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TMI Blog2024 (7) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order, the writ petition was dismissed, but providing that "the petitioner, if so chooses, may file a reply before the authority concerned, to the show cause notice dated 10.04.2023, which was impugned in the writ petition." 4. The writ petitioner was served with the show cause notice No .F.No. ACC/ASST/MISC/443/2022-Gr-5A, dated 10.04.2023, referred as the second show cause notice in the writ petition, under Section 28 (4) read with Section 124 of the Customs Act, 1962 (in short 'the Act') on the subject of the evasion of customs duty in the import of GPON Basic Boxes etc., by way of misclassification and misdeclaration for determination of differential duty and imposition of penalty, confiscation and levy. Initially, the petitioner was served with show cause notice vide F.No.S49/50/2021-Gr.5A, dated 24.03.2022, referred in the writ petition as first show cause notice issued by the 3rd respondent-the Deputy Commissioner of Customs, Office of the Commissioner of Customs-II, Chennai, by which demand and recovery of differential customs duties, amounting to Rs. 13,37,44,176/- was proposed. Pending adjudication, the second show cause notice was issued, proposing demand of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner's company were imported between 14.04.2018 and 04.09.2019, which were cleared after verification and examination by the customs authorities under Section 17 of the Act. He further submitted that if there were any duties which were not levied or short levied, the proper officer could serve notice within two years from the date of clearance of goods and in case of willful mis-statement or suppression of facts proved against the importer, the limitation period for issuance of show cause notice was 5 years under Section 28 (4) of the Act. Since the last import of goods made on 04.09.2019, two years limitation period under Section 28 (1) of the Act ended on 03.09.2021, the first show cause notice was issued on 24.03.2022, invoking Section 28 (4) of the Act, and in the submission, it was wrongly brought under the purview of Section 28 (4) of the Act by alleging suppression of facts and mis-declaration on the part of the petitioner's company. (ii) The period of limitation of 5 years under Section 28 (4) of the Act is also subject to strict compliance with the provisions of Section 28 (9) of the Act. (iii) The letter of withdrawal dated 17.05.2023, by which the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvation was made by this Court: "12. A bare perusal of sub-section (9) of Section 28 of the Act, 1962 shows that though clause (d) provides that the proper officer shall determine the amount of duty or interest under sub-section (8), within one year from the date of notice, in respect of cases falling under sub-section (4) but the first proviso, further provides that where the proper officer fails to so determine within the specified period, any officer senior in rank to the proper officer may having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest under sub section (8) extend the period specified in clause (a) to a further period of six months and the period specified in clause (b) to a further period of one year. Therefore, in our view the period under clause (b) of sub-section (9) is extendable for a further period of one year. It is not the submission of the learned counsel for the petitioner that the said period was not extended. Such extendable period has also yet not expired. It is also not the submission that the period for determination, if not extended as of now, cannot be extended. The second provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) that the period of determination of duty could be extended under Section 28 (8) of the Act, even after expiry of one year period from the date of issuance of first show cause notice (Ground D in the memo of review); (iv) that the limitation period under the first proviso to Section 28 (9) of the Act can be automatically extended even in the absence of reasoned order from the senior ranking officer (Ground E in the memo of review); (v) that the second show cause notice is an extension of the first show cause notice when the demand of differential duty under the second show cause notice is in substantial variation to the first show cause notice (Ground F in the memo of review); (vi) That the Court overlooked the fact that both the notices were issued by the same proper officer. The second show cause notice was issued by the 2nd respondent-officer, senior in rank to the 3rd respondent (Ground G in the memo of review). 11. In view of the aforesaid submissions, learned senior advocate submitted that the matter deserved to be reviewed, as the same amounts an error apparent on the face of the record. 12. Learned senior advocate placed reliance in Yashwant Sinha v. CBI (202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n granted" which is something different than pleading, "there is no order of extension by the superior officer". Now, making improvement on the said pleading, in the review petition in para-4.5 of the memo, the petitioner has made averment which is to the following effect; "......In the present case, no such order extending the period for adjudication was issued...." 18. The above pleading was not in the writ affidavit and it was also not the submission of the learned counsel for the writ petitioner. Consequently, we do not find that the Court had proceeded on any misconception of fact or on any concession granted by the writ petitioner's counsel. There is no apparent error in the judgment under review on the aforesaid submission of the learned counsel for the review petitioner. 19. So far as the submission advanced by the learned senior counsel that the writ court proceeded on presumptions, assumptions and concession of the counsel for the writ petitioner (as mentioned in para-10 supra), the said submission is devoid of substance. 20. A perusal of the judgment under review would show that the Court had not proceeded on any assumptions, presumptions or on any concession. 21. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, this Court proceeded to hold as follows : (AIR p. 543, para 36) "36. ... Patanjali Sastri, J. (as he then was) sitting singly in the Madras High Court definitely took the view in Rekanti Chinna Govinda Chettiar v. S. Varadappa Chettiar [Rekanti Chinna Govinda Chettiar v. S. Varadappa Chettiar, 1939 SCC OnLine Mad 228 : AIR 1940 Mad 17] that a misconception by the court of a concession made by the advocate or of the attitude taken up by the party appears to be a ground analogous to the grounds set forth in the first part of the review section and affords a good and cogent ground for review. The learned Attorney General contends that this affidavit and the letters accompanying it cannot be said to be part of "the record" within the meaning of Order 47 Rule 1. We see no reason to construe the word "record" in the very restricted sense as was done by Denning, L.J., inR. v. Northumberland Compensation Appeal Tribunal, ex p Shaw [R. v. Northumberland Compensation Appeal Tribunal, ex p Shaw, (1952) 1 KB 338 (CA)] KB at pp. 351-52 which was a case of certiorari and include within that term only the document which initiates the proceedings, the pleadings and the adjudication and ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid