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TMI Blog2010 (6) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing No. 32/99-C.E. and 33/99-C.E., both, dated 8-7-99, whereunder the Central Government, as indicated hereinbefore, had granted exemption. 2. The material facts, giving rise to this miscellaneous application, may, in a nutshell, be set out as under : (i) By Notification No. 45/99-C.E., dated 31-12-1999, the Central Government amended its earlier said two Notifications, both dated 8-7-1999, and excluded all tobacco related products, including pan masala, from the purview of exemption from payment of excise duty, or additional duty of excise. By Notification, dated 17-1-2000, the Central Government restored the exemptions, but, later on, the exemptions, so granted, were, once again, withdrawn by the Central Government by Notifications, dated 22-1-2000 and 1-3-2001. Thereafter, the Parliament enacted Section 154 of the Evidence Act, 2003, stipulating therein that the Central Government has the power to amend the two Notifications, dated 8-7-1999, aforementioned with retrospective effect. What it signified was that the Central Government became empowered to recover the money, already refunded to the manufacturers, in terms of its schemes of exemption as had been embodied in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 'investment' was made in 'plant and machinery', in a manufacturing unit in terms of the Notification, dated 25-8-2003, aforementioned, it was to issue a certificate to this effect to the manufacturer within a period of three weeks after the period of one month described above; (k) The certificate, granted by the IAC, was to be produced by the manufacturer, within a period of two weeks from the date of issue of the certificate, to the jurisdictional Central Excise Officer; (l) The 'investment', made under this Notification, dated 25-8-2003, was required to be for a period of ten years from the date on which the 'investment' was made. (iv) While the petitioners' units stood covered by the Notification, dated 25-8-2003, aforementioned and were eligible to receive benefit of exemption from payment of excise duty, or additional duty of excise, in terms of the Notifications, issued, in this regard, by the Central Government, another Notification, No. 8/2000/4-C.E., dated 21-1-2004, was issued by the Central Government, wherein a scheme, for complete exemption from payment of excise duty or additional duty of excise, was made available subject to compliance of certain new ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Account, within two years from the date of its deposit and the amount, withdrawn from the Escrow Account, has to be utilized for the purposes specified within 60 days of its withdrawal; (e) The manufacturer is also required to submit a quarterly statement, within sixty days of the end of the quarter, to the IAC, namely, Investment Appraisal Committee, consisting of the Chief Commissioner of Central Excise, Shillong, the Principal Secretary of the Department of Industry of the State concerned in which the unit is located and the Principal Secretary of the Department of Industry of the State in which the investment is made; (f) The manufacturer is also required to furnish, within one month of the expiry of the said period of two years, all details of the 'investment' made, to the IAC; (g) If the IAC is satisfied that the 'investment' has been made in accordance with the conditions embodied in the said Notification, dated 9-7-2004, it has to issue a certificate to the manufacturer within a period of one month from the date of receipt of the details (described hereinbefore) by the manufacturer. (viii) Finally, Condition (EA) of the said Notification No. 28/2004-C.E., da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioners, notices were issued to the petitioners' industrial units asking them to show-cause as to why on their failure to comply with the requirement of production of investment certificates within the specified period, diverse sums of money, mentioned in the said show-cause notices, which were equivalent to the exemption of the duty availed of by the petitioners, be not compelled to be paid back by the writ petitioners with such interest as had accrued thereon. The writ petitioners replied to the said show-cause notices. 4. Following the writ petitioners' replies to the said notices and without making any further communication with the writ petitioners, the authorities of the Excise Department got diverse sums of money transferred from the Escrow Accounts of the petitioners, maintained with their bankers, by way of recovery of those amounts, which were claimed under the said show-cause notices. This apart, directions were also issued to the petitioners' bankers by the authorities of the Central Excise freezing operation of the writ petitioners' Escrow Accounts. These actions of the respondents came to be challenged by way of a writ petition, which gave rise to WP(C) No. 591/200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Shillong, in freezing the Escrow Account Nos. 10566984064 and 10566984086 of the petitioner No. 1, Escrow Account No. 10815025848 of the petitioner No. 2 and Escrow Account No. 10815028838 of the petitioner No. 3 maintained by the respondent Nos. 3 and 4 and/or prohibiting the petitioners from operating their respective accounts aforementioned and/or directing the respondent Nos. 3 and 4 not to let the petitioners operate their respective accounts aforementioned are hereby set aside and quashed and, in consequence thereof, it is further directed that while computing the period of investment of two years from the date of deposit under the Notification, dated 21-1-2004, read with the Notification, dated 9-7-2004, the period, during which the said accounts remained frozen and inoperative, shall be excluded. (iii) The respondent No. 2 is hereby directed to consider, and decide, in the light of the discussions held above within a period of one month from today all the applications made by the petitioners, seeking withdrawal of money from their respective Escrow Accounts for the purpose of making investments on their various projects, including the project of five star h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to its earlier decision, in Brahma Datta Sharma (supra), has, indeed, held that there is no prohibition for a party to apply for clarification of an order if the order is ambiguous. The respondents, however, contend that the prayers, contained in the present miscellaneous application, have the potential to obtain further order/directions of this Court on issues, which stood concluded by judgment and order, dated 6-1-2010, aforementioned inasmuch as this Court might possibiy have not consciously granted the reliefs, which the applicants are, now, seeking to obtain with the help of the present misc. application. In such circumstances, according to the respondents, the misc. application would, if allowed, have the effect of passing further directions, which had not been given in the decision of this Court, while disposing of the said writ petition, and such directions would be contrary to the law laid down in Brahma Datta Sharma (supra) read with K.A. Ansari (supra). 