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2016 (1) TMI 914 - SUPREME COURT

2016 (1) TMI 914 - SUPREME COURT - 2016 (332) E.L.T. 197 (SC) - Maintainability of appeal before Apex Court - Challenge to the order passed by the High Court dismissing the review application on merit as well as delay - Earlier HC had dismissed the writ petition - Claim of refund - period of limitation - appellant contended that assessment was provisional and hence, it remained provisional for all purposes and on finalisation of assessment under Section 18(2) of the Act if refund is due, then it .....

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s not assailed and the challenge is only to the order passed in review, this Court is obliged not to entertain such special leave petition. The said principle has gained the authoritative status and has been treated as a precedential principle for more than two decades and we are disposed to think that there is hardly any necessity not to be guided by the said precedent. - the appeal, being not maintainable, stands dismissed. - Decided against the appellant. - Civil Appeal No. 2687 of 2006 - Dat .....

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opined that the application for review was totally devoid of merit. The expression of the said view led to dismissal of the application for review. 2. The facts lie in a narrow compass. The appellants filed an application for refund of excess provisional customs duty amounting to ₹ 39,71,412/- which was claimed under Section 18(2) of the Customs Act, 1962 (for brevity, "the Act"). After the application was submitted, the 2nd respondent i.e., Assistant Collector of customs by lett .....

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.12.1991 and letter dated 01.06.1992 which had required the appellants to apply for refund under Section 27(2) of the Act. During the pendency of the writ petition the 2nd respondent passed an ex-parte order dated 04.12.1992 dismissing the claim of the refund under Section 27 of the Act and opined that the claim was inadmissible. 3. In the mean time, as the factual matrix would undrape, the Act was amended and Explanations were added to Section 27 of the Act. Placing reliance on the various aspe .....

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refund is due, then it was obligatory on the part of the customs authorities to refund the amount without applying the provisions contained in Section 27 of the Act. To buttress the said submission, reliance was placed on Collector of Central Excise v. India Tyre and Rubber Co. Ltd.1997 (94) ELT 495 (Mad.) and Hindustan Metal Pressing Works v. Commissioner of Central Excise 2003 (153) ELT 15 (S.C.). 5. The High Court appreciating the factual matrix and the legal submissions came to hold as follo .....

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in the case of Mafatlal Industries Ltd. (supra at para 95). In the present case, admittedly, the Petitioners have passed on the incidence of duty to the customers and have recovered the amount due to them. In this view of the matter, we decline to issue Writ in favour of the Petitioners." Being of the aforesaid view, the High Court dismissed the writ petition. An application for review was filed which met with its Waterloo being barred by limitation and also being devoid of substance. 6. M .....

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under Section 2(2) of the Act to include provisional assessment and, therefore, the application required to be made under Section 27 for refund including the refund of duty paid under the provisional assessment. On that basis it is canvassed that the authorities were justified in insisting upon the appellants to apply for refund under Section 27 of the Act. On behalf of the revenue reliance has been placed on the decisions in Mafatlal Industries Ltd. v. Union of India 89 ELT 247 (S.C.), Union of .....

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r and others v. Kendriya Vidyalaya Sangathan and others (2004) 13 SCC 677, Shiv Charan Singh v. State of Punjab and others (2007) 15 SCC 370, Ravi alias Ravichandran v. State represented by Inspector of Police (2007) 15 SCC 372, Vinod Kapoor v. State of Goa and others (2012) 12 SCC 378, State of Assam v. Ripa Sarma (2013) 3 SCC 63, and Sandhya Educational Society and another v. Union of India and others (2014) 7 SCC 701, the stance set forth by the respondents may deserve acceptation, but the af .....

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he Constitution of India being relatable to plenary jurisdiction conferred under the Constitution cannot be curtailed by the ordinary legislation. It is the submission of Mr. Gulati that the subsequent decisions have been guided by the provisions contained in the Code of Civil Procedure though the stipulations therein cannot control the exercise of the jurisdiction under Article 136 of the Constitution. 9. First we shall deal with the preliminary objection, for if we accept the same, the appeal .....

