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TMI BlogREVIEW OF ORDERX X X X Extracts X X X X X X X X Extracts X X X X ..... REVIEW OF ORDER - By: - Mr. M. GOVINDARAJAN - Central Excise - Dated:- 12-12-2015 - - Under Order 47, Rule 1 of Civil Procedure Code, a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power under Order 47, Rule 1 of CPC. It is not permissible for an erroneous decision to be reheard and corrected . A review petition, it must be remembered has a limited purpose and cannot be allowed to appeal in disguise. Review is not re-hearing of an original matter. The power of review as dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussed above cannot be confused with the appellant s power which enables a superior court to correct all errors committed by a subordinate court. In Mahindra Mahindra Limited V. Union of India 2015 (10) TMI 44 - BOMBAY HIGH COURT it was held that review petition is maintainable on- discovery of new and important material or evidence which after exercise of due diligence, was not within the knowledge of petitioner, or could not be produced by him; mistake or error apparent on face of record; any other sufficient reason. It is not maintainable on mere possibility of two views on subject. There is a clear distinction between the erroneous decision and error apparent on the face of the record, while the first on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can be corrected by the higher forum and the latter can only be corrected only exercise of review jurisdiction. In State of West Bengal and others V. Kamal Sengupta and another 2008 (6) TMI 578 - Supreme Court Of India , the Supreme Court held that the jurisdiction of review is limited and circumscribed by way of yardsticks, including as the interference only in grounds as to discovery of new or important matter or evidence which may be relevant or that the error apparent, on the basis of which review sought, should be an error which is evident per se from the record of the case and which does not required detailed examination. Review a creation of statute The power of review is a creation of statute and not an inhere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt power as held in Barijoriwala Rolling Mills Private Limited V. Commissioner of Central Excise, Jaipur-I 2014 (1) TMI 1645 - CESTAT NEW DELHI . Thus review cannot be entertained in the absence of a statutory provision in that regard. Once a decision is taken by a Bench of the Tribunal in the question of waiver of pre deposit under Section 35F of the Central Excise Act in a particular case on the basis of facts, the Tribunal becomes functus officio and it cannot review its own decision on the basis of the same facts. In Kuantum Papers Limited V. Commissioner of Central Excise, Jalandhar 2014 (7) TMI 65 - CESTAT NEW DELHI it was held that after the Tribunal passes order it becomes functus officio a nd it doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not have power to review its order in the absence of statutory mandate in that regard. Therefore entertaining the present appeal shall result in review in disguise or the appeal in the appeal already disposed. Adjudicating Authority no power of review The Adjudicating Authority in taxation matters has no power of review of their own order as illustrated in the following case laws: In Samsung India Electronics Private Limited V. Commissioner of Customs, New Delhi 2015 (12) TMI 520 - CESTAT NEW DELHI the Tribunal analyzed Section 154 of the Customs Act . The said section makes only to make effort to rectify a clerical errors or arithmetical mistakes in any decision or order passed by Central Government. When th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by the authority at the time of clearance remains unchallenged, re-assessment/re-determination making extensive enquiry is not subject to Section 154 . Therefore amendment sought by the appellant taking shelter of Section 154 neither being clerical error nor arithmetical mistake, there is no scope for grant of any relief under Section 154 . Accordingly the Tribunal dismissed the appeal. It is also appreciated that the party has not gone in appeal but is working re-assessment in the nature of rectification application which is the abuse of process of law for no power of review is vested with adjudicating authority. In Garg Industries V. Commissioner of Central Excise Service Tax, Noida 2014 (9) TMI 865 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - CESTAT NEW DELHI it was held that there is no power, authority or jurisdiction consecrated under the provisions of Central Excise Act, enabling withdrawal of an adjudication order that no power inheres in the adjudicating authority to review its own order. In Samsung India Electronics Private Limited V. Commissioner of Customs, New Delhi 2015 (12) TMI 520 - CESTAT NEW DELHI the Tribunal held that Section 154 of Customs Act, 1962 provides to make effort to rectify a clerical errors or arithmetical mistakes in any decision or order passed by Commissioner of Customs. When the order passed by the authority at the time of clearance remains unchallenged, re-assessment/re-determination making extensive inquiry is not subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 154 . Therefore amendment sought by the appellant taking shelter of Section 154 , neither being clerical error nor arithmetical mistakes, there is no scope for grant of relief under Section 154 . The party has not gone in appeal but is seeking re-assessment in the nature of rectification application which is abuse of process of law for no power of review vested with the Adjudicating Authority. Types of review There are two types of review as held in Grindlays Banks Limited V. Central Government Industrial Tribunal 1980 (12) TMI 181 - SUPREME COURT . In this case the Supreme Court held that the expression review is used in two distinct series, namely, a procedural review, which is either inherent or impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied that every Tribunal and Court constituted to do justice has in respect. CEGAT is clothed with express power under Rule 41 to make order as is necessary to secure the ends of justice. CEGAT has, therefore, the power to set aside an order passed ex-parte against the respondent before it if it is found that the respondent had for sufficient cause, been unable to appear. The other type of review is substantive review. Procedural review As discussed above the procedure review may either inherent or implied. The following case laws illustrate the power of the Tribunal under procedural review: In Shree Ganesh Forging Company V. Union of India 2015 (8) TMI 1228 - CALCUTTA HIGH COURT the High Court held that the adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icating authority was aware that the noticee had expired. The mistake made by the Tribunal in passing the order recording abatement of appeal though at the instance of the appellant himself was made in presence of the department which was aware about the identity