2020 (12) TMI 378 - HC - Customs

Review application - error apparent of the face of record or not - absolute confiscation of the gold weighing 446 gms - HELD THAT - Since this Court had considered all the contentions raised by the Review Applicants in the Writ Petition while disposing of the same on 29.02.2016, I do not find any error apparent on the face of the record warranting interference in the Review Application. That apart, the Review Applicants cannot re-argue the Writ Petition in the guise of Review Application. The Review Applicants are not in a position to point out any error apparent on the face of the record to entertain the Review Application - Since there is no error apparent on the face of the record warranting interference in the Review Application, the Review Application is liable to be dismissed. Calling of the records relating to the impugned order - review application dismissed - contention of the Writ Petitioner is that the petitioner could not participate in the adjudication proceedings before the 2nd respondent and in view of the order passed in above Review Application, the impugned order dated 27.02.2016 is liable to be set aside and the matter should be remitted back to the 2nd respondent for fresh consideration - HELD THAT - Since this Court had already allowed the Writ Petition in W.P. No.2968 of 2016 and also dismissed the above Review Application, the impugned order dated 27.02.2016 is set aside and the matter is remitted back to the 2nd respondent for fresh consideration. Review application dismissed.

Summary

Issues:
Review Application to reconsider an order dated 29.02.2016 in W.P.No.2968 of 2016; Allegation of passing an order of confiscation and penalty prior to the mentioned order; Request for setting aside the impugned order dated 27.02.2016 and remitting the matter for fresh consideration.

Detailed Analysis:

1. Review Application for Reconsideration:
The respondents in W.P.No.2968 of 2016 filed a Review Application to reconsider the order dated 29.02.2016, which directed the petitioner to deposit 50% of the duty for gold jewelry and release it. The Court clarified that this order would not prevent the respondents from entertaining a show cause notice and conducting adjudication proceedings. The Review Application was based on the contention that an order of confiscation and penalty was passed by the 2nd respondent before the Court's order, which was not brought to the Court's attention during the Writ Petition proceedings.

2. Alleged Premature Order of Confiscation:
The Review Application highlighted that the 2nd respondent had issued an order on 27.02.2016, confiscating gold and imposing a penalty, which was not disclosed during the Writ Petition hearing on 29.02.2016. The petitioner argued that this information should have been presented to the Court before the Writ Petition's disposal. The petitioner sought a Writ of Mandamus to release the gold, emphasizing the lack of disclosure of the confiscation order during the initial proceedings.

3. Court's Decision on Review Application:
The Court, after considering the arguments, found no apparent error in the previous judgment warranting interference in the Review Application. It emphasized that the Review Applicants could not re-argue the Writ Petition under the guise of a Review Application. As no error was identified, the Review Application was dismissed. The Court maintained that the previous order directing the deposit of duty for the gold jewelry would stand.

4. Request for Setting Aside Impugned Order:
In response to the petitioner's contention of being unable to participate in adjudication proceedings, the Court set aside the impugned order dated 27.02.2016 and remitted the matter back to the 2nd respondent for fresh consideration. The Court directed the 2nd respondent to issue notice to the petitioner and decide the matter expeditiously, emphasizing the petitioner's cooperation in the proceedings. The Court instructed compliance with the previous order of depositing duty before any new adjudication by the 2nd respondent.

In conclusion, the Review Application was dismissed, and the Writ Petition in W.P.No.16483 of 2016 was allowed, with the impugned order dated 27.02.2016 being set aside for fresh consideration by the 2nd respondent.