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TMI Blog2024 (7) TMI 1326X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India, it being a question of fact and requiring evidence/material to establish or negative the same. On the face of the second show cause notice, the submission is not acceptable, that Section 28 (4) of the Act is not attracted. By the judgment under review the petitioner has the opportunity to submit reply and before the authority it can be demonstrated that there was no suppression of fact. In the present case, the dropping of the first show cause notice vide letter dated 17.05.2023 is after issuance of the second show cause notice for demand of differential amount, not identical amount, and clearly stating in the withdrawal letter about the second show cause notice dated 10.04.2023 also mentioning for the said purpose, the first show cause notice, was thereby withdrawn. Here, the second show cause notice is not after withdrawal of the first show cause notice nor for identical amount. The second show cause notice is within 5 years limitation under Section 28 (4) of the Act. In Swatch Group India Pvt. Ltd. [ 2023 (8) TMI 864 - DELHI HIGH COURT] , the show cause notice under Sections 28 and 124 of the Customs Act, was dated 14.02.2018 and the corrigendum was dated 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under review - By the judgment under review, the petitioner has the opportunity to file response to the show cause notice, which we have not restricted. It is open for the review petitioner to raise such objection, as may be open under law and as may be advised, including the objection of jurisdiction - No case for review is made out to reopen the proceedings of the writ petition. The Review Petition is dismissed. - HON'BLE SRI JUSTICE RAVI NATH TILHARI AND HON'BLE SRI JUSTICE A V RAVINDRA BABU For the Petitioner : Sri Challa Kodanda Ram, Senior Advocate, Assisted by Doddala Yathindra Dev, For the Respondent No. 1 : Sri Y. V. Anil Kumar, Central Government Counsel For the Respondents 2 to 6 : Ms. Santhi Chandra I. A. NO. 1 OF 2024 IN W.P.NO. 32287 OF 2023 JUDGMENT (PER HON BLE SRI JUSTICE RAVI NATH TILHARI) Heard Sri Challa Kodanda Ram, learned senior advocate, assisted by Sri Doddala Yathindra Dev, learned counsel for the review petitioner, Sri Y. V. Anil Kumar, Central Government Counsel, appearing for the 1st respondent, Ms. Santhi Chandra, learned counsel, appearing for the respondents 2 to 6. 2. This review petition has been filed by the writ petitioner in W.P.No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceedings could not be initiated. 6. In the writ petition, the learned standing counsel for the respondents 4 and 5 therein submitted that the second show cause notice was issued by the competent authority, the Principal Commissioner of Customs, Air Cargo Complex, Chennai-VII, Chennai, consequent to the amendment to the Customs Act, 1962, in terms of Section 110AA read with Notification No. 28/2022-Cus (NT), dated 31.03.2023 and for that purpose, the first show cause notice dated 24.03.2022, issued by the Deputy Commissioner of Customs, was withdrawn on 17.05.2023. It was also submitted that in the second show cause notice there were some more bills added. Consequently, there was no illegality in the second show cause notice, which could be issued during pendency of the proceedings based on the first show cause notice. 7. The aforesaid contentions were considered and the writ petition against the show cause notice was dismissed, providing that the petitioner may file reply before the authority concerned. The Court had also considered the judgment in the case of M /s. Prince Gutka Limited and others (supra). 8. Sri Challa Kodanda Ram, learned senior advocate, in the review petition, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the first proviso to Section 28 (9) of the Act, the notice under Section 28 (4) of the Act could have been extended for another one year, if officer, senior to the rank of the proper officer, who issued original notice, passed an order recording reasons and circumstances due to which, the proper officer could not adjudicate the first show cause notice within one year from the date of the notice. Learned senior advocate for the review petitioner placed reliance in the case of Swatch Group India Pvt. Ltd. v. Union of India 2023 SCC OnLine Del 4938 to contend that the proper officer is bound to pass an order within six months or one year from the date of notice, as the case may be, in cases of duties not paid or short levied or short paid or erroneously refunded, and the said period can be extended for a further period of six months or one year in cases specified in clause (a) and (b) of Section 9, by an officer, senior in rank to the proper officer having regard to the circumstances under which the proper officer was prevented from determining the amount of duty or interest within the prescribed period. 9. Learned senior advocate further submitted as follows: (i) That in para-12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uise the subject proceedings to be fresh proceedings, which were lapsed. In view of the above, the present proceedings are without any authority of law and vitiated for any adjudication process to initiate. (iii) Learned senior counsel submitted that the observation made in para-12 of the judgment/order is contrary to the pleadings of the writ petition in para-12 of the affidavit. 