Ruchi Infrastructure Limited v Union of India and Commissioner of Customs, Cochin

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 29TH DAY OF JULY 2016/7TH SRAVANA, 1938 RP.No. 985 of 2015 (Y) IN OP.25199/2001 ----------------------------------------- AGAINST THE JUDGMENT IN OP No.25199/2001 of HIGH COURT OF KERALA DATED 01-10.2015 ## REVIEW PETITIONER/PETITIONERS: ------------------------------------------------------- RUCHI INFRASTRUCTURE LIMITED WITH ITS REG.OFFICE AT 706, TULSIAN CHAMBERS, 212 NARIMAN POINT, MUMBAI 400021, WITH ITS ADMINISTRATIVE OFFICE AT SURYA APARTMENTS, 5/2,SOUTH TUKOGANJ, NATH MANDIR ROAD, INDORE-452001, REP BY ITS MANAGER THOMAS BABY BY ADV. SRI.GEORGE POONTHOTTAM ## RESPONDENTS/RESPONDENTS: ----------------------------------------------- ## 1. UNION OF INDIA REP BY THE SECRETARY IN THE MINISTRY OF FINANCE(DEPARTMENT OF REVENUE) NORTH BLOCK, NEW DELHI 110001 ## 2. COMMISSIONER OF CUSTOMS COMMISSIONERATE OF CUSTOMS, COCHIN KERALA - 682018 R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL OF INDIA R2 BY ADV. SRI.THOMAS MATHEW NELLIMOOTTIL,SC,CB EX THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 29-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ANIL. K. NARENDRAN, J ------------------------------------R.P.No.985 of 2015 in O.P. No.25199 of 2001** **-------------------------------------Dated this the 29[th] Day of July, 2016** ## **ORDER** The petitioner in this Review Petition has filed O.P.No.25199 of 2001 mainly seeking a writ of certiorari to quash Ext.P6 notification dated 03.08.2001 and a declaration that the goods imported by the petitioner, in respect of which duty has been paid on 06.07.2001, 23.07.2001, 24.07.2001 and 04.08.2001 are entitled to be released without payment of any further duty pursuant to Ext.P6 notification. 2. The said Original Petition was disposed of by the judgment dated 01.10.2015. Paras.23 to 27 of the judgment read thus; “ **23.** In the case on hand, the Apex Court in its order dated 05.05.2015 in Civil Appeal Nos.7801-7811 of 2004 has held that, Notification No.36/2001-CUS (NT) dated 03.08.2001 (Ext.P6) came into force only on 06.08.2001, in as much as it was offered for sale only on that date. In view of the law declared by the Apex Court in its order dated 05.05.2015 in Civil Appeal Nos.7801-7811 of 2004, Ext.R1(b) Circular No.22/2001 issued by the Deputy Commissioner of Customs (Tariff R.P.No.985 of 2015 -:2:- Unit), Cochin dated 06.08.2001 and Ext.R1(b)(2) Circular No.46/2001-CUS dated 10.08.2001 of the Central Board of Excise and Customs have no existence in law and therefore, can only be ignored. **24.** As I have already noticed, the fact that the warehousing of the subject consignment was in a private bonded warehouse at Wellingdon Island, Cochin, is not in dispute. The fact that the petitioner paid duty in respect of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and that duty in respect of ExBond Bill of Entry No.3407 dated 03.08.2001 was paid on 04.08.2001, are also not in dispute. The duty in respect of Ex-Bond Bills of Entry Nos.3199 and 3407 dated 23.07.2001 and 03.08.2001 respectively, were paid in cash on 24.07.2001 and 04.08.2001 respectively. As held by the Apex Court in Biecco Lawrie Ltd.'s case (supra), the clearance of warehouse goods for home consumption under Section 68 of the Act will be complete once duty on warehoused goods is paid and 'out of charge' order for home consumption is made by the proper officer in compliance of the provisions of said Section. Further, as held by the Apex Court in Priyanka Overseas (P) Ltd.'s case (supra), if the goods are in private warehouse the date of cancellation of the licence of the private warehouse should be taken as the actual removal of the goods for the purposes of Section 15(1) (b) of the Act. **25.** In that view of the matter, the conclusion is R.P.No.985 of 2015 -:3:- irresistible that, if the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act and the licence of the private warehouse stood cancelled before 06.08.2001, the date of which Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 issued by the 1[st] respondent fixing the tariff value of RDB Palmolein at US$ 372 came into force, the petitioner cannot be held liable to pay differential duty in respect of the balance quantity of 1318.150 MTs out of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and 2540.346 MTs out of Ex-Bond Bill of Entry No.3407 dated 03.08.2001, in respect of which duty has been paid by cash on 04.08.2001. **26.** In the result, this Original Petition is disposed of declaring that, if the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act and the licence of the private warehouse stood cancelled before 06.08.2001, the date of which Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 issued by the 1[st] respondent came into force, the petitioner cannot be held liable to pay differential duty in respect of the balance quantity of 1318.150 MTs out of Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid on 06.07.2001, 23.07.2001 R.P.No.985 of 2015 -:4:- and 24.07.2001 respectively, and 2540.346 MTs out of Ex-Bond Bill of Entry No.3407 dated 03.08.2001, in respect of which duty has been paid by cash on 04.08.2001. **27.