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TMI Blog2010 (4) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, thought it condign to refer the matter to a larger Bench to consider the issue whether an application for review can be entertained when an appeal has been disposed of under section 260A of the Act. Thus, the matter has been placed before us. 2. The proposition being purely legal it is not requisite to state the facts in detail except stating that a judgment was pronounced by a Division Bench on March 5, 2009 in Miscellaneous Appeal No. 214 of 2002 which was pre-ferred under section 260A of the Act. The assessee after losing in appeal preferred an application for review and at that juncture the issue of main-tainability of the application was raised. 3. We may note with profit that in Bihar Rajya Sahakari Bhumi Vikas Bank Simit (supra), a Division Bench, while hearing an application for review, has held thus : "On behalf of the petitioner it has been submitted that the judg-ment under review has been delivered by the Division Bench on wrong appreciation of judgments cited and contrary to the views of the Supreme Court. On behalf of the respondents the aforesaid sub-mission has been refuted and it has been further submitted that the judgment was passed in a miscel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, amounts to dismissal of SLP by a reasoned order which creates a bar of res judicata for these review petitions. 8. The aforesaid Supreme Court judgment in the case of Kun-hayammed [2000] 245 ITR 360 ; [2000] 6 SCC 359 is an authority on the issue as to whether a judgment and order of the High Court or any tribunal would merge with the order of the Supreme Court in case prayer for grant of special leave to appeal is rejected. The Supreme Court has answered in clear terms that there will be no merger in either case, whether the order of dismissal of the special leave to appeal is with reasons or without reasons ; the merger can take place only when special leave to appeal is granted and the matter is considered under appellate jurisdiction. However, it has further been clarified that if the petition for special leave to appeal is dis-missed after recording reasons then there may not be a merger of the said order with the order of the subordinate court or tribunal but still the principle of law laid down by such order will be binding under article 141 of the Constitution of India and will bind the parties as res judicata. In such a case also it will not be proper for the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lordships have stated thus : "60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior court of record and under article 215 shall have all powers of such a court of record includ-ing the power to punish contempt of itself. One distinguishing characteristic of such superior courts is that they are entitled to con-sider questions of their jurisdiction raised before them. This question fell to be considered by this court in Special Reference No. 1 of 1964, [1965] 1 SCR 413 at page 499. In that case, it was urged before this court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument this court observed that in the case of a superior court of record, it is for the court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own juris-diction. That is why this court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court as a superior court of record. The Andhra Pradesh High Court, as a successor to the Madras High Court, is vested with all the appellate and original jurisdiction, including admiralty jurisdiction to order the arrest and detention of a ship. 68. In decisions such as Jayaswal Shipping Co. v. S. S. Leelavati, AIR 1954 Cal 415, Kamalakar Mahadev Bhagat v. Scindia Steam Navigation Co. Ltd., Bombay, AIR 1961 Bom 186, Rungta Sons Pri-vate Ltd. v. S. S. Edison Mariner [1961-62] 66 CWN 1083, National Co. Ltd. v. Asia Mariner [1968] 72 CWN 635, Sahida Ismail v. Petko R. Salvejkov, AIR 1973 Bom 18, and Reena Padhi v. Jagdhir, AIR 1982 Orissa 57, the High Courts took an unduly restrictive view of the court's admiralty jurisdiction by limiting it to what was permitted by the Admiralty Court Act, 1861 and the Colonial Courts of Admiralty Act, 1890. This was, in our view, an unjustified abdication of juris-diction and a self-assumed fetter on competence to render justice." 9. At this juncture, we may note with profit the decision rendered in Com-missioner of Customs and Central Excise v. Hongo India (P) Ltd. [2009] 315 ITR 449, 459 (SC) ; [2009] 5 SCC 791, 801. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. If, on an examina-tion of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of sections 4 to 24 of the Limitation Act by an express reference, it would none the less be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act, but by the provisions of the Central Excise Act relating to filing of reference applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... review. Their Lordships have accepted the proposition but the same was not given acceptation regard being had to the scheme of the Act in the context of condonation of delay. Regard being had to the issue involved we think it apposite to reproduce paragraphs 28 and 29 of the said decision : "28. The other decision relied on is M. M. Thomas v. State of Kerala [2000] 1 SCC 666. This case arose out of the vesting of all pri-vate forests in the State of Kerala on the appointed day (10-5-1971) under the Kerala Private Forests (Vesting and Assignment) Act, 1971. It is true that in para 14 it was held that : (SCC pages 672-73)` 14. The High Court as a court of record, as envisaged in article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testi-mony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law.' Hence, the High Court has not only the power, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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