of the appellant and the fact that it was the noticee who had died and not the appellant. The misc. application of petitioner was one for procedural review of the impugned order. The Tribunal in recording abatement of appeal had committed an error which required procedural review, which is either inherent or implied in a court or tribunal under Rule 41 of CESTAT (Procedure) Rules, 1982 . In Dungaramal S. Doshi V. Special Director, Enforcement Directorate 2012 (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TMI 561 - APPELLATE TRIBUNAL FOR FOREIGN EXCHANGE, NEW DELHI it was held that the review under inherent powers are only available for procedural review and not for substantive review. Whenever any procedural defect is committed while passing an order, even where statute does not provide, Tribunal can use power of review. Case laws In Anil Re-rolling Mills V. Commissioner of Central Excise, Hyderabad 2015 (7) TMI 751 - ANDHRA PRADESH HIGH COURT the Settlement Commission ordered for investigation. The investigation report is to be furnished to the concerned party well in advance so that it can present its version vis- -vis the report. Passing of final order straight away or furnishing copy of the report on the same day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would result in dual disadvantage to the applicant- It would be denied the opportunity to put forward its contention vis- -vis the investigation report; Such report would constitute the basis of in future proceedings and that would be determined in the application. In the instant case, the order of Settlement Commission declining the application holding that full and truthful disclosures were not made such that the applicant did not extend required amount of co-operation, set aside as the investigation report which was the basis of such was not furnished to applicant, consequences thereof being devastating, opportunity to put forward its version vis- -vis the report to be given. The High Court held that non consideration of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation report constitutes a ground for review of the impugned order as it is almost a facet of the principles of Natural Justice. Therefore the High Court allowed the application and reviewed the order. The High Court remanded the matter for fresh consideration and disposal. In Commissioner of Central Excise, Bangalore V. United Telecom Limited 2011 (9) TMI 953 - KARNATAKA HIGH COURT the review petition is filed to review the order passed by the High Court in CEA 118/2009 in which the High Court passed the order disposing the appeal on the ground that the question of law involved in the said case is the same as in CEA 96/2009 which is disposed of by the High Court. The ground urged for review of the order in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e law laid down in CEA 96/2009 has no application to the facts of this case. The High Court accepted the contentions of the appellant. It is CEA 96/2009 where the question is involved. It is because of the typographical error which has resulted in. The High Court did not see any merit in the review petition and direct the office to the correct the error in the order. In Kumarakam Lake Resorts V. Commissioner of Customs, Kochi 2013 (11) TMI 1568 - KERALA HIGH COURT the application for review is filed as regards the judgment dated 21.12.2010 in Customs Appeal under Section 130 of the Customs Act . The department contended that the judgment sought to be reviewed was challenged before the Supreme Court by filing a special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leave petition. The said petition was dismissed by the Supreme Court. Thus this review petition is not maintainable. The High Court found that the original authority in its order held that in view of the implementation of the DGFT the overall foreign exchange earnings needs to be reckoned towards discharge of export obligation. That being so, the High Court did not see anything wrong in the decision of the Tribunal. The Department had not filed any appeal to the Tribunal against the findings of the Authority. Even if such an appeal was not there, there is no discussion or deliberation by the Tribunal on that issue. In Evergreen Private Limited V. Commissioner of Customs, Central Excise Service Tax, Guntur 2014 (10) TM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I 300 - CESTAT BANGALORE the Tribunal held that when a final order has been passed on merits, unless there is an error apparent from the order, the same cannot be modified or reviewed. In this case, even though the appellant was not represented, the order has been passed on merits. The submissions made by the appellants in the appeal memorandum and the papers have been taken into account. If the appellant did not file the affidavit of the Director by that time and if the same is submitted now it would only mean that the defects or omissions on the part of the appellant have been made subsequently. This cannot be considered as an error on the part of the Tribunal at the time of passing the order. The Tribunal would not go into the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the case for the appellant in seeking condonation of delay where there is no error apparent from the order passed by the Tribunal. Any such order that may be passed by the very same Tribunal which is clearly the Tribunal is not empowered to do. Under these circumstances because of the inability to review the order, application for restoration of appeal is to be rejected and accordingly is rejected. In Raydburs Pharmaceuticals Limited V. Commissioner of Central Excise, Meerut I 2013 (3) TMI 548 - CESTAT NEW DELHI it was held that the Tribunal has no power to review its own order nor the Tribunal has no power to review its own order nor has power to recall an order passed earlier for substitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of another. The application for Revenue does not disclose mistakes, if any patent from face of record without any elaborate exercise for discovery of same, to come to its rescue. The Tribunal rejected the prayer of the Revenue. Review in the garb of rectification In S.K. Enterprises V. Commissioner of Central Excise, Delhi 2015 (10) TMI 1906 - CESTAT NEW DELHI the Tribunal, while passing the final order, has accepted the applicant s own prayer for re-export of goods without any fine and redemption. The Tribunal has no jurisdiction to review its own order. Admittedly the said final view adopted by the Tribunal cannot be held to be a mistake apparent on record so as to require any rectificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It is well settled principle of law that review of order cannot be sought in the garb of rectification. - - Scholarly articles for knowledge sharing authors experts professionals Tax Management India - taxmanagementindia - taxmanagement - taxmanagementindia.com - TMI - TaxTMI - TMITax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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