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Joshi Technologies International, Inc-India Projects v/s Union of India

    Misc. Civil Application (For Review) No. 1 of 2016 In R. Special Civil Application No. 2556 of 2015
    Decided On, 12 March 2020
    At, High Court of Gujarat At Ahmedabad
    By, THE HONOURABLE MS. JUSTICE HARSHA DEVANI & THE HONOURABLE MR. JUSTICE A.G. URAIZEE
    For the Petitioner: S.N. Soparkar, Senior Advocate with Monaal J. Davawala, B. S. Soparkar, Advocates. For the Respondent: Ankit Shah, Devang Vyas, Advocates.


Judgment Text

IA Order:

Harsha Devani, J.

1. By this application, the applicant (original petitioner) seeks review of the judgment and order dated 16.6.2016 passed by this court in Special Civil Application No.2556 of 2018 and seeks grant of interest at the rate of 18% per annum or such other rate as the court deems fit from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit.

2. The applicant had filed the captioned petition seeking refund of an amount of Rs.73,60,061/- of education cess and higher secondary education cess paid under mistake of law for the period from July 2004 to April 2014 in terms of the Circular No.978/2/2014-CA dated 7.1.2014 issued by the Central Board of Excise and Customs clarifying that education cess and secondary and higher secondary education cess are not to be calculated on cesses which are levied under the Acts administered by Department/Ministries other than the Ministry of Finance (Department of Revenue) but are only collected by the Department of Revenue in terms of those Acts.

3. In the writ petition, the petitioner had sought two reliefs

(i) a direction to the respondents to sanction refund of Rs.73,60,061/- and (ii) grant of interest at the rate of 18% per annum. By the judgment and order dated 16.6.2016, this court allowed the petition in favour of the applicant by setting aside the order-in-original dated 24.11.2014 and directing the second respondent to forthwith sanction and grant the applicant refund of Rs.73,60,061/- as claimed vide application dated 17.7.2014. However, as regards the claim of interest at the rate of 18% per annum, this court held that the interest claimed is not backed by any statutory provision and hence, such relief cannot be granted.

4. It is the case of the applicant that this court has held that the provisions of the Central Excise Act, 1944 will not apply to refund amount sanctioned as the said amount was not a duty of excise or education cess or secondary and higher secondary education cess and such amount was merely an amount deposited under a mistake of law. Hence, as a necessary corollary, the statutory provisions pertaining to interest as provided in Central Excise Act shall also not apply. It is the case of the applicant that as there are no statutory provisions governing the interest on the sum of money paid under the mistake of law, it is not possible that such claim of interest could be backed by any statutory provisions. Therefore, it is evident that on account of inadvertent error this court has wrongly rejected the claim of interest on the ground that there are no statutory provision pertaining to interest as provided in the Excise Act. It is in these circumstances that the applicant has filed the present review application seeking the relief noted hereinabove.

5. Mr. S.N. Soparkar, Senior Advocate, learned counsel for the applicant reiterated the contents of the application. The learned counsel further drew the attention of the court to the findings recorded by this court in the judgment and order dated 16.6.2016 that in this case the limitation provided under the Central Excise Act would not apply as the amount cannot be said to have been paid under the statute and is, therefore, governed by the general provisions of the Limitation Act. It was submitted that once it is held that refund is not governed by any statutory provisions, it could not have been held that as there is no statutory provision for granting interest, interest cannot be awarded. It was submitted that denial of interest on the ground that in the absence of any statutory provision entitling the assessee to interest a mandamus cannot be issued to the revenue to pay interest, is inconsistent with the finding that the amount in question not being in the nature of a duty of excise, the provisions of the Central Excise Act would not be applicable.

5.1 It was submitted that the issue has been adjudicated and in that process there is an error apparent on the face of the record. The review has, therefore, been filed on the principle that there is an error apparent on the face of the record.

5.2 It was submitted that in this case the test is not whether the decision rendered by this court was taken consciously. Reference was made to the following extract from Mulla: CPC 19th edition"

"A review may be granted, whether on any ground urged at the original hearing of the suit or not, whenever the court considers that it is necessary to correct an evident error or omission, and it is immaterial how the error or the omission occurred. Thus, a review was granted where an error on a point of law was apparent on the face of the judgment, for example, failure to apply the law of limitation to the facts found by the court, or failure to consider a particular section of an Act, or part thereof. ... ..... .. Where the court decided the case in accordance with what was described as the Jain law, it was held that this was an error on which a review should be granted as there was no such thing as the Jain Law. Where there is a decision of the Supreme Court bearing on a point and where after that decision a court has taken a view on that point which is not consistent with the law laid down by the Supreme Court, there is an error apparent on the face of the record."

