State of Kerala v. M.R.F. Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY, THE 10TH DAY OF AUGUST 2017/19TH SRAVANA, 1939** **RP.No. 454 of 2017 () ---------------------** **JUDGMENT IN ST.REV.NO.262/2006 DATED 06.01.2016 .** **........** **REVIEW PETITIONERS/RESPONDENT IN THE ST.REVN:** **---------------------------------------------** **STATE OF KERALA, REPRESENTED BY JOINT COMMISSIONER (LAW), COMMERCIAL TAXES, ERNAKULAM NOW AT THIRUVANANTHAPURAM.** **BY SPECIAL GOVERNMENT PLEADER SRI.C.E.UNNIKRISHNAN** **RESPONDENT/REVIEW PETITIONER IN THE ST.REVN: --------------------------------------------** **M/S M.R.F. LIMITED, VADAVATTOR, KOTTAYAM.** **BY ADV.SRI.P.GOPINATH** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 10-08-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **C.T.RAVIKUMAR & ANIL K.NARENDRAN, JJ.** ## **-----------------------------------------------** Review Petition No.454 of 2017 **-----------------------------------------------** Dated this the 10[th] day of August, 2017 ## **O R D E R** ## Ravikumar, J. This review petition is filed seeking a review of the judgment passed by this Court dated 6.1.2016 in S.T.Rev.No.262/06. 2. We heard Adv.C.E.Unnirkishnan, the learned Special Government Pleader (Taxes). 3. At the very outset it is to be noted that the captioned review petition along with O.P.Nos.3444/98 and 12020/98 and S.T.Rev.No.213/06 and connected cases, were remitted by the Honourable Supreme Court of India as per remand order dated 28.4.2011 in Civil Appeal No.3758 of 2011 and connected matters. In the judgment sought to be reviewed, the order of the Hon'ble Apex Court in Civil Appeal No.3758/11 and connected matters was extracted. After extracting the order passed by the Hon'ble Apex Court, the position of law that when a matter is remanded by a higher court, the court below to which it is remanded is bound to confine its enquiry within the scope of Review Petition No.454 of 2017 :-2-: consideration permitted and specified in the order of remand, was given due regard. Taking note of the said position, it was observed that in such circumstances, it would not be open to any of the parties or even to the court considering the matter on such remand, to enlarge the scope of the remand order, based on the decision of the Hon'ble Apex Court in **Jamshed Hormusji Wadia** ## **v. Board of Trustees, Port of Mumbai (AIR 2004 SC 1815).** 4. Realising the scope of enquiry to be made pursuant to the order of remand passed by the Hon'ble Apex Court and taking into account the scope of consideration in the light of the order passed by the Apex Court dated 28.4.2011 in Civil Appeal No.3758/11 and connected cases, this Court considered the questions and passed the judgment which is sought to be reviewed. This short preface became inevitable because of the tenor of the arguments advanced before us by the learned Special Government Pleader. 5. Evidently, in the light of the order of remand, the main question which was considered by this Court was whether the compound of rubber or rubber compound which is the product of the respondent, is a finished product entitled to get concessional Review Petition No.454 of 2017 :-3-: rate of tax in terms of S.R.O.No.641/81 and S.R.O.No.1516/1990. It is such a consideration of those questions that culminated in the judgment sought to be reviewed, as per which, this Court dismissed the review petitions and allowed the original petitions partly, holding that the assessee is entitled to the benefit of S.R.O.No.641/1981 notwithstanding S.R.O.No.1516/1990 and therefore, the assessee is entitled to get reduced rate of tax in terms of S.R.O.No.641/1981 on the purchase of rubber for the manufacture of its product. Feeling aggrieved by the judgment dated 6.1.2016, the review petitioner filed S.L.P.(C) No.9876/16 before the Honourable Supreme Court and it was admittedly dismissed on 8.11.2016. This review petition is filed thereafter, raising various grounds. 6. Before adverting to the grounds raised in the review petition, it is also appropriate to refer to the question of law framed by the review petitioner herein in the above mentioned SLP. They read as follows; “2.1 Whether the Division Bench of the Hon'ble High Court has not erred in holding that 'compound of Rubber' or 'rubber compound' which is the product of the respondent is a finished product and therefore they are entitled to the Review Petition No.454 of 2017 :-4-: concessional rate of tax as per the notification SRO 641/81? 