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TMI Blog2010 (12) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, for the reasons set out in the judgment and order dated 29th August, 2008 in the case of Commissioner of Central Excise, PuneII Vs. Shruti Colorants Ltd., was pleased to hold that High Court has no jurisdiction to condone delay in filing Central Excise Appeal under Section 35G of the Act. Consequently, dismissed the application for condonation of delay. 4. In the case of Commissioner of Customs Vs. Sujog Fine Chemicals India Ltd., another Division Bench of this Court by judgment and order dated 13th August, 2008, held that in the light of Section 29(2) of the Limitation Act, 1963, in an appeal filed under Section 130 of the Customs Act, 1962 High Court was empowered under Section 5 of the Limitation Act to condone the delay. 5. In view of the above conflicting decisions of the two learned Division Benches on the issue a Full Bench was constituted by the learned Chief Justice to which one of us (Daga, J) was a party to decide the question framed herein below vide its judgment and order dated 19th December, 2008 : whether this Court is empowered to condone delay in filing appeals under Sections 35G of the Act ? 6. A full bench of this Court following the judgments in Mukri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an error on the face of record. Reliance is placed on a judgment of the Supreme Court in the case of Raja Shatrunji Vs. Mohammad Azmat Azim Khan, reported in (1971) 2 SCC 200, holding that one of the grounds for review is an error apparent on the face of record and where a statute has been amended retrospectively, a judgment applying the unamended law would constitute an error apparent on the face of record. 12. Mr.Sridharan further urged that the High Court is a Court of record. Under its plenary jurisdiction the High Court has power to review. Reliance is placed on a judgment of the Supreme Court in M.M. Thomas Vs. State of Kerala, reported in 2000(1) SCC 666 and the Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd. (supra). He also placed reliance on the judgment of the Hon'ble Supreme Court in Shivdeo Singh Vs. State of Punjab, reported in 1963 AIR SC 1909 holding that power of review inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. The learned counsel also placed reliance on a Full Bench judgment of Patna High Court in the case of D.N. Singh Vs. CIT, reported in (2010) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by necessary implication. According to him, power of review of a Court has been expressly provided for in the Code of Civil Procedure under Section 114 and Order 47 thereof. He, thus, urged that this Court has ample power to review its earlier order refusing to condone the delay. He further submits that this Court did not examine the merits of the prayer for condonation of delay for want of specific power at the relevant time but now in view of the changed legal scenario, this Court should consider the prayer on its own merits. He was heard on the prayer for condonation of delay. 16. Mr. Jetly and Mr. Pardeshi, learned counsel appearing for Revenue did not contest the submissions made by Mr. Sridharan, though they were appearing against him. Reliance is placed on a judgment of the Hon'ble Supreme Court in the case of M.K. Venkatchalam Vs. Bombay Dying and Manufacturing Co. Ltd., reported in 1958 ITR 143 SC, wherein the Hon'ble Supreme Court held that in case of apparent error on the face of record the power to review can be exercised. The learned counsel for the Revenue submits that the said judgment has been reiterated by the Supreme Court in the case of Consolidated Pnumatic Too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew was sought was not covered by the situations mentioned in Section 8C. No specific power to review its decision was provided under Section 8C. Review was allowed by the High Court without relying on Section 8C. Aggrieved party appealed to the Supreme Court. The Supreme Court concluded that the High Court is a court of record and has inherent power to correct its record. It further held that it was High Court's duty to correct its record. The High Court's power in that regard is said to be plenary. 21. In Commissioner of Customs and Central Excise Vs. Hongo India (P) Ltd., reported in 2009 (236) ELT 417 (SC), the Supreme Court approved this decision in M.M. Thomas (supra) and said that the High Court possesses all powers in order to correct the errors apparent on the face of record. In D.N. Singh Vs. CIT, reported in (2010) 325 ITR 349, the full bench of Patna High Court held High Court has power to review its order under Section 260A of Income Tax Act. It referred to paragraphs 28 and 29 of the said judgment and held that as laid down in M.M. Thomas and approved in Hongo India (supra), the High Court has the inherent power of review, being a court of plenary jurisdiction. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iar Vs. R. Chandrashekhara Thevar, reported in 1947 L.R. 74 I.A. 264 the Privy Council held as under : "The true rule is that whether a legal right is that is in dispute and the ordinary courts of the country are seized of such dispute the courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal." (Emphasis supplied) 23. The aforesaid judgments lean in favour of the view canvassed by Mr. Sridharan and categorically hold that the practice and procedure of the ordinary Court will apply if the special enactment refers to and adopts the practice and procedure to be followed by the ordinary Court. The submission made by Mr. Sridharan in this behalf deserves acceptance. 24. Next submission of Mr. Sridharan is that Section 35G(9) does not restrict the jurisdiction of the High Court to only the provisions of the Code of Civil Procedure relating to appeal. Let us now turn to the provisions of subsection (9) of Section 35G of the Act to examine whether or not it restricts the jurisdiction of the High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus be incorrect to imply from this that other general laws and powers of the High Court conferred by the Code of Civil Procedure have been excluded. In National Sewing Thread Co.Ltd. V. James Chadwick & Bros.Ltd, reported in 1953 SC 357, the Hon'ble Supreme Court considered the question whether from the decision of a single Judge of the High Court in an appeal arising under the Trade Marks Act, 1940, a Letters Patent Appeal would lie to the Division Bench of that Court. The Trade Marks Act did not provide for such further appeal. The Hon'ble Supreme Court observed that after an appeal had reached the High Court, the future conduct or career of that appeal has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. Their Lordships held that the Letters Patent Appeal was competent even though Trade Marks Act did not expressly provide for such appeal. Their Lordships quoted with approval the observations of the Judicial Committee of Privy Council in Adaikappa Chettiar V. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew its decision. 31. Having held power to review exists in favour of this Court even in absence of specific or express provision in that behalf, now let us examine whether retrospective amendment could be a ground for review. In Raja Shatrunji Vs. Mohammad Azmat Azim Khan, reported in (1971) 2 SCC 200, the Hon'ble Supreme Court held that one of the grounds for review is an error apparent on the face of record and where a statute has beenamended retrospectively, a judgment applying the unamended law would constitute an error apparent on the face of record. Relevant portion from Paragraph 13 of this judgment is extracted below : "Counsel for the appellant submitted that when the High Court decided the matter, the High Court applied the law as it stood and a subsequent change of law could not be a ground for review. The appellant's contention is not acceptable in the present case for two principle reasons; first, it is not a subsequent law. It is the law which all along was there from 1952. The deeming provision is fully effective and operative as from 25th May, 1953 when the 1952 Act came into force. The result is that the Court is to apply the legal provision as it always st ..... 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