The Chief Commissioner of Customs and Others vs Himachal Exim and Others

S. Vaidyanathan, J.—As the order dated 03.02.2015 passed by this Court in W.P. No.32237 of 2014 is the subject matter in both Review Petition as in the Contempt Petition, both the Petitions are taken up for disposal by this common order.

While the Customs Department has taken up the Review Petition seeking to review the order, dated 03.02.2015 passed by this Court in W.P. No.32237, M/s. Himachal Exim, who had the benefit of the order dated 24.10.2014 passed by the Commissioner of Appeals (Appeals-II), Chennai, has come up with the Contempt Petition seeking to punish the respondents/Customs Department for disobedience of the above order dated 03.02.2015 of 2014, wherein, this Court observing that the order of the Appellate Authority has become final, directed the respondents/Customs Department to release the goods covered under the Bills of Entry, dated 07.01.2013.

For the sake of convenience, the parties are hereinafter referred to as ''M/s. Himachal Exim'' and ''Customs Department''.

The order dated 03.02.2015 passed by this Court in W.P. No.32237 of 2014, which is under challenge, would read thus:

''''2. It is not in dispute that the order has become final and no further appeal has been filed against the said order by the Department. Since the order has become final, the respondents are directed to release the goods covered under Bills of Entry No. 8060783 and 8960784 both dated 07.01.2013 in terms of the order of Commissioner (Appeals-II), Chennai, vide Order in Appeal in C.Cus-II No. 3/2014 dated 24.10.2014, within a period of four weeks from the date of receipt of copy of this order. The writ petition is ordered accordingly. No costs. The connected miscellaneous petition is closed."

Mr.B.Satish Sundar, learned Counsel for the Contempt Petitioner, i.e. M/s. Himachal Exim would submit that the order of the Appellate Authority viz. The Commissioner of Customs (Appeals-II), Chennai, dated 24.10.2014 was received by M/s. Himachal Exim on 28.10.2015. He would contend that when the Customs Department has not preferred any appeal on the said order within the period of preferring an appeal, naturally, they ought to have implemented the said order and that they have committed contempt of court by not implementing the order dated 03.02.2015 passed by this Court in W.P. No.32237 of 2014. It is his further submission that without making any reference about the said order made in W.P. No.32237 of 2014, the Customs Department preferred an appeal before the Tribunal and the Tribunal has granted an interim order; thereafter, when it was brought to the notice of the Tribunal that there is an order of this Court in W.P. No.32237 of 2014, the interim order passed by the Tribunal was recalled and the matter was kept in abeyance.

It is the further contention of the learned counsel for the Contempt Petitioner that the fact that interim order passed by the Tribunal has been recalled clearly shows that the Department has not acted in accordance with law. According to him, the Customs Department, if aggrieved by the order dated 03.02.2015 passed by this Court, should have preferred a Writ Petition and should not have been waiting to file a Review Petition, more particularly after filing an appeal before the Tribunal by not disclosing the order dated 03.02.2015 made by this Court in W.P. No.32237 of 2014. He would strenuously contend that the power of review can be exercised for correction of a mistake and not to substitute a view.

Mr.B.Satish Sundar, learned counsel appearing for M/s. Himachal Exim, in support of his case, has relied on the following decisions:

(i) A.C. Estates Vs. Serajuddin and Co. and Another,

10.... Our attention in this connection is drawn to Section 29(5) of the Act which gives power to the Controller to review his orders on the conditions laid down under Order 47 of the Code of Civil Procedure. But this cannot be a case of review on the ground of discovery of new and important matter, for such matter has to be something which exist at the date of the order and there can be no review of an order which was right when made on the ground of the happening of some subsequent event.

...

Section 29(5) further gives power to the Controller to act under Section 151 or Section 152 of the Code of Civil Procedure. Section 152 has no application in the present case for there is no clerical or arithmetical mistake here. Nor can the Controller in our opinion set aside an order which was right when it was made, under Section 151 of the Code of Civil Procedure as there is no question in such circumstances of subserving the ends of justice or preventing the abuse of the process of the court. We are therefore of opinion that the Controller had no power to set aside the order that had been made on August 9, 1956 for it was right when it was made. The view taken by the High Court in this connection is correct."