2.2 Whether the Hon'ble High Court has not erred in interpreting SRO 1516/90 which explains that 'finished rubber products' for the purpose of the exemption notification shall not include any form of rubber which are subjected to processing by mixing with chemicals, gas, fumigation or any other similar process to make any compound of rubber ? 2.3 Whether the Hon'ble High Court has not erred in not considering the details submitted by the state to show that other similar tyre manufactures engaged in the purchase of rubber are paying purchase tax at the full rate without claiming concessional rate of tax under SRO 641/81 ? 2.3 Whether the Hon'ble High Court has not erred in holding that the product manufactured by the respondent is a finished rubber product without adverting to the manufacturing process of the respondent ?” 7. It is to be noted that the SLP carrying the aforesaid questions of law was dismissed by the Hon'ble Apex Court as per the order dated 8.11.2016. Thus, it is obvious that the contention of the review petitioner herein in the SLP was that this Court had erred in deciding those questions which were specifically required to be considered as per the earlier order of remand by the Hon'ble Apex Court dated 28.4.2011 in Civil Appeal No.3758 Review Petition No.454 of 2017 :-5-: of 2011 and connected cases. 8. After the dismissal of the SLP, now, this review petition has been filed raising grounds (A) to (J). A scanning of the grounds raised as (A) to (J) in the review petition would undoubtedly reveal that the attempt on the part of the review petitioner is to establish that the decision by this Court as per judgment dated 6.1.2016 in S.T.Rev.No.262/06 is erroneous. The question is when the review petitioner takes up such a contention that the decision of this Court is erroneous that too, after an unsuccessful challenge against the order sought to be reviewed before the Hon'ble Apex Court and at the same time fails to bring out any error apparent on the face of record, whether this Court can invoke the review jurisdiction. The position of law is as plain as a pikestaff. In the decision in **Parsion Devi and ors. v. Sumitri Devi and ors. (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. In the former case, it could be corrected by a higher forum and of course in the latter case, on establishing the error apparent on the face of the record, it would be corrected by the Court which rendered the Review Petition No.454 of 2017 :-6-: order sought to be reviewed, in exercise of their review jurisdiction. While considering the review petition based on the grounds raised, it is also relevant to refer the decisions of the Apex Court in **Lily Thomas v. Union of India (2000(6) SCC 224)** and **Board of control for Cricket in India v. Netaji Cricket Club (2005(4) SCC 741)** . In **Lily Thomas** 's case (supra), the Apex Court held that the power of review could be exercised for correcting a mistake and at the same time it could not be exercised to substitute a new view. In short, it was held that a review petition could not be an appeal in disguise. In **Board of control for Cricket in India** 's case (supra), it was held by the Apex Court that in exercise of the power of review, a matter which was already concluded could not be re-opened and the entire matter could not be re-heard. Keeping in mind the decisions referred supra, we have carefully scanned grounds (A) to (J) raised in this review petition. We have no hesitation to hold that none of such grounds fall within the permissible grounds for invoking the ambit of review jurisdiction and all of them have been raised to mount the correctness of the decision in the order sought to be reviewed. In other words, the Review Petition No.454 of 2017 :-7-: nub of the contentions raised in the review petition, is to the effect that the decisions in the said order are erroneous. When that being the position, the review petition is liable to be failed. In the result, this review petition is dismissed. Sd/- **C.T.RAVIKUMAR JUDGE** Sd/- **ANIL K.NARENDRAN JUDGE** ami/25.8.17 //True copy// P.A.to Judge