5.3 It was submitted that the test is not as to originally whether mind was applied or not. Review would apply only where the decision is erroneous and that in this case, the court has recorded two findings which are inconsistent with each other. It was urged that, therefore, an erroneous judgment which has a precedential value, needs to be corrected.

5.4 Reliance was placed upon the decision of the Supreme Court in M.K. Venkatachalam, ITO v. Bombay Dyeing and Manufacturing Co. Ltd., AIR 1958 SC 875, wherein the court held thus:-

"6. It is in the light of this position that the extent of the Income-tax Officer's power under Section 35 to rectify mistakes apparent from the record must be determined; and in doing so, the scope and effect of the expression"mistake apparent from the record" has to be ascertained. At the time when the Income-tax Officer applied his mind to the question of rectifying the alleged mistake, there can be no doubt that he had to read the principal Act as containing the inserted proviso as from April 1, 1952. If that be the true position then the order which he made giving credit to the respondent for Rs. 50,603-15-0 is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under Section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear some-what strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. If, as a result of the said fiction we must read the subsequently inserted proviso as forming part of Section 18A(5) of the principal Act as from April 1, 1952, the conclusion is inescapable that the order in question is inconsistent with the provisions of the said proviso and must be deemed to suffer from a mistake apparent from the record. That is why we think that the Income-tax Officer was justified in the present case in exercising his power under Section 35 and rectifying the said mistakes, Incidentally we may mention that in Meka Venkatappayya v. Additional Income-tax Officer, Bapatla, 1957-32 ITR 274 : (AIR 1958 Andh Pra 683) (D) the High Court of Andhra has taken the same view."

5.5 Reliance was placed upon the decision of this court in Vijay Textile v. Union of India, 1979 (4) E.L.T. (J 181) (Guj.), wherein the excise authorities had collected certain amount without authority of law and such money was used by the Government for a period of three years. This court directed the respondents to refund the amount so collected without authority of law along with interest at the rate of 12% per annum from the dates of collection of the said amounts till the date of actual repayment.

5.6 Reliance was also placed upon the decision of the Bombay High Court in Pure Drinks Pvt. Ltd. v. Union of India, MANU/MH/0501/1987, wherein the plaintiffs had claimed interest at the rate of 18% per annum on the excess duty collected by the defendants from the date on which the duty was collected till payment. The court held that in the interest of justice, it would be just and fair to award to the petitioners interest at the rate of 12% per annum from the date the duty was collected till payment.

5.7 Reliance was also placed upon the decision of the Calcutta High Court in Dulichand Shreelal v. CCE and others, 1987 (32) E.L.T. 388 (Cal.), wherein the petitioners had paid excise duty under a mistake of law and, accordingly, a refund of such amount along with interest was claimed. The court held that the petitioner is entitled to the refund of the amounts collected by the respondents, inasmuch as, such collection was without any authority of law and further granted interest at the rate of 12% per annum from the date of collection till the date of payment.

5.8 Reference was made to the decision of the Bombay High Court in the case of Sheel Thermoplastics Limited v. Union of India, 1988 (36) E.L.T. 106 (Bom.), wherein the petitioners had paid excise duty under a mistake of law and applied for refund. The court held that the petitioners are eligible for refund and further granted interest at the rate of 12% per annum to the petitioners since the amount of excise duty was paid under a mistake of law, which otherwise would not have been payable.

5.9 It was submitted that thus, different High Courts including this court have taken a consistent view that where money is paid by mistake, the revenue is required to refund the same and has also directed payment of interest at the rate of 12% per annum on the amount so refunded from the date when it was deposited. It was urged that a similar order granting interest at such rate as the court may deem fit is required to be passed in the present case also.

6. Mr. Ankit Shah, learned senior standing counsel for the respondents submitted that during the course of hearing of the matter, no arguments had been advanced on the question of interest, though a prayer for payment of interest was made and, therefore, now review of the judgment is not permissible.

6.1 Reliance was placed upon the decision of the Supreme Court in Lily Thomas v. Union of India, (2000) 6 SCC 224, wherein the court held thus:-

"56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. Once a review petition is dismissed no further petition of review can be entertained. The rule of law of following the practice of the binding nature of the larger Benches and not taking different views by the Benches of coordinated jurisdiction of equal strength has to be followed and practised.

However, this Court in exercise of its powers under Article 136 or Article 32 of the Constitution and upon satisfaction that the earlier judgments have resulted in deprivation of fundamental rights of a citizen or rights created under any other statute, can take a different view notwithstanding the earlier judgment.

