2018 (10) TMI 1575 - HC - Customs

Review order - Section 129D of the Customs Act, 1962 - Petitioner submits that Review order seeks to erroneously reopen an issue that has been settled by the order dated 31st March, 2017 of the Commissioner of Customs (Export-I), Mumbai Zone - Held that - The effect of and applicability of the the Supreme Court order in Khushalchand & Co. 2010 (10) TMI 239 - CESTAT, BANGALORE to the present facts is an issue which would be a subject of consideration before the Tribunal while considering the Appeal of the Revenue. It is in the above context that the use of the word blatantly has to be considered. The word blatantly has been used in the context of having followed the decisions of the Apex Court without appreciating the facts of the case. Undoubtedly, the use of the word blatantly is ill-advised. Particularly, bearing in mind that the order in original dated 31st March, 2017 was passed by the Commissioner of Customs in his official capacity in the light of his understanding. The grievance against the order dated 31 March 2017 could have been worded better. Therefore, the grievance of the Petitioner that the use of the word blatantly indicates disregarding the Hon ble Supreme Court is not justified. The decision on whether the Review order dated 24th August, 2017 is without authority of law would have to depend upon the Affidavits which are to be filed by the Revenue. Therefore, the above issue is the only issue which is now left for consideration viz. whether the impugned review order dated 7th August, 2017 is duly authorised or not. On the other issue raised in this Petition, as indicated above does not warrant any interference. Petition is adjourned to 31st October, 2018.

Summary

Issues:
1. Review of a customs order under Section 129D of the Customs Act, 1962.
2. Jurisdictional validity of the review order dated 24th August, 2017.

Analysis:
1. The petitioner sought to quash a review order dated 24th August, 2017, issued under Section 129D of the Customs Act, 1962, which aimed to review a previous order by the Commissioner of Customs dated 31st March, 2017. The petitioner argued that the review order erroneously attempted to reopen an issue settled by the earlier order, which had followed a Supreme Court decision. It was contended that the law declared by the Supreme Court is binding on all, and thus, there was no justification for reviewing the settled matter. The review order was criticized for finding fault with the earlier order for following the Supreme Court decision, which was deemed disrespectful to the apex court. The High Court noted that the review order questioned the reliance on the Supreme Court decision in withdrawing the notice, stating that the decision was not a declaration of law but a decision between the parties. The court emphasized the need to consider the facts of the case in applying a ratio of a decision to another case. Ultimately, the High Court declined to interfere with the appeal filed by the Revenue to the Tribunal based on the review order.

2. The petitioner also contended that the review order was without jurisdiction, highlighting discrepancies in the dates on the order and the signatures of the committee members. The High Court acknowledged that the dates on the review order and the signatures raised concerns about the authority of the order. The court directed the Revenue to provide explanations through affidavits regarding the preparation and authorization of the review order. The decision on the jurisdictional validity of the review order was deemed to depend on the information provided in the affidavits. Consequently, the court adjourned the matter to allow time for the Revenue to submit the necessary explanations, focusing on determining the lawfulness of the review order.