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2016 (9) TMI 786 - HC - Central ExciseCondonation of delay - in presentation of Memorandum of Review - 267 days - maintainability of review - Held that:- Law is set at rest that review is entertainable under Order 47 Rule 1 and clauses mentioned thereunder. From Bar effort was to convince that there was mistake on the part of the Counsel due to not pointing out the amended Section 35-F. But we hold that there is hardly any scope to equate the alleged mistake of Counsel in not pointing out any law with the “mistake” or “error” as meant within the provision under Order 47 Rule 1 of the Code. Moreover, the Court rightly applied the law as it was prevalent when the appeal was filed and considered the same. Therefore, the subsequent amendment would not be applicable as the order impugned was based on consent of the petitioner that their clients were ready and willing to deposit 50% of the duty i.e. to the tune of ₹ 35 lakhs within a period of eight weeks from date. Moreover, on concession though opportunity to deposit ₹ 35 lakhs only was obtained on September 4, 2015, instead of its deposit, rather causing loss of revenue, has been utilising the said amount as their own under the garb of this application. Therefore, we fail to look eye to eye with the submission of appellant to accept his contention that there was any mistake or error apparent on the face of record, to entertain the review application, since the provision of amended Section 35-F was not placed. Rather since the penaltimate portion of the order under review had given opportunity of preferring appeal in lieu deposit of a portion of the sum of penalty to the tune of ₹ 35 lakhs on the basis of concession, the review application has got no merit. The impugned judgment therefore is held as beyond the scope of review. Though the period of limitation has been explained by the applicant in their own manner but had there been meritorious grounds to entertain the review, in that event the Court could have thought otherwise for consideration of said application proposing condonation of such inordinate delay. In view of taking note of having no merit in the review application and since the judgment under review is found as beyond the scope of review for the reasons recorded above, the application for condonation of delay stands rejected. As a consequence thereof, the application for review also stands dismissed. - Decided against the appellant
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