SUPREME COURT OF INDIA
S.N.S.(Minerals) Limited & Anr.
Vs.
Union of India & Ors.
C.A.No.804 of 2005
(Arijit Pasayat and Tarun Chatterjee,JJ.,)
27.02.2007
JUDGMENT
Dr.Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the
Madhya Pradesh High Court dismissing the Review Petition filed by the
appellants. This is in essence the second journey of the appellants in respect
of a Writ Petition (W.P.No.522/90) filed before the High Court. The said Writ
Petition was disposed of by order dated 3.3.1994. The same was filed for
quashing the proceedings initiated by respondent No.3 i.e. Superintendent
(Preventive) Central Excise, Indore. During the pendency of the petition,
orders were passed quantifying the liability of appellant No.1 for imposition
of penalty. These orders were challenged in the writ petition by amending the
same. The High Court quashed the orders so far as they related to imposition of
penalty. Questioning the correctness of the order an appeal was filed before
this Court which was disposed of by order dated 16.4.2002. Basically, two
stands were taken in the appeal. This Court did not interfere with the order of
the High Court on the aspect of manufacture. The residual argument was that
since the High Court had quashed the penalty imposed by the Collector, Central
Excise by taking a view that the appellants were under a bona fide belief that
they were not liable to pay excise duty on limestone chips, the High Court
ought to have struck down the demand of duty based on Section 11A of the Central
Excise Act, 1944 (in short the 'Act'). This Court dealt with that aspect
of the challenge in the following words:
"The next argument is that the High Court quashed the penalty imposed by
the Collector, Central Excise, upon the appellants taking the view the
appellants were under a bona fide belief that they were not liable to pay
excise duty on limestone chips. It is submitted that the High Court should,
therefore, have also struck down the demand of duty based on Section 11A. We
have gone through the judgment of the High Court. We find that no such argument
is recorded by the High Court or answered . If it was the contention of the
appellants that the High Court had not answered an argument that had been
advanced before it, they should have approached the High Court in review. As it
is, we are of the view that only the arguments recorded by the High Court and
answered require our consideration.
The appeal is dismissed with costs."
2. A review petition was filed before the High Court, inter alia, taking the
stand that this Court had permitted filing of a review. The same was filed
purportedly on the basis of the observations made by this Court to the effect
that it was the contention of the appellants that the High Court had not
answered an argument that had been advanced before it and if that was the
contention of the appellants they should have approached the High Court in
review. The High Court noted that there was no ground taken in the writ
petition. Learned counsel appearing for the appellants before the High Court
conceded that no such ground was taken in the earlier S.L.P.
3. The High Court was of the view that an application for review was to be
entertained only if such ground was raised in the writ petition before the
Court and the Court had omitted to consider the same. From the records it was
noted that no such ground was raised. The High Court was, therefore, of the
view that no ground for review of the judgment existed and dismissed the same.
4. Learned counsel for the appellants submitted that though in the original
writ petition such a stand was not taken but in the amended writ petition such
a stand was taken and, therefore the High Court was not justified in its view.
5. Per contra, learned counsel for the respondents submitted that though there
was no specific plea in this regard and some vague assertions had been made,
the point was not urged for consideration before the High Court. Therefore, the
review has been rightly dismissed considering the limited nature of the review.
6. We find that after the amendment, para 10(G) of writ petition shows some
vague reference to the question of limitation. In fact reference is made
therein to paragraph 7. The High Court has categorically stated that no such
stand was taken and in the counter affidavit filed by the respondents before
this Court it has been categorically stated that no such argument was advanced.
7. The High Court's findings are in the following terms:
"Learned senior counsel for the applicants submits that since in the facts
and circumstances of the present case extended period of five years under
Section 11A could not have been invoked by the respondent authorities, the
order deserves to be reviewed. Keeping in view the observation of the Hon'ble
Supreme Court, the counsel was asked to point out from the record whether such
a contention had been raised before the High Court in the writ petition and any
such ground was taken in the S.L.P. before the Apex Court. Learned counsel
frankly conceded that such a ground was not taken in the S.L.P. So far as the
entitlement of the applicants for review is concerned, the petitioner can claim
the same only if the petitioner had raised such a ground in the writ petition
before the Court and Court had omitted to consider the same. From the record,
it does not appear that any such ground was raised in the original writ
petition."
8. The scope for review has been considered by this Court in several cases. In
a recent case in Haridas Das v. Usha Rani Banik (Smt.) and Ors1. it
was held as follows:
"13. In order to appreciate the scope of a review, Section 114 of the Code
Of Civil Procedure, 1908 has to be read, but this section does not even
adumbrate the ambit of interference expected of the Court since it merely
states that it "may make such order thereon as it thinks fit." The
parameters are prescribed in Order XLVII of the Code Of Civil Procedure,
1908 and for the purposes of this lis, permit the defendant to press for a
rehearing "on account of some mistake or error apparent on the face of the
records or for any other sufficient reason". The former part of the rule
deals with a situation attributable to the applicant, and the latter to a jural
action which is manifestly incorrect or on which two conclusions are not
possible. Neither of them postulate a rehearing of the dispute because a party
had not highlighted all the aspects of the case or could perhaps have argued
them more forcefully and/or cited binding precedents to the Court and thereby
enjoyed a favourable verdict. This is amply evident from the explanation in
Rule 1 of the Order XLVII which states that the fact that the decision on a
question of law on which the judgment of the Court is based has been reversed or
modified by the subsequent decision of a superior Court in any other case,
shall not be a ground for the review of such judgment. Where the order in
question is appealable the aggrieved party has adequate and efficacious remedy
and the Court should exercise the power to review its order with the greatest
circumspection. This Court in M/s. Thungabhadra Industries Ltd. (in all the
Appeals) v. The Government of Andhra Pradesh represented by the Deputy
Commissioner of Commercial Taxes, Anantapur2,
held as follows:
"There is a distinction which is real, though it might not always be
capable of exposition, between a mere erroneous decision and a decision which
could be characterized as vitiated by "error apparent". A review is
by no means an appeal in disguise whereby an erroneous decision is reheard and
corrected, but lies only for patent error. Where without any elaborate argument
one could point to the error and say here is a substantial point of law which
states one in the face and there could reasonably be no two opinions
entertained about it, a clear case of error apparent on the face of the record
would be made out."
9. Even if it is accepted as contended that the plea was taken regarding
limitation, the same was really not specifically taken. There was no reference
to Section 11-A of the Act.
10. Learned counsel for the appellants contended that there was no necessity
referring to that provision as indirectly that plea had been taken. Though the
contention was not very happily worded it is stated that this Court in several
cases has held that if there is a bona fide doubt the extended period of
limitation available under Section 11A of the Act does not apply. There is no
quarrel with this proposition. But the question is whether such a plea was in
fact urged. From a reading of the order of the High Court and the counter
affidavit filed before this Court in which it has been specifically urged at
paragraphs 9 and 10 that no such argument was advanced, we do not consider this
to be a fit case where any interference is called for, considering the limited
scope of review.
11. The appeal is accordingly dismissed with no order as to costs.
1AIR 2006 SC 1634
2( 1964) SCR 5 0174