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2016 (9) TMI 1092 - DELHI HIGH COURT

2016 (9) TMI 1092 - DELHI HIGH COURT - 2016 (342) E.L.T. 546 (Del.) - Scope of review in review petition - denial of deemed export benefits if the Bill of Entry is in the name of the project authority - monetary claim in the writ petition - review petition on the ground that decision is erroneous - maintainability - can the scope of the review to the extent desired by the senior counsel for the petitioner/review applicant be widened which may have far reaching ramifications affecting the justice .....

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ioner/review applicant to a wider consideration than is permissible in review jurisdiction. - No ground found for review - petition dismissed - decided against petitioner. - W.P. (C) No. 3821 of 2014 & Review Petition No. 542 of 2014 - Dated:- 16-9-2016 - MR. RAJIV SAHAI ENDLAW J. Petitioner Through: Dr. A.M. Singhvi, Sr. Adv. with Mr. Sujit Ghosh, Mr. Shashank Shekhar, Mr. Nakul Mohta, Ms. Parul Shukla and Mr. Rishi Aggarwal, Advs. for Review Petitioner. Respondents Through: Mr. Sanjay Jain .....

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der the Chairmanship of the Director General of Foreign Trade, of denying Deemed Export Benefits (DEB) if the Bill of Entry is in the name of the project authority , as was in the case of the petitioner and accordingly denying the DEB to the petitioner. The petition also impugns the minutes of the said meeting dated 15th March, 2011 and seeks a direction to the respondents to give the DEB in the sum of ₹ 72 crores to the petitioner. 2. Arguments on the petition were heard on 21st July, 201 .....

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the clarification that if the review petition fails, the petitioner will be at liberty to question not only the judgment dated 12th August, 2014 but also the order in the review petition. 5. Notice of the review petition was issued and a reply thereto filed and to which a rejoinder has been filed by the petitioner. 6. The senior counsel for the petitioner/review applicant was heard on 21st April, 2015 and 11th September, 2015. 7. CM No.23810/2015 has been filed by M/s Simplex Infrastructures Ltd .....

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and order reserved. 9. We had vide our judgment dated 12th August, 2014, of which review is sought, dismissed the writ petition for the reasons (i) that the claim in the petition was in the nature of a monetary claim and the writ petition was not maintainable; (ii) that the limitation for a suit for recovery of amount illegally appropriated by the Government is governed by Article 62 of the Schedule to the Limitation Act, 1908 corresponding to Article 24 of the Limitation Act, 1963; (iii) that t .....

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the petitioner was satisfied with the rejection of its claim and cannot be permitted to revive a stale claim merely because someone else similarly situated had succeeded; and, (vii) that normally a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability and no exceptional ground had been made out by the petitioner. 10. The emphasis of the senior counsel for the petitioner/review applicant has been that there is an error apparent on the face o .....

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011 was not of a competent authority. 11. In support of the aforesaid contention, the senior counsel for the petitioner/review applicant has taken us through the pleadings in the petition and the review petition and the reply thereto; Section 16 of The Foreign Trade (Development and Regulation) Act, 1992; the judgment dated 26th February, 2014 of the Division Bench of this Court in W.P.(C) No.4455/2013 titled Simplex Infrastructure Ltd. Vs. Union of India and encouraged whereby the petitioner ha .....

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f Rajender Singh Vs. Lt. Governor, Andaman & Nicobar Islands (2005) 13 SCC 289 laying down that the power of review extends to correct all errors to prevent miscarriage of justice and it was argued that there would be miscarriage of justice, in Simplex Infrastructure Ltd. succeeding and the petitioner failing, qua the same claim. 14. Error was also sought to be found in the reasoning in the judgment under review as to the maintainability of the petition by referring to para 25 of ABL Interna .....

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nsequently held that the petitioner therein would not be required to pay back the DEB already received. 17. Per contra, the learned ASG contended that the argument of the petitioner/review applicant, of the competence of the authority which had taken the decision dated 15th March, 2011 is irrelevant as the reason which prevailed in the judgment of which review is sought was that the monetary claim in the writ petition was barred by time. Without prejudice thereto, it is also argued that the peti .....

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action for the petitioner. It is argued that a judgment in one case cannot be a cause of action for another case. 19. The learned ASG has even otherwise, on merits also argued that DEB is only for goods manufactured in India but the subject goods were not manufacture in India. 20. It was also contended by the learned ASG that ABL International Ltd. supra has been differentiated in Joshi Technologies International Inc. Vs. Union of India (2015) 7 SCC 728. 21. The senior counsel for the petitione .....

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l Civil Appeal No.11031/2013 titled Alstom India Ltd. Vs. Union of India holding that even after making payment of tax either by misinterpreting the statutory provision or under unconstitutional provision or under mistake of law, a citizen can challenge the inherent lack of jurisdiction and if succeeds, the Court can in appropriate case direct refund of the amount which has been collected without jurisdiction. Reliance is also placed on para 8 of Sushil Kumar Sen Vs. State of Bihar (1975) 1 SCC .....

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elief. We have wondered, whether our judicial system permits the Courts / Judges to so change their minds / opinions, when approached in review. 25. In our view, to widen the scope of the review to the extent desired by the senior counsel for the petitioner/review applicant, may have far reaching ramifications affecting the justice delivery system. 26. Though we, in the facts of the present case, even after hearing a different counsel now appearing for the petitioner/review applicant, do not fin .....

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tion has remained pending for nearly one and a half years. However if it were to be held that we today are entitled to form a different opinion than what we had formed earlier, the same in our view is coupled with the danger of eroding the faith in the judicial system and the consumers of the judicial system believing that the Judges can be prevailed upon to so change their opinion/judgments. 27. The power of review, in the Code of Civil Procedure, 1908 (CPC), is confined to cases of discovery o .....

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before us has been already considered carefully in the judgment of which review is sought and the petitioner s demand for review is only an attempt to retrieve a lost case. No fresh facts are brought to our notice by way of discovery of new and important evidence, which would justify reconsideration of the judgment. Para 11 of the judgment of which review is sought and to which repeated reference was made by senior counsel for petitioner/review applicant, in our view, instead of forming a groun .....

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ibed in Order XLVII of the CPC and permit for a rehearing "on account of some mistake or error apparent on the face of the records or for any other sufficient reason"; the former part of the rule deals with a situation attributable to the applicant and the latter to a jural action which is manifestly incorrect or on which two conclusions are not possible; neither of them postulate a rehearing of the dispute because a party had not highlighted all the aspects of the case or could perhap .....

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erence to a host of judgments, cannot expect a different verdict. 31. Reference may also be made to M/s. Thungabhadra Industries Ltd. Vs. Government of Andhra Pradesh AIR 1964 1372 also reiterated in S.N.S. (Minerals) Ltd (supra) laying down that there is a distinction which is real, though it might not always be capable of exposition, between a mere erroneous decision and a decision which could be characterised as vitiated by "error apparent". Review was held to be no means an appeal .....

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