(ii) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

"3.... While answering that preliminary objection raised in that case, his Lordship referred to Articles 226 and 227 of the Constitution and considered that the High Court is a Court of plenary jurisdiction and therefore was in a position always to prevent miscarriage of justice or to correct grave and palpable errors committed by it. No one can quarrel with this proposition. The High Court may have power and jurisdiction to correct its own error and perhaps the plea may not be sustainable that a decision of the High Court in a revision under S.50 of Karnataka House Rent Control Act, 1961, was not per se subject to review."

(iii) Hem Narain Singh and Others Vs. Ganesh Singh and Others-->

"8. Learned counsel in support of the review application has placed reliance on the decision of Moran Mar Basselios Catholicos and Another Vs. The Most Rev. Mar Poulose Athanasius and Others, which is also reported in 1955 SC 520 . In that case, the expression "errors apparent on the face of the record" have been construed to mean that it is an error apparent oh the face of the record, if the judgment under review does not deal effectively and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. In the instant case, the said analogy cannot be applied inasmuch as the learned Judge dismissing the second appeal has dealt with the question of abatement and has come to the conclusion that the suit has abated as a whole. Whether that conclusion is erroneous or not cannot be reopened in the review petition in view of the accepted legal position since the decision of Privy Council in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) .

(iv) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement". It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise. It cannot be denied that justice is a virtue which transcends all barriers and the rules or procedures or technicalities of law cannot stand in the way of administration of justice. Law has to bend before justice. If the Court finds that the error pointed out in the review petition was under a mistake and the earlier judgment would not have been passed but for erroneous assumption which in fact did not exist and its perpetration shall result in a miscarriage of justice nothing would preclude the Court from rectifying the error. This Court in S. Nagaraj v. State of Karnataka held: (SCC pp. 619-20, para 19)

"19. Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law the courts and even the statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice. Even when there was no statutory provision and no rules were framed by the highest court indicating the circumstances in which it could rectify its order the courts culled out such power to avoid abuse of process or miscarriage of justice. In Raja Prithwi Chand Lal Choudhury v. Sukhraj Rai the Court observed that even though no rules had been framed permitting the highest court to review its order yet it was available on the limited and narrow ground developed by the Privy Council and the House of Lords. The Court approved the principle laid down by the Privy Council in Rajunder Narain Rae v. Bijai Govind Singh that an order made by the Court was final and could not be altered:

''... nevertheless, if by misprision in embodying the judgments, errors have been introduced, these courts possess, by common law, the same power which the courts of record and statute have of rectifying the mistakes which have crept in.... The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority. The Lords have however gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects in order to enable the decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.''

Basis for exercise of the power was stated in the same decision as under:

''It is impossible to doubt that the indulgence extended in such cases is mainly owing to the natural desire prevailing to prevent irremediable injustice being done by a court of last resort, where by some accident, without any blame, the party has not been heard and an order has been inadvertently made as if the party had been heard.''

Rectification of an order thus stems from the fundamental principle that justice is above all. It is exercised to remove the error and not for disturbing finality. When the Constitution was framed the substantive power to rectify or recall the order passed by this Court was specifically provided by Article 137 of the Constitution. Our Constitution-makers who had the practical wisdom to visualise the efficacy of such provision expressly conferred the substantive power to review any judgment or order by Article 137 of the Constitution. And clause (c) of Article 145 permitted this Court to frame rules as to the conditions subject to which any judgment or order may be reviewed. In exercise of this power Order XL had been framed empowering this Court to review an order in civil proceedings on grounds analogous to Order 47 Rule 1 of the Civil Procedure Code. The expression, ''for any other sufficient reason'' in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power. Apart from Order XL Rule 1 of the Supreme Court Rules this Court has the inherent power to make such orders as may be necessary in the interest of justice or to prevent the abuse of process of court. The Court is thus not precluded from recalling or reviewing its own order if it is satisfied that it is necessary to do so for sake of justice."