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Constitution ousts the jurisdiction of all the ordinary courts in election disputes and provides expressly that no election to either House of Parliament or to either House of the Legislature of a State shall be called in question, except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate legislature, and therefore, there can be no challenge to the validity of an election except by way of an election petition. .....

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said preliminary objection, the Constitution Bench opined thus:- "… The powers given by Article 136 of the Constitution however are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land. The article itself is worded in the widest terms possible. It vests in the Supreme Court a plenary jurisdiction in the matter of entertaining and hearing appeals, .....

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so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or affect the overriding powers which this Court can exercise in the matter of granting special leave under Article 136 of the Constitution." Elaborating further, the larger Bench proceeded to state that there was no prohibition of the exercise of powers by the Supreme Court in proper cases under Article 136 of the Constitution against the decision or determination of an Election .....

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hat the Supreme Court did not have jurisdiction to hear an appeal against the order of an Election Tribunal. In our considered opinion, the said authority does not lend any assistance to the principle which is sought to be canvassed by the learned counsel for the appellants, for there is discussion with regard to the plenary jurisdiction of this Court and ouster of jurisdiction by ordinary law. That apart, it has to be kept in mind that the subsequent decisions have opined that the special leave .....

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the case. The three-Judge Bench stated the facts, adverted to the concept of review jurisdiction as envisaged under Order 47 Rule 1 of the Civil Procedure Code and thereafter took note of the objection raised by the learned counsel for the respondent therein urging that leave granted by this Court should be revoked. The Court did not permit the respondent to raise the preliminary objection primarily on two reasons, namely, the special leave was granted after notice to the respondent and therefor .....

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urged happens to arise subsequent to the grant of the special leave or where it could not be ascertained by the respondent at that date notwithstanding the exercise of due care; except in such circumstances this Court will not permit the respondent to urge any argument regarding the correctness of the order of the Court granting special leave. Indeed, the very object of issuing notice to the respondent before the grant of leave is to ensure that the latter is afforded an opportunity to bring to .....

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ondent does not disclose any ground upon which the leave granted should be revoked; nor, of course, does it make any prayer seeking such relief. …" 13. Relying on the aforesaid passage, it is submitted by Mr. Gulati that stage for raising the issue as to maintainability is over. Before we anaylse the ratio of the said decision, it is desirable to take note of judgments that have come into existence in the meantime. 14. In Shanker Motiram Nale (supra), a two-Judge Bench has opined tha .....

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ction of review petition without assailing the main judgment, the Court referred to the decision in Shanker Motiram Nale (supra) and concurred with the said view. In that context, the two-Judge Bench referred to the decisions in Green View Tea & Industries v. Collector (2004) 4 SCC 122 and K. Rajamouli v. A.V.K.N. Swamy (2001) 5 SCC 37 and opined that:- "We find that in these two cases the question whether a special leave petition was maintainable against an order rejecting a review pet .....

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dicata. In both these cases the question whether a special leave petition is against an order disposing of a review petition was not considered at all. These cases therefore have no relevance at all." 16. In M.N. Haider (supra), relying on earlier decisions, it has been held that once the special leave petition is not maintainable no orders/judgments can be passed thereon except to dismiss the same. 17. In Shiv Charan Singh (supra), a two-Judge Bench was dealing with an appeal challenging a .....

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Vidyalaya Sangathan cited by the learned counsel for Respondent 8, this Court has consistently held that an appeal by way of special leave petition under Article 136 of the Constitution is not maintainable against the order rejecting an application for review in view of the provisions of Order 47 Rule 7 CPC. 12. There is nothing in the decisions cited by the appellant to show that this Court has taken a view different from the view taken in Abhishek Malviya v. Welfare Commr (2008) 3 SCC 108 with .....

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under Article 136 of the Constitution is maintainable." 19. In Ripa Sarma (supra), the main judgment and order was not challenged before this Court. The challenge was to the order passed in the review petition. On behalf of the respondent, a preliminary objection was raised with regard to maintainability of the special leave petition. On behalf of the petitioner, reliance was placed on Eastern Coalfields Limited v. Dugal Kumar (2008) 14 SCC 295 wherein it has been observed:- "It was su .....

