2017 (6) TMI 148 - HC - Customs

Power of review - Applicability of provisions of the Insecticides Act - whether there exists any error apparent on the face of record , to invoke the power of review? - Held that - there was no omission on the part of the Bench in considering the plea of discrimination as well, but the same was left open, for the reasons mentioned therein. If such a course pursued by the Bench was not correct, for any reason whatsoever, it would become a matter to be agitated by way of appeal and not by review petition. It has been made clear by the Apex Court on many an occasion, that the power of review is not to be misconstrued or misunderstood as a substitute for appeal. Maintainability of the review petition - Held that - The review petitions are not maintainable, for not having challenged the finding in the common verdict in W.A. Nos. 630 and 649 of 2012, which stands in tact. The petitioner was importing Boric acid, based on the interim orders passed by this Court, which was made subject to the result of the proceedings pending before this Court. Since the petitioner has lost the battle, by virtue of the interference made by the Division Bench, the petitioner is all the more liable to satisfy the liability, as the principle of actus curiae neminem gravabit (an act of the Court shall prejudice no man) is attracted. Review petition dismissed - decided against petitioner.

Issues Involved:
1. Applicability of the Insecticides Act, 1968 to the petitioner.
2. Alleged discrimination in the import policy concerning Boric acid.
3. Maintainability of the review petitions.
4. Res judicata and its applicability.
5. Procedural aspects regarding local manufacturers' compliance with the Insecticides Act.

Detailed Analysis:

1. Applicability of the Insecticides Act, 1968 to the petitioner:
The petitioner, a proprietorship firm trading in industrial chemicals, challenged the applicability of the Insecticides Act, 1968, particularly the requirement for registration under the Act for importing Boric acid. The petitioner argued that Boric acid imported for non-insecticidal purposes should be exempt under Section 38 of the Insecticides Act. The Court noted that the Central Government had issued Circulars and Notifications mandating import permits for Boric acid, regardless of its intended use, to ensure compliance with the Insecticides Act.

2. Alleged discrimination in the import policy concerning Boric acid:
The petitioner raised a plea of discrimination on two grounds:
- Firstly, that other toxic chemicals with greater toxicity than Boric acid were not subject to the same import restrictions.
- Secondly, that local manufacturers were not required to obtain registration under the Insecticides Act, unlike importers.
The Court found that the plea of discrimination with reference to the product was considered in paragraphs 46 to 53 of the earlier judgment, where it was observed that the discrimination argument appeared untenable but was left open for further proceedings. The alleged discrimination between importers and local manufacturers was addressed in paragraph 45, where the Court noted that the issue was not set up in the writ petitions and left it open for the authorities to enforce the law strictly.

3. Maintainability of the review petitions:
The Central Government Counsel argued that the review petitions were not maintainable as the petitioner had only challenged three out of five appeals, leaving the other verdicts intact. The Court agreed, citing the principle of res judicata, which precludes re-litigation of the same issue. The Court emphasized that the petitioner should have challenged all related verdicts to seek relief.

4. Res judicata and its applicability:
The Court discussed the principle of res judicata, which prevents re-litigation of the same issue between the same parties once a final judgment has been rendered. The Court referenced previous rulings, including those by the Supreme Court, to highlight that the petitioners' failure to challenge all related verdicts rendered the review petitions non-maintainable.

5. Procedural aspects regarding local manufacturers' compliance with the Insecticides Act:
The Court observed that despite the Division Bench's specific observation in paragraph 45 regarding local manufacturers' compliance, no action had been taken to ensure they obtained the necessary registration. The Court noted the delay in processing the local manufacturers' applications and emphasized the need for the authorities to enforce the law strictly.

Conclusion:
The review petitions were dismissed on the grounds of non-maintainability due to the principle of res judicata. The Court found no error apparent on the face of the record and noted that any grievances regarding discrimination should be pursued through appropriate proceedings. The Court also highlighted the need for strict enforcement of the Insecticides Act concerning local manufacturers.

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