(v) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

''''14. The scope of powers of review, which the High Court can exercise, have been succinctly stated by the Apex Court in the case of Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) in the following terms:

"The review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of O. 47, R. 1 of C.P.C. The review petition has to be entertained only on the ground of error apparent on the face of record and not on any other ground. An error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably be two opinions. The limitations of powers of Court under O. 47, R. 1 , C.P.C. is similar to the jurisdiction available to the High Court while seeking review of the orders under Article 226 ."

Therefore, it is well settled there a mere erroneous decision per se does not permit the Court to undertake review. The review jurisdiction can be exercised only on the ground of error apparent on the face of the record and not on any other ground. Thus, applying the said principles. It is not possible to accept the contention raised in this application."

(vi) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

From the above judgments, it is seen that the law is well settled inasmuch as the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. If the parties aggrieved by the judgment on the ground that it is erroneous, remedy is only questioning the said order in appeal. The power of review under Order 47, Rule 1 , CPC may be opened inter alia, only if there is a mistake or an error apparent on the face of the record. The said power cannot be exercised as is not permissible for an erroneous decision to be ''''reheard and corrected". A review application also cannot be allowed to be "an appeal in disguise". Similarly, the error apparent on the face of the record must be such an error, which must strike one on mere looking at record and would not require any long drawn process of reasoning on points, where there may conceivably be two opinions.

Based on the above principle of law, we are not inclined to accede to the contention of the review applicants insofar as the relief of review by the placing reliance on the time taken by the appellants from the date of return of the copy application and the date of filing the writ petition.

...

The period taken by the appellants to file writ petitions also may have bearing in computing the period as the objectors cannot be allowed to take their own time to file writ petition. However, for the reasons as to our limited power of exercise of review our order in setting aside the grant on the ground that the revision petitions were maintainable, we are not inclined to review our order by adding the number of days taken by the writ appellants for fling the writ petitions after the copy application was received. As in that event, our order would be completely reversed.

In reply, Mr. Rajnish Pathiyil, learned Senior Central Government Standing Counsel appearing for the Customs Department, would submit that the order dated 24.10.2014 passed by the Appellate Authority has been received by the department on 18.11.2014 and that the Department had time till 17.2.2015 to prefer an appeal; that they have preferred an appeal before the Tribunal within time and that the original interim order granted was subsequently withdrawn taking note of the order passed by this Court in W.P. No.32237 of 2014, in which the Department is facing contempt proceedings. He further submitted that the Customs Department has preferred a Review Petition of the order dated 03.02.2015 made in W.P. No.32237 of 2014. He would further contend that the order, dated 3.2.2015 is misconceived since it has been passed by this Court with an observation that the order of the Commissioner (Appeals-II) has become final as no appeal was preferred by the department, however, this Court has not considered the fact that there was still appeal time till 17.2.2015 and the Department could file appeal within the said time, however, the order, dated 3.2.2015 has been passed even before expiry of the appeal time and hence, the order of the Commissioner (Appeals-II) has virtually not become final. He would point out that in the mean time, the department has filed the appeal on 17.2.2015 and since it was well within the time, the said appeal was taken on file by the Tribunal and the Tribunal has passed the interim order, however, later it was recalled pursuant to the contempt proceedings. It is also his contention that since appeal is pending before the Tribunal, M/s. Himachal Exim will have to face the proceedings before the Tribunal and that the time to prefer an appeal was still available was not brought to the notice of this Court and the Review is maintainable in view of Order 47 Rule 1 C.P.C. He would further contend that there are ample fair chances available for the department to succeed in the appeal and merely based on the order of this Court, dated 3.2.2015 which was not on merits, but only with an observation as stated above, M/s. Himachal Exim cannot be permitted to take advantage to get rid of from the irregularities committed by it in the matter of consignments and when the matter was not decided on merits and pending before the Tribunal, absolutely no contempt would lie against the department. He pointed out that if the review is not allowed by this Court, the department will be deprived of its right of appeal before the Tribunal and it would become infructuous. Therefore, the learned counsel sought for review of the order and in case, if this Court comes to the conclusion that no review is maintainable, atleast direct the parties to work out their remedies before the Tribunal by closing the present proceedings. In support of his contentions, the learned counsel relied upon the following decisions, viz.,

a) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

"Order 47, Rule 1 of the Code provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason.