57. In the light of the legal position as enumerated hereinabove, let us examine the grievances of the petitioners in the instant case. In review petition the notice issued was limited to the question of Article 20(1) of the Constitution. It was contended that the judgment of the Court entailed a convert to Islam the liability of prosecution for the offence of bigamy under Section 494 of the Indian Penal Code which would, otherwise not be an offence under the law applicable to him. Section 494 forms part of a substantive law and is applicable to all unless specifically excluded. As no notice has been issued for review of the main judgment which interpreted Section 494 IPC in the manner as narrated hereinabove, if cannot be said that any person was likely to be convicted for an offence except for violation of law in force at the time of commission of the act charged as offence.

58. Otherwise also no ground as envisaged under Order XL of the Supreme Court Rules read with Order XLVII of the CPC has been pleaded in the review petition or canvassed before us during the arguments for the purposes of reviewing the judgment in Sarla Mudgal 's case. It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgal's case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned Counsel appearing for the parties seeking review of the judgment. The only arguments advanced were that the judgment interpreting Section 494 amounted violation of some of the fundamental rights. No other sufficient cause has been shown for reviewing the judgment. The words "any-other sufficient reason appearing in Order XLVII Rule 1 CPC" must mean "a reason sufficient on grounds at least analogous to those specified in the rule" as was held in Chajju Ram v. Neki Ram AIR 1922 PC 112 and approved by this Court in Moron Mar Baseless Catholics and Anr. v. Most Rev. Mar Poulose Athanasius and Ors. AIR 1954 SC 526. Error apparent on the face of the proceedings is an error which is based on clear ignorance or disregard of the provisions of law in T.C. Basappa v. Nagappa and Anr. this Court held that such error is an error which is a patent error and not a mere wrong decision. In Hari Vishnu Kamath v. Ahmad is Hague and Ors. it was held:

...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 art 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, CJ in - "Batuk K Vyas v. Surat Borough Municipality", 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 break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be ..defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

Therefore, it can safely be held that the petitioners have hot made out any case within the meaning of Article 137 read with Order XL of the Supreme Court Rules and Order XLVII Rule 1 of the CPC for reviewing the judgment in Sarla Mudgal 's case. The petition is misconceived and bereft of any substance.

6.2 It was submitted that against an erroneous order an appeal ought to have been preferred. It was further submitted that in case the review application is entertained, other issues will also arise for determination, namely, the rate of interest as well as the date from which the interest should be granted, which would be beyond the scope of a review petition. It was, accordingly, urged that the application being devoid of merit deserves to be rejected.

7. In the aforesaid backdrop, it may be germane to refer to the relevant part of the judgment and order dated 16.6.2016 wherein reference is made to the issue in question namely, the claim of interest on the amount sought to be refunded.

8. In paragraph 19 of the order, this court has recorded thus:-

"19. Insofar as the claim of interest is concerned, the amount admittedly had been paid by the petitioner by way of a mistake. The position of law in this regard was not clear and hence, no fault can be found in the approach of the revenue authorities in retaining such amounts till the time the Circular dated 07.01.2014 came to be issued, clarifying the issue. It has been held hereinabove, that the amount in question is not in the nature of a duty of excise and hence the provisions of the Central Excise Act for refund would not be applicable. Consequently, the provisions of section 11BB of the Central Excise Act, which provides for interest on delayed refund, would also not be applicable. It is settled legal position that in the absence of a statutory provision entitling the assessee to interest, a mandamus cannot be issued to the revenue to pay interest. Though the petitioner has claimed interest at the rate of 18%, the same is not backed by any statutory provision and hence, the relief prayed for in the petition to that extent cannot be granted."

9. Thus, this court has held that since refund is not in the nature of duty under the Central Excise Act, the petitioner is not entitled to statutory interest under section 11BB of that Act. It has further been held that in the absence of any statutory provision entitling the petitioner to interest, a mandamus cannot be issued to the revenue to pay interest. It may be noted that while the petitioner in the relief paragraph has prayed for interest at the rate of 18% per annum, at the time of hearing of the petition, no submissions had been made in this regard. Nonetheless, since in the reliefs prayed for a prayer for grant of interest had been made, this court had considered the same and rightly or wrongly, for the reasons set out in the order as recorded hereinabove, declined to grant such relief.

10. In the opinion of this court, once the court has after duly recording reasons, turned down the prayer for grant of interest, even if the reasoning for declining such relief may be fallacious, the same would not fall within the scope of a review application. The Supreme Court in Asharfi Devi v. State of U.P., (2019) 5 SCC 86, has held that it is settled law that every error whether factual or legal cannot be made subject matter of review under Order 47 rule 1 of the Code though it can be made subject matter of appeal arising out of such order. In other words, in order to attract the provisions of Order 47 rule 1 of the Code, the error/mistake must be apparent on the face of the record of the case.

