2022 (2) TMI 453 - HC - Central Excise

Seeking review of petition - error apparent on the face of record or not - Quantum of penalty - Smuggling - contraband item - no reasonable opportunity to cross-examine the witnesses was afforded to the petitioner - HELD THAT - It is possible that an order has been erroneously made in the sense that the adjudication may be incorrect or the assessment may be awry; but every faulty assessment or erroneous adjudication would not permit a party to approach the same forum for a reconsideration. The grounds of review are limited to an error apparent on the face of the order, in the sense that the same is obvious from a plain reading of the order without requiring more inquiry into the matter. Equally, a review may be maintained when a material fact is erroneously not noticed or the obvious inferences not drawn therefrom. Review is also permitted if some new material comes to light, if such material could not have been placed earlier despite the best diligence. In the present case, the Court noticed that an opportunity to cross- examine some witness had not been given to the review petitioner but, in the same breath, the Court observed that an immediate objection in such regard was not taken by the petitioner. Further, the Court found that the penalty imposed on the petitioner was nominal and that the petitioner had not, at the outset, indicated that the recovery was not made from his possession. It may have been an erroneous inference drawn from the facts that were presented before the Court, but it is not an error apparent on the face of the order that calls for a review. The apparent finality of the statement of the relevant witness has been undone, and, in the criminal proceedings that the petitioner faces, the petitioner has been specifically given a right to cross-examine the relevant witness in accordance with law - While the petitioner may not be satisfied with the limited relief that was granted or the refusal by this Court to interfere with the order of the Tribunal, no ground for revisiting the order has been made out in the review petition - the review petition is dismissed.

Summary

Issues:
Review petition against an order of the Customs, Excise and Service Tax Appellate Tribunal reducing penalty. Error alleged in the confessional statement attribution and lack of opportunity for cross-examination. Distinction between grounds for appeal and review. Criteria for review based on error apparent on the face of the order. Court's observations on the penalty imposed, lack of immediate objection, and pending criminal case against the petitioner.

Analysis:
The review petition challenged an order of the Customs, Excise and Service Tax Appellate Tribunal that reduced the penalty imposed on the petitioner. The petitioner contended that the Court erred in failing to consider that the confessional statement attributed to them might not have been made by them and that they were not given a reasonable opportunity to cross-examine the witnesses. The Court emphasized the importance of distinguishing between grounds available in an appeal and those for seeking a review, cautioning against using review as a means to have a second chance at a favorable outcome.

The Court outlined the limited grounds for review, emphasizing that it should be based on an error apparent on the face of the order, without requiring further inquiry. Review may also be warranted if a material fact was overlooked or if new material, not previously available despite due diligence, comes to light. However, a review cannot be sought merely due to a faulty assessment or erroneous adjudication. In this case, the Court noted that while the petitioner was not given an opportunity to cross-examine a witness, they did not raise an immediate objection. The Court also found the penalty imposed to be nominal and observed that the petitioner did not initially deny possession of the confiscated items.

Moreover, the Court declined to interfere with the Tribunal's order, noting a pending criminal case against the petitioner. The Court highlighted that in the criminal proceedings, the petitioner would have the opportunity to cross-examine any witness whose statement might be used against them. This provision ensured that the petitioner's right to a fair trial and defense in the criminal case was protected. Ultimately, the Court dismissed the review petition, stating that no grounds were established for revisiting the order, and no costs were awarded.