TMI Blog2020 (3) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... ly recording reasons, turned down the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application. It may be pertinent to note that in the present application, the petitioner has sought review of the judgement dated 16.6.2016 and grant of interest at the rate of 18% per annum or such other rate as the court may deem fit from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit. However, in the memorandum of petition of the captioned special civil application, the petitioner has prayed for interest at the rate of 18% per annum claimed vide application dated 21.7.2014. Thus, the refund application claimed in the application is not identical to the relief claimed in the petition. At this stage of review, the court would be required to rehear the learned counsel for the respective parties on the question of interest, namely, the entitlement, quantum and the date from which such interest is required to be granted which would amount to giving a fresh opportunity to the petitioner to argue on a point which though, could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed the petition in favour of the applicant by setting aside the order-in-original dated 24.11.2014 and directing the second respondent to forthwith sanction and grant the applicant refund of ₹ 73,60,061/- as claimed vide application dated 17.7.2014. However, as regards the claim of interest at the rate of 18% per annum, this court held that the interest claimed is not backed by any statutory provision and hence, such relief cannot be granted. 4. It is the case of the applicant that this court has held that the provisions of the Central Excise Act, 1944 will not apply to refund amount sanctioned as the said amount was not a duty of excise or education cess or secondary and higher secondary education cess and such amount was merely an amount deposited under a mistake of law. Hence, as a necessary corollary, the statutory provisions pertaining to interest as provided in Central Excise Act shall also not apply. It is the case of the applicant that as there are no statutory provisions governing the interest on the sum of money paid under the mistake of law, it is not possible that such claim of interest could be backed by any statutory provisions. Therefore, it is eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the case in accordance with what was described as the Jain law, it was held that this was an error on which a review should be granted as there was no such thing as the Jain Law. Where there is a decision of the Supreme Court bearing on a point and where after that decision a court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, there is an error apparent on the face of the record. 5.3 It was submitted that the test is not as to originally whether mind was applied or not. Review would apply only where the decision is erroneous and that in this case, the court has recorded two findings which are inconsistent with each other. It was urged that, therefore, an erroneous judgment which has a precedential value, needs to be corrected. 5.4 Reliance was placed upon the decision of the Supreme Court in M.K. Venkatachalam, ITO v. Bombay Dyeing and Manufacturing Co. Ltd., AIR 1958 SC 875, wherein the court held thus:- 6. It is in the light of this position that the extent of the Income-tax Officer's power under Section 35 to rectify mistakes apparent from the record must be determined; and in doing so, the scope and eff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court in Pure Drinks Pvt. Ltd. v. Union of India, MANU/MH/0501/1987, wherein the plaintiffs had claimed interest at the rate of 18% per annum on the excess duty collected by the defendants from the date on which the duty was collected till payment. The court held that in the interest of justice, it would be just and fair to award to the petitioners interest at the rate of 12% per annum from the date the duty was collected till payment. 5.7 Reliance was also placed upon the decision of the Calcutta High Court in Dulichand Shreelal v. CCE and others, 1987 (32) E.L.T. 388 (Cal.), wherein the petitioners had paid excise duty under a mistake of law and, accordingly, a refund of such amount along with interest was claimed. The court held that the petitioner is entitled to the refund of the amounts collected by the respondents, inasmuch as, such collection was without any authority of law and further granted interest at the rate of 12% per annum from the date of collection till the date of payment. 5.8 Reference was made to the decision of the Bombay High Court in the case of Sheel Thermoplastics Limited v. Union of India, 1988 (36) E.L.T. 106 (Bom.), wherein the petitioners ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the question of Article 20(1) of the Constitution. It was contended that the judgment of the Court entailed a convert to Islam the liability of prosecution for the offence of bigamy under Section 494 of the Indian Penal Code which would, otherwise not be an offence under the law applicable to him. Section 494 forms part of a substantive law and is applicable to all unless specifically excluded. As no notice has been issued for review of the main judgment which interpreted Section 494 IPC in the manner as narrated hereinabove, if cannot be said that any person was likely to be convicted for an offence except for violation of law in force at the time of commission of the act charged as offence. 58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order XLVII of the CPC has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal 's case. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be ..defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. Therefore, it can safely be held that the petitioners have hot made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal 's case. The petition is misconceived and bereft of any substance. 6.2 It was submitted that against an erroneous order an appeal ought to have been preferred. It was further submitted that in case the review application is entertained, other issues will also arise for determination, namely, the rate of interest as well as the date from which the interest should be granted, which would be beyond the scope of a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application. The Supreme Court in Asharfi Devi v. State of U.P., (2019) 5 SCC 86, has held that it is settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case. 11. In State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612, it was held that the term mistake or error apparent by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. The court placed reliance upon a decision of the Federal Court in the case of Hari Shankal Pal v. Ananth Nath Mitter (1949 FCR 36) for the proposition that the fact a decision is erroneous in law is certainly no ground for ordering review. If the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of refund claimed. However, despite the fact that no averments were made in respect of the claim of interest, having regard to the prayers made in the petition, this court in the judgment and order dated 16.6.2016 has held thus:- 19. Insofar as the claim of interest is concerned, the amount admittedly had been paid by the petitioner by way of a mistake. The position of law in this regard was not clear and hence, no fault can be found in the approach of the revenue authorities in retaining such amounts till the time the Circular dated 07.01.2014 came to be issued, clarifying the issue. It has been held hereinabove, that the amount in question is not in the nature of a duty of excise and hence the provisions of the Central Excise Act for refund would not be applicable. Consequently, the provisions of section 11BB of the Central Excise Act, which provides for interest on delayed refund, would also not be applicable. It is settled legal position that in the absence of a statutory provision entitling the assessee to interest, a mandamus cannot be issued to the revenue to pay interest. Though the petitioner has claimed interest at the rate of 18%, the same is not backed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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