10. Learned senior advocate further submitted that in passing the order under review, the Court had proceeded on the presumption, assumption and concession as in different grounds in the memo of review. (i) That the second show cause notice was an extension of the first show cause notice by overlooking the fact of withdrawal of the first show cause notice by letter dated 17.05.2023 (Ground B in memo of review); (ii) That the second show cause notice was issued after expiry of limitation period and without obtaining any extension of time in the prescribed amendment as provided in the first proviso to Section 28 (9) of the Act, and also the first show cause notice subsequently being withdrawn on 17.05.2023, which completely foreclosed the possibility of extension of the first show cause notice (Ground C in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court observed that it is not the submission by the learned counsel for the petitioner that the said period was not extended. Such extendable period has also not expired. It is also not the submission that the period for determination if not extended as of now, cannot be extended. The second proviso upon which much reliance has been placed would come into effect only after the expiry of the extended period. 16. In the aforesaid observation, in respect of it is not the submission of the learned counsel for the petitioner that the said period was not extended , learned senior counsel for the review petitioner submits that in para-12 of the writ petition affidavit, there was categorical averment as under: in the subject case, there is no evidence of the extension granted by the superior officer to the proper officer. 17. We are of the view that even the said averment in para-12 of the writ petition affidavit is not categorical that the period was not extended. We do not find in para-12 of the writ petition affidavit any categorical averment that the extension was not granted by the superior officer to the proper officer. The averment is that there is no evidence of extension granted w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period for determination for duty under Section 28 (8) of the Act can be extended, if not extended as of now. What the Court observed in para-12 of the judgment under review, is that ..It is also not the submission that the period for determination, if not extended as of now, cannot be extended. That is neither the finding nor the proposition of law by the Court that the period for determination if not extended as of now can be extended or cannot be extended. 24. In Yashwant Sinha (supra), the Hon ble Apex Court held in para-59 as under: 59. In Moran Mar Basselios Catholicos v. Mar Poulose Athanasius [Moran Mar Basselios Catholicos v. Mar Poulose Athanasius, AIR 1954 SC 526] , the question, which fell for consideration was, whether misconception of the court about a concession by the counsel, furnished a ground for review. A court may pronounce a judgment on the basis that a concession had been made by the counsel when none had been made. The court may also misapprehend the terms of the concession or the scope of a concession. When such misconception underscores a judgment, whether review would lie? Answering the said question, this Court proceeded to hold as follows : (AIR p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c averment that there was no order granting extension under proviso to Section 28 (9) of the Customs Act. 26. The other submission of the learned senior counsel for the review petitioner that the first show cause notice dated 24.03.2022 was given wrongly invoking Section 28 (4) of the Act, after expiration of two years of period of limitation from 04.09.2019, was not raised before the writ court by the learned counsel for the writ petitioner. There was also no challenge by the writ petitioner to the first show cause notice. The challenge was only to the second show cause notice dated 10.04.2023. 27. Further submission as advanced before us by the learned counsel for the review petitioner that the period of limitation of 5 years under Section 28 (4) of the Act would be available subject to the strict compliance of the proviso to Section 28 (9) of the Act, was also not advanced in the writ petition by the counsel for the writ petitioner. There was also no such ground taken in the writ petition. So that aspect of the matter was not for consideration before this Court in passing judgment under review. 28. The aforesaid submission has been much pressed. In respect of the submissions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that show cause notice had been dropped. It also held that the Tribunal was wrong in holding that there was suppression of fact or material. The Hon ble Apex Court referred to its previous pronouncements in ECE Industries Ltd. v. CCE (2004) 13 SCC 719 and on the ratio laid down therein, held that once the earlier show cause notice on similar issue had been dropped, it can no longer be said that there was any suppression. The extended period of limitation would thus not be available. 30. The judgment in Hyderabad Polymers (P) Ltd. (supra) , in our view, is not attracted. In the said case, as mentioned above, there was a categorical finding that in the earlier show cause notice a demand on similar issue and for an identical amount was raised. That show cause notice had been dropped. In the present case, the case of the respondents in issuance of show cause notice is that there is suppression, which is disputed by the review petitioner before us, and requires investigation or adjudication by the authority issuing show cause notice. By this time, there is no finding by the competent Authority as was in the case of Hyderabad Polymers (P) Ltd. (supra) given by the Collector. Further, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch Group India Pvt. Ltd. (supra) of the Delhi High Court is therefore not on the point as raised in the present review petition. 