2010 (10) TMI 971 - HC - Central Excise

Review application against ex parte decree - Held that - It is for the first time contended in the application for review by the petitioner that there was a concluded contract between the parties and the rate, as quoted, was inclusive of excise duty and other taxes and after acceptance of the unit price which is inclusive of excise duty, the opposite party in effect has given a go-bye to clause 10 of the general condition of contract. The said order was further sought to be reviewed on another ground that the opposite party being state cannot stand on twofolds i.e. on one hand accepting the quotation which is inclusive of the excise duty and on the other hand after coming to know that the petitioner has got the exemption on excise duty, asking for refund of the excise duty. Another ground which was taken in the review application is that subsequent to the passing of an ex parte decree the competent authority under the Central Excise Act, 1944 has held that the petitioner has not charged any extra amount as Central Excise duty. The discovery of a new and important matter or an evidence does not mean the discovery of a matter or evidence subsequent to the passing of the decree otherwise the next sentence after the exercise of the due diligence was not within his knowledge or could not be produced by him at the time within the decree was passed shall render superfluous. Thus once a case is decided it is hardly permissible to review that decision merely on the ground that subsequent to the said decision some other decisions have to be taken. Revisional application dismissed.

Issues Involved:
1. Validity of the ex parte decree.
2. Jurisdiction of the Civil Court under Section 11D of the Central Excise Act, 1944.
3. Grounds for review application and delay in filing the review.
4. Applicability of subsequent events in review applications.

Detailed Analysis:

1. Validity of the ex parte decree:
The petitioner initially contested the suit by filing a written statement but did not take further steps, resulting in an ex parte decree on July 30, 2002, directing the petitioner to pay Rs. 8.90 lacs. The petitioner filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree, which was dismissed, and the dismissal was upheld by the Division Bench of the High Court. The petitioner then sought a review of the ex parte decree, citing the discovery of new evidence and legal grounds.

2. Jurisdiction of the Civil Court under Section 11D of the Central Excise Act, 1944:
The petitioner argued that the Civil Court lacked jurisdiction due to Section 11D of the Central Excise Act, 1944, which confers the power to adjudicate excise duty disputes on the Assistant Commissioner of Central Excise. The petitioner contended that the Civil Court's jurisdiction is ousted by necessary implication when a special authority is vested with the power to decide specific issues. However, the Court held that Section 11D does not apply to contractual disputes between a buyer and a seller over excess excise duty payments. The exclusion of Civil Court jurisdiction is not readily inferred unless expressly excluded or impliedly necessary, and the Central Excise Act does not provide a mechanism for such contractual disputes.

3. Grounds for review application and delay in filing the review:
The petitioner admitted a delay of 1455 days in filing the review application, attributing it to pursuing remedies under Order 9 Rule 13 CPC based on legal advice. The petitioner argued that the review was sought based on subsequent events, including an order by the Assistant Commissioner of Central Excise stating that no extra excise duty was charged. The Court emphasized that a review can be entertained if new and important evidence, not within the petitioner's knowledge despite due diligence, is discovered, or if there is an error apparent on the face of the record. The Court found that the petitioner did not bring the Assistant Commissioner's order to the Court's notice in a timely manner and failed to establish grounds for review.

4. Applicability of subsequent events in review applications:
The petitioner relied on judgments suggesting that subsequent events can be considered in review applications. However, the Court noted that subsequent events must be of such magnitude and importance that they negate the original order. The Court referred to precedents indicating that review cannot be based on events occurring after the decree if the decree was correct when made. The Court concluded that the subsequent order by the Assistant Commissioner did not justify a review, as it did not exist at the time of the original decree and the petitioner failed to demonstrate due diligence in presenting it earlier.

Conclusion:
The Court dismissed the revisional application, holding that the Civil Court had jurisdiction over the contractual dispute, the petitioner failed to establish grounds for review, and subsequent events did not warrant a review of the ex parte decree. The Court emphasized the parameters for review under Order 47 Rule 1 CPC and the necessity of demonstrating due diligence and the relevance of new evidence at the time of the original decree.

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