submission has been much pressed. In respect of the submissions as advanced, on the aforesaid point, we find on facts that under Section 28 (4) of the Act within the period of limitation of 5 years, the second show cause notice was issued. The withdrawal of the first show cause notice was after issuance of the second show cause notice. The question, if Section 28 (4) of the Act with respect to the period of limitation of 5 years, is attracted or not, at this stage, depends on the contents in the notice, which contains the averment of suppression of facts. Whether there was suppression of fact or not cannot be determined at this stage by this Court in the exercise of review jurisdiction, or even in the exercise of the writ jurisdiction under Article 226 of the Constitution of India, it being a question of fact and requiring evidence/material to establish or negative the same. On the face of the second show cause notice, the submission is not acceptable, that Section 28 (4) of the Act is not attracted. By the judgment under review the petitioner has the opportunity to submit reply and before the authority it can be demonstrated that there was no suppression of fact. 29. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Hyderabad Polymers (P) Ltd. (supra) given by the Collector. Further, in the present case, the show cause notice raised a demand, which is not for an identical amount. The demand raised in the first and second show cause notices are not identical as raised in the case of Hyderabad Polymers (P) Ltd. (supra). 31. Further, in the present case, the dropping of the first show cause notice vide letter dated 17.05.2023 is after issuance of the second show cause notice for demand of differential amount, not identical amount, and clearly stating in the withdrawal letter about the second show cause notice dated 10.04.2023 also mentioning for the said purpose, the first show cause notice, was thereby withdrawn. Here, the second show cause notice is not after withdrawal of the first show cause notice nor for identical amount. The second show cause notice is within 5 years limitation under Section 28 (4) of the Act. 32. In Swatch Group India Pvt. Ltd. (supra), the show cause notice under Sections 28 and 124 of the Customs Act, was dated 14.02.2018 and the corrigendum was dated 28.02.2018. Section 28 (9) of the Customs Act was amended on 29.03.2018. The notice and corrigendum as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at under the grab of filing a review petition, a party cannot be permitted to repeat old and overruled arguments for reopening the conclusions arrived at in a judgment, and referred to the following cases on the point of scope of review in paras-11 to 20 as under: "11. We first proceed to consider the scope of review jurisdiction. 12. We start our discussion with the statement of law in the words of Hon'ble Justice V. R. Krishna Iyer in the case of Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi (1980) 2 SCC 167 in the following words: "14. A plea for review, unless the first judicial view is manifestly distorted, is like asking for the moon. A forensic defeat cannot be avenged by an invitation to have a second look, hopeful of discovery of flaws and reversal of result. A review in the counsel's mention cannot repair the verdict once given. So, the law laid down must rest in peace." 13. In Parsion Devi v. Sumitri Devi (1997) 8 SCC 715 the Hon'ble Apex Court observed that an error that is not self-evident and the one that has to be detected by the process of reasoning cannot be described as an error apparent on the face of the record for the Court to exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Relevant part of Paragraphs-56 and 58 is as under: "56. It follows, therefore, that the power of review can be exercised for correction of a mistake but not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised. However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment. 58. ....... It is not the case of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or argument to establish it. This test might afford 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......" 15. In Aribam Tuleshwar Sharma v. Aribam Pishak Sharma (1979) 4 SCC 389 the Hon'ble Apex Court observed that there is nothing in Article 226 of the Constitution of India to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and pulpable errors committed by it. But there are definitive limits to the exercise of the power of review. It may be exercised where some mistake or error apparent on the face of the record is found. It may also be exercised on any analogous ground. But, it may not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2024 SCC OnLine SC 548 the Hon'ble Apex Court reiterated that a decision, however erroneous, can never be a factor for review, but can only be corrected in appeal. Such a mistake or error should be self-evident on the face of record. The error should be grave enough to be identified on a mere cursory look, and an omission so glaring that it requires interference in the form of a review. Being a creature of the statute, there is absolutely no room for a fresh hearing. The Court has got no role to involve itself in the process of adjudication for a second time. Instead, it has to merely examine the existence of an apparent mistake or error. Even when two views are possible, the Court shall not indulge itself by going into the merits. 18. The Hon'ble Apex Court referred the case of State of W.B. v. Kamal Sengupta (2008) 8 SCC 612 for the proposition that an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court/tribunal on a point of fact or law and that in any case, while exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... soning on the points where there may conceivably be two opinions. 16.8. Even the change in law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review" 20. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320 after discussing various decisions on the scope of review jurisdiction, the Hon'ble Apex Court summarized the principles for exercise of the review jurisdiction, also laying down when the review would be maintainable and when not. Paragraph-20 of Kamlesh Verma (supra) is as under: "Summary of the principles 20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words "any other sufficient reason" have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW 37 : AIR 1922 PC 112] and approved by this Court in Moran M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other "sufficient reason" must satisfy that the said reason is analogous to the conditions mentioned in O. 47, R. 1, CPC. Under the garb of review, a party cannot be permitted to re-open the case and to gain a full-fledged inning for making submissions, nor review lies merely on the ground that it may be possible for the Court to take a view contrary to what had been taken earlier. Even the judgment given subsequent to the decision in a case can be no ground for entertaining the review. Review lies only when there is error apparent on the face of the record and that fallibility is by the oversight of the Court. If a counsel has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve any purpose. If a case has been decided after full consideration of arguments made by a counsel, he can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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