11. The respondents also contend that an impression is sought to be given by the applicants that the directions, given by this Court, while disposing of the said writ petition, have not been implemented due to some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of delivery of the judgment, all the applications, which had been made by the writ petitioners, seeking withdrawal of money from their Escrow Accounts for the purpose of making investments on their various projects including the project of a five-star hotel. 15. As the petitioners had not been able to make investments due to the fact that their Escrow Accounts had remained frozen and the withdrawal applications had not been disposed of, and/or were incorrectly disposed of, the Court further directed that while considering the applications for withdrawal, the periods, during which the Escrow Accounts, in question, had remained frozen, shall be excluded so that the withdrawal applications do not lapse and the investments, sought to be made, were not denied due to the illegal and arbitrary actions of the respondents. 16. However, it appears, now, that while this Court did direct that the periods, during which the Escrow Accounts remained frozen, be excluded for the purpose of consideration of withdrawal applications, for the purpose of making investment and for the purpose of certification of the investment by the IAC, the Court did not pass any specific direction that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are directed to examine and dispose of within the specified time-frames, cannot be effectively considered if the periods, during which the money having been transferred from the petitioners' Escrow Accounts remained illegally unutilized with the respondents, it is necessary to clarify, and it is hereby clarified, that not only the periods, during which the Escrow Accounts, in question, remained frozen, but also during the periods, when diverse sums of money, having been transferred from the petitioners' Escrow Accounts towards recovery of the alleged dues of the petitioners, remained unutilized by the petitioners, be kept excluded, while considering their applications for withdrawal so that the withdrawal applications do not lapse by the ex facie illegal actions of the respondents and not for any default on the part of the writ petitioners-applicants. 20. Coupled with the above, one cannot avoid noticing that it was in order to enable the petitioners receive the fruits of the reliefs, which had been granted, that this Court had directed that while computing the period of investment of two years from the date of deposit under the Notification, dated 21-1-2004, read with the Notif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in order to make the relief available, the Court finds that a clarification is necessary to make as to what it had decided or ordered, it would remain within the powers of the Court to so clarify its own order. It may be noted that the power, which vests in a Court, casts really an obligation on the Court to exercise such power, when the facts of a given case so warrant. 24. Before proceeding further, it also needs to be noted that though, ordinarily, a petition is considered and decided on the basis of the label, which it carries, the fact remains that the label of the petition is not decisive of the power of the Court in the sense that a petition, even if refers to a legal provision erroneously, cannot be rejected if the facts, disclosed in the petition, require the Court to exercise its power, which the Court, otherwise, has. In such cases, as indicated hereinbefore, the Court must exercise its power, for, the Court exists not for counting errors as regards the management of a case by a person, but for doing substantive justice. It is, therefore, the duty of the Court to exercise its power to give a relief, which the contents of a petition may make a petitioner entitled to rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not conferred by law. The observations read, "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. No provision in the Act was brought to (our) notice from which it could be gathered that the Government had power to review its own order, it is obvious that its delegate could not have reviewed its order." The position of law, so laid down in Patel Narshi Thakershi (supra), has been reiterated by the Supreme Court in other later cases. 27. It is necessary to bear in mind, as pointed out in Assistant Commissioner, Income Tax, Rajkot v. Saurashtra Kutch Stock Exchange, reported in [2008 (230) E.L.T. 385 (S.C.) = 2010 (18) S.T.R. 84 (S.C.) = (2008) 14 SCC 171], that it is very difficult to define an error apparent on the face of the record precisely, scientifically and with certainty. 28. Referring to its earlier decisions in Hari Vishnu Kamath v. Ahmad Ishaque (AIT 1955 SC 233), Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale (AIR 1960 SC 137), and Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477), the Supreme Court, in Saurashtra Kutch Stock Exchange (supra), conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of its own order by the High Court inheres in every court of plenary jurisdiction to prevent miscarriage of justice and that the High Court's power of review extends to prevent miscarriage of justice. The Court observed, ".....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." 32. The Supreme Court, in M.M. Thomas v. State of Kerala and another, reported in (2000) 1 SCC 666, held thus : "14. The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers, to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is, undoubtedly, a superior court, which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it, the High Court has not only power, but a duty to correct it. The Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o favour to the petitioners-applicants; rather, the High Court, by correcting the errors, would be discharging its duty to keep its record, as a court of plenary jurisdiction, free from errors. 34. In the backdrop of the position of law, as discussed above, indicating that the High Court does not only have the power, but also owes a duty to ensure that every error, apparent on the face of the record, when comes to its notice, be corrected, when I revert to the facts of the present case, I find that it is not only within the powers of this Court, but it is also this Court's obligation to direct that the periods, during which the money lying in the applicants' Escrow Accounts stood forfeited, be excluded, while considering the petitioners-applicants' applications for withdrawal as has already been directed in respect of the periods, during which the Escrow Accounts stood frozen. 35. By making this application, the applicant has also sought for allowing them to file fresh withdrawal applications for making, under the notification, investments of the amounts, which would be made available to them pursuant to the judgment and order, dated 6-1-2010, aforementioned. In this regard, it n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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