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TMI Blog2010 (10) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... licenses and other charges levied by the authorities in the buyer's country on the goods shall be borne by the buyer and for such taxes, duties, licenses or levies for which the seller is liable will be reimbursed by the buyer upon due proof of liability and payment which means that the payment of excise duty is admissible only on production of authenticated document. It was the further case of the opposite party that excise duty levied on a brass jacketed strainer is up to Rs. 20 lakhs shall be nil but from Rs. 20 lakhs to Rs. 75 lakhs shall be @ 5% with surcharge @ 5% on excise duty and above Rs. 75 lakhs shall be Rs. 2,88,750/- plus duty on the value exceeding Rs. 75 lakhs @ 15% plus 5% surcharge on excise duty. In view of such governing law relating to excise duty the petitioner has received an excess payment of Rs. 6,13,867/- from the opposite party. 3. On the basis of the aforesaid fact the opposite party filed the suit for recovery of the said sum of Rs. 6,13,867/- together with interest of Rs. 2,76,240.15 p aggregating to Rs. 8,90,107.15 p and decree for further interest @ 18% from the date of institution till its realization. 4. The opposite party initially con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority under the Central Excise Act, 1944 has held that the petitioner has not charged any extra amount as Central Excise duty. 10. It is admitted by the petitioner that in preferring an application for review there is a delay of 1455 days and it is sought to be contended that the ground on which the review is sought for is subsequent to the passing of the said ex parte decree and the petitioner was pursuing its remedy under Order 9 Rule 13 as per the advice of the lawyer and for such the petitioner should not be deprived of its legal right in seeking the review of the ex parte decree. 11. Mr. P. K. Das, learned Advocate appearing on behalf of the petitioner strenuously argued that the said ex parte decree is not sustainable inasmuch as there is an embargo created under Section 11D of Central Excise Act, 1944 wherein the power has been conferred upon the Assistant Commissioner of Central Excise to adjudicate the excise duty collected by the person. He further contends that once an authority is vested with the power to decide and/or adjudicate a particular issue, the Civil Court's jurisdiction is impliedly taken away. 12. He relies upon a judgment of the Apex Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as representing duty of excise on any excisable goods which are wholly exempt or are chargeable to nil rate of duty from any person in any manner, shall forthwith pay the amount so collected to the credit of the Central Government. (2) Where any amount is required to be paid to the credit of the Central Government under sub-section (1) or sub-section (1A), as the case may be, and which has not been so paid, the Central Excise Officer may serve, on the person liable to pay such amount, a notice requiring him to show cause why the said amount, as specified in the notice, should not be paid by him to the credit of the Central Government. (3) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom the notice is served under sub-section (2), determine the amount due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (4) The amount paid to the credit of the Central Government under sub-section (1) or sub-section (1A) or sub-section (3), as the case may be, shall be adjusted against the duty of excise payable by the person on finalisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27 Cal. 920 and a judgment of the Punjab High Court in case of Lachhmi Narain Balu v. Ghisa Bihari & Anr. reported in AIR 1960 Punjab 43. He further placed reliance upon a judgment of Rajah Kotagiri Venkata Subbamma Rao v. Rajah Vellanki Venkatrama Rao reported in 27 Indian Appeals 197. 16. Having considered the submission of the counsels appearing for the respective parties it appears that the opposite party filed a suit simpliciter for recovery of money against the petitioner in the City Civil Court at Calcutta praying for a decree for refund of the excess amount paid on account of an excise duty. The petitioner having appeared in the said suit and initially contested by filing written statement but no specific defence was taken that the jurisdiction of the Civil Court has been ousted or there is no conferment of the jurisdiction upon the Civil Court to adjudicate such dispute. The entire defence runs counter to the claim made by the opposite party on facts and my endeavour to find out a slightest whisper as to the lack of jurisdiction failed. 17. The petitioner, though, appeared in the said suit but ultimately did not contest, resulting thereby, the said suit was dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Excise Officer. It obviously does not imbibe in it a dispute between a buyer and a seller arising out of a contract. It is well-settled that an exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless such jurisdiction is expressly excluded or by necessary implication. In case of an exclusion by necessary implication by a particular Act does only after examination of the scheme of the said Act in order to find out the adequacy and/or sufficiency of the remedies provided therein and also to find out that the determination of all the questions about the right and liability shall be determined by a special forum. If a particular Act contains no mechanism or machinery, certainly a suit lies [see AIR 1969 SC 78 (Dhulabhai v. State of MP & Anr.) : AIR 1966 SC 893 (Ram Swarup & Ors. v. Shikar Chand & Anr.) : (2000) 3 SCC 689 (State of AP v. Manjeti Lazmi Kantha Rao (dead) by L.RS]. 21. Applying the above test Section 11D of the Central Excise Act does not apply to a contractual field between a seller and a buyer where the dispute relates to a payment of an excess amount on account of excise duties and other levies. This is a suit where the opposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is some mistake or error apparent on the face of the record or some other sufficient cause. 25. There is no doubt that taking recourse to the setting aside the ex parte decree as envisaged under Order 9 Rule 13 of the Code and dismissal of the said application as well as an appeal therefrom does not preclude the person from challenging the said decree either in appeal or if no appeal is filed by way of a review as the consideration in deciding the said application for setting aside the ex parte decree under Order 9 Rule 13 of the Code is different than the consideration in dealing with an appeal or the review against the parent order. The jurisdiction conferred upon the Court by way of an appeal is wider than the jurisdiction conferred upon the Court exercising the review jurisdiction. Before an appellate Court the entire matter is at large but when the matter is placed before the Court exercising its review jurisdiction the same should be considered within the precincts of the statutory mandates i.e. Order 47 of the CPC. 26. The discovery of a new and important matter or an evidence does not mean the discovery of a matter or evidence subsequent to the passing of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e other decisions have to be taken. As far back as in the year 1997 this Hon'ble Court in the case of Sudananda Moral (supra) was pleased to hold that mere reversal of a judgment which was relied upon while deciding an issue cannot be a ground for review in the event of reversal by an appellate court. 29. Mr. Das has heavily relied upon the judgment in the case of Board of Control for Cricket, India (supra) to the effect that subsequent event can be considered while exercising its review jurisdiction. The factual matrix of the said case was that an order was passed by the Court on mistaken belief that the board would be represented by its new office bearers and thus all parties were before it and an undertaking given by the senior counsel appearing for the board appeared to the Division Bench of the High Court to be misleading. In such pursuit of the matter the order was reviewed taking into consideration of a subsequent event which was suggestive of the fact that the order sought to be reviewed was passed on mistaken belief and was the outcome of a misleading statement from the bar. I am afraid that this is not the case here. Applicability of the judgment largely depends upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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