TMI Blog2015 (10) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... at Credit Rules, 2002, is permissible. We have reached our own conclusions as to why the judgment in the case of Repro India Ltd. cannot be of any assistance to the assessees - Our conclusion may be or may not be erroneous. However, we cannot reconsider or correct the same in the garb of a review. We are not deciding an appeal and, therefore, will not be in a position to refer to the record all over again. While dismissing the assessee’s appeals and writ petitions, we have given our reasons and it is during the course of recording them that we referred to the contentions of the petitioners herein. We referred to all the judgments cited by them. We have, independent of those judgments, held that the petitioners’ writ petitions and appeals cannot be allowed. - However, in the case of M/s. Sharp Menthol India Ltd. this sub-rule has been held to be referring to “exempted goods”. That is why we have given somewhat detailed attention to the conclusions reached in M/s. Sharp Menthol India Ltd. in paragraphs 80 to 83 of the judgment under review. That was to caution everybody concerned about its applicability. In paragraph 84 we have concluded that all matters arose firstly before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods (tractors) can be exported under Bond/Undertaking-1 in terms of Rule 19 of the Central Excise Rules, 2002 and that by virtue of Rule 6(6)(v) of the Cenvat Credit Rules, 2004, the provisions of Rule 6(1) and 6(3) are not applicable in respect of excisable goods cleared with payment of duty for export under bond. However, in the judgment/order under review, this Court has held that Rule 6(6)(v) will not assist the review petitioners. Thus, this Court has overlooked the judgment passed in these very proceedings. 3. Mr. Sridharan submits that for pointing out this inconsistency, nothing more except some paragraphs of the judgment under review and the judgment referred above have to be noted. 4. Mr. Sridharan submits that there is no distinction and in law inasmuch as the words employed in Rule 6(6)(v) may be excisable goods and not exempt goods , but Section 2(d) of the Central Excise Act, 1944, which has not been referred would denote that all excisable goods are exempt. Therefore, exempt goods are not of a distinct category but very much covered by this definition of the term excisable goods as appearing in Section 2 clause (d) of the Central Excise Act, 1944. Thus, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted into either a full-fledged appeal or a revision. Its ambit cannot be enlarged and by inviting the Court to go behind the judgment under review. An elaborate exercise and which is permissible in the above jurisdictions cannot be undertaken. If these tests are applied, the review petitions deserve to be dismissed. 7. Mr. Kantharia submitted that this Court has in the judgment under review specifically referred to the Central Excise Act, 1944 and noted the difference between excisable and exempt goods. In that regard, he invites our attention to paragraph 62 of the judgment and order under review. Mr. Kantharia also invites our attention to the conclusions recorded and based on the wording of the Rule in question. He would submit that this Court has taken a view with which the petitioners do not agree. However, for correction of that view they would have to approach a higher court. In the garb of a review this Court cannot be called upon to revisit all the factual and legal conclusions. For these reasons he would submit that the review petition be dismissed. 8. For properly appreciating these contentions, first of all it is necessary to outline the ambit and scope of the pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the face of the record justifying the court to exercise its power of review under Order 47, Rule 1, CPC. In exercise of the jurisdiction under Order 47, Rule 1, CPC it is not permissible for an erroneous decision to be reheard and corrected . A review petition, it must be remembered has a limited purpose and cannot be allowed to be an appeal is disguise . 14. Review is not re-hearing of an original matter. The power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. A repetition of old and overruled argument is not enough to re-open concluded adjudications. This Court in Jain Studios Ltd. v. Shin Satellite Public Co. Ltd. - (2006) 5 SCC 501 : (AIR 2006 SC 2686), held as under : 11. So far as the grievance of the applicant on merits is concerned, the learned counsel for the opponent is right in submitting that virtually the applicant seeks the same relief which had been sought at the time of arguing the main matter and had been negatived. Once such a prayer had been refused, no review petition would lie which would convert rehearing of the original matter. It is settled law that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its soundness or results in miscarriage of justice. (v) A review is by no means an appeal in disguise whereby an erroneous decision is re-heard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, if cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. 9. It is in accordance with the above principles that we will have to decide these petitions. 10. We have carefully considered the rival contentions. We have also perused the review petition and the annexures thereto. The basis of the relief is the contradiction in the conclusion reached in Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew petitions cannot be allowed by finding out any alleged contradictions or conflicting views in the judgment under review. That would require us to go behind our judgment under review. We would be required to once again consider the same arguments and the same contentions as have been noted in the main order. We have given our reasoning as to why the assessee - review petitioners cannot be permitted to take advantage of the Tribunal s conclusion reached in paragraph 8 of its order dated 22nd June, 2012 (see paragraph 71 of the judgment under review). We have also given our reasons further and to hold as to how reliance on Rule 6(6)(v) by the assessee-review petitioners before us was entirely misplaced. 14. Thereafter, while dealing with the judgment cited and particularly in the case of Repro India Ltd., we have held in paragraph 75 that the conclusions therein rendered by a Division Bench of this Court was for the purpose of dealing with the essential controversy and whether in respect of exempted goods cleared for export and inputs in respect of which are dutiable, their clearance by giving Bond under Rule 19 of the Cenvat Credit Rules, 2002, is permissible. We have reached o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices. Therefore, what is excisable and dutiable and what is exempted has been noted by us. It is for that reason as well we have denied relief to the review petitioners. 19. We may be right in our aforesaid conclusions or wrong, but we can only be corrected by a higher court. Mr. Kantharia is, therefore, right in submitting that old contentions and arguments would not be enough for us to reopen a concluded matter. His reliance placed on Kamlesh Verma v. Mayawati Ors. (supra) is apposite. 20. If the case was as clear as Mr. Sridharan appearing for the review petitioners points out, then, he was not required to make any alternate arguments in support of this review petition and place reliance on Section 2(d) of the Central Excise Act, 1944. His argument runs thus : that Section 2(d) of the Central Excise Act, 1944 defines excisable goods and that would encompass those goods which enjoy an exemption in terms of the powers of exemption vesting in the Central Government. In that regard, he invites our attention to paragraph 9 of the judgment in the case of Repro India Ltd. (supra) and the judgments of the Hon ble Supreme Court in the case of Vee Kayan Industries v. Collector o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