It may allow a review on three specified grounds, namely (i) discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant''s knowledge or could not be produced by him at the time when the decree was passed, (ii) mistake or error apparent on the face of the record and (iii) for any other sufficient reason. It has been held by the Judicial Committee that the words "any other sufficient reason" must mean "a reason sufficient on grounds, at least analogous to those specified in the rule.",

b) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it.

The power of review may be exercised of the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground.

In the case at hand, as the factual score has uncurtained, the application for review did not require a long drawn process of reasoning. It did not require any advertence on merits which is in the province of the appellate court. Frankly speaking, it was a manifest and palpable error. A wrong authority which had nothing to do with the lis was cited and that was conceded to.

An already existing binding precedent was ignored. At a mere glance it would have been clear to the writ court that the decision was rendered on the basis of a wrong authority. The error was self evident. When such self-evident errors come to the notice of the court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction Under Article 226 of the Constitution, a grave miscarriage of justice occurs. In appeal the Division Bench, we assume, did not think even necessary to look at the judgments and did not apprise itself the fact that an application for review had already been preferred before the learned Single Judge and faced rejection. As it seems, it has transiently and laconically addressed itself to the principle enshrined in Section 96(3) of the Code of Civil Procedure, as a consequence of which the decision rendered by it has carried the weight of legal vulnerability."

c) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

"21. Order 47 Rule 1 of Code of Civil Procedure provides for review of the judgment. Rule 1 of Order 47 reads thus:

"1. 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 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,

and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order."

Order 47 permits the aggrieved to file a review on account of discovery of new and important matter or evidence which was not within his knowledge, in spite of due diligence. It also provides for review on account of some mistake or error apparent on the face of the record. The third ground permits the aggrieved to file a review ''for any other sufficient reason''.

There is no definition for the term ''for any other sufficient reason''. The Court has to consider the grounds raised by the applicant to decide as to whether those reasons would constitute "sufficient reason" for the purpose of exercising review jurisdiction.

d) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

The view expressed in Amarjeet Singh was followed by the Supreme Court in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) . Supreme Court on Review Jurisdiction:

The Supreme Court in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) indicated the concept of review jurisdiction thus:

"18. Justice is a virtue which transcends all barriers. Neither the rules of procedure nor technicalities of law can stand in its way. The order of the Court should not be prejudicial to anyone. Rule of stare decisis is adhered for consistency but it is not as inflexible in Administrative Law as in Public Law. Even the law bends before justice. Entire concept of writ jurisdiction exercised by the higher courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court."

35.....

36.....

The Supreme Court in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) , indicated the importance of acceptance of mistake. The Supreme Court said:-

"non acceptance of a mistake is not a heroic deed. On the contrary, it reflects flawed devotion to obstinacy. The "pink of perfection" really blossoms in acceptance.

The Supreme Court in Surendra Mohnot observed that when self evident errors come to the notice of the Court and they are not rectified in exercise of review jurisdiction or jurisdiction of recall which is a facet of plenary jurisdiction under Article 226 of the Constitution of India, a grave miscarriage of justice would occur.

The jurisdiction under Article 226 of the Constitution of India is otherwise known as "Equity jurisdiction". This Court is having plenary jurisdiction. Justice is above all. Technicality should not stand in the way of rectifying errors or mistakes.

The learned counsel for 2nd respondent contended that scope of review is very limited after the dismissal of Special Leave Petition. According to the learned counsel, by giving liberty, the Supreme Court has not conferred any special right on the petitioners. The learned Additional Solicitor General in his reply submitted that an order dismissing the Special Leave Petition in limine would not constitute a decision on merits and as such, review is maintainable even after such dismissal. According to the learned Additional Advocate General, the petitioners are in a better position, in view of the liberty granted by Supreme Court. The Supreme Court has thus made the law clear that review petition is maintainable even after dismissal of Special Leave Petition. In the present case, the Supreme Court granted liberty to the petitioners to file a review petition. The review would come within the four corners of Order 47 Rule 1 of Code of Civil Procedure and the parameters indicated by the Supreme Court. We are therefore of the view that this is a fit case to exercise the review jurisdiction, as otherwise, it would result in injustice not only to the petitioners but also to the Language Teachers, who are not before us.

e) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

" 17. A survey of the authorities with regard to jurisdiction of the court to review its order and judgment makes it clear that although the review jurisdiction should be exercised cautiously and sparingly only when substantial case of miscarriage of justice is made out but at the same time the grounds laid down under Order 47 of Code of civil Procedure cannot be put in a straitjacket formula. There can be no wrangle on the legal position that a party cannot seek review of a judgment on merit or on the plea that the judgment is de-horse to the pleadings etc. In other words, review is permissible only if (i) there is discovery of new evidence; (ii) there is some mistake or error apparent on the face of the record and (iii) there is any other sufficient reason. The view taken by the Hon''ble Privy Council that the "sufficient reason" must have nexus with other grounds v. enumerated under Order 47 Rule 1 of Code of Civil Procedure has also been approved in the case of Kamal Sengupta (supra).

f) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council)

"22. In yet another decision in Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) , the Supreme Court held that law is well settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent miscarriage of justice. Power of judicial review extends to correct all errors to prevent miscarriage of justice. It was further held that Courts should not hesitate to review their own earlier order, when there exists an error on the face of record and the interest of justice so demands in appropriate cases.

In Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) , held that,

"14. At this stage it is apposite to observe that where a review is sought on the ground of discovery of new matter or evidence, such matter or evidence must be relevant and must be of such a character that if the same had been produced, it might have altered the judgment. In other words, mere discovery of new or important matter or evidence is not sufficient ground for review ex debito justitiae. Not only this, the party seeking review has also to show that such additional matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the Court earlier.

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. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22(3)(f) of the Act. To put it differently an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision."

" 24. In the light of the above decisions, the common order made in W.P. Nos. 23141 and 34581 of 2004, dated 24.07.2012, requires to be reviewed. W.P. No. 34581 of 2004 is dismissed. As the impugned order, dated 01.07.2004 was only temporary in nature, subject to the disposal of suit in O.S. No. 142 of 2003 and the outcome of the order passed in C.R.P. No. 2050 of 2003, the impugned order loses its effect, after the trial of the suits, which ended in favour of M/s. V.G.P. Housing (P) Ltd., as stated supra. Directions issued in W.P. No. 23141 of 2004, to remove the alleged encroachment, is withdrawn. In view of the above, the present review petition is allowed.

As stated supra, it is the contention of the Tahsildar, Sholinganallur, on the application made by the review petitioner for separate patta, pattas have been issued in Survey Nos. 15/199B and 15/199C of Injampakkam Village, Sholinganallur Taluk and that there is no willful disobedience of the order of this Court. Accepting the statement, the present Contempt Petition is closed.

g) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) ,

"In my opinion, the principles set down in O. 47 R. I .C.P. code may be employed by way of analogy, and a case of review directly covered under the provision would nevertheless be considered a case of plenary jurisdiction for correction of grave palpable error committed by the court. With that point of view, one has to refer to the previsions contained in O. 47, R. 1 , of the C.P. Code and the learned counsel for the respondents pointed out that in the present case, the petitioner neither discovered any new and important matter nor evidence which was not within the knowledge of either party nor some mistake or error apparent on the face of the record, nor any other sufficient reason, so that it could be held that there was a grave and apparent error in the judgment of the court, Sri Sekhara Setty, the learned counsel on the other hand urged, that the contentions as to the mistake or error apparent an the face of the record, or as to the case having other sufficient reason for review are satisfied and therefore even under O. 47, R. 1 of the C.P. Code, a case of review is made out."

i) Chhajju Ram vs. Neki and OthersAIR 1922 112 (Privy Council) ,

(Already referred above)

Heard the learned counsel on either side and perused the entire materials placed before this Court.

Having heard the learned counsel and on going through the entire facts, I find considerable force in the contention of the learned counsel for the customs department. It is settled law that the power of review is available only when there is an error apparent on the face of the record and not on erroneous decision. The review cannot be allowed to be ''an appeal in disguise''.

