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TMI Blog2004 (5) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... 76 and 1978 turnover of canteen sales run by the respondent, a public limited company and a registered dealer under the Act (hereinafter referred to as "the assessee") were assessed to sales tax together with other taxable turnover by the assessing officer under the provisions of the Act. In first appeals, contentions of assessee were not accepted and the assessment order were maintained. Second appeals preferred by the assessee were allowed and it was held by the Board of Revenue that assessee was mainly engaged in the manufacture and sale of cloth Reported in [1996] 101 STC 141 (M.P.) [Commissioner of Sales Tax v. Hukumchand Mills Ltd.]. and yarn, but since it employed more than 250 workers, therefore, as per provisions of the Factories Act and Rules framed thereunder, assessee had to establish and run the canteen as welfare measure. Canteen located in the mill was held to be a service institution; therefore, turnover of canteen sales could not be added to other taxable turnover of the assessee for the years in question. Against the said orders, revenue placing reliance on a decision of the Supreme Court in case of State of Tamil Nadu v. Burmah Shell Oil Storage and Distribut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Revenue, contended that the Full Bench without considering the decision of the Supreme Court in the case of State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426, wrongly held that the sale of food articles in the canteen set up by the assessee were not exigible to tax while deciding the reference applications. According to him, this by itself is sufficient ground to review the decision of the Full Bench. In support, he has placed reliance on the decision of the Supreme Court in the case of Thungabhadra Industries Ltd. v. Government of Andhra Pradesh AIR 1964 SC 1372. He also placed reliance on the decisions of the Mysore and Himachal Pradesh High Courts reported in AIR 1972 Mys. 44 (Selection Committee for Admission to the Medical and Dental College v. M.P. Nagaraj) and AIR 1981 HP 1 [FB] (Nalagarh Dehati Co-operative Transport Society Ltd. v. Beli Ram). He further contended that reliance placed on the decision of the Supreme Court reported in [1969] 24 STC 487 (Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh) for interpreting "business" was inappropriate inasmuch as in the said case the question befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (India) Ltd. v. Lt. Governor of Delhi [1978] 42 STC 386; AIR 1978 SC 1591 and its review [1980] 45 STC 212; AIR 1980 SC 674, especially in view of the facts as were found by the Tribunal (Board of Revenue). He further contended that in the present case Full Bench was dealing with a situation where it was found as a fact that canteens were established with dominant object to provide service to the employees therefore canteen sales turnover could not be added to taxable turnover derived from the main business activity. In this connection he cited division Bench decision between the same parties for the assessment year 1977 reported in Commissioner of Sales Tax, M.P. v. Hukumchand Mills Ltd. [1988] 68 STC 378 (MP); (1987) 20 VKN 351. This judgment has attained finality as Revenue did not prefer any appeal to the Supreme Court; whereas in (1989) 3 TLD 106 (MP) (Commissioner of Sales Tax v. Gwalior Rayon Silk Mfg. Co. Ltd.) fact situation was altogether different inasmuch as in that case Tribunal had found that canteen sales after retrospective insertion of clause 2(bb) in section 2 of the Act, 1958 were exigible to tax after April 15, 1964 and not prior thereto. Thus, according to Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision of Supreme Court bearing on a point and where a court has taken a view on that point which is inconsistent with the decision of the Supreme Court, no elaborate arguments are required to point out such an apparent error on the face of the record. Following decision of the Federal Court in Jamna Kuer v. Lal Bahadur AIR 1950 FC 131, it was further held by the Mysore High Court division Bench, that the question as to how the error apparent on the face of the record occurred is of no relevance for the purpose of review and that it is immaterial whether such error occurred due to counsel's mistake or had crept in by reason of oversight on the part of the Court. The view taken by the Mysore High Court division Bench has been accepted by the Full Bench of Himachal Pradesh (Nalagarh Dehati Co-operative Transport Society Ltd. v. Beli Ram AIR 1981 HP 1). The Full Bench formulated two questions for the decision. First question was whether any subsequent decision of the Supreme Court or larger Bench taking a different or contrary view on a point of law is good ground for review. Presently we are not concerned with the first question which was answered in negative but are more concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and it would be good ground for review. The High Court as court of record has plenary jurisdiction to keep all its records correctly and in accordance with law. Hence if any apparent error is noticed in respect of order passed by it, it is the duty of the High Court to correct the mistake. 11.. Now coming to the second point, it would be profitable to remember that "review" means the act of looking, offer something again with a view to correction or improvement. The power of review can be exercised for correction of mistake. However, while correcting the so called apparent error on the face of record, one should not forget that review is by no means an appeal in disguise for correction of an erroneous decision. This limited power cannot be exercised to substitute a view. The possibility of two views on a legal question is no ground for review. A litigant cannot seek review of a judgment merely for the purposes of rehearing and a fresh decision of the case. A review proceeding cannot be equated with the original hearing of the case. This is what exactly Shri Agarwal sought by arguing elaborately on the strength of a decision rendered in the case of State of Tamil Nadu v. Burm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Caterers case turned on its facts which were different from the facts of the State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1973] 31 STC 426 (SC), wherein it was found as a fact by the taxing authorities that sale of food article in canteen run by assessee was not part of any service. Thus in the considered opinion of this Court, both decisions lay down different propositions of law and equally hold their respective fields. In the considered opinion of this Court the decision in State of Tamil Nadu v. Burmah Shell Oil Storage and Distributing Co. of India Ltd. [1993] 31 STC 426 (SC), even if cited before the Full Bench at the time of arguments, it would not have tilted the balance in favour of the Revenue or changed the complexion of the ultimate result of the Full Bench. Board of Revenue acting as Tribunal had found as fact that canteen run by the assessee was service institution therefore placing reliance on Northern India Caterers case [1978] 42 STC 386; Here italicised. AIR 1978 SC 1591 and [1980] 45 STC 212; AIR 1980 SC 674, Board of Revenue found in favour of assessee with regard to canteen sales. This finding of fact as recorded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions made by the Board of Revenue had to be decided in the background of facts as found by the taxing authorities and the Full Bench which heard and decided the reference applications was bound by the facts while deciding and answering the question referred by the Board of Revenue. In this view of the matter, in the considered opinion of this Court, no apparent illegality was committed by the Full Bench while deciding the reference applications without discussing the decision of the Supreme Court in State of Tamil Nadu case [1973] 31 STC 426; which was distinguishable on facts and as such the order of the Full Bench does not suffer from an error apparent on the face of the record and therefore no review can be granted on that score. 14.. In view of the foregoing discussion, we need not dilate upon other authorities cited at the Bar as they are not material or germane for deciding the controversy involved in the present case. Thus, we hold that in view of the facts as found by the Board of Revenue, Full Bench rightly answered the reference in favour of the assessee even without referring to the decision of the Supreme Court in State of Tamil Nadu v. Burmah Shell Oil Storage and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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