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arma (supra), while dealing with the said observations, opined that the decisions of this Court in Shanker Motiram Nale (supra), Suseel Finance & Leasing Co. (supra) and M.N. Haider (supra) were not brought to the notice of the Court and, on that foundation proceeded to state as follows:- "… This apart, the submission with regard to the merger of the main order with the order in review has been merely noticed, and not accepted. The preliminary objection seems to have been rejecte .....

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elevated to the status of precedent. …" 21. Recently in Sandhya Educational Society and another (supra), the Court referred to the decision in Vinod Kapoor (supra) and opined thus:- "This Court in Vinod Kapoor v. State of Goa has categorically observed that once the special leave petition is dismissed as withdrawn without obtaining appropriate permission to file a special leave petition once over again after exhausting the remedy of review petition before the High Court, the sa .....

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view. The Court itself had made it clear that it might add that the matter mentioned by the learned counsel for the respondent in the said respect, even if urged at the hearing of the special leave petition would not have materially assisted him in resisting the grant of special leave. To appreciate the said observation in proper perspective, we may reproduce the factual backdrop and the analysis made therein:- "… The point he desired to urge was that in the petition for special leav .....

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of the two circumstances would by itself prove the untruth of the averment in the special leave petition. The learned Judges might well have thought that the decision had no material bearing on the only point that arose for consideration before them viz. whether their order of September 1959 was or was not vitiated by error of the sort which brought it within Order 47. Rule 1 of Civil Procedure Code. It is obvious that so viewed, it would not have any relevance. As regards the other point, the a .....

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ubstance." 23. The aforesaid decision when properly appreciated clearly reveals that it pertains to the stage when objection is to be taken. It does not lay down that a special leave petition against a review petition is maintainable or not. The focus on the stage of taking objection is fact-centric but not principle-oriented. To elaborate, the said decision does not lay down as a principle that the Court is bereft of power to hear on maintainability. If we understand the view expressed the .....

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found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at a .....

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s based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out wi .....

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ous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi." Viewed in the backdrop of the factual score in entirety, we are of the considered opinion that decision in Thungabhadra Industries Ltd. (supra) has to be confined to the facts of the said case. 25. Earlier we have stated that we will refer to the principles .....

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f the Constitution is a plenary jurisdiction in the matter of entertaining and hearing appeals by granting special leave against any kind of judgment or order made by court or tribunal in any case or matter and the jurisdiction can be exercised in spite of other specific provisions for appeal contained in the Constitution or other laws. This article confers on the Supreme Court special or residuary powers which are exercisable outside the purview of the ordinary laws in cases where the needs of .....

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urther appeal cannot cut down, or have an overriding effect on, the powers which the Supreme Court can exercise by virtue of Article 136 of the Constitu- tion. The constitutional jurisdiction conferred by Article 136 cannot be limited or taken away by any legislation subordinate to the Constitution. This view finds support from the Constitution Bench decision of this Court in S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124 and the recent decision of this Court in Surya Dev Rai v. Ram Chand .....

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d on the constitutional courts of the country. The decisions which we have referred to earlier deal about the maintainability of the challenge to the order of review when the main order is not assailed. The real test is even if the order passed in review is set aside, the order that is not challenged cannot be set aside. The decision in Eastern Coalfields Limited (supra) has been rightly opined in Ripa Sarma s case, has been rendered in ignorance of the earlier judgments of co-equal strength. Th .....

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there is no need to challenge the main order, for it is the order in review that affects the aggrieved party. The decisions pertaining to maintainability of special leave petition or for that matter appeal have to be seemly understood. Though the decisions in Shanker Motiram Nale (supra) the two-Judge Bench referred to Order 47 Rule 7 of the Code of Civil Procedure that bars an appeal against the order of the court rejecting the review, it is not to be understood that the court has curtailed the .....

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