** If the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act in respect of the balance quantity of the subject consignment and the licence of the private warehouse stood cancelled before 06.08.2001, the 2[nd] respondent shall pass appropriate orders releasing the bank guarantee/bond for the differential duty amount furnished by the petitioner in terms of the orders of this Court dated 22.08.2001 in I.A.No.41099 of 2001 and that dated 24.08.2001 in I.A.No.41323 of 2001, within a period of one month from the date of receipt of a certified copy of this judgment.” 3. Seeking review of the judgment dated 01.10.2015 in O.P.No.25199 of 2001 the petitioner is before this Court in this Review Petition, contending that there is error apparent on the face of the record. 4. Heard arguments of the learned Senior Counsel for the petitioner and the learned Standing Counsel for the Central Board of Excise and Customs, representing the respondents. The learned counsel for the petitioner has also filed a written submission, a copy of which was served on the learned R.P.No.985 of 2015 -:5:- Standing Counsel for the Central Board of Excise and Customs, on 17.05.2016. As requested by the learned Standing Counsel time was granted to get further instructions, if any, from the Department. 5. The petitioner would contend that, in the impugned judgment, this Court misread the ratio of the decision of the Apex Court in **Priyanka Overseas (P) Ltd. v. Union of India [1991 (51) ELT 185 (SC) : 1991 Supp (1) SCC 102]** and on account of such misinterpretation the petitioner will be entitled for the relief only if the licence of the private warehouse stood cancelled before 06.08.2001, besides the petitioner having obtained 'out of charge' order under Section 68 of the Customs Act, 1962. Per contra, the respondents would contend that, the petitioner has not made out a case for the exercise of the review jurisdiction. 6. In **Parsion Devi and others v. Sumitri Devi and others (1997 (8) SCC 715)** the Apex 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 can be corrected by exercise of the review jurisdiction. Later, in **Lily Thomas v.** R.P.No.985 of 2015 -:6:- **Union of India (2000 (6) SCC 224)** the Apex Court held that, the power of review can be exercised for correction of a mistake but not to substitute a view. The review cannot be treated like an appeal in disguise. The mere possibility of two views on the subject is not a ground for review. 7. In **Board of control for Cricket in India v. Netaji Cricket Club (2005 (4) SCC 741)** , a decision cited by the learned Senior Counsel for the petitioner, the Apex Court held that, an application for review under Order XLVII Rule 1 of the Code of Civil Procedure, 1908 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. 8. In **Usha Bharti v. State of U.P. (2014 (7) SCC 663)** the Apex Court had occasion to consider the scope and limitations of the power of review under Order XLVII Rule 1 of the Code. After referring to the Three Judge Bench decision in **S.Nagaraj v. State of Karnataka (1993 Supp (4) SCC 595)** and the subsequent decisions in **Green View Tea & Industries v. Collector (2004 (4) SCC 122)** and in **Board** R.P.No.985 of 2015 -:7:- **of control for Cricket in India** (referred to supra), the Apex Court held that, in exercise of the power of review the Apex Court of the High Court can reopen the case and rehear the entire matter. But, whilst exercising such power the Court cannot be oblivious of the provisions contained in Order XLVII Rule 1 of the Code as well as the rules framed by the High Courts and the Apex Court. The limits within which the Courts can exercise the powers of review have been well settled in a catena of judgments. 9. Though Ext.P6 notification dated 06.08.2001 was also under challenge in O.P.No.25199 of 2001, during the pendency of the Original Petition the Apex Court in its order dated 05.05.2015 in Civil Appeal Nos.7801-7811 of 2004 held that, the said notification came into force only on 06.08.2001, in as much as it was offered for sale only on that date. In view of the said order of the Apex Court, the learned Senior Counsel for the petitioner not pressed the challenge made against Ext.P6 notification and the only issue decided in the Original Petition was as to whether it was lawful on the part of the 2[nd] respondent in demanding differential amount of duty on the basis of Ext.P6 notification dated 03.08.2001, on the balance R.P.No.985 of 2015 -:8:- quantity of the subject consignment covered by Ex-Bond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, the duty in respect of which has already been paid and accepted on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and on the subject consignment covered by Ex-Bond Bill of Entry No.3407 dated 03.08.2001, the duty in respect of which has already been paid and accepted on 04.08.2001. 