34. We are of the view that the review petitioner by raising new grounds as also the new arguments which were not advanced in the writ petition by the learned counsel for the writ petitioner, as also by raising certain arguments which were raised by the writ petitioner s counsel and considered by the Court, is trying to reagitate the matter on merits which is not permissible in the review, as review is not an appeal in disguise. Under the guise of review the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and considered. The review petitioner is also not permitted to raise new grounds, new arguments, which were not taken or not argued by the writ petitioner s counsel, after engaging a new counsel in the review petition. 35. In Vadde Pavan Kumar (supra), on the scope of review jurisdiction, a coordinate Bench of this Court, after referring to various pronouncements of the Hon ble the Apex Court, reiterated that under the grab of filing a review petition, a party cannot be permitted to repeat old and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with approval a passage from Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [(1979) 4 SCC 389] this Court once again held that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC. 9. 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 . 14. In Lily Thomas v. Union of India (2000) 6 SCC 224 the Hon ble Apex Court held that the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233 : (1955) 1 SCR 1104] it was held: [I]It is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error cease to be mere error, and become an error apparent on the face of the record? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr Pathak for the first respondent contended on the strength of certain observations of Chagla, C.J. in Batuk K. Vyas v. Surat Borough Municipality [AIR 1953 Bom 133 : 54 Bom LR 922] that no error could be said to be apparent on the face of the record if it was not self-evident and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t matter of evidence has emerged after passing of the judgment, subject to the condition that such evidence was not within the knowledge of the party seeking review or could not be produced by it when the order was made despite undertaking an exercise of due diligence. There is a clear distinction between an erroneous decision as against an error apparent on the face of the record. An erroneous decision can be corrected by the Superior Court, however an error apparent on the face of the record can only be corrected by exercising review jurisdiction. Yet another circumstance referred to in Order XLVII Rule 1 for reviewing a judgment has been described as for any other sufficient reason . The said phrase has been explained to mean a reason sufficient on grounds, at least analogous to those specified in the rule ( Refer : Chajju Ram v. Neki Ram(AIR 1922 PC 112) and Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius (1955 SCR 520). 17. Recently, in State of Telangana v. Mohd. Abdul Qasim 2024 SCC OnLine SC 548 the Hon ble Apex Court reiterated that a decision, however erroneous, can never be a factor for review, but can only be corrected in appeal. Such a mistake or err ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t pronounced by the court is final, and departure from that principle is justified only when circumstances of a substantial and compelling character make it necessary to do so. 16.3. 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 record justifying the court to exercise its power of review. 16.4. In exercise of the jurisdiction under Order 47 Rule 1CPC, it is not permissible for an erroneous decision to be reheard and corrected . 16.5. A review petition has a limited purpose and cannot be allowed to be an appeal in disguise . 16.6. Under the guise of review, the petitioner cannot be permitted to reagitate and reargue the questions which have already been addressed and decided. 16.7. An error on the face of record must be such an error which, mere looking at the record should strike and it should not require any long-drawn process of reasoning on the points where there may conceivably be two opinions. 16.8. Even the change in law or subsequent decision/judgment of a coordinate or larger Bench by itself cannot be regarded as a ground for review 20. In Kamlesh Verma v. Mayawati (2013) 8 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el has argued a case to his satisfaction and he had not raised the particular point for any reason whatsoever, it cannot be a ground of review for the reason that he was the master of his case and might not have considered it proper to press the same or could have thought that arguing that point would not serve any purpose. If a case has been decided after full consideration of arguments made by a counsel, he cannot be permitted, even under the garb of doing justice or substantial justice, to engage the Court again to decide the controversy already decided. 37. It is apt to refer para-41 of Smt. Krishna Pathak (supra) as under: 41. In view of the above discussion, the law of review can be summarised that it lies only on the grounds mentioned in O. 47; R. 1, CPC. The party must satisfy the Court that the matter or evidence discovered by it at a subsequent stage could not be discovered or produced at the initial stage though it had acted with due diligence. A party filing a review application on the ground of any other sufficient reason must satisfy that the said reason is analogous to the conditions mentioned in O. 47, R. 1, CPC. Under the garb of review, a party cannot be permitted ..... X X X X Extracts X X X X X X X X Extracts X X X X
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