2016 (9) TMI 786 - HC - Central Excise

Condonation of delay - in presentation of Memorandum of Review - 267 days - maintainability of review - Held that - Law is set at rest that review is entertainable under Order 47 Rule 1 and clauses mentioned thereunder. From Bar effort was to convince that there was mistake on the part of the Counsel due to not pointing out the amended Section 35-F. But we hold that there is hardly any scope to equate the alleged mistake of Counsel in not pointing out any law with the mistake or error as meant within the provision under Order 47 Rule 1 of the Code. Moreover, the Court rightly applied the law as it was prevalent when the appeal was filed and considered the same. Therefore, the subsequent amendment would not be applicable as the order impugned was based on consent of the petitioner that their clients were ready and willing to deposit 50% of the duty i.e. to the tune of ₹ 35 lakhs within a period of eight weeks from date. Moreover, on concession though opportunity to deposit ₹ 35 lakhs only was obtained on September 4, 2015, instead of its deposit, rather causing loss of revenue, has been utilising the said amount as their own under the garb of this application. Therefore, we fail to look eye to eye with the submission of appellant to accept his contention that there was any mistake or error apparent on the face of record, to entertain the review application, since the provision of amended Section 35-F was not placed. Rather since the penaltimate portion of the order under review had given opportunity of preferring appeal in lieu deposit of a portion of the sum of penalty to the tune of ₹ 35 lakhs on the basis of concession, the review application has got no merit. The impugned judgment therefore is held as beyond the scope of review. Though the period of limitation has been explained by the applicant in their own manner but had there been meritorious grounds to entertain the review, in that event the Court could have thought otherwise for consideration of said application proposing condonation of such inordinate delay. In view of taking note of having no merit in the review application and since the judgment under review is found as beyond the scope of review for the reasons recorded above, the application for condonation of delay stands rejected. As a consequence thereof, the application for review also stands dismissed. - Decided against the appellant

Summary

Issues: Condonation of delay in presenting Memorandum of Review under Section 5 of the Limitation Act, 1963; Interpretation of Section 35-F of the Central Excise Act, 1944; Maintainability of review application based on amended Section 35-F; Scope of review under Order 47 Rule 1 of the Code; Condonation of delay in review application.

Condonation of Delay in Presenting Memorandum of Review:
The judgment concerns an application under Section 5 of the Limitation Act, 1963, seeking condonation of a 267-day delay in presenting the Memorandum of Review. The applicant argued that the provisions of Section 35-F of the Central Excise Act, 1944, were not brought to the notice of the Court, which could have resulted in a more favorable outcome regarding the deposit of a sum of &8377; 35 lakhs. The respondent contended that the review application was filed late and that the direction to deposit the sum was based on a concession, making the review not maintainable. The Court considered the arguments and the timeline of events leading to the review application.

Interpretation of Section 35-F of the Central Excise Act, 1944:
The Court examined the provisions of Section 35-F before and after an amendment in 2014. The applicant argued that since the appeal was dismissed and there was no pending appeal, the benefit of the amended Section 35-F should apply. However, the Court analyzed the applicability of the amended Section 35-F and its provisos in the context of the case. The Court deliberated on the implications of the amended provision and its relevance to the review application.

Maintainability of Review Application Based on Amended Section 35-F:
The Court addressed the issue of maintainability of the review application in light of the amended Section 35-F. The applicant contended that there was a mistake in not pointing out the amended law, but the Court held that the alleged mistake of counsel did not equate to a reviewable "mistake" under the relevant legal provisions. The Court emphasized that the order under review was based on a concession regarding the deposit amount, and the subsequent amendment to Section 35-F did not warrant a review. The Court analyzed the merits of the review application in relation to the amended provision.

Scope of Review under Order 47 Rule 1 of the Code:
The Court clarified that a review is entertainable under Order 47 Rule 1 and its clauses. The applicant's argument regarding the mistake of counsel in not pointing out the amended law was considered, but the Court held that such a mistake did not meet the criteria for review under the legal framework. The Court emphasized that the law prevailing at the time of filing the appeal was correctly applied, and the subsequent amendment did not affect the review application's merit.

Condonation of Delay in Review Application:
The Court evaluated the period of limitation and the grounds for condonation of the delay in the review application. Despite the applicant's explanations, the Court found no merit in the review application and deemed the judgment under review as beyond the scope of review. Consequently, the application for condonation of delay was rejected, and the review application was dismissed. The Court provided detailed reasoning for rejecting the condonation of delay and dismissing the review application based on the lack of merit and the scope of review.