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TMI Blog2018 (11) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been controlling the entire manufacturing activity and even sample, funds and design including raw material is made available by them. - Activity is a manufacturing activity. - Order as reported in [2017 (3) TMI 1721 - ALLAHABAD HIGH COURT] affirmed. Review application has no merit and is dismissed. - REVIEW APPLICATION NO. 99804 OF 2017, FIRST APPEAL FROM ORDER No. - 686 of 2004 - - - Dated:- 1-11-2018 - Dr. Devendra Kumar Arora And Rajnish Kumar JJ. For the Petitioner's : K.D Nag , Deepak Seth and Meha Rashmi For the Respondent's : S.M.K. Chaudhary and Chandra Shekher Pandey ORDER (1) Heard Mr. Prashant Chandra, Senior Advocate, assisted by Ms. Meha Rashmi, learned Counsel for the review petitioners/respondents and Mr. Dipak Seth, learned Counsel for the respondent/appellant. (2) The instant Review Application has been preferred under Chapter V Rule 12 of the Allahabad High Court Rules, 1952, read with Order XLVII Rule 1 of the Code of Civil Procedure, seeking review of the judgment and order dated 24.3.2017 passed in First Appeal From Order No. 686 of 2004, whereby this Court, while allowing First Appeal From Order No. 686 of 2004, set-asi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the appeals by the common order No. 967-972/03- B dated 17.12.2003. (7) Not being satisfied with the judgment dated 17.12.2003, the Commissioner of Central Excise, Lucknow (hereinafter referred to as the Revenue ) preferred First Appeal From Order No. 686 of 2004. A Division Bench of this Court, vide order dated 20.3.2017, formulated following substantial questions of law for proper adjudication of the matter : i) Whether the Tribunal was justified in holding Assessee not manufacturer of Harrison brand locks ignoring the fact that parts/raw material for assembling locks used to be supplied by Assessee to labourers, who are paid wages for such assembling and assembled locks are received and process of polishing, nickeling, branding etc is under gone at the premises of Assessee. The entire exercise cumulatively results in bringing out a new item namely, lock of a particular brand and, therefore, amounts to manufacture as defined in Section 2 (f) of Act, 1944; ii) Whether definition of ''manufacturer' in Section 2 (f) of Act, 1944 being inclusive would cover various activities referred to in question 1 and in totality will answer the definition of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing nor any error on the face of record has been pointed out as such the Review Application is beyond the scope of provisions of Order 47 Rule 1 CPC. It has also been asserted that the grounds raised in the Review Application are basically on the merits of the matter as if the appeal under Section 35G of the Central Excise Act, 1944 is to be heard and decided afresh after hearing the arguments again. The question relating to maintainability of the appeal raised by the Review Petitioner on the ground that the matter was covered by Section 35L of the Central Excise Act, 1944 is totally misconceived. Neither such an issue was involved in the appeal nor has been decided by the coordinate bench. (13) Before proceeding further, it would be useful to refer Order 47 Rule 1 of the Code of Civil Procedure which deals with the power of review and reads as follows:- Application for review of judgment .-(1) Any person considering himself aggrieved - (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred. (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of Small Causes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected, but lies only for patent error . (15) In Parsion Devi v. Sumitri Devi; (1997)8 SCC715, the Court after referring to Thungabhadra Industries Ltd. (supra), Meera Bhanja v. Nirmala Kumari Choudhury; (1995) 1 SCC 170 and Aribam Tuleshwar Sharma v. Aribam Pishak Sharma; (1979) 4 SCC 389, held thus:- Under Order 47 Rule 1 CPC 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 of review under Order 47 Rule 1 CPC. In exercise of the jurisdiction under Order 47 Rule 1 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 be an appeal in disguise . The aforesaid authorities clearly spell out the nature, scope and ambit of power to be exercised. The error has to be self-evident and is not to be found out by a process of reasoning. We have adverted to the aforesaid aspects only to highlight the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived. (17) In the instant case, the appeal was admitted on four questions, as narrated in the judgment, but in nutshell the question to be answered was as to whether the partnership firm was engaged in manufacturing locks and liable to pay Central Excise duty or not. (18) Here it may be clarified that issue nos. 1 to 3 which were formulated for determination are interdependent on each other and not to be read in isolation and the last issue is with regard to application of judgment rendered in Khambhatwala s case. During the course of arguments, it has been admitted by the Review Petitioners that the three questions have rightly been decided but a wrong conclusion has been drawn which has hurt the Review Petitioner and it has also been asserted that the case of the Review Petitioners have not been considered in the light of the Khambatwala s case. (19) In this context, the stand of the firm/assessee was that it make the goods marketab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emain property of Assessee since raw material belong to him and the ultimate finishing is done at Assessee's premises. Mere fact that labour charges are paid by Assessee does not mean that artisans can not be said to have undergone process of manufacture under the Assessee. In view of facts as have been noticed in the case in hand, we have no manner of doubt that Assessee in the case in hand is a manufacturer of lock and not that it is engaged in only furnishing and branding. (21) In view of the aforesaid clear cut finding that the Assessee is a manufacturer of lock, it is wrong to assert that the Court has not answered all the issues which were formulated. The said finding is in consonance with the Section 2(f) of the Central Excise Act, 1944 which says that the word manufacturer is to include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacturer on his own account. A perusal of the facts available on record reveals that the R.P. Locks right from raw material stage upto the finished stage have been controlling the entire manufacturing activity and even sample, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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