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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 ..... ent:- Mr.V. Sridharan, Mr. Pradeep S. Jetly, Mr. R.B. Pardeshi JUDGMENT ( Per : V.C.Daga, J.) This review petition raises question : Whether the High Court has [ de hors of the provisions of the Central Excise Act, 1944 ("The Act" for short)] power to review its own decision rendered in appeal filed under the Act. FACTUAL BACKGROUND : Factual background giving rise to the present review petition is as under : 2. The petitioner, being aggrieved by portion of final order No.A/702704/ 07/CII/ EB in Appeal No.E/3077 to 3079/04MUM passed by the Customs, Excise and Service Tax Appellate Tribunal ("The Tribunal" for short), filed the subject Central Excise Appeal under Section 35G of the Act. There was a delay of four days in filing the appeal. The petitioner took out a Notice of Motion No.2482 of 2008, seeking condonation of delay in filing the subject Central Excise Appeal. 3. The learned Division Bench of this 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 Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdict : by Finance Act, 2009 amended Section 35G of the Central Excise Act, 1944 with retrospective effect from 1st July, 2003 giving powers to the High Court to condone delay in filing the appeals under that section. THE ISSUE : 10. The aforesaid judicial and legislative events have given rise to a legal question : Whether in the absence of an express provision, this Court can exercise power of review in a matter arising under the Act. POINTS URGED : This is a unique case wherein the petitionersassessees as well as respondentRevenue are jointly canvassing in one voice that this Court has a power of review even in absence of specific provision within statutes in that behalf. Both of them want that the question should be answered in affirmative holding power of review in favour of this Court. 11. Mr. Sridharan, learned counsel representing group of assesses, would submit that the retrospective amendment can be a ground for review as it can be styled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of High Court of Karnataka in the case of J. Nandanlal Javantaraj Vs. V. Narayanaswamy , reported in AIR 1975 Kant 237 , wherein, in the light of the pronouncement of the Hon'ble Supreme Court in the case of National Sewing Thread Co. Ltd. Vs. James Chadwick Bros. Ltd. , reported in AIR 1953 SC 357 and that of the Privy Council in R.M.A.R.A. Adiakappa Chettiar (supra) the Court held that once the power to adjudicate is given in special enactment to resolve such dispute, according to the ordinary rules of practice and procedure then it includes power to review judgment and orders. 15. Mr. Sridharan in all fairness, also brought to our notice a judgment of the Hon'ble Supreme Court in the case of Patel Narshi Thakershi and others Vs. Shri Pradyumansinghji Arjunsinghji , reported in 1971 (3) SCC 844 wherein the Supreme Court dealt with the power of review holding that it is well settled that the power to review is not an inherent power, it must be conferred by law either specifically or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing appeals under Section 35G. This amendment, being retrospective in nature, would be deemed to have been in existence on 25th August, 2008 when this Court passed an order holding that this Court did not have power to condone delay in filing appeals under Section 35G of the Act. Now, it can conveniently be held that this Court has a power to condone delay in view of subsequent legislative change. 20. Having said so, it is not in dispute that High Court is a Court of record as envisaged under Article 215 of the Constitution, having inherent powers to correct record. The Hon'ble Supreme Court in M. M.Thomas Vs. State of Kerala , reported in 2000(1) SCC 666 has reiterated the said status of the High Court. The case related to the decision of the Forest Tribunal under the Kerala Private Forests (Vesting and Assignment) Act, 1971 and judgment of the High Court in an appeal against the decision of the Forest Tribunal. Later the State moved an application for review under Section 8C of the Kerala Private Forests Act. Grounds on which review was sought was not covered by the situations mentioned in Section 8C. No specific power to review its decision was provided under Section 8C. Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Full bench in Kamaraju Vs. Secretary of State for India in Council (1), a decision which was given in 1888 and has been acted on in Madras ever since. " In Hem Singh Vs. Basant Das , reported in 1936 L.R. 63 IA 180 , the Privy Council referred to the decision of the National Telephone Co.Ltd. Vs. Postmaster General, reported in 1913 AC 546 where it was held that "when a question is stated to be referred to an established court without more, it imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its appeal likewise attaches." Further, the Privy Council held that : " Having regard to the character, the variety, and the importance of questions to be dealt with by a tribunal, and to the terms in which the right of appeal to the High Court is provided by the section, their Lordships are of the opinion that the provisions of Civil Procedure Code with reference to appeals to His Majesty apply to decrees of the High Court made under S. 3 of the Sikh Gurdwaras Act ." In R.M.A.R.A. Adiakappa Chettiar Vs. R. Chandrashekhara Thevar , reported in 1947 L.R. 74 I.A. 264 the Privy Council held as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections, the general provisions of the Code of Civil Procedure relating to appeals will continue to apply. Section 35G(9) reiterates the same by way of abundant caution, merely to ensure that the event of conflict between Section 35G and the Civil Procedure Code, the procedure under Section 35G (2) to (8) will be applicable. It merely gives an overriding effect to these subsections of Section 35G visavis the Code of Civil Procedure. 27. Assuming for the sake of understanding that subsection (9) of Section 35G did not exist, the result would still be the same, particularly in view of the principle enunciated in the judgments of the Privy Council, cited supra, when an ordinary court is referred to by a special enactment, the ordinary law of that court would apply and govern those proceedings notwithstanding absence of specific provision in that behalf. However, to the extent that the special law contains provisions contrary to the general law, the special law would prevail. Therefore, Section 35G(9) is merely stating the obvious and has been enacted by way of abundant caution. It would thus be incorrect to imply from this that other general laws and powers of the High Court conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are made, we do not see any conflict between the views expressed in the case of Patel Narshi Thakershi (cited supra)and the other cases referred to herein above. This view is in consonance with the view taken by the Privy Council as well as the Hon'ble Supreme Court in the cases referred to herein above. At any rate, the very same judgment lays down that the power of review can be spelt out by necessary implication. The necessary implication required to bestow power of review is to be found under Section 35G(9) of the Act as discussed herein above. 29. In the light of the above pronouncements of the Supreme Court and the Privy Council, ordinary Courts which have been seized of a dispute in respect of a legal right or liability under a special enactment, should be regarded as having power to adjudicate such dispute according to the ordinary rules of practice and procedure which would include the power to review judgments and orders. 30. On the above premise, in our considered opinion, even in the absence of an express provision in the Act conferring the power of review, this Court has a power to review its decision. 31. Having held power to review exists in favour of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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