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2015 (10) TMI 44 - BOMBAY HIGH COURT

2015 (10) TMI 44 - BOMBAY HIGH COURT - 2015 (321) E.L.T. 635 (Bom.) - Review petition against order previous order passed [2015 (9) TMI 403 - BOMBAY HIGH COURT] - Contradictory judgments [2015 (1) TMI 673 - BOMBAY HIGH COURT] and [2015 (9) TMI 403 - BOMBAY HIGH COURT] - Applicability of Rule 6(6)(v) of the Cenvat Credit Rules, 2004 - Court earlier held that exempted goods (tractors) can be exported under Bond/Undertaking-1 in terms of Rule 19 of the Central Excise Rules, 2002 and that by virtue .....

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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 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, therefor .....

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-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 the amendment to the Central Excise Act, 1944 by which sub-section (1A) was inserted in Section 5A of the same. We have also rea .....

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015 in CEA Nos. 45-46 of 2013 - Dated:- 24-4-2015 - S.C. Dharmadhikari and B.P. Colabawalla, JJ. Shri V. Sridharan, Senior Counsel with Prakash Shah i/b PDS Legal, for the Petitioner. Shri Vijay Kantharia with Jitendra B. Mishra, for the Respondent. ORDER These review petitions seek a review of a judgment and order which has been pronounced on 9th September, 2014, in two Central Excise Appeals and three Writ Petitions which raise common questions of fact and law. 2. Mr. Sridharan, learned s .....

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ing Central Excise Appeal No. 39 of 2013 before this Court. This Court, by order dated 25th June, 2014, dismissed the Central Excise Appeal No. 39 of 2013. This Court held that the Tribunal s order and view taken cannot be said to be perverse or vitiated by any error of law apparent on the face of the record. Thus, in the very proceedings and between same parties, the same order of the Appellate Tribunal has been upheld by this Court by relying upon the judgment of the Division Bench of this Cou .....

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f 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 .....

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the reason that the goods are excisable. Mr. Sridharan, therefore, submits that in a cognate matter and in which a conflicting view has been taken, then, this Court has not found any error or defect in the judgments of M/s. Repro India Ltd. and M/s. Sharp Menthol India Ltd. These judgments having been followed in one case by the same Bench and between same parties, in another case they could not have been ignored or brushed aside. In any event, if this Court desires to differ therefrom, it shou .....

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arguments Mr. Sridharan places reliance upon the following judgments : (1) Union of India v. Sharp Menthol India Ltd. - 2011 (270) E.L.T. 212 (Bom.) (2) Repro India Ltd. v. Union of India - 2009 (235) E.L.T. 614. (3) Vee Kayan Industries v. Collector of Central Excise - 1996 (83) E.L.T. 262 (S.C.). (4) Collector of Central Excise, New Delhi v. Prakash Pipes and Industries Limited - 1997 (94) E.L.T. 18 (S.C.). (5) Shree Mahavir Metal Works v. Union of India - 1998 (98) E.L.T. 580 (S.C.). (6) Wall .....

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pen for the court to find out as to whether the conclusions are perverse or they are vitiated by any error of law apparent on the face of the record. In such an exercise, the Court can peruse the entire record and not just the judgment under review. The scope of a review is very limited and it cannot be converted 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 permis .....

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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 s .....

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ision is re-heard and corrected, but lies only for patent error. This Court, in Parsion Devi & Ors. v. Sunitri Devi & Ors. - (1997) 8 SCC 715, held as under : 7. It is well settled that review proceedings have to be strictly confined to the ambit and scope of Order 47, Rule 1, CPC. In Thungabhadra Industries Ltd. v. Govt. of A.P. (AIR 1964 SC 1372) this Court opined : What, however, we are now concerned with is whether the statement in the order of September, 1959 that the case did .....

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of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by error apparent . A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for parent error.                 (emphasis ours) 8. Again, in Meera Bhanja v. Nirmala Kumari Choudhury (AIR 1995 SC 455) while quoting with approval a passage from Aribam Tulesh .....

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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 w .....

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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 the power of review cannot be confused with appellate power which enables a superior court to correct all errors committed by a subordinate court. It is not rehearing of an original matter. A repetition of old and overruled argument is not enough to reopen conclud .....

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5. Review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order XLVII, Rule 1 of CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Summary of Principles : 16. Thus, i .....

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AIR 1922 PC 113 and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius & Ors., (1995) 1 SCR 520 : (AIR 1954 SC 526), to mean a reason sufficient on grounds at least analogous to those specified in the rule . The same principles have been reiterated in Union of India v. Sandur Manganese & Iron Ores Ltd. & Ors., JT 2013 (8) SC 275 : (2013 AIR SCW 2905). (B) When the review will not be maintainable :- (i) A repetition of old and overruled .....

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ibility 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 abo .....

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tral Excise Appeal No. 39 of 2013, we held that there was a concession given that the judgment of this Court in Repro India Limited v. Union of India (supra) is applicable and that covers the issue therein. This was noted in paragraph 6.2 of the order passed by the Tribunal and paragraph 8 thereof. Thus, the Tribunal s conclusion as rendered in its order dated 22nd June, 2012, was not interfered with. 12. We have explained that in our order dated 25th June, 2014, while dismissing the Revenu .....

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manufacture of exempted goods or exempted services, except in the circumstances mentioned in sub-rule (2) of Rule 6. Then we have referred to sub-rule (3) of Rule 6 and which is containing a non-obstante clause and held that the manufacturer or provider of output service opting not to maintain separate accounts would have to follow either of the conditions as applicable to him and set out in Rule 6(3)(a)(b). Then we have referred to sub-rules (4) and (5). Thereafter in paragraph 64, we have ref .....

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sessee by the assessee s senior counsel Mr. Sridharan. That was relied upon in the main proceedings in which the judgment under review was rendered. However, the assessee s review 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 giv .....

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e 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 our own conclusions as to why the judgment in the case of Repro India Ltd. cannot be of any assistance to the assessees (S .....

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he record all over again. 16. 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. While pointing out as to how the reliance placed on the Division Bench judgment in the case of Union of India .....

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om paragraph 9 thereof. 17. 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. 18. However, independent of all this, in paragraph 84 we have concluded that all matters arose firstly before th .....

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lusions 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 .....

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