11. In State of West Bengal v. Kamal Sengupta, (2008) 8 SCC 612, it was held that the term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. The court placed reliance upon a decision of the Federal Court in the case of Hari Shankal Pal v. Ananth Nath Mitter (1949 FCR 36) for the proposition that the fact a decision is erroneous in law is certainly no ground for ordering review. If the court has decided a point and decided it erroneously, the error could not be one apparent on the face of the record or even analogous to it. The court also relied upon its earlier decision in the case of Parsion Devi v. Sumitra Devi [(1997) 8 SCC 715], wherein the court held that there is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction. A review petition has a limited purpose and cannot be allowed to be 'an appeal in disguise'.

12. It may be pertinent to note that in the present application, the petitioner has sought review of the judgement dated 16.6.2016 and grant of interest at the rate of 18% per annum or such other rate as the court may deem fit from the date the respective amounts were deposited with the respondents till the date of actual refund of the deposit. However, in the memorandum of petition of the captioned special civil application, the petitioner has prayed for interest at the rate of 18% per annum claimed vide application dated 21.7.2014. Thus, the refund application claimed in the application is not identical to the relief claimed in the petition.

13. A perusal of the record of the case shows that there is no application dated 21.7.2014 and in the averments made in the petition also there is reference to a letter dated 17.7.2014 requesting for refund of education cess. Thus, it appears that there is a mistake in mentioning the date of the application in the relief paragraph. By an application dated 17.7.2014, the petitioner had sought refund of the amount of COC cess amounting to Rs.73,60,061/- with interest thereon; however, the rate of interest or the date from which such interest is required to be paid has not been mentioned therein. Moreover, except for the fact that in the prayers, the petitioner had prayed for interest as referred to hereinabove, there are no averments whatsoever relating to such claim in the entire petition.

14. A perusal of the submissions advanced by the learned counsel for the respective parties as recorded in the judgment dated 16.6.2016 shows that during the course of arguments also, the learned counsel for the petitioner did not advance any arguments on the question of interest nor was any request made to grant interest on the amount of refund claimed. However, despite the fact that no averments were made in respect of the claim of interest, having regard to the prayers made in the petition, this court in the judgment and order dated 16.6.2016 has held thus:-

"19. Insofar as the claim of interest is concerned, the amount admittedly had been paid by the petitioner by way of a mistake. The position of law in this regard was not clear and hence, no fault can be found in the approach of the revenue authorities in retaining such amounts till the time the Circular dated 07.01.2014 came to be issued, clarifying the issue. It has been held hereinabove, that the amount in question is not in the nature of a duty of excise and hence the provisions of the Central Excise Act for refund would not be applicable. Consequently, the provisions of section 11BB of the Central Excise Act, which provides for interest on delayed refund, would also not be applicable. It is settled legal position that in the absence of a statutory provision entitli

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ng the assessee to interest, a mandamus cannot be issued to the revenue to pay interest. Though the petitioner has claimed interest at the rate of 18%, the same is not backed by any statutory provision and hence, the relief prayed for in the petition to that extent cannot be granted." 15. In the opinion of this court, the learned counsel for the petitioner is right in submitting that the findings recorded in the above paragraph are inconsistent with each other, namely, that if the provisions of the Central Excise Act are not applicable to the claim of refund, the question of denying interest on the ground of absence of any statutory provision entitling the petitioner to interest would not arise, inasmuch as, it is only when a claim is made under a statute that an assessee can claim interest only provided the statute provides for the same; however, such view can be said to be an erroneous view, inasmuch as, the court has expressed a view in that regard. 16. Moreover, even if the court were to accept that to the aforesaid extent, the above finding appears to be erroneous, nonetheless, as noted hereinabove, on behalf of the petitioner no submissions had been advanced before this court at the time of hearing of the matter, nor have any foundational facts been laid down in support of such claim either in the petition or even in the application dated 17.7.2014 made before the respondent authorities. 17. Therefore, at this stage of review, the court would be required to rehear the learned counsel for the respective parties on the question of interest, namely, the entitlement, quantum and the date from which such interest is required to be granted which would amount to giving a fresh opportunity to the petitioner to argue on a point which though, could have been argued, was not argued at the relevant time when the case was heard, which would be beyond the scope of a review petition. Therefore, even while accepting the submission of the learned counsel for the petitioner that the findings recorded by this court in paragraph 19 of the judgment are inconsistent with each other, it would not be possible for this court to grant the relief prayed for in the application as it would entail long drawn arguments on the question of entitlement, rate of interest as well as the point of time from which such interest should be granted which would be beyond the scope of a review application. 18. In the light of the above facts and circumstances, this court is not inclined to entertain the review application. The application, therefore, fails and is, accordingly, rejected. Rule is discharged with no order as to costs.
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