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CASE NO.: Appeal (civil)  804 of 2005

PETITIONER: S.N.S. (Minerals) Ltd. and Anr

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 27/02/2007

BENCH: Dr. ARIJIT PASAYAT & TARUN CHATTERJEE

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

       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

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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."

       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.  

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.  

       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.  

       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.  

       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.  

       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

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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."    

       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 Ors. (2006 (4) SCC 78) it was held as follows:

"13. In order to appreciate the scope of a  review, Section 114 of the CPC 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 CPC 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,  Anantapur, [AIR 1964 SC 1372] 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

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no two opinions entertained about  it, a clear case of error apparent on  the face of the record would be  made out."

       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.  

       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.   

The appeal is accordingly dismissed with no order as to  costs.