2013 (11) TMI 1568 - HC - Customs

Court grants review application, recalls judgment for reevaluation of issues raised in Customs Appeal.

KUMARAKAM LAKE RESORTS Versus COMMISSIONER OF CUSTOMS, KOCHI

The court granted the review application and recalled the judgment in Customs Appeal No. 51 of 2009 for further proceedings. The court emphasized the need ... Reckoning of Earned foreign exchange towards discharge of export obligation – Application for review filed as regards judgment rendered in [2010 (12) TMI 719 - KERALA HIGH COURT] – Held that:- original authority held that in view of interpretation of DGFT as noted by original authority, overall foreign exchange earnings needs to be reckoned towards discharge of export obligation – No discussion or deliberation by Tribunal on this issue was found – Under such circumstances, we are of view that there was error apparent on face of record of judgment and judgment deserves to be reviewed – Plea that was accepted by Tribunal was that said issue was technical one – Liability under Motor Vehicles Act, 1988 is different from liability under Customs Act – Earnings by way of Indian currency or Foreign exchange does not get affected by provisions under Motor Vehicles Act, 1988 – Also plea of importer that it was only by Foreign Trade Policy of 2006, that made it mandatory to follow Section 66(1) of Motor Vehicles Act, 1988 to obtain benefits of Foreign Trade Policy deserved consideration – That also escaped notice in adjudicating process which stood confined to requirement of compliance of Section 66(1) of Motor Vehicles Act, 1988 to ply motor vehicle as transport vehicle – Ends of justice require that impugned judgment be reviewed – Application for review allowed – Decided in favour of applicant. Issues:Review of judgment in Customs Appeal No. 51 of 2009 under the Customs Act, 1962.Analysis:1. The court heard arguments from the Senior Counsel for the review petitioner and the Senior Standing Counsel for Central Board of Excise and Customs regarding the judgment dated 21-12-2010 in Customs Appeal No. 51 of 2009 under the Customs Act, 1962.2. The Senior Standing Counsel for C.B.E. & C. mentioned that the judgment under review was challenged in the Supreme Court, but the Special Leave Petition was dismissed, indicating that the review application can still be entertained.3. Referring to the jurisdiction of review, it was highlighted that the review should be based on the discovery of new evidence or an evident error in the record that does not require detailed examination, as per the State of W.B. and Others v. Kamal Sengupta case.4. The court noted that the original authority's finding regarding the interpretation of Directorate General of Foreign Trade on foreign exchange earnings was not adequately addressed by the Tribunal in the appeal. The absence of appeal from the Department and lack of substantial legal questions raised necessitated a review of the judgment.5. Additionally, the court observed that the Tribunal's decision on liability under the Motor Vehicles Act, 1988, and its connection to the Customs Act was not adequately considered. The plea related to compliance with the Foreign Trade Policy of 2006 and the necessity to follow Section 66(1) of the Motor Vehicles Act for policy benefits was overlooked in the original judgment.6. Consequently, the court decided to recall the entire judgment for a complete reevaluation of the Customs Appeal, allowing for a more thorough consideration of the issues raised during the review process. The review application was granted, and the judgment dated 21-12-2010 in Customs Appeal No. 51/2009 was recalled for further proceedings as per the court's order.7. Finally, the court acknowledged the request for time to seek leave to amend the appeals if necessary, ensuring that all parties have the opportunity to present their case effectively during the review and subsequent proceedings.