GA No.1943 GA No.1945 RVWO No.20 CWXA No.7 GA No.2856 of of of of of 2016 2016 2016 2015 2015 IN THE HIGH COURT AT CALCUTTA Special Jurisdiction (Central Excise) ORIGINAL SIDE ARCL ORGANICS LTD.& ANR.
-VersusCOMMISSIONER OF CENTRAL EXCISE-V COMMISSIONERATE Appearance: Mr.Saptangshu Basu, Sr.Adv.Mr.Anondo Sen, Adv.Mr.Debjyoti Das, Adv.Mr.Sankar Ranjan Sen, Adv.Mr.Ramesh Sharma, Adv...for the appellant.
Mr.Uday Sankar Bhattacharyya, Adv.Mr.Bhaskar Prasad Banerjee, Adv...for the respondent.
BEFORE: The Hon'ble JUSTICE RAKESH TIWARI The Hon'ble JUSTICE MIR DARA SHEKO Date : 6th September, 2016.
The Court : G.A.No.1943 of 2016 is an application under Section 5 of the Limitation Act, 1963 for condonation of delay of 267 days in presenting the Memorandum of Review being RVWO No.20 of 2016.
We have heard the learned Senior Counsel Mr.Saptangshu Basu for the applicant and also the learned Advocate Mr.Uday Sankar Bhattacharyya, representing the respondent- Commissioner of Central Excise and perused the application under Section 5 of the Limitation Act and the application for review of the order dated 4th September, 2015 passed in GA No.2856 of 2015 and also the grounds made for review.
Drawing our attention to the merits of the review application Mr.Basu submitted that had the provisions of Section 35-F of the Central Excise Act, 1944 would have been brought to the notice of the Court, then the applicant could have got benefit in the matter of deposit of the sum provided under said Section 35-F of the Act, instead of suffering from a direction to deposit a sum of Rs.35 lakhs within a period of eight weeks from the date of the order under review.
Learned Advocate representing the Customs authorities vis-à-vis the respondent submitted that though the order under review was delivered on 4th September, 2015, the review application was filed only on 28th June, 2016 which is hopelessly barred.
The application to obtain certified copy was submitted on May 18, 2016 and copy was obtained on 19th May, 2016, and the review application was filed again after more than a month.
He further argued that by the order under review the petitioner was directed to deposit a sum of Rs.35 lakh on his concession.
As such, the review is not maintainable on such a concessional order.
In reply, Mr.Basu submitted that there cannot be any concession de hors the rule.
We find that before amendment provisions of Section 35-F was as follows: “35-F.
Deposit, pending appeal of duty demanded or penalty levied.
– Where in any appeal under this Chapter, the decision or order appealed against relates to any duty demanded in respect of goods which are not under the control of central excise authorities or any penalty levied under this Act, the person desirous of appealing against such decision or other shall, pending the appeal, deposit with the adjudicating authority the duty demanded or the penalty levied.” Thereafter by Act 25 of 2014 Section included by amendment with effect from 01.10.2014.
35-F has been Mr.Basu tried to impress – that since the appeal as preferred was dismissed and since there is no pending appeal, the benefit of the provisions of Section 35-F particularly 2nd proviso thereto should be applicable.
Amended Section 35-F and its 2nd proviso are set out : “35-F.
Deposit of certain percentage of duty demanded or penalty imposed before filing appeal.- The Tribunal or the Commissioner (Appeals).as the case may be, shall not entertain any appeal.(i) under sub-section (1) OF Section 35, unless the appellant has deposited seven and a half per cent of the duty demanded or penalty imposed or both, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Commissioner of Central Excise; * * * * * * * * * Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No.2) Act, 2014.” Law is set at rest that review is entertainable under Order 47 Rule 1 and clauses mentioned thereunder.
From Bar effort was to convince that there was mistake on the part of the Counsel due to not pointing out the amended Section 35-F.
But we hold that there is hardly any scope to equate the alleged mistake of Counsel in not pointing out any law with the “mistake” or “error” as meant within the provision under Order 47 Rule 1 of the Code.
Moreover, the Court rightly applied the law as it was prevalent when the appeal was filed and considered the same.
In our considered view, the subsequent amendment would not be applicable as the order impugned was based on consent of the counsel for the petitioner that their clients were ready and willing to deposit 50% of the duty i.e.to the tune of Rs.35 lakhs within a period of eight weeks from date.
Moreover, on concession though opportunity to deposit Rs.35 lakhs only was obtained on September 4, 2015, instead of its deposit, rather causing loss of revenue, has been utilising the said amount as their own under the garb of this application.
Therefore, we fail to look eye to eye with the submission of Mr.Basu to accept his contention that there was any mistake or error apparent on the face of record, to entertain the review application, since the provision of amended Section 35-F was not placed.
Rather since the penaltimate portion of the order under review had given opportunity of preferring appeal in lieu deposit of a portion of the sum of penalty to the tune of Rs.35 lakhs on the basis of concession, the review application has got no merit.
The impugned judgment therefore is held as beyond the scope of review.
Though the period of limitation has been explained by the applicant in their own manner but had there been meritorious grounds to entertain the review, in that event the Court could have thought otherwise for consideration of said application proposing condonation of such inordinate delay.
In view of taking note of having no merit in the review application and since the judgment under review is found as beyond the scope of review for the reasons recorded above, the application for condonation of delay stands rejected.
As a consequence thereof, the application for review being G.A.No.1945 of 2016 also stands dismissed.
(RAKESH TIWARI, J.) (MIR DARA SHEKO, J.) A/s.