bind itself to pay, on demand of the Deputy Commissioner of Central Excise or Assistant Commissioner of Central Excise, as the case may be, to the extent of duty, which is equal to the amount not re-invested along with interest thereon at the rate specified under Section 11AB of the Central Excise Act, 1944, from the amount lying in balance in the Escrow Account. The said Escrow Agreement, dated 21-6-2005, further provides that where the Petitioner No. 1 fails to make the deposit or does not invest the amount specified in condition (B) of the Notification No. 8/2004-C.E., dated 21-1-2004, as amended by Notification No. 28/2004-C.E., dated 9-7-2004, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing withdrawal of funds for making various investments, including the writ petitioners application for withdrawal of money for making investment on their proposed five-star hotel. 6. By judgment and order, dated 6-1-2010, this Court allowed, as already indicated above, the writ petition with the reliefs as indicated in the decision itself. The operative part of the order read as under : (i) The impugned actions taken by respondent No. 2, namely, Commissioner of Central Excise, Shillong, in forfeiting the sums of Rs. 57,61,37,536/- (Rupees Fifty Seven Crore Sixty One Lac Thirty Seven Thousand Five Hundred Thirty Six only), Rs. 28,55,14,172/- (Rupees Twenty Eight Crores Fifty Five Lakhs Fourteen Thousand One hundred and Seventy Two) and Rs. 30,35,24,690/- (Rupees Thirty Crores Thirty Five Lakhs Twenty Four Thousand Six Hundred and Ninety only) from the Escrow Accounts of the petitioners maintained by the respondent Nos. 3 and 4, namely, State Bank of India, New Guwahati Branch, Guwahati, and Branch Manager, State Bank of India, Main Bazaar Branch, Agartala, respectively, and the directions given, or requests made, by the Respondent No. 2 to transfer the said amounts of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to applicants, the implementation of the directions given by this Court, in the said writ petition, need some clarification so that the order may be implemented in letter as well as spirit. 9. The applicants have sought for clarification as under : (i) That while computing the period of investment under the notification, the time period from 31-7-2007, till the time appropriated amount is credited in the Escrow Account of the applicant be excluded. (ii) The applicants be permitted to file fresh withdrawal application for making investments under the notification of the amounts to be made available to them pursuant to the judgment and order, dated 6-1-2010, of this Court. (iii) The interim order dated 30-9-2008 allowing the applicants to proceed with construction of the said hotel be made final and absolute and the applicants be allowed to withdraw the amount already spent on the hotel project out of its own fund during the pendency of the writ petition from the Escrow Funds. 10. Resisting the above application, respondents have filed their objection, wherein they have contended, inter alia, that when a writ proceeding is terminated by final disposal thereof, the writ pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the writ petition by setting aside the respondents impugned actions of getting transferred diverse sums of money from the Escrow Accounts of the writ petitioners towards recovery of alleged dues of excise duty and additional duty of excise. This Court also set aside the respondents actions of freezing the writ petitioners Escrow Accounts. 14. However, as the scheme of exemption envisaged that in order to make a manufacturer entitled to claim exemption from payment of excise duty and/or additional duty of excise, the manufacturer was required to make investment by withdrawing money lying in his Escrow Accounts, but for the purpose of withdrawing his money from the Escrow Accounts to make investment, he was to make an application, for withdrawal of money from his Escrow Account, to the jurisdictional Commissioner and it was only on being so permitted, by the jurisdictional Commissioner, that the manufacturer could have made investment and such investment was to be examined by an Investment Appraisal Committee (in short, the IAC ) and, if allowed by the IAC, then and then only the manufacturer was to receive exemption of such amounts as may have been specified by the IAC as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded for the purpose of considering the withdrawal applications and also for the purpose of making investments. By this miscellaneous application, the writ petitioners, as applicants, have also sought for, besides the reliefs as indicated hereinbefore, certain directions to be issued, by way of clarification, such as, the direction that the applicants be allowed to file fresh withdrawal applications for making investments of the amounts, which would be made available to them by the respondents, pursuant to the judgment and order, dated 6-1-2010, and to make absolute the interim order, which was passed, on 3-9-2008, allowing the applicants to proceed with the construction of the five-star hotel. 18. The respondents, as already indicated above, have resisted the application by contending that this application is not sustainable, because this application seeks further order or direction from this Court on issues, which already stand concluded inasmuch as this Court might possibly have not consciously granted the reliefs, which the applicants are, now, seeking and if the application is allowed, it would amount to issuing further directions, which would be impermissible in law. