2009 (3) TMI 493 - HC - Central Excise

Review- recalling of earlier writ petition allowed on wrong facts - Writ petition allowed mainly on ground that order passed by Assistant Commissioner had attained finality and had not been challenged but the fact was that appeal was filed before the Commissioner of central excise (appeals). - Judgment virtually on every issue proceeds on such ground. This is an error apparent on face of record. Held that - Department bound to have brought such fact to notice of High Court. Even the writ petition was aware of the fact. Order recalled since the very basis of judgment now shown to be incorrect. Petition listed for admission.

Summary

Issues:
1. Authority to issue fresh show cause notices after settlement by another authority.
2. Retrospective application of notification for subsidy benefits.
3. Entitlement to refund under the scheme due to previous benefits taken.

Analysis:
1. The writ petitioner, a partnership firm engaged in manufacturing, claimed fiscal incentives for industrial units in backward areas. The Central Government rectified a notification error regarding the land on which the industry was set up. Despite one authority accepting the petitioner's explanation and granting fiscal incentives from a specific date, another authority issued fresh show cause notices, leading to a challenge in the writ petition.

2. The High Court set out three points for decision, including the authority to issue fresh notices after settlement, retrospective application of the notification for subsidy benefits, and entitlement to refunds under the scheme. The Court allowed the writ petition based on the finality of the order passed by one authority, which had not been challenged. The review petition revealed that the order was appealed to the Commissioner (Appeals) during the writ petition, which was not initially brought to the Court's attention.

3. The respondent argued that the later challenge to the order did not affect the case's merits, emphasizing the illegality of the show cause notices. The Court noted that its judgment relied on the finality of the order by one authority, which was an error apparent on the record. Both the department and the writ petitioner were aware of this fact, leading to the judgment's recall for a fresh hearing without delving into the case's merits. The review petition was disposed of accordingly, emphasizing the need to address the incorrect basis of the initial judgment.