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TMI Blog2017 (6) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... eadings and proceedings are referred to, as given in the said case, except where it is separately dealt with reference to the context. 2. The petitioner, a proprietorship firm, engaged in the business of trading in industrial chemicals, particularly, dealing with 'Boric acid' and 'Borax', was stated as aggrieved of the Circular bearing No.61 of 2004 dated 28.10.2004 issued by the Central Board of Excise and Customs, to the effect that importers who import Boric acid for 'insecticidal use' would have to get themselves registered under the Insecticides Act, 1968 as a precondition for import of the insecticides concerned. It was also mentioned in the Circular that in the case of imports by Traders (like petitioner), they had also to get themselves registered under the Insecticides Act as the 'end- use' of the chemical imported was not capable of being determined at the time of import. Later, another Circular bearing No. 37 of 2005 dated 06.09.2005 was issued, whereby it was made clear that even the import of Boric acid for non-insecticidal use could be allowed, only on the basis of an import permit issued by the Central Insecticide Board and Registrati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was sought to be challenged by the Union of India/authorities of the Department/Customs by filing five different appeals. All the above matters were considered together and a common verdict was passed by a Division Bench of this Court on 03.06.2014, holding that the interference made by the learned single Judge with regard to the policy condition was liable to be intercepted. Accordingly, the verdict passed by the learned single Judge was set aside, except to the extent as dealt with in W.A. No. 1653 of 2013; virtually allowing the appeals as mentioned therein. However, no finding was stated as rendered with regard to the plea of 'discrimination', which made the review petitioners to approach this Court by way of present review petitions, stating that there is 'an error apparent on the face of record' and hence the challenge. 5. Heard Mr. Gopinatha Menon - the learned counsel appearing for the review petitioners; Sri. Shrihari Rao - the learned Central Government Counsel appearing for the respondent Nos. 1, 2 and 6; Sri. Sreelal K. Warrier - the learned counsel appearing for the respondents 3 to 5 and Sri. Santhosh Mathew - the learned counsel appearing for the 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out that another notification bearing No.106/(RE-2013)/2009-2014 dated 01.01.2015 has been issued by the Ministry of Commerce and Industry, Department of Commerce, New Delhi, whereby further amendment in the import policy conditions under ITC (HS) 4 digit code 3808 has been brought about, whereby several other insecticides/chemicals have been brought within the purview of the Schedule to the Act. It is stated that, in so far as it is for the Government to consider the particular chemicals/insecticides which are to be brought within the purview of the Act and the manner in which import is to be done, it is purely a matter of 'policy', which cannot be questioned by the Traders like the petitioners. 9. After hearing both the sides, this Court finds that the limited scope of consideration is as to whether there exists any 'error apparent on the face of record', to invoke the power of review. 10. As pointed out already, interference of this Court is sought for with reference to the twin-folded plea of discrimination [with reference to the 'product' and also with reference to the 'local manufacturers'] stated as omitted to be considered by the Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch requirement of obtaining a prior import permit. Only the free importability of boric acid, which belongs to the aforesaid group has been arbitrarily modified much to the prejudice of bona fide traders in boric acid like thepetitioner. Ext.P5 Notification in so far as it is discrminatory on this count is violative of the fundamental rights of the petitioner guaranteed under Article 14 of the Constitution of India and hence is liable to be quashed on this sole ground alone. The said condition is irrational and would result in procedural irregularity in view of the fact that the petitioner's application for registration has been pending before the Board for over a year now." 53. We would think that this is a case where the learned Single Judge has not pronounced on the case set up that there is violation of Article 14 based on the alleged discrimination. We find that there is no denial of the same by the appellants. But, at the same time, we noticed materials which are produced before us including the case based on the various entries in Chapter 38. There are also the conditions which are attached to the policy. Even though prima facie we would think that, in view of the req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed as insecticides. According to us, no further investigation into this matter is necessary for by finding that there is illegality committed by the local manufactures which is being condoned by the authorities may not advance the case of the writ petitioners. The case of the writ petitioner is to quash the of condition in Ext.P5 relating to boric acid. We are of the view that there is no basis for the learned Single Judge to have quashed Ext.P5." 12. From the above, it is clear that there was no omission on the part of the Bench in considering the plea of 'discrimination' as well, but the same was left open, for the reasons mentioned therein. If such a course pursued by the Bench was not correct, for any reason whatsoever, it would become a matter to be agitated by way of 'appeal' and not by review petition. It has been made clear by the Apex Court on many an occasion, that the power of review is not to be misconstrued or misunderstood as a substitute for appeal. We find support from the ruling rendered by the Apex Court in Meera Bhanja Vs. Nirmala Kumari Choudhary [AIR 1995 SC 455]. In view of the fact that rights and liberties of the review petitioners/Importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maxims can be cited as forming the foundation for this rule aimed at efficiency and finality: (a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause); (b) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an end to a litigation); and (c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct). 21. The four elements of res judicata--a black letter law-- are as follows: (a) the parties are identical or in privity; (b) the judgment in the prior action was rendered by a court of competent jurisdiction; (c) the prior action was concluded by a final judgment on the merits; and (4) the same claim or cause of action was involved in both actions. 22. Though Section 11 of the Code of Civil Procedure consecrates this common law principle as a statutory mandate, it incontrovertibly applies to public law remedies, too, apart from civil disputes. The Courts have held that even the public interest litigation falls within its mischief and its enforcement demands vigil. 23. In Sheoparsan Singh v. Ramnandan Prasad Singh (1916) 3 LW 544 the Privy Council has observed that res judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner was in fact taking steps to get an 'import permit' and 'end-use certificate' for the past imports of Boric acid, which was cited as the reason for not challenging the judgment either by seeking leave to appeal under Article 136 of the Constitution of India or by filing review petition. The immediate cause to file R.P. is stated as the issuance of 'Annexure A' show-cause notice by the Departmental Authorities, proposing to impose 'penalty', to the extent as specified therein. Admittedly, the petitioner was importing Boric acid, based on the interim orders passed by this Court, which was made subject to the result of the proceedings pending before this Court. Since the petitioner has lost the battle, by virtue of the interference made by the Division Bench, the petitioner is all the more liable to satisfy the liability, as the principle of "actus curiae neminem gravabit" (an act of the Court shall prejudice no man) is attracted. 16. The learned counsel for the review petitioners submits that though the liability initially mulcted upon by the Commissioner was to a nominal extent, it has now been sought to be enhanced by filing an appeal at the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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