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to point out that in the face of the findings of a Court, when a person is, otherwise, entitled to a relief and the relief is not granted to him and when such a person comes to the Court seeking clarification if the Court did not mean to grant him the relief, which he was, otherwise, entitled to receive, it must be shown, and the Court must be capable of holding, that the relief, though entitled to be received by the person concerned, had been consciously denied to him; or else, the Court would be obliged to give relief, which the Court had, unmindfully or unconsciously, omitted to give provided that the Court has the power to review its own orders/directions and correct errors. In a case of this nature, it would remain the obligation of the Court to ensure that the reliefs, which it had unmindfully or unconsciously not made available to the person approaching the Court, be made available to him if the law gives the Court the power to review. Here lies the determination of the scope and ambit of the plenary power of the High Court to review its own order. 23. Though, in the case of Brahma Dutta Sharma (supra), the Supreme Court had held that a decision, whereby a writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes the duty of the Court, particularly, when it is the Court of plenary jurisdiction, such as, a writ Court, which is the Court of records, to correct its error, rectify its record and give relief, which the person approaching the Court, is, in the facts of a given case, entitled to receive. In fact, there is no dispute that if there is a mistake apparent on the face of the record and such a mistake is brought to the notice of the High Court, it becomes the obligation of the High Court to correct the mistake. 26. It is well settled that a Court or Tribunal or adjudicating authority becomes functus officio (ceases to have control over the matter) once a judgment is pronounced or the order is made. Such judgment and order, when becomes final, cannot be altered, changed, varied or modified unless the statute, whereunder the Court, Tribunal or the adjudicating authority functions, so permit. There can also be no doubt that the power of review is not an inherent power. The right to seek review of an order is neither natural nor fundamental right of an aggrieved party. Such power must be conferred by law. If there is no power of review, the order cannot be reviewed. However, a Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in (1988) 2 SCC 602, the Supreme Court has, recognizing the principle of actus curiae neminem gravabit (an act of the court shall prejudice no man), has held that this maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. Observed the Supreme Court, in A.R Antulay (supra) : The basic fundamentals of the administration of justice are simple. No man should suffer, because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis. 30. Accepting existence of the High Court s power to review its own decision and direction as a Court of plenary jurisdiction, the Supreme Court held in, Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909), that it has been long recognized that there is nothing in Article 226 of the Constitution precluding a High Court from exercising the power of review, which inheres in every court of plenary jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the proceedings of the High Court, as a court of record, as envisaged in Article 215 of the Constitution, remain enrolled in a perpetual memorial and testimony and it has a duty to itself to keep, as a court of record, all its records correctly and in accordance with law. Hence, if any error, apparent on the face of the record, is noticed by the High Court in respect of any orders passed by it, the High Court has not only the power, but a duty to correct the error and, in this regard, the High Court s power being plenary, this plenary power of the High Court would include the power of review of errors apparent on the face of the record. What further follows, as a corollary, is that even if the present petitioners-applicants have not specifically sought for review and correction of the errors embedded in the judgment and order, dated 6-1-2010, aforementioned passed by this Court and even though they have sought for only clarification of the directions given by this Court, the fact remains that when the facts, placed before this Court, in this application by the petitioners-applicants, show errors apparent on the face of the record in the sense that this Court has, inadvertentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed to make their withdrawal applications for making, under the notification, investments of the amounts, which would be made available to them pursuant to this Court s judgment and order, dated 6-1-2010. It is, therefore, directed that for the purpose of making the withdrawal applications, the periods, during which the Escrow Accounts had remained frozen as well as the periods, during which diverse sums of money had stood appropriated by forfeiture of the amounts, shall be kept excluded. 36. Coming to the question of the hotel project, it needs to be noted that by way of an interim order, dated 30-9-2008, the Court had allowed the petitioners-applicants to proceed with the construction of the hotel subject to the outcome of the writ petition and since this Court has already held that the petitioners-applicants hotel project stood approved, on principle, by the IAC, and when the petitioners hotel project satisfies the conditions of investment on infrastructure, it becomes clear that the respondents are, now, required to pass appropriate order(s), in this regard, so as to enable the petitioners-applicants receive the benefit of the findings of this Court and the directions giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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