10. By judgment dated 01.10.2015, the Original Petition was disposed of after referring to various decisions of the Apex Court. In Paras.17 and 18 of the judgment, the decision of the Apex Court in Priyanka Overseas (P) Ltd.'s case (supra) has been dealt with. Paras.17 and 18 of the judgment is extracted hereunder; “ **17.** In **Priyanka Overseas (P) Ltd. v. Union of India [1991 (51) ELT 185 (SC) : 1991 Supp (1) SCC 102]** the Apex Court held that, if the Bills of Entry were filed under Section 68 of the Customs Act and the Customs Officer refused to allow release of the goods on an erroneous assumption, the revised rate of duty would not be applicable and the rate of duty applicable would be the rate on date of filing the Ex-Bond Bill of Entry. Paras 32 and 36 of the judgment read thus; 32. xxx xxx xxx R.P.No.985 of 2015 -:9:- 36. xxx xxx xxx” **18.** In Priyanka Overseas (P) Ltd.'s case (supra) the Apex Court held further that, whenever the Customs authorities permit storage of imported goods in a private warehouse, the provisions of Sections 58, 59, 68 and 73 of the Act would be applicable. After referring to Para.15 of the Central Manual published by the Director of Publications, Customs and Central Excise, which contains directions for determining the actual date of removal of goods from warehouse in terms of Section 15(1)(b) of the Act, the Apex Court held that, for purposes of Section 15(1)(b) of the Act, if the goods are in private warehouse the date of cancellation of the licence of the private warehouse should be taken as the actual removal of the goods for the purposes of Section 15(1) (b) of the Act. Merely because the officer failed to discharge his duties by making illegal demand for deposit of redemption fine the appellant therein could not be held liable to pay duty. Paras.38 and 39 of the judgment read thus; 38. xxx xxx xxx 39. xxx xxx xxx” 11. Similarly, the decision of the Apex Court in ## **Commissioner of Customs, Calcutta v. Biecco Lawrie Ltd.** **[2008 (223) ELT 3 (SC) : 2008 (3) SCC 264]** has been dealt with in Para.20 of the judgment, which is extracted hereunder; R.P.No.985 of 2015 -:10:- “ **20.** In Biecco Lawrie Ltd.'s case (supra) the Apex Court held that, clearance of warehouse goods for home consumption under Section 68 of the Act will be complete once duty on warehoused goods is paid and 'out of charge' order for home consumption is made by the proper officer in compliance of the provisions of said Section. On clearance for home consumption the goods ceased to be imported goods within the meaning of the Act and the provisions of Section 15(1)(b) could not be applicable. When the full duty stood paid and the Customs Officer had also permitted clearance of the goods, such goods cannot be held to be warehoused goods merely for the reason that the same were allowed to be kept in the warehouse on account of an application made in terms of the provisions of Section 49 of the Act. The Apex Court held further that, where duty on the warehoused goods is paid and out of charge order for home consumption was made by the proper officer in compliance of the provisions of Section 68 of the Act, the goods removed in smaller lots have to be treated as cleared for home consumption. ............ ” 12. It was after taking note of the principles laid down in the decisions of the Apex Court referred to supra, the Original Petition was disposed of by judgment dated 01.10.2015, declaring that, if the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act and the licence of R.P.No.985 of 2015 -:11:- the private warehouse stood cancelled before 06.08.2001, the date on which Ext.P6 notification No.36/2001-CUS (NT) dated 03.08.2001 issued by the 1[st] respondent came into force, the petitioner cannot be held liable to pay differential duty in respect of the balance quantity of 1318.150 MTs out of ExBond Bills of Entry Nos.2915, 3167 and 3199 dated 04.07.2001, 20.07.2001 and 23.07.2001 respectively, in respect of which duty has been paid on 06.07.2001, 23.07.2001 and 24.07.2001 respectively, and 2540.346 MTs out of Ex-Bond Bill of Entry No.3407 dated 03.08.2001, in respect of which duty has been paid by cash on 04.08.2001. It was also ordered that, if the petitioner had obtained 'out of charge' order for home consumption issued by the proper officer in compliance of Section 68 of the Act in respect of the balance quantity of the subject consignment and the licence of the private warehouse stood cancelled before 06.08.2001, the 2[nd] respondent shall pass appropriate orders releasing the bank guarantee/bond for the differential duty amount furnished by the petitioner in terms of the orders of this Court dated 22.08.2001 in I.A.No.41099 of 2001 and that dated 24.08.2001 in I.A.No.41323 of 2001, within a period of one R.P.No.985 of 2015 -:12:- month from the date of receipt of a certified copy of the judgment. Therefore, I find no merit in the contention that, in the judgment dated 01.10.2015 in O.P.No.25199 of 2001 this Court misread the ratio of the decision in Priyanka Overseas (P) Ltd.'s case referred to supra. In the result, the Review Petition fails and the same is dismissed. No order as to costs. Sd/- **ANIL.K.NARENDRAN,** dsn True copy P.S. to Judge