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REVIEW OF ORDER

Central Excise - By: - Mr. M. GOVINDARAJAN - Dated:- 12-12-2015 - Under Order 47, Rule 1 of Civil Procedure Code, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power under Order 47, Rule 1 of CPC. It is not permissible for an erroneous decis .....

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le on- discovery of new and important material or evidence which after exercise of due diligence, was not within the knowledge of petitioner, or could not be produced by him; mistake or error apparent on face of record; any other sufficient reason. It is not maintainable on mere possibility of two views on subject. There is a clear distinction between the erroneous decision and error apparent on the face of the record, while the first one can be corrected by the higher forum and the latter can o .....

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e from the record of the case and which does not required detailed examination. Review - a creation of statute The power of review is a creation of statute and not an inherent power as held in Barijoriwala Rolling Mills Private Limited V. Commissioner of Central Excise, Jaipur-I - 2014 (1) TMI 1645 - CESTAT NEW DELHI. Thus review cannot be entertained in the absence of a statutory provision in that regard. Once a decision is taken by a Bench of the Tribunal in the question of waiver of pre depos .....

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ing the present appeal shall result in review in disguise or the appeal in the appeal already disposed. Adjudicating Authority - no power of review The Adjudicating Authority in taxation matters has no power of review of their own order as illustrated in the following case laws: In Samsung India Electronics Private Limited V. Commissioner of Customs, New Delhi - 2015 (12) TMI 520 - CESTAT NEW DELHI the Tribunal analyzed Section 154 of the Customs Act. The said section makes only to make effort t .....

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issed the appeal. It is also appreciated that the party has not gone in appeal but is working re-assessment in the nature of rectification application which is the abuse of process of law for no power of review is vested with adjudicating authority. In Garg Industries V. Commissioner of Central Excise & Service Tax, Noida - 2014 (9) TMI 865 - CESTAT NEW DELHI it was held that there is no power, authority or jurisdiction consecrated under the provisions of Central Excise Act, enabling withdra .....

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lenged, re-assessment/re-determination making extensive inquiry is not subject of Section 154. Therefore amendment sought by the appellant taking shelter of Section 154, neither being clerical error nor arithmetical mistakes, there is no scope for grant of relief under Section 154. The party has not gone in appeal but is seeking re-assessment in the nature of rectification application which is abuse of process of law for no power of review vested with the Adjudicating Authority. Types of review .....

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erefore, the power to set aside an order passed ex-parte against the respondent before it if it is found that the respondent had for sufficient cause, been unable to appear. The other type of review is substantive review. Procedural review As discussed above the procedure review may either inherent or implied. The following case laws illustrate the power of the Tribunal under procedural review: In Shree Ganesh Forging Company V. Union of India - 2015 (8) TMI 1228 - CALCUTTA HIGH COURT the High C .....

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nt of appeal had committed an error which required procedural review, which is either inherent or implied in a court or tribunal under Rule 41 of CESTAT (Procedure) Rules, 1982. In Dungaramal S. Doshi V. Special Director, Enforcement Directorate - 2012 (4) TMI 561 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI it was held that the review under inherent powers are only available for procedural review and not for substantive review. Whenever any procedural defect is committed while passing a .....

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esult in dual disadvantage to the applicant- It would be denied the opportunity to put forward its contention vis-à-vis the investigation report; Such report would constitute the basis of in future proceedings and that would be determined in the application. In the instant case, the order of Settlement Commission declining the application holding that full and truthful disclosures were not made such that the applicant did not extend required amount of co-operation, set aside as the invest .....

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consideration and disposal. In Commissioner of Central Excise, Bangalore V. United Telecom Limited - 2011 (9) TMI 953 - KARNATAKA HIGH COURT the review petition is filed to review the order passed by the High Court in CEA 118/2009 in which the High Court passed the order disposing the appeal on the ground that the question of law involved in the said case is the same as in CEA 96/2009 which is disposed of by the High Court. The ground urged for review of the order in the law laid down in CEA 96/ .....

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ment dated 21.12.2010 in Customs Appeal under Section 130 of the Customs Act. The department contended that the judgment sought to be reviewed was challenged before the Supreme Court by filing a special leave petition. The said petition was dismissed by the Supreme Court. Thus this review petition is not maintainable. The High Court found that the original authority in its order held that in view of the implementation of the DGFT the overall foreign exchange earnings needs to be reckoned towards .....

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rder has been passed on merits, unless there is an error apparent from the order, the same cannot be modified or reviewed. In this case, even though the appellant was not represented, the order has been passed on merits. The submissions made by the appellants in the appeal memorandum and the papers have been taken into account. If the appellant did not file the affidavit of the Director by that time and if the same is submitted now it would only mean that the defects or omissions on the part of .....

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