Before dealing with the review, this Court feels it appropriate to first deal with the contempt proceedings. In the given facts and circumstances, it has to be decided as to whether the failure of the customs department to comply with the order, dated 3.2.2015 passed by this Court would amount to contempt.

At the out set, it is to be noted that there is no apparent error on the face of the record since order passed by this Court, dated 3.2.2015 does not suffer from any infirmity. It has been passed solely taking note of the fact that as on the date of the order, there was no appeal preferred by the customs department against the order of the Commissioner (Appeals) and thus, it had become final, which, as rightly contended by the learned counsel for the customs department, was virtually misconceived since, though there was no appeal by the department, but, it has to be noted that for the department, still there was time to prefer the appeal and when the order is subjected to appeal, it cannot be construed that it has become final and failure to comply with the said order by the customs department, in my opinion, does not amount to contempt. The Commissioner (Appeals-II) has passed the order on 24.10.2014 setting aside the findings of the Commissioner of Customs, which was admittedly received by the customs department on 18.11.2014. As per Section 129(a), the customs department has time till 17.2.2015 to file an appeal before the Tribunal and it is to be noted that even after expiry of the said period of three months, the Customs Department can invoke Section 129(a)(5) of the Act seeking to condone the delay and if it satisfies the Tribunal that there is sufficient cause in not presenting it within the prescribed appealable time, the Tribunal can condone the delay and take the appeal on file. Therefore, when the statute provided a right of preferring statutory appeal to the customs department, such right should not be deprived of by mere technicalities. In fact, right from the inception, the case of the customs department against the Ms/.Himachal Exim is that it had imported two consignment with grave irregularities and the importer in their statement dated 3.6.2013 and in their letter dated 17.6.2013 have categorically admitted that shoes are fake and not of original brands, viz., "Adidas & Nike", but they are duplicate and likewise, as regards the consignment of eye brow pencils, there is discrepancy. Though the customs department failed to establish the irregularities before the Commissioner of Appeals-II, however, they are still having fair chance to establish the same before the Tribunal by way of appeal, which has been rightly filed by the department before the Tribunal and in fact, on consideration of the said appeal regarding prima facie materials, the Tribunal has passed the interim order against the order of the Commissioner (Appeals-II), however, taking note of the present contempt and review proceedings, the said order came to be recalled. Hence, as rightly contended by the learned counsel for the Customs Department, there is absolutely no contempt that would lie against the customs department. Therefore, when this Court comes to a conclusion that there is not contempt of Court committed by the customs department, it is not appropriate to proceed with the contempt proceedings against the customs department.

As regards the review, though there is no apparent error on record since the order does not suffer from any infirmity, however, taking note of the fact that it has been passed solely with the observation that there was no appeal preferred by the department on the date of the order under review and thereby the impugned order has become final, which as rightly contended by the learned counsel for the customs department, is virtually misconceived and cannot be sustained. Further, it is to be noted that even the statute has prescribed time limit for preferring the appeal, which admittedly, is available to the customs department till 17.2.2015, however, the order under review has been passed as if the order impugned in the writ petition has become final since there was no appeal by that time, which is factually incorrect and further, the period prescribed for filing appeal in the statute is still available to the customs department. It is to be noted that on several occasions, taking note of the fact that the writ petitions are pending without exhausting the appeal remedy, this Court has passed orders directing the Tribunal to consider the appeal even after expiry of appeal time without insisting upon limitation aspect. But the issue in these matters is different, where the appeal time is still available to the customs department, which this Court cannot curtail the same and prevent the customs department to agitate the matter before the appellate authority.

In view of the above discussion and also considering the fact that as on date, the statutory appeal preferred by the customs department as against the order impugned in the writ petition, is pending before the Tribunal and the matter requires to be disposed of on merits, this Court feels it appropriate to pass the following:

The parties are directed to participate in the appeal proceedings pending before the Tribunal and workout their remedy. The Tribunal is directed to dispose of the appeal as expeditiously as possible after affording opportunity to both sides.

With above observation, these Review Application as well as the Contempt Petition are disposed of. No costs.