2015 (10) TMI 2608 - HC - Customs

Power of review - error apparent on the face of record - Held that - The power of review under Order 47 Rule 1 CPC may be opened inter alia only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be reheard and corrected . A review application also cannot be allowed to be an appeal in disguise . Similarly the error apparent on the face of the record must be such an error which must strike one on mere looking at record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The power of review may be exercised of the discovery of new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; 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. Mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence the same could not be produced before the Court earlier. 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. In any case while exercising the power of review the concerned Court/Tribunal cannot sit in appeal over its judgment/decision. When this Court comes to a conclusion that there is no contempt of Court committed by the customs department it is not appropriate to proceed with the contempt proceedings against the customs department. The statutory appeal preferred by the customs department as against the order impugned in the writ petition is pending before the Tribunal and the matter requires to be disposed of on merits this Court feels it appropriate to direct the parties to participate in the appeal proceedings pending before the Tribunal and workout their remedy - appeal allowed by way of remand.

Issues Involved:
1. Review Petition of the Customs Department.
2. Contempt Petition by M/s. Himachal Exim.
3. Finality of the Appellate Authority's order.
4. Appeal time and statutory rights of the Customs Department.
5. Jurisdiction and grounds for review.

Issue-wise Detailed Analysis:

1. Review Petition of the Customs Department:
The Customs Department filed a Review Petition seeking to review the order dated 03.02.2015 passed by the High Court in W.P.No.32237 of 2014. The main contention was that the order was passed under the misconception that the Appellate Authority's order had become final since no appeal was filed by the Department. However, the Customs Department argued that they still had time until 17.02.2015 to file an appeal, and thus, the order had not become final. The Department had indeed filed an appeal within the stipulated time, which was taken on file by the Tribunal.

2. Contempt Petition by M/s. Himachal Exim:
M/s. Himachal Exim filed a Contempt Petition against the Customs Department for not complying with the High Court's order dated 03.02.2015, which directed the release of goods covered under the Bills of Entry dated 07.01.2013. The petitioner argued that the Customs Department committed contempt by not implementing the order and instead preferred an appeal before the Tribunal without disclosing the High Court's order.

3. Finality of the Appellate Authority's Order:
The High Court had initially observed that the order of the Commissioner (Appeals-II) had become final as no appeal was filed by the Department. However, it was later clarified that the Customs Department still had time to file an appeal, and hence, the order had not become final. The Tribunal had initially granted an interim order but later recalled it upon learning about the High Court's order.

4. Appeal Time and Statutory Rights of the Customs Department:
The Customs Department received the Appellate Authority's order on 18.11.2014 and had until 17.02.2015 to file an appeal. The Department filed the appeal within this period, and the Tribunal took it on file. The High Court recognized that the statutory right to appeal should not be deprived due to mere technicalities, and the Customs Department had the right to file an appeal within the prescribed time.

5. Jurisdiction and Grounds for Review:
The review jurisdiction is limited to correcting errors apparent on the face of the record and not for re-hearing the case on merits. The High Court referred to various judgments to emphasize that review is permissible only for correcting mistakes or errors apparent on the face of the record or for any other sufficient reason. The High Court found that the order dated 03.02.2015 did not suffer from any apparent error but acknowledged that it was passed under a misconception regarding the finality of the Appellate Authority's order.

Conclusion:
The High Court concluded that there was no contempt of court by the Customs Department as they had filed an appeal within the statutory period. The Review Petition was allowed to the extent that the Customs Department's statutory right to appeal was recognized. The parties were directed to participate in the appeal proceedings before the Tribunal, which was instructed to dispose of the appeal expeditiously. The Review Application and the Contempt Petition were disposed of with no costs.

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